VCE Resale Terms and Conditions

VCE PRODUCT RESALE SUPPLEMENTAL TERMS AND CONDITIONS

PLEASE READ THESE TERMS VERY CAREFULLY.

YOU (“CUSTOMER”) UNDERSTAND AND AGREE THAT THE PURCHASE AND ACCEPTANCE OF ANY VCE PRODUCT RESOLD BY AN ATOS ENTITY [E.G., ATOS IT SOLUTIONS AND SERVICES, INC. IN THE UNITED STATES, ATOS INC. IN CANADA, OR ONE OF THEIR AFFILIATES IN THE REST OF THE WORLD] (EACH “ATOS”) IS SUBJECT TO THESE VCE PRODUCT RESALE SUPPLEMENTAL TERMS AND CONDITIONS (“VCE SUPPLEMENT”).  THIS VCE SUPPLEMENT SHALL AMEND, PREVAIL OVER AND SUPERSEDE ANY CONFLICTING TERMS IN THE UNDERLYING AGREEMENT PURSUANT TO WHICH THE VCE PRODUCT IS ORDERED AND RESOLD TO YOU (“AGREEMENT”).

FOR THE AVOIDANCE OF DOUBT, YOU UNDERSTAND AND AGREE THAT BY ACCEPTING DELIVERY OF ANY VCE PRODUCT OR REMITTING PAYMENT FOR ANY SUCH VCE PRODUCT, YOU ARE AGREEING TO AMEND THE TERMS OF THE AGREEMENT TO INCORPORATE THE VCE SUPPLEMENT.  THE VCE SUPPLEMENT MAY NOT BE ADDED TO, MODIFIED, SUPERCEDED OR OTHERWISE ALTERED, EXCEPT BY A WRITTEN INSTRUMENT SIGNED BY AN AUTHORIZED EXECUTIVE OF ATOS.

THE VCE SUPPLEMENT INCLUDES, FOR THE AVOIDANCE OF DOUBT, EXHIBITS 1, 1A, 1B, 1B(I), 1B(II) AND 1C AND ANY TERMS REFERENCED THEREIN.  YOU MAY ALSO BE REFERRED TO AS “END CUSTOMER”, “END USER”, “LICENSEE” AND/OR USING SIMILAR TERMS, AS APPLICABLE, BELOW.

EXHIBIT 1
END CUSTOMER SUPPORT AND SERVICES TERMS

The following third-party manufacturer terms apply to the third party components of the Products:

1. Cisco Products. Activities as they relate to the Cisco products included in the Product shall be conducted pursuant to the terms set forth on Exhibit 1A.  The follow terms shall also apply:

1.1 Cisco Service Descriptions. The Cisco Service Descriptions and additional End User obligations are located at www.cisco.com/go/servicedescriptions/.

1.2 Cisco End User License Terms. Cisco branded products and documentation are provided to the End User subject to the then-current Cisco end user license terms.  A current copy of the Cisco End User license terms is available at: www.cisco.com/univercd/cc/td/doc/es_inpck/cetrans.htm.

1.3 Cisco Limited Warranty. The only warranty provided with respect to any Cisco Product is the written limited warranty statement provided with that Product or, if no warranty statement is provided with a Product, the Limited Warranty Statement available at the following URL:  www.cisco.com/en/US/products/prod_warranties_listing.html.

1.4 Disclaimer. Except as specified in the Limited Warranty statement specified in Section 1.3 above, all express or implied conditions, representations or warranties, including, without limitation, any implied warranty or condition of merchantability, fitness for a particular purpose (even if known to VCE or Suppliers), non-infringement, satisfactory quality or arising from a course of dealing, law, usage or trade practice are hereby excluded to the greatest extent allowed by applicable law. To the extent an implied warranty cannot be excluded, such warranty is limited to the 90-days. This disclaimer and exclusion shall apply even if the express warranty set forth above fails its essential purpose.

2. EMC Products. The following terms shall also apply with respect to EMC Products:

2.1 EMC End User License Terms. EMC branded products are provided to the End User subject to the then-current EMC Software License and Maintenance Agreement (the "EMC EULA"). The current version of the EMC EULA is attached as Exhibit 1B(i).

2.2 EMC Product Maintenance. Any Product Maintenance performed by EMC as a subcontractor to VCE in connection with this Agreement, or by VCE or its suppliers in connection with EMC products, is subject to the then current EMC Support Terms Agreement (the "EMC Support Services Agreement"). The current version is attached hereto as Exhibit 1B(ii).

2.3 EMC Limited Warranty.    The only warranties provided with respect to any EMC Product are described on the EMC EULA.

3. VMware Products
3.1 VMware end user agreement terms.  VMware branded products are provided to the End User subject to the then-current VMware Software License and Maintenance Agreement (the "VMware EULA") appropriate to the VMware product ordered as specified on a bill of material and accessible at http://www.vmware.com/download/eula.
3.2 VMware Service Descriptions. The VMware Service Descriptions and additional End User obligations are located at http://www.vmware.com/support.

EXHIBIT 1A
CISCO TERMS AND CONDITIONS

The following minimum terms and conditions shall apply to any Cisco Products sold under the Statement of Work:

1) The license and use by End User of any Cisco software Products is subject to Cisco's End User Software License Agreement.

2) No titles to any of the intellectual property or proprietary rights in any Products or Documentation is transferred to End User.

3) End User will not translate, reverse compile or disassemble the Software. End User shall comply with VCE’s standard Software License Agreement regarding the license and use of any VCE software Products.

4) End User will not remove, alter or destroy any copyright notice, proprietary markings or confidential legends placed upon or contained within the Product or Documentation.

5) End User will keep Cisco proprietary information that is provided with the Product Confidential, as such information is marked as confidential when supplied with the Product.

6) Use of Cisco marks in distribution, advertising and/or promotion of the Products will be in accordance with policies regarding advertising and trademark usage as established from time to time by Cisco and provided on Cisco's web-site for use of its marks.  End User agrees to cooperate with Cisco and Atos in facilitating Cisco's monitoring and control of the use of any mark and the nature and quality of products and services supplied in connection with the marks.  End User further agrees not to affix any Cisco marks to any products.

7) Cisco makes no warranty to End User of any kind with respect to any Product or Services, express or implied, including, without limitation, the implied warranties of merchantability, fitness for a particular purpose (even if that purpose is known to Cisco) and non­ infringement of third  party rights.  Cisco will not be liable to End User or its customers for special, indirect, consequential, or punitive damages.

8) Cisco shall not be liable to End User with respect to any claim asserted by End User relating to the use or performance of any Product or the delivery of any Service.  Except for the written limited warranty Cisco provides with a particular STI Product, End User may not make or pass on, and shall take all measures necessary to ensure that neither it nor any of its agents or employees shall make or pass on, any warranty or representation relating to that Product on behalf of Cisco to any customer, end user, or third party.  Cisco shall have no obligation to furnish any assistance, information or documentation to End User with respect to any Product or Service.

9) End User will not make any proposals or agreements with foreign governments which involve any Products, Service or related documentation.

10) Cisco shall be entitled to act as a third party beneficiary, with respect to the enforcement of the terms and conditions set forth in this Exhibit 1B with respect to the Products and Services sold hereunder.

11) End User will comply with all laws, all licenses, permits and approvals required by any government or authority, including any recycling or take-back programs applicable to packaging, resale or use of Products, and shall comply with all applicable laws, rules, policies and procedures including without limitation the US Foreign Corrupt Practices Act, requirements applicable to the use of SI Products under telecommunications and other laws and regulations (collectively "Applicable Laws").  End User will indemnify and hold harmless Cisco for any violation of any Applicable Laws.

12) End User acknowledges that the Products and technology or direct products thereof ("Products and Technology") it may purchase and resell under this Agreement are subject to export controls under the laws and regulations of the Territory and the United States (U.S.).  End User shall comply with such laws and regulations governing use, export, re-export, and transfer of Cisco Products and Technology and will obtain all required U.S. and local authorizations, permits, or licenses.  End User agrees to provide Atos and/or Cisco with such information and assistance as may reasonably be required in connection with securing such authorizations and licenses, and to take timely action to obtain all required support documentation.  End User agrees to maintain full, true, and accurate records of exports, re­ exports, and transfers of the Products and Technology, purchased and deployed or distributed, according to U.S. and local laws for at least five (5) years following the date of any such export, re-export, or transfer.  End User acknowledges that detailed information regarding compliance with U.S. use, export, re-export, and transfer laws may be found at the following URL:  End User's obligations under this clause shall survive the expiration or termination of the agreement.

EXHIBIT 1B(i)
EMC SOFTWARE LICENSE AND MAINTENANCE AGREEMENT

EMC Software contains computer programs and other proprietary material and information, the use of which is subject to and expressly  conditioned upon acceptance of this Software License and Maintenance Agreement  (for purposes of this Exhibit "1B(i)", the "Agreement").

 

This EMC SOFTWARE  LICENSE AND MAINTENANCE Agreement is a legally binding document between you (meaning the individual person or the entity that the individual represents that has obtained the Software for its internal productive use and not for outright resale) {the "Customer'') and EMC (which means (i) EMC Corporation, if Customer is located in the United States; (ii) the local EMC sales subsidiary, if Customer is located in a country in which EMC Corporation has a local sales subsidiary; and (iii) EMC Information Systems International ("EIS!"), if Customer is located outside the United States and in a country in which  EMC Corporation does  not have a  local sales  subsidiary).  Unless EMC agrees otherwise in writing, this Agreement governs Customer's use of the Software except to the extent all or any portion of the Software is: (a) the subject of a separate written agreement; or (b) governed   by  a  third  party  licensor's  terms   and  conditions.   Capitalized terms have the meaning stated in the Agreement.

 

If Customer does not have a currently enforceable, written and separately signed software license agreement directly with EMC or the Distributor from whom Customer obtained this Software, then by clicking on the "Agree" or "Accept" or similar button at the end of this Agreement as  part  of  the  installation  process,  or  proceeding  with  the  installation, downloading, use or reproduction of this Software, or authorizing any other person to do so, you  are  representing  to  EMC  that  you  are  (i) authorized  to  bind  the  Customer;  and (ii) agreeing on behalf of the Customer that the terms of this Agreement shall govern the relationship of the parties with regard to the subject matter in this Agreement and are waiving any rights, to the maximum extent permitted by applicable Jaw, to any claim anywhere in the world concerning the enforceability or validity of this Agreement.

