These Customer Terms of Use (“Customer Terms of Use” or “Agreement”) govern your (“your, “you” or “Customer”) use of software and services of Aviatrix Systems, Inc. and its Affiliates (“Aviatrix”, “we”, “us” and “our”). By executing a Software Order for any Aviatrix Offerings and/or otherwise accessing, using or receiving such Aviatrix Offerings (including through a Marketplace or Approved Source), you agree to these Customer Terms of Use. Unless already defined, all capitalized terms shall have the meaning in Section A below.

These Customer Terms of Use are structured into the following sections:

A. DEFINITIONS – contains the defined terms used throughout the Agreement.

B. STANDARD SERVICES TERMS – contains the standard terms that govern the use of Aviatrix Offerings. We offer secure cloud networking software in the form of Metered Software that is deployed in your Cloud Provider’s infrastructure (i.e., not hosted by us) or imaged on a Device and limited Configuration Services related to the planning, design, and implementation of the Software. These terms frame the Aviatrix Offerings.

C. TERMS PROCURE TO PAY – contains terms that only apply when you purchase Aviatrix Offerings directly from Aviatrix and do not apply for Metered Software where your payment is handled by the applicable Cloud Provider under its Marketplace program(s). All procure to pay terms with an Approved Source are between you and that Approved Source.

D. GENERAL LEGAL TERMS – contains other terms that govern your relationship with Aviatrix.

A. DEFINITIONS

“Agreement” or “Customer Terms of Use” means this Agreement, any applicable Service Description and any Software Order.

“Affiliate” means with respect to a Party, any entity which directly or indirectly controls, is controlled by or is under common control with such Party, where “control”, “controlled by” or “under common control” means the direct or indirect possession of more than fifty per cent (50%) of the equity of the particular entity type.

“Approved Source” means an Aviatrix authorized channel partner such as a value-added reseller or Services Provider, including when such channel partner transacts with you through a Marketplace.

“Aviatrix Offerings” means the Metered Software, Device(s) and Configuration Services that Aviatrix may make available to you pursuant to a Software Order.

“Cloud Provider” means a virtual private cloud infrastructure provider.

“Configuration Services” means any professional services such as training, planning, design, and implementation or other consultative services that we provide to you in support of your deployment of the Software pursuant to a Software Order and the applicable Services Description.

“Controller” means the cloud-native network orchestration software that we deliver to your Cloud Provider environment and that you use to implement the features and functionality of the Software such as a Tunnel, as further set forth in the Documentation.

“Customer Data” means any electronic data, content, information or software of Customer or its licensors that Aviatrix filters, stores, accesses, transmits or otherwise processes or uses in performing the Aviatrix Offerings for Customer, including, without limitation, any other data traffic, but excluding Software Metrics.

“Device” means a hardware appliance that we may sell to you or you purchase through an authorized Third-Party Provider. You deploy the Device(s) on your, or your Cloud Provider’s, premises to enable certain Metered Software functionality as set forth on a Software Order and further described in the Documentation. Device(s) are not available for purchase or use on a standalone basis without the applicable Software.

“Documentation” means Aviatrix published materials that describe the features and functionality of the Aviatrix Offerings.

“EEA” means the European Economic Area.

“Fees” means the fees you pay for the Aviatrix Offerings a) directly to Aviatrix, b) to a Cloud Provider through its Marketplace, or c) to an Approved Source, each as set forth on a Software Order and, if applicable, by your use of the Aviatrix Offerings.

“Licensed Unit(s)” means each billable element of the Metered Software functionality such as a Tunnel that you implement through your use of the Controller(s). A Private Offer may establish a usage limit and/or additional consumption allowance.

“Marketplace” means a Cloud Provider and other Aviatrix authorized marketplace where you may be able to procure some or all of the Aviatrix Offerings through your respective Marketplace account(s), including with an Approved Source.

