End User Terms and Conditions
ORDERING TERMS AND CONDITIONS AND GOVERNING TERMS
The CA Offerings, (and any hardware components if included within this Order), will be delivered either in tangible media FCA SD (FCA Shipping Dock), as defined in INCOTERMS 2010, from the CA shipping point stated in this Order or by electronic delivery (ESD). End User agrees to be responsible for all shipping, customs, duties, and import clearances. Title and risk of loss to any hardware components, if included, will pass upon delivery to the carrier at CA’s shipping location. For non-US End Users, title to the hardware components will transfer when the same leave the national territory of the US. End User agrees to pay any sales, use, value added, consumption, ISS, PIS, confins and any similar taxes in addition to the fees when such payments are due.
The procurement and use of these offerings are governed by these ordering terms and conditions as well as: (i) the CA terms and conditions published at https://broadcom.com/licensing, or (ii) the fully executed agreement by and between You and CA or Symantec governing the CA or Symantec branded offerings ordered as amended, including by the Additional Terms hereon (collectively, the “Governing Contract(s)”). Any terms that may appear on Your purchase order that vary from or purport to add to the Governing Contract(s) (including, without limitation, pre-printed terms) are deemed not appended, inapplicable and void.
MANDATORY FLOW DOWNS FOR ADDITIONAL TERMS FOR END USERS
For any Order for a CA offering for an end user utilizing a fully executed agreement by and between CA and such end user: Any prior CA party to Your fully executed CA Agreement shall be replaced, if not already the contracting party with the following entity: (a) North America – CA, Inc.; (b) Latin America excluding Brazil – CA, Inc; (c) Brazil – CA Programas de Computador; (d) Europe, Middle East and Africa – CA Europe Sarl; and (e) Asia Pacific and Japan – CA (Singapore) Pte Ltd.
The following clause hereby amends the referenced master and applies to all pre-existing transactions currently in place between the parties.
End User and/or Partner may terminate this Agreement provided that End User also terminates each and all other agreements (direct or indirect or whether or not related to this Agreement) under which End User may procure any CA offering (but in all cases excluding any hardware offerings and associated support contracts therefore) together with each and all Transaction Documents (or any order forms or other ordering documents) in effect between the Parties as of the date of termination (collectively, for purposes of this section, the “Agreement”), without cause and without further charge or expense at any time, immediately upon written notice to CA sent to [email protected]. On or after the termination date, with the exception of any fully paid-up Perpetual Licenses if the termination is effective after the initial Term, End User must either: a) delete all full or partial copies of the CA Software from all computing or storage equipment, and verify such deletion in a statement signed by a Vice-President or a duly authorized representative and sent to [email protected], or b) return to CA all full or partial copies of the CA Software. Once End User’s verification or the CA Software copies are received, CA will pay End User or CA Partner a pro-rata refund of any License, SaaS and/or Support fees End User or CA Partner pre-paid (“Refund Fees”) in accordance with the paragraph below. Refund Fees will be calculated on the number of months remaining in the Term (which for the purposes of this calculation will be deemed to commence from the date End User’s verification or the CA Software copies are received) of the Transaction Document eligible for the refund. If the CA Software is licensed under a Perpetual License, End User or CA Partner as appropriate, will receive a prorated refund of the License Fee paid to CA only if notice of termination is issued during the initial Term of the applicable Transaction Document. Notwithstanding the foregoing paragraph, if the Agreement is terminated without cause, neither Party shall have further obligations under the Agreement, except that the Parties shall remain bound by the obligations within the Survival section of this Foundation Agreement.
Refund Fees will be paid within sixty (60) days to End User (or CA Partner who will process the invoicing or reimbursement of fees to End User as appropriate and under the commercial terms between the CA Partner and End User), from the date End User’s verification or the CA Software copies are received, and any unpaid fees reflecting the CA offerings delivered prior to the termination date shall become immediately due.
CA is authorized to use the End User trademarks, service marks, logos, certifications, designations and insignias in connection with press and earnings releases. In addition, CA is authorized to use a specific designation (such as preferred business partner etc.) it may have in describing its relationship to End User.
ADDITIONAL EXPORT REQUIREMENTS
In furtherance of your contractual and legal obligation to strictly comply with U.S. law relating to export, re-export, and transfer, You understand that CA will not accept and you agree not to submit orders if (a) You are military end users of China, Russia or Venezuela for products with ECCN starting with 5D992, or (b) where you know or should have knowledge that such products are intended or likely to be transferred or resold to such end users.
