1. Prices. The price of the Products shall be set forth in Extreme’s price
list then in effect when Extreme accepts Customer’s order or when such items
are shipped, whichever is lower, less any applicable discount. Extreme reserves
the right to change its price list without prior notice. Prices do not include freight,
insurance, or other similar charges. Any such charges will be added to the price
or separately invoiced to Customer.
2. Payment Terms.
2.1. Payment. Customer shall pay all invoices issued under this Agreement within
thirty (30) days from date of invoice. Shipments, deliveries, and performance of
work will at all times be subject to the approval of Extreme’s credit department
and Extreme may at any time decline to make any shipments or deliveries or perform
any work except upon receipt of payment or upon terms and conditions or security
satisfactory to Extreme.
2.2. Security Interest. Customer hereby grants a security interest in the Products
sold under this Agreement and the proceeds thereof until payment of the full purchase
price to Extreme. Customer agrees to execute any financing statements, continuation
statements, or other documents as Extreme requests to protect its security interest.
3. Taxes. Customer will pay or reimburse Extreme for all sales, use, value-added
and other taxes (except taxes on Extreme’s net income), and all customs, duties
and tariffs now or hereafter claimed or imposed by any governmental authority upon
the sale of the Products or licensing of the Software to Customer, or upon payments
to Extreme under this Agreement.
4. Shipment and Delivery.
4.1. Shipment of Products. Extreme will use commercially reasonable efforts to ship
the Products at the times requested in purchase orders accepted by Extreme (in partial
or full shipments); provided, however, in the event of shortages of labor, energy,
components, raw materials or supplies or interruption of Extreme’s production
or for reasons beyond Extreme’s reasonable control, shipment may be delayed
without liability of Extreme. Without liability to any person and without prejudice
to any other remedy, Extreme may withhold or delay shipment of any order if Customer
is late in payment or is otherwise in default under this Agreement.
4.2. Delivery and Acceptance of Products. Extreme will deliver Products to Customer
as follows: (i) if shipped to a destination in the United States, delivery of Products
will be made F.O.B. (Extreme’s place of shipment) (INCOTERMS 2000) and risk
of loss or damage to the Products will pass to Customer upon delivery of the Products
to the carrier at the F.O.B. point, and (ii) if shipped to a destination outside
the United States, delivery will be EX WORKS (Extreme’s facility or place
of manufacture) (INCOTERMS 2000) and risk of loss or damage to the Products will
pass to Customer when the Products are placed at the disposal of Customer. Subject
to Section 2.2 ("Security Interest"), title to the Products (other than
the Software and Documentation (as defined in Section 5 ("License; Title"))
will pass to Customer upon Extreme’s tender of delivery to the carrier for
shipment. The Products will be deemed accepted by Customer upon shipment.
5. License; Title. The Software is licensed subject to the terms and conditions
of the then-current Software license agreement for such Software in effect at the
time the Software is provided. Customer agrees that Customer will not attempt, and
if Customer is a corporation, Customer will use Customer’s best efforts to
prevent Customer’s employees and contractors from attempting, to reverse engineer,
disassemble, modify, translate, create derivative works, rent, lease, loan, distribute
or sublicense the Products, in whole or in part. Title to and ownership of the Software
and Documentation, and any improved, updated, modified or additional parts thereof,
and all copyright, patent, trade secret, trademark and other intellectual property
rights embodied in the Products, shall at all times remain the property of Extreme
or Extreme’s licensors.
6. Warranty to Customer.
6.1. Limited Warranty. Extreme warrants the Products solely to Customers and pursuant
to the terms and conditions of the warranty card and the software license agreement
provided with the Product at the time of shipment or download. In the event of a
failure of any Product to comply with the foregoing warranty during the applicable
warranty period (a "Defect"), Extreme shall, at its option, repair or
replace the Product or refund the fees paid by Customer for such Product (following
Customer’s return of the Product), or provide a workaround for the Defect.
