Standard Terms and Conditions for purchase of A10 Products and Services

A10 Networks, Inc. – Terms and Conditions of Purchase

1. 1. SCOPE:
      A10 is the provider of certain A10 Network Offerings as described further herein. All sales of A10 Networks Offerings set forth on a quotation provided by A10 Networks, Inc. (“A10 Networks”) to customer (“Customer”) are made on these terms and conditions of sale (“Agreement”), including those stated in Exhibit A. Unless otherwise expressly agreed upon in writing by the parties, additional terms, or a conflict between the terms, of this Agreement (including but not limited to additional or varying terms in a purchase order, Customer acknowledgement form or any other communication from Customer) are unacceptable and expressly rejected by A10 Networks. For the avoidance of doubt, such conflicting or additional terms shall not become part of the Agreement between A10 Networks and Customer.
   2. DEFINITIONS:
      The following definitions apply to capitalized terms in this Agreement. All other capitalized terms are defined in the body of the Agreement. The terms “days” and “months” refer to U.S. calendar days and months, rather than to business days and business months, unless expressly noted.
      2.1. “A10 Networks Offerings” includes the A10 Networks Products, SaaS, and Services offered hereunder to Customer.2.2. “A10 Networks Products” or “Products” includes the Hardware and Software that A10 Networks makes available to Customer under this Agreement.

      2.3. “Customer” means the person or entity that purchases A10 Network Offerings, it being understood that all such purchases are solely for Customer’s own internal use, not for resale, sublicensing, assignment, or onward distribution.

      2.4. “Documentation” means any user documentation, on any media, provided by A10 for use with the A10 Network Offerings.

      2.5. “Hardware” means the tangible equipment made available to Customer pursuant to this Agreement and may be summarized or amended from time to time in A10’s sole discretion.

      2.6. “Initial Term” means the period beginning on the Effective Date and ending twelve (12) months thereafter.

      2.7. “License Agreement” means any of the standard form A10 Networks’ software license or other agreement(s) by which Software is licensed. A10 Networks may revise the terms of its License Agreements from time to time, at its sole discretion; provided, however, that no such revision shall apply to any Software delivered prior to the effective date of the revision.

      2.8. “SaaS” means those A10 subscription offerings made available by A10 Networks to Customer for Customer’s use under the terms specified in this Agreement and A10’s Subscription Services Agreement. Where this Agreement refers to SaaS, such reference means A10’s provision of access information to enable Customer’s consumption of SaaS.

      2.9. “Software” means the executable operating system software, firmware and all other software licensed by A10 to Customer under this Agreement, as may be summarized by A10 in its then-current price list as amended from time to time in A10’s sole discretion, and all error corrections and bug fixes provided by A10.

      2.10. “Services” means Support/Maintenance Services and/or Training (if applicable).

      2.11. “Subscription Services Activation Key” means a unique code provided by A10 that an End User can redeem with A10 to obtain directly from A10 Software or SaaS (which may include, but are not limited to, A10’s Harmony Controller (SaaS version), Cloud Access Controller, and other A10 offerings).

      2.12. “Support/Maintenance Services” means the technical support and maintenance program or programs offered by A10 Networks with respect to the A10 Networks Products referenced at this link: Support Programs.

      2.13. “Term” means collectively the Initial Term and any Renewal Term as further set forth below.

   3. ORDERS, PAYMENT, DELIVERY:
      
      3.1. General Provisions:
      All orders (“Purchase Orders” or “PO”) for A10 Networks Offerings submitted by Customer shall be in writing and sent to A10 at the address set forth above or as A10 otherwise specifies. Purchase Orders may be placed by email. All POs are subject to acceptance by A10. POs shall refer to this Agreement and shall contain the following: (i) each item of A10 Networks Offerings ordered by SKU, model or part number, (ii) quantity requested and/or as relevant the Subscription Service or other Service term and usage information; (iii) unit Price; (iv) payment information; (v) where relevant shipment instructions, including requested carrier, delivery schedule and destination; and (vi) as part of the delivery schedule, a date after A10 receives the PO upon which the order is requested to be delivered (“Specified Delivery Date”), (the terms of (i), (ii), (iii), (iv), (v) and (vi), collectively, “Ordering Information”).3.2. Purchase Orders; Acceptance:
      A PO shall not bind A10 until A10 accepts the PO in writing (e-mail being an acceptable form of writing) or ships or otherwise delivers the A10 Networks Offering. A10 may accept or reject any PO in its sole discretion. A10 shall have the right to allocate available inventory among its customers, Customer and distributors in any manner that A10 deems fair and reasonable, without liability to Customer. A10 shall use reasonable efforts to notify Customer within five (5) business days of receipt by A10 of a PO of (i) the acceptance or rejection thereof; and (ii) the date designated by A10 for anticipated delivery of the Products, Subscription Services Activation Key(s), or Services (as relevant) ordered under the accepted PO. The receipt or deposit by A10 of a pre-payment shall not constitute acceptance of a PO. Any pre-payment received from Customer shall be returned if the PO is not accepted by A10. Partial shipment of a PO shall not constitute acceptance of the entire PO absent written acceptance of the entire PO.

