1. TERMS AND CONDITIONS
1.1 These Terms and Conditions govern the contractual relationship between IP Fabric, Inc, if these Terms and Conditions are governed by the laws of the state of New York pursuant to Section 4, or any one of its subsidiaries or affiliated companies, including without limitation IP Fabric s.r.o., if these Terms and Conditions are governed by the laws of the Czech Republic pursuant to Section 7.4, (collectively referred to as “IP Fabric”), and its customer, i.e., legal entities or individual entrepreneurs (the “Customer”) in connection with the installation of IP Fabric software solution which is used to analyze network infrastructure (the “Product”).
1.2 The Product’s use by the Customers is subject to the terms of IP Fabric’s End User License Agreement available at https://www.wordpress-625423-2150886.cloudwaysapps.com/legal/eula (the “EULA”). In accordance with the provisions of EULA, the Product is provided for a specified license period and entitles the Customer to use the most current version of the Product including any potential updates and any operational support that may be provided by IP Fabric.
1.3 These Terms and Conditions and the EULA apply to all purchases of Product subscriptions by the Customer and their subsequent use of such Products. Customers are advised to read these Terms and Conditions carefully. By purchasing or ordering any Product subscriptions from IP Fabric, the Customer indicates its acceptance to be bound by these Terms and Conditions and the EULA. They form a legal agreement between the Customer and IP Fabric and can only be amended with IP Fabric’s consent.
2. CONTRACTUAL RELATIONSHIP
2.1 IP Fabric provides services pertinent to the Product based on the offer sent by IP Fabric to the Customer (the “Offer”). The Offer is valid for the period of time specified therein, within which the Customer may send to IP Fabric an order for purchase of subscription to the Product (the “Order”). General terms and conditions of the Customer (if there are any) shall notapply to the transactions contemplated by these Terms and Conditions, and the EULA. The contractual relationship between the Customer and IP Fabric is concluded only in case a complete agreement is reached by the Customer and IP Fabric.
2.2 The Order is deemed accepted by IP Fabric when IP Fabric sends confirmation of the Customer’s Order (typically by e-mail); the Order is also confirmed by installing the Product or sending an invoice to the Customer (whichever occurs first) (the “Order Confirmation”). The duration of the contractual relationship between IP Fabric and Customer shall correspond to the license period as stated in the Order and the term of the license shall also be governed by the EULA (the "Contract Period").
2.3 The content of the contractual relationship between the Customer and IP Fabric consists of the respective Offer, the Order, these Terms and Conditions and EULA (the “Contractual Relationship”). In the case of a conflict with the Offer, the confirmed Order takes precedence. Along with the provision of services pertinent to the Product as stated in these Terms and Conditions, the Customer acquires non-exclusive and limited authorization to use the Product, including related databases, according to the EULA.
2.4 The license expiration date is indicated for referential purposes in the user profile available on each page of the user interface. A warning will be displayed 30 days before the end of the license term. The warnings are visible on every page of the user interface. After the license expires, it is no longer possible to log in to the system user interface.
3. PRODUCT INSTALLATION PROCEDURE
3.1 IP Fabric shall perform the Product installation in the Customer’s environment after the Order Confirmation, no later than 5 business days from the date of the Customer’s notification of readiness to install the Product. During Product installation, IP Fabric shall make available to Customer the acceptance protocol detailing the particulars of the Product Installation and confirming acceptance of the Product (the “Acceptance Protocol”) which shall be completed by Customer upon completion of Product installation. The Customer shall provide other requested cooperation upon prior notice of IP Fabric delivered at least 3 business days in advance. The Customer undertakes to entrust competent persons on its behalf to cooperate with IP Fabric on installation of the Product, such competent persons shall be those responsible for the operation and administration of the network infrastructure.
3.2 The Product installation shall be deemed completed at the moment of providing the Product’s license key to the Customer, or on confirmation of the Acceptance Protocol by the Customer, whichever happens Customer’s completion of the Acceptance Protocol or Customer’s failure to provide any rejection, review or acceptance of the Product within 24 hours of such Product being provided to Customer, or the use of the Product and/or service by Customer shall be deemed to mean that Customer has automatically accepted or approved any such Product and/or service(s). IP Fabric shall have a 5 days cure period to remedy any Products and/or Services that have been rejected by Customer.
