Other World Computing, Inc.

Terms & Conditions

TERMS AND CONDITIONS OF SALE

THIRD-PARTY SOFTWARE

OWC JELLYFISH LIMITED HARDWARE WARRANTY

SOFTWARE SUPPORT AND MAINTENANCE SERVICES

REMOTE ACCESS SUBSCRIPTION AGREEMENT

Other World Computing, Inc.

Terms and Conditions of Sale

These Terms and Conditions of Sale 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 or sales order that references these terms and conditions and that is accepted by an authorized representative of OWC either directly or via an OWC portal or website (each, a “Sales Quotation” or “Sales Order”). Products may be obtained through 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 Sales Quotation or Sales Order. Unless otherwise stated on a quotation, quotations are valid for fourteen (14) days from the date issued, unless otherwise noted on the Sales Quotation or Sales Order. All prices are in U.S. dollars, and all payments are to be made in U.S. dollars, unless otherwise noted on the quotation, free of any restrictions. If you have applied and been approved for a terms account with OWC, the 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 Customer is late at a rate of 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 depending upon the Product description(s) as listed on the Sales Quotation or Sales Order.  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 Sales Quotation or Sales Order), OWC grants to Customer a personal, nonsublicensable, nonexclusive, perpetual right to use the software specified on the Sales Quotation or Sales Order (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. Confidential Information.

For purposes of this Agreement, “Confidential Information” means all information disclosed by either Party to the other Party, including the terms and conditions of this Agreement or any other agreement between the Parties, trade secrets of the Parties, any nonpublic information relating to a Party’s product plans, designs, ideas, concepts, costs, prices, finances, marketing plans, business opportunities, personnel, research, development or know-how and any other nonpublic technical or business information of a Party, or other information designated as Confidential Information by the disclosing Party.  Without limiting the generality of the foregoing, the following information will be deemed to be Confidential Information, even if not expressly so marked: the Content; the capabilities, technical descriptions and source code (if any) relating to either Party’s released or unreleased products or services; upcoming updates or offerings on the hardware; the marketing and promotion plans of each Party’s products or services; either Party’s financial information and business practices or policies; the Content, User Data, and each Party’s customer lists and customer information.

1. Confidential Information does not include information that:  (i) is now or subsequently becomes generally available to the public through no fault or breach on the part of the receiving Party; (ii) the receiving Party can demonstrate to have had lawfully in its possession without an obligation of confidentiality prior to disclosure hereunder; (iii) is independently developed by the receiving Party without the use of any Confidential Information of the disclosing Party as evidenced by written documentation; or (iv) the receiving Party lawfully obtains from a third party who has the right to transfer or disclose it and who provides it without any obligation to maintain the confidentiality of such information.

1. Each Party agrees that it will (a) not disclose, without the other Party’s prior written consent, the other Party’s Confidential Information to any third party; (b) use the other Party’s Confidential Information only to the extent necessary to perform its obligations or exercise its rights under this Agreement; (c) disclose the other Party’s Confidential Information only to those of its employees, and legal and financial advisors and other agents and contractors who need to know such information for purposes of this Agreement and who are bound by confidentiality obligations no less restrictive than this Section (6); and (d) protect all Confidential Information of the other Party from unauthorized use, access, or disclosure in the same manner as it protects its own confidential information of a similar nature, and in no event with less than reasonable care.

1. If this Agreement or any of its terms or any other Confidential Information must be disclosed by the receiving party in connection with legal proceedings or pursuant to a subpoena, order or a requirement or an official request issued by a court of competent jurisdiction or by a judicial, administrative, legislative, regulatory or self-regulating authority or body, the receiving Party shall (i) if permitted by applicable law, first give written notice of the intended disclosure to the disclosing Party, within a reasonable time prior to the time when disclosure is to be made, (ii) if permitted by applicable law, consult with the disclosing Party on the advisability of taking steps to resist or narrow such request, and (iii) if disclosure is required or deemed advisable, reasonably cooperate with the disclosing Party in any attempt that it may make to obtain an order or other reliable assurance that confidential treatment will be accorded to designated portions of the Confidential Information or otherwise be held in the strictest confidence to the fullest extent permitted under the laws, rules or regulations of any other applicable governing body.

