End-User License Agreement (EULA) This End User License Agreement (this "Agreement" or these "Terms") is by and between Licensee and Reduxio Systems Inc., a Delaware corporation, having its principal place of business at 111 Pine Avenue, South San Francisco, CA 94080 ("Reduxio") and is effective as of the first date Licensee installs, uses, or loads the hardware and/or software identified in this Agreement or any associated materials ("Effective Date").
General Terms and Conditions Reduxio, Inc., located at 111 Pine Avenue, South San Francisco, CA 94080 "Reduxio" or "Reduxio Storage"), is willing to sell Products and license Software to you "you" or "Customer") under these General Terms and Conditions, including its standard End User License Agreement "EULA") located on the Reduxio Website and attached hereto (the "Terms") and only upon the condition that you accept all of these Terms. By clicking on the "I accept" button or by installing or using the Products, Software or Support Services, you indicate that you understand and agree to all of these Terms. If you are entering into these Terms on behalf of a company or other legal entity, you represent that you have the authority to bind such entity to these Terms, in which case "Customer" shall refer to such entity. If you do not agree to these Terms, you may not install or use the Products, Software or any Support Services. A copy of these Terms is available at www.reduxio.com/legal.
(a) Scope. These Terms are applicable to anyone who purchases and uses any product sold by Reduxio, or downloads and/or installs Reduxio Firmware or Software whether purchased from Reduxio or an authorized Reduxio reseller (as applicable) under a commercial agreement with Reduxio or an authorized Reduxio reseller. Unless otherwise agreed to by Reduxio in writing, Reduxio does not extend this license if the Hardware, Firmware, or Software was obtained from anyone other than Reduxio, or an authorized Reduxio reseller, and Reduxio reserves the right to take legal action against anyone else using or selling the Firmware or Software without a license. (b) Definitions. The capitalized terms in this Agreement shall have the following meaning: 1. "Documentation" means the documentation which is available on Reduxio’s website for download and related to the Hardware and Software. 2. "End User" means a purchaser or recipient or user of Licensee's computer products who does not resell Licensee's products in the normal course of the End User's business. 3. "Firmware" means the programming code that is inserted into the programmable read-only memory of a computer system, thus becoming a permanent part of a particular computing device. 4. "Hardware" means the Reduxio Storage Array along with any related components. 5. "Licensee" means the individual accepting these terms or, if the individual is accepting these terms on behalf of a legal entity (such as a corporation, partnership, agency, etc.), "Licensee" means the legal entity. 6. "Software" means any Reduxio software sold with the Hardware or purchased separately designed to be used with the Reduxio Hardware.
Reduxio grants a single, non-sub licensable, non-exclusive, non- transferable license to use the Hardware, Firmware, and Software obtained from Reduxio or a Reduxio authorized reseller and for which applicable fees have been paid for and within the scope of the applicable license (the "License"). In the event you purchased a capacity license, Reduxio grants the License subject to the indicated amount of maximum capacity.
Except for the limited license rights expressly granted in this Agreement, Reduxio reserves all rights in and to the Hardware, Firmware, or Software and any modifications or copies thereto.
a) To the extent permissible under applicable law, you agree not to: 1. decompile, disassemble, or reverse engineer the Firmware or Software; 2. alter, modify or create any derivative works based on the Firmware or Software. 3. use, copy, sell, sublicense, lease, rent, loan, assign, convey or otherwise transfer the Firmware or Software except as expressly authorized by the Agreement with Reduxio; 4. distribute, disclose or allow use of the Firmware, Software or Documentation, in any format, through any timesharing service, service bureau, network or by any other means; 5. allow any service provider or other third party, with he exception of Reduxio authorized resellers and their designated employees who are acting solely on behalf of and for he benefit of End User ("Authorized Providers"), to use or execute any software commands that cause the Software to perform functions that facilitate the maintenance or repair of any product except that a service provider or other third party may execute those software commands that, as designed by Reduxio, would operate if a user is logged into a product using a customer level login and maintenance software permissions were not enabled or activated; 6. gain access to or the use of any Software or part thereof without authorization from Reduxio; 7. enable or activate, or cause, permit or allow others to enable or activate any logins reserved for use by Reduxio or Authorized Providers; or permit or encourage any third party to do so; or 8. in the event you have a capacity license, use more capacity than indicated in your purchase order or otherwise mutually agreed to in writing by the parties. (b) You shall provide Authorized Providers the terms and provisions of this Agreement and shall obligate Authorized Providers to comply with such terms and provisions. End User shall be responsible for any Authorized Provider’s failure to comply and shall indemnify Reduxio for any damages, loss, expenses or costs, including attorneys’ fees and costs of suit, incurred by Reduxio as a result of non-compliance with this section. Notwithstanding the foregoing, if the Software is rightfully located in a member state of the European Union and End User needs information about the Software in order to achieve interoperability of an independently created software program with the Software, End User will first request such information from Reduxio. Reduxio may charge End User a reasonable fee for the provision of such information.
End User may create a reasonable number of archival and backup copies of the Firmware, Software and the Documentation, provided all proprietary rights notices, names and logos of Reduxio and its suppliers are duplicated on each copy.