PAYMENT INFORMATION
Notwithstanding anything contrary in the Agreement, payment terms will be net 30, date of invoice. A&I reserves the right to change credit or payment terms at A&I’s discretion if End User’s financial condition or previous payment history so warrant. In the event a payment due date falls on a weekend or a holiday the payment shall be payable by End User to A&I on the business day immediately prior to such date. End User shall wire payments and payment remittance in accordance with the payment terms on the invoice. End User shall notify A&I in writing within 5 days after receipt of any invoice that is materially deficient and in good faith prevents End User from making timely payment. If and when appropriate, A&I shall issue a revised invoice as soon as practically possible, which will remain payable on the original due date or such later date as A&I may provide on the revised invoice.
PURCHASE ORDER AND PAYMENT
End User shall issue and provide A&I Solutions: i) a signed End User End User Registration Form, and/or ii) a Purchase Order for the full term and total fees that are due. A&I’s acceptance of a Purchase Order and/or fully executed End User End User Registration Form shall be deemed to be acceptance of the Agreement. Failure to timely remit payment of all amounts set forth in the Payment Schedule after written notice by A&I Solutions and a reasonable opportunity to remit such payment by End User, to the maximum extent permitted by applicable law, relieve CA of any and all support obligations hereunder and all End User usage rights will be suspended until payment is tendered at which time usage rights shall recommence. A&I reserves the right to impose late fees on any past due amounts. Purchase Order must reference Quote Number.
ANNUAL FEE INCREASES
During the term for the CA/Symantec offerings above, CA may increase the fees hereunder for such offerings up to 7% annually by providing End User and Partner with advance notice including through pricing notices posted at CA support site no less than 90 days prior to such changes taking place but in no event will CA purport to effect a price change while in any particular calendar year (i.e., price changes will only be effective on January 1 of the year following that in which notice was provided).
ASSIGNMENT
Neither Party shall assign the Agreement or any of its rights or delegate any of its duties under the Agreement without the prior written consent of the other Party, except that CA shall have the right to assign the Agreement or any of its rights or delegate any of its duties under the Agreement at any time to any CA Affiliate(s), or to a successor in interest of all or substantially all of the business to which the Agreement relates. Subject to the foregoing, the Agreement will be binding upon, enforceable by, and inure to the benefit of the parties and their respective successors and assigns. Any attempted assignment in violation of this section shall be null and void. “Affiliate” shall mean any person or entity which directly or indirectly owns, controls, is controlled by, or is under common control with a party, where control is defined as owning or directing more than fifty percent (50%) of the voting equity securities or a similar ownership interest in the controlled entity.
MAINFRAME REPORTING
For all CA mainframe software, End User shall provide to CA via upload to scrt.broadcom.com within seven (7) days after the end of each month the IBM SCRT product report for ISV programs for End User’s z/OS mainframe environment. For End Users running CA mainframe VSE/VM software, End User shall provide to CA via upload to scrt.broadcom.com annually on or before each anniversary date a listing of the manufacturer, model, serial number and LPAR names of each CPU located at, or remotely accessing, each End User Site.
MIGRATION
End User understands that CA may migrate a previously licensed software (“Original Product(s)”) to a new software product (“Migrated Product(s)”). It is the End User’s responsibility to understand which products herein may be migrated products. Any migrated products are provided in consideration of Original Product(s) being terminated. End User shall cease using and de-install the Original Product(s) following a transition period not to exceed ninety (90) days, as of the date of receipt of the Migrated Product(s); The Migrated Product(s) are subject to the Agreement, the Specific Program Documentation (the “SPD”) applicable to the CA Software and Maintenance, located at CA’s website address at https://www.broadcom.com/licensing and this transaction document including all financial obligations relating to the Original Product(s) which remain valid and enforceable and are applicable to the Migrated Product(s). Prior to signature of this Order, End User should ensure it understands the migration for the products licensed herein. Execution of this order shall constitute acceptance of such migration and shall also constitute a representation and warranty by End User that it has reviewed and fully understands same. Migration path for licensed products can be obtained at https://www.broadcom.com/docs/product-migration.
