BROCADE NETWORK OPERATING SYSTEM (NOS), FABRIC OPERATING SYSTEM (FOS), FASTIRON, NETIRON, SERVERIRON IP, SLX OS PLATFORMS SUPPLEMENTAL TERMS
These Supplemental Terms (the “EULA”) constitutes a legal agreement between you, acting on behalf of your business entity (“You” or “Licensee”), as the end user, and BROCADE COMMUNICATIONS SYSTEMS LLC including its wholly-owned subsidiaries (collectively “Brocade”) for the Network Operating System (NOS), Fabric Operating System (FOS), FastIron, NetIron, ServerIron, and SLX OS software which includes the object code version of the software and may include associated media, printed materials, third party components and documentation (the “Software”). This EULA is subject to the Brocade Terms posted at www.brocade.com and together with the Brocade Terms, govern your purchase and use of Hardware from Brocade. Except as provided herein, capitalized words used in these Supplemental Terms have the meaning given in the Brocade Terms.
Subject to the provisions of this EULA and payment of the applicable fees, Brocade grants to Licensee a personal, limited, non-exclusive, non-transferable, non-assignable, revocable license to use the Software in object code form solely for the purpose of operating Hardware and solely on the number of Hardware units for which Licensee has purchased and is licensed to use this Software. A license key or serial number may be required in order to activate or use your license or support (if any). If Brocade allows for the transfer of a license key to another Hardware unit, the transfer will be subject to Brocade’s policies as outline in the Software documentation and the policies posted at www.Brocade.com. A license key may not be used on more than one Hardware unit at a time and, in the case that a transfer of the license key is allowed from one Hardware unit to another, Licensee must disable and discontinue use of the Software on the previously used Hardware unit. Licensee may only use the Software in the manner for which it has purchased a valid license. If Licensee uses or enables features or functionality for which it has not obtained a valid license, fees for such features or functionality shall become immediately due and payable. This license is contingent upon Licensee (including without limitation its personnel, agents, and subcontractors) compliance with the provisions of this EULA. The license(s) granted herein excludes licenses obtained for evaluation purposes. Unless Licensee has a separate agreement with Brocade, terms and conditions applicable to licenses for evaluation purposes can be found at www.brocade.com. Licensee may make one backup copy of the Software as may be necessary for Licensee's lawful use, provided Licensee affixes and does not remove all trademark, copyright, patent, and notices of other proprietary rights that appear in or on the Software.
The Software is licensed, not sold. Licensee's rights in the Software will be limited to those expressly granted herein. All the limitations and restrictions on the Software in these Software Terms also apply to documentation. Except as otherwise expressly provided in this EULA, Licensee shall have no right, and Licensee specifically agrees not to, and not to permit third parties to:
a. modify, adapt, change, enhance or create derivative works based upon the Software including, without limitation, using the Software for the development of other software or applications;
b. copy, or otherwise reproduce the Software in whole or in part;
c. decompile, translate, reverse engineer, disassemble, attempt to discover any source code or underlying ideas or algorithms, structure, architecture or algorithms of the Software (except to the extent that applicable law or any public license prohibits reverse engineering restrictions), or otherwise reduce the Software to human-readable form;
d. use the Software (or portion thereof) on any Hardware in excess of the maximum number of Hardware for which Licensee has purchased a license or use, license, sell, transfer, or any way distribute or sublicense the Software outside of the scope of the licenses granted herein;
e. use any 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;
f. extract or run any component of the Software independently;
g. remove, modify or otherwise tamper with any notice or legend in or on any labeling on any physical media containing the Software, and;
h. take any action that would cause the Software or any proprietary portion thereof to become part of the public domain.
To the extent that Licensee creates derivative software or a derivative software product (“Derivative Software”) by a method described in this EULA or by using any Source Code or underlying ideas or algorithms, structure, or architecture of the Software and by permissible means under both this EULA and under local, state or federal law, this EULA prevents Licensee from using, distributing or licensing any Derivative Software that competes with the Software or any other Brocade product for commercial uses. All use, distribution or licenses of or for the Derivative Software, regardless if it directly or indirectly competes with the Software or other Brocade products, must comply with this EULA to the extent such compliance is permitted under applicable laws.
