DEFINITIONS – As used in this Agreement, the following terms shall have the following meanings: (a) “Agreement” means the terms and conditions set forth herein; (b) “Buyer” means the entity buying the Products from HyperGrid; (c) “Documentation” means the Product manuals, data sheets, specification, catalogs, brochures, marketing and technical documents, promotional materials, publications, and any other documents that HyperGrid makes available to Buyer; (d) “HyperGrid” means HyperGrid, Inc. and its subsidiaries; (e) “Hardware” means that portion of a Product that is not the Licensed Program; (f) “Invoice” means the invoice issued by HyperGrid to Buyer in connection with the sale and/or license of the Products; (g) “Licensed Program” means a Product’s software, in machine-readable form, and the back-up copy, if any, of such Product software provided by HyperGrid; (h) “Price” means the price or fee that Buyer and HyperGrid have agreed as the price for the Product and specified on the applicable Invoice; (i) “Product” or “Products” means each product or the products, respectively, purchased under this Agreement (j) “Shipment Date” means the date upon which HyperGrid originally makes the applicable Product available to a common carrier at HyperGrid’s or its manufacturer’s facility for shipment to Buyer; (k) “Software License Agreement” means that certain license agreement between HyperGrid and Buyer delivered with the Licensed Program; (l) “Specification” means for a Product, the specification included in such Product’s packaging; and (m) “Support Agreement” means a support agreement between HyperGrid and Buyer.
PURCHASE; PRICES – Buyer purchases from HyperGrid, and HyperGrid sells to Buyer, the Products in the amounts and for the prices set forth in the Invoice and otherwise on the terms and conditions set forth in this Agreement. Buyer shall use the Products purchased hereunder for Buyer’s own internal business purposes and not for distribution or resale. Unless otherwise specified by HyperGrid, Prices are for the specific quantity or term agreed between the parties and do not include charges for transportation, installation, insurance, financing, special packaging, handling, marking, applicable excise, sales, use, value added, withholding or similar taxes or export or import licenses, customs, tariffs, fees, taxes, duties and the like. Buyer shall bear the cost of any such charges in addition to the prices quoted or invoiced and shall indemnify, defend and hold HyperGrid harmless from and against such charges.
PAYMENT TERMS – HyperGrid reserves the right in its sole discretion to require payment in advance or C.O.D. or to otherwise modify credit terms either before or after shipment of any or all of the Products specified herein. Upon credit approval by HyperGrid, HyperGrid may permit that payment for the Products purchased hereunder be due and payable at the Prices agreed between the parties net thirty (30) days after the applicable invoice date. If at any time, Buyer is delinquent in the payment of any invoice, or has otherwise breached this Agreement, HyperGrid may, at its discretion, and without prejudice to its other rights, withhold shipment (including partial shipment) or may, at its option, require Buyer to prepay for further shipments. Any sum not paid by Buyer, when due, shall bear interest until paid at a rate of 1% per month (12% per annum) or the maximum rate permitted by law, whichever is less. Buyer hereby grants HyperGrid a security interest in the Products purchased under this Agreement to secure payment for any Products purchased by Buyer. If requested by HyperGrid, Buyer shall execute financing statements to perfect this security interest.
SHIPMENT – The Products shipped hereunder shall be packaged in HyperGrid’s standard shipping cartons and shall be delivered to a common carrier Ex Works (Incoterms 2010) HyperGrid’s or its manufacturer’s facility, at which time title and risk of loss shall pass to Buyer. Delivery shall be deemed made upon transfer of possession to the common carrier. In the absence of written instructions from Buyer, HyperGrid shall select the common carrier but shall not thereby assume any liability in connection with the shipment, nor shall the common carrier be construed to be the agent of HyperGrid. All freight, insurance, and other shipping expenses, as well as expenses for any special packing requested by Buyer, shall be paid by Buyer.
SHIPMENT DATE – Any Shipment Dates agreed between the parties shall be considered estimates only. HyperGrid shall use reasonable commercial efforts (a) to meet any such proposed Shipment Dates and (b) in the event that any proposed Shipment Date cannot be met, to notify Buyer prior to such proposed Shipment Date, advising Buyer of a new proposed Shipment Date. Shipments may be made in installments. Default or delay by HyperGrid in shipping all or any part or installment of the Products under this Agreement shall not affect any other portion thereof.
