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Contents
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3. NE ROD DD Page 1 of 18 1 Definitions 1 1 Authorized Reseller means an agent reseller dealer or subcontractor authorized by Midokura 1 2 Claims has the meaning set for
4. 1 10 10 1 GG Section 9 1 1
5. E OC Section 16 1 16 4
6. 12 13 13 1 RA NN Page 12 of 18 13 2 Term of Subscriptions The term of each Subscription shall be as specified in the applicable Order Form Except as otherwise specified in an Order Form Subscriptio
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8. 1 ND RA 1 H E
9. Page 13 of 18 13 3 4 Termination or Suspension for Non Payment In addition to all other rights available to Provider herein Provider may in its sole discretion immediately terminate this Agreement and all rights granted hereunder or suspend Your access to the Software or Services by written notice to You if You are delinquent in the payment of the Fees If You remedy such dehnquency within 5 days of receipt of the written notice and notify Provider of Your desire to reinstate Your access to the Software or Services Provider reserves the right to assess a reconnection fee 13 4 Effect of Termination All rights granted herein shall terminate immediately and in their entirety upon termination or expiration of this Agreement Termination does not entitle You to any refund or return of payment except as expressly stated in this Agreement Within 14 days after the date of termination or expiration of this Agreement You shall erase or destroy all copies of the Software the Documentation and all Confidential Information in Your possession Upon request You shall furnish to
10. 3 2 r IS KA uk Page 4 of 18 3 3 Your Responsibilities You will a be responsible for compliance with this Agreement b use commercially reasonable efforts to prevent unauthorized access to or use of Software and Services and notify Provider promptly of any such unauthorized access or use c use Software and Services only in accordance with the Documentation and applicable laws an
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13. 1 E E Page 15 of 18 United Nations Convention of Contracts for the International Sale of Goods 16 IMiscellaneous 16 1 Force Majeure Neither Party will incur any liability to the other Party on account of any loss or damage resulting from any delay or failure to perform all or any part of this Ag
14. LE Section 11 2
15. NE NN SON ER 2 United Nations Convention of Contracts 16 2 16 3 J
16. 2 2 1 a b c 1 2 4 7 8 6 3
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18. NN 0 Sh a ul 1 0 5 G Section 7 3
19. 4 3 7 9 10 11 12 13 4 15 and 16 14 Section 14
20. E RE AR RN OR OO SS 8
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22. c 3 e Page of 18 permit the use copying or exploitation of the Software or Services except as expressly g authorized in this Agreement i use the Software or Services to store or transmit infringing libelous malicious or otherwise unlawful or tortious material data or code
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24. 0 16 9 2 o 16 10 Sir 16 11 6
25. 3 0 Section 13 3 1 13 3 2 Section 13 3 2 13 3 3 Section Section 13 3 1 6
26. iroye the Somegs Any sheh disclosues of Usage Staisics to Our sorvice prowiders il include Y identity TR 3 y pl Qc 7 T
27. Page 6 of 18 6 Third Party Products 6 6 1 Acquisition of Third Party Products and Services 6 1 Provider or third parties may make available for example through a marketplace or otherwise third party products or services Including for example Third Party Products Implementation and other consulting services Any acquisition by You of such third 0 i i ND 8 a party products or services and any exchange of data between You and any third party SE provider is solely between You and the applicable third party provider Provider does
28. not warrant or support Third Party Product or other third party products or services whether or not they are designated by Provider as certified or otherwise except as specified in an Order Form 6 2 Integration with Third Party Products The Services may 6 2 contain features designed to interoperate with Third Party Products To use such features You may be required to obtain access to Third Party Products from their providers and may be required to grant Provider access to Your account s on the Third
29. 1 11 H Page 2 of 18 to a free trial 1 12 Services means the Software and related services that are ordered by You under a free trial or an Order Form including associated online and or offline components as described in the Documentation 1 13 Software means the computer programs related to the MidoNet network virtuahzation platform or otherwise developed by Mnidokura excluding 1 any Open Source Software and ii any computer program not developed by Midokura 1 14 Subscriptions has the meaning set forth in Section 3 1 1 15 Term has the meanng set forth in Section 13 1 1 16 Third Party Products means any software or hardware that i is manufactured by a party other than Provider and ii has not been incorporated into the Software 1 17 Warranty Period has the meaning set forth in Section 8 1 18 We Us or Our means Provider described and set forth above 1 19 You or Your means you Individually or if you are entering into this Agreement on b
