Request PDF

Enter your information below and we will immediately send you a PDF version of this document.

E-mail

Company

Trillium+plus Terms and Conditions

Unless Customer has another valid agreement with Continuous Computing covering the purchase of the Products, the following terms and conditions will apply. Continuous Computing's sale of Products are governed by these Continuous Computing Terms and Conditions (the “Terms and Conditions”).

1. Definitions

"Delivery" means standard Continuous Computing shipping to the "Ship To" address specified in Customer's order.
“Development Use License” means the Software license granted under the terms set forth herein to Use the Software internally on the Hardware, but no right is granted to sublicense or distribute copies of the Software to any third party. Up to four (4) copies of the Software may be copied and Used on the Hardware that is purchased directly by Customer from Continuous Computing for development and test purposes related to the Products.
“Hardware” means the hardware elements contained in the Products, which hardware is either proprietary to Continuous Computing or third parties who have granted Continuous Computing the right to incorporate such hardware into the Products.
"License Fee" means the fee or fees designated by Continuous Computing for Use of Software. Different License Fees may apply to particular Software if more than one Software License is available for that Software.
"Products" means Hardware, Software, documentation, accessories, supplies, parts and upgrades that are determined by Continuous Computing to be available from Continuous Computing upon receipt of Customer's order. "Custom Products" means Products modified, designed or manufactured to meet Customer requirements.
"Software" means the object code copy of one or more software programs and related manuals and documentation together with all enhancements, upgrades and extensions as provided to Customer in association with its Customer’s order. Software is either a separate Product, included with another Product ("Bundled Software"), or fixed in a Hardware and not removable in normal operation ("Firmware").
"Software License" means the Software license grant and general license terms set forth herein. Each Software License may have a corresponding License Fee.
"Specifications" means specific Product technical information published in Continuous Computing Product manuals and technical data sheets in effect on the date Continuous Computing ships Customer's order.
"Support" means hardware maintenance and repair; Software updates and maintenance; and other standard support services provided by Continuous Computing. "Custom Support" means any agreed non-standard Support, including consulting and custom project services.
"Use" means the copying or duplicating of any portion of Software from storage units or media into Products for processing, or the utilization of any form of Software in the course of the operation of the Product.

2. Prices

Prices are valid for the period quoted by Continuous Computing in writing or for the applicable purchase agreement ordering period, whichever expires first. Product prices for an order remain valid for ninety (90) days from the original order date unless otherwise quoted by Continuous Computing. Change orders that extend Delivery beyond those validity periods become new orders at prices in effect when Continuous Computing receives the change orders. Support prices, except for Custom and prepaid Support, may be changed by Continuous Computing upon sixty (60) days written notice.
Prices are exclusive of, and Customer will pay, applicable sales, use, consumption, goods and service, value added or like taxes (except for taxes based on Continuous Computing’s income), unless Customer has provided Continuous Computing with an appropriate exemption certificate for the Delivery jurisdiction.

3. Orders

All orders are subject to acceptance by Continuous Computing. Product orders must specify Delivery to be no earlier than fourteen (14) days and no later than ninety (90) days from order date, unless otherwise agreed or quoted by Continuous Computing in writing.
Customer will specify Ship To addresses within the country where the order is placed, unless otherwise agreed in writing.

4. Delivery

Continuous Computing will make reasonable efforts to meet Customer's Delivery requirements, provided, however, Continuous Computing shall have no obligation to fulfill orders specifying delivery less than fourteen (14) days from the order date. If Continuous Computing is unable to meet Customer's Delivery requirements, alternative arrangements may be agreed. In the absence of such agreement, Customer's sole remedy is to cancel the order.

5. Shipment, Risk of Loss or Damage, and Title

6. Acceptance

All Products sold by Continuous Computing shall be deemed accepted by Customer at the time of shipment. Notwithstanding the foregoing, if Customer notifies Continuous Computing in writing within five (5) days after receipt of a Product that such Product is damaged, defective or cannot be made operational at the time of delivery, and if Customer complies with the procedures governing the return of the goods set forth in these Terms and Conditions, Continuous Computing shall either repair or replace such nonconforming Product, at its election, within a reasonable period of time after return of the Product to Continuous Computing. If Continuous Computing determines that after using reasonable efforts that the Product is irreparable or irreplaceable, then Continuous Computing shall credit Customer’s account for the purchase price of the Products. Any claims for shortages or incorrect Products ordered must be made to Continuous Computing in writing within five (5) days after receipt of Products.