1. Both Parties acknowledge that the unauthorized disclosure or use of Confidential Information could cause irreparable harm and significant injury, the precise measure of which may be difficult to ascertain.  Accordingly, each Party agrees that the aggrieved Party shall have the right to seek injunctive relief from any breach of the confidentiality obligations of Sections 8 & 9, in addition to all other rights and remedies to which it may have.  Both Parties agree that each has and shall retain ownership of all of its own Confidential Information, and that upon the expiration or termination of this Agreement, each Party shall return or destroy, at the disclosing party’s election, and shall not retain in any form the Confidential Information of the other Party.  Each Party will certify in writing to the other party that the Confidential Information has been returned or destroyed in its entirety.

1. 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.

1. 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, OWC 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 shipment or delivery (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, 8, and 9.

Exhibit A

Third-Party Software

1)     Centos7

2)     openZFS

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

 

Signiant 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 OWC Jellyfish Media. Media Engine shall not be used by OWC in any other software product but OWC 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 

OWC Jellyfish Limited Hardware Warranty 

 

This OWC Jellyfish Limited Hardware Warranty applies to any customer (“Customer”) who is entitled to receive a Warranty from Other World Computing, Inc. (“OWC”) for specific OWC Jellyfish product(s) (the “Product”) pursuant to the Sales Quotation or Sales Order between Customer and OWC that references these Terms (an “Agreement”).

 

OWC provides a limited warranty for all OWC Jellyfish products (“OWC Jellyfish Products”), as follows: for a period of three (3) years following the date of delivery of the OWC Jellyfish Product to the original end user, OWC warrants that the OWC 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 OWC 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 located at Software Support and Maintenance Services.

 

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;
• 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 8 Galaxy Way, Woodstock, IL 60098. The product must be insured, and shipped freight prepaid and securely packaged. Customer must call or email for a Return Material Authorization Number (RMA) before shipping any product, and include the RMA, 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.

 

Customer shall not make any modifications or repairs to the hardware without first calling Customer Service at (818) 741-2858, or by submitting a ticket through OWC Jellyfish support located at https://jellyfish.support, for guided assistance and directions. It shall be at the sole discretion of the Company whether the Customer is advised to repair the equipment, or whether the Company replaces the hardware or the Company itself repairs the hardware. In the event the Customer installs any third-party hardware not supplied by OWC, this warranty will be void.

 

Exhibit C

Software Support and Maintenance Services 

1. Software Support and Maintenance Services.  

 

These Software Support and Maintenance Terms are governed by the Other World Computing Inc. Terms and Conditions located at https://www.lumaforge.com/terms-conditions. Customer is not entitled to support services unless Customer has ordered and paid for such services as provided on the Sales Quotation or Sales Order. To the extent OWC has become obligated for support, the following will apply with respect to the Products so long as they remain OWC’s standard terms for support and the Customer is in full compliance with its Agreement.

 

Software 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.

 

1. Software Support and Maintenance Services Terms.

 

Support for Software will be provided by OWC solely during the applicable Support Term (as defined below) in accordance with (i) the support package selected and paid for by Customer, and (ii) OWC’s Support terms for such Software located at https://www.lumaforge.com/jellyfish/support/tower, as such terms may be updated from time to time by OWC. 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 Sales Quotation or Sales Order (or otherwise directed by OWC), it may be required to contact such Channel Partner directly for purposes of obtaining support.

 

2. 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.

Any guidance or direction OWC provides to Customer will only be based on the information provided by Customer to OWC as OWC’s Customer. Many factors in your environment are unknown to OWC and can affect advice, problems, outcomes, or recommended solutions. OWC cannot and will not accept any culpability or responsibility due to potential omissions or misunderstandings. Also, be advised that technology changes. As a result of these changes in technology, products Customer is using might be affected both directly and indirectly. OWC cannot and will not be responsible or liable for any consequences that can occur due to any change in technology, or in conjunction with the use of information provided by OWC under these circumstances. Proceeding with communications, orders, and interactions between Customer and OWC is indication that you understand and agree with this statement.