“Metered Software” means the software functionality that Aviatrix makes available to you through a Marketplace on a metered Licensed Unit use basis pursuant to the applicable Software Order and the Documentation, including the Controller(s). Metered Software includes Software Support Services without separate Fees. The license term for Metered Software shall continue as long as you utilize any amount of Licensed Unit(s) and remain current in your payment obligations.  Metered Software may also be referred to as “Software”.

“Offer Period” means the period of time specified on the Software Order in which the Metered Software is available to you at modified rates.

“Party” or “Parties” means Customer and Aviatrix, individually or collectively, as applicable.

“Personal Data” means any information relating to an identified or identifiable natural person.

“Private Offer” means the modified Licensed Unit(s) rate offered to you during an Offer Period by Aviatrix or an Approved Source.

“Public Rates” means the Licensed Unit(s) rates that Aviatrix publishes on a Marketplace for Metered Software.

“SCCs” means the Standard Contractual Clauses for the transfer of personal data to third countries pursuant to Regulation (EU) 2016/679 which are available here.

“Service Description” means the document that describes the scope of services that are specific to certain Aviatrix Offerings such as Configuration Services.

“Service Provider” means a Customer that is in the regular business of utilizing the Aviatrix Offerings to provide services to its end customers for a fee.

“Software Metrics” means analytics and Licensed Unit data generated by your use of the Aviatrix Offerings to enable Software and Marketplace features and functionality including invoicing of Metered Software Fees, and to provide related Software Support Services to you.

“Software Order” means your subscription to Public Rates or acceptance of a Private Offer and  each Software Order will be binding on us and you, subject to this Agreement and incorporating its terms and conditions by reference.

“Software Support Services” means the support and maintenance services that we provide you as a component of the Aviatrix Offerings.

“Third-Party Provider(s)” means any third-party provider of products or services to which you have access to, or use of, in relation to the Aviatrix Offerings and that is subject to your agreement with such third-party pursuant to Section 17(a).

“Tunnel” means a secure point-to-point connection such as between two virtual cloud environments.

 

B. STANDARD SERVICES TERMS
1. Offers; License and Restrictions of Use.

a. Offers. We will provide you with the Metered Software, Devices and/or Configuration Services specified on a Software Order. Public Rates apply when you subscribe to use Metered Software on a Marketplace and Private Offer rates apply during an Offer Period.  Unless a Private Offer is modified or extended, the Public Rates will apply to your continued use of Metered Software after the Offer Period expires.

b. Configuration Services. All Configuration Services are provided directly by us to you and are governed solely by the terms of this Agreement.  Aviatrix does not act in the capacity of a subcontractor to any Approved Source for the provision of Configuration Services, and all Configuration Services you may procure through an Approved Source or a Marketplace are on a resold basis only.

c. Devices. One or more Device(s) may be necessary to implement certain Software functionality after being imaged with the requisite Software. The imaged Software does not enable Licensed Units until it is connected by the Controller to create a Tunnel or other features.  Device support is provided as a component of Software Support Services.

d. Cloud Providers. Cloud Providers provide the underlying infrastructure that you will access in your implementation and use of the Aviatrix Offerings.  These Cloud Providers are Third-Party Providers, and the performance of their offerings is subject exclusively to your agreement with such Cloud Provider.  While you may configure the Software to obtain a higher availability commitment from a Cloud Provider, under no circumstances shall such use be construed to obligate Aviatrix to any level of performance or obligation that is not expressly set forth in this Agreement. You acknowledge and agree that your use of the Controller(s) to increase Licensed Units will automatically generate additional Metered Software Fees or be allocated against a Private Offer rate structure when applicable.

e. License to Software. You are granted a non-exclusive, non-sublicensable, non-transferrable, non-assignable, limited license to, during the term of usage of the Software, for internal use (unless we authorize your use as a Services Provider) the Software (in object code form only) solely as necessary to access and use the Software for the purposes for which it is provided and only in accordance the Documentation. The Software may contain third-party code that is subject to its own licensing provisions.

