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The Brocade Terms become effective at the time s described in Section 2 below, and when effective form a legally binding agreement between you and Brocade. In the event of a conflict between the documents that comprise the agreement they will take precedence in the following order: If you signed an agreement with Brocade or with a distributor or reseller authorized by Brocade, the provisions of your purchase agreement with Brocade or the distributor or reseller authorized by Brocade shall prevail over the Brocade Terms.
Software includes, without limitation, firmware and other embedded software, stand-alone software, and software provided in connection with Hardware or Services or as a Deliverable. If Brocade provides you a quote, the quoted prices are effective until the expiration date of the quote, but may change due to shortages in materials or resources, increases in the cost of manufacturing, or other factors.
Brocade may revise or discontinue Products, Support Plans, or Services or rescind Third Party Product offerings at any time without prior notice. Changes may occur after you place an order but before Brocade ships the Product or performs the Support or Service. As a binary options affiliate program affiliates-network withdrawal refund policy binary international bi, the Products, Support, Services and Third Party Products you receive might display minor differences from those ordered.
The Brocade Terms are effective upon the first to occur of: If you purchased through a reseller or distributor, final prices and terms of sale binary options affiliate program affiliates-network withdrawal refund policy binary international bi be as agreed between you and the reseller or distributor; however, the Brocade Terms apply to your possession and use of Products, Support, Services, and Third Party Products provided by Brocade.
Brocade may accept, reject or cancel your order for any reason in its sole discretion. Brocade is not responsible for pricing, typographical or other errors and reserves the right to cancel any orders arising from such errors. Acceptance of an order is independent and separate from acceptance or rejection of any other order. Each PO will include as applicable a the Brocade part number and product description; b the quantity of each Product, Support Plan or Service to be purchased; c routing instructions; d the desired shipment date for Hardware or the desired delivery date for Software; e a ship to address; f a valid email address, and g physical address for invoicing purposes and h the Brocade quote or proposal number.
Any provisions in your order that purport to modify or supplement the Brocade Terms will have no force or effect whatsoever. If you do not wish for your purchases to be subject to the Brocade Terms, then you must contact your Brocade sales binary options affiliate program affiliates-network withdrawal refund policy binary international bi to discuss your request.
If your order includes Third Party Products, Brocade is serving as an order and billing conduit for your convenience. Orders for Third Party Products are subject to availability and are cancellable by Brocade. Third Party Products are provided by the third party and not Brocade. Brocade is not responsible for determining whether any Third Party Product, however used, satisfies the local regulatory requirements of the country to which such Third Party Products are to be delivered or performed.
The Brocade Terms may be modified only by a written amendment that expressly references the applicable order and that is signed by you and Brocade. Unless Brocade requires pre-payment or unless otherwise stated on the order confirmation or invoice from Brocade, you shall pay amounts due and payable to Brocade within thirty 30 days of the date of the invoice using the payment method agreed upon by Brocade.
If credit and credit terms binary options affiliate program affiliates-network withdrawal refund policy binary international bi been agreed to by Brocade, then the credit is provided as of the due date, and any credit charges will be applied as of that date. Brocade is under no obligation to offer, and may revoke, credit or credit terms in its sole discretion. Payment shall be made to the applicable Brocade entity named on the order. In addition to any other remedy available to Brocade for late payment, Brocade may charge interest on overdue amounts at the rate of one and one half percent 1.
You must pay invoiced amount to the Brocade entity identified in the invoice. Unless otherwise specified in the applicable Brocade quotation or proposal, all payments are to be made in United States Dollars.
Brocade may invoice parts of an order separately or together in one invoice. If you purchase a multi-year Software license and related Support Plan, and Brocade or the third party licensor of the software agree to annualize your purchase over the term of the license, you agree to make all annual payments in full and such purchase is non-cancellable binary options affiliate program affiliates-network withdrawal refund policy binary international bi the term of the license.
Brocade shall be entitled to all reasonable legal and attorney fees and associated costs of collecting overdue amounts. Except for Taxes based on or measured by Brocade's net income, you shall pay, or reimburse Brocade for its payment of all Taxes, freight, and insurance. If you claim an exemption from your obligation to pay Taxes, you must provide Brocade with an appropriate, accurate, and valid tax exemption certificate applicable to your purchase.
You must make all payments free and clear without deduction for any present or future taxes imposed by any taxing authority. If you are prohibited by law from making any payment unless such deductions are made or withheld, you must pay an additional amount such that the net amount received by Brocade, after such deduction or withholding, equals the amount that would have been received if the deduction or withholding had not occurred.
