Dell products and services shall be subject to Dell's Terms and Conditions of Sale-Direct, which can be found at www.dell.com/terms, and which incorporate Dell's U.S. Return Policy, at www.dell.com/returnpolicy#total . Please read those terms carefully and in their entirety, and note in particular that Dell EqualLogic and EqualLogic-branded products, Dell|EMC and EMC-branded products, PowerVault ML6000 tape libraries, non-Dell-branded enterprise products, enterprise software, and customized hardware or software products may not be returned at any time. Orders also shall be subject to the terms of any applicable service contract(s), which can be found at www.dell.com/servicecontracts.
Dell products and services shall be subject to Dell's Terms and Conditions of Sale-Direct, which can be found at www1.ca.dell.com/content/topics/segtopic.aspx/policy?c=ca&l=en&s=gen&~section=007, and which incorporate Dell's U.S. Return Policy, at www.dell.ca/terms . Please read those terms carefully and in their entirety, and note in particular that Dell EqualLogic and EqualLogic-branded products, Dell|EMC and EMC-branded products, PowerVault ML6000 tape libraries, non-Dell-branded enterprise products, enterprise software, and customized hardware or software products may not be returned at any time. Orders also shall be subject to the terms of any applicable service contract(s), which can be found at www1.ca.dell.com/content/topics/segtopic.aspx/service_support_terms?c=ca&l=en&s=gen.
1. LIMITED WARRANTY - Super Micro Computer, Inc. ("Supermicro") warrants its products, if properly used and installed, to be free from defects in material and workmanship for a period of time detailed below from the date of Supermicro's invoice. A further 90-day warranty grace period is granted upon the respective expiration of the labor and parts warranty period specified herein. This limited warranty applies only to the original purchasers of Supermicro's products who are direct customers or distributors of Supermicro ("Customer").
SuperServer and SuperBlade products**: Supermicro provides a three-year warranty for labor and one-year warranty for parts. This limited warranty includes advance part replacement service covering a period of 1 year from Supermicro invoice date.
Other server products: Special warranty terms shall apply and will be indicated in each specific product purchase orders' corresponding invoices. In the absence of such special warranty terms, the warranty terms set forth above for SuperServer and SuperBlade products shall apply.
Motherboard, Chassis, Power supplies and Super Barebone products: Supermicro provides a three-year warranty for labor and one-year warranty for parts. This limited warranty includes advance part replacement service covering a period of 30 days from Supermicro invoice date.
Upon expiration of the one-year parts warranty, the remaining 2-year labor warranty covers general technical support including, but not limited to, general RMA requests, phone support, one-way shipping and handling, but does not include labor specifically associated with the repair or replacement of out-of-warranty parts for which additional service charges will apply.
If returned products are: a) within the warranty period, b) accompanied by the proper Return Materials Authorization ("RMA") and c) defective as determined by Supermicro; Supermicro will, at its option: 1) repair the defective product within 10 working days, 2) replace the defective product with a refurbished product or 3) issue a credit to the Customer for the current value of the product. For purposes of this Limited Warranty, "refurbished" means a product or part that has been returned to its original specifications. Supermicro has no obligation to repair or replace parts beyond the one-year warranty period; however, Supermicro may repair or replace provided that 1) Customer pays for the cost of obtaining the part(s) and 2) the part(s) are available for purchase.
2. WARRANTY VOID CONDITIONS - This limited warranty does not cover any failure(s) or defect(s) caused by misuse, accident, abnormal or unusually heavy use, improper packaging or handling, neglect, abuse, alteration, improper installation, unauthorized repair or modification, improper testing or causes external to the product such as, but not limited to, excessive heat or humidity, power failures, power surges or acts of God. This limited warranty will be void if evidence is seen of screw holes created by Customer, burned-out chips, more than four wires are broken, evidence of repair work performed or damage caused by a party other than Supermicro. This limited warranty does not cover expendable components, any software supplied by Supermicro, any experimental or developmental products, compatibility issues with other hardware and software products introduced after the time of purchase, or products or accessories not manufactured by Supermicro. Under no circumstances will Supermicro be responsible for other costs associated with product replacement or repair, such as labor, installation or other costs incurred by the Customer.
3. PRODUCT RETURNS - In the event that a product needs to be returned to Supermicro for warranty service, the Customer must first obtain a RMA number from Supermicro. The RMA number must be clearly printed on the outside of the box in which the product is returned. Supermicro will not accept any shipment without an RMA number.
After processing an RMA request, Supermicro reserves the right to request the total cost of the replacement products or the actual products itself if Supermicro later determines it to have sustained damage through actions of the Customer.
