STORViX General Terms and Conditions
The terms (“Terms”) found hereunder are applicable to any and all STORViX Products, Software and/or Services purchased by or on the behalf of a customer (the legal entity that buys the Products, Software and/or Services from STORViX) (“Customer”) or directly from STORViX AB (“STORViX”) for their own internal use only. The terms are exclusive towards all other Terms and Conditions. These Terms form a legally binding contract and agreement between the Customer and STORViX for the purchase of Products, Software and Services (“the Agreement”), unless Customer has entered into a separate agreement with STORViX governing such sale. The terms set out on the STORViX website shall apply to Products, Software and Services purchased for sale & resale by the Customer.
TERMS AND CONDITIONS
- Conﬁdential Information means collectively information of the disclosing party that is not generally known to the public, such as software, product plans, pricing, marketing and sales information, customer lists, “know-how”, or trade secrets, which may be designated as conﬁdential or which, under the circumstances surrounding disclosure, shall be mandatory treated as conﬁdential.
- Deliverables means tangible and intangible materials including reports, studies, base cases, drawings, ﬁndings, manuals, procedures and recommendations prepared by STORViX or its suppliers, licensors in the course of providing the Services.
“STORViX-branded” means IT hardware, software and related products and services which are marked with the STORViX logo or included in the STORViX product and service offering or sold under the STORViX brand and components thereof, excluding (1) Third Party Products and (2) any parts or components added after delivery of the Products.
- Intellectual Property Rights means any patent, copyright, database right, moral right, design right, registered design, trade mark, service mark, domain name, metatag, utility model, unregistered design or, where relevant, any application for any such right, or other industrial or intellectual property right subsisting anywhere in the world and any intellectual property rights in know-how, documentation, and techniques associated with the Deliverables or Materials.
- Materials means all content and other items included with or as part of the Products, Services, Software, or Deliverables, such as text, graphics, logos, button icons, images, audio clips, information, data, photographs, graphs, videos, typefaces, music, sounds, and software.
- Order Documents means the quotation and/or the order conﬁrmation and/or the invoice sent by STORViX to the Customer which describes the Products, Software and Services purchased by the Customer under the Agreement as well as Prices, payment terms and other provisions.
- Price(s) means the gross price payable for the Products, Software and/or Services including the charges set out in clause 4.2
- Product(s) means computer hardware and related products supplied by STORViX under the Agreement.
- Service(s) means the services provided by STORViX as described in any Service Documents.
- Software means any software, in object code format, including (as applicable) operating system software, protocols, ﬁrmware, backup and recovery, disaster recovery, storage eiciency, and management software, library, utility, tool, or other computer or program code, in object (binary) or source- code form, as well as related documentation, provided by STORViX to the Customer. Software includes software (1) provided by STORViX and locally installed on Customer’s hardware and/or equipment or (2) made available by STORViX and accessed by Customer through the internet or other remote or virtual means (such as websites, portals, and cloud-based solutions).
- Statement of Work means any mutually agreed statement of work describing speciﬁc Services and/or Deliverables as agreed between the Customer and STORViX.
- Third Party Product(s) means any non STORViX-branded products, software, or services.
- Notices given under the Agreement must be in writing and shall be effective when delivered to the other party’s legal oicer at the address stated on STORViX’s invoice or equivalent valid electronic mailbox.
- Neither party may assign or transfer this Agreement without the prior written consent of the other party except that (1) no consent is required by STORViX to assign to its ailiated companies and (2) STORViX may subcontract its obligations under the Agreement but shall remain liable and responsible to the Customer for such obligations.
- This Agreement constitutes the entire agreement between the parties and each party acknowledges that in entering into this Agreement it has not relied on, and shall have no right or remedy in respect of, any statement, representation, assurance or warranty (whether made negligently or innocently) other than as expressly set out in this Agreement. Nothing in the Agreement shall limit or exclude any liability for fraud or fraudulent misrepresentation.
- Any changes to this Agreement or to any order placed pursuant to it shall not be valid or binding unless it is in writing and agreed by parties. If any provision of this Agreement should be found to be void or unenforceable, such provision will be struck out or modiﬁed to the extent necessary to comply with the law, and the remainder of this Agreement shall remain in full force and effect.
- A waiver by either party of the Agreement or delay or failure to enforce a right under the Agreement shall not constitute a waiver of any subsequent breach of the Agreement.
- A person who is not a party to the Agreement shall have no right under the Contracts (Rights of Third Parties) Act 1899 to enforce any term of the Agreement.
- This Agreement shall be governed by and construed in accordance with the laws of Sweden. Any dispute, controversy or claim arising out of or in connection with this Agreement, or the breach, termination or invalidity thereof, shall be ﬁnally settled by arbitration administered by the Arbitration Institute of the Stockholm Chamber of Commerce (the “Institute”). The place of arbitration shall be Malmö, Sweden. The language to be used in the arbitral proceedings shall be English. The Rules for Expedited Arbitrations of the Institute shall apply, unless the Institute, taking into account the complexity of the case, the amount in dispute and other circumstances, determines, in its discretion, that the Arbitration Rules of the Institute shall apply. In the latter case, the Institute shall also decide whether the arbitral tribunal shall be composed of one or three arbitrators.
- The Parties undertake and agree that all arbitral proceedings conducted with reference to this arbitration clause will be kept strictly conﬁdential. This conﬁdentiality undertaking shall cover all information disclosed in the course of such arbitral proceedings, as well as any decision or award that is made or declared during the proceedings. Information covered by this conﬁdentiality undertaking may not, in any form, be disclosed to a third party without the written consent of the other Party. This notwithstanding, a Party shall not be prevented from disclosing such information in order to safeguard in the best possible way his rights vis-à-vis the other Party in connection with the dispute, or if such a right exists pursuant to statute, regulation, a decision by an authority, a stock exchange contract or similar.
- Any quotes issued by STORViX shall be valid for 30 days unless stated otherwise in the quote.
