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General Terms and Conditions of Sale
Date of last revision: May 04, 2022
These General Terms and Conditions of Sale (this "Agreement") apply to the sale of licenses to products and services (collectively, “Products") by Resilio, Inc., a Delaware corporation ("Resilio", "we", or "us"), via the Resilio online site ("Store") or otherwise. Resilio's privacy policy at https://www.resilio.com/legal/privacy is hereby incorporated into this Agreement this Agreement by reference.
1. Price and Payment
You agree to pay the price for the Product(s) you order, as specified in an order form. All prices are quoted in the order form exclusive of federal, state, or local excise, sales, use, or similar taxes, or any export or import fees, customs duties and similar charges applicable to the sale or to the Products sold, except taxes based upon Resilio's net income ("Taxes").
Resilio may collect Taxes with respect to certain jurisdictions. You agree to pay any and all Taxes, applicable shipping and handling fees, and other charges incidental to the purchase or sale of the Product (including, for international shipments (i.e., those outside the United States), customs duties, import fees, and other similar fees). Without limiting other remedies, Resilio reserves the right to charge a late fee on all past due payments equivalent to the lesser of one and a half percent (1.5%) per month on the unpaid balance or the highest rate allowed by law. You will pay for all collection costs, attorneys fees, and court costs incurred in the collection of past due amounts.
2. Orders; Delivery; Title, and Risk of Loss
Products and Services shall be ordered pursuant to a written order signed by Customer. Each order shall be subject to the terms and conditions of this Agreement. All orders are subject to acceptance by Resilio, in its sole discretion, and any automatic confirmation email sent by Resilio in connection with your order does not constitute acceptance of the order by Resilio.
The Products may be delivered by or downloaded from Resilio and Resilio may provide you with the means to use the Products, for example through providing unlock keys or serial numbers. Resilio will deliver the Products or make them available for download no later than two (2) business days after acceptance of an order. Company shall provide the Support Plan to Customer purchased by Customer set forth in the Resilio Platform Support Plan on Exhibit B.
3. Right to Use; License
The terms and conditions and the scope of such rights or licenses to the Products you are purchasing are as set forth in the End User License Agreement (“EULA”) on Exhibit A.
4. Limited Warranty; Disclaimer of Warranties
4.1. Limited Warranty. Resilio hereby warrants to Licensee that the Product will perform substantially in accordance with the functional description applicable thereto on the Resilio website if used in accordance with the terms of this Agreement and any applicable directions or requirements in Resilio documentation. The foregoing warranty is extended to the initial Licensee only, is not transferable, and, in the case of non-subscription-based Products, shall be in effect for thirty (30) days immediately following Licensee’s receipt of the Software and, in the case of the case of subscription-based Products, shall be in effect during the applicable subscription term (each such period referred to as (the "Warranty Period").
Licensee’s sole and exclusive remedy and the entire liability of Resilio and its suppliers and licensors for any breach of this limited warranty will be, at Resilio’s option, repair or replacement of the Software or refund, if such breach is reported prior to the expiration of the applicable Warranty Period to Resilio or the Resilio authorized distributor that supplied the Software to Licensee (the "Warranty Remedy"). Resilio may require that Licensee certify the destruction of all copies of the Software to Resilio or to the authorized distributor in order to receive the designated remedy hereunder. Any replacement Software provided pursuant to this Section 4.1 will be covered by the warranty in this Section 4.1 for the remainder of the original Software Warranty Period or for thirty (30) days from the date on which Licensee receives such repaired or replacement Software, whichever is longer. Resilio represents and warrants that to its knowledge upon delivery by Resilio, the Software or Products do not contain any virus, infection, worm or similar malicious code.
4.2. Disclaimer of Warranties. (a) EXCEPT AS EXPRESSLY PROVIDED IN SECTION 4.1, THE PRODUCT IS BEING PROVIDED "AS IS" WITHOUT WARRANTY OF ANY KIND AND RESILIO HEREBY DISCLAIMS ALL OTHER WARRANTIES, EXPRESS OR IMPLIED, ORAL OR WRITTEN, WITH RESPECT TO THE PRODUCT, INCLUDING, WITHOUT LIMITATION, ANY AND ALL IMPLIED WARRANTIES AS TO THE CONDITION, NONINFRINGEMENT, MERCHANTABILITY, DESIGN, OPERATION OR FITNESS FOR ANY PARTICULAR PURPOSE. NO ORAL OR WRITTEN INFORMATION OR ADVICE GIVEN BY RESILIO, ITS RESELLERS AND/OR ITS OR THEIR AGENTS OR EMPLOYEES, SHALL CREATE A WARRANTY OR IN ANY WAY INCREASE OR MODIFY THE SCOPE OF THE WARRANTIES EXPRESSLY SET FORTH HEREIN. If Licensee’s legal jurisdiction provides that a certain implied warranty may not be disclaimed, such implied warranty shall only apply to defects discovered during the period of the express Warranty Period provided herein.
