CLOUDIAN TERMS AND CONDITIONS OF SALE
These Cloudian Terms and Conditions of Sale (these “Terms”) constitute the terms and conditions that apply to products sold, licensed or otherwise provided by Cloudian, Inc. or any of its affiliates (“Cloudian”) directly to each customer acquiring such products for its own use (“Customer”).
1.1 All products sold, licensed or otherwise provided by Cloudian to Customer (collectively, “Products”) will be governed solely by and subject to these Terms. Any offers by Cloudian to provide Products to Customer are expressly limited to these Terms. By ordering, accepting delivery of, paying for or using any Products, Customer indicates that it agrees to these Terms. If any order for Product from Customer or other document submitted by Customer is deemed to be an offer by Customer, Cloudian’s acceptance of such offer is expressly conditional on Customer’s assent to these Terms, to the exclusion of all other terms and conditions. To the extent that these Terms constitute an offer or counteroffer by Cloudian, Customer’s acceptance of such offer or counteroffer is expressly limited to these Terms.
1.2 These Terms will supersede the terms and conditions in any purchase order or other document submitted by Customer; nothing contained in any such document will in any way modify or add to these Terms; and any terms or conditions contained in any such document that are in any way additional to, or conflicting or otherwise inconsistent with, these Terms (collectively, “Inconsistent Customer Terms”) are hereby rejected by Cloudian and will not be binding in any way on Cloudian. Customer is hereby notified of Cloudian’s objection to all Inconsistent Customer Terms. Cloudian’s failure to object to any Inconsistent Customer Terms will not be deemed an acceptance thereof or a waiver of these Terms.
1.3 With respect to each Product, the term “Cloudian Delivery/Payment Document” means the written order acknowledgement provided by Cloudian to Customer for such Product, or if there is no such acknowledgement, the most recent quotation for such Product provided by Cloudian to Customer.
2. DELIVERY; TITLE; SECURITY INTEREST 2.1 Delivery
(a) Software. Delivery of any Product that is a software-only product with no hardware (“Cloudian Software Product”) to Customer will be deemed to occur when such Cloudian Software Product is made available by Cloudian for download by Customer and Cloudian makes the applicable license key available to Customer.
(b) Appliances. If a trade term is specified on the applicable Cloudian Delivery/Payment Document for any Product that is an appliance product (“Cloudian Appliance Products”), such trade term will apply to the delivery of such Product. Subject to the foregoing, unless otherwise agreed by Cloudian in writing on a case-by-case basis, Cloudian will ship each Cloudian Appliance Product to Customer at the “Ship To” location agreed to by Cloudian, and:
(i) if the “Ship To” location is outside of the United States, loss or damage that occurs during shipping by a carrier selected by Cloudian will be Cloudian’s responsibility, and loss or damage that occurs during shipping by a carrier selected by Customer will be Customer’s responsibility; or
(ii) if the “Ship To” location is outside of the United States, the trade term will be DAP (Incoterms 2010).
Title to Cloudian Appliance Products will pass to Customer upon shipment. Acceptance by Customer of Products will occur upon delivery.
(c) Other delivery terms. Any shipping or delivery dates provided by Cloudian are estimates only, and Cloudian will have no liability if any Products ordered by Customer are not shipped or delivered on or before such dates. All Cloudian Appliance Products will be packaged in the manner determined by Cloudian, unless otherwise requested by Customer and agreed to in writing by Cloudian. Customer may not cancel, push-out, or reschedule any order for Products placed with Cloudian, except with Cloudian’s written consent.
2.2 Security interest. Cloudian hereby reserves a purchase money security interest in the Cloudian Appliance Products and the proceeds thereof, in the amount of the purchase price. In the event of default by Customer of any of its obligations to Cloudian, Cloudian has the right to repossess the Cloudian Appliance Products without liability to Customer. These security interests will be satisfied by payment in full. A copy of the invoice may be filed with appropriate authorities at any time as a financing statement and/or chattel mortgage, in order to perfect Cloudian’s security interests. On the request of Cloudian, Customer will execute financial statements and other instruments Cloudian requires to perfect its security interests.
