INFRASCALE DISASTER RECOVERY (IDR) AND INFRASCALE BACKUP & DISASTER RECOVERY (IBDR) LIMITED HARDWARE WARRANTY & MAINTENANCE POLICY

Infrascale, Inc. (“Infrascale”) aims to provide affordable protection against downtime and data loss by leveraging the cloud and SaaS (software-as-a-service) technologies for its backup and disaster recovery solutions. As a SaaS technology service provider, Infrascale assumes responsibility for the complexities of infrastructure Hardware management, which is an inherent value proposition of SaaS. For the Infrascale Disaster Recovery (“IDR”) and Infrascale Backup & Disaster Recovery (“IBDR”) solutions, Infrascale also leverages IaaS (infrastructure-as-a-service) to bring each solution to life for our customers. Infrascale offers Hardware as a service component, independent of the SaaS infrastructure, yet in communication with the SaaS. With IaaS, our Hardware is installed at Your site, dedicated for Your use, and co-located with the data You are protecting.

This Limited Hardware Warranty & Maintenance Policy (this “Warranty”) is subject to the Customer Agreement, and describes the warranty and maintenance policies applicable to the Hardware employed in the IDR and IBDR products when the Hardware is not hosted by Infrascale. The “Customer Agreement” means (a) the Partner Agreement, Distribution Agreement, Infrascale Customer Agreement or other agreement between You (as defined below) and Infrascale which allows Your use of Infrascale Services, or if no such agreement exists, the agreement set forth at infrascale.com/legal/customer-agreement/, and (b) any other agreement with Infrascale governing Your use of the Services. The terms “You,” “Your” and “Yours” refer to you. Capitalized terms not defined in this Warranty will have the meanings specified in the Customer Agreement. In the event of a conflict between the terms of this Warranty and the Customer Agreement, the terms of this Warranty shall govern, but only to the extent of such conflict. Infrascale reserves the right to modify the terms of this Warranty in accordance with the terms of the Customer Agreement.

Subject to Your compliance with the terms of this Warranty and the Customer Agreement, Infrascale will provide warranty and maintenance of the IaaS Hardware (“Covered Hardware”) that You lease or purchase from Infrascale in connection with Your purchase of IDR and IBDR services.

1.  Limited Hardware Warranty.

This Warranty applies only to Covered Hardware, and is not applicable to appliances in the Infrascale cloud.

1. 1. Hardware Warranty Start Date. The warranty for each Covered Hardware product shall commence on the effective date of the Order under which such Covered Hardware was obtained.
   2. Hardware Warranty Period. The warranty for each Covered Hardware product will remain in effect for the duration of the Order Term for such Order (“Initial Warranty Period”), not to exceed thirty-six (36) months in duration. The foregoing shall not apply to previously leased Hardware (discussed in Section 2(c) below) or certain Hardware products (discussed in Section 4(d) below). The Initial Warranty Period and any applicable Extended Warranty Period You purchased shall collectively be referred to herein as the “Warranty Period”.
   3. Hardware Warranty Extension. Except as set forth in Sections 2(c) and 4(d), as part of the initial Order You may purchase an extended warranty on the Covered Hardware for a maximum period of twenty-four (24) months (“Extended Warranty Period”). The duration of the Initial Warranty Period and Extended Warranty Period shall not exceed sixty (60) months. Hardware ages and matures and after time, replacement parts cannot be procured due to obsolescence. In addition, Hardware performance and efficiency decline over time due to normal wear and tear. Infrascale is unable to extend warranty terms beyond the term specified as Infrascale is unable to obtain extended terms from its suppliers.
   4. Hardware Warranty Coverage. Infrascale warrants that for the duration of the Warranty Period, each Covered Hardware product will be free from defects in materials and workmanship under normal use. Subject to the foregoing, Infrascale will repair or replace the Covered Hardware in accordance with the terms of Section 3 below.

