These terms (the “Hardware Terms”) apply to Carbonite’s sale of hardware (the “Hardware”). By purchasing Hardware through an Order Form, Customer agrees to be bound by the General Enterprise Terms, these Hardware Terms, and the applicable Order Form. For the avoidance of doubt, these Hardware Terms apply only to Hardware that is sold to Customer, not Appliance Hardware. Capitalized terms not defined in these Hardware Terms have the same meaning given to them in the General Enterprise Terms.
1. Delivery; Risk of Loss.
Unless otherwise stated by Carbonite in writing, all Carbonite deliveries from the European Union are carrier’s delivery of the Hardware to Customer's delivery location and all Carbonite deliveries from outside the European Union are EXW Carbonite's warehouse or, for drop shipments, EXW the manufacturer's warehouse (INCOTERMS 2010). Carbonite's delivery dates are estimates only and subject to Carbonite's timely receipt of supplies. Carbonite is not liable for delays in delivery, for partial or early deliveries and Customer will accept delivery. Customer may not cancel any Order Forms based on delayed delivery.
For sales to Customers outside the European Union, title will pass to Customer upon delivery of the Hardware to the carrier. For sales to Customers within the European Union, title will pass to Customer carrier’s delivery of the Hardware to Customer’s delivery location.
The “Hardware Warranty” shall be (i) stated on the Order Form and (ii) for the purchased-for duration as stated on Customer’s Order Form. All warranty claims shall be time-barred if not raised during the purchased-for duration as stated on the Order Form.
4. Disclaimer of Warranties.
Customer acknowledges that Carbonite is not the manufacturer of the Hardware. To the extent legally and contractually permitted, Carbonite shall pass through to Customer any transferable Hardware warranties, indemnities, and remedies provided to Carbonite, including those for intellectual property infringement. CARBONITE MAKES NO OTHER WARRANTY, EXPRESS OR IMPLIED, SUCH AS WARRANTY OF MERCHANTABILITY, FITNESS FOR PURPOSE OR NON-INFRINGEMENT. For Hardware that Carbonite resells from a third party, Carbonite transfers any transferable warranties from the applicable manufacturers. Carbonite makes no independent warranty with respect to services performed by a third party. Customer's sole remedies for breach of Carbonite's warranty are, at Carbonite's choice: (i) repair of the Hardware; (ii) replacement of the Hardware; or (iii) refund of Customer's purchase price for the Hardware. Carbonite makes no representation or warranty with respect to any software installed on the Hardware and will have no liability in connection therewith.
Customer may make warranty claims to Carbonite only with a return material authorization ("RMA") number issued by Carbonite. Customer must notify Carbonite by calling technical support describing Hardware defects discovered through normal use within the Hardware Warranty period as stated in the Order Form. Carbonite will only issue an RMA if the defect is created solely by Carbonite or the original manufacturer, and only if Customer meets the notice requirement. Carbonite will not grant RMAs for damage, shortage, or other discrepancy created by Customer, the carrier or freight provider, or any other third party. Upon receiving the RMA, Customer must return the Hardware to Carbonite in compliance with Carbonite's instructions in the RMA, including in original shipping cartons or equivalent, along with acceptable proof of purchase. Customer is responsible to pay the replacement cost for any parts that are not returned to Carbonite no later than thirty (30) days after issuance of an RMA. Carbonite may assess all Hardware returned by Customer via RMA. If Carbonite determines such Hardware is not eligible for return, Carbonite will send such Hardware back to Customer on freight collect basis, or hold such Hardware for Customer's collection and on account at Customer's expense.
6. Customer’s Use of Hardware.
Customer shall comply with the manufacturer’s published data sheet for the Hardware. The Hardware is not authorized for use in life support systems, human implantation, nuclear facilities or any other application where Hardware failure could lead to loss of life or property damage. If Customer uses the Hardware for use in such applications or fails to comply with the manufacturer's Hardware specifications, Customer acknowledges that (i) any such use or non-compliance is at Customer's sole risk, (ii) Carbonite and its licensors and suppliers are not liable, in whole or in part, for any claim or damage arising from such use, and (iii) Customer shall indemnify, defend and hold Carbonite, its licensors and suppliers harmless from any claims, damages, losses, costs, expenses and liabilities arising out of or in connection with such use, including if applicable (a) Carbonite's compliance with Customer's designs, specifications, or instructions, (b) modification of any Hardware by anyone other than Carbonite, or (c) use of Hardware in combination with other products or in violation of this clause.
7. Customer Default.
If Customer defaults on any payment, Carbonite may reschedule or cancel any outstanding Order Form, or portion of any Order Form, and declare all outstanding invoices due and payable immediately. Carbonite hereby reserves, and Customer hereby grants to Carbonite, a purchase money security interest in any Hardware for which the full purchase price has not been received by Carbonite prior to shipment. This interest will be satisfied by payment in full of the purchase price of the Hardware and any related shipping costs and taxes. Customer hereby appoints Carbonite as its attorney in-fact to execute, on Customer’s behalf and in Customer’s name, financing statement and other instruments to perfect Carbonite’s security interest in the Hardware.
8. Support Services.
Hardware Support Services. Standard support of Hardware includes: (i) assistance related to questions on the installation and operational use of the Hardware; (ii) identification of Hardware-related issues; and (iii) a warm hand-off to the Hardware manufacturer, which is responsible for providing support for all Hardware-related issues in accordance with the terms of such Hardware manufacturer’s support terms and conditions. Carbonite is not responsible for updating or upgrading operating systems.
9. Environment Compliance.
Where applicable, Customer is responsible for all obligations and liabilities under the European Union's (i) Waste Electrical and Electronic Equipment Directive (2012/19/EU), (ii) Packaging Waste Directive (94/62/EC) and (iii) Batteries Directive (2006/66/EC), all as amended and all related national implementing measures in force from time to time.