Service License Agreement

Aviatrix Service License Agreement

IMPORTANT – CAREFULLY READ ALL THE TERMS AND CONDITIONS OF THIS SERVICE LICENSE AGREEMENT (THIS “AGREEMENT”). BY CLICKING “I ACCEPT,” SETTING UP AN ACOUNT FOR THE SERVICE, OR USING THE SERVICE, YOU AS AN AUTHORIZED REPRESENTATIVE OF YOUR COMPANY ON WHOSE BEHALF YOU USE THE SERVICE (“LICENSEE”) ARE INDICATING THAT YOU HAVE READ, UNDERSTAND AND ACCEPT THIS AGREEMENT WITH AVIATRIX SYSTEMS, INC. (“AVIATRIX SYSTEMS”) AND THAT YOU AGREE TO BE BOUND BY ITS TERMS. IF YOU DO NOT AGREE WITH ALL OF THE TERMS OF THIS AGREEMENT, DO NOT CLICK “I AGREE”, SET UP AN ACCOUNT FOR THE SERVICE OR USE THE SERVICE. THE EFFECTIVE DATE OF THIS AGREEMENT SHALL BE THE DATE THAT LICENSEE ACCEPTS .

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, nonsublicensable, nonexclusive, right to access and use the hosted service specified in Licensee’s account (“Service”) in accordance with Aviatrix Systems’ applicable user documentation. 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 Service (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 Service (except as expressly and specifically authorized by Aviatrix Systems), (iii) possess or use any Service, or allow the transfer, transmission, export, or re-export of any Service 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 Service, or (v) modify the Service or alter the admin and/or license configurations. All the limitations and restrictions on Services in this Agreement also apply to documentation and screens. To use the Service, Licensee may be required to link Licensee’s public cloud account that is supported by Aviatrix Systems (such as AWS). Licensee agrees that Licensee has the right to link Licensee’s public cloud account to the Service.

2. Support and Maintenance.

While the license (other than a free trial or evaluation license) for a Service has not been terminated and all applicable fees have been timely paid by the Licensee 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 Service 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 (“Support Services”). If Licensee alters the admin and/or license configurations, Aviatrix Systems will not be liable or responsible for any errors, downtime or other issues with the Services caused as a result and Aviatrix Systems may not be able to provide the Support Services.

3. Fees and Payment.

Licensee shall pay Aviatrix Systems or Aviatrix Systems designee Aviatrix Systems’ then current standard license/subscription fees for any authorized uses of Service or such other fees as have been expressly agreed to by Aviatrix Systems (“Service Fees”). Service Fees will be paid in arrears based on the specific Service selected and will be charged by Aviatrix Systems’ payment provider or will be billed through AWS. All payments shall be made in the currency of, and within the borders of the United States. Licensee will pay all taxes, 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.

After any free trial or evaluation period, all licenses will continue and will terminate thirty days (immediately in the case of nonpayment or in the case of a breach of Section 1) after notice of any breach by Licensee remaining uncured at the end of such notice period. Aviatrix may suspend or terminate Licensee’s access to the Service if Licensee does not properly pay Aviatrix Systems or if Licensee’s account remains inactive for thirty (30) or more days. Upon any termination, Aviatrix Systems will retain Licensee Data for thirty (30) days during which time Licensee may request a copy of such Licensee Data in the format held by Aviatrix Systems. After such thirty (30) day period, Aviatrix System may delete such Licensee Data. On any termination, Licensee shall immediately cease all use of all affected Services. The following Sections shall survive any termination: the disclaimers in Section 6, Licensee’s indemnity obligations, Section 7 and Section 11.

5. Indemnification.

Except in the case of a free trial or evaluation license, Aviatrix Systems shall hold Licensee harmless from liability to third parties resulting from infringement by the Aviatrix Systems technology used to provide the Service of any United States patent issued sixty (60) days or more before initial provision of access to such Service 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 Service 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 initial provision of access 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 Service 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 trial or evaluation license, Aviatrix Systems warrants that Aviatrix Systems will provide the Service as set forth in the SLA attached as Exhibit A. EXCEPT FOR THE FOREGOING WARRANTY BY AVIATRIX SYSTEMS, ALL SERVICES 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 NONINFRINGEMENT. FURTHER, AVIATRIX SYSTEMS DOES NOT WARRANT RESULTS OF USE OR THAT THE SERVICES ARE BUG FREE OR THAT THE SERVICE’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 SERVICE 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 SERVICE IS NOT DESIGNED, MANUFACTURED, OR INTENDED FOR USE IN HAZARDOUS ENVIRONMENTS REQUIRING FAIL-SAFE PERFORMANCE WHERE THE FAILURE OF THE SERVICE COULD LEAD DIRECTLY TO DEATH, PERSONAL INJURY, OR SIGNIFICANT PHYSICAL OR ENVIRONMENTAL DAMAGE (“HIGH RISK ACTIVITIES”). USE OF THE SERVICE 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 Services may contain automated reporting routines that will automatically identify and analyze certain aspects of use and performance of Services, 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. Licensee Data.

"Licensee Data" means any data, information or material that Licensee or its users may disclose or submit to Licensee or the Service in the course of using the Service. Aviatrix Systems does not own any Licensee Data. Licensee, not Aviatrix Systems, shall have sole responsibility for the accuracy, quality, integrity, legality, reliability, appropriateness, and intellectual property ownership or right to use all Licensee Data, and Aviatrix Systems shall not be responsible or liable for the deletion, correction, destruction, damage, loss or failure to store any Licensee Data. Licensee hereby grants Aviatrix Systems a perpetual, non-exclusive, royalty-free license to use the Licensee Data: (a) as necessary to provide the Service to Licensee under this Agreement; (b) for statistical, analytical and other aggregate non-personally identifiable use alone and/or together with other data; and (c) as necessary to market, monitor and improve the Service. Without limiting the foregoing, Aviatrix Systems may provide statistical information related to the usage of the Service, such as usage or traffic patterns or results obtained through the Service, in aggregate form to third parties, but such information will not include identifiable information of Licensee or personally identifying information of Licensee’s employees or authorized contractors. Licensee is responsible for uploading the Licensee Data to the Service or otherwise providing Aviatrix Systems with access to the Licensee Data to enable Aviatrix Systems to provide the Service.

11. Miscellaneous.

Neither this arrangement 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’ Service business or assets or Licensee’s business for which Services are licensed (but if the authorized 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. Aviatrix Systems may send Licensee notices through its account and the Services. 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. Aviatrix Systems may modify or amend this Agreement at any time by providing Licensee with written notice and such modifications or amendments will apply to Licensee unless Licensee notifies Aviatrix Systems in writing that it does not agree to the new terms within ten (10) days of Aviatrix Systems’ notice. Aviatrix Systems may terminate this Agreement if Licensee does not agree to any such new terms. 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 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 Services 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.

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