UNIFY PURCHASE TERMS AND CONDITIONS

Entreda, Inc.’s products and services may include hardware equipment (“Hardware”) and software in any form (“Software”) (each and collectively “Product” or “Products”), and support services (“Support Services”), installation services (“Installation Services”) and professional services (“Professional Services”) (each and collectively “Service” or “Services”).

 

The use of Products and Services by any person or entity (“Customer”) is governed solely by this agreement (this “Agreement”) which consists of: (i) the Quote (defined below); (ii) these Purchase Terms and Conditions, including attachments (“Purchase Terms and Conditions”); and (iii) any end user license agreement or separate click-wrap agreement or terms in any Software installation or download (the “EULA”). If there is a conflict among any of the foregoing, priority shall be given in order to the: Quote, Purchase Terms and Conditions and the EULA. As used in this Agreement, “Entreda” means Entreda, Inc., a Delaware corporation. By clicking the “I Agree” button indicating your acceptance of the EULA or any other agreement with Entreda or by executing an order form or the Quote that references the EULA or these Purchase Terms and Conditions, you agree to all of the terms set forth in these Purchase Terms and Conditions. If you are entering into the EULA or other agreement with Entreda on behalf of a company or other legal entity, you represent that you have the authority to bind such entity and its affiliates to these Purchase Terms and Conditions, in which case the terms “you”, “your” or “Customer” shall refer to such entity and its affiliates. If you do not have such authority, or if you do not agree with the terms and conditions set forth herein or in the EULA or other agreement you have entered into with Entreda, you must not accept these Purchase Terms and Conditions and may not use any Product or Service.

 

ORDERING. Entreda may submit a quote to Customer containing quantity, pricing and other ordering information (“Quote”). Customer will be deemed to have accepted a Quote when Customer either: (i) signs and returns the Quote; (ii) issues a purchase order (“PO”) per the Quote; or (iii) sends Entreda an email or other written acceptance referring to the Quote. The foregoing is an “Order.” Customer agrees that any terms and conditions inconsistent with or in addition to this Agreement, including without limitation any PO terms and conditions, are rejected and null and of no effect, even if Entreda accepts, acknowledges or ships Products in response to the Order. Each Order is complete when Entreda ships the Products, and for Software provided separately from Hardware when Entreda makes the Software available.

 

PRICING. Customer hereby agrees that the license fees and other pricing terms set forth in any Order or Quote are subject to change from time to time as determined by the mutual agreement of Entreda and Signator Investors, Inc. Entreda shall notify Customer of any change in the license fees or other pricing terms applicable to an Order at least 15 days prior to the change in such license fees or other pricing terms.

 

SUBSCRIPTION, BILLING AND PAYMENT. Entreda will invoice Customer after the Order is complete, and Customer will pay the invoice in the chosen payment method as well as pay or reimburse Entreda for all related taxes, withholdings, duties and assessments, except for taxes based on Entreda’s net income. Entreda will invoice Customer for subscription fees related to any Services either annually, quarterly for no extra charge or monthly for a fee (10%) in advance, as indicated in the Order. Amounts are due in the currency stated in the Order, as applicable, in full thirty (30) days after the date of invoice, with interest accruing thereafter at the lesser of 25% per month or the maximum permitted by law. If no currency is stated, amounts are due in United States dollars. Payment shall be made free of any currency controls or other restrictions, by check or wire transfer, to the address or bank account designated by Entreda. Entreda may suspend shipments of Products or performance of Services if Customer fails to make payment when due. Entreda reserves and Customer grants to Entreda a purchase money security interest in the Products sold and the proceeds thereof until Customer has paid the invoice. Specific terms for the

 

(a) General Terms. As such, Entreda bills Customer for paid services through the chosen payment provider (or “Payment Method”) for use of the Service. Customer agrees to pay Entreda all charges at the prices then in effect for any use of the Service by Customer, and the Customer in turn authorizes Entreda to charge for the services through the chosen Payment Method. Customer agrees to make payment using the selected Payment Method. Entreda reserves the right to correct any errors or mistakes that it makes even if it has already requested or received payment.

(b) Recurring Billing. Most subscription plans to the software and related services consist of recurring periodic charges as agreed to by Customer. By entering into this Agreement, Customer acknowledges that the subscription may have an initial and recurring payment feature as describe in the Quote and the Customer accepts responsibility for all recurring charges prior to cancellation. ENTREDA SUBMITS PERIODIC CHARGES (E.G., MONTHLY, QUARTERLY OR ANNUALLY) WITHOUT FURTHER AUTHORIZATION FROM CUSTOMER, UNTIL CUSTOMER PROVIDES PRIOR NOTICE (CONFIRMED IN WRITING UPON REQUEST BY ENTREDA) THAT THE CUSTOMER HAS TERMINATED THIS AUTHORIZATION OR WISHES TO CHANGE THE PAYMENT METHOD. SUCH NOTICE WILL NOT AFFECT CHARGES SUBMITTED BEFORE ENTREDA REASONABLY COULD ACT. TO TERMINATE AUTHORIZATION OF PAYMENT, CUSTOMER AGREES TO SEND AN EMAIL TO ACCOUNTING at ENTREDA dot COM IN ORDER TO CANCEL THE SUBSCRIPTION.

(c) Current Information Required. CUSTOMER MUST PROVIDE CURRENT, COMPLETE AND ACCURATE BILLING INFORMATION. CUSTOMER MUST PROMPTLY UPDATE ALL INFORMATION TO KEEP PAYMENT METHOD CURRENT, COMPLETE AND ACCURATE (SUCH AS A CHANGE IN BILLING ADDRESS, CREDIT CARD NUMBER, OR CREDIT CARD EXPIRATION DATE), AND MUST PROMPTLY NOTIFY ENTREDA IF PAYMENT METHOD IS CANCELED (E.G., FOR LOSS OR THEFT) OR IF THE CUSTOMER BECOMES AWARE OF A POTENTIAL BREACH OF SECURITY, SUCH AS THE UNAUTHORIZED DISCLOSURE OR USE OF USER NAME OR PASSWORD. IF CUSTOMER FAILS TO PROVIDE ENTREDA ANY OF THE FOREGOING INFORMATION, CUSTOMER AGREES THAT ENTREDA MAY CONTINUE CHARGING FOR USE OF THE SERVICES UNLESS THE SERVICE WAS TERMINATED AND AS CONFIRMED IN WRITING UPON REQUEST BY ENTREDA.

(d) Payment Method. The terms of payment will be based on chosen Payment Method and may be determined by agreements between Customer and the financial institution, credit card issuer or other provider of the chosen Payment Method (the “Payment Method Provider”). If ENTREDA does not receive payment from chosen Payment Method Provider, customer agrees to pay all amounts due on the billing account including applicable interest.

(e) Change in Amount Authorized. If the amount to be charged varies from the amount previously authorized (other than due to the imposition or change in the amount of state sales taxes), Customer has the right to receive, and ENTREDA shall provide, notice of the amount to be charged and the date of the charge at least 15 days before the scheduled date of the transaction. Any agreement customer has with the chosen Payment Method Provider will govern use of the Payment Method. Customer agrees that ENTREDA may accumulate charges incurred and submit them as one or more aggregate charges during or at the end of each billing cycle.

(f) Auto-renewal. The subscription will be automatically extended for successive renewal periods of the same duration as the subscription term originally selected, at the lesser value between the then-current non-promotional subscription rate and Quote or order as agreed upon by customer.

(g) Refund for Subscription and Pre-paid services. If customer cancels the subscription, then the Customer is NOT eligible for a prorated refund of any portion of the subscription fee paid for the then-current subscription period. In case of pre-payment for a certain period of service (for example if customer pays a lump sum for 12 months of service), the Customer is NOT eligible for a prorated refund of any portion of the pre-paid amount upon cancelation.

(h) Reaffirmation of Authorization. Customer’s non-termination or continued use of the Service reaffirms that ENTREDA is authorized to charge through the chosen Payment Method. Entreda may submit those charges for payment and Customer agrees to be responsible for such charges. This does not waive Entreda’s right to seek payment directly from the Customer. Charges may be payable in advance, periodically, or as otherwise described in the Quote or Order when Customer initially subscribed to the Service.

(i) Free Trials and Other Promotions. Any free trial or other promotion that provides subscriber-level access to the Service must be used within the specified time of the trial. Customer must cancel subscription before the end of the trial period in order to avoid being charged a subscription fee. If Customer cancels prior to the end of the trial period and is inadvertently charged for a subscription, Customer shall contact accounting@entreda.com immediately to have the charges reversed.

