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BROCADE MASTER TERMS & CONDITIONS OF PURCHASE – GENERAL TERMS
THIS OFFER EXPRESSLY LIMITS ACCEPTANCE TO THE TERMS AND CONDITIONS OF PURCHASE EXPRESSLY SET FORTH BELOW UNLESS YOU HAVE A SEPARATE AGREEMENT WITH BROCADE. BROCADE EXPRESSLY REJECTS ANY TERMS OR CONDITIONS THAT MAY HAVE BEEN DISCUSSED OR PROPOSED IN PRIOR NEGOTIATIONS OR COMMUNICATIONS. YOU MAY ONLY ACCEPT THIS OFFER AND ENTER INTO A CONTRACT BY AGREEING TO THE MASTER TERMS AND CONDITIONS OF PURCHASE CONTAINED BELOW. ANY TERMS OR CONDITIONS THAT ARE ADDITIONAL OR DIFFERENT FROM THOSE CONTAINED IN THE MASTER TERMS AND CONDITIONS OF PURCHASE MAY ONLY BECOME PART OF A CONTRACT BY WAY OF A SEPARATE WRITING, SIGNED BY BOTH PARTIES.
1. TERMS AND CONDITIONS OF PURCHASE
1.1 Introduction. The Brocade Master Terms and Conditions of Purchase (the “Brocade Terms”) consist of the terms below, the applicable Hardware Terms, Software Terms, Support Terms, and Services Terms referenced below, and any document incorporated by reference in any of them.
The Brocade Terms become effective at the time(s) described in Section 2 below, and when effective form a legally binding agreement between you and Brocade. In the event of a conflict between the documents that comprise the agreement they will take precedence in the following order: (1) the applicable Hardware Terms, Software Terms, Support Terms, or Service Terms; (2) these general terms, and (3) the quote or order. If you signed an agreement with Brocade or with a distributor or reseller authorized by Brocade, the provisions of your purchase agreement with Brocade or the distributor or reseller authorized by Brocade shall prevail over the Brocade Terms.
1.2 Definitions. “Brocade” means Brocade Communications Systems, Inc. unless the order is to be fully performed outside of the United States, in which case “Brocade” means Brocade Communications Switzerland SarL. “Deliverables” means the materials, including reports, studies, base cases, drawings, findings, software, manuals, procedures, and recommendations that Brocade delivers to you as part of Services under a statement of work. “Hardware” means computer hardware, related devices and other accessories including all embedded components, and including firmware and other embedded software. “Products” means Brocade’s Hardware products or Software products, or both. “Services” means any and all services, support, maintenance, training, education provided by Brocade other than Support provided pursuant to a Support Plan. “Software” means any computer or program code, provided by Brocade, as well as the related media and related user materials, whether printed, online or in other electronic form, including copies of the code and related materials. Software includes, without limitation, firmware and other embedded software, stand-alone software, and software provided in connection with Hardware or Services or as a Deliverable. “Supplemental Terms” refers to the Hardware Terms, Software Terms, Support Terms, and Services Terms, collectively. “Support” means technical assistance, maintenance and other services provided pursuant to a Support Plan. “Support Plan” means a subscription to a Brocade-defined plan for technical assistance, maintenance and like services in connection with Brocade’s Products as further defined in the Support Terms. “Third Party Products” means any products, software, or services that are provided or distributed by a third party, are distributed by Brocade but under the third party’s brand name, or are distributed by Brocade but are provided pursuant to separate legal terms and conditions that are intended to be binding between you and the third party.
2. QUOTES & ORDERS
2.1 Quotes. If Brocade provides you a quote, the quoted prices are effective until the expiration date of the quote, but may change due to shortages in materials or resources, increases in the cost of manufacturing, or other factors. Brocade may revise or discontinue Products, Support Plans, or Services or rescind Third Party Product offerings at any time without prior notice. Changes may occur after you place an order but before Brocade ships the Product or performs the Support or Service. As a result, the Products, Support, Services and Third Party Products you receive might display minor differences from those ordered.
2.2 Orders. The Brocade Terms are effective upon the first to occur of : (i) your issuance of a purchase order or “PO” that references the Brocade Terms, or that references a Brocade quote by the quote number, (ii) your acceptance of these terms in writing or by “click through” assent, (iii) your execution of a statement of work that references these Brocade Terms, (iv) your download and use of the Software, (v) issuance of an entitlement email or access code to Software or firmware by Brocade, or (vi) if you purchased through a reseller, your agreement with the reseller that references the Brocade Terms. If you purchased through a reseller or distributor, final prices and terms of sale will be as agreed between you and the reseller or distributor; however, the Brocade Terms apply to your possession and use of Products, Support, Services, and Third Party Products provided by Brocade. Brocade may accept, reject or cancel your order for any reason in its sole discretion. Availability of Products, Support Plans, Services, and Third Party Products and their respective offers may vary by location. Brocade is not responsible for pricing, typographical or other errors and reserves the right to cancel any orders arising from such errors. Acceptance of an order is independent and separate from acceptance or rejection of any other order. Each PO will include as applicable (a) the Brocade part number and product description; (b) the quantity of each Product, Support Plan or Service to be purchased; (c) routing instructions; (d) the desired shipment date for Hardware or the desired delivery date for Software; (e) a ship to address; (f) a valid email address, and (g) physical address for invoicing purposes and (h) the Brocade quote or proposal number.
