These Brocade Additional Terms for Resellers (“Reseller Terms”) apply to your orders for Brocade Products, Support Plans or Services that are for purposes of resale and not solely for use as part of your internal business operations. These Reseller Terms do not apply to your sale or distribution of Brocade Products under your brand name. If you wish to sell or distribute Brocade Products under your brand name, you must enter into a different agreement with Brocade.
The Reseller Terms are in addition to, and your orders are subject to, the applicable Brocade Master Terms & Conditions (“Brocade Terms”). These Reseller Terms supplement, and where expressly stated, modify, the Brocade Terms otherwise applicable to your orders.
The Brocade Terms include the applicable Hardware Terms, Software Terms, Support Terms, and Services Terms referenced below, and any document incorporated by reference in any of them.
In the event of a conflict between the documents that comprise the agreement they will take precedence in the following order: (1) the applicable Hardware Terms, Software Terms, Support Terms, or Service Terms; (2) these Reseller Terms, (3) the Brocade Terms, and (4) the quote or order.
2.1 Distribution. Unless you have been approved as a Brocade distributor, you may only market and sell Brocade Products directly to End Users, and not through sub-resellers. If you are authorized as a distributor, you must ensure that each of your sub-resellers complies with each section of these Reseller Terms and the Brocade Terms to the same extent as if directly applicable to each sub-reseller and you are responsible for any breach of these Reseller Terms and Brocade Terms by your sub-resellers to the same extent as for your own breach.
2.2 Marketing. You may not use any materials or information to market the Brocade Products except material provided by Brocade or approved by Brocade for your use. You may not make any oral or written statements that deviate from the approved marketing materials. You must obtain Brocade’s advance written consent before using Brocade’s name in any email campaign or other campaign that could subject Brocade to claims of spam or abuse. You may not use Brocade’s name, logo, or other trade or service marks except as specifically stated in a written authorization. You may not make any press release or other publicity regarding your relationship with Brocade unless approved in advance in writing by Brocade.
2.3 Non-Disparagement. You may not make any negative comments, orally or in writing, about Brocade or the Products to any End User or prospective End User, or in any public forum.
“Brocade” means Brocade Communications Systems LLC unless the order is to be fully performed outside of the United States, in which case “Brocade” means Brocade Communications Switzerland SarL. “Deliverables” means the materials, including reports, studies, base cases, drawings, findings, software, manuals, procedures, and recommendations that Brocade delivers to you as part of Services under a statement of work. “End User” means a person that uses the Brocade Products as part of that person’s or its affiliates’ internal business operations “Hardware” means computer hardware, related devices and other accessories including all embedded components, and including firmware and other embedded software. “Products” means Brocade’s Hardware products or Software products, or both. “Services” means any and all services, support, maintenance, training, education provided by Brocade other than Support provided pursuant to a Support Plan. “Software” means any computer or program code, provided by Brocade, as well as the related media and related user materials, whether printed, online or in other electronic form, including copies of the code and related materials. 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. “Supplemental Terms” refers to the Hardware Terms, Software Terms, Support Terms, and Services Terms, collectively. “Support” means technical assistance, maintenance and other services provided pursuant to a Support Plan. “Support Plan” means a subscription to a Brocade-defined plan for technical assistance, maintenance and like services in connection with Brocade’s Products as further defined in the Support Terms. “Third Party Products” means any products, software, or services that are provided or distributed by a third party, are distributed by Brocade but under the third party’s brand name, or are distributed by Brocade but are provided pursuant to separate legal terms and conditions that are intended to be binding between you and the third party.
- Sales Process
3.1 Demo License. If Brocade has provided you with Product on a “not for resale,” “NFR,” “demonstration,” “lab,” or similar basis, then you may use the Product solely for the purpose of demonstrating the Product to prospective End Users.
3.2 Evaluation License. You may not provide your prospective End User with Product on an evaluation basis except as otherwise agreed, and on the terms required, by Brocade. 3.2 Orders and Fulfillment.
