MASTER PURCHASE AGREEMENT
For good and valuable consideration, the parties hereby agree as follows:
GENERAL TERMS & CONDITIONS
1. General. The terms and conditions of this Agreement apply to the purchase of XONA Products, use of Documentation and performance of Services for the Term as set forth in the Order and are accepted once Customer’s purchase order is accepted by XONA except to the extent there is a written definitive agreement signed by the parties in effect and governing the subject matter of this Agreement. “Product” means the XONA product listed on the applicable Order. The Product includes Software and may include Hardware. “Hardware” consists of on-premises hardware provided by XONA or its suppliers and authorized for use with the Product including all updates, upgrades, modifications, improvements and derivatives thereof excluding third party hardware used with the Software. “Software” means XONA software performing the functionality described in the Documentation for use with the Products in accordance with this Agreement including all updates, upgrades, modifications, improvements and derivatives thereof excluding third party software and open source software governed by separate license terms (available upon request) and applicable provisions of this Agreement. “Documentation” means XONA’s technical manuals or other documentation relating to the functionality or operation of the Products made available by XONA expressly excluding marketing and sales collateral and materials. “Services” means the technical support services XONA performs for Customer in accordance with Services Program set forth in Exhibit A attached hereto and incorporated herein. “Term” or “Subscription Term” means the period of time stated in the applicable quote, sales order, purchase order or similar order form (“Order”) for which Customer has paid the applicable fees and is permitted to use the Software and Documentation in accordance with this Agreement and the Documentation.
2. License Grant. Subject to Customer’s compliance with this Agreement and payment of all fees, during the Term or Subscription Term, XONA grants Customer a limited, non-exclusive, non-sublicensable, non-transferable (except as may be expressly permitted herein) license to use the Software and Documentation only with the Hardware in accordance with the Documentation and this Agreement only for Customer’s commercial business purposes. All Software is licensed in object code only.
3. Restrictions. Except as expressly permitted by this Agreement or as the parties first agree in writing, Customer will not (and will not allow any third party to): (a) use the Products or Documentation other than in accordance with this Agreement; (b) use the Products or Documentation other than in compliance with applicable laws and regulations or for the purposes of unfair or improper competition; (c) reverse engineer or attempt to discover any source code or underlying ideas or algorithms of the Software (except to the limited extent that applicable law prohibits reverse engineering restrictions); (d) redistribute, encumber, sell, rent, lease, sublicense, lend, disclose, use for timesharing or service bureau purposes, or otherwise transfer the Software or Documentation to a third party; (e) disclose to any third party the results of any benchmarking; (f) remove or alter any copyright or proprietary notices or labels on the Software or Documentation; (g) copy, reproduce, alter, modify or translate the Software or Documentation; (h) permit access to, or use, the Software in a way that exceeds or attempts to, or circumvents, licensed capacity or use any locked or restricted feature, function, service, or capability without first purchasing the applicable license key or otherwise paying for such use, even if such usage limit, feature, function, service or capability is accessible without a license key; or, (i) use the Software in any situation where failure or fault of the Products could lead to the death or serious bodily injury of a person, or to physical or environmental damage. XONA and its suppliers and licensors retain all rights except as expressly granted by this Agreement. “Intellectual Property Rights” means all intellectual property or proprietary rights, including but not limited to copyright rights, moral rights, trademarks (including logos, slogans, trade names, service marks), patent rights (including patent applications and disclosures), know-how, inventions, rights of priority, and trade secret rights, recognized in any country or jurisdiction in the world.
4. Purchase Price. Customer will pay the purchase price for the Products and Services stated in the Order plus all related transportation charges, as well as all sales, use, value-added and other taxes, tariffs and duties of any type assessed against XONA (except for U.S. taxes on XONA’s income). Prices may be adjusted at any time following written notice which are effective in the immediately subsequent renewal Term. If Customer purchases the Products or Services through a XONA authorized channel partner (such as an authorized reseller or distributor, collectively, “Channel Partner(s)”), all prices, payment and other procurement and delivery terms will be agreed between Customer and the Channel Partner.