2.3 Your Order May Not Vary Brocade Terms. Any provisions in your order that purport to modify or supplement the Brocade Terms will have no force or effect whatsoever. If you do not wish for your purchases to be subject to the Brocade Terms, then you must contact your Brocade sales representative to discuss your request.
2.4 Third Party Products. If your order includes Third Party Products, Brocade is serving as an order and billing conduit for your convenience. Orders for Third Party Products are subject to availability and are cancellable by Brocade. Third Party Products are provided by the third party and not Brocade. Your purchase and use of such Third Party Products shall be subject to the third party’s terms and conditions in addition to the Brocade Terms. Brocade is not responsible for determining whether any Third Party Product, however used, satisfies the local regulatory requirements of the country to which such Third Party Products are to be delivered or performed.
2.5 Amendments. The Brocade Terms may be modified only by a written amendment that expressly references the applicable order and that is signed by you and Brocade.
3.1 Payments; Payment Terms. Unless Brocade requires pre-payment or unless otherwise stated on the order confirmation or invoice from Brocade, you shall pay amounts due and payable to Brocade within thirty (30) days of the date of the invoice using the payment method agreed upon by Brocade. If credit and credit terms have been agreed to by Brocade, then the credit is provided as of the due date, and any credit charges will be applied as of that date. Brocade is under no obligation to offer, and may revoke, credit or credit terms in its sole discretion. Payment shall be made to the applicable Brocade entity named on the order. In addition to any other remedy available to Brocade for late payment, Brocade may charge interest on overdue amounts at the rate of one and one half percent (1.5%) per month, or the maximum rate allowed by law, whichever is less, for each month, or partial month, calculated from the payment due date. You must pay invoiced amount to the Brocade entity identified in the invoice. Unless otherwise specified in the applicable Brocade quotation or proposal, all payments are to be made in United States Dollars. Brocade may invoice parts of an order separately or together in one invoice. If you purchase a multi-year Software license and related Support Plan, and Brocade or the third party licensor of the software agree to annualize your purchase over the term of the license, you agree to make all annual payments in full and such purchase is non-cancellable over the term of the license. Any assignment of your payment obligations to a third-party financing company must be approved in advance in writing by Brocade, and Brocade’s approval will not excuse you from your obligations under the Brocade Terms. Brocade shall be entitled to all reasonable legal and attorney fees and associated costs of collecting overdue amounts.
3.2 Taxes. Charges are stated exclusive of sales, use, value added, customs charges, duties, gross receipts, and services or other taxes or fees imposed under or by any governmental authority, whether levied against you or Brocade, and associated with your purchase or the payment of any amount by you to Brocade (“Taxes”). Except for Taxes based on or measured by Brocade's net income, you shall pay, or reimburse Brocade for its payment of all Taxes, freight, and insurance. If you claim an exemption from your obligation to pay Taxes, you must provide Brocade with an appropriate, accurate, and valid tax exemption certificate applicable to your purchase. You must make all payments free and clear without deduction for any present or future taxes imposed by any taxing authority. If you are prohibited by law from making any payment unless such deductions are made or withheld, you must pay an additional amount such that the net amount received by Brocade, after such deduction or withholding, equals the amount that would have been received if the deduction or withholding had not occurred. You must promptly furnish Brocade with a copy of an official tax receipt or other appropriate evidence of any tax imposed on payments, including taxes on any additional amounts paid as required by this Section. We agree that we will cooperate with each other to minimize any applicable taxes, including reasonable notice and cooperation in the case of any audit.
3.4 Payment Disputes. All invoices shall be deemed accurate unless you provide Brocade notice in writing of a material error within 10 days following receipt of the invoice. Your notice must describe the grounds for the dispute in reasonable detail. If the dispute described in the notice is reasonable, and you timely pay any undisputed part of the invoice, the due date for the disputed amount will be extended until Brocade determines whether such amount is accurate. If you withhold payment of a disputed amount, and Brocade concludes that such amount is accurate, you shall pay interest as described herein from the due date for such amounts until Brocade’s receipt of those amounts. You may not offset, defer or deduct any invoiced amounts that Brocade determines are not erroneous following the notification process set forth above.
You acknowledge that Brocade is not responsible for the security of your network generally, and that Brocade does not represent or warrant that its Products, Support Plans, Services, Deliverables or Third Party Products meet your particular security requirements. You agree that you are responsible for evaluating and determining if the Products, Support Plans, Services, Deliverables and Third Party Products meet your security requirements, both generally and in light of any regulatory requirements applicable to your business or network. In addition, unless otherwise agreed, you are responsible for the correct installation and setup of the security features and all related requirements, such as correctly configuring security policies, maintenance, and the interoperability of the Products, Support, Services, and Third Party Products with your other network elements. You agree that Brocade has no liability to you whatsoever arising from a security breach unless the breach is due solely to the failure of a Product, Support Plan, Services or Deliverable to conform to the factual statements included in the applicable information provided to you.