4. RMA REQUIREMENTS - The Customer must supply the following information to Supermicro to obtain an RMA number: invoice date, invoice number, product model name, serial number and reason for return. RMA number will become void if the product it covers is not received by Supermicro within 30 days after the RMA number is issued. When returning a product for RMA, Customer must ship with freight prepaid, include in the box a copy of the original invoice and a detailed note describing the problem. Customer must also make sure the RMA number is clearly marked on the outside of the box. All RMAs must be returned in the products' original packaging.
5. RETURN FOR CREDIT - Defective or DOA Products may be returned for credit within 30 days from Supermicro's invoice date. Credit will only be issued if returned products are in brand new condition. Supermicro will charge a restocking fee of an amount no less than 15% of the original purchase price for any returned product that is non-defective or arrives with an incomplete package. Supermicro will allow a 10-day period for shipment of a returned product to reach Supermicro.
6. DOA CONDITIONS - Customer must notify Supermicro according to Sections 3 and 4 above of all DOA ("Dead On Arrival") products within 120 days from the invoice date for advance part replacement service with the exception of Super Server products. Advance part replacement service period for DOA Super Server products is as set forth in Section 1 above.
7. REPLACEMENT CONDITIONS - All product replacements are subject to quantity available in Supermicro stock. If Supermicro does not have stock to replace the returned products, Supermicro shall have at least 30 days to manufacture and replace the returned products.
8. OUT-OF-WARRANTY SERVICE - Upon expiration of the aforementioned limited warranties, Supermicro may provide additional services up to 2 years from the date of expiration subject to additional charges. Supermicro shall have the option to replace defective products with refurbished or functionally equivalent products in the event that Supermicro determines, in its sole discretion, that a repair is impracticable. Customer shall pay for all shipping, service, parts, and other charges associated with out-of-warranty services.
9. CANCELLATIONS - A cancelled order will be subject to a cancellation charge of an amount of 15% of the total order amount.
10. WARRANTY EXCLUSIONS - Supermicro's warranty policy does not include products intended for OEM/ODM distribution or refurbished products and does not cover server semiconductor components and third party components including but not limited to CPU socket pins, chipsets and processors.
11. DISCLAIMER OF WARRANTY - Except as specified in this warranty, Supermicro disclaims all other warranties, express or implied including, but not limited to any implied warranties of merchantability or fitness for a particular purpose. To the extent an implied warranty cannot be excluded, such warranty is limited in duration to the express warranty period. Some jurisdictions do not allow the exclusion of implied warranties or limitations on how long an implied warranty lasts, the above limitations may not apply.
12. LIMITATION OF LIABILITY - Supermicro's liability under this, or any other warranty, implied or express, is limited to repair, replacement or refund. In no event will Supermicro be liable for direct, special, incidental, or consequential damages however caused and regardless of the theory of liability including, but not limited to, lost profits, downtime, goodwill, damage to or replacement of equipment and property, and any costs of recovering, reprogramming, or reproducing any document or data stored in or used with a system containing this product. Some states or jurisdictions do not allow limitation or exclusion of consequential or incidental damages thus the above limitation may not apply.
For more information visit http://www.supermicro.com/support/Warranty/
This Agreement will apply to the sale of goods and services and the license of software from SolidFire, Inc. (“SolidFire”) to its customer (“Customer”). This Agreement represents the entire agreement between the parties with respect to the subject matter addressed in this Agreement, and is in lieu of and supersedes all prior agreements, representations, negotiations, or other understandings of the parties with respect to such subject matter, whether written or oral, except for any currently-in-effect agreements executed by both SolidFire and Customer that are intended to apply to the subject matter addressed in this Agreement.
The parties agree as follows:
1.1 “Agreement” means this Master Terms Agreement, any exhibits and addendum, and any Purchase Order (defined below).
1.2 “Documentation” means all user manuals provided to Customer with the Software or a Storage System in either electronic, online help files or hard copy format.
1.3 “Equipment” means the storage appliance equipment, identified in the applicable Purchase Order.
1.4 “Purchase Order” means a purchase order which has been mutually agreed to by the parties that specifies the products and services ordered by Customer under this Agreement, including the type or quantity of items, and the fees for such items.
1.5 “Software” means the SolidFire software programs embedded in the Equipment, and any Updates and Upgrades (as defined in Exhibit A) that SolidFire may provide to Customer in connection with Support and Maintenance Services.
1.6 “Storage System” means collectively, the Equipment and Software.
1.7 “Support and Maintenance Services” means the support and maintenance services for the Storage Systems, as described in Exhibit A attached to this Agreement and incorporated herein.
