vThunder™ Software License Agreement
PLEASE READ THE FOLLOWING TERMS AND CONDITIONS CAREFULLY BEFORE INSTALLING OR USING THE VTHUNDERTM SOFTWARE (INCLUDING MAINTENANCE RELEASES, IF ANY) OR ANY A10 NETWORKS DOCUMENTATION (COLLECTIVELY, THE “SOFTWARE”).
THE TERMS AND CONDITIONS OF THIS SOFTWARE LICENSE AGREEMENT (“AGREEMENT”) GOVERN USE OF THE SOFTWARE UNLESS CUSTOMER AND A10 NETWORKS, INC. (“A10 NETWORKS”) HAVE EXECUTED A SEPARATE AGREEMENT GOVERNING USE OF THE SOFTWARE.
A10 Networks is willing to license the Software to Customer only upon the condition that Customer accepts all the terms contained in this Agreement. If Customer installs or uses the Software or keeps it for 30 days after the date of purchase (or the date of delivery, if A10 Networks has made the Software available to Customer without charge), then Customer has indicated that Customer understands this Agreement and accept all of its terms. If you are accepting the terms of this Agreement on behalf of a company or other legal entity, you represent and warrant that you have the authority to bind that company or other legal entity to the terms of this Agreement, and, in such event, “Customer” will refer to that company or other legal entity. If Customer does not accept all the terms of this Agreement, then A10 Networks is unwilling to license the Software to Customer, and Customer must return the Software to A10 Networks for a full refund, if Customer has paid for the license to the Software, or, if A10 Networks has made the Software available to Customer without charge, Customer must destroy all copies of the Software. Customer’s right to return the Software for a refund expires 30 days after the date of purchase.
1. Grant of License. Conditioned upon Customer’s compliance with the terms and conditions of this Agreement, A10 Networks grants Customer a non-exclusive and non-transferable license for Customer to Execute (as defined herein) a single instance with a unique identifier (UID) of the executable form of the Software on a single hypervisor, solely for Customer’s internal business purposes and solely for the purpose of further optimizing Customer network, which may include providing hosting, application, service bureau, or software-as-a-service (SaaS) services to third parties. Notwithstanding the foregoing, if Customer has downloaded a trial version and has not paid the license fees, Customer’s license is limited to use for Customer internal business purposes solely in a non-production environment, and solely for the purpose of evaluating whether Customer will purchase a production-environment use license. Customer may make copies of the Software for backup purposes; provided that Customer reproduces on it all copyright and other proprietary notices that are on the original copy of the Software. A10 Networks reserves all rights in the Software not expressly granted to Customer in this Agreement. For purposes of this Agreement, "Execute" and "Execution" means to load, install, and run the Software in order to benefit from its functionality as designed by A10 Networks. "Software" means the current version of the vThunderTM Software associated with this Agreement, together with any Maintenance Releases provided to the Customer pursuant to this Agreement. "Maintenance Release" means any update or release of the Software that A10 Networks may provide to the Customer from time to time during the Term, that may contain, among other things, error corrections, enhancements or other changes to the user interface, functionality, compatibility, capabilities, performance, efficiency or quality of the Software, but does not constitute a New Version. "New Version" means any new version of the Software that A10 Networks may from time to time introduce and market generally as a distinct licensed product, and which A10 Networks may make available to the Customer at an additional cost under a separate written agreement.
2. License Restrictions. Except as expressly specified in this Agreement, Customer agrees not to do any of the following, notwithstanding the fair use doctrine or any statutory or common law provision that might otherwise permit any of the following (except to the extent applicable law makes any of the following prohibitions unenforceable or otherwise permits the recited acts notwithstanding the agreement not to perform them): (a) copy (except in the course of loading or installing) or modify the Software, including but not limited to adding new features or otherwise making adaptations that alter the functioning of the Software; (b) transfer, sublicense, lease, lend, rent or otherwise distribute the Software to any third party; (c) make the functionality of the Software available to multiple users through any means except as expressly provided herein, including but not limited to by uploading the Software to a network or file-sharing service; or (d) use the Software for purposes of competitive analysis of the Software, the development of a competing software product or service or any other purpose that is to A10 Networks’ commercial disadvantage.
3. Trade Secrets. Customer acknowledges and agrees that portions of the Software, including but not limited to the source code and the specific design and structure of individual modules or programs, constitute or contain trade secrets of A10 Networks and its licensors. Accordingly, Customer agrees not to disassemble, decompile or reverse engineer the Software, in whole or in part, or permit or authorize a third party to do so, except to the extent such activities are expressly permitted by law notwithstanding this prohibition. Further, Customer agrees not to publicly display or disclose to third parties the Software, or any portions thereof, including, but not limited to performance metrics.
4. Ownership. The copy of the Software is licensed, not sold. Customer owns the media on which the Software is recorded, but A10 Networks retains ownership of the copy of the Software itself, including all intellectual property rights therein. As between Customer and A10 Networks, all right, title, and interest in and to the Software, and any and all intellectual property rights therein belong exclusively to A10 Networks. The Software is protected by United States copyright law and international treaties. Customer will not delete or in any manner alter the copyright, trademark, and other proprietary rights notices or markings appearing on the Software as delivered to Customer. Nothing contained in this Agreement shall be construed as transferring any right, title, or interest in or to the Software and/or any intellectual property rights in the same to Customer, except a limited license as expressly set forth herein.