3. CLOUDIAN EULA
Customer will comply with the terms and conditions of the Cloudian Hyperstore End User License Agreement located at www.cloudian.com/company/disclosures.php (“Cloudian EULA”), which are hereby incorporated by reference. Except as expressly set forth in the Cloudian EULA, Cloudian does not grant (whether by implication, estoppel, or otherwise) to Customer or any third parties any licenses or other rights in or to any Cloudian Software Products or any software pre-installed on, or otherwise provided to Customer for use with, any Cloudian Appliance Products.
4. PRICES; PAYMENT; TAXES
4.1 Amounts. For each Product, Customer will pay Cloudian the prices, fees and other amounts set forth in the Cloudian Delivery/Payment Document for such Product, or if there is no such Cloudian Document, on Cloudian’s then-current applicable price list. All such amounts are non- refundable.
4.2 Payment terms. Customer will pay all amounts in the currency specified in the applicable Cloudian invoices, or in U.S. dollars if no currency is so specified, without set-off and in immediately available funds. Subject to credit approval by Cloudian, and except as otherwise specified in any applicable Cloudian Delivery/Payment Document or otherwise agreed to by Cloudian in writing, all amounts are due and payable in full thirty (30) days from the date of Cloudian’s invoice; provided, however, that Cloudian may change such payment terms (including by requiring payment in advance) or delay or cancel Product orders based on Customer’s payment history or financial condition. If Customer makes any payment that is less than the invoiced amount, Cloudian may accept such payment, and such acceptance will not (i) be deemed as acceptance of payment in full or an accord or satisfaction or (ii) otherwise prejudice Cloudian’s right to recover the balance of the invoiced amount, even if there is a restrictive endorsement or statement on or accompanying such payment (such endorsement or statement will have no force or effect). Cloudian may apply any payment received from Customer, and any amount payable by Cloudian to Customer, to any amounts payable by Customer under any account.
4.3 Late payments. Any amount payable by Customer that remains unpaid after the due date will accrue interest at the rate of one and one-half percent (1.5%) per month or the maximum rate allowable by law, whichever is lower, from the due date until such amount is paid. Customer will reimburse Cloudian for reasonable attorneys’ fees and any other costs associated with collecting delinquent payments. If Customer fails to make timely payment or if its financial condition becomes impaired or unsatisfactory to Cloudian, then in addition to all other available remedies, Cloudian may require Customer to provide satisfactory security and may withhold further deliveries until such security is received.
4.4 Taxes. Except to the extent agreed upon in writing by Cloudian, the prices, fees and other amounts quoted by Cloudian or payable by Customer for Products do not include any taxes (including any sales, use, value-added or excise taxes), duties, levies or other similar fees or charges, (collectively, “Taxes”). Customer will pay all Taxes (other than taxes imposed or based on Cloudian’s net income) applicable to Cloudian’s provision of Products to Customer, Customer’s use or other exploitation of such Products, or any payments for Products made by Customer, except to the extent that Customer provides Cloudian with proper tax exemption certificates prior to shipment of the applicable Products. All amounts payable hereunder by Customer will be paid without deduction or withholding for or on account of any Taxes. If Customer is required by law to deduct or withhold any Taxes from or in respect of any amount payable hereunder to Cloudian, Customer will pay the relevant taxation authority the minimum amount necessary to comply with the applicable law, and the amounts payable hereunder will be increased as may be necessary so that after Customer makes all required deductions or withholdings, Cloudian will receive an amount equal to the amount it would have received had no such deductions or withholdings been made.
4.5 Nondisclosure of prices and fees. The structure and amounts of the prices, fees and other amounts payable by Customer for Products are the confidential information of Cloudian, and Customer will not, and will have no right to, disclose any of the foregoing to any third parties.