 

SHIPMENT(For Hardware). Shipping terms for orders placed with Entreda are: (i) FCA (Incoterms 2010) origin; (ii) Entreda will pre- pay and invoice freight to Customer per the applicable quote; and (iii) for shipments outside the United States, Customer is responsible for clearing the goods for import and paying all formalities, duties, taxes, and other charges upon import. Title for the hardware and risk of loss will pass to Customer upon delivery to the carrier at the point of origin. All scheduled shipment dates are estimates only and Entreda shall not be obligated to incur any expedited delivery charges, and Entreda is not liable for any loss or damage or penalty resulting from delay.

 

SOFTWARE & SOFTWARE RESTRICTIONS. Software is licensed to Customer, not sold. By using any Software (including any Software hosted by Entreda and provided through the “cloud”), Customer agrees to be bound by and abide by the terms of the EULA.

 

SERVICES. Customer is not entitled to Services unless Customer has ordered and paid for Services as provided in the Order or Quote. Entreda’s obligations with respect to Support Services, Installations Services and Professional Services, if not attached hereto, may be found at http://www.entreda.com/legal, and are hereby incorporated into and made an integral part of these Purchase Terms and Conditions.

 

LIMITED WARRANTIES; WARRANTY DISCLAIMER; AND LIMITATION OF LIABILITY. ENTREDA’S LIMITED WARRANTIES, WHICH INCLUDE ENTREDA’S WARRANTY DISCLAIMER AND ENTREDA’S LIMITATION OF LIABILITY, IF NOT ATTACHED HERETO, MAY BE FOUND AT HTTP://ENTREDA.COM/LEGAL. THE LIMITED WARRANTIES ARE HEREBY INCORPORATED INTO AND MADE AN INTEGRAL PART OF THESE PURCHASE TERMS AND CONDITIONS.

 

INDEMNIFICATION. Entreda will defend or settle any action brought against Customer by a third party to the extent it is based upon a third-party claim that a Product infringes any patent or copyright existing in the United States of America. Entreda will pay any actual, documented out-of-pocket costs and damages made in a written settlement negotiated by Entreda or awarded by a court of competent jurisdiction again Customer in final judgment resulting from the claim, provided Customer: (i) gives Entreda prompt written notice of the claim; (ii) grants Entreda sole control of the defense and settlement of the claim; (iii) cooperates in response to Entreda’s requests for information, assistance and authority in connection with the foregoing; and (iv) is not in breach of this Agreement. Entreda will not be bound by any settlement Customer enters into without Entreda’s prior written consent. Entreda will have no obligation under this Section 8 to the extent any claim is based on negligent acts, fraud or willful misconduct by Customer or Customer’s employees or subcontractors. If the operation of a Product becomes, or Entreda believes is likely to become, the subject of such a claim, Customer will permit Entreda, at Entreda’s option and expense, either to secure the right for Customer to continue using the Product or to replace or modify it so that it becomes non-infringing. However, if neither of the foregoing alternatives is available on terms which are reasonable in Entreda’s judgment, Customer will return the Product upon Entreda’s written request for a refund of the Product cost. Entreda shall have no liability or obligation to the extent that the alleged infringement arises out of or relates to: (i) the use or combination of a Product with third party products or services; (ii) use for a purpose or in a manner for which a Product was not designed or intended; (iii) any modification or alteration to a Product made by any person other than Entreda or its authorized or designated representatives; (iv) any modifications or alterations to a Product made by Entreda pursuant to Customer’s specific requests or instructions; (v) any technology owned or licensed by Customer from third parties; or (vi) use of any older version of Software when use of a newer Software Release made available to Customer would have avoided the infringement. THIS SECTION 8 STATES CUSTOMER’S SOLE AND EXCLUSIVE REMEDY AND ENTREDA’S ENTIRE LIABILITY AND OBLIGATION FOR THIRD PARTY CLAIMS OF INFRINGEMENT BY THE PRODUCTS. NOTWITHSTANDING ANYTHING HEREIN OR IN ANY OTHER AGREEMENT ENTERED INTO WITH ENTREDA TO THE CONTRARY, ENTREDA’S MAXIMUM LIABILITY TO CUSTOMER SHALL IN NO EVENT EXCEED THE AGGREGATE PURCHASE PRICE FOR PRODUCTS PURCHASED AND/OR SERVICES RENDERED TO THE CUSTOMER.

U.S. GOVERNMENT RIGHTS. The Software is "commercial computer software" as defined in the U.S. Federal Acquisition Regulations (“FAR”) at 2.101. If acquired by or on behalf of a civilian agency, the U.S. Government acquires this commercial computer software and/or commercial computer software documentation and other technical data subject to the terms of this Agreement as specified in 48 C.F.R. 12.212 (Computer Software) and 12.211 (Technical Data) of the "FAR" and its successors. If acquired by or on behalf of any agency within the Department of Defense ("DOD"), the U.S. Government acquires this commercial computer software and/or commercial computer software documentation subject to the terms of this Agreement as specified in 48 C.F.R. 227.7202-3 of the DOD FAR Supplement ("DFARS") and its successors. This U.S. Government Rights clause is in lieu of, and supersedes, any other FAR, DFARS, or other clause or provision that addresses U.S. Government rights in the Software. Any confidential or proprietary information received by the U.S. Government in connection with this Agreement is exempt from release under the Freedom of Information Act and is prohibited from release under the Federal Trade Secrets Act, 18 U.S.C. 1905.

CONFIDENTIAL INFORMATION. Each of the parties (“Receiving Party”) understands that the other party (“Disclosing Party”) has disclosed or may disclose information relating to the Disclosing Party’s business, including, without limitation computer programs, software, technical drawings, algorithms, know-how, trade secrets, formulas, processes, ideas, inventions (whether patentable or not), designs, schematics and other technical, business, financial, customer and product information, data and development plans, of any nature and in any form whatsoever, which to the extent previously, presently or subsequently disclosed to the Receiving Party is “Confidential Information” of the Disclosing Party (whether or not such information was or is marked or designated in writing as “confidential,” “proprietary,” or any other similar term or designation). Customer agrees without limitation that Entreda’s prices, quotes, discounts and proposals to Customer are Entreda’s Confidential Information. The Receiving Party agrees: (i) to hold the Disclosing Party’s Confidential Information in confidence and to take reasonable precautions to protect such Confidential Information (including, without limitation, all precautions the Receiving Party employs with respect to its own confidential materials); (ii) not to divulge any such Confidential Information to any third person, except to those of its employees and subcontractors that need to know such Confidential Information for the purpose of performing this Agreement, provided that each such employee and subcontractor is subject to a written agreement that includes binding use and disclosure restrictions that are at least as protective as those set forth herein, and provided that Customer shall in any event remain liable for any breach of these provisions by its employees or subcontractors; (iii) not to make any use whatsoever at any time of such Confidential Information except to perform its obligations under this Agreement; and (iv) not to copy, decrypt, reverse assemble, dissemble, decompile or reverse engineer any such Confidential Information. Without granting any right or license, the Disclosing Party agrees that the foregoing shall not apply with respect to any information after five (5) years following the disclosure thereof or any information that the Receiving Party can document by contemporaneous written evidence: (i) is or becomes (through no improper action or inaction by the Receiving Party) readily available to the public; (ii) was in its possession or known by it without restriction prior to receipt from the Disclosing Party; (iii) was lawfully disclosed to it by a third party that lawfully received such information without restriction on disclosure or use; or (iv) was independently developed without use of any Confidential Information of the Disclosing Party. The Receiving Party may make disclosures required by law or court order provided the Receiving Party uses reasonable efforts to limit disclosure and to obtain confidential treatment or a protective order and provides reasonable advance notice of and allows the

Disclosing Party to participate in the proceeding. To the extent that any of Customer’s Confidential Information includes personally identifiable information, then Customer consents to Entreda’s use of such personally identifiable information in accordance with Entreda’s then-current privacy policy, which may be found at http://www.entreda.com/privacy. Customer acknowledges and agrees that any feedback, suggestions, comments, improvements, modifications and other information (including any ideas, concepts, “know-how” or techniques contained therein) that Customer provides to Entreda about its Products or Services or their performance (collectively, the “Feedback”) shall not be deemed as Customer’s Confidential Information and may be used, disclosed, disseminated or published by us for any purpose, including developing, manufacturing and marketing products and services incorporating Feedback, without obligation of any kind to Customer, Customer waives any rights whatsoever in or to all Feedback.

 

TERMINATION UPON BREACH OF CONTRACT. Each party may terminate this Agreement if the other party breaches any material term of this Agreement and fails to cure such breach within thirty (30) days after receipt of written notice thereof. Upon termination of this Agreement: (i) Customer will promptly return to Entreda all Confidential Information; and (ii) Customer will, within thirty (30) days after receipt of Entreda’s invoice, pay all accrued and unpaid fees and expenses. The rights and obligations of the parties contained in Sections 6 through 15 (inclusive) will survive the termination of this Agreement.

