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.

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    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.

Vyatta vRouter & vADX End User License Agreement

This End User License Agreement (the "EULA"), effective on the date of its download or other form of delivery (the "Effective Date"), is entered into between Brocade Communications Systems, Inc. or its affiliate ("Brocade") and the entity accessing and downloading the Software ("End-User").

DOWNLOADING, INSTALLING OR USING SOFTWARE CONSTITUTES ACCEPTANCE OF THIS EULA AND ACKNOWLEDGEMENT BY THE USER THAT HE OR SHE IS AUTHORIZED TO BIND THE END-USER TO THE TERMS HEREOF. IF END-USER DOES NOT ACCEPT THIS EULA OR DID NOT PURCHASE OR ACQUIRE THIS LICENSE FOR SOFTWARE FROM AN APPROVED SOURCE, END-USER HAS NO LICENSE OR RIGHT TO USE THE SOFTWARE AND THE LIMITED WARRANTY AND INDEMNIFICATION PROVISIONS UNDER THIS EULA DO NOT APPLY.

  1. Scope of Agreement & Definitions.

    1.1 Scope of Agreement. This EULA applies to Software and Support from Brocade or its authorized distributors or resellers. If you purchased a license or Support directly from Brocade, the provisions of your purchase agreement with Brocade apply. If you obtained a license for the Software and/or purchased Support through a distributor or reseller authorized by Brocade, the provisions of your purchase agreement with the distributor or reseller apply. To the extent allowed by law, Brocade may change or modify the terms and conditions of this EULA without further notice.

    1.2 Definitions

     1.2.1 “Bare Metal” refers to a computer system without a base operating system (OS) or installed applications. It is a computer's hardware assembly, structure and components that installs with either the firmware or basic input/output system (BIOS) software utility or no software at all.

     1.2.2 “Bare Metal License” refers to a license to install the Software as the OS. The license and associated license fee or royalty is based upon the number of CPU cores are within the host physical server. The number of CPU cores associate with the license obtained will be identified in the purchase documentation.

     1.2.3 "Brocade Offerings" refers to Software, Support and documentation therefore.

     1.2.4 "Hypervisor" means proprietary or open source software provided by a third party that allows one or more Virtual Machines to run concurrently on a host server.

     1.2.5 "Software" refers to the software, Source Code and documentation, including but not limited to Patches, bug fixes and derivatives thereof (if any) provided under this EULA or by Brocade.

     1.2.6 "Source Code" means the literal computer code of the Software and any material beyond the literal code itself that facilitates or expedites the review and understanding of the Software.

     1.2.7 “Subscription” refers to a license that is limited for a specific time period as noted in your purchase documentation.

     1.2.8 "Support" refers the support and other services (if any) provided by Brocade to the End-User. Brocade reserves the right to revise or cancel support obligations.

     1.2.9 “Perpetual” refers to a license that is indefinite in duration associated with the intellectual property rights in this software except as provided by this EULA.

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

     1.2.11 “Virtual Machine License” refers to a license to implement a Virtual Machine(s) on a Hypervisor. A license must be purchased for each instance of the Software used to implement a Virtual Machine (each implementation hereinafter referred to as an "Instance").

  2. License and License Restrictions.

    2.1 License. Subject to the provisions of this EULA and payment of the applicable fees, Brocade grants End-User a limited, non-sublicensable, non-exclusive, non-transferable, non-assignable license to use for End-User's own internal purposes the Software only in object code form, and subject to any applicable limitations and restrictions under End- User's agreement with the distributor or reseller. Licenses will be either a Virtual Machine License or Bare Metal License that is either a Subscription or Perpetual as indicated on your invoice and your purchase documentation. End-User may only use the Software with Hypervisors supported by Brocade and only in accordance with the Software documentation and policies provided by Brocade. The license(s) granted herein excludes licenses obtained for evaluation purposes. End-User may only use the Software in a manner for which End-User has purchased or obtained a valid license.
    License Restrictions. All Software delivered hereunder is licensed, not sold. Except as expressly provided in this EULA, End-User may not itself, or through any parent, subsidiary, affiliate, agent, or other third party, nor permit third parties to:

     2.2.1 Modify, translate, adapt, change, enhance or create derivative works based upon the Software;

     2.2.2 Copy, or otherwise reproduce the Software in whole or in part;

     2.2.3 Decompile, translate, reverse engineer, disassemble, attempt to discover any source code or underlying ideas or algorithms, structure, architecture or algorithms of the Software (except to the extent that applicable law or any public license prohibits reverse engineering restrictions), or otherwise reduce the Software to human-readable form;

     2.2.4 Remove, modify or otherwise tamper with any notice or legend on any labeling on any physical media containing the Software;

     2.2.5 Use, license, sell, transfer, or any way distribute or sublicense the Software that is outside the scope of the licenses granted herein;

     2.2.6 Provide, lease, lend, use, disclose, divulge or make available to, or permit for timesharing or service bureau purposes the Software; or

     2.2.7 Take any action that would cause the Software or any proprietary portion thereof to become part of the public domain.

    2.3 Limitations. End-User's rights in the Software are limited to those expressly granted herein. End-User may not extract or run any component of the Software independently. Further, End-User may not utilize any Software or portion thereof to pass traffic in a network with an unpaid version including but not limited to evaluation or open source versions of the software. All the limitations and restrictions on the Software in this EULA also apply to documentation.

    2.4 Derivative Works. To the extent that the End-User creates derivative software or a derivative software product ("Derivative Software") by a method described in Section 2.2.3 or by using any Source Code or underlying ideas or algorithms, structure, or architecture of the Software and by permissible means under both this EULA and under local, state or federal law, this EULA prevents Licensor from using, distributing or licensing any Derivative Software that competes with the Software or any other Brocade product for commercial uses. All use, distribution or licenses of or for the Derivative Software, regardless if it directly or indirectly competes with the Software or other Brocade products, must comply with this EULA to the extent such compliance is permitted under applicable laws.

    2.5 Third Party and Open-Source Software. The Brocade Offering may include third-party software and such third-party software may be licensed under terms different from those in this EULA. Portions of the Software are only available to End-User 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". End-User’s rights and obligations with respect to such Software are as set forth in the applicable Public License and this EULA. Information about applicable Public Licenses may be found in the electronic media or content downloaded with the Software. Otherwise, to obtain a copy of the applicable licensing terms for the open source software used by Brocade, please refer the following web site (as may be updated from time to time): http://www.brocade.com/support/oscd.jsp. End-User either must agree to the terms of each applicable Public License or not exercise such licensed rights. This EULA 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 that is otherwise freely re-distributable to third parties (and not otherwise restricted by federal copyright or other laws). Brocade disclaims all liability and warranties with respect to open source software.

  3. Support

    3.1 Support. If the Brocade Offerings includes Support and requires registration or activation, the End-User is responsible for registering or activating Support for the Software via the web site designated by Brocade. Brocade’s obligation to provide the Support is conditioned upon such registration or activation, receipt of all amounts due and payable for the Software licenses and Support, and End-User’s compliance with this EULA. If End-User reports an issue to Brocade related to the Software ("Service Request"), 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 of the Service Request was not related to the Software or the request is not covered by Brocade's Support obligations.

    3.2 Cancellation of Support. Brocade may cancel Support at any time on thirty (30) days prior written electronic notice.

    3.3 Exclusions. Support does not cover and Brocade disclaims any responsibility for Service Requests arising out of alterations of or modifications to the Software performed by parties other than Brocade, accident, negligence, improper installation, misapplication, abuse, alteration or misuse of the Software or End-User's failure to use the Software in accordance with this EULA or the documentation and instructions provided by Brocade under this EULA. If End-User modifies, alters or changes the Software, such changes will void the Support and result in additional fees.

  4. Disclaimer of Warranties

    EXCEPT AS EXPRESSLY SET FORTH IN THIS EULA, THE BROCADE OFFERINGS AND THIRD-PARTY PRODUCTS (IF ANY) ARE DELIVERED "AS IS" AND NEITHER BROCADE NOR ITS THIRD-PARTY SUPPLIERS TO THE EXTENT ALLOWED BY APPLICABLE LAW 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. IF END-USER MADE ITS PURCHASE THROUGH A THIRD PARTY, BROCADE IS NOT RESPONSIBLE FOR THE REPRESENTATIONS OR WARRANTIES MADE BY SUCH THIRD PARTY. Brocade, its authorized third party reseller(s), or its third party suppliers do not warrant that the Brocade Offerings will meet End-User’s requirements, or that the Brocade Offerings will operate in the combinations which End-User may select for use, or that the operation of the Brocade Offerings will be uninterrupted or error-free. The Software may include tracking and/or disabling features. Availability of Brocade Offerings varies by location. Brocade, its authorized third party resellers or its third party suppliers are not responsible for pricing, typographical or other errors and reserves the right to cancel any orders arising from such errors. End-User acknowledges that security in Brocade Offerings does not guarantee the security of End-User's network, and that End-User is responsible for all other aspects of security, including without limitation, correct installation and setup of the security features of the Brocade Offering 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 End-User's network, and a physically and electronically secure operating environment. Due to interoperability requirements, End-User acknowledges and agrees that the use of any third-party products, including but not limited to, third-party software, may cause errors in the operation of the Software or may cause additional resolution time which may not be covered by Support. End-User agrees to pay Brocade for any time spent by Brocade diagnosing issues that result from use of third party products which will be billed at Brocade's hourly billing rate. End-User agrees to pay such amounts without deduction or set-off net 30 days from the date of invoice in United States ("U.S.") dollars.

  5. Resale Products.

    "Resale Products" are those third party products or services that may be offered or sold with Brocade Offerings. Resale Products are not manufactured or published by Brocade, and may not be supported or serviced by Brocade. Should Brocade assist End-User in procuring Resale Products, the third party, and not Brocade, is responsible for any representations, warranties, obligations and offerings made by such third party.

  6. Indemnification.

    6.1 By Brocade. Subject to the provisions of this EULA, Brocade will defend and indemnify End-User against any third-party claim that the Software (excluding Resale Products and open-source software) infringes a United States or a European Union patent, copyright or misappropriate a valid trade secret; provided End-User shall (i) promptly notify Brocade in writing of the claim; (ii) provide Brocade sole control over the defense and settlement of such claim, at Brocade's expense and with Brocade's choice of counsel; and (iii) at Brocade's request and expense (for End-User's out of pocket expenses), provide full information and reasonable assistance to Brocade with respect to such claim.

    6.2 Exclusions. Brocade is not obligated to defend, nor is it liable in any manner for infringement arising out of: (a) required compliance with End-User provided technology or specifications; (b) modification of the Software (except modifications provided by Brocade) or use of such Software in a manner not contemplated by Brocade; (c) End-User's combination of Software with hardware, software or other materials not provided by Brocade or designed for use with the Software; (d) End-User's failure to use reasonable materials or instructions provided by Brocade that would have rendered Software non-infringing; (e) End-User’s use of Software not currently supported by Brocade; or (f) End-User’s use of Software in breach of this EULA.

    6.3 Existing Claims. Brocade has no obligations under this Section if End-User was aware of any actual, pending or threatened claims that are the subject of Brocade's indemnity obligation hereunder at the time End-User purchased or secured the applicable license for the Software. Brocade's obligation to indemnify End-User 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. End-User may join in defense of a claim with counsel of its choice at its expense and subject to Brocade's exclusive right to control the defense. Brocade is not liable to End-User under this EULA for any Software if End-User does not have an active Support contract in place for the Software at the time of the claim.

    6.4 Brocade's Options. If at any time any Software becomes or in the opinion of Brocade may become the subject of claim of infringement as provided in this Section, Brocade may, at its option and expense: (i) procure for End-User the right to continue using such Software; (ii) replace or modify such Software; or, in the event Brocade concludes that neither option (i) or (ii) is reasonably available or cost efficient, (iii) terminate the license granted under this EULA with respect to such Software. BROCADE WILL NOT BE LIABLE FOR ANY COSTS OR EXPENSES INCURRED WITHOUT ITS PRIOR WRITTEN AUTHORIZATION. THE FOREGOING PROVISIONS STATE THE ENTIRE LIABILITY AND OBLIGATIONS OF BROCADE AND ITS SUPPLIERS, AND THE EXCLUSIVE REMEDY OF END-USER WITH RESPECT TO ANY ACTUAL OR ALLEGED INFRINGEMENT OF ANY INTELLECTUAL PROPERTY RIGHT BY THE BROCADE OFFERING OR ANY PART THEREOF OR BY THEIR OPERATION.

  7. Proprietary Rights.

    Brocade and each of its third party suppliers own and retain for itself all right, title and interest in and to all designs, engineering details, data, materials, discoveries, inventions, patents and other proprietary rights pertaining to or reflected by the Brocade Offerings.

  8. Confidential Information.

    8.1 Confidentiality. Confidential Information means any information disclosed by Brocade to End-User, either directly or indirectly, in writing, orally or by inspection of tangible objects, proprietary information, technical data, trade secrets (other than the Source Code) or know-how (including, without limitation, research, product plans, products, services, customers, markets, works of original authorship, photographs, negatives, digital images, software, computer programs, know-how, ideas, inventions (whether or not patentable), processes, formula, technology, designs, drawings, engineering, hardware configuration information, marketing or finance documents and other technical, business, financial, customer and product development plans, forecasts, strategies and information), which is designated as “Confidential,” “Proprietary” or some similar designation by Brocade or which the End-User knows or has reason to known is regarded as confidential by Brocade ("Confidential Information"). Confidential Information may also include information disclosed to Brocade by third parties. End-User will at all times keep in confidence all such Confidential Information, and shall not use such Confidential Information without Brocade's written consent except in performance of End-User's duties hereunder. End-User may not disclose the Confidential Information to any person except its employees to whom it is necessary to disclose the Confidential Information for permissible internal business purposes and who have agreed to receive it under terms at least as restrictive as those specified in this EULA. End-User's obligation to protect Confidential Information is satisfied if End-User utilizes the same control over the Confidential Information as End-User employs to avoid disclosure of End-User's own confidential and valuable information (but no less than commercially reasonable control). End-User will immediately give notice to Brocade of any unauthorized use or disclosure of the Confidential Information. End-User agrees to assist Brocade in remedying such unauthorized use or disclosure of the Confidential Information. The foregoing obligations will not apply to the extent End-User can demonstrate:

     8.1.1 The disclosed Confidential Information was part of the public domain at the time of disclosure;

     8.1.2 End-User can establish by written evidence that the disclosed Confidential Information was in the possession of the End-User at the time of its disclosure by Brocade;

     8.1.3 End-User received the disclosed Confidential information from a third party without similar restrictions on disclosure and without breach of this EULA or any other agreement; or

     8.1.4 End-User is required to disclose the Confidential Information to a government agency to further the objectives of this EULA, such as to obtain permission to distribute the Brocade Offering as permitted hereunder, or in the event a proper court of competent jurisdiction orders its disclosure; provided, however, that End-User will use its best efforts to minimize the disclosure of such Confidential information and will consult with and assist Brocade in obtaining a protective order prior to such disclosure.

    8.2 Retention Rights. 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 End-User's Confidential Information for any purpose. Brocade and End-User 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 End-User'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 Support relating to Service Request resolution, troubleshooting, 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 End-User serial numbers, access codes, entitlement numbers or the license to access Software or Support, End-User is responsible for the security and use of such information, including that contained in the documentation therefore. If End-User believes any Brocade Confidential Information has been lost, stolen, or misused, End-User must immediately notify Brocade and its designated Support contact.

    8.3 Source Code. The Source Code constitutes a trade secret and may not be disclosed under Section 8.1 or otherwise. End-User may not disclose or use the Source Code without the express written consent of Brocade.