CANCELLATION; RESCHEDULING – Buyer may not cancel the purchase, nor reschedule the shipment or delivery, of all or any part or installment of the Products ordered under this Agreement.
HYPERGRID’S LIMITED WARRANTY
Limited Warranty. Except as otherwise provided herein, HyperGrid warrants to Buyer for each Product purchased hereunder that (a) the Hardware shall be free from material defects in materials and workmanship for a period of three (3) calendar years from the Shipment Date and (b) the Product shall substantially conform to the Specification for a period of three (3) calendar years from the Shipment Date. This warranty extends only to the original Buyer and may not be assigned. HyperGrid’s sole liability and Buyer’s exclusive remedy under this limited warranty shall be limited to repair or replacement of the non-conforming Product at HyperGrid’s sole option. Notwithstanding this warranty, HyperGrid shall have no obligation or responsibility with respect to any Product if it (a) has been modified or altered without HyperGrid’s prior written authorization; (b) has not been used in accordance with the Documentation; (c) has been subjected to neglect, misuse, accident, abuse, unauthorized repair, improper installation, inadequate maintenance or unusual electrical or physical stress; (d) has missing or altered service tags or serial numbers; (e) is not HyperGrid-branded; or (f) has been subjected to improper storage, testing or connection.
Warranty Returns. Buyer may return to HyperGrid any defective Product subject to the limited warranty in Section 7.1. Prior to such return, Buyer shall verify that the Product is defective and shall obtain from HyperGrid a Return Material Authorization (“RMA”) number. Buyer shall request each RMA number from HyperGrid in accordance with HyperGrid’s RMA procedures including providing the part number, serial number and reason for return, an explanation of all failure symptoms and other relevant information. HyperGrid shall use commercially reasonable efforts to send to Buyer an RMA form and RMA number within five (5) business days of Buyer’s request therefore. HyperGrid may offer accelerated RMA replacement methods based on the support service the buyer contracts for. Within five (5) business days after receiving an RMA number for the Product, Buyer shall package the Product in its original packing material or equivalent, write the RMA number on the outside of the package and return the Product, at Buyer’s cost, shipped properly insured, freight prepaid, DDP (Incoterms 2000) HyperGrid’s designated facility. Buyer shall enclose with the returned Product the applicable RMA form, and any other documentation or information requested by HyperGrid. Buyer shall assume any and all risk of loss of or damage to the Product during shipping. If HyperGrid elects to repair or replace the Product, HyperGrid may, in its sole discretion, use new or reconditioned parts or Product as applicable (in each case, of better or equivalent quality). HyperGrid shall pay the shipping costs to return the Product to the location from which it was returned by Buyer, but Buyer shall bear any and all risk of loss of or damage to the Product at all times after the Product is made available by HyperGrid to the common carrier. Any Product that has been returned, but that HyperGrid determines not to be defective, or that is not otherwise covered under the limited warranty in Section 7.1, shall be returned to Buyer at Buyer’s sole expense and risk. Title to any Product returned under warranty shall at all times remain with Buyer unless and until HyperGrid replaces the Product at which time title to the Product shall pass to HyperGrid. The warranty period of any repaired or replaced Product shall be the longer of (a) ninety (90) calendar days from HyperGrid’s return shipment of the Product or (b) the original warranty period for the Product. HyperGrid shall not be responsible for any software, firmware, information, memory, data of Buyer or any their party contained in, stored on or integrated with any Product returned to HyperGrid for repair, whether under warranty or not.
