Legal

Terms and Conditions of Sale

THIS SALES AGREEMENT ("AGREEMENT") IS AN OFFER BY BROCADE COMMUNICATIONS SYSTEMS, INC., ITS SUBSIDIARIES, OR ITS AFFILIATES ("BROCADE") FOR CUSTOMER ("CUSTOMER") TO ENTER INTO A CONTRACT WITH BROCADE FOR BROCADE OFFERINGS (DEFINED BELOW) AS SET FORTH IN THE QUOTATION TO WHICH THESE TERMS AND CONDITIONS APPLY. CUSTOMER MAY ONLY ENTER INTO A CONTRACT WITH BROCADE BY ACCEPTING THIS OFFER. CUSTOMER'S ACCEPTANCE IS EFFECTIVE UPON ISSUANCE OF A PURCHASE ORDER IN CONNECTION WITH THE APPLICABLE BROCADE QUOTATION.

THIS OFFER EXPRESSLY LIMITS ACCEPTANCE TO THE TERMS AND CONDITIONS EXPRESSLY SET FORTH IN THIS OFFER. BROCADE EXPRESSLY REJECTS ANY TERMS OR CONDITIONS THAT MAY HAVE BEEN DISCUSSED OR PROPOSED IN PRIOR NEGOTIATIONS OR COMMUNICATIONS. CUSTOMER MAY ONLY ACCEPT THIS OFFER AND ENTER INTO A CONTRACT BY AGREEING TO THE TERMS AND CONDITIONS CONTAINED IN THIS AGREEMENT.

CUSTOMER MAY NOT ACCEPT THIS OFFER IN A MANNER THAT PROPOSES ANY ADDITIONAL OR DIFFERENT TERMS OR CONDITIONS. IN THE EVENT THAT A COURT DETERMINES THAT CUSTOMER ACCEPTED THIS OFFER IN A MANNER THAT PROPOSES ADDITIONAL OR DIFFERENT TERMS OR CONDITIONS, BROCADE HEREBY PROVIDES NOTICE OF OBJECTION TO ANY ADDITIONAL OR DIFFERENT TERMS OR CONDITIONS. ANY TERMS OR CONDITIONS THAT ARE ADDITIONAL OR DIFFERENT FROM THOSE CONTAINED IN THIS AGREEMENT MAY ONLY BECOME PART OF A CONTRACT BY WAY OF A SEPARATE WRITING, SIGNED BY BOTH PARTIES.

IF CUSTOMER HAS PURCHASED OR OBTAINED BROCADE-BRANDED PRODUCTS OR SERVICES FROM A THIRD PARTY, CUSTOMER WILL BE SUBJECT TO THE TERMS AND CONDITIONS OF ITS AGREEMENT WITH SUCH THIRD PARTY WHICH MAY BE IN ADDITION TO TERMS AND CONDITIONS THE THIRD PARTY IS REQUIRED TO PASS THROUGH TO END USERS.

  1. Scope of Agreement.

    a) "Brocade Offerings" means the Products, Professional Services, Education, Certification or Support offered by Brocade from time to time at Brocade's sole discretion

    b) "Brocade Services" refers to Professional Services, Support, Training, and Education collectively.

    c) "Education" refers to the education related offers by Brocade as described at www.brocade.com.

    d) "Hardware" includes any Brocade hardware products which may be new, equivalent-to-new or reconditioned, and any related documentation and manuals.

    e) "Hypervisor" means the software provided by a third party that may be proprietary or open source software and it allows one or more Virtual Machines to run concurrently on a host server.

    f) "Networking Software Offers" or "NSO" refers to Brocade's Network Functions Virtualization and other software networking offers as designated solely by Brocade.

    g) "Software" includes any software licensed by Brocade to Customer in any form, including but not limited to, any bundled firmware, or standalone software products, NSO or other software, any backup copies of such software, and any related documentation and manuals; and any Upgrades (as defined in this Agreement) or modified versions of software.

    h) "Support" includes maintenance and/or support service offers as applicable to each Product as described on www.brocade.com.

    i) "Products" includes Hardware, Software or any combination thereof in whole or in part offered by Brocade under this Agreement.

    j) "Professional Services" includes Product implementation, configuration, provision of BRC's (as defined in Section 5) and other services provided under this Agreement by Brocade.

    k) "Training" refers to the training offers by Brocade as described at www.brocade.com.

    l) "Virtual Machine" means a software based implementation that emulates the computer arch and functions of a real world computer. 

  2. Consideration.

    2.1 Prices and Payment Terms. Credit and credit terms are within Brocade's sole discretion. Brocade is not responsible for pricing, typographical or other errors and reserves the right to cancel any orders arising from such errors. Unless otherwise provided in Brocade's quotation or proposal, charges due are billable as follows: (i) charges for Products are billable upon shipment by Brocade, (ii) charges for Professional Services are billable as set forth in the applicable Brocade quotation or proposal, (iii) charges for Brocade Services (excluding Professional Services) are billable in advance; and (iv) all other charges are billable as the work is performed or costs are incurred. Customer will pay any reasonable out-of-pocket travel costs and expenses, if applicable, including without limitation amounts for airline, automotive, meals, hotel, and related expenses for Professional Services. Unless specified otherwise by Brocade, Customer shall pay amounts due and payable to Brocade within thirty (30) days of the date of the invoice. Payment shall be made to the applicable Brocade entity named on the order. With respect to any Software and related documentation and Brocade Services licensed or purchased in the United States, this Agreement is entered into, and all offerings shall be performed and delivered by or on behalf of Brocade Communications Systems, Inc. in the United States.  When the Software and related documentation and Support or other services are to be licensed or purchased outside the United States, this Agreement is entered into, and shall be performed by or on behalf of Brocade Communications Switzerland SarL in Switzerland. Unless otherwise specified in the applicable Brocade quotation or proposal, all payments are to be made in United States Dollars. In addition to any other remedy available to Brocade for late payment, Customer shall pay Brocade interest on any amount not paid when due 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.

    2.2 Taxes. All stated prices are exclusive of any taxes, fees, and duties or other amounts, however designated, and including without limitation value added and withholding taxes that are levied or based upon such charges, or upon this Agreement. Except for taxes based on or measured by Brocade's net income, Customer will be responsible to pay, or reimburse Brocade for its payment of, all customs charges, duties, and sales, use, gross receipts, value added, goods and services or other taxes or fees imposed under or by any governmental authority, whether levied against Brocade or Customer, and associated with the sale of the Products or Services, their installation or use or the payment of any amount by Customer to Brocade. If Customer claims an exemption from its obligation to pay any such taxes, it shall be Customer's responsibility to provide Brocade with an appropriate tax exemption certificate. If any applicable law requires Customer to withhold amounts from any payments hereunder, then Customer will effect such withholding, remit such amounts to the appropriate taxing authorities and promptly furnish tax receipts evidencing the payments of such amounts. All payments shall be made free and clear without deduction for all present and future taxes imposed by any taxing authority. In the event that Customer is prohibited by law from making any payment unless such deductions are made or withheld, Customer shall pay Brocade additional amounts as are necessary to ensure the net amounts received by Brocade, after deduction or withholding, equal the amounts that would have been received if the deduction or withholding had not occurred. Customer shall promptly furnish Brocade with a copy of an official tax receipt or other appropriate evidence of any tax imposed on payments made under this Agreement, including but not limited to taxes on any additional amounts paid. Customer and Brocade agree to cooperate to minimize any applicable taxes, including reasonable notice and cooperation in the case of any audit. This clause shall survive the termination of the Agreement.

  3. License and License Restrictions.

    3.1 License Grant. Software is subject to the separate Software license agreement(s) accompanying the Software and/or Brocade Offer, along with any product guides, operating manuals, specifications or other documentation distributed or made available for use with the Software or otherwise presented to Customer during the installation or use of the Software. Customer agrees that Customer will be bound by such license agreement(s).  If no such license agreement exists then Customer subject to the terms and conditions of this Agreement and payment of the applicable license fees (if any), Brocade and its suppliers grant to Customer a limited, non-exclusive, non-transferable, non-assignable, license to use the applicable Software in object code form only solely for internal purposes and solely for the purposes set forth in the Product documentation. The license(s) obtained by Customer under this Agreement are subject to the NSO policies located at www.Brocade.com and may include additional limitations such as use on a supported Hypervisor to implement a Virtual Machine (each implementation is hereinafter referred to as an "Instance") or use on a defined server ("Bare Metal").  Please reference your quote and invoice as well as www.Brocade for more information.  

    3.2 Additional Software Provisions. Any and all Software delivered hereunder is licensed, not sold. Except as otherwise expressly provided in this Agreement, Customer will not itself, or through any parent, subsidiary, affiliate, agent, or other third party nor permit third parties to: (i) modify, adapt, change, enhance or create derivative works based upon the Software; (ii) copy, or otherwise reproduce the Software including without limitation any prototypes, software or other tangible objects provided under this Agreement in whole or in part; (iii) decompile, translate, reverse engineer, disassemble, attempt to discover any source code or underlying ideas or algorithms, structure, architecture or algorithms of any Software (except to the extent that applicable law or any public license prohibits reverse engineering restrictions, or copy the Software or otherwise reduce the Software to human-readable form; (iv) use the Software on any Hypervisor, Instances, appliances, hardware, or  Product in excess of the number of the Virtual Machines, appliances, hardware or Product for which it is licensed; (v) remove, modify or otherwise tamper with any notice or legend on any labeling on any physical media containing the Software; (vi) use , license, sell, transfer, or any way distribute, sublicense or allow others to use the Software that is outside the scope of the licenses granted herein and for which Customer and its End Users have not paid the applicable fees for the Brocade Offerings, (vii) provide, lease, lend, use, disclose, divulge or make available to, or permit for timesharing or service bureau purposes or (except as expressly required and contemplated by the Documentation), or (iii) take any action that would cause the Software or any portion thereof, to be placed in the public domain.  Customer's rights in the Software will be limited to those expressly granted herein and Customer shall have no right to sublicense the Software. If Customer believes it may need to decompile the Software for the purposes of obtaining the interface information, Customer will request Brocade to provide it with this information. Brocade will charge Customer for its corresponding services at the applicable hourly rates. Customer may not extract or run any component of the Software independently and must use the Software only in accordance with the documentation. Further, Customer shall not utilize any Software in whole to pass traffic in a network with an unpaid Vyatta Community Edition.   All the limitations and restrictions on the Software in this Agreement also apply to documentation.

    3.3 Third Party Software. The Brocade Offerings may consist of or contain additional third party software and such third party software may be licensed under terms different from those in this Agreement.  Portions of the Software are licensed to Customer under public licenses (including the GNU General Public License ("GPL"), the GNU Lesser General Public License ("LGPL"), and other public licenses, each a "public license"). Customer's rights and obligations with respect to various components of the Software are as set forth in the applicable public license and this Agreement.  The electronic media or content downloaded from a Brocade Website will identify the license that applies to certain software application packages in the Software, and a copy of each applicable license will be provided to Customer in the source code of those portions of the Software. Otherwise, to obtain a copy of the source code and applicable licensing terms for the open source software used by Brocade, please see the following web sites (as may be updated from time to time): http://www.brocade.com/support/oscd.jsp, and www.vyatta.org. Customer must either agree to the terms of each applicable public license or it must not exercise such licensed rights. For clarity, this Agreement is not intended to change or restrict the terms of any public license, and Brocade does not seek to restrict, or receive compensation for, the copying or redistribution of publicly licensed code which is otherwise freely re-distributable to third parties (and not otherwise restricted by federal trademark or other laws). Brocade disclaims any and all liability and warranties with respect to such open source software except as expressly set forth in the documentation accompanying the software.

  4. Brocade Services.

    4.1 General.

    a) Brocade Services.  If Customer purchase includes Brocade Services, Brocade will provide the Brocade Services for Product as identified on the Brocade quote ("Covered Hardware" and "Covered Software", respectively or collectively "Covered Product") subject to the provisions of this Agreement and in accordance with the policies and plans described on Brocade website at www.brocade.com which may be modified from time to time without notice and at Brocade's sole discretion. If Customer fails to pay amounts due and payable under this Agreement or any other Agreement with Brocade, Brocade shall have no obligation to perform or provide Brocade Services under this Agreement. Whenever Customer reports an issue to Brocade related to the Covered Products ("Service Request"), the Customer will classify the Service Request according to the "Severity Level" descriptions located in the Support Plan Policies document located on Brocade's website. Additional charges may apply if Brocade determines that the cause was not related to the Covered Products or the request is not covered by the applicable Support plan. Brocade will not provide support for any customizations or unique implementations of Software under its general Support plans. Any such assistance will be provided on a time and material basis.

    b) Support Term and Renewal. The initial term applicable to each Support quotation will begin (i) in the case of newly acquired Products (excluding NSO), on the date of shipment; (ii) in the case of NSO Support (and its related licenses), on the date Brocade issues the fulfillment email (ii) in the case of previously shipped Hardware Products, on the effective date specified on the applicable quotation, and such services shall continue through the term stated on the quotation. Thereafter, such Support for Products will only be renewed based on Brocade's renewal quotation to Customer and receipt of Customer's corresponding purchase order. NSO. e  For each renewal term, Brocade may, upon thirty (30) days prior written notice before the end of any Support term, increase the yearly fees for Support, provided that such increase will not exceed the lesser of (i) Brocade's then current commercial list price, or (ii) five percent (5%) over the prior year's Support fees. To the extent that Customer wishes to obtain a different Support plan or the Support has been modified (e.g., service level, duration, product mix/quantity), the renewal fees will be at Brocade's then current price list. Notwithstanding the foregoing, should Brocade announce "Last Customer Ship" (defined below) on a Product being maintained for Customer, Brocade may, at the beginning of the next Support renewal term and each year thereafter, increase the Support fee for such Product to its then current commercial Support list price.

