This Schedule will control in case of any conflict between the terms and conditions in this Schedule and the Agreement with respect to Fortra’s Digital Guardian Hardware.
1. DEFINITIONS
1.1. “Commencement Date” for the Hardware, Operating System and Integrated Software refers to the date the Hardware is delivered.
1.2. “Hardware” means equipment, including its components and spare parts, specifically ordered by Client.
1.3. “Integrated Software” refers to any software or programmable code that is: (a) embedded or integrated in the Hardware and enables the functionality of the Hardware; or (b) specifically provided to Client by Fortra’s Digital Guardian under an Order Form and specifically listed: (i) in accompanying documentation; (ii) on a Fortra webpage; or (iii) via a mechanism that facilitates installation for use with Client’s Hardware. Integrated Software does not include and Client does not have rights to: (a) code or functionality for diagnostic, maintenance, repair or technical support services; or (b) separately licensed applications, operating systems, development tools, or system management software or other code that is separately licensed by Fortra’s Digital Guardian.
1.4. “Integrated Software Options” refers to software or programmable code embedded in, installed on, or activated on the Hardware that requires one or more unit licenses that Client must separately order and agrees to pay additional fees.
1.5. “Operating System” refers to the software that manages Hardware and other software.
2. RIGHTS GRANTED
2.1. Client’s Hardware order consists of the following items: Operating System (as defined in Client’s configuration), Integrated Software and all Hardware equipment (including components, options and spare parts) specified on the applicable Order Form. Client’s Hardware order may also include Integrated Software Options. Integrated Software Options may not be activated or used until Client separately orders them and agrees to pay additional fees.
2.2. Client has the limited, non-exclusive, royalty free, non-transferable, non-assignable right to use Integrated Software delivered with the Hardware subject to the terms of this Schedule and the applicable documentation. Client is licensed to use that Integrated Software and any Integrated Software updates acquired through technical support only as incorporated in, and as part of, the Hardware. Client has the limited, non-exclusive, royalty free, non-transferable, non-assignable right to use Integrated Software Options that Client separately orders subject to the terms of this Schedule and the applicable documentation. Client is licensed to use those Integrated Software Options and any Integrated Software Options updates acquired through technical support only as incorporated in, and as part of, the Hardware.
2.3. The Operating System or Integrated Software or Integrated Software Options (or all three) may include separate works, identified in a readme file, notice file or the applicable documentation, which are licensed under open source or similar license terms; Client’s rights to use the Operating System, Integrated Software and Integrated Software Options under such terms are not restricted in any way by the Agreement including this Schedule. The appropriate terms associated with such separate works can be found in the readme files, notice files or in the documentation accompanying the Operating System, Integrated Software, and Integrated Software Options.
2.4. Upon payment for Hardware-related Service Offerings, Client has the non-exclusive, non-assignable, royalty free, perpetual, limited right to use for Client’s internal business operations anything developed by Fortra’s Digital Guardian and delivered to Client under this Schedule (“Deliverables”); however, certain Deliverables may be subject to additional license terms provided in the Order Form.
3. RESTRICTIONS
3.1. Client may only make copies of the Operating System, Integrated Software and Integrated Software Options for archival purposes, to replace a defective copy, or for program verification. Client shall not remove any copyright notices or labels on the Operating System, Integrated Software or Integrated Software Options. Client shall not decompile or reverse engineer (unless required by law for interoperability) the Operating System or Integrated Software.
3.2. Client acknowledges that to operate certain Hardware, Client’s facility must meet a minimum set of requirements as described in the Hardware documentation. Such requirements may change from time to time, as communicated by Fortra’s Digital Guardian to Client in the applicable Hardware documentation.
3.3. The prohibition on the assignment or transfer of the Operating System or any interest in it shall apply to all Operating Systems licensed under this Schedule, except to the extent that such prohibition is rendered unenforceable under applicable law.
4. TECHNICAL SUPPORT
4.1. Fortra’s Digital Guardian Hardware and Systems Support acquired with Client’s order may be renewed annually.
4.2. If ordered, Hardware and Systems Support (including first year and all subsequent years) is provided under Fortra’s Digital Guardian’s Hardware and Systems Support policies in effect at the time the technical support services are provided (”Hardware and Systems Support”). Client agrees to cooperate with Fortra’s Digital Guardian and provide the access, resources, materials, personnel, information and consents that Fortra’s Digital Guardian may require in order to perform the technical support services. The Hardware and Systems Support policies are incorporated in this Schedule and are subject to change at Fortra’s Digital Guardian’s discretion; however, Fortra’s Digital Guardian will not materially reduce the level of technical support services provided during the period for which fees for Hardware and Systems Support have been paid. Client should review the policies prior to entering into the order for technical support services.