7. Payment

Payment terms are subject to Continuous Computing credit approval. Payment is due thirty (30) days from Continuous Computing's invoice date, unless otherwise agreed to between the parties. Invoices not paid within such thirty (30) day period, shall be considered overdue and will be subject to a late charge assessed at a rate equal to the lower of 1.5% of the unpaid balance per month or the maximum rate allowed by applicable law. Invoices for contractual support services and maintenance will be issued in advance of the Support period. Continuous Computing may change credit or payment terms at any time when, in Continuous Computing's opinion, Customer's financial condition, previous payment record, or the nature of Customer's relationship with Continuous Computing so warrants. Upon any default by Customer hereunder, Continuous Computing shall have all rights and remedies of a secured party under the Uniform Commercial Code (California), which rights and remedies shall be cumulative and not exclusive.
Continuous Computing may discontinue performance if Customer fails to pay any sum due, or fails to perform under this or any other Continuous Computing agreement if, after ten (10) days written notice, the failure has not been cured.

8. Limited Warranties; Disclaimer

As to all Hardware purchased under these Terms and Conditions, a limited warranty applies. Continuous Computing warrants for a period of twelve (12) months after the date of Delivery (the “Hardware Warranty Period”) that Hardware manufactured and sold by it will materially conform to its Specifications. Continuous Computing’s liability under this warranty is limited to the repair of non-conforming Hardware or replacement of non-conforming Hardware with new or like-new Hardware, at Continuous Computing’s option, provided Customer follows the procedures outlined in the RMA Policy and Process available at the company’s website at www.continuouscomputing.com.
Any Hardware repaired or replaced pursuant to the above limited warranty shall be warranted for the remaining Hardware Warranty Period for the Hardware being repaired or replaced. Except as stated above, no hardware is accepted for analysis, replacement or repair without the written agreement of Continuous Computing.
Following the expiration of the Hardware Warranty Period, Customer may send Hardware to Continuous Computing for analysis, replacement or repair; provided, however, that any and all costs for shipping, inspection, and repair shall be paid by Customer at Continuous Computing’s then applicable standard rates and according to the procedures outlined in the RMA Policy unless Customer has purchased extended warranty coverage as agreed to by the parties.
Continuous Computing reserves the right to change the foregoing Hardware warranty. Such changes will affect only new orders.
Continuous Computing warrants that Software will not fail to execute its programming instructions due to defects in materials and workmanship when properly installed and used on the Product designated by Continuous Computing. Continuous Computing further warrants for a period of twelve (12) months from the date of initial deliver (the “Software Warranty Period”) that the Software will substantially conform to its relevant Specifications.
If Continuous Computing receives notice of defects or non-conformance to hardware Specifications, or substantial nonconformance to Continuous Computing-owned standard Software Specifications during the applicable warranty period, Continuous Computing will, at its option, repair or replace the affected Products. Customer will pay expenses for return of such Products to Continuous Computing. Continuous Computing will pay expenses for shipment of repaired or replacement Products. If the Product is found to be conforming, Customer shall pay the costs for shipping to and from Continuous Computing.
The above warranties do not apply to defects resulting from:
1) improper or inadequate maintenance by Customer;
2) Customer or third party supplied software, interfacing or supplies;
3) unauthorized modification;
4) improper use or operation outside of the Specifications for the Product;
5) abuse, negligence, accident, loss or damage in transit;
6) improper site preparation; or
7) unauthorized maintenance or repair.
THE ABOVE WARRANTIES ARE EXCLUSIVE AND NO OTHER WARRANTY, WHETHER WRITTEN OR ORAL, IS EXPRESSED OR IMPLIED. TO THE EXTENT PERMITTED BY LAW, CONTINUOUS COMPUTING SPECIFICALLY DISCLAIMS THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE AND NONINFRINGEMENT. WITHOUT LIMITING THE GENERALITY OF THE FOREGOING, CONTINUOUS COMPUTING DOES NOT WARRANT THAT SOFTWARE WILL OPERATE IN HARDWARE AND SOFTWARE COMBINATIONS SELECTED BY CUSTOMER, OR MEET REQUIREMENTS SPECIFIED BY CUSTOMER. CONTINUOUS COMPUTING FURTHER DOES NOT WARRANT THAT THE OPERATION OF PRODUCTS WILL BE UNINTERRUPTED OR ERROR FREE.

