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Service and Maintenance Terms and Conditions

IF THERE IS A PRIOR WRITTEN AGREEMENT, EXECUTED BY DULY AUTHORIZED REPRESENTATIVES OF ENTERASYS AND YOU, TO THE EXTENT THAT THE TERMS OF THAT PRIOR AGREEMENT CONFLICT WITH THESE SERVICE AND MAINTENANCE TERMS AND CONDITIONS (THESE “TERMS”), THE TERMS OF THAT PRIOR WRITTEN AGREEMENT SHALL GOVERN ALL SERVICES (AS THAT TERM IS DEFINED BELOW). IN ALL OTHER INSTANCES, ALL OFFERS FOR SALE OF SERVICES ARE SUBJECT TO THESE TERMS, AND ANY PROPOSED ADDITIONS TO OR MODIFICATIONS MADE BY YOU ARE HEREBY EXPRESSLY REJECTED.

Terms and Conditions: SupportNet Technical Access, SupportNet Basic, SupportNet, SupportNet Premium, SupportNet On-site, SupportNet On-site Premium, and SupportNet Software Application Service

IMPORTANT—PLEASE READ: Your right to receive the services (the “Services”) offered under the contract you purchased (the “Contract”) is conditioned upon your acceptance of the following terms and conditions (the “Terms,” and collectively with the Contract, the “Agreement”). By accepting Services from Enterasys, you are agreeing to be bound by these Terms and the Contract.

1. SERVICE ENTITLEMENT.

Your site(s), associated SupportNet Service(s), product(s) and quantities delineated under the Contract (“Covered Product”) determine your entitlement to Services. You are responsible for reviewing the Contract to be sure that the information is accurate and complete. If you request (i) services, which are not outlined in the Agreement, or (ii) coverage for product(s), site(s) and quantities, including any third-party product, that is not listed on your Contract, such services or coverage may be provided on an “as available basis” and will be subject to additional fees. If there is any indication that support is being received on product for which the requirements of this Agreement have not been met, Enterasys reserves the right, upon reasonable notice, to perform an audit of your products and records. If Enterasys reasonably determines that unauthorized support is occurring, you may be charged the appropriate support fee as well as, without limitation, legal fees and audit fees and interest at the rate of one and a half percent (1 ½%) per month, calculated from the date on which unauthorized support was first received and compounded on each monthly anniversary date.

2. SERVICE TERM AND REGISTRATION.

  1. Term. The Enterasys SupportNet Services are provided for twelve (12) months or for the term contained in your SupportNet contract. Service must be purchased within sixty (60) days of the purchase of the Enterasys product to which they will be applied, or you may be charged a fee to inspect the product to determine its serviceability. You are responsible for all inspection and associated costs, including travel and related expenses, performed outside a fifty (50) mile radius of an Enterasys location.

  2. Registration. To establish service entitlement for Covered Product, you must identify a Contract Administrator to manage your Contract online (including initial product registration) and you must register all Covered Product serial numbers, site(s), and other required identifying information on Enterasys’ product registration Web page: https://epartners.enterasys.com/Cultures/en-US/Enterasys/Support/SCM/ (“Product Registration”). Promptly after Product Registration on our Website, Enterasys will use commercially reasonable efforts to stock appropriate depots to fulfill service levels. Only Enterasys products purchased directly from Enterasys or an Enterasys authorized distributor or other Enterasys authorized partner are eligible for Product Registration.

3. SERVICE PROVIDED.

(SupportNet Technical Access, SupportNet, SupportNet Premium, SupportNet On-site, SupportNet On-site Premium, and SupportNet Software Application Service)

  1. Bundled Product: If you purchase a bundled product that includes software, and you purchase support, Software Application Service terms also apply. Not all components of a bundled product may be eligible for service.