    "End of Life" is Brocade's structured lifecycle management program for Products, including (i) "End of Sale", defined as the last date a Product is sold commercially; (ii) "Last Customer Ship" defined as the last date a Product is shipped to a commercial customer after its End of Sale date; and (iii) "End of Support" is defined as the last date a Product is supported after its End of Sale date.

    c) Covered Products. If Customer modifies, alters or changes the Covered Products such changes could impact or void your Support and result in additional fees. Customer is responsible for activating the Support plan for all Covered Products, including changes made to the Covered Product list, via Brocade's website under "Support". 

    d) Third Party Product Interoperability. Due to interoperability requirements, Customer agrees that the use of any third party products, including but not limited to, optical transceiver components and third party software, which have not been recommended or certified by Brocade may cause errors in the operation of the Products or may cause additional resolution time for Brocade under its Support obligations hereunder. Customer acknowledges that use of any such third party products shall release Brocade from the performance of Brocade's Support obligations to the extent related thereto, and Customer agrees to pay Brocade for any time spent by Brocade diagnosing such problems which shall be billed at Brocade's hourly billing rate.

    e) Cancellation. Customer may cancel Support services for Hardware at any time on thirty (30) days prior written notice to Brocade. In such event, Brocade shall credit any Support fees prepaid for the period after such termination, less any prepayment or multi-year discount taken to which Customer is no longer entitled. Notwithstanding the foregoing, unless otherwise expressly quoted by Brocade, charges applicable to a Support Account Manager ("SAM") or Onsite Engineer ("OSE") are non-refundable in the event that Support services are cancelled by Customer.

    4.2 Software Specific Support Terms.

    a) Upgrades. Brocade will use reasonable efforts to provide a Patch for any material deviation between the current release of the Covered Software and its Specifications which is reported by Customer to Brocade and is reproducible by Brocade. Additionally, Brocade may provide Customer with Maintenance Releases, Feature Releases and Platform Releases of the Covered Software, on an "if and when available" basis, that Brocade generally makes available to other Brocade customers at no charge beyond the fees for Support. As used herein: (i) "Platform Release" means a platform, operating system or software architecture change and/or the addition of a major new application or function; (ii) "Feature Release" means a major new feature or an enhancement in operating performance that does not alter the basic functionality; (iii) "Maintenance Release" means a regularly scheduled update which may include defect fixes and limited platform-specific improvements; and (iv) "Patch" means a temporary solution to a Customer-reported critical defect (all collectively referred to as "Upgrades").

    b) Software Support Policy. Brocade will provide Software Support for the then current Feature Release and the greater of (i) the two immediately preceding Feature Releases, or (ii) all Feature Releases made available within the preceding 12 months. As a general rule, Upgrades must be installed sequentially through all Feature Releases and Platform Releases (e.g., to upgrade from release 5.1 to 6.0, all Feature Releases and Platform Releases after 5.1 will be added as part of the upgrade process).

    c) Conditions and Limitations of Software Support. Software Support does not cover and Brocade disclaims any responsibility for Service Requests arising out of Customer's failure to implement all Upgrades issued hereunder, changes to the computing environment, alterations or modifications of the Software performed by parties other than Brocade, accident, negligence, improper installation, misapplication, abuse, alteration or misuse of the Software and failure to use the Software in accordance with this Agreement or the documentation and instructions provided by Brocade. Additional information related to the various Software products, including without limitation additional Support descriptions, escalation procedures, product development guidelines, and other general procedures or policies may be included on the Brocade site, as may be amended from time to time, and shall apply to the Software.

    4.3 Hardware Specific Support Terms.

    a) General. If any Covered Hardware malfunctions, Brocade will repair or replace such Covered Hardware, or any parts of the Covered Hardware as provided in the applicable Support plan. Any item Brocade replaces will become Brocade's property, and the replacement item will become Customer's property. The replacement items may not be new, but will be in good working order and at least functionally equivalent to the item replaced. Before Brocade exchanges any Hardware, Customer must remove all features, parts, options, alterations, encumbrances, and attachments not provided by Brocade. Customer also agrees to ensure that the item is free of any legal obligations, encumbrances, or restrictions that could prevent its exchange. Based on the Support plan selected by Customer, Customer may be responsible for shipping costs related to any such returns. The provision spares is subject to availability and lead time.  Onsite labor required to fulfill the Support plan selected may require an estimated thirty (30) days from receipt of order to provision.

    c) Customer Responsibilities. For USDX and Edge products, Customer is responsible for provisioning remote access via Brocade-provided dial-in modem to enable remote diagnostics, troubleshooting and software Upgrades.

    d) Exclusions. Support does not cover servicing of Covered Products damaged by misuse, accident, , improper installation, misapplication, modification, unsuitable physical or operating environment, abnormal physical or electrical stress, improper maintenance (unless by Brocade), removal or alteration of switch or part identification labels, or failure caused by a product for which Brocade is not responsible. Brocade may charge Customer separately for any services provided by Brocade related to such damaged Product.

    e) Recertification of Hardware Products. Customer may request Support on Hardware Products previously supported by another party or for which Support services have lapsed. Brocade may require that such Hardware Product be recertified for a fee. Upon receipt and acceptance of a purchase order, Brocade will commence Support in accordance with the start date on the quotation and will schedule the recertification activity. Should a request for remedial Support be received prior to the completion of the recertification, such service may be delayed (including related response time commitments) until such time as the recertification is completed. Should Brocade deem that the Products are unsupportable, or if Customer fails to implement the required corrective actions identified by Brocade as a result of the recertification, the applicable Support shall be terminated, and Customer will be notified accordingly and a credit or refund will be provided for any applicable prepaid Support fees

  5. Professional Services Specific Terms.

    5.1 Working Hours. Unless expressly agreed in writing by Brocade, all Professional Services shall be performed during normal business hours. Requests for Professional Services outside of normal business hours will be subject to additional charges

    5.2 Facilities. Professional Services may be performed on Customer's site. Customer agrees to provide the facilities reasonably necessary for Brocade to perform the Professional Services, including a safe and suitable workspace for the Brocade employees or contractors performing the Professional Services, as well as appropriate access to Product and third party hardware, software and/or services. For security and safety reasons, a Customer representative shall be available on-site whenever Brocade employees or contractors are performing the Professional Services at such facilities.

    5.3 Prerequisites. Prior to the commencement of the Professional Services, Customer agrees to take all prerequisite steps identified by Brocade, including without limitation, (i) ensuring that all manufacturers' labels (such as serial numbers) are in place, accessible, and legible, (ii) obtaining authorization to have Brocade service a Product that Customer does not own, (iii) licensing, purchasing and/or paying licensing fees and installing the required software and obtaining a license or appropriate permission for Brocade to access and use such software, (iv) testing all hardware and software necessary to perform the Professional Services, and all such hardware and software documentation shall be made available to Brocade,(v) ensuring it has completed appropriate backups of all data prior and (v) any other prerequisites identified by Brocade. Brocade will have no responsibility or obligation if Customer fails to complete pre-requisite steps in whole or in part.  Further, Customer acknowledges and agrees that any failure to perform the prerequisites may result in voiding applicable warranties and Support obligations of Brocade or warranties and support obligations other third parties, a delay in performance or additional costs for the particular service. Customer shall indemnify, defend and hold Brocade harmless for Customer's breach of this provision.

    5.4 Scheduling Professional Services. Brocade shall contact Customer's representative to schedule the Professional Services. All Professional Services must be scheduled to begin within one hundred eighty (180) days of the date of the order.

    5.5 Cancellation. Brocade Resident Consultant Professional Services are non-cancellable during the contracted term, and Customer is required to make payment in full for such Professional Services. In all other cases, unless otherwise quoted by Brocade, Customer may cancel the Professional Services at any time on thirty (30) days prior written notice to Brocade. In such event, Customer shall pay Brocade for all Professional Services performed through the date of termination and reimburse Brocade for all expenses incurred and billable pursuant to this Agreement. In addition, should any such Professional Services remain unfulfilled at the end of the anticipated term of this Agreement as a result of Customer's delay in allowing Brocade to commence work or Customer's failure to make the appropriate facilities available or to perform necessary prerequisites, Brocade may cancel the unfulfilled Professional Services on thirty (30) days prior written notice. Except with respect to Brocade Resident Consultant Professional Services, Brocade will credit or refund any prepaid fees applicable to cancelled Professional Services not performed on the date of termination, less any volume or other discount taken to which Customer is no longer entitled.

    5.6 Rights in the Software Deliverables. The following terms shall apply only for Software deliverables expressly provided by Brocade as part of the Professional Services. Subject to the terms and conditions of this Agreement and payment of the applicable license fees, Brocade and its third party licensor, if applicable, grant to Customer a non-exclusive, non-transferable license to use the applicable Software deliverables in object code form solely for internal purposes and solely the purposes set forth in the relevant Brocade product documentation. Customer shall have no right to sublicense such Software deliverables or any rights related thereto.

    5.7 Acceptance Procedures. Upon completion of the Professional Services which are subject to acceptance under the terms of the Brocade quotation, Customer shall have ten (10) days (or such other time period specified in the quotation) following the date of delivery to evaluate such Professional Services. On or before the tenth (10th) day following such delivery, Customer shall provide Brocade with either (i) a written acceptance of the Professional Services; or (ii) written notice of rejection describing in detail the deficiency that is the basis for the rejection. A deficiency is a material non-conformity of the Professional Services to the acceptance criteria stated in the applicable Brocade quotation, or in the absence of such criteria, a material non-conformity to the description of the Professional Services set forth in the quotation. In the event that Customer rejects the Professional Services in accordance with the afore-described procedure, Brocade will use diligent efforts to correct the deficiency promptly. The Professional Services and any associated deliverables that are re-performed or redelivered shall be subject to Customer's acceptance in accordance with this provision. In the event Customer fails to accept or reject the Professional Services within 10 days after Brocade's completion of the applicable Professional Services, or accept or reject re-performed Professional Services within 10 days after Brocade's completion of the applicable Professional Services, the Professional Services shall be deemed accepted by Customer, and Customer shall have no further right to reject the Professional Services.

    5.8 Right to Instruct. Brocade consultants deployed to perform any services for Customer under this Agreement are under the exclusive supervision and instruction of Brocade. Brocade reserves the exclusive right to instruct its consultants, in particular with respect to work hours and the scope and manner of services to be performed under this Agreement. Customer has no rights to instruct Brocade's consultants whatsoever.

    5.9 Brocade Resident Consultant Specific Terms. Brocade has a specific Professional Service offering where Brocade provides a Brocade Resident Consultant ("BRC") to perform ongoing Professional Services at the Customer facilities. With respect to any Customer order for a BRC, the following terms shall apply. Any Professional Services provided by a BRC shall not be subject to the acceptance provisions set forth above, and such Professional Services shall be billed on or before commencement of the services, unless another billing time frame is set forth in the applicable Brocade quotation. For BRC's purchased on an annual basis, the availability of a BRC is subject to the local employment laws and Brocade shall have the right to substitute certain BRC(s) in order to comply with such laws.

    5.10 Security and Conduct. Customer shall maintain industry standard security policies, practices and procedures, and shall comply with all applicable laws and regulations and with all applicable health, safety and security rules, programs and procedures.

    5.11 Indemnity. Customer hereby agrees to indemnify and hold harmless Brocade, its subsidiaries and affiliates, and their respective officers, directors, employees and agents (the "Indemnitee") 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  Customer's 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 tortious willful misconduct or gross negligence on the part of Customer.

  6. Orders, Shipping, Returns, Cancellations

    6.1 Order Process.

    a) Purchase Orders. "Purchase Order" means each of Customer's written or electronic purchase order request for Product, or other written purchase order forms submitted by Customer to Brocade.

    i) Customer shall issue to Brocade binding Purchase Orders in accordance with this Agreement. All Purchase Orders shall refer to this Agreement, bear a separate, unique number and contain, at a minimum, the following information relative to purchases made under this Agreement: (a) the part number and description of Product purchased; (b) the quantity of each Product to be purchased; (c) routing instructions; (d) the desired shipment date; (e) a valid email address and such other information required by Brocade and (e) the destination.

    ii) If for any reason Brocade cannot process Customer's Purchase Order, Brocade shall so notify Customer.

    iii) Brocade reserves the right to reject any Purchase Order that does not conform to the provisions of this Agreement or to cancel any Purchase Order previously accepted.

    b) Rescheduling. During any calendar quarter during the term of this Agreement, Customer may request a Hardware Product shipment rescheduled, one (1) time only, from the original requested shipment date of a Purchase Order by providing written notice to Brocade at least fourteen (14) days prior to the requested shipment date and provided such later shipment date is no more than thirty (30) days after the original desired shipment date but within Brocade's fiscal quarter. Orders for Software may not be rescheduled by Customer.

    c) Cancellation. Customer may cancel Purchase Orders for Hardware without incurring a charge provided such cancellation request is received in writing by Brocade at least thirty (30) days prior to the original shipment date. If Brocade accepts (at its sole discretion) a cancellation request outside of this policy, Brocade may charge restocking/cancellation fees.

