PLEASE READ THIS AGREEMENT CAREFULLY, AS IT CONTAINS IMPORTANT INFORMATION REGARDING YOUR LEGAL RIGHTS AND REMEDIES.
The following terms and conditions govern the sale of Cirrascale Cloud Services ("Cirrascale") Products and Support.
"Products" means hardware, Software, documentation, accessories, supplies, parts, and upgrades that are determined by Cirrascale to be available from Cirrascale upon receipt of Customer's order. "Custom Products" means Products modified, designed, or manufactured to meet Customer Requirements.
"License Fee" means the fee or fees designated by Cirrascale for Use of Software. Different License Fees may apply to particular Software if more than one Software License is available for that Software.
"Software" means one or more programs capable of operating on a controller, processor or other hardware Product ("Device"), and related documentation. Software is either a separate Product, included with another Product ("Bundled Software"), or fixed in a Device and not removable in normal operation ("Firmware").
"Software License" means the Software license grant and general license terms set forth herein. Each Software License has a corresponding License Fee.
"Support" means hardware maintenance and repair, Software updates, and maintenance; training and other standard support services provided by Cirrascale. "Custom Support" means any agreed non-standard Support, including consulting and custom project services.
"Use" means storing, loading, installing, executing, or displaying Software on a Device.
"Specifications" means a document that provides information specific to a Product.
"Attachments" means attachments that describe or otherwise apply to the sale or license of the Product or Support. If there are any conflicts between the various documents, those of an Attachment prevail over those of this Agreement. Customer accepts and is bound by the terms of the Agreement and the applicable Attachments by accepting delivery of the Product or Service.
The amount payable for Product or Service will be based on one or more of the following types of charges: One-time and recurring, time and materials, or fixed price. Additional charges may apply (such as special handling or travel related expenses). Cirrascale will inform Customer in advance whenever additional charges apply. Prices are valid for the period quoted by Cirrascale for the applicable purchase agreement ordering period, whichever expires first.
Product prices for an order remain valid for thirty (30) days from the original order date unless otherwise quoted by Cirrascale. Change orders that extend Delivery beyond those validity periods become new orders at prices in effect when Cirrascale receives the change orders. Support prices, except for Custom and prepaid Support, may be changed by Cirrascale upon thirty (30) days written notice. An increase applies on the first day of the invoice or charging period on or after the effective date Cirrascale specifies in the notice.
Prices are exclusive of, and Customer will pay applicable sales, use, consumption, goods and service, value added or like taxes, unless Customer has provided Cirrascale with an appropriate exemption certificate for the Delivery jurisdiction.
All orders are subject to acceptance by Cirrascale. Product orders must specify Delivery within ninety (90) days from order date, unless otherwise agreed or quoted by Cirrascale.
Cirrascale will make reasonable efforts to meet Customer's Delivery requirements. If Cirrascale is unable to meet Customer's Delivery requirements, alternative arrangements may be agreed. In the absence of such agreement, Customer's sole remedy is to cancel the order.
5. Shipping, Risk of Loss or Damage, and Title
Cirrascale will ship according to Cirrascale's standard commercial practice, and risk of loss or damage and title will pass from Cirrascale to Customer upon delivery to the Cirrascale designated carrier for shipment to Customer or its designated location. Thereafter, Customer assumes the risk of loss or damage and title will pass to Customer. Shipping and handling are additional unless otherwise expressly indicated at time of sale. If Customer requested special packing, or shipping instructions are agreed to by Cirrascale, charges will be billed separately to Customer. Customer must notify Cirrascale within ten (10) days of the date of the invoice if any part of the purchase is incorrect or damaged.
6. Installation and Acceptance
Product installation information is available with Products, on quotations or upon request. Installation by Cirrascale, when included in the purchase price, is complete when the Product passes Cirrascale's standard installation and test procedures.
For Products without installation included in the purchase price, acceptance by Customer occurs upon shipment from Cirrascale. For Products with installation included in the purchase price, acceptance by Customer occurs upon completion of installation by Cirrascale. If customer schedules or delays installation by Cirrascale more than thirty (30) days after delivery, Customer acceptance of the Product(s) will occur on the 31st day after Delivery.
Payment terms are subject to Cirrascale credit approval. Unless otherwise stated, payment is due thirty (30) days from Cirrascale's invoice date. Cirrascale may invoice parts of an order separately. Invoices for contractual support services and maintenance will be issued in advance of the Support period. Cirrascale may discontinue performance if Customer fails to pay any sum due, or fails to perform under this or any other Cirrascale agreement if, after ten(10) days written notice, the failure has not been cured. Amounts delinquent beyond the payment due date are subject to a 1.5% per month late fee prorated for the number of days past due.
Cirrascale warrants that for one (1) year from the date of shipment, its Hardware is free from defects in materials and workmanship. Within the one (1) year warranty period, Cirrascale will remedy any defect in workmanship or materials.