- Customer will submit all Purchase Orders to STORViX electronically via email. Each Purchase Order will be based on, and refer to, a valid and current price quotation and will include relevant Product and Services information, appropriate legal entities, “ship to” and “bill to” locations and requested delivery date. All Purchase Orders are subject to acceptance by STORViX.
- Changes in a product, software or service may occur after a Customer places an order but before STORViX ships the Product or Software or performs the Service, and Products and Software or Services Customer receives might display minor differences from the Products, Software, or Services per Customer orders and will meet or exceed material functionality and performance of the Products, Software or Services per original order.
- Variation order, customer may request variations to the scope of STORViX obligations. STORViX shall have no obligation to accept such variation until both STORViX and Customer have executed a variation order form.
- Customer may request a reschedule of a requested delivery date one time per Purchase Order without additional charge, the request is subject to acceptance by STORViX.
- Order Cancellations are subject to STORViX approval and applicable charges. STORViX shall have no obligation to accept order cancellation until both STORViX and Customer have executed an order cancellation form.
4.PRICE AND PAYMENT
- Prices for the Products, Software and Services shall be stated in the Order Documents issued by STORViX. Where deliveries occur in installments or phases STORViX may need to adjust Prices for Products, Software or Services due to changes in exchange rates, taxes, duties, freight, levies and purchase costs. Quotes provided by STORViX exclude value added tax and any other taxes, levies, and shipping charges unless expressly set out in the quote. Such charges are payable by Customer in addition to the prices quoted and may appear as separate items on the Order Documents.
- Payment for Products, Software or Services must be received by STORViX prior to STORViX shipping the Products or providing the Software or Services to Customer or, if agreed in writing, within the time period noted on the Order Documents, or if not noted, within 30 days from the date of the invoice. Payment shall be made to the account indicated by STORViX (as may be amended from time to time.) Time for payment shall be of the essence. If any sum due from the Customer to STORViX under the Agreement is not paid by the due date for payment then (without prejudice to any other right or remedy available to STORViX), STORViX shall be entitled to cancel or suspend its performance of the Agreement or any order including suspending deliveries of the Products and/or Software and suspending provision of the Services until arrangements as to payment or credit have been established which are satisfactory to STORViX. STORViX may invoice parts of an order separately.
- All payments made or to be made by Customer to STORViX under this Agreement shall be made free of any restriction or condition and without any deduction or withholding (except to the extent required by law) on account of any other amount, whether by way of set-off or otherwise.
- Title to the works shall remain with STORViX until full payment therefore has been made. If Customer fails to pay any installment on the Price within thirty (30) days from the due date, STORViX may enter any premises of Customer where the Product is located and repossess it in compliance with applicable law.
Therefore, until full payment is received, the Customer will (1) hold the Products on a ﬁduciary basis as STORViX’s bailee (2) store the Products (at no cost to STORViX) separately from all other goods of the Customer or any third party in such a way that they remain readily identiﬁable as STORViX’s property (3) not destroy, deface or obscure any identifying mark or packaging on or relating to the Products (4) maintain the Products in satisfactory condition and keep them insured on STORViX’s behalf for their full price against all risks to the reasonable satisfaction of STORViX. On request Customer shall produce the policy of insurance to STORViX. The Customer grants STORViX, its agents and employees an irrevocable license at any time to enter without restriction any premises where the Products are or may be stored without prior notice in order to inspect them, or, where Customer’s right to possession has terminated, to recover them. STORViX shall be entitled to maintain an action against Customer for the price of the Products notwithstanding that legal, equitable and beneﬁcial title to and property in the Products has not passed to the Customer.
- In the case where Customer does not pay for subscriptions as agreed in the Order Document, STORVIX reserves the right to cancel the services and products with immediate action and STORViX may enter any premises of Customer where the Product is located and repossess it in compliance with applicable law.
- Customer is solely responsible for the payment of taxes, fees, duties and charges, and all related penalties and interest, that arise from its utilization or STORViX’s provision of the Products and/or Services. If such taxes are incurred, including any withholding taxes, the sum payable by Customer (in respect of which such deduction or withholding is required to be made) will be increased to the extent necessary to ensure that STORViX receives payment in full of an amount equal to the invoiced amount. If Customer is tax-exempt, then Customer will provide STORViX with tax exemption certiﬁcates or other documentation acceptable to the taxing authorities not later than 15 days from the date Customer places a Purchase Order with STORViX. If Customer does not provide such documentation to STORViX, STORViX reserves the right to include such taxes in the invoice. In addition to the stated prices, Customer will be liable for all applicable duties, license fees and taxes for Products shipped across international borders in accordance with the applicable trade term speciﬁed or as otherwise may apply.
- Delivery terms (including insurance premiums and freight) shall be in accordance with the Incoterm rule speciﬁed in the Quote. If no terms are speciﬁed, delivery of the Equipment shall be Ex Works (Incoterms 2020).
- The parties are aware of global supply chain interruptions, including shortages and delays of semiconductors, other hardware components and limited transportation availability and extended lead times. STORViX has used reasonable efforts in preparing the Agreement and relied on information available as of the date hereof. However, the Customer acknowledges that despite such reasonable efforts, STORViX may not be in a position to timely fulﬁll all its obligations under the Agreement. As a result, the Customer accepts that timetables for STORViX’s performance may have to be extended and waives its rights to remedies for such delays under the Agreement and applicable law. STORViX shall notify Customer of the delay within reasonable time, including expected duration if such estimation is possible. To the extent the length of a delay can be mitigated, such actions shall be agreed on a case-by-case basis between the parties.
- Delivery of Hardware, Software pre- installed on Hardware and applicable Third-Party Branded Products occurs according to the applicable trade term speciﬁed on the STORViX price quotation or as agreed to by STORViX on a case by case basis.
- Delivery of Software that is not pre- installed on Hardware and applicable Third-Party Branded Products occurs when STORViX makes the enabling key available electronically via email or otherwise to Customer or, if an enabling key is not required, when STORViX makes such Software or Third-Party Branded Product available for download or use electronically via email or otherwise by Customer.