9. Training and Support

Customer may order training from Continuous Computing according to the terms and as set forth on the applicable quotation related to Customer’s order.
Customer is required to order one (1) year of initial Support for the Software as provided by Continuous Computing according to its then current Customer Support Policy as available at the company’s website at Continuouscomputing.com. Support fees shall be set forth on the applicable quotation related to Customer’s order. Provided that Continuous Computing offers Customer a prorated credit for fees, Continuous Computing may adjust the duration of the Support period so that all the Support Period for all similar products end on the same date. After the expiration of the initial year or partial year of Support, Customer may purchase additional Product Support at Continuous Computing’s then current Support fees and terms.
Continuous Computing may, at no additional charge, modify Products to improve operation, supportability and reliability, or to meet legal requirements.
Support does not cover any damage or failure caused by:
1) use of non-Continuous Computing media, supplies and other products;
2) site conditions that do not conform to Continuous Computing's site specifications;
3) neglect, improper use, fire or water damage, electrical disturbances, transportation by Customer, work or modification by Confidential - 4 - FN01925-03 Continuous Computing people other than Continuous Computing employees or subcontractors, or other causes beyond Continuous Computing's control; or
4) inability of any non-Continuous Computing products in Customer's environment to correctly process, provide or receive date data (i.e., representations for month, day, and year), and to properly exchange date data with the Products supplied by Continuous Computing.
Customer is responsible for maintaining a procedure external to the Products to reconstruct lost or altered Customer files, data or programs. Customer will have a representative present when Continuous Computing provides Support services at Customer's site. Customer will notify Continuous Computing if Products are being used in an environment which poses a potential health or safety hazard to Continuous Computing employees or subcontractors; Continuous Computing may require Customer to maintain such Products under Continuous Computing supervision and may postpone service until such hazard is remedied.

10. Licenses

In return for the Product fee or License Fee, as applicable, Continuous Computing grants Customer a limited, non-exclusive, non-transferable license to Use the object code version of the Software listed in Customer's order in conformance with:
1) the terms set forth herein;
2) Use restrictions and authorizations for the Software specified by Continuous Computing in its quotation, invoice or terms that accompany the Software; and
3) Continuous Computing's third party suppliers' terms as provided herein or that otherwise accompany the Software.

In the event of a conflict, a third party suppliers' terms that accompany the Software will take precedence over the Use restrictions and authorizations specified by Continuous Computing and the terms set forth herein, and the Use restrictions and authorizations specified by Continuous Computing will take precedence over the terms set forth herein.
Unless otherwise specified, the foregoing license to Use the Software is limited to one copy on one specific Product that is provided directly by Continuous Computing to Customer.
Unless otherwise specified, all Software Licenses will be perpetual unless terminated or transferred in accordance with Section 10. l).
Unless otherwise specified as a Development Use License in Continuous Computing’s quotation or other Software License Terms, Customer may sublicense the Software to an end-user for its Use provided that any such sublicenses incorporate end-user license terms as provided by this Software License, including any terms that accompany the Software and any Continuous Computing third party suppliers’ terms in a written sublicense agreement, which will be made available to Continuous Computing upon request. This sublicense right will not apply to a Development Use License.
Software is owned and copyrighted by Continuous Computing or by third party suppliers. Customer's Software License confers no title or ownership and is not a sale of any rights in the Software. Third party suppliers may protect their rights in the Software in the event of any infringement.
Unless otherwise authorized by Continuous Computing in writing, Customer may only make copies or adaptations of the Software for archival purposes or when copying or adaptation is an essential step in the authorized Use of the Software on a backup Product, provided that copies and adaptations are used in no other manner and provided further that the Use on the backup Product is discontinued when the original or replacement Product becomes operable.
Customer must reproduce all copyright notices in or on the original Software on all permitted copies or adaptations. Customer may not copy the Software onto any public or distributed network.
Bundled Software or Firmware provided to Customer may only be used when operating the associated Product in configurations as sold or subsequently upgraded by Continuous Computing. Customer may transfer Bundled Software or Firmware only upon transfer of the associated Product.
Updates, upgrades or other enhancements are available under Continuous Computing Support agreements. Continuous Computing reserves the right to require additional licenses and fees for Use of the Software on upgraded Products.
Customer will not modify, disassemble or decompile the Software without Continuous Computing's prior written consent. Where Customer has other rights under statute, Customer will provide Continuous Computing with reasonably detailed information regarding any intended disassembly or decompilation. Customer will not decrypt the Software unless necessary for legitimate use of the Software.
Customer's Software License is transferable subject to Continuous Computing's prior written authorization and payment to Continuous Computing of any applicable fee(s). Upon transfer of the Software License, Customer will immediately deliver all copies of the Software to the transferee. The transferee must agree in writing to the terms of Customer's Software License. All Software License terms will be binding on involuntary transferees, notice of which is hereby given. Customer's Software License will automatically terminate upon transfer.
Continuous Computing may terminate Customer's or any transferee's or sublicensee's Software License upon notice for failure to comply with any applicable Software License terms. Immediately upon termination, the Software and all copies of the Software will be destroyed or returned to Continuous Computing. Copies of the Software that are merged into adaptations, except for individual pieces of data in Customer's or transferee's or sublicensee's database, will be removed and destroyed or returned to Continuous Computing. With Continuous Computing's written consent, one copy of the Software may be retained subsequent to termination for archival purposes.

