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THIS EXTENDED SERVICE AGREEMENT (this “Agreement”) is made by and between KITS UK, with its principal place of business at Unit 3C Onward Park, Phoenix Avenue, Green Lane Industrial Estate, Featherstone, WF7 6EP, on behalf of itself and its subsidiaries (collectively “KITS UK”) and the original end-user customer (“Customer”) and is binding upon Customer when services are purchased. This Agreement is retroactively effective as of the date of the initial purchase order for the services (“Effective Date”).
WHEREAS, KITS UK offers certain fee-based extended services in the United Kingdom in conjunction with the purchase of certain KITS UK products.
WHEREAS, Customer desires to purchase one or more of the extended services (hereinafter the “Services”) for certain KITS UK products (hereinafter the “Product(s)”).
NOW THEREFORE, in consideration of the mutual promises and covenants contained herein, the parties agree as follows:
1. TERMS AND CONDITIONS.
(a) This Agreement includes the terms and conditions under which the Services shall be performed, and contains, among other things, warranty disclaimers and limitations of liability. PURCHASING SERVICES CONSTITUTES CUSTOMER’S AGREEMENT TO AND ACCEPTANCE OF THESE TERMS AND CONDITIONS.
(b) CUSTOMER SHALL NOT BE ELIGIBLE FOR THE SERVICES UNTIL THE PRODUCT IS REGISTERED WITH KITS UK. REGISTRATION MUST BE COMPLETED WITHIN THIRTY (30) DAYS OF PURCHASE OF THE SERVICES.
(c) This Agreement may only be modified as set forth herein and any different or additional terms of any related purchase order, confirmation, or similar form, even if signed by the parties after the Effective Date hereof, shall have no force or effect.
(d) KITS UK reserves the right to (i) amend this Agreement from time to time effective upon posting of the revised terms and conditions to its website at www.kits.style, and (ii) discontinue hardware or software Products or versions and accordingly stop supporting Products or versions one (1) year after discontinuance, or otherwise discontinue any support Service at any time. Section 7 sets forth Customer’s sole remedies for any claim relating to the amendment or discontinuance of the Services, including any failure to provide the Services hereunder.
(e) By purchasing Services, Customer agrees it received, read, understood and accepts the applicable terms and conditions set forth in this Extended Service Agreement.
2. SUPPORT. KITS UK has established and agrees to maintain an organisation and process to use reasonable commercial efforts to provide support services for the Product(s) to Customer including but not limited to (i) remote troubleshooting from purchase/installation, configuration, and successful diagnostic testing for the KITS UK Product; (ii) Order authorisations; provided, however, that Customer shall return the non-conforming Product with the freight paid, in accordance with any special shipping instructions provided by KITS UK, and shall reference the order# on all shipping documents and in any subsequent communications regarding the particular Product. KITS UK reserves the right to change the Extended Service programs and any supporting documentation at any time.
3. EXCLUSIONS. The Services hereunder do not include: (a) support of any non-KITS UK product. (b) general wear and tear of the product. (c) accidental damage of any KITS UK product. (d) mis-use of the product. (e) cleaning chemical damage. (f) water pressure damage.
4. FEES. Fees for the Services are outlined in the applicable purchase order for the Services, subject to written acceptance by KITS UK. Fees shall be due immediately upon purchase.
5. AUDIT. KITS UK reserves the right to audit Customer’s use of the Services for the Product(s) registered under the terms of this Agreement for purposes of verifying eligibility. Customer agrees to cooperate with verification of eligibility hereunder and to ensure compliance with the terms of this Agreement in a mutually agreeable manner.
6. TERM. This Agreement shall start on the Effective Date, and shall automatically expire upon expiration of the last remaining service duration selected. Notwithstanding the foregoing, Customer shall not be entitled to Services under this Agreement for any Product for which the period of warranty or extended warranty has expired or is otherwise void.
7. TERMINATION. This Agreement may be terminated:
(a) by the non-defaulting party in the event of a default in the performance of any material provision of this Agreement (including the payment of fees), if the default is not cured within thirty (30) days of written notice of the non-breaching party’s intent to terminate;
(b) by Customer, with thirty (30) days written notice to KITS UK, in the event there is an amendment or Service discontinuance by KITS UK under Section 1(d) above which results in a material reduction of the Services hereunder, provided such notice of termination is given during the thirty (30) days following notice of such amendment or support discontinuance. In the event of termination pursuant to this Section 7(b), Customer may receive a pro-rata refund of the purchase price hereunder. In no event shall the amount of any refund be greater than the fees paid for the Services hereunder over a one (1) year period. KITS UK records and data shall be the basis for all calculations and determinations hereunder.