- STORViX shall deliver the Products to Customer’s location as set out in the Order Documents. Delivery dates are non-binding and time for delivery shall not be of the essence. If no delivery dates are speciﬁed, delivery shall be within a reasonable time. Delivery of Products may be made in installments. STORViX shall not be liable for any loss (including loss of proﬁts), costs, damages, charges or expenses caused directly or indirectly by any delay in the delivery of the Products, nor will any delay entitle the Customer to terminate or rescind the Agreement. STORViX shall only be liable for any non-delivery of Products if Customer gives written notice to STORViX within 7 days of the date when the Products would, in the ordinary course of events, have been delivered.
- The Products shall be at the risk of the Customer or its representative from the time of delivery. Risk of loss or damage to the Products and title to any Hardware in the Products will pass to Customer upon delivery.
- Acceptance of Products by Customer will occur upon delivery, and acceptance of Services by Customer will occur when such Services are rendered, unless otherwise agreed in an Engagement Document.
- Customer shall inspect the Products to identify any missing, wrong or damaged Products or packaging, and notify STORViX of any such issues which would be apparent on reasonable inspection and testing of the Products within 7 days of the date of delivery of the Products. Where the defect or failure would not be so apparent within 7 days of the date of delivery, Customer shall notify STORViX in writing of any defects or other failure of the Products within a reasonable time. If Customer does not comply with the notiﬁcation requirements in this clause, Customer shall not be entitled to reject the Products; STORViX shall have no liability for such defect or failure, and Customer shall be bound to pay for the Products as if they had been delivered in accordance with the Agreement. STORViX shall, at its discretion, repair or replace Products rejected in accordance with this clause.
- If for any reason the Customer does not accept delivery of any of the Products when they are ready for delivery, or STORViX is unable to deliver the Products on time because Customer has not provided appropriate instructions, documents, licenses or authorizations then the Products will be deemed to have been delivered, risk passing to Customer (including for loss or damage caused by STORViX’s negligence) and STORViX may:
- store the Products until actual delivery and Customer shall be liable for all related costs and expenses (including without limitation storage and insurance); or
- sell the Products at the best price readily obtainable and (after deduction of all reasonable storage and selling expenses) charge Customer for any shortfall below the Price for the Products.
- For subscription based products and services, STORViX is and remains at all time during the term of the Agreement the owner of the Products and shall be indicated on the Products by Customer with a clearly visible sign.
- Customer shall not sell, transfer, lease, rent, charge, pledge or create any lien over the Products.
- Customer shall keep the Products free at all times from any kind of limitation, execution or any other legally imposed measure and not allow the creation of any lien over the Products.
- Customer shall promptly notify STORViX in writing of any damage to the Products or any theft, seizure or loss of possession of the Products, and promptly inform STORViX of any change in the location of the Products.
7.CARE TAKING AND MAINTENANCE
- While the Agreement is in force Customer agrees to fulﬁll the following conditions and acknowledges them as being of the greatest importance for the safe and eicient functioning of the Products;
- To keep the products in a physical location optimized for data storage products, corresponding to the minimum requirements of being able to keep the location locked from non-qualiﬁed personnel; secure from heat, ﬁre, ﬂames and water; temperature and humidity control, dedicated power supply for data storage and protected from burglary;
- to comply with the STORViX Technical Documentation and support necessary SmartCARE operations executed by STORViX or Customer;
- to use properly trained staff for the operation, maintenance, cleaning and monitoring of the Products;
- not to make or permit any addition or otherwise do anything to the Products which might adversely affect the safe operation of the Products and/or the integrity of Products performance;
- to maintain accurate records of all servicing, and maintenance of the Products to be shown to STORViX promptly upon STORViX’s request.
- Customer shall be responsible for all costs of operation, maintenance, cleaning and repair of the Product, unless included in the Order Document as a Service where the scope of Services as stated in the Agreement shall apply.
- Customer shall be responsible for all repairs and refurbishing costs of the Products due to Customer’s not keeping a suicient level of maintenance and cleaning of the Products throughout the initial Contract period and its renewals.
- Customer shall keep the Products under the insurance of assets within the Customers premises. Customer is liable for the Product, and cost of it’s replacement, in case of burglary, ﬁre or other external damage to the unit while the unit being held by the Customer.
- For subscription based products and services, upon termination of the Agreement, Customer must return applicable Equipment to STORViX in the same condition as it was leased or rented, with the exception of normal wear and tear and any deviation of such conditions as approved in writing by STORViX.
- STORViX shall provide Services, Software, Hardware or Deliverables to the Customer in accordance with the Order Documents. STORViX may, at its option, propose to renew the Service and the Software license by sending the Customer an invoice or, subject to prior notiﬁcation, continuing to perform the Service or make the Software available to Customer. Customer is deemed to have agreed to such renewal of the Service and Software license by paying such invoice by its due date or by continuing to order Services or use the Software.
- All Intellectual Property Rights embodied in the Materials and Deliverables shall belong solely and exclusively to STORViX, its suppliers or its licensors except as expressly granted in this Agreement.
- Subject to payment in full for the applicable Services, STORViX grants the Customer a non-exclusive, non-transferable, royalty-free right to use the Materials and Deliverables solely (1) in the country or countries in which STORViX delivers the Services, (2) for its internal use, and (3) as necessary for Customer to enjoy the beneﬁt of the Services as stated in the applicable Service Documents.
- STORViX may cancel or suspend its performance of the Services or Customer’s access or any user access to the Software provided by STORViX in connection with the provision of the Services where STORViX is required to do so (1) by law, (2) by order of a court of competent jurisdiction, or (3) when STORViX has reasonable grounds to believe that Customer (or Customer’s users) are involved in any fraudulent or other illegal activities in connection with the Agreement.
- It may be necessary for STORViX to carry out scheduled or unscheduled repairs or maintenance, or remote patching or upgrading of the Software provided by STORViX in connection with the provision of the Services and which is installed on the Customer’s computer system(s) (“Maintenance”), which may temporarily degrade the quality of the Services or result in a partial or complete outage of the Software. Any degradation or interruption in the Software or Services during such Maintenance shall not give rise to a refund or credit of any fees paid by Customer. Such repairs shall be planned and executed in alignment with the customer operations and conﬁrmed with the customer.
