These Software Terms (also referred to as End User License Agreement terms or EULA) and Supplemental License Terms (collectively referred to as the “Software Terms”) together with the general Brocade Terms, govern the license and use of Brocade’s Software and any associated Services and Support. The Brocade Terms are incorporated by this reference: Brocade Master Terms and Conditions of Purchase. These Software Terms do not apply to firmware and other embedded software distributed with Brocade Hardware.
ACCESSING, DOWNLOADING, INSTALLING OR USING BROCADE SOFTWARE CONSTITUTES ACCEPTANCE OF THESE SOFTWARE TERMS BY AN AUTHORIZED REPRESENTATIVE OF THE END USER (AS DEFINED). IF THE END USER REQUESTS ANOTHER THIRD PARTY TO DOWNLOAD, ACCESS OR USE THE SOFTWARE ON ITS BEHALF OR CONTINUES TO USE THE SOFTWARE AFTER THE SOFTWARE HAS BEEN DOWNLOADED BY A THIRD PARTY ON ITS BEHALF, THESE SOFTWARE TERMS WILL BE BINDING ON THE END USER AND END USER WILL BE RESPONSIBLE FOR SUCH THIRD PARTY’S COMPLIANCE WITH THE PROVISIONS OF THESE SOFTWARE TERMS. IF END USER DOES NOT ACCEPT THESE SOFTWARE TERMS OR DID NOT PURCHASE OR ACQUIRE THIS LICENSE FOR SOFTWARE FROM BROCADE OR A SOURCE AUTHORIZED AND APPROVED BY BROCADE, END USER HAS NO LICENSE OR RIGHT TO USE THE SOFTWARE AND THE LIMITED WARRANTY AND INDEMNIFICATION PROVISIONS UNDER THESE SOFTWARE TERMS DO NOT APPLY.
1. Scope of Agreement & Definitions.
1.1 Scope of Agreement. These Software Terms apply to Software, and any associated Support and Services purchased from Brocade or its authorized distributors or resellers. If End User obtained a license for the Software and/or purchased Support or Services through a distributor or reseller authorized by Brocade, the provisions of End User’s purchase agreement with the distributor or reseller apply. To the extent allowed by law, Brocade may change or modify the terms and conditions of these Software Terms without further notice.
1.2 Supplemental License Terms. The Supplemental License Terms set forth provisions applicable to the Brocade Offering that End User purchased.
1.3.1 "Brocade Offerings" refers to Software, Support, Services, and documentation.
1.3.2 “End User” refers to either: (i) the entity or person(s) downloading, accessing, or using the Software for the purposes of this Agreement as provided by these Software Terms; or (ii) a customer of a Managed Service Provider that will use the Software in connection with receiving Managed Services from a Managed Service Provider. “Managed Services” refers to services pertaining to the operation, administration, maintenance and provisioning of networked systems, as part of which, one or more customers are provided with direct or indirect access to products that display, run, access or otherwise interact with the Software. “Managed Service Provider” refers to an entity in the business of providing Managed Services to its customers.
1.3.3 “Hypervisor” means proprietary or open source software provided by a third party that allows one or more Virtual Machines to run concurrently on a host server.
1.3.4 “Perpetual” refers to a license that is indefinite in duration associated with the intellectual property rights in this software except as provided by these Software Terms.
1.3.5 "Software" refers to the software, Source Code and documentation, including but not limited to Patches, bug fixes and derivatives thereof (if any) provided under these Software Terms.
1.3.6 "Source Code" means the literal computer code of the Software and any material beyond the literal code itself that facilitates or expedites the review and understanding of the Software.
1.3.7 “Subscription” refers to a license that is limited for a specific time period as noted in the purchase documentation.
1.3.8 “Usage” refers to a license that is based on End User’s actual or metered use of the Software as noted in the applicable purchase documentation.
1.3.9 “Virtual Machine” means a software based implementation that emulates the computer architecture and functions of a real world computer.
1.3.10 “Virtual Machine License” refers to a license to implement a Virtual Machine(s) on a Hypervisor. A license must be purchased for each instance of the Software used to implement a Virtual Machine (each implementation hereinafter referred to as an “Instance”).
