Asigra TrueNAS Appliance Addendum
Last updated: November, 2018
This Asigra Appliance Addendum is a supplemental agreement between Asigra Inc. (“ASIGRA”) and you, the Service Provider that has executed (i) the Asigra Cloud Backup Software Service Provider Term License Agreement; (ii) the Asigra Cloud Backup Software Service Provider Agreement; or (iii) the Asigra Service Provider Purchase Agreement (“ASIGRA SP Agreement”) and is for the purchase of certain products provided by ASIGRA and ASIGRA’s supplier, iXsystems, Inc. (“Supplier”).
WHEREAS Service Provider has executed the ASIGRA SP Agreement and now wishes to obtain the Appliances manufactured by Supplier and resold by ASIGRA as described herein;
NOW THEREFORE in consideration of the mutual covenants contained herein and for other good and valuable consideration, the parties hereby agree as follows:
All capitalized terms set out herein will have the meanings set forth below:
“Addendum”,“hereto”, “hereof”, “herein”, “hereby”, “hereunder” and similar expressions mean this ASIGRA Appliance Addendum;
“Appliance” means the ASIGRA TrueNAS Appliance (including hardware, software and related documentation) that ASIGRA shall make available to Service Provider hereunder;
“Dead on Arrival (DOA)” means any failure of an Appliance to operate properly or performance failure occurs within forty-eight (48) hours after the Appliance is initially powered on or installed by Service Provider;
“Effective Date” means the date this Addendum takes legal effect, being the date Service Provider submits a purchase order for the Appliances described on the Quotation;
“Export Laws” has the meaning described in Section 13.1;
“Open Source License” means any license meeting the Open Source Definition (as promulgated by the Open Source Initiative at www.opensource.org) or the Free Software Foundation Definition (as promulgated by the Free Software Foundation at www.fsf.org);
“Open Source Software” means any software subject to an Open Source License;
“Proof of Delivery” has the meaning described in Section 5.1;
“Purchase Order” or “PO” means the written or electronic order(s) issued by ASIGRA to Supplier for the purchase of Appliances to be resold to Service Provider hereunder;
“RMA” means a return material authorization number issued by Supplier as described below; “Service Provider” means you, the authorized service provider of ASIGRA Cloud Backup Services that obtains Appliances from ASIGRA under this Addendum;
“Visual Defect” means any damage to the outer packaging or the Appliances themselves, shortage or other discrepancy;
“Warranty” means the applicable warranties for the Appliance(s) as set out herein; and “Quotation” means the applicable ASIGRA price quotation and related associated documentation for Appliances purchased or licensed hereunder.
2. Grant of Rights
2.1 Subject to the requirements set forth in Section 4.1, ASIGRA shall provide to Service Provider the Appliances described in the Quotation.
2.2 Service Provider may use the software that accompanies an Appliance only on a single Appliance. Service Provider may not separate component parts of the software for use on more than one Appliance nor move the software from an Appliance to a non-ASIGRA product. Service Provider may not distribute or copy the software except as expressly provided.
3. Restrictions on Use
3.1 Service Provider may not:
3.1.1 distribute, sell, transfer, sublicense, decompile, reverse engineer or disassemble any Appliances;
3.1.2 remove, obscure or alter any ASIGRA, Supplier or any other third party supplier trade-marks, copyright notices, proprietary information notices or restricted rights notices contained in any Appliances, and Service Provider shall affix to any media containing a copy of all or any portion thereof, all copyright notices, proprietary information notices and restricted rights notices as were affixed to the original media;
3.1.3 perform any actions, including but not limited to the following actions that will cause Appliances or its derivatives to be considered subject to any Open Source Software: (i) use Open Source Software to create derivative works of the Appliances; or (ii) combine or distribute the Appliances or any derivative works with Open Source Software; or
3.1.4 cause or permit reverse engineering (unless required by law for interoperability), disassemble or decompile any aspect of the Appliance’s software and hardware.
3.2 ASIGRA (and its suppliers) reserve all rights not expressly granted to Service Provider.
4. Purchase Terms
4.1 Service Provider shall pay for its purchase of Appliances as described below.
4.2 Prior to ASIGRA issuing a Purchase Order to Supplier, Service Provider shall pay ASIGRA, via wire transfer, cheque or credit card, an up-front payment (“down payment”) equal to fifty (50%) percent of the fees, including applicable taxes and shipping, for the Appliances described in the applicable Quotation. ASIGRA shall only issue a Purchase Order to Supplier following receipt of the down payment.
4.3 Service Provider shall pay ASIGRA the remaining balance of fifty percent (50%) of the fees for the Appliances, including applicable taxes, within thirty (30) days of receipt of the Appliances.