5. OPEN SOURCE AND FREE PUBLIC SOFTWARE
Brocade Software may consist of or include open source software and/or other public software (“Public Software”). The applicable licenses, any required notices or attribution, and instructions on how to obtain the source code are included with the electronic media on which the Software is provided or on Brocade.com. Notwithstanding anything to the contrary in the Brocade Terms, neither the Brocade Terms nor any order or other written material provided by Brocade is intended to change or restrict the terms of any Public Software license. If there is a conflict between the terms of a Public Software license and the Brocade Terms, the Public Software license controls as to the software covered by the Public Software license. The licenses for Public Software do not control as to the use of Brocade’s name, logo, or other trademarks. You must contact Brocade for permission to use Brocade’s trademark(s).
6. GENERAL WARRANTY
You warrant to Brocade that (i) you have the right, power, and authority to enter into the agreement and to fully perform your obligations under the agreement; (ii) you are authorized to bind the licensee or purchaser to the provisions of these Brocade Terms and (iii) the making of the agreement does not violate any agreement existing between you and any third party.
7. WARRANTY DISCLAIMER
EXCEPT FOR THE WARRANTIES EXPRESSLY STATED IN THE HARDWARE TERMS, SOFTWARE TERMS, SUPPORT TERMS OR SERVICES TERMS, THE PRODUCTS, SERVICES, DELIVERABLES, AND THIRD PARTY PRODUCTS ARE PROVIDED AS IS AND NEITHER BROCADE NOR ITS SUPPLIERS OR LICENSORS MAKES ANY OTHER WARRANTY, EXPRESS OR IMPLIED. BROCADE DISCLAIMS ANY IMPLIED WARRANTIES, SUCH AS ANY WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT, AND ANY WARRANTIES THAT MAY ARISE FROM A COURSE OF DEALING. SPECIFICALLY, BUT WITHOUT LIMITATION, NEITHER BROCADE NOR ITS SUPPLIERS OR LICENSORS WARRANT THAT THE PRODUCTS, SUPPORT PLANS, SERVICES, DELIVERABLES AND THIRD PARTY PRODUCTS WILL MEET YOUR REQUIREMENTS, WILL OPERATE IN THE COMBINATION WITH OTHER TECHNOLOGIES OR PRODUCTS YOU SELECT, OR THAT THE OPERATION OR USE WILL BE UNINTERRUPTED, ERROR-FREE, OR COMPLETELY SECURE. IF ANY WARRANTY CANNOT BE EXCLUDED BY LAW, THEN SUCH WARRANT IS MADE FOR A PERIOD OF 30 DAYS FROM THE ORDER EFFECTIVE DATE.
8.1 Brocade will defend any claim made on you by an unaffiliated third party that the Products infringe a United States or European Union patent or copyright, or misappropriate a valid trade secret recognized in the United States or the European Union (a “Claim”), and will indemnify you against any final, un-appealable judgment entered by a court of competent jurisdiction with respect to the Claim, on the following conditions: (i) you promptly notify Brocade in writing of the Claim, (ii) you provide Brocade sole control over the defense and settlement of the Claim; and (iii) at Brocade's request and expense, you provide full information and reasonable assistance to Brocade with respect to the Claim. Notwithstanding the foregoing, Brocade will not be obligated to defend or be liable in any manner for infringement or misappropriation arising out of: (a) required compliance with technology or specifications that you provide; (b) modification of a Product (except modifications provided by Brocade) or use of a Product in a manner not contemplated by the documentation; (c) your combination of a Product with hardware, software or other materials not provided by Brocade or with Third Party Products; (d) your failure to use reasonable materials or instructions provided by Brocade which would have rendered a Product non-infringing, (e) your use of Software not currently supported by Brocade or not covered by a then-current Support Plan, (f) your use of Software in violation of the applicable license, or (g) any open source or other public software. In addition, Brocade has no obligation under this Section if you were aware of any actual, pending or threatened claims that would be covered by this indemnity obligation as of the order effective date for the Product. Brocade will have the right to select counsel to defend the Claim. You may join in defense of a Claim with counsel of your choice at your expense. Brocade has no obligation to reimburse you for any expenses you may directly incur in connection with the Claim unless it has given its prior written authorization for the expense. If, at any time, any Product becomes, or in the opinion of Brocade may become, the subject of Claim, Brocade may, at its option and expense: (i) procure for you the right to continue using such Product; (ii) replace or modify the Product; or, in the event that neither (i) or (ii) is reasonably available, (iii) terminate the order with respect to the Product. In the event Brocade terminates the order with respect to the Product, Brocade will issue you a prorated refund as follows: (i) for Hardware, the fee paid by you for the infringing Product discounted on a 3-year depreciation basis, and (ii) for stand-alone Software, a refund for any unused portion of the license fee and associated Support Plan. This Section states Brocade’s entire liability to you, and your exclusive remedy for, any actual or alleged infringement, violation, or misappropriation of any third party intellectual property rights by the Products or your use of the Products. In no event is Brocade obligated to provide any indemnification in connection with any Third Party Product.
