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These Terms and Conditions of Warranty, Service and Support (“Terms and Conditions”) cover services provided by Sphere 3D, Corp., or its subsidiaries including Overland Storage, Inc. and Tandberg Data (collectively, “Company”) to customers (“Customers”) who have purchased products (“Products”) from the Company.
Limited Hardware Warranty
Company warrants that Company or its designated third party service provider (“Service Provider”) will repair or exchange, at Company's option and without charge to Customer, each Product failing to function properly under normal use during the Limited Warranty Period (the “Limited Warranty”). The “Limited Warranty Period” starts on the date of shipment from Company or on the purchase date from a Company authorized reseller and continues for the applicable time specified at the “Warranty Coverage and Service Options”web page or for any period during which Company agrees to extend such Limited Warranty Period. Customer’s dated sales or delivery receipt is Customer’s proof of the purchase date. Customer may be required to provide proof of purchase as a condition of receiving warranty service. Customer means the original end-user purchaser of the Product. This Limited Warranty is extended to the original end-user purchaser only and is not transferable.
Your Limited Warranty is NOT in effect until Company receives your completed Warranty Registration via the Product Self Support section on Company’s web site at http://sphere3d.com/support/ and it is processed by Company. Processing may take up to 15 business days after receipt of your Warranty Registration by Company.
Company warrants that the software functionality for specified Company Products will substantially conform to its published specifications for a period of time as specified at the“Warranty Coverage and Service Options” web page from the receipt of the equipment containing the software or receipt of access to the software. This limited warranty extends only to the end customer as the original licensee. Company will comply with all applicable laws, rules and regulations in connection with its activities under the published End User License Agreement (EULA). Refer to the EULA for your product for the complete statement of warranty.
Any Product, which Company has authorized to be replaced must be returned to Company per the terms of the specific warranty. For Return to Factory (RTF) Replacement material, Customer must first ship the product to Company at the Customer’s expense. Once Company receives the part, the repaired or replaced item will be shipped to Customer, at Company's expense.
For Advanced Warranty Replacement material, the customer is obligated to return the replaced material within the stated timeframe in order to maintain the Limited Warranty entitlement. Failure to comply will result in suspension of your Limited Warranty and grant Company the right to invoice the Customer, at current list price, for the replacement material. All returned parts or Products become the property of Company. Company, at its discretion, may use new, refurbished, or reconditioned replacement parts to perform any warranty repair or replacement of its Products or provide a replacement unit of Company’s choosing that is at least equivalent to the Product in hardware performance. Company reserves the right, at its sole discretion, to refund the purchase price instead of replacing the Product.
Other terms and conditions relating to duration, scope and procedures of the Limited Warranty are available on the Global Service Programs: Service Options Details page.
Upgraded Warranty Coverage and Additional Purchased Services
In addition to the Limited Warranty applicable to all Products during the Limited Warranty Period, Customer may purchase, upon payment of the applicable fees, extended terms of the Limited Warranty Period, additional, or upgraded warranties, on-site service, and other maintenance or installation services and support (“Purchased Services”) all as set forth on the “Warranty Coverage and Service Options” web page (any such purchased services being referred to as the “Services”). Purchased Services are valid to the original end-user purchaser only and are not transferable or refundable.
If Customer has purchased any Services set forth on the “Warranty Coverage and Service Options” web page, Company or its Service Provider will provide the Services, commencing the date that Company receives and processes your purchase order for such Services (“Service Start Date”). Processing your purchase order may take up to 15 business days after receipt of your purchase order by Company
Services may include mandatory engineering changes, maintenance updates, releases or upgrade versions of the Products, if any, to the Customer, but installation of recommended non-mandatory changes, updates, releases, or upgrade versions will subject Customer to additional charges.
Company or the Service Provider will use commercially reasonable efforts to respond to Customer's request for Services within the response time set forth under the “Warranty Coverage and Service Options” web page, measured from the time Company or its Authorized Service Provider has determined that the Services are required. Company or the Service Provider will use reasonable care to assure that all services are performed in a workmanlike manner by competent and trained individuals utilizing generally accepted industry standards and practices.
