Standard Terms and Conditions for purchase of A10 Products and Services
A10 Networks, Inc – Terms and Conditions for Purchase
Purpose. All sales of the products and/or services set forth on a quotation (“Products”) provided by A10 Networks, Inc. (“A10 Networks”) to its customer (“Company”) are made on the following terms and conditions of sale, provided however, if there is an Existing Agreement (“Existing Agreement”) in place between the parties, then such Existing Agreement shall govern and supersede the terms specified herein. These terms and conditions for purchase (“Agreement”) govern the sale of all Products by A10 Networks, including all quotations made, order acknowledgments sent and invoices sent by A10 Networks. Unless otherwise expressly agreed upon between the parties, in the event of conflict between the terms of this Agreement or an Existing Agreement between the parties, and the terms of a purchase order, acknowledgement form or any other communication of Company, such conflicting terms shall be considered unacceptable and expressly rejected by A10 Networks. For the avoidance of doubt, such conflicting terms shall not become part of the Agreement or an Existing Agreement between A10 Networks and Company.
Purchase Orders. All orders placed with A10 Networks for the Products shall be subject to acceptance by A10 Networks at its headquarters in San Jose, California, and only a written acceptance from A10 Networks’ headquarters office shall be binding. A10 Networks shall not be liable for any damages to Company or to any other person or entity for A10 Networks’ failure to fill, delay in filling, or error in filling any orders, for any reason whatsoever, whether or not the orders have been accepted by A10 Networks. If orders for the Products exceed A10 Networks’ available inventory, A10 Networks will allocate such available inventory on a basis that A10 Networks, in its absolute discretion, deems reasonable.
Price. The price of the Products ordered by Company from A10 Networks shall be the price set forth on the face of a quotation, which price shall be valid until the expiration date set forth on the face of the quotation. If no date is specified, the price stated in the quotation shall be effective for a maximum period of thirty (30) days.
Price Changes. A10 shall have the exclusive right, with thirty (30) days’ notice, at any time, to change its prices, change support and maintenance fees, provided that any such price changes will not apply to orders already accepted by A10.
Cancellation. Company may not cancel any order or any portion of an accepted order less than thirty (30) days prior to the scheduled shipment date. Cancellations made less than thirty (30) days prior to scheduled delivery will not be accepted, and Company shall be responsible for the order and all costs relating to the order.
Shipments. All shipments from A10 Networks will be made F.O.B. A10 Networks’ designated facility. A10 Networks shall have the right to determine the method of shipment and routing of the Products, unless otherwise specified in writing by Company. Upon A10 Networks’ delivery of the Products to a local carrier, delivery will be deemed complete and risk of loss or damage to the Products will pass to Company. Upon such delivery Company shall be responsible for and bear the entire risk of loss or damage to the Products. A10 Networks shall use reasonable efforts to make deliveries of orders so accepted in accordance with the requested delivery date, but A10 Networks shall not be liable for any damages to Company or to any other person for A10 Networks’ failure to fill any orders, or for any delay in delivery or error in filling any orders for any reason whatsoever, whether or not the orders have been accepted by A10 Networks. Shipping dates are estimates only, and time is not of the essence.
Acceptance. Company agrees to inspect the Products immediately upon receipt. Products shall be deemed accepted by Company unless a written notice of defect is received by A10 Networks within ten (10) calendar days of delivery. Upon receiving Company’s notice of defect, A10 Networks will provide Company a return merchandise authorization (“RMA”) for the defective Product. Within ten (10) days of receiving the RMA, Company shall return the defective Product to A10 Networks’ designated repair facility, freight prepaid. At A10 Networks’ option, A10 Networks will either (i) exchange such Product for a new one of the same type (in which case, the freight for such replacement Product shall be paid by A10 Networks) or (ii) terminate the order (and refund the purchase price if Company has already paid the applicable invoice for such defective Product). The foregoing shall be Company’s sole and exclusive remedies for cancellation, rejection or claim of breach for defective Product. If the Product has been (i) modified or altered by Company, (ii) abused or misused, or (iii) used in a manner or in an operating environment other than that for which it is designed, Company shall be deemed to have accepted the Product. Company’s acceptance of Products tendered under this Agreement shall be final and irrevocable. Except as provided in this paragraph, Company shall have no right to return any Products.