f. Restrictions on Your Use of Aviatrix Offerings. You shall not: (i) attempt to disable or block the Software Metrics functionality of the Controller(s); (ii) license, sublicense, resell, rent, lease, transfer, assign, distribute, time-share or otherwise commercially exploit or make the Aviatrix Offerings available to any third-party, except in your capacity as an authorized  Service Provider, if applicable; (iii) alter, modify or create derivative works of the Aviatrix Offerings or Documentation; (iv) reverse engineer, decompile, disassemble, or otherwise seek to obtain the source code of the Aviatrix Offerings (or any component thereof) for any purpose; (v) send to or transmit over the Aviatrix Offerings any infringing, inappropriate, unlawful or tortious material or content or any malicious code; (vi) access the Aviatrix Offerings to build a product or service, (unless we have authorized you as a Service Provider) or copy any ideas, features, functions or graphics of the Aviatrix Offerings, or permit any third-party to do the same; (vii) attempt to gain unauthorized access to the Aviatrix Offerings or its related systems or networks including to perform any type of security scan; (viii) remove or obscure any proprietary or other notices contained in or on any Aviatrix Offerings, including any Documentation; or (ix) publicly disseminate information regarding the performance of the Aviatrix Offerings such as benchmarking results.

g. Your Responsibilities. You shall: (i) provide us with Licensed Unit information through the automated functionality of the Controller, or in the event that such automated functionality is inoperable, by reasonable inspection and audit; (ii) install Software updates, patches, and fixes as we make them available to you in order to maintain the Software at its current version;  (iii) prevent unauthorized or unlawful access to, or use of, the Aviatrix Offerings; (iv) maintain the security and integrity of the Aviatrix Offerings to which you have access or which are in your possession or control and immediately report any security breaches or suspected security breaches that affect or may affect the Aviatrix Offerings by contacting us through Software Support Services; and (v) perform your obligations in this Agreement and comply with Aviatrix’ reasonable requests in connection with the Aviatrix Offerings.

h. Service Providers. We may authorize you to act in the capacity of a Service Provider pursuant to a Software Order. Under such authorization, you remain designated as the Customer under this Agreement and your use of the Aviatrix Offerings is governed by this Agreement.   As a Service Provider, you shall: (i) obligate your end customers to adhere to these Terms of Use to the extent that such end customer has direct access to, or use of, the Aviatrix Offerings; (ii) remain responsible to us for your end customer’s non-compliance with these Terms of Use, particularly with respect to subsections (e) and (f) above; and (iii) provide us with Licensed Unit reporting for each of your end customers on a regular basis as we request.

i. Evaluation. We may grant you a temporary license to evaluate the Aviatrix Offerings limited strictly to the purpose of achieving the written objectives of the evaluation and for a limited period of time. If we permit you to access and use Aviatrix Offerings for a temporary evaluation period without any Fees, then NOTWITHSTANDING ANY CONTRARY PROVISION IN THIS AGREEMENT, ANY SUCH EVALUATION WILL  BE MADE AVAILABLE BY US TO YOU ON AN “AS IS” AND “AS AVAILABLE” BASIS, (I) WITHOUT ANY REPRESENTATION OR WARRANTY OF ANY KIND, WHETHER EXPRESS, IMPLIED OR STATUTORY TO THE FULLEST EXTENT PERMITTED BY LAW AND (II) WITHOUT ANY OBLIGATION OF US TO PROVIDE TECHNICAL SUPPORT OR ANY INDEMNITY FOR YOUR ACCESS TO, AND USE OF, THE AVIATRIX OFFERINGS DURING THE EVALUATION PERIOD.

 

2. Service Descriptions. The Service Descriptions for Software Support Services and Configuration Services are located at aviatrix.com/support-services/

 

3. Use of Subcontractors. We may use subcontractors in our reasonable discretion in the performance of any Aviatrix Offerings ordered under this Agreement; provided, however, we shall remain fully responsible and liable for the performance of any such subcontractor. Under no circumstances shall any Approved Source, Third-Party Provider be a subcontractor of Aviatrix.