      3.3. Delivery:
      Upon acceptance of a PO by A10 and the satisfaction of all A10 prerequisites prior to delivery, A10 shall deliver to Customer, by full or partial shipment, Ex Works, (Incoterms 2020) A10’s designated facility in the United States, the Product(s), Documentation, and/or collateral as appropriate. SaaS, Software and Support/Maintenance Services may be delivered electronically, including, but not limited to, the delivery of a Subscription Services Activation Key. A10 shall make commercially reasonable efforts to meet the estimated delivery date and/or the Specified Delivery Date but shall not, in any event, be liable for failure to deliver or for any delay or error in delivery of A10 Networks Offerings. Customer shall be responsible for and pay all packing, special packaging, shipping, freight and insurance charges, which charges A10 may require Customer to pay in advance, as well as all customs duties and other import and export fees or which may be pre-paid and added to Customer’s invoice. All shipping costs are Ex Works (Incoterms 2020) A10’s U.S. designated facility. A10 may make partial shipments on account of Customer’s POs, to be separately invoiced and paid for when due. Any delay in the delivery of any installment will not relieve Customer of its obligation to accept the remaining deliveries.

      3.4. Title and Risk of Loss:
      Title (except to the extent the A10 Products contain or consist of Software or reflect intangible deliveries such as SaaS) and all risk of loss of or damage to A10 Products and Subscription Service Activation Keys pass to Customer when A10 informs Customer that the Products and/or Subscription Service Activation Keys are available for pickup at A10’s designated facility. Title to SaaS offerings and/or Software remains in A10 Networks and/or its suppliers and does not pass.

      3.5. Cancellation:
      Customer may not cancel any PO that A10 has accepted without A10’s written consent. A10 may cancel any purchase order accepted by A10 Networks, or refuse or delay shipment of the A10 Networks Offerings pursuant to it, if Customer: (i) fails to make any payment as provided in this Agreement or under the payment terms set forth in any invoice or otherwise agreed to by A10 and Customer; (ii) fails to meet reasonable credit or financial requirements established by A10 Networks, including any limitations on allowable credit; or (iii) otherwise fails to comply with the terms and conditions of this Agreement. Any such cancellation, refusal or delay by A10 does not constitute a termination of this Agreement or breach of this Agreement by A10.

      3.6. Customer Inspection of Products:
      All A10 Networks Offering shall be deemed accepted for all purposes of the Agreement upon delivery. Customer shall inspect the Product(s), Documentation and collateral (if any) upon delivery. Customer shall not return, and A10 shall not be obligated to accept return of, any Product(s), whether because of damage, defect or otherwise, except with A10’s prior written approval. If returns are approved, A10 shall provide Customer with preferred return carrier and logistic information and pay all shipping, insurance and other costs of returning any Product(s) and shall bear any risk of loss or damage until the Product(s) is received by A10 at its premises. If Product has been (i) modified or altered by Customer, (ii) abused or misused, or (iii) used in a manner or in an operating environment other than that for which it is designed, A10 shall have no warranty or other obligations related to the Product. Except as provided in this paragraph, Customer shall have no right to return any Products. Customer acceptance of Products tendered under this Agreement shall be final and irrevocable.

   4. PAYMENT TERMS:
      Unless otherwise agreed in writing, all payments will be due net thirty (30) days from the date of A10’s invoice, shall be made in U.S. Dollars, free of any currency control or other restrictions, and Customer shall pay A10 by (i) check or money order drawn on a U.S. bank; (ii) wire transfer to an account specified by A10 Networks, (iii) irrevocable Letter of Credit, or (iv) terms that may be extended upon receipt and approval of verifiable commercial trade reference. Customer shall bear all related bank fees and charges. All amounts payable hereunder are non-creditable and non-refundable, and no payment due may be deferred or delayed for any reason, including but not limited to Customer’s failure to receive payment from any End User. Customer shall pay interest on all amounts not paid within fifteen (15) days of being due at the rate of one and one half percent (1.5%) per month or the highest rate permitted by law, whichever is lower, from the due date. Notwithstanding the foregoing, A10 reserves the right to change payment terms (including without limitation requiring Customer to pay all amounts in full prior to shipment, or secure payment solely through an irrevocable letter of credit) at any time if, in A10’s sole opinion and discretion, A10 identifies Customer as a credit risk, or Customer’s financial condition or payment record so warrants. Customer will promptly reimburse A10 for all reasonable costs and expenses (including reasonable attorneys’ fees) incurred by A10 in connection with collecting any overdue amounts.

1. 1. PRICING AND CHANGES:
      
      5.1. Prices:
      For each A10 Networks Offering ordered by Customer, Customer shall pay to A10 the price specified in a quotation provided by A10 to Customer (the “Price”). If A10 has not provided Customer with a quotation for the particular A10 Networks Offering ordered, the Price for such items will be the then-current North American retail price (“MRP”).5.2. Price Changes:
      A10 may change A10 Networks Offering prices, license fees, subscription fees and other charges from time to time, and without obligation or liability to Customer of any kind, provided that any such price changes will not apply to orders already accepted by A10.