3.3 The Product is distributed as a virtual machine and is intended for deployment in the Customer’s virtualized environment. The computing power, operating memory and storage space requirements depend on the number of managed devices and the complexity of the network topology. The requirements for the allocated computing resources that are to be procured by the customer are specified in the detailed Product documentation.
4. PAYMENT TERMS
4.1 The price for providing the Product is specified in the Offer. The prices indicated do not include VAT, which will be applied according to valid and effective legal regulations.
4.2 IP Fabric may issue to the Customer an invoice for the Product (the “Invoice”) as of the date of the Product installation, but no later than 5 days from the receipt of the Order, in electronic form, and send it to the customer by e-mail provided in the Order.
4.3 The Invoice is payable within the period specified therein, which shall not be less than 14 calendar days from the date of receipt of Invoice by the Customer, unless otherwise agreed. The sum due under the Invoice shall be paid by wire transfer to the bank account of IP Fabric and in the currency indicated in the Invoice, unless otherwise agreed.
4.4 In the event of delay in payment of the Invoice, in addition to the outstanding amount, the Customer agrees to pay IP Fabric a contractual penalty of 0.05% of the outstanding amount per day for the first 15 days of the delay, and subsequently 0.5% of the outstanding amount per day, unless another contractual penalty is agreed for such a case. This shall be without prejudice to any other claims by IP Fabric for damages in full.
4.5 If the Customer is delayed in payment of the Invoice by more than 30 days, such delay shall be deemed a material breach of the Contractual Relationship and IP Fabric shall have the right to terminate the Contractual Relationship with future effect. In the event of a material breach of the Contractual Relationship by the Customer, Customer agrees to pay IP Fabric a contractual penalty in the amount of the proportional part of the Invoice that accrues from the date of such material breach until the end of the Contract Period; this contractual penalty is payable within 3 days from the delivery of the termination notice by IP Fabric to the Customer.
5.1 IP Fabric’s warranties relating to the Product and its installation is limited to the warranties provided by IP Fabric in Section 3 of EULA.
5.2 EXCEPT AS SET FORTH IN SECTION 5.1 ABOVE, IP FABRIC MAKES NO WARRANTIES WITH RESPECT TO THE PRODUCT, THE INSATALLTION SERVICES OFFERED BY IP FABRIC OR ANY OTHER SUBJECT MATTER OF THIS AGREEMENT AND HEREBY DISCLAIMS ALL OTHER WARRANTIES, WHETHER EXPRESS, IMPLIED OR STATUTORY, INCLUDING, BUT NOT LIMITED TO WARRANTIES OF TITLE, NON-INFRINGEMENT, MERCHANTABILITY, SATISFACTORY QUALITY, FITNESS FOR A PARTICULAR PURPOSE (EVEN IF IP FABRIC HAS BEEN INFORMED OF SUCH PURPOSE), AND ALL WARRANTIES ARISING FROM COURSE OF DEALING, USAGE, OR TRADE PRACTICE. WITHOUT LIMITING THE FOREGOING, IP FABRIC MAKES NO WARRANTY OF ANY KIND THAT THE PRODUCT OR RESULTS OF THE USE THEREOF, WILL MEET CUSTOMER’S OR OTHER PERSONS’ REQUIREMENTS, OPERATE WITHOUT INTERRUPTION, ACHIEVE ANY INTENDED RESULT, BE COMPATIBLE OR WORK WITH ANY SOFTWARE, SYSTEMS, OR OTHER SERVICES, OR BE SECURE, ACCURATE, COMPLETE, FREE OF HARMFUL CODE AND DEFECT OR BE ERROR FREE.
5.3 TO THE MAXIMUM EXTENT PERMITTED UNDER APPLICABLE LAW, IP FABRIC SHALL NOT BE LIABLE FOR ANY INDIRECT, SPECIAL, EXEMPLARY, INCIDENTAL OR CONSEQUENTIAL LOSS OR DAMAGE OR FOR ANY LOST PROFITS, LOST SAVINGS OR LOSS OF REVENUES SUFFERED ARISING FROM OR IN ANY WAY CONNECTED WITH THIS TERMS AND CONDITIONS OR THE INSTALLATION OF THE PRODUCTS. THE LIMITATION OF LIABILITY IN THIS SECTION APPLIES REGARDLESS OF WHETHER IP FABRIC KNEW OF, OR COULD HAVE KNOW OF, THE POSSIBILITY OF THE DAMAGES AND APPLIES REGARDLESS OF WHETHER THE LIMITATION OF LIABILITY CAUSES ANY REMEDY TO FAIL OF ITS ESSENTIAL PURPOSE. SUBJECT TO THE FOREGOING, THE TOTAL AGGREGATE LIABILITY OF COMPANY ARISING UNDER OR IN CONNECTION WITH THE PERFORMANCE, NON-PERFORMANCE OR CONTEMPLATED PERFORMANCE SHALL IN NO EVENT EXCEED THE AMOUNTS PAID FOR THE PARTICULAR PRODUCT IN CONNECTION WITH WHICH THE LIABILITY AROSE. THIS SECTION SHALL SURVIVE THE TERMINATION OF THIS TERMS AND CONDITIONS FOR ANY REASON.