2. License and License Restrictions.
2.1 License. End User’s license to the Software shall be specified in the Supplemental License Terms. If no license is specified in the Supplemental License Terms and license terms are not distributed with the Software then the following license shall apply. Subject to the provisions of these Software Terms and payment of the applicable fees, Brocade grants End User a limited, non-sublicensable, non-exclusive, non-transferable, non-assignable, revocable license to use for End User’s own internal purposes the Software only in object code form for the period of time specified in End User’s purchase documentation. If no term is specified in End User’s purchase documentation, the term of the license shall be one year. This license shall be subject to any applicable limitations and restrictions under End User's agreement with the distributor or reseller. Software must be used only in accordance with the applicable documentation and policies for the Software provided by Brocade. The license(s) granted herein excludes licenses obtained for evaluation purposes. End User may only use the Software in a manner for which End User has purchased or obtained a valid license. In order to download, access or use the Brocade Offering, End User may be required to obtain, use and register a license key and provide additional information.
2.2. License Restrictions. All Software delivered hereunder is licensed, not sold. Except as expressly provided in these Software Terms, End User may not itself, or through any parent, subsidiary, affiliate, agent, or other third party, nor permit third parties to:
2.2.1 Modify, translate, 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;
2.2.2 Copy, or otherwise reproduce the Software in whole or in part;
2.2.3 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;
2.2.4 Remove, modify or otherwise tamper with any notice or legend on any labeling on any physical media containing the Software;
2.2.5 Use, license, sell, transfer, or any way distribute or sublicense the Software that is outside the scope of the licenses granted herein;
2.2.6 Provide, lease, lend, use, disclose, divulge or make available to, or permit for timesharing or service bureau purposes the Software; or
2.2.7 Take any action that would cause the Software or any proprietary portion thereof to become part of the public domain.
2.3 Limitations. End User's rights in the Software are limited to those expressly granted herein. End User may not extract or run any component of the Software independently. Further, End User may not utilize any Software or portion thereof to pass traffic in a network with an unpaid or unlicensed version including but not limited to evaluation or open source versions of the Software. All the limitations and restrictions on the Software in these Software Terms also apply to documentation.
2.4 Derivative Works. To the extent that End User creates derivative software or a derivative software product (“Derivative Software”) by a method described in Section 2.2.3 or by using any Source Code or underlying ideas or algorithms, structure, or architecture of the Software and by permissible means under both these Software Terns and under local, state or federal law, these Software Terms prevent End User 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 these Software Terms to the extent such compliance is permitted under applicable laws.
2.5 Third Party and Open-Source Software. The Brocade Offering may include third-party software and such third-party software may be licensed under terms different from those contained in these Software Terms. Portions of the Software are only available to End User under public licenses (including the GNU General Public License ("GPL"), the GNU Lesser General Public License ("LGPL"), Eclipse Public License (“EPL”) and other public licenses (each a "Public License"). End User’s rights and obligations with respect to such Software are set forth in the applicable Public License and these Software Terms. Information about applicable Public Licenses may be found in the electronic media or content downloaded with the Software. Otherwise, to obtain a copy of the applicable licensing provisions for the open source software used by Brocade, please refer the following web site (as may be updated from time to time): Open Source Code End User either must agree to the provision of each applicable Public License or not exercise such licensed rights. These Software Terms are 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 software subject to a Public License.
3. Support & Services
3.1 Support. If the Brocade Offering includes Support or Services and requires registration or activation, End User is responsible for registering or activating Support for the Software via the web site designated by Brocade. Brocade’s obligation to provide Support is conditioned upon such registration or activation, receipt of all amounts due and payable for the Brocade Offering, and End User’s compliance with the provisions applicable to the Brocade Offering. If End User reports an issue to Brocade related to the Support for the Software (“Service Request”), End User will classify the Service Request according to the “Severity Level” descriptions located at: Brocade Software Support Terms 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.
3.2 Cancellation of Support. Brocade may revise or cancel Support or Services at any time.
3.3 Exclusions. 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 End User's failure to use the Software in accordance with the provisions of the Brocade Offering or the documentation and instructions provided by Brocade. If End User 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 publically available software including, but not limited to, open source software.
