Terms & Conditions of Sale (USA)
1. Orders for Products and Services
1.1. Terms and Conditions. These Terms of Sale (“Terms”) apply to all sales of SoftIron hardware (“Hardware”) by SoftIron to the undersigned customer (“Customer”).
1.2. Order Submission by Customer
(a) SoftIron Product Order Quotation. With respect to each sale of Hardware, SoftIron will provide a quote (“Sales Quotation”) to Customer containing a description of the Hardware offered to Customer, applicable pricing, quantity, and other terms. Each order of Hardware will be subject to the terms contained in the applicable Sales Quotation.
(b) Purchase Orders. Customer will order Hardware by submitting to SoftIron a written purchase order referencing the applicable Sales Quotation and providing certain additional details for the ordered Hardware, including type and quantity, ordered, delivery destination and requested shipment date (each, a “Purchase Order”). If the Sales Quotation does not contain prices, the applicable price shall SoftIron’s current list price as of the date the Purchase Order is accepted by SoftIron.
1.3. Order Approval. Customer acknowledges that all Purchase Orders are subject to approval and acceptance by SoftIron, which shall be deemed to occur on the earlier of (i) SoftIron’s written acknowledgment of the Purchase Order, or (ii) the delivery of the Hardware to Customer.
1.4 Website Orders. The price for sales made through SoftIron’s website shall be that specified (if any) on the website, provided that SoftIron reserves the right to decline orders placed via its website if the pricing on the website is out of date or for alternative commercial reasons. In such circumstances, SoftIron will notify the Customer accordingly. Orders placed via SoftIron’s website are subject to availability and if accepted shall be acknowledged by email.
1.5 Price Changes. If Customer places an order for Hardware for delivery more than three (3) months from the date of the Purchase Order, SoftIron reserves the right, by giving notice to the Customer at any time before delivery, to increase the price of such Hardware as has not been delivered to reflect any increase in the cost to SoftIron which is due to market conditions or any factor beyond the control of SoftIron (including without limitation any foreign exchange fluctuation, currency regulation, alteration of duties, change in legislation, significant increase in the costs of labor, materials or other costs of manufacture), any change in delivery dates, quantities or specifications for the Hardware which is requested by the Customer, or any delay caused by any instructions of the Customer or failure of the Customer to give SoftIron adequate information or instructions.
1.6 Cancellations. Purchase Orders which have been acknowledged by SoftIron may not be canceled by Customer, except with the agreement in writing of SoftIron, and provided that Customer indemnifies SoftIron in full against all loss (including without limitation loss of profit), costs (including without limitation the cost of all labor and materials used), damages, charges and expenses incurred by SoftIron as a result of cancellation.
1.7 Product Shipment Terms. All Hardware will be packed for shipment and delivered under Incoterms 2010 EXW to Customer or its carrier agent at SoftIron’s facility or its authorized subcontractors’ or distributors’ facilities, at which time the risk of loss and title will pass to Customer. In the absence of specific shipping instructions from Customer, SoftIron will choose the method of shipment in its discretion. Customer will pay all freight, insurance, and other shipping expenses. SoftIron may make partial shipments, to be separately invoiced and paid for when due. SoftIron will use reasonable efforts to meet Customer’s requested delivery schedules for Hardware, but the delay in delivery of any installment shall not relieve the Customer of its obligation to accept the remaining deliveries. Upon delivery of all or part of any Hardware, such sales will be deemed final.
1.8 Delivery. Delivery dates and Hardware availability as set forth in the Purchase Order or as otherwise communicated to the Customer are estimates only. SoftIron will make reasonable efforts to deliver in accordance with these dates; however, SoftIron will not be liable for failure to deliver as estimated. The Hardware may be delivered by SoftIron in advance of the quoted delivery date by giving reasonable notice to the Customer. SoftIron may deliver the Hardware in separate installments.
1.9 Changes. SoftIron reserves the right (but does not assume the obligation) to make any changes in the specifications for the Hardware which are required to conform with any applicable legislation or, where the Hardware is to be supplied to the Customer’s specification, which do not materially affect its quality or performance.
2. Price and Payment
2.1. Price. The purchase price for Hardware (“Purchase Price”) will be as set forth in the applicable Sales Quotation, which is valid for a period of thirty (30) days.