4.4 Service Provider’s failure to pay ASIGRA the remainder of the outstanding fees for the Appliances within thirty (30) days of receipt of the Appliances shall be a material breach of the ASIGRA SP Agreement.
4.5 Subject to Supplier’s acceptance, ASIGRA may change or cancel Purchase Orders for Appliances following Service Provider’s request without incurring an additional charge, provided the request for such change or cancellation is made at least thirty (30) days prior to the Appliances’ anticipated scheduled shipment date as notified by ASIGRA. Any change or cancellation requested by Service Provider outside the time frame described above shall incur an additional fee equal to fifteen percent (15%) of the amount of the original Purchase Order that is to be cancelled or changed, which additional costs shall be borne and paid by Service Provider.
4.6 ASIGRA or Supplier shall deliver Appliances to Service Provider’s address as specified in the relevant Quotation.
5. Appliance Return
5.1 Service Provider may return any Appliances that it received in error so long as (i) the Appliances are newly shipped and unused; (ii) their shipping boxes must be in good condition, undamaged and usable for other clients; and (iii) Service Provider advises ASIGRA not later than thirty (30) days after the date that Service Provider received such Appliances in error. Service Provider must also possess original documentation, including documents signed by the consignee to acknowledge the receipt of physical cargo, or the waybill or carrier’s internal arrival proof provided by the logistics service provider as the case may be, to evidence the original shipment (collectively, “Proof of Delivery”) and must be able to provide such Proof of Delivery to ASIGRA upon request. ASIGRA may additionally require photographs and/or other reasonable information to process the return of wrongly-shipped Appliances (including copies of bar codes, quality certificates, etc.).
5.2 If Service Provider receives any Appliances that are DOA or otherwise have Visual Defects within thirty (30) days after receipt then Service Provider shall first promptly notify ASIGRA via its Technical Support Services. ASIGRA shall determine whether such Appliance is defective and/or a replacement component is required, in its sole discretion, acting reasonably. In such instance, ASIGRA shall contact Supplier on behalf of Service Provider requesting new Appliances or replacement parts for the Appliances as applicable as well as to obtain an RMA number that Service Provider shall place on the outside of the box that will be returned. Service Provider acknowledges that Appliances cannot be returned without the receipt of a valid RMA number issued by Supplier and made available to Service Provider by ASIGRA. RMA numbers will be issued only for Visual Defects created solely by Supplier, or Supplier’s carrier or freight provider, and only if Service Provider satisfies the notice requirement above. After confirming ASIGRA’s report regarding the defective Appliance or part, ASIGRA shall arrange for the delivery of a new Appliances or parts to Service Provider to replace the defective Appliances or parts at Supplier’s expense. Service Provider acknowledges that Supplier may refuse shipments of Appliances with Visual Defects that do not have an authorized RMA number. Refused shipments will be returned to the Service Provider via collect freight.
5.3 Within thirty (30) days of receipt of new Appliances or parts, Service Provider shall properly pack and ship the defective Appliances or parts back to the address designated by ASIGRA at ASIGRA’s expense in the shipping carton/box containing the replacement Appliance/parts sent by Supplier, along with an acceptable proof of purchase. Service Provider shall ensure that it places the RMA number on the return box to be shipped to the address designated by ASIGRA. Service Provider shall be invoiced by ASIGRA for any defective Appliances or parts that are not shipped back to Supplier, excluding any defective hard-drives.
5.4 RMAs will not be granted for damage, shortage or other discrepancy caused by Service Provider, the carrier, the freight provider, or any other third party.
5.5 If following its investigation ASIGRA determines, in its sole discretion, acting reasonably, that the allegedly defective Appliance or part does not have any Visual Defects or other defects or is not DOA, Service Provider acknowledges and agrees that ASIGRA shall invoice Service Provider for a No Fault Found fee of $US250 plus the applicable shipping costs incurred by ASIGRA for such non-defective Appliance or part.
6. Logistics and Shipping
6.1 Service Provider shall advise ASIGRA of the delivery address and contact information of the person who will receive Appliances in the relevant Quotation. Service Provider shall specify clearly in its Quotation if multiple address deliveries (one PO can be delivered to multiple address within one region only), or if any additional services are required.
6.2 ASIGRA will not accept any change to delivery addresses and consignees after Appliances have shipped unless otherwise agreed by Supplier. Service Provider acknowledges and agrees that any such approval may result in the payment of additional fees to ASIGRA.
