These Terms and Conditions (“Terms”) apply to (i) the purchase of Ryft servers and other Ryft-branded hardware (collectively, “Hardware”), (ii) the licensing of software and firmware loaded on that Hardware and any updates to that software or firmware (collectively “Software”), and (iii) related maintenance and support. These Terms are incorporated by reference into all quotes and Orders for Ryft-branded Hardware, whether from Ryft or its authorized resellers or distributors (“Resellers”).
This is a binding agreement between Ryft and you (the “Customer”). Each of Ryft and Customer may be referred to individually as a “Party” and collectively as the “Parties.” These Terms may NOT be altered, supplemented or amended by any other document unless the new document is signed by both Ryft and Customer.
PLEASE READ THIS DOCUMENT CAREFULLY! IT CONTAINS VERY IMPORTANT INFORMATION ABOUT YOUR RIGHTS AND OBLIGATIONS, INCLUDING AN ARBITRATION PROVISION AS WELL AS OTHER LIMITATIONS AND EXCLUSIONS. IF YOU DO NOT AGREE WITH THESE TERMS, DO NOT PLACE AN ORDER.
SECTION 1. HARDWARE PURCHASE AND SOFTWARE LICENSE
1.1 Quotes and Orders. Customer may receive quote(s) and/or order Hardware through Ryft or its authorized Resellers. Customer acknowledges that no provision in any Customer purchase order or other document will be deemed to modify, add to, or supersede any provision of these Terms, unless expressly signed by an authorized Ryft executive and by Customer. Customer also acknowledges that Resellers are not authorized to bind or commit Ryft to any new or revised terms, conditions, warranties, or other provisions.
1.2 Hardware Sale and Purchase. Hardware will be conveyed and sold to Customer for the prices indicated in the applicable quote or Order authorized by Ryft.
1.3 Software License. Software is licensed, not sold, in connection with the Hardware. Upon Customer’s purchase of the Hardware, Ryft hereby grants Customer a non-exclusive and perpetual (except as otherwise provided in Section 1.5) license to use and execute the Software solely in object code format and solely on the Hardware that such Software was originally loaded onto, subject to these Terms and to the documentation accompanying the Hardware and Software (the “Documentation”). This license to the Software may only be transferred (i) as and if title to the Hardware changes from Customer to its designee following notice to and approval by Ryft of such transfer, not to be unreasonably withheld; and (ii) if such designee is made aware of and agrees to be bound by the restrictions and other applicable provisions of these Terms. Ryft and its licensors retain all rights, title and interest in and to the Software, except for the express license grants stated in these Terms. Any future release, update, or other addition to functionality of the Software made available to Customer shall be subject to these Terms, unless expressly stated otherwise.
1.4 Restrictions. Customer acknowledges that the Hardware, Software, and Documentation and their structure, organization, and source code constitute valuable trade secrets of Ryft and its licensors. Customer agrees that it will not (and will not authorize or permit any employee or third party to) (i) reproduce, modify, distribute, publish, rent, lease, sublicense or assign, disclose, transfer or make available to any third party any portion of the Hardware, Software, or Documentation, in any form; (ii) reverse engineer, decompile, or disassemble any portion of the Hardware or Software, or otherwise attempt to decrypt, extract or derive source code for the Software, any parts thereof, or any algorithms or data structures embodied within; (iii) use the Hardware, Software, or Documentation to build a similar or competitive product or service; (iv) publish or disclose to any third party any evaluation, performance or benchmark tests or analyses, the results of audits or ethical hacks, or other non-public information relating to the Hardware or Software or the use thereof, except as may be authorized by Ryft in writing; (v) use the Hardware or Software for purposes beyond the scope set forth in the Documentation; (vi) use the Software with Hardware not supplied by Ryft; or (vii) otherwise use or copy the Hardware or Software except as expressly allowed under this Agreement.
1.5 Third Party and Open Source Software. The Software may include certain third party software components that Ryft may not be able to sublicense to Customer for the full useful life of the Hardware. Any such third party software will be identified in the Additional Terms accompanying this Agreement, together with any additional or alternative licensing terms and/or restrictions associated with the third party software. If any such third party software sublicenses terminate or expire, Ryft will use commercially reasonable efforts to (i) notify Customer of such circumstances using Customer’s address on file with Ryft; (ii) if Customer is eligible for Ryft’s Maintenance and Support, provide Customer a new release or update to the Software that replaces or adjusts for the terminated third party software; or (iii) refer Customer to potential replacement software products that Customer can directly license from such third parties. Additionally, certain portions of the Software may include code which is subject to “open source” or “free software” licenses (“OSS”), a list of which is available on Ryft’s website and/or in the Documentation. The OSS is not subject to the foregoing Software license, the restrictions above, or other Terms, except for Sections 1.5, 5.3 and 5.4. Instead, each item of OSS is licensed under the terms of the license that accompanies such OSS. Nothing in these Terms limits Customer’s rights under, or grants Customer rights that supersede, the terms and conditions of any applicable license for the OSS, including any rights to copy, modify, or distribute the OSS under the applicable license. If Ryft makes modifications to such OSS and if the applicable OSS license requires that such modifications be made available and Ryft does not already publish such modifications via the applicable OSS community, then Ryft will make its modifications available.