SOFTWARE SUPPORT AVAILABILITY
End User understands that CA may either (i) stabilize software in which no future enhancements, versions, releases, development, or service packs are planned, or (ii) the software may be end of life or a particular version is end of service in which CA will no longer provide (a) operational or technical support and (b) develop and provide new enhancements, features, upgrades, service packs, and fixes for the software offering (“Software Support Availability”). Prior to acceptance of this Order, End User should ensure it understands the support for the products licensed herein. Acceptance of this order shall constitute acceptance of such support and shall also constitute a representation and warranty by End User that it has reviewed and fully understands same. Software Support Availability for licensed products can be obtained at https://www.broadcom.com/docs/end-of-support.
PERSONAL DATA
End User acknowledges and agrees that CA will process Personal Data as part of the provision of the CA Offerings in accordance with CA’s Privacy Policy located at: https://www.broadcom.com/ company/legal/privacy. End User hereby authorizes CA to make necessary transfers of Personal Data and that any CA Affiliates and subcontractors may process such Personal Data for the purposes of providing the CA Offering contemplated under the Agreement. CA complies with the provisions of the General Data Protection Regulation (“GDPR”), and/or the Swiss Federal Data Protection Act and/or other applicable local legislation, with respect to such transfers. Where CA is a processor for End User under the GDPR, and/or the Swiss Federal Data Protection Act and/or other applicable local legislation, CA’s processing shall be subject to and in accordance with CA’s global Data Processing Addendum (“DPA”), including the relevant Standard Contracting Clauses (“SCC”) located at: https://www.broadcom.com/company/legal/privacy/data-transfers for international data transfer incorporated therein. End User has been advised that during the term of the Agreement CA will collect Personal Data and process it as a Controller pursuant to the Privacy Policy and to the extent permitted by GDPR, and/or the Swiss Federal Data Protection Act and/or other applicable local legislation.
HARDWARE DELIVERY
CA will endeavor to ship CA hardware products for delivery on CA’s acknowledged delivery date (“Acknowledged Date”). CA may make partial deliveries, which may be separately invoiced. Delivery delay will not relieve the End User of its obligation to pay for the CA hardware products or to accept subsequent deliveries. Any lead times or shipment dates provided by CA and/or Partner are estimates only and CA and/or Partner are not liable for any loss, damage, costs or expenses for any failure to deliver in accordance with the given lead time or Acknowledged Date. If CA cannot meet the Acknowledged Date, Partner, End User and CA may agree to alternative arrangements. However, in the event that CA’s ability to supply CA hardware product(s) becomes constrained, CA may, as CA deems reasonable, reduce quantities or delay shipments to End User and may allocate production and delivery among its End Users.
HARDWARE ORDERS
All orders placed are non-cancellable and non-refundable. End User may not reschedule delivery of CA hardware product(s), unless CA and/or Partner give prior permission.
HARDWARE SUBSCRIPTIONS ONLY
The procurement and use of hardware subscription offerings are governed by the ordering terms and conditions located at https://www.anisolutions.com/hardware-subscription-terms-and-conditions/
SCOUTIT OFFERINGS ONLY
The procurement and use of ScoutIT offerings are governed by the ordering terms and conditions located at https://www.scoutitmonitor.com/terms/ as well as the privacy policy located at https://www.scoutitmonitor.com/privacy-policy/.
TO THE MAXIMUM EXTENT PERMITTED BY LAW, EXCEPT AS EXPRESSLY WARRANTED HEREIN, ANY MATERIALS, SOFTWARE OR SERVICES A&I SOLUTIONS PROVIDES ARE WITHOUT WARRANTIES OF ANY KIND, EITHER EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO IMPLIED WARRANTIES OF MERCHANTABILITY, OR FITNESS FOR A PARTICULAR PURPOSE. IN NO EVENT SHALL A&I SOLUTIONS, INC. BE LIABLE FOR (a) CONSEQUENTIAL, EXEMPLARY, PUNITIVE, INCIDENTAL, INDIRECT OR SPECIAL DAMAGES OR COSTS, INCLUDING LOST PROFITS OR COSTS OF PROCUREMENT OF SUBSTITUTE GOODS, WHETHER OR NOT THE PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF THOSE DAMAGES OR COSTS; OR (b) ANY AMOUNT GREATER THAN THE FEES RECEIVED BY A&I SOLUTIONS FROM CUSTOMER IN THE TWELVE (12) MONTH PERIOD PRIOR TO THE CLAIM, WHETHER ANY REMEDY SET FORTH HEREIN FAILS OF ITS ESSENTIAL PURPOSE OR OTHERWISE.