 

If Customer has a currently enforceable, written and separately signed software license agreement directly with EMC or the Distributor from whom Customer obtained this Software, then by clicking on the "Agree" or "Accept" or similar button at the end of this Agreement as part of the installation process , or proceeding with the installation, downloading, use or reproduction of this Software, or authorizing any other person to do so, you are representing that you are (i) authorized to bind the Customer; and (ii) agreeing on behalf of the Customer that the terms of such written, signed agreement shall replace and supersede the terms of this Agreement and shall govern the relationship of the parties with regard to this Software, and are waiving any rights, to the maximum extent permitted by applicable law, to any claim anywhere in the world concerning the enforceability  or validity of such written signed agreement.

 

1. DEFINITIONS.

A. "Affiliate" means a legal entity that is controlled by, controls, or is under common "control" of EMC or Customer. "Control" means more than 50% of the voting power or ownership interests.

B. "Confidential Information" means and includes the terms of this Agreement,  Software, and Support Tools and all confidential and proprietary information of EMC or Customer, including without limitation, all business plans, product plans, financial information, software, designs, and technical, business and financial data of any nature whatsoever, provided that such  information  is marked  or designated  in writing  as  "confidential,"  "proprietary,"  or another similar term or designation.  Confidential Information does not include information that is (i) rightfully in the receiving party's possession without obligation of  confidentiality prior to receipt from the disclosing  party, (ii) a matter of public knowledge through  no fault  of the receiving party, (iii) rightfully furnished to the receiving party by a third party without restriction on disclosure or use; or (iv) independently developed by the  receiving  party without use of or reference to the disclosing party's Confidential Information.

C. "Distributor" means a reseller, distributor, system integrator, service provider, independent software vendor, value-added reseller, OEM or other partner that is authorized by EMC to license Software to end users. The term shall also refer to any third party duly authorized by a Distributor to license Software to end users.

D. "Documentation" means the then-current, generally available, written user manuals and online help and guides for Software provided by EMC.

E. "Product Notice" means the notice by which EMC informs Customer of product-specific use rights and restrictions, warranty periods, warranty upgrades and maintenance (support) terms. Product Notices may be delivered in an EMC quote, otherwise in writing and/or a posting on the applicable EMC website, currently located at http://www.emc.com/products/warranty_maintenance/index.jsp. The terms of the Product Notice in effect as of the date of the EMC quote shall be deemed incorporated into and made a part of the relevant Customer purchase order.  Each Product Notice is dated and is archived when it is superseded by a newer version. EMC shall not change any Product Notice retroactively with regard to any Software or Support Services listed on an EMC quote issued prior to the date of the applicable Product Notice. At Customer's request, EMC shall without undue delay provide Customer with a copy of the applicable Product Notice and/or attach it to the relevant EMC quote.

F. "Software" means the EMC software product which requires acceptance of this Agreement, and any copies made by or on behalf of Customer, Software Releases, and all Documentation for the foregoing.

G. "Software Release" means any subsequent version of Software provided by EMC after initial delivery of Software but does not mean a new item of Software.

H. "Support Services" means the annual service available from EMC or its designee which provides Software Releases and support services for Software as set forth in the Product Notice.

I. "Support Tools" means any hardware, software and other tools and/or  utilities used by EMC to perform diagnostic or remedial activities in connection with Software including any software or other tools made available by EMC to Customer to enable Customer to perform various self-maintenance  activities.

 

2. DELIVERY AND INSTALLATION.

A. Delivery. Title and risk of loss to the physical media, if any, which has been sold to Customer and contains Software shall transfer to Customer upon EMC's delivery to a carrier at EMC's designated point of shipment ("Delivery"). Unless otherwise agreed, a common carrier shall be specified by EMC. Software may be provided by (i) Delivery of physical media; or (ii) electronic means (where available from EMC). If the physical media containing Software has not been sold (for example - a lease or rental transaction), then risk of loss thereto transfers at Delivery, but title does not.

B. Installation and Acceptance. EMC's obligation, if any, to install Software as part of the Software's licensing fee, is set forth in the Product Notice. Acceptance that Software operates in substantial conformity to the Software's Documentation occurs upon Delivery or electronic availability, as applicable. Notwithstanding such acceptance, Customer retains all rights and remedies set forth in Section 4 (WARRANTY AND DISCLAIMER) below.

 

3. LICENSE TERMS.

A. General License Grant. Subject to Customer's compliance with this Agreement, the Product Notice, and payment of all license fees, EMC grants to Customer a nonexclusive and non-transferable (except as otherwise  permitted herein) license (with no right to sublicense) to use (i) Software for Customer's internal business purposes; and (ii) the Documentation related to Software for the purpose of supporting Customer's use of Software. Licenses granted to Customer shall, unless otherwise indicated on the Product Notice or quote from EMC or Distributor) be perpetual and commence on Delivery of the physical media or the date Customer is notified of electronic availability, as applicable. Documentation is licensed solely for purposes of supporting Customer's use of Software as permitted in this Section. To the extent applicable to Software, Customer may be required to follow EMC's then current product registration process, if any, to obtain and input an authorization key or license file.

B. Licensing Models. Software is licensed for use only in accordance with the commercial terms and restrictions of the Software's relevant licensing model, which are stated in the Product Notice and/or quote from EMC or Distributor. For example, the licensing model may provide that  Software  is licensed for  use solely  (i) for a certain  number of licensing  units;

(ii) on  or  in  connection  with  certain  hardware,  or  a  CPU,  network  or  other  hardware environment; and/or (iii) for a specified amount of storage capacity. Microcode, firmware or operating system software required to enable the hardware with which it is shipped to perform its basic functions, is licensed for use solely on such hardware.

C. License Restrictions. All Software licenses granted herein are for use of object code only. Customer is permitted to copy Software as necessary to install and run it in accordance with the license, but otherwise for back-up purposes only. Customer may copy Documentation insofar as reasonably necessary in connection with Customer's authorized internal use of Software. Customer shall not, without EMC's prior written consent (i) use Software in a service bureau, application service provider or similar capacity; or (ii) disclose to any third party the results of any comparative or competitive analyses, benchmark testing or analyses of Software performed by or on behalf of Customer; (iii) make available Software in any form to anyone other than Customer's employees or contractors; or (iv) transfer Software to an Affiliate or a third party.

D. Software Releases. Software Releases shall be subject to the license terms applicable to Software.

E. Audit Rights. EMC (including its independent auditors) shall have the right to audit Customer's usage of Software to confirm compliance with the agreed terms. Such audit is subject to reasonable advance notice by EMC and shall not unreasonably interfere with Customer's business activities. Customer will provide EMC with the support required to perform such audit and will, without prejudice to other rights of EMC, address any non­ compliant situations identified by the audit by forthwith procuring additional licenses.

F. Termination. EMC may terminate licenses for cause, if Customer breaches the terms governing use of Software and fails to cure within thirty (30) days after receipt of EMC's written notice thereof. Upon termination of a license, Customer shall cease all use and return or certify destruction of the applicable Software (including copies) to EMC.

G. Reserved Rights. All rights not expressly granted to Customer are reserved. In particular, no title to, or ownership of, the Software is transferred to Customer. Customer shall reproduce and include copyright and other proprietary notices on and in any copies of the Software. Unless expressly permitted by applicable mandatory law, Customer shall not modify, enhance, supplement, create derivative works from, reverse assemble, reverse engineer, decompile or otherwise reduce to human readable form the  Software  without EMC's prior written consent, nor shall Customer permit any third party to do the same.

 

4. WARRANTY AND DISCLAIMER.

A. Software Warranty. EMC warrants that Software will substantially conform to the applicable Documentation for such Software and that any physical media provided by EMC will be free from manufacturing defects in materials and workmanship until the expiration of the warranty period. EMC does not warrant that the operation of Software shall be uninterrupted or error free, that all defects can be corrected, or that Software meets Customer's requirements, except if expressly warranted by EMC in its quote. Support Services from EMC for Software are available for separate purchase and the Support Options are identified at the Product Notice.

B. Warranty Duration. Unless otherwise stated on the EMC quote, the warranty period for Software shall (i) be as set forth at the Product Notice; and (ii) commence upon Delivery of the media or the date Customer is notified of electronic availability, as applicable.

C. Customer Remedies.   EMC's entire liability and Customer's exclusive remedies under the warranties described in this section shall be for EMC, at its option, to remedy the non­compliance or to replace the affected Software. If EMC is unable to effect such within a reasonable time, then EMC shall refund the amount received by EMC for the Software concerned. All replaced Software contained on physical media supplied by EMC shall be returned to and become the property of EMC. EMC shall have no liability hereunder after expiration of the applicable warranty period. The foregoing shall not void any supplementary remedies made available to Customer by a Distributor, with respect to which EMC shall have no liability or obligation.

D. Warranty Exclusions. Warranty does not cover problems that arise from (i) accident  or neglect by Customer or any third party; (ii) any third party items  or services with  which Software is used or other causes beyond EMC's control; (iii) installation, operation or use not in accordance with EMC's instructions or the applicable Documentation; (iv) use in an environment,  in  a  manner  or  for  a  purpose  for  which  Software  was  not  designed;  or (v) modification,  alteration or repair by anyone other than EMC or its authorized representatives;. EMC has no obligation whatsoever for Software installed or used beyond the licensed use, or whose original identification marks have been altered or removed. Removal or disablement of remote support capabilities during the warranty period requires reasonable notice to EMC. Such removal or disablement, or improper use or failure to use applicable Customer Support Tools shall be subject to a surcharge in accordance with EMC's then current standard rates.

E. No Further Warranties. Except for the warranty set forth herein, and to the maximum extent permitted by law, EMC (INCLUDING ITS SUPPLIERS) MAKES NO OTHER EXPRESS OR IMPLIED WARRANTIES, WRITTEN OR ORAL. INSOFAR AS PERMITTED UNDER APPLICABLE LAW, ALL OTHER WARRANTIES ARE SPECIFICALLY EXCLUDED, INCLUDING WARRANTIES ARISING BY STATUTE, COURSE  OF DEALING  OR  USAGE OF TRADE.

 

5. SUPPORT SERVICES.

A. Support Services. If Customer has purchased Support Services for Software (or its related hardware, if any) directly from EMC, such shall be delivered by EMC as specified in the applicable Product Notice. If Customer has purchased maintenance and support from a Distributor, then EMC may provide Support Services to the extent that the Distributor has contracted with EMC to provide Customer with Support Services.