4.3. Hardware and Systems Support is effective upon the Commencement Date of the Hardware or upon the effective date of the Order Form if shipment of Hardware is not required.
5. HARDWARE-RELATED SERVICE OFFERINGS
In addition to technical support, Client may order Hardware-related Service Offerings under this Schedule (the “Service Offerings”). Client agrees to provide Fortra’s Digital Guardian with all information, access and full good faith cooperation reasonably necessary to enable Fortra’s Digital Guardian to deliver these Service Offerings and Client will perform the actions identified in the Order Form as Client’s responsibility. If, while performing these Service Offerings, Fortra’s Digital Guardian requires access to another Digital Guardian products that are part of Client’s system, Client will be responsible for acquiring all such products and the appropriate license rights necessary for Fortra’s Digital Guardian to access such products on Client’s behalf. Service Offerings provided may be related to Client’s license to use products owned or distributed by Fortra’s Digital Guardian which Client acquires under a separate Order Form. The agreement referenced in that Order Form shall govern Client’s use of such products.
6. WARRANTIES, DISCLAIMERS AND EXCLUSIVE REMEDIES
6.1. Digital Guardian provides a limited warranty (“Digital Guardian Hardware Warranty”) for (i) the Hardware; (ii) the Operating System and the Integrated Software and the Integrated Software Options; and (iii) the Operating System media, the Integrated Software media and the Integrated Software Options media (“Media”, and (i), (ii) and (iii) collectively, “Hardware Items”). Fortra’s Digital Guardian warrants that the Hardware will be free from, and using the Operating System and Integrated Software and Integrated Software Options will not cause in the Hardware, material defects in materials and workmanship for one (1) year from the date the Hardware is delivered to Client. The Digital Guardian Hardware Warranty applies only to Hardware and Media that have been: (1) manufactured by or for Fortra’s Digital Guardian, and (2) sold by Fortra’s Digital Guardian (either directly or by a Fortra authorized distributor). The Hardware may be new or like new. The Digital Guardian Hardware Warranty applies to Hardware that is new and Hardware that is like new which has been remanufactured and certified for warranty by Fortra’s Digital Guardian.
6.2. Fortra’s Digital Guardian also warrants that technical support services and Hardware-related Service Offerings ordered and provided under this Schedule will be provided in a good and workmanlike manner consistent with generally accepted industry standards. Client must notify Fortra’s Digital Guardian of any technical support service or Hardware-related Service Offerings warranty deficiencies within 90 days from performance of the deficient technical support service or Hardware-related Service Offerings.
6.3. FOR ANY BREACH OF THE ABOVE WARRANTIES, CLIENT’S EXCLUSIVE REMEDY AND FORTRA’S DIGITAL GUARDIAN’S ENTIRE LIABILITY SHALL BE: (i) THE REPAIR OR, AT FORTRA’S DIGITAL GUARDIAN’S OPTION AND EXPENSE, REPLACEMENT OF THE DEFECTIVE HARDWARE ITEM, OR IF SUCH REPAIR OR REPLACEMENT IS NOT REASONABLY ACHIEVABLE, THE REFUND OF THE FEES CLIENT PAID FORTRA’S DIGITAL GUARDIAN FOR THE DEFECTIVE HARDWARE ITEM AND THE REFUND OF ANY UNUSED PREPAID TECHNICAL SUPPORT FEES CLIENT HAS PAID FOR THE DEFECTIVE HARDWARE ITEM; OR (ii) THE REPERFORMANCE OF THE DEFICIENT HARDWARE-RELATED SERVICE OFFERINGS; OR, IF FORTRA’S DIGITAL GUARDIAN CANNOT SUBSTANTIALLY CORRECT THE DEFICIENCY IN A COMMERCIALLY REASONABLE MANNER, CLIENT MAY END THE DEFICIENT HARDWARE-RELATED SERVICE OFFERINGS AND RECOVER THE FEES CLIENT PAID TO FORTRA’S DIGITAL GUARDIAN FOR THE DEFICIENT HARDWARE-RELATED SERVICE OFFERINGS. TO THE EXTENT NOT PROHIBITED BY LAW, THESE WARRANTIES ARE EXCLUSIVE AND THERE ARE NO OTHER EXPRESS OR IMPLIED WARRANTIES OR CONDITIONS WITH RESPECT TO THE ABOVE ITEMS, INCLUDING ANY WARRANTIES OR CONDITIONS OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE.