  7. 6.2 Shipping & Delivery.

    a) Shipment Dates. Ship dates are estimates only. Brocade reserves the right to make partial shipments based on availability.

    b) Delivery and Packaging. U.S. deliveries for Hardware will be made Ex Works manufacturing site or distribution center (EXW per Incoterms 2010) and international deliveries will be made Free Carrier manufacturing site or distribution center (FCA per Incoterms 2010). Customer shall provide Brocade with all information necessary requested by Brocade to provide the Brocade Offerings. In the absence of specific written instructions from Customer, Brocade will select the carrier for shipment of Hardware, but such carrier will not be the agent of Brocade. Brocade will pack all Product shipped in accordance with standard commercial practices. With respect to Software, upon acceptance of a purchase order from Customer or confirmation of payment by Customer, Brocade shall make the Software available electronically for download by Customer or otherwise provide Customer instructions on how to obtain a copy of the Software.  The term of the Software license and for Support for Software, Education and Certifications (if any) shall begin on the date that Brocade issues a fulfillment email unless instructed otherwise by Brocade. Brocade is not responsible for typographical errors or mistakes.  Customer will contact its sales representative if it does not receive the fulfillment email. Brocade is not responsible for typographical errors or mistakes.  Customer is responsible for the use and security of the information provided by Brocade to Customer related to the Brocade Offerings.

    c) Expenses. Customer shall pay all freight, insurance and other shipping expenses, as well as any special packing expenses or additional charges. Customer shall also bear all applicable taxes, duties and similar charges that may be assessed against the Products after delivery to the carrier from Brocade's facility.

    6.3 RMA Procedure. Customer shall not return any Hardware Product which Customer determines to be defective without a return material authorization number ("RMA") issued by Brocade. For every Product returned by Customer as authorized by Brocade: (i) Customer must provide Brocade with the serial number of the Product; (ii) Brocade shall verify whether or not Product is within the applicable Warranty Period or Customer is otherwise entitled to repair or replacement of Product without charge; (iii) (a) if Customer is entitled to return Product for repair/replacement without charge, then Brocade shall issue to Customer an RMA, and (b) if Product is not under warranty, then Customer must issue a purchase order for service to Brocade, upon receipt of which Brocade will issue an RMA to Customer; (iv) Customer shall ship the Product together with the RMA information to the address provided by Brocade; and (v) Brocade shall repair or replace Product. Customer shall pay freight costs for return shipment by Brocade to Customer of any Product claimed by Customer to be defective but determined by Brocade not to be defective. The repair lead time is generally estimated to thirty (30) days from receipt of the returned Product at Brocade's repair facility; however, actual repair lead time varies depending on Product availability and other factors. Where applicable for shipments to locations outside the United States, Customer or Customer's assigned agent will act as "Importer of Record" for shipments of repaired/replacement units and will be responsible for payment of any import duties, taxes and fees.

  8. Warranties and Disclaimers.

    7.1 Brocade General Warranty. Brocade warrants to Customer that (i) Brocade has the right, power and authority to enter into this Agreement and to fully perform all its obligations hereunder; and (ii) the making of this Agreement does not violate any agreement existing between Brocade and any third party.

    7.2 Customer General Warranty. Customer warrants Brocading that (i) Customer has the right, power and authority to enter into this Agreement and to fully perform all its obligations hereunder; and (ii) the making of this Agreement does not violate any agreement existing between Customer and any third party.

    7.3 Warranties for Brocade Offerings.

    a) Professional Services Warranty. Brocade warrants for a period of thirty (30) days: (i) following the completion of the Professional Services, in the case where no acceptance procedure is applicable and; (ii) following acceptance of the Professional Services, otherwise, that all Professional Services will be performed in a professional and workman-like manner by appropriately trained personnel, using generally accepted industry standards and practices. As Brocade's sole liability and Customer's exclusive remedy for a breach of this warranty, if the Professional Services are not provided as warranted, Brocade will, at its sole discretion, either: (i) correct any material non-conformances in the Professional Services deliverables; (ii) re-perform the Professional Services; or (iii) credit Customer for the amount paid for the nonconforming Professional Services. This warranty does not apply to the extent any non-conformity relates to (i) any specifications, code, diagnostic or other tools, or any other materials provided by Customer; (ii) the integration, operation, modification, or use of the Professional Services or any deliverables in any manner not authorized by Brocade, and (iii) any changes to the network environment after the services were rendered.

    b) Hardware Warranty. Brocade warrants to Customer, for the warranty period set forth in Brocade's quotation for the applicable Hardware that the Hardware shall be free from material defects and shall substantially conform to the Specifications for such Hardware. Brocade's sole obligation and Customer's exclusive remedy for failure of the Hardware to conform to the warranty set forth in this Section shall be, at Brocade's expense and option, to repair/replace such defective Hardware within the normal manufacturing lead times applicable to such Hardware and to return such repaired Hardware to Customer or to refund the applicable portion of the fees paid by Customer to Brocade. "Specification" means the written specifications that accompany each Product. This warranty does not apply to Hardware which: (i) has been serviced or altered, except as expressly authorized by Brocade; (ii) have not been installed, operated, repaired, or maintained in accordance with any installation, handling, maintenance or operation instructions supplied by Brocade; (iii) have been subjected to unusual physical or electrical stress, misuse, negligence or accident; (iv) have been damaged as a result of accident, misuse or transporting; or (v) interoperate with third party products, such as optical transceiver components or third party software, which has not been recommended or certified by Brocade.

    c) Additional terms and conditions governing the warranties for Brocade Offerings can be found at http://www.brocade.com/services-support/returns-warranties/index.page. Brocade makes no other warranties. 

    7.4 No Other Warranties. EXCEPT AS EXPRESSLY SET FORTH IN THIS AGREEMENT, THE BROCADE OFFERINGS AND THIRD PARTY PRODUCT (IF ANY) ARE DELIVERED "AS IS" AND NEITHER BROCADE NOR ITS THIRD PARTY SUPPLIERS MAKES ANY OTHER WARRANTIES, EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, INCLUDING BUT NOT LIMITED TO IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT. TO THE EXTENT AN IMPLIED WARRANTY CANNOT BE EXCLUDED, SUCH WARRANTY IS LIMITED IN DURATION TO THE APPLICABLE WARRANTY PERIOD. Neither Brocade nor its third party suppliers warrant that the Brocade Offerings will meet Customer's requirements, or that the Brocade Offerings will operate in the combinations which Customer may select for use, or that the operation of the Brocade Offerings will be uninterrupted or error-free.   Availability of Brocade Offerings varies by location.  Brocade specifically disclaims any and all warranties and liability related to any security in the Brocade Offering. Customer acknowledges that security in Brocade Offerings does not guarantee the security of Customer's network, and that Customer is responsible for all other aspects of security, including without limitation, correct installation and setup of the security features of the Product and all related requirements, correctly configured security policies, selection of hardware and software (including network security tools), correct installation, configuration, and maintenance of the hardware and software, the interoperability of the various components of Customer's network, and a physically and electronically secure operating environment.

  9. Resale Products. "Resale Products" are those products or services that may be offered or sold with Brocade-branded Products. Resale Products are not manufactured or published by Brocade, and are not supported or serviced by Brocade. Should Brocade assist Customer in procuring Resale Products from a third party the third party, and not Brocade, shall be responsible any representations, warranties, obligations and offerings made by such third party.

  10. Insurance. Customer shall maintain, at its expense all necessary insurance including without limitation, workers compensation insurance, as required by law, and employers' liability insurance upon its employees as well as reasonable and comprehensive liability insurance for all operations necessary and incidental to this Agreement.

  11. Indemnification. Subject to the provisions of this Agreement, Brocade will defend and indemnify Customer against any third party claim that the Products (excluding Resale Products and open source) infringe a United States or a European Union patent, copyright or misappropriate a valid trade secret; provided Customer shall (i) promptly notify Brocade in writing of the claim, (ii) provide Brocade sole control over the defense and/or settlement of such claim, at Brocade's expense and with Brocade's choice of counsel, and (iii) at Brocade's request and expense, provide full information and reasonable assistance to Brocade with respect to such claim. Brocade will not be obligated to defend or be liable in any manner for infringement arising out of: (a) required compliance with Customer provided technology or specifications; (b) modification of a Product (except modifications provided by Brocade) or use of such Product in a manner not contemplated by Brocade; (c) Customer's combination of a Product with hardware, software or other materials not provided by Brocade; (d) Customer's failure to use reasonable materials or instructions provided by Brocade which would have rendered a Product non-infringing, (e) Customer's use of Software not currently supported by Brocade, or (f) Customer's use of Software in violation of the applicable license. Brocade has no obligations under this Section if Customer was aware of any actual, pending or threatened claims that are the subject Brocade indemnity obligation hereunder at the time Customer purchased the applicable license. Brocade obligation to indemnify applies only to final judgments entered in such a suit by a court of competent jurisdiction or proceeding and against settlements arising out of such a claim.  Customer may join in defense of a claim with counsel of its choice at its expense. Brocade shall not be liable to Customer under this Agreement for any Software if Customer does not have then-current Support for such Software. If, at any time, any Product becomes, or in the opinion of Brocade may become, the subject of claim of infringement as set forth in this Section, Brocade may, at its option and expense: (i) procure for Customer the right to continue using such Product; (ii) replace or modify such Product; or, in the event that neither (i) or (ii) is reasonably available, (iii) terminate this Agreement with respect to such Product.  Brocade will issue Customer a prorated refund equal to the original price paid by Customer for the infringing Hardware Product, discounted on a 3-year depreciation basis. For Software or Support, Brocade will issue a refund for any unused portion of the license or Support.  BROCADE WILL NOT BE LIABLE FOR ANY COSTS OR EXPENSES INCURRED WITHOUT ITS PRIOR WRITTEN AUTHORIZATION. THE FOREGOING PROVISIONS OF THIS SECTION STATE THE ENTIRE LIABILITY AND OBLIGATIONS OF BROCADE AND ITS SUPPLIERS, AND THE EXCLUSIVE REMEDY OF CUSTOMER WITH RESPECT TO ANY ACTUAL OR ALLEGED INFRINGEMENT OF ANY INTELLECTUAL PROPERTY RIGHT BY THE PRODUCTS OR ANY PART THEREOF OR BY THEIR OPERATION.

  12. Proprietary Rights. Brocade and its third party suppliers own and retain for itself all right, title and interest in and to all designs, engineering details, and other data and materials pertaining to the Products, Support or Professional Services supplied by Brocade and to all discoveries, inventions, patents and other proprietary rights arising out of the work done by Brocade in connection with the Products, Support and Professional Services or with any and all products developed by Brocade as a result thereof, including the sole right to manufacture any and all such Products. Customer warrants that it will not divulge, disclose, or in any way distribute or make use of such Products or Professional Services or related information, and that it will not manufacture or engage to have manufactured such Products.

  13. Confidential Information. The receiving party ("Recipient") agrees to maintain in confidence information disclosed by the other party ("Discloser") which it knows or has reason to know is regarded as confidential ("Confidential Information"). The Confidential Information will include, but will not be limited to, the terms and conditions of this Agreement (but not the existence of the Agreement), trade secrets, the structure, sequence and organization of any Brocade software or hardware, marketing plans, blueprints, techniques, processes, procedures and formulae. Recipient shall at all times keep in confidence all such Confidential Information, and shall not use such Confidential Information without Discloser's written consent except in performance of its duties hereunder. Recipient will not disclose the Confidential Information to any person except its employees to whom it is necessary to disclose the Confidential Information for such purposes. Recipient agrees that the Confidential Information will be disclosed or made available only to those of its employees who have agreed to receive it under terms at least as restrictive as those specified in this Agreement. Recipient understands and agrees that the obligation to protect Confidential Information shall be satisfied if Recipient utilizes the same control (but no less than reasonable) over the Confidential Information as Recipient employs to avoid disclosure of Recipient's own confidential and valuable information. Recipient will immediately give notice to Discloser of any unauthorized use or disclosure of the Confidential Information. Recipient agrees to assist Discloser in remedying such unauthorized use or disclosure of the Confidential Information. This obligation will not apply to the extent that Recipient can demonstrate: (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; (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; or (iv) the disclosed information is required to be disclosed by a government agency to further the objectives of this Agreement, such as to obtain permission to distribute the Product, or by a proper court of competent jurisdiction; provided, however, that 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. Nothing in this Agreement shall preclude Brocade from working with third parties, including subcontractors, neither on services or products nor on developing services or products similar to the Professional Services herein. 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 the Customer's Confidential Information for any purpose. Brocade and Customer are free to develop products independently without the use of the other's Confidential Information. Brocade is not obligated to restrict the future work assignments of people who have had access to Customer's 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 from providing the Professional Services or Support relating to Service Request resolution, troubleshooting, Product functionality enhancements and fixes. 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. To the extent that Brocade provides Customer serial numbers, access codes, entitlement numbers or the license to access to Software, the documentation, or Support, Customer will be responsible for the security and use of such information. If Customer believes such information has been lost, stolen, misused, Customer must immediately notify Brocade and its designated Support contact.