4. Disclaimer of Warranties
EXCEPT AS EXPRESSLY SET FORTH IN THESE SOFTWARE TERMS, THE BROCADE OFFERINGS AND THIRD PARTY PRODUCTS (IF ANY) ARE DELIVERED "AS IS" AND NEITHER BROCADE NOR ITS THIRD-PARTY SUPPLIERS, TO THE EXTENT ALLOWED BY APPLICABLE LAW, MAKES ANY OTHER WARRANTIES, EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, INCLUDING BUT NOT LIMITED TO IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT. TO THE EXTENT AN IMPLIED WARRANTY CANNOT BE EXCLUDED, SUCH WARRANTY IS LIMITED IN DURATION TO THE APPLICABLE WARRANTY PERIOD. IF END USER MADE ITS PURCHASE THROUGH A THIRD PARTY, BROCADE IS NOT RESPONSIBLE FOR THE REPRESENTATIONS OR WARRANTIES MADE BY SUCH THIRD PARTY. Brocade, its authorized third party reseller(s), or its third party suppliers do not warrant that the Brocade Offerings will meet End User’s requirements, or that the Brocade Offerings will operate in the combinations which End User may select for use, or that the operation of the Brocade Offerings will be uninterrupted or error-free. The Software may include usage, metering, tracking, disabling features or other similar features. Availability of Brocade Offerings 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. End User acknowledges that security in Brocade Offerings does not guarantee the security of End User's network, and that End User is responsible for all other aspects of security, including without limitation, correct installation and setup of the security features of the 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 End User's network, and a physically and electronically secure operating environment. Due to interoperability requirements, End User 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 may cause additional resolution time which may not be covered by Support or Services. End User 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. End User agrees to pay such amounts without deduction or set-off net 30 days from the date of invoice in United States ("U.S.") dollars.
5. Third Party Products.
"Third Party Products" refers to products or services that may be used, offered or sold with Brocade Offerings. Third Party Products are not manufactured or published by Brocade, and may not be supported or serviced by Brocade. Should Brocade assist End User in procuring, using, or supporting Third Party Products, End User and the third party, and not Brocade, is responsible for any licenses, representations, warranties, obligations and offerings made by such third party. For clarification, support, if any provided by Brocade for Third Party Products or through a community forum is provide “AS IS” without any warranty of any kind, implied or expressed.
6.1 By Brocade. Subject to the provisions of these Software Terms and Supplemental License Terms, Brocade will defend and indemnify End User against any third-party claim that the Software (excluding Third Party Products and open-source software) infringes a United States or a European Union patent, copyright or misappropriate a valid trade secret; provided End User shall (i) promptly notify Brocade in writing of the claim; (ii) provide Brocade sole control over the defense and settlement of such claim, at Brocade's expense and with Brocade's choice of counsel; and (iii) at Brocade's request and expense (for End User's actual and reasonable out of pocket expenses), provide full information and reasonable assistance to Brocade with respect to such claim.
6.2 Exclusions. Brocade is not obligated to defend, nor is it liable in any manner for infringement arising out of: (a) required compliance with End User provided technology or specifications; (b) modification of the Software (except modifications provided by Brocade) or use of such Software in a manner not contemplated by Brocade; (c) End User's combination of Software with hardware, software or other materials not provided by Brocade or designed for use with the Software; (d) End User's failure to use reasonable materials or instructions provided by Brocade that would have rendered Software non-infringing; (e) End User’s use of Software not currently supported by Brocade; or (f) End User’s use of Software in breach of these Software Terms and applicable Supplemental License Terms.
6.3 Existing Claims. Brocade has no obligations under this Section if End User was aware of any actual, pending or threatened claims that are the subject of Brocade's indemnity obligation hereunder at the time End User purchased or secured the applicable license for the Software. Brocade's obligation to indemnify End User applies only to final judgments entered in such a suit by a court of competent jurisdiction or proceeding and against settlements arising out of such a claim. End User may join in defense of a claim with counsel of its choice at its expense and subject to Brocade's exclusive right to control the defense. Brocade is not liable to End User under these Software Terms for any Software if End User does not have an active and valid Support contract in place with Brocade for the Software at the time of the claim.