2.2. Payment (a) Invoices. The invoice will state the Purchase Price for all Hardware plus any freight, Taxes (as defined below), or other applicable costs paid by SoftIron to be reimbursed by Customer. Notwithstanding the foregoing, where Customer purchases Hardware through SoftIron’s website, SoftIron may require payment in advance by a method specified on its website.
(b) Payment Date and Late Payment. SoftIron will invoice Customer on or after delivery of the Hardware to Customer. Customer will pay all invoices no later than thirty (30) days after the date of the invoice. If Customer fails to make payment in full on the due date, SoftIron may charge interest on past due amounts at the lesser of 1.5% per month and the highest rate allowed by applicable law.
2.3. Taxes. Unless otherwise stated in the applicable Sales Quotation, Purchase Prices do not include, and are net of, any governmental taxes, including but not limited to national, state, or local sales, value added and use taxes, customs duties and other governmental assessments (“Taxes”). If all or any part of any payment owed to SoftIron under these Terms is withheld, based upon a claim that such withholding is required pursuant to the tax laws of any country or its political subdivisions and/or any tax treaty between the U.S. and any such country, such payment shall be increased by the amount necessary to result in a net payment to SoftIron of the amounts otherwise payable under these Terms. Customer will be solely responsible for payment of all such Taxes and will indemnify and hold SoftIron harmless in the event of any claim related to Taxes.
2.4 Shipping. Unless otherwise stated in the applicable Sales Quotation, Purchase Prices are exclusive of delivery, packaging, packing, shipping, carriage, insurance. Where SoftIron is required to arrange shipping and/or insurance, the cost of doing so shall be added to the price.
3. Software License
3.1. Software License. Subject to these Terms, SoftIron grants to Customer a non- exclusive, non-transferable license to use the software embedded in the SoftIron Hardware (the “Software”) solely in connection with the use of the Hardware and solely for Customer’s internal evaluation and development purposes. All other rights in and to the Software are hereby reserved.
3.2. Restrictions. The Hardware, documentation and all associated intellectual property rights are owned by SoftIron or its suppliers, and are protected by law and international treaties. Customer may not copy, modify, decrypt, disassemble, reverse compile or reverse engineer any portion of the Hardware (including the embedded Software), or sell, sub-license, rent, offer on a service bureau or ASP basis, or transfer the Hardware (including the embedded Software) or any associated documentation to any third party. Customer shall not remove, adapt or otherwise tamper with any copyright notice, legend or logo which appears in or on the Software on the medium on which it resides.
3.3. Open Source Software. The Software may contain open source software components (“Open Source Components”). Such Open Source Components are not licensed under these Terms, but are instead licensed under the terms of the applicable open source license. Customer’s use of each Open Source Component is subject to the terms of each applicable license which are available to Customer on request from SoftIron and, notwithstanding any provision herein to the contrary, Customer is solely responsible for its compliance with such licenses. As used in these Terms, “Software” does not include Open Source Components.
3.4 Third-Party Software. The Hardware may contain certain third-party software components (“Third Party Software”) which are subject to certain third-party licenses. Such third party licenses are either provided to Customer at the time of sale or are provided to Customer in the form of a click wrap agreement upon deployment of the Hardware. As used in these Terms, “Software” does not include Third-Party Software.
4. Customer Data
4.1 License to Customer Data. To the extent Customer provides SoftIron with any data or information, including system-specific data (collectively, the “Customer Data”), Customer grants to SoftIron a non-exclusive, worldwide, royalty-free, perpetual, irrevocable license to (a) use, compile, distribute, display, store, process, reproduce, or create derivative works of the Customer Data solely for the purposes of providing support or other agreed-upon services to Customer; and (b) aggregate Customer Data with other data for use in an anonymous manner for SoftIron’s marketing and sales activities.
4.2 Data Transfers. Customer represents and warrants that it has obtained all rights, permissions, and consents necessary to use and transfer the Customer Data within and outside of the country in which Customer is located in connection with SoftIron’s provision of the Hardware or Customer’s use of the Software.
5. Limited Warranty
5.1. Software. SoftIron warrants to Customer only that the Software will perform in substantial accordance with its written documentation when used in accordance with the documentation and these Terms for a period of thirty (30) days from delivery of the Hardware containing the Software to Customer.