Payment Terms. Payment for the Products ordered from A10 Networks, including charges for applicable shipping costs, must be prepaid unless A10 Networks has, in its discretion, granted Company credit approval, in which case payment is due within thirty (30) days of the date of invoice. All payments will be made in U.S. Dollar funds, by wire transfer of funds or by check drawn on a U.S. bank. A10 Networks reserves the right to terminate or modify the credit terms granted to Company when, in A10 Networks’ sole discretion, A10 Networks believes that such action is warranted. All sums not paid when due shall accrue interest daily at the lesser of (i) an annual rate of 18% or (ii) the highest rate permissible by law on the unpaid balance, until paid in full.
Taxes and Duties. Any and all amounts payable by Company to A10 Networks hereunder are exclusive of and shall be made free and clear of and without the withholding of or deduction for or on account of any present or future taxes, duties, levies, imposts or other governmental charges, however designated, other than tax imposed on the overall net income or net worth of A10 Networks (all such non-excluded items, whether or not collected by withholding or deduction, being hereinafter referred to as “Withholding Taxes”), except Withholding Taxes required by law or the administration thereof to be withheld or deducted. If Company is required by law or a governmental body charged with the administration thereof to withhold or deduct any Withholding Taxes from or in respect of any amount payable by Company to A10 Networks hereunder then (i) the amount payable shall be increased to such amount which, after making all required withholdings or deductions of Withholding Taxes therefrom, will equal the amount payable hereunder had no such withholdings or deductions been required; (ii) Company shall make such holdings or deductions; (iii) Company shall pay the full amount withheld or deducted to the relevant taxation or other authority in accordance with applicable laws; and (iv) Company shall promptly deliver to A10 Networks a receipt or similar documentation of the relevant authority evidencing the payment of such Withholding Taxes.
Training Credits. Training credits are valid from the date of purchase and will expire one (1) year thereafter. Such expired training credits will then be deemed forfeited and are non-refundable.
No Grant of License. Company’s purchase of the Product does not grant Company any license, express or implied, in the patents, copyrights, trade secrets or other intellectual property (collectively, the “Intellectual Property”) integrated in or associated with the Products, as to which A10 Networks reserves all rights.
Software License. Any software Products are licensed not sold to Company, and Company agrees that its use of the software Products will be governed by A10 Networks’ current end user License Agreement for that software Product. This Agreement does not and shall not be deemed to grant any license to or warranty in any software Product.
Reverse Engineering. Company acknowledges that the Products contain trade secrets of A10 Networks and agrees that it shall not attempt and shall use its best efforts to prevent its employees, agents and/or contractors, from reverse engineering or disassembling the Products or otherwise attempting to discover the internal workings and design of the Products. If this provision violates applicable local law, Company shall notify A10 Networks in writing ninety (90) days prior to any proposed action in contravention of this provision.
Patent and Trademark Markings. Company agrees that it will not remove, move, cover-up, disguise, deface or otherwise interfere with any A10 Networks patent markings, copyright notices or trademarks as such appear or are placed on the Products.
Restrictions. The Products are not authorized by A10 Networks for use in any device or application where the failure, malfunction or inaccuracy of the Product may carry a risk of death or serious bodily injury, such as, but not limited to, moving vehicles, medical equipment, nuclear facilities, aircraft navigation or communication, air traffic control, life support or other applications representing a similar degree of hazard. Any such use is prohibited without prior written agreement of A10 Networks under terms intended to allocate the risks of selling the Product for such uses.
Indemnity. Company will indemnify, defend and hold A10 Networks harmless from all claims, losses, damages and expenses, including attorneys’ fees, arising from (a) any prohibited use, marketing or sale of the Products, and (b) any breach of Company’s obligations hereunder.
