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 EXPRESSLY SET FORTH IN THIS OFFER. BROCADE EXPRESSLY REJECTS ANY TERM OR TERMS 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. IN THE EVENT THAT A COURT DETERMINES THAT CUSTOMER ACCEPTED THIS OFFER IN A MANNER THAT PROPOSES ADDITIONAL OR DIFFERENT TERMS, BROCADE HEREBY PROVIDES NOTICE OF OBJECTION TO ANY ADDITIONAL OR DIFFERENT TERMS. ANY TERMS 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.
1. Scope of Agreement.
Brocade Offerings. Customer may from time to time wish to purchase certain Products, Professional Services or Support from Brocade as defined herein (collectively referred to as the "Brocade Offerings" or "Brocade Offer"):
a) "Hardware" includes any Brocade hardware products which may be new, equivalent-to-new or reconditioned, and any related documentation and manuals.
b) "Software" includes any software licensed by Brocade to Customer in any form, including but not limited to, any bundled firmware, or standalone software products, or other software, any backup copies of such software, and any related documentation and manuals; and any Upgrades (as defined in Section 4.2) or modified versions of software.
c) "Professional Services" includes those product implementation, configuration and other services of a similar nature that Brocade provides to its customers generally, including assistance in areas of Brocade technology management.
d) "Products" includes Hardware, Software or any combination thereof in whole or in part offered by Brocade under this Agreement.
e) "Support" includes maintenance and/or support services for the chosen Products.
2.1 Prices and Payment Terms. Terms of payment 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 Support 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. 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. 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. 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. 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. 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. Software Specific Terms.
3.1 License Grant. Software is subject to the separate software license agreements accompanying the software and/or Brocade Offer, along with any product guides, operating manuals, or other documentation included with the software media packaging or presented to Customer during the installation or use of the Software. Customer agrees that Customer will be bound by such license agreement; if no such license agreement exists then 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 non-exclusive, non-transferable license to use the applicable Software in object code form with the Brocade Offer solely for internal purposes and solely for the purposes set forth in the Product documentation.
3.2 Additional Software Terms. Any and all Software delivered hereunder is licensed, not sold. Except as otherwise expressly provided in this Agreement, Customer shall have no right and agrees not to permit third parties to: (i) modify, adapt, change, enhance or create derivative works based upon the Software; (ii) copy, or otherwise reproduce the Software in whole or in part; (iii) decompile, translate, reverse engineer, disassemble or otherwise reduce the Software to human-readable form; (iv) use the Software on any appliances/Hardware in excess of the number of appliances/Hardware 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; or (vi) use the Software for providing service bureau or other related services to third parties. Customer's rights in the Software will be limited to those expressly granted herein, and Customer shall have no right to sublicense the Software. Before decompiling 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. Brocade shall have the right to audit compliance with this Section 3 upon reasonable notice to the Customer.
3.3 Open Source Software. Certain components of the Software, including software designed to interoperate with the Software, may incorporate or be based on "open source" software. Such Software is subject to the applicable open source license (e.g., GNU General Public License) and is not subject to this Agreement. To obtain a copy of the source code and applicable licensing terms for the open source software used by Brocade, please see http://www.brocade.com/support/oscd.jsp, as may be amended from time to time. 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. Support Obligations.
4.1 General Support Obligations.
a) Technical Support. Provided that Customer has paid the applicable Support fees and subject to the terms and conditions set forth herein, Brocade will provide remedial telephone, email, online and/or onsite assistance for the Products listed on a Brocade Support quotation ("Covered Hardware" and "Covered Software", respectively or "Covered Product(s)" collectively) based on the applicable Support plan selected by Customer. 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, as may be updated from time to time in Brocade's discretion. Additional charges may apply if Customer contacts Brocade when it is later determined that the cause was not related to the Covered Products. Brocade will not support any customizations or unique implementations of the Software under its general Support obligations, and 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, on the date of shipment; or (ii) in the case of previously shipped 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 will only be renewed based on Brocade's renewal quotation to Customer and receipt of Customer'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 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. Provided that Customer has paid the applicable fees, Brocade will provide Support for the Covered Products, as described in a Brocade quotation. Any changes to the Covered Products should be reported to Brocade prior to making any such changes, and such changes could result in modifications to Brocade's obligations and the applicable Support 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) Recertification of Products. Customer may request Support on Products previously supported by another party or for which Support services have lapsed. Brocade may require that such 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.
