Other World Computing, Inc.

Terms & Conditions


These terms and conditions apply to the purchase, sale and/or licensing (as applicable) of products, services and software (the “Products”) listed on the applicable Other World Computing, Inc. (“OWC”) sales quotation, order form, cover sheet, or similar document that references these terms and conditions and that is executed by an authorized representative of OWC (each, a “Cover Sheet”). Products may be obtained by OWC, an authorized OWC distributor, reseller or other channel partner (a “Channel Partner”).

 

  1. Shipment. Products shall be shipped F.O.B. place of manufacture or OWC’s or its authorized Channel Partner’s warehouse (as applicable), freight collect or pre-paid and added to the invoice. Where permitted by law, and where Customer is obtaining Products from OWC, Customer hereby grants to OWC a purchase money security interest covering each shipment of Products made hereunder (and any proceeds thereof) in the amount of OWC’s invoice for such shipment until payment in full is received by OWC. Orders are subject to written acceptance by OWC and shipment schedules established in accordance with Product availability and Customer’s credit status; however, OWC shall not have any liability for failure to meet a delivery date. OWC reserves the right to allocate inventories and current production at its sole discretion. OWC reserves the right to modify or change any order at any time, and, at its discretion, to inform Customer of any modifications or changes to the Products that affect form, fit, function, or performance prior to shipment. OWC will be free to substitute components or modify manufacturing processes and make other changes in the Product(s) and/or Product specifications at any time and without any prior notice.
  2. Cancellation/Rescheduling. All orders are non-cancellable once received and accepted by OWC. Customer may reschedule an accepted order one time, upon at least ten (10) days' prior written notice to OWC before the scheduled shipment date. The rescheduled date cannot be later than thirty (30) days from the original schedule. Rescheduled orders may not be cancelled or rescheduled again. Any and all changes Customer makes to its purchase order must be agreed to by OWC in writing.
  3. Payment; Taxes. The price paid by Customer shall be that stated on the Cover Sheet. Unless otherwise stated on a quotation, quotations are valid for thirty (30) days from the date issued. All prices are in U.S. dollars, and all payments are to be made in U.S. dollars, free of any restrictions. Standard payment terms are net thirty (30) days from the date of invoice, but OWC reserves the right to require alternative payment terms, including payment in advance, irrevocable letter of credit, or C.O.D. Payment is not conditioned upon the Products meeting any acceptance testing procedures Customer may have. OWC reserves the right to charge Customer interest on any delinquent balance, computed on a daily basis for each day that the pay one and one-half percent (1.5%) per month or the maximum rate permitted by law. OWC reserves the right to refuse shipment to Customer if Customer is delinquent in making payments. Except as otherwise required by applicable law or agreed to in writing by the parties, Customer is responsible for paying or reimbursing OWC for all taxes or providing OWC with a tax exemption certificate acceptable to the taxing authorities.
  4. Term and Termination. The term of this Agreement shall commence on date of invoice and shall expire on the appropriate anniversary date (one, three or five years) depending upon the terms listed on the Cover Sheet. OWC may terminate this Agreement, effective immediately upon written notice to Customer, in the event that Customer materially breaches this Agreement, and such breach is incapable of cure, or with respect to a material breach capable of cure, Customer does not cure such breach within ten (10) days after receipt of written notice of such breach.
  5. Software License; Restrictions. Subject to the terms hereof, payment of all fees, and any applicable use or capacity limitations (including without limitation as may be set forth in a Cover Sheet), OWC grants to Customer a personal, nonsublicensable, nonexclusive, perpetual right to use the software specified on the Cover Sheet (including all related documentation, the “Software”) in object code form only, only in accordance with OWC’s applicable user documentation. To the extent that OWC provides Customer with any updates, revisions, error corrections, and/or enhancements to the Software (including, without limitation, in connection with any support services provided to Customer) (collectively, “Updates”), such Updates will be deemed part of the “Software” and subject to all of the terms, conditions and restrictions contained herein. OWC retains ownership of all copies and Customer will maintain the copyright notice and any other notices that appear on the Product on any copies and any media. CUSTOMER ACKNOWLEDGES THAT THE SOFTWARE MAY INCLUDE FEATURES TO PREVENT USE AFTER THE APPLICABLE LICENSE PERIOD AND/OR ANY USE INCONSISTENT HEREWITH. Customer acknowledges that Software may contain or be distributed with third party software (“Third Party Software”). All use of Third-Party Software