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Extreme Networks

Terms And Conditions Of Sale And Service

CAREFULLY READ THE FOLLOWING LEGAL AGREEMENT BETWEEN YOU AND EXTREME NETWORKS, INC. ("Extreme"). IF YOU ARE PURCHASING PRODUCT AND/OR SUPPORT PROGRAMS FOR DELIVERY OR PERFORMANCE WITHIN EUROPE, THE MIDDLE EAST AND AFRICA, EXTREME NETWORKS BV ("Extreme BV") SHALL ALSO BE DEEMED A PARTY TO THIS LEGAL AGREEMENT. IF YOU ARE PURCHASING PRODUCT AND/OR SUPPORT PROGRAMS FOR DELIVERY OR PERFORMANCE WITHIN JAPAN, EXTREME NETWORKS K.K. ("Extreme K.K.) SHALL ALSO BE DEEMED A PARTY TO THIS LEGAL AGREEMENT. Extreme, Extreme BV and Extreme K.K. shall be collectively referred to as "Extreme" for purposes of this Agreement. By (a) using Extreme's commercial networking products, including hardware products with embedded software or software products (the "Software") and documentation delivered therewith (each a "Product"), or any updates or upgrades thereto and/or (b) purchasing a ExtremeWorks support program for a Product (the "Support Program"), you are agreeing to be bound by and become a party to these Terms and Conditions of Sale and Services (the "Agreement"). If you do not agree to the terms of this Agreement, you shall (i) promptly return the Products to the location where you obtained them for a full refund and/or (ii) not proceed with any steps necessary to purchase the Support Programs, or if you have already purchased the Support Programs, obtain a refund of the fees paid by you for the Support Programs (as applicable), less a reasonable amount for the value of the Support Programs received prior to the effective date of termination. Extreme shall not be bound by any additional, inconsistent and/or conflicting provisions in any order, release, acceptance or other written correspondence from you unless expressly agreed to in writing by Extreme. Orders for Products and orders for Support Programs shall be deemed separate contracts for the purpose of these terms and conditions.

A. PRODUCT ONLY TERMS AND CONDITIONS

  1. Security Interest. You hereby grant a security interest in the Products sold under this Agreement and the proceeds thereof until payment of the full purchase price to Extreme. You agree to execute any financing statements or other documents as Extreme requests to protect its security interest.

  2. Shipment of Products. Extreme will use reasonable efforts to ship the Products at the times requested in purchase orders accepted by Extreme (in partial or full shipments); but Extreme shall not be liable for any damages to you or any other person for Extreme's failure to fill any orders or for any delay in delivery or error for any reason whatsoever. Without liability to any person and without prejudice to any other remedy, Extreme may withhold or delay shipment of any order if you are late in payment or are otherwise in default under this Agreement.

  3. Delivery and Acceptance of Products. Delivery to destinations in the United States shall be F.O.B. Extreme's shipping point. Delivery to destinations outside the United States shall be EX WORKS Extreme's shipping point. Extreme may, in its reasonable discretion, select which carrier Extreme will use to transport the Products to you. Subject to Section A(1), title to the Products (other than the Software) and the risk of loss of or damage to the Products ordered by you will pass to you upon Extreme's tender of delivery to the carrier for shipment. The Products will be deemed accepted by you upon shipment. Any problems with the Products upon receipt by you shall be handled pursuant to Section A5.

  4. License. Extreme grants you a nonexclusive, nontransferable license to use the object code version of the Software and accompanying documentation for your internal business purposes in accordance with the terms and conditions of the license agreement provided by Extreme with the Software. Software embedded in hardware products may only be used in conjunction with your use of the Products. Extreme may provide third party software or hardware with the Products. In this case, you hereby agree to any additional terms and conditions relating to the third party software or hardware that are specified to Extreme's suppliers as described in the documentation delivered with the Product. You agree that you will not attempt, and will use your best efforts to prevent any other individual or entity, from attempting, to reverse engineer, disassemble, modify, translate, copy, create derivative works, rent, lease, loan, distribute or sublicense the Products including the Software, in whole or in part.

  5. Limited Warranty. Extreme warrants to you that during the warranty period set forth in Extreme's warranty card that ships with each Product, the Product will perform substantially without Defects. If a Product has a Defect, Extreme shall, at is option, repair (which may include a workaround for the Defect) or replace the Product or refund the fees paid by you for such Product (following your return of the Product). THE FOREGOING SETS FORTH YOUR SOLE AND EXCLUSIVE REMEDIES FOR A BREACH OF THE ABOVE WARRANTIES. "Defect," as used in this Agreement, means a failure of a Product to operate in substantial conformance with Extreme's technical specifications set forth in the end user manual.