 

1. Definitions.
2. “Business Hours” means the hours from 8:00AM and 6:00PM Pacific Time, Monday through Friday.
3. “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.
4. “Error” means an error in the Software which significantly degrades such Software as compared to OWC’s published performance specifications.
5. “Error Correction” means the use of reasonable commercial efforts to correct Errors.
6. “Fix” means the repair or replacement of object or executable code versions of the Software or documentation to remedy an Error.
7. “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.
8. “Telephone Support” means technical support telephone assistance between 8:00AM and 6:00PM Pacific 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.
9. “Support Term” means either the one (1), three (3), or five (5) year Software Support and Maintenance Plan based upon which plan the Customer selected as specified on the Sales Quotation or Sales Order. 
10. “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.
11. “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.

  

Exhibit D

Remote Access Subscription Agreement

 

This Remote Access Subscription Agreement is governed by the Other World Computing Inc. Terms and Conditions located at https://www.lumaforge.com/terms-conditions. This Remote Access Subscription Agreement (this “Agreement”) contains the terms and conditions that govern your access and use of Other World Computing Inc.’s (“OWC”) Remote Access (the “Services”) and is an agreement between OWC and you or your entity (“you” or “your”). This Agreement takes effect when you click an “I Accept” button or check box presented with these terms or, if earlier, when you use any of the Services beyond the seven (7) day free trial period (the “Effective Date”). You represent to us that you are lawfully able to enter into contracts (e.g., you are not a minor). If you are entering into this Agreement for an entity, such as the company you work for, you represent to us that you have legal authority to bind that entity. You are not entitled to Remote Access services unless you have ordered and paid for such services as provided in the Agreement.

 

1. OWC Services. This is a legal Agreement between You and OWC for use of the OWC Remote Access Services, a managed Virtual Private Network (VPN) that provides remote, restricted access to the OWC Jellyfish. This adds secure, remote access to the OWC Jellyfish-based storage workflow while retaining both the performance and security of the OWC Jellyfish system's local environment. Because use of the Services involves hardware, software, and Internet access, your ability to use the Services may be affected by the performance of these elements. You acknowledge and agree that such system requirements, which may change from time to time, are your responsibility.  “Services” in this Agreement does not refer to or include any professional services or works for hire.  The Parties to this Agreement are independent contractors, and this Agreement shall not be construed to create a partnership, joint venture, employment, or principal agent relationship between the Parties.

1. Customer Information. You may be required to provide information in order to register for and/or use certain Services. You warrant that all such information is accurate.  All such information is your Confidential Information (as defined in Section 7(a) herein).

1. Credit Card Payment. OWC may, in its sole discretion, agree to allow you to pay fees by debit or credit card (that is, “charge” you). If you will pay by charge, you agree to provide OWC with an authorized credit card name, number and date of expiration, and proper debit authorization for purposes of allowing OWC to charge the applicable account to collect fees due under this Agreement. By authorizing OWC to charge a credit or charge card, you are authorizing OWC or its respective designated representatives or agents to automatically continue charging that card (or any replacement credit card account if the original card is renewed, lost, stolen, or changed for any reason by the credit-issuing entity, and such entity informs OWC of such new replacement card account) until this Agreement is terminated and all fees are paid in full. If your credit card fails to validly pay the fees due, OWC may terminate or suspend, in its sole discretion, your access to any of the Services. Current Subscription service fees can be found at https://www.lumaforge.com/blog/jellyfish-remote-access-faq.

1. Term and Termination of Agreement.

1. Term.  This Agreement will commence on the date you accept this Agreement and shall continue in effect for a period of twelve (12) months thereafter (the “Initial Term”), unless earlier terminated as provided herein, or as agreed upon on the Sales Quotation or Sales Order.  Unless either Party provides written notice of nonrenewal at least thirty (30) days prior to the end of the Initial Term, the Initial Term will automatically renew.  OWC reserves the right to increase the price of any service or fee prior to the commencement of any renewal term. OWC warrants the performance and specification of the Service, as referenced in Section 8 below, and you have thirty (30) days from the execution of this Agreement in which to cancel your subscription without penalty in the event OWC does not meet its obligations in the Service Warranty, as defined in Section 8, and cannot cure any reported and confirmed defects within a reasonable period of time.

