The following terms and conditions supplement the Exhibit of the General Terms and Conditions of the Agreement and govern the purchase and sale, or rental of, Equipment and the related support services, as applicable.
Section 1. Purchase and Sale of Equipment
When indicated on the applicable Order Form as Purchased Equipment, UKG sells to Customer, and Customer purchases from UKG, the Equipment listed on that Order Form for the price stated on that Order Form. Payment and delivery terms are as stated on the Order Form. UKG will invoice Customer for purchased Equipment upon shipment of the Equipment.
Section 2. Equipment Rentals
The following terms apply only to Equipment Customer rents from UKG when indicated on the applicable Order Form as Rental Equipment:
2.1 Rental Term and Warranty. The term of the Equipment rental and the warranty for such Equipment shall run coterminously with the Term of the Service.
2.2 Insurance. Customer shall insure the Equipment for an amount equal to the replacement value of the Equipment for loss or damage by fire, theft, and all normal extended coverage at all times during the Term. No loss, theft or damage after shipment of the Equipment to Customer shall relieve Customer from Customer’s obligations hereunder.
2.3 Location/Replacement. Customer shall not make any alterations or remove the Equipment from the place of original installation without UKG's prior written consent. UKG shall have the right to enter Customer’s premises to inspect the Equipment during normal business hours. UKG reserves the right, at its sole discretion and at no additional cost to Customer, to replace any Equipment with newer or alternative technology as long as the replacement Equipment at least provides the same level of functionality as that being replaced.
2.4 Ownership. All Equipment shall remain the property of UKG. All Equipment is, and at all times shall remain, separate items of personal property, notwithstanding such Equipment’s attachment to other equipment or real property. Customer shall not sell or otherwise encumber the Equipment. Customer shall furnish any assurances, written or otherwise, reasonably requested by UKG to give full effect to the intent of terms of this paragraph (d).
2.5 Equipment Support. UKG shall provide to Customer the Depot Exchange Equipment Support Services described below, the Fees for which are included in the Rental Fees for the Equipment.
2.6 Return of Equipment. Upon termination or expiration of the Rental Period for the Equipment or upon termination or expiration of the Agreement, for any reason, Customer shall return, within thirty (30) days of the effective date of termination and at Customer’s expense, the Equipment. Equipment will be returned to UKG in the same condition as and when received, reasonable wear and tear excepted. If Customer fails to return Equipment within this time period, upon receiving an invoice from UKG, Customer shall pay UKG the then list price of the unreturned Equipment.
Section 3. Warranty
UKG warrants that all UKG Equipment shall be free from defects in materials and workmanship, for a period of ninety (90) days from delivery. In the event of a breach of this warranty, Customer’s exclusive remedy shall be UKG's repair or replacement of the deficient Equipment, at UKG's option, provided that Customer’s use, installation and maintenance thereof have conformed to the Documentation. This warranty is extended to Customer only and shall not apply to any Equipment (or parts thereof) in the event of:
- damage, defects or malfunctions resulting from misuse, accident, neglect, tampering, (including modification or replacement of any UKG components on any boards supplied with the Equipment), unusual physical or electrical stress or causes other than normal and intended use;
- failure of Customer to provide and maintain a suitable installation environment, as specified in the Documentation; or
- malfunctions resulting from the use of badges or supplies not approved by UKG.
Section 4. Firmware
Customer may not download firmware updates for the UKG Equipment unless Customer is maintaining such Equipment under a support plan with UKG. If Customer is not maintaining the Equipment under a support plan with UKG, UKG shall have the right to verify Customer’s UKG Equipment to determine if Customer has downloaded any firmware to which Customer is not entitled. If Customer has downloaded firmware for the UKG Equipment to which Customer is not entitled, Customer shall be responsible to pay UKG for such updated firmware in accordance with UKG's then-current support policies.
Section 5. Export
Customer acknowledges that the Equipment may be restricted by the United States Government or by the country in which the Equipment is installed from export to certain countries and certain organizations and individuals, and agrees to comply with such laws. Customer agrees to comply with all applicable laws of all of the countries in which the Equipment may be used by Customer and shall indemnify UKG for any noncompliance which results in damages or liability to UKG. Customer’s obligations hereunder shall survive the termination or expiration of this Agreement.