Security Interest. A10 Networks hereby reserves a purchase money security interest in all Products sold hereunder and the proceeds thereof in the amount of their purchase price until all such Products have been paid for in full. Company will assist in perfecting and maintaining such security interest.
Limited Warranty – Scope and Duration. A10 Networks warrants to Company that for ninety days commencing upon delivery of the Products or for any longer period set forth on the attached quotation or any warranty included in any manual or other documentation shipped with the Products (the “Warranty Period”), (i) the Products will substantially comply with the published specifications set forth in A10 Networks’ user documentation for the Products; and, (ii) if delivered on CD(s), the media on which the Products is furnished shall be free from defects in materials and faulty workmanship under normal use. A10 Networks makes no warranty as to the Products after the Warranty Period. A10 Networks does not warrant that the Products will meet Company’s requirements or will operate in combination with other hardware, software or non-supported platforms/operating systems/databases, which may be selected for use by Company, or that the operation of the Products will be uninterrupted or error-free.
Limited Warranty – Sole Remedy. Company’s sole and exclusive remedy, and A10 Networks’ sole and exclusive liability, for any breach of the forgoing limited warranty during the Warranty Period shall be, at A10 Networks’ election, either (i) to provide services to correct any defects, which would cause the Products not to comply with the published specifications, (ii) replace the defective Products with Products that comply with the published specifications, or (iii) to terminate the Agreement immediately and refund the purchase price and any support and maintenance fees paid by Company, which relate to the defective Products, less a pro rata amount equal to any support and maintenance fees paid by Company multiplied by a fraction where the numerator is the number of months of support and maintenance provided to Company by A10 Networks and the denominator is the total number of months of the support and maintenance paid by Company. The above remedies are available only (i) if A10 Networks is notified in writing, within the Warranty Period, upon discovery of the defects by Company, and (ii) if the Products have not been (a) altered, or modified by any party other than A10 Networks or a third party provider approved by A10 Networks; (b) subjected to negligence, or computer or electrical malfunction; or (c) used, adjusted, or installed other than in accordance with instructions furnished by A10 Networks. Should Company hire a third party independent contractor not contracted by A10 Networks to perform services for Company using the Products, or should said contractor modify or in any way alter the Products, A10 Networks shall have no liability to Company for said services, modifications, or alterations. Company agrees to assume the entire risk of using the Products.
Disclaimer of Any Other Warranty. EXCEPT FOR THE EXPRESS LIMITED WARRANTY STATED ABOVE, A10 NETWORKS MAKES NO PROMISES, REPRESENTATION OR WARRANTIES, EITHER EXPRESS, IMPLIED, STATUTORY, OR OTHERWISE, WITH RESPECT TO ANY PRODUCT PROVIDED PURSUANT TO THIS AGREEMENT, INCLUDING ITS CONDITION, ITS CONFORMITY TO ANY REPRESENTATION OR DESCRIPTION, OR THE EXISTENCE OF ANY LATENT OR PATENT DEFECTS, AND A10 NETWORKS SPECIFICALLY EXCLUDES ALL IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT. THERE ARE NO WARRANTIES WHICH EXTEND BEYOND THE DESCRIPTION ON THE FACE HEREOF.
CONSEQUENTIAL DAMAGES WAIVER. IN NO EVENT WILL A10 NETWORKS BE LIABLE FOR ANY LOSS OF USE, LOSS OF PROFIT, INTERRUPTION OF BUSINESS, OR ANY INDIRECT, SPECIAL, INCIDENTAL, PUNITIVE OR CONSEQUENTIAL DAMAGES OF ANY KIND (INCLUDING LOST PROFITS), REGARDLESS OF THE FORM OF ACTION, WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT PRODUCT LIABILITY, OR OTHERWISE, EVEN IF A10 NETWORKS HAS BEEN ADVISED, OR SHOULD HAVE BEEN AWARE, OF THE POSSIBILITY OF SUCH DAMAGES.
LIMITATION OF LIABILITY. IN NO EVENT WILL A10 NETWORKS’ LIABILITY TO COMPANY FOR ANY CLAIM, WHETHER IN CONTRACT, TORT OR ANY OTHER THEORY OF LIABILITY, EXCEED THE PURCHASE PRICE OF THE PRODUCT PAID BY COMPANY.