  9. Export Controls

    End-User acknowledges that the Brocade Offering provided under this EULA 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. End-User acknowledges and agrees that it will not import, export, re-export, transfer or use, directly or indirectly, the Brocade Offering 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 End-User transacts business. End-User also agrees that it will not export, import, transfer, use or re-export the Brocade Offering, 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; or (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. End-User acknowledges that certain Software 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. End-User agrees to indemnify, defend (with counsel approved in writing in advance by Brocade) and hold Brocade, its affiliates, subsidiaries, officers, directors, employees and agents, harmless against any claims for cost, damage, expense or liability arising out of or in connection with any breach of End-User's obligations under this Section.

  10. LIMITION OF LIABILITY.

    IN NO EVENT WILL BROCADE BE LIABLE FOR ANY CONSEQUENTIAL, INCIDENTAL, INDIRECT, SPECIAL OR PUNITIVE DAMAGES OF ANY KIND. IN ADDITION, IN NO EVENT WILL BROCADE BE LIABLE FOR LOSS OF PROFITS OR REVENUE, LOST BUSINESS, AND LOST OR CORRUPT DATA OR GOODWILL ARISING OUT OF OR RELATED TO THIS EULA HOWEVER CAUSED AND ON ANY THEORY OF LIABILITY. THESE LIMITATIONS APPLY NOTWITHSTANDING THE FAILURE OF THE ESSENTIAL PURPOSE OF ANY LIMITED REMEDY. BROCADE'S ENTIRE LIABILITY ARISING OUT OF OR RELATED TO THIS EULA SHALL BE LIMITED TO THE AMOUNTS PAID OR PAYABLE TO BROCADE FOR THE SOFTWARE 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.

  11. Term and Termination.

    11.1 Term and Termination. The initial term applicable for the license(s) granted hereunder and for any associated Support begins on the date End-User purchases the license for the Software and continues through the term purchased by the End-User and as stated on your invoice. Brocade may immediately terminate the license(s) granted under this EULA if End-User breaches any provision of this EULA.

    11.2 Effect of Termination and Survival. Notwithstanding any other obligation hereunder, upon any termination or expiration of this EULA, End-User shall return to Brocade each and every copy or certify their destruction, and End-User shall not retain any copies of any Brocade Confidential Information or Software. The following Sections of this EULA survive termination or expiration of this EULA or applicable order: 1, 4, 5, 7, 8, 9, 10, 11, and 12.

  12. Miscellaneous.

    12.1 Governing Law; Venue. With respect to any Brocade Offering licensed or purchased by the End-User in the United States, this EULA is entered into, and all offerings shall be performed and delivered by or on behalf of Brocade Communications Systems, Inc. ("Brocade-US") in the United States. All disputes arising out of this EULA for transactions in the 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 End-User at its address of public record constitutes valid service for any proceeding in the courts of that jurisdiction and this EULA shall be governed by the laws of California without reference to conflict of laws principles. When the Brocade Offering is licensed or purchased by the End-User outside the United States, this EULA is entered into, and shall be performed by or on behalf of Brocade Communications Switzerland SarL in Switzerland. All disputes arising out this EULA for transactions outside the US must be finally settled under the Rules of Arbitration of the International Chamber of Commerce by three arbitrators appointed in accordance with said rules and this EULA will be governed by the laws of Switzerland without reference to conflict of laws principles. The place of arbitration will be Geneva, Switzerland. The arbitral tribunal shall conduct the proceedings and all awards will be rendered in the English language. The U.N. Convention on the International Sale of Goods does not apply to this EULA. This choice of jurisdiction does not prevent Brocade from seeking injunctive relief with respect to a violation of intellectual property rights or confidentiality obligations in any appropriate jurisdiction.

    12.2 Severability. If any term or other provision of this EULA 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 EULA 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 EULA 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.

    12.3 Force Majeure. Neither party shall be liable for the performance of its obligations under this EULA 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 Brocade Offerings under this EULA. 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.

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

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

    12.6 Compliance with Statutes and Regulations. Each party will comply with all applicable Federal, state, local and foreign statutes, rules, regulations and orders, including but not limited to the Foreign Corrupt Practices Act.

    12.7 Nuclear, Aviation or Life Support Application. Brocade specifically disclaims liability for use of the Brocade Offerings 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.

    12.8 U.S. Government Restricted Rights. The Software and any accompanying documentation provided under this EULA 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 suppliers. If End-User 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 EULA and shall be prohibited except to the extent expressly permitted by the terms of this EULA. 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).

    12.9 Excluded Data. The Software provided under this EULA 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 End-User’s internal policies or practices or by law or regulation ("Excluded Data"). End-User agrees that End-User is solely responsible for reviewing and ensuring that any data it provides to Brocade (or to which Brocade will have access) does not contain Excluded Data.

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

    12.11 Notices. All notices under this EULA 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 to Brocade shall be sent to Brocade Communications Systems, Inc., Attention: Office of the General Counsel, 130 Holger Way, San Jose, CA 95134, Fax Number (408) 333-5630, and to End-User at its address of public record.

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

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

    12.14 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 EULA except by an instrument in writing signed on behalf of each of the parties to such agreement.

    12.15 No Implied Licenses. Nothing contained in this EULA 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 EULA.

    12.16 Translations; Order of Precedence. This EULA 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 EULA, 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 EULA (and all associated documents or correspondence concerning this EULA), the English language version shall prevail. If any of the provisions of this EULA and the End-User’s purchase agreement for the license or Support conflict or are otherwise inconsistent, the provisions of this EULA shall apply.

    12.17 Entire Agreement. This EULA and all End-User 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.

Brocade Vyatta Controller Object Code Software License Agreement

This Software License Agreement (the "Agreement"), effective on the date of its download or other form of delivery (the "Effective Date"), is entered into between Brocade Communications Systems, Inc. or its affiliate ("Brocade") and the entity accessing and downloading the Licensed Software (“You” or “Licensee”).

DOWNLOADING, INSTALLING OR USING LICENSED SOFTWARE CONSTITUTES ACCEPTANCE OF THIS AGREEMENT AND ACKNOWLEDGEMENT BY YOU THAT HE OR SHE IS AUTHORIZED TO BIND THE LICENSEE TO THE PROVISIONS OF THIS AGREEMENT. IF YOU DO NOT ACCEPT THIS AGREEMENT OR DID NOT PURCHASE OR ACQUIRE THIS LICENSE FOR LICENSED SOFTWARE FROM AN APPROVED SOURCE, YOU HAVE NO LICENSE OR RIGHT TO USE THE LICENSED SOFTWARE AND THE LIMITED WARRANTY AND INDEMNIFICATION PROVISIONS UNDER THIS AGREEMENT DO NOT APPLY.

  1. Scope of Agreement & Definitions.

    1.1 “Licensed Software” means the object code of the version of the Brocade Vyatta Controller software downloaded or installed by or for Licensee, and is subject to this Agreement, along with its associated files and documentation, including error corrections, modifications and updates for which You are entitled, if any, under Your separate applicable services terms as set forth in Brocade’s Support Terms at www.brocade.com/services-support/support-plans/ or in a separate agreement.

    1.2. Promotion Evaluation License. Subject to this Agreement, Brocade grants You a limited, one-time only per legal entity, non-exclusive, nontransferable, non-sublicensable, royalty-free license, only in object code form, to use Licensed Software for a 1-year period to control a maximum of five (5) concurrent Nodes at any given time, solely for use in Your internal business operations (a “Evaluation License”). Brocade reserves the right, in its sole discretion, to terminate any Evaluation License at any time. All Evaluation Licenses terminate without notice when You exceed five (5) concurrent Nodes at any time during the 1-year period. Please note that under an Evaluation License Brocade provides Licensed Software to You free of charge, and on that basis, to the fullest extent permitted by law, Brocade provides it “as-is,” and without any warranty or indemnification. At Brocade’s discretion, limited support may be provided as set forth in Brocade’s Support Terms at www.brocade.com/services-support/support-plans/

    1.3. Commercial License. Subject to this Agreement and any restriction set forth in the License Schedule, including any payment obligations, Brocade grants You a limited, non-exclusive, nontransferable, non-sublicensable license, only in object code form, to use Licensed Software to control a maximum number of concurrent Nodes, at any given time during a Subscription License Term. For purposes of Sections 1.2 and 1.3, network devices are deemed to be concurrently controlled by Licensed Software if (1) Licensed Software is configured to provide instructions to such network devices; or (2) License Software is configured to request information from such network devices; or (3) Licensed Software is configured to collect information from such network devices. You shall not exceed the quantity of concurrent Nodes specified in Your applicable License Schedule. Support may be provided as set forth in Brocade’s Support Terms at www.brocade.com/services-support/support-plans/.

    1.4. Definitions. As used in this Agreement, the following terms shall have the meaning below:

    1. 1.4(a) “Subscription License Term” means the time period specified in Your License Schedule or applicable ordering document (and for any renewal, the time period stated in that renewal). Your licensed scope of use is based on the number of concurrent Nodes, if applicable, specified in the price list, Your License Schedule, or ordering document.

      1.4(b) “Node” means a virtual or physical (1) network device which has been configured to send information to or to receive information, directly or indirectly, from Licensed Software; or (2) network device to which Licensed Software has been configured to send information directly or indirectly; or (3) network device from which Licensed Software has been configured to receive information directly or indirectly. Maximum aggregate number of ports for each Node with a physical network element is 100.

      1.4(c) A “Core” means an independent, physical processing unit on a CPU responsible for executing programs. Maximum aggregate number of Cores for each Node with a virtual network element is 8.

     

    1.5. License Restrictions. Except as expressly permitted under this Agreement, You may not on Your own, or through any parent, subsidiary, affiliate, agent, or other third party, not permit third parties to: (1) copy, modify, translate, adapt, change, enhance, or create any derivative works of Licensed Software (or any portion thereof); (2) assign, sublicense, transfer, lease, rent or otherwise distribute Licensed Software to any third party; (3) expose any API’s to third party software or any software not solely used for Your internal business operations; (4) use Licensed Software for the development of other software or applications for any distribution to third party, unless You have entered a separate Brocade Vyatta Controller Developer License Agreement with Brocade; (5) use Licensed Software to develop any software developer kit unless You have entered a separate agreement with Brocade expressly granting You the right to create a developer kit; (6) take any action that would cause Licensed Software or any proprietary portion thereof to be subject to any open source software license; (7) use Licensed Software to conduct benchmarking (or performance testing) and distribute the results to third parties unless You have Brocade’s prior written consent and agreement with respect to the methodologies and assumptions used; and (8) remove any copyright or other proprietary notices on or in any copies of Licensed Software. You acknowledge and agree that portions of Licensed Software, including but not limited to the source code, if applicable, and the specific design and structure of individual modules or programs, constitute or contain trade secrets of Brocade and its licensors. Accordingly, You agree not to disassemble, decompile or reverse engineer Licensed Software or attempt to discover any source code or underlying ideas or algorithms, structure, architecture or algorithms of the Software (except to the extent that applicable law or any public license prohibits reverse engineering restrictions), or otherwise reduce the Software to human-readable form, in whole or in part, or permit or authorize a third party to do so, except to the extent such activities are expressly permitted by law notwithstanding this prohibition.

    1.6. Ownership. Licensed Software is licensed, not sold. Brocade retains ownership of Licensed Software, including all intellectual property rights in Licensed Software. Brocade and each of its third party suppliers own and retain for itself all right, title and interest in and to all designs, engineering details, data, materials, discoveries, inventions, patents and other proprietary rights pertaining to or reflected by Licensed Software.

  2. Term and Termination.

    2.1 Term. Unless terminated as provided by this Agreement, Subscription licenses granted under this Agreement will continue for the term stated on your quote and invoice and will, if the subscription license is available, automatically renew at the then-current price subject to the then-current license terms and conditions. All amounts for the renewal term will be due and payable by You. If Brocade terminates this Agreement due to Your breach, any licenses granted under this Agreement will terminate upon the expiration of the required notice period. Upon termination, You must promptly, at Brocade’ option, either destroy or return to Brocade all copies of Licensed Software in Your control. Either party may terminate this Agreement if the other party breaches any material term of this Agreement and fails to cure the breach within 30 days of written notice describing the breach.

    2.2 Effect of Termination and Survival. Notwithstanding any other obligation hereunder, upon any termination or expiration of this Agreement, You shall return to Brocade each and every copy or certify their destruction, and You shall not retain any copies of any Brocade Confidential Information or Licensed Software. Upon any expiration or termination of this Agreement for any reason, all rights and obligations of the parties under this Agreement shall cease except for the rights and obligations of the parties under any other provision of this Agreement which, by its expressly stated terms, is intended to survive the termination of this Agreement.

    2.3 Open-Source Software. Portions of Licensed Software are only available to You under open source licenses (including the Eclipse Public License ("EPL"), and other third party licenses, each a "Third Party License". Your rights and obligations with respect to such portions of Licensed Software are as set forth in the applicable open source license. Licensee either must agree to the terms of each applicable public license or not exercise such licensed rights. This Agreement is not intended to change or restrict the terms of any open source license. If applicable, information on how to obtain source code of certain open source software can be found in a readme, license.txt, or similarly named file that accompanies the software. Brocade disclaims all liability and warranties with respect to open source software.

  3. Disclaimer of Warranties.

    3.1 EXCEPT AS EXPRESSLY SET FORTH IN THIS AGREEMENT, LICENSED SOFTWARE AND THIRD-PARTY PRODUCTS (IF ANY) ARE DELIVERED "AS IS" AND NEITHER BROCADE NOR ITS THIRD-PARTY SUPPLIERS TO THE EXTENT ALLOWED BY APPLICABLE LAW 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. IF LICENSEE MADE ITS PURCHASE THROUGH A THIRD PARTY, BROCADE IS NOT RESPONSIBLE FOR THE REPRESENTATIONS OR WARRANTIES MADE BY SUCH THIRD PARTY. Brocade, its authorized third party reseller(s), or its third party suppliers do not warrant that the Licensed Software will meet Licensee’s requirements, or that Licensed Software will operate in the combinations which Licensee may select for use, or that the operation of Licensed Software will be uninterrupted or error-free. Due to interoperability requirements, Licensee acknowledges and agrees that the use of any third-party products, including but not limited to, third-party software, may cause errors in the operation of Licensed Software or may cause additional resolution time which may not be covered by Licensee’s support terms, if any. Licensee agrees to pay Brocade for any time spent by Brocade diagnosing issues that result from use of third party products which will be billed at Brocade's hourly billing rate. Licensee agrees to pay such amounts without deduction or set-off net 30 days from the date of invoice in United States ("U.S.") dollars. The Licensed Software may include tracking and/or disabling features. Availability of the Licensed Software and associated Support or other services may vary by location. Brocade, its authorized third party resellers or its third party suppliers are not responsible for pricing, typographical or other errors and reserves the right to cancel any orders arising from such errors. Licensee acknowledges Licensee is responsible for all aspects of security, including without limitation, correct installation and setup of the security features of the Licensed Software 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 Licensee network, and a physically and electronically secure operating environment.

  4. Indemnification.

    4.1 Indemnification. Subject to the terms contained herein, Brocade will defend and indemnify Licensee against any third party claim that Licensed Software (excluding Resale Products and open-source software) infringes a United States patent, copyright or misappropriate a valid trade secret; provided Licensee 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 technology or specifications provided by Licensee; (b) modification of a Licensed Software (except modifications provided by Brocade) or use of such Licensed Software in a manner not identified by Brocade in its documentation; (c) Licensee’s combination of a Licensed Software with hardware, software or other materials not provided by Brocade; (d) Licensee’s failure to use reasonable materials or instructions provided by Brocade which would have rendered Licensed Software non-infringing; (e) Licensee’s use of more recent version of Licensed Software which would have rendered Licensed Software non-infringing; or (f) Licensee’s use of Licensed Software in breach of this Agreement. Licensee may join in defense of a claim with counsel of its choice at its expense. Brocade shall not be liable to Licensee under this Agreement for any Licensed Software if Licensee does not have then-current Support for such Licensed Software.

