This is an Addendum to the Sales, Software License and Services Agreement between Kronos and Customer.
The following terms and conditions shall supplement the terms and conditions of the Agreement and shall govern the Equipment support services (“Equipment Support Services”) provided by Kronos to Customer for Customer’s Kronos Equipment specified on a Kronos order form (the “Order Form”). In the event of a conflict or inconsistency between the Agreement and this Addendum, this Addendum shall govern. Capitalized terms not otherwise defined herein shall have the meanings prescribed to them in the Agreement.
Customer may select, as indicated on an Order Form, an Equipment Support Services option offered by the local Kronos entity responsible for supporting the Equipment if and as such offerings are available within the Kronos territory corresponding to the Equipment’s location. Kronos shall provide each Equipment Support Services offering as specified herein and in the applicable Kronos Support Service Policies.
Equipment Support Services have a term of one (1) year commencing upon the expiration of the applicable warranty period, as specified in the Agreement. Equipment Support Services will be automatically extended for additional one year terms on the anniversary of its commencement date ("Renewal Date"), unless either party has given the other thirty (30) days written notification of its intent not to renew. Kronos may change the annual support charges effective at the end of the initial one (1) year term or effective on the Renewal Date, by giving Customer at least thirty (30) days prior written notification.
Customer agrees to pay the Support Charges for the initial term as set forth on the Order Form for each Product listed. Customer agrees that all Products of the same type that are owned by the Customer, including without limitation Customer's "Spare Products" (as defined below), will be subject to this Agreement. Customer agrees that if Customer purchases, during the term of this Agreement, any Products of the same type as those specified on an Order Form, such additional Products shall be subject to this Agreement. Customer agrees to pay a prorated fee for such additional Products and agrees to pay the full annual fee for such additional Products, upon the renewal date.
Kronos will invoice Customer for the annual Support Charges each year in advance of the Renewal Date. Customer will pay Kronos within thirty (30) days of receipt of invoice. In addition to the annual Support Charges, Customer agrees to pay all applicable taxes, however designated, on this Agreement, and on services rendered, including state, province and local taxes or excise taxes based on gross revenue, and any taxes or amount in lieu thereof paid or payable by Kronos, exclusive of taxes based upon net income. In addition, each party shall be responsible for their respective freight charges as provided in Section 6 below. Customer will pay a late charge of one percent (1%) per month of any overdue amounts, but not in excess of the rate allowed by law.
3. EQUIPMENT SUPPORT SERVICE
(a) Depot Exchange and Depot Repair
Upon the failure of installed Equipment, Customer shall notify Kronos of such failure and Kronos will provide remote fault isolation at the FRU (Field Replacement Unit) or subassembly level and attempt to resolve the problem. Those failures determined by Kronos to be Equipment related shall be dispatched to a Kronos Depot Repair Center, and Customer will be provided with a Return Material Authorization Number (RMA) for the failed Equipment if Customer is to return the failed Equipment to Kronos, as reasonably determined by Kronos. Customer must return the failed Equipment with the supplied RMA number. Hours of operation, locations and other information related to Kronos’ Depot Repair Centers are available upon request and can be found at https://customer.kronos.com/contact/contact-phone.aspx and are subject to change. Return and repair procedures for failed Equipment shall be provided based on the Depot option - Depot Exchange or Depot Repair - selected by Customer on the applicable Order Form and as specified herein and in Kronos’ then-current Support Services Policies. Service packs for the Equipment (as described in subsection (b) below) are included in both Depot Exchange and Depot Repair Support Services.
(i) Depot Exchange: Kronos will provide a replacement for the failed Equipment at the FRU or subassembly level on an "advanced exchange" basis, utilizing a carrier of Kronos’ choice. Replacement Equipment will be shipped the same day, for delivery to Customer’s location as further described in the Support Policies. REPLACEMENT EQUIPMENT MAY BE NEW OR RECONDITIONED. Customer shall specify the address to which the Equipment is to be shipped. All shipments will include the Kronos provided RMA designating the applicable Kronos Depot Repair Center, as the recipient. Customer, upon receipt of the replacement Equipment from Kronos, shall package the defective Equipment in the materials provided by Kronos, with the RMA supplied and promptly return failed Equipment directly to Kronos.
(ii) Depot Repair: Upon failure of installed Equipment, Customer shall install a Spare Product to replace the failed Equipment. Customer shall then return the failed Equipment, with the required RMA, to the applicable Kronos Depot Repair Center. Customer shall make reasonable efforts to return the failed Equipment using the same or substantially similar packing materials in which the original Equipment was sent. Customer shall also specify the address to which the repaired Equipment should be return shipped. Upon receipt of the failed Equipment, Kronos shall repair the failed Equipment and ship it, within ten (10) business days after receipt, to Customer. Kronos shall ship the repaired Equipment by regular surface transportation to Customer.
Kronos warrants that all repairs performed under the Agreement shall be performed in a professional and competent manner. In the event of a breach of this warranty, the exclusive remedy of Customer and sole liability of Kronos shall be replacement of the repaired Equipment.