6.4 Brocade's Options. If at any time any Software becomes or in the opinion of Brocade may become the subject of claim of infringement as provided in this Section, Brocade may, at its option and expense: (i) procure for End User the right to continue using such Software; (ii) replace or modify such Software; or, in the event Brocade concludes that neither option (i) or (ii) is reasonably available or cost efficient, (iii) terminate the license granted under these Software Terms and Supplemental License Terms with respect to such Software. BROCADE WILL NOT BE LIABLE FOR ANY COSTS OR EXPENSES INCURRED WITHOUT ITS PRIOR WRITTEN AUTHORIZATION. THE FOREGOING PROVISIONS STATE THE ENTIRE LIABILITY AND OBLIGATIONS OF BROCADE AND ITS SUPPLIERS, AND THE EXCLUSIVE REMEDY OF END USER WITH RESPECT TO ANY ACTUAL OR ALLEGED INFRINGEMENT OF ANY INTELLECTUAL PROPERTY RIGHT BY THE BROCADE OFFERING OR ANY PART THEREOF OR BY THEIR OPERATION.
7. Proprietary Rights.
Brocade and each of its third party suppliers own and retain for itself all right, title and interest in and to all designs, engineering details, data, materials, discoveries, inventions, patents and other proprietary rights pertaining to or reflected by the Brocade Offerings.
8. Confidential Information.
8.1 Confidentiality. Confidential Information means any information disclosed by Brocade to End User, either directly or indirectly, in writing, orally or by inspection of tangible objects, proprietary information, technical data, trade secrets (other than the Source Code) or know-how (including, without limitation, research, product plans, products, services, customers, markets, works of original authorship, photographs, negatives, digital images, software, computer programs, know-how, ideas, inventions (whether or not patentable), processes, formula, technology, designs, drawings, engineering, hardware configuration information, marketing or finance documents and other technical, business, financial, customer and product development plans, forecasts, strategies and information), which is designated as “Confidential,” “Proprietary” or some similar designation by Brocade or which the End User knows or has reason to known is regarded as confidential by Brocade ("Confidential Information"). Confidential Information may also include information disclosed to Brocade by third parties. End User will at all times keep in confidence all such Confidential Information, and shall not use such Confidential Information without Brocade's written consent except in performance of End User's duties hereunder. End User may not disclose the Confidential Information to any person except its employees to whom it is necessary to disclose the Confidential Information for permissible internal business purposes and who have agreed to receive it under terms at least as restrictive as those specified in the Software Terms. End User's obligation to protect Confidential Information is satisfied if End User utilizes the same control over the Confidential Information as End User employs to avoid disclosure of End User's own confidential and valuable information (but no less than commercially reasonable control). End User will immediately give notice to Brocade of any unauthorized use or disclosure of the Confidential Information. End User agrees to assist Brocade in remedying such unauthorized use or disclosure of the Confidential Information. The foregoing obligations will not apply to the extent End User can demonstrate:
8.1.1 The disclosed Confidential Information was part of the public domain at the time of disclosure;
8.1.2 End User can establish by written evidence that the disclosed Confidential Information was in the possession of the End User at the time of its disclosure by Brocade;
8.1.3 End User received the disclosed Confidential information from a third party without similar restrictions on disclosure and without breach of these Software Terms or any other agreement; or
8.1.4 End User is required to disclose the Confidential Information to a government agency to further the objectives of these Software Terms, such as to obtain permission to distribute the Brocade Offering as permitted hereunder, or in the event a proper court of competent jurisdiction orders its disclosure; provided, however, that End User will use its best efforts to minimize the disclosure of such Confidential information and will consult with and assist Brocade in obtaining a protective order prior to such disclosure.
8.2 Retention Rights. 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 the End User's Confidential Information for any purpose. Brocade is free to develop products independently and Brocade is not obligated to restrict the future work assignments of people who have had access to End User's 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 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. To the extent that Brocade provides End User serial numbers, access codes, entitlement numbers or the license to access Software Services, or Support, End User is responsible for the security and use of such information, including that contained in the documentation therefore. If End User believes any Brocade Confidential Information has been lost, stolen, or misused, End User must immediately notify Brocade and its designated Support or Services contact.
8.3 Source Code. The Source Code constitutes a trade secret and may not be disclosed under these Software Terms or otherwise. End User may not disclose or use the Source Code without the express written consent of Brocade.