    4.2 Existing Claims. Brocade has no obligations under this Section if Licensee was aware of any actual, pending or threatened claims that are the subject of Brocade's indemnity obligation hereunder at the time Licensee licensed or secured the applicable license for the Licensed Software.

    4.3 Brocade's Options. If at any time any Licensed Software becomes or in the opinion of Brocade may become the subject of claim of infringement as provided in this Section, Brocade may, at its option and expense: (i) procure for Licensee the right to continue using such Licensed Software; (ii) replace or modify such Licensed Software; or, in the event Brocade concludes that neither option (i) or (ii) is reasonably available or cost efficient, (iii) terminate the license granted under this Agreement with respect to such Licensed Software. BROCADE WILL NOT BE LIABLE FOR ANY COSTS OR EXPENSES INCURRED WITHOUT ITS PRIOR WRITTEN AUTHORIZATION. THE FOREGOING PROVISIONS STATE THE ENTIRE LIABILITY AND OBLIGATIONS OF BROCADE AND ITS SUPPLIERS, AND THE EXCLUSIVE REMEDY OF LICENSEE WITH RESPECT TO ANY ACTUAL OR ALLEGED INFRINGEMENT OF ANY INTELLECTUAL PROPERTY RIGHT BY THE LICENSED SOFTWARE OR ANY PART THEREOF OR BY THEIR OPERATION.

    4.4 This section states Your sole and exclusive remedy with respect to claims of infringement of third party proprietary rights of any kind.

  5. Payment.

    5.1 All fees under this Agreement or its License Schedule are due within 30 days of the effective date of the applicable License Schedule.

    5.2 All fees due are in U.S. dollars and are exclusive of any taxes. You shall pay the listed fees without deduction, and You will be responsible for all taxes duties, fees, and other governmental charges of any kind (including sales, services, VAT or use taxes, and customs or excise duties, but excluding taxes on Brocade’s net income) imposed on the amounts due under this Agreement or its License Schedule. If You are required by local law to withhold any amount from any payments specified in this Agreement or its License Schedule, then You will pay Brocade the fees in this Agreement or its License Schedule as if no withholding were required, and shall remit the withholding to the appropriate governmental authorities on behalf of Brocade, with a copy of the tax receipt or certificate forwarded to Brocade.

    5.3 You will pay amounts due and properly invoiced within the period specified on the invoice. Fees will be billed in advance unless otherwise specified. All subscription fees are due in advance of, and are non-refundable after, the beginning of the applicable Subscription License Term. Any late payments will accrue late charges at the rate of 1.5% of the outstanding balance per month, or the maximum rate permitted by law, whichever is lower. You will maintain complete and accurate billing and contact information on at all times. Except as expressly provided in this Agreement or its License Schedule, Brocade reserves the right to change fees or to institute new fees at any time. You will be notified in advance of the effective date of changes in fees or new fees via electronic mail. Such changes or new fees will become effective upon the later of Your next renewal or 30 days from the date of notice.

  6. Confidential Information.

    6.1 Confidentiality. Confidential Information means any information disclosed by Brocade to Licensee, either directly or indirectly, in writing, orally or by inspection of tangible objects, proprietary information, technical data, trade secrets (other than the Source Code) or know-how (including, without limitation, research, product plans, products, services, customers, markets, works of original authorship, photographs, negatives, digital images, software, computer programs, know-how, ideas, inventions (whether or not patentable), processes, formula, technology, designs, drawings, engineering, hardware configuration information, marketing or finance documents and other technical, business, financial, customer and product development plans, forecasts, strategies and information), which is designated as “Confidential,” “Proprietary” or some similar designation by Brocade or which the Licensee knows or has reason to known is regarded as confidential by Brocade ("Confidential Information"). Confidential Information may also include information disclosed to Brocade by third parties. Licensee will at all times keep in confidence all such Confidential Information, and shall not use such Confidential Information without Brocade's written consent except in performance of Licensee's duties hereunder. Licensee may not disclose the Confidential Information to any person except its employees to whom it is necessary to disclose the Confidential Information for permissible internal business purposes and who have agreed to receive it under terms at least as restrictive as those specified in this Agreement. Licensee's obligation to protect Confidential Information is satisfied if Licensee utilizes the same control over the Confidential Information as Licensee employs to avoid disclosure of Licensee's own confidential and valuable information (but no less than commercially reasonable control). Licensee will immediately give notice to Brocade of any unauthorized use or disclosure of the Confidential Information. Licensee agrees to assist Brocade in remedying such unauthorized use or disclosure of the Confidential Information. The foregoing obligations will not apply to the extent Licensee can demonstrate:

    1. 6.1 (a) The disclosed Confidential Information was part of the public domain at the time of disclosure;

      6.1 (b) Licensee can establish by written evidence that the disclosed Confidential Information was in the possession of the Licensee at the time of its disclosure by Brocade;

      6.1 (c) Licensee received the disclosed Confidential information from a third party without similar restrictions on disclosure and without breach of this Agreement or any other agreement; or

      6.1 (d)Licensee is required to disclose the Confidential Information to a government agency to further the objectives of this Agreement, such as to obtain permission to distribute Licensed Software as permitted hereunder, or in the event a proper court of competent jurisdiction orders its disclosure; provided, however, that Licensee will use its best efforts to minimize the disclosure of such Confidential information and will consult with and assist Brocade in obtaining a protective order prior to such disclosure.

     

    6.2 Retention Rights. 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 Licensee's Confidential Information for any purpose. Brocade and Licensee 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 Licensee'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 Support relating to Service Request resolution, troubleshooting, 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 Licensee serial numbers, access codes, entitlement numbers or the license to access Licensed Software or Support, Licensee is responsible for the security and use of such information, including that contained in the documentation therefore. If Licensee believes any Brocade Confidential Information has been lost, stolen, or misused, Licensee must immediately notify Brocade and its designated Support contact.

    6.3 EXCEPT AS EXPRESSLY PROVIDED IN THIS AGREEMENT, BROCADE PROVIDES NO OTHER WARRANTIES REGARDING THE LICENSED SOFTWARE, AND TO THE FULLEST EXTENT PERMITTED BY LAW DISCLAIMS ALL OTHER WARRANTIES, TERMS AND CONDITIONS, EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO ANY IMPLIED WARRANTIES AND CONDITIONS OF MERCHANTABILITY, QUALITY, FITNESS FOR A PARTICULAR PURPOSE AND NONINFRINGEMENT, AND ANY WARRANTIES, TERMS AND CONDITIONS ARISING OUT OF COURSE OF DEALING OR USAGE OF TRADE. NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED FROM BROCADE OR ELSEWHERE WILL CREATE ANY WARRANTY, TERM OR CONDITION UNLESS EXPRESSLY STATED IN THIS AGREEMENT.

  7. LIMITATION OF LIABILITY.

    IN NO EVENT WILL BROCADE BE LIABLE FOR ANY CONSEQUENTIAL, INCIDENTAL, INDIRECT, SPECIAL OR PUNITIVE DAMAGES OF ANY KIND. IN ADDITION, IN NO EVENT WILL BROCADE BE LIABLE FOR LOSS OF PROFITS OR REVENUE, 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 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 OR PAYABLE TO BROCADE FOR THE LICENSED SOFTWARE 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.

  8. Miscellaneous.

    9.1 Governing Law; Venue. With respect to any Licensed Software licensed or purchased by the Licensee 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. ("Brocade-US") in the United States. All disputes arising out of this Agreement for transactions in the 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 Licensee at its address of public record constitutes valid service for any proceeding in the courts of that jurisdiction and this Agreement shall be governed by the laws of California without reference to conflict of laws principles. When Licensed Software is licensed or purchased by the Licensee outside the United States, this Agreement is entered into, and shall be performed by or on behalf of Brocade Communications Switzerland SarL in Switzerland. All disputes arising out this Agreement for transactions outside the US must be finally settled under the Rules of Arbitration of the International Chamber of Commerce by three arbitrators appointed in accordance with said rules and this Agreement will be governed by the laws of Switzerland without reference to conflict of laws principles. The place of arbitration will be Geneva, Switzerland. The arbitral tribunal shall conduct the proceedings and all awards will be rendered in the English language. The U.N. Convention on the International Sale of Goods does not apply to this Agreement. This choice of jurisdiction does not prevent Brocade from seeking injunctive relief with respect to a violation of intellectual property rights or confidentiality obligations in any appropriate jurisdiction.

    9.2 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.

    9.3 Force Majeure. 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 Licensed Software 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.

    9.4 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.

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

    9.6 Compliance with Statutes and Regulations. Each party will comply with all applicable Federal, state, local and foreign statutes, rules, regulations and orders, including but not limited to the Foreign Corrupt Practices Act.

    9.7 Nuclear, Aviation or Life Support Application. Brocade specifically disclaims liability for use of Licensed Software 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.

    9.8 U.S. Government Restricted Rights. The Licensed 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 suppliers. If You are acquiring the Licensed 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).

    9.9 Excluded Data. The Licensed 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 Licensee’s internal policies or practices or by law or regulation ("Excluded Data"). Licensee agrees that Licensee is solely responsible for reviewing and ensuring that any data it provides to Brocade (or to which Brocade will have access) does not contain Excluded Data.

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

    9.11 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 to Brocade shall be sent to Brocade Communications Systems, Inc., Attention: Office of the General Counsel, 130 Holger Way, San Jose, CA 95134, Fax Number (408) 333-5630, and to Licensee at its address of public record.

    9.12 Assignment. Licensee 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.

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

    9.14 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.

    9.15 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.

    9.16 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.

    9.17 Entire Agreement. No term or condition contained in Your purchase order or similar document will apply unless specifically agreed to by Brocade in writing, even if Brocade has accepted the order set forth in the purchase order, and all such terms or conditions are otherwise hereby expressly rejected by Brocade. This Agreement 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.

REV121714

SteelApp Products – Terms and Conditions of Sale

These terms and conditions (“Agreement”) are effective as of the date that Brocade accepts the Order (“Effective Date”) and are between Brocade Communications Systems, Inc., including its subsidiaries (“Brocade”) and the customer identified on the applicable Order (“Customer”). Only these terms and conditions are applicable to your purchase of Steel App. Notwithstanding anything to the contrary, if there is a mutually signed agreement (not including any purchase order or similar document) expressly covering the sale or license of Software or Support by Brocade to Customer at the time the Order is accepted by Brocade, then the express terms of that agreement will govern but only to the extent such terms and conditions are consistent with this Agreement. If such agreement includes additional provisions not reflected in this Agreement, such additional provisions will not have any force or effect with respect to this Agreement.