8.2 You shall defend and indemnify Brocade against any third-party claim or action resulting or arising from: (i) your failure to obtain any appropriate license, intellectual property rights, or other permissions, regulatory certifications, or approvals associated with technology or data provided by you, or associated with software or other components directed or requested by you to be used with, or installed or integrated as part of the Products, Support, Services, or Third Party Products; (ii) your violation of Brocade’s intellectual property rights as stated in this Agreement; (iii) any inaccurate representation regarding the existence of an export license or any allegation made against Brocade due to your violation or alleged violation of applicable export laws, regulations, or orders; (iv) your violation of the agreement, or (v) your providing of (or providing access to) Excluded Data (as defined in Section 11.9 below) to Brocade.
8.3 You agree to defend, indemnify and hold harmless Brocade, its subsidiaries and affiliates, and their respective officers, directors, employees and agents from and against any and all damages, losses, liabilities, judgments, penalties, fines, settlement amounts, fees, costs and expenses (including, but not limited to, the reasonable fees and expenses of attorneys and other professionals) that Brocade may suffer or incur, to the extent arising out of or attributable to, or allegedly arising out of or attributable to: (i) your acts and omissions and claims by third parties of bodily injury (including death) or damage to tangible property (excluding data) to the extent such claims arise from your tortious willful misconduct or gross negligence, and (ii) your breach of your obligations under the agreement.
You must use the Products, Support, Services, and Deliverables in accordance with the applicable documentation. Except as expressly permitted in the Brocade Terms or an order, you may not do, or permit any third party to do, any of the following, either directly or through any parent, subsidiary, affiliate, agent, or other third party: (i) use any Software in any form other than its binary, object, or executable form; (ii) modify, adapt, change, enhance or create derivative works based on the Products or Deliverables, (iii) copy, or otherwise reproduce the Products or Deliverables, including any prototypes, software or other tangible objects provided to you, in whole or in part, (iv) decompile, translate, reverse engineer, disassemble, attempt to discover any source code or underlying ideas or algorithms, structure, architecture or algorithms of any Product or Deliverable (except to the extent that applicable law or any open source or public license prohibits such restrictions, (v) copy Software; (vi) reduce Software to human-readable form, (vii) use Software in excess of any licensing metric stated in the Brocade Terms or the order; (viii) remove, modify or otherwise tamper with any notice or legend on any labeling on any physical media containing Software or Deliverables; (ix) use, license, sell, transfer or in any way distribute, sublicense or allow others to use Software or Deliverables that is outside of the scope of the licenses granted in the Brocade Terms and for which you have paid the applicable fees; (ix) provide, lease, lend, use, disclose, or divulge the Software, or make the Software available to, or permit Software to be used for timesharing or service bureau purposes, (x) extract or run any component of Software independently of the Software, (xi) use the Software or any part of the Software with any unpaid “community” version of the Software, or (xii) take any action that would cause Software or any portion of the Software to be placed in the public domain.
If you need information about Brocade Software for interoperability with other technologies, please contact the Brocade support team using the contact information at Brocade.com.
10. CONFIDENTIAL INFORMATION
10.1 Confidential Information. The term “Confidential Information” means information disclosed by one party (“Discloser”) to the other party (“Recipient”) that the Recipient knows or has reason to know is regarded as confidential by the Discloser. Confidential Information, includes: (i) the terms and conditions of an order (but not the existence of the order), (ii) trade secrets, proprietary technology, the structure, sequence and organization of any Brocade software, (iii) any serial numbers, access codes, registration keys, entitlement numbers or other access information for the Products, Services, and Third Party Products.
10.2 Exceptions to Definition of Confidential Information. Notwithstanding Section 7.1 above, information is not “Confidential Information” of the Discloser if the Recipient can demonstrate that: (i) the disclosed information at the time of disclosure is part of the public domain; (ii) the disclosed information can be established by written evidence to have been in the possession of Recipient at the time of disclosure by Discloser; or (iii) the disclosed information is received by Recipient from a third party without similar restrictions on disclosure and without breach of this or any agreement.
10.3 Use, Disclosure. Recipient shall not disclose and shall not use the Discloser’s Confidential Information without Discloser's written consent except in performance of its duties or exercise of its rights under an order or the Brocade Terms. Except as provided by the Brocade Terms Recipient will only disclose Confidential Information to its employees on a need to know basis and only to those of its employees who have agreed to receive it under terms at least as restrictive as those specified in theBrocade Terms. The obligation to protect Confidential Information shall be satisfied if Recipient utilizes the same care (but no less than reasonable care) over the Confidential Information as Recipient employs to avoid disclosure of Recipient's own similar confidential information. Recipient will immediately notify Discloser of any unauthorized use or disclosure of the Discloser’s Confidential Information. Recipient agrees to assist Discloser in remedying such unauthorized use or disclosure of the Confidential Information.