5. Payment. Payment in full is due within 30 days of the date of XONA’s invoice and payable in U.S. Dollars (except as the parties first agree in writing). All sales are final and all amounts due and payable without set-off or deduction and, once paid are non-refundable except as expressly stated in this Agreement. All amounts due will be grossed-up for any withholding taxes. Past due amounts bear a late payment charge until paid at the rate of 1.5% per month or the maximum amount permitted by law, whichever is less. If any undisputed payment is past due, XONA may take such action it deems appropriate (e.g. suspending performance, adjusting payment terms or rejecting orders) in addition to all other remedies. Customer will reimburse XONA for all reasonable costs (including attorneys’ fees) incurred in collecting payments.
6. Delivery. Products will be packed in accordance with XONA’s standard practices and delivered to Customer EX WORKS (Incoterms 2020). Software may be delivered installed on the Hardware and a virtual application is available by download through a secure portal. Upon delivery to the FOB point, title to Hardware (but not Software), and all risk of loss and damage to Products, pass to Customer. Customer may request XONA arrange for handling, shipping and insuring the Products to Customer’s delivery point. Delivery dates are not guaranteed and supply is subject to availability and XONA’s other obligations. XONA will notify Customer of delivery delays. In no event will XONA be liable for any damage or penalty for delay in delivery or for failure to give notice of delay. Delivery may be in advance of any scheduled delivery date upon reasonable prior notice to Customer. Customer will submit all claims for shortages, damages or other irregularities to XONA within 5 business days after delivery. Title to Software remains with XONA at all times.
7. Acceptance. The Software and Documentation are accepted once the Software is made available for download or once loaded on the Hardware and delivered to the carrier and without reliance upon future versions. Defects will be addressed in solely in accordance with the Services Program then in effect. The current Services Program is set forth in the Exhibit A, attached hereto and incorporated herein. “Defect(s)” means reproducible errors in the Software so that the Product does not perform materially in accordance with the Documentation when used in accordance with this Agreement and the Documentation. “Services” means technical support for the Products provided by XONA to the Customer for the payment of applicable fees.
8. Evaluation. From time to time, the parties may engage in a Product evaluation or proof of concept. In such case, XONA grants Customer a personal, nonexclusive license to use the Product at Customer’s site in accordance with this Agreement and the Documentation, solely for internal testing and evaluation purposes, in a non-production environment for up to 30 days or such period as the parties agree in writing (“Evaluation Period”).
9. Ownership. Rights Reserved. XONA and its licensors retain all right, title and interest in, to and arising out of the Products, Documentation and Services, all XONA Confidential Information, feedback and all Intellectual Property Rights therein except for the express licenses and rights granted by XONA hereunder. XONA licenses and does not sell the Software or Documentation. Terms such as “purchase, “sell” and similar terms refer solely to the purchase or sale of licenses to access and use the Software. XONA and its licensors retain all right, title and interest in, to and arising out of the Product, Documentation and Services, all XONA Confidential Information, feedback and all Intellectual Property Rights therein except for the express licenses and rights granted by XONA hereunder.
10. Confidential Information.
10.1 “Confidential Information” means: (a) all information or materials disclosed by or on behalf of discloser to recipient before, on or after the Term that: (i) if disclosed in writing or in the form of tangible materials, is marked “confidential” or “proprietary” or with a similar designation at the time of such disclosure; (ii) if disclosed orally or presented visually, is identified as “confidential” or “proprietary” at the time of such disclosure, and is summarized in a writing sent by discloser to recipient within 30 days after any such disclosure; or, (iii) due to its nature or the circumstances of its disclosure, a person exercising reasonable business judgment would understand to be confidential or proprietary; and, (b) excludes information or materials: (i) in the public domain at or subsequent to the time the Confidential Information was communicated to recipient by discloser through no fault of recipient; (ii) rightfully in recipient’s possession or communicated to recipient without restriction; or, (iii) developed independently of and without reference to discloser’s Confidential Information. XONA Confidential Information includes, by example, and not exclusion, the Software, feedback, benchmarks and roadmaps.