(a) Hardware Warranty. Reduxio Systems warrants that the Hardware will materially conform to the technical documentation describing the features and functions of the associated Product for a period of thirty-six (36) months from the date of delivery ("Hardware Warranty Period") except for rack kits, connectivity kits, and cables. Reduxio Systems warrants that the rack kits, connectivity kits, and cables will materially conform to the technical documentation describing the features and functions described in the technical documentation for a period of twelve (12) months from the date of delivery ("Kits and Cables Warranty Period"). In the event of any material nonconformity in the Hardware, rack kits, connectivity kits and cables, during the specified warranty period that is reproducible and verifiable, Reduxio Systems will, at its sole discretion and expense, either (a) repair or replace with new or refurbished Hardware, rack kits, connectivity kits or cables, with Reduxio Systems to ship such parts to Buyer at Reduxio Systems’ expense within 30 business days of Reduxio Systems verifying the non-conformance, or (b) refund the amounts received by Reduxio Systems for the non-conforming Hardware, rack kits, connectivity kits or cables. Replacement parts will be warranted for the remainder of the Hardware Warranty Period or Kits and Cables Warranty Period, as may be applicable, in effect for the original Hardware purchased, unless otherwise mandated by applicable law. Notwithstanding any other provision of the Agreement, this Section 1 contains the exclusive remedy for any material nonconformity in the Hardware, rack kits, connectivity kits and cables. The remedies under this Section 6(a) are conditioned upon Buyer's compliance with its obligations under Section 6(c) below. (b) Software Warranty. Reduxio Systems warrants that (a) the initially shipped version of the Software will materially conform to the Documentation; and (b) the Software media will be free from physical defects, for a period of ninety (90) days from the date of delivery or such other minimum period required under applicable law ("Software Warranty Period"). Reduxio Systems does not warrant that Buyer’s use of the Software will be error-free or uninterrupted. In the event of any material nonconformity in the Software during the Software Warranty Period that is reproducible and verifiable, Reduxio Systems will, at its sole discretion and expense, either (a) repair or replace the Software, with any shipments to Buyer to be at Reduxio Systems’ expense within 30 business days of Reduxio Systems verifying the non-conformance, or (b) refund the amounts received by Reduxio Systems for the non-conforming Software. (c) Limitations. Reduxio Systems will not be liable under this warranty for claims arising from Buyer’s, Buyer’s subcontractor’s, or any unauthorized third person’s misuse, neglect, improper installation or testing, attempts to repair, or any other cause beyond the range of the intended use. The Hardware warranty under Section 1 will become void if a Hardware component is installed as an add-on to or replacement for the original Hardware, without Reduxio Systems’ s prior written approval. The Software warranty under Section 6(b) will become void if the Software is modified or otherwise used in violation of the Software license terms set forth in this Agreement, except as authorized in writing by Reduxio Systems. Buyer acknowledges that the product purchased by Buyer under this Agreement may contain, be contained in, incorporated into, attached to or packaged together with products manufactured by a third party ("Third-Party Products"). Third-Party Products and any services provided by persons other than Reduxio Systems are not covered by the warranties in Section 6(a) or Section 6(b) of this Agreement. For the avoidance of doubt, Reduxio Systems makes no representations or warranties with respect to any Third-Party Products. (d) Exclusive Warranties. EXCEPT FOR THE EXPRESS WARRANTY SET FORTH IN Section 6(a) or Section 6(b) ABOVE, REDUXIO SYSTEMS MAKES NO WARRANTY WHATSOEVER WITH RESPECT TO THE HARDWARE OR SOFTWARE, INCLUDING WITHOUT LIMITAION ANY (A) WARRANTY OF MERCHANTABILITY; (B) WARRANTY OF FITNESS FOR A PARTICULAR PURPOSE; (C) WARRANTY OF TITLE; OR (D) WARRANTY AGAINST INFRINGEMENT OF INTELLECTUAL PROPERTY RIGHTS OF A THIRD PARTY; WHETHER EXPRESS OR IMPLIED BY LAW, COURSE OF DEALING, COURSE OF PERFORMANCE, USAGE OF TRADE OR OTHERWISE. EACH PARTY ACKNOWLEDGES THAT IT HAS NOT RELIED UPON ANY REPRESENTATION OR WARRANTY MADE BY THE OTHER PARTY, OR ANY OTHER PERSON ON SUCH PARTY'S BEHALF, EXCEPT AS SPECIFICALLY PROVIDED IN Section 6(a) or Section 6(b) OF THIS AGREEMENT.
Reduxio will have the right to inspect End User’s compliance with these Terms.
If Licensee breaches the license limitations or restrictions in these Terms, Reduxio may, with immediate effect, terminate the License granted in these Terms without prejudice to any available rights and remedies. Upon termination or expiration of the license for any reason, you shall immediately stop using the Hardware, Firmware, or Software and any copies and any related materials remaining in the possession of the End User subsequent to termination or expiration shall not be implied or construed as Reduxio consenting to transfer ownership of the Firmware or Software and any related materials to the End User. The provisions concerning confidentiality, indemnity, license restrictions, export control, and all limitations of liability and disclaimers and restrictions of warranty (as well as any other terms which, by their nature, are intended to survive termination) will survive any termination or expiration of the License Terms.
Certain software programs or portions thereof included in Reduxio products may contain software (including open source software) distributed under third party agreements ("Third Party Components"), which may contain terms that expand or limit rights to use certain portions of the Software ("Third Party Terms"). Information identifying the copyright holders of the Third Party Components and the Third Party Terms that apply is available upon request.
REDUXIO OR ITS SUPPLIERS SHALL NOT BE LIABLE FOR (i) ANY INCIDENTAL, SPECIAL, STATUTORY, INDIRECT OR CONSEQUENTIAL DAMAGES, OR (ii) FOR ANY LOSS OF PROFITS, REVENUE, OR DATA, TOLL FRAUD, OR COST OF COVER AND (iii) DIRECT DAMAGES ARISING UNDER THESE TERMS IN EXCESS OF THE PURCHASE PRICE AND FEES PAID FOR THE PRODUCTS OR SERVICES GIVING RISE TO THE CLAIM.