shall be governed by the respective licenses for such Third-Party Software set forth in Exhibit A as may be changed by Third-Party Software provider from time to time. Customer will not (and will not allow any third party to) (i) reverse engineer or attempt to discover any source code or underlying ideas or algorithms of any Software (except to the extent that applicable law prohibits reverse engineering restrictions), (ii) provide, lease, lend, disclose, use for timesharing or service bureau purposes, or otherwise use or allow others to use for the benefit of any third party, any Software (except as expressly and specifically authorized by OWC), (iii) possess or use any Software, or allow the transfer, transmission, export, or re-export of any Software or portion thereof in violation of any export control laws or regulations, (iv) disclose to any third party any benchmarking or comparative study involving any Software or (v) modify any Software. Prior to disposing of any Product containing any part of the Software, Customer shall completely destroy any Software contained therein.
  6. Support; Warranty. Support for the Products and Software will be provided by OWC solely during the applicable Support Term (as defined below) in accordance with (i) the support package selected by Customer as specified in Cover Sheet, described in Exhibit B, and paid for by Customer, and (ii) OWC’s support and warranty terms for such Products and Software, as such terms may be updated from time to time by OWC (and the currently effective version of which is attached hereto as Exhibit C and is incorporated herein by this reference) (the “Support & Warranty Terms”). The warranty for the Products and Software shall be solely as set forth in the Support & Warranty Terms. For each Cover Sheet, unless otherwise set forth on such Cover Sheet, the “Support Term” for such Cover Sheet shall commence on the Effective Date set forth on such Cover Sheet and continue for one (1) year, and following such initial term, shall automatically renew for successive one (1) year renewal terms, unless either party gives the other party notice of non-renewal at least thirty (30) days prior to the end of the initial term or then-current renewal term (as applicable). Notwithstanding the foregoing, in the event that Customer has obtained any Products from any Channel Partner, then Customer acknowledges and agrees that, if specified on the Cover Sheet (or otherwise directed by OWC), it may be required to contact such Channel Partner directly for purposes of obtaining support.
  7. Professional Services. In the event that Customer desires to obtain any professional, consulting or custom services from OWC, such services shall be outlined in and subject to a separate written agreement between OWC and Customer.
  8. Indemnification. OWC shall defend, indemnify and hold Customer harmless from liability to third parties resulting from infringement by a Product of any United States patent or any copyright or misappropriation of any trade secret, provided OWC is promptly notified of any and all threats, claims and proceedings related thereto and given reasonable assistance and the opportunity to assume sole control over defense and settlement; OWC will not be responsible for any settlement it does not approve. The foregoing obligations do not apply with respect to a Product or portions or components thereof to the extent (i) not created by OWC (including, without limitation, any Third Party Software), (ii) made in whole or in part in accordance to Customer specifications, (iii) that are modified after delivery by OWC, (iv) combined with other products, processes or materials where the alleged infringement relates to such combination, (v) where Customer continues allegedly infringing activity after being notified thereof or after being informed of modifications that would have avoided the alleged infringement, or (vi) where Customer’s use of such Product is not strictly in accordance herewith. Customer will indemnify OWC from all damages, costs, settlements, attorneys’ fees and expenses related to any claim of infringement or misappropriation excluded from OWC’s indemnity obligation by the preceding sentence.
  9. LIMITATION OF LIABILITY. NEITHER OWC NOR ITS SUPPLIERS OR LICENSORS WILL BE LIABLE WITH RESPECT TO ANY PRODUCT OR OTHER SUBJECT MATTER OF THIS AGREEMENT UNDER ANY CONTRACT, NEGLIGENCE, STRICT LIABILITY OR OTHER LEGAL OR EQUITABLE THEORY FOR (I) ANY AMOUNTS IN EXCESS IN THE AGGREGATE OF THE AMOUNTS PAID TO OWC HEREUNDER DURING THE TWELVE-MONTH PERIOD PRIOR TO DATE THE CAUSE OF ACTION FIRST AROSE OR (II) ANY INCIDENTAL OR CONSEQUENTIAL DAMAGES, OR (III) COST OF PROCUREMENT OF SUBSTITUTE GOODS, TECHNOLOGY OR SERVICES. THIS SECTION SHALL NOT BE DEEMED TO PRECLUDE ANY LIABILITY WHICH, UNDER APPLICABLE PRODUCTS LIABILITY LAW, CANNOT BE PRECLUDED BY CONTRACT.