10.4 Disclosure in Response to Government Requirement. Recipient may disclose Discloser’s Confidential Information if required to be disclosed under law or legal proceeding by a government agency or by a proper court of competent jurisdiction. Recipient will notify Discloser prior to such disclosure. Recipient will use its best commercially reasonable efforts to minimize the disclosure of such information and will consult with and assist Discloser in obtaining a protective order prior to such disclosure.
10.5 No Implied Restrictions. Brocade may use any general learning, skills, or know-how or any information retained in the unaided memory of a person who had access to Confidential Information for any purpose. Brocade is free to develop products independently including without limitation product that compete with your products. Brocade is not obligated to restrict the future work assignments of people who have had access to Confidential Information or to restrict Brocade product development or plans in any way due to such access. Brocade may use any technical information it derives under these Brocade Terms including but not limited to information recieved from providing the Support relating to Service Request resolution, troubleshooting, functionality enhancements and fixes.
10.6 Remedies. In the event of an unauthorized use, distribution or disclosure of any Confidential Information, the parties agree that the harmed party will not have an adequate remedy at law. Therefore, injunctive or other equitable relief may be appropriate to restrain such use, distribution or disclosure, whether threatened or actual.
You acknowledge that the Products or other technology provided under the order are subject to the provisions of the U.S. Export Administration Regulations and may be subject to export and import regulations in countries outside the U.S., and agrees to comply with all such applicable laws and regulations, as required. You acknowledge and agree that you will not import, export, or re-export, directly or indirectly, the Product or technology provided under the order to any country in violation of the laws and regulations of any applicable jurisdiction. This restriction expressly includes, but is not limited to, the export regulations of the United States, and the import and export restrictions of any country in which you transact business. You also agrees that you will not export or re-export the Products or technology, directly or indirectly, (i) to any U.S. embargoed country; (ii) to any person or entity on a denial list published by the U.S. Government; (iii) for any end use that is prohibited by United States or other applicable law, including nuclear, missile, chemical biological weaponry or other weapons of mass destruction. You acknowledge that the certain Products or technologies may be classified as “restricted encryption” items under section 740.17(b)(2) of the U.S. Export Administration Regulations and may require export licenses or U.S. re-export approval when being shipped from the U.S. or other countries. You shall indemnify, defend (with counsel approved in writing in advance by Brocade) and hold Brocade harmless against any claims for cost, damage, expense or liability arising out of or in connection with any breach of this Section.
12. LIMITATION OF LIABILITY; DISPUTE RESOLUTION
12.1 IN NO EVENT WILL BROCADE WILL BE LIABLE FOR ANY CONSEQUENTIAL, INCIDENTAL, INDIRECT, SPECIAL OR PUNITIVE DAMAGES OF ANY KIND. IN ADDITION, IN NO EVENT WILL BROCADE BE LIABLE FOR LOSS OF PROFITS OR REVENUE, INCOME, PROFITS, OR SAVINGS; LOST BUSINESS; LOST GOODWILL; OR LOST OR CORRUPT DATA OR SOFTWARE; LOSS OF USE OF A SYSTEM OR NETWORK OR THE RECOVERY OF SUCH; LOSS OF BUSINESS OPPORTUNITY; BUSINESS INTERRUPTION OR DOWNTIME; THE PRODUCTS, SERVICES OR THIRD PARTY PRODUCTS NOT BEING AVAILABLE FOR USE; OR THE PROCUREMENT OF SUBSTITUTE PRODUCTS, SERVICES OR THIRD PARTY PRODUCTS ARISING OUT OF OR RELATED TO AN ORDER OR THE BROCADE TERMS, HOWEVER CAUSED OR ON ANY THEORY OF LIABILITY. BROCADE’S ENTIRE LIABILITY ARISING OUT OF OR RELATED TO AN ORDER OR THE BROCADE TERMS IS LIMITED TO THE AMOUNTS PAID UNDER THE ORDER GIVING RISE TO THE CLAIM FOR THE TWELVE (12) MONTH PERIOD PRIOR TO THE DATE THE CAUSE OF ACTION AROSE. THE FOREGOING LIMITATIONS SHALL NOT APPLY TO THE EXTENT THAT THE LIMITATIONS ARE NOT ENFORCEABLE UNDER APPLICABLE LAW. THESE LIMITATIONS, EXCLUSIONS, AND DISCLAIMERS APPLY TO ALL CLAIMS FOR DAMAGES, WHETHER BASED IN CONTRACT, WARRANTY, STRICT LIABILITY, NEGLIGENCE, TORT, OR OTHERWISE. THESE LIMITATIONS OF LIABILITY ARE AGREED ALLOCATIONS OF RISK CONSTITUTING IN PART THE CONSIDERATION FOR BROCADE’S SALE OF PRODUCTS, SERVICES OR THIRD PARTY PRODCUTS TO YOU, AND WILL APPLY NOTWITHSTANDING THE FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY AND EVEN IF A PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH LIABILITIES.