9. Export Controls
End User acknowledges that the Brocade Offering provided under these Software Terms 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. End User acknowledges and agrees that it will not import, export, re-export, transfer or use, directly or indirectly, the Brocade Offering 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 End User transacts business. End User also agrees that it will not itself, nor allow any third parties to export, import, transfer, use or re-export the Brocade Offering, 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. End User 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. End User 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 End User's obligations under this Section.
10. LIMITATION OF LIABILITY.
IN NO EVENT WILL BROCADE BE LIABLE FOR ANY CONSEQUENTIAL, INCIDENTAL, INDIRECT, SPECIAL OR PUNITIVE DAMAGES OF ANY KIND. IN ADDITION, IN NO EVENT WILL BROCADE BE LIABLE FOR LOSS OF PROFITS OR REVENUE, LOST BUSINESS, AND LOST OR CORRUPT DATA OR GOODWILL ARISING OUT OF OR RELATED TO THESESOFTWARE TERMS HOWEVER CAUSED AND ON ANY THEORY OF LIABILITY. THESE LIMITATIONS APPLY NOTWITHSTANDING THE FAILURE OF THE ESSENTIAL PURPOSE OF ANY LIMITED REMEDY. BROCADE'S ENTIRE LIABILITY ARISING OUT OF OR RELATED TO THESE SOFTWARE TERMS SHALL BE LIMITED TO THE AMOUNTS PAID OR PAYABLE TO BROCADE FOR THE SOFTWARE IN THE TWELVE (12) MONTH PERIOD PRIOR TO THE DATE THE CAUSE OF ACTION AROSE. THE FOREGOING LIMITATIONS SHALL NOT APPLY ONLY TO THE EXTENT THAT SUCH CONTRACTUAL LIMITATIONS CANNOT, UNDER APPLICABLE LAWS, SO LIMIT BROCADE'S LIABILITY.
11. Term and Termination.
11.1 Term and Termination. The term applicable for the license(s) granted for a Brocade Offering and any associated Support or Services begins on the date End User first purchases, accesses, downloads, installs, or uses (whichever occurs first) the Software (“Initial Access”) and continues through the Term purchased and as stated on End User’s purchase documentation. Brocade may immediately suspend, or terminate the license(s) granted under these Software Terms and the Supplemental License Terms or restrict access to the Brocade Offering if Brocade believes End User breached or will breach any provision of these Software Terms or the Supplemental License Terms. Brocade reserves the right to temporarily suspend or permanently terminate use of or access to the Software or Support.
11.2 Effect of Termination and Survival. Notwithstanding any other obligation hereunder, upon any termination or expiration of these Software Terms, End User shall return to Brocade each and every copy of the Software and the corresponding software keys or certify their destruction in writing, and End User shall not retain any copies of any Brocade Confidential Information or Software. The following Sections of these Software Terms survive termination or expiration of these Software Terms or applicable order: 1, 4, 5, 7, 8, 9, 10, 11, and 12.
12.1 Governing Law; Venue. With respect to any Brocade Offering licensed or purchased by the End User in the United States, these Software Terms 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 these Software Terms 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 End User at its address of public record constitutes valid service for any proceeding in the courts of that jurisdiction and these Software Terms shall be governed by the laws of California without reference to conflict of laws principles. When the Brocade Offering is licensed or purchased by the End User outside the United States, these Software Terms are entered into, and shall be performed by or on behalf of Brocade Communications Switzerland SarL in Switzerland. All disputes arising out these Software Terms 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 these Software Terms 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 these Software Terms. 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.
12.2 Severability. If any term or other provision of these Software Terms is determined by a non-appealable decision of a court, administrative agency or arbitrator to be invalid, illegal or incapable of being enforced by any rule of law or public policy, all other conditions and provisions of these Software Terms shall nevertheless remain in full force and effect so long as the economic or legal substance of the transactions contemplated hereby is not affected in any manner materially adverse to either party. Upon such determination that any provision is invalid, illegal or incapable of being enforced, that provision shall be severed from these Software Terms and there shall be deemed to be substituted a similar term or provision to accomplish the intent of the parties as closely as possible to the original term or provision, as determined by any court or arbitrator having jurisdiction, to the extent permitted by applicable law; provided, however, that if any restriction or limitation set forth in any license granted hereunder is deemed invalid or unenforceable, the entire license shall terminate.
