IMPORTANT: This End User License Agreement (“Agreement”) is a legal agreement between you (either as an individual or as a legal entity that you represent as an authorized employee or agent”) (“Licensee”) and Apstra, Inc. (“Apstra”) that governs your use of one or more of the Apstra’s software and its related documentation (“Software”).
PLEASE READ ALL THE TERMS AND CONDITIONS OF THIS AGREEMENT CAREFULLY BEFORE DOWNLOADING OR INSTALLING THE SOFTWARE. BY DOWNLOADING THE SOFTWARE OR CLICKING ON THE BUTTON ASSENTING TO THIS AGREEMENT, YOU ARE INDICATING THAT YOU HAVE READ, UNDERSTOOD AND ACCEPT THIS AGREEMENT, AND THAT YOU AGREE TO BE BOUND BY THE TERMS AND CONDITIONS STATED BELOW AS OR ON BEHALF OF LICENSEE. IF YOU DO NOT AGREE WITH THE TERMS OF THIS AGREEMENT, DO NOT DOWNLOAD, INSTALL, COPY, OR OTHERWISE USE THE SOFTWARE, AND PROMPTLY RETURN THE UNUSED SOFTWARE TO THE POINT OF PURCHASE.
1. Software License.
(a) License Grant. Subject to Licensee’s compliance with the terms and conditions of this Agreement and payment of the applicable license fee, Apstra grants to the Licensee a non-exclusive, non-transferable, non-sublicensable, limited license to access and use the Software, in object code form only, solely for Licensee’s internal business purposes in accordance with this Agreement and, if applicable, with the terms set forth in an order form with Apstra.
(b) Evaluation License. If Licensee is licensing the Software for evaluation purposes, Licensee’s use of the Software is only permitted in a non-production environment and for the evaluation period. Notwithstanding any other provision in this Agreement, an Evaluation License of the Software is provided “AS-IS” without indemnification, support or warranty of any kind, expressed or implied.
(c) Third Party Technologies. The Software may include or be bundled with other software programs licensed under different terms and/or licensed by a vendor other than Apstra. Use of any software programs accompanied by a separate license agreement is governed by that separate license agreement and not the terms of this Agreement, except that Sections 7(c) and 8 shall apply to such third-party software. Any third-party software that may be provided with the Software is included for use at Licensee’s option. Please review the notices that accompany the Software for the separate license notices and requirements for the third-party software. Apstra is not responsible for any third party’s software and shall have no liability for Licensee’s use of third party software.
(d) Professional Services. If Apstra provides any professional services to Licensee (whether at no charge or for an additional fee) to install, integrate or customize the Software, then any inventions, technology, developments or other work product developed during or resulting from such services (“Work Product”) shall be considered part of the Software licensed to Licensee under this Agreement. Apstra warrants that all such services ordered and paid for by Licensee will be performed in a professional manner consistent with generally accepted industry standards. If there is a breach of the foregoing warranty, Licensee’s sole and exclusive remedy, and Apstra’s sole and exclusive liability, will be to reperform the services at no additional charge to Licensee to the extent such services are capable of being reperformed and to the extent necessary to cure such breach or, at Apstra’s sole option and discretion, Apstra will refund a prorated portion of the fees paid for the affected services.2. Restrictions.
Apstra reserves all rights not expressly granted to Licensee under this Agreement. Licensee may not (i) rent, loan, lease, sublease, assign or otherwise transfer of dispose of the Software or its documentation; or (ii) make the functionality of the Software available to multiple users through any means, including, without, limitation, by uploading the Software to a network or file-sharing service or through any hosting, application services provider, service bureau or any other type of service. The Software contains copyrighted material, trade secrets and other proprietary material. Accordingly, Licensee shall not, without the prior written permission of Apstra, permit anyone else to disassemble, decompile, or reverse engineer the Software in order to obtain the source code, which is a trade secret of Apstra and/or its licensors. Licensee may not copy, modify, alter, or prepare derivative works based upon the Software (including documentation) in whole or in part.3. Ownership.
