Extended Service Agreements
These agreements are NO LONGER
Extended Service Agreement (“Agreement”) sets forth the entire understanding between Customer and Portsmith LLC, Inc. (“Portsmith”) with respect to the extended service program contemplated herein for PORTSMITH Products and as further designated by the applicable SKU number on the corresponding purchase order (“Services”) whether such services are sold directly to Customer by PORTSMITH or through a PORTSMITH Reseller or Distributor (herein after referred to as an “Authorized Partner”).
1. NATURE OF AGREEMENT. By Customer’s submittal to PORTSMITH or Authorized Partner of a purchase order for Services, Customer agrees to pay for such Services listed therein and PORTSMITH agrees to deliver the ordered Services. Only the written terms and conditions of this Agreement apply to the delivery of such Services and any Customer terms and conditions contained in any purchase order that are different or in addition to those contained herein are hereby objected to and of no effect. Oral or other representations, unless contained herein, are void and unenforceable.
2. TERM. Subject to Customer’s compliance with all of the terms and conditions of this Agreement and acceptance by PORTSMITH of Customer’s, duly authorized purchase order for the applicable Services, such Services shall be supplied to Customer by PORTSMITH for a period of three (3) years from the date of delivery of the applicable Products to Customer, unless otherwise agreed upon by the parties in writing.
3. COVERAGE OF SERVICES.
3.1 During the term of the Agreement and subject to Customer’s compliance with all of the terms and conditions of this Agreement, PORTSMITH shall provide for the repair or replacement of the applicable Product due to defective materials or workmanship. Additionally, PORTSMITH shall provide for the repair or replacement of the applicable Product due to accidental damage from handling (“ADH”). ADH shall only include operational or mechanical failure caused by an accident from handling and does not include protection against normal wear and tear; theft, mysterious disappearance or misplacement; negligence; viruses; reckless, abusive, willful or intentional conduct associated with handling and use of the product; cosmetic damage and/or other damage that does not affect the unit functionality; damage caused during shipment; and any other limitations listed in Section 6 below (Limitations of Coverage). Any resultant damage from the aforementioned type of treatment is NOT covered under the terms of this Agreement. The use of ADH coverage requires an explanation of where and when the accident occurred as well as a detailed description of the actual event. Failure to provide this information will result in claim denial.
3.2 PORTSMITH will provide the Services with such levels of skill and experience as it deems appropriate to perform the Services. PORTSMITH’s obligation to deliver the Services is subject to its receipt of all required information regarding the Customer and the supported Product as PORTSMITH may request, which may include but not be limited to, Customer billing address, installation address, authorized contact names and information, valid serial numbers, and proof of purchase.
3.3 Services must be purchased by Customer within ninety (90) days of original purchase of the Products for which such Services are to be applied.
3.4 Services must be purchased for the entire number of Products purchased by Customer. For certainty, if Customer has purchased 1,200 Products, the Services may not be purchased for only 1,000 units, but must be purchased for the entire 1,200 units.
4. TO CLAIM SERVICES. In the event Customer believes a Product qualifies for Service under this Agreement, Customer must first obtain authorization from PORTSMITH (or Authorized Partner) prior to the receipt of Service. To obtain such authorization, Customer shall:
· Call PORTSMITH Customer Support (208) 888-5813 xt. 1004 (or Authorized Partner) to verify such failure of the Product qualifies under this Agreement.
· Provide PORTSMITH Support (or Authorized Partner) with the Agreement number and the original Product serial number.
· Obtain a return materials authorization number (“RMA”) from PORTSMITH (or Authorized Partner).
· Package the Product appropriately to ensure safe shipment of the Product.
· Clearly mark the exterior of the shipping container with the RMA.
· Return the Product to PORTSMITH (or Authorized Partner) at Customer’s expense.
PORTSMITH (or Authorized Partner) obligations:
· At its discretion, repair or provide Customer with a replacement Product of like grade and quality. In all cases where a replacement cannot be made, Customer will receive reimbursement for the original purchase price, excluding sales tax, delivery and installation.