Upgrades and Additional Copies
For purposes of this EULA, "Software" shall also include any upgrades, updates, bug fixes or modified versions ("Upgrades") provided to Licensee by Brocade (if any) or an authorized distributor or reseller, along with any backup copies of the Software, and for which Licensee had paid the applicable license and support and maintenance fees. Notwithstanding the foregoing, Licensee acknowledges and agrees that Brocade and its resellers and distributors shall have no obligation to provide any Upgrades. If Upgrades, additional feature or functionality, or additional copies of the Software are provided, Licensee acknowledges and agrees that it has no license or right to use such additional features or functionality, copies or Upgrades unless Licensee, at the time of acquiring such feature or functionality, copy or Upgrade, already holds a valid license and the corresponding software keys to the original Software for the applicable number of copies, and is subject to a then-current Software support and maintenance program with Brocade or its authorized distributor.
Third Party Components
Software provided under this EULA may include "open source" software. Such software is subject to the applicable open source license governing its use and distribution (“Public License”) and is not subject to this EULA. Copies of applicable licenses may be distributed with the Software or posted at www.brocade.com. You may also contact Brocade directly. To obtain a copy of the open source software used by Brocade, please see Brocade’s website or contact Brocade directly. You must either agree to the terms of each applicable Public License or not exercise such licensed rights. This EULA is not intended to change or restrict the terms of any Public License, and Brocade does not seek to restrict, or receive compensation for, the copying or redistribution of publicly licensed code that is otherwise freely re-distributable to third parties (and not otherwise restricted by federal copyright or other laws). Brocade disclaims all liability and warranties with respect to open source software.
Support or Services
a. If Brocade offers Support or Services and such Support or Services requires registration or activation, Licensee is responsible for registering or activating Support or Services for the Software via the web site designated by Brocade as may be required by Brocade. Brocade’s obligation to provide Support or Services is conditioned upon such registration or activation, receipt of all amounts due and payable for Support and Services, and End User’s compliance with the applicable terms and conditions. If Licensee reports an issue to Brocade related to the Support for the Software (“Service Request”), Licensee will classify the Service Request according to the “Severity Level” descriptions located in the Support policies located on Brocade's website at www.brocade.com. Additional charges may apply if Brocade determines that the cause of the Service Request was not related to the Software or the request is not covered by Brocade’s Support or Service obligations. Brocade retains all rights, title and interest in and to any patents (issued, non-issued, or pending), copyrights, trade secrets, work product and other intellectual property resulting from performance of Support and Services.
a. Brocade may revise or cancel Support or Services at any time.
b. Support and Services does not cover and Brocade disclaims any responsibility for Service Requests arising out of alterations of or modifications to the Software performed by any party other than Brocade, accident, negligence, improper installation, misapplication, abuse, alteration or misuse of the Software or Licensee's failure to use the Software in accordance with the provisions of this EULA or other applicable agreement and the documentation and instructions provided by Brocade. If Licensee modifies, alters or changes the Software, in any form or manner, such changes will void Support or Service and result in additional fees. Additional charges may apply if Brocade determines that the cause of the Service Request was not related to the Software or the request is not covered by Brocade's obligations. Support does not cover and Brocade disclaims any responsibility for support requests related to publicaly available software including, but not limited to, open source software.
Licensee acknowledges that security in the Software or in other Brocade Offerings does not guarantee the security of Licensee's network, and that Licensee is responsible for all other aspects of security, including without limitation, correct installation and setup of the security features of the Software or other Brocade Offering and all related requirements, correctly configured security policies, selection of hardware and software (including network security tools), correct installation, configuration, and maintenance of the hardware and software, the interoperability of the various components of Licensee's network, and a physically and electronically secure operating environment. LICENSEE ACKNOWLEDGES THAT LICENSEE HAS ACCESS TO SUFFICIENT INFORMATION TO ENSURE THAT LICENSEE CAN MAKE AN INFORMED DECISION AS TO THE EXTENT TO WHICH LICENSEE CHOOSES TO RELY ON ANY SECURITY FEATURES IN SOFTWARE.
TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, BROCADE PROVIDES THE SOFTWARE "AS IS" WITHOUT WARRANTY OF ANY KIND. NEITHER BROCADE NOR ITS THIRD PARTY SUPPLIERS WARRANT THAT THE SOFTWARE IS ERROR FREE OR THAT LICENSEE WILL BE ABLE TO OPERATE THE SOFTWARE WITHOUT PROBLEMS OR INTERRUPTIONS. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, BROCADE EXPRESSLY DISCLAIMS ALL EXPRESS OR IMPLIED CONDITIONS, REPRESENTATIONS, AND WARRANTIES INCLUDING, WITHOUT LIMITATION, ANY IMPLIED WARRANTY OR CONDITION OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NONINFRINGEMENT, AND SATISFACTORY QUALITY OR ARISING FROM A COURSE OF DEALING, USAGE, OR TRADE PRACTICE. TO THE EXTENT AN IMPLIED WARRANTY CANNOT BE EXCLUDED, SUCH WARRANTY IS LIMITED IN DURATION TO THE APPLICABLE WARRANTY PERIOD. BROCADE IS NOT OBLIGATED TO PROVIDE ANY SUPPORT, MAINTENANCE OR OTHER SERVICES FOR THE SOFTWARE. Brocade, its authorized third party reseller(s), or its third party suppliers do not warrant that the Software will meet Licensee’s requirements, or that the Software will operate in the combinations which Licensee may select for use, or that the operation of the Software will be uninterrupted or error-free. The Software may include usage, metering, tracking, disabling features or other similar features. Availability of Software varies by location. Brocade, its authorized third party resellers or its authorized third party suppliers are not responsible for pricing, typographical or other errors and reserves the right to cancel any orders arising from such errors as well as cancel, modify or discontinue Brocade Offers at any time. Due to interoperability requirements, Licensee acknowledges and agrees that the use of any Third Party Products, including but not limited to, third-party software, may cause errors in the operation of the Software or Hardware or may cause additional resolution time which may not be covered by Support or Services. Licensee agrees to pay Brocade for any time spent by Brocade diagnosing issues that result from use of Third Party Products which shall be billed at Brocade's hourly billing rate. Licensee agrees to pay such amounts without deduction or set-off net 30 days from the date of invoice in United States ("U.S.") dollars.
Limitation of Liability
Licensee acknowledges that the Software is not designed, manufactured or intended for use in connection with the design, construction, maintenance, and/or operation of any system where a failure of such system could result in a situation that threatens the safety of human life. Except as otherwise provided herein, Brocade shall not be liable to Licensee, in whole or in part, for any claims or damages arising from such use, or resale to Licensee by a third party for such purposes, and Licensee agrees to indemnify, defend (with counsel approved in writing in advance by Brocade) and hold Brocade harmless against any claims for cost, damage, expense (including reasonable attorneys' fees) or liability arising out of or in connection with any such use. Functionality may be included in the Software that will de-activate or impair use of the Software in whole or in part. IN NO EVENT WILL BROCADE OR ITS SUPPLIERS BE LIABLE FOR ANY LOST REVENUE, PROFIT, OR DATA, OR FOR SPECIAL, INDIRECT, CONSEQUENTIAL, INCIDENTAL, OR PUNITIVE DAMAGES HOWEVER CAUSED AND REGARDLESS OF THE THEORY OF LIABILITY ARISING OUT OF THE USE OF OR INABILITY TO USE THE SOFTWARE EVEN IF BROCADE OR ITS SUPPLIERS HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. IN NO EVENT SHALL BROCADE'S OR ITS SUPPLIERS', TOTAL LIABILITY TO LICENSEE, WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE), OR OTHERWISE, EXCEED THE ACTUAL AMOUNT PAID BY LICENSEE TO BROCADE FOR THE SOFTWARE LICENSE. THE FOREGOING LIMITATIONS SHALL APPLY EVEN IF THE ABOVE-STATED WARRANTY FAILS OF ITS ESSENTIAL PURPOSE. BECAUSE SOME STATES OR JURISDICTIONS DO NOT ALLOW LIMITATION OR EXCLUSION OF CONSEQUENTIAL OR INCIDENTAL DAMAGES, THE ABOVE LIMITATION MAY NOT APPLY.
Brocade and its third party suppliers retain all rights, title, ownership, interests and intellectual property rights and other proprietary rights in and to the Software. Brocade retains all rights not expressly granted to Licensee in this EULA. The Software is Brocade’s confidential information. Licensee agrees to protect and maintain the confidentiality of the Software, and not to disclose the Software to any third parties except as expressly permitted in this EULA. Licensee acknowledges that its breach of confidentiality shall cause Brocade irreparable injury and entitle Brocade to obtain equitable relief, in addition to all other remedies available. To the extent that Licensee creates derivative software or a derivative software product ("Derivative Software") by a method described in Section labeled “License Restrictions” or by using any source code or underlying ideas or algorithms, structure, or architecture of the Software and by permissible means under both this EULA and under local, state or federal law, this EULA prevents Licensor from using, distributing or licensing any Derivative Software that competes with the Software or any other Brocade product for commercial uses. All use, distribution or licenses of or for the Derivative Software, regardless if it directly or indirectly competes with the Software or other Brocade products, must comply with this EULA to the extent such compliance is permitted under applicable laws.