- Customer agrees that the operation and availability of the systems used for accessing and interacting with the Software provided by STORViX in connection with the provision of the Services (including telephone, computer networks and the internet) or to transmit information can be unpredictable and may from time to time interfere with or prevent access to, use or operation of the Software. STORViX shall not be liable for any such interference with or prevention of Customer’s access to, use or lack of operation of the Software.
- During the performance of the Services or in connection with the Customer’s use of the Solution provided by STORViX in connection with the provision of the Services, it may be necessary for STORViX to obtain, receive, or collect performance data or information, including system speciﬁc data of the STORViX provided solution (collectively, the “Data”). The Customer grants STORViX a non-exclusive, worldwide, royalty-free, perpetual, irrevocable license to:
- use, compile, distribute, display, store, process, reproduce, or create derivative works of the Data solely for the purposes set out in Agreement;
- a license to aggregate the Data with other data for use in an anonymous manner for STORViX’s marketing and sales activities; and
- a right to copy and maintain such Data on STORViX’s servers (or the servers of its suppliers) during the term of the Agreement.
- Customer represents and warrants that it has obtained all rights, permissions, and consents necessary to use and transfer the Data within and outside of the country in which the Customer is located in connection with STORViX performance of the Services or the Customer’s use of the Software.
- Where the Services purchased consist of repair of STORViX-branded Products, such Services shall be those repair services that are necessary to ﬁx a defect in materials or construction of any Products covered by this Agreement. Preventive maintenance is not included and STORViX shall not be responsible for repairs of STORViX-branded Products caused by problems with Software or Customer provided Third Party Products. Unless expressly stated in a Service Document, Services do not include repair of any Products or Product component that has been damaged as a result of (1) work carried out by anyone other than STORViX or its representatives (2) accident, misuse, or abuse of the Product or Product component (such as, without limitation, use of incorrect line voltages or fuses, use of incompatible devices or accessories, improper or insuicient ventilation, or failure to follow operating instructions) by anyone other than STORViX or its representatives; (3) the moving of the Product from one geographic location or entity to another; or (4) an act of nature, including without limitation, lightning, ﬂooding, tornado, earthquake, or hurricane. Parts used in repairing or servicing Products may be new, equivalent-to-new, or reconditioned.
- Customer authorizes STORViX to use or access any Customer provided Third Party Products as necessary or as requested by the Customer in STORViX’s performance of the Services, including without limitation, copying, storing, and reinstalling a backup system or data. Customer shall defend, indemnify, and hold STORViX harmless from any third party claim or action arising out of Customer’s failure to provide such authorization (including without limitation, obtaining appropriate licenses, Intellectual Property Rights, or any other permissions, regulatory certiﬁcations, or approvals associated with technology, software, or other components).
8.10. Customer commit to ensure the solution is properly installed per the STORViX requirements and is connected in order to secure the submission of telemetry as required to secure the integrity and customer support of the solution and to deliver services stated in the Order Document.
- Software is subject to separate software license agreements accompanying the software media and any product guides, operating manuals, or other documentation presented to Customer during the installation or use of the Software.
- In the absence of license terms accompanying the Software, STORViX grants Customer a non-exclusive license non-transferable, worldwide, limited, and revocable license, without the right to sublicense to access and use the Software provided by STORViX. Software provided or made available to the Customer by STORViX in connection with the provision of the Services may be used only during the term of the Services and solely as necessary for Customer to enjoy the beneﬁt of the Services.
- For Software provided by STORViX in connection with the provision of the Services, the following clauses shall apply:
- The Customer may not: (1) copy (save for making a backup copy), adapt, license, sell, assign, sublicense, or otherwise transfer or encumber the Software; (2) use the Software in a managed services arrangement; or (3) use the Software in excess of the authorized number of licensed seats for concurrent users, sites, or other criteria speciﬁed in the applicable Order Documents.
- The Customer is prohibited from (1) attempting to use or gain unauthorized access to STORViX or to any third party’s networks or equipment; (2) attempting to probe, scan, or test the vulnerability of the Software or a system, account, or network of STORViX or any of its customers or suppliers; (3) interfering or attempting to interfere with service to any user, host, or network; (4) transmitting unsolicited bulk or commercial messages; (5) restricting, inhibiting, or otherwise interfering with the ability of any other person, regardless of intent, purpose, or knowledge, to use or enjoy the Software (except for tools with safety and security functions); or (6) restricting, inhibiting, interfering with, or otherwise disrupting or causing a performance degradation to any of STORViX’s (or STORViX’s suppliers’) facilities used to deliver the Services.
- Customer grants STORViX, or an agent designated by STORViX, the right to perform an audit of its use of the Software during normal business hours. Customer agrees to cooperate with STORViX in such an audit and to provide reasonable access to all records related to the use of the Software. The audit will be limited to veriﬁcation of Customer’s compliance with the terms of usage relating to such Software under this Agreement.
- Any source code is not licensed to Customer and shall remain the sole property of STORViX. Customer shall not copy, modify or enhance, disassemble reverse engineer, translate, or otherwise de-compile the object code of the Software Products except as permitted by mandatory law. Customer shall at all times treat the Software Products as STORiX Conﬁdential Information. The Customer will be responsible for all costs of
operating and maintaining the Software products and any upgrades of the Software Products is subject to a charge.
- The Customer shall not alter or remove any copyright, trademark, or other
proprietary-rights notices contained in the Software Products. The Customer shall not assign, sublicense, transfer, resell, rent, lease, lend, distribute, network or otherwise dispose of the Software Products or create or have created derivative works based on the Software Products. The Customer acknowledges that the Software Products might have trivial defects. STORViX will not be required to correct any such trivial defects.
- Subject to clause 10.3, STORViX warrants that STORViX-branded Products shall conform to their product speciﬁcation. Performance of any one of the options set out at clause 10.3 below shall constitute an entire discharge of STORViX’s liability under the warranties given in this clause 10.1.