6.3 For greater clarity, replacement services shall only be available from the Supplier during business hours Monday – Friday, 8:00 am – 8:00 pm, excluding certain statutory holidays (including New Year’s Day, President’s Day, Memorial Day, July 4th Independence Day, Labor Day, U.S. Thanksgiving Day and the day after, Christmas Eve and Christmas Day).
7. Title and Risk
7.1 Unless otherwise agreed by Supplier, risk of damage to or loss of Appliances shall pass to Service Provider upon delivery. The title to Appliances shall pass to Service Provider solely upon receipt of full payment by ASIGRA from Service Provider pursuant to this Addendum.
8. Restrictions on Use
8.1 The Appliances are not designed, intended or authorized for use in life support, life sustaining, nuclear, or other applications in which the failure of such Appliances could reasonably be expected to result in personal injury, loss of life or catastrophic property damage. If Service Provider sells or uses the Appliances for any purpose prohibited under this Addendum, or if Service Provider uses or sells the Appliances for use in any applications not designed, intended or authorized specifically by ASIGRA:
8.1.1 Service Provider acknowledges that such use or sale is at Service Provider’s sole risk;
8.1.2 Service Provider agrees that ASIGRA, Supplier and any of their licensors and suppliers are not liable, in whole or in part, for any claim or damage arising from such use; and
8.1.3 Service Provider shall fully indemnify, defend and hold ASIGRA and Supplier and their licensors and suppliers harmless from and against any and all claims, damages, losses, costs, expenses and liabilities (including legal fees on a solicitor and solicitor's own client basis) arising out of or in connection with such use or sale.
9. Limitation of Liability
9.1 Except as described below, the Appliances are provided on an “as is” and “as available” basis, without any representations or warranties of any kind and ASIGRA expressly disclaims any and all representations, warranties or conditions in regards to the Appliances.
9.2 ASIGRA provides certain warranties for the software contained in the Appliance as described in the ASIGRA Software License Agreement of the Asigra Cloud Backup software which Service Provider consented to upon installation of the ASIGRA software.
9.3 The hardware used in the Appliance is manufactured by iXsystems, Inc. (“iXsystems”). The warranty for the hardware offered by iXsystems is available on iXsystems’s website at www.ixsystems.com/support) and Service Provider should review iXsystems’s website from time to time to ensure that its understanding of iXsystems’s warranty is up-to-date and current.
9.4 Service Provider’s exclusive remedy and ASIGRA’s entire liability for any breach of the above warranties shall be the repair, or at ASIGRA’s option and expense, replacement of the defective Appliance, or, if such repair or replacement is not reasonably achievable, the refund of purchase price of the defective Appliance or part.
9.5 IN NO EVENT, WHETHER BASED IN CONTRACT OR TORT (INCLUDING NEGLIGENCE) OR OTHERWISE, WILL ASIGRA OR ITS AFFILIATES, DIRECTORS, EMPLOYEES, REPRESENTATIVES, AGENTS, OR SUBCONTRACTORS BE LIABLE TO SERVICE PROVIDER FOR ANY LOSS OF REVENUE, PROFITS, GOODWILL, ANTICIPATED SAVINGS, LOSS OF BUSINESS OR OTHER FINANCIAL LOSS, OR LOST OR CORRUPTED DATA OR FOR ANY DIRECT, INCIDENTAL, EXEMPLARY, CONSEQUENTIAL, INDIRECT OR SPECIAL DAMAGES OF ANY KIND ARISING OUT OF OR IN CONNECTION WITH THE SALE, LICENSE, INSTALLATION, MAINTENANCE, USE, PERFORMANCE, FAILURE OR INTERRUPTION OF SUPPLIER PRODUCTS, OR ANY PERFORMANCE OR FAILURE TO PERFORM HEREUNDER.
9.6 THIS DISCLAIMER OF LIABILITY FOR DAMAGES WILL NOT BE AFFECTED IF ANY REMEDY PROVIDED HEREUNDER WILL FAIL OF ITS ESSENTIAL PURPOSE. SERVICE PROVIDER HAS ACCEPTED THE DISCLAIMER OF LIABILITY FOR DAMAGES AS PART OF A BARGAIN TO LOWER THE PRICE OF THE PRODUCTS AND SERVICES AND UNDERSTANDS THAT THE PRICE OF THE PRODUCTS AND SERVICES WOULD BE HIGHER IF ASIGRA WERE REQUIRED TO BEAR ADDITIONAL LIABILITY FOR DAMAGES.
9.7 TO THE EXTENT ALLOWED BY LAW, THESE LIMITATIONS WILL APPLY REGARDLESS OF THE BASIS OF LIABILITY, INCLUDING NEGLIGENCE, FUNDAMENTAL BREACH, MISREPRESENTATION, BREACH OF ANY KIND, OR ANY OTHER CLAIMS IN CONTRACT, TORT OR OTHERWISE.