  2. All Service Levels:

    1. Telephone Support: You will have access to Enterasys’ Global Technical Assistance Center (“GTAC”) 24 hours a day, seven days a week for assistance with troubleshooting, Return Material Authorization (“RMA”) requests, post-implementation, and configuration questions. To contact the Enterasys GTAC, please refer to the phone numbers listed at http://www.enterasys.com/support/ for your region.
       
    2. Web Support: You may access Enterasys’ Web support at www.enterasys.com/support, which includes access to the Technical Knowledgebase and an on-line request form for inquiries that are not time sensitive. To access Enterasys’ restricted Web-based Services, you must first establish a Web account at the Enterasys support site.

  3. SupportNet Technical Access, SupportNet Basic, SupportNet Premium, SupportNet On-site, and SupportNet On-site Premium Service Levels:

    1. Firmware Upgrades: You are entitled to receive any firmware upgrades that Enterasys may develop and generally release with respect to any Covered Product. Firmware upgrades may be obtained either by contacting Enterasys’ GTAC or through Enterasys’ Website after establishing a Web account and are only available for Covered Product that is registered. You have no right to use the firmware upgrades for any other product or purpose. Your use of firmware upgrades shall be subject to the terms and conditions, including but not limited to restrictions on transferability, set forth in Enterasys’ Program License Agreement that came with the Covered Product you purchased. Your use of a firmware upgrade constitutes your acceptance of the terms and conditions of the Program License Agreement. Copies of the Program License Agreement are available upon request.

  4. SupportNet, SupportNet Premium, SupportNet On-site, and SupportNet On-site Premium Service Levels:

    1. Advanced Replacement: You are entitled to advanced replacement for Covered Product. After reasonable diagnosis and troubleshooting, should Enterasys determine that Covered Product is non-functioning, Enterasys will use commercially reasonable efforts to advance replace Covered Product within the purchased response time, using replacement parts selected by Enterasys. See Table 1 for response times and diagnosis requirements.

      1. Requests for advanced replacements shall be made to Enterasys’ GTAC. You must provide the Contract number, Covered Product description, serial number and any other required information for the product for which replacement is requested. After sufficient diagnosis and troubleshooting, the GTAC will confirm the existence of a defect and if a return is deemed appropriate by the GTAC, provide an RMA number to be used when returning the malfunctioning Covered Product. The replacement unit(s) will be delivered to the site of the Covered Product to be replaced as registered on the Website and identified in the Contract. If the Covered Product is advance replaced, you are responsible for returning the malfunctioning Covered Product to Enterasys within seven (7) business days from the date the advanced replacement item was received. The returned Covered Product becomes Enterasys’ property upon receipt.

      2. You shall return the replaced item to Enterasys in its original or comparable packaging sufficient to prevent damages in transit from electrostatic discharge, or other similar effect, and the RMA number must be clearly displayed on the packaging. You shall bear the risk of loss for any replaced item until it has been received at the Enterasys specified ship-to location. Any shipping fees, duties, taxes, or other similar charges associated with international shipment are your responsibility.

      3. If the replaced item is not returned within thirty (30) calendar days, (i) you shall be invoiced for the advanced replacement item(s) at Enterasys’ then-prevailing standard list prices and (ii) the RMA will be cancelled.

  5. SupportNet On-site and SupportNet On-site Premium Service Levels:

    1. On-Site Response: If you experience network problems related to the use of any Covered Product that cannot be resolved by the GTAC, and Enterasys and you jointly determine that on-site service is needed, Enterasys shall dispatch a network engineer to the Covered Product site. The network engineer’s response time shall correspond with the response time you purchased and must coincide with the level of advanced replacement entitlement selected. For response times see Table 1.

      1. You must provide Enterasys full access to the network and all necessary facilities.

      2. If the issue is related to a non-Enterasys product, you may be charged Enterasys’ then standard time and materials rates for such services.

  6. Software Application Service:

    1. Software Updates and Upgrades: Enterasys will provide updates and upgrades for the Covered Software Product(s) and all such updates and upgrades provided shall be deemed licensed pursuant to the End-User License Agreement. Upon request, Enterasys’ GTAC will provide reasonable telephone assistance for the installation of updates and upgrades. Copies of the Program License Agreement are available upon request.