2. ORDERING AND DELIVERY.
2.1 Order Documents. This Agreement governs Customer’s purchase of Storage Systems and services from SolidFire. Any standard terms associated with a Customer purchase order or other order document (e.g., general terms and conditions attached to the purchase order form) will be not binding on the parties and of no consequence whatsoever in interpreting the parties’ legal rights and responsibilities as they pertain to Storage Systems or services provided under this Agreement. No such materials will be deemed to modify, add to, or supersede any provision of this Agreement. Neither party will have any obligations or liability to the other party with respect to any purchase orders that are not accepted by both parties. To the extent of any contradictions or inconsistencies between the following documents that make up the Agreement, the following order of precedence will apply to the interpretation of the various documents: (a) these Master Terms; (b) related exhibits and addendum; and (c) Purchase Order.
2.2 Shipment and Delivery Terms. Upon agreement of a Purchase Order, SolidFire will establish a shipping date for the relevant Equipment as close as practicable to Customer’s requested date, subject to SolidFire’s available inventory and then-current lead time requirements. SolidFire may allocate its then-current inventory and other resources in its discretion. SolidFire shall not be liable for any damage or penalty arising from delay in delivery or from failure to give notice of any delay. SolidFire’s delivery obligations include providing the appropriate transit insurance on the Equipment that is to be delivered, and further, with respect to such Equipment, delivery will be deemed complete upon tender to a commercial carrier for shipment. For shipments outside of the United States, (1) such shipments will be made CIP (Carriage and Insurance Paid To) in accordance with Incoterms 2010; (2) Customer shall be the importer of record; and (3) Customer shall provide SolidFire with Customer’s associated VAT registration number prior to shipment. Risk of loss or damage and title to Equipment (but not any Software, which is licensed hereunder and not sold to Customer) shall pass to Customer upon initial delivery of Equipment to carrier. All delivered Equipment shall be deemed accepted by Customer upon such delivery.
2.3 Installation. Unless otherwise agreed in writing, Customer is solely responsible for installing Equipment on its assets. Customer shall strictly abide by any SolidFire installation procedures provided with the Equipment or otherwise provided to Customer by SolidFire. SolidFire reserves the right to update such procedures from time to time.
3. USE OF STORAGE SYSTEM.
3.1 Embedded Software License. Subject to the terms and conditions of this Agreement, SolidFire grants Customer a perpetual, paid-up, non-exclusive, non-transferable (except as otherwise expressly permitted in this Agreement) license solely to use the Software as embedded in the Equipment, solely in connection with the use of the accompanying Equipment, and solely in accordance with any applicable Documentation.
3.2 Open Source. Certain items of software included with the Software are subject to “open source” or “free software” licenses (“Open Source Software”). Some of the Open Source Software is owned by third parties. The Open Source Software is not subject to the terms and conditions of this section. Instead, each item of Open Source Software is licensed under the terms of the end-user license that accompanies such Open Source Software. Nothing in this document limits Customer rights under, or grants Customer rights that supersede, the terms and conditions of any applicable end user license for the Open Source Software. In particular, nothing in this Agreement restricts Customer’s right to copy, modify, and distribute that Open Source Software subject to the terms of the applicable end user license.
3.4 No Source Code. Nothing in this Agreement shall be construed to give Customer a right to use, or otherwise obtain access to, any source code from which the Software or any portion thereof is compiled or interpreted.
4. FEES AND PAYMENTS.
4.1 Prices. In consideration for the sale of the Equipment, license of the Software and provision of any services under this Agreement, Customer agrees to pay to SolidFire the agreed upon prices for the Storage System and services set forth in the applicable Purchase Order. Customer shall additionally pay all freight charges, insurance, applicable taxes, and other shipping expenses applicable to delivery of such Equipment, as well as expenses for any special packing requested by Customer. All fees paid by Customer shall be in United States dollars and are non-refundable, except as expressly set forth in this Agreement.
4.2 Payment. Except as otherwise provided in any applicable Purchase Order, all amounts due hereunder shall be due within 30 days after the relevant invoice date. All payments by Customer for a given invoice shall be made in accordance with the invoice instructions. All fees and other charges set forth herein are exclusive of any applicable taxes, assessments, surcharges, levies, export and import fees, customs duties or similar items assessed by a governmental body (other than taxes on the net income of SolidFire) on products and services now or hereafter sold or provided pursuant to this Agreement, which taxes shall be paid by Customer. SolidFire reserves the right to charge, and Customer agrees to pay, a late charge equal to the lesser of one and one-half percent (1½%) per month or the maximum amount permitted by applicable law on any amount that is not the subject of a good faith dispute that is unpaid on the due date, and on any other outstanding balance. Customer must notify SolidFire in writing of any dispute or disagreement with invoiced charges within thirty (30) days after the date of invoice. Absent such notice, Customer shall be deemed to have agreed to the charges as invoiced after the expiration of such time period.