  10. Miscellaneous. This Agreement shall constitute the complete and exclusive statement of the terms of agreement between OWC and Customer. THE TERMS OF ANY PURCHASE ORDER, CONFIRMATION OR SIMILAR DOCUMENT WILL HAVE NO EFFECT AND WILL NOT BE CONSIDERED AGREED TO BY OWC. PROVISION OF THE PRODUCTS IS CONDITIONED ON, AND CUSTOMER’S ORDERING, ACCEPTANCE OR USE OF ANY SUCH PRODUCT SHALL CONSTITUTE, CUSTOMER’S ASSENT TO THE TERMS OF THIS AGREEMENT TO THE EXCLUSION OF ALL OTHER TERMS. IF THESE TERMS AND CONDITIONS ARE CONSIDERED AN OFFER, ACCEPTANCE IS EXPRESSLY LIMITED TO SUCH TERMS. OWC’s performance is expressly conditioned on Customer’s assent to the Agreement. A waiver of any default hereunder or of any provision of this Agreement shall not be deemed to be a continuing waiver or a waiver of any other default or of any other provision, but shall apply solely to the instance to which such waiver is directed. In the event any provision of this Agreement is found to be invalid, illegal or unenforceable, a modified provision shall be substituted which carries out as nearly as possible the original intent of the Parties, and the validity, legality and enforceability of any of the remaining provisions shall not in any way be affected or impaired thereby. Customer agrees not to export, either directly or indirectly, any Product purchased or licensed hereunder without first obtaining any required license or other approval from the U.S. Department of Commerce or any other agency or department of the United States Government. If Customer exports any such Product from the United States or re-exports it from a foreign destination, Customer shall ensure that the export/re-export or import of the Product is in compliance with all laws, regulations, orders or other restrictions of the United States and the appropriate foreign government. For international shipments, Customer or its properly authorized agent or freight forwarder shall be exporter of record from the United States. Customer shall be the importer of record and is responsible for fulfilling quota terms, obtaining import licenses, paying import license or permit fees, duties and customs fees, and any other governmental or import taxes or fees, and preparing and submitting all required documentation in connection with importing the Products. OWC shall not be liable to Customer for any alleged loss or damages resulting from delays in performance (including loss or damages resulting from delivery of the Products being delayed) caused by acts of Customer, acts of civil or military authority, governmental priorities, earthquake, fire, flood, epidemic, quarantine, energy crisis, strike, labor trouble, component shortage, war, riot, accident, shortage, delays in transportation, or any other causes beyond OWC’s reasonable control. This Agreement shall be construed in accordance with and all disputes hereunder shall be governed by the laws of the State of Illinois as applied to contracts made and to be performed in Illinois, without applying conflict of laws rules. The United Nations Convention on Contracts for the International Sale of Goods (1980) is hereby excluded in its entirety from application to this Agreement. Customer may not assign this Agreement or any rights hereunder (whether by purchase of stock or assets, merger, change of control, operation of law, or otherwise) without OWC’s prior written consent, which may be withheld in OWC’s sole and absolute discretion, and any unauthorized purported assignment by Customer will be void. OWC may freely assign or delegate its rights and obligations hereunder. Any dispute arising from or relating to the subject matter of this Agreement that cannot be resolved thereby within a period of thirty (30) days after written notice of a dispute has been given by one party hereunder to the other, shall be finally settled by arbitration in McHenry County, Illinois, using the English language in accordance with the Arbitration Rules and Procedures of JAMS (“JAMS”) then in effect, by an arbitrator with substantial experience in resolving complex commercial contract disputes, who will be chosen from the appropriate list of JAMS arbitrators. If the parties cannot agree upon the identity of an arbitrator within fifteen (15) days following the Arbitration Date, then an arbitrator shall be selected on an expedited basis in accordance with the Arbitration Rules and Procedures of JAMS. Any arbitrator so selected shall have substantial experience in the networking industry. The arbitrator shall have the authority to grant specific performance and to allocate between the parties the costs of arbitration (including service fees, arbitrator fees and all other fees related to the arbitration) in such equitable manner as the arbitrator may determine. The prevailing party in the arbitration shall be entitled to receive reimbursement of its reasonable expenses (including reasonable attorneys’ fees, expert witness fees and all other expenses) incurred in connection therewith. Judgment upon the award so rendered may be entered in a court having jurisdiction or application may be made to such court for judicial acceptance of any award and an order of enforcement, as the case may be. Notwithstanding the foregoing, each party shall have the right to institute an action in a court of proper jurisdiction for preliminary injunctive relief pending a final decision by the arbitrator, provided that a permanent injunction and damages shall only be awarded by the arbitrator. The parties consent to exclusive jurisdiction and venue in the United States Federal Courts located in the McHenry County, Illinois. The following provisions shall survive the termination of this Agreement or the relationship with Customer: 3, 4, 7, 8 and 9.