10.2 Recipient will use, at least, commercially reasonable efforts to maintain the confidentiality of the discloser’s Confidential Information, agrees to use Confidential Information only for purposes consistent with this Agreement, will notify discloser promptly of any unauthorized use or disclosure of Confidential Information and will assist in the investigation, remediation, reporting and notification. Confidential Information may be disclosed to and used by recipient’s employees, contractors, professional advisors and third parties having a need to know and who are under a similar obligation of confidentiality. Recipient is responsible for the use and disclosure of discloser’s Confidential Information by its employees, contractors, professional advisors and third parties.
10.3 Disclosure by recipient of discloser’s Confidential Information (a) in response to a valid order by a court or other governmental body; (ii) as otherwise required by law; or, (iii) necessary to establish the rights of either party under this Agreement is not a breach of this Agreement; provided, however, recipient will provide prompt prior written notice thereof to the discloser except as prohibited or restricted to enable discloser to seek a protective order or otherwise prevent or limit the disclosure will provide reasonable assistance in opposing such disclosure or seeking a protective order or other limitations on disclosure.
10.4 The parties agree that during the term of this Agreement, each party may reasonably publicize the non-confidential subject matter of this Agreement for ordinary marketing purposes and that each party may use the trademarks, service marks, logo and trade names of the other party for that purpose in accordance with the other party’s guidelines and policy.
10.5 Confidentiality obligations under this Agreement survive for a period of 3 years from the date of disclosure except that, as to any Confidential Information that Discloser maintains as a trade secret, Recipient’s obligations will remain in effect for as long such Confidential Information remains a trade secret under applicable law.
11. Term and Termination.
11.1 Term of License. Software and Documentation are licensed, and Services are provided, during the Term or Subscription Period described in the Order and automatically renew for such Term or Subscription Period unless: (a) either party notifies the other of its intent not to renew this Agreement by giving the other party notice of non-renewal no later than 60 days prior to the end of the then-current term; or, (ii) this Agreement is terminated in accordance with this Section. Once renewed, the renewal Term or renewal Subscription Period is not cancellable except as expressly permitted by this Agreement and all fees are due and payable.
11.2 Termination. A party may terminate this Agreement effective 30 days from the date of written notice to the other party if the breaching party fails to cure a material breach of this Agreement within such 30 day cure period. XONA may terminate this Agreement effective 10 business days from the date of written notice to the Customer for failure to make a payment when due. This Agreement terminates immediately without notice for Customer’s breach of Section 2 or 13 of this Agreement.
11.3 Effect of Termination. On expiration or earlier termination of the Evaluation Period: (a) Customer will stop using the Product unless Customer purchases the Product; (b) return the Product to XONA within 14 days of the expiration of the Evaluation Period, in accordance with XONA’s instructions, in good working order (except for reasonable wear and tear) with all Customer data removed or pay the then purchase price for the Products upon receipt of an invoice. Upon termination of this Agreement for any reason: (i) all sums due XONA will become immediately due and payable on the effective date of termination; and (ii) Customer will cease all use of the Software, Documentation and XONA Confidential Information and will promptly return or destroy the Software, Documentation or XONA Confidential Information, as instructed by XONA. XONA will not be liable to Customer for any damages, expenditures, loss of profits, goodwill, or prospective profits of any kind or nature arising out of such termination. Termination is not an exclusive remedy and all other remedies will be available whether or not termination occurs except as expressly stated. The provisions of Sections 1, 5, 9, 10, 11.3 and 12-16 survive expiration or termination of this Agreement for any reason.
12. Indemnity.
12.1 By XONA. XONA will defend or settle a third party claim or cause of action against the Customer and indemnify and pay damages finally awarded or paid in settlement to the extent the Product infringes or misappropriates a patent or copyright of such third party (“Claim”) when used in accordance with this Agreement and the Documentation if XONA is promptly notified of such Claim, is given sole control of the defense and settlement of the Claim and Customer provides to XONA all reasonable assistance. XONA is not be responsible for any settlement it does not approve in writing. The foregoing obligations do not apply with respect to Product, in part or in whole: (a) not supplied by XONA; (b) made in whole or in part in accordance with Customer’s specifications; (c) modified other than by XONA; (d) combined with other products or services but for such combination, the Product would not be infringing; (e) if Customer continues allegedly infringing activity after being notified by XONA; or (f) if Customer’s use is not strictly in accordance with this Agreement and Documentation (clauses (a) through (f) being “Excluded Claims”). In response to a Claim, XOMA may, at its sole option and expense: (i) replace or modify the affected Product to make it non-infringing with no less functionality; (ii) procure a license for Customer’s continued use of the affected Product; or, (iii) if neither of the foregoing is commercially practicable, require the Customer stop using the affected Product, destroy or return the affected Product in accordance with XONA’s instructions; in which case, this Agreement will terminate and, following compliance with XONA’s instructions, XONA will refund to Customer the depreciated value of the Product (calculated as the purchase price paid amortized on a straight-line basis over the remaining period of the then current Term or Subscription Term). The provisions of this Section 10 state XONA’s sole and exclusive obligations, and Customer’s sole and exclusive remedies, with respect to any claims of infringement or misappropriation of third party intellectual property rights of any kind.