4.3 Security Interest. As collateral security for all of Customer’s payment obligations under this Agreement, Customer hereby grants SolidFire a first priority security interest in the Storage System purchased or to be purchased hereunder to the maximum extent permitted by law. Customer shall, at SolidFire’s expense, take all commercially reasonable action required by SolidFire to further evidence and/or perfect such security interest, including without limitation executing and delivering a separate security agreement and UCC-1 financing statement.
4.4 Billing Agent. Customer may enable certain third parties providing Equipment financing for Customer to be Customer’s billing agent in order to perform Customer’s payment obligations set forth in this Section 4 (“Billing Agent”). SolidFire may invoice such Billing Agent directly as mutually agreed to by Customer and SolidFire. Notwithstanding any such invoicing to any such Billing Agent, Customer shall remain fully responsible for its compliance with the payment obligations under this Agreement, and any breach of such payment obligations by such Billing Agent shall be deemed a breach by Customer for which Customer shall be fully responsible. If Customer utilizes a Billing Agent, SolidFire may indicate that the sale of the Equipment under this Agreement is made to such Billing Agent, if required by such Billing Agent.
5.1 Confidential Information. The parties acknowledge that during the performance of this Agreement, each party will have access to certain of the other party’s Confidential Information (defined below) or Confidential Information of third parties that the Disclosing Party is required to maintain as confidential. Both parties agree that all items of Confidential Information are proprietary to the Disclosing Party or such third party, as applicable, and shall remain the sole property of the Disclosing Party or such third party. “Confidential Information” means any information that one party (the “Disclosing Party”) discloses or makes available to the other party (the “Receiving Party”) under this Agreement, whether oral, written, graphic or in machine-readable form, which has commercial, technical and/or other value in the Disclosing Party’s business and is confidential or proprietary in nature, including, by way of example, trade secrets, patents, patent applications, copyrights, know-how, processes, ideas, inventions (whether patentable or not), research, formulas, computer programs, databases, technical drawings, designs, algorithms, technology, circuits, layouts, interfaces, materials, schematics, names and expertise of employees and consultants, any other technical, business, financial, customer and product development plans, product roadmaps, quotes and pricing information, sales information, supplier information, forecasts, strategies and other confidential information.
5.2 Mutual Confidentiality Obligations. The Receiving Party agrees: (a) to use the Confidential Information only for the purposes described herein; (b) not to reproduce the Confidential Information and will hold in confidence and protect the Confidential Information from dissemination to, and use by, any third party; (c) that, except as required in performance of its obligations under this Agreement, the Receiving Party will not create any derivative work from Confidential Information disclosed; (d) to restrict access to the Confidential Information to such of its personnel, agents, and/or consultants (collectively, “Representatives”), if any, who have a need to have access and who have been advised of and have agreed in writing or are otherwise bound to treat such information in accordance with the terms of this Agreement; (e) to take reasonable steps to protect the Disclosing Party’s Confidential Information that are at least as protective as those the Receiving Party takes to protect its own Confidential Information; (f) to notify the Disclosing Party upon discovery of any unauthorized use or disclosure of its Confidential Information and cooperate with the Disclosing Party to help regain control of the Confidential Information; and (g) to return or destroy all of the Disclosing Party’s Confidential Information in its possession upon the Disclosing Party’s request or the termination or expiration of this Agreement. The Receiving Party will be responsible for its Representatives’ use of the Confidential Information.
5.3 Confidentiality Exceptions.Notwithstanding the foregoing, the provisions of this section shall not apply to Confidential Information that (a) is publicly available or in the public domain at the time disclosed; (b) is or becomes publicly available or enters the public domain through no fault of the Receiving Party; (c) is rightfully communicated to the Receiving Party by persons not bound by confidentiality obligations with respect thereto; (d) is already in the Receiving Party’s possession free of any confidentiality obligations with respect thereto at the time of disclosure; (e) is independently developed by the Receiving Party as evidenced by written records; or (f) is Feedback (as defined below). Notwithstanding the foregoing, the Receiving Party may disclose Confidential Information to the limited extent required in order to comply with the order of a court or other governmental body, or as otherwise necessary to comply with applicable law, provided that the Receiving Party notifies the Disclosing Party of such required disclosure promptly and in writing and cooperates with the Disclosing Party, at the Disclosing Party’s request and expense, in any lawful action to contest or limit the scope of such required disclosure.
5.4 Duration of Confidentiality Obligations. The confidentiality obligations set forth above shall remain in effect during the term of this Agreement and for a period of three (3) years thereafter; provided, however, confidentiality obligations with respect to the Disclosing Party’s trade secrets shall survive for so long as such Confidential Information constitutes a trade secret under applicable law.