 

4. Data Use, Security, and Data Privacy.

a. Data Use and Security. The Aviatrix Offerings are licensed to you for use in: (i) your Cloud Provider infrastructure environment; and/or (ii) where applicable and in accordance with the Documentation, on your premises.  You acknowledge and agree that through your use of the Software, Aviatrix has no access to your network data traffic, including any Customer Data contained therein.  Any Customer Data we may receive from you in the delivery of our Software Support Services and otherwise will be treated as Confidential Information. To provide the basic functionality of the Software, your use of the Aviatrix Offerings may generate Software Metrics, which includes Licensed Unit(s) usage data as may be accessed by Aviatrix and/or your Cloud Provider, as applicable, to establish Fees for Metered Software.  We may freely use Software Metrics for the purpose of providing the functionality of the Aviatrix Offerings and for any purpose that does not identify you or any of your authorized users.  You may have the ability within the functionality of the Controller(s) to opt out or limit the collection of certain Software Metrics, but in some cases the only way to opt out of Software Metrics collection is to discontinue your use of the Aviatrix Offerings.

b. Data Privacy. This clause solely applies to Customers based in the EEA: Each Party is a data controller in respect of any Personal Data processed in connection with this Agreement and any Personal Data, including any Personal Data contained in Customer Data, shared by either Party under this Agreement shall be shared by such Party as independent data controller. Aviatrix processes Personal Data in accordance with Our Privacy Policy, which can be found at https://aviatrix.com/privacy-policy/.  Any transfer of Personal Data from Customer to Aviatrix shall be governed by Module 1 (Controller-controller) of the SCCs that are hereby incorporated by reference into this Agreement. In case of any inconsistencies between the terms of this Agreement and the SCCs, the SCCs shall prevail. Clause 7 of the SCCs shall not apply. For the purposes of Annex I.A., Customer is the data exporter and Aviatrix is the data importer. Annex I.B. (description of transfer), Annex II (organizational and technical measures), and [the transfer impact assessment required under Clause 14 of the SCCs] can be accessed here. The SCCs between You and Us shall be governed by the laws of the Netherlands. Any dispute arising from the SCCs shall be resolved by the competent Court of Amsterdam, the Netherlands.

 

C. PROCURE TO PAY TERMS

The terms of this Section C shall only apply to you if you are purchasing Software, Device(s), or Configuration Services directly from us.  If you purchase Software, Device(s), or Configuration Services from an Approved Source or through a Marketplace, your payment obligations shall be subject to your terms and conditions with that Approved Source or Marketplace.  Aviatrix may collect Fees owed directly from you in the event that you fail to pay the applicable Marketplace invoice as these Cloud Provider Marketplace(s) act in the capacity of payment processing agent(s) for Aviatrix and are not the final arbiter of Fees due.

 

5. Fees and Payment. Unless otherwise expressly specified in a Software Order, you shall pay all Fees set forth therein within thirty (30) days of your receipt of our invoice. We will invoice you as follows: (i) monthly in arrears for Metered Software based on your actual Licensed Unit consumption calculated against either Public Rates or a Private Offer; and (ii) for any Configuration Services and/or Device(s), in full in advance. Any late payment shall be subject to interest that accrues at a rate of the lower of one and one half per cent (1.5%) per month or the highest rate permitted by law, plus costs of collection. Except as otherwise specified in a Software Order all Fees must be paid in United States Dollars and are non-cancellable (with the exception of Metered Software when consumed on Licensed Unit rate basis either as Public Rates or in a Private Offer) and non-refundable. Devices are shipped by the Third-Party Provider FCA (Incoterms 2010), Irvine, California, USA.

 

6. Taxes. The Fees do not include, and you shall be solely responsible for, all direct or indirect local, state, federal or foreign sales, use, GST, value-added withholding, or similar taxes or levies, other than taxes based on the income of Aviatrix. Such taxes or levies shall not be considered a part of a deduction from or an offset against Fees. If applicable, Customer shall provide evidence of its exemption from such taxes.