  6. Exception to Limited Warranty. The warranties set forth in Section A(5) shall not apply to (i) any third party software or hardware not provided by Extreme; (ii) any Products which have been modified, repaired or altered, except by Extreme; or (iii) any Products which have not been maintained in accordance with handling or operating instructions supplied by Extreme or have been subjected to unusual physical or electrical stress, misuses, negligence or accidents.

  7. Government Rights. If Products are being acquired by the U.S. Government, the Software and related documentation are commercial computer software and commercial computer software documentation developed exclusively at private expense, and (i) if acquired by or on behalf of a civilian agency, shall be subject to the terms of this computer software license as specified in 48 C.F.R. 12.212 of the Federal Acquisition Regulations and its successors; and (ii) if accrued by or on behalf of units of the Department of Defense ("DoD") shall be subject to the terms of this commercial computer software license as specified in 48 C.F.R. 227.7202, DoD FAR Supplement and its successors.

B. SERVICES ONLY TERMS AND CONDITIONS

  1. Term of Support Programs. Each order for a Support Program is only valid for a single unit of Product and expires one (1) year from the date Extreme accepts your order for the Support Program. Thereafter, the Support Program may be renewed by the parties upon mutual agreement. If you fail to pay the annual Support Program fees per this Agreement, the applicable Support Program will automatically terminate without notice.

  2. Scope of Support Programs. You acknowledge and agree that Extreme provides a number of different Support Programs. A summary of the Support Programs can be found at www.extremenetworks.com/services/programs/supportprogs.asp. Extreme will use reasonable efforts to provide the services under each Support Program that you purchase under this Agreement in a professional and workmanlike manner, but Extreme cannot guarantee that every question or problem raised by you will be resolved. All updates or upgrades provided with the Support Programs shall be deemed to be included within the Products and subject to the terms and conditions of this Agreement. Except as expressly stated otherwise, updates and upgrades provided with the Support Programs are warranted for the remaining warranty period of the original Product purchased. Additional terms and conditions are applicable to the Support Programs and may be obtained from Extreme upon request.

C. TERMS AND CONDITIONS APPLICABLE TO BOTH PRODUCTS AND SERVICES

  1. Purchase Orders. You may purchase Products and Support Programs by issuing purchase orders to the Extreme location that processes orders for the applicable delivery point. The terms and conditions of this Agreement shall apply to any and all orders submitted to Extreme for Products and Support Programs and supersede any different or additional terms on your purchase orders. Orders are solely for the purpose of confirmation of addresses, requesting quantities and delivery dates and any other information required for the Support Programs; all other terms and conditions, whether, supplemental to or inconsistent with this Agreement shall be of no force or effect. All orders for Products and Support Programs shall be subject to Extreme's acceptance in its discretion.

  2. Prices. The price of the Products and Support Programs shall be that set forth in Extreme's price list in effect at the time Extreme accepts your order or for Support Programs, at the time such Support Programs are ordered or renewed, less any applicable discount. Extreme reserves the right to change its price list without prior notice. Prices do not include freight, insurance, taxes or other charges listed in Section C(3). Any such charges will be added to the price or separately invoiced to you. Extreme shall give you thirty (30) days advanced written notice by email or other method permitted under this Agreement of any Product or Support Program price increase and, upon the effective date of such change, the updated pricing will apply to all pending and future orders not yet shipped to you.

  3. Payment; Taxes. You shall pay all invoices issued under this Agreement within thirty (30) days from date of invoice by check, non-revocable letter of credit, wire transfer or other means satisfactory to Extreme. Extreme reserves the right to modify the terms of credit when, in its sole discretion, Extreme believes that its payments may be at risk. All sums not paid when due shall accrue interest daily at the lesser of an annual rate of eighteen percent (18%) or the highest rate permissible by law on the unpaid balance until paid in full. Shipments, deliveries and performance of services under Support Programs will at all times be subject to the approval of Extreme's credit department. You will pay or reimburse Extreme for all sales, use, excise, import or export, value-added and other taxes (except taxes on Extreme's net income), and all customs duties and fees now or hereafter claimed or imposed by any governmental authority upon the sale of the Products, licensing of the Software or performance of the services under this Agreement.

