Terms of Use
The Terms and Conditions set forth below along with any Dot Hill written material that may accompany delivered computer equipment from Dot Hill ("Products") constitute the entire Agreement between Dot Hill Systems Corp. ("Dot Hill") and purchasers ("Customer") of Products unless otherwise specifically agreed to by Dot Hill in a signed writing. The provisions herein supersede all prior proposals and understandings and all other terms and conditions submitted by Customer, upon purchase orders or elsewhere.
1. Order and Delivery
(a) Customer may order Products for delivery by issuing to Dot
Hill a written Purchase Order ("Order"). Orders
become binding upon Dot Hill after Dot Hill issues written
acceptance of an Order. Customer shall be invoiced for Products
on or after the date of shipment.
(b) Customer must pay invoices no later than thirty (30) days from
the invoice date. Dot Hill may impose a late payment charge equal
to the lesser of 1.5% per month or the maximum rate allowed by
law.
(c) All prices for Products and shipments of Products shall be made FCA
(INCOTERMS 2000) Dot Hill's designated common carrier. Dot Hill will
package and ship products in accordance with its standard practices.
Customer will pay for transportation.
(d) Delivery dates in orders or acknowledgements are estimates
only. Dot Hill shall not be liable for late delivery.
(e) All Products are to be installed by Customer unless Customer
has ordered installation services from Dot Hill.
2. Taxes
Customer will pay any tax, fees and duties Dot Hill becomes obligated
to pay or collect by virtue of any Orders issued for Products,
exclusive of taxes based on the income of Dot Hill.
3. Order Changes
Canceled orders, rescheduled deliveries or Product configuration
changes for standard Products may be made by Customer upon
thirty (30) days notice prior to the originally requested delivery
date. Dot Hill may, in its discretion, deny cancellation or
rescheduling of an order or changes in configuration to a standard
Product within thirty (30) days of the originally requested
delivery date or, in Dot Hill’s sole discretion, impose
a fifteen percent (15%) additional charge.
4. Title to Products
(a) Title to Products and the risk of loss or damage to Products shall pass
to the Customer on Dot Hill's delivery of the Products to its designated
common carrier.
(b) Dot Hill reserves a purchase money security interest in Products
until full payment is received. For that purpose, Customer authorizes
Dot Hill or its agent to sign on behalf of Customer the necessary
financing statements.
5. Warranty & Disclaimer
(a) EXCEPT AS EXPRESSLY STATED IN ANY ORDER OR OTHER WRITTEN MATERIAL
SUPPLIED TO CUSTOMER BY DOT HILL, THERE ARE NO WARRANTIES,
EXPRESS OR IMPLIED, BY OPERATION OF LAW OR OTHERWISE AND ALL
PRODUCTS AND SERVICES ARE PROVIDED "AS IS." DOT
HILL DISCLAIMS THE IMPLIED WARRANTIES OF MERCHANTABILITY AND
FITNESS FOR A PARTICULAR PURPOSE AS TO DOT HILL AND NON-DOT
HILL PRODUCTS. DOT HILL WARRANTIES EXTEND SOLELY TO CUSTOMER.
(b) Dot Hill warrants that Products will be free from defects in
material and workmanship from the time of shipment to Customer
by Dot Hill for a period of twelve (12) months for hardware and
ninety (90) days for software, or such other period as may be provided
in an Order or a standard published warranty of Dot Hill.
(c) Products may: (i) be newly manufactured, (ii) be assembled
from new or serviceable used parts that are equivalent to new parts
in performance, or (iii) have been previously installed.
(d) During this warranty period, Dot Hill will repair off-site
or replace any defective Product, part or component of Product
promptly reported or sent to Dot Hill by Customer, which Dot Hill
determines was defective due to faulty material or workmanship.
If Dot Hill, in its sole discretion, determines that repair or
replacement is not commercially reasonable, Dot Hill shall refund
the purchase price of the applicable Product. Customer will pay
transportation and insurance costs to ship Products if an off-site
repair location is designated by Dot Hill; Dot Hill will pay the
return costs if the Product was defective.
