Ethica Equipment Terms
Ethica SD-WAN Customer Premises Equipment (CPE) Equipment Terms
These Ethica Equipment Terms (“Terms”) are between you and Ethica. “You” means you individually or the entity that you represent. “Ethica” means Ethica Channel Enablement Inc. an Ontario corporation.
Capitalized terms used in these Terms are defined throughout these Terms and in Section 8 (“Definitions”).
- EQUIPMENT; GENERALLY.
1.1 Equipment. You may use the Equipment specified in an Order accepted by Ethica, subject to these Terms
1.2 Installation. As between You and Ethica, You are responsible for installation of the Equipment.
1.3 Software. Any Ethica software included with the Equipment is governed by separate terms, available at https://ethica.partners/terms/#term-tabs_1. You may only use that software in accordance with those terms and only in connection with Your use of the Equipment.
- EQUIPMENT PURCHASES.
2.1 If You are purchasing the Equipment:
(i) title passes to You on Delivery
(ii) the Warranty in Section 3.1 applies for 12 months from Delivery.
(iii) risk of loss for Equipment transfers from Ethica to You on Delivery, and
(iv) You are solely responsible for Your data and bear all risk of data loss as a result of Your use of the Equipment.
- LIMITED WARRANTY.
3.1 Warranty. Ethica warrants that commencing from the date of shipment to You and continuing for a period of 365 days the Equipment will be free from defects in material and workmanship under normal use. The date of shipment of Equipment by Ethica is set forth on the packaging material in which the Equipment is shipped. This limited warranty extends only to the original user of the Equipment. Your sole and exclusive remedy and the entire liability of Ethica and its suppliers under this limited warranty will be, at Ethica’s or its service center’s option, shipment of a replacement within the warranty period and according to the replacement process described in Section 6 or a refund of the purchase price if the Equipment is returned to Ethica, freight and insurance prepaid. Ethica replacement parts used in Equipment replacement may be new or equivalent to new. Ethica’s obligations hereunder are conditioned upon the return of affected Equipment in accordance with Ethica’s then-current Return Material Authorization (RMA) procedures.
3.2 Exclusions. This limited warranty does not apply if the Equipment (a) has been altered, except by Ethica or its authorized representative, (b) has not been installed, operated, repaired, or maintained in accordance with instructions supplied by Ethica, (c) has been subjected to abnormal physical or electrical stress, abnormal environmental conditions, misuse, negligence, or accident; or (d) is licensed for beta, evaluation, testing or demonstration purposes. The Equipment is not fault-tolerant and is not designed or intended for use in hazardous environments requiring fail-safe performance, such as any applications in which the failure of the Equipment could lead directly to death, personal injury, or physical or property damage (collectively, “High-Risk Activities”). Ethica expressly disclaims any express or implied warranty of fitness for use for or in relation to High-Risk Activities.
3.3 Remedies. If You notify Ethica of a warranty claim during the applicable warranty period, then Ethica will, at its sole option, either replace the affected Equipment (with new or refurbished parts) at Ethica’s discretion or refund the purchase price. If instructed by Ethica, You must return to Ethica the applicable defective Equipment, or portions of the Equipment. If You receive a replacement but do not return the defective item to Ethica, then You must pay Ethica for that item. This Section 3.3 states Ethica’s entire liability and Your exclusive remedy for breach of the Equipment warranty set forth in Section 3.1, above.