  4. Return Procedures. Products and Support Programs shall be non-returnable except as expressly provided in this Agreement. You shall return defective Product(s) under warranty or a Support Program to the source from which you obtained it (e.g., Extreme or Extreme's authorized resellers). If returnable to Extreme, you shall obtain a return material authorization ("RMA") from Extreme prior to any return of a Product and return the Products with the RMA form to Extreme's designated repair facility, freight prepaid within thirty (30) days of receipt of the RMA, with a written statement describing the Defect. Extreme shall only be obligated under its warranty for Defects which are reproducible by Extreme in the execution environment. Except for Products not accompanied by an RMA (which will be returned to you freight collect), Extreme will be responsible for all return shipping costs (excluding taxes and duties and customs clearance) of repaired or replacement units to you. You retain sole responsibility for risk of loss or damage to Products during shipment to and from Extreme. Replacement Products will be warranted for the remaining warranty period of the original Product. In the event that Extreme determines there is "no trouble found" in greater than twenty-five percent (25%) of Products returned in a ninety (90) day period, Extreme reserves the right to charge you a service charge of twenty percent (20%) of the list price per unit.

  5. Disclaimer of Warranties. EXCEPT AS EXPRESSLY SET FORTH IN THIS AGREEMENT, EXTREME MAKES NO OTHER WARRANTIES, EXPRESS, IMPLIED OR STATUTORY, REGARDING THE PRODUCTS AND/OR SUPPORT PROGRAMS. ALL IMPLIED WARRANTIES AS TO SATISFACTORY QUALITY, PERFORMANCE, MERCHANTABILITY, FITNESS FOR PARTICULAR PURPOSE OR NON-INFRINGEMENT OF THIRD PARTY RIGHTS ARE EXPRESSLY DISCLAIMED. SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF IMPLIED WARRANTIES OR LIMITATIONS ON HOW LONG AN IMPLIED WARRANTY MAY LAST, SO SUCH EXCLUSIONS MAY NOT APPLY TO YOU.

  6. Ownership; Confidentiality; Marking. Title to and ownership of the Software and Documentation, and any improved, updated, modified or additional parts thereof, and all copyright, patent, trade secret, trademark and other intellectual property rights embodied in the Products, shall at all times remain the property of Extreme or Extreme's licensors. Except as provided in this Agreement, you are not granted any rights therein. You may be exposed to certain information concerning the Products and/or Support Programs, including without limitation, Product updates, upgrades and information obtained through eSupport access or other product or business information, which is Extreme's confidential and proprietary information (herein "Confidential Information"). You agree to exercise at least reasonable care with respect to the Confidential Information. During and for a period of two (2) years after the term of this Agreement, you agree not to (i) disclose to any third party any Confidential Information; or (ii) use the Products or other Confidential Information for any purpose not specified in this Agreement. You agree to comply with all legends that appear on or in the Products and not to remove or destroy any copyright, logo, trademark, trade name, proprietary markings, or confidentiality legends placed upon or contained within Products, containers or documentation supplied by Extreme.

  7. Limitation of Liability. IN NO EVENT WILL EXTREME BE LIABLE TO YOU OR ANY THIRD PARTY FOR ANY SPECIAL, INCIDENTAL, CONSEQUENTIAL OR EXEMPLARY DAMAGES OF ANY KIND, INCLUDING BUT NOT LIMITED TO ANY LOST PROFITS AND LOST SAVINGS, LOSS OF USE OR INTERRUPTION OF BUSINESS, HOWEVER CAUSED, WHETHER FOR BREACH OR REPUDIATION OF CONTRACT, TORT, BREACH OF WARRANTY, NEGLIGENCE, STRICT LIABLITY OR OTHERWISE, WHETHER OR NOT EXTREME WAS ADVISED OF THE POSSIBILITY OF SUCH LOSS OR DAMAGES. NOTWITHSTANDING ANY OTHER PROVISIONS OF THIS AGREEMENT, EXTREME'S TOTAL LIABILITY ARISING FROM OR IN RELATION TO THIS AGREEMENT OR THE PRODUCTS OR SUPPORT PROGRAMS SHALL BE LIMITED TO THE TOTAL AMOUNTS PAID OR PAYABLE TO EXTREME UNDER THIS AGREEMENT FOR THE PRODUCTS OR SUPPORT PROGRAMS OR ANY OTHER SERVICES GIVING RISE TO THE CLAIM IN THE MOST RECENT FULL CALENDAR YEAR PRECEDING EITHER PARTY'S INITIAL NOTICE OF ANY CLAIM OR POTENTIAL CLAIM HEREUNDER OR $1,000,000, WHICEVER IS LOWER. IN NO EVENT WILL EXTREME BE LIABLE FOR THE COST OF PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES. THE FOREGOING LIMITATIONS SHALL NOT APPLY TO DAMAGES ARISING FROM DEATH OR PERSONAL INJURY IN ANY JURISDICTION WHERE SUCH LIMITATION IS PROHIBITED BY APPLICABLE LAW. SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF CONSEQUENTIAL DAMAGES, SO SUCH EXCLUSION MAY NOT APPLY TO YOU.

