End User Software License Agreement
These license terms, along with the Order Confirmation delivered to you (“Licensee”) by either Cumulus Networks, Inc. (“Cumulus”) or a reseller who is authorized by Cumulus to distribute Cumulus software to you (“Authorized Reseller”) are an agreement between Cumulus and you. These terms apply to the software with which they are distributed, including the media on which you received it, if any. The terms also apply to any Cumulus updates, supplements, and support services for the software that Cumulus may supply to you, unless other terms accompany those items. If so, those terms apply. By using the software, you confirm that you have a valid Order Confirmation with respect to every copy of the software that you use and that you accept these terms in connection with each copy.
IF YOU DO NOT ACCEPT THESE TERMS, DO NOT USE THE SOFTWARE. BY USING THE SOFTWARE, YOU ACCEPT AND AGREE TO ABIDE BY THIS SOFTWARE LICENSE AGREEMENT (“Agreement”).
EVALUATION, BETA, AND NFR LICENSES. If you receive a license to the Product that is identified by Cumulus as an Evaluation License or Beta License, then the following additional limitations apply to your license: unless otherwise authorized by Cumulus in writing, your use of the Product is (i) only permitted for a term of thirty days in an internal non-production environment (testing and evaluation only); and is (ii) limited to no more than five concurrent instances of the Product, solely running on hardware owned or solely controlled by you, unless otherwise authorized by Cumulus. If you a receive a license to the Product that is identified by Cumulus as a Not-For-Resale (NFR) license, then the following additional limitations apply to your license: your use of the Product is (i) only permitted for one instance on hardware owned or solely controlled by you, while you are a partner in good standing under the applicable Cumulus partner program that made you eligible to receive the NFR license, (ii) limited to product demonstrations, tests, and training only (no production, information processing or infrastructure use allowed). Notwithstanding anything to the contrary, Evaluation, Beta License, NFR licensed Products, and any Product (or portion thereof) identified by Cumulus as Early Access are provided “AS-IS” without indemnification, support, or warranties of any kind, expressed or implied. You assume all risk associated with any use of Evaluation, Beta License, and NFR licensed Products.
THIS AGREEMENT MAY ONLY BE SUPERSEDED BY A SEPARATE, SIGNED WRITTEN AGREEMENT WITH CUMULUS NETWORKS, INC. THAT EXPRESSLY REFERENCES AND SUPERSEDES THIS AGREEMENT (A “SUPERSEDING AGREEMENT”).
The parties agree as follows:
a. “Product” shall mean the executable version(s) of the networking software made available by Cumulus as explicitly defined in the Order Confirmation(s) (as defined in Section 3(a)) governed by this Agreement and as made available to Licensee, including all updates and new releases of the Product made available to Licensee under this Agreement and the applicable end-user documentation.
b. “Proprietary Information” means all inventions, algorithms, know-how and ideas and all other business, technical and financial information a party obtains from the other party if: a) identified as confidential or proprietary at or before disclosure, or b) a reasonable person would presume such information to be confidential given the content or circumstances of the disclosure.
c. “Proprietary Rights” shall mean patent rights, copyrights, trade secret rights, sui generis database rights and all other intellectual and industrial property rights of any sort.
2. License Grant.
a. Subject to full payment under Section 3 and to Licensee's compliance with the other terms and conditions of this Agreement, Cumulus grants to Licensee, and only Licensee, under all Proprietary Rights of Cumulus, a limited, non-exclusive, fully paid-up license to reproduce and internally use for Licensee’s benefit: the number of units of the Product only for the applicable license term length specified in the corresponding Order Confirmation (the “License Term”); solely according to the limitations (e.g., maximum port speeds, license portability, the applicable switch silicon, and related limitations) as each is so specified in the corresponding Order Confirmation.
b. The foregoing license does not allow any sublicense, distribution or disclosure of the Product to any third party and Licensee agrees that it will not engage in any such sublicensing, disclosure or distribution.
c. Licensee shall not (and shall not allow its personnel or any third party to): (i) modify or create derivative works of the Product; (ii) reverse engineer or attempt to discover any source code or underlying ideas or algorithms of the Product (except to the extent that applicable law prohibits reverse engineering restrictions), (iii) remove or alter any product identification, trademark, copyright or other notices embedded within or appearing within or on the Product; or (iv) publish or otherwise distribute the results of benchmarking or performance studies to third parties without prior written consent from Cumulus. Licensee shall be solely responsible for the observance and compliance with all terms and conditions hereunder by its employees, contractors, service providers and agents and any other third party who has been permitted access to the Product as a result of Licensee’s action or inaction. Licensee shall indemnify, hold harmless and defend Cumulus and its licensors from and against any claims or suits, including attorneys' fees and expenses, which arise or result from any unauthorized or illegal use or distribution of the Product.
