terms and conditions

TERMS AND CONDITIONS

Alvand Solutions LLC dba Accutive (“Accutive”) is an authorized reseller of the software, hardware, products, subscriptions, and solutions identified in the quote to which these Terms apply (the “Products”).  Customer’s purchase of the Products shall be subject to the following terms and conditions (the “Terms”) and Customer hereby agrees to the Terms set forth below.  

END USER LICENSE AGREEMENT

Certain of the Products resold by Accutive require that Customer execute an End User License Agreement in a form required by the third party provider of the Products.   Customer agrees to execute or otherwise accept such End User License Agreement.  Use of the Products shall be deemed acceptance of the End User License Agreement.    

ACCUTIVE’S ROLE WITH RESEPCT TO THE PRODUCTS IS THAT OF A RESELLER.  AS SUCH, ANY AND ALL CLAIMS RELATED TO THE PRODUCTS, INCLUDING BUT NOT LIMITED TO ISSUES RELATING TO WARRANTY CLAIMS AND FUNCTIONALITY, SHALL BE EXCLUSIVELY BETWEEN CUSTOMER AND THE THIRD-PARTY PROVIDER OF THE PRODUCTS.   CUSTOMER IS ADVISED TO REVIEW THE END USER LICENSE AGREEMENT OR COMPARABLE DOCUMENT, IF ANY, WITH THE THIRD PARTY PROVIDER AS IT WILL SET FORTH CUSTOMER’S RECOURSE, IF ANY, AGAINST THE THIRD PARTY PROVIDER.  TO THE EXTENT AN END USER LICENSE AGREEMENT OR COMPARABLE DOCUMENT HAS NOT BEEN PROVIDED TO CUSTOMER, ACCUTIVE WILL PROVIDE SUCH DOCUMENT UPON REQUEST.

PURCHASE SUBJECT TO APPROVAL BY THIRD PARTY PROVIDER

Customer’s purchase of the Products shall be subject to approval of the third party provider.

WARRANTY

EXCEPT AS OTHERWISE STATED HEREIN,  ACCUTIVE MAKES NO WARRANTIES, CONDITIONS, UNDERTAKINGS OR REPRESENTATIONS OF ANY KIND, EITHER EXPRESS OR IMPLIED, STATUTORY OR OTHERWISE IN RELATION TO THE PRODUCTS OR SERVICES MADE AVAILABLE OR PROVIDED TO CUSTOMER HEREUNDER, INCLUDING, TO THE MAXIMUM EXTENT PERMITTED BY LAW, ANY IMPLIED WARRANTIES OR CONDITIONS OF MERCHANTABILITY, SATISFACTORY QUALITY, FITNESS FOR A PARTICULAR PURPOSE,  NON-INFRINGEMENT OR ANY IMPLIED WARRANTY ARISING FROM THE COURSE OF PERFORMANCE, COURSE OF DEALING, OR USAGE OF TRADE.  WITHOUT LIMITATION TO THE FOREGOING, ACCUTIVE DOES NOT WARRANT THAT PRODUCTS OR SERVICES WILL MEET CUSTOMER’S REQUIREMENTS OR NEEDS, OR THAT THE OPERATION OF THE PRODUCTS WILL BE ERROR FREE OR UNINTERRUPTED, OR THAT DEFECTS OR ERRORS CAN OR WILL BE CORRECTED.

LIMITATION OF LIABILITY

TO THE MAXIUMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT SHALL ACCUTIVE BE LIABLE TO CUSTOMER FOR ANY INDIRECT, CONSEQUENTIAL, PUNITIVE, INCIDENTAL OR SPECIAL DAMAGES OR LOSS OF ANY KIND INCLUDING LOSS OF PROFITS, LOSS OF CONTRACTS, BUSINESS INTERRUPTIONS, OR LOSS OF OR CORRUPTION OF DATA, HOWEVER CAUSED, AND WHETHER ARISING UNDER CONTRACT OR TORT OR OTHERWISE, INCLUDING NEGLIGENCE, (INCLUDING ANY LOSS OR DAMAGE RELATED TO ANY THIRD PARTY SOFTWARE), EVEN IF ACCUTIVE HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGE.  ACCUTIVE’S MAXMIUM LIABILITY TO CUSTOMER ARISING OUT OF OR IN CONNECTION WITH CUSTOMER’S PURCHASE OF THE PRODUCTS SHALL NOT EXCEED THE PURCHASE PRICE OF THE PRODUCTS PURCHASED BY CUSTOMER FROM ACCUTIVE DURING THE SIX (6) MONTHS IMMEDIATELY PRECEDING THE DATE THE CLAIM IS FIRST MADE, LIMITED TO A MAXIMUM AMOUNT OF $100,000. 