      1. To the extent practicable, and within a reasonable period of time, Enterasys shall endeavor to notify customers via the Enterasys’ Support web page of any errors in any Covered Software Product(s). If it is determined that the error is due to a defect in the documentation, Enterasys reserves the right to correct the documentation and not to provide modification of the Software Product.

      2. Access to Enterasys’ Signature Database for Intrusion Detection System (“IDS”) software is also provided. If an IDS network sensor of customer detects an intrusion, it matches the detected packet against the Signature Database. If a match is found, the IDS network sensor reports the match to the IDS management console.

  7. Extended Warranty:

    1. Telephone Support: You will have access to Enterasys’ Global Technical Assistance Center (“GTAC”) Monday through Friday, 9 a.m. to 5 p.m., customer’s local time for assistance with troubleshooting, Return Material Authorization (“RMA”) requests, post-implementation, and configuration questions. To contact the Enterasys GTAC, please refer to the phone numbers listed at http://www.enterasys.com/support/ for your region.

    2. Web Support: You may access Enterasys’ Web support at www.enterasys.com/support, which includes access to the Technical Knowledgebase and an on-line request form for inquiries that are not time sensitive. To access Enterasys’ restricted Web-based Services, you must first establish a Web account at the Enterasys support site.

    3. Return to Factory Repair: You are entitled to “Return to Factory Repair” for Covered Product. If you desire to return a defective Covered Product for repair, you must notify Enterasys prior to returning the defective Covered Product and you may be required to troubleshoot the defective Covered Product with the GTAC to establish that the defective condition exists prior to receiving a Return Materials Authorization (“RMA”). Within 10 business days of the date of notification and determination that a defective condition exists, you will receive a RMA number, the location to which the defective Covered Product must be returned, and the method of transportation, which must be used to return the defective Covered Product. In no event will Enterasys accept any returned Covered Product that does not have a valid RMA number.

      1. When a Covered Product in need of repair is not located at the site you designated at Contract initiation and Product Registration, Enterasys reserves the right to charge Enterasys’ standard rates for the repair of that Covered Product.

      2. You are responsible for removing any add-on hardware and making backup copies of any operating software, as these may be lost or damaged in the repair process. The defective Covered Product must be in the as-shipped condition, with the exception of the claimed defect, when returned for repair or replacement and must be returned in the original packaging, or its equivalent, to provide the same degree of protection from electrostatic discharge, or damage in transit. All returns must have the RMA number prominently displayed on the outside of the shipping carton.

      3. Within 30 business days of receipt of the defective Covered Product, Enterasys shall use reasonable commercial efforts to return ship the repaired Covered Product or a replacement. Returned Covered Products shall be repaired or replaced in Enterasys’ sole discretion. You are responsible for all freight, duties, taxes, and similar charges incurred in returning a product for repair to Enterasys. Enterasys shall pay all freight incurred in returning the repaired product or its replacement to you, but you shall be responsible for any related duties, taxes, and similar charges.

      4. Enterasys reserves the right to monitor your RMAs to determine “No Problem Found” rates (“NPFs”) and identify products returned for repair requiring only a firmware upgrade. You will be notified if Enterasys determines, in its sole discretion, that the return rate reaches unacceptable levels. Upon such notification, you shall participate in a consultative meeting to discuss the findings. If you refuse, or are unable to meet, within a reasonable time, as determined in Enterasys’ sole discretion, you will be billed twenty-five percent (25%) of Enterasys' then prevailing list price plus all shipping and handling charges for any returned Covered Products for which no problem is found or for which only a firmware upgrade was required.

4. SERVICE RESTRICTIONS.

Restrictions on your service entitlement include the following:

  1. To facilitate dial-in diagnostic capability by Enterasys’ GTAC, you must provide an operational standards-based modem and all necessary authorizations to enable remote access by the GTAC.