(c) By either party if the other party (i) makes a general assignment for the benefit of creditors, (ii) is adjudicated bankrupt, (iii) files a voluntary petition for bankruptcy or reorganisation, or has a petition filed against it for an adjudication in bankruptcy or reorganisation and such petition is not dismissed within sixty (60) days, or (iv) applies for or permits the appointment of a receiver, trustee or custodian for any of its property or assets, the other party may terminate this Agreement immediately upon notice.
8. EFFECT OF TERMINATION. Upon termination or expiration of this Agreement for any reason, the rights and obligations of the parties hereunder will cease, except that the limitations of liability and any payment obligations hereunder will survive.
9. WARRANTY. KITS UK agrees to perform the selected Services in a workmanlike manner. In the case of Technical Support Services, KITS UK does not warrant or guarantee that a problem will be solved or that any item will be error- free. This Agreement and the Services are only applicable to Product(s) under original or extended warranty, which are running under the certified environments specified in the release notes for that Product. THE FOREGOING WARRANTY IS IN LIEU OF ALL OTHER WARRANTIES, CONDITIONS OR PROMISES TO CUSTOMER OR ANY THIRD PARTY, EXPRESS OR IMPLIED, INCLUDING ANY IMPLIED WARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, OR ARISING BY STATUE, LAW, COURSE OF DEALING, CUSTOM AND PRACTICE OR TRADE USAGE. EXCEPT AS PROVIDED ABOVE, THE SERVICES ARE PROVIDED “AS IS.”
10. LIMITATIONS OF LIABILITY. KITS UK shall not be liable for incidental, special or consequential damages for any reason, even if foreseeable or if Customer has advised of such a claim. KITS UK’ liability hereunder shall not exceed the fees that Customer has paid under this Agreement. Customer agrees that the pricing for the Services would be substantially higher but for these limitations.
11. GENERAL.
(a) Entire Agreement. This Agreement contains the entire agreement between the parties and supersedes any prior or contemporaneous oral or written agreements or communications between them relating to the subject matter contained herein. Further, any purchase order that purports to amend or modify the terms or conditions of this Agreement will be of no force or effect. The Products and the use thereof are subject to the purchase and/or license agreement related to such Product.
(b) Modifications. Subject to Section 1 above, this Agreement may not be modified or altered except by written instrument duly executed by both parties.
(c) Assignment. Neither party may assign its rights or obligations under this Agreement without the prior written consent of the other party, which consent will not be unreasonably withheld; provided, however that KITS UK shall have the right to assign this Agreement without the other party’s consent to: (i) a parent company or entity; (ii) any subsidiary company or entity; or (iii) in connection with the sale of all or substantially all of its assets. Any attempted assignment in violation of this Section will be null and void.
(d) Confidential Information. Neither party will disclose its confidential information to the other, except under a specific non- disclosure agreement.
(e) Notices. Except as otherwise provided under this Agreement, all notices must be in writing, reference this Agreement and will be deemed given: (i) when delivered personally; (ii) when sent by confirmed email; (iii) five (5) days after having been sent by registered or certified mail, return receipt requested, postage prepaid; or (iv) one (1) day after deposit with a commercial overnight carrier, with written verification of receipts.
(f) No Waiver. The waiver of a breach or failure to enforce any obligation herein will in no way be construed as a waiver of any other breach or obligation herein.
(g) Severability. The invalidity or unenforceability of any provision of this Agreement, or any of its terms or provisions, will not affect the validity of this Agreement at a whole, which will at all times remain in full force and effect.
(h) Counterparts. This Agreement may be executed in any number of counterparts, each of which will be deemed to be an original, but all of which together will constitute the same instrument.
(i) Force Majeure. Except for payment obligation, neither party shall be liable for the performance of its obligations under this Agreement if it becomes commercially impracticable to perform due to any contingency beyond the reasonable control of that party, including as a result of disruptions of transportation facilities, inability to obtain supplies or materials, failures or breaches by suppliers, acts of government, strikes, labor disputes, power or telecommunications disruptions, judicial action, or any other act of God (“Force Majeure”) and the obligation of a party to perform hereunder shall be suspended during the occurrence of a Force Majeure.
(j) Relationship of Parties. This Agreement is not intended as a consulting agreement between the parties.
