This Hardware Policy and Limited Warranty supplements the agreement (including the General Terms of Service, Order, and any addendums, schedules or other attachments thereto) between Customer and Fobi into which it is incorporated by reference (“Agreement”). Capitalized terms used herein and not otherwise defined shall have the meanings set out in the Agreement.
Fobi Hardware Use Policy
This Hardware Policy applies to the hardware device(s) requested by Customer in the quantities and configurations set out in Customer’s Order, which may include hardware manufactured and supplied by Fobi (“Fobi Hardware”) as well as third party components or cables (“Third Party Hardware”), collectively, the “Hardware”. Once installed, the Hardware will enable Customer to begin generating Raw Data and using the Service.
Shipping
Fobi will ship the Hardware to Customer using a carrier selected by us and such Hardware will be sent, at Customer’s cost, to the address or addresses set out in the applicable Order. If Customer has any payment accounts with any carriers and provides that information to us, Fobi will use that carrier for the purposes of shipping Hardware to Customer. Tracking Numbers will be provided to Customer for said shipping where available and an invoice will be provided to Customer in respect of any shipping charges Fobi incurs on Customer’s behalf. Customer shall pay all such invoices within thirty (30) days of receipt thereof.
While Fobi will try to meet Customer’s requested shipment and delivery dates, Fobi may be unable to do so as a result of Hardware availability, as further described below. In addition, many events beyond Fobi’s control can affect the delivery of the Hardware after Fobi provides it to the carrier. Therefore, Fobi shall not be liable for any late shipment or delivery or any loss, damage, or penalty Customer may incur as a result of a delay in shipment or delivery.
Availability
From time to time, Fobi may be unable to manufacture or obtain a sufficient supply of Hardware. In addition, there may be occasions when Fobi confirms Customer’s order but subsequently learn that Fobi is unable to supply the Hardware. Therefore, Fobi reserves the right at any time to limit or change quantities available to Customer or to cancel Customer’s request for Hardware. If Fobi cancels Customer’s request for Hardware, Fobi will refund an amount equal to the Total Fees paid to the date of such cancellation and Customer shall return to Fobi any Hardware delivered prior to the date of such cancellation. Fobi will use reasonable efforts to provide Customer with advance notice of any material delays in its Hardware supply which may adversely impact Customer.
End User Customers
Fobi provides and ships Hardware to customers for use for their own internal business purposes. Customer may not purchase Hardware for resale, and Fobi reserves the right to refuse or cancel a Customer order if Fobi reasonably believes Customer will do so. Customer’s use of the Hardware is governed by the General Terms of Service and related agreements and policies available at https://www.fobi.ai/terms-of-service
Ownership of Hardware
Customer acknowledged that Fobi owns the Fobi Hardware and will continue to own the Fobi Hardware in perpetuity. Upon acceptance by Fobi of Customer’s Order, Fobi agrees to make the Fobi Hardware available for Customer’s use in connection with its access to and use of the Service for the term of the Agreement. Correspondingly, Customer agrees that all Hardware must be returned to Fobi, at Customer’s cost, within thirty (30) days of the termination or expiration of the Agreement.
Fobi may, from time to time, make improvements to the Hardware and will either recommend or require Customer to substitute the improved Hardware for older versions of the Hardware, which, including shipping, will be at Customer’s sole cost. Customer’s failure to acquire and use such improved Hardware may prevent Customer from continuing to use all or a portion of the Service.
Because Customer does not own the Hardware, Customer agrees not to create or permit to exist a security interest over the Hardware or any part thereof, nor in or to any modifications to, enhancements, replacements, updates or new release of the Hardware except as otherwise contemplated herein. For the purposes of the foregoing, a “Security Interest” means a security interest as that term is defined in personal property security legislation applicable in Customer’s jurisdiction or any other mortgage, pledge, lien, charge or other arrangement of any kind which, in substance, secures the payment of money or the performance of an obligation, or that gives a creditor a priority over unsecured creditors.