12.2 Indemnification by Customer. Customer will defend XONA against any Excluded Claim made or brought against XONA and indemnify XONA and pay any damages finally awarded against XONA arising from, due to or in connection with any such Excluded Claim (or any settlement approved by XONA) including all costs and professional and attorneys’ fees. XONA will promptly notify Customer of such Excluded Claim. Customer will have authority to defend and/or settle any such Excluded Claim (provided that Customer may not settle any Excluded Claim without XONA’s prior written consent, which will not be unreasonably withheld, if it unconditionally releases XONA of all liability).
13. Disclaimer. Evaluation Products are provided on an as-is basis, without Services or any implied or express warranties, including but not limited to implied warranties of fitness for a particular purpose or merchantability. EXCEPT AS STATED IN THE SERVICES PROGRAM, XONA, ITS SUPPLIERS AND LICENSORS, DISCLAIM ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, IMPLIED WARRANTIES OF NON-INFRINGEMENT, MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE AS TO THE PRODUCTS, DOCUMENTATION AND SUPPORT & MAINTENANCE. THE PRODUCTS ARE NOT DESIGNED, INTENDED, OR LICENSED FOR USE IN ANY AERONAUTICAL, NUCLEAR, MEDICAL, LIFE SAVING OR LIFE SUSTAINING SYSTEMS, OR FOR ANY OTHER APPLICATION IN WHICH THE USE COULD CREATE A SITUATION WHERE PERSONAL INJURY OR DEATH MAY OCCUR. Customer is responsible to backup and protect all of its data and systems. XONA, its suppliers and licensors, are not responsible for liable for loss, corruption or destruction of data.
14. Limitation of Liability. XONA, ITS SUPPLIERS AND LICENSORS, ARE NOT LIABLE UNDER ANY LEGAL OR EQUITABLE THEORY FOR (A) LOSS, DAMAGE, CORRUPTION OR INACCURACY OF DATA OR COST OF PROCUREMENT OF SUBSTITUTE GOODS, SERVICES OR TECHNOLOGY, (B) ANY INDIRECT, INCIDENTAL, SPECIAL OR CONSEQUENTIAL DAMAGES INCLUDING, BUT NOT LIMITED TO LOST REVENUES, GOODWILL AND PROFITS, (C) ANY AMOUNT IN THE AGGREGATE IN EXCESS OF THE FEES PAID AND PAYABLE HEREUNDER, OR, IF GREATER, ONE THOUSAND DOLLARS ($1000), OR (D) ANY MATTER BEYOND ITS REASONABLE CONTROL WHETHER OR NOT THE CUSTOMER HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THIS LIMITATION IS CUMULATIVE AND WILL NOT BE INCREASED BY THE EXISTENCE OF MORE THAN ONE INCIDENT OR CLAIM.