 

D. GENERAL LEGAL TERMS

 

7. Intellectual Property.

a. Proprietary Rights. Aviatrix and its licensors retain all right, title and interest, including all related intellectual property rights, in and to: (i) the Aviatrix Offerings; (ii) Documentation; (iii) its Confidential Information; (iii) any technology developed from any services (including Configuration Services and Software Support Services) performed by us for you; and (iv) all derivative works, improvements or modifications to the Aviatrix Offerings. No rights are granted to you except those expressly set forth in this Agreement. For clarity, Configuration Services performed by Aviatrix will not include custom work product or other work for hire deliverables. You retain all right, title and interest in and to all Customer Data.

b. Feedback. If you or any of your users provide us with any suggestions, ideas, improvements or other feedback with respect to the Aviatrix Offerings (“Feedback”), Aviatrix may use the feedback without restriction or obligation. You acknowledge that Aviatrix Offerings and/or Documentation incorporating Feedback are the property of Aviatrix. Customer Data and Confidential Information does not constitute Feedback.

 

8. Confidentiality. Each Party agrees that all code, inventions, know-how, business, technical and financial information it obtains (“Receiving Party”) from the disclosing Party (“Disclosing Party”) is the confidential information of the Disclosing Party (“Confidential Information”), provided that it is identified as confidential at the time of disclosure or should be reasonably known by the Receiving Party to be Confidential Information. This Agreement, the Documentation, the Aviatrix Offerings, fees and pricing information and any performance information (e.g., benchmarking results) relating to the Aviatrix Offerings are the Confidential Information of Aviatrix. Except as expressly authorized in this Agreement, the Receiving Party will: (a) hold Confidential Information in confidence (using reasonable methods of protection); (b) not use any such Confidential Information except in furtherance of this Agreement; and (c) not disclose any Confidential Information of the Disclosing Party to any party, except its employees, subcontractors and agents on a need-to-know basis and subject to terms of confidentiality no less restrictive than these terms. The Receiving Party’s nondisclosure obligation shall not apply to information which the Receiving Party can document: (i) was rightfully in its possession or known to it prior to receipt of the Confidential Information; (ii) is or has become generally available to the public through no fault of the Receiving Party; (iii) is rightfully obtained by the Receiving Party from a third-party without breach of any confidentiality obligation; or (iv) is independently developed by employees of the Receiving Party who had no access to such information. In the event that a Receiving Party is required to disclose Disclosing Party Confidential Information pursuant to a regulation, law or court order, it shall provide Disclosing Party with prior written notice thereof and reasonably assist Disclosing Party (at Disclosing Party’s cost and expense) in contesting such required disclosure. The Receiving Party acknowledges that disclosure or unauthorized use of Confidential Information would cause substantial harm for which damages alone would not be a sufficient remedy, and therefore that upon any such disclosure or unauthorized use by the Receiving Party, the Disclosing Party shall be entitled to seek appropriate equitable relief (without the posting of a bond or similar instrument) in addition to whatever other remedies it might have at law.

 

9. Warranties.

a. Mutual Warranties. Each Party represents and warrants to the other Party that it has the power and authority to execute, deliver, and perform its obligations under this Agreement.

b. Aviatrix Warranties. We warrant to you that the Aviatrix Offerings will operate in conformity in all material respects with the applicable Documentation and that any Configuration Services will be performed in a professional and workmanlike manner consistent with generally accepted industry standards. Your sole and exclusive remedy, and our sole liability, for any breach of this warranty shall be for us to correct or re-perform the applicable Aviatrix Offerings at our expense. The limited warranty in this Section 9(b):

i. shall only apply if you notify us in writing of a breach of this warranty; and
ii. shall not apply if the error or failure in performance was caused by misuse, unauthorized modifications, Third-Party Provider hardware, software or services, Customer Data or Force Majeure Event.

c. Customer Warranties. You represent and warrant that: (i) your use of the Aviatrix Offerings and all Customer Data is always compliant with, and all, applicable laws and regulations; and (ii) you have sufficient rights in the Customer Data to grant the rights granted to us herein and that the Customer Data does not infringe or otherwise violate the rights of any third-party and, solely for Customers based in the EEA, (iii) you have provided adequate fair processing information to data subjects (on your and our behalf) in respect of the processing of Personal Data required for the performance of this Agreement and (iv) you have on Our behalf complied with the information obligations set out in Section 8.2(a) of the SCCs. If you export Customer Data from one jurisdiction to another jurisdiction, you will ensure that you have all legal rights to do so including, without limitation, in compliance with all applicable data protection laws.