12.2 High Risk Use. Brocade shall have no liability whatsoever for harm arising from any High Risk Use of its Products, Services and Third Party Products. “High Risk Use” means any use of Products, Services, and Third Party Products where the failure of the Products, Services, and Third Party Products might result in death, personal injury or severe physical or environmental damage, such as controlling aircraft or other modes of human mass transportation, nuclear or chemical facilities, life support systems, implantable medical equipment, motor vehicles, and weaponry systems.
12.3 Dispute Resolution. Except as otherwise provide by these Brocade Terms, the parties will attempt to resolve any dispute through negotiation or by utilizing a mediator agreed to by the parties, rather than through litigation. Negotiations and mediations will be treated as confidential. If the parties are unable to reach a resolution within 30 days of notice of the dispute to the other party, the parties may pursue all other courses of action available at law or in equity.
13. TERM, TERMINATION, SUSPENSION
13.1 Term. The term of each order is as stated in the Hardware Terms, Software Terms, Support Terms, or Services Terms, as applicable. TheBrocade Terms will continue for the term stated in the order unless such agreement is terminated. If you purchased directly from Brocade, Brocade may propose to renew the Brocade Terms by sending you an invoice or, subject to prior notification, continuing to perform the Support Plan or Services or make the Software available to you. You may (where permitted by law) agree to renewal of theBrocade Terms by paying the invoice by its due date or by continuing to use the Products, Support Plan, or Services, or Third Party Products. If you purchased through a reseller, the payment terms for renewal for the Support Plan, Services or Software will be as agreed between you and the reseller.
13.2 Termination. Either party may immediately terminate the Brocade Terms, as well as any or all orders, for material breach by the other party if such breach is not cured within 30 days after written notice. Brocade may terminate the Brocade Terms immediately, in whole or in part, as well as any or all orders, including prior to the expiration of the term of a Support Plan, Services engagement, or Software license, if (i) you fail to make any payment when due; (ii) you declare bankruptcy or are adjudicated bankrupt; (iii) a receiver or trustee is appointed for you or substantially all of your assets; or (iv) you purchased through a reseller and, as applicable, the agreement between you and such reseller expires or is terminated, the agreement between Brocade and such reseller expires or is terminated, or your reseller is delinquent on its payment obligations to Brocade. Further, Brocade may terminate orders for Support Plans and Services immediately if you are acquired by or merge with a competitor of Brocade. Upon termination of the Brocade Terms or one or more orders, all rights and obligations under the Brocade Terms and the terminated orders will automatically terminate except for rights of action accruing prior to termination, payment obligations, and any obligations that expressly or by implication are intended to survive termination. Brocade may terminate theBrocade Terms for convenience. Brocade may suspend, terminate, withdraw, or discontinue all or part of a Support Plan, Services or Third Party Products upon receipt of a subpoena or law-enforcement request which requires Brocade to do so, or when Brocade believes, in its sole reasonable judgment, that you are involved in any fraudulent or illegal activities.
13.3 Suspension. Brocade may suspend any Software license, Support Plan, Services, and delivery of any other Products or Third Party Products during any period that you are in breach or violation of the Brocade Terms. Unless Brocade has terminated the order or the Brocade Terms for breach, Brocade may reinstate the respective license, Support Plan, Services or delivery of Products or Third Party Products after you cure the breach or violation that is the basis for the suspension.
14.1 Governing Law; Venue.
14.1.1 Brocade US. Any order having Brocade Communications Systems, Inc. as a party (a “Brocade US Agreement”) is governed by the laws of the State of California and the United States of America, as applicable, excluding any law that would require the application of the law of a different jurisdiction. Disputes arising out of a Brocade US Agreement are subject to the exclusive jurisdiction of the state and Federal courts located in Santa Clara County, California, and the parties agree and submit to the personal and non-exclusive jurisdiction and venue of these courts.
14.1.2 Brocade non-US. Any order having as the “Brocade” party(ies) only entities that are not Brocade Communications Systems, Inc. (a “Brocade non-US Agreement”) is governed by the laws of Switzerland, excluding any law that would require the application of the law of a different jurisdiction. All disputes arising out of or in connection with a Brocade non-US Agreement shall be finally settled under the Rules of Arbitration of the International Chamber of Commerce by three arbitrators appointed in accordance with said rules. The place of arbitration shall be Geneva. The arbitral tribunal shall conduct the proceedings and all awards shall be rendered in the English language.
14.1.3 Injunctive Relief. The choice of jurisdiction and venue clauses stated in this Section do not prevent either party from seeking injunctive relief with respect to a violation of intellectual property rights or confidentiality obligations in any appropriate jurisdiction.
14.1.4 Disclaimer. The U.N. Convention on the International Sale of Goods shall not apply to the Order. Each of us agrees that the Uniform Computer Information Transactions Act or any version thereof adopted by any state in any form (“UCITA”) does not apply to our agreement and, to the extent that UCITA is applicable, then we each agree to opt out of the applicability of UCITA pursuant to the opt-out provision(s) contained in UCITA.
14.1.5 Service of Process. You agree that service on you at your address stated in the order constitutes a valid means of service for any proceeding, either in lieu or in addition to service on you via your registered agent.