  14. Export Controls. Customer acknowledges that the Product or technology provided under this Agreement 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. Customer acknowledges and agrees that it will not import, export, or re-export, directly or indirectly, the Product or technology provided under this Agreement 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 Customer transacts business. Customer also agrees that they 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.  Customer acknowledges 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.  Customer 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.

  15. LIMITATION OF LIABILITY. EXCEPT IN THE CASE CUSTOMER'S BREACH OF THE OF ANY SOFTWARE LICENSE OR OTHER INTELLECTUAL PROPERTY RIGHT OF BROCADE OR ITS SUPPLIERS OR FOR EITHER PARTY'S BREACH OF CONFIDENTIALITY OBLIGATIONS, IN NO EVENT WILL EITHER PARTY BE LIABLE FOR ANY CONSEQUENTIAL, INCIDENTAL, INDIRECT, SPECIAL OR PUNITIVE DAMAGES OF ANY KIND. IN ADDITION, IN NO EVENT WILL EITHER PARTY BE LIABLE FOR LOSS OF PROFITS OR REVENUE, LOST BUSINESS, AND LOST OR CORRUPT DATA OR GOODWILL ARISING OUT OF OR RELATED TO THIS AGREEMENT HOWEVER CAUSED AND ON ANY THEORY OF LIABILITY. THESE LIMITATIONS SHALL APPLY NOTWITHSTANDING THE FAILURE OF THE ESSENTIAL PURPOSE OF ANY LIMITED REMEDY. BROCADE'S ENTIRE LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT SHALL BE LIMITED TO THE AMOUNTS PAID HEREUNDER IN THE TWELVE (12) MONTH PERIOD PRIOR TO THE DATE THE CAUSE OF ACTION AROSE. THE FOREGOING LIMITATIONS SHALL NOT APPLY ONLY TO THE EXTENT THAT, SUCH CONTRACTUAL LIMITATIONS CANNOT, UNDER APPLICABLE LAWS, SO LIMIT BROCADE'S LIABILITY.

  16. Term and Termination.

    15.1 Term and Termination. The term of this Agreement will be coterminous with the applicable order or other documentation that is specifically governed by this Agreement.

    15.2 Effect of Termination and Survival. Notwithstanding any other obligation hereunder, upon any termination or expiration of this Agreement, Customer shall return to Brocade each and every copy or certify destruction, and Customer shall not retain any copies, of any Brocade Confidential Information and Software. The following provisions shall survive termination or expiration of an applicable order: 1 ("Scope"), 2 ("Consideration"), 3.2 ("Additional Software Terms"),  5.10 ("Indemnity"), 7.4 ("No Other Warranties"), 8 ("Resale Products"), 9 ("Insurance"), 11 ("Proprietary Rights"), 12 ("Confidential Information"), 13 ("Export Controls"), 14 ("Limitation of Liability"), 15.2 ("Effect of Termination and Survival"), and 16 ("Miscellaneous").

  17. Miscellaneous.

    16.1 Governing Law; Venue.  All disputes arising out of this Agreement and/or any Customer order issued hereunder to Brocade-US or disputes involving more than one Brocade entity out of which one is Brocade-US shall be 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, and agree that service on Customer at its address set forth above shall constitute valid service for any proceeding in the courts of that jurisdiction.  Such Agreement and Customer order(s) shall be governed by the laws of California without reference to conflict of laws principles.  All disputes arising out of or in connection with this Agreement and/or any Customer order issued hereunder to any Brocade entity other than Brocade-US 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.  This choice of jurisdiction does not prevent either party from seeking injunctive relief with respect to a violation of intellectual property rights or confidentiality obligations in any appropriate jurisdiction.  Such Agreement and Customer order(s) shall be governed by the laws of Switzerland without reference to conflict of laws principles.  The U.N. Convention on the International Sale of Goods shall not apply to this Agreement. 

    16.2 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 this Agreement.

    16.3 Severability. If any term or other provision of this Agreement 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 this Agreement 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 term or other provision is invalid, illegal or incapable of being enforced, that term or provision shall be severed from this Agreement and 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.

    16.4 Force Majeure. Except for payment obligations, neither party shall be liable for the performance of its obligations under this Agreement 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. In no event shall Brocade be required to purchase goods from others to enable it to provide the Products under this Agreement. 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. 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.

    16.5 Independent Contractors. The relationship between the parties established by this Agreement is that of independent contractors, and nothing in this Agreement 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.

    16.6 Subcontractors. Brocade may delegate its duties to subsidiaries or engage subcontractors to perform certain of its obligations under this Agreement=
  18. 16.7 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.

    16.8 Nuclear, Aviation or Life Support Application. Brocade specifically disclaims liability for use of the Products in connection with the design, construction, maintenance and/or operation of any (i) nuclear facility, (ii) aircraft, aircraft communication or aircraft ground support system, or (iii) safety or health care control system, including without limitation, life support system.

    16.9 U.S. Government Restricted Rights. The Software and any accompanying documentation provided under this Agreement 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 Customer is 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 terms of this Agreement and shall be prohibited except to the extent expressly permitted by the terms of this Agreement. 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).

    16.10 Excluded Data. The Software provided under this Agreement is 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 Customer's internal policies or practices or by law or regulation ("Excluded Data"). Customer agrees that Customer is solely responsible for reviewing and ensuring its data provided to Brocade (or to which Brocade will have access) does not contain Excluded Data.

    16.11 Audit & Retention of Records. Upon reasonable notice, Brocade shall have the right to audit and inspect Customer's usage of the Software and to verify Customer's compliance with the provisions of this Agreement (including all payment terms) during Customer's normal business hours.  Customer shall promptly remedy any underpayments that are discovered, and if any underpayment exceeds 5% of the amount owed over the audited period, then Customer shall reimburse Brocade for the costs of the audit. Each party shall retain the applicable records pertaining to its performance obligations for five (5) years after the termination or completion of such obligation.

    16.12 Notices. All notices under this Agreement shall be in writing and shall 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) 333-5630.

    16.13 Assignment. Customer shall not, directly or indirectly, in whole or in part, whether by operation of law or otherwise, assign or transfer this Agreement, 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 this Agreement, in whole or in part, and any of its rights and obligations hereunder, in its discretion. Without limiting the foregoing, this Agreement will be binding upon and inure to the benefit of the parties and their permitted successors and assigns.

    16.14 Remedies Cumulative. All rights and remedies existing under this Agreement are cumulative to, and not exclusive of, any rights or remedies otherwise available.

    16.15 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 this Agreement except by an instrument in writing signed on behalf of each of the parties to such agreement.

    16.16 No Implied Licenses. Nothing contained in this Agreement shall be construed as conferring any rights by implication, estoppel or otherwise, under any intellectual property right, other than the rights expressly granted in this Agreement.

    16.17 Entire Agreement. This Agreement and all Customer orders attached hereto constitutes the entire agreement between the parties with respect to the subject matter hereof and shall supersede all prior written and oral and all contemporaneous oral agreements and understandings with respect to the subject matter hereof.

    16.18 Translations. This Agreement 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 this Agreement, 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 Agreement (and all associated documents or correspondence concerning this Agreement), the English language version shall prevail.

    REV110113

     

    Reseller Terms and Conditions of Sale

    THIS SALES AGREEMENT ("AGREEMENT") IS AN OFFER BY BROCADE COMMUNICATIONS SYSTEMS, INC., ITS SUBSIDIARIES, OR ITS AFFILIATES ("BROCADE") FOR RESELLER ("RESELLER") TO ENTER INTO A CONTRACT WITH BROCADE FOR BROCADE OFFERINGS (DEFINED BELOW) AS SET FORTH IN THE QUOTATION TO WHICH THESE TERMS AND CONDITIONS APPLY. RESELLER MAY ONLY ENTER INTO A CONTRACT WITH BROCADE BY ACCEPTING THIS OFFER. RESELLER'S ACCEPTANCE IS EFFECTIVE UPON ISSUANCE OF A PURCHASE ORDER IN CONNECTION WITH THE APPLICABLE BROCADE QUOTATION.

    THIS OFFER EXPRESSLY LIMITS ACCEPTANCE TO THE TERMS AND CONDITIONS EXPRESSLY SET FORTH IN THIS OFFER. BROCADE EXPRESSLY REJECTS ANY TERMS OR CONDITIONS THAT MAY HAVE BEEN DISCUSSED OR PROPOSED IN PRIOR NEGOTIATIONS OR COMMUNICATIONS. RESELLER MAY ONLY ACCEPT THIS OFFER AND ENTER INTO A CONTRACT BY AGREEING TO THE TERMS AND CONDITIONS CONTAINED IN THIS AGREEMENT.

     

    RESELLER MAY NOT ACCEPT THIS OFFER IN A MANNER THAT PROPOSES ANY ADDITIONAL OR DIFFERENT TERMS OR CONDITIONS. IN THE EVENT THAT A COURT DETERMINES THAT RESELLER ACCEPTED THIS OFFER IN A MANNER THAT PROPOSES ADDITIONAL OR DIFFERENT TERMS OR CONDITIONS, BROCADE HEREBY PROVIDES NOTICE OF OBJECTION TO ANY ADDITIONAL OR DIFFERENT TERMS OR CONDITIONS. ANY TERMS OR CONDITIONS THAT ARE ADDITIONAL OR DIFFERENT FROM THOSE CONTAINED IN THIS AGREEMENT MAY ONLY BECOME PART OF A CONTRACT BY WAY OF A SEPARATE WRITING, SIGNED BY BOTH PARTIES.

    IF RESELLER HAS PURCHASED OR OBTAINED BROCADE-BRANDED PRODUCTS OR SERVICES FROM A THIRD PARTY, RESELLER WILL BE SUBJECT TO THE TERMS AND CONDITIONS OF ITS AGREEMENT WITH SUCH THIRD PARTY WHICH MAY BE IN ADDITION TO TERMS AND CONDITIONS THE THIRD PARTY IS REQUIRED TO PASS THROUGH TO ITS END USER .

    1. Definitions.

      a) "Brocade Offerings" the Products, Professional Services, Education, Certification or Support offered by Brocade from time to time at Brocade's sole discretion.

      b) "Brocade Services" refers to Professional Services, Support, Training, and Education collectively.

      c) "Education" refers to the education related offers by Brocade as described at www.Brocade.com.

      d) "End-User" means any entity purchasing or otherwise obtaining Brocade Offerings from Reseller for its own internal end-use and not for reselling, distributing, or sub-licensing to others.

      e) "Hardware" includes any Brocade hardware products which may be new, equivalent-to-new or reconditioned, and any related documentation and manuals.

      f) "Hypervisor" means the software provided by a third party that may be proprietary or open source software and it allows one or more Virtual Machines to run concurrently on a host server.

      g) "Networking Software Offers" or "NSO" refers to Brocade's Network Functions Virtualization and other software networking offers as designated solely by Brocade.

      h) "Professional Services" includes Product implementation, configuration, provision of BRC's (as defined in Section 5) and other services provided under this Agreement by Brocade.

      i) "Products" includes Hardware, Software or any combination thereof in whole or in part offered by Brocade under this Agreement.

      j) "Software" includes any software offered by Brocade to Reseller , including but not limited to, any bundled firmware, or standalone software products, NSO or other software, any backup copies of such software, and any related documentation and manuals; and any Upgrades (as defined in this Agreement) and  derivatives thereof.

      k) "Support" includes maintenance and/or support service offers as applicable to each Product as described on www.Brocade.com.

      l) "Training" refers to the training offers by Brocade as described at www.Brocade.com.

      m) "Virtual Machine" means a software based implementation that emulates the computer architecture and functions of a real world computer. 

    2. Consideration.

      2.1 Prices and Payment Terms. Credit and credit terms are within Brocade's sole discretion. Brocade is not responsible for pricing, typographical or other errors and reserves the right to cancel any orders arising from such errors. Unless otherwise provided in Brocade's quotation or proposal, charges due are billable as follows: (i) charges for Products are billable upon shipment by Brocade, (ii) charges for Professional Services are billable as set forth in the applicable Brocade quotation or proposal, (iii) charges for Brocade Services (excluding Professional Services) are billable in advance; and (iv) all other charges are billable as the work is performed or costs are incurred. Reseller will pay any reasonable out-of-pocket travel costs and expenses, if applicable, including without limitation amounts for airline, automotive, meals, hotel, and related expenses for Professional Services. Unless specified otherwise by Brocade, Reseller shall pay amounts due and payable to Brocade within thirty (30) days of the date of the invoice. Payment shall be made to the applicable Brocade entity named on the order. Unless otherwise specified in the applicable Brocade quotation or proposal, all payments are to be made in United States Dollars. In addition to any other remedy available to Brocade for late payment, Reseller shall pay Brocade interest on any amount not paid when due 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. With respect to any Software and related documentation and Brocade Services licensed or purchased in the United States, this Agreement is entered into, and all offerings shall be performed and delivered by or on behalf of Brocade Communications Systems, Inc. in the United States.  When the Software and related documentation and Support or other services are to be licensed or purchased outside the United States, this Agreement is entered into, and shall be performed by or on behalf of Brocade Communications Switzerland SarL in Switzerland.