There is no implied warranty for defects discovered after the expiration of such Warranty Period. Some legal jurisdictions do not allow limitations on how long an implied warranty lasts, so these limitations may not apply to Licensee. (b) EXCEPT AS EXPRESSLY PROVIDED IN SECTION 4.1, RESILIO DOES NOT WARRANT THAT THE PRODUCTS WILL MEET ALL REQUIREMENTS OF LICENSEE, OR THAT THE OPERATION OF THE PRODUCTS WILL BE UNINTERRUPTED OR ERROR FREE, OR THAT ALL PRODUCT DEFECTS WILL BE CORRECTED. FURTHER, RESILIO IS NOT RESPONSIBLE FOR ANY DEFECT OR ERROR RESULTING FROM: (I) THE MODIFICATION, MISUSE OR DAMAGE OF THE PRODUCT BY PARTIES OTHER THAN RESILIO OR PARTIES PERFORMING AS A CONTRACTOR TO, AND AT THE DIRECTION OF, RESILIO, (II) LICENSEE’S FAILURE TO IMPLEMENT ALL BUG FIXES OR OTHER DEFECT CORRECTIONS WHICH ARE MADE AVAILABLE BY RESILIO, (III) USE OF THE PRODUCT IN A MANNER INCONSISTENT WITH THE DIRECTIONS PROVIDED IN THE DOCUMENTATION OR AS PERMITTED BY THIS AGREEMENT, (IV) ANY COMPUTER VIRUS OR (V) ANY DEFECT IN OR FAILURE OF ANY THIRD PARTY’S INDIVIDUAL COMPUTER, EQUIPMENT, NETWORK OR PRODUCTS OR SERVICES, OR FOR ANY USER ERROR. RESILIO DOES NOT WARRANT AND SHALL HAVE NO LIABILITY WITH RESPECT TO NON-RESILIO PRODUCTS OR SERVICES INCLUDING, WITHOUT LIMITATION, THIRD-PARTY SOFTWARE OR HARDWARE, INTERNET CONNECTIONS OR CONNECTIVITY OR COMPUTER NETWORKS.
5. Confidentiality.
Each party will use the other party’s Confidential Information as defined below solely in the performance of this Agreement and agrees that it shall not use or disclose or permit the use or disclosure the other party’s Confidential Information to any third party except as permitted under this Agreement or with the other party’s prior written consent.
Confidential Information means all information disclosed by a party to the other party that is labeled as “confidential” (or with similar legend) or which a reasonable person would understand to be confidential given the nature of the information and circumstances of disclosure, including without limitation any user’s personally identifying information, but shall not include information that: (a) was rightfully in the receiving party’s possession free of any obligation of confidence at or subsequent to the time it was communicated by the disclosing party; (b) was or is obtained by the receiving party by a third party not known by the receiving party to be under an obligation of confidentiality with respect to such information; (c) is or becomes generally available to the public other than by any act or omission on the party of the receiving party; or (d) was or is independently developed by the receiving party without use of the disclosing party’s Confidential Information.
The receiving party may disclose the other party’s Confidential Information to comply with an order from a court of competent jurisdiction or with a mandatory requirement of a governing regulatory body, provided such party, to the extent permissible and as soon as reasonably practicable under the circumstances, informs the disclosing party and allows the disclosing party the opportunity to take actions as are necessary to preserve the confidentiality of the information. Notwithstanding anything to the contrary, pricing information shall be deemed Resilio’s Confidential Information.
As between the disclosing party and the receiving party, Confidential Information and all applicable intellectual property rights embodied in the Confidential Information shall remain the sole property of the disclosing party. Nothing in this Agreement shall be construed as granting any rights to the receiving party, by license or otherwise, to any of the disclosing party's Confidential Information, except to the extent as expressly stated in this Agreement.