You must promptly furnish Brocade with a copy of an official tax receipt or other appropriate evidence of any tax imposed on payments, including taxes on any additional amounts paid as required by this Section. We agree that we will cooperate with each other to minimize any applicable taxes, including reasonable notice and cooperation in the case of binary options affiliate program affiliates-network withdrawal refund policy binary international bi audit.
All invoices shall be deemed accurate unless you provide Brocade notice in writing of a material error within 10 days following receipt of the invoice. Your notice must describe the grounds for the dispute in reasonable detail. If the dispute described in the notice is reasonable, and you timely pay any undisputed part of the invoice, the due date for the disputed amount will be extended until Brocade determines whether such amount is accurate.
You may not offset, defer or deduct any invoiced amounts that Brocade determines are not erroneous following the notification process set forth above. You acknowledge that Brocade is not responsible for the security of your network generally, and that Brocade does not represent or warrant that its Products, Support Plans, Services, Deliverables or Third Party Products meet your particular security requirements.
You agree that you are responsible for evaluating and determining if the Products, Support Plans, Services, Deliverables and Third Party Products meet your security requirements, both generally and in light of any regulatory requirements applicable to your business or network. In addition, unless otherwise agreed, you are responsible for the correct installation and setup of the security features and all related requirements, such as correctly configuring security policies, maintenance, and the interoperability of the Products, Support, Services, and Third Party Products with your other network elements.
The applicable licenses, any required notices or attribution, and instructions on how to obtain the source code are included with the electronic media on which the Software is provided or on Brocade. Notwithstanding anything to the contrary in the Brocade Terms, neither the Brocade Terms nor any order or other written material provided by Brocade is intended to change or restrict the terms of any Public Software license.
If there is a conflict between the terms of a Public Software license and the Brocade Terms, the Public Software license controls as to the software covered by the Public Binary options affiliate program affiliates-network withdrawal refund policy binary international bi license.
You warrant to Brocade that i you have the right, power, and authority to enter into the agreement and to fully perform your obligations under the agreement; ii you are authorized to binary options affiliate program affiliates-network withdrawal refund policy binary international bi the licensee or purchaser to the provisions of these Brocade Terms and iii the making of the agreement does not violate any agreement existing between you and any third party.
Notwithstanding the foregoing, Brocade will not be obligated to defend or be liable in any manner for infringement or misappropriation arising out of: In addition, Brocade has no obligation under this Section if you were aware of any actual, pending or threatened claims that would be covered by this indemnity obligation as of the order effective date for the Product. Brocade will have the right to select counsel to defend the Claim. You may join in defense of a Claim with counsel of your choice at your expense.
Brocade has no obligation to reimburse you for any expenses you may directly incur in connection with the Claim unless it has given its prior written authorization for the expense. If, at any time, any Product becomes, or in the opinion of Brocade may become, the subject of Claim, Brocade may, at its option and expense: In the event Brocade terminates the order with respect to the Product, Brocade will issue you a prorated refund as follows: In no event is Brocade obligated to provide any indemnification in connection with any Third Party Product.
You must use the Products, Support, Services, and Deliverables in accordance with the applicable documentation. Except as expressly permitted in the Brocade Terms or an order, you may not do, or permit any third party to do, any of the following, either directly or through any parent, subsidiary, affiliate, agent, or other third party: If you need information about Brocade Software for interoperability with other technologies, please contact the Brocade support team using the contact information at Brocade.
Except as provided by the Brocade Terms Recipient will only disclose Confidential Information to its employees on a need to know basis and only to those of its employees who have agreed to receive it under terms at least as restrictive as those specified in theBrocade Terms. The obligation to protect Confidential Information shall be satisfied if Recipient utilizes the same care but no less than reasonable care over the Confidential Information as Recipient employs to avoid disclosure of Recipient's own similar confidential information.
Recipient agrees to assist Discloser in remedying such unauthorized use or disclosure of the Confidential Information. Recipient will notify Discloser prior to such disclosure. Recipient will use its best commercially reasonable efforts to minimize the disclosure of such information and will consult with and assist Discloser in obtaining a protective order prior to such disclosure. Brocade may use any general learning, skills, or know-how or any information retained in the unaided memory of a person who had access to Confidential Information for any purpose.
Brocade binary options affiliate program affiliates-network withdrawal refund policy binary international bi free to develop products independently including without limitation product that compete with your products. Brocade is not obligated to restrict the future work assignments of people who have had access to Confidential Information or to restrict Brocade product development or plans in any way due to such access.
Brocade may use any technical information it derives under these Brocade Terms including but not limited to information recieved from providing the Support relating to Service Request resolution, troubleshooting, functionality enhancements and fixes. In the event of an unauthorized use, distribution or disclosure of any Confidential Information, the parties agree that the harmed party will not have an adequate remedy at law.