      2.2 Taxes. All stated prices are exclusive of any taxes, fees, and duties or other amounts, however designated, and including without limitation value added and withholding taxes that are levied or based upon such charges, or upon this Agreement. Except for taxes based on or measured by Brocade's net income, Reseller will be responsible to pay, or reimburse Brocade for its payment of, all customs charges, duties, and sales, use, gross receipts, value added, goods and services or other taxes or fees imposed under or by any governmental authority, whether levied against Brocade or Reseller, and associated with the sale of the Brocade Offerings, their installation or use or the payment of any amount by Reseller to Brocade. If Reseller claims an exemption from its obligation to pay any such taxes, it shall be Reseller's responsibility to provide Brocade with an appropriate tax exemption certificate. If any applicable law requires Reseller to withhold amounts from any payments hereunder, then Reseller will effect such withholding, remit such amounts to the appropriate taxing authorities and promptly furnish tax receipts evidencing the payments of such amounts. All payments shall be made free and clear without deduction for all present and future taxes imposed by any taxing authority. In the event that Reseller is prohibited by law from making any payment unless such deductions are made or withheld, Reseller shall pay Brocade additional amounts as are necessary to ensure the net amounts received by Brocade, after deduction or withholding, equal the amounts that would have been received if the deduction or withholding had not occurred.  Reseller shall promptly furnish Brocade with a copy of an official tax receipt or other appropriate evidence of any tax imposed on payments made under this Agreement, including but not limited to taxes on any additional amounts paid.  Reseller and Brocade agree to cooperate to minimize any applicable taxes, including reasonable notice and cooperation in the case of any audit. This clause shall survive the termination of the Agreement.

    3. Licenses & License Restrictions

      3.1      Limited License.  Subject to the provisions of this Agreement, Reseller may resell certain Brocade Offerings to End-Users. Reseller shall not market, resell, or use Brocade Offerings other than as expressly permitted in this Agreement. Reseller understands that not all Brocade Offerings may be purchased for resale under this Agreement. Certain activities require that Reseller to enter into a separate written agreement with Brocade, including but not limited to (i) use of Software to provide services to and on behalf of End-Users, (ii) use and reproduction of Software to combine with Reseller's software products or other products to create one unified product ("Bundled Product") and marketing, distribution and sublicensing of the Brocade Offerings to End-Users as part of the Bundled Product, and (iii) selling renewals of certain Brocade Offerings.  Reseller shall not market or resell Brocade Offerings (i) to any consumers, resellers, distributors, or third-party sales agents; or (ii) through retail storefronts, online stores, or auction or resale websites.    For each Brocade Offering, Reseller shall deliver to and enter into a valid, binding and enforceable agreement passing through or that includes the applicable End User Agreement from Brocade. Reseller agreement with End Users must be consistent with the terms and conditions in applicable End User agreement published by Brocade. No rights under the End User Agreement are conveyed to Reseller.  If no license agreement is published or otherwise distributed with the Brocade Offering, then subject to the provisions of this Agreement Brocade and its suppliers grant to Reseller a limited, non-exclusive, non-transferable, non-assignable, license to sublicense the applicable Software only  in object code form solely for use by End user for the End User's internal purposes and solely for the purposes set forth in the Product documentation.  All license(s) obtained under this Agreement are subject to the NSO policies located at www.Brocade.com and may include additional limitations such as use on a supported Hypervisor to implement a Virtual Machine (each implementation is hereinafter referred to as an "Instance") or use on a defined server ("Bare Metal").  Please reference the quote and invoice as well as www.Brocade for more information. Reseller agrees that a breach of this Section shall constitute a material default under this Agreement for which Brocade may have no adequate remedy at law, such that injunctive or other equitable relief may be appropriate to restrain such breach, whether threatened or actual.

      3.2      Additional Software Provisions. Any and all Software delivered hereunder is licensed, not sold. Except as otherwise expressly provided in this Agreement, Reseller  will not itself, or through any parent, subsidiary, affiliate, agent, or other third party nor permit its End Users or other third parties to: (i) modify, adapt, change, enhance or create derivative works based upon the Software; (ii) copy, or otherwise reproduce the Software including without limitation any prototypes, software or other tangible objects provided under this Agreement in whole or in part; (iii) decompile, translate, reverse engineer, disassemble, attempt to discover any source code or underlying ideas or algorithms, structure, architecture or algorithms of any Software (except to the extent that applicable law or any public license prohibits reverse engineering restrictions, or copy the Software or otherwise reduce the Software to human-readable form; (iv) use the Software on any Hypervisor, appliances, hardware, or  Product in excess of the number of the Virtual Machines, Instances,  appliances, hardware or Product for which it is licensed; (v) remove, modify or otherwise tamper with any notice or legend on any labeling on any physical media containing the Software; (vi) use , license, sell, transfer, or any way distribute, sublicense or allow others to use the Software that is outside the scope of the licenses granted herein and for which Reseller and its End Users have not paid the applicable fees for the Brocade Offerings and , (vii) provide, lease, lend, use, disclose, divulge or make available to, or permit for timesharing or service bureau purposes or (except as expressly required and contemplated by the Documentation), or (iii) take any action that would cause the Software or any portion thereof, to be placed in the public domain.  If Reseller believes it may need to decompile the Software for the purposes of obtaining the interface information, Reseller will request Brocade to provide it with this information. Brocade will charge Reseller for its corresponding services at the applicable hourly rates. Reseller may not extract or run any component of the Software independently and must use the Software only in accordance with the documentation. Further, Reseller shall not utilize any Software in whole to pass traffic in a network with an unpaid Vyatta Community Edition.  Reseller's and its End User's rights in the Software will be limited to those expressly granted herein subject to the additional restrictions set forth in this Agreement.  All the limitations, restrictions and provisions related to Software in this Agreement also apply to documentation.   

      3.3      Other Third Party Software. The Brocade Offerings may consist of or contain additional third party software and such third party software may be licensed under terms different from those in this Agreement.    Portions of the Software are licensed under public licenses (including the GNU General Public License ("GPL"), the GNU Lesser General Public License ("LGPL"), and other public licenses, each a "public license"). Rights and obligations with respect to various components of the Software are as set forth in the applicable public license and this Agreement.  The electronic media or content downloaded from a Brocade Website will identify the license that applies to certain software application packages in the Software, and a copy of each applicable license will be provided in the source code of those portions of the Software. Otherwise, to obtain a copy of the source code and applicable licensing terms for the open source software used by Brocade, please see the following web sites (as may be updated from time to time): http://www.brocade.com/support/oscd.jsp, and www.vyatta.org. Reseller and its End Users must agree to the terms of each applicable public license or not exercise such licensed rights. For clarity, this Agreement is not intended to change or restrict the terms of any public license, and Brocade does not seek to restrict, or receive compensation for, the copying or redistribution of publicly licensed code which is otherwise freely re-distributable to third parties (and not otherwise restricted by federal trademark or other laws). Brocade disclaims any and all liability and warranties with respect to such open source software except as expressly set forth in the documentation accompanying the software.

    4. Brocade Services.

      4.1 General.

      a) Brocade Services. Brocade Services may vary by geography.  If Reseller's purchase includes Brocade Services, Brocade will provide the Brocade Services as identified on the Brocade quote ("Covered Hardware" and "Covered Software", respectively or collectively "Covered Product") to the End Users subject to the provisions of this Agreement and the policies and plans described on Brocade website at www.Brocade.com which may be modified from time to time without notice and at Brocade's sole discretion. If Reseller fails to pay amounts due and payable under this Agreement or any other Agreement with Brocade, Brocade shall have no obligation to perform or provide Brocade Services under this Agreement. Whenever an issue is reported to Brocade related to the Covered Products ("Service Request"), the Reseller or End User will classify the Service Request according to the "Severity Level" descriptions located in the Support Plan Policies document located on Brocade's website.  Additional charges may apply if Brocade determines that the cause was not related to the Covered Products or the request is not covered by the applicable Support plan. Brocade will not provide support for any customizations or unique implementations of Software under its general Support plans. Any such assistance will be provided on a time and material basis.

      b) Support Term and Renewal. The initial term applicable to each Support quotation will begin (i) in the case of newly acquired Products (excluding NSO), on the date of shipment; (ii) in the case of NSO Support (and its related licenses), on the date Brocade issues the fulfillment email (ii) in the case of previously shipped Hardware Products, on the effective date specified on the applicable quotation, and such services shall continue through the term stated on the quotation. Thereafter, such Support for Products will only be renewed based on Brocade's renewal quotation to Reseller and receipt of Reseller's corresponding purchase order.  For each renewal term, Brocade may, upon thirty (30) days prior written notice before the end of any Support term, increase the yearly fees for Support, provided that such increase will not exceed the lesser of (i) Brocade's then current commercial list price, or (ii) five percent (5%) over the prior year's Support fees. To the extent that Reseller wishes to obtain a different Support plan or the Support has been modified (e.g., service level, duration, product mix/quantity), the renewal fees will be at Brocade's then current price list. Notwithstanding the foregoing, should Brocade announce "Last Reseller Ship" (defined below) on a Product being maintained for Reseller, Brocade may, at the beginning of the next Support renewal term and each year thereafter, increase the Support fee for such Product to its then current commercial Support list price.

      "End of Life" is Brocade's structured lifecycle management program for Products, including (i) "End of Sale", defined as the last date a Product is sold commercially; (ii) "Last Reseller Ship" defined as the last date a Product is shipped to a commercial Reseller after its End of Sale date; and (iii) "End of Support" is defined as the last date a Product is supported after its End of Sale date.

      c) Covered Products. If Reseller modifies, alters or changes the Covered Products such changes could impact or void your Support and result in additional fees. Reseller is responsible for activating the Support plan for all Covered Products, including changes made to the Covered Product list, via Brocade's website under "Support". 

      d) Third Party Product Interoperability. Due to interoperability requirements, Reseller agrees that the use of any third party products, including but not limited to, optical transceiver components and third party software, which have not been recommended or certified by Brocade may cause errors in the operation of the Products or may cause additional resolution time for Brocade under its Support obligations hereunder. Reseller acknowledges that use of any such third party products shall release Brocade from the performance of Brocade's Support obligations to the extent related thereto, and Reseller agrees to pay Brocade for any time spent by Brocade diagnosing such problems which shall be billed at Brocade's hourly billing rate.

      e) Cancellation. Reseller may cancel Support services for Hardware at any time on thirty (30) days prior written notice to Brocade. In such event, Brocade shall credit any Support fees prepaid for the period after such termination, less any prepayment or multi-year discount taken to which Reseller is no longer entitled. Notwithstanding the foregoing, unless otherwise expressly quoted by Brocade, charges applicable to a Support Account Manager ("SAM") or Onsite Engineer ("OSE") are non-refundable in the event that Support services are cancelled by Reseller.

      4.2 Software Specific Support Terms.

      a) Upgrades. Brocade will use reasonable efforts to provide a Patch for any material deviation between the current release of the Covered Software and its Specifications which is reported by Reseller to Brocade and is reproducible by Brocade. Additionally, Brocade may provide Reseller with Maintenance Releases, Feature Releases and Platform Releases of the Covered Software, on an "if and when available" basis, that Brocade generally makes available to other Brocade Resellers at no charge beyond the fees for Support. As used herein: (i) "Platform Release" means a platform, operating system or software architecture change and/or the addition of a major new application or function; (ii) "Feature Release" means a major new feature or an enhancement in operating performance that does not alter the basic functionality; (iii) "Maintenance Release" means a regularly scheduled update which may include defect fixes and limited platform-specific improvements; and (iv) "Patch" means a temporary solution to a Reseller-reported critical defect (all collectively referred to as "Upgrades").

      b) Software Support Policy. Brocade will provide Software Support for the then current Feature Release and the greater of (i) the two immediately preceding Feature Releases, or (ii) all Feature Releases made available within the preceding 12 months. As a general rule, Upgrades must be installed sequentially through all Feature Releases and Platform Releases (e.g., to upgrade from release 5.1 to 6.0, all Feature Releases and Platform Releases after 5.1 will be added as part of the upgrade process).

      c) Conditions and Limitations of Software Support. Software Support does not cover and Brocade disclaims any responsibility for Service Requests arising out of Reseller's failure to implement all Upgrades issued hereunder, changes to the computing environment, alterations or modifications of the Software performed by parties other than Brocade, accident, negligence, improper installation, misapplication, abuse, alteration or misuse of the Software and failure to use the Software in accordance with this Agreement or the documentation and instructions provided by Brocade. Additional information related to the various Software products, including without limitation additional Support descriptions, escalation procedures, product development guidelines, and other general procedures or policies may be included on the Brocade site, as may be amended from time to time, and shall apply to the Software.