Section 6. Equipment Support
UKG shall provide Equipment Support Services for Customer's UKG Equipment (referred to below as “Product(s)") if such Equipment Support Services are specified on an Order Form.
6.1 Term
Equipment Support Services have a term of one (1) year commencing upon the expiration of the applicable warranty set forth above. 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. UKG may change the annual Equipment Support Services Fees 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, provided that UKG may increase such Fees by no more than four percent (4%) over the previous year’s Fees for the same quantity of covered Equipment.
6.2 Payment
Customer agrees to pay the Equipment Support Services Fees 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), must be covered by the Equipment Support Services. Customer agrees that if Customer purchases, during the term of the Equipment Support Services, any Products of the same type as those covered by Customer under Equipment Support Services, such additional Products must be covered by the Equipment Support Services.
6.3 UKG will invoice Customer for the annual Equipment Support Charges each year in advance of the Renewal Date. Customer will pay UKG within thirty (30) days of receipt of invoice. In addition to the annual Equipment Support Charges, Customer agrees to pay all applicable taxes, however designated, on the Agreement, and on services rendered, including state and local taxes or excise taxes based on gross revenue, and any taxes or amount in lieu thereof paid or payable by UKG, 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.
6.4. Depot Support Service
6.4.1 Upon the failure of an installed Product, Customer shall notify UKG of such failure and UKG will provide remote support in an attempt to resolve the problem. Those failures determined by UKG to be Product related shall be dispatched to a UKG Depot Repair Center, and Customer will be provided with a Return Material Authorization Number (RMA) for the failed Product if Customer is to return the failed Product to UKG, as reasonably determined by UKG. Customer must return the failed Product with the supplied RMA number. Return and repair procedures for failed Product 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 UKG's then-current Support Services Policies which may be accessed at: https://www.ukg.com/support-policies-and-services ("Support Policies").
6.4.2 Depot Exchange: UKG will provide a replacement for the failed Product at the FRU or subassembly level on an "advanced exchange" basis, utilizing a carrier of UKG's choice. Replacement Product will be shipped the same day, for next business day delivery to Customer's location as further described in the Support Policies. REPLACEMENT PRODUCT(S) MAY BE NEW OR RECONDITIONED. Customer shall specify the address to which the Product is to be shipped. All shipments will include the UKG provided RMA designating the applicable UKG Depot Repair Center, as the recipient. Customer, upon receipt of the replacement Product from UKG, shall package the defective Product in the materials provided by UKG, with the RMA supplied and promptly return failed Products directly to UKG using the carrier specified by UKG.
6.4.3 Depot Repair: It is Customer's obligation 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 Products at all Customer locations. Upon failure of an installed Product, Customer shall install a Spare Product to replace the failed Product. Customer shall also specify the address to which the repaired Product should be return shipped. Customer shall then return the failed Product, with the required RMA, to the applicable UKG Depot Repair Center. Upon receipt of the failed Product, UKG shall repair the failed Product and ship it, within ten (10) business days after receipt, to Customer. UKG shall ship the repaired Product by regular surface transportation to Customer.
6.4.4 Device Software Updates Only: Customer shall be entitled to receive:
- Service packs for the Product (which may contain system software updates, firmware updates, security updates, and feature enhancements) available for download at UKG’s customer portal; and
- Access to the UKG Support Services Center for the logging of requests for assistance downloading service packs for the Products.
6.5 Service packs for the Products are not installed by the UKG Depot Repair Center but are available for download at UKG's customer portal, provided Customer is maintaining the Products under an annual Equipment Support Services plan with UKG.
6.6 UKG warrants that all service packs and firmware updates provided under this Agreement shall materially perform in accordance with the UKG 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 UKG’s repair or replacement of the deficient service pack(s) or firmware update(s), at UKG’s option, provided that Customer’s use, installation and maintenance thereof have conformed to the specifications.
6.7 Responsibilities of Customer
Customer agrees that it shall return failed Products promptly as the failures occur and that it shall not hold failed Products and send failed Product to UKG in "batches" which shall result in a longer turnaround time and surcharge to Customer. In addition, Customer agrees to:
- Maintain the Products in an environment conforming to UKG's published specifications for such Products;
- De-install all failed Products and install all replacement Products in accordance with UKG's published installation guidelines;
- Ensure that the Product(s) are returned to UKG properly packaged; and
- Obtain an RMA before returning any Product to UKG and place the RMA clearly and conspicuously on the outside of the shipping package.
