North America Terms and Conditions of Sale
The following are the terms and conditions under which Enterasys Networks, Inc.
("Enterasys") sells its hardware products and licenses its software products
(together "Products"). Any supply of Enterasys software (or firmware embedded
in a hardware product) shall in addition be governed by the terms of the software
license accompanying the Product in question, or otherwise specified by Enterasys.
1. Ordering, Prices & Delivery
1.1 To purchase and/or license Products, Purchaser must submit a purchase order
("Order") or like documentation to Enterasys
specifying all of the following, where applicable: (i) the types and quantities
of Products (ii) the applicable prices (iii) the quotation number with respect to
such Products (iv) the address for delivery (v) the incorporation by reference,
of these ter ms and
conditions (vi) the desired delivery date and (vii) any other information required.
All Orders will be governed by and cannot alter
these terms and conditions and are subject to acceptance by Enterasys.
1.2 Unless otherwise agreed, prices for Products shall be as listed in the Enterasys
price list current at the time of Purchasers submission of an Order to Enterasys.
1.3 All Products shall be shipped FOB Origin, with risk of loss, theft, damage and
destruction passing to Purchaser upon delivery
to a carrier for shipment to Purchaser. Purchaser shall be responsible for filing
claims directly with the carrier.
1.4 In the event that Purchaser wishes to place an Order for Services any such Order
will be subject to Enterasys Professional
Services Terms and Conditions.
2. Payment and Title
2.1 In relation to the sale of Products, Enterasys shall invoice purchaser upon
shipment. In relation to the performance of
Services, unless otherwise agreed, Enterasys shall invoice Purchaser upon commencement
of performance. Purchaser shall pay Enterasys within (30) thirty days from the date
of invoice subject to maintaining a credit arrangement satisfactory to Enterasys.
Enterasys shall be entitled to charge interest on overdue amounts at a rate of two
percent (2%) per annum or the maximum permitted by law, whichever is greater.
2.2 In the event of non-payment Enterasys may, at its option and without prejudice
to any other remedy at any time after payment has become due, enter in or upon the
Purchaser's premises and take possession of the Product(s) listed on the relevant
Order acceptance form or cease performance of all Services. This right shall continue
until payment is received by Enterasys.
2.3 Title to the Products, excluding any software and firmware, shall pass to the
Purchaser only when prices, taxes and charges
due hereunder are paid in full. Title to software and firmware shall remain in Enterasys
or its suppliers at all times. Until title passes to the Purchaser, Purchaser shall
keep such Products in good repair and, to the extent possible, physically separate
from Purchaser's own property and that of any third party and clearly identifiable
as being owned by Enterasys.
Prices and charges are exclusive of, and the Purchaser is responsible any duties
or taxes. Value Added Tax shall be charged at the
rate in effect on the date of the invoice.
4.1 Certain Products may be subject to export or import control laws and regulations
of the U.S. government, the government of
the Republic of Ireland and other governments and governmental organizations including
but not limited to the European Union. Purchaser shall be responsible, at its own
expense, for complying with such regulations whenever it exports or re-exports
controlled Products or technical data obtained from Enterasys or any product produced
directly from such controlled technical data and Purchaser shall require any party
to which it re-sells the Products to do the same.
4.2 Purchaser certifies that neither Products nor any technical data related thereto
nor the direct product thereof (i) are intended to be used for any purpose prohibited
by applicable export laws or regulations, including but not limited to nuclear proliferation,
and (ii) are intended to be shipped or exported, either directly or indirectly,
to any country to which such shipment is prohibited
by applicable export laws or regulations. Purchaser shall hold harmless and indemnify
Enterasys from any damages and any government sanctions resulting to Enterasys from
a breach of the foregoing.
Purchaser may cancel any Order without charge more than thirty (30) days before
scheduled delivery. If the Purchaser cancels or
reschedules all or any part of any Order or fails to meet any obligation hereunder
causing cancellation or rescheduling of any
Order or portion thereof thirty (30) days or less before the scheduled delivery
date, the Purchaser agrees to pay to Enterasys a cancellation charge of 15% of the
value of the cancelled Order. Orders may not be cancelled after delivery. Reschedules
the prior written approval of Enterasys.
6.1 New Products are covered by the standard Enterasys warranty set out at http://www.enterasys.com/support/warranty.aspx
as that may be amended from time to time. Enterasys warrants that it will
perform Services with reasonable skill and care and in accordance with current good
industry practice. Purchaser undertakes that it will provide Enterasys with such
Enterasys Terms and Conditions 1/16/2012
information as may be necessary to enable the performance of the Services including,
without limitation, a safe working environment, adequate access to premises and
the appropriate network.
6.2 SAVE AS SET OUT IN SECTION 6.1 ENTERASYS DOES NOT WARRANT THAT THE PRODUCTS
WILL MEET THE REQUIREMENTS OF PURCHASER OR THAT OPERATION OF THE PRODUCTS WILL BE
UNINTERRUPTED OR ERROR-FREE. EXCEPT AS EXPRESSLY PROVIDED HEREIN, AND TO THE EXTENT
PERMITTED BY APPLICABLE LAW, THE PRODUCTS AND SERVICES ARE PROVIDED WITHOUT WARRANTY.
NEITHER ENTERASYS NOR ITS SUPPLIERS MAKE ANY OTHER WARRANTIES, EITHER EXPRESS OR
IMPLIED (WHETHER BY STATUTE OR OTHERWISE), INCLUDING, BUT NOT LIMITED TO, THE IMPLIED
WARRANTIES OF TITLE, NON-INFRINGEMENT, SATISFACTORY QUALITY AND FITNESS FOR A PARTICULAR
PURPOSE, REGARDLESS OF ANY KNOWLEDGE OF PURCHASER'S PARTICULAR NEEDS. NO REPRESENTATION
OR WARRANTY, INCLUDING BUT NOT LIMITED TO STATEMENTS OF CAPACITY, SUITABILITY FOR
USE OR PERFORMANCE, WHETHER MADE BY ENTERASYS PERSONNEL OR OTHERWISE 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 DAYS AFTER DELIVERY
OF THE PRODUCT TO THE PURCHASER OR SUCH LONGER PERIOD AS MAY BE MANDATORY ACCORDING
TO APPLICABLE LAW.