6.4. Replacement units for defective parts or Hardware Items replaced under the Digital Guardian Hardware Warranty may be new or like new quality. Such replacement units assume the warranty status of the Hardware into which they are installed and have no separate or independent warranty of any kind. Title in all defective parts or Hardware Items shall transfer back to Fortra’s Digital Guardian upon removal from the Hardware.
6.5. FORTRA’S DIGITAL GUARDIAN DOES NOT WARRANT UNINTERRUPTED OR ERROR-FREE OPERATION OF THE HARDWARE, OPERATING SYSTEM, INTEGRATED SOFTWARE, INTEGRATED SOFTWARE OPTIONS OR MEDIA.
6.6. No warranty will apply to any Hardware, Operating System, Integrated Software, Integrated Software Options or Media which has been:
a. modified, altered or adapted without Fortra’s Digital Guardian’s written consent (including modification or removal of the Digital Guardian/Sun serial number tag on the Hardware);
b. maltreated or used in a manner other than in accordance with the relevant documentation;
c. repaired by any third party in a manner which fails to meet Fortra’s Digital Guardian’s quality standards;
d. improperly installed by any party other than Fortra’s Digital Guardian or an authorized Fortra certified installation partner;
e. used with equipment or software not covered by a Fortra’s Digital Guardian warranty, to the extent that the problems are attributable to such use;
f. relocated, to the extent that problems are attributable to such relocation;
g. used directly or indirectly in supporting activities prohibited by U.S. or other national export regulations;
h. used by parties appearing on the then-current U.S. export exclusion list;
i. relocated to countries subject to U.S. trade embargo or restrictions;
j. used remotely to facilitate any activities for parties or in the countries referenced in (h) and (i) above; or
k. purchased from any entity other than Fortra’s Digital Guardian or a Fortra authorized reseller.6.7. The Digital Guardian Hardware Warranty does not apply to normal wear of the Hardware or Media. The Digital Guardian Hardware Warranty is extended only to the original purchaser or original lessee of the Hardware and may be void in the event that title to the Hardware is transferred to a third party.
7. ORDER LOGISTICS
7.1. Delivery, Installation and Acceptance of Hardware
a. Client is responsible for installation of the Hardware unless Client purchases installation services from Fortra’s Digital Guardian for that Hardware.
b. Fortra’s Digital Guardian will deliver the Hardware to the delivery address specified by Client on the Order Form.
c. Acceptance of the Hardware is deemed to occur on delivery.
d. Fortra’s Digital Guardian may invoice Client for partial deliveries.
e. Fortra’s Digital Guardian may make substitutions and modifications to the Hardware that do not cause a material adverse effect in overall Hardware performance.
f. Fortra’s Digital Guardian will use its reasonable commercial efforts to deliver the Hardware within a timeframe that is consistent with Fortra’s Digital Guardian’s past practices regarding the amount and type of Hardware that Client has ordered.7.2. Transfer of Title Title to the Hardware will transfer upon delivery.
7.3. Territory
The Hardware shall be installed in the country/countries that Client specifies as the delivery location on the Order Form.- 7.4. Pricing, Invoicing and Payment Obligation
a. In entering into payment obligations under an Order Form, Client agrees and acknowledges that it has not relied on the future availability of any Hardware, program or updates. However, (a) if Client orders technical support, the preceding sentence does not relieve Fortra’s Digital Guardian of its obligation to provide such technical support under the Order Form, if and when available, in accordance with Fortra’s Digital Guardian’s then current technical support policies, and (b) the preceding sentence does not change the rights granted to Client hereunder.
b. Hardware and Integrated Software Options fees are invoiced as of the respective Commencement Dates.
c. Hardware-related Service Offering fees are invoiced in advance of the Hardware-related Service Offering performance; specifically, technical support fees are invoiced annually in advance. The period of performance for all Hardware-related Service Offerings is effective upon the Commencement Date of the Hardware or upon the effective date of the Order Form if shipment of Hardware is not required.
d. In addition to the prices listed on the Order Form, Fortra’s Digital Guardian will invoice Client for any applicable freight charges or applicable taxes, and Client will be responsible for such charges and taxes notwithstanding any express or implied provision in the “Incoterms”.