EXPORT COMPLIANCE. Customer will comply with all export laws and regulations of the Applicable Law (as defined in Section 13, below), including without limitation of the U.S. Department of Commerce, the U.S. Department of Treasury Office of Foreign Assets Control, or other U.S. or foreign agency or authority, and Customer will not export, or allow the export or re-export of any Product in violation of any such laws or regulations. By installing or using any Product, Customer agrees to the foregoing and represents and warrants that Customer is not located in, under the control of, or a national or resident of any restricted country.

 

RESELLER ORDERS. If Customer orders from an Entreda authorized reseller or distributor, Customer’s order is governed by Customer’s agreement with the reseller, and this Agreement does not apply to Customer except: (i) Customer’s use of Software is subject to the EULA; (ii) Entreda’s obligations and liabilities are subject to the terms, conditions and limitations in Sections 9 through 15 (inclusive); and (iii) if the Entreda Limited Warranties and designated Entreda Services are described in the attachments referenced in Section 6 and Section 7, and Customer and the reseller or Distributor agree to comply with (and which shall be a condition to Entreda’s obligations) Entreda’s terms and conditions including without limitation receipt by Entreda of payment in full.

 

CHOICE OF LAW/VENUE. This Agreement is governed by and construed in accordance with the laws of the State of California, United States, as if performed wholly within such state and without giving effect to the principals of conflict of law (“Applicable Law”). The U.N. Convention on Contracts for the International Sale of Goods and the Uniform Computer Information Transactions Act shall not apply. In the event of a dispute concerning this Agreement, Customer consents to the sole and exclusive personal jurisdiction of the courts of competency in the location where Entreda’s principal executive offices are located.

 

GENERAL. Customer may not assign or transfer any rights or delegate any duties under this Agreement and any attempt to do so is void and without effect. These Purchase Terms and Conditions and its attachments (and any terms and documents incorporated herein by reference) and any associated EULA or other agreement entered into with Entreda in connection with the Products or Services represents the parties’ entire agreement relating to the subject matter hereof and supersedes all prior or contemporaneous oral or written communications, proposals, representations and warranties and prevails over any conflicting or additional terms of any communication between the parties relating to its subject matter. No modification to this Agreement will be binding unless in writing and signed by an authorized representative of each party. Any express waiver or failure to exercise promptly any right under this Agreement will not create a continuing waiver or any expectation of non-enforcement. If any provision of this Agreement is held to be unenforceable for any reason, such provision shall be reformed only to the extent necessary to make it enforceable. To the extent that any and all provisions of this Agreement (including its attachments) shall exclude or limit any statutory liability which, according to mandatory provisions of Applicable Law cannot be contractually excluded or limited by mutual agreement of the parties, then such provision shall be given only such effect, if any, as is permitted by the Applicable Law. Neither party will be responsible for any failure or delay in its performance under this Agreement, excluding Customer’s payment obligations, due to causes beyond its reasonable control, including, but not limited to, any force majeure event, such as strikes, riots, insurrection, terrorism, fires, natural disasters, earthquakes, acts of God, war, governmental action, or any other cause which is beyond the reasonable control of such party.

SUPPORT SERVICES TERMS AND CONDITIONS 

By executing an order form that references the EULA or these Support Services Terms and Conditions, you agree to all of the terms set forth in these Support Services Terms and Conditions. If you are entering into the EULA or other agreement with Entreda on behalf of a company or other legal entity, you represent that you have the authority to bind such entity and its affiliates to these Support Services Terms and Conditions, in which case the terms “you”, “your” or “Customer” shall refer to such entity and its affiliates. If you do not have such authority, or if you do not agree with the terms and conditions set forth herein or in the EULA or other agreement you have entered into with Entreda, you must not accept these Support Services Terms and Conditions and may not use any Product or Service.

 

SUPPORT. Entreda will use commercially reasonable efforts to provide support services as described in these Support Services Terms and Conditions for the term Customer has purchased, which commences upon Software delivery (the “Support Services Term”) or product shipment.. Entreda may suspend performance of Support Services if Entreda does not receive payment when due or if Customer is in breach of any contractual obligation to Entreda. Entreda’s Support Services contact information is available at unify.entreda.com. Support Services are available primarily through Entreda’s web support portal (generally accessible on a 24x7x365 basis excepting periodic maintenance or network unavailability) and secondarily through email (support@entreda.com) and telephone support (1-650-308-4269). Entreda’s Support Services obligation is limited to using commercially reasonable efforts to remedy a reported failure of the Products to substantially operate in accordance with Entreda’s official specifications or Documentation (i.e., the then-current, generally available, written user manuals and online help and guides for Software provided by Entreda). Support Services may include Hardware or Software installation, training, consulting services or preventative maintenance. These Support Services Terms and Conditions do not apply to any support provided or performed by an Entreda-authorized reseller, distributor or third party except that Entreda shall provide tier-two support solely as a supplement to the tier-one support which shall be provided by such authorized reseller, distributor or other third party, in each case, solely to the extent the tier-one support does not resolve the support issue. In some cases, Entreda provides tier-one and tier-two support and in other cases, Entreda provides only tier-two support. In the event only tier-two support is provided, Customer acknowledges and agrees that the tier-one relationship is solely between Customer and Entreda’s authorized reseller, distributor or other third party. The level of support offered by Entreda to Customer will be set forth in the applicable Order. To the extent the Order does not specify the level of support, Entreda shall offer only tier-two support. Entreda makes no representations and warranties to Customer whatsoever regarding any support or services that may be provided by an Entreda-authorized reseller, Distributor or third party. Entreda’s representations and warranties regarding the support or services it provides to Customer are expressly limited to those stated herein or in the EULA and are subject to the limitations and qualifications set forth therein.

A. SOFTWARE SUBSCRIPTION. Support Services includes a subscription to all new releases of the Customer licensed Software that are issued by Entreda during Customer’s term of Support Services which incorporate updates (“Releases”), but does not include enhancements licensed by Entreda for a separate fee at Entreda’s discretion. Any Software which is provided as an update or replacement may only be installed as an update to the original Software delivered. Any update to the Software or replacement Software will be subject to the terms and conditions set forth in the Purchase Terms and Conditions of which these Support Services Terms and Conditions are an integral part, and the EULA. Customer can download releases from unify.entreda.com. Entreda makes no commitment that it will deliver any future release(s) and/or that the Hardware Customer has received will meet the hardware requirements for and operate with each Release available after the date of Customer’s receipt of the Hardware.

 

B. HARDWARE SUPPORT. If Entreda determines that replacement parts are required for Support Services, then Entreda will use commercially reasonable efforts to deliver them to Customer, at no charge.

 

C. SOFTWARE SUPPORT. Entreda classifies Software problem severity as either: S1: Critical—Severe problem preventing customer or workgroup from performing critical business functions. S2: High—Customer or workgroup able to perform job function, but performance of job function degraded or severely limited. S3: Medium— Customer or workgroup performance or job function is largely unaffected. S4: Request: Minimal system impact; includes feature requests and other non-critical questions. In the event Entreda is providing Customer both tier- one and tier-two support (as specified in the applicable Order), Entreda will use commercially reasonable efforts to acknowledge Customer’s problem report and commence Support Services efforts within the initial technical response objective, based upon Severity Level, after Entreda has received and classified Customer’s report: S1: 1 hour; S2: 3 hours; S3: 4 hours; S4: 10 hours. For Software problems for Customer’s entitled to both tier-one and tier-two support, Entreda will provide on-line technical support at Entreda’s discretion. If Entreda determines that Customer’s problem was not caused by Entreda Products and if Support Services were requested by Customer, then Entreda may charge Customer Entreda’s then-current daily time and materials rate for the on-site Support Services. Notwithstanding anything herein or in any other document or agreement to the contrary, if the Software has been provided by an authorized reseller, distributor or other third party, such authorized reseller, distributor or other third party shall provide tier one support and Entreda shall only provide only limited tier-two support. Only Customer’s with an Order that expressly specifies that Entreda is providing both tier-one and tier-two support shall be entitled to the support described herein.

EXCLUSIONS. Entreda will have no Support Services obligations for any conditions attributable to: (i) negligence, misuse or abuse of the Product or accident or neglect by Customer or any third party; (ii) installation, operation or use of the Product other than in accordance with Entreda’s official specifications and the applicable Documentation; (iii)modifications, alterations or repairs to the Product made by a party other than Entreda or a party expressly authorized or designated by Entreda; (iv) use of a Product in an environment, in conditions, in a manner or for a purpose for which Product was not intended or designed or failure to maintain in accordance with Entreda’s instructions, specifications or the applicable Documentation; (v) use of the Product in combination with any non-Entreda apparatus, data or programs outside Entreda’s typical, recommended or reasonably anticipated use of the Products within its official Product specifications.; or (vi) causes beyond Entreda’s control.