- All warranties, conditions and other terms implied by law are to the fullest extent permitted by law, excluded from this Agreement
- STORViX shall at its own discretion, repair or replace STORViX-branded Products that do not comply with the warranties, provided STORViX is notiﬁed in writing of the alleged defect within 7 days of the time when the Customer discovers or ought to have discovered the defect and in any event within the Warranty Period. If STORViX elects to replace STORViX-branded Products or parts, STORViX shall deliver the replacement Products or parts to Customer at STORViX’s own expense at the address to which the defective STORViX-branded Products were delivered and the legal, equitable and beneﬁcial title to the defective Products or parts which are being replaced shall (if it has vested in the Customer) re-vest in STORViX. The Customer shall make any arrangements as may be reasonably necessary to deliver to STORViX the defective Products which are being replaced and STORViX shall be entitled to charge the Customer if such defective Product or parts are not returned on request.STORViX warrants that the Hardware will materially conform to the Documentation for a period of 3 years from the date of delivery, unless otherwise speciﬁed in the applicable Documentation (“Hardware Warranty Period”). In the event of any material non-conformity in the Hardware during the Hardware Warranty Period that is reproducible and veriﬁable, STORViX will, in its sole discretion and at its own expense, repair or replace the Hardware, or refund the amounts received by STORViX for the non-conforming Hardware. Replacement parts will be warranted for the remainder of the Hardware Warranty Period in effect for the original Hardware purchased, unless otherwise mandated by applicable law.
- STORViX warrants as Software Warranty for a period of 1 year from date of ﬁrst delivery of the Software or such other minimum period required under applicable law (“Software Warranty Period”) that (a) the Software will materially conform to the then-current
- Documentation; and (b) the Software media will be free from physical defects. STORViX does not warrant that Customer’s use of the Software will be error-free or uninterrupted. In the event of any material non-conformity in the Software during the Software Warranty Period that is reproducible and veriﬁable, STORViX will, in its sole discretion and at its own expense, repair or replace the Software, or refund the amounts received by STORViX for the non-conforming Software. STORViX sole responsibility in respect of the warranty given in this clause 10.2 and Customer’s sole remedy shall be the correction of any failure of the STORViX-branded Software so that it functions in material respects in accordance with the relevant speciﬁcations. This warranty does not cover software, other items, or any services provided by persons other than STORViX. Notwithstanding the foregoing, Software that is obtained for use solely in conjunction with a STORViX Cloud Provider’s services is provided “AS IS” and without warranty of any kind. Customer assumes all risks arising from the use of such Software together with a STORViX Cloud Provider’s offering.
- STORViX warrants that STORViX-branded Software will be capable of functioning in all material respects in accordance with the relevant speciﬁcations provided (1) Customer notiﬁes STORViX of any error or defects in the Software within 14 days of the time when Customer discovers or ought to have discovered the error or defect and (2) Customer provides STORViX with documented examples of such errors or defects. STORViX provides no assurance or warranty that the Software will be free from minor errors. STORViXs sole responsibility in respect of the warranty given in this clause 9.5 and Customer’s sole remedy shall be the correction of any failure of the STORViX-branded Software so that it functions in material respects in accordance with the relevant speciﬁcations.
- Support and Professional Services Warranty. STORViX warrants that while providing Support Services or Professional Services, such Services will be performed in a professional and workmanlike manner consistent with generally accepted industry practices. In the event of a breach of the foregoing warranty, STORViX will re-perform such Services.
- STORViX will not be liable under the foregoing warranties for claims arising from Customer’s, Customer’s subcontractor’s, or any unauthorized third person’s misuse, neglect, improper installation or testing, attempts to repair, or any other cause beyond the range of the intended use. The Hardware warranty will become void if a Hardware component is installed as an add-on to, or replacement for, the original Hardware without STORViX’s prior written approval. The Software warranty will become void if the Software is modiﬁed or otherwise used in violation of the Software license terms set forth in Section 10, except as authorized in writing by STORViX.
- STORViX does not warrant that the Products, Software, Deliverables or Services will function (1) with any speciﬁc conﬁguration not provided by STORViX or (2) to produce a speciﬁc result even if the conﬁguration or result has been discussed with STORViX.
- STORViX shall not be liable under the warranties given in this clause 10 in respect of:
- any defect arising from fair wear and tear, wilful damage, negligence, abnormal working conditions, failure to follow STORViX’s instructions (whether oral or in writing), misuse or alteration, modiﬁcation, adjustment or repair of the Products and/or Software without STORViXs approval;
- if the total Price for the Products and/or Software has not been paid by the due date for payment;
- for any Products, Software, Deliverables parts, materials or equipment not manufactured or produced by STORViX, in respect of which the Customer shall only be entitled to the beneﬁt of any such warranty or guarantee as is given by the manufacturer or supplier to STORViX to the extent that they are assignable by STORViX to the Customer;
- any Software, Deliverables and Products manufactured, produced or provided by STORViX pursuant to the Agreement in accordance with any design, speciﬁcation, instruction or recommendation made to STORViX by the Customer;any type of defect, damage or wear speciﬁcally excluded by STORViX by notice in writing; and/or
- if Customer makes any further use of the Products and/or Software after giving notice pursuant to clause 10.3.
- TO THE EXTENT PERMITTED BY APPLICABLE LAWS, THE FOREGOING WARRANTIES ARE CUSTOMER’S SOLE AND EXCLUSIVE WARRANTIES AND REMEDIES. STORViX SPECIFICALLY DISCLAIMS THE IMPLIED WARRANTIES OF MERCHANTABILITY, TITLE, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT.
11.INTELLECTUAL PROPERTY RIGHTS AND PROTECTION
- The Products, Services, Software and related Documentation are available to the Customer per Order Document. It is protected by intellectual property laws and treaties worldwide, and contains trade secrets, in which STORViX and its licensors reserve and retain all rights not expressly granted to Customer. No right, title or interest to any trademark, service mark, logo, or trade name of STORViX or its licensors is granted to Customer.