 

Notwithstanding the foregoing, Accutive agrees to the following with respect to the Products resold on behalf of the following third party providers (the “Provider Specific Terms”).  The Terms set forth above shall apply to all of the third party providers below, except to the extent the Provider Specific Terms conflict with the Terms set forth above, in which case, the Provider Specific Terms shall control:

SafeNet, Inc. / Gemalto

Accutive warrants that in the case of software products provided by SafeNet, Inc./Gemalto (“SafeNet”), for a period of thirty (30) days after delivery to Accutive (which software will thereafter be promptly delivered to Customer), and in the case of hardware products, for fifteen (15) months after delivery to Accutive (which hardware may be directly delivered to Customer or will promptly thereafter be delivered to Customer), that such products will perform in substantial accordance with its Documentation.  (As used herein, “Documentation” means any materials provided to Customer describing the use and/or functionality of the product.  Documentation may be provided, in any form, such as electronic, print or magnetic media, and includes product user manuals, reference manuals and installation guides or on-line help.)  Customer’s sole and exclusive remedy for the breach of this warranty is to return the product, at its expense, to Accutive and Accutive will repair or replace the product and return it to Customer, at Accutive’s expense, or if the product is software, Accutive may direct Customer to return or destroy its copies of the software and will authorize either the electronic download of a substitute product or deliver to Customer a replacement copy.  In the event neither of the foregoing remedies are feasible in the sole opinion of Accutive, then Accutive will credit Customer the purchase price for the affected product, less its depreciated value.  Its depreciated value will be calculated using a straight line method of depreciation and based on the product’s useful life of five (5) years.  Products returned hereunder must be shipped, transportation prepaid, at Customer’s risk, but the most economical method of shipment.  Shipping costs will be credited only on products that were not in working condition pursuant to its warranty.  Accutive will not pay for excess transportation costs resulting from the use of anything other than the most economical carrier.  International shipments of products returned to Customer after repair will be shipped on DDU Port of Entry (Incoterms).

Customer’s sole remedies are set forth in this section.  Accutive disclaims responsibility for any costs associated with the packaging, inspection, labor expenses or other incidental costs incurred in connection with the return of any products.  Prior to returning a product for a warranty adjustment, Customer must first contact Accutive for a Return Material Authorization number (“RMA”).  Documentation accompany the returned product must include the RMA, original invoice number, indication of the quantity of returned products, and a description of the alleged defect. 

Unless otherwise requested by Customer, repaired products or products not subject to a warranty adjustment will be returned to Customer, transportation collect.  In all cases, Accutive’s determination as to whether or not a product is defective and covered by warranty will be final.

THE FOREGOING WARRANTIES ARE IN LIEU OF ALL OTHER WARRANTIES, EXPRESS, STATUTORY OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE AND ANY WARRANTY OF TITLE, NON-INFRINGEMENT AND ANY WARRANTY OR REPRESENTATION THAT THE SOFTWARE WILL OPERATE ERROR-FREE.  ANY USE OF THE PRODUCT BY CUSTOMER IS AT CUSTOMER’S OWN RISK.  ACCUTIVE DOES NOT WARRANT THAT THE PRODUCT SHALL MEET CUSTOMER’S REQUIREMENTS OR THAT THE OPERATION OF THE PRODUCT SHALL BE UNINTERRUPED OR THAT ANY ERRORS SHALL BE CORRECTED OR THAT THE PRODUCT SHALL BE COMPATIBLE WITH ANY PARTICULAR PLATFORM.  IF ANY EXCLUSION IS DETERMINED BY A COURT OF COMPETENT JURISDICTION TO BE UNENFORCEABLE, THEN ONLY THOSE INVALID EXCLUSIONS SHALL BE STRICKEN AND ALL OTHERS WILL REMAIN IN FULL FORCE AND EFFECT.