1.6 Feedback. Customer may, at Customer’s sole discretion, provide comments, suggestions, ideas and other feedback to Ryft regarding the use, operation and functionality of the Hardware or Software or any element thereof (“Feedback”). Such Feedback may include information about operating results, known or suspected bugs, errors or compatibility problems and user-desired features and suggestions for improvement. Should Customer elect to provide Feedback to Ryft, Customer hereby assigns to Ryft all rights in the Feedback and agrees that Ryft shall have the right to use such Feedback and related information in any manner it deems appropriate, worldwide, without obtaining Customer’s (or any third party’s) consent. Ryft is not under any obligation to use or respond to any Feedback, or to make any payments to Customer or any third party in connection with the Feedback.
1.7 IP Protections. The Hardware and/or Software are subject to copyrights, patents, and/or trade secret protections. The Hardware and Software are protected by the laws of the United States and other countries, and international treaty provisions. Customer will not remove, alter, or obscure any proprietary notices (including copyright notices) of Ryft or its suppliers on the Hardware, Software, or Documentation.
SECTION 2. DELIVERY; TITLE; INSPECTION/ACCEPTANCE
2.1 Delivery Date. In connection with quotes and Orders, Ryft or Reseller will establish a target shipping date as close as practicable to Customer’s requested date, subject to Ryft’s and/or Reseller’s available inventory and then-current lead time requirements as communicated to Customer. Ryft and Reseller shall not be liable for any damage or penalty arising from delay in delivery or installation, or from failure to give notice of any such delay.
2.2 Risk of Loss. All shipments are FOB Origin. Customer bears all risk of loss or damage to the Hardware or Software following shipment to Customer.
2.3 Hardware Title. Title to the Ryft Hardware shall pass to Customer upon full payment for such Hardware to Ryft.
2.4 Inspection and Acceptance. Except as expressly provided otherwise in these Terms, all Ryft Hardware and Software are deemed accepted upon receipt, and Ryft has a “no return” and “no refund” policy. Customer shall have the right to inspect Ryft Hardware and Software, and to reject Hardware and Software which do not materially conform to the Documentation, by providing Ryft written notice of such non-conformity within ten (10) days of receipt. Ryft will thereafter repair, replace, or refund the purchase price for such Hardware and/or Software timely rejected, as determined solely by Ryft.
SECTION 3. MAINTENANCE AND SUPPORT
3.1 Software Maintenance. From time to time Ryft may, in its sole discretion, develop updated versions of the Software which implement bug fixes, add features or functions, or produce improvements with respect to the utility and efficiency of the Software, but which do not constitute an offering that is marketed or sold by Ryft as a separate product and/or service (“Updates”). Some Updates may be released to all customers eligible for Software maintenance (“Standard Updates”); others may be released only to designated customers (“Specialty Updates”). For one (1) year following Hardware shipment, Ryft will make any published Standard Updates available to Customer as and if available, provided that Customer is in compliance with its obligations under this Agreement. Customer will promptly install all Updates made available to it. For clarity, Updates do not include any updated or new version of any Hardware.
3.2 Support Services. For one (1) year following Hardware shipment, Ryft will provide to Customer reasonable telephone and/or online support during its then-current support hours to assist Customer with identifying and resolving problems relating to the Hardware and Software, and will use commercially reasonable efforts to correct any reproducible errors that cause the Hardware and Software, when used as permitted under this Agreement and in accordance with the Documentation, to operate at material variance from the specifications in the Documentation. Customer acknowledges and agrees that such support is subject to Customer’s installation of published Updates to maintain currency with Ryft’s most recent Software release, and Customer’s reasonable cooperation with Ryft’s efforts to diagnose, reproduce and correct any problems and errors, including providing Ryft with remote or other requested access to the Hardware and/or Software. Customer acknowledges and agrees that Ryft may access the Software remotely solely for the purposes of monitoring system performance and verifying Customer’s compliance with the restrictions and limitations hereunder.