5.5 Feedback. “Feedback” means information, comments, suggestions, and other feedback regarding the use, operation, functionality, and characteristics of the Storage System or SolidFire’s services. Feedback is voluntary, and is not confidential, and SolidFire may use any Feedback it receives for any purpose without obligation of any kind, except that SolidFire will not disclose the source of Feedback without the consent of Customer.
6. OWNERSHIP. Customer acknowledges that SolidFire and its licensors own all right, title, and interest, including all patent, copyright, trade secret, trademark, moral rights and other intellectual property rights (“Intellectual Property Rights”) in and to the Storage System (including all components thereof), all software of SolidFire provided or made accessible hereunder, any databases created by SolidFire using data processed under this Agreement (including any data models, structures, or data contained therein), and that such items reflect SolidFire’s selection, arrangement, coordination, and expression of such information and may contain confidential information, trade secrets, and/or patented technology. Customer shall not engage in any act or omission that would impair SolidFire’s and/or its licensors’ Intellectual Property Rights in any Storage System. SolidFire reserves all rights in such items except the limited rights granted to Customer hereunder.
7. CASE STUDY LOGO LICENSE. By purchasing a Storage System, Customer grants SolidFire a revocable, nonexclusive, non-transferable limited license to use Customer’s name and logo for the sole purpose of publishing a customer case study on SolidFire’s website. SolidFire shall not alter Customer’s logo. Customer may revoke this license at any time by providing written notice to SolidFire.
8. WARRANTY DISCLAIMER. EXCEPT AS OTHERWISE EXPRESSLY SET FORTH IN THIS AGREEMENT, THE STORAGE SYSTEM AND ANY OTHER MATERIALS, SOFTWARE, DATA AND/OR SERVICES PROVIDED BY SOLIDFIRE ARE PROVIDED “AS IS” AND “WITH ALL FAULTS,” AND SOLIDFIRE EXPRESSLY DISCLAIMS ALL OTHER WARRANTIES OF ANY KIND OR NATURE, WHETHER EXPRESS, IMPLIED OR STATUTORY, INCLUDING, BUT NOT LIMITED TO, ANY WARRANTIES OF OPERABILITY, CONDITION, TITLE, NON-INFRINGEMENT, NONINTERFERENCE, QUIET ENJOYMENT, VALUE, ACCURACY OF DATA, OR QUALITY, AS WELL AS ANY WARRANTIES OF MERCHANTABILITY, SYSTEM INTEGRATION, WORKMANSHIP, SUITABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR THE ABSENCE OF ANY DEFECTS THEREIN, WHETHER LATENT OR PATENT.
9. LIMITATION OF LIABILITY.
9.1 SOLIDFIRE EXPLICITLY DISCLAIMS ANY LIABILITY RELATED TO ANY DATA INCLUDING THE HOSTING OR SECURITY THEREOF. IN NO EVENT SHALL SOLIDFIRE BE LIABLE TO CUSTOMER FOR ANY INCIDENTAL, CONSEQUENTIAL, SPECIAL, PUNITIVE, EXEMPLARY OR INDIRECT DAMAGES, OR FOR ANY LOST PROFITS, COSTS OF DELAY, ANY FAILURE OF DELIVERY, BUSINESS INTERRUPTION, COSTS OF LOST OR DAMAGED DATA OR DOCUMENTATION OR LIABILITIES TO THIRD PARTIES, EVEN IF ADVISED OF THE POSSIBILITY OF THE SAME, HOWEVER CAUSED AND REGARDLESS OF THEORY OF LIABILITY, WHETHER TORT, CONTRACT, OR STRICT LIABILITY.
9.2 SolidFire’s liability for any other damages asserted by Customer shall be limited to Customer’s actual damages and shall in no event exceed the amounts paid to SolidFire by Customer under this Agreement in the twelve (12) months prior to the date of a claim by Customer. To the extent that any service, equipment, or facilities provided hereunder are provided by third parties pursuant to an arrangement with SolidFire, the disclaimers and limitations of SolidFire’s liability, as stated in this Section shall extend fully to such third parties.
9.3 The disclaimers, exclusions and limitations of liability set forth in this Agreement form an essential basis of the bargain between the parties, and, absent any of such disclaimers, exclusions or limitations of liability, the provisions of this Agreement, including, without limitation, the economic terms, would be substantially different.