Exhibit A

 

Third-Party Software

1) CentOS7

2) ZFS

3) Media Engine

 

Licenses

 

Centos7 – OPEN-SOURCE PROJECT

 

License found on https://centos.org/legal/licen...;

 

Copyright Contributors to the CentOS Project.

 

Permission is hereby granted, free of charge, to any person obtaining a copy of this software and associated documentation files (the "Software"), to deal in the Software without restriction, including without limitation the rights to use, copy, modify, merge, publish, distribute, sublicense, and/or sell copies of the Software, and to permit persons to whom the Software is furnished to do so, subject to the following conditions:

 

The above copyright notice and this permission notice shall be included in all copies or substantial portions of the Software.

 

THE SOFTWARE IS PROVIDED "AS IS", WITHOUT WARRANTY OF ANY KIND, EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO THE WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NONINFRINGEMENT. IN NO EVENT SHALL THE AUTHORS OR COPYRIGHT HOLDERS BE LIABLE FOR ANY CLAIM, DAMAGES OR OTHER LIABILITY, WHETHER IN AN ACTION OF CONTRACT, TORT OR OTHERWISE, ARISING FROM, OUT OF OR IN CONNECTION WITH THE SOFTWARE OR THE USE OR OTHER DEALINGS IN THE SOFTWARE.

 

openZFS – Open Source Project

 
COMMON DEVELOPMENT AND DISTRIBUTION LICENSE Version 1.

https://opensource.org/license...;

 

Media Engine

 

Lesspain hereby grants to OWC and OWC Distributors, a limited, non-exclusive, non-transferable and non-sublicensable license in the Territory during the Term (and any Post-Term Sell-Off Period) to demonstrate, market and distribute The Software to End Users as an accompanying product of OWC Hardware Products offered to OWC customers.

 

OWC shall not have the right to charge their customers for software products which include The Software including but not limited to Jellyfish Media. LME shall not be used by Lumaforge in any other software product but Jellyfish Media.

 

OWC hereby agrees that they may not and will not do, or permit any other person or entity to do, any of the following: (i) modify, adapt, translate, decompile, reverse engineer, disassemble or otherwise derive or attempt to derive the source code of The Software; modify, or create derivative works of The Software, any updates, or any part thereof, except as and only to the extent that any foregoing restriction is prohibited by applicable law or to the extent as may be permitted by the licensing terms governing use of any open-sourced components included in The Software; (ii) sublicense, disclose or transfer any copy of The Software in whole or in part, to any third party except for the purposes explicitly allowed by this agreement (iii) distribute or make The Software available over a network where it could be used by multiple devices at the same time except for the purposes explicitly allowed by this agreement; (iv) rent, lease, lend, sell, transfer redistribute, or sublicense The Software except for the purposes explicitly allowed by this agreement.