- Subject to the terms and conditions of this Section, STORViX will defend or settle any claim brought by a third party against Customer that Hardware, Software, and Documentation sold and delivered by or for STORViX to Customer under these Terms (individually or collectively, “Covered Product(s)”) infringe any patent, trademark, or copyright (“IP Claim”). STORViX will pay settlement amounts or, if applicable, damages and costs ﬁnally awarded by a court of competent jurisdiction (collectively, “Damages”) against.
Customer to the extent such Damages are speciﬁcally attributable to the IP Claim, provided that Customer: (a) promptly notiﬁes STORViX in writing of the IP Claim; (b) provides information and assistance to STORViX to defend such IP Claim; and (c) provides STORViX with sole control of the defense or settlement negotiations.
- STORViX may, at its option, substitute or modify the applicable Product(s), or the relevant portion thereof, so that it becomes non-infringing; procure any necessary license; or replace the applicable Product(s). If STORViX determines that none of these alternatives is reasonably available, then Customer may cease using and, if applicable, return the Product(s) and STORViX will refund Customer’s purchase price for such Product(s).
- Notwithstanding anything to the contrary in these Terms, STORViX has no obligation or liability for any IP Claim related to the Product(s) that arises from or relates to: (a) STORViX’s compliance with, or use of, designs, speciﬁcations, inventions, instructions, or technical information furnished by or on behalf of Customer; (b) modiﬁcations to the Product(s) made by or on behalf of Customer without STORViX’s prior written authorization; (c) Customer’s failure to upgrade or use a new version of the Product(s), to make a change or modiﬁcation requested by STORViX, or to cease using the Product(s) if requested by STORViX; (d) the Product(s), or any portion thereof, in combination with any other product or service (including a STORViX Cloud Provider’s services); (e) Third-Party Branded Products; or (f) any content or information stored on or used by Customer or a third party in connection with a Product.
- Notwithstanding anything to the contrary in these Terms, this Section 11 states STORViX’s entire liability and Customer’s sole and exclusive remedies for IP Claims.
- Each Party (“Disclosing Party”) may disclose Conﬁdential Information to the other Party (“Receiving Party”). Conﬁdential Information will remain the exclusive property of the Disclosing Party. Each Party will have the right to use the other’s Conﬁdential Information solely for the purpose of fulﬁlling its obligations under these Terms. The Receiving Party agrees to disclose the Disclosing Party’s Conﬁdential Information only to those employees or agents who have a need to know in furtherance of these Terms and who are required to protect such Conﬁdential Information against unauthorized disclosure under terms no less restrictive than those set forth herein. The Receiving Party will protect the Conﬁdential Information from unauthorized use, access, or disclosure in the same manner as it protects its own proprietary information of a similar nature, and in any event with at least a reasonable degree of care
- Each Party’s obligations regarding the other Party’s Conﬁdential Information will expire 3 years from the date of disclosure.
- The Receiving Party may disclose the Disclosing Party’s Conﬁdential Information to the extent such disclosure is required pursuant to a judicial or administrative proceeding,
provided that, unless prohibited by applicable law, the Receiving Party gives the Disclosing Party prompt written notice thereof and the opportunity to seek a protective order or other legal remedies.
- Upon the Disclosing Party’s written request, all Conﬁdential Information (including all copies thereof) of the Disclosing Party will be returned or destroyed, unless the Receiving Party is required by law to retain such information, and the Receiving Party will provide written certiﬁcation of compliance with this Section .
- STORViX’s total aggregate liability under this Agreement for any damage or loss suffered by Customer shall be limited to 50% of the fees actually paid by Customer to STORViX under this Agreement.
- STORViX shall in no event be liable for any indirect or consequential damage (including but not limited to loss of proﬁt or loss of production) arising out of this Agreement or STORViX ’s performance of its obligations under this Agreement.
- Nothing in this section shall exclude or limit the liability for death or personal injury caused by negligence or for fraud or fraudulent misrepresentation or for any other liability to the extent that the same may not be excluded or limited as a matter of applicable law.
- Neither party shall be liable for: special, indirect or consequential loss or damages; loss of proﬁt, income or revenue; loss of use of Customer’s system(s) or networks; loss of goodwill or reputation; loss of, corruption of or damage to data or software; or recovery of data or programs.
14.HIGH RISK ACTIVITIES
- The Customer acknowledges that in order to use the Products, Software, Deliverables and Services in hazardous environments requiring fail safe performance, unless agreed in the Order Document, including without limitation, in the operation of nuclear facilities, aircraft navigation or communication systems, air traic control, weapons systems, life support machines, or any other application in which the failure of the Products, Software, Deliverables or Services could lead directly to death, personal injury, or severe physical or property damage (“High risk activities”). STORViX expressly disclaims any express or implied warranty of ﬁtness for High Risk Activities.
- STORViX shall defend and indemnify the Customer against any third-party claim or action that STORViX-branded Products, Software, Deliverables or Services prepared or produced by STORViX and delivered pursuant to this Agreement infringe or misappropriate that third party’s Intellectual Property Rights enforceable in the country in which STORViX delivers and the Customer is authorized to receive such Products, Software, or Services (“IPRClaim“). If STORViX receives prompt notice of an IPR claim that, in STORViX’s reasonable opinion, is likely to result in an adverse ruling, then STORViX shall at its option, (1) obtain a right for the Customer to continue using such Products, Deliverables or Software or allow STORViX to continue performing the Services; (2) modify such Products, Deliverables, Software, or Services to make them non-infringing; (3) replace such Products, Deliverables, Software, or Services with a non-infringing equivalent; or (4) refund any pre-paid fees for the allegedly infringing Services that have not been performed or provide a reasonable depreciated or pro rata refund for the allegedly infringing Product, Deliverable or Software.
