Apriva provides the original purchaser (“Purchaser”) of the product with the following non-transferable License and Limited Warranty:
The firmware (software embedded in and provided with the product) is licensed to Purchaser, not sold. Purchaser is granted a non-transferable, non-exclusive license to use the firmware solely in connection with Purchaser’s use of the Product. Purchaser understands and agrees that it is not permitted to distribute the firmware in any form, or to use the firmware except as it is embedded in the non-volatile memory component(s) of the Product. Purchaser agrees that Purchaser shall not and that Purchaser shall not allow any third party to attempt to reverse engineer, de-compile, or disassemble the firmware or otherwise discover the trade secrets in the firmware for any reason.
Apriva warrants to Purchaser that the Product will materially comply with its accompanying documentation for a period of one (1) year from the date the Product was first purchased (“Warranty Period”). The foregoing warranty is non-transferable and personal to Purchaser. During the Warranty Period and upon proof of purchase of the Product by Purchaser, Apriva, at its option, will either repair or replace the Product without charge for either parts or labor. If the Product is repaired or replaced during the Warranty Period, the Warranty Period will still expire one (1) year from the date of original purchase of the Product.
This Limited Warranty does not apply to normal wear and tear, and does not cover repair or replacement of any Product damaged by misuse, accident, abuse, neglect, misapplication, physical damage to the Product, or defects due to repairs or modifications made by anyone other than Apriva or Apriva’s authorized service representative. This Limited Warranty does not apply to any peripheral equipment or items other than the Product itself, nor does it apply when the malfunction results from the use of this Product in conjunction with accessories other than ancillary or peripheral equipment expressly approved by Apriva in the documentation accompanying the Product. Finally, Apriva will have no obligations hereunder where it is determined by Apriva that there is no defect in the Product itself.
To obtain warranty service, please contact Technical Support at (866) 277-9478 or firstname.lastname@example.org. Technical Support will confirm the warranty action and issue a Return Material Authorization (RMA) number. The product may then be returned to Apriva at the address below, transportation and insurance (if required) pre-paid. Apriva will promptly ship a replacement unit upon receipt of the device.
Apriva 8501 North Scottsdale Road, Suite 110, Scottsdale, Arizona 85253
Exclusive Remedy; Disclaimer:
REPAIR OR REPLACEMENT OF THE PRODUCT AS PROVIDED UNDER THIS LIMITED WARRANTY IS THE SOLE AND EXCLUSIVE REMEDY PROVIDED TO PURCHASER. THIS LIMITED WARRANTY IS IN LIEU OF ALL OTHER WARRANTIES, STATUTORY, EXPRESSED OR IMPLIED, INCLUDING WITHOUT LIMITATION, ANY WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR USE OF PURPOSE, QUIET ENJOYMENT, AND/OR TITLE/NON-INFRINGEMENT. RESEARCH IN MOTION CORPORATION AND APRIVA’S OTHER LICENSORS AND VENDORS DO NOT MAKE ANY EXPRESS OR IMPLIED WARRANTIES OR CONDITIONS IN RELATION TO APRIVA’S PRODUCT, INCLUDING WITHOUT LIMITATION ANY WARRANTY OR CONDITION OF FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT. APRIVA DOES NOT WARRANT THAT THE PRODUCT WILL MEET PURCHASER’S REQUIREMENTS, OR THAT THE OPERATION OF THE PRODUCT WILL BE UNINTERRUPTED OR ERROR-FREE, OR THAT DEFECTS IN THE PRODUCTS WILL BE CORRECTED. NO ORAL OR WRITTEN INFORMATION OR ADVICE GIVEN BY APRIVA OR ITS AGENTS WILL CREATE ANY ADDITIONAL APRIVA WARRANTIES OR IN ANY WAY INCREASE THE SCOPE OF APRIVA’S OBLIGATIONS.