Upon expiration or termination of this Agreement the receiving party's right to use the disclosing party’s Confidential Information ceases and the receiving party must, upon the disclosing party’s request and at the receiving party’s expense, promptly return to the disclosing party or permanently destroy all of the disclosing party’s Confidential Information in its possession. The receiving party may disclose Confidential Information to comply with a court order or mandatory requirement of a governing regulatory body, provided such party, to the extent permitted by law and as soon as reasonably practicable under the circumstances, informs the disclosing party and allows the Disclosing Party the opportunity to object to the disclosure order or to take action to preserve the confidentiality of the information.
The unauthorized disclosure or use of any Confidential Information may cause immediate and irreparable injury to the disclosing party which could not be adequately compensated by monetary damages. Each party therefore authorizes the other party to seek any temporary or permanent injunctive relief necessary to prevent such disclosure or use, or threat of disclosure or use.
6. Limitation of Liability
SOME COUNTRIES DO NOT ALLOW THE LIMITATION OR EXCLUSION OF LIABILITY IN CONTRACTS WITH CONSUMERS AND AS A RESULT THE CONTENTS OF THIS SECTION MAY NOT APPLY TO YOU. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW AND REGARDLESS OF WHETHER ANY REMEDY SET FORTH HEREIN FAILS OF ITS ESSENTIAL PURPOSE, EXCEPT FOR A BREACH OF THE CONFIDENTIALITY OBLIGATIONS HEREUNDER OR CUSTOMER’S VIOLATION OF RESILIO’S EULA, IN NO EVENT WILL CUSTOMER OR RESILIO OR ITS LICENSORS BE LIABLE FOR ANY SPECIAL, CONSEQUENTIAL, INDIRECT, PUNITIVE OR SIMILAR DAMAGES, INCLUDING ANY LOST PROFITS OR LOST DATA ARISING OUT OF THE USE OR INABILITY TO USE THE SOFTWARE (INCLUDING BUT NOT LIMITED TO USE OF TECHNICAL SUPPORT) EVEN IF THE PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
Neither Party (including their respective subsidiaries, affiliated companies, suppliers, employees, shareholders, or directors) shall be liable for any damages in excess of the greater of the purchase price for the specific products giving rise to the claim or the total amount paid by Customer to Resilio during the twelve (12) month period preceding the claim. This limitation of liability is part of the basis of the bargain between the parties and without it the terms and prices charged would be different. This limitation of liability shall:
6.1. Apply regardless of whether the claim is based on contract, tort, statute or any other legal theory, (2) a party knew or should have known about the possibility of such damages, or (3) the limited remedies provided in this section fail of their essential purpose; and
6.2. Not apply to a claim for breach of Section 5 (Confidentiality) or Customer’s violation of Resilio’s EULA or any damage that Resilio may cause you intentionally or knowingly in violation of this Agreement or applicable law, or as otherwise mandated by applicable law that cannot be disclaimed in this Agreement.
7. Indemnity.
Subject to the remainder of this Section 7, Resilio will indemnify Customer from any Liability (as defined below) to a third party resulting from a third party claim brought against Customer based on infringement of a U.S. patent existing as of the Effective Date or any copyright, or misappropriation of any third party trade secrets by the Product as delivered (“Infringement Claim”); provided that Customer (1) promptly notifies Resilio of any and all threats, claims and proceedings of such Infringement Claim, (2) gives reasonable assistance at Resilio’s expenses in response to Resilio’s request for assistance, and (3) grants Resilio sole control over defense and settlement thereof. For purposes of this section “Liability” means the resulting costs (including reasonable attorneys’ fees) and damages awarded against Customer to the third party making such Infringement Claim, by a court of competent jurisdiction or agreed in settlement.
The foregoing obligations do not apply with respect to Products or portions or components thereof, (i) that are modified after delivery by Resilio, (ii) combined with other products, processes or materials, where the alleged infringement relates to such combination, (iii) where Customer continues allegedly infringing activity after being notified thereof or modifications that would have avoided the alleged infringement have been made available to Customer, or (iv) where Customer’s use of such Product is not strictly in accordance with this Agreement.