7. Limitation and Exclusion of Liability
7.1 IN NO EVENT SHALL ENTERASYS OR ITS SUPPLIERS, OFFICERS, DIRECTORS, AGENTS, OR
LIABLE TO PURCHASER FOR ANY (I) INDIRECT OR INCIDENTAL DAMAGES, (II) SPECIAL, PUNITIVE
OR CONSEQUENTIAL DAMAGES, (III) LOST PROFITS, SAVINGS OR REVENUES OF CONSEQUENTIAL
DAMAGES, (III) LOST PROFITS, SAVINGS OR REVENUES OF ANY KIND, INCLUDING WITHOUT
LIMITATION LOSS OF DATA, MESSAGES OR USE. THE FOLLOWING 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 LIABILITY.
7.2 EXCEPT IN THE CASE OF DEATH OR PERSONAL INJURY RESULTING FROM ITS NEGLIGENCE
THE ENTIRE LIABILITY OF ENTERASYS AND PURCHASER'S EXCLUSIVE REMEDY FOR ANY DAMAGE
RESPECT OF EACH EVENT OR SERIES OF CONNECTED EVENTS SHALL BE LIMITED TO THE PRICE
PAID BY PURCHASER UNDER THE ORDER TO WHICH THE CLAIM RELATES.
8. Patents, Trademarks and Copyrights
Enterasys shall defend, at its expense, any claim (or related action) brought against
the Purchaser alleging that any Product supplied hereunder infringes a US patent,
trademark or copyright, and shall pay all costs and damages finally awarded provided
that Enterasys is given prompt written notice or such claim and given information,
reasonable assistance, and sole authority to defend or settle such claim and given
information, reasonable assistance, and sole authority to defend or settle such
claim. In the defense or settlement of any such claim Enterasys may obtain for the
Purchaser the right to continue using any such Product, or
replace or modify it so that it becomes non-infringing or, if such remedies are
not reasonably available, grant the Purchaser a credit for the Product less depreciation
on a straight-line basis over an assumed five year life upon Purchaser's return
of the Product to Enterasys. Enterasys shall not be liable if the alleged infringement
is based upon the use or sale of any of its Products in combination with other products
or devices not furnished by Enterasys. Enterasys disclaims all other liability for
trademark or copyright infringement including without limitation indirect or consequential
loss or damage or loss of profit.
9. Confidential Information
9.1 Confidential information ("Information") means all business, technical,
marketing and financial information, data and
computer programs whether clearly marked as confidential, proprietary or the like
9.2 Should the Purchaser receive the Information of Enterasys it shall hold such
Information in confidence and not disclose such Information to anyone except those
of its employees and agents having a need to know for the purpose of the business
transacted under these terms and conditions.
9.3 The obligations of Purchaser pursuant to this Section 9 shall not extend to
any Information which it (i) can demonstrate through written documentation was already
known to the Purchaser; (ii) becomes known or generally available to the
public (other than by act of the Purchaser) subsequent to its disclosure; (iii)
is disclosed or made available in writing to the
Purchaser by a third party having a bona fide right to do so and without similar
confidentiality obligations; (iv) is independently developed by the Purchaser as
demonstrated by its business records; or (v) is required to be disclosed by subpoena
process of law or by government regulator, stock exchange or similar entity, provided
that the Purchaser uses its best endeavors
to resist disclosure, promptly notifies Enterasys of the occurrence of the requirement
to disclose and provides the opportunity and a reasonable period of time, prior
to disclosure, for Enterasys to contest or limit such disclosure.
10. General Provisions
10.1 These terms and conditions comprise all the terms, conditions, representations,
warranties and agreements of the parties with
respect to the subject matter hereof and supersede and replace any previous conditions,
representations, negotiations, proposals, commitments, writings, publications and
understandings of any nature whatsoever made between the Purchaser and Enterasys
for the supply of Products.
Enterasys Terms and Conditions 1/16/2012
10.2 Purchaser shall not be entitled to deduct or set off any claims for any money
due or to become due from Enterasys by reason of any counterclaim arising out of
these terms and conditions or any other agreement with Purchaser against amounts
due to Enterasys hereunder.
10.3 If any provision hereof is determined to be legally unenforceable or invalid,
the remaining provisions will continue in full force and effect and the parties
will substitute a provision which most closely approximates the economic effect
and intent of the invalid provision.
10.4 The failure by Enterasys at any time to require performance by the other party,
or to claim a breach of these terms and
conditions, will not be construed as permitting or affecting any subsequent breach
or right to require performance.
10.5 No contract subject to these terms and conditions is assignable without the
prior written approval of Enterasys.
10.6 Enterasys Products are not intended to be supplied for direct control of nuclear
facilities or for air traffic control. Enterasys may require additional contractual
safeguards for any nuclear and air traffic control applications.
10.7 If any Product supplied hereunder is transferred to a third Party, the Purchaser
shall take reasonable steps and, at Enterasys' reasonable request, notify such
third party of any Enterasys engineering or product safety notices.
10.8 These terms and conditions shall be governed by the law of the Commonwealth
of Massachusetts and any disputes hereunder shall be subject to the non-exclusive
jurisdiction of the Commonwealth of Massachusetts.
Enterasys Terms and Conditions 1/16/2012