B. Reinstatement of Lapsed Support. If Support Services expire or are terminated, and Customer subsequently seeks to reinstate Support Services, Customer shall pay: (i) the cumulative Support Services fees applicable for the period during which Support Services lapsed; (ii) the annual support fees for the then-current current period; and (iii) the then­ current reinstatement fee and/or certification fees, as quoted by EMC or a Distributor.

C. Support Tools. EMC may use Support Tools or may make certain Support Tools available to assist Customer in performing various maintenance or support related tasks. Customer shall use Support Tools only in accordance with the terms under which EMC makes such available.

D. Additional Support Terms. Unless otherwise indicated  in the Product Notice, Support Services provided by EMC shall consist of (i) using commercially reasonable efforts  to remedy failures of Software to perform substantially in accordance with EMC's applicable Documentation; (ii) providing English-language (or where available, local language help line service (via telephone or other electronic media); and (iii) providing, or enabling Customer to download Software Releases and Documentation updates made generally available by EMC at no additional charge to other purchasers of Support Service for the applicable Software.

E. Software Releases. Upon use of a Software Release, Customer shall remove and make no further use of all prior Software Releases, and protect such prior Software Releases from disclosure or use by any third party. Customer is authorized to retain a copy of each Software Release properly obtained by Customer for Customer's archive purposes and use such as a temporary back-up if the current Software Release becomes inoperable. Customer shall use and deploy Software Releases strictly in accordance with terms of the original license for the Software.

F. Support Services for Software affected by Change in Hardware Status.  For Software used on or operated in connection with hardware that ceases to be covered by Support Services or the EMC hardware warranty, EMC reserves the right to send Customer written notice that EMC has either chosen to discontinue or change the price for Support Services for such Software (with such price change effective as of the date the applicable EMC hardware ceases to be so covered). If EMC sends a discontinuation notice, or if Customer rejects or does not respond to the notice of a proposed price change within thirty (30) days after receipt, Customer will be deemed to have terminated the Support Services for its convenience.

G. Support Services Exclusions. Support Services do not cover problems that arise from (i) accident or neglect by Customer or any third party; (ii) any third party items or services with which the Software is used or other causes beyond EMC's control; (iii) installation, operation or use not in accordance with EMC's instructions or the applicable Documentation; (iv) use in an environment, in a manner or for a purpose for which the Software or its related hardware was not designed; or (v) modification, alteration or repair by anyone  other than EMC or its authorized designees. EMC has no obligation whatsoever for Software installed or used beyond the licensed use. Removal or disablement of Software's remote support capabilities during the term of Support Services requires reasonable notice to EMC. Customer's removal, disablement of remote support capabilities, or improper use of or failure to use Support Tools made available to Customer shall subject Customer to a surcharge in accordance with EMC's then current standard rates.

 

6.  INDEMNITY.  EMC shall (i) defend Customer against any third party claim that Software or Support Services infringes a patent or copyright existing in the country in which EMC is located, the United States of America or the European Union; and (ii) pay the resulting costs and damages finally awarded against Customer by a court of competent jurisdiction or the amounts stated in a written settlement negotiated by EMC. The foregoing obligations are subject  to  the  following:  Customer  (a) notifies  EMC  promptly  in  writing  of  such  claim; (b) grants  EMC  sole  control  over  the  defence  and  settlement  thereof;  (c) reasonably cooperates in response to an EMC request for assistance; and (d) is not in material breach of this Agreement. Should any such Software or Support Service become, or in EMC's opinion be  likely  to  become,  the  subject  of such  a  claim,  EMC may, at  its option  and expense, (1) procure for Customer the right to make continued use thereof; (2) replace or modify such so  that  it  becomes  non-infringing;  (3) request  return  of  the  Software  and,  upon  receipt thereof; refund the price paid by Customer, less straight-line depreciation based on a three (3) year useful life for Software; or (4) discontinue the Support Service and refund the portion of any pre-paid Support Service fee that corresponds to the period of Support Service discontinuation. EMC shall have no liability to the extent that the alleged infringement arises out of or relates to: (A) the use or combination of Software or Support Service with third party products or services; (B) use for a purpose or in a manner for which the Software or Support Service was not designed;  (C) any modification made by any person other than EMC or its authorized representatives; (D) any modifications to Software or Support Service made by EMC pursuant to Customer's specific instructions; (E) any technology owned or licensed by Customer from third parties; or (F) use of any older version of the Software when use of a newer Software Release made available to Customer would have avoided the infringement. THIS SECTION STATES CUSTOMER'S SOLE AND EXCLUSIVE REMEDY AND EMC'S ENTIRE LIABILITY FOR THIRD PARTY INFRINGEMENT CLAIMS.

 

7. LIMITATION OF LIABILITY.

A. Limitation on Direct Damages.      EXCEPT  WITH  RESPECT  TO  CLAIMS  ARISING UNDER  SECTION  6 ABOVE,  EMC'S TOTAL  LIABILITY AND  CUSTOMER'S  SOLE AND EXCLUSIVE  REMEDY  FOR ANY  CLAIM  OF ANY  TYPE WHATSOEVER,  ARISING  OUT OF  SOFTWARE   OR   SERVICE   PROVIDED   HEREUNDER,   SHALL   BE   LIMITED   TO PROVEN DIRECT DAMAGES CAUSED  BY EMC'S SOLE NEGLIGENCE  IN AN AMOUNT NOT TO EXCEED (i) US$1,000,000,  FOR DAMAGE TO REAL OR TANGIBLE  PERSONAL PROPERTY;  AND  (ii) THE  PRICE  PAID  BY CUSTOMER  TO  EMC  FOR THE  SPECIFIC SERVICE (CALCULATED  ON AN ANNUAL  BASIS, WHEN APPLICABLE)  OR SOFTWARE FROM WHICH SUCH CLAIM ARISES,  FOR DAMAGE OF ANY TYPE NOT IDENTIFIED IN

(i) ABOVE OR OTHERWISE EXCLUDED HEREUNDER.

B. No Indirect Damages. EXCEPT WITH RESPECT  TO  CLAIMS  REGARDING VIOLATION OF EMC'S INTELLECTUAL PROPERTY RIGHTS OR CLAIMS  ARISING UNDER SECTION 6 ABOVE, NEITHER CUSTOMER NOR EMC SHALL HAVE LIABILITY TO THE OTHER FOR ANY SPECIAL, CONSEQUENTIAL, EXEMPLARY, INCIDENTAL, OR INDIRECT DAMAGES (INCLUDING, BUT NOT LIMITED TO, LOSS OF PROFITS, REVENUES, DATA AND/OR  USE), EVEN IF ADVISED OF THE POSSIBILITY THEREOF.

C. Special Exclusion. IN JURISDICTIONS THAT DO NOT ALLOW LIMITATION OR EXCLUSION OF CONSEQUENTIAL OR INCIDENTAL DAMAGES, ALL OR A PORTION OF SECTION 7A AND/OR 7B ABOVE MAY NOT APPLY.

D. Regular Back-ups. As part of its obligation to mitigate damages, Customer shall take reasonable data back-up measures. In particular, Customer shall back-up the relevant data before EMC performs any remedial, upgrade, new Software Release or other works on Customer's production systems. To the extent EMC's liability for loss of data is not anyway excluded under this Agreement, EMC shall in case of data losses only be liable for the typical effort to recover the data which would have accrued if Customer had appropriately backed up its data.

E. Limitation Period. Unless otherwise required by applicable law, the limitation period for claims for damages shall be eighteen (18) months after the cause of action accrues, unless statutory law provides for a shorter limitation period.

F. Suppliers. The foregoing limitations shall also apply in favour of EMC's suppliers.

 

8. EVALUATION AND LOANED SOFTWARE.

A. This Agreement shall also apply to (i) "Evaluation Software" (meaning the copy of Software which contains this Agreement, including any copies made by or on behalf of Customer, and all Documentation for the foregoing, which are licensed for a limited duration for the specific  purpose of evaluation  prior to  making a final decision on procurement; and (ii) "Loaned  Software"  (meaning  the  copy  of  Software  which  contains  this  Agreement, including any copies made by or on behalf of Customer, and all Documentation for the foregoing, which are licensed for a limited duration directly  to Customer for a limited period of time at no charge), subject to the following:

B. The particular Evaluation or Loaned Software, period of use, Installation Site and other transaction-specific conditions shall be as mutually agreed between EMC and Customer and recorded in the form of an evaluation or loan schedule.

C. Notwithstanding any deviating terms in this Agreement, all licenses for Evaluation and Loaned Software expire at the end of the evaluation or loan period.

D. Customer shall return Evaluation and Loaned Software at the end of the evaluation or loan period or when sooner terminated by EMC for convenience by giving thirty (30) days' written notice, whichever occurs first. Customer shall bear the risk of loss and damage for return of physical media, if any, and de-installation.

E. Customer may use Evaluation and Loaned Software free of charge, but, in the case of Evaluation Software, solely for the purpose of evaluation and not in a production environment.

F. Without prejudice to any other limitations on EMC's liability set forth in this Agreement (which shall also apply to Evaluation and Loaned Software), Evaluation and Loaned Software are provided "AS IS" and any warranty or damage claims against EMC in connection with Evaluation and Loaned Software are hereby excluded, except in the event of fraud or wilful misconduct of EMC.

G. Unless otherwise specifically agreed in writing by EMC, EMC does not provide maintenance or support for any Evaluation Software. CUSTOMER RECOGNIZES THAT EVALUATION SOFTWARE MAY HAVE DEFECTS OR DEFICIENCIES WHICH CANNOT OR MAY NOT BE CORRECTED BY EMC. EMC shall have no liability to Customer for any action (or any prior related claims) brought by or against Customer alleging that Customer's sale, use or other disposition of any Evaluation Software infringes any patent, copyright, trade secret or other intellectual property right. In event of such an action, EMC retains the right to terminate this Agreement and take possession of the Evaluation Software. THIS SECTION STATES EMC'S ENTIRE LIABILITY WITH RESPECT TO ALLEGED INFRINGEMENTS OF INTELLECTUAL PROPERTY RIGHTS BY EVALUATION SOFTWARE OR ANY PART OF IT OR ITS OPERATION.