  2. Geographic restrictions may prohibit Enterasys from offering all service options in certain areas. Enterasys reserves the right to refuse requests for service in such areas.

  3. When Enterasys ships replacement products, you are responsible for identifying any damage in transit and notifying the shipping company.

  4. If you choose any premium level of support (i.e. SupportNet Premium and SupportNet Onsite Premium), all supported devices at a single installation location (defined as a single physical location or address) must be covered under the same premium level, regardless of the number of maintenance agreements effective for that location.

5. SERVICES EXCLUDED.

The following services are not provided by Enterasys:

  1. Any customization or installation of hardware or software, or any visits to your site. Should you request services not included in the service level purchased, you must provide a purchase order or credit card information covering time and materials prior to Enterasys dispatching an engineer or otherwise providing such excluded services.

  2. Support or replacement of a product that is altered, modified, mishandled, destroyed, damaged by natural causes, electrical power, abnormalities or environmental conditions, or damaged due to a negligent or willful act or omission or use other than as specified in Enterasys’ specifications, or resolution of product problems resulting from third party-products or causes beyond Enterasys’ control.

  3. Services not included in your Contract and support or replacement of products not included in your Contract.

6. PAYMENT, RENEWAL FEES, TAXES, AND CUSTOMS REQUIREMENTS.

  1. Payment. Payment terms are net thirty (30) days from date of invoice. A finance charge at a compound rate of the lesser of one and one-half percent (1 1/2%) per month or the maximum rate permitted by law shall accrue and be payable on all past due sums. You agree to reimburse Enterasys for all collection and legal fees incurred due to your late payment or failure to make payment. In the event, and to the extent, that you are not purchasing Services directly from Enterasys, the foregoing shall not apply; provided, however, that you acknowledge and agree that Enterasys shall be entitled to, at its option, suspend its performance of Services hereunder or terminate this Agreement upon the provision of fourteen (14) days prior written notice in the event that (i) the party from whom you purchased Services is in default of its payment obligations to Enterasys with regard to your Contract; or (ii) you are in default of your payment obligations to such party. In either event, your sole recourse with respect to such suspension or termination of Services shall be against the party from whom you purchased the Services and you expressly release Enterasys from the same.

  2. Renewal Fees. You must renew your Contract prior to its expiration or Enterasys will have the right to charge a reinstatement fee of fifteen percent (15%) of the renewal fee. Enterasys may, in its discretion, change its support Service availability and fee for a Contract upon its renewal.

  3. Taxes. You are liable for any taxes, public charges, tariffs and export and import duties however designated, and any interest and penalties thereon, arising from the Contract or on the Service or use of any products, or any action taken hereunder, exclusive of taxes based upon Enterasys' net or gross income. Any such charges shall be in addition to charges specified for support services provided hereunder. To the extent that you are tax exempt, this Section shall not apply.
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  4. Customs Requirements. You must meet any customs requirements necessary for importation of replacement products hereunder, including payment of import duties, taxes, and fees (including storage) where applicable and securing any import documentation required (including, but not limited to, import permits and licenses) before requesting replacement products within countries in which Enterasys does not maintain a stock of replacement product. Enterasys is not responsible for delays due to customs, duties, or other local governmental or administrative imposed restrictions on the importation of products to countries in which Enterasys does not maintain a stock of replacement product.

7. LIMITED WARRANTY.

You must notify Enterasys promptly of any claimed breach of warranty and your sole and exclusive remedy for any such breach shall be, at Enterasys’ sole discretion, re-performance of the relevant Services or reimbursement of that portion of the fees paid in relation to such Services.