30. ii Documentation and other written materials related to any of the foregoing Gii any other information designated by Provider as confidential or that under the Gv circumstances would reasonably be deemed to be confidential iv any information data documents notes or communications received by You from Provider under this 6 Agreement and v the terms conditions and information set forth in this Agreement The Confidential Information may be disclosed in writing orally visually or in 0 electronic format and Confidential Information that is disclosed orally or visually
31. b RE c Section 8 Page 8 of 18 irrevocably waive and release all claims for the Software s Non Conformities 9 Disclaimer and Limitations 9 1 Warranty Disclaimer EXCEPT AS EXPRESSLY SET FORTH IN THIS AGREEMENT PROVIDER MAKES NO WARRANTIES EXPRESS OR IMPLIED UNDER THIS AGREEMENT PROVIDER SPECIFICALLY DISCLAIMS AND YOU WAIVE ALL OTHER EXPRESS AND IMPLIED WARRANTIES WITH RESPECT TO THE SOFTWARE AND DOCUMENTATION INCLUDING WITHOUT LIMITATION THE IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE OR ANY OTHER EXPRESS STATUTORY OR IMPLIED WARRANTY OF ANY KIND ARISING OUT OF THE USE OR PERFORMANCE OF THE SOFTWARE OR SERVICES OR COURSE OF DEALING COURSE OF PERFORMANCE OR USAGE OF TRADE Without hmiting the generahty of the foregoing You acknowledge and agree that Provider does not represent or warrant to You that Your use of the Software or Services will meet Your requirements or Your use of the Services will be uninterrupted
32. 2 nH ps Page 17 of 18 English version shall be controlling on all questions or interpretations and performance vV1 4 Page 18 of 18
33. SU 2 16 3 Page 16 of 18 against whom the amendment is to be asserted 16 6 Provider s Prior Consent Unless expressly provided otherwise in this Agreement any prior consent of Provider that is required before You may take an action may be granted or withheld in Provider s sole and absolute discretion 16 7 Export of Software Compliance with Laws You agree not to export or re export directly or indirectly the Software without the prior written consent of Provider and without complance with applcable export control laws In all of Your activities undertaken pursuant to this Agreement You shall strictly comply with al the laws decrees statutes rules regulations codes and ordinances of any jurisdiction that may be applcable to such activities 16 8 No Agency Neither Party nor any director officer agent or employee of a
34. Section 10 1 ii Gi Gi G 1
35. 1 13 MidoNet G GD 1 14 Section 3 1 1 15 Secton 13 1 1 16 1 17 Section 8 1 18 1 19
36. 1 2 octet RN i E Page 9 of 18 exceed the aggregate amount of fees paid by You to Provider during the one year period preceding any claim 9 3 Claims Any claim by You made with respect to the Software Services Documentation or this Agreement whether based on breach of warranty or contract negligence strict liability or other tort must be made promptly by You upon Your notice or knowledge of any such claim and will be deemed to be waived unless received in writing by Provider within one year after the cause of action has accrued For purposes of this Agreement a cause of action will be deemed to have accrued when You knew or reasonably should have known of t
37. Party Products If the provider of a Third Party Product ceases to make the Third Party i gt Product available for interoperation with the corresponding Service features on 2 ME reasonable terms Provider may cease providing certain features of the Services without 8 te entitling You to any refund credit or other compensation TF 7 Fees Payment 7 7 1 Eees You will pay all fees specified in Order Forms Fees 7 1 Except as otherwise specified herein or in an Order Form i Fees are based on Subscriptions of Services purchased and not actual usage ii payment obligations are
38. believe that any specific charge under this Agreement is incorrect You shall pay the full SN NE amount of the outstanding invoice by the due date and then You must provide written sa 8 notice to Provider within 30 days from the date of the invoice setting forth a detailed 4 description of the nature and amount of the disputed charge If You fail to provide such written notice You are deemed to have waived any dispute or claim related to the Fees on such invoice Your account will be considered dehnquent in arrears if payment in 3 0 full is not received by the due date specfied on the invoice For all invoices that remam unpaid by the due date You may be assessed a late fee equal to th
39. Page 3 of 18 terror strike or other labor problem other than one involving Our employees Internet service provider failure or delay Third Party Products or denal of service attack 2 2 Our Personnel We will be responsible for the performance of Provider s personnel including Our employees and contractors and ther compliance with Provider s obligations under this Agreement except as otherwise specified herein 2 3 Beta Services From time to tme Provider may invite You to try at no charge Our services and or software that are not generally available to customers Beta Services You may accept or declne any such trial in Your sole discretion Beta Services will be clearly designated as beta pilot Himited release developer preview non production evaluation or by a description of similar import Beta Services are for evaluation purposes and not for production use are not considered Services under this Agreement are not supported and may be subject to additional terms Unless otherwise stated any Beta Services trial period will expire upon the earlier of one year from the trial start date or the date that a version of the Beta Services becomes generally available We may discontinue Beta Services at any tme in Our sole discretion and may never make them generally available We will have no hability for any harm or damage arising out of or in connection with any Beta Services