      5.3. Service and Subscription Fee Increases:
      Unless written notice is provided to A10 at least 60 days prior to the end of any relevant Order Term for Maintenance Services and/or SaaS, Customer’s order for such A10 Offering will automatically renew for a single year term. The fees payable for the applicable A10 Offering in the resulting renewal period will be: (i) the same as that offered for the immediately preceding term plus the greater of: (i) 3%; or (ii) the percentage rate of increase equal to the change in the CPI (all items) for Urban Wage Earners and Clerical Workers between the most recent calendar-year report issued by the United States Bureau of Labor Statistics and the report issued for the immediately preceding calendar year (U.S. City Average, All Items, Index Base Period 1982-84=100), currently found at https://www.bls.gov/news.release/cpi.t01.htm (or its substantial equivalent if this index is not available), as published on February 1 of the renewal term year or (ii) such other amount as A10 advises. Customer agrees that this Section provides sufficient notice of any such increase and agrees to such increases.

      5.4. Other Changes:
      A10 reserves the right, from time to time, and without obligation or liability to Customer of any kind, to: (i) change the A10 Networks Offering; (ii) add to or delete from the list of the A10 Networks Offering available pursuant to this Agreement; (iii) change or terminate the level or type of service or support that A10 makes available for the A10 Networks Offering. A10 will endeavor to provide Customer with at least thirty (30) days’ advance notice of any of the changes described in the foregoing clauses (i) through (iii).

   2. ORDER TERMS:
      
      6.1. No Modification of Terms:
      Nothing contained in any PO, acknowledgment, or invoice shall in any way modify the terms or add any additional terms or conditions to this Agreement. Except for Ordering Information, any terms and conditions in any PO that are inconsistent with or in addition to the terms and conditions of this Agreement are hereby rejected by A10 and will be deemed null and of no effect, even if A10 accepts or acknowledges such PO.6.2. Assurances by Customer:
      A10 reserves the right to withhold and/or cancel any PO subject to assurances from Customer, which assurances A10 shall not unreasonably request, confirming that Customer can fulfill its obligations under this Agreement. Bases for A10’s request shall include, without limitation, information regarding Customer’s pending insolvency, Customer’s overextension of credit and unusually large orders.
   3. ADDITIONAL PAYMENT TERMS:
      
      7.1. Taxes:
      A10’s prices are exclusive of all sales, use, value-added, withholding and other taxes or duties. Customer will pay all taxes and duties assessed in connection with this Agreement and its performance, except for taxes payable on A10’s net income. Customer will promptly reimburse A10 for any and all taxes or duties that A10 may be required to pay on Customer’s behalf in connection with this Agreement or its performance. Customer will provide A10 with appropriate resale certificate numbers and other documentation satisfactory to the applicable taxing authorities to substantiate any claim of exemption from any taxes or duties.7.2. No Setoff:
      Customer may not set off against A10’s invoices amounts that Customer claims are due to it under this Agreement or otherwise.
   4. TERM:
      This Agreement shall become effective as of the Effective Date and shall remain in effect for the Initial Term and shall be automatically renewed thereafter on a year-to-year basis (each a “Renewal Term”), unless notice of termination is provided by one party to the other party not less than thirty (30) days prior to the end of the Initial Term or any Renewal Term. Any expiration or termination of the Agreement shall not alter the rights, duties, payments and obligations of the parties, or the discounts granted, for any POs accepted by A10 under this Agreement prior to the date of such expiration or termination.

1. COMPLETE AGREEMENT:
   This Agreement, including Exhibit A (“Additional Terms and Conditions”) attached hereto and incorporated herein, are the complete and exclusive statement of the mutual understanding between the parties and supersede and terminate all previous written and oral agreements and communications relating to the subject matter of this Agreement. Any terms or conditions contained in any acknowledgment, purchase order, or other communication of Customer, which are inconsistent with the terms and conditions of this Agreement are expressly rejected and shall be null and void. Any waiver, modification or amendment of any provision of this Agreement will be effective only if in writing and signed by duly authorized representatives of each party.