  1. Definitions.
    1. “Documentation” means the then-current written and/or electronic end user or technical documentation pertaining to Software that is provided by Brocade together with the delivery of the Software or otherwise made available by Brocade
    2. “Software” means the SteelApp Traffic Manager, SteelApp Web App Firewall, SteelApp Web Accelerator and any other software provided by Brocade under the “SteelApp” brand.
    3. “Support” means Brocade’s then-current generally available end user maintenance and support services as described at https://support.riverbed.com.
  2. License and Purchase.
    1. The Software licensed or Support purchased by Customer under this Agreement is identified on the sales quotation that incorporates this Agreement by reference (“Quote”). The license and purchases shall be between Customer and the Brocade entity named on the invoice. Customer may purchase from Brocade the Software license and Support set forth on the Quote by submitting a written purchase order to Brocade; such purchase order is subject to acceptance by Brocade (“Order”). If Customer does not customarily use purchase orders to purchase goods and services, upon approval by Brocade, the Customer-signed Quote will serve as the Order. The terms and conditions of this Agreement will apply to the Order and supersede any different or additional terms on Customer’s purchase order. Any purchase order issued by Customer to Brocade is solely for the purpose of requesting delivery dates and quantities, specifying the delivery and bill-to addresses, specifying the identity of Software and Support purchased along with the number of licenses issued and the term of any applicable license or subscription, and specifying the applicable fees for the Software and Support; all other terms on such purchase order will have no force or effect. The Order is subject to acceptance by Brocade (which acceptance may be evidenced by Brocade’s delivery of Software under the Order).
    2. Subject to the terms and conditions of this Agreement and the applicable ordering document, and provided that Customer has paid the applicable fees, Brocade hereby grants Customer a limited, personal, non-sublicensable, non-transferable, nonexclusive license to: (i) install, access, and use Software (in object code format only), (ii) access, use, and reasonably reproduce the Documentation, and (iii) exercise rights applicable to Software license purchased as expressly set forth in this Agreement. Customer shall exercise the foregoing license rights solely for Customer's internal business use in accordance with the Documentation and shall comply with all other restrictions and limitations applicable to each Software. Customer may also copy configurations of the Software solely for backup and archival purposes.
    3. The specific Software licensed to Customer under this Agreement, including the number of licenses issued and the term of any applicable license or subscription, will be identified on the applicable ordering documentation provided by Brocade. The following provisions apply to the extent that Customer has purchased the Software described in the purchase documentation. If any of the provisions of this Agreement conflict or are otherwise inconsistent with the provisions of this Section 2(c), the provisions of this Section 2(c) shall supersede the conflicting or inconsistent provision.
      1. SteelApp Web Accelerator Software License. Each instance of the SteelApp Web Accelerator Software licensed by Customer may be installed only on a single server that is identified to Brocade at the time of purchase or download and that is running a supported operating system or computing platform (each, a “Licensed Server”). Use of each instance purchased by Customer is limited to the type and scope of use licensed by Customer as specified in the applicable product description as follows: (a) SharePoint Web Accelerator Software may be used only to accelerate SharePoint (i) for the Customer’s internal intranet on a per seat basis, or (ii) for the Customer’s external facing website up to a designated number of unique visitors per day, (b) SteelApp Web Accelerator for IIS Websites Software may be used only to accelerate designated Customer websites up to a designated number of page hits per second on a per server basis, and (c) SteelApp Web Accelerator proxy Software (“SPX”) and SteelApp Web Accelerator for Traffic Manager (“STX”) may be used only to accelerate designated Customer websites up to a designated number of page hits per any twenty-four hour period (at any given time) and up to a designed amount of bandwidth per instance of SPX or STX. The SPX products, upon delivery, may include SteelApp Traffic Manager Software or other software for which Customer does not have a right or license to use; for the avoidance of doubt, Customer is only authorized to use the Software (whether SteelApp Traffic Manager and/or SteelApp Web Accelerator) that has been licensed by Customer. Provided that the Software is covered by the then-current Brocade maintenance and support plan, Customer may transfer the Software from the designated Licensed Server to another designated server that meets the requirements to be a Licensed Server, provided that the new designated server is identified to Brocade at the time of transfer and, upon transfer, the software on the original Licensed Server is no longer used and is de-installed using any de-installation instructions provided by Brocade. Upon transfer of the Software to a new designated server in accordance with the foregoing requirements, the new designated server will be deemed a Licensed Server. Customer may copy the Software solely for backup and/or disaster recovery purposes. Brocade has the right to inspect and audit Customer and/or require Customer to provide written assurances satisfactory to Brocade to confirm compliance with the foregoing.
      2. SteelApp Traffic Manager and SteelApp Web App Firewall Software License. Each instance of SteelApp Traffic Manager Software (including any legacy Stingray or Zeus Traffic Manager Software and/or Software included in any SteelApp Traffic Manager Add On to SteelApp Web Accelerator proxy Software (“SPX”)) or Web App Firewall Software (including software and virtual appliances) licensed by Customer may be installed only on a single server or cluster of servers operating as a single entity that is identified to Brocade at the time of purchase or download and that is running a supported operating system or computing platform (each, a “Licensed Server”). The SPX products, upon delivery, may include SteelApp Traffic Manager Software or other software for which Customer does not have a right or license to use; for the avoidance of doubt, Customer is only authorized to use the Software (whether SteelApp Traffic Manager and/or SteelApp Web Accelerator) that has been licensed by Customer. Only one copy of a single SteelApp Software instance may be running or used at any time. Provided that the SteelApp Software is covered by the then current Brocade maintenance and support plan, Customer may (i) transfer the SteelApp Software from the designated Licensed Server to another designated server that meets the requirements to be a Licensed Server, provided that the new designated server is identified to Brocade at the time of transfer and, upon transfer, the SteelApp software on the original Licensed Server is no longer used and is de-installed using any de-installation instructions provided by Brocade and/or (ii) transfer the designated supported operating system or computing platform for the SteelApp Software to a different supported operating system or computing platform for such software, provided that the new supported operating system or computing platform type is identified to Brocade at the time of transfer and, upon transfer, any copies of the SteelApp Software designated for the original supported operating system or computing platform are no longer used and are either de-installed using any de-installation instructions provided by Brocade or destroyed (at Brocade’s option). Upon transfer of the SteelApp Software to a new designated server in accordance with the foregoing requirements , the new designated server will be deemed a Licensed Server. Customer may use each SteelApp Software instance purchased by Customer only to manage, secure and accelerate application traffic in the manner licensed by Customer for that instance. Customer may copy the Software solely for backup and/or disaster recovery purposes. Brocade has the right to inspect and audit Customer and/or require Customer to provide written assurances satisfactory to Brocade to confirm compliance with the foregoing.
      3. SteelApp Traffic Manager Software License. Each instance of SteelApp Traffic Manager Software (including any legacy Zeus Traffic Manager Software and/or software included in any SteelApp Traffic Manager Add On to SteelApp Web Accelerator proxy Software (“SPX”)) licensed by Customer on a term basis (a) may be installed only in either (i) a designated service provider cloud environment or (ii) at a Customer site on a single server or cluster of servers operating as a single entity that is identified to Brocade at the time of purchase or download and that is running a supported operating system or computing platform (each, a “Licensed Server”), and (b) may be used only for the term of the license purchased by Customer to manage, secure and accelerate application traffic in the manner licensed by Customer for that instance. The SPX products, upon delivery, may include SteelApp Traffic Manager Software or other software for which Customer does not have a right or license to use; for the avoidance of doubt, Customer is only authorized to use the Software (whether SteelApp Traffic Manager and/or SteelApp Web Accelerator) that has been licensed by Customer. Each such instance of the SteelApp Traffic Manager Software includes Brocade’s then-standard software maintenance and support services (if any), as described at www.brocade.com, for the term of the license purchased by Customer. Only one copy of a single SteelApp instance may be running or used at any time. Provided that the SteelApp Software license term has not yet expired, Customer may (i) transfer the SteelApp Software from the designated Licensed Server to another designated server that meets the requirements to be a Licensed Server, provided that the new designated server is identified to Brocade at the time of transfer and, upon transfer, the SteelApp Software on the original Licensed Server is no longer used and is de-installed using any de-installation instructions provided by Brocade and/or (ii) transfer the designated supported operating system or computing platform for the SteelApp Software to a different supported operating system or computing platform for such Software, provided that the new supported operating system or computing platform type is identified to Brocade at the time of transfer and, upon transfer, any copies of the SteelApp Software designated for the original supported operating system or computing platform are no longer used and are either de-installed using any de-installation instructions provided by Brocade or destroyed (at Brocade’s option). Upon transfer of the SteelApp Software to a new designated server in accordance with the foregoing requirements in, the new designated server will be deemed a Licensed Server. Brocade reserves the right to temporarily suspend or permanently terminate use of or access to the Software instances and support and maintenance for such instances in the event that Customer violates the terms of the applicable Agreement or Brocade does not timely receive payment from the Customer or, as applicable, the channel partner, that purchased the instances from Brocade. Customer may not terminate SteelApp term licenses prior to the end of the purchased term. Brocade may require the purchase of a minimum license term and/or require payment up front based on Brocade’s then-current term license purchase and invoice policies. Brocade has the right to inspect and audit Customer and/or require Customer to provide written assurances satisfactory to Brocade to confirm compliance with the foregoing.
      4. SteelApp Traffic Manager (“STM”) Controller for Enterprise and STM Bulk Package(s) Software Perpetual Licenses. Customer may generate any quantity of instances of SteelApp Traffic Manager Software from the STM Controller Software for Enterprise (“Controller”) provided that Customer’s use of such instances at any given time shall not, collectively, exceed the amount of throughput in the STM Bulk Packages licensed by Customer and may only include the features specifically licensed by Customer. The Controller Software may be installed only in either (i) a designated service provider cloud environment or (ii) at a Customer site on a single server or cluster of servers operating as a single entity that is identified to Brocade at the time of purchase or download and that is running a supported operating system or computing platform (each, a “Licensed Server”). The Controller, upon delivery, may include certain features of the SteelApp Software and/or other software for which Customer does not have a right or license to use; for the avoidance of doubt, Customer is only authorized to use the STM Bulk Package(s) including any Software features related thereto that have been licensed by Customer. Customer may use each SteelApp Software instance generated by the Controller as part of Customer’s licensed STM Bulk Package(s) only to manage, secure and accelerate application traffic in the manner and in accordance with the amount of throughput licensed by Customer. Customer is responsible for deleting any SteelApp Software instances which it does not wish to use and/or be charged for the use thereof against Customer’s total licensed throughput covered by the STM Bulk Package(s). Provided that all of the STM Bulk Package(s) licensed in connection with Customer’s use of the Controller are covered by the then-current Brocade maintenance and support plan, Customer may (1) transfer the Controller from the designated Licensed Server to another designated server that meets the requirements to be a Licensed Server, provided that the new designated server is identified to Brocade at the time of transfer and, upon transfer, the Controller on the original Licensed Server is no longer used and is de-installed using any de-installation instructions provided by Brocade and/or (2) transfer the designated supported operating system or computing platform for the Controller to a different supported operating system or computing platform for such software, provided that the new supported operating system or computing platform type is identified to Brocade at the time of transfer and, upon transfer, any copies of the SteelApp software instances designated for the original supported operating system or computing platform are no longer used and are either de-installed using any de-installation instructions provided by Brocade or destroyed (at Brocade’s option). Upon transfer of the Controller to a new designated server in accordance with the foregoing requirements, the new designated server will be deemed a Licensed Server. Customer is responsible for working with Brocade support in connection with any such transfer to ensure that the all SteelApp Software instances are transferred accurately. Customer may copy the Controller, SteelApp Software, and any other related software solely for backup and/or disaster recovery purposes. Brocade has the right to (A) inspect and audit Customer and/or require Customer to provide written assurances satisfactory to Brocade to confirm compliance with the foregoing and/or email Brocade a report generated by the Controller detailing prior use, each at Brocade’s sole option; and (B) bill Customer for any (x) throughput amounts and/or (y) use of features of SteelApp software and/or other related software which exceed and/or differ from the scope of Customer’s licensed STM Bulk Package(s), together with the difference between the cost of Brocade support for the STM Bulk Package purchased by Customer and the cost of Brocade support for the STM Bulk Package(s) used by Customer.
      5. SteelApp Traffic Manager (“STM”) Controller for Enterprise and STM Bulk Package(s) software Term Licenses. Customer may generate any quantity of instances of SteelApp Traffic Manager Software from the STM Controller Software for Enterprise (“Controller”) provided that Customer’s use of such instances at any given time shall not, collectively, exceed the amount of throughput in the STM Bulk Packages licensed by Customer on a term basis and may only include the features specifically licensed by Customer. The Controller Software may be installed only in either (i) a designated service provider cloud environment or (ii) at a Customer site on a single server or cluster of servers operating as a single entity that is identified to Brocade at the time of purchase or download and that is running a supported operating system or computing platform (each, a “Licensed Server”). The Controller, upon delivery, may include certain features of the SteelApp Software and/or other software for which Customer does not have a right or license to use; for the avoidance of doubt, Customer is only authorized to use the STM Bulk Package(s) including any Software features related thereto that have been licensed by Customer. Each such STM Bulk Package(s) licensed by Customer includes Brocade’s then-standard Software maintenance and support services (if any), as described at www.brocade.com, for the term of the license purchased by Customer. Customer may use each SteelApp software instance generated by the Controller as part of Customer’s licensed STM Bulk Package(s) only for the term of the license purchased by Customer for such STM Bulk Package(s) to manage, secure and accelerate application traffic in the manner and in accordance with the amount of throughput licensed by Customer. Customer is responsible for deleting any SteelApp Software instances which it does not wish to use and/or be charged for the use thereof against Customer’s total licensed throughput covered by the STM Bulk Package(s). Provided that the license term for the STM Bulk Package(s) licensed in connection with Customer’s use of the Controller has not yet expired, Customer may (1) transfer the Controller from the designated Licensed Server to another designated server that meets the requirements to be a Licensed Server, provided that the new designated server is identified to Brocade at the time of transfer and, upon transfer, the Controller on the original Licensed Server is no longer used and is de-installed using any de-installation instructions provided by Brocade and/or (2) transfer the designated supported operating system or computing platform for the Controller to a different supported operating system or computing platform for such Software, provided that the new supported operating system or computing platform type is identified to Brocade at the time of transfer and, upon transfer, any copies of the SteelApp Software instances designated for the original supported operating system or computing platform are no longer used and are either de-installed using any de-installation instructions provided by Brocade or destroyed (at Brocade’s option). Upon transfer of the Controller to a new designated server in accordance with the foregoing requirements the new designated server will be deemed a Licensed Server. Customer is responsible for working with Brocade support in connection with any such transfer to ensure that the all SteelApp Software instances are transferred accurately. Customer may copy the Controller, SteelApp Software, and any other related software solely for backup and/or disaster recovery purposes. Brocade reserves the right to temporarily suspend or permanently terminate use of or access to the Controller and/or STM Bulk Package(s) of Software in the event that Customer violates the terms of this Agreement or another applicable agreement with Brocade or Brocade does not timely receive payment from the Customer or, as applicable, the channel partner, that purchased the STM Bulk Package(s) from Brocade. Customer may not terminate the subscription STM Bulk Package term licenses prior to the end of the purchased term. Brocade may require the purchase of a minimum license term and/or require payment up front based on Brocade’s then-current term license purchase and invoice policies. Brocade has the right to (A) inspect and audit Customer and/or require Customer to provide written assurances satisfactory to Brocade to confirm compliance with the foregoing terms and/or email Brocade a report generated by the Controller detailing prior use, each at Brocade’s sole option; and (B) bill Customer for any (x) throughput amounts and/or (y) use of features of SteelApp Software and/or other related software which exceed and/or differ from the scope of Customer’s licensed STM Bulk Package(s) for the applicable term.
      6. Legacy Stingray and Zeus Traffic Manager License Upgrades. For Customers who have a valid license to legacy Stingray and Zeus Traffic Manager Software (“LTM”) that have purchased a license to upgrade to SteelApp Traffic Manager Software, and have purchased a then-current Brocade maintenance and support plan for the LTM Software, the following terms apply: (i) Customer shall upgrade the LTM to SteelApp Traffic Manager (“Upgraded Software”) and upon Brocade providing Customer with such Upgraded Software, Customer shall no longer use any copies of the LTM and shall, at Brocade’s option, either de-install the LTM using any de-installation instructions provided by Brocade or destroy such LTM; (ii) Customer shall not run instances of the LTM and the Upgraded Software concurrently; and (iii) Customer shall use the Upgraded Software only in accordance with Customer’s applicable Agreement. Brocade has the right to inspect and audit Customer and/or require Customer to provide written assurances satisfactory to Brocade to confirm compliance with the foregoing.
    4. Open Source Software. Portions of the Software may be licensed under public licenses (including but limited to the GNU General Public License ("GPL"), the GNU Lesser General Public License ("LGPL"), Eclipse Public License (“EPL”) 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, or if included in the downloaded content, the applicable open source license may be found at 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 agree to the provisions of each applicable public license or not exercise such licensed rights. For clarity, this Agreement is not intended to change or restrict the provisions 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.
    5. Without granting any additional licenses hereunder, Customer may authorize its contractors and outsourcers to access, use or operate the Software solely on Customer’s behalf, provided that (i) Customer obtains any such third party’s binding consent to abide by the terms of this Agreement, and (ii) Customer remains responsible for such third parties’ use of the Software and compliance with the terms and conditions of this Agreement, and any breach of this Agreement by any such third party will be deemed a breach of this Agreement by Customer.