The use of the Firmware or Software may require the processing of personal data pertaining to you or to your personnel. You or your personnel have a right to access and correct erroneous personal data pertaining to you or your personnel and to object for legitimate reasons to the processing and transfer of these data. You can exercise this right by contacting in writing the Data Privacy Officer of the applicable Reduxio Affiliate.
The use of the Firmware or Software may require the processing of personal data pertaining to you or to your personnel. You or your personnel have a right to access and correct erroneous personal data pertaining to you or your personnel and to object for legitimate reasons to the processing and transfer of these data. You can exercise this right by contacting in writing the Data Privacy Officer of the applicable Reduxio Affiliate.
If you are granted a capacity license, you agree to give Reduxio an inspection right to determine compliance with your capacity limit and to cooperate with such an inspection. If an inspection cannot reasonably be conducted electronically, Reduxio or its representative shall have the right every six months to make a capacity compliance audit at your facilities, upon reasonable advance notice and during regular business hours. Any information obtained during the course of a capacity compliance audit shall be used by Reduxio solely for enforcement of Reduxio’s rights under this EULA and applicable law. Reduxio shall keep all information obtained during any such compliance audit confidential and treat it with at least the same degree of care as the Reduxio would protect its own confidential information, but in no event with less than a commercially reasonable degree of care.
The Firmware or Software is not fault-tolerant and is not designed, manufactured or intended for any use in any environment that requires failsafe performance in which the failure of the Firmware or Software could lead to death, personal injury or significant property damage ("High Risk Activities"). Such environments include, among others, control systems in a nuclear, chemical, biological or other hazardous facility, aircraft navigation and communications, air traffic control, and life support systems in a healthcare facility. End User assumes the risks for its use of the Firmware and Software in any such High Risk Activities.
The Firmware and Software are classified as "commercial computer software" and the Documentation is classified as "commercial software documentation" or "commercial items". Any use, modification, reproduction, release, performance, display or disclosure of the Software or Documentation 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.
End User acknowledges that certain Software may contain programming that: (a) restricts, limits and/or disables access to certain features, functionality or capacity of such Software subject to the End User making payment for licenses to such features, functionality or capacity; or (b) Periodically deletes or archives data generated by use of the Software and stored on the applicable storage device if not backed up on an alternative storage medium after a certain period of time.
(a) Waiver and Severability. If either Party fails to enforce at any time any of the provisions of this Agreement, or to exercise any election of options provided in this Agreement, that failure will not constitute a waiver of that provision or option, or affect the validity of this Agreement or any part of this Agreement, or the right of the waiving Party to enforce subsequently each and every provision. If any provision of this Agreement is held invalid or unenforceable, the remainder of the Agreement will continue in full force and effect. (b) Governing Law. Any claim arising under or relating to this Agreement, will be governed by the laws of the State of California, excluding its conflicts of laws provisions.. This Agreement is prepared and executed and will be interpreted in the English language only, and no translation of the Agreement into another language will have any effect. The Parties agree that the United Nations Convention on Contracts for the International Sale of Goods (1980) is specifically excluded from and will not apply to this Agreement. (c) Jurisdiction. The state and federal courts located in the State of California will have exclusive jurisdiction of all disputes and litigation arising out of or related to this Agreement including, without limitation, matters connected with its performance. Each Party irrevocably submits to the personal jurisdiction of those courts and irrevocably waives all objections to such venue. (d) Notices. All notices required or permitted to be given under this Agreement must be in writing, make reference to this Agreement, and be delivered by hand, or dispatched by prepaid air courier or by registered or certified airmail, postage prepaid, addressed to you as provided in your purchase order (unless otherwise updated in writing to Reduxio) and to Reduxio as follows: Product Licensing Reduxio Systems Inc. 111 Pine Avenue South San Francisco, CA 94080. Notices will be considered served when received by addressee or, if delivery is not accomplished by reason of some fault of the addressee, when tendered for delivery. Either Party may give written notice of a change of address and, after notice of such change has been received, any notice or request will be given to that Party at the changed address. (e) No Sublicensing, Assignment or Transfer. Licensee may not delegate, assign or transfer this Agreement, or any of the rights and obligations under this Agreement without the prior written consent of Reduxio. This Agreement will bind and inure to the benefit of the Parties and their permitted successors and assigns. (f) Affiliates. Licensee agrees that this Agreement binds Licensee and all of its affiliates and the employees, agents, representatives and persons associated with any of them. (g) Entire Agreement. This Agreement along with any purchase terms and conditions, attachments, exhibits, appendix and non disclosure agreement(s) contain the complete and exclusive statement of the agreement between the parties and supersede all proposals, oral or written, and all other communications between the parties relating to the subject matter of this Agreement. Only a written instrument duly executed by authorized representatives of Licensee and Reduxio may modify this Agreement.
"Ancillary Software" means any software that is provided by Reduxio for
use in conjunction with the Product on a standalone basis and not as
pre-installed on, embedded in, or incorporated into the Hardware
components of a Product and governed by the EULA.
"Business Day" means any day other than Saturday, Sunday, or a statutory holiday observed by Reduxio.
"Customer Technical Personnel" means any of the employees of Customer who are designated by Customer to serve as customer service contacts for Reduxio.
"Documentation" means the Product end user documentation furnished by Reduxio to users.
"Embedded Software" means any software that is provided by Reduxio pre-installed on, embedded in, or incorporated into the Hardware components of a Product and subject to the EULA.