40. EO ON ed
41. remains confidential and subject to the provisions of this Agreement whether or not either Party reduces the Confidential Information to writing The Confidential Information shall be and remain the sole property of Provider and nothing contained m this Agreement shall be deemed to give You any rights in or to the Confidential Information 11 2 Use and Disclosure Restrictions You shall keep and 11 2 maintain the Confidential Information in strictest confidence and except as otherwise
42. 3 NE Page 10 of 18 10 2 Your Indemnity You agree to defend indemnify and hold 10 2 harmless Provider its shareholders directors officers affihates employees and agents G from and against any and all claims judgments awards liabilities losses damages
43. costs and expenses including without limitation consultant and expert expenses court i costs and reasonable attorney fees and expenses arising from related to or associated dE A 3 with i any breach of this Agreement by You or Your affiliates employees or agents Gi 1 any negligent act or omission by or willful misconduct of You or Your affiliates employees or agents or iii any Infringement by computer programs made modified customized or altered to Your specifications Provider shall give You prompt notice of 0 any claim or potential claim You will have the option to defend Provider against any and all claims covered by Your ind
44. G non cancelable and Fees paid are non refundable and in quantities purchased cannot aa ne 2 2 be decreased during the relevant Subscription term 2 HE ii SM 7 2 Invoices Provider will issue invoices for Fees to You and 7 2 You agree to pay the invoiced amounts in full without any deduction or setoff within 30 days from the date of the invoice except as otherwise specified herein or in an Order 30 SN Form Invoices may In Provider s discretion include additional costs or taxes If You
45. OST 1 9 G G ii Gy 1 10
46. Or j Interfere with disrupt attempt to gain unauthorized access to or attempt to h circumvent usage limits of the Services lt a AC 4 5 Ownership This Agreement grants a license only and does 4 5 not transfer any ownership or other interest of any kind to You You acknowledge that Provider retains all title ownership and
47. Me Gv v Section 10 1 G 5 ii
48. 15 15 1 Page 14 of 18 Notices should be addressed 0 The governing law is The court having exclusive jurisdiction is If You are domiciled in The United States of Midokura SARL California America Canada and Francisco Mexico or a Country Address c o Eurofin controlhng California in Central or South Services SA Rue Etraz 4 United States U S A America or the 1003 Lausanne Switzerland federal law Caribbean Attn VP of Global Sales Fax 41 21 560 4777 A Country in Europe Midokura SARL Swiss law Switzerland the Middle East or Africa Address c o Eurofin Services SA Rue Etraz 4 1003 Lausanne Switzerland Attn VP of Global Sales Fax 41 21 560 4777 Japan or a Country in Midokura SARL Asia or the Pacific region Japanese law Tokyo Japan Address c o Eurofin Services SA Rue Etraz 4 1003 Lausanne Switzerland Attn VP of Global Sales Fax 41 21 560 4777 15 2 Manner of Giving Notice Any notice required or permitted under the terms of this Agreement or required by law must be in writing and must be a delivered in person b sent by first class registered mail or air mail as appropriate c sent by overnight air courier or d transmitted by facsimile in each case properly posted to the appropriate address set forth above 15 3 Governing Law and Jurisdiction Each Party ag
49. EXPORT SUCH DATA BEFORE THE END OF THE TRIAL PERIOD YOU 2 ER CANNOT TRANSFER DATA ENTERED OR CUSTOMIZATIONS MADE DURING 06 0 0 0 Ns A RS lt oO THE FREE TRIAL TO A SERVICE THAT WOULD BE A DOWNGRADE FROM Ep 2 3 A 2 2 _ THAT COVERED BY THE TRIAL THEREFORE IF YOU PURCHASE A SERVICE 2 THAT WOULD BE A DOWNGRADE FROM THAT COVERED BY THE TRIAL YOU MUST EXPORT YOUR DATA BEFORE THE END OF THE TRIAL PERIOD OR YOUR DATA WILL BE PERMANENTLY LOST DURING THE FREE TRIAL THE SERVICES ARE PROVIDED AS IS WITHOUT ANY WARRANTY During any free 0 period Provider may disclose anonymous data about Your use of the
50. c FE ee CT i
51. 1 E E FE E 16 12
52. Page 11 of 18 expressly provided herein You i shall not use the Confidential Information except for purposes of performing Your obligations as provided in this Agreement and ii shall not provide or otherwise make available whether directly or indirectly any of the Confidential Information to any person or entity other than as required by any applicable law You shall take all actions necessary to maintain the confidentiality of the Confidential Information Further without limiting the foregoing You agree that You will not create or develop a software program or applcation that is substantially equivalent to or that has similar functionality as the Software In the event that You are requested or required by any court order governmental decree or operation of law or regulation including but not Iimited to deposition interrogatory reduest for documents subpoena or civil investigative demand to disclose any of the Confidential Information You shall provide Provider with immediate notice of such requlrement to seek an appropriate protective order or waive compliance with such provision If failing the entry of a protective order or the receipt of a waiver hereunder You are in the opinion of Your counsel compelled to disclose the Confidential Information You may disclose that portion of the Confidential Information that Your counsel advises that You are compelled to disclose and You will obtain assurances th