EXHIBIT A

ADDITIONAL TERMS AND CONDITIONS

1. 1. LICENSES
      a. Software Terms:
      A10 licenses and does not “sell” any of its software, firmware (collectively “Software”) or any technology used to provide subscriptions. A10 will “sell” in the sense of transfer title to Products to Customer, and Customer will purchase Products from A10, only to the extent that the Products contain or consist of items or components other than Software or SaaS, e.g., hardware. Use of terms such as “sell,” “purchase,” and “price” will be interpreted in accordance with the foregoing. To the extent that the Products contain or consist of Software, Customer only has the right to use Software, in executable form, only for its internal use in the Products or as otherwise expressly authorized by A10. Customer acknowledges and agrees that all Software is subject to A10’s End User Licensing Agreement (“EULA”), which terms are incorporated herein as if set forth at length, and agrees to use Software only in accordance with such terms. Customer will notify A10 promptly of any breach of such licensing terms and will assist A10 to enforce such licensing terms. Customer will not and will not enable any third party to: (i) copy, modify, disassemble, decompile, or reverse engineer Software, except, and solely to the extent, if any, that applicable local law requires that such activities be permitted; and (ii) use, distribute or otherwise dispose of Software or any subscription services, except as expressly permitted under this Agreement. A10 reserves all right, title and interest in and to Software not expressly granted by A10 under this Agreement.b. SaaS Terms:
      Upon A10’s receipt and acceptance of a Purchase Order from SaaS from Customer A10 will provide Customer with instructions regarding SaaS provisioning Customer’s use in accordance with the Order. Customer acknowledges and agrees that SaaS are provided and are subject to the terms specified in A10’s Subscription Services Agreement, which terms are incorporated herein as if set forth at length. The terms of the A10’s Subscription Services Agreement will control in the event of a conflict between the terms stated therein and in this Agreement.

      c. Documentation License:
      A10 hereby grants Customer a non-exclusive, non-transferable, non-sub licensable, revocable license to use the Documentation and to make a reasonable number of copies of the Documentation solely for its own business purposes to support Customer’s use of the A10 Networks Offering(s), provided that Customer must reproduce and include the copyright notice and any other notices that appear on the original copy of the Documentation on any copies made by Customer regardless of type of media.

   2. RESTRICTIONS ON USE
      a. Restrictions:
      Customer hereby agrees (i) not to create or attempt to create by reverse engineering, disassembly, decompilation or otherwise, the source code, internal structure, hardware design or organization of the A10 Networks Offering(s), or any part thereof, or to aid or to permit others to do so, except and only to the extent expressly permitted by applicable law; (ii) not to remove any A10 Networks Offering(s) identification or notices of any proprietary or copyright restrictions from any A10 Networks Offering(s) or any A10 Networks Offering(s) support material; (iii) not to copy the A10 Networks Offering(s) software, modify, translate or, unless otherwise agreed, develop any derivative works thereof or include any portion of the Software, Documentation or Subscription Service or integrate them into any other software program; and (iv) not to separate the A10 Networks Offering(s) into component parts for distribution or transfer to a third party.b. No Modification:
      Customer shall not alter, modify, obscure or remove any copyright, logo, trademark or other proprietary markings or confidentiality legends or any serial numbers as they appear on or in A10 Networks Offering(s).

      c. Customer acknowledges that A10 Networks Offerings are not authorized by A10 Networks for use in any device or application where the failure, malfunction or inaccuracy of the A10 Networks Offering may carry a risk of death or serious bodily injury, such as, but not limited to, moving vehicles, medical equipment, nuclear facilities, aircraft navigation or communication, air traffic control, life support or other applications representing a similar degree of hazard. Any such use is prohibited without prior written agreement of A10 Networks under terms intended to allocate the risks of selling the A10 Networks Offering for such uses.

   3. Security Interest:
      If A10 permits Customer to obtain the A10 Networks Offerings on credit, then Customer concurrently grants A10 a continuing security interest in any A10 Networks Offering acquired at any time by Customer and all proceeds therefrom and accessions thereto (“Collateral”) to secure payment of any debts, obligations or liabilities of Customer to A10 arising at any time. Customer hereby authorizes A10 to file any financing statement or other documents necessary to perfect A10’s security interest in the Collateral. If Customer fails to comply with A10’s credit terms or, upon the occurrence of any event specified in Section 7(b) that permits A10 to terminate this Agreement, then A10 will be entitled to all rights, powers, and remedies available to a secured party under the Uniform Commercial Code with respect to the Collateral, in addition to all other rights and remedies under this Agreement and at law.

1. 1. PUBLICITY:
      Customer authorizes and consents to A10’s identification of Customer as a user of A10 Networks Offerings in A10’s publicity, advertising and marketing materials. A10 will follow any trademark or related guidelines provided by Customer in any such advertisements.

1. 1. OWNERSHIP AND RETENTION OF RIGHTS:
      Customer hereby agrees and acknowledges that A10 Networks, its suppliers, partners and licensors (if any), own and shall retain all right, title and interest in and to (i) the manufacture and/or production of A10 Networks Offerings (including all copies and derivative works thereof, by whomever produced), and associated A10 Networks Offering(s), Documentation, including all intellectual property rights embodied therein; (ii) all of the service marks, trademarks, trade names or any other designations, and (iii) all copyrights, patent rights, trade secret rights, and other proprietary rights in the A10 Networks Offering(s), and Customer shall have no rights with respect thereto other than the limited rights expressly set forth in this Agreement.