  3. LICENSE RESTRICTIONS. Except as expressly permitted by this Agreement, Customer shall not, and shall not authorize or permit any other person or entity to, directly or indirectly: (a) copy, modify (except as expressly permitted under the applicable Documentation), create derivative works of or distribute any Software; (b) reverse engineer, disassemble, decompile or attempt to discover the source code, structure, or sequence and organization of any Software (except where the foregoing is expressly prohibited by applicable local law, and then only to the extent so prohibited); (c) sublicense, sell, rent, lease, or use any Software for timesharing or service bureau purposes for third parties, or otherwise use any Software on behalf of any third party; (d) publish or disclose any information or results relating to performance, performance comparisons or other "benchmarking" activities relating to any Software, (e) obscure, alter, remove, or destroy any proprietary markings, restrictive legends, or intellectual property notices on any Software, or (f) access or use any Software for purposes of designing or developing a competing product or service. Customer acknowledges and agrees that the Software (including its design and structure) and Documentation constitutes trade secrets and/or confidential information of Brocade or its licensors. Except as expressly permitted by this Agreement, Customer shall hold in confidence and shall not disclose, provide, or permit access to any Software or Documentation in any form to any third party without Brocade's prior written consent. Regardless of any references to any sale or purchase in this Agreement, all Software is licensed by Brocade, and not sold. As between the parties, all ownership rights with respect to the intellectual property rights in and to the Software, and any copies or portions thereof, remain in Brocade and its suppliers and licensors. The Software is protected by the intellectual property laws (including copyright laws) of the United States, foreign jurisdictions and all applicable international treaties. This Agreement does not grant Customer any rights not expressly set forth herein. Any action of Customer in contravention of this Section may result in the termination of this Agreement, including the license grant for the Software, as set forth in this Agreement.
  4. Price and Payment. Customer shall pay to Brocade (or its agent) as indicated on the Invoice, the fees for Software and Support set forth in the accepted Order. Customer is responsible for all taxes, withholding, duties and other governmental assessments (other than Brocade’s franchise taxes or taxes based upon Brocade’s net income), including goods and services, sales or use tax, VAT or similar taxes, provided that Brocade shall not invoice Customer for taxes to the extent Customer has provided an appropriate resale certificate, exemption documentation or valid VAT identification number that exempts Customer from paying and/or Brocade from collecting such tax. Brocade shall have the right to recover such taxes if it is later found that such taxes were due from Customer. If Customer is required to pay any withholding taxes on payments to Brocade, then Customer shall increase its payments to Brocade such that the net payment to Brocade, after withholding tax, would be the same as if no withholding tax were applicable. Customer shall cooperate with Brocade to reduce or minimize withholding or any applicable taxes to the extent possible, including but not limited to assisting Brocade to apply for exemption from withholding, and reasonable notice and cooperation in case of any audit. Customer shall make all payments in U.S. dollars. Customer shall pay all amounts invoiced within 30 days after the invoice date, unless Brocade at any time determines that Customer's credit is not satisfactory, in which case payment terms will be C.O.D. Brocade shall not invoice for any Software or Support before the actual date of shipment of the applicable Software. All sums not paid when due will accrue interest daily at the lesser of an annual rate of eighteen percent (18%) or the highest rate permissible by law on the unpaid balance until paid in full.
  5. Delivery Terms. The Software will be delivered by issuing a key to Customer at the email address provided by Customer. Subject to the terms and conditions of this Agreement, Brocade shall use its reasonable commercial efforts to fill promptly (by full or partial shipment) Customer's Order for Software that has been accepted by Brocade, insofar as practical and consistent with Brocade's then-current lead-time schedule, shipping schedule, access to supplies on acceptable terms and allocation of available Software and capacity among Brocade customers; each partial shipment will be deemed a separate sale and may be invoiced upon such shipment. Customer shall not decrease, reschedule or cancel the Order.
  6. Warranties and Disclaimer. ALL SOFTWARE, SUPPORT, MAINTENANCE AND SERVICES ARE PROIVDED “AS IS” WITHOUT ANY WARRANTIES, WHETHER EXPRESS, IMPLIED, OR STATUTORY, INCLUDING WARRANTIES OF NONINFRINGEMENT, MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE. BROCADE ALSO MAKES NO WARRANTY REGARDING NONINTERRUPTION OF USE, AVAILABILITY OR FREEDOM FROM BUGS OR ERRORS. Customer’s sole remedy, and Brocade’s sole obligation, with respect to any failure to provide the Support in accordance with the foregoing warranty is to re-perform the applicable Support.
  7. Support and Upgrades. This Agreement does not guarantee the availability of nor entitle Customer to receive any support services, upgrades, updates, patches, enhancements or fixes for any Software (collectively, "Support"). If Customer desires to obtain Support (if available), Customer shall make separate arrangements for Support (which may include entering into a separate agreement) and pay any fees associated with such Support. Customer is not entitled to, and shall not, install or use any Software upgrades, updates, patches, enhancements or fixes made available by Brocade, including on Brocade’s support website, except on or with Software that are covered by a then-current paid Support plan. The terms and conditions of Brocade's Support (if any) are located at www.brocade.com. Brocade is not obligated to provide, and Customer shall not request, any Support for any Software with respect to which a Support contract is not then in effect or with respect to which Support fees have not been timely and fully paid to Brocade. Customer shall not escalate calls to Brocade for Support nor install updates, upgrades, bug fixes or the like for any Software with respect to which a Support contract is not then in effect or with respect to which Support fees have not been timely and fully paid to Brocade. Brocade’s obligations under any Support plan with respect to any Software are subject to Customer’s advance payment of Brocade’s applicable Support fee. The purchase or renewal of Support for any Software purchased by Customer requires the purchase or renewal of Support for all Software purchased by Customer, and Brocade is not obligated to provide Support to Customer if the foregoing condition is not met. Brocade retains ownership of and any rights, title and interest in and to any patents, copyrights, trades secrets, work product and other intellectual property resulting from performance of Support. If, with respect to a particular Software, there is a lapse in Support, at Brocade’s sole discretion (a) any subsequent purchase of Support may be deemed purchased retroactive to the later of (i) the date on which any prior Support period concluded or (ii) the date on which the particular Software was purchased, and (b) Customer shall pay all applicable Support fees for such lapsed period plus an additional twenty percent (20%) charge on the applicable Support fees for the lapsed Support period, which amounts will be based on the level of Support that Customer requests to purchase for such Software on a go-forward basis. Customer may purchase Support for Software subject to the applicable policies at www.brocade.com.
  8. Additional Services. If Brocade offers additional Services, purchase of such Services including without limitation training, consulting, installation and other services, will be subject to additional terms, conditions and policies www.Brocade.com or an SOW mutually acceptable to both parties. Brocade may provide products for installation at Customer’s facilities solely for temporary use by Brocade or Customer in connection with Brocade’s performance of a professional services engagement for Customer (each such product, a “PS Usage Product”). As between Brocade and Customer, Brocade retains ownership of all PS Usage Products. Customer shall not, and shall not authorize or permit any other person or entity to, directly or indirectly: (a) use any PS Usage Product except in connection with receipt of the applicable professional services for which it was provided, (b) copy, modify, distribute, or create derivative works of any PS Usage Product, (c) place any lien or encumbrance of any kind on any PS Usage Product, or (d) move or transfer any PS Usage Product from the location designated by Brocade or otherwise agreed by Brocade in writing. Unless otherwise agreed by Brocade, (i) Customer is responsible for and shall pay any import related charges incurred in connection with any shipment of any hardware PS Usage Product to Customer, (ii) within fifteen (15) days after receipt of Brocade’s request, Customer shall promptly return each hardware PS Usage Product to Brocade and uninstall any software only PS Usage Products in accordance with Brocade’s instructions, and (iii) Customer is responsible for and shall pay all shipping charges associated with the return to Brocade of any hardware PS Usage Product, including any applicable export related charges. Customer shall return all components of a hardware PS Usage Product, including any cables, cards, or other accessories. Customer shall use the original shipping container (or the equivalent). Brocade will provide Customer with the shipping address at the time of the return request. If mutually agreed by the parties, subject to Customer’s payment of any applicable fees for such services, Customer shall promptly permit Brocade to access Customer’s premises to collect any hardware PS Usage Products and/or uninstall any software only PS Usage Products. Notwithstanding the foregoing, Customer is responsible for any loss of or damage to any of the PS Usage Products once shipped to, installed or otherwise provided at Customer’s facilities until such PS Usage Products are returned to or collected by Brocade, and if any such PS Usage Products are lost, damaged, or otherwise not returned to or collected by Brocade in accordance with the foregoing requirements, Customer shall reimburse Brocade for an amount not to exceed the then-current list price of the applicable product. As used herein, return of a hardware PS Usage Product to Brocade means confirmed delivery of the PS Usage Product to the location designated by Brocade.
  9. Term and Termination. This Agreement will continue until terminated as set forth in this Section 9. Customer may terminate this Agreement at any time upon notice to Brocade. This Agreement will terminate if Licensee violates or fails to comply with any provision of this Agreement and fails to cure such breach within thirty (30) days after receipt of notice of such breach from Brocade. This Agreement will immediately terminate for Customer’s breach of the license provisions of this Agreement or violation of Brocade’s intellectual property rights. Any termination of this Agreement will also terminate the licenses granted hereunder. Upon termination of this Agreement, Customer shall cease use of all Software, Support and Documentation, shall destroy and remove from all computers, hard drives, networks and other storage media all copies of the Software and Documentation, and shall certify to Brocade that such actions have occurred. Sections 1, 4, 6, 8 (as applicable to the liability and return of products), 9, and 11 through 20 will survive any termination of this Agreement. License fees are non-cancellable and non-refundable.
  10. Indemnification. Brocade shall defend any third party action, suit or proceeding brought against Customer alleging that the Software infringes any of such third party’s patents or copyrights that are registered in the United States as of the Effective Date (each, a “Claim”), and shall indemnify Customer for any losses, damages, costs, expenses and judgments resulting from a Claim that are agreed to by Brocade in a settlement or that are finally awarded to Customer by a court or a governmental entity with competent jurisdiction. The foregoing obligations are expressly conditioned on Customer promptly notifying Brocade of any and all threats, claims and proceedings related to a Claim and providing Brocade with reasonable assistance and the opportunity to assume sole control over the defense and all negotiations for a settlement or compromise of such Claim. Brocade is not responsible for any settlement it does not approve in writing. The foregoing obligations of Brocade do not apply with respect to any Software or any portion or component thereof: (a) that is not supplied by Brocade, (b) that is made in whole or in part in accordance with Customer specifications or requests, (c) that is modified after original shipment by Brocade, if the alleged infringement relates to such modification, (d) that is combined, processed, or used with other products, technologies, processes or materials, if the alleged infringement relates to such combination, process or use, (e) where Customer continues allegedly infringing activity after being notified thereof or after being informed of modifications that would have avoided the alleged infringement, (f) where Customer's use is not strictly in accordance with this Agreement, or (g) where the alleged infringement relates to a patent that is deemed essential or required for any industry standard or that claims a method of conducting business. In addition, Brocade, at its sole expense and option, may (i) procure for Customer the right to continue to use the applicable Software, (ii) replace the applicable Software with a non-infringing alternative, (iii) modify the applicable Software to make it non-infringing, or (iv) refund a pro rata portion of the amount received from or on behalf of Customer for the applicable Software depreciated on a straight line basis over a five (5) year period, provided that Customer ceases all use of such Software and, at Brocade’s option, returns the Software to Brocade. This Section 10 states Brocade’s sole and exclusive obligation, and Customer’s sole and exclusive remedy, for any third party claims of infringement.
  11. Confidentiality. Each party (the “Receiving Party”) agrees that any non-public information, code, inventions (whether patentable or not), algorithms, designs, know-how, ideas, product development plans, and all customer, business, technical, training and financial information (collectively, “Confidential Information”) it obtains from the other (the “Disclosing Party”) are the confidential property of the Disclosing Party and its suppliers. Without limiting the foregoing, the Software and all information on Brocade’s partner center and customer care website are Brocade’s Confidential Information. Except as expressly and unambiguously allowed herein, the Receiving Party will hold the Disclosing Party’s Confidential Information in confidence using the same degree (but no less than a reasonable degree) of care and protection that it uses to protect its own Confidential Information of a similar nature and not use or disclose any Confidential Information. Notwithstanding the foregoing, the Receiving Party may disclose Confidential Information to those of its employees and contractors with a need to know such Confidential Information and who have signed a written agreement with nonuse and nondisclosure provisions at least as protective of such Confidential Information as the terms of this Agreement. Confidential Information does not include any information that (a) was publicly known at the time of the Disclosing Party’s communication thereof to the Receiving Party or becomes publicly known thereafter through no fault of the Receiving Party, (b) was in the Receiving Party’s possession free of any obligation of confidentiality at the time of the Disclosing Party’s communication thereof to the Receiving Party, (c) is rightfully obtained by the Receiving Party free of any obligation of confidentiality from a third party authorized to make such disclosure without restriction, or (d) is identified by the Disclosing Party as no longer proprietary or confidential. The Receiving Party may disclose Confidential Information to the minimum extent disclosure is required by court order or as otherwise required by law, on condition that (i) notice of such requirement for such disclosure is given to the Disclosing Party prior to making any such disclosure (if permitted under applicable law), and (ii) the Receiving Party ensures that any Confidential Information disclosed under this provision will still be afforded the protection of this Agreement to the extent it does not become publicly available as a result of such disclosure. Because of the unique and proprietary nature of the Confidential Information, it is understood and agreed that the Disclosing Party’s remedies at law for a breach by the Receiving Party of its obligations under this Section will be inadequate and that Disclosing Party will be entitled to equitable relief (including provisional and permanent injunctive relief) in addition to any other remedies. Without limiting the foregoing, Customer shall not provide the Software or materials or other work product delivered by Brocade or disclose any Brocade Confidential Information, Brocade documentation or any information regarding any Software or Deliverables to any Brocade competitors. Customer shall not, without Brocade’s prior written consent, publish or provide to any third-party results of any benchmark or comparison tests of any Software. Upon termination or expiration of this Agreement, the Receiving Party shall return or destroy all Confidential Information of the Disclosing Party in its possession. The obligations set forth in this Section will survive any termination of this Agreement.
  12. WARRANTY DISCLAIMER. BROCADE PROVIDES THE SOFTWARE AND SUPPORT "AS IS" AND WITHOUT WARRANTY OF ANY KIND, AND HEREBY DISCLAIMS ALL WARRANTIES, WHETHER EXPRESS, IMPLIED, OR STATUTORY, INCLUDING WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, PERFORMANCE, ACCURACY, RELIABILITY AND NON-INFRINGEMENT. BROCADE MAKES NO WARRANTY REGARDING NONINTERRUPTION OF USE, FREEDOM FROM BUGS OR ERRORS, OR THAT ANY SOFTWARE WILL MEET CUSTOMER’S REQUIREMENTS. THIS DISCLAIMER OF WARRANTY CONSTITUTES AN ESSENTIAL PART OF THIS AGREEMENT. THE SOFTWARE IS NOT DESIGNED FOR, AND LICENSEE IS NOT LICENSED TO USE THE SOFTWARE IN, ANY DEVICE OR SYSTEM IN WHICH A MALFUNCTION OF THE SOFTWARE WOULD RESULT IN FORESEEABLE RISK OF INJURY OR DEATH TO ANY PERSON. THIS INCLUDES OPERATION OF NUCLEAR FACILITIES, LIFE-SUPPORT SYSTEMS, AIRCRAFT NAVIGATION OR COMMUNICATION SYSTEMS AND AIR TRAFFIC CONTROL.
  13. LIMITATION OF LIABILITY. NOTWITHSTANDING ANYTHING ELSE IN THIS AGREEMENT OR OTHERWISE, WITH RESPECT TO ANY SUBJECT MATTER OF THIS AGREEMENT OR UNDER ANY TORT, CONTRACT, NEGLIGENCE, STRICT LIABILITY OR OTHER LEGAL OR EQUITABLE THEORY. (A) NEITHER BROCADE NOR ANY OF ITS AFFILIATES, LICENSORS, OR SUPPLIERS IS LIABLE FOR (I) ANY INDIRECT, SPECIAL, EXEMPLARY, PUNITIVE, INCIDENTAL OR CONSEQUENTIAL DAMAGES, OR ANY LOST PROFITS, (II) COST OF COVER OR COST OF PROCUREMENT OF SUBSTITUTE GOODS, TECHNOLOGY OR SERVICES, OR (III) LOSS OR CORRUPTION OF DATA, INTERRUPTION OR AVAILABILITY OF USE, LOSS OF GOODWILL, WORK STOPPAGE, ACCURACY OF RESULTS, COMPUTER FAILURE OR MALFUNCTION, OR DAMAGES RESULTING FROM LICENSEE'S USE OF ANY SOFTWARE, AND (B) THE AGGREGATE LIABILITY OF BROCADE AND ITS AFFILIATES AND SUPPLIERS WILL NOT EXCEED THE AGGREGATE FEES RECEIVED BY BROCADE FOR THE APPLICABLE SOFTWARE OR SUPPORT THAT GAVE RISE TO THE CLAIM FOR THE TWELVE (12) MONTH PERIOD PRIOR TO THE DATE THE CAUSE OF ACTION AROSE. THE FOREGOING LIMITATION IS CUMULATIVE, WITH ALL CLAIMS BEING AGGREGATED TO DETERMINE SATISFACTION OF THE LIMIT. THE EXISTENCE OF ONE OR MORE CLAIMS WILL NOT ENLARGE THE LIMIT. THE FOREGOING LIMITATIONS WILL APPLY EVEN IF BROCADE IS INFORMED OF THE POSSIBILITY OF SUCH DAMAGES. THIS SECTION DOES NOT LIMIT LIABILITY FOR BODILY INJURY OF A PERSON.
  14. Compliance with Laws and Export Control. Customer shall conduct its business operations in accordance with all applicable U.S. and foreign laws, ordinances, codes and regulations. Without limiting the foregoing, Customer shall comply with all applicable export laws and restrictions and regulations of the Department of Commerce, the United States Department of Treasury Office of Foreign Assets Control, and any other United States, European Union, Singapore or other foreign agency or authority and shall not import, export or re-export, or allow the import, export or re-export of, any Software, technology or information it obtains or learns pursuant to this Agreement (or any direct product thereof) in violation of any such laws, restrictions or regulations.
  15. Governing Law; Venue. All disputes arising out of this Agreement and/or any 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 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. 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.
  17. U.S. Government Restricted Rights. The Software if acquired by or on behalf of any part of the United States Government, the following provisions apply. The Software 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 Software 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).
  18. 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.
  19. 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.
  20. General. All notices under this Agreement must be in writing, and will be deemed given when personally delivered, when sent by confirmed fax, or three days after being sent by prepaid certified or registered U.S. mail. If any provision of this Agreement is found invalid or unenforceable, that provision will be enforced to the maximum extent permissible consistent with the original intent of the parties, and the other provisions of this Agreement will remain in force. The failure of Brocade to act with respect to a breach of this Agreement by Customer or others does not constitute a waiver and will not limit Brocade's rights with respect to such breach or any subsequent breaches. This Agreement is personal to Customer and Customer shall not assign or transfer this Agreement for any reason whatsoever without Brocade's prior written consent, and any action or conduct in violation of the foregoing will be void and without effect. Brocade may assign this Agreement and/or the Order, or delegate any of its obligations hereunder, in whole or in part (except that Brocade shall obtain the consent of the U.S. government where the U.S. government is the Customer hereunder and such consent is required). For all purposes under this Agreement, each party shall be and act as an independent contractor of the other and shall not bind nor attempt to bind the other to any contract. Brocade and Customer agree that any Order (or portion thereof) will be deemed separable from any other Order (or portion thereof). Unless otherwise expressly provided, all remedies under this Agreement are cumulative and not exclusive. This Agreement, including all online terms referenced herein, constitutes the entire agreement between Brocade and Customer with respect to the subject matter hereof, to the exclusion of any pre-printed or contrary terms of any purchase order (or similar document) and supersedes and cancels any prior discussions, understandings or representations between the parties. This Agreement will not be modified or waived, except by a mutual signed writing, and, if this Agreement is deemed an offer, acceptance is expressly limited to these terms. Brocade may include Customer’s name as part of general customer lists. Execution and delivery of this Agreement may be evidenced by facsimile or other electronic transmission. The parties acknowledge and agree that this Agreement is subject to the U.S. Electronic Signatures in Global and National Commerce Act, the Singapore Electronic Transactions Act, the U.K. Electronic Communications Act 2000, and any similar law in any other applicable jurisdiction that makes legally effective a contract in electronic form, and authorizes acceptance by means of an electronic signature or process. Brocade may, upon at least two (2) weeks’ advance written notice, inspect, or have an accountant or auditor inspect, Customer’s books and records relating to this Agreement and Customer’s compliance with its terms and conditions, for up to two prior years of records from the date of such audit. Any such audit will be conducted during Customer’s normal business hours and in a manner that does not materially interfere with Customer’s normal business operations. If any audit reveals that Customer is in breach of this Agreement, then Customer shall compensate Brocade (at Brocade’s then-current list price) for any unauthorized use of or access to any Software or Support (e.g., any use by any unauthorized users or use of any unauthorized copies or instances of Software).