 

9. CONFIDENTIALITY. Each party shall (i) use Confidential Information  of the other  party only for the purposes of exercising rights or performing obligations in connection with this Agreement; and (ii) use at least reasonable care to protect from  disclosure  to  any  third parties any Confidential Information disclosed by the other party for a period commencing upon the date of disclosure until three (3) years thereafter, except with respect to Customer data to which EMC may have access in connection with the provision  of Services,  which shall remain Confidential Information until one of the exceptions stated in the above definition of Confidential Information applies. Notwithstanding the foregoing, either party may disclose Confidential Information (a) to an Affiliate for the purpose of fulfilling its obligations or exercising its rights hereunder as long as such Affiliate complies with the foregoing; and (b) if required by law provided the receiving party has given the disclosing party prompt notice.

 

10. GOVERNMENT REGULATIONS AND EXPORT CONTROL.  Software  and  the technology included therein provided under this Agreement are subject to governmental restrictions on (i) exports from the U.S.; (ii) exports from other countries in which such Software and technology included therein may be produced or located; (iii) disclosures of technology  to foreign  persons;  (iv) exports from  abroad of derivative  products thereof;  and

(v) the importation and/or use of such Software and technology included therein  outside of the  United States  or other  countries  (collectively,  "Export  Laws").  Customer shall comply with all Export Laws and EMC export policies to the extent such policies are made available to Customer by EMC. Diversion contrary to U.S. law or other Export Laws is expressly prohibited.

 

11. TERMINATION. Customer may terminate this Agreement for its convenience upon thirty (30) days' notice to EMC. Either Customer or EMC may terminate this Agreement upon written notice due to the other party's material breach of the terms governing use of the Software; provided that such breach is not cured within thirty (30) days after the provision of written notice to the breaching party specifying the nature of such breach. Upon termination of this Agreement, Customer shall cease all use and return or certify destruction of the applicable Software (including copies) to EMC. Any provision that by its nature or context is intended to survive any termination or expiration, including but not limited to provisions relating to payment of outstanding fees, confidentiality and liability, shall so survive.

 

12. MISCELLANEOUS.

A. References. EMC may identify Customer for reference purposes unless and until Customer expressly objects in writing

B. Notices and Language. Any notices permitted or required under this Agreement  shall be in writing, and shall be deemed given when delivered (i) in person, (ii) by overnight courier, upon written confirmation of receipt, (iii) by certified or registered mail, with proof of delivery, (iv) by facsimile transmission with confirmation of receipt, or (v) by email, with confirmation of receipt (except for routine business communications issued by EMC, which shall not require confirmation from Customer). Notices shall be sent to the address, facsimile number or email address set forth below, or at such other address, facsimile number or email address as provided to the other party in writing. Notices shall be sent to: EMC Corporation, 176 South Street, Hopkinton, MA 01748. Fax for legal notices: 508.293.7780. Email for legal notices: legalnotices@emc.com. The parties agree that this Agreement has been written in the English language, that the English language version shall govern and that all notices shall be in the English language.

C. Entire Agreement. This Agreement (i) is the complete statement of the agreement of the parties with regard to the subject matter hereof; and (ii) may be modified only by a writing signed by both parties. All terms of any purchase order or similar document provided by Customer, including but not limited to any pre-printed terms thereon and any terms that are inconsistent or conflict with this Agreement, shall be null and void and of no legal force or effect.

D. Force Majeure. Except for the payment of fees, if any, due EMC from Customer, neither party shall be liable under this Agreement because of a failure or delay in performing its obligations hereunder on account of any force majeure event, such as strikes, riots, insurrection, terrorism, fires, natural disasters, acts of God, war, governmental action, or any other cause which is beyond the reasonable control of such party.

E. Assignment. Customer shall not assign this  Agreement or any right or delegate any performance without EMC's prior written consent, which consent shall not be unreasonably withheld. Customer shall promptly notify EMC, and EMC may terminate this Agreement on thirty days' notice, if Customer merges with or is acquired by a  third party  or otherwise undergoes a change of control.

F. Governing Law. This Agreement is governed by: (i) the laws of the Commonwealth of Massachusetts when EMC means EMC Corporation; (ii) the laws of the applicable country in which the applicable EMC subsidiary is registered to do business when EMC means the local EMC subsidiary, and (iii) the laws of Ireland when EMC means EISI. In each case, the applicability of laws shall exclude any conflict of law rules. The U.N. Convention on Contracts for the International Sale of Goods shall not apply. In the event of a dispute concerning this Agreement, Customer consents to the sole and exclusive personal jurisdiction  of the courts of competency in the location where EMC is domiciled.

G. Waiver. No waiver shall be deemed a waiver of any prior or subsequent default hereunder. If any part of this Agreement is held unenforceable, the validity of the remaining provisions shall not be affected.

H. Partial Invalidity. If any part of this Agreement, a purchase order or an EMC quote is held unenforceable, the validity of the remaining provisions shall not be affected.

 

13. COUNTRY SPECIFIC TERMS.

A. CANADA. The terms in this subsection A apply only when EMC means the EMC sales subsidiary located in Canada (currently EMC Corporation of Canada):

1. Section 2.A (Delivery). The second sentence is deleted in its entirety and replaced with: "Title and risk of loss to physical media, if any, transfers to Customer at the time and place that the media clears Canadian Customs."

2. Section 3.A (General License Grant). The last two sentences are deleted  and replaced with: "Licenses granted shall commence on the date the physical media, if any, clears Canadian Customs or electronic availability of such Software to Customer." Documentation is licensed solely for purposes of supporting Customer's use of the Software as permitted in this Section.

3. Section 12 (MISCELLANEOUS). Add the following as new subsection I:

I. The parties have required that this Agreement be drawn up in English and have also agreed that all notices or other documents required by or contemplated in this Agreement  be written in English.

Les parties ont requis que cette convention soi! redigee en anglais et on! egalement convenu que tout avis ou autre document exige aux termes des presentes ou decoulant de l'une quelconque de ses dispositions sera prepare en anglais.

B. United Kingdom. The terms in this subsection B apply only when EMC means the EMC sales subsidiary located in the United Kingdom (currently EMC Computer Systems (UK) Limited):

1. Section 4.D (Warranty Exclusions).  The entire section is deleted and replaced with:

D.  Warranty  Exclusions.   Except as expressly stated in the applicable warranty set forth  in this Agreement, EMC (including its suppliers) provides Software "AS  IS" and makes no other express or implied warranties, written or oral, and ALL OTHER WARRANTIES AND CONDITIONS (SAVE FOR THE WARRANTIES AND CONDITIONS IMPLIED BY SECTION 12 OF THE SALE OF GOODS ACT 1979) ARE SPECIFICALLY EXCLUDED TO THE FULLEST EXTENT PERMITTED BY LAW, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES  OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, AND ANY WARRANTY ARISING BY STATUTE, OPERATION OF LAW, COURSE OF DEALING OR PERFORMANCE, OR USAGE OF TRADE.

2. Section 7 (LIMITATION OF LIABILITY). This Section is deleted in its entirety and replaced with:

7. LIMITATION OF LIABILITY AND PRESERVATION OF DATA.

A. The entire aggregate liability of EMC (including its suppliers) under or in connection with the supply of the Software or Service, whether in tort (including negligence), for breach of contract, misrepresentation or otherwise, is limited in respect of each event or a series of events: (i) to the amounts actually paid by Customer for the Software or Services which give rise to such liability during the  twelve  (12)  month period immediately preceding the date of the cause of action giving rise to such claim; or (ii) Great British Pounds Sterling one million (£1,000,000), whichever is the greater amount. In no event shall EMC (including its suppliers) or Customer be liable to the other or any other person or entity for loss of profits, loss of revenue, loss of use or any indirect, special, incidental, consequential or exemplary damages arising out of or in connection with this Agreement, the license of the Software or the provision of Services, and the use, performance, receipt or disposition of such Software or Services, even if such party has been advised of the possibility of such damages or losses. Nothing in this Agreement shall operate to exclude or restrict EMC's liability for: (a) death or personal injury resulting from negligence; (b) breach of obligations arising from section 12 of the Sale of Goods Act 1979; or (c) fraud.

B. CUSTOMER  OBLIGATIONS  IN RESPECT OF PRESERVATION OF DATA.

During the Term of the Agreement, the Customer shall:

1) from a point in time prior to the point of failure, (i) make full and/or incremental backups of data which allow recovery in an application consistent form, and (ii) store such back-ups at an off-site location sufficiently distant to avoid being impacted by the event(s) (e.g. including but not limited to flood, fire, power loss, denial of access or air crash) and affect the availability of data at the impacted site;

2) have adequate processes and procedures in place to restore data back to a point in time and prior to point of failure, and in the event of real or perceived data loss, provide the skills/backup and outage windows to restore the data in question;

3) use anti-virus software, regularly install updates across all data  which  is accessible across the network, and protect all storage arrays against power surges and unplanned power outages with Uninterruptible Power Supplies; and

4) ensure that all operating system, firmware,  system utility (e.g. but not limited to, volume management, cluster  management and backup) and patch levels are kept to EMC recommended versions and that any proposed changes thereto shall be communicated to EMC in a timely fashion.

3. Section 12 (MISCELLANEOUS). Add the following as new subsection I:

I. Each of the parties acknowledges and agrees that in entering into this Agreement, it does not rely on, and shall have no remedy in  respect  of,  any  statement, representation, warranty or understanding (whether negligently or innocently made) of any person (whether party to this Agreement or not) other than as expressly set out in this Agreement as a warranty. The only remedy available to Customer for a breach of the warranties shall be for breach of contract under the terms of  this  Agreement. Nothing in Section 7 shall however operate to limit or exclude any liability for fraud. No term of this Agreement shall be enforceable under the Contracts (Rights of Third Parties) Act 1999 by a person that is not a party to this Agreement.  If any part of this Agreement is held unenforceable, the validity of the remaining provisions shall not be affected.

C. Ireland.   The terms in this subsection C apply only when EMC means the EMC sales subsidiary located in Ireland (currently EMC Information Systems International:

1. Section 4.D (Warranty Exclusions). The entire section is deleted and replaced with:

D. Warranty Exclusions.   Except as expressly stated in the applicable warranty set forth in this Agreement and the applicable exhibits, EMC (including its suppliers) and makes no warranties, and ALL WARRANTIES, TERMS AND CONDITIONS, WHETHER ORAL OR WRITTEN, EXPRESS OR IMPLIED BY LAW, CUSTOMER OR OTHERWISE, INCLUDING, BUT NOT LIMITED TO, ANY WARRANTIES, TERMS AND CONDITIONS, OF FITNESS FOR PURPOSE, DESCRIPTION, AND QUALITY ARE HEREBY EXCLUDED TO THE MAXIMUM EXTENT PERMITTED UNDER APPLICABLE LAW.