 

CONDITIONS TO ENTREDA’S SUPPORT OBLIGATIONS. Customer needs to do the following as a condition to Entreda’s provision of Support Services: (i) pay all applicable fees; (ii) designate from time to time a reasonable number of authorized persons trained by Entreda who can contact Entreda for Support Services, and these are Customer’s only personnel entitled to contact Entreda for Support Services; (iii) register all Products with Entreda, and provide notice to Entreda of all sites and site moves; (iv) provide Entreda access to Customer’s site and/or network and personnel as Entreda reasonably requests to assist Entreda in performing the Support Services; (v) enable Entreda’s automated alert system on the Products which sends regular system status reports and alerts to Entreda when certain critical system events occur in the Product at Customer’s site; (vi) use the Products in a supported configuration and maintain the Software within the then-current prior two Releases; (vii) install recommended replacement parts in the Products as reasonably directed by Entreda; (viii) refrain from arbitrarily changing Product settings or configurations reasonably recommended by Entreda; (ix) ensure that proper licenses have been obtained for all Software and adhere to all licensing terms and conditions; and (x) make available to Entreda any of Customer’s systems data, information and other materials reasonably required by Entreda for the Support Services (“Customer Materials”), the accuracy of which is solely Customer’s responsibility. Subject to Customer’s rights in the Customer Materials, Entreda will exclusively own all rights, title and interest in and to any software programs or tools, utilities, technology, processes, inventions, devices, methodologies, specifications, documentation, techniques and materials of any kind used or developed by Entreda or Entreda’s personnel in connection with performing Support Services (“Entreda Materials”), including all worldwide patent rights (including patent applications and disclosures), copyright rights, moral rights, trade secret rights, know-how and any other intellectual property rights therein. Customer will have no rights in the Entreda Materials except as expressly agreed to in writing by Entreda and Customer. Nothing in these Purchase Terms and Conditions will be deemed to restrict or limit Entreda’s right to perform similar services for any other party or to assign any employees or subcontractors to perform similar services for any other party. Customer agrees that it may be necessary for Entreda to collect, process and use Customer’s data in order to perform Entreda obligations to provide Support Services. Customer consents to these activities and to the transfer of the data to Entreda affiliated companies and service providers located throughout the world who are subject to confidentiality agreements with Entreda. Entreda will not be responsible for Customer’s or any third party’s software, firmware, information, or memory data contained in, stored on, or integrated with any Products returned to Entreda for repair.

 

CONFIDENTIAL INFORMATION. Each of the parties (“Receiving Party”) understands that the other party (“Disclosing Party”) has disclosed or may disclose information relating to the Disclosing Party’s business, including, without limitation computer programs, software, technical drawings, algorithms, know-how, trade secrets, formulas, processes, ideas, inventions (whether patentable or not), designs, schematics and other technical, business, financial, customer and product information, data and development plans, of any nature and in any form whatsoever, which to the extent previously, presently or subsequently disclosed to the Receiving Party is “Confidential Information” of the Disclosing Party (whether or not such information was or is marked or designated in writing as “confidential,” “proprietary,” or any other similar term or designation). Customer agrees without limitation that Entreda’s prices, quotes, discounts and proposals to Customer are Entreda’s Confidential Information. The Receiving Party agrees: (i) to hold the Disclosing Party’s Confidential Information in confidence and to take reasonable precautions to protect such Confidential Information (including, without limitation, all precautions the Receiving Party employs with respect to its own confidential materials); (ii) not to divulge any such Confidential Information to any third person, except to those of its employees and subcontractors that need to know such Confidential Information for the purpose of performing this Agreement, provided that each such employee and subcontractor is subject to a written agreement that includes binding use and disclosure restrictions that are at least as protective as those set forth herein, and provided that Customer shall in any event remain liable for any breach of these provisions by its employees or subcontractors; (iii) not to make any use whatsoever at any time of such Confidential Information except to perform its obligations under this Agreement; and (iv) not to copy, decrypt, reverse assemble, dissemble, decompile or reverse engineer any such Confidential Information. Without granting any right or license, the Disclosing Party agrees that the foregoing shall not apply with respect to any information after five (5) years following the disclosure thereof or any information that the Receiving Party can document by contemporaneous written evidence: (i) is or becomes (through no improper action or inaction by the Receiving Party) readily available to the public; (ii) was in its possession or known by it without restriction prior to receipt from the Disclosing Party; (iii) was lawfully disclosed to it by a third party that lawfully received such information without restriction on disclosure or use; or (iv) was independently developed without use of any Confidential Information of the Disclosing Party. The Receiving Party may make disclosures required by law or court order provided the Receiving Party uses reasonable efforts to limit disclosure and to obtain confidential treatment or a protective order and provides reasonable advance notice of and allows the Disclosing Party to participate in the proceeding. To the extent that any of Customer’s Confidential Information includes personally identifiable information, then Customer consents to Entreda’s use of such personally identifiable information in accordance with Entreda’s then-current privacy policy, which may be found at http://www.entreda.com/legal. Customer acknowledges and agrees that any feedback, suggestions, comments, improvements, modifications and other information (including any ideas, concepts, “know-how” or techniques contained therein) that Customer provides to Entreda about its Products or Services or their performance (collectively, the “Feedback”) shall not be deemed as Customer’s Confidential Information and may be used, disclosed, disseminated or published by us for any purpose, including developing, manufacturing and marketing products and services incorporating Feedback, without obligation of any kind to Customer, Customer waives any rights whatsoever in or to all Feedback.

REINSTATEMENT OF SUPPORT. If Customer has not continuously complied with the terms and conditions of Support Services, Customer may request that Entreda perform an inspection of the Products and any professional services Entreda reasonably determines are required for the Products to be certified as substantially operating within their official Product specifications. After Entreda’s certification, Customer may re-instate Support Services if Entreda then offers it in general commercial availability and upon payment to Entreda of: (i) time and materials services payment for certification described above; (ii) the pro rata Support Services fees that would have been payable at Entreda’s then applicable annual rate of Support Services for the period the Products were not covered by Support Services; and (iii) the Support Services fees for the annual period commencing upon the re-instatement of Support Services.

 

NON-TRANSFERABILITY. During the Support Services Term, if Customer sells or otherwise transfers any Hardware to any third party, Customer will either de-install and remove the Software from such Hardware prior to sale or transfer, or provide Entreda with reasonable written notice and an opportunity to remove or disable such Software prior to any sale or transfer of the Hardware. Subject to availability of resources, Entreda will provide de-installation services to Customer at Entreda’s then current time and materials rates provided Customer has complied with these Purchase Terms and Conditions and entered into a separate agreement with Entreda to receive such de-installation services. Subject to availability of resources, Entreda will provide re-installation and re-certification services to a third party purchaser or transferee of Entreda Hardware, in each case at Entreda’s then current time and materials rates provided the purchaser or transferee has: (i) met Entreda credit requirements; (ii) obtained a Software license from Entreda; (iii) entered into a separate agreement with Entreda to receive re-installation and re-certification services; (iv) obtained re-certification of the Products as installed; and (v) paid any Support Services reinstatement fees. Customer’s remaining outstanding term of Support Services is not transferable. Notwithstanding the foregoing, Entreda reserves the right to refuse to grant a Software license or provide Services to a proposed purchaser or transferee as determined in Entreda’s sole discretion.

 

RELATIONSHIP OF THE PARTIES. Entreda is performing Support Services as an independent contractor, and not as an employee, agent, joint venturer or partner of Customer, and neither of the parties has the authority to bind the other by contract or otherwise. Entreda acknowledges and agrees that Entreda personnel are not eligible for or entitled to receive any compensation, benefits or other incidents of employment that Customer makes available to its employees. Entreda is solely responsible for all taxes, expenses, withholdings, and other similar statutory obligations arising out of the relationship between Entreda and Entreda personnel and the performance of Support Services by Entreda personnel.

 

ENGLISH. The parties agree and acknowledge that all Support Services will only be provided in the English language and only within the United States and in Canada.

 

LIMITED WARRANTIES; WARRANTY DISCLAIMER; AND LIMITATION OF LIABILITY. ENTREDA’S LIMITED WARRANTIES, WHICH INCLUDE ENTREDA’S WARRANTY DISCLAIMER AND ENTREDA’S LIMITATION OF LIABILITY, IF NOT ATTACHED HERETO, MAY BE FOUND AT HTTP://WWW.ENTREDA.COM/LEGAL. THE LIMITED WARRANTIES ARE HEREBY INCORPORATED INTO AND MADE AN INTEGRAL PART OF THESE PURCHASE TERMS AND CONDITIONS

LIMITED WARRANTIES. 