      4.3 Hardware Specific Support Terms.

      a) General. If any Covered Hardware malfunctions, Brocade will repair or replace such Covered Hardware, or any parts of the Covered Hardware as provided in the applicable Support plan. Any item Brocade replaces will become Brocade's property, and the replacement item will become Reseller's property. The replacement items may not be new, but will be in good working order and at least functionally equivalent to the item replaced. Before Brocade exchanges any Hardware, Reseller must remove all features, parts, options, alterations, encumbrances, and attachments not provided by Brocade. Reseller also agrees to ensure that the item is free of any legal obligations, encumbrances, or restrictions that could prevent its exchange. Based on the Support plan selected by Reseller, Reseller may be responsible for shipping costs related to any such returns. The provision spares is subject to availability and lead time.  Onsite labor required to fulfill the Support plan selected may require an estimated thirty (30) days from receipt of order to provision.

      b) Reseller Responsibilities. For USDX and Edge products, Reseller is responsible for provisioning remote access via Brocade-provided dial-in modem to enable remote diagnostics, troubleshooting and software Upgrades.

      c) Exclusions. Support does not cover servicing of Covered Products damaged by misuse, accident, , improper installation, misapplication, modification, unsuitable physical or operating environment, abnormal physical or electrical stress, improper maintenance (unless by Brocade), removal or alteration of switch or part identification labels, or failure caused by a product for which Brocade is not responsible. Brocade may charge Reseller separately for any services provided by Brocade related to such damaged Product.

      e) Recertification of Hardware Products. Reseller may request Support on Hardware Products previously supported by another party or for which Support services have lapsed. Brocade may require that such Hardware Product be recertified for a fee. Upon receipt and acceptance of a purchase order, Brocade will commence Support in accordance with the start date on the quotation and will schedule the recertification activity. Should a request for remedial Support be received prior to the completion of the recertification, such service may be delayed (including related response time commitments) until such time as the recertification is completed. Should Brocade deem that the Products are unsupportable, or if Reseller fails to implement the required corrective actions identified by Brocade as a result of the recertification, the applicable Support shall be terminated, and Reseller will be notified accordingly and a credit or refund will be provided for any applicable prepaid Support fees.

    5. Professional Services Specific Terms.

      5.1 Working Hours. Unless expressly agreed in writing by Brocade, all Professional Services shall be performed during normal business hours. Requests for Professional Services outside of normal business hours will be subject to additional charges

      5.2 Facilities. Professional Services may be performed on Reseller's site. Reseller agrees to provide the facilities reasonably necessary for Brocade to perform the Professional Services, including a safe and suitable workspace for the Brocade employees or contractors performing the Professional Services, as well as appropriate access to Product and third party hardware, software and/or services. For security and safety reasons, a Reseller representative shall be available on-site whenever Brocade employees or contractors are performing the Professional Services at such facilities.

      5.3 Prerequisites. Prior to the commencement of the Professional Services, Reseller agrees to take all prerequisite steps identified by Brocade, including without limitation, (i) ensuring that all manufacturers' labels (such as serial numbers) are in place, accessible, and legible, (ii) obtaining authorization to have Brocade service a Product that Reseller does not own, (iii) licensing, purchasing and/or paying licensing fees and installing the required software and obtaining a license or appropriate permission for Brocade to access and use such software, (iv) testing all hardware and software necessary to perform the Professional Services, and all such hardware and software documentation shall be made available to Brocade,(v) ensuring it has completed appropriate backups of all data prior and (v) any other prerequisites identified by Brocade. Brocade will have no responsibility or obligation if Reseller fails to complete pre-requisite steps in whole or in part.  Further, Reseller acknowledges and agrees that any failure to perform the prerequisites may result in voiding applicable warranties and Support obligations of Brocade or warranties and support obligations other third parties, a delay in performance or additional costs for the particular service. Reseller shall indemnify, defend and hold Brocade harmless for Reseller's breach of this provision.

      5.4 Scheduling Professional Services. Brocade shall contact Reseller's representative to schedule the Professional Services. All Professional Services must be scheduled to begin within one hundred eighty (180) days of the date of the order.

      5.5 Cancellation. Brocade Resident Consultant Professional Services are non-cancellable during the contracted term, and Reseller is required to make payment in full for such Professional Services. In all other cases, unless otherwise quoted by Brocade, Reseller may cancel the Professional Services at any time on thirty (30) days prior written notice to Brocade. In such event, Reseller shall pay Brocade for all Professional Services performed through the date of termination and reimburse Brocade for all expenses incurred and billable pursuant to this Agreement. In addition, should any such Professional Services remain unfulfilled at the end of the anticipated term of this Agreement as a result of Reseller's delay in allowing Brocade to commence work or Reseller's failure to make the appropriate facilities available or to perform necessary prerequisites, Brocade may cancel the unfulfilled Professional Services on thirty (30) days prior written notice. Except with respect to Brocade Resident Consultant Professional Services, Brocade will credit or refund any prepaid fees applicable to cancelled Professional Services not performed on the date of termination, less any volume or other discount taken to which Reseller is no longer entitled.

      5.6 Rights in the Software Deliverables. The following terms shall apply only for Software deliverables expressly provided by Brocade as part of the Professional Services. Subject to the terms and conditions of this Agreement and payment of the applicable license fees, Brocade and its third party licensor, if applicable, grant to Reseller a non-exclusive, non-transferable license to use the applicable Software deliverables in object code form solely for internal purposes and solely the purposes set forth in the relevant Brocade product documentation. Reseller shall have no right to sublicense such Software deliverables or any rights related thereto.

      5.7 Acceptance Procedures. Upon completion of the Professional Services which are subject to acceptance under the terms of the Brocade quotation, Reseller shall have ten (10) days (or such other time period specified in the quotation) following the date of delivery to evaluate such Professional Services. On or before the tenth (10th) day following such delivery, Reseller shall provide Brocade with either (i) a written acceptance of the Professional Services; or (ii) written notice of rejection describing in detail the deficiency that is the basis for the rejection. A deficiency is a material non-conformity of the Professional Services to the acceptance criteria stated in the applicable Brocade quotation, or in the absence of such criteria, a material non-conformity to the description of the Professional Services set forth in the quotation. In the event that Reseller rejects the Professional Services in accordance with the afore-described procedure, Brocade will use diligent efforts to correct the deficiency promptly. The Professional Services and any associated deliverables that are re-performed or redelivered shall be subject to Reseller's acceptance in accordance with this provision. In the event Reseller fails to accept or reject the Professional Services within 10 days after Brocade's completion of the applicable Professional Services, or accept or reject re-performed Professional Services within 10 days after Brocade's completion of the applicable Professional Services, the Professional Services shall be deemed accepted by Reseller, and Reseller shall have no further right to reject the Professional Services.

      5.8 Right to Instruct. Brocade consultants deployed to perform any services for Reseller under this Agreement are under the exclusive supervision and instruction of Brocade. Brocade reserves the exclusive right to instruct its consultants, in particular with respect to work hours and the scope and manner of services to be performed under this Agreement. Reseller has no rights to instruct Brocade's consultants whatsoever.

      5.9 Brocade Resident Consultant Specific Terms. Brocade has a specific Professional Service offering where Brocade provides a Brocade Resident Consultant ("BRC") to perform ongoing Professional Services at the Reseller facilities. With respect to any Reseller order for a BRC, the following terms shall apply. Any Professional Services provided by a BRC shall not be subject to the acceptance provisions set forth above, and such Professional Services shall be billed on or before commencement of the services, unless another billing time frame is set forth in the applicable Brocade quotation. For BRC's purchased on an annual basis, the availability of a BRC is subject to the local employment laws and Brocade shall have the right to substitute certain BRC(s) in order to comply with such laws.

      5.10 Security and Conduct. Reseller shall maintain industry standard security policies, practices and procedures, and shall comply with all applicable laws and regulations and with all applicable health, safety and security rules, programs and procedures.

      5.11 Indemnity. Reseller hereby agrees to indemnify and hold harmless Brocade, its subsidiaries and affiliates, and their respective officers, directors, employees and agents (the "Indemnitee") 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 Reseller's 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 tortious willful misconduct or gross negligence on the part of Reseller.

    6. Orders, Shipping, Returns, Cancellations

      6.1 Order Process.

      a) Purchase Orders. "Purchase Order" means each of Reseller's written or electronic purchase order requests for Product, or other written purchase order forms submitted by Reseller to Brocade.

      i) Reseller shall issue to Brocade binding Purchase Orders in accordance with this Agreement. All Purchase Orders shall refer to this Agreement, bear a separate, unique number and contain, at a minimum, the following information relative to purchases made under this Agreement: (a) the part number and description of Product purchased; (b) the quantity of each Product to be purchased; (c) routing instructions; (d) the desired shipment date; (e), a valid email address and such other information as Brocade might require to send applicable information to the End User to access and use the Software and (e) the destination Reseller.

      ii) If for any reason Brocade cannot process Reseller's Purchase Order, Brocade shall use reasonable efforts to notify Reseller.

      iii) Brocade reserves the right to reject any Purchase Order that does not conform to the provisions of this Agreement or to cancel any Purchase Order previously accepted.

      b) Rescheduling. During any calendar quarter during the term of this Agreement, Reseller may request a Hardware Product shipment rescheduled, one (1) time only, from the original requested shipment date of a Purchase Order by providing written notice to Brocade at least fourteen (14) days prior to the requested shipment date and provided such later shipment date is no more than thirty (30) days after the original desired shipment date but within Brocade's fiscal quarter. Orders for Software may not be rescheduled by Reseller.

      c) Cancellation. Reseller may cancel Purchase Orders for Hardware without incurring a charge provided such cancellation request is received in writing by Brocade at least thirty (30) days prior to the original shipment date. If Brocade accepts (at its sole discretion) a cancellation request outside of this policy, Brocade may charge restocking/cancellation fees.

      6.2 Shipping & Delivery.

      a) Shipment Dates. Ship and fulfillment dates are estimates only. Brocade reserves the right to make partial shipments or fulfillments based on availability.

      b) Delivery and Packaging. U.S. deliveries for Hardware will be made Ex Works manufacturing site or distribution center (EXW per Incoterms 2010) and international deliveries will be made Free Carrier manufacturing site or distribution center (FCA per Incoterms 2010). Reseller shall provide Brocade with all information necessary requested by Brocade to ship the Hardware Product or to enable Reseller to obtain a copy of the Software. In the absence of specific written instructions from Reseller, Brocade will select the carrier for shipment of Hardware, but such carrier will not be the agent of Brocade. Brocade will pack all Product shipped in accordance with standard commercial practices. With respect to Software, upon acceptance of a purchase order from Reseller or confirmation of payment by Reseller, Brocade shall make the Software available electronically for download by Reseller or the End User or otherwise provide Reseller instructions on how to obtain a copy of the Software, unless otherwise instructed by Brocade.  The term of the Software license and for Support for Software, Education and Certifications (if any) shall begin on the date that Brocade issues a fulfillment email unless instructed otherwise by Brocade. Brocade is not responsible for typographical errors or mistakes.  Reseller will contact its sales representative if the fulfillment email is not received. Reseller and its End User are responsible for the use and security of the information provided by Brocade to Customer related to the Brocade Offerings.

      c) Expenses. Reseller shall pay all freight, insurance and other shipping expenses, as well as any special packing expenses or additional charges. Reseller shall also bear all applicable taxes, duties and similar charges that may be assessed against the Products after delivery to the carrier from Brocade's facility.

      6.3 RMA Procedure. Reseller shall not and will instruct its End Users not to return any Hardware Product which it believes to be defective without a return material authorization number ("RMA") issued by Brocade. For every Product returned as authorized by Brocade: (i) Reseller must provide Brocade with the serial number of the Product; (ii) Brocade shall verify whether or not Product is within the applicable Warranty Period or Reseller is otherwise entitled to repair or replacement of Product without charge; (iii) (a) if Brocade determines Reseller is entitled to return Product for repair/replacement without charge, then Brocade shall issue to Reseller an RMA, and (b) if Product is not under warranty, then Reseller must issue a purchase order for service to Brocade, upon receipt of which Brocade will issue an RMA to Reseller; (iv) Reseller shall ship the Product together with the RMA information to the address provided by Brocade; and (v) Brocade shall repair or replace Product. Reseller shall pay freight costs for return shipment by Brocade to Reseller of any Product claimed by Reseller to be defective but determined by Brocade not to be defective. The repair lead time is generally estimated to be thirty (30) days from receipt of the returned Product at Brocade's repair facility, however, actual repair lead time varies depending on Product availability and other factors. Where applicable for shipments to locations outside the United States, Reseller or Reseller's assigned agent will act as "Importer of Record" for shipments of repaired/replacement units and will be responsible for payment of any import duties, taxes and fees.

    7. Warranties and Disclaimers.

      7.1 Brocade General Warranty. Brocade warrants to Reseller that (i) Brocade has the right, power and authority to enter into this Agreement and to fully perform all its obligations hereunder; and (ii) the making of this Agreement does not violate any agreement existing between Brocade and any third party.

      7.2 Reseller General Warranty. Reseller warrants Brocading that (i) Reseller has the right, power and authority to enter into this Agreement and to fully perform all its obligations hereunder; and (ii) the making of this Agreement does not violate any agreement existing between Reseller and any third party.