d. The Product includes open source software packages (collectively, the “Open Source Software”). Each open source software package included in the Product is made available to Licensee in accordance with its applicable open source software package license. In the event of any conflict between an open source software package license and the text of this Agreement, the open source software package license shall control with respect to that specific open source package only.
e. The Product is governed by export laws, restrictions, and regulations of the United States. Licensee will not export or re-export, or allow the export or re-export of the Product in violation of any such laws, restrictions or regulations.
f. The Product (i) was developed at private expense and includes trade secrets and confidential information; (ii) is a Commercial Item consisting of Commercial Computer Software and Commercial Computer Software Documentation regulated under DFARS Section 227.7202 and FAR Section 12.212 and shall not be deemed to be Noncommercial Computer Software or Noncommercial Computer Software Documentation under any provision of DFARS; and (iii) is NOT offered to US Government agencies under the Commercial Computer Software License set forth at FAR 52.227-19. Consistent with 48 CFR 12.212 and 48 CFR 227.7202 as applicable, the Product is licensed to government end users solely as a Commercial Item and with only those rights as are granted to other end users under the terms of this Agreement. This section 2(f) is in lieu of and supersedes any clause in the FAR, DFAR, or other FAR supplement clauses. Unpublished rights reserved under the copyright laws of the United States.
3. Price; Payment; Records.
a. During the term of this Agreement, Licensee may place requests for additional Purchased Licenses by submitting orders to either Cumulus or an Authorized Reseller. Cumulus or the Authorized Reseller will respond with a formalized and accepted order confirming the number of Purchased Licenses, the License Term, the total price, any taxes due, and any additional terms and conditions with respect to Purchased Licenses (each such form, an “Order Confirmation”). Each Order Confirmation is hereby incorporated into this Agreement in its entirety. Each Purchased License set forth on an Order Confirmation shall enable Licensee to create a single copy of the Product and use the copy of the Product in accordance with the License Grant set forth in Section 2.
b. During the term of this Agreement, Licensee shall be entitled to buy Purchased Licenses in accordance with the Order Confirmations delivered by Cumulus to Licensee (exclusive of taxes, if any). If so specified in the corresponding Order Confirmation, previously Purchased Licenses will terminate immediately as set forth in such Order Confirmation and be replaced by new Purchased Licenses (such replacement, the “Conversion”). The terms applicable to Conversions will be specified in the corresponding Order Confirmation and/or a schedule describing the specifics of such Conversion (such schedule, the “Conversion Notice”).
c. Licensee will pay to Cumulus (or an Authorized Reseller) all applicable fees set forth in each Order Confirmation (the “Fees”) within thirty (30) days of receipt of each Order Confirmation, or as otherwise agreed between Licensee and an Authorized Reseller. The applicable currency will be stated on the Order Confirmation; otherwise it is US dollars. Fees are not refundable. Unless explicitly identified as Taxes on the Order Confirmation, all amounts due are exclusive of taxes, withholding, duties, levies, tariffs, and other governmental charges (including without limitation VAT), excluding taxes on net income of Cumulus (collectively, “Taxes”), and Licensee is responsible for payment of all Taxes. The parties will reasonably cooperate to lawfully minimize Taxes. In the event Licensee does not pay Cumulus or an Authorized Reseller any portion of the Fees when due, Licensee shall also pay Cumulus or the Authorized Reseller a late payment fee in the amount of 1.5% of the total amount outstanding per month for the period any such Fees are delinquent, unless otherwise agreed between Licensee and the Authorized Reseller.
d. During the Term of this Agreement and for one (1) year following its termination, Licensee will create and maintain records regarding Licensee’s use of the Product, which records shall include, without limitation, each installation of a copy of the Product and a unique identifier for the hardware where it is installed (collectively, "Records"). At the request of Cumulus, Licensee will promptly provide such Records to Cumulus for the purpose of verifying compliance with this Agreement. In the event that Licensee fails to create, maintain or deliver Records as required under this Section or in the event of any dispute as to the accuracy of such Records, Cumulus may audit Licensee’s use of the Product (e.g., via review of copies of applicable log files, etc.), at any location in which the Product is or has been installed or otherwise utilized by Licensee.