"Enhancement" means a change or modification to a Product that adds new and distinct functionality to such Product and that is generally made available by Reduxio to end user customers for an additional fee, or as may be applicable, to end user customers contracted to receive Support Services for the time period during which the Enhancement is made generally available.
"Error" means a material failure of the Product to operate substantially in accordance with the Documentation that Reduxio is able to replicate in its test environment. Any condition that is described as a warranty exclusion under Section 4 will not be deemed an Error.
"Hardware" means the new or like new hardware incorporated into a Product.
"Purchase Order" means a written, faxed, or emailed purchase order issued to Reduxio for the purchase (or, to the extent applicable to Software, license) of Products and/or Support Services.
"Product(s)" means the Reduxio product(s) described in the Quotation hereto or other order documentation provided by Reduxio, including the Hardware and Software components thereof.
"Quotation" means a Reduxio-issued sales quotation that specifies the Products and/or Support Services available for purchase (or, to the extent applicable to Software, license) by Customer.
"Reseller" means an entity that has entered into and maintains a valid reseller agreement with Reduxio and who is authorized to resell Products and/or Support Services to Customer subject to these Terms.
"Software" means the Ancillary Software and the Embedded Software, as well as any Updates thereto, which Software is governed by the EULA.
"Support Services" means the maintenance and support services for the Products offered by Reduxio, as described in Section 5 of these Terms.
"Update" means error corrections, patches, improvements, and modifications to the Software made generally available by Reduxio, at Reduxio's discretion, and at no additional fee (other than shipping charges) to its end user customers. Updates shall not include any releases, Enhancements, versions, options, or future products that Reduxio provides for an additional fee or upon the condition of customer being under contract to receive Support Services.
Products and Support Services may be ordered from Reduxio through Customer's appointed Reseller. All orders (including without limitation in response to a Quotation and any Purchase Orders) shall be subject to acceptance by Reduxio. Reduxio may accept or reject orders at its discretion. Customer acknowledges and agrees that payment and delivery terms for each accepted order will be subject to terms and conditions as between Customer and Reseller. All Products will be deemed to be irrevocably and unconditionally accepted by Customer upon delivery or download, as applicable, with no Customer right of return provided, however, that the foregoing shall in no way limit Reduxio's warranty obligations as set forth under Section 4 below.
Reduxio grants to Customer the rights to the Software as described in the EULA and the type of license as set forth in the Purchase Order for the Product.
4.1. Hardware. Reduxio warrants that the Hardware will
materially conform to the technical documentation describing the features
and functions of the associated Product for a period of thirty-six (36)
months from the date of delivery "Hardware Warranty Period") except for
rack kits, connectivity kits, and cables. Reduxio warrants that the rack
kits, connectivity kits, and cables will materially conform to the
technical documentation describing the features and functions described
in the technical documentation for a period of twelve (12) months from
the date of delivery "Kits and Cables Warranty Period"). In the event
of any material nonconformity in the Hardware, rack kits, connectivity
kits and cables, during the specified warranty period that is
reproducible and verifiable, Reduxio will, at its sole discretion and
expense, repair or replace with new or refurbished Hardware, rack kits,
connectivity kits or cables, with Reduxio to ship such parts to Customer
at Reduxio's expense within 45 business days of Reduxio verifying the
non-conformance. Replacement parts will be warranted for the remainder of
the Hardware Warranty Period or Kits and Cables Warranty Period, as may
be applicable, in effect for the original Hardware purchased, unless
otherwise mandated by applicable law. Notwithstanding any other
provision of the Agreement, this Section 1 contains the exclusive remedy
for any material nonconformity in the Hardware, rack kits, connectivity
kits and cables. The remedies under this Section 4.1 are conditioned upon
Customer's compliance with its obligations under Section 6(c) below.
4.2. Software. Reduxio grants to Customer the Warranty for the Software described in the EULA.
4.3. Limitation. Reduxio will not be liable under this warranty for claims arising from Customer's, Customer's subcontractor's, or any unauthorized third person's misuse, neglect, improper installation or testing, attempts to repair, or any other cause beyond the range of the intended use. The Hardware warranty under Section 4.1 will become void if a Hardware component is installed as an add-on to or replacement for the original Hardware, without Reduxio's prior written approval. The Software warranty will become void as described in the EULA. Customer acknowledges that the product purchased by Customer under this Agreement may contain, be contained in, incorporated into, attached to or packaged together with products manufactured by a third party ("Third-Party Products"). Third-Party Products and any services provided by persons other than Reduxio are not covered by the warranties in Section 4 of this Agreement. For the avoidance of doubt, Reduxio makes no representations or warranties with respect to any Third-Party Products.