6.1 Customer agrees to defend, indemnify, and hold harmless IP Fabric and its affiliates, as well as the officers, directors, employees and agents of each, from and against any claims, actions or demands, including without limitation reasonable legal and accounting fees, alleging or resulting from the Customer’s violation of any applicable law or Customer’s breach of these Terms and Conditions. This indemnification provision does not apply to intentional or reckless acts or gross negligence on IP Fabric’s part.
7. FINAL PROVISIONS
7.1 IP Fabric reserves the right to change these Terms and Conditions from time to time without prior notice by changing them on the its website, provided that any such change will not affect any purchases the Customer has made before the change is implemented.
7.2 IP Fabric may assign the contract with the customer in its entirety to a third party, even if performance has already The customer shall not assign, pledge or otherwise encumber any of its claims against IP Fabric without IP Fabric’s prior written consent.
7.3 These Terms and Conditions and the EULA constitute the entire agreement between Customer and IP Fabric concerning the subject matter described hereunder and supersede all prior agreements. The rights and obligations of the parties under these Terms and Conditions are in addition to the rights and obligations provided for in the EULA and in case of conflict between them, the provisions of EULA shall prevail. In case of conflict between the EULA and the Order, the provisions of Order shall take precedence over the EULA where it expressly provides that it shall, otherwise the EULA shall apply.
7.4 These Terms and Conditions are governed by the laws of the state of New York. without regard to any conflict of laws principles. If (a) you are not a U.S. citizen or entity; (b) you do not reside in the U.S.; (c) you are not accessing the Service from the U.S.; and (d) you are a citizen or entity of any European Union country, the governing law of this Agreement is the law of the Czech Republic, but excluding any conflict of law rules.
7.5 The UN Convention on Contracts for the International Sale of Goods shall not apply and is hereby expressly excluded from any interpretation of these Terms and Conditions. Business practices shall not take precedence over any provisions of the law. Both parties assume the risk of a change in circumstances and thus are not entitled to claim a change in an obligation due to a material change in circumstances.
7.6 If these Terms and Conditions are governed by laws of the state of New York pursuant to Section 7.4, all disputes arising from or relating to these Terms and Conditions shall be submitted for arbitration, solely. Demand shall be made to the American Arbitration Association and shall be conducted in New York by one arbitrator(s), unless IP Fabric and the Customer mutually agree otherwise. Arbitration shall be in accordance with the commercial rules of the American Arbitration Association. The Award of the Arbitrator shall be final and judgment may be entered upon it in any court having jurisdiction thereof, and the prevailing party shall be entitled to costs and reasonable attorney's fees arising out of such arbitration.
7.7 If these Terms and Conditions are governed by laws of the Czech Republic pursuant to Section 7.4, all disputes arising from or relating to these Terms and Conditions shall be finally decided with the Arbitration Court attached to the Czech Chamber of Commerce and the Agricultural Chamber of the Czech Republic according to its Rules by three arbitrators in accordance with the Rules of that Arbitration Court. IP Fabric and the Customer agree that the arbitration award may be reviewed by other arbitrators at the request of either party. The request for review shall be submitted by the requesting party to the other party and also to the arbitral tribunal no later than fifteen (15) days from the date on which the arbitration award was received. The Rules of that Arbitration Court will apply. The reviewers may change or confirm the contested judgment by an arbitration award. The arbitral award made in the proceedings under this paragraph is final and binding. If one of the parties fails to submit a request for review pursuant to the preceding paragraph in due time, the arbitral award given in the original arbitration shall be final and binding.
7.8 The present Terms and Conditions shall take effect on September 1, 2020