SECTION 4. PRICING; PAYMENT
4.1 Fees. In consideration for the Hardware and Software, Customer agrees to pay to Ryft (or designated Reseller) the applicable fees set forth in the quote or Order (or list price if no other fee is indicated) plus applicable shipping, handling, taxes, and duties (the “Fees”). The Fees will be invoiced on or after the Hardware ship date. All Fees will be due and payable in accordance with the Order’s payment terms (or thirty (30) days after the date of invoice if not otherwise stated in the Order). All Fees are non-refundable and are not contingent on any additional services or product to be provided. All payments shall be made in United States Dollars.
4.2 Past Due Amounts. If Customer fails to make payment within 30 days of the due date of any invoice, Ryft and/or its Resellers may suspend their future delivery and performance obligations and Customer’s license and other rights, unless Customer promptly makes payment within ten (10) days written notice thereof. Interest will also accrue on past due amounts at the rate of 1.5% per month or the maximum rate permissible under applicable law.
SECTION 5. WARRANTY AND LIABILITY
5.1 Limited Warranty. Ryft warrants that the Hardware and Software will operate in substantial conformance with the Documentation for one (1) year following the initial shipment of such Hardware to Customer. If the Hardware or Software does not conform with the above warranty, Ryft will repair or replace, at its sole discretion, the defective Hardware or Software. Repair may occur through maintenance and support, remote Updates to the Software, and/or Customer’s installation of Software Updates or replacement components. Replacements will be subject to Ryft RMA processes set forth on Ryft’s website or as otherwise provided by Ryft. If the Hardware or Software subject to warranty cannot be repaired or replaced within a commercially reasonable period of time after notice by Customer to Ryft, Customer may return the specifically non-conforming Hardware and Software for a refund. This Section 5.1 sets forth Ryft’s sole obligation and Customer’s sole remedy for a breach of this warranty.
5.2 LIMITATIONS. The warranties in Section 5.1 above shall not apply to: (i) use of the Hardware or Software or any component thereof other than according to the terms of this Agreement and the Documentation; (ii) modification, maintenance, or repair of the Hardware or Software by Customer or any third party, except as expressly permitted in writing by Ryft; (iii) any combination or integration of the Hardware or Software with hardware, software, data, and/or technology not provided by Ryft, regardless of whether such combination or integration is permitted under the terms of the Agreement; (iv) any third party components included in or with the Software; or (v) any damage caused by abuse, abnormal physical or electrical stress on, or improper use of the Hardware or Software.
5.3 Disclaimers. Ryft does not warrant that the Customer’s use of the Hardware or Software will be error-free or uninterrupted. EXCEPT AS OTHERWISE EXPRESSLY WARRANTED IN THESE TERMS, THE HARDWARE AND SOFTWARE AND MAINTENANCE AND SUPPORT PROVIDED BY RYFT OR RESELLERS ARE PROVIDED “AS IS” AND “WITH ALL FAULTS,” AND RYFT AND ITS RESELLERS EXPRESSLY DISCLAIM ALL OTHER WARRANTIES OF ANY KIND OR NATURE, WHETHER EXPRESS, IMPLIED OR STATUTORY, INCLUDING, BUT NOT LIMITED TO, ANY WARRANTIES OF OPERABILITY, CONDITION, NONINFRINGEMENT, NON-INTERFERENCE, QUIET ENJOYMENT, VALUE, ACCURACY OF DATA, OR QUALITY, AS WELL AS ANY WARRANTIES OF MERCHANTABILITY, SYSTEM INTEGRATION, WORKMANSHIP, SUITABILITY, TITLE, FITNESS FOR A PARTICULAR PURPOSE, OR THE ABSENCE OF ANY DEFECTS THEREIN, WHETHER LATENT OR PATENT.
5.4 LIMITATION OF LIABILITY. IN NO EVENT SHALL RYFT (OR ITS RESELLERS, EQUIPMENT/COMPONENT PROVIDERS, OR LICENSORS) BE LIABLE FOR ANY INCIDENTAL, CONSEQUENTIAL, SPECIAL, PUNITIVE, EXEMPLARY OR INDIRECT DAMAGES, OR FOR ANY LOST PROFITS OR LOSS OF DATA, EVEN IF ADVISED OF THE POSSIBILITY OF THE SAME, HOWEVER CAUSED AND REGARDLESS OF THEORY OF LIABILITY, WHETHER TORT, CONTRACT, OR STRICT LIABILITY. RYFT’S (AND ITS RESELLERS’, EQUIPMENT/COMPONENT PROVIDERS’ AND LICENSORS’) AGGREGATE LIABILITY for any damages shall in no event exceed the amounts paid BY CUSTOMER TO RYFT (OR ITS RESELLERS) for the SPECIFIC HARDWARE UNIT AND SOFTWARE GIVING RISE TO LIABILITY DURING THE 12-MONTH PERIOD IMMEDIATELY PRECEEDING THE LAST CLAIM.
