Last updated: December 22, 2016
PLEASE READ THESE TERMS AND CONDITIONS CAREFULLY BEFORE USING THE PRODUCTS OFFERED BY DRIVESCALE, INC. (“DRIVESCALE”). THESE TERMS AND CONDITIONS INCLUDE AND ARE OFFERED SUBJECT TO ACCEPTANCE WITHOUT MODIFICATION OF ALL OF THE TERMS AND CONDITIONS CONTAINED HEREIN. BY USING THE DRIVESCALE PRODUCTS OR SERVICES IN ANY MANNER, CUSTOMER AGREES TO BE BOUND BY AND A PARTY TO THE TERMS AND CONDITIONS OF THIS AGREEMENT TO THE EXCLUSION OF ALL OTHER TERMS.
DriveScale Terms and Conditions These terms and conditions apply to the purchase, sale and/or licensing (as applicable) of DriveScale products, services and software (the “Products”) referenced in the applicable agreement, sales quotation, order form, or similar document that references these terms and conditions (each, an “Order Form”) and that is executed by an authorized distributor, reseller, channel partner or representative of DriveScale (“Channel Partner”).
1. Shipment. Shipment of Products (including any terms relating to cancellation or rescheduling) shall be the sole responsibility of the Channel Partner, and subject to the terms and conditions (if any) agreed to by Customer and Channel Partner.
2. Payment. Customer shall pay Channel Partner all fees and expenses with respect to the Products and support services in accordance with the terms and conditions agreed to between Customer and Channel Partner.
3. Software License; Restrictions. Subject to the terms hereof, payment of all fees, and any applicable use or capacity limitations (including without limitation as may be set forth in an Order Form), DriveScale grants to Customer a personal, non-sublicensable, nonexclusive right to use the software specified on the Order Form (including all related documentation, the “Software”) in object code form only, only in accordance with DriveScale’s applicable user documentation, and only during the Subscription Term (as defined below) for the applicable Order Form. For each Order Form, unless otherwise set forth on such Order Form, the “Subscription Term” for such Order Form shall commence on the Effective Date set forth on such Order Form and continue for the initial term set forth on such Order Form, and following such initial term, shall automatically renew for successive one (1) year renewal terms, unless either party gives the other party notice of non-renewal at least thirty (30) days prior to the end of the initial term or then-current renewal term (as applicable). To the extent that Customer is provided with any updates, revisions, error corrections, and/or enhancements to the Software (including, without limitation, in connection with any support services provided to Customer) (collectively, “Updates”), such Updates will be deemed part of the “Software” and subject to all of the terms, conditions and restrictions contained herein. DriveScale retains ownership of all copies and Customer will maintain the copyright notice and any other notices that appear on the Product on any copies and any media. CUSTOMER ACKNOWLEDGES THAT THE SOFTWARE MAY INCLUDE FEATURES TO PREVENT USE AFTER THE APPLICABLE LICENSE PERIOD AND/OR ANY USE INCONSISTENT HEREWITH. Customer acknowledges that Software may contain or be distributed with third party software (“Third Party Software”). All use of Third Party Software shall be governed by the respective licenses for such Third Party Software set forth at URL (TBD). Customer will not (and will not allow any third party to) (i) reverse engineer or attempt to discover any source code or underlying ideas or algorithms of any Software (except to the extent that applicable law prohibits reverse engineering restrictions), (ii) provide, lease, lend, disclose, use for timesharing or service bureau purposes, or otherwise use or allow others to use for the benefit of any third party, any Software (except as expressly and specifically authorized by DriveScale), (iii) possess or use any Software, or allow the transfer, transmission, export, or re-export of any Software or portion thereof in violation of any export control laws or regulations, (iv) disclose to any third party any benchmarking or comparative study involving any Software or (v) modify any Software. From time to time upon request, DriveScale will be entitled to audit or have audited all systems and records relevant to assure compliance with the foregoing; any audit showing noncompliance will be at Customer’s expense. Prior to disposing of any Product containing any part of the Software, Customer shall completely destroy any Software contained therein.
5. Professional Services. In the event that Customer desires to obtain any professional, consulting or custom services from DriveScale, such services shall be outlined in and subject to a separate written agreement between DriveScale and Customer.