e) 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, 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.
f) Cancellation. Customer may cancel Support services 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. Subject to payment of the applicable fees, 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, or misuse of the Software. Additional information related to the various Software products, including without limitation additional support service descriptions, escalation procedures, product development guidelines, and other general procedures 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 Description. For all Service Requests related to Covered Hardware and provided that Customer has paid the applicable Support fees, Brocade will provide Hardware Support in accordance with the terms herein and in accordance with the support plans at Brocade's website, which may be updated from time to time in Brocade's discretion. Brocade may require up to thirty (30) days from receipt of order to provision the spares and onsite labor required to fulfill the Support plan selected.
b) Malfunctioning Covered Equipment. 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.
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, Act of God, 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.
5. Professional Services Specific Terms.
5.1 Working Hours. Except for any Professional Services with explicitly stated extended work hours, all Professional Services shall be performed during normal business hours. Customer shall inform Brocade in advance if any off-shift services will be required and Brocade shall inform Customer of any additional charges that may be associated with performing Professional Services outside of normal business hours. Customer agrees to pay Brocade any applicable additional charges for such off-shift Professional Services performed.
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. Customer will indemnify, defend and hold Brocade harmless for any breach by Customer of this Section.
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, and (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, and (v) any other prerequisites identified by Brocade. Customer acknowledges that any failure to perform the prerequisites may result in voiding the warranty, a delay in performance or additional costs for the particular service. IT IS CUSTOMER'S RESPONSIBILITY TO ENSURE THAT CUSTOMER HAS COMPLETE BACKUPS OF ALL DATA PRIOR TO COMMENCEMENT OF ANY SERVICES. BROCADE ASSUMES NO RESPONSIBILITY FOR LOST DATA. Brocade will not be responsible for Customer's failure to obtain such permissions and licenses and 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 for any Software deliverables 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 Non-Solicitation of Employees. While this Agreement is in effect and for a period of one (1) year following the termination of this Agreement, Customer will not Solicit for employment or retention as an independent contractor, any Resource of Brocade without the prior written consent of Brocade. "Solicit" as used in this section does not include general solicitations, such as advertisements in newspapers, trade publications or on the Internet. "Resource" for purposes of this section means: (i) employees or contractors of Brocade who provide the Professional Services and (ii) former employees or contractors of Brocade who directly worked on such project and whose relationship with Brocade ended less than six (6) months prior to the date of such solicitation. Customer's breach of this section may be considered a material breach of this Agreement by Brocade.
5.11 Indemnity. Each party ("Indemnitor") hereby agrees to indemnify and hold harmless the other party, 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 the Indemnitee may suffer or incur, to the extent arising out of or attributable to, or allegedly arising out of or attributable to any of the following (each, a "Claim"): 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 such Indemnitor or any Indemnitor personnel.
5.12 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. Brocade shall comply with all such Customer security policies, practices and procedures to the extent applicable and to the extent Brocade is made aware of such policies, practices and procedures.
5.13 Background Checks and Drug Free Workplace. Brocade has certain procedures in place to perform background checks and to ensure a drug free workplace for its employees and contractors performing Professional Services. Upon request, Brocade will provide information related to such procedures. Customer acknowledges that certain jurisdictions do not allow or limit such checks, and Brocade will not perform such checks in these jurisdictions or for employees from these jurisdictions.