(b) Device Software Updates Only
Customer shall be entitled to receive:
(i) Service packs for the Equipment (which may contain system software updates, firmware updates, security updates, and feature enhancements) available for download at Kronos' customer portal; and
(ii) Access to the Kronos Support Services Center for the logging of requests for assistance downloading service packs for the Equipment.
Service packs for the Equipment are not installed by the Kronos Depot Repair Center but are available for download at Kronos' customer portal, provided Customer is maintaining the Equipment under an annual Equipment Support Services plan with Kronos.
Kronos warrants that all service packs and firmware updates provided under this Agreement shall materially perform in accordance with the Kronos published specifications for a period of ninety (90) days after download by Customer. In the event of a breach of this warranty, Customer’s exclusive remedy shall be Kronos’ repair or replacement of the deficient service pack(s) or firmware update(s), at Kronos’ option, provided that Customer’s use, installation and maintenance thereof have conformed to the specifications.
4. RESPONSIBILITIES OF CUSTOMER
It is Customer’s responsibility to purchase and retain, at Customer’s location and at Customer’s sole risk and expense, a sufficient number of spare products ("Spare Products") to allow Customer to replace failed Equipment at Customer’s locations in order for Customer to continue its operations while repairs are being performed and replacement Equipment is being shipped to Customer. For each of the Depot Exchange and Depot Repair Equipment Support Services options, Customer agrees that it shall return failed Equipment promptly as the failures occur and that it shall not hold failed Equipment and send failed Equipment to Kronos in "batches" which shall result in a longer turnaround time to Customer. In addition, Customer agrees to:
(a) Maintain the Equipment in an environment conforming to the Kronos published specifications for such Equipment;
(b) Not perform self-repairs on the Equipment (i.e., replacing components) without prior written authorization from Kronos;
(c) De-install all failed Equipment and install all replacement Equipment in accordance with Kronos' written installation guidelines;
(d) Ensure that the Equipment is returned to Kronos properly packaged; and
(e) Obtain an RMA before returning any Equipment to Kronos and place the RMA clearly and conspicuously on the outside of the shipping package. Customer may only return the specific Equipment authorized by Kronos when issuing the RMA.
Equipment Support Service does not include the replacement of "consumables" (i.e., batteries). In addition, Equipment Support Service does not include the repair of damages, and Customer will not attempt to return damaged Equipment, resulting from:
(a) Any cause external to the Equipment including, but not limited to, electrical work, fire, flood, water, wind, lightning, transportation, or any act of God;
(b) Customer's failure to continually provide a suitable installation environment (as indicated in Kronos' written installation guidelines) including, but not limited to, adequate electrical power;
(c) Customer's improper use, relocation, packaging, or refinishing of the Equipment or other failure to use Equipment in accordance with Kronos' published specifications;
(d) Customer's use of the Equipment for purposes other than those for which they are designed or the use of accessories or supplies not approved by Kronos;
(e) Government imposed sanctions, rules, regulations or laws preventing the shipment of the Equipment; or
(f) Customer's repair, attempted repair or modification of the Equipment.
Professional services provided by Kronos in connection with the installation of any Equipment or to update the service packs or firmware, if requested by Customer, are not covered by Equipment Support Services.
All domestic shipments within the United States are FOB Destination to/from Customer and Kronos with the shipping party bearing all costs and risks of loss, and with title passing upon delivery to the identified destination. All international shipments from Kronos to Customer are DAP (Incoterms 2010) to the applicable Customer location, and are DDP (Incoterms 2010) to the applicable Kronos Depot Repair Center when Customer is shipping to Kronos. Customer is responsible for all duties and taxes when sending Equipment to Kronos.
7. DEFAULT, SUSPENSION, AND TERMINATION
Under the Depot Exchange Support option, Kronos may suspend Equipment Support Services if Customer does not ship Failed Equipment to Kronos within ten (10) business days of receipt of the Replacement Equipment. Kronos will restore Equipment Support Services upon return of such Failed Equipment or upon payment at the then-prevailing Kronos list price for such unreturned Failed Equipment. The term of the Agreement shall not be extended or affected by any such suspension.
Customer may terminate Equipment Support Services if Kronos is in default under the Agreement, and such default is not corrected within thirty (30) days after written notice. Kronos may terminate Equipment Support Services if Customer defaults under the Agreement with Kronos, and such default is not corrected within thirty (30) days after written notice. In addition, this Agreement will terminate and all charges due hereunder will become immediately due and payable in the event that Customer ceases to do business as a going concern or has its assets assigned by law.
8. WARRANTY DISCLAIMER
EXCEPT AS SPECIFICALLY SET FORTH HEREIN, ALL OTHER WARRANTIES FOR THE EQUIPMENT SUPPORT SERVICES PROVIDED HEREUNDER, EXPRESS OR IMPLIED, INCLUDING WARRANTIES OF FITNESS FOR ANY PARTICULAR PURPOSE AND MERCHANTABILITY, ARE EXCLUDED BY AGREEMENT OF THE PARTIES.