- Customer may only return the specific Product authorized by UKG when issuing the RMA.
6.8 Support Exclusions
6.8.1 Depot Support Service does not include the replacement of "consumables". In addition, Depot Support Service does not include the repair of damages, and Customer will not attempt to return damaged Product, resulting from:
- Any cause external to the Products including, but not limited to, electrical work, fire, flood, water, wind, lightning, transportation, or any act of God;
- Customer's failure to continually provide a suitable installation environment (as indicated in UKG's published installation guidelines) including, but not limited to, adequate electrical power;
- Customer's improper use, relocation, packaging, refinishing, management or supervision of the Product(s) or other failure to use Products in accordance with UKG's published specifications;
- Customer's use of the Products for purposes other than those for which they are designed or the use of accessories or supplies not approved by UKG;
- Government imposed sanctions, rules, regulations or laws preventing the shipment of the Products; or
- Customer's repair, attempted repair or modification of the Products.
6.8.2 Professional Services provided by UKGs in connection with the installation of any software or firmware upgrades, if available, and if requested by Customer, are not covered by Equipment Support Services. Firmware (including equipment service packs), which may be available to resolve a Product issue is not installed by the UKG Depot Repair Center but is available for download at UKG's customer web site provided Customer is maintaining the Product under an annual Equipment Support Services plan with UKG.
6.9 Delivery
All domestic shipments are FOB Destination to/from Customer and UKG with the shipping party bearing all costs and risks of loss, and with title passing upon delivery to the identified destination. All international shipments are DDU (Deliver Duties Unpaid) to the Customer, with Customer responsible for all duties and V.A.T. when sending Product to UKG (DDP). Customer agrees to pay or reimburse UKG for any substantial increase in fuel surcharges which may occur.
6.10 Warranty
UKG warrants that all repairs performed under the Agreement shall be performed in a professional and competent manner. 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.
6.11 Default, Suspension, and Termination
6.11.1 Under the Depot Exchange Support option, UKG may suspend Equipment Support Services if Customer does not ship failed Product to UKG within ten (10) business days of receipt of the Replacement Product. UKG will restore Equipment Support Services upon return of such failed Product or upon payment at the then-prevailing UKG list price for such unreturned failed Product. Equipment Support Services shall not be extended or affected by any such suspension.
6.11.2 Customer may terminate Equipment Support Services if UKG is in default under the Agreement, and such default is not corrected within thirty (30) days after written notice. UKG may terminate Equipment Support Services if Customer defaults under this or any other agreement with UKG, 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.
6.12 Limitation of Remedies The exclusive remedy of Customer and sole liability of UKG shall be replacement of the repaired Product.
Section 7. Finger Scan and Facial Recognition
7.1 For Customer’s use of Equipment containing finger scan sensor and/or facial recognition technology (“FS/FR Equipment”), Customer warrants that it is compliant and will maintain compliance with all applicable biometric privacy laws with respect to its use of FS/FR Equipment. If required by law, Customer further warrants that prior to using FS/FR Equipment it shall: (i) obtain signed releases from employees consenting to the use of the applicable FS/FR Equipment for employee timekeeping purposes; (ii) issue policies to their employees and the public regarding its retention and destruction of the finger scan or facial recognition data, and (iii) ensure that any releases, consents, or policies required by applicable law shall expressly apply to UKG and its authorized subcontractors.
7.2 Customer agrees to defend, hold harmless and indemnify UKG, its employees, directors, parent, subsidiaries and authorized partners and subcontractors (collectively, “UKG Indemnitees”) for any claims, damages, penalties or fines asserted or awarded against a UKG Indemnitee arising out of or relating to Customer’s breach of any of the warranties in section 7.1 above with respect to FS/FR Equipment. Upon receipt of notice of such a claim, Customer shall assume sole control of the defense and settlement of such claim; provided that: (i) UKG shall be entitled to participate in the defense of such claim and to employ counsel at its own expense to assist in the handling of such claim, on a monitoring and a non-controlling basis; (ii) Customer shall not settle any claim on any terms or in any manner that adversely affects the rights of UKG without its prior written consent; and (iii) UKG shall provide reasonable cooperation and assistance at Customer’s sole cost and expense.