Software License Agreement

Aviatrix Software License Agreement

NOTICE: IN ORDER TO DOWNLOAD, INSTALL AND/OR USE THE LICENSED SOFTWARE PRODUCT, YOU AS “LICENSEE” MUST AGREE TO THIS SOFTWARE LICENSE AGREEMENT (THIS “AGREEMENT”). READ THIS AGREEMENT CAREFULLY AND CLICK THE “AGREE” BUTTON BEFORE DOWNLOADING, INSTALLING OR USING THE LICENSED PRODUCT. BY CLICKING THE “AGREE” BUTTON OR BY CONTINUING TO ACCESS OR USE THE LICENSED PRODUCT OR BY SIGNING A QUOTE OR ORDER WHICH REFERENCES THIS AGREEMENT, LICENSEE AGREES TO THIS AGREEMENT. IF LICENSEE DOES NOT AGREE TO THIS AGREEMENT, DO NOT CLICK THE “AGREE” BUTTON AND LICENSEE MUST NOT, AND MAY NOT, DOWNLOAD, INSTALL OR USE THE LICENSED PRODUCT. THIS AGREEMENT IS A LEGAL AGREEMENT BETWEEN AVIATRIX SYSTEMS, INC. (“AVIATRIX SYSTEMS”) AND LICENSEE STATING THE TERMS AND CONDITIONS THAT GOVERN LICENSEE’S USE OF THE LICENSED PRODUCT. IF LICENSEE IS ENTERING INTO THIS AGREEMENT ON BEHALF OF A COMPANY OR OTHER LEGAL ENTITY, LICENSEE REPRESENTS AND WARRANTS THAT LICENSEE HAS THE AUTHORITY TO BIND SUCH ENTITY TO THIS AGREEMENT, IN WHICH CASE THE TERM “LICENSEE” SHALL REFER TO SUCH ENTITY.

This Agreement was last updated on September 8, 2017. This Agreement is effective between Licensee and Aviatrix Systems as of the date Licensee accepts this Agreement (the “Effective Date”).

1. Grant of License and Restrictions.

Subject to the terms hereof, payment of all fees, and any applicable user/use limitations, Aviatrix Systems grants Licensee a personal, non sub-licensable, non-exclusive, right to use a licensed software product in object code form only specified on a quote or order form (“Quote”) that Aviatrix Systems or an authorized Aviatrix Systems reseller provides to Licensee (“Product”) on authorized machine(s) located at authorized Licensee site(s) specified on the Quote and only in accordance with Aviatrix Systems’ applicable user documentation. Aviatrix Systems will allow Licensee to download an electronic version of the Product (as delivery) and Licensee may only use the number of copies of any Product as has been expressly authorized by Aviatrix Systems on the Quote; Aviatrix Systems retains ownership of all copies and Licensee will maintain the copyright notice and any other notices that appear on the Product on any copies. Licensee will not (and will not allow any third party to) (i) reverse engineer or attempt to discover any source code or underlying ideas or algorithms of any Product (except to the extent that applicable law prohibits reverse engineering restrictions), (ii) provide, lease, lend, disclose, use for timesharing or service bureau purposes, or otherwise use or allow others to use for the benefit of any third party, any Product (except as expressly and specifically authorized by Aviatrix Systems), (iii) possess or use any Product, or allow the transfer, transmission, export, or re-export of any Product or portion thereof in violation of any export control laws or regulations administered by the U.S. Commerce Department, U.S. Treasury Department’s Office of Foreign Assets Control, or any other government agency, (iv) disclose to any third party any benchmarking or comparative study involving any Product, or (v) modify any Product. All the limitations and restrictions on Products in this Agreement also apply to documentation and screens. LICENSEE ACKNOWLEDGES THAT THE PRODUCT MAY INCLUDE FEATURES TO PREVENT USE AFTER THE APPLICABLE LICENSE PERIOD AND/OR USE INCONSISTENT HEREWITH.