6. Warranty; Disclaimer. For the Products purchased hereunder, DriveScale warrants to Customer only that such Products and/or each component thereof will be free from material defects in materials and workmanship under normal use for one (1) year from the date of purchase from DriveScale. This warranty does not apply to (a) expendable or consumable parts, (b) any software contained on the Products, (c) Products which are returned in any manner that is not in compliance with DriveScale’s then-current RMA policies, (d) any Product from which the serial number has been removed, or (e) any Product that has been damaged or rendered defective (i) as a result of accident, misuse, abuse, contamination, improper or inadequate maintenance or calibration or other external causes; (ii) by operation outside the usage parameters stated in the user documentation that shipped with the product; (iii) by software, interfacing, parts or supplies not supplied by DriveScale; (iv) due to improper site preparation or maintenance; (v) due to virus infection; (vi) due to loss or damage in transit; or (vii) by modification or service by anyone other than DriveScale or a DriveScale authorized service provider. DriveScale’s sole obligation under the express warranty set forth in this Section 6 shall be, at DriveScale’s option and expense, to repair or replace the applicable component and/or Product; provided that in the event of a breach of the foregoing warranty within thirty (30) days of shipment, DriveScale will replace any non-compliant Product with a new Product within five (5) business days of notice via its then-current RMA procedure. Customer must contact DriveScale’s technical support center within the applicable warranty period to obtain a Return Material Authorization (RMA) number. In order to obtain warranty services, dated proof of purchase may be required by DriveScale in its sole discretion. Products may not be returned without an RMA number. Access to DriveScale’s technical support center for any and all questions, consultation, deployment assistance, or problem reports shall be provided only pursuant to a separate service and support agreement. EXCEPT AS EXPRESSLY PROVIDED IN THIS SECTION 6 OR AS OTHERWISE REQUIRED BY APPLICABLE LAW, ALL PRODUCTS, SOFTWARE AND SERVICES ARE PROVIDED ON AN “AS IS” BASIS WITHOUT ANY WARRANTY WHATSOEVER, AND DRIVESCALE AND ITS SUPPLIERS EXPRESSLY DISCLAIM ALL WARRANTIES, EXPRESS, IMPLIED, AND STATUTORY INCLUDING WITHOUT LIMITATION THE IMPLIED WARRANTIES OF MERCHANTABILITY, TITLE, NON-INFRINGEMENT OF THIRD PARTY RIGHTS AND FITNESS FOR A PARTICULAR PURPOSE. DRIVESCALE ALSO EXPRESSLY DISCLAIMS AND MAKES NO WARRANTY REGARDING ERROR-FREE USE, NON-INTERRUPTION OF USE OR FREEDOM FROM BUGS. DRIVESCALE WILL HAVE NO LIABILITY FOR THE LOSS OR CORRUPTION OF ANY DATA STORED ON ANY PRODUCT FOR ANY REASON.
7. Indemnification. DriveScale shall defend, indemnify and hold Customer harmless from liability to third parties resulting from infringement by a Product of any United States patent or any copyright or misappropriation of any trade secret, provided DriveScale is promptly notified of any and all threats, claims and proceedings related thereto and given reasonable assistance and the opportunity to assume sole control over defense and settlement; DriveScale will not be responsible for any settlement it does not approve. The foregoing obligations do not apply with respect to a Product or portions or components thereof to the extent (i) not created by DriveScale (including, without limitation, any Third Party Software), (ii) made in whole or in part in accordance to Customer specifications, (iii) that are modified after delivery by DriveScale, (iv) combined with other products, processes or materials where the alleged infringement relates to such combination, (v) where Customer continues allegedly infringing activity after being notified thereof or after being informed of modifications that would have avoided the alleged infringement, or (vi) where Customer’s use of such Product is not strictly in accordance herewith. Customer will indemnify DriveScale from all damages, costs, settlements, attorneys’ fees and expenses related to any claim of infringement or misappropriation excluded from DriveScale’s indemnity obligation by the preceding sentence.
8. LIMITATION OF LIABILITY. EXCEPT FOR BODILY INJURY, NEITHER DRIVESCALE NOR ITS SUPPLIERS OR LICENSORS WILL BE LIABLE WITH RESPECT TO ANY PRODUCT OR OTHER SUBJECT MATTER OF THIS AGREEMENT UNDER ANY CONTRACT, NEGLIGENCE, STRICT LIABILITY OR OTHER LEGAL OR EQUITABLE THEORY FOR (I) ANY AMOUNTS IN EXCESS IN THE AGGREGATE OF THE AMOUNTS PAID TO DRIVESCALE HEREUNDER DURING THE TWELVE MONTH PERIOD PRIOR TO DATE THE CAUSE OF ACTION FIRST AROSE OR (II) ANY INCIDENTAL OR CONSEQUENTIAL DAMAGES, OR (III) COST OF PROCUREMENT OF SUBSTITUTE GDSVF&H\2503400.6 3 GOODS, TECHNOLOGY OR SERVICES. THIS SECTION SHALL NOT BE DEEMED TO PRECLUDE ANY LIABILITY WHICH, UNDER APPLICABLE PRODUCTS LIABILITY LAW, CANNOT BE PRECLUDED BY CONTRACT.