No title to or ownership in the Software is transferred to Licensee. Licensee acknowledges and agrees that Apstra and its licensors own and retain all rights, title and interest in the Software, including any Work Product incorporated in the Software, and ownership of all intellectual property rights therein, and including any derivative works, modifications, adaptations or copies thereof. The Software is the proprietary product of Apstra and its licensors and is protected by United States copyright laws and international provisions. Licensee owns the media on which the Software is recorded, if any. Licensee agrees not to attempt in any way to obliterate, remove or destroy the trade secret or copyright notice in any copies of the Software. Any feedback, suggestions or ideas relating to the Software or Work Product provided by Licensee to Apstra (collectively “Feedback”) shall be owned by Apstra and Licensee hereby assigns any ownership interest in such Feedback to Apstra and acknowledges that such Feedback may be used by Apstra without obligation to Licensee.
4. Technical Support.
Licensee must register with Apstra in order to be eligible for technical support via telephone or electronic mail. During any period for which Licensee shall pay for Support, Licensee will have access to technical support for the Software for the technical contact designated by Licensee, subject to Licensee’s compliance with Apstra’s instructions for accessing such support and Apstra’s standard verification procedures. Licensee may extend technical support on an annual fee basis in accordance with Apstra’s then-current pricing and Support and Maintenance Terms; provided, however, that Apstra is under no obligation to make technical support available or otherwise provide Licensee with updates or error corrections of the Software (collectively “Releases”). If Apstra, in its sole option, supplies Releases to Licensee, the Releases will be considered part of Software, and subject to the terms of this Agreement.
(a) Term. This Agreement will be deemed to commence on the date that the Software is made available to Licensee and shall remain in effect during the term for which Licensee licenses the Software.
(b) Termination. Licensee may terminate this Agreement at any time by ceasing to use the Software and destroying all copies of the Software and documentation. This Agreement will terminate immediately without notice from Apstra if Licensee fails to comply with any term or provision of this Agreement.
(c) Termination for Breach. Apstra may terminate this Agreement in its entirety effective immediately upon written notice to Licensee if: (i) Licensee breaches any provision of this Agreement and does not cure the breach within thirty (30) days after receiving written notice thereof from Apstra; (ii) Licensee fails to pay any portion of the fees under an applicable order within thirty (30) days after receiving written notice from Apstra that payment is past due; or (iii) Licensee commits a material breach that is not capable of being cured.
(d) Effect of Termination. Upon termination or expiration of this Agreement, Licensee must immediately cease using the Software and its related documentation and any Confidential Information. Within five (5) business days of the termination of this Agreement, Licensee will remove all copies of the Software from Licensee’s systems and locations, in whole or in part, including all permitted archival and back-up copies and destroys the same. Sections 2, 3, 5(d), 6, 7(c) and 8 through 12 shall survive the termination of this Agreement.6. Confidentiality.
(a) Obligations. For purposes of this Agreement, “Confidential Information” means: (i) business and technical information and any source code or binary code, which Apstra discloses to Licensee related to the Software; (ii) Licensee’s feedback based on Software; and (iii) the terms, conditions, and existence of this Agreement. Licensee may not disclose or use Confidential Information, except for the purpose of performing Licensee’s obligations specified in this Agreement. Licensee will protect the Confidential Information with the same degree of care, but not less than a reasonable degree of care, as Licensee uses to protect Licensee’s own Confidential Information. Licensee’s obligations regarding Confidential Information will expire no less than five (5) years from the date of receipt of the Confidential Information.
(b) Exceptions. Notwithstanding any provisions contained in this Agreement concerning nondisclosure and non-use of the Confidential Information, the nondisclosure obligations of Section 6(a) will not apply to any portion of Confidential Information that Licensee can demonstrate in writing is: (i) now, or hereafter through no act or failure to act on the part of Licensee becomes, generally known to the general public; (ii) known to Licensee at the time of receiving the Confidential Information without an obligation of confidentiality; (iii) hereafter rightfully furnished to Licensee by a third party without restriction on disclosure; or (iv) independently developed by Licensee without any use of the Confidential Information.
(c) Additional Restrictions. Licensee must restrict access to Confidential Information to Licensee’s employees or contractors with a need for this access to perform their employment or contractual obligations and who have agreed in writing to be bound by a confidentiality obligation, which incorporates the protections and restrictions substantially as set forth in this Agreement.
7. Limited Warranty and Disclaimer.
(a) Limited Warranty. Apstra warrants to Licensee that, for a period of ninety (90) days following delivery of the Software to Licensee (the “Warranty Period”), the Software will perform in all material respects in accordance with its published documentation. Licensee shall report any warranty claim to Apstra during such ninety-day period.