5.2. Hardware. SoftIron warrants that each hardware component of the SoftIron Hardware will, for a period of six (6) months from the date of delivery of the Hardware to Customer, be free from defects in material and workmanship under normal use.
5.3. Remedy. Customer’s exclusive remedy and the entire liability of SoftIron in the event of a breach of the warranty set forth herein is, at SoftIron’s option, to repair or replace any SoftIron Hardware (or component) or Software, as applicable, that fails during the warranty period at no cost to Customer.
5.4. Restrictions. The foregoing limited warranties extend only to the original Customer (and not to any subsequent purchasers or third parties). The foregoing limited warranties do not apply if the SoftIron Hardware or Software: (i) has been altered or serviced, except by SoftIron or a SoftIron-authorized service provider; (ii) has not been installed, operated, repaired, or maintained in accordance with SoftIron’s instructions; (iii) has been subjected to abnormal physical or electrical stress, misuse, negligence or accident; or (iv) has been damaged or rendered defective by the use of parts not manufactured or sold by SoftIron.
5.5. Time Limitation. As a condition of SoftIron’s warranty-related obligations, Customer must notify SoftIron of any warranty claim within the applicable warranty periods set forth above and comply with SoftIron’s reasonable requirements in connection with such claim, including, without limitation, obtaining an RMA from SoftIron.
6. Disclaimer of Warranty
EXCEPT FOR THE REPRESENTATIONS AND WARRANTIES EXPRESSLY GRANTED IN SECTION 5, SOFTIRON AND ITS THIRD PARTY SUPPLIERS DISCLAIM ANY AND ALL WARRANTIES, EXPRESS, IMPLIED OR OTHERWISE, WITH RESPECT TO THE SOFTIRON HARDWARE, SOFTWARE, SPECIFICATIONS, SUPPORT OR SERVICES DELIVERED HEREUNDER, INCLUDING BUT NOT LIMITED TO ANY WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON- INFRINGEMENT. NEITHER SOFTIRON NOR ITS THIRD PARTY SUPPLIERS HAVE AUTHORIZED ANYONE TO MAKE ANY REPRESENTATIONS OR WARRANTIES OTHER THAN AS EXPRESSLY PROVIDED HEREIN. THE SOFTIRON HARDWARE IS NOT FAULT- TOLERANT AND IS NOT DESIGNED OR INTENDED FOR USE IN HAZARDOUS ENVIRONMENTS REQUIRING FAIL-SAFE PERFORMANCE, INCLUDING WITHOUT LIMITATION, IN THE OPERATION OF NUCLEAR FACILITIES, AIRCRAFT NAVIGATION OR COMMUNICATION SYSTEMS, AIR TRAFFIC CONTROL, WEAPONS SYSTEMS, DIRECT LIFE-SUPPORT MACHINES OR ANY OTHER APPLICATION IN WHICH THE FAILURE OF THE SOFTIRON PRODUCTS COULD LEAD DIRECTLY TO DEATH, PERSONAL INJURY, OR SEVERE PHYSICAL OR PROPERTY DAMAGE (COLLECTIVELY, “HIGH RISK ACTIVITIES”). SOFTIRON EXPRESSLY DISCLAIMS ANY EXPRESS OR IMPLIED WARRANTY AND ANY OTHER LIABILITY FOR HIGH RISK ACTIVITIES.
7.1. Infringement Indemnity. SoftIron will, at its expense, defend any suit brought against Customer based upon a third party claim that the Hardware (including the Software embedded therein) as delivered by SoftIron directly misappropriates any trade secret or infringes a valid copyright or US patent. SoftIron will pay costs and damages finally awarded against Customer directly attributable to any such claim, but only on condition that (a) SoftIron is notified promptly in writing of such claim by Customer, (b) SoftIron has sole control of the defense and settlement negotiations, (c) Customer provides SoftIron all information and communications received by Customer concerning such claim, and (d) Customer provides reasonable assistance to SoftIron when requested, at SoftIron’s expense. If the Hardware (including any Software embedded therein) becomes, or in SoftIron’s opinion may potentially become, the subject of any such suit or action for infringement for which SoftIron has a potential obligation to defend Customer, SoftIron will have the right, at its option and expense, (i) to obtain for Customer the right to use the Hardware and/or Software, (ii) to replace or modify the Hardware and/or Software so it becomes non-infringing, or (iii) to accept return of the Hardware and/or Software in exchange or for a credit not to exceed the Purchase Price. The foregoing, subject to the following restrictions, states the exclusive liability of SoftIron to Customer concerning any claim of intellectual property infringement.