3.4 DISCLAIMER OF WARRANTY
EXCEPT AS SPECIFIED IN THIS LIMITED WARRANTY IN SECTION 3.1, ALL EXPRESS OR IMPLIED CONDITIONS, REPRESENTATIONS, AND WARRANTIES INCLUDING, WITHOUT LIMITATION, ANY IMPLIED WARRANTY OR CONDITION OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT, SATISFACTORY QUALITY, NON-INTERFERENCE, ACCURACY OF INFORMATIONAL CONTENT, OR ARISING FROM A COURSE OF DEALING, LAW, USAGE, OR TRADE PRACTICE, ARE HEREBY EXCLUDED TO THE EXTENT ALLOWED BY APPLICABLE LAW AND ARE EXPRESSLY DISCLAIMED BY ETHICA, ITS SUPPLIERS AND LICENSORS. TO THE EXTENT AN IMPLIED WARRANTY CANNOT BE EXCLUDED, SUCH WARRANTY IS LIMITED IN DURATION TO THE EXPRESS WARRANTY PERIOD. BECAUSE SOME STATES OR JURISDICTIONS DO NOT ALLOW LIMITATIONS ON HOW LONG AN IMPLIED WARRANTY LASTS, THE ABOVE LIMITATION MAY NOT APPLY. THESE WARRANTIES GIVE CUSTOMER SPECIFIC LEGAL RIGHTS, AND CUSTOMER MAY ALSO HAVE OTHER RIGHTS WHICH VARY FROM JURISDICTION TO JURISDICTION. This disclaimer and exclusion shall apply even if the express warranty set forth above fails of its essential purpose.
- TERM & TERMINATION.
4.1 TERM. These Terms are effective upon the acceptance of an Order by Ethica. These Terms continue until they are terminated in accordance with this Section 4.
4.2 Termination for Cause. Either You or Ethica may terminate these Terms effective immediately upon written notice to the other party if that party: (a) commits a breach of these Terms and fails to cure within thirty (30) days of notice of the breach; (b) commits a material breach of these Terms that cannot be cured; or (c) terminates or suspends its business.
4.3 Termination for Insolvency. Either You or Ethica may terminate these Terms effective immediately upon written notice to the other party if the other party: (a) becomes insolvent, admits in writing its inability to pay its debts as they mature, makes an assignment for the benefit of creditors, or becomes subject to control of a trustee, receiver or similar authority; or (b) becomes subject to any bankruptcy or insolvency proceedings.
4.4 Effect of Termination. Upon the effective date of termination of these Terms all rights to the Equipment granted to You pursuant to these Terms will immediately cease.
4.5. Survival. Any provision that, by its nature and context, is intended to survive termination or expiration of these Terms, will survive.
- LIMITATION OF LIABILITY
5.1 Disclaimer. TO THE MAXIMUM EXTENT PERMITTED BY LAW, IN NO EVENT WILL ETHICA OR ETHICA’S SUPPLIERS BE LIABLE FOR ANY LOST PROFITS OR BUSINESS OPPORTUNITIES, LOSS OF USE, LOSS OF DATA, LOSS OF REVENUE, LOSS OF GOODWILL, BUSINESS INTERRUPTION, OR FOR ANY INDIRECT, SPECIAL, INCIDENTAL, OR CONSEQUENTIAL DAMAGES UNDER ANY THEORY OF LIABILITY, WHETHER BASED IN CONTRACT, TORT, NEGLIGENCE, PRODUCT LIABILITY, OR OTHERWISE. THIS LIMITATION WILL APPLY REGARDLESS OF WHETHER ANY PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF THOSE DAMAGES AND REGARDLESS OF WHETHER ANY REMEDY FAILS OF ITS ESSENTIAL PURPOSE. BECAUSE SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF LIABILITY FOR CONSEQUENTIAL OR
INCIDENTAL DAMAGES, THE FOREGOING LIMITATION MAY NOT APPLY.
5.2 Cap on Monetary Liability. ETHICA’S LIABILITY FOR ANY CLAIM UNDER THESE TERMS WILL NOT EXCEED THE GREATER OF: (i) THE FEES YOU PAID FOR THE EQUIPMENT GIVING RISE TO THE CLAIM, OR (ii) ONE HUNDRED U.S. DOLLARS ($100 USD).
5.3 Further Limitations. Ethica’s suppliers have no liability of any kind under these Terms. Ethica’s liability with respect to any third party software embedded in the Equipment is subject to this Section 5. You may not bring a claim under these Terms more than twelve (12) months after the cause of action arises.
- RETURN MATERIAL AUTHORIZATIONS
6.1 Should you have an issue with your Equipment, please open a ticket on the customer portal. Upon receipt of a ticket, Ethica will troubleshoot the problem with you. If Ethica determines that there is a failure of the Equipment during the warranty period referenced in Section 3.1 , we will cause the Equipment to be replaced.