2.  Limitations.

The warranty is subject to Your compliance with the terms of the Customer Agreement and the following:

1. 1. Updates. You must ensure the Software installed on the Covered Hardware is kept up-to-date, and versioned to the current version or the version immediately preceding the current version. During the Warranty Period, Infrascale will (i) make Updates available to You at no charge (any such Updates shall be deemed “Software”), and (ii) maintain backward compatibility of the Software with Covered Hardware for the most recent two versions of the Software. Infrascale is not responsible for performance, security, availability or other issues or liabilities arising out of or resulting from Your failure to promptly implement any Updates, including any warranty claims resulting therefrom.
   2. Exclusions. This Warranty covers only normal use of the Covered Hardware. Infrascale shall not be liable under this Warranty if any damage or defect results from:
      (i) external causes such as misuse, abuse, neglect, accident, modification, unsuitable physical or operating environment, natural disasters (including but not limited to fire, water damage, earthquake, lightning and other acts of nature), power surges, abnormal physical or electrical stress or unauthorized installation or maintenance of wiring, circuits, electrical conduits, or devices external to the Covered Hardware;
      (ii) any alterations or modifications of, or additions to, the Covered Hardware made by a party other than Infrascale, including software, parts or supplies not supplied by Infrascale;
      (iii) improper site preparation, installation, configuration, operation, repair or maintenance;
      (iv) damage caused by a non-authorized service provider or other third party;
      (v) operation in a manner for which it was not intended or otherwise not in compliance with the specifications in the Documentation;
      (vi) failure to provide and continually maintain adequate electrical power, air conditioning, and humidity controls in accordance with product specifications or if not specified, as would reasonably be prudent; or
      (vii) refusal or failure to promptly implement any Update, error correction or replacement part made available by Infrascale.
   3. Previously Leased Hardware. In the event Infrascale offers to lease or sell You previously-leased Hardware, You will be informed of its pre-leased condition and the applicable warranty terms. The maximum, non-extendable Warranty Period for such Hardware shall be twenty-four (24) months.

3.  Repair and Replacement under Warranty.

1. 1. Repair/Replacement Process. Subject to Your submission of a Support Ticket during the Warranty Period, You and Infrascale shall promptly exchange relevant data reasonably necessary to determine the root cause of the alleged defect and cooperate in good faith to establish a corrective action plan. If Infrascale determines that the failure of the Covered Hardware or component(s) is due to defective materials or workmanship but the issue is not able to be resolved remotely, Infrascale, at its sole discretion, may arrange for You to send Your Covered Hardware or component(s) to Infrascale’s repair facility or replace the Covered Hardware or component(s) with comparable Hardware or component(s) that may be new or refurbished. Any replacement Hardware product or component provided to You pursuant to the above shall be deemed “Covered Hardware” and shall be warranted for the balance of the Warranty Period remaining on the original Covered Hardware product. Infrascale reserves the right to examine any alleged defective Covered Hardware and component(s) and perform a failure analysis to determine whether the alleged defect (i) is a result of defective materials or workmanship (in which case the remedies set forth herein shall apply); (ii) does not exist, (iii) results from issues external to the Covered Hardware such as issues with Your network or systems, (iv) was caused by damage or loss in transit, or (v) was caused by any of the exclusions described in Section 2(b) above (in which cases (ii-v), You shall not be entitled to any remedies hereunder). At no time shall Infrascale entertain a repair or replacement of Covered Hardware or components that fail after expiration of the Warranty Period.
   2. Return Material Authorization (RMA). Upon a determination by Infrascale that Your Covered Hardware or component(s) should be returned to Infrascale for repair or replacement, Infrascale will issue a Return Material Authorization (“RMA”) for the failed Covered Hardware or component. Within ten (10) days of Your receipt of the replacement unit(s), You must return the failed Covered Hardware or component (as applicable) to Infrascale’s designated facility under the RMA number issued by Infrascale. The Covered Hardware or component must be packaged appropriately for safe shipment, and the RMA number must be marked on the outside of the package, the packing slip or the shipping paperwork for acceptance by Infrascale’s receiving department. Infrascale may invoice You, and You agree to make prompt payment for, any failed Covered Hardware or components (i) with respect to which the defect or damage to such Covered Hardware or components is attributable to actions taken by You or any of Your agents, or is otherwise not covered by this Warranty, or (ii) not returned within ten (10) days of Your receipt of the replacement unit(s). Infrascale will be responsible for all freight charges and insurance for returned Covered Hardware or components subject to Your compliance with the terms of this Warranty and provided You use Infrascale’s designated carrier. All Covered Hardware and components returned to Infrascale must be pre-authorized by Infrascale with an RMA number.