(e) The preceding warranty is not a substitute for Maintenance
Services, which are available to Customer for a charge. These provisions
do not govern Services.
(f) Maintenance Service and warranty services do not cover repair
of damage attributable to: (i) non-Dot Hill products and services,
(ii) non-approved alterations, (iii) out-of-specification supplies,
(iv) accidents, misuse, negligence or failure of Customer to follow
instructions for proper use, care and cleaning of Products, (v)
external factors (e.g. failure or fluctuation of electrical power,
fire, flood), (vi) failure by Customer to comply with Dot Hill
environmental specifications or (vii) failure by Customer to comply
with Dot Hill installation instructions or other maintenance related
instructions.
(g) Dot Hill makes no representation or warranty as to products
not manufactured by Dot Hill ("non-Dot Hill Products), which
products are provided to Customer "AS IS" unless otherwise
expressly specified in an Order.
6. Limitation of Liability
(a) Unless further limited elsewhere, the entire liability of Dot
Hill, and Customer’s exclusive remedy for damages from
any cause related to or arising out of this Agreement or otherwise,
regardless of the form of action, will not exceed the payments
made by Customer to Dot Hill for the particular Products from
which such damages arise.
(b) IN NO EVENT WILL DOT HILL BE LIABILE FOR; (i) ANY INCIDENTAL,
INDIRECT, SPECIAL OR CONSEQUENTIAL DAMAGES, INCLUDING, BUT NOT
LIMITED TO, LOSS OF USE, DATA, REVENUE, PROFITS OR SAVINGS, EVEN
IF DOT HILL KNEW OR SHOULD HAVE KNOWN OF THE POSSIBLITY OF SUCH
DAMAGES, (ii) CLAIMS, DEMANDS OR ACTIONS AGAINST CUSTOMER BY ANY
PERSON, OR (iii) THE ACTS OR OMISSIONS OF CUSTOMER OR ANY THIRD
PARTY.
(c) Dot Hill will not be liable for failure to fulfill its obligations
when due to causes beyond its control.
7. Third Party Products
(a) Non-Dot Hill Products may also be governed by different or
additional conditions that the manufacturer/ licensor of such
products imposes; Customer agrees to be bound by those terms
and conditions. Dot Hill may direct Customer to third parties
having products or services that may interest Customer, or
source products and services from third parties for use in
conjunction with Dot Hill Products. Notwithstanding any Dot
Hill sourcing, recommendation or referral, Customer will independently
investigate third-party products and services. Dot Hill has
no obligation or liability with respect to claims relating
to or arising from use of third-party products and services,
unless expressly stated as art of an Order.
(b) DOT HILL MAKES NO RESPRESENTATIONS OR WARRANTIES AS TO NON-DOT
HILL PRODUCTS SELECTED BY CUSTMER, WHICH ARE SOLD OR LICENSED "AS
IS." Maintenance services for non-Dot Hill products are to
be obtained by customer directly from the supplier/manufacturer
thereof unless otherwise specified in an Order.
8. Termination/Cancellation
Without prejudice to other rights and remedies, Dot Hill may cancel
any Order issued for default and repossess Products (excluding
only Products for which the purchase price has been fully paid)
and recover from Customer all of Dot Hill’s damages,
costs and expenses (including reasonable attorneys’ fees)
if, upon written notice, Customer fails to: (i) make any payment
identified as delinquent within ten (10) days or (ii) cure
any default within thirty (30) days of receipt of written notice
of such default from Dot Hill or (iii) in the event Customer
is adjudicated bankrupt, or if a receiver or trustee is appointed
for Customer or for a substantial portion of its assets or
(iv) if Customer makes an assignment for the benefit of creditors.
9. Notices
All notices required herein shall be sent by registered or overnight
mail to Dot Hill, attention CFO, and Customer’s address
as set forth on the Order.