53. Na OE ns Pe SE Rn 1 WW k 9 0 MOMA 0 0 Me i RAR
54. 1 5 7 7 a 3 c 3 1 8 b
55. Last Updated July 17 2014 MASTER SUBSCRIPTION AG REEMENT available at http www midokura com policies THIS MASTER _ SUBSCRIPTION AGREEMENT this Agreemenf GOVERNS YOUR ACQUISITION AND USE OF OUR SOFTWARE AND SER VICES BY ACCEPTING THIS AGREEMENT EITHER BY CLICKING A BOX INDICATING YOUR ACCEPTANCE OR BY EXECUTING AN ORDER FORM THAT REFERENCES THIS AGREEMENT YOU AGREE TO THE TERMS OF THIS AGREEMENT IF YOU ARE ENTERING INTO THIS AGREEMENT ON BEHATF OF A COMPANY OR OTHER LEGAL ENTTTY YOU REPRESBENT THAT YOU HAVE THE AUTHORITY TO BIND SUCH ENTTTY AND ITS AFFILIATES TO THESE TERMS AND CONDITIONS IN WHICH CASE THE TERMS YOU OR YOUR SHALL REFER TO SUCH ENTITY AND ITS AFFILIATES IF YOU DO NOT HAVE SUCH AUTHORITY OR IF YOU DO NOT _ AGREE WITH THESE TERMS AND CONDITIONS YOU MUST NOT ACCBPT THIS AGREEMENT AND MAY NOT USE THE SOFTWARE AND SER VICES IF YOU REGISTER FOR A FREE TRIAL FOR OUR SOFTWARE AND SBR VICES THIS AGREEMENT WILL ALSO GOVERN THAT FREE TRIAT You may not access the Services if You are Our direct competitor except with Our prior written consent In addition You may not access the Software and Services for purposes of monitoring their availability performance or functionality or for any other benchmarking or competitive purposes You may however use the Software and Servlces to conduct performance testing if you obtain our prior Written consent It is effective between You and Provider as of
56. 3 Use of Software and Services 3 1 Subscriptions Unless otherwise provided in the apphcable Order Form a Software and Services are purchased as subscriptions each a Subscription and collectively the Subscriptions b Subscriptions may be added during a Subscription term at the same pricing as the underlying Subscription Dricing prorated for the portion of that Subscription term remaining at the tme the Subscriptions are added and c any added Subscriptions will terminate on the same date as the underlying Subscriptions 3 2 Usage Limits Software and Services are subject to usage limits including for example the quantities specified in Order Forms If You are unable or unwilling to abide by any usage limit You will execute an Order Form for additional quantities of the applicable Software or Services promptly upon Our request and or promptly pay all Fees or other amounts inVoiced for excess usage Ep 2 2
57. earlier of a the end of the free trial period for which You registered to use the b applicable Service s or b the start date of any Purchased Service subscription ordered 1 by You for such Service s Additional trial terms and conditions may appear on the trial 2 registration Web page Any such additonal terms and conditions are ncorporated into _ 3 nt OY 0 NE this Agreement by reference and are legally binding ANY DATA YOU ENTER INTO Np THE SERVICES AND ANY CUSTOMIZATIONS MADE TO THE SERVICES BY OR FOR YOU DURING YOUR FREE TRIAL WILL BE PERMANENTLY LOST UNLESS YOU PURCHASE A SUBSCRIPTION TO THE SAME SERVICES AS
58. Party shall be considered an agent or employee of the other Party or be authorized to oblgate or commit the other Party im any manner in deahng with customers potential customers or other persons entities or governmental units including without hmitation contractual oblhgations and oblgations based on warranties or guarantees Neither Party nor any director officer agent or employee of a Party shall hold itself out as an agent or employee of the other Party hereto or as having any authority to obhgate or commit the other Party 16 9 Binding Obligations The terms and provisions of this Agreement will be binding upon and inure to the benefit of the Parties to this Agreement and their respective heirs successors and assigns 16 10 Interpretation The headings and captions used in this Agreement are for convenience only and shall not be considered in the construction or interpretation of any provision hereof The language in all parts of this Agreement shall in all cases be construed as a whole according to Your fair meaning and not strictly for or against either Party 16 11 Entire Agreement This Agreement including the Order Form s Schedules and any addenda hereto contains the entire agreement of the Parties with respect to the subject matter of this Agreement and supersedes all previous communications representations understandings and agreements either oral or written between the Parties with respect to said subj
59. iii full disclosure and assistance reasonably requested by Provider You may not admit settle compromise or pay any Claim without Provider s prior written consent In the event any such Claim is brought or threatened or if Provider deems that there is a material risk of a Claim Provider may at its sole option and expense 1 procure for You the right to continue Your use of the Software ii modify or amend the Software or infringing part thereof or replace the Software or infringing part thereof with other software having substantially the same or better capabilities or iii if neither of the foregoing is commerclally practical terminate this Agreement This Section 10 1 states the entire Hability of Provider and Your exclusive remedy with respect to actual or alleged infringement of any patent copyright or other proprietary or intellectual property right You agree to waive any other right or remedy id 9 E 1 3