Cirrascale warrants that for ninety (90) days from the date of shipment of Software, that Software will not fail to execute its programming instructions when properly installed and used on the Hardware designated by Cirrascale. Cirrascale further warrants that Cirrascale branded Software will conform to published specifications.
Cirrascale does not warrant that Software will operate in hardware and software combinations selected by Customer, or meet requirements specified by Customer. Cirrascale does not warrant that the operation of Hardware or Software products will be uninterrupted or error free.
If Cirrascale receives notice of workmanship or materials defects or non-conformance to Hardware specifications, or substantial non-conformance to branded Software specifications during the warranty period, Cirrascale will, at its option, repair or replace the affected products.
The warranties provided herein will apply only to branded Hardware and Software products ("Cirrascale Branded"). Cirrascale does not warranty any third party products or components. The Original Equipment Manufacturers of third party products may provide their own specific warranties and support.
The above warranties do not apply to defects resulting from:
1) Improper or inadequate maintenance by Customer;
2) Customer or third party supplied software;
3) Unauthorized modification;
4) Improper use or operation outside of the Specifications for the branded Product;
5) Abuse, negligence, accident, loss, or damage in transit;
6) Improper site preparation; or
7) Unauthorized maintenance or repair.
THE ABOVE WARRANTIES ARE EXCLUSIVE AND NO OTHER WARRANTY, WHETHER WRITTEN OR ORAL, IS EXPRESSED OR IMPLIED. TO THE EXTENT PERMITTED BY LAW, CIRRASCALE SPECIFICALLY DISCLAIMS THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, AND NONINFRINGEMENT.
Customer may order Support from Cirrascale's then current Support offering. Some Support (and related Products) may not be available in all countries. Orders for Support are subject to the terms of the Support Exhibit or quotation in effect on the date of order. To be eligible for Support, Products must be at current specified revision levels and, in Cirrascale's reasonable opinion, in good operating condition.
Support does not cover any damage or failure caused by:
1) Use of non-Cirrascale media, supplies, and other products; or
2) Site conditions that do not conform to Cirrascale's site specifications; or
3) Neglect, improper use, fire or water damage, electrical disturbances, transportation
by Customer, work or modification by people other than Cirrascale employees or
subcontractors, or other causes beyond Cirrascale's control.
Customer may delete Products under Support or cancel Support orders upon thirty (30) days written notice unless otherwise agreed in a Support agreement. Cirrascale may cancel Support orders or delete Products no longer included in Cirrascale's Support offering upon sixty (60) days written notice unless otherwise agreed in a Support agreement.
In return for the License Fee, Cirrascale grants Customer a non-exclusive license to Use the object code version of the Software listed in Customer's order in conformance with:
1) The terms set forth herein; and
2) Use restrictions and authorizations for the Software specified by Cirrascale in its quotation, invoice or terms that accompany the Software; and
3) Cirrascale's third party suppliers' terms that accompany the Software.
Unless otherwise specified, in return for the applicable License Fee, Cirrascale grants Customer a license to Use one copy of the Software on one Device at any one time. Unless otherwise specified, all Software Licenses will be perpetual unless terminated.
Software is owned and copyrighted by Cirrascale or by third party suppliers. Customer's Software License confers no title or ownership and is not a sale of any rights in the Software. Third party suppliers may protect their rights in the Software in the event of any infringement.
Unless otherwise permitted by Cirrascale, Customer may only make copies or adaptations of the Software for archival purposes or when copying or adaptation is an essential step in the authorized Use of the Software on a backup Device, provided that copies and adaptations are used in no other manner and provided further that the Use on the backup Device is discontinued when the original or replacement Device becomes operable.
Customer must reproduce all copyright notices in or on the original Software on all permitted copies or adaptations. Customer may not copy the Software onto any public or distributed network.
Bundled Software or Firmware provided to Customer may only be used when operating the associated Device in configurations as sold or subsequently upgraded by Cirrascale. Customer may transfer Firmware only upon transfer of the associated Device.
Updates, upgrades, or other enhancements are available under Cirrascale Support agreements. Cirrascale reserves the right to require additional licenses and fees for Use of the Software on upgraded Devices.
Customer will not modify, disassemble, or decompile the Software without Cirrascale's prior written consent.
Customer's Software License is transferable subject to Cirrascale's prior written authorization and payment to Cirrascale of any applicable fee(s). Upon transfer of the Software License, Customer will immediately deliver all copies of the Software to the transferee. The transferee must agree in writing to the terms of Customer's Software License. All Software License terms will be binding on involuntary transferees, notice of which is hereby given. Customer's Software License will automatically terminate upon transfer.