 

Exhibit B

 

Support Plan Descriptions

By purchasing a 1- or 3-year Support Plan, Customer will have access to:

  • Ticketing
  • Chat
  • Phone
  • TeamViewer
  • Tutorials
  • Knowledge Base
  • Unlimited software updates, access to our media management software, application support, and high-level workflow consultations
  • Guaranteed response within 4 hours
  • 3-year manufacturer’s warranty
  • 20 hours covered from 8am-6pm PST and 11pm-8am PST

By purchasing a 5-year Support Plan, Customer will have access to all of the above, and 5-year manufacturer’s warranty on your Jellyfish.


Exhibit C

  
OWC Support and Warranty Terms

These OWC Warranty and Support Terms (the “Terms”) apply to any customer (“Customer”) who is entitled to receive warranty and support services from OWC, Inc. (“OWC”) for specific OWC product(s) (the “Product”) pursuant to a written agreement between Customer and OWC that references these Terms (an “Agreement”). Customer is not entitled to support or warranty services unless Customer has ordered and paid for such services as provided in the Agreement. To the extent OWC has become obligated for support and warranty services, the following will apply with respect to the Products so long as they remain OWC’s standard terms for support and warranty and the Customer is in full compliance with its Agreement.

 

1. Jellyfish Limited Hardware Warranty.

OWC provides a limited warranty for all Jellyfish products (“Jellyfish Products”), as follows: for a period of three (3) years following the date of delivery of the Jellyfish Product to the original end user, OWC warrants that the Jellyfish Product and all of its components will be free from defects in material and workmanship under normal use and service (the “Limited Warranty”). This Limited Warranty applies only to new Jellyfish Products purchased from OWC or an Authorized OWC Reseller, is not transferable, and a valid proof of purchase may be required to prove eligibility. The Limited Warranty does not cover damage resulting from commercial use, misuse, accident, modification or alteration to hardware or software, tampering, unsuitable physical or operating environment beyond product specifications, or failure caused by a product for which OWC is not responsible. In addition, the Limited Warranty does not cover issues with software relating to or incorporated in the Products (“Software”), which is instead subject to the Support and Maintenance Services set forth below in these Terms. There is no warranty of uninterrupted or error-free operation. There is no warranty for loss of data—you must regularly back up any data stored on your Products to a separate storage device.

OWC and its affiliates, suppliers, distributors, and resellers are not liable for any of the following:

• Third-party claims against you for damages (other than bodily injury, including death and tangible personal property);
• Loss of or damage to your data; or
• Special, incidental, or indirect damages or for any economic consequential damages (including loss of profits or savings), even if informed of the possibility.
Some jurisdictions do not allow the exclusion or limitation of liability, incidental damages, or consequential damages, so the above limitations and exclusions may not apply to you (Customer).
EXCEPT FOR THE FOREGOING LIMITED WARRANTY, ALL PRODUCTS ARE PROVIDED “AS IS” WITHOUT WARRANTY OF ANY KIND, EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION ANY WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR NONINFRINGEMENT, EACH OF WHICH ARE HEREBY EXPRESSLY DISCLAIMED.

Any claim under this Limited Warranty must be submitted before the end of the warranty period to OWC at the address listed below. The product must be insured, and shipped freight prepaid and securely packaged. Customer must call for a Return Material Authorization Number (RMA) before shipping any product, and include this number, a copy of Customer’s sales slip and a description of the problem Customer is experiencing with the Product. As Customer’s sole remedy (and OWC’s sole liability) under this Limited Warranty, OWC will use reasonable commercial efforts to repair, replace or refund within thirty (30) days of receipt of the Product. OWC may in its discretion offer advance replacement for a product, where OWC will ship a replacement product to Customer prior to receiving the defective product from Customer (“Advance Replacement”). In connection with an Advance Replacement, OWC may require Customer to provide a credit card to charge against in the event that any defective product is not returned by Customer.