60. timely secure or free from error You further acknowledge that Provider assumes no liability for any representations or warranties not authorized in writing by Provider including without hmitation any warranties that any third party may make with respect to the use or sale of the Software or Services or any other product into which the Software may be installed or incorporated 9 2 Limitation of Liability IN NO EVENT SHALL PROVIDER BE LIABLE TO YOU OR TO YOUR OWNERS DIRECTORS OFFICERS EMPLOYEES AGENTS OR INSURERS OR TO ANY THIRD PARTY FOR ANY INDIRECT CONSEQUENTIAL INCIDENTAL SPECIAL PUNITIVE OR EXEMPLARY DAMAGES OF ANY NATURE INCLUDING BUT NOT LIMITED TO LOST BUSINESS LOST PROFITS LOSS OF USE INTERRUPTION OF BUSINESS DAMAGE TO GOODWILL OR REPUTATION DEGRADATION IN VALUE OF BRANDS TRADEMARKS OR TRADE NAMES SERVICE NAMES OR SBRVICE MARKS OR INJURY TO PERSONS WHETHER ARISING OUT OF BREACH OF CONTRACT WARRANTY TORT INCLUDING NEGLIGENCE FAILURE TO WARN OR STRICT LIABILITY CONTRIBUTION INDEMNITY SUBROGATION OR OTHER WISE EVEN IF PROVIDER HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES Provider will not be hable for any damages caused by delay in delivering or furnishing the Software or Services Further Provider will not be responsible to You for any damages caused by any third party Provider s hability under this Agreement for damages of any kind will not in any event
61. 60 4777 Eurofin Eurofin Services SA Rue Etraz 4 Eurofin Services SA Rue Etraz 4 1003 Lausanne Switzerland California and controlling United States federal law Swiss law Japanese law San Francisco California U S A Switzerland Tokyo Japan 1S 2 lt 1S 3 b B d
62. Provider a certificate signed by You or an executive officer of You verifying that the same has been done YOU FURTHER ACKNOWLEDGE AND AGREE THAT ANY DATA YOU ENTER INTO THE SERVICES AND ANY CUSTOMIZATIONS MADE TO THE SERVICES BY OR FOR YOU WILL BE PERMANENTLY DELETED WITHIN 14 DAYS AFTER TERMINATION OR EXPIRATION OF THIS AGREEMENT YOU MUST EXPORT YOUR DATA BEFORE THE END OF THE TERM OF YOUR SUBSCRIPTION OR YOUR DATA WILL BE PERMANENTLY LOST PROVIDER IS NOT RESPONSIBLE FOR ASSISTING YOU WITH EXPORTING YOUR DATA The followimg sections wil survive termination 4 5 Ownership 7 Fees Payment 9 Disclaimer and Limitations 10 Indemnificaton 11 Confidentiahty 12 Verification of Proper Use Automated Reportng 13 4 Effect of Termination 15 Notices Governng Law and Jurisdiction and 16 Miscellaneous along with accrued financial obligations 14 Assignment Neither Party may assign its rights or responsibilities under this Agreement or any part thereof without the written consent of the other Party provided that Provider shall be entitled to make such an assignment to its subsidiaries or affiliates Any purported or attempted assignment in violaton of this Section 14 shall be null and void 1S Notices Governing Law and Jurisdiction 1S 1 General 13 3 4
63. a regarding Provider including but not limited to any information relating to Provider s its Subsidiaries or its affiliates business operations business and marketing plans product plans designs costs source code engineering i documentation product costs and prices finances personnel research development 3 business goals and strategies contractual terms and conditions with third party vendors suppliers and customers development techniques or plans intellectual property rade secrets technical processes know how and other technical or proprietary information G whether or not in writing ii all information subsumed within the Software
64. at confidential treatment will be accorded to that portion of the Confidential Information that is being disclosed You agree not to oppose any action of Provider intended to obtain a protective order or other reliable assurance that confidential treatment will be accorded the Confidential Information You agree that since there 1s no adequate remedy at law in the event of any breach or threatened breach of this Section 11 2 Provider shall be entitled to equitable relief including injunctive or mandatory relef without the necessity of proving actual damages or irreparable harm and You agree not to oppose the granting of this relief Entitlement to equitable relief shall not be deemed to be an exclusive remedy under this Agreement but shall be in addition to all other remedies available 12 Verification of Proper Use Automated Reportding You acknowledge and agree that Provider may have information collected by the Software for the purpose of measuring the usage during the Term 13 Term and Termination 13 1 Term of Agreement This Agreement commences on the date You first accept it and continues untl all Subscriptions hereunder have expired or have been terminated Term i