10.1 SolidFire shall defend Customer against any claim or action against Customer brought by a third party to the extent that such claim or action is based upon an allegation that the Storage System, as provided by SolidFire, infringes or misappropriates any issued U.S. patent, copyright or any trade secrets under U.S. law (“Claim”) and SolidFire shall indemnify and hold Customer harmless from and against those damages, liabilities, costs and reasonable expenses (including reasonable attorneys’ fees) attributable to any such Claim or those costs and damages agreed to in a monetary settlement of such action, The foregoing obligations are conditioned on Customer giving SolidFire: (i) prompt written notice of such Claim; (ii) sole control over the defense and settlement of such Claim; and (iii) proper and full information and assistance to settle and/or defend such Claim. Notwithstanding the foregoing, SolidFire shall have no obligation or liability to the extent that the alleged infringement arises from (1) the combination, operation, or use of the Storage System with products not furnished by SolidFire; (2) alterations to the Storage System, which alterations are not made by SolidFire; (3) failure to use updates to any Storage System provided by SolidFire; or (4) use of the Storage System in a manner for which it was not designed, as evidenced by any Documentation.
10.2 In the event of an infringement action against SolidFire with respect to any materials or services provided by SolidFire hereunder, or in the event that SolidFire believes that such an action is likely, SolidFire may, at its option (i) appropriately modify such materials and/or services so that they become non-infringing, or substitute functionally equivalent materials or services; (ii) obtain a license to the applicable third-party intellectual property rights; or (iii) terminate this Agreement on written notice to Customer. The obligations set forth in this Section 10 shall constitute SolidFire’s entire liability and Customer’s sole remedy for any actual or alleged infringement or misappropriation.
11. TERM AND TERMINATION.
11.1 Agreement. This Agreement shall continue until terminated by either party pursuant to this Agreement (“Term”).
11.2 Termination for Breach. Either party may terminate this Agreement and/or any applicable Purchase Order immediately upon written notice in the event that the other party materially breaches this Agreement and thereafter (i) in the case of material breach resulting from non-payment of amounts due hereunder, has failed to pay such amounts within ten (10) days after receiving written notice thereof; or (ii) has failed to cure any other material breach (or to commence diligent efforts to cure such breach that are reasonably acceptable to the terminating party) within thirty (30) days after receiving written notice thereof.
11.3 Accrued Obligations. Termination of this Agreement and/or any applicable Purchase Order shall not release the parties from any liability which at the time of termination has already accrued or which thereafter may accrue with respect to any act or omission before termination, or from any obligation which is expressly stated in this Agreement or Purchase Order to survive termination.
11.4 Cumulative Remedies. Except as expressly set forth in this Agreement, termination of this Agreement or Purchase Order, regardless of cause or nature, shall be without prejudice to any other rights or remedies of the parties and shall be without liability for any loss or damage occasioned thereby.
11.5 Effect of Termination. Upon termination of this Agreement for any reason, any amounts owed to SolidFire under this Agreement before such termination will be immediately due and payable. Upon any termination: (a) each party shall (i) immediately discontinue any use of the other party’s Confidential Information, (ii) delete any copies of the other party’s Confidential Information from computer storage or any other media, including, without limitation, online and off-line libraries, and (iii) return to the other party or, at the other party’s option, destroy, any of the other party’s Confidential Information remaining in tangible form; (b) Customer shall promptly pay to SolidFire all amounts due and payable hereunder.
12.1 Applicable Law. This Agreement, and the rights and obligations of the parties hereunder, shall be construed in accordance with, and shall be governed by, the laws of the State of Colorado, without giving effect to the principles of conflict of laws thereof. The parties agree that the United Nations Convention on Contracts for the International Sale of Goods shall not apply to this Agreement.
12.2 Force Majeure. SolidFire shall be excused from performance of its obligations under this Agreement and any applicable Purchase Order if such a failure to perform results from compliance with any requirement of applicable law, acts of god, fire, strike, embargo, terrorist attack, war, insurrection or riot or other causes beyond the reasonable control of SolidFire. Any delay resulting from any of such causes shall extend performance accordingly or excuse performance, in whole or in part, as may be reasonable under the circumstances.
12.3 Notices. All notices and other communications hereunder shall be given in writing and shall be deemed to have been duly given and effective (i) upon receipt if delivered in person; (ii) upon delivery after deposit prepaid with a national overnight express delivery service; or (iii) three (3) days after deposit in the United States certified mail, postage prepaid, return receipt requested to the addresses set forth on the signature page or to such other address as a party may specify in writing.
12.4 Survival of Obligations. The following provisions shall survive termination or expiration of this Agreement: Sections 1, 2.1, 3.2, 3.3, 4.2, 5, 6, 7, 9, 10, 11.3, 11.4, 11.5 and 12.