d. Disclaimers of Warranty. EXCEPT FOR THE LIMITED WARRANTY IN THIS SECTION 9, WE PROVIDE THE AVIATRIX OFFERINGS ON AN “AS IS” AND “AS AVAILABLE” BASIS. NEITHER AVIATRIX NOR ITS SUPPLIERS MAKE OTHER WARRANTIES OF ANY KIND AND SPECIFICALLY DISCLAIMS ANY AND ALL EXPRESS, IMPLIED, STATUTORY AND OTHER WARRANTIES, INCLUDING WITHOUT LIMITATION ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, GOOD TITLE, SATISFACTORY QUALITY OR NONINFRINGEMENT. WE DO NOT WARRANT THAT THE AVIATRIX OFFERINGS ARE ERROR-FREE OR THAT YOU WILL BE ABLE TO ACCESS OR USE AVIATRIX OFFERINGS WITHOUT PROBLEMS OR INTERRUPTIONS.

 

10. Limitations of Liability. IN NO EVENT SHALL EITHER PARTY HAVE ANY LIABILITY TO THE OTHER PARTY FOR ANY: (I) LOST PROFITS OR FOR ANY INDIRECT, SPECIAL, INCIDENTAL, PUNITIVE, OR CONSEQUENTIAL DAMAGES HOWEVER CAUSED AND WHETHER IN CONTRACT, TORT OR UNDER ANY THEORY OF LIABILITY, WHETHER OR NOT SUCH PARTY OR ITS SUPPLIERS HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES; OR (II) CUMULATIVE AMOUNTS IN EXCESS OF THE FEES PAID BY YOU FOR THE AVIATRIX OFFERINGS DURING THE TWELVE (12) MONTH PERIOD PRIOR TO THE FIRST EVENT OR OCCURRENCE GIVING RISE TO SUCH LIABILITY. EXCEPT AS SET FORTH BELOW, THE FOREGOING LIMITATIONS ON LIABILITY WILL NOT APPLY TO EITHER PARTY’S INDEMNITY OBLIGATIONS, EITHER PARTY’S BREACH OF SECTION 8 (CONFIDENTIALITY), OR YOUR BREACH OF YOUR PAYMENT OBLIGATIONS OR ANY LICENSE OR USE RESPONSIBILITIES OR RESTRICTIONS. FOR THE AVOIDANCE OF ANY DOUBT, UNDER NO CIRCUMSTANCES WILL WE HAVE ANY LIABILITY TO YOU FOR COST OF PROCUREMENT OF REPLACEMENT OF SUBSTITUTE PRODUCTS OR SERVICES.

 

11. Indemnification.

a. Aviatrix Indemnity. We shall defend you, at our cost, from and against all third-party claims alleging that the Aviatrix Offerings infringe a third-party’s copyright, trade secret, trademark or patent. In addition, we will indemnify and hold you harmless for any damages and losses (including reasonable attorney’s fees) awarded against you or agreed by us in settlement of such claims.

i. In response to a third-party claim per this Section11(a) or if such a claim is in our determination likely to occur, we may: (a) obtain for you the right to use the allegedly infringing item; (b) substitute a non-infringing replacement for such item; or (c) if in our opinion neither item (a) nor (b) are reasonably available, terminate the Agreement and refund to you the Fees paid by you in an amount pro-rated for the portion of the Offer Period for the Aviatrix Offerings which was paid by you but not rendered by us.
ii. Our indemnification obligation set out in this section shall not apply if the claim arises out of: (a) the use of the Aviatrix Offerings in combination with any software, hardware, network or system not supplied by us where the alleged infringement is caused by such combination; (b) any modification or alteration of the Aviatrix Offerings other than by us; (c) your continued allegedly infringing activity after being informed of a modification that would avoid the alleged infringement; (d) our compliance with your designs, specifications or instructions; or (e) the use of the Aviatrix Offerings other than in accordance with the terms and conditions of this Agreement including the Documentation. THIS SECTION 11(a) SETS FORTH OUR SOLE LIABILITY, AND YOUR SOLE AND EXCLUSIVE REMEDY, WITH RESPECT TO ANY CLAIM OF INTELLECTUAL PROPERTY INFRINGEMENT or misappropriation.

