These Hardware Terms are part of the Brocade Terms and together with the Brocade Terms, govern your purchase and use of Hardware Products from Brocade. Capitalized words used in these Hardware Terms have the meaning given in the Brocade Terms, except that as to the Warranties stated below capitalized terms used in the Warranty Pages have the meaning given in the Warranty Pages.
1. WARRANTIES. The Brocade Hardware warranties found here (the “Warranty Pages”) are incorporated in these Hardware Terms by this reference. Any reference to “Software” in the Warranty Pages is a reference to software that is pre-installed on the Hardware. The warranties stated in the Warranty Pages do not apply to stand alone Software Products. The warranties stated on the Warranty Pages may be varied as to the warranty duration and details in an order, provided that the following warranty terms may not be varied in the order:
1.1 Warranty Remedies. Brocade's sole obligation and your exclusive remedy for failure of the Hardware to conform to the applicable warranty is, at Brocade's expense and option, to repair or replace the defective Hardware within the normal manufacturing lead times applicable to the Hardware and return the replacement or repaired Hardware to you, or refund the applicable portion of the fees paid by you to Brocade. Hardware replacements may be new, equivalent-to-new or reconditioned.
1.2 Warranty Made Void. Brocade’s warranty obligation is void as to any Hardware that: (i) has been serviced or altered, except as expressly authorized by Brocade; (ii) has not been installed, operated, repaired, or maintained in accordance with any installation, handling, maintenance or operation instructions supplied by Brocade; (iii) has been subjected to unusual physical or electrical stress, misuse, negligence or accident; (iv) has been damaged as a result of accident, misuse or transporting; or (v) has been used to interoperate with third party products, such as optical transceiver components or third party software, that have not been recommended or certified by Brocade.
2. SHIPPING AND DELIVERY. Brocade’s obligations related to shipping and delivery of Hardware are stated in the applicable order. Unless otherwise stated in the applicable order:
2.1 Ship Dates. Ship dates are estimates only. Brocade reserves the right to make partial shipments based on availability.
2.2 Shipping Terms. U.S. deliveries for Hardware will be made Ex Works manufacturing site or distribution center (EXW per Incoterms 2010) and international deliveries will be made Free Carrier manufacturing site or distribution center (FCA per Incoterms 2010).
2.3 Carrier. In the absence of specific written instructions from Customer, Brocade will select the carrier for shipment of Hardware, but such carrier will not be the agent of Brocade.
2.4 Packing. Brocade will pack all Hardware shipped in accordance with standard commercial practices.
2.5 Shipping Expenses. You must pay all freight, insurance and other shipping expenses, as well as any special packing expenses or additional charges. You must also bear all applicable taxes, duties and similar charges that may be assessed against the Hardware after delivery to the carrier from Brocade's facility.
3. RESCHEDULING AND CANCELLATION
3.1 Rescheduling. During any calendar quarter, you may request a Hardware shipment rescheduled, one (1) time only, from the original requested shipment date by providing written notice to Brocade at least fourteen (14) days prior to the requested shipment date and provided such later shipment date is no more than thirty (30) days after the original desired shipment date but within Brocade's fiscal quarter.
3.2 Cancellation. You may cancel orders for Hardware without incurring a charge provided such cancellation request is received in writing by Brocade at least thirty (30) days prior to the original shipment date. If Brocade accepts (at its sole discretion) a cancellation request outside of this policy, Brocade may charge restocking/cancellation fees.
4. RMA. To return Hardware due to a defect or warranty breach, you must request a return material authorization number (an “RMA”) from Brocade by following the process described on the Warranty Pages. You must provide the serial number for the Product and all other information required by Brocade’s RMA process. On receipt of your completed RMA request Brocade will verify that the Hardware is within the applicable warranty period, or is otherwise eligible for repair or replacement without charge. If the Hardware is not eligible for repair or replacement without charge, then Brocade may require you to make an order for repair or replacement services before issuing an RMA. You must ship the Hardware together with the RMA information to the address provided by Brocade. If Brocade determines that the Hardware claimed to be defective is not defective, or is not eligible for repair or replacement without charge due to abuse or other grounds, then you must pay the cost of return shipment. Repair lead times are generally estimated at thirty (30) days, but repair times stated on the Warranty Pages are estimates and may vary depending on Product availability and other factors. Where applicable for shipments to locations outside the United States, you or your assigned agent will act as “Importer of Record” for shipments of repaired/replacement units and will be responsible for payment of any import duties, taxes and fees.
5. Software. You may not use any Software that is provided to you pre-installed on a Hardware Product (“Embedded Software”) separately from the Hardware on which it is installed, or for any purpose other than using and managing the Hardware on which it is installed, regardless of whether there is an express restriction to this effect in your Agreement. Embedded Software is subject and may only be used in accordance with the license agreement(s) accompanying the Products, along with any documentation distributed or made available for use with the Product. If no such license agreement exists then subject to the terms and conditions of this Agreement and payment of the applicable license fees (if any), Brocade and its suppliers grant you a limited, non-exclusive, non-transferable, non-assignable, non-sublicensable, revocable license to use the Embedded Software in object code form only solely for internal purposes and solely for the purposes set forth in the Product documentation. The license(s) obtained by you under this Agreement are subject to the policies located at www.Brocade.com and may include additional limitations, restrictions and obligations. Your license terminates automatically if you violate any license terms or if Brocade terminates the Brocade Terms or the applicable order as described in the Brocade Terms. On termination of your license you must uninstall the Software in accordance with Brocade’s instructions, and, if instructed by Brocade, destroy the Software in accordance with Brocade’s instructions. You may not assign your Software license except as incident to an approved assignment of your order as described in the Brocade Terms. If you assign your license, you must require the assignee to accept in writing all applicable Brocade Terms, and must forward a copy of the assignee’s acceptance to Brocade. You may not sublicense the Software except: (i) to your permitted subcontractors and outsourcers solely for the purpose of assisting you in the execution of your internal business operations. You must give Brocade written notice of any sublicense and provide such information regarding the sublicense that Brocade may reasonably request. All sublicenses are subject to all applicable Brocade Terms. You may not authorize or encourage any person to take any action that would constitute a violation of this license if the action had been taken by you.
Last updated on June 15, 2015