9. Miscellaneous. This Agreement shall constitute the complete and exclusive statement of the terms of agreement between DriveScale and Customer. THE TERMS OF ANY PURCHASE ORDER, CONFIRMATION OR SIMILAR DOCUMENT WILL HAVE NO EFFECT AND WILL NOT BE CONSIDERED AGREED TO BY DRIVESCALE. PROVISION OF THE PRODUCTS IS CONDITIONED ON, AND CUSTOMER’S ORDERING, ACCEPTANCE OR USE OF ANY SUCH PRODUCT SHALL CONSTITUTE, CUSTOMER’S ASSENT TO THE TERMS OF THIS AGREEMENT TO THE EXCLUSION OF ALL OTHER TERMS. IF THESE TERMS AND CONDITIONS ARE CONSIDERED AN OFFER, ACCEPTANCE IS EXPRESSLY LIMITED TO SUCH TERMS. DriveScale’s performance is expressly conditioned on Customer’s assent to the Agreement. A waiver of any default hereunder or of any provision of this Agreement shall not be deemed to be a continuing waiver or a waiver of any other default or of any other provision, but shall apply solely to the instance to which such waiver is directed. In the event any provision of this Agreement is found to be invalid, illegal or unenforceable, a modified provision shall be substituted which carries out as nearly as possible the original intent of the Parties, and the validity, legality and enforceability of any of the remaining provisions shall not in any way be affected or impaired thereby. Customer agrees not to export, either directly or indirectly, any Product purchased or licensed hereunder without first obtaining any required license or other approval from the U.S. Department of Commerce or any other agency or department of the United States Government. If Customer exports any such Product from the United States or re-exports it from a foreign destination, Customer shall ensure that the export/re-export or import of the Product is in compliance with all laws, regulations, orders or other restrictions of the United States and the appropriate foreign government. For international shipments, Customer or its properly authorized agent or freight forwarder shall be exporter of record from the United States. Customer shall be the importer of record and is responsible for fulfilling quota terms, obtaining import licenses, paying import license or permit fees, duties and customs fees, and any other governmental or import taxes or fees, and preparing and submitting all required documentation in connection with importing the Products. DriveScale shall not be liable to Customer for any alleged loss or damages resulting from delays in performance (including loss or damages resulting from delivery of the Products being delayed) caused by acts of Customer, acts of civil or military authority, governmental priorities, earthquake, fire, flood, epidemic, quarantine, energy crisis, strike, labor trouble, component shortage, war, riot, accident, shortage, delays in transportation, or any other causes beyond DriveScale’s reasonable control. This Agreement shall be construed in accordance with and all disputes hereunder shall be governed by the laws of the State of California as applied to contracts made and to be performed in California, without applying conflict of laws rules. The United Nations Convention on Contracts for the International Sale of Goods (1980) is hereby excluded in its entirety from application to this Agreement. Customer may not assign this Agreement or any rights hereunder (whether by purchase of stock or assets, merger, change of control, operation of law, or otherwise) without DriveScale’s prior written consent, which may be withheld in DriveScale’s sole and absolute discretion, and any unauthorized purported assignment by Customer will be void. DriveScale may freely assign or delegate its rights and obligations hereunder. Any dispute arising from or relating to the subject matter of this Agreement that cannot be resolved thereby within a period of thirty (30) days after written notice of a dispute has been given by one party hereunder to the other, shall be finally settled by arbitration in San Jose, California, using the English language in accordance with the Arbitration Rules and Procedures of JAMS (“JAMS”) then in effect, by an arbitrator with substantial experience in resolving complex commercial contract disputes, who will be chosen from the appropriate list of JAMS arbitrators. If the parties cannot agree upon the identity of an arbitrator within fifteen (15) days following the Arbitration Date, then an arbitrator shall be selected on an expedited basis in accordance with the Arbitration Rules and Procedures of JAMS. Any arbitrator so selected shall have substantial experience in the networking industry. The arbitrator shall have the authority to grant specific performance and to allocate between the parties the costs of arbitration (including service fees, arbitrator fees and all other fees related to the arbitration) in such equitable manner as the arbitrator may determine. The prevailing party in the arbitration shall be entitled to receive reimbursement of its reasonable expenses (including reasonable attorneys’ fees, expert witness fees and all other expenses) incurred in connection therewith. Judgment upon the award so rendered may be entered in a court having jurisdiction or application may be made to such court for judicial acceptance of any award and an order of enforcement, as the case may be. Notwithstanding the foregoing, each party shall have the right to institute an action in a court of proper jurisdiction for preliminary injunctive relief pending a final decision by the arbitrator, provided that a permanent injunction and damages shall only be awarded by the arbitrator. The parties consent to exclusive jurisdiction and venue in the United States Federal Courts located in the Northern District of California. The following provisions shall survive the termination of this Agreement or the relationship with Customer: 2, 3, 4, 6, 8, and 9.