65. d government regulations and d comply with terms of service of Third Party Products with which You use Software or Services 4 Property Rights and Licenses 4 1 Grant of License Subject to the terms and conditions of this Agreement Provider grants to You and You accept a limited non exclusive non transferable except as expressly provided for below right to a install and use the Software solely for Your own internal business use in accordance with the Documentation and b use the Documentation in connection with use of the Software 4 2 Copies Except for reasonable binary copies of the Software made for backup or archival purposes You may not copy the Software except as expressly authorized in writing by Provider Whenever You are permitted to copy or reproduce all or any part of the Software all titles trademark symbols copyright symbols and legends and other proprietary markings must be reproduced Upon termination or expiration of the Agreement You shall immediately destroy all copies including but not limited to backup or archival copies of the Software 4 3 License and Subscription Management Software Provider reserves the right to use hcense and subscription management software to limit Your use of the Software or confirm complance with the terms and conditions of this Agreement You will not circumvent or attempt to circumvent such Icense and subscription management software 4 4 Restrictions Yo
66. e lesser of 1 0 5 per Page 7 of 18 month or ii the maximum interest rate allowed by applicable law Further You acknowledge and agree that You shall be liable for all of Provider s costs related to Your non payment or delayed payment including without hmitation collection costs reasonable attorneys fees and court costs 7 3 Taxes The Fees do not include any taxes levies duties or similar governmental assessments of any nature Including for example value added sales use or withholding taxes assessable by any jurisdiction whatsoever collectively Taxes You are responsible for paying all Taxes associated with Your purchases If Provider has the legal obligation to pay or collect Taxes for which You are responsible under this Section 7 3 Provider will invoice You and You will pay that amount unless You provide Provider with a valid tax exemption certificate authorized by the appropriate taxing authority For clarity Provider is solely responslble for taxes assessable against Provider based on Provider s income property and employees 8 Limited Warranty Provider warrants for a period of 30 days from the commencement date of a Subscr
67. ect matter 16 12 English Language This Agreement shall be executed in English In the event this Agreement is translated for any purpose into any language other than English any such translation shall be of no legal force or effect and this 16 6 16 7 16 8 E v
68. ehalf of a company or other legal entity then the company or other legal entity for which you are accepting this Agreement and affiliates of that company or entity 2 Provider Responsibilities 2 1 Provision of Purchased Services Provider will a make the Software and Services available to You pursuant to this Agreement and the apphcable Order Forms b provide Our standard support for the Purchased Services to You at no additional charge and or upgraded support if purchased and c use commercally reasonable efforts to make the Purchased Services avallable 24 hours a day 7 days a week except for i planned downtime of which Provider shall give at least 8 hours electronic notice and which Provider shall schedule to the extent practicable durmg the weekend hours between 6 00 p m Friday and 3 00 am Monday Pacific time and ii any unavailability caused by circumstances beyond Our reasonable control including for example an act of God act of government flood fire earthquake civil unrest act of Y Y RN id6 E 1 12
69. emnity at Your expense With counsel reasonably acceptable to Provider Provider agrees to reasonably cooperate in the defense of any and 4 1 You shall consult Provider prior to settling compromising or paying ET ND 11 Confidentiality 11 11 1 Definition Confidential Information means GG al 11 1 information and dat
70. he breach or claimed breach 10 Indemnification 10 1 Infringement Indemnity Subject to Section 9 Provider agrees to defend indemnify and hold harmless You from and against any and all costs Judgments damages and awards in lawsuits proceedings or actions brought by any third party and reasonable fees and costs in connection with the defense thereof resulting from any claim or allegation that the Software infringes any U S patent or copyright of any third party Claims The obligations set forth herein will not apply to and Provider assumes no liability for any Claims to the extent arising from i use of a Version of the Software that has been modified in any way by any person or entity other than Midokura in the combination operation or use of the Software with non Provider programs data methods or technology if such infringement would have been avoided without the combination operation or use of the Software with other programs data methods or technology 1 unauthorized or unlicensed use of the Software iv failure to implement any update provided by Provider that would have prevented the Claim or vV Software made modified customized or altered to Your specifications Provider s obligations under this Section 10 1 shall only apply if You give Provider i prompt written notice of the Claim no later than five days after You receive notice thereot ii sole control of the defense or settlement of such Claims and
71. intellectual property rights in and to the Software Services and Documentation including any copies made by You Provider 7 reserves all rights to the Software Services Documentation or any copyrights patents MM 6 0 a SE 1 amp i 2 Tu trademarks or other intellectual property rights embodied or used in connection 0 A Ra therewith except for the rights expressly granted herein 5 Free Trial If You register on Our website for a free trial Provider S wl make one or more Services available to You on a trial basis free of charge until the a