Customer Obligations
Customer: (a) agrees to supervise and control the use of the Hardware such that it is only used in accordance with this Hardware Policy and the General Terms of Service; (b) will ensure that Customer’s employees, subcontractors and other agents who have access to the Hardware are made aware of the General Terms of Service; (c) agrees not to tamper with, open, modify, adapt, translate, reverser engineer or attempt the same, or remove the Hardware from the delivery location except upon expiration, termination or cancellation of the Agreement or in respect of a warranty based return; (d) agrees to not use the or any part thereof for any purpose that is unlawful or prohibited by the General Terms of Service or any other law or statute; (e) agrees to not attempt to gain unauthorized access to any computer systems or networks connected to the Hardware through any unauthorized means; (f) agrees to not use the Hardware to violate the legal rights, including without limitation, rights of privacy and publicity, of others; (g) agrees to comply with all data protection, privacy, spam, telemarketing and unsolicited contact laws and rules applicable to the personal information Customer collects, receives, has access to or submits in connection with Customer’s use of the Hardware; and (h) agrees to use the Hardware in compliance with all applicable laws, including local laws of the country or region in which Customer conducts business, resides, or installs the Hardware.
Limited Warranty for Fobi Hardware
Fobi warrants the Fobi Hardware against defects in materials and workmanship under normal use for a period of ninety (90) days from the shipping date (the “Warranty Period”). During the Warranty Period, Fobi will replace such defective Fobi Hardware at no cost to Customer provided, however, that Customer must return the defective Fobi Hardware to Fobi at the designated address and in the designated box, with all accessories, cords, cables, parts and documentation included, within fourteen (14) days of receiving Customer’s replacement Fobi Hardware. To initiate a warranty based return, contact Fobi Support at hello@fobi.ai.
Customer will be asked to provide a credit card number to Fobi when Customer initiates a warranty based return. In the event Customer fails to return defective Fobi Hardware pursuant to the process and time frame specified by Fobi, Fobi will either charge the card Customer provided when Customer initiated the warranty based return or will add an amount equal to the cost of the Fobi Hardware to Customer’s next Monthly Fees.
This is Customer’s sole and exclusive remedy for breach of this limited warranty. This limited warranty is only available to Customer as the original purchaser of the Fobi Hardware. Warranty coverage terminates if Customer sells or transfers the Fobi Hardware, either directly or as part of a sale of all some or all of Customer’s assets or the sale of Customer’s business.
Following the Warranty Period, Fobi agrees to use commercially reasonable efforts to provide ongoing support and maintenance (including with respect to the provision of spare parts and replacement Fobi Hardware) to Customer with respect to the Fobi Hardware.
This limited warranty does not apply to Fobi Hardware that has been subject to alteration, repair, tampering, accident, abuse, misuse, fire, acts of god (including, without limitation, earthquake, flood, hurricane, lightning, or tornado) or other external causes. Further, this limited warranty does not apply to any Third Party Hardware, any consumable parts, including batteries, or any software, even if resold or included with the Fobi Hardware. All Third Party Hardware resold or included by Fobi is provided solely according to the warranty and other terms specified by the manufacturer, who is solely responsible for service and support for its Product. For service, support, or warranty assistance, Customer should contact the manufacturer directly.
TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, THIS LIMITED WARRANTY IS PROVIDED IN LIEU OF ANY OTHER WARRANTY, WHETHER EXPRESS OR IMPLIED, WRITTEN OR ORAL, WITH RESPECT TO ANY FOBI OR THIRD PARTY HARDWARE. ACCORDINGLY, FOBI EXPRESSLY DISCLAIMS ANY WARRANTY OR CONDITION OF MERCHANTABILITY, NON-INFRINGEMENT, FITNESS FOR A PARTICULAR PURPOSE, OR AGAINST HIDDEN OR LATENT DEFECTS. TO THE EXTENT SUCH WARRANTIES CANNOT BE DISCLAIMED, FOBI LIMITS THE DURATION AND REMEDIES OF SUCH WARRANTIES TO THE DURATION AND REMEDY OF THIS LIMITED WARRANTY. IN NO EVENT WILL FOBI BE LIABLE FOR ANY LOSS OR DAMAGE OR FOR INCIDENTAL, CONSEQUENTIAL, SPECIAL, OR INDIRECT DAMAGES HOWEVER CAUSED ARISING OUT OF CUSTOMER’S USE OF OR INABILITY TO USE ANY FOBI OR THIRD PARTY HARDWARE, INCLUDING LOSS OF REVENUE, LOSS OF ACTUAL OR ANTICIPATED PROFITS, LOSS OF GOODWILL, OR LOSS OF REPUTATION.