Replacement Products may be new or refurbished Products. The foregoing sets forth
Customer’s sole and exclusive remedies for a breach of the above limited warranties.
6.2. Return Procedures. Products shall be non-returnable except as provided in Section
6.1 ("Limited Warranty") or under a current maintenance support entitlement.
Prior to any return by Customer of any Product, Customer shall obtain a return material
authorization ("RMA") from Extreme. Customer shall return the entire contents
of the defective Product and dated proof of purchase for the defective Product,
if requested by Extreme, marked with the RMA number, to Extreme’s designated
repair facility, freight prepaid within thirty (30) days of receipt of the RMA,
with a written statement describing the Defect. Extreme shall only be obligated
under its warranty for Products with Defects which are reproducible by Extreme in
the execution environment. Extreme will pay the transportation charges (excluding
taxes, duties and customs) in accordance with the warranty program or support plan
purchased for such Product. Extreme may refuse any Product not accompanied by an
RMA and such refused shipments will be returned to Customer freight collect. Customer
retains sole responsibility for risk of loss or damage to Products during shipment
to and from Extreme hereunder. Replacement Products will be warranted for the remaining
warranty period of the original Product.
6.3. Disclaimer of Warranties. EXCEPT AS SET FORTH ABOVE, THE PRODUCTS AND SOFTWARE
ARE PROVIDED "AS IS" AND EXTREME, ITS SUPPLIERS AND AUTHORIZED PARTNERS
MAKES NO OTHER WARRANTIES, EXPRESS, IMPLIED OR STATUTORY, REGARDING PRODUCTS, EXCEPT
TO THE EXTENT SUCH EXCLUSIONS OR LIMITATIONS ARE PROHIBITED BY APPLICABLE LAW. ALL
IMPLIED WARRANTIES AS TO SATISFACTORY QUALITY, PERFORMANCE, MECHANTABILITY, FITNESS
FOR PARTICULAR PURPOSE OR NONINFRINGEMENT ARE EXPRESSLY DISCLAIMED. You assume responsibility
for selecting the Software to achieve your intended results, and for your Use thereof.
WITHOUT LIMITING THE FOREGOING PROVISIONS, EXTREME MAKES NO WARRANTY THAT THE SOFTWARE
WILL BE ERROR-FREE OR FREE FROM INTERRUPTIONS OR OTHER FAILURES, OR THAT THE SOFTWARE
WILL MEET YOUR REQUIREMENTS. SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF IMPLIED
WARRANTIES OR LIMITATIONS ON HOW LONG AN IMPLIED WARRANTY MAY LAST, SO SUCH LIMITATIONS
OR EXCLUSIONS MAY NOT APPLY TO CUSTOMER.
7. Maintenance. Customer may obtain maintenance and support services for the Products
by contacting Extreme for the appropriate maintenance agreement, subject to the
terms thereof. Extreme may, in its sole discretion, impose additional charges for
updates and new versions of Products that encompass features or functions not performed
by the Products as originally sold to Customer. Maintenance and support services
will be provided to Customer in accordance with the terms and conditions associated
with such service.
8. Limitation of Liability. IN NO EVENT WILL EXTREME BE LIABLE TO CUSTOMER FOR ANY
INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL OR EXEMPLARY DAMAGES OF ANY KIND, INCLUDING
BUT NOT LIMITED TO ANY LOST PROFITS AND LOST SAVINGS, HOWEVER CAUSED, WHETHER FOR
BREACH OR REPUDIATION OF CONTRACT, TORT, BREACH OF WARRANTY, NEGLIGENCE, OR OTHERWISE,
WHETHER OR NOT EXTREME WAS ADVISED OF THE POSSIBILITY OF SUCH LOSS OR DAMAGES. NOTWITHSTANDING
ANY OTHER PROVISIONS OF THIS AGREEMENT, EXTREME’S TOTAL LIABILITY TO CUSTOMER
ARISING FROM OR IN RELATION TO THIS AGREEMENT OR THE PRODUCTS SHALL BE LIMITED TO
THE TOTAL PAYMENTS TO EXTREME UNDER THIS AGREEMENT FOR THE RELEVANT PRODUCTS. IN
NO EVENT WILL EXTREME BE LIABLE FOR THE COST OF PROCUREMENT OF SUBSTITUTE GOODS.