EXCEPT FOR THE EXPRESS WARRANTIES PROVIDED IN THE CLOUDIAN EULA, IF ANY, TO THE EXTENT PERMITTED UNDER APPLICABLE LAW, CLOUDIAN DOES NOT MAKE, AND CLOUDIAN HEREBY DISCLAIMS, ANY REPRESENTATIONS OR WARRANTIES (WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE) WITH RESPECT TO ANY PRODUCT (OR ANY SOFTWARE, DOCUMENTATION OR OTHER MATERIALS PROVIDED THEREWITH), INCLUDING ANY WARRANTIES OF FITNESS FOR A PARTICULAR PURPOSE, MERCHANTABILITY, ACCURACY OR NONINFRINGEMENT, AND ANY WARRANTIES ARISING FROM A COURSE OF DEALING, COURSE OF PERFORMANCE OR USAGE OF TRADE. Without limitation of the foregoing, Cloudian does not represent or warrant that any Product (or any software, documentation or other materials provided therewith) will meet the requirements of Customer (even if such requirements are known to Cloudian) or will operate without interruption or be error free, or that any defects in any Product (or any software, documentation or other materials provided therewith) can be corrected. For purposes of clarification, Cloudian makes no representations or warranties to any of customers of Customer or other third parties.
6. LIMITATION OF LIABILITY
IN NO EVENT WILL CLOUDIAN BE LIABLE UNDER ANY LEGAL THEORY FOR ANY INCIDENTAL, INDIRECT, CONSEQUENTIAL, SPECIAL, EXEMPLARY OR PUNITIVE DAMAGES, OR DAMAGES FOR LOSS OF PROFITS, DATA OR BUSINESS, IN CONNECTION WITH THESE TERMS, EVEN IF CLOUDIAN HAS BEEN ADVISED OF THE POSSIBILITY OF
SUCH DAMAGES. CLOUDIAN’S AGGREGATE LIABILITY TO CUSTOMER ARISING OUT OF OR IN CONNECTION WITH ANY PRODUCTS (OR ANY SOFTWARE, DOCUMENTATION OR OTHER MATERIALS PROVIDED THEREWITH) AND ALL OTHER ASPECTS OF THESE TERMS WILL BE LIMITED TO PROVEN DIRECT DAMAGES IN AN AMOUNT NOT TO EXCEED THE AMOUNTS ACTUALLY PAID BY CUSTOMER TO CLOUDIAN FOR THE ACQUISITION OF THE APPLICABLE PRODUCTS. CLOUDIAN WILL HAVE NO LIABILITY WITH RESPECT TO CLAIMS RELATING TO OR ARISING FROM THE USE OF THIRD PARTY SOFTWARE OR HARDWARE OR ANY OTHER NON-CLOUDIAN PRODUCTS AND SERVICES, EVEN IF CLOUDIAN HAS RECOMMENDED, REFERRED OR INTRODUCED CUSTOMER TO SUCH PRODUCTS AND SERVICES. THE FOREGOING LIMITATIONS WILL APPLY NOTWITHSTANDING ANY FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY PROVIDED HEREIN. CLOUDIAN WILL HAVE NO LIABILITY IN CONNECTION WITH THIS AGREEMENT TO ANY CUSTOMERS OF CUSTOMER OR OTHER THIRD PARTIES. As part of its obligation to mitigate damages, Customer will take reasonable data back-up measures from time to time as requested by Cloudian or specified in any Documentation, manuals, release notes or support notes.
7. NOT FOR RESALE
You agree to comply with all applicable laws and regulations of the various states and of the United States. You agree and represent that you are acquiring Products for your own internal use only, and not for resale or export.
8. GENERAL PROVISIONS
8.1 Promotional consideration. Cloudian will have the right to use Customer’s name and logo to identify Customer as a user of Products on Cloudian’s websites and promotional materials until Customer expressly objects in writing.