By clicking the “I Agree” button indicating your acceptance of the EULA or any other agreement with Entreda or by executing an order form that references the EULA or these Limited Warranties, you agree to all of the terms set forth in these Limited Warranties. If you are entering into the EULA or other agreement with Entreda on behalf of a company or other legal entity, you represent that you have the authority to bind such entity and its affiliates to these Limited Warranties, in which case the terms “you”, “your” or “Customer” shall refer to such entity and its affiliates. If you do not have such authority, or if you do not agree with the terms and conditions set forth herein or in the EULA or other agreement you have entered into with Entreda, you must not accept these Limited Warranties and may not use any Product or Service.

LIMITED HARDWARE WARRANTY. Entreda, Inc. (“Entreda”) warrants solely to Customer that any Hardware provided to Customer will be substantially free from material defects in material and workmanship during the term of the applicable Order. Entreda’s entire liability and obligation, and Customer’s sole and exclusive remedy, under the limited warranties described in this Section 1 shall be for Entreda, at Entreda’s option to use commercially reasonable efforts to repair the defective Hardware within a reasonable period of time. All Hardware that is returned or replaced becomes Entreda’s property. Entreda will not be responsible for Customer’s or any third party’s software, firmware, information, or memory data contained in, stored on, or integrated with any Hardware returned to Entreda for repair, whether under warranty or not.

LIMITED SOFTWARE WARRANTY. Entreda warrants solely to the Customer that Software and any Entreda Service will substantially conform to the applicable Documentation for such Software and that any physical media provided by Entreda will be free from manufacturing defects in materials and workmanship until the expiration of the warranty period. Unless otherwise stated on the Quote, the warranty period for Software shall (i) be ninety (90) days; and (ii) commence upon delivery of the media or the date Customer is notified of electronic availability, as applicable. Entreda does not warrant that the operation of Software or Entreda Service will be uninterrupted or error free, that all defects can be corrected, or that Software or the Entreda Service will meet Customer’s requirements. Support Services from Entreda for Software are available for separate purchase. The warranty for Software extends solely to the Customer and is not transferable.

(i) Entreda’s entire liability and obligation, and Customer’s sole and exclusive remedy, under the limited warranties described in this Section 2 shall be for Entreda, at Entreda’s option, to remedy the non-compliance or to replace the affected Software or Entreda Service. If Entreda is unable to effect such within a reasonable time, then Entreda shall refund the amount actually received by Entreda from Customer for Software or Entreda Service concerned. All replaced Software contained on physical media supplied by Entreda shall be returned to and become the property of Entreda. Entreda shall have no liability hereunder after expiration of the applicable warranty period. The foregoing shall not void any supplementary remedies made available to Customer by a Distributor, with respect to which Entreda shall have no liability or obligation.

(ii) Entreda has no obligation whatsoever for Software installed or used beyond the licensed use, or whose original identification marks have been altered or removed. Removal or disablement of remote support, reporting or monitoring capabilities during the warranty period requires reasonable notice to Entreda. Such removal or disablement, or improper use or failure to use applicable Support Tools shall be subject to a surcharge in accordance with Entreda’s then current standard rates.

SERVICES. Entreda will use commercially reasonable efforts to provide Services in a workmanlike manner. Customer must notify Entreda of any failure to so perform within ten (10) days after the date on which such failure first occurs. Entreda’s entire liability and obligation, and Customer’s sole and exclusive remedy, under the limited warranties described in this Section 3 will be for Entreda, at Entreda option: (i) to use reasonable efforts to re-perform the deficient Services within a commercially reasonable period of time; or (ii) if, after commercially reasonable efforts Entreda is not able to correct the deficiencies, refund the portion of any Services fee that corresponds to the failure to perform.

 

EXCLUSIONS. Entreda will have no obligation under these Limited Warranties to the extent that any problem with a Product or Software results from or is otherwise attributable to: (i) negligence, misuse or abuse of the Product or Software or accident or neglect by Customer or any third party; (ii) installation, operation or use of the Product or Software other than in accordance with Entreda’s official specifications and the applicable Documentation; (iii) modifications, alterations or repairs to the Product or Software made by a party other than Entreda or a party expressly authorized by Entreda in writing; (iv) use of a Product or Software in an environment, in conditions, in a manner or for a purpose for which Product or Software was not intended or designed or failure to maintain in accordance with Entreda’s instructions, specifications or the applicable Documentation; (v) use of the Product or Software in combination with any non-Entreda apparatus, data or programs outside Entreda’s typical, recommended or 

reasonably anticipated use of the Products or Software within its official Product or Software specifications.; or (vi) causes beyond Entreda’s control. Entreda will have no obligation under these Limited Warranties with respect to any support or services that may be purchased from and performed by a Entreda authorized reseller, distributor or third party.

 

WARRANTY DISCLAIMER. EXCEPT FOR THESE ENTREDA LIMITED WARRANTIES, AND TO THE MAXIMUM EXTENT PERMITTED BY LAW, ENTREDA (INCLUDING ITS SUPPLIERS AND DISTRIBUTORS) MAKES NO OTHER EXPRESS OR IMPLIED WARRANTIES, WRITTEN OR ORAL. INSOFAR AS PERMITTED UNDER APPLICABLE LAW, ALL OTHER WARRANTIES ARE SPECIFICALLY EXCLUDED AND DISCLAIMED BY ENTREDA, INCLUDING WARRANTIES ARISING BY STATUTE, COURSE OF DEALING OR USAGE OF TRADE. EXCEPT AS SPECIFIED IN THESE LIMITED WARRANTIES, ALL PRODUCTS, SOFTWARE AND SERVICES ARE PROVIDED “AS IS”. ALL EXPRESS OR IMPLIED CONDITIONS, REPRESENTATIONS, AND WARRANTIES, INCLUDING, WITHOUT LIMITATION, ANY IMPLIED WARRANTY OR CONDITION OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NONINFRINGEMENT, SATISFACTORY QUALITY, PERFORMANCE, AND RELIABILITY, OR ARISING FROM A COURSE OF DEALING, USAGE OR TRADE PRACTICE, ARE HEREBY EXCLUDED TO THE EXTENT ALLOWED BY APPLICABLE LAW. NO WARRANTY IS MADE REGARDING THE RESULTS OF THE USE OF ANY PRODUCT OR SERVICES OR THAT THE PRODUCT FUNCTIONALITY OR SERVICES WILL MEET CUSTOMER’S REQUIREMENTS OR EXPECTATIONS. NO DISTRIBUTOR OR ENTREDA EMPLOYEE, AGENT OR REPRESENTATIVE IS AUTHORIZED TO MAKE ANY MODIFICATIONS, EXTENSIONS OR ADDITIONS TO THE WARRANTY SET FORTH HEREIN ON ENTREDA’S BEHALF. CERTAIN THIRD PARTY HARDWARE OR SOFTWARE MAY BE PROVIDED TO CUSTOMER ALONG WITH THE PRODUCTS AND SERVICES AT THE REQUEST OF CUSTOMER. THIS THIRD PARTY SOFTWARE AND HARDWARE IS PROVIDED “AS IS”, IS SUBJECT TO THE TERMS OF THE THIRD PARTY LICENSE, AND MAY ONLY BE USED WITH THE PRODUCTS AND SERVICES. SOME STATES DO NOT ALLOW LIMITATIONS ON HOW LONG AN IMPLIED WARRANTY LASTS SO THE FOREGOING LIMITATIONS MAY NOT APPLY TO CUSTOMER. ENTREDA DOES NOT WARRANT THAT THE OPERATION OF THE PRODUCTS WILL BE UNINTERRUPTED OR ERROR FREE. NOTWITHSTANDING ANYTHING HEREIN OR IN ANY OTHER DOCUMENT OR AGREEMENT ENTERED INTO IN CONNECTION WITH ANY PRODUCT OR SERVICE, ENTREDA MAKES NO WARRANTY WHATSOEVER WITH RESPECT TO ITS IT COMPLIANCE MONITORING SOFTWARE APP, ITS ALERTS AND MONITORING SERVICES, OR ANY OTHER SIMILAR PRODUCTS OR SERVICES, EACH OF WHICH IS PROVIDED ON A STRICTLY “AS-IS” BASIS. NOTWITHSTANDING THE GENERALITY OF THE FOREGOING, ENTREDA MAKES NO REPRESENTATION REGARDING ANY FORMS, TEMPLATES OR OTHER DOCUMENTS PROVIDED AS PART OF THE SOFTWARE OR THE ENTREDA SERVICES, WHICH ARE IN ALL CASES PROVIDED ON A STRICTLY “AS IS” BASIS. FOR THE AVOIDANCE OF DOUBT, ENTREDA SHALL NOT BE DEEMED TO HAVE PROVIDED TO CUSTOMER ANY LEGAL, TAX, FINANCIAL OR ANY OTHER ADVICE WHATSOEVER. CUSTOMER’S ARE STRONGLY ENCOURAGED TO SEEK INDEPENDENT LEGAL COUNSEL PRIOR TO UTILIZING ANY FORM, TEMPLATE OR OTHER DOCUMENT THAT MAY BE PROVIDED BY ENTRADA, AS PART OF THE SOFTWARE OR THE ENTREDA SERVICES OR OTHERWISE. IN ADDITION, NOTWITHSTANDING THE GENERALITY OF THE FOREGOING, ENTREDA MAKES NO REPRESENTATION OR WARRANTY REGARDING ITS IT COMPLIANCE MONITORING SOFTWARE APP, IN PARTICULAR AS TO CRITERIA, SOURCE, OR TIME-INTERVAL FOR IT COMPLIANCE MONITORING CHECKS, OR ITS ALERTS AND MONITORING SERVICES PROVIDED WITH ANY OTHER ENTREDA SERVICE.