SECTION 6. INDEMNIFICATION
6.1 Indemnification by Ryft. Ryft will defend at its own expense any action against Customer brought by a third party to the extent the action is based upon a claim that the Hardware or Software infringes the United States intellectual property rights of such third party, and Ryft will pay those costs and damages finally awarded against Customer in any such action that are specifically attributable to such claim or those costs and damages agreed to in a monetary settlement of such action. If the Hardware or Software becomes, or in Ryft’s opinion is likely to become, the subject of an infringement claim, Ryft may, at its option and expense: (i) procure for Customer the right to continue use of the Hardware and Software; (ii) modify the Hardware and/or Software so that it becomes non-infringing; or (iii) refund to Customer any fees paid for such Hardware and Software, less a reasonable amount for prior use thereof based on straight-line depreciation and amortization over a three (3) year period from delivery. Notwithstanding the foregoing, Ryft will have no obligation with respect to any infringement claim to the extent based upon (a) any use of the Hardware or Software not in accordance with these Terms or for purposes beyond the scope set forth in the Documentation; (b) any use of any release of the Software other than the most current release made available to Customer; (c) any modification of the Hardware or Software by any person other than Ryft or its authorized agents or subcontractors; (d) any combination or integration of the Hardware or Software with hardware, accessories, software, data, services, and/or technology not provided by Ryft; or (e) any third party Software or OSS. This Section states Ryft’s entire liability and Customer’s sole and exclusive remedy for infringement claims and actions.
6.2 Procedure. The indemnifying Party’s obligations as set forth above are expressly conditioned upon each of the following: (i) the indemnified Party will promptly notify the indemnifying Party in writing of any threatened or actual claim or suit; (ii) the indemnifying Party will have sole control of the defense or settlement of any claim or suit; and (iii) the indemnified Party will reasonably cooperate with the indemnifying Party, at the indemnifying Party’s expense, to facilitate the settlement or defense of any claim or suit.
SECTION 7. TERM AND TERMINATION
7.1 Term. These Terms shall expire once maintenance and support ends for the last unit of Hardware shipped under the applicable quote or Order incorporating these Terms.
7.2 Termination for Cause. Either Party may terminate this Agreement and applicable Orders immediately on giving notice in writing to the other Party if the other Party commits a material breach (including any non-payment of fees due other than fees subject to a good faith dispute) and, in the case of a material breach capable of being cured, fails to cure that breach within the following timeframes: (i) ten (10) days after notification of non-payment of fees in accordance with Section 4.2; and (ii) sixty (60) days after receipt of a request in writing to cure any other material breach.
7.3 Effects of Termination or Expiration. Upon termination or expiration of this Agreement, any outstanding amounts owed by Customer to Ryft will become immediately due and payable. Licenses to the Ryft Software will survive so long as Customer has complied with its obligations under this Agreement and continues to comply with surviving obligations. Licenses to third party Software will survive as and if permitted by the third party licensor and in accordance with Section 1.5. The provisions of Sections 1.3-1.7, 4, 5, 6, 7.3, 8, 9 and 10 shall survive any termination or expiration of these Terms.
SECTION 8. EXPORT AND U.S. GOVERNMENT USE
8.1 Export. Customer shall comply with export-related laws and regulations, including the requirements of the International Traffic in Arms Regulations (ITAR) and the Export Administration Regulations. Customer shall not export or re-export directly or indirectly (including via remote access) any Hardware or Software (or parts thereof) to any applicable jurisdiction, person or entity prohibited by law or to which a license is required without first obtaining a license from the applicable regulatory authority. Customer will defend, indemnify, and hold harmless Ryft and its Resellers from and against any violation of such laws or regulations by Customer or any of its agents, officers, directors, or employees.
8.2 Commercial Items. The Hardware, Software and Documentation are each a “commercial item,” as that term is defined at 48 C.F.R. 2.101, and more specifically the Software and Documentation are “commercial computer software” and “commercial computer software documentation,” as such terms are used in 48 C.F.R. 12.212. Consistent with 48 C.F.R. 12.212 and 48 C.F.R. 227.7202-1 through 227.7202-4, all U.S. Government end users acquire Hardware, Software and Documentation with only those rights set forth herein.