1. Termination

1. i. Material Breach.  Either Party may terminate this Agreement if the other Party materially breaches its obligations hereunder and such breach remains uncured for thirty (30) days following receipt of written notice by the non-breaching Party specifying the nature of the breach.  OWC will provide the OWC Services, and you will provide prompt payment for such Services in compliance with the terms set forth in Section 3 above. Failure to meet these obligations will constitute a material breach and the terms of this Section will apply.  In the event that this Agreement is terminated pursuant to this Section due to OWC’s material breach, all future payment obligations by you shall also terminate, and to the extent that you have pre-paid for any portion of Services after the effective date of termination, such pre-payment shall be refunded to you by OWC.

1. ii. Bankruptcy.  Either Party may terminate this Agreement by written notice to the other upon: (i) the filing of any voluntary petition by the other Party or upon the filing of any involuntary petition against either Party under the Bankruptcy Code that is not dismissed within thirty (30) calendar days after filing; (ii) any appointment of a receiver for all or any portion of the other Party’s business or operations; (iii) any assignment of all or substantially all the assets of the other Party for the benefit of creditors; (iv) the other Party’s  adjudication as being bankrupt by a court with competent jurisdiction; (v) the other Party becomes insolvent; or (vi) the other Party ceasing all or substantially all of its operations.

1. Customer Responsibilities.

1. a. Account Number/Password. Except when your account number/password is obtained by a third party as a result of a breach of OWC’s physical or computer system security, you agree that you are solely responsible for maintaining the confidentiality of you username, account number and passwords. You agree to immediately notify OWC of any unauthorized use of your account of which you become aware.      

1. Content. Except when your account is accessed by a third party as a result of a breach of OWC’s physical or computer system security, you agree that you are solely responsible for the content of all visual, written or audible communications or any other material (“Content”) displayed, uploaded, exchanged, or transmitted on, through or by your account(s). Except in the case of a security breach of the type described in the immediately preceding sentence, under no circumstances will OWC be liable in any way for the Content, including, but not limited to, any errors or omissions in any Content, or any loss or damage of any kind incurred as a result of the use of or denial of access to the Content.

1. Communications. You agree that you will not use the Services to send unsolicited email outside your company or organization (e.g., “spam”) in violation of applicable law, falsify any email header information when sending emails (e.g., “spoofing”), or attempt to acquire sensitive information such as usernames, passwords and credit card details by masquerading as a trustworthy entity in an electronic communication (e.g., “phishing”).

                                  

1.  User Data.  Any and all User Data collected by OWC in connection with the Services provided by OWC to you and any User Data collected via the Services from you shall be your proprietary and Confidential Information.  For purposes of this Agreement, “User Data” shall mean any and all data collected by OWC, including, but not limited to, usernames, passwords and consumption data.  OWC will not sell or rent your User Data to anyone. OWC will not send User Data about you to other companies or people unless:

1. OWC has your consent to share the information;

1. OWC needs to share your information to provide the product or service you have requested;

1. OWC needs to send the information to companies who work on behalf of OWC to provide a product or service to you (Unless OWC communicates differently, these companies do not have any right to use the Individual Identifying Information OWC provides to them beyond what is necessary to assist OWC);

1. OWC responds to subpoenas, court orders or legal process;

1. OWC finds that your actions on OWC Services violate the terms of this Agreement.

1. OWC Warranties. 

1. OWC represents and warrants that OWC is the owner of or otherwise has the right to use and distribute all materials and methodologies used in connection with providing the Services.

1. OWC represents and warrants that OWC has obtained and shall maintain in full force and effect during the Term of this Agreement, such federal, state and local authorizations as are necessary to operate and to otherwise perform its obligations under this Agreement and will comply with all applicable federal, state and local laws in the performance of its obligations hereunder.

1. OWC represents and warrants that the OWC Services will perform to the specifications and accuracy of the functions referenced in the description of the Services in the OWC marketing materials found at https://www.lumaforge.com/blog/jellyfish-remote-access-faq  (collectively “Service Warranty”). OWC reserves the right to update its marketing materials at any time.

1. OWC represents and warrants that the Services are and will be free of any software disabling devices or internal controls, including, without limitation, time bombs, viruses, or devices of similar nature.

1. OWC represents and warrants that the Software and Services (other than information or materials supplied by you and reproduced accurately in the Services) as provided to you hereunder shall not infringe upon any third-party copyright, patent, trademark, trade name, trade secret or other proprietary right.