- Notwithstanding clause 15.1, STORViX shall have no obligation under clause 15.1 for any IPR Claim arising from (1) modiﬁcations of STORViX-branded Products, Deliverables, Software, or Services that were not performed by or on behalf of STORViX; (2) the combination, operation, or use of such Products, Deliverables, Software, or Services in connection with a third party product, software, or service (the combination of which causes the claimed infringement); or (3) STORViX’s compliance with the Customer’s written speciﬁcations or directions, including the incorporation of any software or other materials or processes provided by or requested by the Customer.
- Clauses 13.1 and 13.2 set out the Customer’s sole and exclusive remedies for any IPR Claim.
- The Customer shall defend and indemnify STORViX against any third party claim or action arising out of (1) the Customer’s failure to obtain any appropriate license, Intellectual Property Rights, or other permissions, regulatory certiﬁcations, or approvals associated with technology or data provided by the Customer, or (2) associated with software or other components directed or requested by the Customer to be installed or integrated as part of the Products, Deliverables, Software or Services; (3) Customer’s breach of STORViX’s proprietary rights as stated in this Agreement; or (4) any inaccurate representation regarding the existence of an export license; or (5) any allegation made against STORViX due to the Customer’s breach or alleged breach of applicable export laws, regulations, or orders.
- Each Party will comply with all applicable laws and regulations.
- Customer acknowledges that the Products, Deliverables, Software, and Services provided under this Agreement, (which may include technology and encryption), (1) are subject to European customs and export control laws, (2) may be rendered or performed in countries outside Europe, or outside of the borders of the country in which Customer or Customer’s Products are located, and (3) may also be subject to the customs and export laws and regulations of the country in which the Products, Deliverables, Software, or Services are rendered or received. Under these laws and regulations, Products, Deliverables, Software, and Services purchased under this Agreement may not be sold, leased or otherwise transferred to restricted end-users or to restricted countries. In addition, the Products, Deliverables, Software and Services may not be sold, leased or otherwise transferred to, or utilized by, an end-user engaged in activities related to weapons of mass destruction, including but not necessarily limited to, activities related to the design, development, production or use of nuclear materials, nuclear facilities, or nuclear weapons, missiles or support of missile projects, or chemical or biological weapons. The Customer agrees to abide by those laws and regulations.
- Customer represents that any software provided by it and used as part of the Products, Deliverables, Software, or Services contains no encryption or, to the extent that it contains encryption, such software is approved for export without a license. If the Customer cannot make the preceding representation, the Customer agrees to provide STORViX with all of the information needed for STORViX to obtain export licenses from any other national government and to provide STORViX with such additional assistance as may be necessary to obtain such licenses. Notwithstanding the foregoing, the Customer is solely responsible for obtaining any necessary licenses relating to the export of software. STORViX also may require export certiﬁcations from the Customer for the Software.
- STORViX’s acceptance of any order for Products, Deliverables, Software, or Services is contingent on the issuance of any applicable export license required by any applicable national government. STORViX shall not be liable for delays or failure to deliver Products, Deliverables, Software, or Services resulting from Customer’s failure to obtain such license or to provide such certiﬁcation.
- The Customer agrees to indemnify, defend and hold STORViX harmless from any third party claims, demands, or causes of action against the Customer’s breach or alleged breach of the applicable export laws.
- In this section, the terms “data controller”, “data processor”, “personal data” and “processing” shall be as deﬁned in the European Directive 95/46/EC on the protection of individuals with regard to the processing of personal data and on the free movement of such data (“Directive”) as amended or superseded from time to time.
- To the extent the Customer and STORViX are data controllers for the purpose of any personal data processed under or in connection with this Agreement, each party shall comply with the provisions and obligations imposed by the Directive to the extent required by that legislation of each party. As a data controller, the Customer conﬁrms that it has obtained all necessary authorizations for lawful processing, prior to passing personal data to STORViX.
- To the extent STORViX processes personal data as a data processor for the Customer under or in connection with this Agreement, STORViX shall ensure appropriate protection is in place to safeguard such personal data. STORViX shall use its reasonable efforts to assist the Customer to comply with its obligations, as a data controller, to respond to requests for access to the Customer records made by individuals to whom the personal data relates, subject to the payment by the Customer of STORViX’s reasonable professional charges for the time engaged by STORViX staff in so doing.
- The Customer authorizes STORViX to collect, use, store and transfer the solution performance data the Customer provides to STORViX for the purpose of performing STORViX’s obligations under this Agreement and for any additional purposes described, pursuant to the Agreement.
- STORViX may, in the normal course of business, make worldwide transfers of personal data on its corporate systems, to other entities, agents or subcontractors in the same group of companies, or to other relevant business partners who may have incidental access to personal data. When making such transfers, STORViX shall ensure appropriate protection is in place to safeguard personal data transferred under or in connection with this Agreement.
- STORViX shall not be liable for any claim brought by Customer or a data subject arising from any action or omission by STORViX to the extent that such action or omission resulted from compliance by STORViX with the Customer’s instructions.
- Either party may (without prejudice to any other rights or remedies it may have against the other party) terminate this Agreement by notice in writing immediately if the other party; commits a material breach of the Agreement and fails to remedy such breach within 30 days of written notice; or clause 18 ceases, or threatens to cease, to carry on business or, becomes insolvent.
- STORViX may terminate this Agreement with immediate written notice if the Customer;
- 1) fails to pay undisputed sums properly due to STORViX in accordance with the Agreement;
- 2) Customer breaches or STORViX reasonably suspects Customer has breached export control laws;
- 3) Customer breaches any IPR obligations, warranties and indemnities set out in the Agreement.
- On termination of this Agreement, all rights and obligations of the parties relating to the Products, Services and/or Software relevant to the speciﬁc Order Documents under the Agreement will automatically terminate except for rights of action occurring prior to its termination.
- The following clauses shall survive termination of the Agreement and continue to bind the parties, their successors and assigns: 1 (Introduction); 2 (Deﬁnitions); 3.3 (Payment); 5(Products); 6 (Services, Software & Deliverables); 7 (Services); 9 (Warranties); 10 (Liability);11 (High Risk Disclaimer); 12 (Conﬁdentiality); 13 (Indemnities); 14 (Termination); 15 (Force Majeure); 16 (Export Compliance); 17 (Data Privacy); 18 (WEEE Compliance); and 18 (General).
