The Terms and Conditions set forth below along with any written material authorized and agreed to by Dot Hill constitute the entire Agreement (“Terms and Conditions”) between Dot Hill Systems Corp. (“Dot Hill”) and purchasers (“Customer”) of Dot Hill products and services (“Products”) unless otherwise specifically agreed to by Dot Hill in a signed writing. The provisions herein supersede all prior proposals and understandings, and later oral understandings.
1. Order and Delivery
(a) Customer may order Products by issuing a written Purchase Order (“Order”) to Dot Hill. 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) Orders may not be cancelled or rescheduled unless approved by Dot Hill in writing. Dot Hill may impose a fifteen percent (15%) charge for cancellation or rescheduling.
(c) If Dot Hill agrees to extend credit terms to Customer, 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. All payments must be in US currency. Time is of the essence with respect to payment obligations.
(d) All prices for Products and shipments of Products shall be made FCA (INCOTERMS 2010) Dot Hill’s designated distribution facility, and Customer will pay for all transportation, customs, duties and other such expenses. Dot Hill will package and ship products in accordance with its standard practices.
(e) Delivery dates in orders or acknowledgements are estimates only. Dot Hill shall not be liable for late delivery.
(f) All Products are to be installed by Customer unless Customer has ordered installation services from Dot Hill.
(g) 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.
(h) 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.
2. 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 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, at its option, repair off-site or replace any defective Product, part or component of Product 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 to an off-site repair location 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 may be available to Customer for a charge. These provisions do not govern such services.
(f) The foregoing warranty does not apply to damage that is attributable to: (i) non-Dot Hill products and services, (ii) non-approved alterations, (iii) out-of-specification Products, (iv) accidents, misuse, or negligence, (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.
(h) PRODUCTS ARE NOT ABSOLUTELY FAULT-TOLERANT AND ARE NOT DESIGNED FOR USE OR RESALE AS ON-LINE CONTROL EQUIPMENT IN HAZARDOUS ENVIRONMENTS REQUIRING FAIL-SAFE PERFORMANCE IN WHICH THE FAILURE OF THE PRODUCTS COULD LEAD DIRECTLY TO DEATH, PERSONAL INJURY OR SEVERE PHYSICAL OR ENVIRONMENTAL DAMAGE, SUCH AS, BUT NOT LIMTIED TO, THE OPERATION OF NUCLEAR FACILITIES, AIRCRAFT NAVIGATION OR COMMUNICATION SYSTEMS, DIRECT LIFE SUPPORT SYSTEMS, MEDICAL DEVICES, WEAPONS SYSTEMS OR SATELLITE EQUIPMENT (“HIGH RISK ACTIVITIES”). DOT HILL DISCLAIMS ANY WARRANTY OF FITNESS FOR HIGH RISK ACTIVITIES.
3. 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) Customer’s sole and exclusive remedies for damages from any cause related to or arising from the Products will be those set forth in these a Terms and Conditions.
(c) IN NO EVENT WILL DOT HILL BE LIABILE FOR; (i) ANY INCIDENTAL, INDIRECT, SPECIAL OR CONSEQUENTIAL DAMAGES, INCLUDING, BUT NOT LIMITED TO: (i), LOSS OF USE, LOSS OR CORRUPTION OF DATA, LOST REVENUE, LOST PROFITS OR LOST 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.
4. Third Party Products
(a) Non-Dot Hill Products may also be governed by different or additional conditions that the manufacturer/ licensor of such products may impose; 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.
Without prejudice to other rights and remedies, Dot Hill may cancel any Order issued for the following reasons 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: (i) Customer fails to make any payment when due; (ii) Customer fails to cure any breach of these Terms and Conditions (or any other written agreement binding upon Customer) within thirty (30) days of receipt of written notice of such breach from Dot Hill; or (iii) Customer is adjudicated bankrupt, a receiver or trustee is appointed for Customer or Customer makes an assignment for the benefit of creditors.
All notices required herein shall be sent by registered or overnight mail, costs prepaid, to Dot Hill, attention CFO or to Customer’s President at the address set forth on the Order.
7. 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..
(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. Proprietary Information
Proprietary Information is information of Dot Hill or its licensors that is not publicly available and that a reasonable person would believe to be proprietary or confidential given the nature of the information or circumstances of disclosure. Customer shall keep in confidence and protect Proprietary Information from use by and disclosure to third parties and use Proprietary Information only for the purposes of using Products as a customer. 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. Nothing in this Agreement confers upon Customer the right to use the trademarks, trade names or service marks of Dot Hill. Customer may not register or use an internet domain name that includes the trademarks, trade names or service marks of Dot Hill.
9. Software and Other Products
Upon full payment for a particular Product, 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 business purposes on the unit of hardware 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, modify, de-compile or disassemble any Dot Hill Product. Nothing herein shall transfer to Customer any right, title or interest to any intellectual property contained in Product, documentation or Proprietary Information.
(a) Use and shipment of Products are subject to various laws 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 under these Terms and Conditions, or otherwise with respect to their relationship, will not constitute a waiver.
(c) These Terms and Conditions, the sale of Products to Customer, and any other aspect of the relationship between Customer and Dot Hill shall be governed by the laws of Colorado and any dispute arising thereunder shall be adjudicated in a binding arbitration conducted in Boulder County, Colorado through the American Arbitration Association in accordance with its Commercial Arbitration Rules then in effect. The final decision of the arbitrator(s) shall constitute a conclusive determination of the issue(s) in question and shall not be contested by either party. 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 of these Terms and Conditions is severable, and if one or more provisions are declared invalid, the remaining provisions will remain in full force and effect.
(f) Products are commercial products that have been developed entirely at significant private expense and are regularly used for non-governmental purposes and licensed to the public. All software provided to the any governmental entity, including the United States Government, must be, and is, provided with only those rights that other, non-governmental, commercial customers of the Products obtain, and is provided with RESTRICTED RIGHTS as per DFR 227.7202-3, FAR 52.227-14 and other regulations. All rights not expressly granted are reserved.