  8. Term and Termination. The term of this Agreement shall continue unless terminated in accordance with this Section. Either party may terminate the Support Programs in accordance with Section B(1). Extreme may terminate this Agreement, including performance of the services under Support Programs, at any time upon (i) your bankruptcy, insolvency or receivership; or (ii) any material default by you of this Agreement not cured within thirty (30) days after you receive written notice thereof. Except for the first sentence of Section A(4), the rights and obligations set forth in this Agreement shall survive any termination of this Agreement. Extreme may discontinue any Product or Support Program upon thirty (30) days prior notice, which may be provided by email or other method permitted hereunder.

  9. Export Control. In exercising your rights under this Agreement, you agree to comply strictly and fully with all import and export controls, laws and regulations imposed on the Products and/or Support Programs by the US and any organization, country or nation within whose jurisdiction you operate or do business. You will indemnify and hold harmless Extreme for any violation or alleged violation by you of such laws or regulations.

  10. General Provisions. You shall not assign this Agreement or transfer any of the rights or obligations arising under this Agreement by operation of law or otherwise without the prior written consent of Extreme. Extreme's rights and obligations, in whole or in part, under this Agreement may be assigned or delegated to any affiliated company or subsidiary or in connection with a merger, reorganization, consolidation or sale of all or substantially all of Extreme's assets. This Agreement shall be binding upon, and inure to the benefit of, the successors and permitted assigns of the parties. Neither party will have the right to claim damages or to terminate this Agreement as a result of the other party's failure or delay in performance due to circumstances beyond its reasonable control (except for obligations relating to fees payable under this Agreement), including, but not limited to, labor disputes, strikes, lockouts, shortages of or inability to obtain labor, energy, components, raw materials or supplies, war, riot, insurrection, epidemic, acts of God, or governmental action. This Agreement will be governed by the construed according to the laws of California and the United States of America, without regard to that body of law controlling conflicts of law. The parties agree that the United Nations Convention on Contracts for the International Sales of Goods is specifically excluded from application to this Agreement. All disputes arising under this Agreement may be brought in the in the federal and state courts located in Santa Clara County, California, as applicable and permitted by law. All disagreements and controversies for any kind whether claimed in tort, contract or otherwise concerning this Agreement shall be brought within one (1) year after the occurrence of the event giving rise to the disagreement or controversy. Notices shall be in writing and shall be deemed given when delivered in person, by overnight courier upon written verification of receipt, by confirmed facsimile, email which is confirmed as received, or by certified or registered mail, return receipt requested, five (5) days after mailing. Either party may change its address by giving written notice of such change in the manner provided. Notices to Extreme shall be sent to: Extreme Networks, Inc., 3585 Monroe Street, Santa Clara, CA, 95051, Attention: Vice President of Finance and Legal Counsel, Fax: (408) 579-3000. This Agreement may be amended or supplemented only by a writing that refers explicitly to this Agreement and that is signed on behalf of both parties. No waiver will be implied from conduct or failure to enforce rights, and no waiver will be effective unless in writing signed on behalf of the party against whom the waiver is asserted. If any part of this Agreement is found invalid or unenforceable that part will be enforced to the maximum extent permitted by law and the remainder of this Agreement will remain in full force. This Agreement represents the entire agreement between the parties relating to its subject matter and supersedes all prior or contemporaneous representations, discussions and agreements, whether written or oral.

D. SPECIAL TERMS AND CONDITIONS APPLICABLE TO PRODUCTS WITH DELIVERY TO EUROPE, MIDDLE EAST, AFRICA ("EMEA") AND JAPAN

  1. Delivery and Acceptance of Products in EMEA. Notwithstanding anything to the contrary in this Agreement, the following delivery and acceptance terms shall apply to all such Products delivered within Europe, the Middle East and Africa: The shipping terms will be DDU (Airport in Europe, Middle East or Africa destination country). Extreme will select which carrier Extreme will use to transport the Products ordered by you. Subject to Section A(1), title to the Products (other than the Software) and the risk of loss of or damage to the Products ordered by you will pass to you upon arrival at the airport in the destination country. The Products will be deemed accepted by you upon shipment. Any problems with a Product upon receipt by you shall be handled pursuant to Section A5.

  2. Delivery and Acceptance in Japan. Notwithstanding anything to the contrary in this Agreement, the following delivery and acceptance terms shall apply to all such Products delivered within Japan: The shipping terms will be FOB (your-named destination in Japan). Extreme will select which carrier Extreme will use to transport the Products ordered by you to the named destination in Japan. Subject to Section A(1), title to the Products (other than the Software) and the risk of loss of or damage to the Products ordered by you will pass to you upon tender of delivery at your-named destination in Japan. The Products will be deemed accepted by you upon shipment. Any problems with a Product upon receipt by you shall be handled pursuant to Section A5.