4.  Warranty Exceptions.

1. 1. Hardware Upgrades. This Warranty does not entitle You to receive replacement Hardware in the event You have “outgrown” and/or exceeded capacity on Your current Hardware. Should You wish to lease upgraded Hardware, Your Infrascale sales representative will be happy to assist You
   2. End of Life Hardware. Infrascale maintains a list of currently supported models of Hardware at: docs.infrascale.com/dr/specification#specifications-for-physical-appliances. Under no circumstances will non-current Hardware models be covered by this Warranty following conclusion of the Warranty Period.
   3. Legacy Hardware. Notwithstanding anything contained herein to the contrary, Legacy Hardware will not be covered by this Warranty following conclusion of the Warranty Period.
   4. 950/955 Model Exceptions. Notwithstanding anything contained herein to the contrary, the Warranty Period for the Infrascale 950 and 955 Hardware models shall be twelve (12) months in duration and such Hardware products shall not be eligible for a Hardware Warranty Extension.

5.  Ownership of Hardware; Duty to Return Hardware.

All Hardware You receive from Infrascale in connection with Your purchase of IDR and IBDR services is leased from Infrascale (the “Leased Hardware”) unless Your Order expressly states that Infrascale has sold, and You have purchased, such Hardware (“Purchased Hardware”). 

1. 1. Ownership/Title. All Leased Hardware shall remain the property of Infrascale or its suppliers and title to the Leased Hardware shall not pass to You or any third party, notwithstanding anything contained in the Customer Agreement to the contrary. Title to Purchased Hardware shall pass to You in accordance with the terms in the Customer Agreement or applicable Order(s). No license or right is granted to You or any third party by implication, estoppel or otherwise.
   2. Agreement Termination. Upon termination of (i) the Order under which You received the Leased Hardware, or (ii) the Customer Agreement, whichever of (i) or (ii) occurs earlier, You shall immediately obtain possession of all Leased Hardware provided by Infrascale pursuant to the terminated Order or Customer Agreement, as applicable, whether such Leased Hardware was provided to You or Your designee, and return the Leased Hardware, along with all accessories and components, to Infrascale in the same condition as that in which it was provided (less reasonable wear and tear). In the event the Leased Hardware is not immediately returned in the aforementioned condition, You agree You shall promptly pay to Infrascale the actual cost of the Leased Hardware less Depreciation. “Depreciation” shall be calculated by multiplying the actual cost of the Leased Hardware on the date of delivery to You or Your designee by the Decline in Value, where the “Decline in Value” is equivalent to twenty-five percent (25%) per full year or portion thereof for each of the first three (3) years following delivery of such Leased Hardware, not to exceed seventy-five percent (75%).

6.  Exclusive Warranty.

THIS WARRANTY IS YOUR EXCLUSIVE WARRANTY WITH RESPECT TO THE HARDWARE AND REPLACES ALL OTHER WARRANTIES OR CONDITIONS, EXPRESS OR IMPLIED WITH RESPECT TO THE HARDWARE, INCLUDING, BUT NOT LIMITED TO, ANY IMPLIED WARRANTIES OR CONDITIONS OF MERCHANTABILITY, NONINFRINGEMENT, PERFORMANCE, SUITABILITY, OR FITNESS FOR A PARTICULAR PURPOSE. AS SOME STATES OR JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF EXPRESS OR IMPLIED WARRANTIES, THE ABOVE EXCLUSIONS MAY NOT APPLY TO YOU. IN THAT EVENT, SUCH WARRANTIES APPLY ONLY TO THE EXTENT AND FOR SUCH DURATION AS REQUIRED BY LAW AND ARE LIMITED IN DURATION TO THE WARRANTY PERIOD. AS SOME STATES OR JURISDICTIONS DO NOT ALLOW LIMITATIONS ON THE DURATION OF AN IMPLIED WARRANTY, THE ABOVE LIMITATION ON DURATION MAY NOT APPLY TO YOU. YOUR ADDITION OF ANY FEATURES, PARTS, OPTIONS, ALTERATIONS OR ATTACHMENTS TO THE HARDWARE SHALL VOID THIS WARRANTY.