6. Equipment Specific Terms
6.1 Order Process.
a) Purchase Orders. "Purchase Order" means each of Customer's written purchase order forms for Product, or other written purchase order forms submitted by Customer to Brocade in accordance with this Section.
i) Customer shall issue to Brocade binding Purchase Orders in accordance with this Section. 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; and (e) the destination.
ii) If for any reason Brocade cannot process Customer's Purchase Order, Brocade shall so notify Customer in writing. Brocade's notification shall set forth the reason for Brocade's inability to comply with the Purchase Order.
iii) Brocade reserves the right to reject any Purchase Order that does not conform to the terms set forth in this Agreement or to cancel any Purchase Order previously accepted if Brocade determines that Customer is in default of or is otherwise not complying with this Agreement.
b) Rescheduling. During any calendar quarter during the term of this Agreement, Customer may request shipment rescheduling, 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.
c) Cancellation. Customer may cancel Purchase Orders 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. Any other cancellation requested by Customer is subject to good faith discussions between Brocade and Customer with the understanding that Customer may incur restocking/cancellation charges as a result of such cancellation.
a) Shipment Dates. Ship dates are estimates only. However, Brocade shall use reasonable commercial efforts to ship all orders for Products on the shipment dates specified in the Purchase Order. Brocade reserves the right to make partial shipments on an occasional basis based on availability.
b) Delivery and Packaging. U.S. deliveries will be made Ex Works manufacturing site or distribution center (EXW per Incoterms 2010); international deliveries will be made Free Carrier manufacturing site or distribution center (FCA per Incoterms 2010). Customer shall provide Brocade with all information necessary for Brocade to ship Product. In the absence of specific written instructions from Customer, Brocade will select the carrier, but such carrier will not be the agent of Brocade. Brocade will pack all Product shipped in accordance with standard commercial practices.
c) Expenses. Customer shall pay all freight, insurance and other shipping expenses, as well as any special packing expenses. Customer shall also bear all applicable taxes, duties and similar charges that may be assessed against the Products after delivery to the carrier at Brocade's facility.
6.3 RMA Procedure. Customer shall not return any Product which Customer determines to be defective without a return material authorization number ("RMA") issued by Brocade. For every Product returned by Customer subject to this Agreement: (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 thirty (30) days from receipt of the returned Product at Brocade's repair facility. 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.
7. 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 to Brocade 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 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.
7.4 Software Warranty. Brocade warrants to Customer, for the warranty period set forth in Brocade's quotation for the applicable Software, that the Software will perform substantially in accordance with the published Specification therefor. As Brocade's sole liability and Customer's exclusive remedy for a breach of this warranty, Brocade shall use its commercially reasonable efforts, in Brocade's sole discretion, to repair and/or replace such non-conforming Software or to refund the applicable portion of the fees paid by Customer to Brocade. "Specification" means the written specifications that accompany each Product when sold or licensed, as the case may be, pursuant to this Agreement. Brocade specifically disclaims any and all warranties and liability related to any security Software. Customer acknowledges that security software 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 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 Customer's network, and a physically and electronically secure operating environment.
7.5 Hardware Warranty. Brocade warrants to Customer, for the warranty period set forth in Brocade's quotation for the applicable Hardware, that each unit of Hardware shall be free of defects in any material respect in materials and workmanship 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, 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 when sold or licensed, as the case may be, pursuant to this Agreement. This warranty does not apply to those units of Hardware which: (i) have 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, which have not been recommended or certified by Brocade.
7.6 No Other Warranties. EXCEPT AS EXPRESSLY SET FORTH IN THIS AGREEMENT, THE PRODUCTS, SUPPORT, OPEN SOURCE, PROFESSIONAL SERVICES 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.