2. Support and Maintenance.

While the license (other than a free evaluation license) for a Product has not been terminated and all applicable fees have been timely paid by the Licensee or Licensee’s reseller, as applicable, to Aviatrix Systems for each annual support term, Aviatrix Systems will use reasonable commercial efforts to provide basic levels of support and maintenance services for that Product as and to the extent described in Aviatrix Systems’ then applicable standard Support and Maintenance Terms (the current version of which can be found at www.aviatrix.com/support-terms (“Support Services”). Notwithstanding the foregoing, if Licensee purchases a license to the Product from an authorized Aviatrix Systems reseller, then the reseller is obligated to provide Support Services to Licensee and Aviatrix Systems will not provide Licensee with Support Services.

3. Fees and Payment.

As of the date of Licensee’s order of the Product, Licensee shall pay Aviatrix Systems or Aviatrix Systems designee Aviatrix Systems’ then current standard license/subscription fees for any authorized copies or uses of Product or such other fees as have been expressly agreed to by Aviatrix Systems (“License Fees”); in the case of monthly subscriptions, License Fees therefor will also be paid in advance. At the same time as payment of the initial License Fees, and in advance thereafter for subsequent purchases (and except to the extent included in License Fees for annual subscriptions), Licensee shall also pay Aviatrix Systems’ then current standard support and maintenance fees for Product or such other support and maintenance fees as have been expressly agreed to by Aviatrix Systems (“Maintenance Fees”). In addition, without limiting Aviatrix Systems’ remedies, if Licensee makes or uses copies, or has uses, that are not authorized hereunder, it will so report to Aviatrix Systems and will pay additional license and maintenance and support fees equal to Aviatrix Systems’ then current standard fees for the license and maintenance and support of such extra copies and uses (from time to time upon request, Aviatrix Systems will be entitled to audit or have audited all systems and records relevant to assure compliance with the foregoing; any audit showing noncompliance will be at Licensee’s expense). All payments shall be made in the currency of, and within the borders of the United States. Licensee will pay all taxes, shipping, duties, withholdings, backup withholding and the like; when Aviatrix Systems has the legal obligation to pay or collect such taxes, the appropriate amount shall paid by Licensee directly to Aviatrix Systems. Licensee will reimburse Aviatrix Systems for all reasonable travel and other related expenses incurred by Aviatrix Systems in its performance hereunder; provided, however, that such expenses shall have been pre-approved by Licensee.

4. Termination; Breach.

All licenses will terminate thirty (30) days (immediately in the case of nonpayment or in the case of a breach of Section 1) after Aviatrix Systems provide notice of any Licensee breach remaining uncured at the end of such notice period. A license will also terminate upon the expiration of any applicable license period specified for the applicable Product on the Quote (or if no price is specified on the Quote, the price set forth on the Aviatrix Systems price list) or such other license period as have been expressly agreed to by Aviatrix Systems, subject to renewal in the case of a renewing subscription license (which renewal will be automatic in the absence of notice of nonrenewal from either party given at least 30 days prior to end of the then current annual subscription period), provided that in any case a free evaluation license will have a license period of not more than ninety (90) days. Upon any termination, Licensee shall immediately cease all use of all affected Products and return or destroy all copies of all affected Products and all portions thereof and so certify to Aviatrix Systems. THE PRODUCT MAY CONTAIN DISABLING CODE THAT (EITHER AUTOMATICALLY OR UPON INPUT FROM AVIATRIX SYSTEMS) WILL MAKE THE PRODUCT (AND RELATED DATA) UNUSABLE UPON TERMINATION OF THE LICENSE OR UPON BREACH. The following Sections shall survive any termination: the disclaimers in Section 6, Licensee’s indemnity obligations, Section 7 and Section 10.