- Neither Party will be liable to the other for any alleged loss or damages resulting from acts of God, acts of civil or military authority, governmental priorities, ﬁre, ﬂoods, earthquakes, epidemics, quarantine, energy crises, strikes, labor trouble, terrorism, war, riots, accidents, shortages, delays in transportation, or any other causes beyond the reasonable control of a Party (collectively, “Force Majeure”). Force Majeure will not relieve the obligation of any payments due hereunder for delivered Products or Services actually performed. If the Force Majeure event continues for more than 30 days, the Parties will negotiate in good faith the termination of the affected Order Documentation.
- These General Conditions, the Agreement and the other documents comprising the agreement between STORViX and Customer constitutes the entire agreement between the parties relating to the subject matter thereof and supersedes all previous communications, representations, or agreements, whether oral or written. STORViX hereby rejects any different terms proposed by Customer, including those contained in any purchase order or in any other writing not expressly incorporated in the abovementioned documentation.
- Nothing in this Agreement shall restrict or limit Customer’s general obligation to mitigate its losses to the fullest extent possible.
- Customer shall notify STORViX of any claim for ﬁnancial compensation under this Agreement within 30 days from when the Customer became, or ought to reasonably have become, aware of having grounds to make a claim in respect of an event. The ﬁnal claim including all details thereof must be presented by Customer in writing within three (3) months from when the claim has been notiﬁed, and no longer than twelve (12) months from when the event occurred. If no claim is notiﬁed or presented in writing within the above stipulated time periods, STORViX shall have no liability for the event.
- Unless there is a separate written agreement between the Parties related to Product evaluations, then, subject to these Terms, STORViX may loan Hardware to Customer or license Software speciﬁcally identiﬁed by STORViX as evaluation, demonstration or trial (“Trial Equipment”), at reduced cost for a 30-day period from the initial delivery of the Trial Equipment to Customer, or such other period as agreed by STORViX in writing. Trial Equipment provided to Customer under this Section is for evaluation, demonstration, and internal non-commercial use only and Customer will not use the Trial Equipment for production use or in a production environment. Customer is responsible for the Trial Equipment from the date it is received by Customer until STORViX picks up the Trial Equipment at Customer’s location, except for reasonable wear and tear. The Trial Equipment will remain STORViX’s property, even if the Trial Equipment becomes attached or aixed to real property, and STORViX will exclusively maintain title and ownership to all Trial Equipment. In no event will title to the Trial Equipment transfer to Customer unless purchased by Customer. Trial Equipment may only be used up to the maximum amounts of raw storage capacity, number of hosts or other measure of usage as speciﬁed in the Statement of Works, and to evaluate and assess the suitability of the Trial Equipment for Customer’s needs. Notwithstanding anything in these Terms to the contrary, Trial Equipment is provided and licensed to Customer on an “AS IS” basis and all warranties, whether express, implied, statutory or otherwise are excluded to the maximum extent permitted by applicable laws, including the implied warranty of merchantability, satisfactory quality, ﬁtness for a particular purpose, or non-infringement. Customer agrees to delete or uninstall the Trial Equipment at the expiration of the evaluation period and make available for pickup by STORViX. Customer is solely responsible for erasing all Customer data from the Trial Equipment before being picked up by STORViX. Customer acknowledges that any data remaining on any Trial Equipment that is returned to STORViX may be disposed of or destroyed by STORViX without any liability to STORViX.
- Customer is solely responsible for its use of the Products, including Personal Information managed or stored using Products. Unless stipulated in Order Document, Customer is solely responsible for (a) management of its data back-up, data recovery, and disaster recovery measures; and (b) undertaking the supervision, control and management of Hardware and Software including following industry- standard processes, procedures and requirements for (i) the security of data, accuracy of input and output, and back-up plans, including restart and recovery in the event of a Force Majeure event or a Hardware or Software error or malfunction; and (ii) reconstruction of lost or altered ﬁles, data, and programs. STORViX will have no responsibility or liability with respect to Customer’s internal processes and procedures related to the protection, loss, conﬁdentiality, or security of Customer’s data or information in connection with Customer’s use of the Products.
- STORViX retains all rights, title and interest in Functional Data. Without limiting the foregoing, STORViX may collect and use Functional Data to provide and improve the Software, the Services and STORVIX’s other Products and Services.
- Any waiver or failure to enforce any provision of these Terms on any occasion will not be deemed a waiver of any other provision or of such provision on any other occasion. Either Party’s exercise of any right or remedy provided in these Terms will be without prejudice to its right to exercise any other right or remedy.
- In the event any provision of these Terms is held by a court of competent jurisdiction to be unenforceable for any reason, such provision will be changed and interpreted to accomplish the objectives of such provision to the greatest extent possible under applicable law and the remaining provisions hereof will be unaffected and remain in full force and effect.
- Customer may not assign any rights or delegate any obligations under these Terms without the prior written consent of STORViX. Any purported assignment by Customer without STORViX prior written consent will be null and void.
- STORViX may use subcontractors to fulﬁll its obligations under these Terms. STORViX will be responsible for its subcontractors’ obligations hereunder.
- The relationship of the Parties under these Terms is that of independent contractors. Nothing set forth in these Terms will be construed to create the relationship of principal and agent, franchisor/franchisee, joint venture, or employer and employee between the Parties. Neither Party will act or represent itself, directly or by implication, as an agent of the other Party.No advertising, publicity releases, or similar public communications concerning these Terms, the Products, or the Services will be published or caused to be published by either Party without the prior written consent of the other Party. Notwithstanding the foregoing, Customer agrees to be mentioned in the list of buyers of STORViX Products and/or Services and that its logo and trademark may be used for this purpose only.Customer grants STORViX and its independent accountants the right to audit Customer or Customer’s subcontractors once annually during regular business hours upon reasonable notice to verify compliance with these Terms.
- Products and Services are for Customer’s use and are not for resale or redistribution.