Cirrascale may terminate Customer's or any transferee's or sublicensee's Software License upon notice for failure to comply with any applicable Software License terms. Immediately upon termination, the Software and all copies of the Software shall be destroyed or returned to Cirrascale. Copies of the Software that are merged into adaptations, except for individual pieces of data in Customer's or transferee's or sublicensee's database, shall be removed and destroyed or returned to Cirrascale. With Cirrascale's written consent, one copy of the Software may be retained subsequent to termination for archival purposes.
11. Intellectual Property Rights
Cirrascale will defend or settle any claim against Customer that Cirrascale Branded Products or Support (excluding Custom Products and Custom Support), delivered under these Cirrascale Terms and Conditions of Sale and Service, that infringe a patent or copyright, trade secret or trademark in the country where Products are used, sold or receive Support, provided Customer: 1) promptly notifies Cirrascale in writing; and 2) cooperates with Cirrascale in, and grants Cirrascale sole control of the defense or settlement.
If a claim is made or appears likely to be made, customer agrees to permit Cirrascale to enable Customer to continue to use, modify or replace the Product with one that is functionally equivalent. If Cirrascale determines that none of these alternatives is reasonably available, Cirrascale will refund Customer's purchase price upon return of the Products at the Product's then net book value.
Cirrascale has no obligation for any claim of infringement arising from:
1) Cirrascale's compliance with Customer's designs, specifications or instructions;
2) Cirrascale's use of technical information or technology provided by Customer;
3) Product modifications by Customer or a third party;
4) Product use prohibited by Specifications or related application notes; or
5) Product use with products that are not Cirrascale Branded.
These terms state Cirrascale's entire liability for claims of intellectual property infringement.
12. Limitations of Liability and Remedies
To the extent that Cirrascale is held legally liable to a Customer, Cirrascale's total liability is limited to no more than 1) payments referred to in the Intellectual Property Rights section above; 2) damages for bodily injury, direct damages to tangible property of up to $1 million or, 3) the amount of any other actual direct damages up to the lesser of $1 million or the charges for the Product or Service that is the subject of the Claim.
Notwithstanding Section 11 above, in no event will Cirrascale or its affiliates, subcontractors or suppliers be liable for any of the following: Incidental, special or consequential damages including downtime costs or lost profits
1) The Parties hereby agree that they may do business electronically, including contract formation, order placement and acceptance. Any orders placed by Customer and accepted by Cirrascale on any Cirrascale website or Cirrascale/Customer extranet site will create fully enforceable obligations that will be subject to the terms hereof. Such orders and acceptances will be deemed for all purposes to be
a) Business records originated and maintained in documentary form,
b) A "writing" or "in writing,"
d) An "original" when printed from electronic files or records
The Parties further agree not to contest the validity or enforceability of such transactions under the provisions of any applicable law relating to whether certain agreements are to be in writing or signed by the Party to be bound thereby and will be admissible if introduced as evidence on paper in any judicial, arbitration, mediation, or administrative proceeding to the same extent and under the same conditions as other business records originated and maintained in documentary form. In addition, the Parties agree that transactions may be conducted through Electronic Data Interchange or other electronic methods, as agreed by the Parties. Customer and Cirrascale will adopt commercially reasonable security measures to limit access to passwords and to limit access to unauthorized use of the sites or issuance of messages caused by the failure of its security measures.
2) Cirrascale will not be liable for performance delays or for non-performance, due to causes beyond its reasonable control.
3) If either party becomes insolvent, is unable to pay its debts when due, files for bankruptcy, is the subject of involuntary bankruptcy, has a receiver appointed, or has its assets assigned, the other party may cancel any unfulfilled obligations.
4) Customer may not assign any rights or obligations hereunder without prior written consent from Cirrascale.
5) Customer who exports, re-exports or imports Products, technology or technical data purchased hereunder, assumes responsibility for complying with applicable laws and regulations, and for obtaining required export and import authorizations. Cirrascale may suspend performance if Customer is in violation of applicable regulations.
6) Disputes arising in connection with these Cirrascale Terms and Conditions of Sale and Service will be governed by the laws of the country and locality in which Cirrascale accepts the order.
7) Provisions herein which by their nature extend beyond the termination of any sale or license of Products or Support will remain in effect until fulfilled.
8) If any term or provision herein is determined to be illegal or unenforceable, the validity or enforceability of the remainder of the terms or provisions herein will remain in full force and effect.
9) These Cirrascale Terms and Conditions of Sale and Service and any Attachments constitute the entire agreement between Cirrascale and Customer, and supersede any previous communications, representations or agreements between the parties, whether oral or written, regarding transactions hereunder. Customer's additional or different terms and conditions will not apply. Customer's purchase or license of Products and Support will constitute Customer's acceptance of these Cirrascale Terms and Conditions of Sale and Service, which may not be changed except by an amendment signed by an authorized representative of each party.