4.4. Disclaimer. EXCEPT AS OTHERWISE SET FORTH IN SECTION 4 ("WARRANTIES"), REDUXIO SYSTEMS PROVIDES THE PRODUCTS, INCLUDING THE SOFTWARE, DOCUMENTATION, AND SUPPORT SERVICES, "AS IS" WITHOUT WARRANTIES OF ANY KIND. WITHOUT LIMITING THE FOREGOING, REDUXIO SYSTEMS DISCLAIMS ALL WARRANTIES AND REPRESENTATIONS OF ANY KIND RELATING TO PRODUCTS, SOFTWARE OR SERVICES PROVIDED HEREUNDER, WHETHER EXPRESS, IMPLIED, STATUTORY, INCLUDING WITHOUT LIMITATION THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, QUIET ENJOYMENT, ACCURACY, OR NONINFRINGEMENT OF THIRD PARTY RIGHTS. REDUXIO SYSTEMS DOES NOT WARRANT THAT THE SOFTWARE WILL IN EVERY CASE PROCESS ALL DATA CORRECTLY, OR THAT OPERATION OF THE PRODUCTS, INCLUDING SOFTWARE, WILL BE UNINTERRUPTED, FREE FROM ERROR, OR SECURE. BOTH PARTIES ACKNOWLEDGE THAT THEY HAVE NOT ENTERED INTO THESE TERMS IN RELIANCE UPON ANY WARRANTY OR REPRESENTATION. THE DISCLAIMERS IN THIS SECTION 4.3 WILL NOT APPLY TO THE EXTENT PROHIBITED BY APPLICABLE LAW. WITHOUT LIMITING THE FOREGOING, TO THE EXTENT AN IMPLIED WARRANTY CANNOT BE EXCLUDED, SUCH WARRANTY IS LIMITED IN DURATION TO THE EXPRESS WARRANTY PERIOD. BECAUSE SOME STATES OR JURISDICTIONS DO NOT ALLOW LIMITATIONS ON THE DURATION OF IMPLIED WARRANTIES, THE ABOVE LIMITATION MAY NOT APPLY. THIS LIMITED WARRANTY GIVES CUSTOMER SPECIFIC LEGAL RIGHTS, AND CUSTOMER MAY ALSO HAVE OTHER RIGHTS WHICH VARY FROM STATE TO STATE OR FROM JURISDICTION TO JURISDICTION. THE PRODUCTS ARE NOT DESIGNED, INTENDED, OR CERTIFIED FOR USE IN COMPONENTS OF SYSTEMS INTENDED FOR THE OPERATION OF WEAPONS, WEAPONS SYSTEMS, NUCLEAR INSTALLATIONS, MEANS OF MASS TRANSPORTATION, AVIATION, MEDICAL SYSTEMS, DEVICES, IMPLANTS, OR EQUIPMENT, POLLUTION CONTROL, HAZARDOUS SUBSTANCES MANAGEMENT, OR FOR ANY OTHER DANGEROUS APPLICATION IN WHICH THE FAILURE OF THE PRODUCTS COULD CREATE A SITUATION WHERE BODILY INJURY OR DEATH MAY OCCUR. CUSTOMER UNDERSTANDS THAT USE OF THE PRODUCTS IN ANY SUCH APPLICATION IS SOLELY AT CUSTOMER'S RISK.
5.1. Fees. Subject to Customer's payment of the applicable
purchase price for the Support Services, Reduxio will provide the Support
Services to Customer for the support term determined in accordance with
Section 5.2. In the event that Customer fails to pay for Support
Services on a timely basis, then without limiting Reduxio's other rights
and remedies, Reduxio reserves the right to immediately suspend or
discontinue Support Services.
5.2. Support Term; Termination. The term of the Support Services will commence on the Support Services effective date specified in the Quotation and will continue for a period of three (3) years or as otherwise specified in the Quotation or applicable order documentation, unless earlier terminated in accordance with the Terms. The term of the Support Services will automatically terminate upon the termination or expiration of these Terms. Upon the termination or expiration of Support Services for any reason, Reduxio will have no further obligation to provide Support Services (or other services) for the Products.
5.3. Lapsed Support. For a period of one (1) year after any lapse of Support Services, Customer may request to reinstate such Support Services for such Products upon the terms set forth in these Terms; provided, however, that (a) such Support Services for the applicable Product have not been discontinued by Reduxio; (b) these Terms are otherwise still in effect; (c) Customer provides Reduxio, upon request, reasonable access to the Products for the purpose of ascertaining that the Products are in satisfactory condition; and (d) Customer pays to Reduxio (i) an amount equal to all of the fees that would have been due had the Support Services been provided under these Terms during the entire period of such lapse and the fees for the renewed term, and (ii) a reinstatement fee equal to twenty-five percent (25%) of Reduxio's then-current list price for three (3) years of Support Services. Notwithstanding the foregoing, Reduxio will have the right to deny reinstatement of Support Services, in Reduxio's sole discretion.
5.4. Support Services. Unless Customer orders Support Services as specified on a Quotation or applicable order documentation and pays the applicable purchase price therefor, Reduxio will have no obligation to provide any Support Services. On condition that Customer has paid the applicable purchase price for the Support Services, Reduxio will provide the following Support Services to Customer pursuant to these Terms:
(a) Helpdesk Support. Reduxio will provide telephone and e-mail support for the users of its Products, with such level of support to be based on the Support Services purchased by the end users. Such support will be provided solely to Customer Technical Personnel, and will consist of answering questions regarding the proper operation of the Products, providing troubleshooting assistance, and rendering general information, advice, and instructions in connection with the use of the Products. Customer will be responsible for providing first-line helpdesk support for individual end- users of the Products, and Customer will be responsible for screening first-line technical inquiries and escalating to Reduxio only those issues that cannot be resolved by the Customer Technical Personnel. Reduxio will have no obligation to accept calls or messages directly from, or otherwise interact directly with, personnel other than the Customer Technical Personnel. The number of Customer Technical Personnel will not exceed the limit set forth on the Quotation or applicable order documentation and, if no number is specified therein, then the number will not exceed three (3). Reduxio will also provide a user account to Customer for online access to Reduxio's online support portal.