4. Delivery and Support.
a. After delivery of the first Order Confirmation under this Agreement, Cumulus will promptly deliver to Licensee one copy of the Product in executable form.
b. Licensee may order support services from Cumulus as set forth in the corresponding Order Confirmation, and subject to the payment by Licensee of the applicable support fees. Licensee acknowledges and agrees that Cumulus support is subject to the terms and conditions set forth at the following URL: https://cumulusnetworks.com/support/overview/ (the “Cumulus Support Program”).
c. Unless contractually or legally prohibited from doing so, Cumulus will provide Licensee updates and new releases of the Product that it makes generally commercially available to Cumulus customers, provided Licensee has one or more Purchased Licenses that are in good standing under this Agreement, and Licensee has ordered and paid for the Cumulus Support Program as specified in the corresponding Order Confirmation.
5. Publicity; Agreement Disclosure; Trademarks.
a. Cumulus shall have the right to reference Licensee as a customer without disclosing the terms of this Agreement. Except as required by law or otherwise set forth in this Agreement, all public announcements regarding the terms of this Agreement shall be coordinated between Cumulus and Licensee by mutual agreement.
b. Except as otherwise specified herein, neither party may use any of the other party’s trademarks and service marks (“Marks”) except in accordance with written (including electronic communications) approval of the other party. Licensee grants Cumulus a limited license to use Licensee’s Marks in accordance with Licensee’s Marks usage guidelines for the sole purpose of identifying Licensee as a customer. The parties will not otherwise use or register (or make any filing with respect to) the other party’s Marks anywhere in the world. Neither party will contest anywhere in the world the use by or authorization by the other party of any of such party’s Marks. No other right or license with respect to any trademark, tradename, or other designation is granted under this Agreement.
6. Prohibition Against Assignment. Neither this Agreement nor any rights, licenses or obligations hereunder, may be assigned by either party without the prior written approval of the non-assigning party; any prohibited purported assignment shall be void. Notwithstanding the foregoing, either party may assign this Agreement or delegate its rights and obligations to any acquirer of all or of substantially all of such party's assets or business or equity securities pertaining to the subject matter of this Agreement, provided however, that in the event of any such assignment, upon receipt of notice of assignment, the non-assigning party shall have a period of thirty days to terminate this Agreement upon written notice.
7. Term of Agreement. The term of this Agreement shall run until the end of the last to expire License Term. This Agreement will automatically terminate, including the License grants in Section 2 if Licensee fails to comply with any of the conditions in Section 2. This Agreement may be terminated if either party materially fails to perform or comply with this Agreement or any material provision hereof. Termination shall be effective thirty (30) days after notice of termination to the defaulting party if the defaults have not been cured within such thirty (30) day period.
8. Survival. Rights to payment, Sections 1, 2(b-e), 3(b), 6, 7, 8, 9, 10, 11, 12, 13 (b-d), and 14 and, except as otherwise expressly provided herein, any right of action for breach of this Agreement prior to termination shall survive any termination of this Agreement. In the event of termination for breach by Cumulus, all Purchased Licenses shall survive termination until the end of the applicable License Term. In the event of termination for Licensee’s breach, all Purchased Licenses shall immediately terminate.
9. Notices and Requests. All notices, consents, authorizations, and requests in connection with this Agreement shall be deemed given immediately after they are sent by air express courier, charges prepaid; and addressed with Attention to the Legal Department to the applicable address set forth in the most recent Order Confirmation governed by this Agreement or to such other address as the party to receive the notice or request so designates by written notice under this Section 9 to the other.
10. Controlling Law; Attorney’s Fees. This Agreement shall be governed by and construed under the laws of the State of California and the United States without regard to its conflicts of laws provisions and without regard to UCITA or the United Nations Convention on Contracts for the International Sale of Goods. The sole jurisdiction and venue for actions related to the subject matter hereof shall be the California state and U.S. federal courts in Santa Clara County, California. Both parties consent to the jurisdiction and venue of such courts and agree that process may be served in the manner provided herein for giving of notices or otherwise as allowed by California or federal law. The prevailing party in any dispute shall be entitled to recover its reasonable costs attorneys’ fees, and other expenses.