7.2. Limitations. SoftIron will have no liability for any claim of infringement based on: (a) use of a superseded or altered release of the Hardware and/or Software, (b) use of the Hardware and/or Software in combination with equipment or software not supplied or specified by SoftIron in the applicable documentation where the Hardware and/or Software would not itself be infringing, (c) use of the Hardware and/or Software in an application or environment not described in the applicable documentation, or (d) Hardware and/or Software that has been altered or modified in any way by anyone other than SoftIron.
7.3 Customer Indemnity. If SoftIron manufactures the Hardware, or applies any process to it, in accordance with a specification submitted or prepared by the Customer or any other information provided by the Customer, the Customer shall indemnify and keep indemnified SoftIron against all losses, damages, costs, claims, demands, liabilities and expenses (including without limitation consequential losses, loss of profit and loss of reputation, and all interest, penalties and legal and other professional costs and expenses) awarded against or incurred by SoftIron in connection with, or paid or agreed to be paid by SoftIron in settlement of, any claim for infringement of any third party patent, trademark or copyright or misappropriation of any trade secret which results from SoftIron’s use of the Customer’s specification or such other information. The indemnity shall apply whether or not the Customer has been negligent or at fault and does not limit any further compensation rights of SoftIron.
8.1. Obligations. Customer agrees that the Hardware, and all other technical or proprietary information disclosed to it by SoftIron, are “SoftIron Confidential Information” which is owned by SoftIron or its suppliers. Customer will (i) take all reasonable measures to maintain the confidentiality of all SoftIron Confidential Information in its possession or control, which will in no event be less than the measures it uses to maintain the confidentiality of its own information of similar importance, and (ii) not use the SoftIron Confidential Information for any purpose other than performance of its obligations under these Terms. SoftIron Confidential Information will not include information that: (a) is in or enters the public domain without breach of these Terms; (b) Customer lawfully receives from a third party without restriction on disclosure and without breach of a nondisclosure obligation; or (c) Customer develops independently, which it can prove with credible evidence.
8.2. Injunctive Relief. Customer acknowledges that the Hardware contains trade secrets of SoftIron, the disclosure of which would cause substantial harm to SoftIron that could not be remedied by the payment of damages alone. Accordingly, SoftIron will be entitled to preliminary and permanent injunctive relief and other equitable relief for any breach of this Section.
9. Liability Limitations
THE COLLECTIVE LIABILITY OF SOFTIRON AND ITS THIRD PARTY SUPPLIERS UNDER THESE TERMS AND CONDITIONS WILL BE LIMITED TO THE AMOUNT PAID FOR THE SOFTIRON HARDWARE. NEITHER SOFTIRON NOR ITS THIRD PARTY SUPPLIERS WILL HAVE ANY OBLIGATION OR LIABILITY, WHETHER ARISING IN CONTRACT (INCLUDING WARRANTY), TORT (INCLUDING ACTIVE, PASSIVE OR IMPUTED NEGLIGENCE, STRICT LIABILITY OR PRODUCT LIABILITY) OR OTHERWISE FOR ANY SPECIAL, INCIDENTAL, CONSEQUENTIAL OR INDIRECT DAMAGES, INCLUDING BUT NOT LIMITED TO LOSS OF USE, LOSS OF DATA, BUSINESS INTERRUPTION, LOSS OF REVENUE, LOSS OF BUSINESS OR OTHER FINANCIAL LOSS ARISING OUT OF OR IN CONNECTION WITH THE SOFTWARE, HARDWARE OR SERVICES FURNISHED TO CUSTOMER BY SOFTIRON, EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
10. Term and Termination
10.1 Term. The term of these Terms shall be until terminated as set forth in section 10.2 below.
10.2 Termination. SoftIron may terminate these Terms at any time if Customer is in breach of any of the material terms or conditions provided herein, and such breach remains uncured more than thirty (30) days following delivery of a written notice of breach from SoftIron to Customer.
