Newtrax Standard Limited Warranty on Hardware, Software, and Services
1. Limited warranty.
1.1. Auto Acceptance. The Customer automatically accepts the terms of this Newtrax Limited Warranty by opening the box containing Hardware and/or Software, turning on the Hardware, and/or logging onto the Newtrax Web Console.
1.2. Sole warranty. Newtrax’s sole and exclusive warranty and obligations for Newtrax branded Hardware, Software and Services (each subject to their own warranty terms as specified hereunder) are set forth in this Newtrax Limited Warranty unless otherwise expressly specified in a specific written warranty statement delivered with such Newtrax branded Hardware, Software and/or Services.
1.3. Prevalence over other documents. These terms and conditions prevail over any others as may be found in other documents, including subsequent documents or Customer’s general terms and conditions of purchase regardless whether or when Customer has submitted its purchase order or such terms. For greater clarity, fulfillment of Customer’s order does not constitute acceptance of any of Customer’s terms and conditions and does not serve to modify or amend these terms and conditions. In case of conflict between documents, the order of priority shall be the following: i) Newtrax’s quotation, ii) these terms and conditions and iii) Customer’s purchase orders. A Customer sending a purchase order to Newtrax is presumed to have renounced to its general terms and conditions of purchase and to any special condition which has not been expressly agreed upon in writing by Newtrax, including any stipulation to the same effect as the present subsection.
1.4. Amendment. Newtrax’s warranty may be modified only by a written notice signed by a duly authorized officer of Newtrax specifically indicating the terms and conditions being amended.
2. Newtrax branded hardware limited warranty.
2.1. The hardware, manufactured by Newtrax, including the parts thereof which are integrated in such hardware by Newtrax but excluding any software, firmware, data files and dynamic link libraries (the «Hardware»), will have all of the qualities and features, and be capable of performing substantially all of the functions in accordance with Newtrax’s published specifications and is warranted to be free from material defects in materials and workmanship at the time of delivery.
2.2. Any Hardware or part thereof found to be defective, upon examination by a properly authorized Newtrax representative, will be refurbished, repaired or replaced F.O.B. Newtrax offices. Upon receipt of the defective Hardware shipment, Newtrax’s personnel will inspect and sort same. All Hardware covered by the warranty as per section 2.1 above will be refurbished, repaired or replaced free of charge. However, Hardware that will be found to have been returned for other reasons (dirt, misuse, physical damage, repair by unauthorized personnel, etc.) will be refurbished, repaired or replaced against payment by Customer for parts and labor.
2.3. Refurbishing, repair and/or replacement is subject to the following condition : all Hardware or part will be refurbished, repaired or replaced at no charge, if the claim is made within twelve (12) months of the installation date or eighteen (18) months after shipment by Newtrax, whichever is earliest (the «full hardware warranty period»). Notwithstanding the above, Newtrax shall, at its own discretion, be entitled to replace the reported defective Hardware without requesting shipment of same to Newtrax.
3. Software limited warranty.
3.1. License. Newtrax grants to the end Customer placing this order, a perpetual, non-transferable, non-exclusive, irrevocable (except in the case of default) license to use the version of the software, firmware, data files and dynamic link libraries (collectively the “Software”) purchased in machine-readable, object-code form for internal business purposes and on the specific hardware on which it was initially installed by Newtrax.
3.2. Warranty. Newtrax warrants, commencing from the date of shipment to Customer and continuing until the earliest of: i) ninety (90) days from the date of shipment, ii) sixty (60) days from date of arrival on site, or iii) when Customer signs off upon system commissioning that the Software performs substantially in accordance with its published specifications when used with the corresponding Hardware on site, that (a) the Software will be free of material programming errors, (b) the Software will substantially operate and conform to Newtrax’s published specifications, (c) the media on which the Software is furnished will be free of defects in materials and workmanship under normal use.
3.3. Limitations. Except for the above, the Software, including any firmware is provided “as is”. This limited warranty extends only to the Software purchased from an approved source by a Customer who is the first registered end user. In no event does Newtrax warrant that the Software is error free or that customer will be able to operate the Software without problems or interruptions. In addition, due to the continual development of new techniques for intruding upon and attacking networks, Newtrax does not warrant that the Software or any equipment, system or network on which the Software is used (including any Hardware) will be free of vulnerability to intrusion or attack.