 

 

SteelApp Products – Additional Use Rights

This Additional Use Rights document (“Additional Use Rights”) sets forth additional terms, conditions and/or limitations that govern the use and/or provision of the software, services, support and maintenance listed below (“Software”) that are sold or licensed by Brocade Communications Systems Inc. and/or any of its affiliates, as applicable (“Brocade”) to Customer, in addition to all of the provisions of the applicable purchase, license or other agreement between Brocade and Customer that references these Additional Use Rights (“Purchase Agreement”). The Additional Use Rights and the Purchase Agreement are collectively referred to hereunder as “Agreement”. Purchases under the Agreement shall be between Customer and the Brocade entity named on the invoice. More than one set of terms and conditions set forth in these Additional Use Rights may apply to Software as referenced below. Any references to “Customer” mean the applicable customer, buyer, or licensee specified in the Agreement. If Customer has not purchased or licensed a particular Software product or service from Brocade, then any provisions below that are specific to that product or service do not apply to Customer until Customer purchases or licenses such product or service. Any breach of the terms of the Agreement, including any use of any Software or service not in accordance with the applicable terms set forth below, will be deemed a breach by Customer of the Agreement. Unless otherwise expressly indicated, “including” (and other variations thereof) means, as applicable, “including but not limited to”.

  1. The specific Software licensed to Customer under this Agreement, including the number of licenses issued and the term of any applicable license or subscription, will be identified on the applicable ordering documentation provided by Brocade. The Software licensed or Support purchased by Customer under this Agreement is identified on the sales quotation that incorporates this Agreement by reference (“Quote”). The license and purchases shall be between Customer and the Brocade entity named on the invoice. Customer may purchase from Brocade the Software license and Support set forth on the Quote by submitting a written purchase order to Brocade; such purchase order is subject to acceptance by Brocade (“Order”). The terms and conditions of the Agreement will apply to the Order and supersede any different or additional terms on Customer’s purchase order. If any of the provisions of this Agreement conflict or are otherwise inconsistent with the provisions of this the Purchase Agreement, the provisions of this Additional Rights Use shall supersede the conflicting or inconsistent provision(s).
  2. The following provisions apply to the extent that Customer has purchased the Software described in the purchase documentation.
    1. SteelApp Web Accelerator Software License. Each instance of the SteelApp Web Accelerator Software licensed by Customer may be installed only on a single server that is identified to Brocade at the time of purchase or download and that is running a supported operating system or computing platform (each, a “Licensed Server”). Use of each instance purchased by Customer is limited to the type and scope of use licensed by Customer as specified in the applicable product description as follows: (a) SharePoint Web Accelerator Software may be used only to accelerate SharePoint (i) for the Customer’s internal intranet on a per seat basis, or (ii) for the Customer’s external facing website up to a designated number of unique visitors per day, (b) SteelApp Web Accelerator for IIS Websites Software may be used only to accelerate designated Customer websites up to a designated number of page hits per second on a per server basis, and (c) SteelApp Web Accelerator proxy Software (“SPX”) and SteelApp Web Accelerator for Traffic Manager (“STX”) may be used only to accelerate designated Customer websites up to a designated number of page hits per any twenty-four hour period (at any given time) and up to a designed amount of bandwidth per instance of SPX or STX. The SPX products, upon delivery, may include SteelApp Traffic Manager Software or other software for which Customer does not have a right or license to use; for the avoidance of doubt, Customer is only authorized to use the Software (whether SteelApp Traffic Manager and/or SteelApp Web Accelerator) that has been licensed by Customer. Provided that the Software is covered by the then-current Brocade maintenance and support plan, Customer may transfer the Software from the designated Licensed Server to another designated server that meets the requirements to be a Licensed Server, provided that the new designated server is identified to Brocade at the time of transfer and, upon transfer, the software on the original Licensed Server is no longer used and is de-installed using any deinstallation instructions provided by Brocade. Upon transfer of the Software to a new designated server in accordance with the foregoing requirements, the new designated server will be deemed a Licensed Server. Customer may copy the Software solely for backup and/or disaster recovery purposes. Brocade has the right to inspect and audit Customer and/or require Customer to provide written assurances satisfactory to Brocade to confirm compliance with the foregoing.
    2. SteelApp Traffic Manager and SteelApp Web App Firewall Software License. Each instance of SteelApp Traffic Manager Software (including any legacy Stingray or Zeus Traffic Manager Software and/or Software included in any SteelApp Traffic Manager Add On to SteelApp Web Accelerator proxy Software (“SPX”)) or Web App Firewall Software (including software and virtual appliances) licensed by Customer may be installed only on a single server or cluster of servers operating as a single entity that is identified to Brocade at the time of purchase or download and that is running a supported operating system or computing platform (each, a “Licensed Server”). The SPX products, upon delivery, may include SteelApp Traffic Manager Software or other software for which Customer does not have a right or license to use; for the avoidance of doubt, Customer is only authorized to use the Software (whether SteelApp Traffic Manager and/or SteelApp Web Accelerator) that has been licensed by Customer. Only one copy of a single SteelApp Software instance may be running or used at any time. Provided that the SteelApp Software is covered by the then current Brocade maintenance and support plan, Customer may (i) transfer the SteelApp Software from the designated Licensed Server to another designated server that meets the requirements to be a Licensed Server, provided that the new designated server is identified to Brocade at the time of transfer and, upon transfer, the SteelApp software on the original Licensed Server is no longer used and is de-installed using any de-installation instructions provided by Brocade and/or (ii) transfer the designated supported operating system or computing platform for the SteelApp Software to a different supported operating system or computing platform for such software, provided that the new supported operating system or computing platform type is identified to Brocade at the time of transfer and, upon transfer, any copies of the SteelApp Software designated for the original supported operating system or computing platform are no longer used and are either de-installed using any de-installation instructions provided by Brocade or destroyed (at Brocade’s option). Upon transfer of the SteelApp Software to a new designated server in accordance with the foregoing requirements in clause (i), the new designated server will be deemed a Licensed Server. Customer may use each SteelApp Software instance purchased by Customer only to manage, secure and accelerate application traffic in the manner licensed by Customer for that instance. Customer may copy the Software solely for backup and/or disaster recovery purposes. Brocade has the right to inspect and audit Customer and/or require Customer to provide written assurances satisfactory to Brocade to confirm compliance with the foregoing.
    3. SteelApp Traffic Manager Software License. Each instance of SteelApp Traffic Manager Software (including any legacy Zeus Traffic Manager Software and/or software included in any SteelApp Traffic Manager Add On to SteelApp Web Accelerator proxy Software (“SPX”)) licensed by Customer on a term basis (a) may be installed only in either (i) a designated service provider cloud environment or (ii) at a Customer site on a single server or cluster of servers operating as a single entity that is identified to Brocade at the time of purchase or download and that is running a supported operating system or computing platform (each, a “Licensed Server”), and (b) may be used only for the term of the license purchased by Customer to manage, secure and accelerate application traffic in the manner licensed by Customer for that instance. The SPX products, upon delivery, may include SteelApp Traffic Manager Software or other software for which Customer does not have a right or license to use; for the avoidance of doubt, Customer is only authorized to use the Software (whether SteelApp Traffic Manager and/or SteelApp Web Accelerator) that has been licensed by Customer. Each such instance of the SteelApp Traffic Manager Software includes Brocade’s then-standard software maintenance and support services (if any), as described at www.brocade.com , for the term of the license purchased by Customer. Only one copy of a single SteelApp instance may be running or used at any time. Provided that the SteelApp Software license term has not yet expired, Customer may (i) transfer the SteelApp Software from the designated Licensed Server to another designated server that meets the requirements to be a Licensed Server, provided that the new designated server is identified to Brocade at the time of transfer and, upon transfer, the SteelApp Software on the original Licensed Server is no longer used and is de-installed using any de-installation instructions provided by Brocade and/or (ii) transfer the designated supported operating system or computing platform for the SteelApp Software to a different supported operating system or computing platform for such Software, provided that the new supported operating system or computing platform type is identified to Brocade at the time of transfer and, upon transfer, any copies of the SteelApp Software designated for the original supported operating system or computing platform are no longer used and are either de-installed using any de-installation instructions provided by Brocade or destroyed (at Brocade’s option). Upon transfer of the SteelApp Software to a new designated server in accordance with the foregoing requirements in clause (i), the new designated server will be deemed a Licensed Server. Brocade reserves the right to temporarily suspend or permanently terminate use of or access to the Software instances and support and maintenance for such instances in the event that Customer violates the terms of the applicable Agreement or Brocade does not timely receive payment from the Customer or, as applicable, the channel partner, that purchased the instances from Brocade. Customer may not terminate SteelApp term licenses prior to the end of the purchased term. Brocade may require the purchase of a minimum license term and/or require payment up front based on Brocade’s then-current term license purchase and invoice policies. Brocade has the right to inspect and audit Customer and/or require Customer to provide written assurances satisfactory to Brocade to confirm compliance with the foregoing.
    4. SteelApp Traffic Manager (“STM”) Controller for Enterprise and STM Bulk Package(s) Software Perpetual Licenses. Customer may generate any quantity of instances of SteelApp Traffic Manager Software from the STM Controller Software for Enterprise (“Controller”) provided that Customer’s use of such instances at any given time shall not, collectively, exceed the amount of throughput in the STM Bulk Packages licensed by Customer and may only include the features specifically licensed by Customer. The Controller Software may be installed only in either (i) a designated service provider cloud environment or (ii) at a Customer site on a single server or cluster of servers operating as a single entity that is identified to Brocade at the time of purchase or download and that is running a supported operating system or computing platform (each, a “Licensed Server”). The Controller, upon delivery, may include certain features of the SteelApp Software and/or other software for which Customer does not have a right or license to use; for the avoidance of doubt, Customer is only authorized to use the STM Bulk Package(s) including any Software features related thereto that have been licensed by Customer. Customer may use each SteelApp Software instance generated by the Controller as part of Customer’s licensed STM Bulk Package(s) only to manage, secure and accelerate application traffic in the manner and in accordance with the amount of throughput licensed by Customer. Customer is responsible for deleting any SteelApp Software instances which it does not wish to use and/or be charged for the use thereof against Customer’s total licensed throughput covered by the STM Bulk Package(s). Provided that all of the STM Bulk Package(s) licensed in connection with Customer’s use of the Controller are covered by the then-current Brocade maintenance and support plan, Customer may (1) transfer the Controller from the designated Licensed Server to another designated server that meets the requirements to be a Licensed Server, provided that the new designated server is identified to Brocade at the time of transfer and, upon transfer, the Controller on the original Licensed Server is no longer used and is de-installed using any de-installation instructions provided by Brocade and/or (2) transfer the designated supported operating system or computing platform for the Controller to a different supported operating system or computing platform for such software, provided that the new supported operating system or computing platform type is identified to Brocade at the time of transfer and, upon transfer, any copies of the SteelApp software instances designated for the original supported operating system or computing platform are no longer used and are either de-installed using any de-installation instructions provided by Brocade or destroyed (at Brocade’s option). Upon transfer of the Controller to a new designated server in accordance with the foregoing requirements in clause (1), the new designated server will be deemed a Licensed Server. Customer is responsible for working with Brocade support in connection with any such transfer to ensure that the all SteelApp Software instances are transferred accurately. Customer may copy the Controller, SteelApp Software, and any other related software solely for backup and/or disaster recovery purposes. Brocade has the right to (A) inspect and audit Customer and/or require Customer to provide written assurances satisfactory to Brocade to confirm compliance with the foregoing and/or email Brocade a report generated by the Controller detailing prior use, each at Brocade’s sole option; and (B) bill Customer for any (x) throughput amounts and/or (y) use of features of SteelApp software and/or other related software which exceed and/or differ from the scope of Customer’s licensed STM Bulk Package(s), together with the difference between the cost of Brocade support for the STM Bulk Package purchased by Customer and the cost of Brocade support for the STM Bulk Package(s) used by Customer.
    5. SteelApp Traffic Manager (“STM”) Controller for Enterprise and STM Bulk Package(s) software Term Licenses. Customer may generate any quantity of instances of SteelApp Traffic Manager Software from the STM Controller Software for Enterprise (“Controller”) provided that Customer’s use of such instances at any given time shall not, collectively, exceed the amount of throughput in the STM Bulk Packages licensed by Customer on a term basis and may only include the features specifically licensed by Customer. The Controller Software may be installed only in either (i) a designated service provider cloud environment or (ii) at a Customer site on a single server or cluster of servers operating as a single entity that is identified to Brocade at the time of purchase or download and that is running a supported operating system or computing platform (each, a “Licensed Server”). The Controller, upon delivery, may include certain features of the SteelApp Software and/or other software for which Customer does not have a right or license to use; for the avoidance of doubt, Customer is only authorized to use the STM Bulk Package(s) including any Software features related thereto that have been licensed by Customer. Each such STM Bulk Package(s) licensed by Customer includes Brocade’s then-standard Software maintenance and support services (if any), as described at www.brocade.com for the term of the license purchased by Customer. Customer may use each SteelApp software instance generated by the Controller as part of Customer’s licensed STM Bulk Package(s) only for the term of the license purchased by Customer for such STM Bulk Package(s) to manage, secure and accelerate application traffic in the manner and in accordance with the amount of throughput licensed by Customer. Customer is responsible for deleting any SteelApp Software instances which it does not wish to use and/or be charged for the use thereof against Customer’s total licensed throughput covered by the STM Bulk Package(s). Provided that the license term for the STM Bulk Package(s) licensed in connection with Customer’s use of the Controller has not yet expired, Customer may (1) transfer the Controller from the designated Licensed Server to another designated server that meets the requirements to be a Licensed Server, provided that the new designated server is identified to Brocade at the time of transfer and, upon transfer, the Controller on the original Licensed Server is no longer used and is de-installed using any de-installation instructions provided by Brocade and/or (2) transfer the designated supported operating system or computing platform for the Controller to a different supported operating system or computing platform for such Software, provided that the new supported operating system or computing platform type is identified to Brocade at the time of transfer and, upon transfer, any copies of the SteelApp Software instances designated for the original supported operating system or computing platform are no longer used and are either de-installed using any de-installation instructions provided by Brocade or destroyed (at Brocade’s option). Upon transfer of the Controller to a new designated server in accordance with the foregoing requirements in clause (1), the new designated server will be deemed a Licensed Server. Customer is responsible for working with Brocade support in connection with any such transfer to ensure that the all SteelApp Software instances are transferred accurately. Customer may copy the Controller, SteelApp Software, and any other related software solely for backup and/or disaster recovery purposes. Brocade reserves the right to temporarily suspend or permanently terminate use of or access to the Controller and/or STM Bulk Package(s) of Software in the event that Customer violates the terms of this Agreement or another applicable agreement with Brocade or Brocade does not timely receive payment from the Customer or, as applicable, the channel partner, that purchased the STM Bulk Package(s) from Brocade. Customer may not terminate the subscription STM Bulk Package term licenses prior to the end of the purchased term. Brocade may require the purchase of a minimum license term and/or require payment up front based on Brocade’s then-current term license purchase and invoice policies. Brocade has the right to (A) inspect and audit Customer and/or require Customer to provide written assurances satisfactory to Brocade to confirm compliance with the foregoing terms and/or email Brocade a report generated by the Controller detailing prior use, each at Brocade’s sole option; and (B) bill Customer for any (x) throughput amounts and/or (y) use of features of SteelApp Software and/or other related software which exceed and/or differ from the scope of Customer’s licensed STM Bulk Package(s) for the applicable term.