Warranty Disclaimer. OTHER THAN THE EXPRESS LIMITED WARRANTIES IN SECTION 7.1 HEREOF OR IN THE WARRANTY MADE IN CONNECTION WITH ANY SUPPORT SEPARATELY PURCHASED BY BUYER FROM HYPERGRID, HYPERGRID MAKES NO WARRANTIES, REPRESENTATIONS OR CONDITIONS, EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, AND TO THE EXTENT ALLOWED BY APPLICABLE LAW, HYPERGRID AND ITS SUPPLIERS HEREBY SPECIFICALLY DISCLAIM ALL OTHER EXPRESS, IMPLIED, STATUTORY AND OTHER WARRANTIES, REPRESENTATIONS AND CONDITIONS INCLUDING WITHOUT LIMITATION THOSE ARISING FROM A COURSE OF DEALING, LAW, USAGE OR TRADE PRACTICE AND THE IMPLIED WARRANTIES OR CONDITIONS OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT AND SATISFACTORY QUALITY. TO THE EXTENT AN IMPLIED WARRANTY CANNOT BE EXCLUDED, SUCH WARRANTY IS LIMITED IN DURATION TO THE MINIMUM PERIOD REQUIRED BY THE LAW OF THE APPLICABLE JURISDICTION.EXCEPT AS OTHERWISE PROVIDED ABOVE, THE PRODUCT, LICENSED PROGRAM AND DOCUMENTATION ARE LICENSED ON AN “AS IS” BASIS WITHOUT WARRANTY. HYPERGRID AND ITS SUPPLIERS DO NOT WARRANT THAT (A) THE OPERATION OF THE PRODUCT SHALL BE UNINTERRUPTED OR ERROR FREE; (B) THE PRODUCT AND DOCUMENTATION SHALL MEET BUYER’S REQUIREMENTS; (C) THE PRODUCT SHALL OPERATE IN COMBINATIONS AND CONFIGURATIONS SELECTED BY BUYER OR (D) ANY LICENSED PROGRAM ERRORS SHALL BE CORRECTED. THE DISCLAIMERS AND EXCLUSIONS IN THIS SECTION 7.4 SHALL APPLY EVEN IF THE EXPRESS LIMITED WARRANTIES MADE BY HYPERGRID ABOVE FAIL OF THEIR ESSENTIAL PURPOSE.
INDEMNITY – Except as otherwise provided in this Agreement, HyperGrid shall defend, or at its option settle, or pay any damages finally awarded in any claim, suit or proceeding brought against Buyer alleging that the use or sale of the Products infringe any trade secret, United States patent, United States copyright or United States trademark of any third party; provided that Buyer notifies HyperGrid promptly in writing of such claim, suit or proceeding and gives HyperGrid sole control of any defense or settlement thereof, and, at HyperGrid’s expense, gives HyperGrid proper and full information and assistance. If during the course of any infringement claim, suit or proceeding that HyperGrid is required to defend Buyer hereunder, the use or sale of the allegedly infringing Product is finally enjoined, then HyperGrid shall at its option and expense use commercially reasonable efforts to do one of the following: (a) procure for Buyer a license to continue to use the Product; (b) replace the Product or the affected part thereof with equivalent non-infringing technology; or (c) modify the Product or the affected part thereof to make it non-infringing but equivalent. HyperGrid shall have no obligation whatsoever pursuant to this Section 8 or otherwise for or with respect to any infringement claim, suit or proceeding arising out of or related to: (a) a use of other than the current version of any Product, if the infringement would have been avoided by use of the current version; (b) the modification of any Product by a party other than HyperGrid; (c) the combination or use of any Product with materials not furnished by HyperGrid, if the infringement would have been avoided by the use of the HyperGrid materials alone; (d) the use of any Product in a way not specified in writing by HyperGrid or (e) designs, instructions, specifications or intellectual property not developed by HyperGrid or not furnished by HyperGrid.THE INDEMNITY CONTAINED IN THIS SECTION 8 STATES THE SOLE LIABILITY OF HYPERGRID AND ITS SUPPLIERS WITH RESPECT TO ANY AND ALL INFRINGEMENT BY ANY PRODUCT, OR ANY PARTS THEREOF, OF ANY PATENTS, TRADEMARKS, TRADE SECRETS, COPYRIGHTS, MASK WORKS OR OTHER INTELLECTUAL PROPERTY RIGHTS OF ANY THIRD PARTY AND IS EXPRESSLY IN LIEU OF ALL WARRANTIES, REPRESENTATIONS OR CONDITIONS, EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, IN REGARD THERETO.