1. 1. INDEMNIFICATION:
      a. Scope:
      A10 will defend or settle any action brought against Customer to the extent that it is based upon a third-party claim that an A10 branded Product, as provided by A10 to Customer under this Agreement, infringes any United States patent or any copyright or misappropriates any trade secret, and will pay any costs and damages made in settlement or awarded against Customer in final judgment resulting from any such claim, subject to the understanding that A10 shall have exclusive control over the defense and/or settlement of such suits, provided however, that Customer: (i) gives A10 prompt notice of any such claim; (ii) gives A10 sole control of the defense and any related settlement of any such claim; and (iii) gives A10 Networks, at A10’s expense, all reasonable information, assistance and authority in connection with the foregoing. A10 will not be bound by any settlement or compromise that Customer enters into without A10’s express written prior consent.b. Injunction:
      If Customer’s rights to use an A10 branded Product under the terms of this Agreement is, or in A10’s opinion is likely to be, enjoined due to the type of claim specified in Section 6(a), then A10 may, at its sole option and expense: (i) procure for Customer the right to continue to use such A10 branded Product under the terms of this Agreement; (ii) replace or modify such A10 Product so that it is non-infringing; or (iii) if options (i) and (ii) above cannot be accomplished despite A10’s reasonable efforts, then A10 may terminate Customer’s rights and A10’s obligations hereunder with respect to such A10 branded Product and credit to Customer the amounts paid for such A10 Product during the twelve (12) months prior to the date A10 issues such a credit, provided that all units of such A10 Product are returned to A10 in an undamaged condition.

      c. Limitations on Indemnification:
      A10 shall have no obligation under this Agreement for any claim of infringement or misappropriation to the extent that it results from (i) combination, operation or use of the Products with equipment, products, or processes not provided by A10 Networks; (ii) modifications to the Products made other than by A10 Networks; (iii) failure of Customer to use updated or modified Products provided by A10 Networks; (iv) compliance by A10 with designs, plans or specifications furnished by or on behalf of Customer; (v) any opening of or other tampering with a Product(s) by non-A10 personnel; (vi) third-party products or services.

      d. Limitation:
      THE FOREGOING PROVISIONS OF THIS ARTICLE 6 SET FORTH A10’S SOLE AND EXCLUSIVE LIABILITY AND CUSTOMER’S SOLE AND EXCLUSIVE REMEDY FOR ANY CLAIMS OF INFRINGEMENT OR MISAPPROPRIATION OF INTELLECTUAL PROPERTY RIGHTS OR PROPRIETARY RIGHTS OF ANY KIND.

   2. TERMINATION:
      a. Termination for Convenience:
      After the Initial Term, this Agreement may be terminated for convenience by A10 at any time upon at least thirty (30) days prior written notice.b. Termination for Cause:
      Either party may terminate this Agreement, at any time, if the other party breaches any material term of this Agreement and fails to cure that breach within twenty (20) days after notice thereof from the non-breaching party. A10 may also terminate this Agreement, at any time, if: (i) Customer breaches any of its payment obligations under this Agreement and fails to cure that breach within ten (10) days after notice thereof from A10 Networks; (ii) Customer becomes the subject of a voluntary or involuntary petition in bankruptcy or proceeding relating to insolvency, receivership, liquidation, or composition for the benefit of creditors; or (iii) Customer is merged or consolidated, sells all or substantially all of its assets, or is subject to any substantial change in management or control.

      c. Training Credits:
      Training credits are valid from the date of purchase and will automatically expire one (1) year thereafter. Such expired training credits will then be deemed forfeited and are non-refundable.

      d. Effects of Termination:
      Upon termination or expiration of this Agreement for any reason whatsoever, (i) the due dates of all outstanding invoices to Customer will automatically be accelerated so they become due and payable on the date of termination or expiration, even if longer terms had been provided previously; (ii) all POs or portions thereof remaining undelivered on the date of termination or expiration will automatically be canceled; and (iii) each party will promptly return to the other party all Confidential Information of the other party in its possession or control, and will provide the other party with a certification, signed by one of its officers, certifying the return of all such Confidential Information A10.

      e. No Expectation of Damages:
      CUSTOMER WAIVES ANY RIGHTS IT MAY HAVE TO RECEIVE ANY COMPENSATION OR INDEMNITY UPON TERMINATION OR EXPIRATION OF THIS AGREEMENT, OTHER THAN AS EXPRESSLY PROVIDED IN THIS AGREEMENT.

      f. Survival of Terms:
      The terms contained within the following Paragraphs and Sections shall survive any expiration or termination of this Agreement: Paragraphs of the Agreement as follows: 2 (“Definitions”), 4 (“Payment Terms”), 7 (“Additional Payment Terms”), 8 (“Term”), 9 (“Complete Agreement”), and Sections of these Additional Terms and Conditions as follows: 2 (“Restrictions on Use”), 4 (“Publicity”), 5 (“Ownership and Retention of Rights”), 7 (“Termination”), 9 (“Confidential Information”), 10 (“Warranty & Liability Disclaimers”), 11 (“Compliance with Laws”) and 12 (“General Provisions”).

