This Extended Warranty Agreement (this “Agreement”) is made and entered into as of the effective date set forth on the Cover Page to Extended Warranty Agreement to which this Agreement is attached (“Cover Page”) by and between Reichert, Inc. (“Reichert’) and the customer (“Customer”) identified on the Cover Page.
1. Term. The term of the extended warranty for the product (“Product”) identified on the Cover Page shall commence on the Commencement Date of Term of Extended Warranty as set forth on the Cover Page and, unless sooner revoked or canceled pursuant to the terms of this Agreement, remain in effect for the Length of Extended Warranty as set forth on the Cover Page (the “Term”).
2. Condition of Product. Reichert reserves the right to inspect the Product for thirty (30) days from the Effective Date in order to ensure that the Product is in good working condition. If, in Reichert’s sole discretion, it determines that the Product is not in good working condition, Reichert may revoke this Agreement. If this Agreement is revoked by Reichert, all monies paid by Customer for the extended warranty under this Agreement will be refunded. Any refusal on the part of Customer to allow said inspection may, at Reichert’s sole discretion, result in revocation of this Agreement.
3. Scope of Warranty. This Agreement covers, and Reichert agrees to repair or replace, any component or part of the Product in the event the Product experiences a mechanical or electrical breakdown during the Term which is not excluded under Section 4 below. Replacement parts will be new or rebuilt parts that perform to the specifications of the Product. If Reichert determines that it cannot service Customer’s Product as specified in this Agreement, Reichert may, at its discretion, replace the Product with a replacement product. While Product is being serviced, Reichert shall provide Customer with a free loaner for use only by Customer, which shall promptly be returned to Reichert when the repaired or replaced Product is provided to Customer by Reichert.
4. Exclusions from Warranty.
a. This Agreement does not provide coverage (whether in the form of the costs of parts and labor, replacement, or otherwise), and Reichert shall have no liability under this Agreement, in the following circumstances: (i) those circumstances identified in the factory warranty for the Product (the “Factory Warranty”) which render the warranty inapplicable or ineffective; (ii) prescribed periodic maintenance and service have not been performed with respect to the Product; (iii) ordinary wear and tear of Product; (iv) third party act, including theft and vandalism; and (v) any Product damage, malfunction or defect caused by or resulting from: (1) intentional damage or neglect, (2) shipment of or moving the Product, (3) flood, lightning, earthquake, tornado, hurricane, or other natural or man-made disaster, or extreme environmental conditions, (4) fire, bombing, armed conflict, terrorist attack, riot, malicious mischief, or sabotage, or (5) physical abuse, electrical surge, or sprinkler damage.
b. Further, this Agreement does not cover, and Reichert shall have no liability under this Agreement for: (i) cosmetic damage repair or cleanings; (ii) expendable items, including, but not limited to, those identified in the Factory Warranty; (iii) preventative maintenance; or (iv) liability for bodily injury, death, or property damage arising out of the use, operation, or maintenance of the Product.
5. WARRANTY; LIABILITY LIMITATIONS. Reichert warrants that it will perform extended warranty services in a competent manner. THIS WARRANTY IS IN LIEU OF ALL OTHER WARRANTIES, EXPRESSED OR IMPLIED, WHETHER STATUTORY OR OTHERWISE, INCLUDING ANY IMPLIED WARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE. IN NO EVENT SHALL REICHERT BE LIABLE FOR ANY CONSEQUENTIAL, INCIDENTAL, INDIRECT, EXEMPLARY OR PROSPECTIVE OR OTHER SIMILAR DAMAGE, INCLUDING, BUT NOT LIMITED TO, LOSS OF PROFITS, LOSS OF USE OF THE PRODUCT, LOSS OF BUSINESS OR DOWN-TIME, OR PROPERTY DAMAGE, RESULTING FROM A DEFECT, FAILURE, OR MALFUNCTION OF THE PRODUCT, WHETHER A CLAIM FOR SUCH DAMAGE IS BASED UPON THE WARRANTY, CONTRACT, NEGLIGENCE OR OTHERWISE. REICHERT’S TOTAL LIABILITY UNDER THIS AGREEMENT RELATING TO ALL CLAIMS MADE BY CUSTOMER PURSUANT TO THIS AGREEMENT SHALL NOT EXCEED THE ORIGINAL PURCHASE PRICE OF THE PRODUCT.
6. Returns; Shipping. All Product returns must be authorized before returning by calling Reichert Technical Support at: 1-888-849-8955. The Customer shall ship the covered Product to Reichert and Reichert shall return the covered Product to Customer non-priority at no charge. All claims under this Agreement must be received by Reichert no later than the end of the Term.
7. Retrofits. Reichert reserves the right to make changes in the design or construction of the Product without incurring any obligation under this Agreement to make the same changes to the covered Product. If agreed to by Reichert, Customer shall be responsible for the cost of any upgrades to the covered Product.
8. Discontinuance. Reichert reserves the right to discontinue the manufacture of any parts necessary for the repair of the Product. The discontinuance of the manufacture of any parts necessary to repair the Product shall cancel the contract and Customer shall be entitled to a prorated refund.
9. Arbitration. Reichert and Customer agree that any dispute, controversy or claim arising out of or relating to this Agreement, or the breach thereof, shall be settled by arbitration before a single arbitrator administered by the American Arbitration Association (the “AAA”) in accordance with its Commercial Arbitration Rules. Unless the parties agree otherwise, the arbitration shall be held in Erie County, New York. BOTH REICHERT AND CUSTOMER GIVE UP THE RIGHT TO RESOLVE ANY DISPUTE, CONTROVERSY OR CLAIM ARISING OUT OF OR RELATING TO THIS AGREEMENT IN COURT. The parties agree to arbitrate solely on an individual basis, and that this Agreement does not permit class arbitration or any claims brought as a plaintiff or class member in any class or representative arbitration proceeding. Neither the AAA nor the arbitrator shall have the power to consolidate more than one customer’s claims or to otherwise preside over any form of a representative or class proceeding. A judgment upon the award rendered by the arbitrator may be entered in any court having jurisdiction thereof.
10. Miscellaneous. This Agreement shall be interpreted under and governed in all respects by the laws of the State of New York, without regard to any rules of conflict and choice of laws that would require the application of laws of another jurisdiction. The U.N. Convention on Contracts for the International Sale of Goods shall not apply to this Agreement. The failure by either party to enforce, or the written waiver of, any term or condition of this Agreement or the acceptance of any payment hereunder shall not be deemed a waiver of further enforcement of that or any other term or condition. This Agreement (including the Cover Page) constitutes the entire agreement of the parties, and no representation, promise, or condition not contained herein shall modify this Agreement. If any provision of this Agreement is determined to be illegal or unenforceable, the remaining provisions of this Agreement shall not be affected, and the rights and obligations of Reichert and Customer shall be construed and enforced as if the Agreement did not contain the particular provision held to be invalid. This Agreement may be executed in counterparts, each of which shall be deemed an original, but all of which together shall constitute one and the same instrument. The exchange of copies of this Agreement and of signature pages by facsimile transmission, by electronic mail in “portable document format” (“.pdf”) form, or by any other electronic means, or by combination of such means, shall constitute effective execution and delivery of this Agreement.