5. Indemnification.

Except in the case of a free evaluation license, Aviatrix Systems shall hold Licensee harmless from liability to third parties resulting from infringement by a Product of any United States patent issued sixty (60) days or more before delivery of such Product or any copyright or misappropriation of any trade secret, provided Aviatrix Systems is promptly notified of any and all threats, claims and proceedings related thereto and given reasonable assistance and the opportunity to assume sole control over defense and settlement; Aviatrix Systems will not be responsible for any settlement it does not approve. The foregoing obligations do not apply with respect to a Product or portions or components thereof (i) not created by Aviatrix Systems, (ii) made in whole or in part in accordance to Licensee specifications, (iii) that are modified after delivery by Aviatrix Systems, (iv) combined with other products, processes or materials where the alleged infringement relates to such combination, (v) where Licensee continues allegedly infringing activity after being notified thereof or after being informed of modifications that would have avoided the alleged infringement, or (vi) where Licensee’s use of such Product is not strictly in accordance herewith. Licensee will indemnify Aviatrix Systems from all damages, costs, settlements, attorneys’ fees and expenses related to (I) any claim of infringement or misappropriation excluded from Aviatrix Systems’ indemnity obligation by the preceding sentence, or (II) any other claim in connection with the unauthorized use or distribution thereof.

6. Limited Warranty and Disclaimer.

Except in the case of a free evaluation license, Aviatrix Systems warrants for a period of thirty (30) days from delivery of a Product that such Product will materially conform to Aviatrix Systems’ then current user documentation for such Product. This warranty covers only problems reported to Aviatrix Systems during the warranty period. ANY LIABILITY OF AVIATRIX SYSTEMS WITH RESPECT TO A PRODUCT OR THE PERFORMANCE THEREOF UNDER ANY WARRANTY, NEGLIGENCE, STRICT LIABILITY OR OTHER THEORY WILL BE LIMITED EXCLUSIVELY TO PRODUCT REPLACEMENT OR, IF REPLACEMENT IS INADEQUATE AS A REMEDY OR, IN AVIATRIX SYSTEMS’ OPINION, IMPRACTICAL, TO REFUND OF AN APPROPRIATE PORTION THE REMAINING UNAMORTIZED LICENSE FEE PAID BY LICENSEE. EXCEPT FOR THE FOREGOING WARRANTY BY AVIATRIX SYSTEMS, ALL PRODUCTS ARE PROVIDED “AS IS” WITHOUT WARRANTY OF ANY KIND FROM ANYONE, INCLUDING WITHOUT LIMITATION, ANY WARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE OR NON-INFRINGEMENT. FURTHER, AVIATRIX SYSTEMS DOES NOT WARRANT RESULTS OF USE OR THAT THE PRODUCTS ARE BUG FREE OR THAT THE PRODUCT’S USE WILL BE UNINTERRUPTED.

7. Limitation of Liability.

NOTWITHSTANDING ANYTHING ELSE HEREIN OR OTHERWISE, AND EXCEPT FOR BODILY INJURY, NEITHER AVIATRIX SYSTEMS NOR ANY LICENSOR SHALL BE LIABLE OR OBLIGATED WITH RESPECT TO THE SUBJECT MATTER HEREOF OR UNDER ANY CONTRACT, NEGLIGENCE, STRICT LIABILITY OR OTHER LEGAL OR EQUITABLE THEORY (I) IN THE AGGREGATE, FOR ANY AMOUNTS IN EXCESS OF THE FEES PAID TO IT HERE¬UNDER WITH RESPECT TO THE APPLICABLE PRODUCT DURING THE SIX MONTH PERIOD PRIOR TO THE CAUSE OF ACTION OR THE AMOUNT OF ONE HUNDRED DOLLARS (WHICHEVER IS HIGHER) OR (II) FOR ANY COST OF PROCUREMENT OF SUBSTITUTE GOODS, TECHNOLOGY, SERVICES OR RIGHTS; (III) FOR ANY INCIDENTAL OR CONSEQUENTIAL DAMAGES; (IV) FOR INTERRUPTION OF USE OR LOSS OR CORRUPTION OF DATA; OR (V) FOR ANY MATTER BEYOND ITS REASONABLE CONTROL. THE PRODUCT IS NOT DESIGNED, MANUFACTURED, OR INTENDED FOR USE IN HAZARDOUS ENVIRONMENTS REQUIRING FAIL-SAFE PERFORMANCE WHERE THE FAILURE OF THE PRODUCT COULD LEAD DIRECTLY TO DEATH, PERSONAL INJURY, OR SIGNIFICANT PHYSICAL OR ENVIRONMENTAL DAMAGE (“HIGH RISK ACTIVITIES”). USE OF THE PRODUCT IN HIGH RISK ACTIVITIES IS NOT AUTHORIZED. THE PARTIES AGREE THAT THIS SECTION 7 REPRESENTS A REASONABLE ALLOCATION OF RISK AND THAT LICENSOR WOULD NOT PROCEED IN THE ABSENCE OF SUCH ALLOCATION.