8.2 Force Majeure. Neither party will be responsible or have any liability for any delay or failure to perform any of its obligations under this Agreement (excluding payment obligations) to the extent such failure is due to unforeseen circumstances or to causes beyond such party’s reasonable control, including acts of God, earthquake, fire, flood, embargoes, labor disputes and strikes, riots, acts of terrorism, war, and acts of civil and military authorities.
8.3 Severability. If any provision of this Agreement is declared or found by a court or arbitral panel of competent jurisdiction to be invalid, illegal or otherwise unenforceable, (a) the parties will negotiate, in good faith, a substitute, valid and enforceable provision which most nearly effects the parties’ intent in entering into this Agreement, and (b) the remainder of this Agreement will remain in full force and effect.
8.4 Assignment. Neither party may assign, delegate or otherwise transfer this Agreement or any of its rights or obligations under this Agreement, whether voluntarily, by operation of law or otherwise, without the prior written consent of the other party; provided, however, that either party may, with written notice to the other party (but without any requirement to obtain the other party’s consent), assign this Agreement, together with all of its rights and obligations hereunder, to a third party that acquires (whether by asset purchase, merger or other transaction or series of transactions) all or substantially all of its business to which this Agreement relates. Any attempted assignment, delegation or other transfer prohibited by the foregoing will be null and void. Subject to the foregoing, this Agreement will inure to the benefit of and bind each party’s successors and assigns.
8.5 Governing Law. These Terms are to be construed in accordance with and governed by the laws of the State of California without giving effect to any choice of law rule that would cause the application of the laws of any other jurisdiction. These Terms will not be governed by the U.N. Convention on Contracts for the International Sale of Goods, the application of which is expressly excluded.
8.6 Dispute Resolution. Any dispute relating to this Agreement (other than claims for injunctions and other equitable relief) will be settled exclusively by arbitration in San Mateo, California in accordance with the then-prevailing Commercial Arbitration Rules of the American Arbitration Association. Judgment upon the award rendered by such arbitration will be final and binding upon the parties and may be entered in any court having jurisdiction. The arbitrator(s) will not have the power to add to, subtract from or otherwise modify any provision of this Agreement, to grant any extension or renewal of this Agreement, or to award damages or other remedies expressly prohibited by the Agreement. Notwithstanding the foregoing, each party will have the right to seek injunctive or other equitable relief at any time from any court of competent jurisdiction.
8.7 No Waiver. No waiver of any provision of this Agreement will be effective unless it is specified in a writing signed by an authorized representative of each party. No course of dealing, course of performance or failure of either party to enforce any provision of this Agreement in a strict or timely manner will be construed as a waiver of such provision or any other provision. No waiver or breach of any provision of this Agreement will be construed to be a waiver of any subsequent breach of the same or any other provision.
8.8 Relationship of the Parties. This Agreement will not be construed as creating an agency, partnership, joint venture or any other form of association between the parties, and the parties will at all times be and remain independent contractors. Except as expressly agreed by the parties in writing, neither party will have any right or authority, express or implied, to assume or create any obligation of any kind, or to make any representation or warranty, on behalf of the other party or to bind the other party in any respect whatsoever.
8.9 Interpretation. The captions and headings used in this Agreement are inserted for convenience only, do not form a part of this Agreement and will not be used in any way to construe or interpret this Agreement. This Agreement may be executed in two or more counterparts, all of which, taken together, will be regarded as one and the same instrument. This Agreement will be deemed to have been drafted by all parties; no provision will be construed against either party by reason of the fact that it was drafted by such party. The words “include” and “including” will not be construed as terms of limitation and will therefore mean “including but not limited to” and “including without limitation.”
8.10 Entire Agreement; Amendment. These Terms contain the entire agreement of the parties with respect to the subject matter hereof and merge and supersede any and all prior and contemporaneous agreements, understandings and communications between the parties, whether oral or written, with respect to such subject matter. These Terms cannot be modified or amended except in a writing signed by both parties.