72. iption specified in the applicable Order Form the Warranty Period that the Software will substantially perform in accordance with the Documentation Except as set forth in the preceding sentence You expressly understand and agree that Your use of the Services is at Your sole risk and that the Services are provided as is and as available If Provider determines that during the Warranty Period the Software does not substantially conform to the foregoing warranties and the operation of the Software is materially affected Non Conformity Provider will use reasonable efforts to correct such Non Conformity or if correction is not commercially practical in Provider s sole discretion replace such Software free of charge If neither of the foregoing is commercially practical in Provider s sole discretion Provider may terminate the Agreement The foregoing are Your sole and exclusive remedies for breach of this limited warranty The warranty set forth above is made to and for the benefit of You only The warranty will apply only if a the Software has been properly installed and used at all times in accordance with the Documentation and all other instructions from Provider b no modification alteration or addition has been made to the Software by persons other than Provider or Provider s authorized representative except as authorized in writing by Provider and c the Software has not been subjected to misuse negligence
73. ns will automatically renew for additional periods equal to the expiring Subscription term or one year whichever is shorter unless either Party gives the other notice of non renewal at least 30 days before the end of the relevant Subscription term The per unit pricing during any automatic renewal term will be the same as that during the immediately prior term unless We have given You written notice of a pricing increase at least 60 days before the end of that prior term in which case the pricing imcrease will be effective upon renewal and thereafter 13 3 Termination Notwithstanding the foregoing this Agreement may be terminated as elsewhere provided in the Agreement or as follows 13 3 1 Termination for Cause Either Party may terminate this Agreement and all rights granted hereunder by written notice upon the occurrence of any of the followmg events i in the event the other Party materially fails to comply with any of the terms and conditions of this Agreement and such default has not been cured within 30 days after receiving written notice of the breach or ii in the event the other Party A terminates or suspends its business B becomes subject to any bankruptcy or insolvency proceeding under applicable law C becomes insolvent or subject to control by a trustee receiver or similar authority or D has wound up or liquidated voluntarily or otherwise 13 3 2 Termination by Provider Provider may terminate this Agreemen
74. or accident Further the warranty set forth in this Section 8 shall apply only to Non Conformities appearing within the Warranty Period and only if such Non Conformities and claims for warranty are reported In writing to Provider within five days after discovery If You fail to notify Provider during such five day period the warranty provided hereunder shall automatically terminate for the Software and You shall 7 3
75. reement if such delay or failure is caused in whole or in part by events occurrences or causes beyond the control and without neglhgence of the Parties Such events occurrences or causes will include without limitation acts of God strikes lockouts riots acts of war earthquakes fire and explosions and acts of government Your payment obligations hereunder are expressly excluded from this Secton 16 1 16 2 Waiver Any waiver of the provislons of this Agreement or of a Party s rights or remedies under this Agreement must be in writing to be effective Failure neglect or delay by a Party to enforce the provisions of this Agreement or its rights or remedies at any tme will not be construed and will not be deemed to be a waiver of such Party s rights under this Agreement and will not in any way affect the Vahdity of the whole or any part of this Agreement or prejudice such Party s right to take subsequent action Except as expressly stated in this Agreement no exercise or enforcement by either Party of any right or remedy under this Agreement will preclude the enforcement by such Party of any other right or remedy under this Agreement or that such Party is entitled by law to enforce 16 3 Severability If any term condition or provision in this Agreement is found to be invalid unlawful or unenforceable to any extent the Parties shall endeavor in good faith to agree to such amendments that will preserve as far as possible the inten
76. rees to the applicable governing law above without regard to choice or conflicts of law rules and to the exclusive jurisdiction of the applicable courts set forth above The prevailing party in any proceeding concerning or arising out of this Agreement shall be entitled to reimbursement of his her its reasonable costs including legal and accounting fees incurred in connection with any such matter The term prevailing party shall include without limitation a party who substantially obtains or defeats the relief sought as the case may be whether by compromise settlement judgment or the abandonment by the other party of his her its claim or defense The attorneys fees award shall not be computed in accordance with any court fee schedule but shall be such as to fully reimburse all attorneys fees reasonably incurred This Agreement is not subject to the Mexico in Cen Africa Japan oO region The United States of America America Caribbean A Country in Europe the Middle East or Canada or a Country tral or South Or the Address Services SA Rue Etraz 4 1003 Lausanne Switzerland Attn VP of Global Sales Midokura SARL c o Fax 41 21 560 4777 Address 1003 Lausanne Switzerland Attn VP of Global Sales Fax 41 21 560 4777 Midokura SARL r a Country in Asia or the Pacific Address Midokura SARL c o c o Attn VP of Global Sales Fax 41 21 5