2. Section 7 (LIMITATION OF LIABILITY). This section is deleted in its entirety and replaced with the following:

7. LIMITATION OF LIABILITY.

A. EMC does not exclude or limit its liability to the Customer for death  or personal injury, or, breach of obligations implied by Section 12 of the Sale of Goods Act, 1893, as amended by the Sale of Goods and Supply of Services Act, 1980, or, due to the fraud or fraudulent misrepresentation of EMC, its employees or agents.

B. Subject always to subsection 7.A, the liability of EMC (including its suppliers) to the Customer under or in connection with an order, whether arising from negligent error or omission, breach of contract, or otherwise  ("Defaults") shall be: (i) the aggregate liability of EMC for all Defaults resulting in direct loss of. or damage to the tangible property of the Customer shall be limited to damages which shall not exceed the greater of two hundred per cent (200%) of the applicable price paid and/or payable for the Software or Service, or one million euros (€1,000,000); or (ii) the aggregate liability of EMC for all Defaults, other than those governed by subsection 7.B(i) shall be limited to damages which shall not exceed (a) in respect of the Software, the greater of one hundred and fifty per cent (150%) of the applicable price paid and/or payable or five hundred thousand euro (€500,000); or (b) in respect of the services, if any, the greater of one hundred and fifty per cent (150%) of the applicable charges paid and/or payable or five hundred thousand euro (€500,000).

C. In no event shall EMC (including its suppliers) be liable to Customer for (i) loss of profits, loss of business, loss of revenue, loss of use, wasted management time, cost of substitute services or facilities, loss of goodwill or anticipated savings, loss of or loss of use of any software or data;  and/or (ii) indirect, consequential or special loss or damage; and/or (iii) damages, costs and/or expenses due to third party claims; and/or

(iv) loss or damage due to the Customer's failure to comply with obligations under this Agreement, failure to do back-ups of data or any other matter under the control of the Customer. For the purposes of this Section 7, the term "loss" shall  include a partial loss, as well as a complete or total loss.

D. The parties expressly agree that should any limitation or provision contained in this Section 7 be held to be invalid under any applicable statute or rule of law, it shall to that extent be deemed omitted, but if any party thereby becomes liable for loss or damage which would otherwise have been excluded such liability shall be subject to the other limitations and provisions set out in this Section 7.

E. The parties expressly agree that any order for specific performance made in connection with this Agreement in respect of EMC shall be subject to the financial limitations set out in sub-section 7.8.

F. The parties expressly agree that the provisions of Section  6  (INDEMNITY) shall not be subject to the limitations and exclusions of liability set out in this Section 7.

G. CUSTOMER  OBLIGATIONS  IN RESPECT OF PRESERVATION OF DATA.

During the Term of the Agreement the Customer shall:

          1) from a point in time prior to the point of failure, (i) make full and/or incremental backups of data which allow recovery in an application consistent form, and

(ii) store such back-ups at an off-site location sufficiently distant to avoid being impacted by the event(s) (e.g. including but not limited to flood, fire, power loss, denial of access or air crash) and affect the availability of data at the impacted site;

         2) have  adequate  processes  and  procedures  in place  to  restore  data back to a point in time and prior to point of failure, and in the event of real or perceived data loss, provide the skills/backup and outage windows to restore the data in question;

         3) use anti-virus software,  regularly install updates across all data which is accessible across the network, and protect all storage  arrays against power surges and unplanned power outages with Uninterruptible Power Supplies; and

         4) ensure that all operating system, firmware,  system utility (e.g. but not limited to, volume management, cluster management  and backup) and patch levels are kept to EMC recommended versions and that any proposed changes thereto shall be communicated to EMC in a timely fashion.

3. Section 7.D (Limitation Period).  This Section is deleted in its entirety and replaced with the following as a totally separate section:

WAIVER OF RIGHT TO BRING ACTIONS: The Customer waives the right to bring any claim arising out of or in connection with this Agreement more than  twenty-four (24) months after the date of the cause of action giving rise to such claim.

D. European Union. The terms in this subsection D apply only when EMC means an EMC sales subsidiary located in the European Union:

1. Section 3A (General License Grant). The following is added at the end of this section:

Customer shall not, and Customer shall not permit any third party to, modify, enhance, supplement, create derivative  works  from,  reverse  assemble,  reverse  engineer, reverse compile or otherwise reduce to human readable form the  Software  without EMC's prior written consent, except to the extent that local, mandatory law  grants Customer the right to decompile such  Software in order to obtain  information necessary to render such interoperable with other software. In such event, Customer shall first inform EMC of its intention and request EMC to provide Customer with the necessary information. EMC may impose reasonable conditions on the provision of the requested information, including the payment of a reasonable fee.

E. Australia. The terms in this subsection E apply only when EMC means the EMC sales subsidiary located in Australia (currently EMC Global Holdings Company (Australian Branch) ABN 86 669 010 6895:

1. Section 7 (LIMITATION OF LIABILITY). This section is deleted in its entirety and replaced with the following:

7.         LIMITATION OF LIABILITY.

 A. Limitation on Direct Damages. EXCEPT WITH RESPECT TO CLAIMS ARISING UNDER SECTION 6 OF THIS AGREEMENT, EMC'S AND ITS SUPPLIERS' TOTAL LIABILITY AND CUSTOMER'S SOLE AND EXCLUSIVE REMEDY FOR ANY CLAIM OF ANY TYPE WHATSOEVER, ARISING OUT OF SOFTWARE OR SERVICE PROVIDED HEREUNDER, SHALL BE LIMITED TO PROVEN DIRECT DAMAGES CAUSED   BY  EMC'S  SOLE  NEGLIGENCE   IN  AN  AMOUNT   NOT  TO  EXCEED (i) AUD$2,000,000, FOR DAMAGE TO REAL  OR  TANGIBLE  PERSONAL PROPERTY; AND (ii) THE PRICE PAID BY CUSTOMER TO  EMC  FOR  THE SPECIFIC SERVICE (CALCULATED ON AN ANNUAL  BASIS, WHEN APPLICABLE) OR  SOFTWARE  FROM WHICH  SUCH  CLAIM  ARISES,  FOR  DAMAGE  OF  ANYTYPE NOT IDENTIFIED IN (i) ABOVE OR OTHERWISE  EXCLUDED HEREUNDER.

B. No Indirect Damages. EXCEPT WITH RESPECT TO CLAIMS REGARDING VIOLATION OF EMC'S INTELLECTUAL PROPERTY RIGHTS OR CLAIMS ARISING UNDER SECTION 6 ABOVE, NEITHER CUSTOMER NOR EMC (INCLUDING EMC'S SUPPLIERS) SHALL (a) HAVE LIABILITY TO THE OTHER FOR ANY SPECIAL, CONSEQUENTIAL, EXEMPLARY, INCIDENTAL, OR INDIRECT DAMAGES (INCLUDING, BUT NOT LIMITED TO, LOSS OF PROFITS, REVENUES, DATA AND/OR   USE),   EVEN   IF  ADVISED   OF   THE   POSSIBILITY   THEREOF;   AND (b) BRING ANY CLAIM BASED ON SOFTWARE OR SERVICE PROVIDED HEREUNDER  MORE  THAN  EIGHTEEN  (18)  MONTHS  AFTER  THE  CAUSE  OF ACTION  ACCRUES.

C. Trade Practices Legislation: EMC's liability under any statutory right or any condition or warranty, including any implied by any State Fair Trading Act or the Trade Practices Act, 1974 (Cth) is, to the maximum extent permitted by law, excluded. To the extent that such liability cannot be excluded, EMC's liability is limited at the option of EMC to: (a) in the case of Software, any one or more of the following: (i) the replacement thereof or the supply of its equivalent; (ii) the repair thereof; (iii) the payment of the cost of replacement thereof or of acquiring its equivalent; or (iv) the payment of the cost of having such repaired, and (b) in the case of any Services performed by EMC under or in connection with this Agreement: (i) the supply of those Services again; or (ii) the payment of the cost of having those Services supplied again.

F. New Zealand - The terms in this subsection F apply only when EMC  means the EMC sales subsidiary located in New Zealand (currently EMC CORPORATION (NEW ZEALAND BRANCH) AKOS.  1188883:

1. Section 7 (LIMITATION OF LIABILITY).  This section is deleted in its entirety and replaced with the following:

ARISING UNDER SECTION 6 OF THIS AGREEMENT, EMC'S AND ITS SUPPLIERS' TOTAL LIABILITY AND CUSTOMER'S SOLE AND EXCLUSIVE REMEDY FOR ANY CLAIM OF ANY TYPE WHATSOEVER, ARISING OUT OF SOFTWARE OR SERVICE PROVIDED HEREUNDER, SHALL BE LIMITED TO PROVEN DIRECT DAMAGES CAUSED   BY  EMC'S  SOLE   NEGLIGENCE   IN  AN  AMOUNT   NOT  TO  EXCEED

(i) NZ$2,000,000, FOR DAMAGE TO REAL OR TANGIBLE PERSONAL PROPERTY; AND (ii) THE PRICE PAID BY CUSTOMER TO EMC FOR THE SPECIFIC SERVICE (CALCULATED ON AN ANNUAL BASIS, WHEN APPLICABLE)  OR  SOFTWARE FROM WHICH SUCH CLAIM ARISES, FOR DAMAGE OF ANY TYPE  NOT IDENTIFIED IN (i) ABOVE  OR OTHERWISE EXCLUDED HEREUNDER.

B. No Indirect Damages.   EXCEPT WITH RESPECT TO CLAIMS REGARDING VIOLATION  OF EMC'S INTELLECTUAL  PROPERTY  RIGHTS OR CLAIMS ARISING UNDER SECTION 6 ABOVE,  NEITHER CUSTOMER  NOR EMC (INCLUDING  EMC'S SUPPLIERS)  SHALL  (a) HAVE  LIABILITY  TO  THE  OTHER  FOR  ANY  SPECIAL, CONSEQUENTIAL, EXEMPLARY,   INCIDENTAL, OR INDIRECT DAMAGES (INCLUDING,   BUT  NOT  LIMITED  TO,  LOSS  OF  PROFITS,  REVENUES,   DATA AND/OR USE),   EVEN   IF  ADVISED    OF   THE   POSSIBILITY   THEREOF;   AND (b) BRING ANY CLAIM BASED ON SOFTWARE OR SERVICE PROVIDED HEREUNDER MORE THAN EIGHTEEN (18) MONTHS AFTER THE CAUSE OF ACTION ACCRUES.