· All of PORTSMITH’s (or Authorized Partner’s) obligations under this Agreement are considered fulfilled upon Product replacement, reimbursement or Agreement term expiration.
· PORTSMITH (or Authorized Partner) reserves the right to replace the Product with a remanufactured or refurbished Product.
· The replacement Product will be shipped to Customer at no cost to Customer
5. INVOICING AND PAYMENT TERMS. For Services purchased from or contracted directly with PORTSMITH, invoices shall be due and payable thirty (30) days from the date of invoice. PORTSMITH may charge late payment interest of the lesser of the highest legally permissible rate or 1.5% per month for the late payment of any and all balances of invoices from when they are due and payable. For Services purchased through or from an Authorized Partner, the payment terms agreed to between Customer and such Authorized Partner will apply.
6. LIMITATIONS OF COVERAGE. This Agreement does not cover:
6.1 Any equipment located outside the Country in which the product warranty was purchased.
6.2 Service required as a result of any alteration of the equipment, or repairs made by anyone other than PORTSMITH or its agents, or the use of supplies other than those recommended by PORTSMITH.
6.3 Damage or other equipment failure due to causes beyond PORTSMITH control including, but not limited to, repairs necessary due to operator negligence, the failure to maintain the equipment according to the owner’s manual instructions, abuse, vandalism, theft, fire, flood, wind, freezing, power failure, inadequate power supply, unusual atmospheric conditions, or acts of war or acts of God.
6.4 Service necessary because of improper storage, improper ventilation, reconfiguration of equipment, use of movement of the equipment, including the failure to place the equipment in an area that complies with the PORTSMITH’s published space or environmental requirements.
6.5 Operational or mechanical failure which is not reported prior to expiration of this Agreement or within thirty (30) days of Product failure.
6.6 Pre-existing conditions incurred prior to the effective date of this Agreement.
6.7 Equipment where the serial number is removed defaced or made illegible.
6.8 Installation, removal, or reinstallation of the Product.
In the event, Services are requested that are outside the scope of the Services covered under the Agreement, such Services will require additional payment by Customer in accordance with PORTSMITH’s prevailing rates. Prior to carrying out such Services, PORTSMITH shall issue a quote to Customer for payment.
7. NOTICES. All Notices and other communications pursuant to this Agreement shall be in the English language and delivered to PORTSMITH at the address below.
8. AMENDMENTS. No changes or modifications are to be made to this Agreement unless evidenced in writing and signed for and on behalf of both parties.
9. SEVERABILITY. In the event that any provision of this Agreement shall be determined to be illegal or unenforceable, that provision will be limited or eliminated to the minimum extent necessary so that this Agreement shall otherwise remain in full force and effect and enforceable.
10. ASSIGNMENT. The Agreement shall be binding upon and inure to the benefit of the parties and their respective successors and permitted assigns. Customer may not transfer or assign its interests in the Agreement, in whole or in part, without the prior written consent of PORTSMITH, which consent shall be in PORTSMITH’s sole discretion to grant. PORTSMITH reserves the right to assign and/or subcontract its interests in and obligations under the Agreement, and Customer specifically acknowledges such right, to any other party without the consent of Customer.
11. NO IMPLIED WAIVERS. If either party fails to require performance of any duty hereunder by the other party, such failure shall not affect its right to require performance of that or any other duty thereafter. The waiver by either party of a breach of any provision of this Agreement shall not be a waiver of the provision itself or a waiver of any breach thereafter, or a waiver of any other provision herein.
12. DISPUTES. PORTSMITH and Customer will attempt to settle any claim or controversy arising out of this Agreement through consultation and negotiation in good faith and a spirit of mutual cooperation. If any legal proceedings are commenced to resolve any dispute or difference which may arise in connection with the Agreement or the performance of the Services, the prevailing party shall be entitled, in addition to any other award that may be made, to recover costs, attorney's fees and expert witness fees, including any costs or attorney fees incurred in connection with any appeals.