    6. Legacy Stingray and Zeus Traffic Manager License Upgrades. For Customers who have a valid license to legacy Stingray and Zeus Traffic Manager Software (“LTM”) that have purchased a license to upgrade to SteelApp Traffic Manager Software, and have purchased a then-current Brocade maintenance and support plan for the LTM Software, the following terms apply: (i) Customer shall upgrade the LTM to SteelApp Traffic Manager (“Upgraded Software”) and upon Brocade providing Customer with such Upgraded Software, Customer shall no longer use any copies of the LTM and shall, at Brocade’s option, either de-install the LTM using any de-installation instructions provided by Brocade or destroy such LTM; (ii) Customer shall not run instances of the LTM and the Upgraded Software concurrently; and (iii) Customer shall use the Upgraded Software only in accordance with Customer’s applicable Agreement. Brocade has the right to inspect and audit Customer and/or require Customer to provide written assurances satisfactory to Brocade to confirm compliance with the foregoing.
  3. Open Source Software. Portions of the Software may be licensed under public licenses (including but limited to the GNU General Public License ("GPL"), the GNU Lesser General Public License ("LGPL"), Eclipse Public License (“EPL”) 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, or if included in the downloaded content, the applicable open source license may be found at 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 agree to the provisions of each applicable public license or not exercise such licensed rights. For clarity, this Agreement is not intended to change or restrict the provisions 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. LICENSE RESTRICTIONS. Except as expressly permitted by this Agreement, Customer shall not, and shall not authorize or permit any other person or entity to, directly or indirectly: (a) copy, modify (except as expressly permitted under the applicable Documentation), create derivative works of or distribute any Software; (b) reverse engineer, disassemble, decompile or attempt to discover the source code, structure, or sequence and organization of any Software (except where the foregoing is expressly prohibited by applicable local law, and then only to the extent so prohibited); (c) sublicense, sell, rent, lease, or use any Software for timesharing or service bureau purposes for third parties, or otherwise use any Software on behalf of any third party; (d) publish or disclose any information or results relating to performance, performance comparisons or other "benchmarking" activities relating to any Software, (e) obscure, alter, remove, or destroy any proprietary markings, restrictive legends, or intellectual property notices on any Software, or (f) access or use any Software for purposes of designing or developing a competing product or service. Customer acknowledges and agrees that the Software (including its design and structure) and Documentation constitutes trade secrets and/or confidential information of Brocade or its licensors. Except as expressly permitted by this Agreement, Customer shall hold in confidence and shall not disclose, provide, or permit access to any Software or Documentation in any form to any third party without Brocade's prior written consent. Regardless of any references to any sale or purchase in this Agreement, all Software is licensed by Brocade, and not sold. As between the parties, all ownership rights with respect to the intellectual property rights in and to the Software, and any copies or portions thereof, remain in Brocade and its suppliers and licensors. The Software are protected by the intellectual property laws (including copyright laws) of the United States, foreign jurisdictions and all applicable international treaties. This Agreement does not grant Customer any rights not expressly set forth herein. Any action of Customer in contravention of this Section may result in the termination of this Agreement, including the license grant for the Software, as set forth in this Agreement.
  5. Additional Services. If Brocade offers additional Services, purchase of such Services including without limitation training, consulting, installation and other services, will be subject to additional terms, conditions and policies www.Brocade.com or an SOW mutually acceptable to both parties. Brocade may provide products for installation at Customer’s facilities solely for temporary use by Brocade or Customer in connection with Brocade’s performance of a professional services engagement for Customer (each such product, a “PS Usage Product”). As between Brocade and Customer, Brocade retains ownership of all PS Usage Products. Customer shall not, and shall not authorize or permit any other person or entity to, directly or indirectly: (a) use any PS Usage Product except in connection with receipt of the applicable professional services for which it was provided, (b) copy, modify, distribute, or create derivative works of any PS Usage Product, (c) place any lien or encumbrance of any kind on any PS Usage Product, or (d) move or transfer any PS Usage Product from the location designated by Brocade or otherwise agreed by Brocade in writing. Unless otherwise agreed by Brocade, (i) Customer is responsible for and shall pay any import related charges incurred in connection with any shipment of any hardware PS Usage Product to Customer, (ii) within fifteen (15) days after receipt of Brocade’s request, Customer shall promptly return each hardware PS Usage Product to Brocade and uninstall any software only PS Usage Products in accordance with Brocade’s instructions, and (iii) Customer is responsible for and shall pay all shipping charges associated with the return to Brocade of any hardware PS Usage Product, including any applicable export related charges. Customer shall return all components of a hardware PS Usage Product, including any cables, cards, or other accessories. Customer shall use the original shipping container (or the equivalent). Brocade will provide Customer with the shipping address at the time of the return request. If mutually agreed by the parties, subject to Customer’s payment of any applicable fees for such services, Customer shall promptly permit Brocade to access Customer’s premises to collect any hardware PS Usage Products and/or uninstall any software only PS Usage Products. Notwithstanding the foregoing, Customer is responsible for any loss of or damage to any of the PS Usage Products once shipped to, installed or otherwise provided at Customer’s facilities until such PS Usage Products are returned to or collected by Brocade, and if any such PS Usage Products are lost, damaged, or otherwise not returned to or collected by Brocade in accordance with the foregoing requirements, Customer shall reimburse Brocade for an amount not to exceed the then-current list price of the applicable product. As used herein, return of a hardware PS Usage Product to Brocade means confirmed delivery of the PS Usage Product to the location designated by Brocade.
  6. General. Only pricing offered by Brocade shall apply to your purchase. Marketing development funds, rebates, or other related programs offered by a third party shall not apply to your purchases from Brocade. If you are required to provide reporting under your Purchase Agreement and have questions related to such reporting, contact your sales representative. If you are authorized to resell any of the Software described under this Agreement, then the terms and conditions for the Software to be pass-through to end users are located under the “Legal” link at www.brocade.com.
  7. WARRANTY DISCLAIMER. BROCADE PROVIDES THE SOFTWARE AND SUPPORT "AS IS" AND WITHOUT WARRANTY OF ANY KIND, AND HEREBY DISCLAIMS ALL WARRANTIES, WHETHER EXPRESS, IMPLIED, OR STATUTORY, INCLUDING WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, PERFORMANCE, ACCURACY, RELIABILITY AND NON-INFRINGEMENT. BROCADE MAKES NO WARRANTY REGARDING NONINTERRUPTION OF USE, FREEDOM FROM BUGS OR ERRORS, OR THAT ANY SOFTWARE WILL MEET CUSTOMER’S REQUIREMENTS. THIS DISCLAIMER OF WARRANTY CONSTITUTES AN ESSENTIAL PART OF THIS AGREEMENT. THE SOFTWARE IS NOT DESIGNED FOR, AND CUSTOMER IS NOT LICENSED TO USE THE SOFTWARE IN, ANY DEVICE OR SYSTEM IN WHICH A MALFUNCTION OF THE SOFTWARE WOULD RESULT IN FORESEEABLE RISK OF INJURY OR DEATH TO ANY PERSON. THIS INCLUDES OPERATION OF NUCLEAR FACILITIES, LIFE-SUPPORT SYSTEMS, AIRCRAFT NAVIGATION OR COMMUNICATION SYSTEMS AND AIR TRAFFIC CONTROL.
  8. LIMITATION OF LIABILITY. NOTWITHSTANDING ANYTHING ELSE IN THIS AGREEMENT OR OTHERWISE, WITH RESPECT TO ANY SUBJECT MATTER OF THIS AGREEMENT OR UNDER ANY TORT, CONTRACT, NEGLIGENCE, STRICT LIABILITY OR OTHER LEGAL OR EQUITABLE THEORY. (A) NEITHER BROCADE NOR ANY OF ITS AFFILIATES, LICENSORS, OR SUPPLIERS IS LIABLE FOR (I) ANY INDIRECT, SPECIAL, EXEMPLARY, PUNITIVE, INCIDENTAL OR CONSEQUENTIAL DAMAGES, OR ANY LOST PROFITS, (II) COST OF COVER OR COST OF PROCUREMENT OF SUBSTITUTE GOODS, TECHNOLOGY OR SERVICES, OR (III) LOSS OR CORRUPTION OF DATA, INTERRUPTION OR AVAILABILITY OF USE, LOSS OF GOODWILL, WORK STOPPAGE, ACCURACY OF RESULTS, COMPUTER FAILURE OR MALFUNCTION, OR DAMAGES RESULTING FROM CUSTOMER'S USE OF ANY SOFTWARE, AND (B) THE AGGREGATE LIABILITY OF BROCADE AND ITS AFFILIATES AND SUPPLIERS WILL NOT EXCEED THE AGGREGATE FEES RECEIVED BY BROCADE FOR THE APPLICABLE SOFTWARE OR SERVICE THAT GAVE RISE TO THE CLAIM FOR THE TWELVE (12) MONTH PRIOR TO THE DATE THE CAUSE OF ACTION AROSE. THE FOREGOING LIMITATION IS CUMULATIVE, WITH ALL CLAIMS BEING AGGREGATED TO DETERMINE SATISFACTION OF THE LIMIT. THE EXISTENCE OF ONE OR MORE CLAIMS WILL NOT ENLARGE THE LIMIT. THE FOREGOING LIMITATIONS WILL APPLY EVEN IF BROCADE IS INFORMED OF THE POSSIBILITY OF SUCH DAMAGES. THIS SECTION 7 DOES NOT LIMIT LIABILITY FOR BODILY INJURY OF A PERSON. NOTWITHSTANDING ANYTHING ELSE IN THIS AGREEMENT OR OTHERWISE, WITH RESPECT TO ANY SUBJECT MATTER OF THIS AGREEMENT OR UNDER ANY TORT, CONTRACT, NEGLIGENCE, STRICT LIABILITY OR OTHER LEGAL OR EQUITABLE THEORY, (A) NEITHER BROCADE NOR ANY OF ITS AFFILIATES IS LIABLE FOR (I) ANY INDIRECT, SPECIAL, EXEMPLARY, PUNITIVE, INCIDENTAL OR CONSEQUENTIAL DAMAGES, OR LOST PROFITS, (II) COST OF COVER OR COST OF PROCUREMENT OF SUBSTITUTE GOODS, TECHNOLOGY OR SERVICES, OR (III) LOSS OR CORRUPTION OF DATA, INTERRUPTION OF USE, LOSS OF GOODWILL, WORK STOPPAGE, ACCURACY OF RESULTS, COMPUTER FAILURE OR MALFUNCTION, OR DAMAGES RESULTING FROM CUSTOMER’S USE OF ANY SOFTWARE, SERVICES, AUPPORT OR MAINTENANCE, AND (B) THE AGGREGATE LIABILITY OF BROCADE AND ITS AFFILIATES AND SUPPLIERS WILL NOT EXCEED THE AGGREGATE FEES RECEIVED BY BROCADE FROM CUSTOMER UNDER THIS AGREEMENT DURING THE TWELVE MONTH PERIOD PRIOR TO THE DATE THE CAUSE OF ACTION AROSE. THE FOREGOING LIMITATION IS CUMULATIVE, WITH ALL CLAIMS BEING AGGREGATED TO DETERMINE SATISFACTION OF THE LIMIT. THE EXISTENCE OF ONE OR MORE CLAIMS WILL NOT ENLARGE THE LIMIT. THE FOREGOING LIMITATIONS WILL APPLY EVEN IF BROCADE IS INFORMED OF THE POSSIBILITY OF SUCH DAMAGES. NEITHER BROCADE NOR ANY OF ITS AFFILIATES IS LIABLE FOR ANY FAILURE OR DELAY DUE TO MATTERS BEYOND ITS REASONABLE CONTROL OR FOR ANY ALLOCATION OF PRODUCTS BETWEEN ITS CUSTOMERS IN THE EVENT OF A SHORTAGE. THIS SECTION 10 DOES NOT LIMIT LIABILITY FOR BODILY INJURY OF A PERSON.
  9. Support and Upgrades. This Agreement does guarantee the availability of nor entitle Customer to receive any support services, upgrades, updates, patches, enhancements or fixes for any Software (collectively, "Support"). If Customer desires to obtain Support (if available), Customer shall make separate arrangements for Support (which may include entering into a separate agreement) and pay any fees associated with such Support. Customer is not entitled to, and shall not, install or use any Software upgrades, updates, patches, enhancements or fixes made available by Brocade, including on Brocade’s support website, except on or with Software that are covered by a then-current paid Support plan. The terms and conditions of Brocade's Support (if any) are located at www.brocade.com. Brocade is not obligated to provide, and Customer shall not request, any Support for any Software with respect to which a Support contract is not then in effect or with respect to which Support fees have not been timely and fully paid to Brocade. Customer shall not escalate calls to Brocade for Support nor install updates, upgrades, bug fixes or the like for any Software with respect to which a Support contract is not then in effect or with respect to which Support fees have not been timely and fully paid to Brocade. Brocade’s obligations under any Support plan with respect to any Software are subject to Customer’s advance payment of Brocade’s applicable Support fee. The purchase or renewal of Support for any Software purchased by Customer requires the purchase or renewal of Support for all Software purchased by Customer, and Brocade is not obligated to provide Support to Customer if the foregoing condition is not met. Brocade retains ownership of and any rights, title and interest in and to any patents, copyrights, trades secrets, work product and other intellectual property resulting from performance of Support. If, with respect to a particular Software, there is a lapse in Support, (a) any subsequent purchase of Support will be deemed purchased retroactive to the later of (i) the date on which any prior Support period concluded or (ii) the date on which the particular Software was purchased, and (b) Customer shall pay all applicable Support fees for such lapsed period plus an additional twenty percent (20%) charge on the applicable Support fees for the lapsed Support period, which amounts will be based on the level of Support that Customer requests to purchase for such Software on a go-forward basis. Customer may purchase Support for a Software subject to the applicable policies at www.brocade.com.
  10. Term and Termination. This Agreement will continue until terminated as set forth in this Section. Either party may terminate the Agreement at any time by providing notice to the other party. This Agreement will terminate if Customer violates or fails to comply with any provision of this Agreement and fails to cure such breach within thirty (30) days after receipt of notice of such breach from Brocade. However, this Agreement will immediately terminate for Customer’s breach of the license provisions of this Agreement or violation of Brocade’s intellectual property rights. Any termination of this Agreement will also terminate the licenses granted hereunder. Upon termination of this Agreement, Customer shall cease use of all Software including but not limited to any service, support, documentation, education and training and take such other actions requested by Brocade. Customer shall destroy and remove from all computers, hard drives, networks and other storage media all copies of the Software and shall certify to Brocade that such actions have occurred. License fees are non-cancellable and non-refundable. Provisions F-L and provisions related amounts due payable to brocade shall survive expiration or termination of this Agreement.
  11. Compliance with Laws and Export Control. Customer shall conduct its business operations in accordance with all applicable U.S. and foreign laws, ordinances, codes and regulations. Without limiting the foregoing, Customer shall comply with all applicable export laws and restrictions and regulations of the Department of Commerce, the United States Department of Treasury Office of Foreign Assets Control, and any other United States, European Union, Singapore or other foreign agency or authority and shall not import, export or re-export, or allow the import, export or re-export of, any Software, technology or information it obtains or learns pursuant to this Agreement (or any direct product thereof) in violation of any such laws, restrictions or regulations.
  12. Governing Law; Venue. All disputes arising out of this Agreement and/or any 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 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.