12.5 Assignment. Customer shall not assign its rights or delegate its obligations hereunder or under any Purchase Order or Agreement without SolidFire’s prior written consent, and, absent such consent, any purported assignment or delegation by Customer shall be null, void and of no effect. SolidFire shall have the right to assign this Agreement to any successor to its business or assets to which this Agreement relates, whether by merger, sale of assets, sale of stock, reorganization or otherwise. To the extent not prohibited hereby, this Agreement and any Purchase Order shall be binding upon and inure to the benefit of SolidFire and Customer and their successors and permitted assigns.
12.6 Independent Contractors. Customer and SolidFire acknowledge and agree that the relationship arising from this Agreement does not constitute or create any joint venture, partnership, employment relationship or franchise between them.
12.7 Amendment. No amendment to this Agreement shall be valid unless such amendment (a) is made in writing, (b) expressly references this Agreement, and (c) is signed by the authorized representatives of the parties.
12.8 Waiver. The waiver by either party of a breach of any provision of this Agreement shall not operate or be construed as a waiver of the same or any other breach by that party, whether prior or subsequent. Any waiver under this Agreement must be in writing and signed by an authorized representative of the waiving party.
12.9 Severability. If any term or provision of this Agreement is determined by a court of competent jurisdiction to be illegal, invalid, or unenforceable, the legality, validity, or enforceability of the remainder of this Agreement or Purchase Order shall not thereby be affected, and this Agreement shall be deemed amended to the extent necessary to delete such provision.
12.10 Causes of Action. No action arising from or related to this Agreement may be brought by either party more than one (1) year after the cause of action has accrued, except that an action for non-payment may be brought within two (2) years after the date such amount was due.
12.11 Attorney Fees. The prevailing party in any legal action to enforce or interpret this Agreement shall be entitled to recover reasonable legal fees and costs (including the reasonable expenses of expert witnesses and other professionals).
12.12 Government Rights. The Software is a “commercial item” as that term is defined in 48 C.F.R. 2.101, consisting of “commercial computer software” and “commercial computer software documentation” as such terms are used in 48 C.F.R. 12.212. Consistent with 48 C.F.R. 12.212 and 48 C.F.R. 227.7202-1 through 227.7202-4, all U.S. Government and users acquire the Software with only those rights set forth herein.
12.13 Export Regulations. Both parties must adhere to all applicable laws, regulations and rules relating to the export of commodities, technology, software, personal information and technical data (whether or not Confidential Information), and may not export or re-export any Confidential Information, commodities, technology, software, personal information or technical data, or any direct product of such personal information or technical data, except in accordance with such applicable laws, regulations and rules.
Support and Maintenance Services
Subject to the terms and conditions of this Agreement and this Exhibit, including payment of all applicable fees, SolidFire shall provide Storage System support and maintenance services in accordance with the terms and conditions set forth below (collectively, “Support and Maintenance Services”). SolidFire may also charge additional license and support fees for third party products and/or additional functionality or features incorporated in a Software Upgrade.
1.1 “Software Error” means any reproducible material nonconformity of the Software with the Documentation.
1.2 “Software Update” means any version of the Software, developed subsequent to the date the Equipment is delivered to Customer, which implements improvements or augmentations, or which corrects failures of the Software materially to conform to the then-current Documentation.
1.3 “Software Upgrade” means any version of the Software, developed subsequent to the date the Equipment is delivered to Customer, which implements additional features or functions, or which produces substantial and material improvements with respect to the utility and efficiency of the Software, but which does not constitute merely a Software Update (as reasonably determined by SolidFire), and which is not marketed by SolidFire as a separate product and/or service.
2. SERVICE LEVELS. SolidFire offers different levels of Support and Maintenance Services, as outlined generally below. SolidFire may modify its service level offerings at any time, provided that any modification will not affect SolidFire’s obligations under a pre-existing Purchase Order.
3.1 Initial Term. In conjunction with its initial purchase of a Storage System, Customer shall purchase one year of Support and Maintenance Services, and may purchase additional years (“Initial Support and Maintenance”). The Initial Support and Maintenance Term will commence on the date that SolidFire achieves its delivery obligation.
3.2 Renewal. Upon the expiration of the Initial Support and Maintenance term, the parties may agree to renew the Support and Maintenance Services term for successive one-year terms (each such one-year renewal term being deemed an “Annual Maintenance Term”), provided that SolidFire shall have the option to modify the rates and prices with respect to any renewal term by notifying Customer of such new rates and prices at least 90 days prior to the commencement of such renewal term.
3.3 Reinstatement. In the event that Customer elects not to renew Support and Maintenance Services as provided under Section 3.2, Customer may subsequently renew and reinstate Support and Maintenance Services at any time during the Term of this Agreement upon payment of a reinstatement fee of 150% of SolidFire’s then-current rates (i.e., applicable as of the date of reinstatement) due under this Agreement as if the Support and Maintenance Services had been renewed for each Annual Maintenance Term prior to the date of reinstatement; provided that Customer provides SolidFire with reasonable access to the Storage System and SolidFire confirms that the Storage System is eligible for Support and Maintenance Services.