If any Purchased Services coverage was not originally provided or purchased with the Products, or if Services coverage has lapsed, or if ownership of the product has been transferred to other than the original end user purchaser, Company or the Service Provider may require an inspection of the Products before the Service Start Date and as a condition to providing the Services. Customer will bear the expense of such inspection, as well as the expense of the repair should the inspection reveal any failure of the Product to function properly or any conditions listed as Exclusions below.
Technical and Telephone Support
If Customer receives support as set forth on the “Warranty Coverage and Service Options” web page. Such support will include:
Access to the Product Self Support section on Company’s web site at http://sphere3d.com/support/
Web self-support includes FAQ’s, User Guides, Application Notes and other information designed to maximize the benefit of your Product and enable the Customer to resolve issues without the need for additional assistance. This feature is generally available 7x24x365.
Tier 1 Telephone consultation assistance shall be available either 9x5 or 24x7x365 concerning the basic installation, application and operation of the Products:
Tier 2 and 3 technical telephone support will be provided during Company's standard business hours (excluding legal holidays observed by Company or its authorized service representative) at no additional cost for Hardware failures occurring during the Telephone Technical Support Period specified at the “Warranty Coverage and Service Options” web page. Technical telephone support provided after the first 90 days of the Warranty Period, outside the Warranty Period or for exclusions to this Product Limited Warranty may be provided on an as-available basis for a per incident charge. Credit card deposits may be requested in such cases unless Upgraded Warranty coverage or Additional Purchased Services are in effect. The deposit will be refunded if the Defect is a Hardware failure identified within the Warranty Period. “Defect” means the Product is not performing in accordance with Company’s published specifications, the nonconformity is covered by the Product Limited Warranty and the nonconformity is reproducible. For more details on the Company “Out of Warranty” Services, go to this link “Out of Warranty Services”
If Customer receives support as set forth on the “Warranty Coverage and Service Options” web page, the Services will be provided only at the location initially designated by Customer at the time of product registration. Services will not be provided at any other location, unless Company agrees to such other location. On-site support services may not be available for products located within private residences.
If Customer wishes to relocate the Products, it will give 30-day prior, written notice to Company and resumption of Services on such Products will be subject to Company’s consent and the payment by Customer of additional charges as determined by Company. Additional charges or change of service level according to Company’s then-current policies and pricing may also apply if the Product is relocated to a geographic location in which Company Services are available at a price different from that paid or where available service levels vary from the original location. No refund will be made of any Purchased Services.
Any product requiring support within 15 days following such relocation or notice thereof will be analyzed to determine if a coverage exclusion for installation or damage shall apply.
Customer Replaceable Units (CRUs) and Field Replaceable Units (FRUs)
Company may, at its sole discretion, determine if a defect can be repaired one of the following ways:
Third Party Software
Third Party Software may be included in the Products. Third Party Software is any third party, free or open source software provided by Company but separately licensed. Third Party Software may not be covered by Purchased Services. Customer may be able to purchase Supplemental Software Service for Third Party Software. In order to purchase the Supplemental Software Service, Customer must purchase and at all time maintain a current valid support entitlement for the Company hardware Product on which the Third Party Software runs.
Company will have no obligation to provide any warranty or Services for, or may in Company’s sole discretion charge additional fees for: (a) altered or modified Products or Products from which the serial number or any warranty seal has been removed or that have been damaged or rendered defective; (b) Products that are damaged as a result of repairs by anyone other than Company or its Service Provider, accident, misuse, abuse, or other external causes or not related to any Product error; (c) Products incorporated into other products not manufactured by Company or that have parts or accessories that have not been provided or installed by Company or its Service Provider; (d) Products used other than as specified in the Company's user manual or specifications or operated outside the usage parameters stated in the user documentation;(e) expendable or consumable parts or media, wire, or cables; (f) repainting or refinishing; or (g) installation, configuration or relocation of the Products.
Products returned and found in good working order or covered by one of the foregoing exclusions will be subject to an additional service charge. If any unauthorized new equipment specifications, attachments, features, unauthorized or unapproved firmware or other changes are made or added to any of the Products after the Service Start Date, Company may cancel the Service or adjust the specified charges.
Charges and Obligations
Company will invoice and Customer will pay Company the applicable Services fee or other charges set forth on and according to any terms listed on the Expanded Warranty Coverage and Service Options or on any applicable invoice. Services fees listed are exclusive of any taxes that may apply.