5. Term. The license granted under this Agreement remains in effect for a period of 75 years, unless earlier terminated in accordance with this Agreement. Customer may terminate the license at any time by destroying all copies of the Software in Customer possession or control. The license granted under this Agreement will automatically terminate, with or without notice from A10 Networks, if Customer breaches any term of this Agreement. Upon termination, Customer must at A10 Networks’ option either promptly destroy or return to A10 Networks all copies of the Software in Customer possession or control.
6. Limited Warranty. A10 Networks warrants that, for ninety (90) days following the date of purchase (or delivery, if A10 Networks has made the Software available to Customer without charge), the Software will perform in all material respects in accordance with the Documentation. Except for the foregoing, the Software is provided “AS IS”. Customer’s sole and exclusive remedy and the entire liability of A10 Networks and its suppliers under this limited warranty will be (i) replacement of defective media and/or (ii) at A10 Networks’ option, repair, replacement, or refund of the purchase price of the Software, in both cases subject to the condition that any error or defect constituting a breach of this limited warranty is reported to A10 Networks within the warranty period. A10 Networks may, at its option, require return of the Software as a condition to the remedy. In no event does A10 Networks warrant that the Software is error free or that Customer will be able to operate the Software without problems or interruptions. A10 Networks does not warrant that the Software will meet Customer requirements, that the Software will operate in the combinations that Customer may select for Execution, that the operation of the Software will be error-free or uninterrupted, or that all Software errors will be corrected. In addition, due to the continual development of new techniques for intruding upon and attacking networks, A10 Networks does not warrant that the Software or any equipment, system or network on which the Software is used will be free of vulnerability to intrusion or attack.
Restrictions. This warranty does not apply if the Software or any other equipment upon which the Software is authorized to be used (a) has been altered, except by A10 Networks or its authorized representative, (b) has not been installed, operated, repaired, or maintained in accordance with instructions supplied by A10 Networks, (c) has been subjected to abnormal physical or electrical stress, abnormal environmental conditions, misuse, negligence, or accident; or (d) is licensed for beta, evaluation, trial, testing or demonstration purposes. The Software warranty also does not apply to (i) any temporary Software modules; and (ii) Software supplied by any third party.
7. DISCLAIMER. THE LIMITED WARRANTY SET FORTH IN SECTION 6 IS IN LIEU OF, AND, TO THE EXTENT ALLOWED BY APPLICABLE LAW, A10 NETWORKS, ITS SUPPLIERS AND LICENSORS EXPRESSLY DISCLAIM, ALL OTHER WARRANTIES, REPRESENTATIONS AND CONDITIONS, EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO ANY IMPLIED WARRANTIES AND CONDITIONS OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT, SATISFACTORY QUALITY, NON-INTERFERENCE, ACCURACY OF INFORMATIONAL CONTENT, OR ARISING FROM A COURSE OF DEALING, LAW, USAGE, OR TRADE PRACTICE. TO THE EXTENT THAT ANY OF THE SAME CANNOT BE EXCLUDED, SUCH IMPLIED CONDITION, REPRESENTATION AND/OR WARRANTY IS LIMITED IN DURATION TO THE EXPRESS WARRANTY PERIOD REFERRED TO IN THE “LIMITED WARRANTY” SECTION ABOVE. NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED FROM A10 NETWORKS OR ELSEWHERE WILL CREATE ANY WARRANTY OR CONDITION NOT EXPRESSLY STATED IN THIS AGREEMENT. This disclaimer and exclusion shall apply even if the express warranty set forth above fails of its essential purpose.
8. Limitation of Liability. A10 NETWORKS’ TOTAL LIABILITY TO CUSTOMER FROM ALL CAUSES OF ACTION AND UNDER ALL THEORIES OF LIABILITY WILL BE LIMITED TO THE AMOUNTS PAID TO A10 NETWORKS BY CUSTOMER FOR THE SOFTWARE OR, IN THE EVENT THAT A10 NETWORKS HAS MADE THE SOFTWARE AVAILABLE TO CUSTOMER WITHOUT CHARGE, A10 NETWORKS’ TOTAL LIABILITY WILL BE LIMITED TO $500. IN NO EVENT WILL A10 NETWORKS BE LIABLE TO CUSTOMER FOR ANY SPECIAL, INCIDENTAL, EXEMPLARY, PUNITIVE OR CONSEQUENTIAL DAMAGES (INCLUDING LOSS OF DATA, BUSINESS, PROFITS OR ABILITY TO EXECUTE) OR FOR THE COST OF PROCURING SUBSTITUTE PRODUCTS ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT OR THE EXECUTION OR PERFORMANCE OF THE SOFTWARE, WHETHER SUCH LIABILITY ARISES FROM ANY CLAIM BASED UPON CONTRACT, WARRANTY, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY OR OTHERWISE, AND WHETHER OR NOT A10 NETWORKS HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH LOSS OR DAMAGE. THE FOREGOING LIMITATIONS WILL SURVIVE AND APPLY EVEN IF ANY LIMITED REMEDY SPECIFIED IN THIS AGREEMENT IS FOUND TO HAVE FAILED OF ITS ESSENTIAL PURPOSE.