The pricing terms of this Agreement, the Product and underlying inventions, algorithms, know-how and ideas are Cumulus Proprietary Information. Except as expressly and unambiguously allowed herein, Licensee will hold in confidence and not use or disclose any Proprietary Information and its employees and contractors will be similarly bound in writing. Nothing herein shall permit the receiving party to disclose or use, except as explicitly permitted elsewhere in this Agreement, confidential information of the disclosing party and then only on an “as-needed” basis for purposes of this Agreement. Upon any termination of this Agreement, Licensee will promptly return or destroy any Proprietary Information and any copies, extracts and derivatives thereof, except as otherwise set forth in this Agreement. Additionally, Licensee will promptly delete any and all copies of the Product i) as soon as the applicable Purchased License expires with respect to that copy of the Product; and ii) prior to any distribution of hardware where the Product is installed to any third party, including a hardware reseller or manufacturer. Each party acknowledges that its breach of this Section 11 would cause irreparable injury to the other for which monetary damages are not an adequate remedy. Accordingly, a party will be entitled to seek injunctions and other equitable remedies in the event of such a breach by the other.
12. Limited Liability. EXCEPT AS OTHERWISE PROVIDED BELOW, AND NOTWITHSTANDING ANYTHING ELSE IN THIS AGREEMENT OR OTHERWISE, NEITHER PARTY SHALL BE LIABLE OR OBLIGATED UNDER ANY SECTION OF THIS AGREEMENT OR UNDER CONTRACT, NEGLIGENCE, STRICT LIABILITY OR OTHER LEGAL OR EQUITABLE THEORY (A) FOR ANY AMOUNTS IN EXCESS OF THE AGGREGATE OF THE LICENSE FEES PAID TO IT (IN THE CASE OF CUMULUS) OR (IN THE CASE OF LICENSEE) PAID OR OWED BY IT HEREUNDER, OR (B) ANY INCIDENTAL OR CONSEQUENTIAL DAMAGES, LOST PROFITS (EXCEPT AMOUNTS PAYABLE UNDER SECTION 3) OR LOST OR CORRUPTED DATA OR INTERRUPTED USE OR (C) COST OF PROCUREMENT OF SUBSTITUTE GOODS, TECHNOLOGY OR SERVICES. THE LIMITATIONS IN THIS SECTION 12 SHALL NOT APPLY TO BREACHES OF SECTIONS 2(b-e) AND 11 OR TO ACTIONS OF LICENSEE BEYOND THE SCOPE OF THE LICENSE GRANT HEREUNDER.
a. Cumulus warrants to Licensee that the Product will be of good quality and developed using good workmanship in accordance with the highest professional standards. Licensee’s sole remedy for breach of this warranty or for product defects is its rights under Section 4(b). Cumulus makes no warranty regarding freedom from bugs or uninterrupted use.
b. The Product is not designed, intended, or certified for use in components or systems intended for the operation hazardous systems or applications (e.g. weapons, weapons systems, nuclear installations, means of mass transportation, aviation, life-support computers or equipment (including resuscitation equipment and surgical implants), pollution control, hazardous substances management, or for any other dangerous application) in which the failure of the Product could create a situation where personal injury or death may occur. Licensee understands that use of the Product in such applications is fully at the risk of Licensee, and Licensee hereby assumes all such risk.
c. EXCEPT AS EXPRESSLY SET FORTH ABOVE, CUMULUS MAKES NO WARRANTIES TO ANY PERSON OR ENTITY WITH RESPECT TO THE PRODUCT AND DISCLAIMS ALL IMPLIED WARRANTIES, INCLUDING WITHOUT LIMITATION WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT.
d. EACH PARTY RECOGNIZES AND AGREES THAT THE WARRANTY DISCLAIMERS AND LIABILITY AND REMEDY LIMITATIONS IN THIS AGREEMENT ARE MATERIAL BARGAINED FOR BASES OF THIS AGREEMENT AND THAT THEY HAVE BEEN TAKEN INTO ACCOUNT AND REFLECTED IN DETERMINING THE CONSIDERATION TO BE GIVEN BY EACH PARTY UNDER THIS AGREEMENT AND IN THE DECISION BY EACH PARTY TO ENTER INTO THIS AGREEMENT.
14. General. This Agreement constitutes the entire agreement between the parties with respect to the subject matter hereof and merges all prior and contemporaneous communications. It shall not be modified except by a written agreement dated subsequent to the date of this Agreement and signed on behalf of Licensee and Cumulus by their duly authorized representatives. If any provision of this Agreement shall be held by a court of competent jurisdiction to be illegal, invalid or unenforceable, that provision shall be limited or eliminated to the minimum extent necessary so that this Agreement shall otherwise remain in full force and effect and enforceable. No waiver of any breach of any provision of this Agreement shall constitute a waiver of any prior, concurrent or subsequent breach of the same or any other provisions hereof, and no waiver shall be effective unless made in writing and signed by an authorized representative of the waiving party.