EXCEPT AS EXPRESSLY PROVIDED HEREIN, AND TO THE EXTENT PERMITTED BY APPLICABLE LAW, THE SERVICES AND PRODUCTS PROVIDED HEREUNDER ARE PROVIDED WITHOUT WARRANTY. NEITHER ENTERASYS NOR ITS SUPPLIERS MAKE ANY OTHER WARRANTIES, EITHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF TITLE, NONINFRINGEMENT, MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE, REGARDLESS OF ANY KNOWLEDGE OF YOUR PARTICULAR NEEDS. NO REPRESENTATION OR WARRANTY, INCLUDING BUT NOT LIMITED TO STATEMENTS OF CAPACITY, SUITABILITY FOR USE OR PERFORMANCE MADE BY ENTERASYS PERSONNEL SHALL BE CONSIDERED TO BE A WARRANTY BY ENTERASYS, FOR ANY PURPOSE, OR GIVE RISE TO ANY LIABILITY OF ENTERASYS WHATSOEVER. IF IMPLIED WARRANTIES MAY NOT BE DISCLAIMED BY APPLICABLE LAW, THEN ANY IMPLIED WARRANTIES ARE LIMITED IN DURATION TO THIRTY (30) DAYS AFTER DELIVERY OF THE SERVICE OR PRODUCT, AS THE CASE MAY BE, TO YOU.

8. LIMITATION OF LIABILITY.

IN NO EVENT SHALL ENTERASYS OR ITS AFFILIATES, DISTRIBUTORS, RESELLERS, OTHER PARTNERS, SUPPLIERS, OFFICERS, DIRECTORS, AGENTS, OR EMPLOYEES (COLLECTIVELY, “RELEASED PARTIES”) BE LIABLE TO YOU FOR ANY (I) INDIRECT, INCIDENTAL, SPECIAL, PUNATIVE, OR CONSEQUENTIAL DAMAGES, OR (II) LOST PROFITS, SAVINGS OR REVENUES OF ANY KIND, INCLUDING WITHOUT LIMITATION LOSS OF DATA, MESSAGES OR USE. THE FOREGOING LIMITATION SHALL APPLY REGARDLESS OF THE CAUSE OF ACTION UNDER WHICH SUCH DAMAGES ARE SOUGHT AND EVEN IF ENTERASYS HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THE RELEASED PARTIES’ AGGREGATE TOTAL LIABILITY ARISING OUT OF OR IN CONNECTION WITH THE AGREEMENT DURING THE TWELVE

(12) MONTH PERIOD FOR WHICH ANY FEE PAID RELATES, WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE) OR OTHERWISE, IS LIMITED TO THE AMOUNT PAID FOR PROVISION OF THE SERVICES IN RELATION TO THAT PERIOD.

9. FORCE MAJEURE.

Enterasys shall not be liable or deemed in default for any delay in performance under the Agreement resulting directly or indirectly from acts of God, war, insurrection, national emergency, fires, strikes, labor disputes, or any other cause beyond the reasonable control of Enterasys.

10. TERMINATION.

The Agreement may be terminated by Enterasys:

  1. Immediately if you (i) breach any term herein and fail to cure such breach within thirty (30) days of written notice of such breach, (ii) become insolvent, file bankruptcy or have a receiver or other similar officer appointed, or (iii) undergo a change in ownership or control.

  2. Upon fourteen (14) calendar days’ prior written notice if Enterasys determines, in its sole discretion, that you are detrimentally affecting Enterasys' ability to adequately support you by refusing or neglecting to (i) implement Enterasys' recommendations for corrective action to resolve any on-going problem or (ii) install updates or upgrades. In such event, previously paid support services fees shall not be refunded.

  3. Upon five (5) calendar days’ prior written notice in the event you do not pay applicable support services fees or any other monies due to Enterasys in full within thirty (30) days of Enterasys' invoice.

You may only terminate the Agreement:

  1. If Enterasys materially fails to perform in accordance with these terms and conditions, and such failure is not cured within thirty (30) days of written notice of such failure. Upon any such termination, any unused previously paid support service fees shall be refunded to you on a pro-rata basis based on the number of months remaining under the Agreement.