12.3 Force Majeure. Neither party shall be liable for the performance of its obligations under these Software Terms if it becomes commercially impracticable to perform due to any contingency beyond the reasonable control of that party, including as a result of a Force Majeure. In no event shall Brocade be required to purchase goods from others to enable it to provide the Brocade Offerings under these Software Terms. Each party, as applicable, shall give the other party notice of its inability to perform and particulars in reasonable detail of the cause of the inability. Each party must use reasonable commercial efforts to remedy the situation and remove, so far as is commercially reasonable and as soon as practicable, the cause of its inability to perform or comply. Each party shall give the other party prompt notice of the cessation of the event of Force Majeure. "Force Majeure" means a cause of any kind not reasonably within the control of a party, including, without limitation, acts of God and the public enemy, sabotage, boycotts, disruptions of transportation facilities, inability to obtain supplies or materials, acts of government or its agencies, strikes, labor disputes, power disruptions, lockouts or any other industrial disturbance, or judicial action.
12.4 Independent Contractors. The relationship between the parties established by these Software Terms is that of independent contractors, and nothing in these Software Terms 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.
12.5 Subcontractors. Brocade may delegate its duties to subsidiaries or engage subcontractors to perform certain of its obligations under these Software Terms.
12.6 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.
12.7 Nuclear, Aviation or Life Support Application. Brocade specifically disclaims liability for use of the Brocade Offerings in connection with the design, construction, maintenance and/or operation of any (i) nuclear facility, (ii) aircraft, aircraft communication or aircraft ground support system, or (iii) safety or health care control system, including without limitation, life support system.
12.8 U.S. Government Restricted Rights. The Software and any accompanying documentation provided under the Software Terms 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 End User 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 these Software Terms and shall be prohibited except to the extent expressly permitted by the provision of these Software Terms. 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).
12.9 Excluded Data. The Software provided under these Software Terms 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 End User’s internal policies or practices or by law or regulation ("Excluded Data"). End User agrees that End User 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.
12.10 Audit & Retention of Records. Brocade shall have the right to audit and inspect End User’s usage of the Software and to verify End User’s compliance with the provisions of these Software Terms (including all payment terms, if any) during End User’s normal business hours. End User shall promptly remedy any underpayments that are discovered, and if any underpayment exceeds 5% of the amount owed over the audited period, then End User shall reimburse Brocade for the costs of the audit. End User shall retain the applicable records pertaining to its performance obligations for seven (7) years after the termination or completion of such obligation.
12.11 Notices. All notices under these Software Terms 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 End User at its address of public record.
12.12 Assignment. End User shall not, directly or indirectly, in whole or in part, whether by operation of law or otherwise, assign or transfer these Software Terms, 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 these Software Terms, in whole or in part, and any of its rights and obligations hereunder, in its sole discretion. Without limiting the foregoing, these Software Terms will be binding upon and inure to the benefit of the parties and their permitted successors and assigns.
12.13 Remedies Cumulative. All rights and remedies existing under these Software Terms are cumulative to, and not exclusive of, any rights or remedies otherwise available.
12.14 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 these Software Terms except by an instrument in writing signed on behalf of each of the parties to such agreement.
12.15 No Implied Licenses. Nothing contained in these Software Terms shall be construed as conferring any rights by implication, estoppel or otherwise, under any intellectual property right, other than the rights expressly granted in these Software Terms.
12.16 Translations; Order of Precedence. These Software Terms are 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 these Software Terms, 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 these Software Terms (and all associated documents or correspondence concerning these Software Terms), the English language version shall prevail. If any of the provisions of these Software Terms conflict or are otherwise inconsistent with the Brocade Terms, the provisions of these Software Terms will apply. In the event of a conflict between these Software Terms and the Supplemental License Terms, Support Terms, or Services Terms, the Supplemental License Terms, Support Terms, and Services Terms will apply.
12.17 Entire Agreement. These Software Terms constitutes the entire agreement between the parties with respect to the subject matter of these Software Terms and shall supersede all prior written and oral and all contemporaneous oral agreements and understandings between the parties.
Last updated on February 8, 2017