(b) Errors. Reduxio will use commercially reasonable efforts to respond to each reported Error. Such response may take the form of Updates, procedural solutions, correction of Documentation errors, Hardware replacement, or other remedial measures as Reduxio may determine, in Reduxio's sole discretion, to be appropriate. If Reduxio determines, in its reasonable discretion, that a Hardware component contains an Error, Reduxio will respond within the timeframes specified in the Reduxio Support Services Offering Overview document depending on the level of support purchased by Customer. Reduxio will use commercially reasonable efforts to issue an RMA number and deliver a replacement for such component to Customer within the timeframe specified by the level of support purchased by the Customer. Customer is responsible for providing to Reduxio Customer's current and correct contact information, including shipping address and name and phone number of a key contact at the applicable location. The response times described in the Reduxio Support Services Offering Overview document will not be applicable if Customer has moved the Product to a different location than that specified on the Purchase Order applicable to such Product and accordingly, Reduxio, in its sole discretion, is unable to provide such response time, in which event, Reduxio will use commercially reasonable efforts to respond within a reasonable timeframe. Customer acknowledges that for timely response and attempted resolution by Reduxio, the applicable Product must have enabled access to StorSense¨, as well as external network access from the Products, enabling Reduxio's support team to have WebEx/support tunnel access. Customer's inability or unwillingness to do the foregoing will materially impair Reduxio's ability to provide support services on a timely basis, if at all. Customer will be responsible for shipping any replaced component(s) to Reduxio within ten (10) Business Days after receipt of the replacement in accordance with Reduxio's then- current RMA guidelines. Customer shall pay Reduxio the cost to Reduxio of the replacement component, if (i) Customer fails to return the replaced component to Reduxio in accordance with this subsection (b), or (ii) Reduxio determines, in its reasonable discretion, after failure analysis of the replaced component that such component is an Ineligible Product (or, as applicable, an Ineligible Product component, or an "Ineligible Component"). Replacement Hardware may be refurbished and/or different models, but will be functionally equivalent to the Hardware being replaced. All returned or replaced Hardware components will become Reduxio's property. Reduxio will bear all costs of shipping related to the replacement of a component under this Section 5.4(b), except with respect to any Ineligible Component, for which Customer will bear all shipping costs for the delivery of the replacement to Customer and the delivery of the Ineligible Component to Reduxio. Customer acknowledges and agrees that the resolution of certain Errors may require Customer to upgrade to a certain Software release.
(c) Additional Support. If Customer desires support other than that specified under these Terms, Reduxio may choose to offer such support on a time and materials basis at Reduxio's then-current fees.
(d) Updates. Customer will be entitled to obtain and use all Updates that are generally released during the term of these Terms to customers. Reduxio may make such Updates available to Customer through electronic download or on optical, magnetic, or other removable media. Certain Updates may require the use of new or upgraded Hardware. Such Hardware is not included under the Support Services and must be purchased separately. Reduxio will have no obligation under these Terms to furnish any Enhancements to Customer. Any Enhancements that may be supplied to Customer by Reduxio will be subject to separate terms and conditions, including additional fees, or as provided under Customer's Support Services contract. The provision of any Update to Customer will not operate to extend the original warranty period on the Products. All Updates, Enhancements, and other bug fixes and modifications to the Software provided by Reduxio will be deemed part of the Software and licensed to Customer under these Terms.
(e) Support Lifecycle. In its discretion, Reduxio may provide different levels of support depending on where a Product is in its lifecycle. [In some cases, the Support Services contract may indicate how the Support Services relates to Reduxio's product lifecycles. In other cases, information on Reduxio's product lifecycles and related Support Services may be set forth in a written Reduxio policy, a copy of which may be be provided to Customer upon request. Reduxio reserves the right to update or amend its policies from time to time.
5.5. Customer Responsibilities
(a) Responsibilities. As a condition to all of Reduxio's obligations under this Section 5, Customer will provide the following:
(i) Customer will ensure that all of its personnel who use the Products in the course of their employment are familiar with the Products to the extent necessary for them to operate the Products as necessary to perform their duties with reasonable competence. Without limiting the generality of the foregoing, at Customer's expense, Customer will cause all Customer Technical Personnel to complete such Product-related training and instruction as Reduxio may reasonably require from time to time. Upon the appointment of any new Customer Technical Personnel, Customer will take reasonable steps to expeditiously train the new individual to appropriate standards of technical competence. Customer will cooperate with Reduxio to the extent that such cooperation would facilitate Reduxio's provision of Support Services hereunder. By way of example, but not limitation, Customer acknowledges that Support Services are not a substitute for proper training on the Products.
(ii) Without limiting the foregoing, Customer will (a) provide Reduxio, at its request, with reasonable access to appropriate personnel, records, network resources, and maintenance logs; and (b) comply with Reduxio's instructions regarding the use and operation of the Products.
(iii) Customer agrees and acknowledges that Reduxio's obligations under these Terms are limited to the Products, and that Reduxio is not responsible for the operation and general maintenance of Customer's computing environment. Without limiting the foregoing, Customer will keep a detailed operations log for the Products and will document any Errors that arise. Customer will also be responsible for activities related to data backup, and Customer will ensure that all necessary data backup functions have been performed. Reduxio will not be responsible for any losses or liabilities arising in connection with any failure of data backup processes.
(b) Exclusions. Notwithstanding anything to the contrary in these Terms, Reduxio will have no obligation to provide any Support Services to Customer to the extent that such Support Services arise from or relate to any conditions that are listed as warranty exclusions in Section 4.
TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, AND REGARDLESS OF WHETHER ANY REMEDY SET FORTH HEREIN FAILS OF ITS ESSENTIAL PURPOSE, IN NO EVENT WILL REDUXIO SYSTEMS BE LIABLE FOR (A) ANY CONSEQUENTIAL, EXEMPLARY, SPECIAL, INDIRECT, OR INCIDENTAL DAMAGES, OR (B) ANY DAMAGES FOR LOST DATA, LOST PROFITS, LOST ANTICIPATED SAVINGS, OR THE COST OF PROCUREMENT OF SUBSTITUTE OR ALTERNATIVE HARDWARE, SOFTWARE OR SERVICES, IN EITHER EVENT ARISING FROM OR RELATING TO THESE TERMS, THE PRODUCTS, THE SOFTWARE OR THE SUPPORT SERVICES, EVEN IF REDUXIO KNEW OR SHOULD HAVE KNOWN OF THE POSSIBILITY OF SUCH DAMAGES. REDUXIO'S TOTAL CUMULATIVE LIABILITY ARISING FROM OR RELATED TO THESE TERMS, THE PRODUCTS, THE SOFTWARE OR THE SUPPORT SERVICES, WHETHER IN CONTRACT, WARRANTY, INDEMNIFICATION, TORT, STATUTE, OR OTHERWISE, SHALL NOT EXCEED THE FEES PAID BY CUSTOMER HEREUNDER FOR THE PRODUCT OR SERVICE AT ISSUE. THIS LIMITATION IS CUMULATIVE AND WILL NOT BE INCREASED BY THE EXISTENCE OF MORE THAN ONE INCIDENT OR CLAIM. CUSTOMER ACKOWLEDGES THAT THE PURCHASE PRICE REPRESENTS THE ALLOCATION OF RISK SET FORTH IN THESE TERMS, AND THAT IN THE ABSENCE OF THESE LIMTATIONS ON REDUXIO'S LIABILITY, THE PURCHASE PRICE WOULD BE SUBSTANTIALLY DIFFERENT. REDUXIO DISCLAIMS ANY AND ALL LIABILITY ON BEHALF OF REDUXIO'S SUPPLIERS AND LICENSORS. REDUXIO DOES NOT LIMIT OR EXCLUDE ANY LIABILITY TO THE EXTENT THAT IT CANNOT BE LIMITED OR EXCLUDED BY APPLICABLE LAW.
If any Software becomes, or in Reduxio's opinion is likely to become, the subject of an infringement claim, Reduxio may, at its option and expense, either (i) procure for Customer the right to continue using the Software, (ii) replace or modify the Software so that it becomes non-infringing, or (iii) accept return of (1) the Product incorporating the affected Software and effect a refund to Customer the fees actually paid by Customer for the affected Products less a reasonable amount for depreciation thereof, in which case Customer's right to use such Software will be terminated, or (2) the affected Ancillary Software and terminate Customer's right to use such Ancillary Software. Notwithstanding the foregoing, Reduxio will have no obligation under this Section 7 or otherwise with respect to any infringement claim based upon (i) any use of the Software not in accordance with these Terms or the applicable Documentation or for purposes not intended by Reduxio, (ii) any use of Software in combination with other products, equipment, software, or data not supplied by Reduxio, or (iii) any modification or alteration of the Software or Product by any person other than Reduxio Storage or its authorized representatives, and Customer will indemnify, defend, and hold Reduxio harmless from and against all claims, suits, damages, liabilities, costs, and expenses (including reasonable attorneys' fees) arising from or relating to such infringement claim. THIS SECTION 7 STATES REDUXIO'S ENTIRE LIABILITY, AND CUSTOMER'S SOLE AND EXCLUSIVE REMEDY, FOR INFRINGEMENT CLAIMS AND ACTIONS.
The Software, any benchmark or performance tests relating to the Products or Software, and certain information regarding the Products and Reduxio's business, including technical, marketing, financial, employee, planning, and other confidential or proprietary information, is considered Reduxio's "Confidential Information". Customer shall protect the Confidential Information from unauthorized dissemination and use with the same degree of care that Customer uses to protect its own like information and, in any event, will use no less than a reasonable degree of care in protecting such Confidential Information. Customer will use the Confidential Information only for those purposes expressly authorized in these Terms. Customer will not disclose to third parties the Confidential Information without the prior written consent of Reduxio.
9.1. Intellectual Property Rights. Customer acknowledges and
agrees that Reduxio Storage and its suppliers exclusively own all
right, title, and interest, including all patent, copyright, trade
secret, trademark, moral rights, and other intellectual property rights
worldwide (collectively, "Intellectual Property Rights") in and to the
Products, the Documentation, and all Confidential Information. Reduxio
and its suppliers expressly reserve all rights not expressly granted to
Customer in these Terms. There are no implied licenses granted hereunder.
Customer shall not engage, and will not authorize or direct any third
party to engage, in any act or omission that would impair any
Intellectual Property Right of Reduxio or any of its suppliers
9.2. Feedback. Any questions, comments, or feedback provided by Customer to Reduxio regarding the Products and any other products, services, or materials provided by Reduxio (collectively, "Feedback") will be deemed non-confidential and non- proprietary information for purposes of these Terms. Reduxio will have no obligation to Customer or any third party with respect to such Feedback, and be free to use and exploit such Feedback in any form or manner and for any purpose and without payment of any consideration to Customer or any third party.
9.3. Unauthorized Products and Brand Protection. Customer will not remove, deface, or obscure any Reduxio copyright or trademark notices and/or legends or other proprietary notices on, incorporated in, or associated with the Products and Documentation. Customer may not alter, unbundle or break the Product down to components for distribution, transfer, resale or any other purposes. Customer is strictly prohibited from separating a Product key from the associated Software and transferring the Product key to a third party for any purposes. All Product must only be obtained in the first instance from Reduxio or a Reseller. If, in Reduxio's reasonable judgment, the original acquisition of a Product from Reduxio or a Reseller occurred through unauthorized means, Reduxio has no obligations to provide customer services or any Support Services to Customer for the Product in question or to allow any associated Software licenses to continue.