3.4. Sole remedy. Customer’s sole and exclusive remedy and the entire liability of Newtrax and its suppliers under this limited warranty will be (i) replacement of defective media and/or (ii) at Newtrax’s option, repair, provide a replacement or provide a work around in all cases subject to the condition that any error or defect constituting a breach of this limited warranty is reported to the approved source supplying the Software to Customer within the warranty period. Newtrax or the approved source supplying the Software to Customer may, at its option, require return of the Software and/or documentation as a condition to the remedy.
3.5. Restrictions. The software warranty also does not apply to (a) any temporary Software modules or patches; (b) any Software not posted on Newtrax’s standard software list; (c) any Software that Newtrax expressly provides on an “as is” basis on Newtrax’s standard software list; (d) any Software for which an approved source does not receive a license fee; and (e) Software supplied by any third party which is not an approved source.
4. General conditions.
4.1. Notification by Customer. Customer will have the obligation to advise Newtrax of the existence of any warranty claim or any defect as soon as possible after same is brought to its attention and to provide Newtrax with all useful information and explanations relating to same. Customer shall allow Newtrax to have free access to any Hardware and/or Software at all reasonable times and shall return any defective Hardware and/or Software to Newtrax warehouse designated by Newtrax.
4.2. No transfer. The Newtrax warranty cannot be transferred; it applies only to the original Customer and a valid proof of purchase may be requested for the warranty to be acted upon. The Newtrax warranty does not cover an item where the original label or the serial number has been removed, defaced or modified.
4.3. Restrictions. The limited warranties referenced above are voided and do not apply in the following circumstances:
i. if the Hardware and/or Software has been shipped, stored, installed, operated, refurbished, repaired, used, adjusted, maintained or otherwise handled by a person not authorized to do so by Newtrax,
ii. if the Hardware and/or Software has not been shipped, stored, installed, operated, refurbished, repaired, used, adjusted, maintained or otherwise handled in accordance with instructions made available by Newtrax, for example if Hardware and/or Software is used for purposes other than those for which it was designed;
iii. if the Hardware and/or Software has been subjected to abnormal or unusual physical or electrical stress or environmental conditions, misused, or negligently handled, maintained or operated, for example as a result of failure to provide a suitable installation/operation environment for the products;
iv. if the Hardware and/or Software is acquired by Customer for beta, evaluation, testing, demonstration purposes or other circumstances for which Newtrax does not receive a payment of a purchase price or license fee; v. as a result of force majeure.
4.4. No obligation to continue. Newtrax shall be under no obligation to Customer to continue, discontinue or change any Hardware or Software.
5. Newtrax Services limited warranty.
5.1. Customer acknowledges that Newtrax assumes no obligation or liability to Customer for any technical advice provided free of charge by Newtrax with respect to the use of the Products and for the advice given or results obtained, all such free advice is given by Newtrax and accepted by Customer at Customer’s risk.
5.2. Billed services provided in relation to the Newtrax Hardware and/or Software (“Services”) will be performed with promptness and diligence and will be executed in a workmanlike and professional manner, in accordance with the practices and professional standards used in well-managed operations performing services similar to the Services.
5.3. Customer must notify Newtrax promptly, but in no event more than thirty (30) days after completion of any Service, of any claimed breach of this warranty.
5.4. Customer’s sole and exclusive remedy for breach of this warranty shall be, at Newtrax’s option, re-performance of the Services, or termination of the terms of sale related to the applicable Service and return of the portion of the applicable Service fees paid to Newtrax by Customer for such non-conforming Service(s).
5.5. The provision of Services under this agreement shall not extend the warranties provided with any Newtrax branded or third party hardware purchased or software licensed by Customer from Newtrax or any other party.