11. Confidentiality

Each party acknowledges that during the course of the sale and purchase of the Products, either party may have or may be provided to access to the other’s confidential information (“Confidential Information”). Confidential Information may be disclosed to a party in writing, in other tangible form, orally or visually. When disclosed in writing or other tangible form, the Confidential Information will be identified and labeled as confidential and belonging to the disclosing party. When disclosed orally or visually, such Confidential Information will be identified as confidential at the time of the oral or visual disclosure, with subsequent confirmation in writing within thirty (30) days after disclosure. Customer understands and agrees that the Product contains proprietary and confidential information belonging exclusively to Continuous Computing including, without limitation, technology, inventions, know-how, documentation, processes, ideas, concepts, data and trade secrets (“Confidential Information”). Confidential Information does not include (i) information already known or independently developed by the one party; (ii) information in the public domain through no wrongful act of the other party; or (iii) information receiving party received from a third party having no obligation of confidentiality with respect thereto. With respect to the Confidential Information, each party hereby agrees that the receiving party shall at no time misappropriate such Confidential Information or disclose it to any person or entity, and shall use at least the same degree of care in safeguarding the Confidential Information as the party uses in safeguarding its own confidential information but in no event less than a reasonable standard of care. Each party acknowledges that violations of the provisions of this Section shall cause irreparable harm to the other party not adequately compensable by monetary damages. In addition to other relief, each party agrees that injunctive relief shall be available to prevent any actual or threatened violation of such provisions.

12. Idemnification

Continuous Computing will defend or settle any claim against Customer that Continuous Computing Products (excluding Custom Products and Custom Support), delivered under these Terms and Conditions infringe any U.S. patent, trademark, copyright or trade secret of any third party, provided Customer:
1) promptly notifies Continuous Computing in writing; and
2) cooperates with Continuous Computing in, and grants Continuous Computing sole control of, the defense or settlement of any such claim.
Continuous Computing will pay infringement claim defense costs, settlement amounts and court-awarded damages. If Continuous Computing determines in its sole discretion that a claim is likely, Continuous Computing may modify the Product, procure any necessary license, or replace it. If Continuous Computing does not elect one of the foregoing options, Continuous Computing will refund Customer's purchase price upon return of the Product if within one year of Delivery, or the Product's net book value thereafter.
Continuous Computing has no obligation for any claim of infringement arising from:
1) Continuous Computing's compliance with Customer's designs, specifications or instructions;
2) Continuous Computing's use of technical information or technology provided by Customer;
3) Product modifications by Customer or a third party;
4) Product use prohibited by Specifications or these Terms and Conditions or related application notes; or
5) Product use with products that are not Continuous Computing branded.
Continuous Computing’s liability with respect to portions of Products provided by or licensed from third parties will be limited to the extent Continuous Computing is indemnified by such third parties.
These terms state Continuous Computing's entire liability for claims of intellectual property infringement.