In the event that Products are held to or believed by Resilio to infringe, Resilio at its discretion, shall (A) modify the allegedly infringing Products to be non-infringing, (B) obtain for Customer a license to continue using the Products, or (C) request the return of the Product and upon receipt thereof terminate this Agreement as to the infringing Product and refund to Customer the unused portion of the fees paid under this Agreement for such infringing Product.
Notwithstanding anything in the foregoing to the contrary, in the event of an Infringement Claim, Resilio shall have the right to terminate the subscription for the Products and this Agreement immediately upon written notice to Customer and provide a refund of the unused portion of the fees paid for such infringing Product.
THIS SECTION SETS FORTH RESILIO’S SOLE OBLIGATION AND CUSTOMER’S SOLE AND EXCLUSIVE REMEDY IN THE EVENT OF VIOLATION OF THIRD PARTY RIGHTS.
8. Media and Press.
Resilio may use your company names and logos on Resilio’s website, customer lists and, with your approval, case studies.
9. Governing Law and Forum
This Agreement or any claim, cause of action or dispute (“claim”) arising out of or related to this Agreement shall be governed by the laws of the state of California regardless of your country of origin, and notwithstanding of any conflicts of law principles and the United Nations Convention for the International Sale of Goods. The parties specifically disclaim the U.N. Convention on Contracts for the International Sale of Goods. You and Resilio agree that all claims arising out of or related to this Agreement must be resolved exclusively by a state or federal court located in Santa Clara County, California, except as otherwise expressly agreed by the parties.
This Section 9 supersedes Section 19 of the EULA. For the avoidance of doubt, the arbitration provisions set forth in Section 19 of the EULA shall not apply. You and Resilio agree to submit to the personal jurisdiction of the courts located within San Francisco County, California for the purpose of litigating all such claims. Notwithstanding the above, each party shall be allowed to apply for injunctive remedies (or an equivalent type of urgent legal relief) in any jurisdiction.
YOU AND RESILIO AGREE THAT EACH MAY BRING CLAIMS AGAINST THE OTHER ONLY IN ITS INDIVIDUAL CAPACITY, AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS OR REPRESENTATIVE PROCEEDING.
10. Term and Termination.
10.1 Term. The term of this Agreement shall begin on the Effective Date and continue for the initial term and any renewal terms under any Order Form issued under this Agreement, unless the Agreement is earlier terminated as set forth herein.
10.2 Termination for breach. If a party materially breaches any provision of this Agreement and has not cured such breach within thirty days of receipt of notice of such breach, the other party may terminate this agreement by giving at least 30 (thirty) days’ prior notice, but termination will be effective only if that breach is not cured within that period.
10.3 Upon termination of this Agreement, the rights and licenses granted by Resilio to Customer will cease immediately. Sections 1, 4.2, 5, 6, 9, 10 and 11 shall survive termination or expiration of this Agreement.
11. General.
If any provision hereof is held invalid, unenforceable or void in any respect, such provision shall be construed so as to render it enforceable and effective to the maximum extent possible, and the validity and enforceability of the remaining provisions hereof shall not in any way be affected or impaired thereby.
You agree to adhere to all legal requirements applicable to the Products, including U. S. export laws. You represent that you are not a resident of any U. S.-embargoed country and that any sale to you complies with U.S. export laws. The parties are independent contractors, and nothing herein shall be construed to imply a partnership, joint venture, principal-agent, or employer-employee relationship between the parties. Neither party shall have the right, power, or authority to create any obligation, expressed or implied, on behalf of the other party. You may not assign, by operation of law or otherwise, any of its rights, or delegate any of its duties, under this Agreement to any third party without Resilio's prior written consent, such consent not to be unreasonably withheld or delayed. These Terms may be modified or waived only in a written instrument signed by both parties. A waiver of any breach under this Agreement shall not constitute a waiver or any other breach or future breaches.
Any additional or inconsistent terms on an order shall be null and void. Any assignment, delegation or transfer in violation of the foregoing will be null and void. These Terms constitutes the entire agreement between the parties as to the subject matter hereof and supersedes and merges all prior or contemporaneous oral or written agreements, representations, statements, negotiations, understandings, proposals, and undertakings with respect to the subject matter of this Agreement. Notices to Resilio must be delivered to: Resilio, Inc., 4900 Hopyard Road, STE 100, Pleasanton, CA 94588, United States, Attention: CEO, with a separate copy sent simultaneously to the attention of Resilio’s General Counsel at Resilio’s designated address.