8. Identification.

Aviatrix Systems may use Licensee’s name and logo in client listings. Aviatrix Systems may issue a press release announcing the relationship contemplated hereby, subject to Licensee’s approval which shall not be unreasonably withheld or delayed.

9. Embedded Reporting for License Verification and Product Enhancement.

Licensee acknowledges that Products may contain automated reporting routines that will automatically identify and analyze certain aspects of use and performance of Products and/or the systems on which they are installed, as well as the operator and operating environment (including problems and issues that arise in connection therewith), and provide reports that will not contain any personally identifiable information to Aviatrix Systems solely for the purposes of license verification and product enhancement.

10. Miscellaneous.

Neither this Agreement nor the licenses granted hereunder are assignable or transferable (and any attempt to do so shall be void); provided that either party may assign and transfer the foregoing to a successor to substantially all of Aviatrix Systems’ Product business or assets or Licensee’s business for which Products are licensed (but if the authorized copies or users are not limited, the assignee is not licensed to expand use beyond Licensee’s bona fide pre-assignment use plus reasonably expected growth assuming the assignment and related transactions had not occurred). The provisions hereof are for the benefit of the parties only and not for any other person or entity. Any notice, report, approval, authorization, agreement or consent required or permitted hereunder shall be in writing; notices shall be sent to the address the applicable party has or may provide by written notice or, if there is no such address, the most recent address the party giving notice can locate using reasonable efforts. No failure or delay in exercising any right hereunder will operate as a waiver thereof, nor will any partial exercise of any right or power hereunder preclude further exercise. If any provision shall be adjudged by any court of competent jurisdiction to be unenforceable or invalid, that provision shall be limited or eliminated to the minimum extent necessary so that this arrangement shall otherwise remain in full force and effect and enforceable. This Agreement shall be deemed to have been made in, and shall be construed pursuant to the laws of the State of California and the United States without regard to conflicts of laws provisions thereof, and without regard to the United Nations Convention on the International Sale of Goods or the Uniform Computer Information Transactions Act. This is the complete and exclusive statement of the mutual understanding of the parties and supersedes and cancels all previous written and oral agreements and communications relating to the subject matter hereof and any waivers or amendments shall be effective only if made in writing; however, any pre-printed or standard terms of any purchase order, confirmation, or similar form, even if signed by the parties after the effectiveness hereof, shall have no force or effect. The substantially prevailing party in any action to enforce this Agreement will be entitled to recover its attorney’s fees and costs in connection with such action. As defined in FAR section 2.101, DFAR section 252.227-7014(a)(1) and DFAR section 252.227-7014(a)(5) or otherwise, all Products and accompanying documentation provided by Aviatrix Systems are “commercial items,” “commercial computer software” and/or “commercial computer software documentation.” Consistent with DFAR section 227.7202 and FAR section 12.212, any use, modification, reproduction, release, performance, display, disclosure or distribution thereof by or for the U.S. Government shall be governed solely by these terms and shall be prohibited except to the extent expressly permitted by these terms. Aviatrix Systems may make changes to the terms of this Agreement from time to time. When such changes are made, Aviatrix Systems will make the updated Agreement available to Licensee. Licensee’s continued use of the Product after such changes have been published shall constitute your binding acceptance of such changes. If you do not agree with a modification to the Agreement, you must notify us within thirty (30) days after receiving notice of modification. If you give Aviatrix Systems this notice, your subscription will continue to be governed by the terms and conditions of the Agreement prior to modification for the remainder of your current term only.

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