C. Fair Trading Legislation. EMC's liability  under any  statutory  right  or any condition or warranty, including any implied by the Fair Trading Act 1986 or Consumer Guarantees Act 1993 ("FTA") or any similar law is, to the maximum extent permitted by law, excluded. To the extent that such liability cannot be excluded, EMC's liability is limited at the option of EMC to: (a) in the case of any Software, any one or more of the following: (i) the replacement thereof or the supply of its equivalent; (ii) the  repair thereof; (iii) the payment of the cost of replacement thereof or of acquiring its equivalent; or (iv) the payment of the cost of having such repaired, and (b) in the case of any Services performed by EMC under or in connection with this Agreement: (i) the supply of those Services again; or (ii) the payment of the cost of having those Services supplied again.

EXHIBIT 1B(ii)
EMC SUPPORT TERMS AGREEMENT

NOW, THEREFORE, in consideration of the premises and obligations contained herein, it is agreed as follows:

 

1. DEFINITIONS.

A. "End User Support Tools" means any software or other tools made available by EMC or VCE to Customer or directly to End User to enable Customer or End User (as applicable) to perform various self-maintenance activities.

B. "Documentation" means the then-current, generally available, written user manuals and online help and guides for Products provided by EMC or VCE.

C. "EMC Service Area" means a location that is within (i) a one hundred (100) drivable mile radius of an EMC service location; and (ii) the country in which the Installation Site is located.

D. "Installation Site" means the Install Location, or a subsequent location approved by VCE.

E. "Maintenance Aids" mean any hardware, software or other tools, other than End User Support Tools, used by EMC or VCE to perform diagnostic or remedial activities on Products.

F. "Products" mean "Equipment" (which is the hardware delivered by VCE to Customer) and/or "Software" (which is any programming code provided  by VCE to Customer as a standard product, also including microcode, firmware and operating system software), each as procured by VCE through EMC.

G. "Product Notice" has the meaning specified in Section 2(A) below.

H. "Support Services" mean services provided by VCE or its designee to Customer for the support and maintenance of standard Products.

I. "Software Release" means any subsequent version of Software provided by EMC or VCE after initial delivery of Software, but does not mean a new Product.

J. "Time  and  Materials  Service"  means  any  maintenance  or  support  service  that  is provided by  VCE but not part of fixed-fee Support Services or other generally available service related offering from VCE using a pre-established fee, but which will be separately charged to Customer on a time and materials basis and may be made available under a separate set of Time and Materials Services Terms and Conditions.

 

2. SUPPORT SERVICES.

A. Scope of Support Services. The contents of Support Services for each Product are set forth in the Product Notice, and unless otherwise indicated in the Product Notice, consist of (i) using  commercially   reasonable   efforts   to   remedy   failures   of   Products   to   perform substantially in accordance with EMC's applicable specifications; (ii) providing English­ language (or, where available, local language) help line service (via telephone or other electronic media); and (iii) providing, or enabling Customer to download, Software Releases and Documentation updates made generally available by EMC at no additional  charge to other purchasers of Support Service for the applicable Product. VCE reserves the right to change the scope of the Support Services on 60 days' prior written notice to Customer.

B. Additional Support. VCE reserves the right to charge for Support Services performed outside the time frames of the applicable Support Option as a Time and Materials Service. Except to the extent that Support Services are independent of the Equipment's location, VCE will have no obligation to provide Support Services with respect to Equipment that is outside the EMC Service Area.  Support Services do not apply to any Software other than the current and the immediately prior Software Release. Support Services are subject to EMC's then­ current "End-of-Service-Life" policy for the respective Product. VCE shall have no obligation to provide Support Services for Software problems that cannot be reproduced at EMC's or VCE's facility or via remote access to Customer and/or End-User's facility (as applicable). Support Services do not include Equipment upgrades, if any, needed to utilize new features or functionality in a Software Release.

C. Support Services Exclusions. Support Services do not cover any problems that arise from (i) accident or neglect by Customer, End-User or  any third party;  (ii) any third  party items or services  with  which  the  Product  is used  or  other  causes  beyond VCE's  control; (iii) installation, operation or use not in accordance with EMC's or VCE's written instructions or the applicable Documentation; (iv) use in an environment, in a manner or for a purpose for which the Product was not designed; (v) modification,  alteration or repair by anyone  other than VCE or  its authorized representatives; or (vi) in case of Equipment only, causes not attributable to normal wear and tear. VCE has no obligation whatsoever for  Software installed or used beyond the licensed use, for Equipment which was moved from the Installation Site without VCE's written consent or whose original  identification  marks have been altered or removed.

D. Re-Instatement of Support. If Customer wishes to re-instate support for Product that is not then currently under Support Services, then re-instatement shall be subject to certification at VCE's then current Time and Materials Service rates and conditions. Once so certified, Support Services shall commence upon payment to VCE of (i) the charge for the above described Time and Materials Service; (ii) the amount VCE would have normally charged had Support Services been in effect during the period of the lapse or discontinuation; and (iii) the charge for the next twelve (12) months of the newly commenced Support Services.

 

3. CUSTOMER RESPONSIBILITIES.

A. Cooperation. Customer shall (i) promptly notify VCE when Products fail and provide VCE with sufficient details of the failure such that the failure can be reproduced by VCE or its authorized representative; (ii) allow VCE or its authorized representative remote and on-site (when determined necessary by VCE) access to the Products to provide Support Services; and (iii) furnish necessary facilities (which for on-site access means suitable  work space, computers, power, light, phone, internet network availability, software and equipment reasonably required by VCE), information and assistance required to provide the Support Services.

B. Support Contacts. Unless a specific number of authorized contacts are indicated on the Product Notice, Customer shall designate in writing a reasonable number of authorized contacts, as determined by Customer and VCE, who shall initially report problems and receive Support Services from VCE. Each Customer representative shall be familiar with Customer's requirements and shall have the expertise and capabilities necessary to permit VCE to fulfil its obligations. A change to the authorized support contacts by Customer shall be submitted to VCE in writing.

 

4. ADDITIONAL TERMS.

A. Maintenance Aids and Spare Parts for Equipment. Customer authorizes VCE or its authorized representatives to store Maintenance Aids and spare parts at the Installation Site and agrees that such are for use only by VCE or its authorized representatives. Customer shall not make any use thereof or authorize and third party to do so. VCE is authorized, upon the conclusion of the Support Services or at any other time, upon reasonable notice  to Customer, to enter the Installation Site, or to use remote means, to remove and/or disable Maintenance Aids and spare parts and Customer shall reasonably cooperate in this effort.

B. End User Support Tools. VCE may choose to make various  End User Support Tools available to assist Customer or End User (as applicable) in performing various maintenance or support related tasks. Customer shall use, and shall ensure that End User uses, End User Support Tools only in accordance with terms under which VCE makes such available.

C. Equipment Replacements and Data Security Options. All replaced Equipment (or portions thereof) shall become the property of VCE, or at VCE's discretion, its subcontractor, upon Customer's receipt of the corresponding replacement, and shall be returned promptly upon VCE's request. If such replaced Equipment is not so returned, Customer shall pay VCE's then current spare parts price therefore. Customer is responsible for removing all information from any replaced parts, or any other items that Customer releases to VCE as a trade-in or for disposal, before such are released to VCE. VCE is not responsible for  any information contained on such items  notwithstanding anything to the contrary. In order to assist in securing any data, Customer can request a quote from VCE for its then currently available disk retention or data erasure offering.

D. Proactive Product Changes. VCE may, at its expense, implement changes to the Products upon reasonable notice to Customer (i) when such changes do not adversely affect interchangeability or performance of the Products; (ii) when VCE reasonably believes such changes are required for purposes of safety or reliability; or (iii) when VCE is required by law to do so. Customer shall give VCE reasonable access to the Products for such purpose.

E. Software Releases. Upon use of a Software Release, Customer shall remove and make no further use of all prior Software Releases, and protect such prior Software Releases from disclosure or use by any third party. Customer is authorized to retain a copy  of  each Software Release properly obtained by Customer for Customer's archive purposes and use such as a temporary back-up if the current Software Release becomes inoperable. Customer shall use and deploy Software Releases strictly in accordance with terms of the  original license for the Software.

F. Change of Equipment Location or Configuration. Customer may  change  the Installation Location or configuration of a Product that is under Support Services by VCE only after written notice to VCE. If the new location is in a different country, then such move is subject to VCE prior written approval. Customer shall promptly notify VCE of any changes to the configuration, or movement of the Equipment by anyone other than VCE or its authorized representatives. VCE reserves the right to inspect and evaluate the changes in configuration or location of the affected Equipment at VCE's then current Time  and  Materials  Service terms, conditions and rates. Additional charges, if any, related to  any  changes  in configuration or location of Equipment shall apply from the date the change took place.

G. Movement of Software. If Customer is current in the payment of the applicable Support Services fee, Customer may, to the extent technologically  compatible, discontinue all use of the Software on the hardware or network environment for which it was originally licensed and begin the corresponding use thereof on a different  Customer owned or controlled hardware or network environment provided that Customer (i) provides VCE  with  advance,  written notice of such move; and (ii) pays the applicable transfer and/or upgrade fees assessed by VCE for such a move (if any).

H. Remote Support Capability. As part of the Support Services, VCE or its suppliers make various remote support capabilities available for  certain Products in accordance with their respective then current policies and procedures. VCE's Support Services fees are based on the availability and use of such remote support capabilities. Customer has the option to activate or disable remote support capabilities, but it shall notify VCE thereof without undue delay. If Customer chooses to disable the remote support features, then, with regard to all Products affected by such disablement (i) VCE may assess Customer a surcharge in accordance with VCE's  then current standard rates; and (ii) any agreed response times or other agreed service levels (if any) shall no longer apply.