15. Compliance with Applicable Laws. Customer will comply with all applicable laws and regulations, including, without limitation: (a) all privacy laws and regulations; (b) export laws and regulations; and, (c) the U.S. Foreign Corrupt Practices Act, the UK Bribery Act and all similar laws and regulations which prohibit offering any inducement, whether money or goods or services, to any government official, employee, candidate or party. Customer will obtain any licenses or approvals the U.S. government or any agency thereof requires prior to exporting, directly or indirectly, any technical data acquired from XONA pursuant to this EULA or any Product utilizing that data including, by way of example and not exclusion, as applicable, complying with the Export Administration Regulations of the Bureau of Industry and Security (“BIS”) of the U.S. Department of Commerce and the economic sanctions administered by the Office of Foreign Assets Control (“OFAC”), of the U.S. Department of the Treasury and to obtain any necessary license or other authorization to export, reexport, or transfer XONA Confidential Information or the Product(s). Without limiting the foregoing, Customer will not to export, re-export, provide, or transfer Confidential Information or the Products to Cuba, Iran, North Korea, Russia, Sudan, or Syria (and such countries as updated from time to time), to the governments of these countries, wherever located, to any person or entity identified on BIS’s Denied Persons, Entity, or Unverified List or OFAC’s Specially Designated Nationals List or List of Consolidated Sanctions, to any end user with knowledge or reason to know that the Product(s) or Confidential Information will be used for nuclear, chemical, or biological weapons proliferation, or for missile-development purposes or to any person with knowledge or reason to know that they will export, re-export, provide, or transfer the Product(s) or Confidential Information other than in compliance with the foregoing restrictions.
16. General.
16.1 English Version. The English version of this Agreement will control, regardless of whether a translation into any other language is made. The parties have required that this Agreement, all documents or notices and claims, actions or proceedings resulting therefrom or ancillary thereto be drawn up and conducted in the English language.
16.2 Assignment. This Agreement is binding upon and inures to the benefit of the parties and their respective permitted successors and assigns. Neither party may assign its rights and/or delegate its duties under this Agreement to any third party without the prior written consent of the other party, except that XONA may assign this Agreement and its rights and obligations hereunder to a successor agreeing to be bound to this Agreement. Subject to the foregoing, this Agreement will bind and inure to the benefit of each party’s successors and permitted assigns.
16.3 Notices. All notices required or permitted under this Agreement will be in writing and will be deemed given if delivered or rejected at a party’s address stated in the last Order unless a party otherwise provides written notice to the other party.
16.4 U.S. Government. If the Software and Documentation are provided to any unit or agency of the United States Government or any other (domestic or foreign) governmental agency or authority (“Government”), the following provisions apply: All Software and Documentation are deemed to be “commercial computer software” and “commercial computer software documentation,” respectively, pursuant to DFAR Section 227.7202 and FAR Section 12.212 or other applicable governmental regulations, as applicable. Any use, modification, reproduction, release, performance, display or disclosure of the Software and Documentation by the Government will be governed solely by the terms of this Agreement and will be prohibited except to the extent expressly permitted by the terms herein.
16.5 Governing Law; Arbitration. This Agreement will be deemed to have been made in, and will be construed pursuant to the laws of the State of Maryland without regard to conflicts of laws provisions thereof, and without regard to the United Nations Convention on the International Sale of Goods or the Uniform Computer Information Transactions Act and venue lies in Howard County, MD. Except for a claim for equitable relief, any dispute arising from or relating to the subject matter of this Agreement that cannot be resolved thereby within a period of sixty (60) days after notice of a dispute has been given by one party hereunder to the other (the last day of such sixty (60) day period being herein referred to as the “Arbitration Date”), will be finally settled by arbitration in Howard County, MD, using the English language in accordance with the Arbitration Rules and Procedures of the Judicial Arbitration and Mediation Services, Inc. (“JAMS”) then in effect, by a single commercial arbitrator with substantial experience in resolving complex commercial contract disputes, who may or may not be selected from the appropriate list of JAMS arbitrators. If the parties cannot agree upon the identity of the arbitrator within fifteen (15) days following the Arbitration Date, then an arbitrator will be selected on an expedited basis in accordance with the Arbitration Rules and Procedures of JAMS. Any arbitrator so selected will have substantial experience in the software industry. The prevailing party in the arbitration will be entitled to receive reimbursement of its reasonable expenses (including reasonable attorneys’ fees, expert witness fees and all other expenses) incurred in connection therewith. Judgment upon the award so rendered may be entered in a court having jurisdiction or application may be made to such court for judicial acceptance of any award and an order of enforcement, as the case may be.