Term and Termination
This EULA is effective until terminated. Licensee's license rights under this EULA will terminate immediately without notice from Brocade if Licensee fails to comply with any provision of this EULA. Upon termination, Licensee must destroy all copies of Software and the corresponding software keys in its possession or control and certify such destruction in writing to Brocade or its authorized distributor.
Licensee acknowledges that the Software provided under this EULA are subject to the provisions of the U.S. Export Administration Regulations and may be subject to export and import regulations in countries outside the U.S., and agrees to comply with all such applicable laws and regulations, as required. Licensee acknowledges and agrees that it will not import, export, re-export, transfer or use, directly or indirectly, the Software 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 Licensee transacts business. Licensee also agrees that it will not export, import, transfer, use or re-export the Software, directly or indirectly (i) to any U.S. embargoed country; (ii) to any person or entity on a denial list published by the U.S. Government; or (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. Licensee acknowledges that certain Software or technologies may be classified as "restricted encryption" items under section 740.17(b)(2) of the U.S. Export Administration Regulations and may require export licenses or U.S. re-export approval when being shipped from the U.S. or other countries. Licensee agrees to indemnify, defend (with counsel approved in writing in advance by Brocade) and hold Brocade, its affiliates, subsidiaries, officers, directors, employees and agents, harmless against any claims for cost, damage, expense or liability arising out of or in connection with any breach of Licensee obligations under this Section.
U.S. Government Restricted Rights
The Software and any accompanying documentation provided under this EULA incorporate commercial computer software and commercial computer software documentation developed exclusively at private expense, and is in all respects proprietary property belonging solely to Brocade or its suppliers. If Licensee is acquiring the Software on behalf of any part of the United States Government, the following provisions apply. The object code and accompanying documentation are deemed to be "commercial computer software" and "commercial computer software documentation", respectively, pursuant to DFAR Section 227.7202 and FAR 12.212(b), as applicable. Any use, modification, reproduction, release, performance, display or disclosure of the object code and/or the accompanying documentation by the U.S. Government or any of its agencies shall be governed solely by the terms of this EULA and shall be prohibited except to the extent expressly permitted by the terms of this EULA. Any technical data provided that is not covered by the above provisions is deemed to be "technical data" and "commercial items" pursuant to DFAR Section 252.227.7015(a). Any use, modification, reproduction, release, performance, display or disclosure of such technical data shall be governed by the terms of DFAR Section 252.227.7015(b).
Governing Law; Venue
With respect to any Software licensed or purchased by the Licensee in the United States, this EULA is entered into, and all offerings shall be performed and delivered by or on behalf of Brocade Communications Systems LLC ("Brocade-US") in the United States. All disputes arising out of this EULA for transactions in the US shall be 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, and agree that service on Licensee at its address of public record constitutes valid service for any proceeding in the courts of that jurisdiction and this EULA shall be governed by the laws of California without reference to conflict of laws principles. When the Software is licensed or purchased by Licensee outside the United States, this EULA is entered into, and shall be performed by or on behalf of Brocade Communications Switzerland SarL in Switzerland. All disputes arising out this EULA for transactions outside the US must be finally settled under the Rules of Arbitration of the International Chamber of Commerce by three arbitrators appointed in accordance with said rules and this EULA will be governed by the laws of Switzerland without reference to conflict of laws principles. The place of arbitration will be Geneva, Switzerland. The arbitral tribunal shall conduct the proceedings and all awards will be rendered in the English language. The U.N. Convention on the International Sale of Goods does not apply to this EULA. This choice of jurisdiction does not prevent Brocade from seeking injunctive relief with respect to a violation of intellectual property rights or confidentiality obligations in any appropriate jurisdiction.
a. Independent Contractors. The relationship between the parties established by this EULA is that of independent contractors, and nothing in this EULA shall be construed to create a relationship of agency or partnership between the parties or to allow either party to create or assume any obligation on behalf of the other party.