Force Majeure. With the exception of the obligation to pay monies due and owing, each party hereto shall be excused from performance hereunder for any period and to the extent that such party is prevented from performing any obligations pursuant hereto, in whole or in part, as a result of delays caused by the other party or an act of God, war, civil disturbance, court order, governmental action, laws, orders, regulations, directions or requests, or as a result of events such as acts of public enemies, earthquakes, fires, floods, strikes or other labor disturbances of the other party or any third party, or other cause beyond its reasonable control and which it could not have prevented by reasonable precautions, and such precautions. Such nonperformance shall not be a default hereunder or a ground for termination hereof.
Succession and Assignment. Neither party may assign or delegate this Agreement in whole or in part, expressly or by operation of law, without the other party’s prior written consent, not to be unreasonably withheld or delayed; provided, however, that this Agreement may be assigned by either party to an acquirer of all or substantially all of the business or assets of the business unit of the assigning party to which this Agreement pertains. This Agreement shall be binding upon and inure to the benefit of the parties hereto and their permitted successors and assigns. Any assignment of this Agreement, or any license granted herein, in violation of the provisions of this Section shall be void.
Export Controls. Company acknowledges that the laws and regulations of the United States may restrict the export and re-export of commodities and technical data of United States origin, including the Products. Company agrees that it will not export or re-export Products in any form, without the appropriate United States and foreign governmental licenses.
Governing Law. This Agreement is to be construed in accordance with, and the interpretation of the rights and duties of the parties shall be governed by, the laws of the State of California applicable to agreements to be made and to be performed solely within California, without giving effect to any conflicts or choice of laws principles that otherwise might be applicable, and excluding the provisions of the United Nations Convention on Contracts for the Sale of Goods.
Venue. All disputes arising from or related to this Agreement shall be litigated exclusively in the Northern District of California if in federal court, or in Santa Clara County, California if in state court, and Company consents to the personal jurisdiction and venue of the foregoing courts. Each party hereby waives any right that it might otherwise have to object to such venue or seek dismissal of the action on the basis of forum non convenience. Any action by Company against A10 Networks for breach of this Agreement or for any other claim arising out of or relating to the Products or their design, manufacture, sale or delivery must be brought within one year after the cause of action accrues.
Costs and Attorneys’ Fees. In the case of a dispute arising out of or relating to this Agreement, the prevailing party shall be entitled to reimbursement by the non- prevailing party of the prevailing party’s reasonable costs and attorneys and experts’ fees.
Confidentiality of Agreement. The terms of this Agreement are confidential, and shall not be disclosed by either party except as required by law.
No Agency. Neither party is the agent, partner, or joint venturer or to be acting as the agent, partner, or joint venturer of the other party hereunder in any respect.
No Waiver. No delay or omission by either party hereto to exercise any right or power occurring upon any noncompliance or default by the other party with respect to any of the terms of this Agreement shall impair any such right or power or be construed to be a waiver thereof. A waiver by either of the parties hereto of any of the covenants, conditions or agreements to be performed by the other shall not be construed to be a waiver of any succeeding breach thereof or of any covenant, condition or agreement herein contained. Unless stated otherwise, all remedies provided for in this Agreement shall be cumulative and in addition to and not in lieu of any other remedies available to either party at law, in equity, or otherwise.
Other. If any one or more of the provisions of this Agreement shall be held to be invalid, illegal or unenforceable, the validity, legality or enforceability of the remaining provisions of this Agreement shall not in any way be affected or impaired thereby. This Agreement constitutes the entire agreement between A10 Networks and Company with respect to the matters contained herein and supersedes all prior oral or written representations, proposals, understandings and agreements. Notwithstanding the foregoing, should there be provisions in other written agreements between the parties relating to the Products, those provisions shall prevail, but only to the extent such provisions are in addition to or different from those contained herein. Any amendment to this Agreement must be in writing and signed by authorized representatives of both parties hereto.