6. LIMITATION OF LIABILITY. WHETHER UNDER ANY WARRANTY, CONTRACT, TORT, NEGLIGENCE OR OTHER LEGAL OR EQUITABLE THEORY, THE FOLLOWING WILL APPLY TO ENTREDA AND ITS AFFILIATES AND ALL PRODUCTS AND SERVICES OF ENTREDA IN ALL CIRCUMSTANCES (EXCEPT WITH RESPECT TO BODILY INJURY OR DEATH OF A PERSON): (A) ENTREDA WILL NOT BE RESPONSIBLE OR LIABLE FOR ANY INDIRECT, INCIDENTAL, SPECIAL, PUNITIVE, EXEMPLARY, OR CONSEQUENTIAL DAMAGES INCLUDING, BUT NOT LIMITED TO, LOSS OF REVENUES, LOSS OF PROFITS, LOSS OR INACCURACY OF DATA FAILURE TO LOG INTO A DEVICE DUE TO LOST OR MISPLACED PASSWORDS, ANY LOSS OR COSTS ASSOCIATED WITH ANY SECURITY BREACH, OR ANY COSTS ASSOCIATED WITH AN AUDIT OR CUSTOMER’S FAILURE TO SATISFACTORILY COMPLETE AN AUDIT, OR ANY FEES, COSTS, EXPENSES OR PENALTIES IMPOSED BY A GOVERNMENTAL OR QUASI-GOVERNMENTAL ENTITY, IN EACH CASE, EVEN IF ADVISED FO THE POSSIBILITY THEREOF; AND (B) IN ALL CASES, ENTREDA’S CUMULATIVE LIABILITY FOR ANY AND ALL DAMAGES WILL BE LIMITED TO THE AMOUNTS SET FORTH IN THESE LIMITED WARRANTIES AND IN NO EVENT OR CIRCUMSTANCE WILL EXCEED THE AMOUNTS ACTUALLY RECEIVED BY ENTREDA FROM CUSTOMER FOR THE PARTICULAR SOFTWARE, PRODUCTS AND/OR SERVICES WITH RESPECT TO WHICH A CLAIM IS MADE. ENTREDA HAS AGREED WITH CUSTOMER THAT THESE LIMITATIONS WILL SURVIVE AND APPLY EVEN IF ANY LIMITED REMEDY SPECIFIED HEREIN IS FOUND TO HAVE FAILED ITS ESSENTIAL PURPOSE.

 

LIMITATION PERIOD. UNLESS OTHERWISE REQUIRED BY APPLICABLE LAW, THE LIMITATION PERIOD FOR CLAIMS FOR DAMAGES SHALL BE TWELVE (12) MONTHS AFTER THE CAUSE OF ACTION ACCRUES, UNLESS STATUTORY LAW PROVIDES FOR A SHORTER LIMITATION PERIOD, IN WHICH CASE THE LIMITATION PERIOD SHALL BE SUCH SHORTER PERIOD.

 

SUPPLIERS. THE LIMITATIONS HERIN SHALL ALSO APPLY IN FAVOR OF ENTREDA'S SUPPLIERS.

HAZARDOUS USE RESTRICTION. THE PRODCUTS ARE NOT DESIGNED FOR USE IN HAZARDOUS ENVIRONMENTS REQUIRING FAIL- SAFE PERFORMANCE, INCLUDING OPERATION OF NUCLEAR FACILITIES, AIRCRAFT NAVIGATION OR COMMUNICATION SYSTEMS, AIR TRAFFIC CONTROL, AND LIFE SUPPORT OR WEAPONS SYSTEMS, OR ANY OTHER SYSTEM WHOSE FAILURE COULD LEAD TO INJURY, DEATH, ENVIRONMENTAL DAMAGE, OR MASS DESTRUCTION.

 

CAPITALIZED TERMS. Capitalized terms not defined herein shall have the meaning set forth in the Purchase Terms and Conditions, the Support Services Terms and Conditions, or the End User License Agreement, in each case to the extent applicable, each of which these Limited Warranties are an integral part and which may be found at http://www.entreda.com/legal.

END USER LICENSE AGREEMENT 

IMPORTANT: PLEASE READ BEFORE INSTALLATION OR USE OF THE ENTREDA, INC. PRODUCT YOU HAVE RECEIVED OR FOR WHICH THE SOFTWARE IS SUPPLIED (THE “HARDWARE” AND “SOFTWARE,” RESPECTIVELY, AND COLLECTIVELY, THE “PRODUCT”). BY INSTALLING OR IN ANY WAY USING THE SOFTWARE OR THE PRODUCTS AND SERVICES MADE AVAILABLE BY ENTREDA ONLINE, INCLUDING THE SERVICE BY WHICH THE SOFTWARE HOSTED ON SERVERS CONTROLLED BY ENTREDA, AND AS APPLICABLE, ITS DESIGNEES, ARE MADE AVAILABLE BY ENTREDA THROUGH ITS WEBSITE FOR USE BY ENTREDA’S CUSTOMERS (COLLECTIVELY, THE “ENTREDA SERVICE”), YOU OR THE ENTITY OR COMPANY THAT YOU REPRESENT (“CUSTOMER”) ARE UNCONDITIONALLY CONSENTING TO BE BOUND BY AND ARE MADE A PARTY TO THIS END USER LICENSE AGREEMENT (THIS “EULA” OR THIS “AGREEMENT”) WITH ENTREDA. IF YOU ARE ENTERING INTO THIS AGREEMENT ON BEHALF OF A COMPANY OR OTHER LEGAL ENTITY, YOU REPRESENT THAT YOU HAVE THE AUTHORITY TO BIND SUCH ENTITY AND ITS AFFILIATES TO THIS AGREEMENT, IN WHICH CASE THE TERMS “YOU”, “YOUR” OR “CUSTOMER” SHALL REFER TO SUCH ENTITY AND ITS AFFILIATES.

DELIVERY AND INSTALLATION.

Delivery. Title and risk of loss to the Product, which has been provided to Customer, shall transfer to Customer upon Entreda’s delivery to Customer (“Delivery”). Software may be provided by (i) delivery of the Product or (ii) electronic means (where available from Entreda). If the Product has not been sold (for example - a lease or rental transaction), then risk of loss thereto transfers at delivery, but title does not.

 

Installation and Acceptance. Acceptance that Software operates in substantial conformity to the Documentation (defined below) occurs upon written acceptance by Customer. Such written acceptance by Customer shall be deemed to have occurred should the Customer not send either a written acceptance or written rejection to Entreda within ten (10) of delivery or electronic availability of that Software. Notwithstanding such acceptance, Customer retains all rights and remedies set forth in the Limited Warranties as further described below.

 

Return of Hardware. Any hardware supplied by Entreda shall be returned by Customer to Entreda, at Customer’s sole expense, upon the earlier to occur of (x) notification by Entreda that Customer is in breach of this Agreement, or (y) the expiration or termination of this EULA.

SOFTWARE LICENSE GRANT. Software is license to Customer, not sold. Sucject to Customer's compliance with the terms of this EULA, including payment of the purchase price and/or all fees for the Product and the Software, Entreda hereby grants Customer a limited, personal, non-sub licensable, non-transferable (except as otherwise permitted herein), non-exclusive right and license to (i) access and use the Entreda Service, including the Software made available by Entreda through the Entreda Service in accordance with the online help files and other content generally available by Entreda (“Documentation”) solely for Customer’s internal use. Software delivered as a Service shall be licensed for the term indicated in the Quote from Entreda and shall be subject to payment of the monthly, quarterly or annual subscription fees as indicated in the Quote. Documentation is licensed solely for purposes of supporting Customer’s use of Software as permitted in this Section. To the extent applicable to Software, Customer may be required to follow Entreda’s then current product registration process, if any, to obtain and input an authorization key or license file. Customer expressly acknowledges and agrees that Customer has no right to and will not sell, transfer, or license any Software to any third party. The license granted hereunder is subject to the additional limits and restrictions on use for Customers of Evaluation Software or Loaned Software, as further described herein.