Company may suspend or cancel Services if Customer fails to make payment or breaches any provision of these Terms and Conditions or any term or condition set forth under the Expanded Warranty Coverage and Service Options and such nonpayment is not remedied within 30 days after the original due date or such breach is not remedied within 30 days after the date of Company’s notice of the breach. FAILURE TO RETURN ANY DEFECTIVE MATERIAL WITHIN 15 DAYS OF RECEIPT OF ITS REPLACEMENT SHALL BE CONSIDERED A BREACH AND WILL RESULT IN SUSPENSION OF THIS AGREEMENT UNTIL SUCH MATERIAL IS RETURNED OR PURCHASED. If Company suspends or cancels Services for Customer’s failure to return Advance Warranty Replaced material or to pay Company on the due date, then in order to reinstate or renew Services (if allowed by Company), Customer must first pay Company the applicable Services fee and any reinstatement charge listed under the Expanded Warranty Coverage and Service Options. No portion of any charges for Services will be prorated or refunded to Customer in the event the Services are terminated prior to the end of the term then in effect.
Data and Privacy
IT IS CUSTOMER’S SOLE RESPONSIBILITY TO MAKE BACK-UP COPIES OF CUSTOMER’S DATA AND TO ENSURE THAT ALL OF ITS DATA AND FILES ARE ADEQUATELY DUPLICATED AND DOCUMENTED. BEFORE ALLOWING SERVICE OF ANY PRODUCT, CUSTOMER MUST BACK-UP DATA AND REMOVE ANY OF CUSTOMER’S CONFIDENTIAL, PROPRIETARY, OR PERSONAL INFORMATION. NEITHER COMPANY NOR ITS SERVICE PROVIDER WILL BE LIABLE FOR ANY CONFIDENTIAL OR PRIVATE INFORMATION OR DATA CONTAINED IN ANY PRODUCT, HARDWARE, SOFTWARE OR MEDIA. NEITHER COMPANY NOR ITS SERVICE PROVIDER WILL HAVE ANY LIABILITY ARISING OUT OF ANY DAMAGE TO OR LOSS OF SUCH DATA WHILE THE PRODUCT IS IN COMPANY'S OR THE SERVICE PROVIDER’S POSSESSION. COMPANY AND/OR THE SERVICE PROVIDER WILL NOT BE RESPONSIBLE FOR THE BACK-UP, SAVING, OFFLOADING, RECOVERY, RESTORATION OR REINSTALLATION OF ANY PROGRAMS OR DATA OTHER THAN SOFTWARE INSTALLED BY COMPANY WHEN THE PRODUCT IS MANUFACTURED.
COMPANY AND/OR THE SERVICE PROVIDER WILL NOT BE RESPONSIBLE FOR TECHNICAL SERVICES OF ANY SORT RELATED TO SYSTEM DESIGN OR OPERATION, PROGRAMMING OR SOFTWARE NOT SOLD BY COMPANY. NEITHER COMPANY NOR ITS SERVICE PROVIODER WILL BE LIABLE FOR ANY CLAIM MADE BY A THIRD PARTY OR MADE BY CUSTOMER FOR A THIRD PARTY OR FOR ANY DAMAGE THAT OCCURS AS A RESULT OF CUSTOMER’S FAILURE TO FOLLOW THE INSTRUCTIONS THAT CAME WITH THE PRODUCT.
EXCEPT AS EXPRESSLY SET FORTH IN THESE TERMS AND CONDITIONS, COMPANY MAKES NO OTHER WARRANTIES, EXPRESS OR IMPLIED, INCLUDING ANY IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE. COMPANY DOES NOT WARRANT THAT THE FUNCTIONS CONTAINED IN THE PRODUCTS WILL MEET THE CUSTOMERS’ REQUIREMENTS OR BE UNINTERRUPTED OR ERROR-FREE. LAWS FROM TIME TO TIME IN FORCE IN THE RELEVANT MARKET MAY IMPLY WARRANTIES WHICH CANNOT BE EXCLUDED OR WHICH CAN ONLY BE EXCLUDED TO A LIMITED EXTENT, IN WHICH CASE, COMPANY LIMITS ITS AND ITS SERVICE PROVIDER’S LIABILITY TO THE EXTENT PERMITTED BY LAW. IF COMPANY CANNOT EXCLUDE ANY WARRANTY IMPLIED BY LAW, THIS WARRANTY SHALL BE READ AND CONSTRUED SUBJECT TO SUCH STATUTORY PROVISIONS.