10. Customer Indemnity
Customer shall indemnify and hold Dot Hill harmless from any and
all claims, obligations and liabilities, judgments, costs,
expenses and fees (including attorneys’ fees) resulting
from or relating to the acts or omissions of Customer regarding
any Products.
11. Proprietary Information
Both parties shall keep in confidence and protect the Proprietary
Information of the other party from use by and disclosure to
third parties and restrict its use as provided herein. Proprietary
Information will not be reproduced, in whole or in part, except
when express permission is granted. Any ideas, concepts, techniques,
computer programs, software or documentation developed by Dot
Hill personnel (alone or jointly with Customer or any other
party) in connection with any Order will be the exclusive property
of Dot Hill.
12. Software License
Dot Hill grants to Customer a personal, non-exclusive, non-transferable,
revocable license to use Dot Hill software and related documentation
(all of which are Proprietary Information of Dot Hill) pursuant
to the terms of this and any end-user Agreement included with
delivery. Such license is extended to Customer solely for Customer’s
internal data processing requirements on the central processing
unit of the equipment on which the Software is initially installed.
Customer may not modify any Software or combine any Software
with other programs or materials. Customer will not copy, de-compile
or disassemble any Dot Hill Software. If Customer desires to
use Software for more than one central processing unit or equipment
component, Customer shall request prior permission in writing
from Dot Hill. Dot Hill will then advise Customer whether and
under what terms and conditions Dot Hill will license the Software
as requested. Nothing herein shall transfer to Customer any
right, title or interest to any intellectual property contained
in Software, documentation or Proprietary Information.
13. Intellectual property Indemnity
(a) Dot Hill, at its own expense, will defend and indemnify Customer
against claims that products furnished hereunder infringe a
United States patent or copyright or misappropriate a trade
secret or violate another intellectual property right protected
under United States law, provided Customer: (i) gives Dot Hill
prompt written notices of such claims, (ii) permits Dot Hill
to defend or settle the claims, and (iii) provides all reasonable
assistance to Dot Hill in defending or settling the claims.
(b) As to any Products which are found to infringe any of the aforementioned
intellectual property rights, Dot hill may elect to: (i) obtain
the right of continued use of such product for Customer or (ii)
replace or modify such product to avoid the finding. If Dot Hill
determines, in its sole discretion, that neither alternative is
available on commercially reasonable terms, then at the request
of Dot Hill, Customer will discontinue use and return such Products
and Dot Hill will refund the price paid to Dot Hill, less a reasonable
offset for use and obsolescence.
(c) Notwithstanding the foregoing, Dot Hill will not defend or
indemnify Customer if any claim of infringement or misappropriation
(i) is asserted by a parent or subsidiary of Customer; (ii) results
from design or alteration of any Product by Customer or any third
party; or (iii) results from the combination of any Product and
any device, software or data not supplied by Dot Hill where such
infringement or claim is caused by such device, software or data.
(d) This section sets forth Dot Hill’s entire responsibility
and liability for the Products’ infringement of any proprietary
rights of others. Dot Hill disclaims all other liability, including
any incidental or consequential damages for Products’ infringement.
14. Miscellaneous
(a) Products shipped by Dot Hill are subject to U.S. and non-U.S.
laws and regulations including the U.S. Export Administration
Regulations. Customer warrants that it will comply with all
applicable laws and regulations.
(b) Any failure or delay by either party in exercising any right
or remedy will not constitute a waiver.
(c) Transactions hereunder will be governed by California State
law, and any dispute arising hereunder shall be adjudicated in
the courts of California State. The United Nations Convention on
the International Sale of Goods shall not apply to any Product
shipped by Dot Hill.
(d) Dot Hill may assign its interest in any Product, or assign
the right to receive payments, without Customer’s consent.
Any such assignment, however, will not diminish the obligations
of Dot Hill to Customer.
(e) Each provision herein is severable, and if one or more provisions
are declared invalid, the remaining provisions will remain in full
force and effect.
(f) If this Order is cancelled, the provisions herein that by their
nature for effect should survive, shall survive.