(b) Exclusive Remedy. As Licensee’s sole and exclusive remedy under this warranty, Apstra will, at its option and expense: (i) promptly replace or correct any defective Software or media; or (ii) furnish Licensee with a reasonable procedure to circumvent the defect; or (iii), if Apstra is unable to do either of the foregoing, refund to Licensee the license fees paid by Licensee for the defective Software, provided Licensee returns such defective Software to Apstra within the warranty period. These limited warranties shall not apply if (a) the Software is licensed under an Evaluation License; (b) the Software is used in conjunction with hardware or software other than those specified in the documentation; or (c) Licensee is not using the most current version of the Software. No warranties whatsoever are made by Apstra to any third party.
(c) Disclaimer. TO THE MAXIMUM EXTENT PERMITTED UNDER APPLICABLE LAWS, APSTRA AND APSTRA’S LICENSORS EXPRESSLY DISCLAIM ALL OTHER WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NON INFRINGEMENT. APSTRA AND ITS LICENSORS DO NOT WARRANT THAT THE FUNCTIONS CONTAINED IN THE SOFTWARE WILL MEET LICENSEE’S REQUIREMENTS, OR THAT THE OPERATION OF THE SOFTWARE WILL BE UNINTERRUPTED OR ERROR-FREE, OR THAT DEFECTS IN THE SOFTWARE WILL BE CORRECTED. FURTHERMORE, NEITHER APSTRA NOR ITS LICENSORS WARRANT OR MAKE ANY REPRESENTATIONS REGARDING THE PERFORMANCE OR THE RESULTS OF THE USE OF THE SOFTWARE OR ITS DOCUMENTATION IN TERMS OF THEIR CORRECTNESS, ACCURACY, RELIABILITY, OR OTHERWISE. NO ORAL OR WRITTEN INFORMATION OR ADVICE GIVEN BY APSTRA OR ITS AUTHORIZED REPRESENTATIVE SHALL CREATE A WARRANTY OR IN ANY WAY INCREASE THE SCOPE OF THIS WARRANTY. Some jurisdictions do not allow certain disclaimers and limitations of warranties, so portions of the above limitations may not apply to Licensee.8. Limitation of Liability.
IN NO EVENT SHALL APSTRA OR ITS LICENSORS OR THEIR RESPECTIVE DIRECTORS, OFFICERS, EMPLOYEES OR AGENTS BE LIABLE TO LICENSEE FOR ANY INCIDENTAL, SPECIAL, CONSEQUENTIAL OR PUNITIVE DAMAGES ARISING OUT OF OR IN CONNECTION WITH THE USE OR PERFORMANCE OF THE SOFTWARE OR SERVICES PROVIDED HEREUNDER (INCLUDING WITHOUT LIMITATION DAMAGES FOR LOSS OF PROFITS, BUSINESS, DATA, GOODWILL, ANTICIPATED SAVINGS, BUSINESS INTERRUPTION, LOSS OF BUSINESS INFORMATION AND THE LIKE), EVEN IF APSTRA OR ITS AUTHORIZED REPRESENTATIVE HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. IN NO EVENT WILL APSTRA’S TOTAL LIABILITY UNDER THIS AGREEMENT, FROM ALL CAUSES OF ACTION AND UNDER ALL THEORIES OF LIABILITY, EXCEED THE PAYMENTS ACTUALLY RECEIVED BY APSTRA FOR SOFTWARE LICENSED TO LICENSEE DURING THE TWELVE (12) MONTHS PRIOR TO THE DATE OF THE EVENT GIVING RISE TO ANY LIABILITY.9. Indemnification.