b. Subcontractors. Brocade may delegate its duties to subsidiaries or engage subcontractors to perform certain of its obligations under this EULA.
c. Compliance with Statutes and Regulations. Each party will comply with all applicable Federal, state, local and foreign statutes, rules, regulations and orders, including but not limited to the Foreign Corrupt Practices Act.
d. Excluded Data. The Software provided under this EULA is not designed to offer functionality providing security and access management for the processing and/or storage of the following categories of data: (1) data that is classified and or used on the U.S. Munitions list, including software and technical data; (2) articles, services and related technical data designated as defense articles and defense services; (3) ITAR (International Traffic in Arms Regulations) related data; and (4) other personally identifiable information that is subject to heightened security requirements as a result of Licensee’s internal policies or practices or by law or regulation ("Excluded Data"). Licensee agrees that Licensee is solely responsible for reviewing and ensuring that any data it provides to Brocade (or to which Brocade will have access) does not contain Excluded Data.
e. Audit & Retention of Records. Upon reasonable notice, Brocade shall have the right to audit and inspect Licensee’s usage of the Software and to verify Licensee’s compliance with the provisions of this EULA (including all payment terms, if any) during Licensee’s normal business hours. Licensee must keep accurate and verifiable records of its use of the Software and the license keys. Licensee shall be responsible for payment of applicable license fees at Brocade’s current rate related to Licensee’s unlicensed use of the Software or if Licensee fail to keep verifiable records as provided herein. Amounts for underpayments, unlicensed use, or unverifiable use shall become immediately due and payable along with any costs incurred by Brocade as a result of an audit. Licensee shall retain the applicable records pertaining to its performance obligations for five (5) years after the termination or completion of such obligation.
f. Notices. All notices under this EULA shall be in writing and shall be delivered by personal delivery, internationally recognized overnight carrier, or facsimile transmission, and shall be deemed given upon personal delivery, three (3) business days after delivery to the international carrier with proof of receipt, or by fax upon acknowledgment of receipt of electronic transmission. Notices to Brocade shall be sent to Brocade Communications Systems LLC, Attention: Office of the General Counsel, 130 Holger Way, San Jose, CA 95134, Fax Number (408) 333-5630, and to Licensee at its address of public record.
g. Assignment. Licensee shall not, directly or indirectly, in whole or in part, whether by operation of law or otherwise, assign or transfer this EULA, without Brocade’s prior written consent, and any attempted assignment, transfer or delegation without such prior written consent shall be voidable at the sole option of Brocade. Brocade or its successors may assign this EULA, in whole or in part, and any of its rights and obligations hereunder, in its discretion. Without limiting the foregoing, this EULA will be binding upon and inure to the benefit of the parties and their permitted successors and assigns.
h. Remedies Cumulative. All rights and remedies existing under this EULA are cumulative to, and not exclusive of, any rights or remedies otherwise available.
i. Waiver; Amendment. Failure or delay on the part of either party hereto in the exercise of any right hereunder shall not impair such right or be construed to be a waiver of, or acquiescence in, any breach of any representation, warranty or agreement herein, nor shall any single or partial exercise of any such right preclude other or further exercise thereof or of any other right. No change or amendment will be made to this EULA except by an instrument in writing signed on behalf of each of the parties to such agreement.
j. No Implied Licenses. Nothing contained in this EULA shall be construed as conferring any rights by implication, estoppel or otherwise, under any intellectual property right, other than the rights expressly granted in this EULA.
k. Translations. This EULA is in the English language only, which language shall be controlling in all respects, and all versions hereof in any other language shall be for accommodation only and shall not be binding upon the parties. All communications and notices to be made or given pursuant to this EULA, and any dispute proceeding related to or arising hereunder, shall be in the English language. In the event of any discrepancy or inconsistency between different language versions of the EULA (and all associated documents or correspondence concerning this EULA), the English language version shall prevail.
n) Entire Agreement. The terms and conditions of this EULA constitute the entire agreement between Brocade and Licensee with respect to the subject matter hereof, and supersede all prior or contemporaneous oral or written representations, proposals or agreements concerning the subject matter herein. The terms and conditions herein take precedence over any additional or different terms, from whatever source, including Licensee’s purchase order or other correspondence, to which objection is hereby made by Brocade.
*Last updated on March 30, 2017