10. TERM AND TERMINATION. Reduxio may terminate these Terms immediately upon written notice if Customer breaches these Terms, regardless of cure. In addition, these Terms will automatically terminate upon cessation of any Support Services, subject to any reinstatement after lapse under the terms of Section 5.3. Notwithstanding the foregoing, unless Reduxio terminates these Terms for cause, Customer retains a license under Section 3.1. Sections 1, 3.2, 4.3, 6, 8, 9, 10, and 11 will survive the termination or expiration of these Terms for any reason. In addition, upon any expiration or termination of these Terms, Reduxio may cancel or reschedule any Purchase Orders outstanding as of such termination or expiration date.
11.1. Governing Law. These Terms will be governed by the laws
of the State of California, without giving effect to any conflicts of
laws principles that require the application of the laws of a different
jurisdiction. The United Nations Convention on Contracts for the
International Sale of Goods will apply only to the extent that it
establishes the provisions of these Terms as exclusively binding the
parties with respect to the subject matter of these Terms. Any action or
proceeding arising from or relating to these Terms must be brought in a
state or federal court located in Santa Clara County, California, and
each party irrevocably submits to the jurisdiction and venue of any such
court in any such action or proceeding, except that Reduxio may file a
claim or take action in any court having jurisdiction to protect its
Intellectual Property Rights or Confidential Information.
11.2. Miscellaneous. Reduxio may freely assign its rights or delegate any of its duties under these Terms. Customer may not assign or transfer, by operation of law or otherwise, any of its rights under these Terms without Reduxio's prior written consent. Any attempted assignment or transfer by Customer in violation of the foregoing will be void. All waivers must be in writing. Any waiver or failure to enforce any provision of these Terms on one occasion will not be deemed a waiver of any other provision or of such provision on any other occasion. All Purchase Orders and invoices under these Terms will be subject only to these Terms. In the event the terms of any such Purchase Order, invoice or any confirmation or similar document conflict with or are additional to these Terms, these Terms alone shall apply and shall govern regardless of execution of such document by one or both parties. Furthermore, unless otherwise expressly agreed to in writing by Reduxio, no usage of trade, course of dealings, course of performance, understanding, or any term or condition in any Purchase Order, confirmation, or other document furnished by Customer that in any way modifies, is inconsistent with, is different from, attempts to explain and/or is in addition to these Terms shall be part of these Terms, and shall be regarded as null and void and is hereby expressly rejected. Additionally, Reduxio's failure to object to any term or condition in any oral or written communication from Customer, will not constitute an acceptance thereof or a waiver of any term or condition contained in these Terms. If any provision of these Terms is unenforceable, such provision will be changed and interpreted to accomplish the objectives of such provision to the greatest extent possible under applicable law and the remaining provisions will continue in full force and effect. All notices, consents, and approvals under these Terms must be delivered in writing by courier, by electronic facsimile (fax), or by certified or registered mail, (postage prepaid and return receipt requested) to the other party at the address set forth on the Quotation and will be effective upon receipt or five business days after being deposited in the mail as required above, whichever occurs sooner. Either party may change its address by giving notice of the new address to the other party. Reduxio will be excused from performance of its obligations under these Terms if such failure to perform results from compliance with any requirement of applicable law, acts of God, fire, strike, embargo, terrorist attack, war, blackout, telecommunications or network failure, insurrection or riot or any causes beyond the reasonable control of Reduxio. Any delay resulting from any of such causes shall extend performance accordingly or excuse performance, in whole or in part, as may be reasonable under the circumstances. These Terms may be amended only by a writing signed by both parties. The parties are independent contractors under these Terms and no other relationship is intended including, without limitation, a partnership, franchise, joint venture, agency, employer/employee, fiduciary, master/servant relationship, or other special relationship. Neither party shall act in a manner that expresses or implies a relationship other than that of independent contractor. These Terms constitute the entire agreement between the parties with respect to the subject matter hereof, and supersedes and replaces all prior and contemporaneous understandings or agreements, written or oral, regarding such subject matter. Nothing in these Terms, express or implied, is intended to nor shall be construed to confer upon or give to any third party (including any customer) other than the parties hereto, any interest, right, remedy, or other benefit with respect to or in connection with these Terms
11.1. Export Restrictions; Entire Agreement. Customer acknowledges that the laws and regulations of the United States may restrict the export and re-export of certain commodities and technical data of United States origin. Customer agrees that it will not export or re-export the Products in any form without the appropriate United States and/or foreign government licenses. Customer shall not, unless authorized by U.S. export license or other government authorizations, directly or indirectly export Products and Services to (or use Products and Support Services in) countries subject to U.S. embargoes or trade sanctions programs. Customer is not a party, nor will it export or re-export to a party, identified on any government export exclusion lists, including but not limited to the U.S. Denied Persons, Entity, and Specially Designated Nationals Lists; and will not use Products and Support Services for any purposes prohibited by US law. The Product is a "commercial item," as that term is defined at 48 C.F.R. 2.101. Any technical data provided with such Product is commercial technical data as defined in 48C.F.R. 12.211. All Software and Documentation constitute "commercial computer software "and" commercial computer software documentation," as such terms are used in 48 C.F.R. 12.212, and are provided to the U.S. Government only as commercial end items. Consistent with 48 C.F.R. 12.211 through 12.212, 48 C.F.R. 227.7202-1 through 227.7202-4, and 48 C.F.R. 252.227- 7015, all U.S. Government customers acquire the Product with only those rights set forth in these Terms. Each party shall comply with all applicable country laws relating to anti-corruption or anti-bribery, including but not limited to the requirements of the U.S. Foreign Corrupt Practices Act, as amended, and the UK Bribery Act.