4. ORDERING. Any purchase of Support and Maintenance Services must be specifically referenced and identified on a Purchase Order, including the service level, term, and pricing.
5. SOFTWARE SUPPORT.
5.1 Error Corrections. Provided that Customer has paid all applicable fees, SolidFire will use commercially reasonable efforts to adapt, re-configure or re-program the Software, as applicable, to correct in a timely fashion any Software Errors reported to SolidFire by Eligible Customer Personnel (defined below), provided that if SolidFire determines in good faith that any such Software Error is the result of errors or misstatements in the Documentation, SolidFire may correct such non-conformity solely by amending the Documentation, as necessary, and further provided that any failure or inability by SolidFire to correct any such Software Error, or failure or inability to do so in a timely fashion, will in no event be deemed a breach of SolidFire’s obligations hereunder.
5.2 Procedural Workarounds. In the event that SolidFire fails or is unable to correct any Software Error, as required by this Agreement, SolidFire will use commercially reasonable efforts to develop in a timely fashion procedures or routines, for use by end users of the Software, which, when employed in the regular operation of, or access to, the Software, will avoid or substantially diminish the practical adverse effects of the relevant Software Error, provided that any failure or inability by SolidFire to develop any such procedure or routine, or failure or inability to do so in a timely fashion, will in no event be deemed a breach of SolidFire’s obligations hereunder.
5.3 Software Updates; Software Upgrades. From time to time SolidFire may, in its discretion, develop Software Updates and/or Software Upgrades. Provided that Customer has paid all applicable fees, SolidFire will make such Software Updates and/or Software Upgrades available to Customer, by the means or methods reasonably selected by SolidFire and agreed upon by Customer. Any such Software Updates and/or Software Upgrades provided hereunder will be deemed to constitute part of the relevant Software and will be subject to all the terms and provisions hereof, including, without limitation, terms and provisions related to licenses, usage restrictions and ownership of such Software.
6. ELIGIBLE CUSTOMER PERSONNEL. Subject to Customer’s payment of the applicable fees, Customer may designate in writing to SolidFire Customer personnel for purposes of obtaining Support and Maintenance Services (“Eligible Customer Personnel”). SolidFire shall have no obligation to provide Support and Maintenance Services, by any means, to any entity or individual other than Eligible Customer Personnel.
7. ACCESS. Customer shall provide such information and/or access to Customer resources as SolidFire may reasonably require in order to provide Support and Maintenance Services and Storage System monitoring under this Agreement, including, without limitation: remote access by SolidFire employees, remote access by monitoring software and support diagnostics, and/or remote access by representatives (including third party subcontractors) to the Storage System or Customer server(s) via the internet or other means mutually agreed to by the parties, access to Customer facilities, and/or access to, and assistance of, Customer personnel who possess information required by SolidFire for purposes of performing its obligations hereunder. SolidFire shall be excused from any non-performance of its obligations hereunder to the extent any such non-performance is attributable to Customer’s failure to perform its obligations under this section.
8. LIMITATIONS TO SUPPORT AND MAINTENANCE SERVICES.
8.1 Exemptions. Unless otherwise agreed by the parties, SolidFire shall have no obligation to provide Support and Maintenance Services with respect to any Software Error resulting from (i) use of the Software other than according to the terms of this Agreement, as applicable; (ii) modification of the Software by Customer or any third party, except as expressly permitted in writing by SolidFire; or (iii) any combination or integration of the Software with hardware, software and/or technology not provided by SolidFire.
8.2 Version Requirements. Customer agrees that Customer may be required to upgrade to the most recent Software Upgrade in order to receive Support and Maintenance Services. For example, if the most recent version of the Software available to SolidFire customers is version 6.0 and Customer places a support request based on Customer’s use of version 5.0, SolidFire may require Customer to install the Software Upgrade to version 6.0 prior to providing any Support and Maintenance Services.
8.3 General Protection of SolidFire Intellectual Property. SolidFire shall not be required to provide Support and Maintenance Services to the extent the provision thereof might reasonably be expected to jeopardize or harm SolidFire’s rights in any intellectual property, or reveal trade secrets or other proprietary information of SolidFire not generally available to the public or to end users of the Software.
8.4 Compliance with Third-Party Constraints. SolidFire shall not be required to provide Support and Maintenance Services to the extent the provision thereof would violate SolidFire’s obligations to its third party licensors and suppliers with respect to such third parties’ intellectual property
For more information, visit http://www.solidfire.com/master-terms-agreement/