3.2.1 Additional Terms for Reseller Orders. As a condition to filling or performing your order, Brocade may require the prospective End User to accept Brocade’s legal terms and conditions via a Brocade-managed process, or require you to produce evidence that the prospective End User has accepted the Brocade approved legal terms and conditions using a process you manage.
3.2.2 Shipment, Delivery of Hardware. As between you and Brocade, you are responsible for all costs of shipment and delivery of Hardware to the End User.
3.2.3 Delivery of Software. You must comply with Brocade’s process for Software delivery to End Users that is communicated to you. All Software is subject to separate license agreement(s) accompanying the Software (or if no such license is provided, the license agreement posted at www.Brocade.com), along with any product guides, operating manuals, specifications or other Documentation distributed or made available for use with the Software or otherwise presented during the installation or use of the Software. You acknowledge that Brocade’s process may require your End User to download the Software from a Brocade-branded download site. You acknowledge that Brocade may from time to time modify its Software delivery process.
3.3.1 End User Fees. You are free to set your fees for the Products to your End Users in your sole discretion. Any pricing provided to you by Brocade is a suggested price and not a requirement.
3.3.2 Obligation to Pay Brocade Fees. Your obligation to pay Brocade for an order is not conditional on your receipt of payment from your customer or End User, nor will any amounts be refunded or credited in the event your customer or End User fails to pay you.
Nothing in these Reseller Terms authorizes you to modify the Products or create derivative works of the Products. You may not use the Products as part of your development of any other technologies unless you have entered into a separate development agreement with Brocade authorizing such use.
- Term, Termination, Suspension
These Reseller Terms are coterminous with the applicable order or other documentation that is specifically governed by these Reseller Terms. Brocade may terminate your agreement with Brocade at any time in its sole discretion without liability. Brocade may terminate your agreement for breach if you are in material violation of these Reseller Terms immediately on written notice. Brocade may suspend your order or agreement during any period that you are in violation of these Reseller Terms. During any period of suspension and upon receipt of notice of termination, you must immediately cease all marketing and sales activities related to the Products.
You agree to indemnify and hold harmless Brocade and each of Brocade’s affiliate and their respective officers, directors, employees, agents, suppliers and licensors (the “Brocade Indemnitees”) from and against all losses resulting from: (I) any claims by your End Users or sub-resellers, and (ii) third party claims arising from your breach of the Reseller Terms or your sub-resellers breach of the Reseller Terms (including the Brocade Terms and Product specific terms as they apply to the activities of you and your sub-resellers under these Reseller Terms ( each a “Reseller Claim”). The losses covered by this Section include all losses of any type arising from the Reseller Claim, such as costs, fees and expenses (including reasonable legal fees), costs of investigation, litigation, settlement, judgment, interest, and penalties. Brocade may defend a Reseller Claim or require you to defend a Reseller Claim at Brocade’s option. If Brocade elects to have you defend the Reseller Claim Brocade may subsequently assume the defense of the Reseller Claim at Brocade’s sole discretion. If Brocade elects to defend the Reseller Claim then you must reimburse Brocade’s Losses as incurred. If Brocade elects to defend the Reseller Claim, then Brocade will select counsel and will control the defense of the claim, but you may participate in the defense of a Brocade-defended Claim with counsel or your choice at your expense. If Brocade elects to have you defend the Reseller Claim, then you must use counsel acceptable to Brocade in Brocade’s reasonable commercial discretion, and you may not settle the Reseller Claim without Brocade’s prior written consent, not to be unreasonably withheld.
You must maintain, at your expense all necessary insurance including without limitation, workers compensation insurance, as required by law, and employers' liability insurance upon its employees as well as reasonable and comprehensive liability insurance for all operations necessary and incidental to your activities under these Reseller Terms.
Last updated on September 30, 2015