 

2. Software Support and Maintenance Services. Support and Maintenance Services consist of using reasonable efforts to provide (a) Error Correction and Telephone Support provided to a single consistent technical support contact concerning the installation and use of the then current release of the Software and the Previous Sequential Release, (b) E-mail Support, (c) Web Support, and (d) Software updates that OWC in its discretion makes generally available to its support and maintenance customers without additional charge (collectively, “Support”). OWC shall exercise commercially reasonable efforts to address any Error reported by Customer in the current unmodified release of the Software as follows: OWC shall respond within 4 Business Hours and promptly commence the following procedures: (i) assign OWC engineers to correct the Error; (ii) provide Customer with periodic reports on the status of the corrections; and (iii) initiate work to provide Customer with a Workaround or Fix. Support plans covering hours outside of Business Hours may be offered for an additional fee.
If OWC believes that a problem reported by Customer may not be due to an Error in the Software, OWC will so notify Customer. At that time, Customer may (1) instruct OWC to proceed with problem determination at its possible expense as set forth below, or (2) instruct OWC that Customer does not wish the problem pursued at its possible expense. If Customer requests that OWC proceed with problem determination at its possible expense and OWC determines that the error was not due to an Error in the Software, Customer shall pay OWC, at OWC’s then-current and standard consulting rates, for all work performed in connection with such determination, plus reasonable related expenses incurred therewith. Customer shall not be liable for (i) problem determination or repair to the extent problems are due to Errors in the Software; or (ii) work performed under this paragraph in excess of its instructions; or (iii) work performed after Customer has notified OWC that it no longer wishes work on the problem determination to be continued at its possible expense (such notice shall be deemed given when actually received by OWC). If Customer instructs OWC that it does not wish the problem pursued at its possible expense or if such determination requires effort in excess of Customer’s instructions, OWC may, at its sole discretion, elect not to investigate the error with no liability therefor.

 

3. Exclusions. OWC shall have no obligation to support: (i) altered or damaged Software or any portion of any Software incorporated with or into other software and/or hardware other than Products; (ii) any software that is not the then current release of the Software or immediately Previous Sequential Release; (iii) Software problems caused by Customer’s negligence, abuse or misapplication, use of the Software other than as specified in OWC’s user manual or other causes beyond the control of OWC; (iv) Software installed on any hardware that is not supported by OWC; or (v) third party products not provided by OWC.

 

 4. Definitions.
• “Business Hours” means the hours from 7:00AM and 7:00PM Central Time, Monday through Friday.
• “E-mail support” means ability to make requests for technical support assistance by e-mail, including automated reply and/or ticketing generation, at any time (with reasonable efforts by OWC to respond within one business day) concerning the installation and use of the then current release of any Software and the Previous Sequential Release.
• “Error” means an error in the Software which significantly degrades such Software as compared to OWC’s published performance specifications.
• “Error Correction” means the use of reasonable commercial efforts to correct Errors.
• “Fix” means the repair or replacement of object or executable code versions of the Software or documentation to remedy an Error.
• “Previous Sequential Release” means any release of the Software which has been replaced by a subsequent release of the same Software. Notwithstanding anything else, a Previous Sequential Release will be supported by OWC only for a period of twelve (12) months after release of the subsequent release.
• “Telephone Support” means technical support telephone assistance between 7:00AM and 7:00PM Central Time on OWC’s regular business days concerning the installation and use of the then current release of the Software and the Previous Sequential Release.
• “Web Support” means information available on the World Wide Web, including access to product and support forums, frequently asked questions, product documentation and bug reporting.
• “Workaround” means a change in the procedures followed or data supplied by Customer to avoid an Error without substantially impairing Customer’s use of the Software.

 

THIS ATTACHMENT IS AN ADDITIONAL PART OF THE AGREEMENT AND DOES NOT CHANGE OR SUPERSEDE ANY TERM OF THE AGREEMENT EXCEPT TO THE EXTENT UNAMBIGUOUSLY CONTRARY THERETO.