7.1 Payment. You agree to pay any invoices issued by Ethica to You pursuant to these Terms, if any, within 30 days of the date of the invoice. All amounts payable must be remitted in the currency specified in the invoice and are exclusive of any taxes, duties, or similar charges imposed by any government or other authority. If you are required to pay any withholding tax, charge or levy in respect of any payments due to Ethica pursuant to these Terms, you must gross up payments actually made so that Ethica receives all sums due in full and free of any deduction for any such withholding tax, charge or levy.
7.2 Assignment. Without Ethica’s prior written consent, You may not assign these Terms, or any right or obligation under these Terms or in connection with an Order, or delegate any performance, in whole or in part, by operation of law or otherwise, except in connection with the sale of all or substantially all of Your assets.
7.3 Force Majeure. Neither party will be liable for any delay or failure to perform its obligations under these Terms, except for Your payment obligations, due to any cause beyond its reasonable control including labor disputes or other industrial disturbances, systemic electrical, telecommunications or other utility failures, earthquakes, storms or other acts of nature, embargoes, riots, acts or orders of government, acts of terrorism, or war.
7.4 Compliance with Laws. Each party must comply with all laws, rules, and regulations applicable to the actions contemplated by these Terms.
7.5 Export Control and Government Regulations. You acknowledge that the Equipment provided is subject to the U.S. Export Administration Regulations, as well as any other U.S. economic sanctions laws and regulations, and may be subject to the export control laws of the applicable territory, and that diversion contrary to applicable export control laws is prohibited.
7.6 Waiver. Failure to enforce a provision of these Terms will not constitute a waiver. Waiver of a breach of any provision of these Terms will not constitute a waiver of any later breach of that provision, or waiver of a breach of any other provision. Any waiver must be in writing and signed by the applicable party.
7.7 Severability. If any part of these Terms are held to be invalid or unenforceable, the remaining provisions of these Terms will remain in force to the extent feasible.
7.8 Construction. The headings of sections of these Terms are for convenience and are not to be used in interpreting these Terms. As used in these Terms, the word “including” means “including but not limited to”.
7.9 Language. These Terms are in English, and the English language version governs any conflict with a translation into any other language.
7.10 Order of Precedence. These Terms supersede and control over any conflicting or additional terms and conditions of any purchase order, acknowledgement or confirmation, or other document issued by You regarding the Equipment.
7.11 Entire Agreement. These Terms, accepted Orders, and any amendments to these Terms, contain the entire agreement of the parties with respect to the Equipment, and supersede all previous or contemporaneous communications, representations, proposals, commitments, understandings, and agreements, whether written or oral, between You and us regarding the Equipment. These Terms may be amended only in writing signed by authorized representatives of both parties.
7.12 Governing Law. The parties agree that these Terms shall be construed and regulated under and by the laws of the Province of Ontario, without giving effect to provisions related to choice of laws or conflict of laws, and with venue proper in the provincial and federal courts located in Toronto, Province of Ontario regardless of the place this Agreement may have been executed or where performance hereunder takes place and the parties submit to the personal jurisdiction of such courts. All disputes between the parties arising out of or related to there Terms, other than claims arising out of non-payment by you, shall be brought within one (1) year after the accrual of the dispute. The U.N. Convention on Contracts for the International Sale of Goods does not apply.
7.13 Notices. Any notice from Ethica to You under these Terms will be delivered via mail or email. Any notice or correspondence from You to Ethica must be in writing, addressed to: Ethica Channel Enablement Inc. 5 Sousa Mendes Street #702, Toronto, Ontario, Canada, M6P 0A8, Attention: Legal Department.
8.1 “Delivery” of the Equipment occurs when Ethica loads the Equipment on the carrier’s vehicle at Ethica’s designated point of shipment.
8.2 “Documentation” means that documentation that is generally provided to customers by Ethica with the Equipment, as revised by Ethica from time to time, and which may include end user manuals, operation instructions, installation guides, release notes, and online help files regarding use of the Equipment.
8.3 “Equipment” means the Ethica branded SD-WAN networking equipment, including components, options and spare parts as specified in Your Order.
8.4 “Order” means an order received by Ethica reflecting the particulars of Your order for Ethica Equipment.