(a) By Apstra. Apstra will defend and protect Licensee from a claim against Licensee by a third party that the Software furnished and used within the scope of this Agreement infringes a third party copyright or patent (a “Claim”) and for all costs and damages, including reasonable attorney’s fees and expenses finally awarded by a court of competent jurisdiction or agreed to in a settlement of such a Claim, provided that: (i) Licensee notifies Apstra promptly in writing of the Claim; (ii) Apstra is provided sole control of the defense of the Claim and all related settlement negotiations and (iii) Licensee provides Apstra with assistance, information and authority necessary to perform the above. Apstra shall have no obligation to Licensee under this Section 9(a) for any claim of infringement to the extent based in whole or in part on: (a) alterations or modifications of the Software not made by Apstra or (b) combinations of the Software with products or materials not provided by Apstra where the infringement would not have occurred but for Licensee’s combination. In the event that Apstra anticipates that the Software may become subject to a Claim or the Software does become subject to a Claim, Apstra shall at its option and expense (a) modify the Software to be noninfringing; (b) obtain for Licensee a license to continue using the Software; or (c) substitute the Software with other substantially similar product. In the event the foregoing are not commercially practicable, Apstra may terminate the license for the infringing Software and provide Licensee with a pro-rated refund for any remaining amount of a then-current term. The foregoing Section 9(a) states the entire liability of Apstra and the sole and exclusive remedy of Licensee with respect to any claim of intellectual property infringement.
(b) By Licensee. Licensee shall defend, indemnify, and hold Apstra, its officers, directors and employees, harmless from and against any and all claims, damages, losses, costs or other expenses (including reasonable attorneys’ fees) that arise directly or indirectly out of Licensee’s willful misconduct or unauthorized use of the Software, provided that: (i) Apstra notifies Licensee promptly in writing of the Claim; (ii) Licensee is provided sole control of the defense of the Claim and all related settlement negotiations and (iii) Apstra provides Licensee with assistance, information and authority necessary to perform the above.10. Export.
Software and technical data delivered under this Agreement are subject to U.S. export control laws and may be subject to export or import regulations in other countries. Licensee agrees to comply strictly with all such laws and regulations and acknowledge that Licensee has the responsibility to obtain such licenses to export, re-export or import as may be required after delivery to Licensee.11. Government End Users.
If the Software is being acquired by or on behalf of the U.S. Government or by a U.S. Government prime contractor or subcontractor (at any tier), then the Government’s rights in the Software shall be only as set forth in this Agreement; this is in accordance with 48 C.F.R. 227.7202-4 (for Department of Defense (DOD) acquisitions) and with 48 C.F.R. 2.101 and 12.212 (for non-DOD acquisitions). Supplier is Apstra Inc., 200 Middlefield Rd, Suite 110, Menlo Park, CA 94025.12. Miscellaneous.
(a) Severability. If any provision of this Agreement is invalid or unenforceable under applicable law, then it shall be, to that extent, deemed omitted and the remaining provisions will continue in full force and effect.
(b) Governing Law and Venue. The validity and performance of this Agreement shall be governed by California law (without reference to choice of law principles), and applicable federal law. Any action, suit or proceeding relating to this Agreement shall be brought in the appropriate federal or state court location in Santa Clara County, California, and Licensee hereby consents to such jurisdiction. The United Nations Convention on Contracts for the International Sale of Goods shall not apply.
(c) Construction. This Agreement is deemed entered into in California, and shall be construed as to its fair meaning and not strictly for or against either party.
(d) Equitable Relief. Licensee agrees that Apstra could be irreparably harmed by the unauthorized use or disclosure of any of the Software, and that money damages may not be an adequate remedy. Accordingly, Licensee agrees that Apstra may seek equitable relief, including injunctive relief, for breaches of confidentiality or unauthorized use of the Software.
(e) Assignment. This Agreement will be binding upon and inure to the benefit of the parties hereto and their respective successors and assigns; provided, however, that Licensee shall not assign any of Licensee’s rights, obligations, or privileges (by operation of law or otherwise) hereunder without the prior written consent of Apstra. Any attempted assignment in violation of this section will be void and of no effect.
(f) Waiver. No term or provision hereof shall be deemed waived and no breach consented to or excused, unless such waiver, consent or excuse shall be in writing and signed by the party claimed to have waived or consented. Should either party consent, waive, or excuse a breach by the other party, such shall not constitute consent to, waiver of, or excuse of any other different or subsequent breach whether or not of the same kind as the original breach.
(g) Attorneys’ Fees. In the event of any legal action or proceeding relating to this Agreement, the prevailing party shall be entitled to recover its attorneys’ fees in addition to any other relief granted.
(h) Entire Agreement; Modification. This Agreement sets forth the entire understanding and agreement between Licensee and Apstra and supersedes all prior or contemporaneous agreements regarding its subject matter. Any different or additional terms preprinted on any Licensee purchase order or similar document are hereby rejected, notwithstanding any terms set forth therein to the contrary. This Agreement may be amended only in a writing signed by both parties.