SUPPORT –Buyer may purchase support from HyperGrid on the terms and conditions set forth in the Support Agreement.
SOFTWARE – Notwithstanding anything contained in this Agreement to the contrary, Licensed Programs provided to Buyer hereunder are subject to license, and not sale, in accordance with the terms and conditions of the Software License Agreement. Buyer shall not and shall not authorize any third party to: (a) copy, alter or in any way modify the Licensed Programs without the prior written consent of HyperGrid or create derivative works, as defined under 17 USC §106 (as interpreted by applicable case law); (b) translate, decompile, disassemble, reverse compile, reverse engineer, interrogate, or decode the Licensed Programs or in any other manner reduce the Licensed Programs to human perceivable form except to the extent (but only to such extent) that any restrictions set forth in this clause (b) are not permitted under applicable law; (c) bypass or delete any copy protection methods that are intended to prevent unauthorized copying or use of the Licensed Programs; or (d) electronically distribute, timeshare, market by interactive communication means or by remote processing services the Licensed Programs. Except as expressly authorized under this Agreement, Buyer shall not and shall not authorize any third party to copy, use or disclose the Licensed Programs or their functions on behalf of or in relation to any third party products, devices or services or to any third parties. Buyer acknowledges, that the licenses granted pursuant to this Agreement do not provide Buyer with any title or ownership rights in or to the Licensed Programs, but only a right of limited use.
PROPRIETARY RIGHTS – Buyer shall not remove, alter, cover or obfuscate any proprietary rights notices, such as patent, copyright or confidentiality notices, on or in any Product, Licensed Program or Documentation, other materials or copies thereof, unless agreed in writing by HyperGrid. Except as expressly set forth herein or otherwise agreed by HyperGrid, HyperGrid and its licensors shall own all right, title and interest in the Products and Licensed Programs, and any modifications thereto. HyperGrid and its licensors shall retain all right, title and interest in and to the Products and Licensed Programs, and Buyer may not transfer, distribute, rent, or grant any intellectual property rights in the Products or Licensed Programs to any party. HyperGrid shall own all right, title and interest in (a) the Documentation; (b) any modifications, alterations, translations or derivative works of the Documentation, regardless of by whom made; and (c) all intellectual property rights related to the foregoing, unless otherwise agreed in writing by HyperGrid. Buyer shall have no claim or right in any name, logo, trademark, service mark, trade name or other mark owned, used or claimed by HyperGrid now or in the future. ALL RIGHTS IN THE PRODUCTS, DOCUMENTATION AND LICENSED PROGRAMS NOT EXPRESSLY GRANTED HEREUNDER ARE RESERVED TO HYPERGRID.
EXCUSABLE DELAYS –HyperGrid shall not be charged with any liability for delay or failure to perform any of its obligations hereunder if such delay or failure to perform is due to causes or events beyond HyperGrid’S control, whether or not foreseeable by either party, including without limitation delay of suppliers, force majeure, act of God, labor disturbance or strike, war, terrorist acts, fire, explosion, earthquake, accident, adverse weather, inability to secure transportation, governmental act or regulation, inability of HyperGrid to obtain materials, shortage of materials and any other causes or events beyond HyperGrid’S control, whether or not similar to those enumerated above. In any such event, the Shipment Date will be deemed extended for a period equal to the delay. HyperGrid reserves the right to allocate in its sole discretion among customers or potential customers, or to defer or delay the shipment of, any Products which are in short supply.
CONFIDENTIALITY. Buyer agrees that aspects of the Products and Documentation, including the specific design and structure of individual programs, constitute trade secrets and/or copyrighted material of HyperGrid. Buyer shall not disclose, provide, or otherwise make available such trade secrets or copyrighted material in any form to any third party without the prior written consent of HyperGrid and shall implement reasonable security measures to protect such trade secrets and copyrighted material.
