IPitomy tests every system it produces to ensure products are of the highest quality.
1. Warranty Start Date:
"Start Date" as used in this policy means (i) the date this product is shipped from IPitomy Communications, LLC., or (ii) in the case of resale by an authorized IPitomy Reseller, the date not more than ninety (90) days after original shipment of this product by IPitomy Communications, LLC, or (iii) in the case of a pass through warranty to an End-User made pursuant to an Reseller Agreement between IPitomy and another Party, the date not more than ninety (90) days after original shipment of this product by IPitomy Communications, LLC. to the other Party executing the Reseller Agreement.
2. Hardware Warranty:
IPitomy Communications, LLC. warrants that for a period of one (1) year for IPitomy Appliances, Telephones, Gateways and Interface Cards, or ninety (90) days for accessories and hardware products not manufactured by IPitomy including cables, patch panels, rail kits, etc., from the Start Date, purchased by customer shall be free of defects in material and workmanship under normal authorized use consistent with the product instructions. In the event of a product non-conformance, IPitomy reserves the right to repair or replace the defective product with a replacement part which is either new or in like new condition. If IPitomy is unable to provide a replacement part or otherwise remedy the defective product after making commercially reasonable efforts, IPitomy reserves the right to refund a pro-rated calculation of the purchase price of the product as its exclusive warranty remedy. The pro-rated refund shall be based upon current Manufacturer's Suggested Retail Price or Reseller price whichever was paid to IPitomy, of product and will be calculated by multiplying this amount by the fractional portion of the remaining duration of the warranty period of the purchased product.
3. Software Warranty:
IPitomy warrants that the Software will substantially conform to IPitomy's specifications as set forth in the applicable documentation, at and from the date of original retail purchase of the Software for a period of ninety (90) days provided that the Software is properly installed and used as contemplated in its documentation. IPitomy's sole obligation and your sole remedy for a breach of the foregoing warranty shall be to replace the non-conforming Software with software substantially conforming to IPitomy's specifications or to refund fees as described below. IPitomy further warrants that the media on which IPitomy delivers the Software will be free of physical defects for a period of ninety (90) days or will be replaced by IPitomy. Except as otherwise agreed by IPitomy in writing, the replacement Software is subject to the terms and conditions of this Policy. If IPitomy determines in its sole discretion that a material non-conformance cannot be corrected, or that it is not practical to replace the nonconforming Software, the price paid to IPitomy by the original licensee or reseller for the Software will be refunded by IPitomy to you and the license grant automatically terminated, in which case you will promptly return to IPitomy or destroy the Software and any copies in your possession.
4. Services Warranty:
IPitomy warrants that it will perform services in a manner consistent with generally accepted industry standards. As your sole remedy and as IPitomy's sole liability for breach of the foregoing warranty, IPitomy will re-perform or remedy at no charge to you any non-conforming performance reported by you within ten (10) days of completion of services by IPitomy. IPitomy shall include technical support for the Products in accordance with the policies, terms and conditions set forth on IPitomy's web site, www.IPitomy.com, for the Products you purchase. You may elect to renew your support from IPitomy at IPitomy's then current rates unless such Products and associated Services are discontinued at IPitomy's sole discretion.
5. Restrictions on Hardware and Software Warranties:
No warranty shall apply if the hardware or software has not been installed, operated, repaired, or maintained in accordance with instructions supplied by IPitomy Communications, LLC. in the enclosed documentation. The limited warranties provided by IPitomy do not cover (i) Products that have been subjected to misuse, tampering, modification, experimentation, alteration, negligence, faulty installation, acts of terrorism, or acts of God; (ii) Products with the model or serial number altered, tampered with, or removed; (iii) Initial installation, installation and removal of the Product for repair, and shipping costs; (iv) Configuration of the Product; (v) Damage that occurs in shipment due to act of God, failures due to power surge, and cosmetic damage; (vi) Any hardware, software, firmware or other materials or services provided by anyone other than IPitomy; or (vii) Repair by anyone other than IPitomy or IPitomy's authorized representative. Unless under a current Services contract with IPitomy, you shall not upgrade or update Product using software of any origin except commercial versions of the Software released to you by IPitomy or its authorized distributors and/or Resellers from time to time. This warranty extends only to the original end user customer and is not transferable.
6. Enhanced Hardware and Software Warranties:
IPitomy, in its discretion, may provide enhanced warranties to certain parties via written agreements to extend warranty coverage and duration. The standard warranty contained herein shall always apply unless such a written agreement exists.