Therefore, injunctive or other equitable relief may be appropriate to restrain such use, distribution or disclosure, whether threatened or actual. You acknowledge that the Products or other technology provided under the order are subject to the provisions of the U. Export Administration Regulations and may be subject to export and import regulations in countries outside the U.
You acknowledge and agree that you will not import, export, or re-export, directly or indirectly, the Product or technology provided under the order to any country in violation of the laws and regulations of any applicable jurisdiction.
This restriction expressly includes, but is not limited to, the export regulations of the United States, and the import and export restrictions of any country in which you transact business.
You also agrees that you will not export or re-export the Products or technology, directly or indirectly, i to any U. Government; iii for any end use that is prohibited by United States or other applicable law, including nuclear, missile, chemical biological weaponry or other weapons of mass destruction.
Export Administration Regulations and may require export licenses or U. You shall indemnify, defend with counsel approved in writing in advance by Brocade and hold Brocade harmless against any claims for cost, damage, expense or liability arising out of or in connection with any breach of this Section. Except as otherwise provide by these Brocade Terms, the parties will attempt to resolve any dispute through negotiation or by utilizing a mediator agreed to by the parties, rather than through litigation.
Negotiations and mediations will be treated as confidential. If the parties are unable to reach a resolution within 30 days of notice of the dispute to the other party, the parties may pursue all other courses of action available at law or in equity. TheBrocade Terms will continue for the term stated in the order unless such agreement is terminated. If you purchased directly from Brocade, Brocade may propose to renew the Brocade Terms by sending you an invoice or, subject to prior notification, continuing to perform the Support Plan or Services or make the Software available to you.
You may where permitted by law agree to renewal of theBrocade Terms by paying the invoice by its due date or by continuing to use the Products, Support Plan, or Services, or Third Party Products. If you purchased through a reseller, the payment terms for renewal for the Support Plan, Services or Software will be as agreed between you and the reseller.
Either party may immediately terminate the Brocade Terms, as well as any or all orders, for material breach by the other party if such breach is not cured within 30 days after written notice. Brocade may terminate the Brocade Terms immediately, in whole or in part, as well as any or all orders, including prior to the expiration of the term of a Support Plan, Services engagement, or Software license, if i you fail to make any payment when due; ii you declare bankruptcy or are adjudicated bankrupt; iii a receiver or trustee is appointed for you or substantially all of your assets; or iv you purchased through a reseller and, as applicable, the agreement between you and such reseller expires or is terminated, the agreement between Brocade and such reseller expires or is terminated, or your reseller is delinquent on its payment obligations to Brocade.
Further, Brocade may terminate orders for Support Plans and Services immediately if you are acquired by or merge with a competitor of Brocade. Upon termination of the Brocade Terms or one or more orders, all rights and obligations under the Brocade Terms and the terminated orders will automatically terminate except for rights of action accruing prior to termination, payment obligations, and any obligations that expressly or by implication are intended to survive termination.
Brocade may terminate theBrocade Terms for convenience. Brocade may suspend, terminate, withdraw, or discontinue all or part of a Support Plan, Services or Third Party Products upon receipt of a subpoena or law-enforcement request which requires Brocade to do so, or when Brocade believes, in its sole reasonable judgment, that you are involved in any fraudulent or illegal activities. Brocade may suspend any Software license, Support Plan, Services, and delivery of any other Products or Third Party Products during any period that you are in breach or violation of the Brocade Terms.
Unless Brocade has terminated the order or the Brocade Terms for breach, Brocade may reinstate the respective license, Support Plan, Services binary options affiliate program affiliates-network withdrawal refund policy binary international bi delivery of Products or Third Party Products after you cure the breach or violation that is the basis for the suspension.
Disputes arising out of a Brocade US Agreement are subject to the exclusive jurisdiction of the state and Federal courts located in Santa Clara County, California, and the parties agree and submit to the personal and non-exclusive jurisdiction and venue of these courts. All disputes arising out of or in connection with a Brocade non-US Agreement shall be finally settled under the Rules of Arbitration of the International Chamber of Commerce by three arbitrators appointed in accordance with said rules.
The place of arbitration shall be Geneva. The arbitral tribunal shall conduct the binary options affiliate program affiliates-network withdrawal refund policy binary international bi and all awards shall be rendered in the English language. The choice of jurisdiction and venue clauses stated in this Section do not prevent either party from seeking injunctive relief with respect to a violation of intellectual property rights or confidentiality obligations in any appropriate jurisdiction.
Convention on the International Sale of Goods shall not apply to the Order.