Rev030415

 

 

SteelApp Evaluation Software License Agreement

THIS AGREEMENT ("AGREEMENT") IS AN OFFER BY BROCADE COMMUNICATIONS SYSTEMS, INC., ITS SUBSIDIARIES, OR IT'S AFFILIATES ("BROCADE") FOR YOU ("EVALUATOR") TO ENTER INTO A CONTRACT WITH BROCADE TO EVALUATE THIS SOFTWARE AND ANY DERIVATIVES THEREOF PROVIDED DURING THE LICENCE TERM ("SOFTWARE"). "SOFTWARE" INCLUDES DOCUMENTATION AND SUPPORT (IF ANY) PROVIDED BY BROCADE. EVALUATOR MAY ONLY ENTER INTO A CONTRACT WITH BROCADE BY ACCEPTING THIS OFFER. 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. EVALUATOR MAY ONLY ACCEPT THIS OFFER AND ENTER INTO A CONTRACT BY AGREEING TO THE TERMS AND CONDITIONS CONTAINED IN THIS AGREEMENT. EVALUATOR 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 EVALUATOR 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 EVALUATOR HAS PURCHASED OR OBTAINED BROCADE-BRANDED PRODUCTS OR SERVICES FROM A THIRD PARTY, EVALUATOR 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. Licenses

1.1 Evaluation License. Subject to the provisions of this Agreement, Evaluator is granted a personal, limited, non-exclusive, non-sublicensable, non-transferrable, non-assignable, royalty-free license to use the SteelApp software provided by Brocade (“Software”) for the period of time indicated online for the respective Software or in the documentation provided Brocade (the “License Term”). The Software may only be used internally to test and evaluate the performance of the Software in accordance with the applicable Software documentation (the "Evaluation"). The Software may not be used in a production environment. Brocade will ship or provide access to the Software electronically or via a method determined solely by Brocade at a time mutually agreed upon by the parties.

1.2 Evaluation License Restrictions. Evaluator's rights are limited to those expressly granted in this Agreement. Evaluator 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. Brocade is not responsible for typographical errors or mistakes. Evaluator is responsible for the use and security of the information provided by Brocade to Evaluator related to the Software. Evaluator shall not itself, or through any parent, subsidiary, affiliate, agent or other third party permit any third party to (i) sell, lease, license, transfer, sublicense or any way distribute the Software, (ii) provide, disclose, divulge or make available to, or permit use of the Software by any third party without Brocade's prior written consent, (iii) use, copy, modify or reproduce, translate, reverse engineer, disassemble, decompile, or create derivative works based on, or copy the Software, or (iv) take any action that would cause the Software, or any portion thereof, to be placed in the public domain. The Evaluator may not remove, alter, or use any Brocade trademarks, copyright notices, restricted rights legends, proprietary marks or other notices from the Software and confidential information of Brocade or of its third party suppliers.

1.3 Public Licenses. Portions of the Software are licensed to Company 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"). Company's rights and obligations with respect to various components of the Software are as set forth in the applicable public license and this Agreement. Company 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).

2. Term and Termination. Either party may terminate this Agreement at any time upon written notice to the other party. On or before the expiration of the License Term or the termination of the Agreement, Evaluator shall immediately discontinue use of the Software and documentation. If there is no specified License Term provided by Brocade, the License Term shall be thirty (30) days from the date Brocade provisions or otherwise provides access to the Software. The following provisions shall survive expiration or termination of this Agreement: Sections 2-7.

3. Proprietary Rights.

3.1 All rights not expressly granted hereunder are reserved by Brocade. Except to the extent licenses are expressly granted under the provisions the applicable licenses (including GPL), Brocade retains exclusive ownership, rights, title and interest in and to all Intellectual Property related to or arising from the Software. "Intellectual Property" means all patents, copyrights, trade secrets, and other protectable rights in and to the Software including without limitation feedback on Software as well as any updates, revisions, modifications, design, conception, method and derivatives thereof. "Patents" as used herein means U.S. patent applications and their foreign counterpart applications in any jurisdiction and patents issuing thereon and registrations of such patents, as well as any extensions, divisional, substitutions, continuations, reissues, and reexaminations thereof. Evaluator shall fully cooperate with Brocade in any legal action relating to enforcement of Brocade's Intellectual Property rights.

3.2 "Confidential Information" as used under this Agreement refers to the Agreement, Software, and Intellectual Property, any benchmark or comparison tests or performance characteristics of the Software, all business, technical or financial information as well as any information Brocade considers trade secret or otherwise confidential or proprietary (as defined by the Uniform Trade Secrets Act), whether in written, oral, graphic, machine-readable or other form, which: (i) is designated in writing to be confidential or proprietary; (ii) is identified at the time of disclosure as being of a confidential or proprietary nature; or (iii) by the nature of the circumstances surrounding the disclosure, ought to in good faith be treated as trade secret, confidential or proprietary. Evaluator agrees (a) to hold the Confidential Information in confidence, (b) not to disclose the Confidential Information to third parties, and (c) not to use any Confidential Information for any purpose except for the purposes of this Agreement. Evaluator will not publish, or provide to any third party the Software. Evaluator will keep confidential all business, technical or financial information which Evaluator knows or has reason to know is confidential, proprietary or trade secret information of Brocade ("Confidential Information"), and Evaluator shall not use Confidential Information except as expressly authorized by Brocade under this Agreement. Evaluator will treat all Confidential Information with the highest degree of care that Evaluator uses to protect its own confidential and proprietary information, which shall be no less than a reasonable degree of care. Evaluator may disclose the Brocade's Confidential Information to employees with a bona fide need to know for the strict purposes of this Agreement, and who have signed a nondisclosure agreement at least as protective as the terms and conditions applicable under this Agreement. Evaluator will not be liable for the use or disclosure of any Confidential Information Evaluator can prove: (a) is now, or hereafter becomes, through no act or failure to act on the part of the Evaluator, generally known or available to the public; (b) is rightfully acquired by the Evaluator before receiving the information from Brocade and without restriction as to use or disclosure; (c) is hereafter rightfully furnished to the Evaluator by a third party, without restriction as to use or disclosure; (d) is independently developed by Evaluator without reference to Brocade's Confidential Information; (e) is generally made available to third parties by Brocade without restriction on disclosure; or (f) is disclosed in response to either a valid order by a court or other governmental body, or as otherwise required by law, provided that the Evaluator provides Brocade prompt prior written notice of the intended disclosure sufficient to enable Brocade to seek a protective order or otherwise prevent such disclosure, and provided further that the Evaluator provides all cooperation to Brocade at Brocade's request and expense to prevent such disclosure. Any breach or threatened breach by the receiving party of any of the promises or agreements contained herein may result in irreparable and continuing damage to the disclosing party for which there will be no adequate remedy at law. Accordingly, in addition to any other remedies that may be available in law, in equity or otherwise (including monetary damages if appropriate), Brocade shall be entitled to seek injunctive relief and/or a decree for specific performance barring any actual or threatened breach of this Agreement or the continuation of any such breach by Evaluator, without proof of damages from any court in any jurisdiction.

4. WARRANTY DISCLAIMER. NOTWITHSTANDING ANYTHING ELSE IN THIS AGREEMENT TO THE CONTRARY, ALL SOFTWARE IS PROVIDED BY BROCADE "AS IS" WITHOUT WARRANTY OF ANY KIND, INCLUDING BUT NOT LIMITED TO WARRANTIES OF FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT, AND MERCHANTABILITY. IN NO EVENT DOES BROCADE GUARANTEE AVAILABILITY OR USE OF THE SOFTWARE. No support or other services will be provided under this Agreement. However, should Brocade decide in its sole discretion to provide any support or other services it shall do so “AS IS” without any warranty expressed or implied and Brocade shall have no obligation to continuing offering or providing any such support or service in the future. The Software is not and will not be fault-tolerant and is not designed or intended for use in hazardous environments requiring fail-safe performance, such as in the operation of nuclear facilities, aircraft navigation or communication systems, air traffic control, weapons systems, life-support machines, or any other application in which the failure of the Software could lead directly to death, personal injury, or severe physical or property damage (collectively, "High-Risk Activities"). Brocade expressly disclaims any express or implied warranty of fitness for High-Risk Activities. Evaluator is responsible for determining its requirements regarding the functionality, security and access management for the processing and/or storage of any personally identifiable information or other sensitive information that is subject to heightened security requirements as a result of Evaluator's internal policies or practices or by law or regulation. The Software is not specifically designed to offer functionality 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.

5. LIMITATION OF LIABILITY. BROCADE’S LIABILITY SHALL BE LIMITED TO THE AMOUNT PAID BY THE EVALUATOR FOR THE SOFTWARE OR $100.00 US WHICHEVER IS GREATER; AND B) IN NO EVENT SHALL BROCADEBE LIABLE TO EVALAUTOR OR ANY THIRD PARTY FOR ANY SPECIAL, CONSEQUENTIAL, INCIDENTAL OR INDIRECT DAMAGES, HOWEVER CAUSED, ON ANY THEORY OF LIABILITY, AND WHETHER OR NOT THE OTHER PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. IN NO EVENT WILL BROCADE BE LIABLE FOR ANY DAMAGES FOR ANY REASON FOR ANY LOSS OF DATA, LOST PROFITS, OR COST OF COVER. THESE LIMITATIONS SHALL APPLY NOTWITHSTANDING ANY FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY. THE FOREGOING LIMITATIONS SHALL NOT APPLY ONLY TO THE EXTENT THAT, SUCH CONTRACTUAL LIMITATIONS CANNOT, UNDER APPLICABLE LAWS, SO LIMIT BROCADE'S LIABILITY.

6. Additional Restrictions.

6.1 The software under this Agreement is commercial computer software as that term is described in 48 C.F.R. 252.227-7014(a) (1). If acquired by or on behalf of a civilian agency, the U.S. Government acquires this commercial computer software and/or commercial computer software documentation subject to the terms of this Agreement as specified in 48 C.F.R. 12.212 (Computer Software) and 12.211 (Technical Data) of the Federal Acquisition Regulations ("FAR") and its successors. If acquired by or on behalf of any agency within the Department of Defense ("DOD"), the U.S. Government acquires this commercial computer software and/or commercial computer software documentation subject to the terms of this Agreement as specified in 48 C.F.R. 227.7202-3 of the DOD FAR Supplement ("DFAR") and its successors.

6.2 Evaluator acknowledges that the Software 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. Evaluator acknowledges and agrees that they will not import, export, or re-export, directly or indirectly, the Software 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 Evaluator transacts business. Evaluator also agrees that they will not export or re-export the Software 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. Evaluator acknowledges that the Software or technology are 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. Evaluator 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.

7. Miscellaneous. Unless otherwise agreed to by the parties, all notices required under this Agreement will be deemed effective when received and made in writing by either (i) registered mail, (ii) certified mail, return receipt requested, or (iii) overnight mail, addressed and sent to the addresses listed in the first paragraph of this Agreement and if to Brocade to the attention of the Office of the General Counsel. This Agreement will not be construed to grant any rights by implication, estoppel, or otherwise, that are not granted through its express provisions. Brocade reserves the right to audit Evaluator's compliance with this Agreement and Evaluator agrees to comply with Brocade reasonable requests related to any such audit. In the event a dispute arises between the parties or action is necessary to enforce or interpret the terms of this Agreement, the prevailing party in such action or proceeding shall be entitled to receive its reasonable attorney's fees, costs, and necessary disbursements, in addition to any other relief to which such party shall be entitled. In the event of inconsistency between this Agreement and the Exhibit, this Agreement will prevail. Each party is an independent contractor under this Agreement. Each party assumes full responsibility for its actions and the actions of its personnel, subcontractors and agents in rendering performance pursuant to this Agreement, and each party will have sole responsibility for the supervision, daily direction and control, payment of salary (including withholding of income taxes and social security), worker's compensation, disability benefits and the like of its personnel. Each party will, at its own expense, comply with any governmental law, statute, ordinance, administrative order, rule or regulation relating to its duties, obligations and performance under this Agreement and will procure all licenses and pay all fees and other charges required thereby. Each party will have sole responsibility for the payment of all taxes and duties imposed by all governmental entities, as they pertain to its duties, obligations and performance under this Agreement. If any provision of this Agreement is held by a court of competent jurisdiction to be contrary to law, the remaining provisions of this Agreement will remain in full force and effect and will be interpreted, to the extent possible, to achieve its purposes without the invalid, illegal or unenforceable provision. Evaluator may not sell, transfer, assign, assume or subcontract neither this Agreement nor any right or obligation set forth herein, without the prior written consent of Brocade. Any act in derogation of the foregoing will be null and void. This Agreement will be binding upon, inure to the benefit of and be enforceable by each party and its successors and assigns. All disputes arising out of this Agreement 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, without reference to conflict of laws principles, and the parties agree and submit to the personal and non-exclusive jurisdiction and venue of these courts, and agree that service on Evaluator at its address set forth above shall constitute valid service for any proceeding in the courts of that jurisdiction. The U.N. Convention on the International Sale of Goods shall not apply to this Agreement. All disputes arising out of or in connection with this Agreement for any 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. This Agreement shall be governed by the laws of Switzerland without reference to conflict of laws principles. The provisions of this Agreement constitute the entire agreement between the parties and supersede all prior agreements, oral or written, and all other communications relating to the subject matter of this Agreement.

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