77. rvices that You or Your Affiliate purchase under an Order Form as distinguished from those provided pursuant 1 4 Section 10 1 mo Section 11 1 v 4 E 3 1 5 Section 7 1 1 6 Midokura SARL 1 7 Section 8 1 8 OSS
78. t or any Services by providing You with 30 days written notice if Provider terminates any agreement or appointment of an Authorized Reseller Provider may also terminate this Agreement or any Services for any reason or for no reason by providing You with 60 days written notice 13 3 3 Refund or Payment upon Termination If this Agreement is terminated by You in accordance with Section 13 3 1 or by Provider im accordance with Section 13 3 2 Provider shall refund to You any prepaid Fees for Subscriptions covering the remainder of the period after the effective date of termination Tf this Agreement is terminated by Provider in accordance with Section 13 3 1 or 13 3 2 You shall immediately pay to Provider all unpaid Fees incurred through the effective date of termination In no event will termination relieve You of Your obligation to pay any Fees payable to Provider for the period through the effective date of termination 1 30 1 i 13 2 1
79. th in Section 10 1 1 3 Confidential Information has the meaning set forth in Section 11 1 1 4 Documentation means any help files instruction manuals operating instructions user manuals and specfications provided by Provider which describe the use of the Software and which either accompany the Software or are provided by Provider to You at any time 1 5 Fees has the meaning set forth in Section 7 1 1 6 Midokura means Midokura SARL a Swiss corporation 1 7 Non Conformity has the meanng set forth in Section 8 1 8 Open Source Software or OSS means computer software or components with source code that is hcensed under a license approved by the Open Source Initiative OST or a similar open source or freeware hcense 1 9 Order Form means i the customer acknowledgement of a sales quote order form ii an web based form for obtaining an activation code of the Software and or Services iii a trial registration form or iv any similar form which is an ordering document specifying the Software and or Services to be provided hereunder that is entered into between You and Provider or any of its affiliates including any addenda and supplements thereto 1 10 Provider means Midokura or an Authorized Reseller from which You purchase a subscription to Software and or Services under a free trial or an Order Form set forth herein 1 11 Purchased Service means Se
80. the date of Your acceptance of this Agreement You and Provider may sometimes be referred to hereinafter individually as a Party and collectively as the Parties AGREEMENT NOW THEREEORE in consideration of the mutual promise covenants agreements and conditions contained herein and for other good and valuable consideration the receipt and sufficiency of which are hereby acknowledged and subject to the terms and conditions set forth herein Provider and You agree as follows 2014 7 17 available at http www midokura com policies E
81. tions expressed in this Agreement If the Parties fail to agree on such an amendment such invahd term condition or provision will be severed from the remaining terms conditions and provisions which will continue to be valid and enforceable to the fullest extent permitted by law 16 4 Your Standard Terms No terms provisions or conditions of any purchase order acknowledgment or other business form that You may use in connection with the acquisition or hcensing of the Software will have any effect on the rights duties or obligations of the Parties under or otherwise modify this Agreement regardless of any failure of Provider to object to such terms provisions or conditions 16 5 Amendments to This Agreement This Agreement may not be amended except by a writing signed by or electronically accepted by the Party for the International Sale of Goods 16 16 1
82. u shall not and agree not to a sell lease assign license sub hcense or otherwise transfer the Software Services or the Documentation b copy or install the Software onto a public or distributed network or otherwise distribute or disclose the Software to any third party c modify decompile disassemble or reverse engineer the Software or Services in whole or in part d allow access to the Software by any user other than Your employees e write create or develop any derivative work software or any other program or source code based upon the Software or any Confidential Information f alter or remove any Droprietary rights notices that appear in the Software or Documentation g use evaluate or view the Software Services or Documentation for the purpose of designing modifying or otherwise creating any program or source code or any portion thereof that performs a function similar to any function performed by the Software h use copy exploit or a i FA CHAN dd
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