16.6 Review. Upon reasonable prior notice, during the term and for three (3) years thereafter, XONA or its representative may audit Customer’s usage and records to ensure that Customer is using the Software in compliance with this Agreement and all fees have been paid. Any such review will be conducted during regular business hours at Customer’s offices andwill not interfere unreasonably with Customer’s business activities. Customer will provide XONA reasonable assistance and access to information. If the review reveals Customer has underpaid fees by more than five percent (5%), Customer will pay XONA’s reasonable costs of conducting the audit, in addition to the underpaid amount.
16.7 Equitable Relief. Customer acknowledges that a breach of its obligations with respect to use of the Software and Documentation confidentiality or breach of applicable laws would cause substantial harm to XONA that could not be remedied by the payment of damages alone. Accordingly, in the event of any such breach or alleged breach, and, without limiting any other remedies hereunder, XONA is entitled to equitable and injunctive relief and award of its reasonable attorneys’ fees and costs in addition to all other remedies provided by this Agreement or available at law without the need to post bond.
16.8 Force Majeure. Neither party will be responsible for any failure or delay in its performance under this Agreement (except for any payment obligations) due to causes beyond its reasonable control, including, but not limited to, labor disputes, strikes, lockouts, shortages of or inability to obtain labor, energy, raw materials or supplies, war, terrorism, riot, acts of God or governmental action. This provision does not relieve or suspend Customer’s obligation to timely pay all amounts due hereunder.
16.9 Waiver. No delay or failure by either party in exercising or enforcing any of its rights or remedies hereunder, and no course of dealing or performance with respect thereto, will constitute a waiver thereof. The express waiver of any right or remedy in a particular instance will not constitute a waiver thereof in any other instance.
16.10 Severability. If any provision of this Agreement will for any reason be held illegal or unenforceable, such provision will be deemed separable from the remaining provisions of this Agreement and will in no way affect or impair the validity or enforceability of the remaining provisions of this Agreement, unless such omission would frustrate the intent of the parties, in which case this Agreement will immediately terminate.
16.11 Entire Agreement. This Agreement and its Exhibits referenced or attached hereto and any Orders executed in connection with this EULA (which do not conflict with or add terms to this EULA except as the parties first agree in writing) constitute the entire agreement between the parties with respect to the subject matter hereof. All prior and contemporaneous agreements, representations, statements, negotiations, understandings and undertakings, whether written or oral, are superseded by this Agreement. This Agreement may be modified only in a written document signed by both parties. This Agreement may be executed in multiple counterparts (including by exchange of facsimile or electronic copies), each of which will be deemed to constitute an original, but all of which together will constitute only one document.
Exhibit A – Services Program
For the payment of applicable fees, for the Term or Subscription Term, XONA will provide XONA Services in accordance with this Services Program. This Exhibit A is made a part of, incorporated into and governed by the referenced Agreement except this Exhibit A governs any conflict with the Agreement pertaining to Services.
XONA uses commercially reasonable efforts to provide the Services directly to the Customer for the Products as follows, during the Term or Subscription Term, upon the payment of applicable fees and in accordance with the following terms and conditions (“Terms”). Services consist of: (a) Hardware Warranty; (b) Services; (c) Training; (d) Installation and (e) such other services XONA offers from time to time.
1. XONA Limited Warranty Support for Hardware (“Hardware Warranty”): If Customer does not buy Services, XONA only provides the following Hardware Warranty (even if Customer buys Training and Installation):
1.1 XONA warrants to the Customer that, for 90 days from the date XONA ships the Hardware (“Hardware Warranty Period”), the Hardware will conform in all material respects to the applicable Documentation in effect as of the date of manufacture when used in accordance with the Documentation. Software loaded on the Hardware is accepted on delivery of the Hardware to the carrier or once the Software is made available for download if not loaded on the Hardware. Software Defects will be addressed if Customer purchases Services and, then, as stated below.
1.2 Customer will submit a Service Request to XONA’s technical support team through XONA’s support portal at support@xonasystems.com 24X7X365. Technical support response time under this Hardware Warranty is within 12 business hours of submission of the Service Request for Hardware Warranty support.
1.3 Once XONA’s technical support team diagnoses the Defect, a return material authorization (“RMA”) will be issued for return and/or repair or replacement of the Hardware. Customer must obtain XONA’s prior written authorization and comply with XONA’s RMA procedures and instructions. Advanced replacement of the Hardware is not available unless Customer purchased Premium Services or except for DOA Hardware.