  2. With the mutual consent of Enterasys for the purpose of entering into a new agreement resulting from the purchase, upgrade or consolidation of Enterasys equipment.

11. CONFIDENTIAL INFORMATION.

Confidential information ("Information") means all business, technical, marketing and financial information, data, trade secrets, know-how, intellectual property, and computer programs of Enterasys and its suppliers whether clearly marked as confidential, proprietary or the like or not. You shall at all times, both during the term of the Agreement and thereafter, hold all Information in confidence and shall not disclose any Information to anyone except to those of your employees, agents, or contractors with a need to know for purposes of carrying out the Agreement and who are bound by obligations of confidentiality. Upon the expiration or termination of the Agreement, you shall return to Enterasys all Information (including any copies thereof) in your possession, custody, or control. You will indemnify Enterasys for any misuse of Information.

12. GENERAL.

  1. Export Controls. You acknowledge that the products, Services and other deliverables supplied to you hereunder are subject to export controls under the laws and regulations of the United States. You agree to comply with such laws and regulations governing use, export, re-export, and transfer of such products, Services and deliverables, and will obtain all required United States and local authorizations, permits, or licenses.
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  2. Entire Agreement. The Agreement, including any attachments, constitutes the entire and only agreement between Enterasys and you with respect to the furnishing of Services for the Covered Products included on the Contract, and supersedes all prior or contemporaneous discussions, representations, understandings or agreements, whether oral or in writing, between the parties with respect to the subject matter of the Agreement. Unless otherwise expressly provided herein, no modifications to the Agreement or any attachments shall be binding on either party unless made in writing and signed by duly authorized representatives of both parties.

  3. Governing Law. The Agreement shall be governed in accordance with the laws of the Commonwealth of Massachusetts. Any legal action brought pursuant to the Agreement shall be brought only in the State or Federal courts of Massachusetts and shall be initiated within a period of one (1) year following the discovery by the party bringing such action of the event giving rise to the cause of action. Both parties waive any objection to the personal jurisdiction of such courts.

  4. Waiver. The waiver by either party of a breach of any of the terms and conditions of the Agreement must be in writing and will not be construed as a waiver of any subsequent breach of such term or condition or the waiver of the provision itself. A party’s performance after the other party’s breach shall not be construed as a waiver of that breach.

  5. Assignment. This Agreement shall inure to the benefit of the parties’ successors and assigns. You may not assign or otherwise transfer, in whole or in part, the Agreement without the prior written consent of Enterasys. Enterasys may assign or otherwise transfer the Agreement in its sole discretion.

  6. Severability. In the event that any of the terms of the Agreement become or are declared to be illegal or otherwise unenforceable by a court of competent jurisdiction, such terms shall be null and void but all remaining terms shall remain in full force and in effect.

  7. Notices. Any notices given hereunder must be in writing and shall be effective upon mailing if mailed via certified mail or overnight courier or upon transmission if transmitted via facsimile or electronic mail.

13. AUTHORIZATION.

The individual accepting the terms and conditions of the Agreement acknowledges that he/she is an authorized representative and has read and agrees to the terms and conditions of the Agreement.

Table 1: Advanced Replacement and On-Site Response Levels
Response Time

Enterasys Diagnosis Required by

SupportNet:  Next Business Day response (Business Day refers to Monday-Friday 8 a.m. to 5 p.m. excluding Enterasys recognized holidays) (“Next Business Day”)

United States of America and Canada – 5:00 p.m. Local Customer Time

European Locations – 5:00 p.m. Central European Time

Asia Pacific Locations – 4 p.m. Local Customer Time

South American Locations and Mexico – 5:00 p.m. Eastern Standard Time

 

 

SupportNet Premium:  Around-the-Clock response, 4-hour or 2-hour response time.  Not available in all locations.  (“Round the Clock”)

United States of America, Canada, Mexico, South America, European Locations, and Asia Pacific locations – no deadline requirement for diagnosis.