13. GOVERNING LAW. This Agreement shall be governed by and construed in accordance with the laws of the State of Idaho, USA, without regard to the conflicts of laws provisions thereof. Should it become necessary to enforce the terms and conditions of this Agreement, the rights, duties and obligations of the parties and the validity, interpretation, performance and legal effect of this Agreement, or to recover damages for a breach of this Agreement, the parties hereto agree that the state and federal courts in Idaho shall have jurisdiction over the parties to adjudicate any claims between the parties arising out of this Agreement, and that service may be accomplished by registered mail to the registered agent and/or last known address of each of the parties. The parties specifically opt out of the U.N. Convention on Contracts for the International Sale of goods and agree that it does not apply to this Agreement or their relationship.
14. LIMITATION OF LIABILITY. TO THE MAXIMUM EXTENT PERMITTED BY LAW, PORTSMITH WILL NOT BE LIABLE TO CUSTOMER AND/OR TO ANY OTHER PERSON, AND/OR THEIR RESPECTIVE AFFILIATES FOR ANY LOST REVENUES, PROFITS, GOODWILL OR USE, THE COST OF SUBSTITUTED PRODUCTS OR SERVICES, BUSINESS INTERRUPTION OR ANY DAMAGE TO OR LOSS OF ANY SOFTWARE PROGRAMS, DATA OR REMOVABLE DATA STORAGE MEDIA, FOR THE RESTORATION OR REINSTALLATION OF ANY SOFTWARE PROGRAMS OR DATA, OR FOR ANY INDIRECT, CONSEQUENTIAL, SPECIAL, INCIDENTAL OR PUNITIVE DAMAGES OF ANY KIND HOWEVER CAUSED RELATED TO THE SERVICES OR THE AGREEMENT, OR THE INABILITY TO USE THE PRODUCTS, WHETHER ARISING UNDER CONTRACT, TORT (INCLUDING STRICT LIABILITY AND NEGLIGENCE), EQUITY OR ANY OTHER THEORY OF LIABILITY, EVEN IF PORTSMITH HAS BEEN ADVISED OF THE POSSIBILITY OF THOSE DAMAGES OR EVEN IF THOSE DAMAGES ARE FORESEEABLE. CUSTOMER’S AND/OR OTHER’S EXCLUSIVE REMEDY IS EXPRESSLY LIMITED TO PERFORMANCE OF THE SERVICES PROVIDED FOR BY THE AGREEMENT OR THE FAIR MARKET VALUE THEREOF. PORTSMITH’S ENTIRE LIABILITY FOR DAMAGES TO CUSTOMER AND/OR OTHERS RESULTING FROM SERVICES PERFORMED UNDER THE AGREEMENT SHALL IN NO EVENT EXCEED THE ANNUAL SERVICES CHARGE PAID BY CUSTOMER USER, EXCEPT FOR INSTANCES OF PHYSICAL INJURY TO PERSON OR PROPERTY. PORTSMITH DISCLAIMS ALL WARRANTIES WITH RESPECT TO THE SERVICES, INCLUDING ALL IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE OR USE OR NONINFRINGEMENT. NEITHER PARTY MAY BRING A LEGAL ACTION UNDER THE AGREEMENT OR RELATED TO THE SERVICES MORE THAN ONE YEAR AFTER THE CAUSE OF ACTION AROSE UNLESS PROVIDED OTHERWISE BY APPLICABLE NONWAIVABLE LAW.
15. ENTIRE CONTRACT. This Agreement constitutes the entire agreement between the parties regarding its subject matter. This Agreement supersedes any and all previous proposals, representations or statements, oral or written. Any previous agreements between the parties pertaining to the subject matter of this Agreement are expressly terminated. The terms and conditions of each party’s purchase orders, invoices, acknowledgments/confirmations or similar documents shall not apply to any order under this Agreement, and any such terms and conditions on any such document are objected to without need of further notice or objection and are void and unenforceable.
All questions and requests for Service should be directed to:
Portable Power Solutions Ltd
Bampton Business Centre North, Weald, Bampton, Oxforshire, OX18 2ET