   3. RELATIONSHIP OF THE PARTIES:
      a. Independent Contractors:
      The parties are independent contractors and this Agreement will not establish any relationship of partnership, joint venture, employment, franchise, or agency between the parties. Neither party will have the power to bind the other party or to incur any obligations on its behalf, without the other party’s prior consent.b. Non-exclusive Relationship:
      Nothing in this Agreement shall be construed as limiting A10’s marketing or distribution activities or its appointment of other Customers, resellers, distributors, sales representatives, sub-resellers, licensees, or agents of any kind in any place.
   4. CONFIDENTIAL INFORMATION:
      a. Definition:
      “Confidential Information” means: (i) any non-public information of a party, including, without limitation, any information relating to a party’s current and planned products and services, technology, techniques, know-how, research, engineering, designs, finances, accounts, procurement requirements, manufacturing, customer lists, business forecasts and marketing plans; (ii) any other information of a party that is disclosed in writing and is conspicuously designated as “Confidential” at the time of disclosure or that is disclosed orally, is identified as “Confidential” at the time of disclosure, and is summarized in a writing sent by the disclosing party to the receiving party within thirty (30) days of any such disclosure; and (iii) the specific terms and pricing set forth in this Agreement.b. Obligations:
      Each party will not use the other party’s Confidential Information, except as necessary for the performance of this Agreement, and will not disclose such Confidential Information to any third party, except to those of its employees and subcontractors that need to know such Confidential Information for the performance of this Agreement, provided that each such employee and subcontractor is subject to a written agreement that includes binding use and disclosure restrictions that are at least as protective as those set forth herein. Each party will use all reasonable efforts to maintain the confidentiality of all of the other party’s Confidential Information in its possession or control, but in no event less than the efforts that it ordinarily uses with respect to its own confidential information of similar nature and importance. The foregoing obligations will not restrict either party from disclosing the other party’s Confidential Information or the terms and conditions of this Agreement: (i) pursuant to the order or requirement of a court, administrative agency, or other governmental body, provided that the party required to make such a disclosure gives reasonable notice to the other party (to the extent legally permitted) to enable it to contest such order or requirement; (ii) on a confidential basis to its legal or professional financial advisors; (iii) as required under applicable securities regulations; or (iv) on a confidential basis to present or future providers of venture capital and/or potential private investors in or acquirers of such party.

      c. Exclusions:
      The obligations in Section will not apply to the extent any information: (i) is or becomes generally known to the public through no fault of or breach of this Agreement by the receiving party; (ii) was rightfully in the receiving party’s possession at the time of disclosure, without an obligation of confidentiality; (iii) is independently developed by the receiving party without use of the disclosing party’s Confidential Information; or (iv) is rightfully obtained by the receiving party from a third party without restriction on use or disclosure.

   5. WARRANTY & LIABILITY DISCLAIMERS:

a. Limited Warranty – Scope and Duration:
A10 Networks warrants to Customer that for ninety (90) days commencing upon delivery of Hardware and/or Software (or for any longer period set forth on an agreed quotation or any warranty included in any manual or other documentation shipped with the Hardware and/or Software)(the “Warranty Period”), Hardware and Software will substantially comply with the published specifications set forth in A10 Networks’ user documentation for the Hardware and/or Software. A10 Networks makes no warranty as to the Hardware and/or Software after the Warranty Period or for third-party products or services. A10 Networks does not warrant that the Hardware and/or Software will meet Company’s requirements or will operate in combination with other hardware, software or non-supported platforms/operating systems/databases, which may be selected for use by Customer, or that the operation of the Hardware and/or Software will be uninterrupted or error-free.

b. Disclaimer:
A10 MAKES NO WARRANTIES OR REPRESENTATIONS TO CUSTOMER OR TO ANY OTHER PARTY REGARDING ANY: (i) THIRD PARTY PRODUCTS OR SERVICES; NOR (II) TO ANY A10 PRODUCTS, SAAS, LICENSES OR SERVICES PROVIDED BY A10, EXCEPT AS SET FORTH IN THE LIMITED WARRANTY ACCOMPANYING DELIVERY OF THE A10 PRODUCTS. TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, A10 DISCLAIMS ALL OTHER WARRANTIES, TERMS, CONDITIONS, AND REPRESENTATIONS, WHETHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT OR ARISING FROM A COURSE OF DEALING OR USAGE OF TRADE. A10 PROVIDES ITS PRODUCTS AND SERVICES “AS IS” AND DOES NOT WARRANT THEIR EFFECTIVENESS, USEFULNESS OR RELIABILITY. A10 MAKES NO WARRANTY WITH RESPECT TO ANY THIRD PARTY PRODUCT OR SERVICE IT MAY MAKE AVAILABLE, ALTHOUGH A10 WILL PASS ON ANY THIRD PARTY WARRANTIES PROVIDED BY THIRD PARTIES TO THE EXTENT A10 IS PERMITTED BY CONTRACT AND LAW TO DO SO. SAAS ARE WARRANTED AS SET FORTH IN A10’S SUBSCRIPTION SERVICES AGREEMENT. CUSTOMER WILL NOT MAKE ANY WARRANTIES OR REPRESENTATIONS IN A10’S NAME OR ON A10’S BEHALF. CUSTOMER SHALL HANDLE AND BE RESPONSIBLE FOR ALL WARRANTY RETURNS FROM ITS CUSTOMERS.