12. Limitation of Liability and Remedies

IN NO EVENT WILL CONTINUOUS COMPUTING’S LIABILITY IN CONNECTION WITH THE PRODUCTS OR OTHERWISE WITH RESPECT TO THIS AGREEMENT EXCEED THE AMOUNTS ACTUALLY PAID TO CONTINUOUS COMPUTING UNDER THIS AGREEMENT FOR THE PRODUCTS GIVING RISE TO SUCH LIABILITY, PROVIDED THAT SUCH LIMITATION SHALL NOT APPLY TO CLAIMS COVERED UNDER SECTION 13 (“INDEMNIFICATION”). THESE LIMITATIONS APPLY TO ALL CAUSES OF ACTION IN THE AGGREGATE.
EXCEPT FOR ANY DAMAGES RESULTING UNDER ANY BREACH OF SECTION 11 (“CONFIDENTIALITY”), CONTINUOUS COMPUTING SHALL NOT BE LIABLE TO CUSTOMER FOR ANY INDIRECT, EXEMPLARY, SPECIAL, CONSEQUENTIAL
OR INCIDENTAL DAMAGES OF ANY KIND ARISING IN ANY WAY OUT OF THIS AGREEMENT OR CUSTOMER’S DISTRIBUTION OF THE PRODUCTS, INCLUDING, WITHOUT LIMITATION, LOSS OF PROFITS, REVENUES OR DATA, OR COSTS OF REPLACEMENT GOODS, EVEN IF CONTINUOUS COMPUTING HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES AND NOTWITHSTANDING THE FAILURE OF ANY LIMITED REMEDY OF ITS ESSENTIAL PURPOSE.
Products are not specifically designed, manufactured or intended for sale as parts, components or assemblies for the planning, construction, maintenance or direct operation of a nuclear facility. Customer is solely liable if Products or Support purchased by Customer are used for these applications. Customer will indemnify and hold Continuous Computing harmless from all loss, damage, expense or liability in connection with such use.
THE REMEDIES IN THESE TERMS AND CONDITIONS ARE CUSTOMER'S SOLE AND EXCLUSIVE REMEDIES.

12. General

Neither party shall be liable for delays or failure to meet its obligations pursuant to this Agreement due to causes beyond the party’s reasonable control and not caused by the negligence of such party.
If either party becomes insolvent, is unable to pay its debts when due, files for bankruptcy, is the subject of involuntary bankruptcy, has a receiver appointed, or has its assets assigned, the other party may cancel any unfulfilled obligations.
Customer may not assign any rights or obligations hereunder without prior written consent from Continuous Computing.
Customer who exports, re-exports or imports Products, technology or technical data purchased hereunder, assumes responsibility for complying with applicable laws and regulations, and for obtaining required export and import authorizations. Continuous Computing may suspend performance if Customer is in violation of applicable regulations.
The rights and obligations of the parties under this Agreement shall not be governed by the 1980 U.N. Convention on Contracts for the International Sale of Goods; rather such rights and obligations shall be governed by and construed in accordance with the laws of the United States and the State of California as applied to agreements made, entered into and to be performed entirely within California between California residents. Customer further waives any objection and expressly consents to being subject to personal jurisdiction in any state or federal court located in the County of San Diego and State of California.
Provisions herein which by their nature extend beyond the termination of any sale or license of Products will remain in effect until fulfilled. Without limiting the generality of the foregoing, Sections 8(i), 11, 12 and 13 shall survive the expiration or termination of these Terms and Conditions.
If any term or provision herein is determined to be illegal or unenforceable, the validity or enforceability of the remainder of the terms or provisions herein will remain in full force and effect.
These Continuous Computing Terms and Conditions and any related quotation constitute the entire agreement between Continuous Computing and Customer, and supersede any previous communications, representations or agreements between the parties, whether oral or written, regarding transactions hereunder. Customer's additional or different terms and conditions will not apply, including any terms set forth on Customer’s purchase order whether or not Continuous Computing objects to any such terms. Customer's purchase or license of Products will constitute Customer's acceptance of these Terms and Conditions, which may not be changed except by an amendment signed by an authorized representative of each party.