b. Customer Indemnity. You shall defend us, at your cost, from and against all third-party claims related to your use of the Aviatrix Offerings in breach of your warranties as set out in Section 9(c). In addition, you will indemnify and hold us harmless for any damages and losses (including reasonable attorney’s fees) awarded against us or agreed by us in settlement of such claims.

c. Procedure. Any indemnification obligation set forth in this section (yours or ours) is subject to the indemnifying Party receiving: (i) immediate written notice from the indemnified Party of such claim; (ii) the exclusive right to control and direct the investigation, defense, or settlement of such claim; and (iii) all reasonably necessary cooperation of the indemnified Party at indemnifying Party’s expense.

 

12. Term and Termination; Suspension of Aviatrix Offerings.

a. Term. This Agreement begins on the effective date of a Software Order and continues until either: a) you discontinue your use of the Software; or b) it is terminated in accordance with this Section 12.

b. Termination. Either Party may terminate this Agreement as follows: (i) upon thirty (30) days written notice if the other Party breaches any material provision of this Agreement and does not cure such breach; (ii) effective immediately and without notice if the other Party ceases to do business or otherwise terminates its operations, except as a result of a permitted assignment per this Agreement; or (ii) if the other Party seeks protection under any bankruptcy, receivership, trust deed, creditor’s arrangement or comparable proceedings, if such proceeding is instituted against that Party and not dismissed within sixty (60) days thereafter. Any termination of this Agreement will automatically terminate all Software Orders.

c. Effect of Termination. Upon termination or expiration of this Agreement your right to use the Aviatrix Offerings shall immediately cease. Termination or expiration of this Agreement shall not discharge you of any payment obligation for unpaid Fees including those payment obligations arising in the then-current Private Offer, except if you terminate for our breach per Section 12(b) above. Only in the event of your termination for Aviatrix’s breach, you will be entitled to a refund of any unearned prepaid Fees prorated to the end of the payment period for such Fees. The following Sections shall survive any expiration of termination of this Agreement: Sections 1(d), 4, C, 7, 8, 9 (c), 10, 11, 12(c), 14, 15, 16 and 17.

d. Suspension. If your payment of Fees is overdue (including for non-payment by your Approved Source) or if we in good faith believe that your use of the Aviatrix Offerings breaches this Agreement, we reserve the right to, and in addition to any of our other rights or remedies, suspend your access thereto without liability to you until, as applicable, such Fees are paid in full or you are no longer in breach of this Agreement.

 

13. Press Release and Publicity. Neither Party may issue a press release in connection with this Agreement, or the transaction contemplated herein without the prior written consent of the other Party; except that we may use your name and logo on our website and in our promotional materials as part of a general list of customers unless you inform us otherwise.

 

14. Assignment. Neither Party may assign this Agreement or any of its rights or obligations, without the other Party’s prior written consent; except that we may assign this Agreement without your consent, in connection with a merger, acquisition, corporate reorganization or sale of all or substantially all of Aviatrix assets. Any non-permitted assignment per this section is void and of no effect.

 

15. Export. Pursuant to all relevant export laws and regulations, including but not limited to the U.S. Export Administration Regulations (collectively, “Export Controls”), you expressly agree that you shall not, and shall cause your representatives to agree not to, export, directly or indirectly, re-export, divert, or transfer the Aviatrix Offerings, Documentation or Aviatrix Confidential Information to any destination, company or person restricted or prohibited by Export Controls.