8. Resale Products. "Resale Products" are those goods that are sold with Brocade's Products, are not manufactured by Brocade, and are not supported by Brocade. Brocade's sole responsibility for Resale Products is limited to reasonable commercial efforts to arrange for procurement and shipping of Resale Products. To the extent that such Resale Products come to Customer with an express warranty offered by the manufacturer, these warranties, including those expressly set forth in manufacturer's literature, are in lieu of all other warranties. Warranty and/or maintenance support, if available, may be obtained by contacting the manufacturer. Should Brocade assist Customer in procuring maintenance support from the manufacturer, Brocade shall in no way be responsible for any aspect of the fulfillment of the manufacturer's obligations thereunder. Such obligations rest solely with the manufacturer. Notwithstanding anything to the contrary in this Agreement, Brocade shall have no obligations or liabilities to Customer for Resale Products other than as stated in this Section 8. Should manufacturer become, for any reason, unable to fulfill its obligations under the applicable warranties and/or maintenance support services provided to Customer, Brocade shall have no liability, obligation or responsibility as to the fulfillment of any manufacturer's warranty or maintenance obligations, in any form, applicable to any Resale Products.
9. Insurance. Each party shall maintain, at their own expense, workers compensation insurance, as required by law, and employers' liability insurance upon its employees. Customer agrees to purchase reasonable and comprehensive liability insurance for all operations necessary and incidental to this Agreement. Brocade agrees to maintain, during the term of this Agreement, at its own expense, all necessary insurance for its employees and contractors, including, but not limited to the following: (i) Workers' compensation as required by law, (ii) Employers' liability insurance in the amount of $1,000,000 per occurrence, (iii) if applicable to the performance under this Agreement, automobile liability insurance with a combined single limit of $1,000,000 per occurrence, (iv) General liability insurance including products liability with a limit of $1,000,000 per occurrence; (v) Umbrella or excess liability insurance with a limit no less than $5,000,000 per occurrence excess of (ii), (iii), and (iv) above, and (vi) Professional liability or errors and omissions insurance in amounts no less than $5,000,000 per occurrence. Brocade's insurance will be with insurers rated A- VI or higher by A.M. Best's insurance rating guide. Upon mutual written agreement between the parties, each party may request from the other party a Certification of Insurance. Each party's insurance shall be primary for its employees and contractors and its actions or omissions related to this Agreement.
10. Indemnification. Subject to the terms contained herein, Brocade will defend and indemnify Customer against any third party claim that the Products 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. 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 and issue Customer a prorated refund equal to the original price paid by Customer for the infringing Product, discounted on a 3-year depreciation basis. 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.
11. Proprietary Rights. Brocade owns and retains 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 Brocade 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 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.
13. Export Controls. Customer acknowledges and agrees that it shall not import, export, or re-export, directly or indirectly, any commodity (including, but not limited to, Products, related products or related information including software and technical data) 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 Product, 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 understands that certain Products 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.
14. LIMITATION OF LIABILITY. EXCEPT IN THE CASE OF DAMAGES FOR CUSTOMER'S BREACH OF THE TERMS OF ANY SOFTWARE LICENSE OR OTHER INTELLECTUAL PROPERTY RIGHT 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 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.
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, Customer shall return to Brocade each and every copy, and Customer shall not retain any copies, of any Brocade Confidential Information. The following provisions shall survive termination or expiration of an applicable order: 2 ("Consideration"), 3.2 ("Additional Software Terms"), 5.10 ("Non-Solicitation of Employees"), 5.11 ("Indemnity"), 7.6 ("No Other Warranties"), 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").
16.1 Governing Law; Venue. All disputes arising out of this Agreement 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 in the ordering document 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. The U.N. Convention on the International Sale of Goods shall not apply to this Agreement and Customer order(s).
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, provided that Brocade will remain liable for all such obligations hereunder.
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 ITAR Provisions. Customer acknowledges that any 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: (i) data that is classified and or used on the U.S. Munitions List, including software and technical data; (ii) articles, services and related technical data designated as defense articles and defense services; and (iii) ITAR (International Traffic in Arms Regulations) related data.
16.11 Retention of Records. Each party shall retain the applicable records pertaining to its performance obligations for three (3) years after the termination or completion of such obligation. Upon mutual agreement of the parties, each party shall make such records available to the other party for inspection upon terms to be agreed to by the parties.
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.
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
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