c. Exclusion of Certain Damages:
IN NO EVENT WILL A10 BE LIABLE FOR ANY SPECIAL, INCIDENTAL, PUNITIVE OR CONSEQUENTIAL DAMAGES (INCLUDING, BUT NOT LIMITED TO, LOST PROFITS OR REVENUE, LOSS OF USE, LOST BUSINESS OPPORTUNITIES OR LOSS OF GOODWILL), OR FOR THE COSTS OF PROCURING SUBSTITUTE GOODS, TECHNOLOGY OR SERVICES, ARISING OUT OF, RELATING TO OR IN CONNECTION WITH THIS AGREEMENT OR THE USE OR PERFORMANCE OF ANY A10 OFFERING PROVIDED BY A10, WHETHER SUCH LIABILITY ARISES FROM ANY CLAIM BASED UPON CONTRACT, WARRANTY, TORT (INCLUDING NEGLIGENCE), PRODUCT LIABILITY OR OTHERWISE, WHETHER OR NOT A10 HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH LOSS OR DAMAGE. THE PARTIES HAVE AGREED THAT THESE LIMITATIONS WILL SURVIVE AND APPLY EVEN IF ANY LIMITED REMEDY SPECIFIED IN THIS AGREEMENT IS FOUND TO HAVE FAILED OF ITS ESSENTIAL PURPOSE.

d. Limitation of Liability:
NOTWITHSTANDING ANYTHING TO THE CONTRARY IN THIS AGREEMENT OR ELSEWHERE, IN NO EVENT WHATSOEVER SHALL A10’S TOTAL LIABILITY UNDER THIS AGREEMENT, FROM ALL CAUSES OF ACTION AND UNDER ALL THEORIES OF LIABILITY, EXCEED THE AMOUNT ACTUALLY RECEIVED BY A10 FROM CUSTOMER DURING THE THREE (3) MONTHS PRIOR TO THE DATE A CLAIM FOR LIABILITY ARISES HEREUNDER.

e. Basis of Bargain:
The parties expressly acknowledge and agree that A10 has set its prices and entered into this Agreement in reliance upon the limitations of liability specified herein, which allocate the risk between A10 and Customer and form an essential basis of the bargain between the parties.

f. Disclaimer of Other Representations:
All representations made (express or implied) or agreements executed by Customer pursuant to this Agreement shall be Customer’s sole responsibility. Furthermore, each such agreement shall contain an acknowledgment by any third party that it is not relying on any representations or warranties made by A10 except for those warranties expressly made in A10’s Standard Warranty Service Program documents or EULA delivered with the Product(s). Customer hereby agrees to indemnify, defend and hold harmless A10 for all claims, liabilities and expenses (including reasonable attorneys’ fees) arising out of Customer’s breach of this Section 10(e).

1. 1. COMPLIANCE WITH APPLICABLE LAWS

a. Compliance with Laws:
Customer shall be solely responsible for complying with the laws and regulations applicable in the Territory, or any nation, or political subdivision thereof, in which it engages in business in performing its responsibilities hereunder as well as those applicable to the distribution and sale of the A10 Networks Offering(s) by Customer, including, without limitation, privacy, tax, export and foreign exchange laws, and export controls.

b. Anti-Corruption Laws:
Customer represents and warrants that in the performance of this Agreement, (a) Customer and Customer’s shareholders, directors, officers, and employees, and Customer’s agents or representatives, if any, will comply strictly with all applicable anti-corruption laws; (b) neither Customer nor Customer’s shareholders, directors, officers, and employees, nor Customer’s agents or representatives, if any, has taken or will take any action in furtherance of an offer, payment, promise to pay, or authorization of the payment or giving of anything of value, directly or indirectly, to any person while knowing that all or some portion of the money or value will be offered, given or promised to anyone to influence official action, to improperly obtain or retain business or otherwise to secure any improper advantage; and (c) Customer and its subsidiaries and affiliates have instituted and maintain, and will continue to maintain policies and procedures designed to promote and achieve compliance with such laws. Failure by Customer to comply with the terms of this Section will constitute a material breach of this Agreement.

c. Export and Import Controls
Customer acknowledges that the A10 Networks Offering(s) and the technical data received from A10 in accordance with the terms hereunder may be subject to United States or Territory export and import controls, and in the performance of its obligations, Customer shall at all times strictly comply with all laws, regulations and orders, and agrees to commit no act which, directly or indirectly, would violate any United States or Territory law, regulation or order, including, without limitation, tax, export and foreign exchange laws, export controls imposed by the U.S. Export Administration Act of 1979. Additionally, Customer specifically acknowledges that A10 Networks Offerings(s) and any direct product thereof is subject to United States export controls, pursuant to the Export Administration Regulations, 15 C.F.R. Parts 730-774. Customer expressly agrees that, without the prior written authorization of A10 and the United States Government, Customer shall not, and shall cause its representatives (if any) not to (i) export, re-export, divert or transfer A10 Networks Offering(s) or any direct product thereof to any destination, company or person restricted or prohibited by the United States export controls, or (ii) disclose any data derived from A10 Networks Offering(s) or any direct product thereof to any national of any country when such disclosure is restricted or prohibited by the United States export controls.