Company products may be manufactured from new parts, or new and used parts. Unless specifically identified as “used” or “refurbished” all Company products shall be covered by their specific standard warranty entitlement at the time of customer purchase.
Limitations of Liability
UNDER NO CIRCUMSTANCES WILL COMPANY, ITS SERVICE PROVIDER OR EITHER’S AFFILIATES, EMPLOYEES, OFFICERS, DIRECTORS OR AGENTS BE LIABLE FOR ANY CONSEQUENTIAL, INDIRECT, SPECIAL, PUNITIVE, OR INCIDENTAL DAMAGES, WHETHER FORESEEABLE OR UNFORESEEABLE, (INCLUDING, BUT NOT LIMITED TO, CLAIMS FOR LOSS OF DATA, GOODWILL, INCONVENIENCE, DELAY, PROFITS, USE OF MONEY OR USE OF THE COMPANY PRODUCTS, INTERRUPTION IN USE OR AVAILABILITY OF DATA.
COMPANY'S AND THE SERVICE PROVIDER'S ENTIRE LIABILITY AND CUSTOMER'S SOLE AND EXCLUSIVE REMEDY FOR CLAIMS RELATED TO OR ARISING OUT OF THESE TERMS AND CONDITIONS FOR ANY CAUSE AND DESPITE THE FORM OF ACTION, WHETHER IN CONTRACT OR IN TORT, STATUTORY OR OTHERWISE, INCLUDING NEGLIGENCE AND STRICT LIABILITY, WILL NOT EXCEED THE AMOUNT OF THE SERVICE FEES THAT CUSTOMER PAID TO COMPANY DURING THE PARTICULAR TERM IN WHICH SUCH DAMAGE OCCURRED. THIS LIMITATION OF LIABILITY WILL BE EFFECTIVE EVEN IF CUSTOMER HAS ADVISED COMPANY OR ITS SERVICE PROVIDER OF THE POSSIBILITY OF ANY SUCH DAMAGES.
THESE TERMS AND CONDITIONS GIVES CUSTOMER SPECIFIC LEGAL RIGHTS. CUSTOMER MAY ALSO HAVE OTHER RIGHTS THAT MAY VARY FROM STATE TO STATE OR FROM COUNTRY TO COUNTRY. CUSTOMER IS ADVISED TO CONSULT APPLICABLE STATE OR COUNTRY LAWS FOR A FULL DETERMINATION OF CUSTOMER’S RIGHTS. SOME STATES OR COUNTRIES DO NOT ALLOW A LIMITATION ON HOW LONG AN IMPLIED WARRANTY LASTS OR THE EXCLUSION OR LIMITATION OF INCIDENTAL OR CONSEQUENTIAL DAMAGES FOR CONSUMER PRODUCTS. IN SUCH STATES OR COUNTRIES, SOME EXCLUSIONS OR LIMITATIONS OF THESE TERMS AND CONDITIONS MAY NOT APPLY TO CUSTOMER.
Neither Company nor the Service Provider is responsible for failure to fulfill its obligations pursuant to these Terms and Conditions due to acts of God, labor disputes, shortages of parts or materials or any other causes similar or dissimilar, beyond its reasonable control.
These Terms and Conditions and the Expanded Warranty Coverage and Service Options together constitute the complete and exclusive agreement regarding the warranty and service terms and conditions of Company branded Product. These Terms and Conditions supersede any prior agreements or representations—including representations made in Company sales literature or advice given to Customer by Company, a Company authorized reseller, or an agent or employee thereof—that may have been made in connection with Customer’s purchase of the Product. No change to the conditions of these Terms and Conditions is valid unless it is made in writing and signed by an authorized representative of Company. Company may in its sole discretion modify the Terms and Conditions at any time and from time to time. If any provision of these Terms and Conditions is held invalid by any law or regulation of any government or by any court, such invalidity will not affect the enforceability of other provisions in these Terms and Conditions.
These Terms and Conditions will be governed by the laws of the State of California. Any legal suit, action or proceeding arising out of or relating to these Terms and Conditions will be commenced in a federal or state court in the County of San Francisco, California, and each party hereto irrevocably submits to the exclusive jurisdiction and venue of any such court in any such suit, action or proceeding.