 

16. Government Users. If you are a branch or agency of the United States Government, the Aviatrix Offerings, Documentation and any other services provided by us hereunder, are comprised of “commercial computer software” and “commercial computer software documentation” as such terms are used in 49 C.F.R. 12.212, and are provided to you either: (i) for acquisition by or on behalf of civilian agencies, consistent with the policy set forth in 48 C.F.R.  12.212; or (ii) for acquisition by or on behalf of units of the Department of Defense, consistent with policies set forth in 48 C.F.R. 227.7202-1 and 227.7202-3.

 

17. Miscellaneous.

a. Third-Party Providers. You may need, or otherwise choose, to engage Third-Party Providers for use with the Aviatrix Offerings. We assume no responsibility for, and specifically disclaim any liability or obligation with respect to, any Third-Party Providers; and any exchange of data or other interaction between you and such Third-Party Provider is solely between you and such Third-Party Provider. You acknowledge and agree that it is your responsibility to ensure that your use of such Third-Party Providers does not cause you to breach in any way your obligations to us with respect to the Aviatrix Offerings and that your use of the Aviatrix Offerings do not in any way cause you to breach your obligations to any third-party.

b. Independent Contractors. The Parties to this Agreement are independent contractors. There is no relationship of partnership, joint venture, employment, franchise or agency created hereby between the Parties.  Neither Party will have the power to bind the other or incur obligations on the other Party’s behalf without the other Party’s prior written consent.

c. Force Majeure. Neither Party shall be liable to the other Party for any delay or failure to perform any obligation under this Agreement (except for a failure to pay fees) if the delay or failure is due to unforeseen events which occur which are beyond the reasonable control of such Party (“Force Majeure Event”), such as a strike, blockade, war, act of terrorism, riot, natural disaster, failure or diminishment of power or telecommunications or data networks or services, or refusal of a license by a government agency. Any Party claiming a Force Majeure Event hereunder shall provide prompt notice thereof to the other Party and make commercially reasonable efforts to overcome the effect of such Force Majeure Event.

d. Severability. If any provision of this Agreement shall be adjudged by any court of competent jurisdiction to be unenforceable or invalid, that provision shall be limited to the minimum extent necessary so that this Agreement shall otherwise remain in effect.

e. Governing Law; Jurisdiction and Venue. This Agreement shall be governed by the laws of the United States of America and the State of California, excluding its conflict of laws rules. The United Nations Convention on the International Sale of Goods and the Uniform Computer Information Transactions Act are specifically excluded from application to this Agreement. The Parties hereby submit to the exclusive jurisdiction of, and waive any venue jurisdiction or venue objections against, the state and Federal courts located in Santa Clara County, California.

f. Notice. Any notice or communication required or permitted under this Agreement shall be in writing to the Parties at the addresses set forth on the Software Order or at such other address as may be given in writing by either Party to the other and shall be deemed to have been received by the addressee: (i) if given by hand, immediately upon receipt; (ii) if given by overnight courier service, the first business day following dispatch; (iii) if given by registered or certified mail, postage prepaid and return receipt requested, the second business day after such notice is deposited in the mail; or (iv) via electronic mail (“email”) which includes a subject header that states this e-mail is a formal notice under our Agreement. If to Aviatrix, it should be sent to [email protected]; to Customer (insert email address here). Emails are deemed to be received the first business day after the email is sent.

h. Modifications or Waivers. No modification, waiver of rights or amendment of this Agreement shall be effective and binding, unless in writing signed by the duly authorized representatives of both Parties. No waiver will be implied from conduct or failure to enforce or exercise rights under this Agreement.

i. Entire Agreement and Precedence. This Agreement, including each Software Order and any Service Description are the complete and exclusive statement of the mutual understanding of the Parties and supersedes all previous written and oral agreements and communications relating to the subject matter of this Agreement. Purchase orders and similar documents issued by you are for administrative purposes only, and any additional or different terms or conditions contained in any such order shall not apply even if the order is accepted or performed on by us and such terms are hereby rejected. In the event of a conflict between any Software Order and this Agreement, the Software Order will control. Furthermore, in the event of a conflict between any Service Description and this Agreement, the Service Description will control.