PKWare, Inc.

By issuing and submitting a P.O. to Alvand Solutions LLC dba Accutive, Customer accepts the terms and  conditions of the applicable PKWARE Master license located at http://legal.pkware.com

LIMITATION OF LIABILITY: 

UNDER NO CIRCUMSTANCES SHALL ACCUTIVE’S TOTAL LIABILITY EXCEED THE PAYMENTS ACTUALLY RECEIVED FROM CUSTOMER DURING THE TWELVE (12) MONTH PERIOD IMMEDIATELY PRECEDING THE APPLICABLE CLAIM. 

SailPoint Technologies, Inc.

Customer shall execute a SailPoint Technologies, Inc. (“Sailpoint”) Software License Agreement (“EULA”) or accept a EULA via a click-thru process, in the then current form that can be found at http://www.sailpoint.com/legal and as may be updated by SailPoint from time to time before delivery of the SailPoint applications. 

Cylance

Customer’s purchase, use of and access to security products offered by Cylance Inc. (“Cylance”) is subject to the Customer’s acceptance of Cylance’s EULA.  Prior to the security products being installed on any Customer device or network, Customer must sign or accept the EULA, which Cylance may modify from time to time.

Okta, Inc.

Each Customer shall agree to a Customer Agreement that, at a minimum, includes contractual provisions set forth in the following link: https://www.okta.com/partners/terms/minimum-customer-agreement/   

Sentinel Labs, Inc.

Subscriptions to the solutions offered by Sentinel Labs, Inc. (“SentinelOne”) are subject to Customer’s acceptance of the terms and conditions set forth at https://www.sentinelone.com/terms-of-service/ and delivery of the solutions to Customer is conditioned on the prior execution or acceptance of the terms by such Customer.

Thales e-Security, Inc.

Thales e-Security, Inc. (“Thales”) requires that Customer accept the End User License Agreement provided by the company.  Customer agrees to accept the terms of the End User License Agreement prior to use of the Products. 

WARRANTY

Accutive warrants to Customer that Thales provided hardware equipment will function substantially as detailed in the respective hardware equipment specification for a period of twelve (12) months.  Accutive further warrants that Thales provided software or software that is embedded in or provided with any Thales provided hardware equipment shall function substantially as detailed in the respective software specification for a period of ninety (90) days.  The warranty periods shall commence either upon delivery of the product to Customer or sixty (60) days after delivery to Accutive from Thales, whichever occurs first.  In the event that a product’s functionality is materially impaired by virtue of defects in workmanship, Accutive will repair or replace the affected product, provided that Accutive receives written notification of claim under this warranty within the warranty periods herein described.  For the avoidance of doubt, Accutive neither warrants, nor can be expected to warrant that any product is fit for any Customer purpose or that the product is wholly free from defect, or that any particular defect can be remedied.  The foregoing warranty shall not apply if the tamper-evident seal on the product is broken, or the product nonconformity issue is caused by the product being subjected to unusual physical, electrical, electromagnetic or electronic stress after delivery, fire or other acts of god, rough handling during transportation, product modification or repairs performed by anyone other than Accutive, or to any associated or complementary equipment or software not furnished by Accutive, or any product misuse, or neglect.

THE FOREGOING WARRANTIES ARE IN LIEU OF ALL OTHER WARRANTIES, EXPRESS OR IMPLIED OR ARISING BY CUSTOM OR TRADE USAGE, WITH RESPECT TO THE PRODUCTS, INCLUDING, WITHOUT LIMITATION, WARRANTIES OF MERCHANTABILITY, SATISFACTORY QUALITY, NON-INFRINGEMENT, QUALITY AND FITNESS FOR A PARTICULAR PURPOSE. ACCUTIVE’S EXPRESS WARRANTY SHALL NOT BE ENLARGED, DIMINISHED OR AFFECTED BY, AND NO OBLIGATION OR LIABILITY SHALL ARISE OUT OF ACCUTIVE RENDERING TECHNICAL OR OTHER ADVICE OR SERVICE IN CONNECTION WITH THE PRODUCTS.  ACCUTIVE MAKES NO WARRANTY AS TO THE SECURITY PROVIDED BY ANY PRODUCT.