1. OWC represents and warrants that OWC has the right to enter into this Agreement and to render the Services hereunder, and that there is not and will not be any impediment to OWC’s performance of its obligations hereunder.

1. OWC represents and warrants that it will use all technical, administrative and physical safeguards and controls, commensurate with the nature of the User Data, to prevent unauthorized access to and use of such data.

1. Warranty Disclaimer. EXCEPT AS EXPRESSLY PROVIDED HEREIN, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, YOU UNDERSTAND AND AGREE THAT THE SERVICES AND THE SOFTWARE, ARE PROVIDED “AS IS” AND “AS AVAILABLE.” TO THE EXTENT NOT PROHIBITED BY APPLICABLE LAW AND, EXCEPT AS EXPRESSLY PROVIDED FOR IN THIS AGREEMENT, THE PARTIES EXPRESSLY DISCLAIM ALL WARRANTIES OF ANY KIND, EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, ANY WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE OR NON-INFRINGEMENT.

1. General.

1. OWC Copyright. All Services, text, software, music, sound, photographs, video, graphics or other material contained in either sponsor advertisements or commercially produced information presented to you through the Services (collectively, "Content") by OWC or its advertisers are protected by copyright, trademark, patent, and/or other intellectual property laws and you are permitted to use the Content only as expressly authorized.  OWC's trademarks, websites, corporate names, trade names, domain names, logos, and service marks ("Marks") are the property of OWC. You may not use OWC’s marks without OWC’s prior written consent. You may not copy, reproduce, distribute, or create derivative works from this Content without express written authorization by OWC or such advertiser.

1. Your Copyright.  You retain all rights, title and interest in the Content, which you submit, post or display on or through, the Services, including, without limitation, copyrights, trademarks, trade secrets and/or other intellectual property rights. Except as permitted by applicable law, you may not post, modify, distribute, or reproduce in any way copyrighted material, trademarks, rights of publicity or other proprietary rights owned by third parties without obtaining the prior written consent of the owner of such proprietary rights. OWC may deny access to the Services to any User who is alleged to infringe another party’s copyright. Without limiting the foregoing, if you believe that your copyright has been infringed, you shall immediately contact in writing OWC’s Legal Department describing the disputed use, that you have a good faith belief that the disputed use is not authorized by the copyright owner, its agent, or the law and that you are the copyright owner or authorized to act on the copyright owner’s behalf.  OWC’s “Legal Department” for notice of claims of copyright infringement can be reached as follows: Other World Computing, Inc., Attn: Legal Department, 8 Galaxy Way, Woodstock, Illinois 60098.

1. Use of the Services. You may use the Services only as permitted under the terms and conditions of this Agreement or other written agreements between you and OWC. You will not resell, distribute, use on a timeshare or service bureau basis, or otherwise directly generate income from the Services. You will not modify, make derivative works of, disassemble, decompile or reverse engineer the Services or any component thereof (except to the extent expressly permitted by law). Unless you obtain a special license from OWC to do so, you are absolutely precluded from distributing the OWC Software or Services to any entity not immediately authorized by this Agreement.

1. Legal Compliance. You agree that you will comply with all applicable laws and regulations in connection with your use of the Services, including, but not limited to: (a) with respect to personally identifiable information sent or received by you, all applicable privacy laws and regulations, and (b) laws relating to the use of internet services, if applicable. You acknowledge that the Services are subject to U.S. and local export control laws and regulations. You will not export, re-export, divert, transfer or disclose any portion of the Services or any related technical information or materials, directly or indirectly, in violation of any applicable export law or regulation.

1. OWC Software. In order to use certain Services, you may be required to download and install certain OWC software (“Software”). In that event, OWC hereby grants to you a limited, personal, non-exclusive, non-transferable, non-sub licensable license to use the Software as part of the Services in accordance with the terms of this Agreement. You may not use the Software for anything other than in conjunction with your lawful use of the Services. You may not use, or attempt to use, the Software in conjunction with any device, program or service designed to circumvent technological measures employed to control access to, or the rights in, a content file or other work protected by the copyright laws of any jurisdiction. All rights not expressly granted by OWC are hereby reserved. You agree that you will not take any action to interfere with OWC’s ownership of or rights in the Software.