The following additional terms and conditions apply when purchasing Advanced Replacement Services, 24×7 Technical Support, and/or Extended Warranty:
ADVANCED REPLACEMENT SERVICE
1. Description. KITS UK will provide a replacement product to Customer, in exchange for a defective Product prior to receipt of such defective product from Customer.
2. Conditions of Service. Use of Advanced Replacement Service is subject to this Agreement ,as may be amended from time to time.
3. Replacement Policy. KITS UK requires the following:
(a) Registration. Customer must register the product for which the Services have been purchased within (30) days from the date of receipt of the Product. Registration information may include but not be limited to product name, purchase date, and serial number. Registration is generally automated upon product purchase.
(b) Technical Support. Customer agrees to contact technical support for initial trouble shooting of the Product. In the event that a technical support representative determines that the Product symptoms indicate a product failure, KITS UK shall issue a Return Material Authorisation (RMA) provided, however, that Customer shall return the defective Product with the freight prepaid, in accordance with any special shipping instructions provided by KITS UK, and shall reference the RMA# on all shipping documents and in any subsequent communications regarding the particular Product.
(c) Return of Defective Product. Customer agrees to return the defective Product, freight and insurance prepaid, in accordance with Section 3(b) above within thirty (30) days of request for Advance Replacement. In the event of any failure to return Product within the time allotted, Customer shall be liable for the cost of the replacement Product.
(d) Verification of Defect. KITS UK may, at its option, test the suspect Product for failures. In the event that such testing is performed, failure analysis shall be provided to the Customer upon request.
(e) Valid Warranty. Advanced Replacement under the terms hereof, is subject to and during the terms of the original or extended Product warranty. Products which are otherwise deemed out of warranty due to unauthorised or improper usage of the product or use in an environment for which the Product was not designed shall not be eligible for the Advanced Replacement and Customer shall be charged for any replacement Product, including any shipping and handling.
TECHNICAL SUPPORT
1. Support. In addition to its normal hours of technical support, KITS UK shall provide support to Customer’s registered for this service, after hours upto a reasonable time. KITS UK shall use reasonable commercial efforts to return any Customer call within a two (2) hour time period.
2. Conditions of Service. Use of the callback Technical Support is subject to this Agreement, as may be amended from time to time.
3. Registration. Customer must register the Products within (30) days from the date of receipt of the Products. Registration information may include but not be limited to Product name, purchase date, contract ID number, and serial number. In most cases, registration is completed upon purchase.
EXTENDED WARRANTY
1. Description. KITS UK shall extend the standard warranty applicable to the specific product purchased for the duration of time selected as set forth on the applicable purchase order.
2. Valid Warranty. Customer understands that the Extended Warranty may be purchased for those products whose warranty coverage is still in effect.
3. Conditions of Service. Use of the Extended Warranty Services is subject to this Agreement, as may be amended from time to time.
4. Warranty Policy:
(a) KITS UK warrants the product(s) covered by the Extended Warranty to be free from defects in material and workmanship for the Extended Warranty Period. During this period, if a customer is unable to resolve a product problem with KITS UK Technical Support, a Return Material Authorisation (RMA) will be issued. Following receipt of a RMA number, the customer shall return the product to KITS UK, freight prepaid. Upon verification of warranty, KITS UK will—at its option— repair or replace the product and return it to the customer freight prepaid.
(b) No services are handled at the customer’s site under this warranty. This warranty is void if the customer uses the product in an unauthorised or improper way, or in an environment for which it was not designed.
(c) Liability during the Extended Warranty Period shall be limited to (at KITS UK’ election):
i. Refund of the purchase price for such product covered by the Extended Warranty; or
ii. Repair or replacement of the product covered by the Extended Warranty under the RMA process outlined above.
5. Registration. Customer must register the Product within (30) days from the date of receipt of the Product. Registration information may include but not be limited to Product name, purchase date, contract ID number, and serial number. In most cases, registration is automated upon customer checkout.
FURTHER EXCLUSIONS
KITS UK Extended Warranty does NOT cover the following:
(i) Splitter Strikes (Of Any Kind)
(ii) Splitter Accidental Damage
(iii) Diffuser Accidental Damage
(iv) Side Extensions Accidental Damage
(v) Spoiler Interference
(vi) Decal Pressure Wash Damage
(vii) Paint Pressure Wash Damage
(viii) Third Party Interference
The customer shall provide KITS UK with full and clear evidence of any issues which it is deemed a product failure. Not accidental damage.
The customer understands that KITS UK have the knowledge and experience to determine what is accidental, neglect or interference and should any of these be found, ant warranty claim will be rejected immediately.