LICENSE RESTRICTIONS. All Software licenses granted herein are for use of object code only. Customer is permitted to copy Software as necessary to install and run it in accordance with the license, and to have appropriate testing and back up versions. Customer may copy Documentation insofar as reasonably necessary in connection with Customer’s authorized internal use of Software. Customer shall not, nor permit anyone else to, directly or indirectly: (i) copy (other than for back-up purposes), modify, or distribute the Software or the Entreda Service; (ii) reverse engineer, disassemble, decompile or otherwise attempt to discover the source code or structure, sequence and organization of the Software of the Entreda Service (except to the extent the foregoing is expressly prohibited by applicable local law); (iii) rent, lease, or use the Software or the Entreda Service for timesharing, service bureau purposes or application service provider purposes, or otherwise use the Software on behalf of any third party (other than affiliates and subsidiaries for which Customer provides support services); (iv) use the Software for comparisons or competitive testing or “benchmarking” (except for Customer’s confidential internal purposes) or publish or disclose the results thereof; (v) make available Software or the Entreda Service in any form to anyone other than Customer’s employees or contractors who agree in writing to be bound by terms at least as protective of the Software and Entreda as those in this EULA; (vi) sublicense, assign, distribute, make available, pledge, lease, rent, share or otherwise transfer Software or the Entreda Service to an unaffiliated third party; (vii) remove or alter any copyright, trademark, or other proprietary notices, legends, symbols, or labels appearing on or in the Software, the Product, or the Entreda Service; or (viii) use the Software, the Product, or the Entreda Service for any purpose other than in accordance with the terms and conditions of this EULA or any related documentation provided to Customer by Entreda from time to time. Customer shall maintain and not remove or obscure any proprietary notices on the Software. As between the parties, title, ownership rights, and intellectual property rights in and to the Software, the Entreda Service and any copies or portions thereof, shall remain in Entreda and its suppliers or licensors. The Software is protected by the copyright laws and treaties. This EULA does not give Customer any rights not expressly granted herein. In the event of any breach of this Section 3, Entreda may immediately terminate this Agreement, terminate any associated Entreda Services, and seek all rights and remedies available to it under this EULA and applicable law.

OWNERSHIP. Entreda (or its licensors) shall retain all ownership of patent, copyright, trademark and other intellectual property rights in the Entreda Service and Software, including without limitation any derivative work of the Software or Entreda Service or portions thereof. Except as otherwise expressly granted in this Agreement, no license, right or interest in any Entreda or Entreda licensor trademark, copyright, trade name or service mark is granted hereunder. There are no implied rights and all other rights not expressly granted herein are reserved. Customer shall retain all copyright, trademark and other intellectual property rights in all text, files, data, output, programs, files, information, or other information or material, including without limitation, event data such as firewall logs, that Customer provides in conjunction with the Entreda Service (collectively, “Customer Data”), provided that Entreda (and if applicable, its employees, consultants and suppliers) may retain and use all Customer Data in the course of the administration, operation, maintenance, monitoring and supporting the Software and the Entreda Service. Entreda may use Customer Data in aggregate form for marketing, improving, modifying and publishing results of, the Software and the Entreda Service. Entreda shall have a royalty-free, worldwide, irrevocable, perpetual license to use and incorporate into the Entreda Service any suggestions, enhancement requests, recommendations or other feedback provided by Customer relating to the operation of the Entreda Service. Entreda may also provide Customer Data in response to valid legal process, such as subpoenas, search warrants and court orders, or to establish or exercise its legal rights or defend against legal claims. Entreda disclaims all responsibility and will not be liable to Customer for any disclosure of such information to any such third party.

SOFTWARE.

Software Releases. Any subsequent version of Software provided by Entreda after initial delivery of Software (but excluding a new item of Software) (“Software Releases”) shall be subject to the license terms applicable to Software. Upon use of a Software Release, Customer shall remove and make no further use of all prior Software Releases, and protect such prior Software Releases from disclosure or use by any third party. Customer is authorized to retain a copy of each Software Release properly obtained by Customer for Customer’s archive purposes and use such as a temporary back-up if the current Software Release becomes inoperable. Customer shall use and deploy Software Releases strictly in accordance with terms of the original license for Software.

Open Source Software. The Software may be distributed with certain independent code that is licensed under the GNU General Public License (GPL), the GNU Library/Lesser General Public License (LGPL), the Apache License Version 2.0 (Apache License) and/or other open-source licenses (Open-Source Code). Customer can obtain a copy of the GPL, the LGPL, and the Apache License at www.gnu.org/licenses/. During the term of the agreement, Entreda will, at Customer’s request, provide to Customer a copy of the source code for code licensed under the GPL or the LGPL, including any modifications made by Entreda. Entreda may charge reasonable shipping and handling charges for such distribution. Please direct requests in writing to: Entreda Inc., 3211 Scott Boulevard, Suite 204, Santa Clara, CA 95054 USA, Attention: CTO.

AUDIT RIGHTS. Entreda (including any of their respective independent auditors and other representatives and advisors) shall have the right to request Customer to provide an attestation of usage. In the event Customer refuses to provide such an attestation, Entreda shall the right audit usage of Software to confirm compliance with the agreed terms. Such audit is subject may only be performed once annually, and is subject to 30 days advance written notice by Entreda, and shall not unreasonably interfere with Customer’s business activities. Customer will provide Entreda with the support required to perform such audit and will, without prejudice to other rights of Entreda, address any non-compliant situations identified by the audit by forthwith procuring additional licenses.

FEES. Customer shall pay the purchase price and/or all fees for the Entreda Service pursuant to the Purchase Terms and Conditions delivered along with this EULA.

SUPPORT.

General. Support for Software is not provided under this EULA. Support, if purchased by Customer, is provided subject to a separate written agreement between the parties. Any Software that may be made available by Entreda pursuant to such support shall become part of the Software and subject to this EULA.

 

Support Tools. Entreda may use Support Tools (defined below) or may make certain Support Tools available to assist Customer in performing various maintenance or support related tasks. Customer shall use Support Tools only in accordance with the terms under which Entreda makes such available. For purposes of this Agreement, “Support Tools” means any hardware, software and other tools and/or utilities used by Entreda to perform diagnostic or remedial activities in connection with Software including any software or other tools made available by Entreda to Customer to enable Customer to perform various self-maintenance activities.

 

Support Services for Software affected by Change in Hardware Status. For Software used on or operated in connection with hardware that ceases to be covered by Entreda’s support services or the Entreda Limited Hardware Warranty, which may be found at http://www.entreda.com/#!legal/c1myf (the Limited Warranties), Entreda reserves the right to send Customer written notice that Entreda has either chosen to discontinue or change the price for support services for such Software (with such price change effective as of the date the applicable Entreda hardware ceases to be so covered). If Entreda sends a discontinuation notice, or if Customer rejects or does not respond to the notice of a proposed price change within thirty (30) days after receipt, Customer will be deemed to have terminated the support services for its convenience.

 

WARRANTY DISCLAIMER. Except as otherwise specified herein, and except as otherwise specified in the Limited Warranty section, Entreda makes no representation or warranty with respect to any Software under this EULA. ENTREDA DOES NOT MAKE, AND HEREBY EXPRESSLY DISCLAIMS ANY WARRANTY OR REPRESENTATION WITH RESPECT TO THE PRODUCTS, THE SOFTWARE, THE DOCUMENTATION, SUPPORT TOOLS, OR THE ENTREDA SERVICES PROVIDED TO CUSTOMER, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, PERFORMANCE, ACCURACY, AND RELIABILITY. SOME JURISDICTIONS DO NOT ALLOW LIMITATIONS ON HOW LONG AN IMPLIED WARRANTY LASTS SO THE FOREGOING LIMITATIONS MAY NOT APPLY TO CUSTOMER. ENTREDA DOES NOT WARRANT THAT THE OPERATION OF THE PRODUCTS WILL BE UNINTERRUPTED OR ERROR FREE. NOTWITHSTANDING THE GENERALITY OF THE FOREGOING, ENTREDA MAKES NO REPRESENTATION REGARDING ANY FORMS, TEMPLATES OR OTHER DOCUMENTS PROVIDED AS PART OF THE SOFTWARE OR THE ENTREDA SERVICES, WHICH ARE IN ALL CASES PROVIDED ON A STRICTLY “AS IS” BASIS. FOR THE AVOIDANCE OF DOUBT, ENTREDA SHALL NOT BE DEEMED TO HAVE PROVIDED TO CUSTOMER ANY LEGAL, TAX, FINANCIAL OR ANY OTHER ADVICE WHATSOEVER. CUSTOMER’S ARE STRONGLY ENCOURAGED TO SEEK INDEPENDENT LEGAL COUNSEL PRIOR TO UTILIZING ANY FORM, TEMPLATE OR OTHER DOCUMENT THAT MAY BE PROVIDED BY ENTRADA, AS PART OF THE SOFTWARE OR THE ENTREDA SERVICES OR OTHERWISE.