14.2 Further Assurances. Each party shall execute or cause to be executed such further documents and shall do or cause to be done such further acts and things as may be necessary or desirable to give full effect to the provisions of the order.
14.3 Severability. If any term or other provision of the Brocade Terms is determined by a non-appealable decision of a court, administrative agency or arbitrator to be invalid, illegal or incapable of being enforced by any rule of law or public policy, all other conditions and provisions of the Brocade Terms shall nevertheless remain in full force and effect so long as the economic or legal substance of the transactions contemplated hereby is not affected in any manner materially adverse to either party. Upon such determination that any provision is invalid, illegal or incapable of being enforced, that provision shall be severed from the Brocade Terms there shall be deemed to be substituted a similar term or provision to accomplish the intent of the parties as closely as possible to the original term or provision, as determined by any court or arbitrator having jurisdiction, to the extent permitted by applicable law; provided, however, that if any restriction or limitation set forth in any license granted hereunder is deemed invalid or unenforceable, the entire license shall terminate.
14.4 Force Majeure. Except for payment obligations, neither party shall be liable for the performance of its obligations under the Brocade Terms if it becomes commercially impracticable to perform due to any contingency beyond the reasonable control of that party, including as a result of a Force Majeure. Each party, as applicable, shall give the other party notice of its inability to perform and particulars in reasonable detail of the cause of the inability. Each party must use reasonable commercial efforts to remedy the situation and remove, so far as is commercially reasonable and as soon as practicable, the cause of its inability to perform or comply, provided, however, that in no event shall Brocade be required to purchase goods from third parties. Each party shall give the other party prompt notice of the cessation of the event of Force Majeure. “Force Majeure” means a cause of any kind not reasonably within the control of a party, including, without limitation, acts of God and the public enemy, sabotage, boycotts, disruptions of transportation facilities, inability to obtain supplies or materials, acts of government or its agencies, strikes, labor disputes, power disruptions, lockouts or any other industrial disturbance, or judicial action.
14.5 Independent Contractors; Nonexclusive Relationship. The parties are independent contractors, and nothing in the Brocade Terms or an order shall be construed to create a relationship of agency or partnership between the parties or to allow either party to create or assume any obligation on behalf of the other party. Neither party’s employees, agents, nor consultants shall be considered under any circumstances to be employees of the other party.
14.6 Compliance with Statutes and Regulations. Each party will comply with all applicable Federal, state, local and foreign statutes, rules, regulations and orders, including but not limited to the Foreign Corrupt Practices Act.
14.7 Interpretation of Certain Words. The use of the words “partner” or “partnership” in the Brocade Terms or otherwise refers only to a business relationship, and does not create or reflect any legal partnership, joint venture, or other fiduciary or other special relationship between the persons described as partners. The term “person” refers to any legal person, and may mean a natural person (individual), a legally created person (such as an entity, trustee, or executor), or an entity (such as a corporation, partnership, or limited liability company). The word “including” means “including, without limitation.” The words “will” and “shall” are words of obligation, not expressions of intent or expectation. The term “parties,” either in lower- or upper-case form, refers to the signatories to this Agreement. A reference to “day” shall mean a calendar day, unless expressly designated as a “business” day. The word “quote” refers any quote, quotation, proposal or like document issued by Brocade; the word “order” refers generally to any document by which you request Brocade Product or Services, including a Purchase Order or “PO,” an online web order form, and a statement of work. Software and documentation provided by Brocade is licensed and not sold; any words of purchase used in the Brocade Terms, an order, or elsewhere refers to a purchase of a license for the Software or documentation. Any requirement in the Brocade Terms that a statement be written, in writing, or a like requirement is satisfied by an email or other digital form of writing unless expressly stated otherwise. Nouns stated in the singular shall imply the plural as indicated by the context, and pronouns that are gender specific shall be read to refer to either gender. The Section captions in the Brocade Terms are for convenience only; they are not part of these Brocade Terms and may not be used to interpret these Brocade Terms. References to sections in any of the documents that comprise the Brocade Terms are references to the sections of the documents in which the references appear unless otherwise indicated.
14.8 U.S. Government Restricted Rights. The Software and any accompanying documentation provided under the Brocade Terms and any order incorporate commercial computer software and commercial computer software documentation developed exclusively at private expense, and is in all respects proprietary property belonging solely to Brocade or its licensors. If you are acquiring the Software on behalf of any part of the United States Government, the following provisions apply. The object code and accompanying documentation are deemed to be “commercial computer software” and “commercial computer software documentation”, respectively, pursuant to DFAR Section 227.7202 and FAR 12.212(b), as applicable. Any use, modification, reproduction, release, performance, display or disclosure of the object code and/or the accompanying documentation by the U.S. Government or any of its agencies shall be governed solely by the Brocade Terms and shall be prohibited except to the extent expressly permitted by the Brocade Terms. Any technical data provided that is not covered by the above provisions is deemed to be “technical data” and “commercial items” pursuant to DFAR Section 252.227.7015(a). Any use, modification, reproduction, release, performance, display or disclosure of such technical data shall be governed by the terms of DFAR Section 252.227.7015(b).