LIMITATION OF LIABILITY – TO THE EXTENT ALLOWED BY APPLICABLE LAW, ALL LIABILITY OF HYPERGRID AND ITS SUPPLIERS FOR CLAIMS RELATING TO OR ARISING OUT OF THE PRODUCTS OR OTHERWISE, HOWEVER CAUSED AND WHETHER BASED IN CONTRACT, TORT (INCLUDING NEGLIGENCE), PRODUCTS LIABILITY, EQUITY OR ANY OTHER THEORY OF LIABILITY, SHALL BE LIMITED TO THE AGGREGATE PRICE PAID BY BUYER TO HYPERGRID UNDER THIS AGREEMENT. THE LIMITATIONS CONTAINED IN THIS SECTION SHALL APPLY NOTWITHSTANDING ANY FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY PROVIDED UNDER ANY TERM OF THIS AGREEMENT.
DAMAGES WAIVER – IN NO EVENT SHALL HYPERGRID BE LIABLE FOR ANY COSTS OF PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES BY BUYER. NEITHER HYPERGRID NOR ITS SUPPLIERS SHALL BE LIABLE FOR ANY SPECIAL, INDIRECT, CONSEQUENTIAL, INCIDENTAL, RELIANCE OR PUNITIVE DAMAGES RELATING TO OR ARISING OUT OF THIS AGREEMENT, THE PRODUCTS OR OTHERWISE, HOWEVER CAUSED AND WHETHER BASED IN CONTRACT, TORT (INCLUDING NEGLIGENCE), PRODUCTS LIABILITY, EQUITY OR ANY OTHER THEORY OF LIABILITY, INCLUDING BUT NOT LIMITED TO LOST PROFITS, COSTS OF PROCUREMENT OF SUBSTITUTE GOODS, LOSS OF GOODWILL, LOSS OR DAMAGE OF DATA OR SYSTEM USE OR OTHER BUSINESS LOSS, REGARDLESS OF WHETHER SUCH PARTY KNOWS OR HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, LOSSES, COSTS OR EXPENSES, AND NOTWITHSTANDING ANY FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY.
Entire Agreement. This Agreement, the Support Agreement, if any, and the Software License Agreement constitute the entire understanding, express or implied, oral or written, between Buyer and HyperGrid with respect to the subject matter hereof and supersede any and all prior Agreements, discussions and understandings, express or implied, oral or written, between Buyer and HyperGrid; provided, however, that in the event there is a pre-existing written contract covering the sale of Products executed by HyperGrid and Buyer, the sale of Products shall be subject to the terms and conditions of said pre-existing contract. In the event of any inconsistency between the terms and conditions contained in the “Terms and Conditions of Sale” section of this Agreement and the terms and conditions contained on the face of any Invoice, the terms and conditions contained on the face of the Invoice shall apply. In the event of any inconsistency between the terms and conditions contained in this Agreement and the terms and conditions contained in the Software License Agreement, the terms and conditions contained in the Software License Agreement shall apply. TO THE EXTENT THIS AGREEMENT IS INCONSISTENT WITH, OR MATERIALLY ALTERS, ANY TERMS OR CONDITIONS OF BUYER’S ORDER OR OTHER DOCUMENT, THIS AGREEMENT SHALL PREVAIL. HYPERGRID SHALL NOT BE BOUND BY ANY TERMS OR CONDITIONS OF BUYER’S ORDER OR OTHER DOCUMENT THAT ARE ADDITIONS TO OR INCONSISTENT WITH, OR MATERIALLY CHANGE, ANY TERMS OR CONDITIONS SET FORTH IN THIS AGREEMENT.
Choice of Law; Jurisdiction. This Agreement shall be construed, enforced and governed solely in accordance with the laws of the State of California without giving effect to the conflicts of law principles thereof. The personal and exclusive jurisdiction and exclusive venue of any action with respect to the subject matter of this Agreement shall be the Superior Court of California for the County of Santa Clara or the United States District Court for the Northern District of California and each of the parties hereto submits itself to the personal and exclusive jurisdiction and exclusive venue of such courts for the purpose of any such action.
Assignment. The rights and obligations under this Agreement are personal and may not be transferred or assigned directly or indirectly except upon written consent of the non-assigning party; except however (a)HyperGrid may assign its right to payment and (b) either party may assign this Agreement to an affiliate or successor in interest (or its equivalent) of all or substantially all of its relevant assets, whether by sale, merger, or otherwise. Subject to the foregoing, this Agreement shall be binding upon and inure to the benefit of the parties hereto, their successors and assigns.