10.3 Survival. Sections 3, 4, and 6 – 11 shall survive any expiration or termination of these Terms in accordance with their respective terms.
11. General Provisions
11.1. Assignment. These Terms will bind and inure to the benefit of each party’s permitted successors and assigns. Customer may not assign these Terms, in whole or in part, without SoftIron’s written consent, which may be withheld in SoftIron’s sole discretion. Any attempt to assign these Terms without such consent will be null and void.
11.2. Governing Law. These Terms will be governed by and construed in accordance with the laws of the State of California applicable to agreements entered into, and to be performed entirely, within California between California residents. Any suit hereunder will be brought solely in the federal or state courts in the Northern District of California and Customer hereby submits to the personal jurisdiction thereof.
11.3. Severability. If any provision of these Terms is found invalid or unenforceable, that provision will be enforced to the maximum extent permissible, and the other provisions of these Terms will remain in force.
11.4. Force Majeure. Neither party will be responsible for any failure to perform due to causes beyond its reasonable control (each a “Force Majeure”), including, but not limited to, acts of God, war, riot, embargoes, acts of civil or military authorities, denial of or delays in processing of export license applications, fire, floods, earthquakes, accidents, strikes, or fuel crises, provided that such party gives prompt written notice thereof to the other party. The time for performance will be extended for a period equal to the duration of the Force Majeure, but in no event longer than sixty (60) days.
11.5. Notices. All notices under these Terms will be deemed given when delivered personally, sent by confirmed facsimile transmission, or sent by certified or registered U.S. mail or nationally-recognized express courier, return receipt requested, to the address shown below or as may otherwise be specified by either party to the other in accordance with this section.
11.6. Independent Contractors. The parties to these Terms are independent contractors. There is no relationship of partnership, joint venture, employment, franchise, or agency between the parties. Neither party will have the power to bind the other or incur obligations on the other’s behalf without the other’s prior written consent.
11.7. Waiver. No failure of either party to exercise or enforce any of its rights under these Terms will act as a waiver of such rights.
11.8. U.S. Government Restricted Rights. If the Hardware is licensed for use by the United States or for use in the performance of a United States government prime contract or subcontract, Customer agrees that the Hardware is delivered as: a) “commercial computer software” as defined in DFARS 252.227-7013, Rights in Technical Data – Noncommercial Items (Oct 1988), DFARS 252.227-7014 Rights in Noncommercial Computer Software and Noncommercial Computer Software Documentation (Jun 1995), and DFARS 252.211-7015 Technical Data Commercial Items (May 1991); b) as a “commercial item” as defined in FAR 2.101; or c) as “restricted computer software” as defined in FAR 52.227-19, Commercial Computer Software— Restricted Rights (Jun 1987); whichever is applicable. The use, duplication, and disclosure of the Product by the Department of Defense shall be subject to the terms and conditions set forth in these Terms as provided in DFARS 227.7202 (Oct 1998). All other use, duplication and disclosure of the Software and related documentation by the United States shall be subject to the terms and conditions set forth in these Terms and the restrictions contained in subsection (c) of FAR 52.227-19, Commercial Computer Software—Restricted Rights (Jun 1987), or FAR 52.227-14, Rights in Data — General Alternative III (Jun 1987).
11.9 Export. Customer acknowledges that the laws and regulations of the United States of America and foreign jurisdictions may restrict the export and re-export of certain commodities and technical data of United States of America origin, including the Hardware (including the embedded Software). Customer agrees that it will not export or re-export the Hardware without the appropriate United States or foreign government licenses or permits.
11.10. Entire Terms and Conditions. These Terms are the complete and exclusive agreement between the parties with respect to the subject matter hereof, superseding and replacing any and all prior agreements, communications, and understandings (both written and oral) regarding such subject matter. Customer further agrees that all other preprinted terms and conditions (including but not limited to any terms and conditions of any Purchase Order or other document issued by Customer in connection with an order or purchase) are expressly excluded from these Terms and are rejected by SoftIron and are of no force or effect, unless otherwise expressly agreed by an instrument in writing signed by SoftIron. These Terms may only be modified, or any rights under it waived, by a written document executed by both parties.