6.1 Four-Year Extended Hardware Warranty:
For certain products, IPitomy makes available a Four(4) Year Extended Hardware Warranty. For those products and for customers who have purchased the Four-Year Extended Hardware Warranty, IPitomy will, for a period of five(5) years from the Start Date, which is a period of four(4) additional years beyond the Standard Appliance Hardware Warranty of one (1) year, warrant that the product purchased by customer shall be free of defects in material and workmanship under normal authorized use consistent with the product instructions.
6.2 Advanced Hardware Replacement Warranty:
For certain products, IPitomy makes available an Advanced Hardware Replacement Warranty. For those products and for those customers who have purchased the Advanced Hardware Replacement Warranty, IPitomy will, for a period of one (1) year from the Start Date, warrant that IPitomy, upon acceptance by its Support department of a valid RMA case opened by the customer, issue a replacement of the Product by advance cross-shipping. Advance Hardware Replacement includes express shipping FOB IPitomy. Customers who open a Support issue with IPitomy's Support department requesting Advanced Hardware Replacement will be required to provide a credit card purchase or credit account until the defective Product is returned to IPitomy. Customers who do not return their defective Product to IPitomy within fifteen (15) business days will be not be credited for the replacement Product.
If returning a Product under warranty, returns must be made in accordance with IPitomy's Return Policy, a copy of which is available for viewing at www.IPitomy.com. All terms contained in the referenced IPitomy Return Policy shall be incorporated herein by this reference and shall be binding as if contained fully in the text of this Agreement.
Returns of all defective or malfunctioning Products by IPitomy will be made at a location determined solely by IPitomy. Return authorization and an RMA number must be obtained from IPitomy prior to return of any items.
8. LIMITATION OF LIABILITY:
TO THE MAXIMUM EXTENT PERMITTED BY LAW, IPITOMY IS NOT LIABLE UNDER ANY CONTRACT, NEGLIGENCE, STRICT LIABILITY OR OTHER LEGAL OR EQUITABLE THEORY FOR ANY LOSS OF USE OF THE PRODUCT, INCONVENIENCE OR INDIRECT DAMAGES OF ANY CHARACTER, WHETHER SPECIAL, INCIDENTAL OR CONSEQUENTIAL (INCLUDING, BUT NOT LIMITED TO, LOSS OF REVENUE OR PROFIT, WORK STOPPAGE, COMPUTER FAILURE OR MALFUNCTION, FAILURE OF CONNECTED EQUIPMENT OR PROGRAMS, LOSS OF INFORMATION OR DATA OR LOSS OF GOODWILL) RESULTING FRM THE USE OF THE PRODUCT, RELATING TO WARRANTY SERVICE, OR ARISING OUT OF ANY BREACH OF THIS AGREEMENT, EVEN IF IPITOMY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THE SOLE REMEDY FOR A BREACH OF THE FOREGOING LIMITED WARRANTIES IS REPAIR, REPLACEMENT OR REFUND OF THE PURCHASE PRICE OF THE PRODUCT. THE MAXIMUM LIABILITY OF IPITOMY UNDER THIS DEFECTIVE OR NON-CONFORMING PRODUCT AGREEMENT IS LIMITED TO THE PURCHASE PRICE OF THE PRODUCT(S) WHICH IS THE SUBJECT OF THE DISPUTE. THE FOREGOING EXPRESS WRITTEN WARRANTIES AND REMEDIES ARE EXCLUSIVE AND IN LIEU OF ANY OTHER WARRANTIES OR REMEDIES, EXPRESS, IMPLIED OR STATUTORY.
9. Dispute Resolution By Arbitration:
9.1 Any disputes that may arise solely between you and IPitomy in connection with, or related to, this Warranty Policy shall exclusively and finally be settled under arbitration in the state of Florida, USA.
9.2 Any disputes that may arise solely between you and IPitomy hereto in connection with, or related to, this Return policy shall exclusively and finally be settled under the Rules for Commercial Dispute Resolution Procedures ("Rules") of the American Arbitration Association ("AAA") then in force on the date of commencement of the arbitration and the laws of the State of Florida, without regard to its choice of laws provisions.
9.3 Any Party may send the other Party written notice identifying the Matter and invoking the procedures of this Section 9. Within fourteen (14) days, the Parties, or representatives of the Parties, shall meet at a mutually agreed upon location, which may be via a telephone conference call at which all parties necessary to authorize final decision are present, for the purpose of determining whether they can resolve the Matter themselves by agreement, and, if the parties have not been able to reach a mutually acceptable resolution on the Matter within fourteen (14) days after the initial meeting, then the parties shall resolve the matter in accordance with the Dispute Resolution Procedures of this Section 8 and the laws of the State of Florida, without regard to its choice of laws provisions.