THE FOREGOING LIMITATIONS SHALL NOT APPLY TO DAMAGES ARISING FROM DEATH OR PERSONAL
INJURY IN ANY JURISDICTION WHERE SUCH LIMITATION IS PROHIBITED BY APPLICABLE LAW.
SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF INCIDENTAL OR CONSEQUENTIAL
DAMAGES, SO SUCH EXCLUSIONS MAY NOT APPLY TO CUSTOMER.
9. Confidential Information; Proprietary Markings. Customer agrees to exercise at
least the same degree of care to safeguard the confidentiality of the Products and
any other confidential information of Extreme as Customer would exercise to safeguard
the confidentiality of Customer’s confidential information, but not less than
reasonable care. Customer agrees not to (i) disclose to any third party any confidential
information of Extreme; (ii) reproduce the Products or any portion thereof in any
form or medium, or (iii) use the Products or other confidential information of Extreme
for any purpose not specified in this Agreement. Customer warrants that all persons
having access to the Products or other confidential information of Extreme under
this Agreement will abide by the obligations set forth in this Section 9. Customer
agrees not to remove or destroy any copyright, logo, trademark, trade name, proprietary
markings, or confidentiality legends placed upon or contained within the Products,
its containers or Documentation. Customer agrees to comply with all legends that
appear on or in the Products.
10. Term and Termination. The term of this Agreement shall continue unless terminated
in accordance with this Section. Extreme may terminate this Agreement at any time
upon (i) bankruptcy, insolvency or receivership of Customer; or (ii) any material
default by Customer of this Agreement not cured within thirty (30) days after Customer
receives written notice thereof. Except for the first sentence of Section 5 ("License;
Title") and Section 7 ("Maintenance"), the rights and obligations
set forth in this Agreement shall survive any termination of this Agreement.
11. Export Control. In exercising its rights under this Agreement, Customer agrees
to comply strictly and fully with all export controls and regulations imposed on
the Products by the US and any country or organization or nations within whose jurisdiction
Customer operates or does business.
12. Government Rights. If Products are being acquired by the U.S. Government, the
Software and related Documentation is commercial computer software and commercial
computer software documentation developed exclusively at private expense, and (i)
if acquired by or on behalf of a civilian agency, shall be subject to the terms
of this computer software license as specified in 48 C.F.R. 12.212 of the Federal
Acquisition Regulations and its successors; and (ii) if acquired by or on behalf
of units of the Department of Defense ("DoD") shall be subject to the
terms of this commercial computer software license as specified in 48 C.F.R. 227.7202,
DoD FAR Supplement and its successors.
13. General Provisions. Customer shall not assign this Agreement or transfer any
of the rights, duties, or obligations arising under this Agreement without the prior
written consent of Extreme. This Agreement shall be binding upon, and inure to the
benefit of, the successors and permitted assigns of the parties. This Agreement
will be governed by and construed according to the laws of California, without regard
to that body of law controlling conflicts of law. In the event of any dispute or
claim arising out of this Agreement, the parties hereby submit to the jurisdiction
of the federal and state courts located in Santa Clara County, California, as applicable.
This Agreement may be amended or supplemented only by a writing that refers explicitly
to this Agreement and that is signed on behalf of both parties. No waiver will be
implied from conduct or failure to enforce rights, and no waiver will be effective
unless in a writing signed on behalf of the party against whom the waiver is asserted.
If any part of this Agreement is found invalid or unenforceable that part will be
enforced to the maximum extent permitted by law and the remainder of this Agreement
will remain in full force. This Agreement represents the entire agreement between
the parties relating to its subject matter and supersedes all prior representations,
discussions and agreements, whether written or oral.
LAST REVISION: 11/17/09