Construction of Agreement; Waivers and Amendments. If, for any reason, a court or other body of competent jurisdiction finds, or the parties mutually believe, any provision of this Agreement, or portion thereof, to be invalid or unenforceable, such provision shall be enforced to the maximum extent permissible so as to effect the intent of the parties, and the remainder of this Agreement shall continue in full force and effect. The parties shall negotiate in good faith an enforceable substitute provision that most nearly achieves the intent and economic effect of such invalid or unenforceable provision. Headings used herein are inserted for convenience of reference only and shall not affect the construction or interpretation of this Agreement. Unless otherwise provided in this Agreement, the rights and obligations of the parties under this Agreement may be amended, changed, modified, waived or discharged only by a written instrument effecting such amendment, change, modification, waiver or discharge signed by an authorized representative of the party against whom enforcement is sought. The parties hereto agree that no delay or omission to exercise any right, power or remedy accruing to any party upon any breach or default of the other party under this Agreement shall impair any such right, power or remedy, nor shall it be construed to be a waiver of any such breach or default, or any acquiescence therein, or of any similar breach or default thereafter occurring; nor shall any waiver of any single breach or default be deemed a waiver of any other breach or default theretofore or thereafter occurring.
Compliance with Laws. Each party shall comply with all laws, regulations, orders and other governmental or other competent authority requirements (“Applicable Laws”) in performing its obligations and exercising its rights under this Agreement (including without limitation all applicable export, re-export and import laws and regulations). This Agreement is expressly made subject to any laws, regulations, orders or other restrictions on the export from the United States of America of any technology, products incorporating technology or information pertaining thereto which may be imposed from time to time by the Government of the United States of America or any agency thereof. Notwithstanding anything contained in this Agreement to the contrary, Buyer shall not export or re-export, directly or indirectly, any technology, products incorporating technology or information pertaining thereto to any country for which the Government of the United States of America or any agency thereof requires an export license or other governmental approval at the time of export or re-export without first obtaining such license or approval. Buyer shall maintain a record of exports, re-exports and transfers of the Products according to United States and local laws. Buyer shall indemnify, defend and hold HyperGrid harmless from and against any violation or alleged violation of any Applicable Laws.
United States Government Contract Provisions and Clauses. In the event any Products purchased hereunder are sold, or are incorporated into products that are sold, under a United States Government contract, any and all provisions or clauses required to be passed on to HyperGrid pursuant to said contract are hereby rejected by HyperGrid and shall not be deemed included herein or binding on HyperGrid unless and until specifically accepted in a writing executed by an authorized representative of HyperGrid.
Mediation. If any dispute arises out of or related to this Agreement, the parties hereto agree first to try in good faith to settle the dispute by mediation. In the event of such a dispute, either party may initiate the mediation by so requesting in a writing delivered to the other party. Within ten (10) calendar days of such a request for mediation, the parties hereto shall confer for the purpose of selecting a mutually agreeable mediator. If the parties hereto have not been able to agree upon a mediator within twenty (20) calendar days of the request for mediation, either party may request that the Judicial Arbitration and Mediation Services (JAMS) appoint a mediator. Said mediation shall take place in the County of Santa Clara, California.
Litigation Expenses. The prevailing party in any action or proceeding to enforce or interpret any part of this Agreement shall be entitled to recover its reasonable expenses including without limitation attorney’s fees (including fees on any appeal).
Basis of the Bargain. EACH PARTY HERETO RECOGNIZES AND AGREES THAT THE WARRANTY DISCLAIMERS AND LIABILITY AND REMEDY LIMITATIONS CONTAINED IN THIS AGREEMENT ARE MATERIAL BARGAINED FOR BASES OF THIS AGREEMENT AND THAT THEY HAVE BEEN TAKEN INTO ACCOUNT AND REFLECTED IN DETERMINING THE CONSIDERATION TO BE GIVEN BY EACH PARTY UNDER THIS AGREEMENT AND IN THE DECISION BY EACH PARTY TO ENTER INTO THIS AGREEMENT.