9.4 Any dispute, controversy or claim arising under, out of or in connection with this Agreement, including any subsequent amendments, or the validity, enforceability, construction, performance or breach thereof, other than the IP Dispute exception provided in Section 9.5 (which shall be settled under the AAA's Patent Arbitration Rules), including any Matter which the parties do not resolve in accordance with Section 9.3 above ("Dispute"), shall be finally settled under the Rules for Commercial Dispute Resolution Procedures ("Rules") of the American Arbitration Association ("AAA") then in force on the date of commencement of the arbitration and such arbitration shall be conducted in the State of Florida.
9.5 Notwithstanding the foregoing, any and all disputes, controversies or claims relating to intellectual property rights or confidential information ("IP Dispute") arising out of or relating to this Agreement shall be settled by arbitration administered by the American Arbitration Association under its Patent Arbitration Rules, and judgment on the award rendered by the arbitrators may be entered by any court having jurisdiction thereof.
9.6 Within fifteen (15) days after the commencement of arbitration, each party shall select one person, who shall have a minimum of three (3) years arbitration experience, to act as an arbitrator and the two (2) selected shall select a third arbitrator, also to have a minimum of three (3) years arbitration experience within ten (10) days after their appointment. If the arbitrators selected by the parties are unable to agree upon the third arbitrator, the third arbitrator shall be selected by the AAA. The award rendered shall be final and binding on the parties. Judgment upon the award may be entered in any court having jurisdiction. The award shall be in writing, shall be signed by a majority of the arbitrators, and shall include a statement setting for the reasons for the disposition of any claim. It is the intent of the Parties, barring extraordinary circumstances, arbitration proceedings will be concluded within sixty (60) days from the date the panel of arbitrators has been constituted. The arbitral tribunal may extend this time limit in the interests of justice. Failure to adhere to this time limit shall not constitute a basis for challenging the award. The arbitrator shall have no authority to award punitive or other damages not measured by the prevailing parties actual damages, except as required by statute; notwithstanding the foregoing, the arbitrator may award the "Costs and Fees" referenced in this section. In no event shall actual damages awarded in an arbitration, not including "Costs and Fees", initiated under this Section, exceed the purchase price of the product(s) which is the subject of the dispute by customer to IPitomy or total fees owed by customer to IPitomy under this Agreement. The Parties agree that they will not request, and the arbitrators shall have no authority to award, punitive or exemplary damages against either party. The arbitrators shall award to the prevailing party, if any, as determined by the arbitrators, all of the prevailing party's costs and fees. "Costs and Fees" means all reasonable pre-award expenses of the arbitration including the arbitrator's fees, administrative fees, travel expenses, out-of-pocket expenses such as copying and telephone costs, court costs, witness fees, and attorney's fees. No Dispute under this Agreement shall be referred to Arbitration under this Section until such Dispute has been presented to the respective presidents or senior executives of customer and IPitomy for their consideration and resolution pursuant to Section 9.3.
9.7 Within thirty (30) days of receipt of any award (which shall not be binding if an appeal is taken) any party may notify the AAA of an intention to appeal to a second arbitral tribunal, constituted in the same manner as the original tribunal. The appeal tribunal shall be entitled to adopt the initial award as its own, modify the initial award or substitute its own award for the initial award. The appeal tribunal shall not modify or replace the initial award except for clear errors of law or because of clear and convincing factual errors. The award of the appeal tribunal shall be final and binding, and judgment may be entered by a court having jurisdiction thereof.
9.8 If a party is in need of emergency relief prior to the constitution of the arbitration panel, that party shall notify AAA and request that the Option Rules for Emergency Measures of Protection be utilized, in lieu of seeking a court injunction. The party requesting emergency relief shall notify the AAA and all other parties in writing of the nature of the relief sought and the reasons why such relief is required on an emergency basis. The application shall also set forth the reasons why the party is entitled to such relief. Such notice may be given by facsimile transmission, or other reliable means, but must include a statement certifying that all other parties have been notified or an explanation of the steps taken in good faith to notify other parties.
9.9 All aspects of the Matter, of the Dispute, and of its arbitration shall be treated as Confidential Information. Neither the Parties nor the Arbitrator may disclose any information about the Matter, the existence, content, or results of the arbitration, except as necessary to enforce an award or to comply with legal or regulatory requirements. Before making any such disclosure, the Party intending to make the disclosure shall give the non-disclosing Party at least twenty (20) days prior written notice of such intention to afford the non-disclosing Party a reasonable opportunity to protect its interests.
IPitomy Warranty Policy 20091219.1