1.4 “Dead on Arrival” Hardware (“DOA Hardware”) must be reported to XONA within thirty calendar days of delivery of the Hardware by submitting a Service Re. XONA will ship replacement Hardware promptly. Customer will return the DOA Hardware to XONA within 14 days of receipt of the replacement unit in accordance with the RMA process or will pay the purchase price for the replacement unit and all associated duties, taxes, and shipment costs on receipt of XONA’s invoice.
1.5 XONA’s sole obligation under this Hardware Warranty, and Customer’s exclusive remedy, is to use commercially reasonable efforts to repair or replace non-conforming Hardware so long as Customer notifies XONA of a Defect during the Hardware Warranty Period. Hardware repaired or replaced under this Hardware Warranty shall be covered for the remainder of the original Hardware Warranty Period, or 30 days after re-delivery, whichever is longer. Replacement Hardware may be new or equivalent to new.
1.6 The Hardware Warranty does not apply to: (a) Hardware Warranty claims not made within the Hardware Warranty Period and/or not covered by the Hardware Warranty; (b) Hardware returned without XONA’s prior written authorization and not in compliance with XONA’s RMA procedures and instructions; (b) Hardware handled, transported, installed, operated, maintained, stored or used improperly, or in any manner contrary to the Documentation or XONA’s written instructions or recommendations; or, (c) Hardware repaired, altered or modified other than by XONA or its authorized service provider.
2. Services. For payment of the applicable fee, during the Term, and compliance with applicable terms and conditions, XONA offers two levels of Services: (a) Standard Services and (b) Premium Services:
| Standard Services | Premium Services | |
| Submit Service Request to XONA’s technical support team through XONA’s support portal at support@xonasystems.com 24X7X365 | Yes | Yes |
| Technical Support provided remotely Telephone contact: 1-866-849-6629 and selecting “Support” |
Business Hours: Monday through Friday from 8am to 6pm, USA local time (also referred to as Business Day) | 24X7X365/6 |
| Remote (except as agreed) Telephone consultation and support | Remote (except as agreed) Telephone consultation and support | |
| Quick Start Guide | Quick Start Guide | |
| User Support Portal: Access to user support portal on XONA Website (https://www.xonasystems.com)
Available by Email: Quick Start Guides, Updates and Upgrades, training registration, curricula and fees |
Yes | Yes |
| Advanced Hardware Replacement | No | Yes |
| Software Updates and Upgrades made generally commercially available and may only be installed for use with the original Software on the original Hardware.
Downloaded: (https://www.xonasystems.com) using issued credentials. |
Yes | Yes |
| Response Time Targets | ||
| Severity Level as Assigned by XONA technical support based consultation with Customer and a determination of severity and complexity of Defect |
Telephone consultation and support | Telephone consultation and support |
| L1: The Product is non-functional or significant features or components are unusable. | Within 4 hours during Business Hours from submission of Service Request on a business day | Within 2 Business hours from submission of Service Request |
| L2: The Product is functional but one or more key features or components are not operating as documented. | Within 8 Business Hours from submission of Service Request | Within 4 Business hours from submission of Service Request |
| L3: Minor components are not operating as documented. | Within 1 Business Day from submission of Service Request | Within 8 Business hours from submission of Service Request |
| L4: General question/Installation Assistance | Within 2 Business Days from submission of Service Request | Within 24 Business hours from submission of Service Request |
Advanced Replacement of Hardware. Advanced Replacement of Hardware is available under Premium Hardware Services. Prior to returning Hardware, Customer will submit a Service Request. Once XONA’s technical support team diagnoses the Defect, a return material authorization (“RMA”) will be issued for return and/or repair or replacement of the Hardware in advance of Customer’s return of the Defective Hardware. Customer will return the Defective Hardware within 14 days of receipt of the replacement Hardware in accordance with the RMA process or will pay the purchase price for the replacement unit and all associated duties, taxes, and shipment costs. The replacement Hardware may be a new or reconditioned, equivalent to new.
RMA Process.
(a) Submit Service Request.
(b) XONA will generate an RMA number to Customer.