6. Warranty disclaimer. Newtrax assumes only those obligations set forth herein, excluding all other warranties or obligations. No other warranty is expressed or implied by this policy statement. The Hardware, Software and Service warranty is, to the extent allowed by law, expressly in lieu of any other expressed or implied warranty, condition or guarantee, agreement or representation made by any person with respect to the Hardware, Software and Services. Except for the warranties contained above, NEWTRAX DISCLAIMS AND CUSTOMER WAIVES ALL REPRESENTATIONS, CONDITIONS AND WARRANTIES, EITHER EXPRESSED OR IMPLIED, LEGAL OR CONVENTIONAL, WITH REGARD TO ANY HARDWARE, SOFTWARE OR SERVICE INCLUDING, WITHOUT LIMITATION, ANY WARRANTY OR CONDITION (A) OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON–INFRINGEMENT, TITLE, SATISFACTORY QUALITY, QUIET ENJOYMENT, ACCURACY, OR SYSTEM INTEGRATION, OR (B) ARISING FROM ANY COURSE OF DEALING, COURSE OF PERFORMANCE, OR USAGE IN THE INDUSTRY.
7. Limitation of liability. TO THE EXTENT AN IMPLIED WARRANTY OR CONDITION CANNOT BE DISCLAIMED, SUCH WARRANTY OR CONDITION IS LIMITED IN DURATION TO THE APPLICABLE EXPRESS WARRANTY PERIOD. THE WARRANTY EXPRESSLY CONTAINED HEREIN IS IN LIEU OF ANY LIABILITY OR OBLIGATION OF NEWTRAX FOR ANY DAMAGES WHATSOEVER (INCLUDING ANY INCIDENTAL, CONSEQUENTIAL, INDIRECT OR SPECIAL DAMAGES OR LIABILITIES, COSTS, LOSS OF DATA, LOSS OF REVENUE, INTERRUPTION OF BUSINESS OR OTHER FINANCIAL LOSS, FINES OR PENALTIES FOR INFRINGEMENT OR PERSONAL INJURY) SUSTAINED BY ANY PERSON (INCLUDING ANY EMPLOYEE, AGENT, INVITEE, CUSTOMER OR CLIENT OF CUSTOMER) AND/OR IN ANY WAY ARISING FROM OR RELATING TO THE SALE, MAINTENANCE, USE, PERFORMANCE, FAILURE OF ANY HARDWARE, SOFTWARE OR SERVICE. NEWTRAX’S TOTAL AGGREGATE LIABILITY TO THE CUSTOMER IS LIMITED TO THE PURCHASE PRICE PAID FOR THE PRODUCTS AND/OR SERVICES THAT FIRST GAVE RISE TO SUCH LIABILITY.
8. Third-party products and services. Products manufactured by a third party, including sensors, equipment, hardware, software, firmware, data files and dynamic link libraries (“Third Party Products“) may constitute, contain, be contained in, incorporated into, attached to or packaged together with Newtrax Hardware and/or Software. Third Party Products are not covered by any warranty provided by Newtrax. Unless otherwise specified in writing by Newtrax, the limited warranties referenced herein do not apply to any Third Party Products that may be offered for sale on the Newtrax Price List even if separately listed. Third Party Products are warranted solely by the applicable manufacturer or licensor. Newtrax will pass through, to the extent permitted, the manufacturer’s and/or licensor’s warranties and Customer shall look solely to such manufacturer and/or licensor for warranty claims.
9. Title and Risk of Loss. Title and risk of loss passes to Customer upon delivery of the Hardware and/or Software at the delivery point, which by default is EXW 600-620 St Jacques Street, Montreal, Quebec, H3C 1C7. As collateral security for the payment of the purchase price of the Hardware and/or Software, Customer hereby grants to Newtrax a lien on and security interest in and to all of the right, title and interest of Customer in, to and under the Hardware and/or Software, wherever located, and whether now existing or hereafter arising or acquired from time to time, and in all accessions thereto and replacements or modifications thereof, as well as all proceeds (including insurance proceeds) of the foregoing.
10. Acknowledgement. Customer acknowledges and agrees that Newtrax has set its prices and entered into the agreement in reliance upon the disclaimers of warranty and the limitations of liability set forth herein, that the same reflect an allocation of risk between the parties (including the risk that a contract remedy may fail of its essential purpose and cause consequential loss), and that the same form an essential basis of the bargain between the parties.
11. Customer shall take up the defense and hold Newtrax harmless regarding any legal or extra legal proceedings, notice, or claim by the Customer or by a third party which is a result of Customer’s negligence or failure to follow Newtrax’s instructions or recommendations in relation to the Hardware and/or Software, including those specified in section 4.3 above, and regarding any legal and extra legal expenses and fees brought forward on by such damages.