d. Authorizations:
If this Agreement or any transaction or act contemplated herein is legally required to be approved, registered, notified or recorded with or by any government agency in the Territory, Customer will assume all such obligations and will indemnify and hold harmless A10 from any liability or expenses (including reasonable attorneys’ fees and costs) from any failure by Customer to so comply.

e. Compliance Audit:
Upon reasonable request, Customer shall make its records available to A10 in order to permit A10 to confirm Customer’s compliance with its obligations as set forth in this Section 11. Customer shall bear all expenses and costs related to compliance with any laws and/or regulations.

1. 1. GENERAL PROVISIONS:

a. Governing Law:
This Agreement shall be governed by the laws of the State of California, as applied to agreements entered into and to be performed entirely within California between California residents, without regard to the principles of conflict of laws, the Uniform Computer Information Transactions Act (UCITA), or the United Nations Convention on Contracts for the International Sale of Goods.

b. Venue:
Any disputes, claims, or causes of action arising out of or related to this Agreement or Customer’s use of the A10 Networks Offerings will be resolved individually, without resort to any form of class action, and exclusively by the state or federal courts located in Santa Clara County, California.

c. Assignment:
Except pursuant to a merger or acquisition resulting in the acquisition of all or substantially all of A10’s assets, neither party may assign, delegate, sub-contract or otherwise transfer this Agreement or any of its rights and obligations hereunder, whether voluntarily, by operation of law or otherwise, without the other party’s prior written approval. Subject to the foregoing, this Agreement will bind and inure to the benefit of each party’s permitted successors and assigns.

d. No Waiver; Severability:
Failure by either party to enforce any provision of this Agreement will not be deemed a waiver of future enforcement of that or any other provision. The exercise by either party of any remedy under this Agreement will be without prejudice to its other remedies under this Agreement or otherwise If for any reason a court or arbitration panel having competent jurisdiction finds any provision of this Agreement invalid or unenforceable, that provision of the Agreement will be enforced to the maximum extent permissible and the other provisions of this Agreement will remain in full force and effect.

e. Equitable Relief:
Customer acknowledges that any breach of its obligations under this Agreement with respect to the proprietary rights or Confidential Information of A10 will cause A10 irreparable injury and significant injury for which there are inadequate remedies at law. Accordingly, A10 will be entitled to obtain immediate equitable relief from any court having competent jurisdiction to enjoin any such breach, in addition to all other rights and remedies that it may have under this Agreement, at law or otherwise.

f. Counterparts; Section Headings; Interpretation:
This Agreement may be executed in two (2) or more counterparts, each of which shall be deemed an original, all of which together shall constitute one and the same instrument. The Section headings contained herein are for convenience of reference only and shall not be considered as substantive parts of this Agreement. The parties agree that this Agreement shall be fairly interpreted in accordance with its terms without any strict construction in favor of or against either party and that ambiguities shall not be interpreted against the drafting party.

g. English Language; Notices:
This Agreement is in the English language only, which language shall be controlling in all respects. Any versions of this Agreement in any other language will be for accommodation only and will not be binding upon either party. All communications and documentation for the A10 Networks Offerings or related to this Agreement to be furnished under this Agreement shall be in the English language. All notices, approvals, consents and other communications required or permitted under this Agreement will be in writing and delivered by courier or overnight delivery service with written verification of receipt, or by registered or certified mail, return receipt requested, postage prepaid, and, in each instance, will be deemed given upon receipt. All such notices, approvals, consents and other communications will be sent to the addresses set forth above or to such other address as may be specified by either party to the other party in accordance with this Section.

h. Force Majeure:
Except for the obligation to make payments, nonperformance of A10 shall be excused to the extent performance is rendered impossible by strike, fire, earthquake, flood, governmental acts or orders or restrictions, acts of civil disobedience or terror, failure of suppliers or any other reason where failure to perform is beyond the reasonable control of and is not caused by the negligence of the non-performing party. In the event of a threatened default or default as a result of any of the above causes, A10 shall exercise reasonable commercial efforts to avoid and cure such default.

i. Government Use:
SaaS, Software and Documentation delivered to an agency or instrumentality of the United States Government shall identify the Software and Documentation as “commercial computer software” and “commercial computer software documentation” and, as specified in FAR 12.212 or DFARS 227.7202, and their successors, as applicable, shall restrict the End User Government’s rights to use, reproduce or disclose such Software and accompanying Documentation in accordance with and no more broad than any licensing granted herein.

j. No Other Rights Conferred:
Nothing contained in this Agreement shall be construed as conferring by implication, estoppel or otherwise upon either party hereunder any license or other right except the licenses, rights and uses expressly granted hereunder to a party hereto.