14.9 Excluded Data. The Products, Support Plans, Services, Deliverable, and Third Party Products are not designed to offer functionality providing security and access management for the processing and/or storage of the following categories of data: (1) data that is classified and or used on the U.S. Munitions list, including software and technical data; (2) articles, services and related technical data designated as defense articles and defense services; (3) ITAR (International Traffic in Arms Regulations) related data; and (4) other personally identifiable information that is subject to heightened security requirements as a result of your internal policies or practices or by law or regulation (“Excluded Data”). You agrees that you are solely responsible for reviewing and ensuring its data provided to Brocade (or to which Brocade will have access) does not contain Excluded Data.
14.10 Audit & Retention of Records. You must keep accurate and reasonable records regarding your use of the Products and your compliance with the Brocade Terms and the order. On reasonable notice, Brocade shall have the right to audit and inspect your compliance with the Brocade Terms and any order (including all payment terms) during your normal business hours. Brocade may conduct its review by direct inspection of your records and systems on your premises, or by requiring you to provide information certified as true and correct by your chief financial officer, chief accounting officer, or other executive of like authority. You will promptly correct any ongoing item of non-compliance identified as part of a review or audit including but not limited to any underpayments that are discovered. You shall pay interest on any underpayment at the rate of one and one half percent (1.5%) per month, or the maximum rate allowed by law, whichever is less, for each month, or partial month, calculated from the date payment was due until the date it is paid. If any underpayment exceeds 5% of the amount owed over the audited period, then you shall reimburse Brocade for the costs of the audit. You shall retain the applicable records pertaining to its performance obligations for five (5) years after the termination or completion of such obligation.
14.11 Notices. All notices must be in writing and must be delivered by personal delivery, internationally recognized overnight carrier, or facsimile transmission, and shall be deemed given upon personal delivery, three (3) business days after delivery to the international carrier with proof of receipt, or by fax upon acknowledgment of receipt of electronic transmission. Notices shall be sent to the address set forth in Brocade's quotation or the ordering document or such other address as either party may specify in writing, and in the case of Brocade, with a copy to Brocade Communications Systems, Inc., Attention: Office of the General Counsel, 130 Holger Way, San Jose, CA 95134, Fax Number (408) 333-8201.
14.12 Subcontract; Assignment. Brocade has the right to assign, subcontract, or delegate in whole or in part this Agreement, or any of its rights, duties, obligations or liabilities provided that if it subcontracts its duties in providing Services, Brocade shall remain responsible for the performance of such Services under this Agreement. You may not, directly or indirectly, in whole or in part, whether by operation of law or otherwise, assign or transfer any order, without Brocade's prior written consent, and any attempted assignment, transfer or delegation without such prior written consent shall be voidable at the sole option of Brocade. Brocade or its successors may assign an order, in whole or in part, and any of its rights and obligations hereunder, in its discretion. Without limiting the foregoing, an order will be binding upon and inure to the benefit of the parties and their permitted successors and assigns.
14.13 Waiver; Amendment. Failure or delay on the part of either party hereto in the exercise of any right hereunder shall not impair such right or be construed to be a waiver of, or acquiescence in, any breach of any representation, warranty or agreement herein, nor shall any single or partial exercise of any such right preclude other or further exercise thereof or of any other right. No change or amendment will be made to an order except by an instrument in writing signed on behalf of each of the parties to such agreement.
14.14 Reservation of Rights. Nothing contained in an order shall be construed as conferring any rights by implication, estoppel or otherwise, under any intellectual property right, other than the rights expressly granted in an order and the Brocade Terms. Brocade and its third party suppliers and licensors own and retain all right, title and interest in and to all feedback, ideas, reports, data and other information provided by you related to the Products, Support Plans, Services, and Third Party Products, including any pre-release Products provided to you for testing, as well as designs, engineering details, and other data and materials pertaining to the Products, Support Plans, Services, and Third Party Products and to all discoveries, inventions, patents and other proprietary rights arising out of the work done by Brocade in connection with such or with any and all other products or services developed by Brocade as a result thereof, including the sole right to manufacture any and all such Products, Support Plans, Services, and Third Party Products. No rights may arise by implication or estoppel, other than those expressly granted herein.
14.15 Translations. The Brocade Terms and each order is in the English language only, which language shall be controlling in all respects, and all versions hereof in any other language shall be for accommodation only and shall not be binding upon the parties. All communications and notices to be made or given pursuant to the Brocade Terms and any dispute proceeding related to or arising hereunder, shall be in the English language. In the event of any discrepancy or inconsistency between different language versions of the Brocade Terms and any order (and all associated documents or correspondence concerning the order), the English language version shall prevail.
14.16 Entire Agreement. The Brocade Terms and each order constitutes the entire agreement between the parties with respect to the subject matter of the order and supersedes all prior written and oral and all contemporaneous oral agreements and understandings with respect to the subject matter thereof.
Last updated on February 3, 2016