I. Alterations and Attachments to Equipment. VCE does not restrict Customer from making alterations to, or installing other products in or with, the Equipment at Customer's expense; provided Customer is responsible for any inspection fees and/or additional charges resulting from such activities.  If  the  alterations  or  attachments  prevent  or  hinder  VCE's performance of Support Services, Customer shall, upon VCE's request, take  corrective action.  Customer's failure to take appropriate corrective action shall be deemed a breach hereof.

J. Transfer of Equipment to Secondary Purchasers. If Customer decides to sell, assign or otherwise transfer the use and/or ownership of Equipment to a Secondary Purchaser (meaning a bona fide end user that (i) is not considered, in VCE's reasonable discretion, to be a competitor of VCE or its suppliers; and/or (ii) has not had prior disputes with VCE or its suppliers), to the extent VCE resources reasonably permit, VCE shall make available to Customer, as a Time and Materials Service, de-installation services. In addition, and to the extent VCE's resources reasonably permit, VCE shall make available to the Secondary Purchaser, (a) Equipment installation and re-certification services as a Time  and Materials Service; and (b) Support Services for Equipment meeting the certification criteria.

K. Software Support Services affected by Change in Equipment Status. For Software used on or operated in connection with Equipment that ceases to be covered by Support Services or the EMC Equipment warranty, VCE reserves the right to send Customer written notice that VCE has either chosen to discontinue or change the price for Support Services for such Software (with such price change effective as of the date the applicable Equipment ceases to be so covered). If VCE sends a discontinuation notice, or if Customer rejects or does not respond to the notice of a proposed price change within thirty  (30)  days  after receipt, Customer's sole and exclusive remedy and VCE's sole obligation shall be to grant Customer a credit that corresponds to the period between the effective date of the termination and the end of the then-current Support Services period.  Such credit may only be used against future purchases of Products or Support Services from VCE and may be reduced to recapture unearned discounts (meaning discounts  to Support Services fee that were based on a Customer obligation that can no longer be fulfilled due to the termination.

5. GENERAL.

A. Hardware Upgrades. Support Services for hardware upgrades installed into Equipment are coterminous with the Support Services that are then in effect for the Equipment into which such upgrades are installed.

B. Regular Back-ups. As part of its obligation to mitigate damages, Customer shall take reasonable data back-up measures. In particular, Customer shall provide for a daily back-up process and back-up the relevant data before VCE performs any remedial, upgrade or other works on Customer's production systems. To the extent VCE's liability for loss of data is not anyway excluded under this Agreement,  VCE shall in case of data losses only be liable for the typical effort to recover the data which would have accrued if Customer had appropriately backed up its data.

C. VCE may use VCE affiliates or other sufficiently qualified subcontractors to provide services described in this Exhibit to Customer, provided that VCE shall remain responsible to Customer for the performance thereof. The foregoing limitations shall also apply in favor of VCE and its suppliers.

Exhibit 1C
VCE End User License Agreement

By Using the Software the Licensee agrees to be bound by the terms of this EULA.

 

1. Definitions.

a. "Confidential Information" means non-public information relating to financial, business, marketing, operations, scientific, technical, economic or  engineering information, and other proprietary information of the party disclosing such information its affiliates, subsidiaries or parent ("Discloser''), (including all originals, copies, digests and summaries in any form); provided, however, Confidential Information does  not include any specific information which: (i) is or becomes public other than by disclosure  of the party receiving the Confidential Information ("Recipient"), (ii) is disclosed by the Discloser to anyone without similar restrictions on disclosure, (iii) is or becomes known to the Recipient without proprietary restrictions when, or subsequent to, disclosed by the Discloser, (iv) is independently developed by the Recipient without reference to the Discloser's Confidential Information, or (v) is disclosed by order of law.

b. "Documentation" means the then-current, generally available, written user manuals and online help and guides for Product;

c. "Hardware" means the physical hardware components and related Documentation provided to Licensee with the Software licensed pursuant to this EULA;

d. "Product" means the Hardware and the Software;

e. "Reseller" means a reseller, distributor or other partner who is authorized by VCE to procure the license of the Software to Licensee;

f. "Software" means all VCE software and related Documentation provided to Licensee, including any Software Releases;

g. "Software Fees" means the fees paid or payable by the Licensee for the Software;

h. "Software  Releases"  means  any  new  version  of  Software  that  is  made  available without charge pursuant to (i) the warranty for Software; or (ii) the Support Services for licensed Software, but does not mean a new Product;

i. "Term" is the term of this EULA as set out in clause 2 hereunder;

j. "Third Party Software"  means Software supplied  by any third party to the  Licensee through VCE and licensed by the same third party to the Licensee;

k. "Third Party Software Terms" means third party license terms applicable to Third Party Software;

I. "Updates" means upgrades, modified or subsequent versions and updates including any virus or vulnerability updates and Software, if any, licensed by VCE as part of a maintenance contract or service subscription;

m. "Use" or "Using" means to copy, install, execute, download, or otherwise benefit from the object code of the Software and Documentation for the sole purpose of the Licensee conducting Licensee's internal business operations and not for any other purpose including distribution;

1. License Grant.  Subject to the payment of the  Software  Fees (where applicable),  and subject to the terms and conditions of this EULA, VCE hereby grants to Licensee a non­ exclusive, non-assignable, non-transferable and revocable license to  Use  the  Software during the Term. Third Party Software included in the Software is subject to the relevant Third Party Software Terms, including, but not limited to, end user license agreements associated with manufacturer software which may be located at: www.cisco.com/univercd/cc/td/doc/es_inpck/cetrans.htm, for Cisco products, www.emc.com for EMC products and www.vmware.com for VMWare products. To the extent that Licensee Ams wishes to take part in any "Beta" testing of Software, it shall execute a separate Beta testing agreement.

2. Term. This EULA is effective in perpetuity, unless earlier terminated for Licensee breach of this EULA, or as otherwise agreed in writing by VCE.

3. Termination. This EULA will terminate automatically if Licensee: (i) becomes insolvent; (ii) files any proceeding in bankruptcy or acquires the status of a bankrupt; (iii) has a receiver or receiver manager appointed with respect to it or any of its assets; or (iv) seeks the benefit of any statute providing protection from creditors. VCE may also terminate this EULA for default if Licensee breaches any provision of this EULA. Any termination of this EULA  shall  be without prejudice to each right and/or remedy which VCE may possess against Licensee under this EULA, at law, in equity, and/or otherwise. Upon any termination  or expiration of this EULA: (i) all licenses granted by VCE shall immediately terminate; and (ii) Licensee shall immediately cease use of the Software and return, delete or destroy the Software, including all copies of the Software and the Documentation to VCE.

4. Software Releases and Updates. This license is limited to the version of the Software and Software Releases delivered to the Licensee and does not include Updates, unless a separate maintenance contract is purchased or, alternatively, the Licensee has purchased a service subscription that entitles the Licensee to Updates as described in the Documentation. The Licensee acknowledges that any obligation VCE may have to support the previous version of the Software ends upon availability of the Update. After the specified maintenance period or service subscription period has expired or is terminated, the Licensee has no further rights to receive any Updates.

5. Ownership Rights. The Software is protected by United States' copyright laws, and other applicable laws in the countries in which it is being used. VCE retains all right, title and interest in and to the Software, including all copyrights, patents, trade secret rights, trademarks and other intellectual property rights therein. The Licensee's possession, installation, or Use of the Software does not transfer to the Licensee any title to the intellectual property in the Software, and the Licensee will not acquire any rights to the Software except as expressly set forth in this EULA. Any copy of the Software and Documentation authorized to be made hereunder must contain the same proprietary notices that appear on and in the Software and Documentation.

6. Restrictions. The Software license granted herein is for use of object code only. Licensee is permitted to copy Software as necessary to Use it in accordance with this License. Licensee may copy Documentation insofar as reasonably necessary in connection with Licensee's authorized internal Use of the Software. Licensee shall not permit third parties to benefit from the Use or functionality of the Software via a timesharing, service bureau or other arrangement. If Licensee enters into a contract with a third party in which the third party manages Licensee information technology  resources  ("Managing  Party"), Licensee may transfer all its rights hereunder to Use the Software to such Managing Party, provided that (i) the Managing Party only Uses the Software for its internal operations on behalf of Licensee; (ii) the Managing Party agrees to comply with the terms and conditions of this EULA, and (iii) Licensee provides VCE with written notice that a Managing Party will be Using the Software on Licensee behalf. Licensee may not modify, enhance, supplement, reverse engineer, decompile, disassemble or otherwise reduce to human readable form the Software, except to the extent the foregoing restriction is not expressly prohibited by applicable law. Licensee may not modify, or create derivative works based upon, the Software in whole or in part. Licensee may not copy the Software or Documentation except as expressly permitted hereunder. Licensee may not remove any proprietary notices or labels on the Software. Licensee is prohibited from creating any software product/s that interface with or are interactive with the Software. All rights not expressly granted hereunder are reserved by VCE.

7. Warranty. THE SOFTWARE IS PROVIDED "AS IS" AND VCE MAKES NO WARRANTY AS TO ITS USE OR PERFORMANCE. ALL OTHER WARRANTIES ARE SPECIFICALLY EXCLUDED, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF MERCHANTABILITY, SATISFACTORY QUALITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE AND NON-INFRINGEMENT, AND ANY WARRANTY ARISING BY STATUTE, OPERATION OF LAW, COURSE OF DEALING OR PERFORMANCE, OR USAGE OF TRADE. VCE MAKES NO WARRANTY AS TO THIRD PARTY SOFTWARE; SUCH RIGHTS TO BE CLAIMED FROM SUCH THIRD PARTY.