10 Term and Termination
10.1 This Addendum will take effect on the Effective Date and will continue unless terminated as described below (the “Term”)
10.2 ASIGRA will have the right to terminate this Addendum in the event of an occurrence of a breach of a material provision or Service Provider materially defaults in the performance of any of its duties or obligations as set forth in this Addendum that is not remedied within ten (10) days of receipt of written notice thereof.
10.3 ASIGRA shall also terminate this Addendum, effective immediately without written notice, if all or a substantial portion of the assets of Service Provider are transferred to an assignee for the benefit of creditors, to a receiver or to a trustee in bankruptcy; a proceeding is commenced by or against Service Provider for relief under bankruptcy, insolvency or similar laws, ceases to function as a going concern or to conduct its operations in the normal course of business, is unable to meet its obligations as they become due or files or has against it a petition under the bankruptcy laws; or Service Provider is adjudged bankrupt or insolvent. Additionally, ASIGRA may terminate this Addendum, effective immediately upon written notice, if Service Provider breaches Section 14.2 (Assignment).
10.4 Either party may terminate this Addendum upon the provision of sixty (60) days’ written notice to the other party.
10.5 This Addendum will automatically terminate upon the termination of the ASIGRA SP Agreement.
11. Duties Upon Termination/Expiration
11.1 Upon the day this Addendum expires or terminates (the “Termination Date”), for any reason whatsoever, all of Service Provider’s rights to purchase additional Appliances hereunder will terminate immediately. ASIGRA will provide Service Provider with any Appliances that it ordered prior to the Termination Date. Any outstanding fees for Appliances shall become immediately due and payable and shall be finally paid by Service Provider in full not later than thirty (30) days following the Termination Date.
12.1 Service Provider will fully defend, indemnify and hold harmless ASIGRA, its officers, directors, employees, contractors and agents (“ASIGRA Indemnitees”) from any and all losses, costs, damages, liabilities (including any and all liability for damages to property and injury to persons, including death), judgments, claims, demands, causes of action, contracts, suits, actions or other proceedings of any kind or nature and expenses (including legal fees on a solicitor and solicitor's own client basis) that the ASIGRA Indemnitees or any of them, may suffer or incur howsoever caused arising out of or in connection with, in any way related to, or as a result of:
12.1.1 Service Provider’s use of the Appliances; or
12.1.2 anything done or omitted to be done by Service Provider in connection with this Addendum, including any breach by Service Provider of its obligations under this Addendum; provided that (a) ASIGRA promptly notifies Service Provider of any such action or suit following a responsible officer or director of ASIGRA becoming aware of such action or suit; (b) ASIGRA gives Service Provider sole control over the defense, settlement or compromise of any such action or suit; and (c) ASIGRA co-operates fully in Service Provider’s defense or settlement of such claim.
13. Compliance with Laws and Export Controls
13.1 Service Provider shall observe and comply with all applicable laws, rules and regulations applicable to the performance of its obligations under this Addendum, including but not limited to anti-corruption laws. Additionally, certain Appliances and related technology and documentation sold hereunder are subject to import and export control laws, regulations and orders of the United States, the European Union, and/or other countries (“Export Laws”). Service Provider shall comply with such Export Laws and obtain any license, permit or authorization required to transfer, sell, export, re-export or import the Appliances and related technology and documentation. Service Provider will not export or re-export the Appliances and related technology and documentation to any country or entity to which such export or re-export is prohibited, including any country or entity under sanction or embargoes administered by the United Nations, U.S. Department of Treasury, U.S. Department of Commerce or U.S. Department of State. Service Provider will not use the Appliances and related technology and documentation in relation to nuclear, biological or chemical weapons or missile systems capable of delivering same, or in the development of any weapons of mass destruction.
14.1 This Addendum is a supplement to the ASIGRA SP Agreement and unless otherwise modified by this Addendum, the terms of the ASIGRA SP Agreement are hereby incorporated by reference.
14.2 Service Provider may not assign or transfer, either voluntarily or by operation of law this Addendum or any of its rights or obligations under this Addendum without the prior written permission of ASIGRA. This Addendum is binding upon and enures to the benefit of the parties and their respective successors and permitted assigns.
14.3 The terms of this Addendum are proprietary and confidential and neither party will disclose the terms of this Addendum except as required to perform its obligations hereunder.
14.4 The parties agree that those sections which by their nature should survive termination of this Addendum will survive such termination, such sections to include, but be not limited to, Sections 1–3 and 7–14.