 

LIMITATION OF LIABILITY. WHETHER UNDER ANY WARRANTY, CONTRACT, TORT, NEGLIGENCE OR OTHER LEGAL OR EQUITABLE THEORY: (A) NEITHER PARTY SHALL BE RESPONSIBLE OR LIABLE FOR ANY INDIRECT, INCIDENTAL, SPECIAL, PUNITIVE OR CONSEQUENTIAL DAMAGES INCLUDING, BUT NOT LIMITED TO, LOSS OF REVENUES, LOSS OF PROFITS, LOSS OR INACCURACY OF DATA, FAILURE TO LOG INTO A DEVICE DUE TO LOST OR MISPLACED PASSWORDS; AND (B) IN ALL CASES ENTREDA’S CUMULATIVE LIABILITY FOR ANY AND ALL DAMAGES IS LIMITED TO AMOUNT PAID TO ENTREDA FROM CUSTOMER FOR THE PARTICULAR PRODUCTS AND/OR SERVICES WITH RESPECT TO WHICH A CLAIM IS MADE. THE PARTIES HAVE AGREED THAT THESE LIMITATIONS WILL SURVIVE AND APPLY EVEN IF ANY LIMITED REMEDY SPECIFIED IN THIS AGREEMENT IS FOUND TO HAVE FAILED OF ITS ESSENTIAL PURPOSE. SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THE ABOVE LIMITATION AND EXCLUSION MAY NOT APPLY TO CUSTOMER.

 

TERM AND TERMINATION. This EULA shall continue until terminated as set forth herein. Entreda may terminate this EULA if Customer violates any material provision of this EULA or any other provision of any agreement with Entreda. Any termination of this EULA shall also terminate the licenses granted hereunder to the Software and the Entreda Service. Upon termination of this EULA 

for any reason, Customer shall destroy and remove from all computers, hard drives, networks, and other storage media all copies of the Software, and shall so certify to Entreda that such actions have occurred. Section 2 and Sections 6 through 12 (inclusive), and all accrued rights to payment, shall survive termination of this EULA.

 

U.S. GOVERNMENT RIGHTS. The Software is "commercial computer software" as defined in the U.S. Federal Acquisition Regulations (FAR) at 2.101. If acquired by or on behalf of a civilian agency, the U.S. Government acquires this commercial computer software and/or commercial computer software documentation and other technical data subject to the terms of the EULA as specified in 48 C.F.R. 12.212 (Computer Software) and 12.211 (Technical Data) of the "FAR" and its successors. If acquired by or on behalf of any agency within the Department of Defense ("DOD"), the U.S. Government acquires this commercial computer software and/or commercial computer software documentation subject to the terms of the EULA as specified in 48 C.F.R. 227.7202-3 of the DOD FAR Supplement ("DFARS") and its successors. This U.S. Government Rights clause is in lieu of, and supersedes, any other FAR, DFARS, or other clause or provision that addresses Government rights in the Software. Any confidential or proprietary information received by the Government in connection with the EULA is exempt from release under the Freedom of Information Act and is prohibited from release under the Federal Trade Secrets Act, 18 U.S.C. 1905.

 

EXPORT COMPLIANCE. Customer shall comply with all export laws and regulations of the Applicable Law (as defined in Section 14, below) and of the U.S. Department of Commerce, the U.S. States Department of Treasury Office of Foreign Assets Control, or other U.S. or foreign agency or authority, and Customer shall not export, or allow the export or re-export of any Product in violation of any such laws or regulations. By installing or using the Software, Customer agrees to the foregoing, and represents and warrants that Customer is not located in, under the control of, or a national or resident of any restricted country.

 

CHOICE OF LAW/VENUE. This EULA shall be governed by New York law, without regard to the Uniform Computer Information Transactions Act ("Applicable Law"). Choice of law rules and the United Nations Convention on Contracts for the International Sale of Goods will not apply. Notwithstanding the foregoing, either party may also seek and obtain appropriate relief (including equitable relief) in any court of competent jurisdiction for claims regarding (i) the scope of any licenses granted herein or (ii) its intellectual property rights and confidential information. The prevailing party in an action to enforce this EULA shall be entitled to costs and attorneys and experts fees and expenses.

 

TRIAL, EVALUATION SOFTWARE AND LOANED SOFTWARE. This Agreement shall also apply to (i) “Trial” or “Evaluation Software” (meaning the copy of Software which contains this Agreement, including any copies made by or on behalf of Customer, and all Documentation for the foregoing, which are licensed for a limited duration for the specific purpose of evaluation prior to making a final decision on procurement; and (ii) “Loaned Software” (meaning the copy of Software which contains this Agreement, including any copies made by or on behalf of Customer, and all Documentation for the foregoing, which are licensed for a limited duration directly to Customer for a limited period of time at no charge), subject to the following:

  1. The particular Trial, Evaluation or Loaned Software, period of use, installation site and other transaction-specific conditions shall be as mutually agreed between Entreda and Customer and recorded in the form of a trial, evaluation or loan schedule indicated in the Quote or, via email.

  2. Notwithstanding any deviating terms in this Agreement, all licenses for Trial, Evaluation Software and Loaned Software expire at the end of the pre-specified period.

  3. Customer shall return or delete Evaluation Software and Loaned Software at the end of the evaluation or loan period or when sooner terminated by Entreda for convenience by giving thirty (30) days’ written notice, whichever occurs first. Customer shall bear the risk of loss and damage for return of physical media, if any, and de-installation.

  4. Customer may use Evaluation Software and Loaned Software solely for the purpose of evaluation and not in a production environment.

  5. Without prejudice to any other limitations on Entreda’s liability set forth in this Agreement (which shall also apply to Evaluation and Loaned Software), Evaluation Software and Loaned Software are provided “AS IS”.

  6. Unless otherwise specifically agreed in writing by Entreda, Entreda does not provide maintenance or support for any Evaluation Software. CUSTOMER RECOGNIZES THAT EVALUATION SOFTWARE MAY HAVE DEFECTS OR DEFICIENCIES WHICH CANNOT OR MAY NOT BE CORRECTED BY ENTREDA.

GENERAL.

  1. Entreda may identify Customer for marketing purposes, unless and until Customer prohibits Entreda from doing so in writing.

  2. Neither party may assign any rights or delegate any duties under this EULA and any attempt to do so is void and without effect. Any sale or transfer of 25% or more of equity or assets or any other change in control or management shall be deemed to be an assignment of this EULA.

  3. Any notices permitted or required under this Agreement shall be in writing, and shall be deemed given when delivered (i) in person, (ii) by overnight courier, upon written confirmation of receipt, (iii) by certified or registered mail, with proof of delivery, (iv) by facsimile transmission with confirmation of receipt, or (v) by email, with confirmation of receipt. Notices shall be sent to the address set forth below, or at such other address, facsimile number or email address as provided to the other party in writing. Notices shall be sent to: Entreda, Inc., 2nd Ave, Suite 460, San Mateo, CA 94401, USA. The parties agree that this Agreement has been written in the English language, that the English language version shall govern and that all notices shall be in the English language.

  4. This EULA and any terms of documents incorporated by written reference (including written reference to information contained in a URL or Documentation), and any other agreement between the parties of which this EULA is a part, represents the parties entire agreement relating to the subject matter hereof and supersedes all prior or contemporaneous oral or written communications, proposals, representations and warranties and prevails over any conflicting or additional terms of any communication between the parties relating to its subject matter. All terms of any purchase order or similar document provided by Customer, including but not limited to any pre-printed terms thereon and any terms that are inconsistent or conflict with this Agreement, shall be null and void and of no legal force or effect.

  5. No modification to this EULA will be binding unless in writing and signed by an authorized representative of each party.

  6. Any express waiver or failure to exercise promptly any right under this EULA will not create a continuing waiver or any expectation of non-enforcement.

  7. If any provision of this EULA is held to be unenforceable for any reason, such provision shall be reformed only to the extent necessary to make it enforceable.

  8. To the extent that any and all provisions of this EULA shall exclude or limit any statutory liability which, according to mandatory provisions of Applicable Law cannot be contractually excluded or limited by mutual agreement of the parties, then such provision shall be given only such effect, if any, as is permitted by the Applicable Law.

  9. Neither party will be responsible for any failure or delay in its performance under this EULA , excluding Customer’s payment obligations, due to causes beyond its reasonable control, including, but not limited to, lockouts, shortages of or inability to obtain energy, raw materials or supplies, war, terrorism, riot, or natural disasters.

  10. Capitalized terms not defined herein shall have the meaning set forth in the Purchase Terms and Conditions, the Support Services Terms and Conditions, or the Limited Warranties, in each case to the extent applicable, this EULA is an integral part.