8. Limitation of Liability. TO THE EXTENT PERMITTED BY APPLICABLE LAW  AND  EXCEPT  FOR  CLAIMS  REGARDING VIOLATION OF VCE'S INTELLECTUAL PROPERTY RIGHTS OR VIOLATION OF ITS CONFIDENTIALITY OBLIGATIONS HEREIN, VCE's TOTAL LIABILITY AND LICENSEE'S SOLE  AND  EXCLUSIVE  REMEDY  FOR  ANY  CLAIM  OF  ANY  TYPE  WHATSOEVER, ARISING OUT OF THE SOFTWARE PROVIDED UNDER THIS EULA OR ANY ORDER, WILL BE LIMITED TO PROVEN DIRECT DAMAGES CAUSED BY VCE'S SOLE NEGLIGENCE IN AN AMOUNT NOT TO EXCEED THE GREATER  OF:  (i) THE  PRICE PAID BY LICENSEE FOR THE SOFTWARE FROM WHICH SUCH CLAIM ARISES; AND (ii) US$10,000. TO THE EXTENT PERMITTED BY APPLICABLE LAW, NEITHER LICENSEE AND IN THE CASE OF ATOS, NEITHER  LICENSEE,  NOR ITS ULTIMATE  PARENT COMPANY, NOR ANY  ATOS  AFFILIATE   NOR  VCE  (INCLUDING  VCE'S SUPPLIERS) WILL: (i) HAVE LIABILITY WHATSOEVER FOR ANY: (A) SPECIAL, CONSEQUENTIAL, PUNITIVE, EXEMPLARY, INCIDENTAL, OR INDIRECT DAMAGES; OR (B) PURE ECONOMIC LOSS, COSTS, CHARGES  EXPENSES,  LOSS OF PROFITS, LOSS OF BUSINESS, DEPLETION OF GOODWILL  OR SIMILAR LOSSES, LOSS OF GOODS, LOSS OF CONTRACT,  LOSS OF USE, OR LOSS OR CORRUPTION OF DATA EACH OF WHICH WHETHER DIRECT, SPECIAL, CONSEQUENTIAL, PUNITIVE, EXEMPLARY, INCIDENTAL, OR INDIRECT AND EVEN IF ADVISED OF THE POSSIBILITY THEREOF; OR (ii) BE LIABLE FOR THE COST OF PURCHASING REPLACEMENT SERVICES,  LOST  PROFITS  OR  LOSS  OF GOODWILL. The limitation of liability in this clause 8 shall not apply to liability for death or personal injury to the extent that applicable law prohibits such limitation. Solely to the extent that an applicable jurisdiction does not allow the exclusion or limitation of incidental or consequential damages, this limitation and exclusion does not apply. Nothing contained in this EULA limits VCE's liability to Licensee for VCE's gross negligence or for the tort of fraud. The foregoing provisions of this Section 8 shall be enforceable to the maximum extent permitted by applicable law.

9. Indemnity. Licensee will defend VCE from any claims, liabilities and expenses (including court costs and reasonable attorney's fees) that are caused by Licensee's failure to comply with any provision of this EULA or caused by the acts or omissions of Licensee.  VCE will defend the Licensee from all third party claims, actions and lawsuits that are caused by  the  Software's  infringement  of  a  copyright,  trademark  or  patent  under  law  of  those countries that are signatories to the Berne Convention. VCE's obligations under this clause are subject to (i) Licensee providing VCE with prompt written notice of any claim or lawsuit, (ii) VCE having sole control of the defense and all negotiations for settlement or compromise thereof and (iii) Licensee reasonably cooperating in the defense  of  such  claim  or  lawsuit. VCE agrees to pay all settlements entered into by VCE, judgments finally awarded against Licensee and all attorney's fees and expenses for counsel hired by VCE.  Licensee may elect to participate in any such action with counsel of its own choice and expense. VCE will have no liability if the alleged infringement is based upon: (i) a combination of non VCE products,  (ii) use for a purpose or in a manner not proscribed by VCE,  (iii) use of an older version of Software when use of a newer Software would have avoided infringement (iv) any modification not made with VCE's written approval or any modification made by VCE due to Licensee's specific instructions, or (v) any  intellectual property right owned  or licensed by Licensee, its end users or any of its/their affiliates.

10. Notice to United States Government End Users. The Software and accompanying Documentation are deemed to be "commercial computer software" and "commercial computer software documentation," respectively, pursuant to DFAR Section 227.7202 and FAR Section 12.212, as applicable. Any use, modification, reproduction, release, performance, display or disclosure of the Software and accompanying Documentation by the United States Government 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.

11. Export Controls. The Software provided under this EULA is subject to (i) governmental restrictions on exports from the United States (U.S.); (ii) restrictions on exports from Ireland and other countries in which such Products and related technology are produced or located; and (iii) the importation and/or use of such Products and technology outside of the United States (collectively, "Export Laws"). Licensee will, at its sole expense, comply with all Export Laws, as well as all VCE export policies VCE makes available to Licensee. If Licensee is a Government End User or provides services using Products to a Government End User, additional terms and restrictions apply. Licensee represents that it will not use or transfer the Products for end use relating to any nuclear, chemical or biological weapons, or missile technology. Licensee agrees not to transfer, resell, or divert the Software, or to provide services using the Software to those countries that may be embargoed from time to time by the U.S. government.

12. High Risk Activities. The Software 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 Software could lead directly to death, personal  injury,  or  severe physical or property damage (collectively, "High Risk Activities"). VCE EXPRESSLY DISCLAIMS ANY EXPRESS OR IMPLIED WARRANTY OF FITNESS FOR HIGH RISK ACTIVITIES.

13. Governing Law. To the extent permitted by applicable law, this  EULA is governed  by and construed in accordance with the substantive laws of: (i) the State of New York and any dispute arising out of this EULA shall be referred to litigation in the State of New York if the Licensee is located in the United States, Mexico, or Canada; or (ii) England if the Licensee is based in any country outside of those stated in (i) above, where any dispute arising out of this EULA shall be referred to binding arbitration, except as otherwise provided in the Master Purchase Agreement. If applicable, the seat of the arbitration shall be conducted in the English language and under English law in Paris, France and shall be finally settled under the Rules of Arbitration of the International Chamber of Commerce. Three arbitrators shall conduct the arbitration; each party to this EULA shall appoint one arbitrator and those two arbitrators shall appoint a third who shall act as chair. This EULA will not be governed by the conflict of laws rules of any jurisdiction or the United Nations Convention on Contracts for the International Sale of Goods, the application of which is expressly excluded.

14.  Privacy.  By entering into this EULA,  the Licensee recognizes that Supplier  may  process  personal data. Both Parties commit to abide by applicable international and national laws regarding data privacy, in particular EU Directive 95/46 and according to the provisions set up in the Master Agreement. In case of discrepancy, the most stringent provision shall have priority. In particular, Supplier commits to implement the technical and organizational security measures necessary to protect the personal data against unauthorized or unlawful processing, accidental or unlawful destruction or accidental loss, alteration, damage, unauthorized disclosure or unauthorized access by any person. VCE also warrants and represents that it will not transfer or process personal data to third parties in or out of the EU other than to their respective Affiliates and/before the other party has given prior consent. Supplier hereby affirms to Licensee that it currently abides by the safe harbor framework as set forth by the U.S. Department of Commerce regarding the collection, use and retention of data from the European Union, such framework providing an adequate level of protection for transfer of data to the US.  Upon termination of this EULA or when it ends, Supplier will stop immediately any data processing  and,  upon  request,  shall  restitute  to  Licensee  any  collected  data.

15.  Audit. During the term of this EULA, VCE will have the right, at its sole expense and upon no fewer than thirty (30) calendar days prior written notice, or may appoint an external independent audit organization, subject to (i) the execution of a non-disclosure agreement by such organization, and (ii) Licensee prior approval of such external independent audit organization, to conduct any audit no more often than once per year to ensure material compliance with terms of this EULA. VCE will use the information received during the audit solely for the purposes of this EULA and will honor any applicable privacy/data protection laws and otherwise maintain the confidentiality of such information in accordance with the terms of this EULA. The scope and process of the audit shall be mutually agreed on a case by case basis. VCE will pay the cost of any audit unless a material discrepancy indicating inadequate record keeping  or unpaid Software Fees is discovered. A discrepancy will be deemed material if it involves payment or adjustment of 10% or more of Software Fees, in which case Licensee will reimburse VCE for the cost of the audit up to a maximum of Ten Thousand Euros (10 000 euros) plus any unpaid amount, which such amounts shall: (i) be assessable only if they would have been due and owing under the terms and provisions of this EULA pursuant to a purchase order and/or an invoice; (ii) not include penalties, fines, or additional fees. VCE will conduct any audit or inspection during normal business hours on reasonable notice and will not interfere with Licensee's business activities. Licensee shall, without prejudice to other rights of VCE or its licensors, address any non-compliant situations identified by the audit by immediately procuring additional licenses.

16. Miscellaneous. This EULA sets forth all rights for the Licensee and is the entire agreement between the parties. This EULA supersedes any other communications, representations or advertising relating to the Software and Documentation. This EULA may not be modified except by a written addendum signed by duly authorized representatives of both parties to this EULA.   No provision hereof shall be deemed waived unless such waiver shall be in writing and signed by VCE. If any provision of this EULA is held invalid, the remainder of this EULA shall continue in full force and effect. Unless otherwise required by applicable law, the limitation period for claims for damages shall be 18 months after the cause of action accrues, unless statutory law provides for a longer limitation period.

17. Confidentiality. Licensee shall: (i) receive and maintain the Software in confidence; and (ii) use the same degree of care with respect to the Software as Licensee employs to protect Licensee's   own   Confidential    Information   from    unauthorized    use,   duplication    and/or disclosure, being, in any event, a high degree of care.

18. Force Majeure. Except for payment obligations pursuant to this EULA or any obligations relating to the protection of or restrictions applicable to the other party's Confidential Information or intellectual property, neither party shall be liable to the other in breach of this EULA by reason of any failure or delay in performance of its obligations to the extent such failure  or delay  arises  (and only  for  the duration  that the affected  party is precluded from performing)  as a result of acts of God, fire, disaster,  explosion,  vandalism,  storm, adverse weather  conditions,  national strikes,  labor disputes  or disruptions,  epidemic, wars,  national emergencies,   riots,  civil  disturbances,   shortages   of   materials,   actions   or   inactions  of Government  authorities,  terrorist  acts,  lockout, work  stoppages,  border  delays,  failures  or interruptions of utilities or telecommunications equipment or services, system failures or any other cause or event that is beyond the reasonable control of the party.

19. VCE Customer Contact.    If Licensee has any questions concerning these terms and conditions, or if Licensee would like to contact VCE for any other reason, please call 972.980.8402 or, or write: VCE Company, LLC, Attention: Customer Service, 1500 N. Greenville Avenue, Suite 1100, Richardson, TX 75081, USA. Alternatively, Licensee may contact its local VCE entity at the number listed at http://www.vce.com.

Contact us

Atos
More info
trans-1-px
Our website uses cookies. By continuing to surf this website, you consent that we will continue using cookies to measure and understand how our web pages
are viewed and to improve the way our website works. If you do not agree, you can decide to disable cookies in your web browser as explained in our Privacy Policy
Accept cookies More Information