      7.3 Warranties. Additional terms and conditions governing the warranties for Brocade Offerings can be found at http://www.brocade.com/services-support/returns-warranties/index.page. Brocade makes no other warranties.  Reseller is responsible for and will indemnify and hold Brocade harmless for any claim relates to the representations, acts, and omissions of Reseller.

      a) Professional Services Warranty. Brocade warrants for a period of thirty (30) days: (i) following the completion of the Professional Services, in the case where no acceptance procedure is applicable, and (ii) following acceptance of the Professional Services, otherwise, that all Professional Services will be performed in a professional and workman-like manner by appropriately trained personnel, using generally accepted industry standards and practices. As Brocade's sole liability and Reseller's exclusive remedy for a breach of this warranty, if the Professional Services are not provided as warranted, Brocade will, at its sole discretion, either: (i) correct any material non-conformances in the Professional Services deliverables; (ii) re-perform the Professional Services; or (iii) credit Reseller for the amount paid for the nonconforming Professional Services. This warranty does not apply to the extent any non-conformity relates to (i) any specifications, code, diagnostic or other tools, or any other materials provided by Reseller; (ii) the integration, operation, modification, or use of the Professional Services or any deliverables in any manner not authorized by Brocade, and (iii) any changes to the network environment after the services were rendered.

      b)  Hardware Warranty. Brocade warrants to Reseller, for the warranty period set forth in Brocade's quotation for the applicable Hardware that the Hardware shall be free from material defects and shall substantially conform to the Specifications for such Hardware. Brocade's sole obligation and Reseller's exclusive remedy for failure of the Hardware to conform to the warranty set forth in this Section shall be, at Brocade's expense and option, to repair/replace such defective Hardware within the normal manufacturing lead times applicable to such Hardware and to return such repaired Hardware to Reseller or to refund the applicable portion of the fees paid by Reseller to Brocade. "Specification" means the written specifications that accompany each Product. This warranty does not apply to Hardware which: (i) has been serviced or altered, except as expressly authorized by Brocade; (ii) have not been installed, operated, repaired, or maintained in accordance with any installation, handling, maintenance or operation instructions supplied by Brocade; (iii) have been subjected to unusual physical or electrical stress, misuse, negligence or accident; (iv) have been damaged as a result of accident, misuse or transporting; or (v) interoperate with third party products, such as optical transceiver components or third party software, which has not been recommended or certified by Brocade.

      7.4 No Other Warranties. EXCEPT AS EXPRESSLY SET FORTH IN THIS AGREEMENT, THE BROCADE OFFERINGS AND THIRD PARTY PRODUCT (IF ANY) ARE DELIVERED "AS IS" AND NEITHER BROCADE NOR ITS THIRD PARTY SUPPLIERS MAKES ANY OTHER WARRANTIES, EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, INCLUDING BUT NOT LIMITED TO IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT. TO THE EXTENT AN IMPLIED WARRANTY CANNOT BE EXCLUDED, SUCH WARRANTY IS LIMITED IN DURATION TO THE APPLICABLE WARRANTY PERIOD. Availability of Brocade Offerings vary by location.  Neither Brocade nor its third party suppliers warrant that the Brocade Offerings will meet Reseller's or its End User's requirements, or that the Brocade Offering will operate in the combinations which Reseller or its End Users may select for use, or that the operation of the Brocade Offering will be uninterrupted or error-free.   Brocade specifically disclaims any and all warranties and liability related to any security in Brocade Offerings. Reseller acknowledges that security in the Brocade Offerings does not guarantee the security of Reseller's or its End User's network, and that Reseller and its End User is responsible for all other aspects of security, including without limitation, correct installation and setup of the security features of the Product and all related requirements, correctly configured security policies, selection of hardware and software (including network security tools), correct installation, configuration, and maintenance of the hardware and software, the interoperability of the various components of Reseller's network, and a physically and electronically secure operating environment. This Agreement is not exclusive.  Brocade may appoint third parties (including those who may compete with Reseller) to sell or market Brocade Offerings to anyone. Brocade may sell or market (whether directly or indirectly through a third party) Brocade Offerings at any price Brocade chooses without any obligation or liability to Reseller. This Agreement does not guarantee that Reseller will make any sales of Brocade Offerings.

    8. Resale Products. "Resale Products" are those products or services that may be offered or sold with Brocade-branded Products. Resale Products are not manufactured or published by Brocade, and are not supported or serviced by Brocade. Should Brocade assist Reseller in procuring Resale Products from a third party the third party, and not Brocade, shall be responsible any representations, warranties, obligations and offerings made by such third party.  

    9. Insurance. Reseller shall maintain, at its expense all necessary insurance including without limitation, workers compensation insurance, as required by law, and employers' liability insurance upon its employees as well as reasonable and comprehensive liability insurance for all operations necessary and incidental to this Agreement.

    10. Indemnification. Subject to the provisions of this Agreement, Brocade will defend and indemnify Reseller against any third party claim that the Products (excluding Resale Products and open source) infringe a United States or a European Union patent, copyright or misappropriate a valid trade secret; provided Reseller shall (i) promptly notify Brocade in writing of the claim, (ii) provide Brocade sole control over the defense and/or settlement of such claim, at Brocade's expense and with Brocade's choice of counsel, and (iii) at Brocade's request and expense, provide full information and reasonable assistance to Brocade with respect to such claim. Brocade will not be obligated to defend or be liable in any manner for infringement arising out of: (a) required compliance with Reseller provided technology or specifications; (b) modification of a Product (except modifications provided by Brocade) or use of such Product in a manner not contemplated by Brocade; (c) Reseller's combination of a Product with hardware, software or other materials not provided by Brocade; (d) Reseller's failure to use reasonable materials or instructions provided by Brocade which would have rendered a Product non-infringing, (e) Reseller's use of Software not currently supported by Brocade, or (f) Reseller's use of Software in violation of the applicable license. Brocade has no obligations under this Section if Reseller was aware of any actual, pending or threatened claims that are the subject Brocade indemnity obligation hereunder at the time Reseller purchased the applicable license. Brocade obligation to indemnify applies only to final judgments entered in such a suit by a court of competent jurisdiction or proceeding and against settlements arising out of such a claim.  Reseller may join in defense of a claim with counsel of its choice at its expense. Brocade shall not be liable to Reseller under this Agreement for any Software if Reseller does not have then-current Support for such Software. If, at any time, any Product becomes, or in the opinion of Brocade may become, the subject of claim of infringement as set forth in this Section, Brocade may, at its option and expense: (i) procure for Reseller the right to continue using such Product; (ii) replace or modify such Product; or, in the event that neither (i) or (ii) is reasonably available, (iii) terminate this Agreement with respect to such Product.  Brocade will issue Reseller a prorated refund equal to the original price paid by Reseller for the infringing Hardware Product, discounted on a 3-year depreciation basis. For Software or Support, Brocade will issue a refund for any unused portion of the license or Support.  BROCADE WILL NOT BE LIABLE FOR ANY COSTS OR EXPENSES INCURRED WITHOUT ITS PRIOR WRITTEN AUTHORIZATION. THE FOREGOING PROVISIONS OF THIS SECTION STATE THE ENTIRE LIABILITY AND OBLIGATIONS OF BROCADE AND ITS SUPPLIERS, AND THE EXCLUSIVE REMEDY OF RESELLER WITH RESPECT TO ANY ACTUAL OR ALLEGED INFRINGEMENT OF ANY INTELLECTUAL PROPERTY RIGHT BY THE PRODUCTS OR ANY PART THEREOF OR BY THEIR OPERATION.

    11. Proprietary Rights. Brocade and its third party suppliers own and retain for itself all right, title and interest in and to all designs, engineering details, and other data and materials pertaining to the Products, Support or Professional Services supplied by Brocade and to all discoveries, inventions, patents and other proprietary rights arising out of the work done by Brocade in connection with the Products, Support and Professional Services or with any and all products developed by Brocade as a result thereof, including the sole right to manufacture any and all such Products. Reseller warrants that it will not divulge, disclose, or in any way distribute or make use of such Products or Professional Services or related information, and that it will not manufacture or engage to have manufactured such Products.

    12. Confidential Information. The receiving party ("Recipient") agrees to maintain in confidence information disclosed by the other party ("Discloser") which it knows or has reason to know is regarded as confidential ("Confidential Information"). The Confidential Information will include, but will not be limited to, the terms and conditions of this Agreement (but not the existence of the Agreement), trade secrets, the structure, sequence and organization of any Brocade software or hardware, marketing plans, blueprints, techniques, processes, procedures and formulae. Recipient shall at all times keep in confidence all such Confidential Information, and shall not use such Confidential Information without Discloser's written consent except in performance of its duties hereunder. Recipient will not disclose the Confidential Information to any person except its employees to whom it is necessary to disclose the Confidential Information for such purposes. Recipient agrees that the Confidential Information will be disclosed or made available only to those of its employees who have agreed to receive it under terms at least as restrictive as those specified in this Agreement. Recipient understands and agrees that the obligation to protect Confidential Information shall be satisfied if Recipient utilizes the same control (but no less than reasonable) over the Confidential Information as Recipient employs to avoid disclosure of Recipient's own confidential and valuable information. Recipient will immediately give notice to Discloser of any unauthorized use or disclosure of the Confidential Information. Recipient agrees to assist Discloser in remedying such unauthorized use or disclosure of the Confidential Information. This obligation will not apply to the extent that Recipient can demonstrate: (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; (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; or (iv) the disclosed information is required to be disclosed by a government agency to further the objectives of this Agreement, such as to obtain permission to distribute the Product, or by a proper court of competent jurisdiction; provided, however, that 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. Nothing in this Agreement shall preclude Brocade from working with third parties, including subcontractors, neither on services or products nor on developing services or products similar to the Professional Services herein. 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 the Reseller's Confidential Information for any purpose. Brocade and Reseller are free to develop products independently without the use of the other's Confidential Information. Brocade is not obligated to restrict the future work assignments of people who have had access to Reseller's 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 from providing the Professional Services or Support relating to Service Request resolution, troubleshooting, Product functionality enhancements and fixes. 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. To the extent that Brocade provides Reseller serial numbers, access codes, entitlement numbers or the license to access to Software, the documentation, or Support, Reseller will be responsible for the security and use of such information. If Reseller believes such information has been lost, stolen, misused, Reseller must immediately notify Brocade and its designated Support contact.

    13. Export Controls. Reseller acknowledges that the Product or technology provided under this Agreement 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. Reseller acknowledges and agrees that it will not import, export, or re-export, directly or indirectly, the Product or technology provided under this Agreement 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 Reseller transacts business. Reseller also agrees that they 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.  Reseller acknowledges 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.  Reseller 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.

    14. LIMITATION OF LIABILITY. EXCEPT IN THE CASE RESELLER'S OR ITS END USER'S BREACH OF TANY SOFTWARE LICENSE OR OTHER INTELLECTUAL PROPERTY RIGHT OF BROCADE OR ITS SUPPLIERS OR FOR EITHER PARTY'S BREACH OF CONFIDENTIALITY OBLIGATIONS, IN NO EVENT WILL EITHER PARTY BE LIABLE FOR ANY CONSEQUENTIAL, INCIDENTAL, INDIRECT, SPECIAL OR PUNITIVE DAMAGES OF ANY KIND. IN ADDITION, IN NO EVENT WILL EITHER PARTY BE LIABLE FOR LOSS OF PROFITS OR REVENUE, LOST BUSINESS, AND LOST OR CORRUPT DATA OR GOODWILL ARISING OUT OF OR RELATED TO THIS AGREEMENT HOWEVER CAUSED AND ON ANY THEORY OF LIABILITY. THESE LIMITATIONS SHALL APPLY NOTWITHSTANDING THE FAILURE OF THE ESSENTIAL PURPOSE OF ANY LIMITED REMEDY. BROCADE'S ENTIRE LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT SHALL BE LIMITED TO THE AMOUNTS PAID HEREUNDER IN THE TWELVE (12) MONTH PERIOD PRIOR TO THE DATE THE CAUSE OF ACTION AROSE. THE FOREGOING LIMITATIONS SHALL NOT APPLY ONLY TO THE EXTENT THAT, SUCH CONTRACTUAL LIMITATIONS CANNOT, UNDER APPLICABLE LAWS, SO LIMIT BROCADE'S LIABILITY.

    15. Term and Termination.

      15.1 Term and Termination. The term of this Agreement will be coterminous with the applicable order or other documentation that is specifically governed by this Agreement.

      15.2 Effect of Termination and Survival. Notwithstanding any other obligation hereunder, upon any termination or expiration of this Agreement, Reseller shall return to Brocade each and every copy or certify destruction, and Reseller shall not retain any copies, of any Brocade Confidential Information and Software. The following provisions shall survive termination or expiration of an applicable order and this Agreement: 1, 2, 3.2, 3.3, 3.4, 3.5, 4 and 5 (to the extent Brocade is obligated to provide Brocade Services), 6, 7, 8, 9, 10, 11, 12, 13, 14, 15, and 16.

    16. Miscellaneous.

      16.1 Governing Law; Venue.  

      All disputes arising out of this Agreement and/or any Reseller order issued hereunder to Brocade-US or disputes involving more than one Brocade entity out of which one is Brocade-US shall be 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, and agree that service on Reseller at its address set forth above shall constitute valid service for any proceeding in the courts of that jurisdiction.  Such Agreement and Reseller order(s) shall be governed by the laws of California without reference to conflict of laws principles.  All disputes arising out of or in connection with this Agreement and/or any Reseller order issued hereunder to any Brocade entity other than Brocade-US 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.  This choice of jurisdiction does not prevent either party from seeking injunctive relief with respect to a violation of intellectual property rights or confidentiality obligations in any appropriate jurisdiction.  Such Agreement and Reseller order(s) shall be governed by the laws of Switzerland without reference to conflict of laws principles.  The U.N. Convention on the International Sale of Goods shall not apply to this Agreement. 