(c) Packaging Materials and Compliance with Instructions. Customer will retain the packaging for return of the defective Hardware and will otherwise comply with the following return instructions and those included in the box with the replacement Hardware or as posted on the User Support Portal.
(d) Return of Defective Hardware. XONA will arrange for return shipment of the defective Hardware at XONA’s cost if: (a) Customer packages the defective Hardware in the original packing material or equivalent and includes the applicable required forms or other documentation; (b) Customer writes the RMA number on the outside of the package; (c) Customer ships the returned Defective Hardware using XONA’s designated courier service. Customer will return the Defective Hardware to XONA within 14 days after receipt of the replacement Hardware or will pay the purchase price for the replacement unit and all associated duties, taxes, and shipment costs on receipt of XONA’s invoice.
(e) Customer will pay all costs relating to or resulting from “no trouble found” or no Defect found with any returned Product.
3. Training. An initial of XONA Software (2 hour session) is available at no additional cost along with use of XONA’s Quick Start Guide. Additional training is available for an additional cost. All training is offered remotely (except as the parties make other arrangements). Registration is completed through the User Support Portal. Curriculums and fees are posted on User Support Portal.
4. Installation. Customer may complete initial set up by following the Quick Start Guide available by download from the User Support Portal. It is suggested Customer complete initial Training before proceeding to initial set up. For installation assistance, Customer may purchase Installation Services from XONA.
5. Additional Terms and Conditions.
5.1 Customer Responsibility. The success and scheduling of the Services depends substantially on the Customer’s participation. Customer will designate authorized and skilled primary contacts as reasonably required for Services. Any delay caused by unavailability of scheduled Customer resources or failure to notify XONA of any previously known issues or scheduled activities that could reasonably be expected to impact the Service schedule are the Customer’s responsibility and may result in delays in delivery of Services and/or additional costs. Customer is responsible solely for providing backup of data and otherwise protecting data and all systems and networks against loss or destruction prior to the provision of any Services and accepts all risk of loss and damage its systems, networks and information that may result from the performance of any Support Services.
5.2 Conditions Precedent to Services. To receive Services, Customer must: (a) pay all applicable fees; (b) meet all of its obligations hereunder including, by way of example, designating authorized persons to be trained and meet the obligations under Section 5.1; (c) use the Products in a supported configuration and maintain the Software within the then-current prior two (2) Releases; and, (d) ensure that proper licenses have been obtained for Software and adhere to all licensing terms and conditions as set forth in the applicable license agreement.
5.3 Reinstatement of Support. If Customer has not continuously purchased and complied with these Term, Customer may request that XONA perform an inspection of the Products and perform services XONA reasonably determines are required for the Products to be certified as substantially operating in accordance with the then-current Documentation. After XONA’s certification, Services may be reinstated upon payment for: (i) time and materials services for certification and then-annual Services fees.
5.4 No Defect Found. Additional charges for technical time billed at XONA’s then current daily time and materials rate, plus reasonable travel and lodging expense for on-site Services may apply for Services resulting from No Defect Found, outside the applicable Hardware Warranty Period or for excluded repairs or replacements not otherwise covered under the Hardware Warranty or these Terms.
5.5 XONA’s Limited Services Warranty. XONA warrants Services will be performed by XONA or its contractor in a good and workmanlike manner in material conformity with industry standards and these terms. Customer is responsible for backing up or otherwise protecting data at all times. XONA’s sole obligation and Customer’s sole remedy will be to re-perform nonconforming Services of which Customer notifies XONA in writing within 10 days of the affected Services being performed. The limited warranties are made to Customer and may not be passed on or otherwise assigned or transferred. XONA is not liable for: (a) third party hardware or software related issues; (b) installation, operation or use of the Product(s) not authorized by the applicable agreements or Documentation; (c) unauthorized modifications, alterations, maintenance or repair to the Product(s); (d) use of the Product in an environment, in conditions or in a manner or for a purpose for which the Product was not intended or designed or failure to maintain the Product in accordance with the Documentation and XONA’s instructions; (e) problems external to the Product(s); (f) coverage for network failures or network configurations; (g) changes or upgrades made to third party hardware or software; (h) lost, corrupted or damaged data; or (i) causes beyond XONA’s control.