SECTION 9. ARBITRATION
This Agreement will be governed by the laws of the Commonwealth of Virginia, without giving effect to any conflict of laws principles that would cause the law of another jurisdiction to apply. The United Nations Convention on Contracts for the International Sale of Goods shall not apply to this Agreement. Each Party agrees to negotiate in good faith to resolve any dispute, claim or controversy arising out of or related to this Agreement. In the event the Parties are unable to resolve the dispute within fifteen (15) days following the commencement of negotiations, each Party shall escalate the dispute through the appropriate levels of senior management, until the resolution of the issue is achieved or the respective senior personnel cannot agree to a resolution of the dispute. Unless otherwise agreed to by both Parties, in no event shall the escalation process exceed thirty (30) days. Except for disputes, controversies or claims regarding intellectual property, any dispute, controversy or claim, whether based on contract, tort, or other legal theory (including, but not limited to, any claim of fraud or misrepresentation), arising out of or related to this Agreement which remains unresolved following the negotiations and escalation procedures set forth herein, shall be resolved by binding arbitration pursuant to this Section and the then-current rules and supervision of the American Arbitration Association (“AAA”). Issues of arbitrability shall be determined in accordance with the federal substantive and procedural laws relating to arbitration. A single arbitrator (the “Arbitrator”), who is licensed to practice law and is knowledgeable in the subject matter of this Agreement, shall be appointed by mutual agreement of both Parties, however, in the event that the Parties fail to agree on an Arbitrator within ten (10) days from the date of a request for arbitration, then the Arbitrator will be appointed by the AAA. The Arbitrator shall issue a written report to the Parties which details the basis of any arbitration award. The Arbitrator’s decision and award shall be final and binding and may be entered in any court having jurisdiction thereof. The Arbitrator shall not have the power to award punitive or exemplary damages. Either Party may make an application to the Arbitrator seeking interim injunctive relief to be in effect until such time as the arbitration award is rendered or the dispute is otherwise resolved. Each Party shall bear its own attorneys’ fees associated with the arbitration and other costs and expenses of the arbitration shall be borne equally by the Parties. If court proceedings to stay litigation or compel arbitration are necessary, the Party who unsuccessfully opposes such proceedings shall pay all associated costs, expenses and attorney’s fees which are reasonably incurred by the other Party. Any arbitration or litigation shall be held in Fairfax County, Virginia. This Section shall survive any expiration or termination of this Agreement and shall continue to be enforceable in the event of the bankruptcy of a Party. Nothing set forth herein shall be deemed to prevent either Party from seeking injunctive relief prior to the appointment of an Arbitrator.
SECTION 10. REVISION TO TERMS
THESE TERMS ARE SUBJECT TO CHANGE BY RYFT IN ITS SOLE DISCRETION AT ANY TIME. When changes are made, Ryft will make a new copy of the Terms available on its website at www.ryft.com/legal, and update the version date at the top of the document. Any changes to the Terms will be effective immediately for new Customers.
SECTION 11. MISCELLANEOUS
Customer shall not, in whole or in part, transfer or assign this Agreement, any Order, or any right granted hereunder, except as expressly provided otherwise in this Agreement or upon written consent of Ryft. Absent such consent, any attempted transfer or assignment by Customer shall be null and void. Ryft may assign its rights or delegate its obligations hereunder without Customer’s prior consent. To the extent not prohibited hereby, this Agreement shall be binding upon and inure to the benefit of Ryft and Customer and Ryft’s and Customer’s successors and permitted assigns. No term or provision contained herein shall be deemed waived and no breach excused unless such waiver or consent shall be in writing and signed by the Party against whom enforcement thereof is sought. Ryft and its Resellers shall not be liable to Customer for any failure, delay, or interruption in the performance of any of the terms or conditions due to causes beyond their reasonable control, including, without limiting the generality of the foregoing, strikes, boycotts, common carriers, labor disputes, embargoes, acts of God, acts of public enemy, acts of governmental authority, floods, riots, or rebellion. If any term or provision under this Agreement is determined by a court of competent jurisdiction to be illegal, invalid, or unenforceable, the legality, validity, or enforceability of the remainder of the Agreement shall not thereby be affected, and the Agreement shall be deemed amended to the extent necessary to delete such provision and replace it with an alternative consistent with the original intent to the maximum extent permissible under applicable law. This Agreement states the entire understanding between the Parties with respect to its subject matter, and supersedes all prior proposals, marketing materials, negotiations and other written or oral communications between the Parties with respect to the subject matter of this Agreement. Ryft may refer to Customer as a Ryft customer on Ryft’s website and in sales presentations, and may use Customer’s name and logo for such purposes. Neither Party will issue a press release announcing its relationship with the other Party without the other Party’s prior approval, not to be unreasonably withheld or delayed.