Limitation of Liability and Exclusion of Damages:
APRIVA AND ITS LICENSORS, DISTRIBUTORS, AGENTS, AND VENDORS SHALL IN NO EVENT BE LIABLE TO PURCHASER FOR ANY DAMAGES PURCHASER SUFFERS OR INCURS INCLUDING, BUT NOT LIMITED TO, GENERAL, DIRECT, INDIRECT, SPECIAL, CONSEQUENTIAL, EXEMPLARY, PUNITIVE OR INCIDENTAL DAMAGES, DAMAGES FOR LOSS OF BUSINESS PROFITS, BUSINESS INTERRUPTION, LOSS OF BUSINESS INFORMATION OR ANY OTHER DAMAGE (WHETHER ARISING IN CONTRACT OR TORT (INCLUDING NEGLIGENCE)) ARISING FROM OR IN CONNECTION WITH THE USE OR PERFORMANCE OF THE PRODUCT. IN NO EVENT SHALL LIABILITY OF APRIVA AND ITS LICENSORS, DISTRIBUTORS, AGENTS, AND VENDORS TO PURCHASER FOR ALL DAMAGES OF EVERY KIND AND TYPE (WHETHER ARISING IN CONTRACT OR TORT (INCLUDING NEGLIGENCE)) EXCEED THE PURCHASE PRICE OF THE PRODUCT, THE COST OF REPAIRS, OR THE COST OF REPLACING THE PRODUCT, WHICHEVER IS LESS. PURCHASER WAIVES AND FOREVER RELEASES ANY CLAIMS IT MAY NOW OR IN THE FUTURE HAVE AGAINST APRIVA AND APRIVA’S LICENSORS, DISTRIBUTORS, AGENTS, AND VENDORS RELATING IN ANY WAY TO THE PRODUCTS. ALL SUCH ENTITIES SHALL HAVE NO LIABILITY OR OBLIGATION WHATSOEVER TO PURCHASER IN CONNECTION WITH THE PRODUCTS. The allocations of liability in this Section represent the agreed, bargained-for understanding of the parties and APRIVA would be unwilling to provide the Product without these allocations.
This limited warranty gives Purchaser specific legal rights. However, some states may not allow the exclusive of limitation or incidental or consequential damages nor allow limitations on how long an implied warranty lasts, not allow provisions that permit the warranty to be voided. Thus, the above limitations or exclusions may not apply to Purchaser.
Choice of Law and Venue:
This Limited Warranty is to be construed under the laws of the State of Arizona, without giving effect to the conflict of law principles thereof. The United Nations Convention on the International Sales of Goods do not apply to this Limited Warranty. The parties agree that all actions or proceedings arising in connection with this Agreement shall be tried and litigated exclusively in the state or federal (if permitted by law and a party elects to file an action in federal court) courts located in Phoenix, Arizona. This choice of venue is intended by the parties to be mandatory and not permissive in nature, and to preclude the possibility of litigation between the parties with respect to, or arising out of, this Agreement in any jurisdiction other than that specified in this Section.
U.S. GOVERNMENT RIGHTS:
The firmware and any other software provided by Apriva is commercial computer software as described in DFARS 252.227-7014(a)(1) and FAR 2.101. If acquired by or on behalf of any the Department of Defense (“DOD”) or any component thereof, the U.S. Government acquires this commercial computer software and/or commercial computer software documentation subject to the terms of this Agreement as specified in DFARS 227.7202-3, Rights in Commercial Computer Software or Commercial Computer Software Documentation. If acquired by or on behalf of any civilian agency, the U.S. Government acquires this commercial computer software and/or commercial computer software documentation subject to the terms of this Agreement as specified in FAR 12.212, Computer Software.
Entire Agreement; Amendment:
This agreement contains the entire agreement between the parties with respect to the subject matter of this agreement, and it supersedes all other prior and contemporary agreements, understandings, and commitments between the parties with respect to the subject matter of this agreement. This Agreement may not be modified, amended or in any way altered except by an instrument in writing signed by authorized representatives of both parties.