      16.2 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 this Agreement.

      16.2 Severability. If any term or other provision of this Agreement 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 this Agreement 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 term or other provision is invalid, illegal or incapable of being enforced, that term or provision shall be severed from this Agreement and 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.

      16.3 Force Majeure. Except for payment obligations, neither party shall be liable for the performance of its obligations under this Agreement 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. In no event shall Brocade be required to purchase goods from others to enable it to provide the Products under this Agreement. 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. 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.

      16.4 Independent Contractors. The relationship between the parties established by this Agreement is that of independent contractors, and nothing in this Agreement 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.

      16.5 Reseller acknowledges and agrees that it shall not be entitled to any compensation, damages or payments in respect to goodwill that has been established or for any damages on account of prospective or anticipated profits, and shall not be entitled to reimbursement in any amount for any training, advertising, market development, investments, leases or other costs that shall have been expended by Reseller before termination of this Agreement.   Reseller hereby waives its rights under applicable laws for any such compensation.

      16.6 Subcontractors. Brocade may delegate its duties to subsidiaries or engage subcontractors to perform certain of its obligations under this Agreement.

      16.7 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. In conformity with the United States Foreign Corrupt Practices Act and with Brocade's established corporate policies regarding foreign business practices, Reseller and its employees and agents shall not directly or indirectly make or offer, payment, promise to pay, or authorize payment, or offer a gift, promise to give, or authorize the giving of anything of value for the purpose of influencing an act or decision of an official of any government within the Authorized Territory or the United States Government (including a decision not to act) or inducing such a person to use his influence to affect any such governmental act or decision in order

      16.8 Nuclear, Aviation or Life Support Application. Brocade specifically disclaims liability for use of the Products in connection with the design, construction, maintenance and/or operation of any (i) nuclear facility, (ii) aircraft, aircraft communication or aircraft ground support system, or (iii) safety or health care control system, including without limitation, life support system.

      16.9 U.S. Government Restricted Rights. The Software and any accompanying documentation provided under this Agreement 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 Reseller is 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 terms of this Agreement and shall be prohibited except to the extent expressly permitted by the terms of this Agreement. 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).

      16.10 Excluded Data. The Software provided under this Agreement is 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 Reseller's internal policies or practices or by law or regulation ("Excluded Data"). Reseller and its End Users are solely responsible for reviewing and ensuring its data provided to Brocade (or to which Brocade will have access) does not contain Excluded Data.

      16.11 Audit & Retention of Records. Upon reasonable notice, Brocade shall have the right to audit and inspect Reseller's and its End Users usage of the Software and to verify Reseller's and its End User's compliance with the provisions of this Agreement (including all payment terms) during normal business hours.  Reseller shall promptly remedy any underpayments that are discovered, and if any underpayment exceeds 5% of the amount owed over the audited period, then Reseller shall reimburse Brocade for the costs of the audit. Each party shall retain the applicable records pertaining to its performance obligations for five (5) years after the termination or completion of such obligation.

      16.12 Notices. All notices under this Agreement shall be in writing and shall 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) 333-5630.

      16.13 Assignment. Reseller shall not, directly or indirectly, in whole or in part, whether by operation of law or otherwise, assign or transfer this Agreement, 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 this Agreement, in whole or in part, and any of its rights and obligations hereunder, in its discretion. Without limiting the foregoing, this Agreement will be binding upon and inure to the benefit of the parties and their permitted successors and assigns.

      16.14 Remedies Cumulative. All rights and remedies existing under this Agreement are cumulative to, and not exclusive of, any rights or remedies otherwise available.

      16.15 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 this Agreement except by an instrument in writing signed on behalf of each of the parties to such agreement.

      16.16 No Implied Licenses. Nothing contained in this Agreement shall be construed as conferring any rights by implication, estoppel or otherwise, under any intellectual property right, other than the rights expressly granted in this Agreement.

      16.17 Translations. This Agreement 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 this Agreement, 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 Agreement (and all associated documents or correspondence concerning this Agreement), the English language version shall prevail.

      16.18 Entire Agreement. This Agreement and all Reseller orders attached hereto constitutes the entire agreement between the parties with respect to the subject matter hereof and shall supersede all prior written and oral and all contemporaneous oral agreements and understandings with respect to the subject matter hereof.

    REV110113

    Website Use Terms and Conditions

    Brocade Communications Systems, Inc.
    All contents are Copyright 1996—2008 Brocade. All rights reserved. Brocade Communications Systems, Inc., 130 Holger Way, San Jose, CA 95134.

    Terms and Conditions
    The materials on this website (the "Site") are provided by Brocade Communications Systems, Inc. ("Brocade") as a service to its customers and partners and may be used for informational purposes only. The Terms and Conditions set forth below apply to all visitors to or users of this Site. By accessing this Site or downloading any materials from this Site, you agree to be bound by these rules and regulations. If you do not agree to them, do not use the site or download any materials from it. No portion of this Site may be reproduced in any form, or by any means, without prior written permission from Brocade Systems, Inc.

    Limited License
    Brocade hereby grants you a license under Brocade copyrights to (1) download one copy of the information or software ("Materials") found on the Site on to a single computer for your personal, non-commercial internal use in support of the use or marketing of Brocade products or, (2) if you have a pre-existing business relationship with Brocade, you may download Materials for use in the furtherance of, and subject to the terms and conditions of, the provisions of your separate written agreement with Brocade. Additionally, some Materials may be made available only subject to certain additional license terms which may accompany or are provided with such Materials, and your download and use of those Materials will be subject to those additional terms and conditions. This is a license, not a transfer of title, and is subject to the following restrictions: you may not: (a) modify the Materials or use them for any commercial purpose, or any public display, performance, sale or rental; (b) decompile, reverse engineer, or disassemble Materials except and only to the extent permitted by applicable law; (c) remove any copyright or other proprietary notices from the Materials; (d) transfer the Materials to another person. Further, you agree to prevent any unauthorized copying of the Materials and you agree that any copy of these materials which you make shall retain all copyright and other proprietary notices in the same form and manner as on the original.
    ALL CONTENTS ON THIS SITE ARE PROTECTED BY COPYRIGHT AND, WHERE APPLICABLE, OTHER INTELLECTUAL PROPERTY RIGHTS. EXCEPT AS EXPRESSLY SPECIFIED ABOVE, NO PORTION OF THE INFORMATION ON THIS SITE MAY BE REPRODUCED MODIFIED, PUBLISHED, UPLOADED, POSTED, TRANSMITTED, OR DISTRIBUTED IN ANY FORM, OR BY ANY MEANS, WITHOUT PRIOR WRITTEN PERMISSION FROM BROCADE, AND NOTHING CONTAINED HEREIN SHALL BE CONSTRUED AS CONFERRING BY IMPLICATION, ESTOPPEL OR OTHERWISE ANY LICENSE OR RIGHT UNDER ANY PATENT, TRADEMARK OR COPYRIGHT OF BROCADE OR ANY THIRD PARTY.

    Trademarks
    The trademarks, logos and service marks ("Marks") displayed on this Site are the property of Brocade or other third parties. Users are not permitted to use these Marks without the prior written consent of Brocade or such third party which may own the Mark.
    ADX, BigIron, Brocade, the Brocade B-wing symbol, Brocade Assurance, Brocade One, CloudPlex, DCFM, DCX, EdgeIron, Effortless Networking, Extraordinary Networks, Fabric OS, FastIron, File Lifecycle Manager, Foundry, Foundry Networks, FoundryPress, Foundry Gear Logo, HyperEdge, ICX, IronPoint, IronView, IronShield, IronWare, JetCore, McDATA, MLX, MyBrocade, MyView, NetIron, NET Health, OpenScript, SAN Health, SecureIron, ServerIron, SilkWorm, StorageX, Tapestry, The Effortless Network, The On-Demand Data Center, The Power of Performance, TurboIron, TrafficWorks, VCS, VDX, VersaScale, Vplane, Vyatta, Web Tools, When the Mission Is Critical, the Network Is Brocade, and Wingspan.

    USER SUBMISSIONS
    Any comments, information or other materials of any kind whatsoever posted to this Site or transmitted to Brocade such as questions, comments, suggestions, or the like regarding Brocade Products, this Site and the Materials and other information discussed on this Site, or any other products or programs of Brocade ("Feedback") will be considered non-confidential and non-proprietary unless expressly agreed otherwise in writing by Brocade prior to your submission. Brocade shall have no obligations to you with regard to its use or disclosure of such Feedback, and Brocade shall be free to use, reproduce, prepare derivative works of, perform, display and distribute the Comments, including any ideas, concepts, know-how or techniques contained in such Feedback, for any and all purposes without limitation, and to authorize others to do so as well. You are prohibited from posting or transmitting to or from this Site any unlawful, threatening, libelous, defamatory, obscene, pornographic, or other material that would violate any law.

    General Disclaimer
    Although Brocade has attempted to provide accurate information on the Site, Brocade assumes no responsibility for the accuracy of any such information. ALL INFORMATION AND OTHER MATERIALS PROVIDED ON THIS SITE ARE PROVIDED "AS IS" WITHOUT WARRANTY OF ANY KIND, EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, INCLUDING WITHOUT LIMITATION ANY WARRANTY OF MERCHANTABILITY, NONINFRINGEMENT OR FITNESS FOR ANY PARTICULAR PURPOSE. ADDITIONALLY, IN NO EVENT SHALL BROCADE OR ITS SUPPLIERS BE LIABLE FOR ANY DAMAGES WHATSOEVER (INCLUDING WITHOUT LIMITATION ANY LOST PROFITS, LOST DATA, LOSS OF USE OR COSTS OF PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES) INCLUDING WITHOUT LIMITATION ANY DIRECT, INDIRECT, SPECIAL OR CONSEQUENTIAL DAMAGES ARISING IN ANY WAY OUT OF THE USE OF OR INABILITY TO USE THE MATERIALS, UNDER ANY CAUSE OF ACTION OR THEORY OF LIABILITY, AND IRRESPECTIVE OF WHETHER SUCH PARTY HAD ADVANCE NOTICE OF THE POSSIBILITY OF SUCH DAMAGES.
    Brocade and its suppliers further do not warrant the accuracy or completeness of the information, text, graphics, links or other items contained within the Materials. Brocade may make changes to these materials, or to the products described therein, at any time without notice. Brocade makes no commitment to update the Materials. Mention of non-Brocade products or services is for information purposes only and constitutes neither an endorsement nor a recommendation.

    Links to Third Party Sites
    This Site may contain links to third party sites. Brocade provides these links merely as a convenience to you, and inclusion of such links does in no way implies an endorsement of the linked site or the products and services referenced on that site. The linked sites are not under the control of Brocade, and Brocade is not responsible for the accuracy or reliability of any information, opinions, advice or statements made on these linked sites. Access to any of these linked is at the user's own risk.

    Access to Password Protected/Secure Areas
    Access to and use of password protected and/or secure areas of the Site is restricted to authorized users only. Unauthorized individuals attempting to access these areas of the Site may be subject to prosecution.

    Forward-Looking Statements
    Some of the information on this Site may contain projections or other forward-looking statements regarding future events or the future financial performance of the Company. We wish to caution you that these statements are only predictions and that actual events or results may differ materially. We refer you to the documents Brocade files from time to time with the Securities and Exchange Commission, specifically, the most recent Brocade Form 10-K and Form 10-Q. These documents contain and identify important factors that could cause the actual results to differ materially from those contained in our projections or forward-looking statements, including, among others, quarterly fluctuations in our revenues and operating results; our failure to manage expansion effectively; our ability to develop new and enhanced products that achieve widespread market acceptance; our failure to adequately anticipate future end-user product needs or to accurately forecast end-user demand; risks associated with increased international sales activity; our dependence on OEM customers; our failure to expend distribution channels or to manage distribution relationships; adverse changes in our relationship with Solectron Corporation, the sole manufacturer of our products; our dependence on sole source and limited source suppliers for certain key components including ASICs and power supplies. Brocade expressly assumes no obligation to update any such forward-looking statements.

    Government Use
    All Brocade products and publications are commercial in nature. Use duplication, or disclosure by the United States Government is subject to the restrictions set forth in DFARS 252.227-7015 and FAR 52.227-19 or successor provisions regarding government use of commercial software.

    Applicable Law
    This site is controlled by Brocade from its offices within the United States of America. Brocade makes no representation that Materials in the site are appropriate or available for use in other locations, and access to them from territories where their content is illegal is prohibited. Those who choose to access this site from other locations do so on their own initiative and are responsible for compliance with applicable local laws. You may not use or export the Materials in violation of U.S. export laws and regulations. Not all products or programs mentioned will be available in your country. Please contact your local sales representative for information as to products and services available in your country.

    Termination
    Brocade shall have the right to terminate the license granted to you to use, interact with, download and use the Site and Materials available from this Site at any time if you are found to be in breach of these terms and conditions, and reserves the right to seek all remedies available by law and in equity for such violations. Upon termination, you will immediately destroy any Materials in your possession or control.

    General
    Brocade reserves the right to change these terms and conditions at any time without notice by altering or updating this posting. Some of the Material available on this Site (e.g. software downloadable from this Site) may be superseded by expressly designated legal notices or terms located on particular pages at this Site. Any claim relating to the Materials shall be governed by the internal substantive laws of the State of California.