9. U.S. Government Customers. The Software qualifies as “commercial items,” as that term is defined at Federal Acquisition Regulation (“FAR”) (48 C.F.R.) 2.101, consisting of “commercial computer software” and “commercial computer software documentation” as such terms are used in FAR 12.212. Consistent with FAR 12.212 and DoD FAR Supp. 227.7202-1 through 227.7202-4, and notwithstanding any other FAR or other contractual clause to the contrary in any agreement into which the Agreement may be incorporated, Customer may provide to Government Customer or, if the Agreement is direct, Government Customer will acquire, the Software with only those rights set forth in the Agreement. Use of either the Software constitutes agreement by the Government Customer that the Software and Documentation are “commercial computer software” and “commercial computer software documentation,” and constitutes acceptance of the rights and restrictions herein.
10. Compliance with Laws. Customer agrees to comply in all material respects with all applicable laws, rules, and regulations in connection with its activities under this Agreement.
11. Export Administration Act and Related Laws. The Software and technology (hereafter referred to as Software and Technology) supplied by A10 Networks under the Agreement are subject to export controls under the laws and regulations of the United States and any other applicable countries' laws and regulations. Customer shall be responsible for being knowledgeable as to all laws, regulations, and requirements regarding the export, re-export, transfer, diversion, release and/or import of the Software and Technology and any other A10 Networks items (whether tangible or intangible, including without limitation commodities, software, technology, and technical data) that Customer may receive or access under this Agreement. Customer, at its cost, agrees to conduct all activities and obligations under this Agreement in conformity with such laws, regulations and requirements. In addition, Customer understands and agrees that A10 Networks' Software and Technology shall not, in the absence of authorization by United States and local law and regulations, as required, be used by or exported or re-exported to (i) any United States sanctioned or embargoed country, or to foreign nationals or residents of such countries; or (ii) any person, entity, organization or other party identified on the United States Department of Commerce's Denied Persons or Entity Lists, the United States Department of Treasury's Specially Designated Nationals or Blocked Persons Lists, or the Department of State's Debarred Parties List, as published and revised from time to time; (iii) any party engaged in nuclear, chemical/biological weapons or missile proliferation activities; or (iv) any party for use in the design, development, or production of rocket systems or unmanned air vehicles. Customer warrants and represents that it is not (i) a person, entity, organization or other party identified on the United States Department of Commerce's Denied Persons or Entity List, the United States Department of Treasury's Specially Designated Nationals or Blocked Persons Lists, or the Department of State's Debarred Parties List, as published and revised from time to time.
12. Identified Components; Additional Terms. The Software may contain or be delivered with one or more components, which may include third-party components, identified by A10 Networks in the documentation, readme.txt file, third-party click-accept or elsewhere (e.g. on www.a10networks.com) (the "Identified Component(s)") as being subject to different license agreement terms, disclaimers of warranties, limited warranties or other terms and conditions (collectively, "Additional Terms") than those set forth herein. Customer agrees to the applicable Additional Terms for any such Identified Component(s).
13. General. This Agreement will be governed by and construed in accordance with the laws of the State of California, without regard to or application of conflict of laws rules or principles. The United Nations Convention on Contracts for the International Sale of Goods will not apply. Customer may not assign or transfer this Agreement or any rights granted hereunder, by operation of law or otherwise, without A10 Networks’ prior written consent, and any attempt by Customer to do so, without such consent, will be void. Except as expressly set forth in this Agreement, the exercise by either party of any of its remedies under this Agreement will be without prejudice to its other remedies under this Agreement or otherwise. All notices or approvals required or permitted under this Agreement will be in writing and delivered by confirmed facsimile transmission, by overnight delivery service, or by certified mail, and in each instance will be deemed given upon receipt. All notices or approvals will be sent to the addresses set forth in the applicable ordering document or invoice or to such other address as may be specified by either party to the other in accordance with this section. The failure by either party to enforce any provision of this Agreement will not constitute a waiver of future enforcement of that or any other provision. Any waiver, modification or amendment of any provision of this Agreement will be effective only if in writing and signed by authorized representatives of both parties. If any provision of this Agreement is held to be unenforceable or invalid, that provision will be enforced to the maximum extent possible, and the other provisions will remain in full force and effect. This Agreement is the complete and exclusive understanding and agreement between the parties regarding its subject matter, and supersedes all proposals, understandings or communications between the parties, oral or written, regarding its subject matter, unless Customer and A10 Networks have executed a separate agreement governing use of the Software. Any terms or conditions contained in Customer purchase order or other ordering document that are inconsistent with or in addition to the terms and conditions of this Agreement are hereby rejected by A10 Networks and will be deemed null.
Trademarks. A10 Networks, the A10 logo, A10 THUNDER, ACLOUD, ACOS, AFLEX, AFLOW, AGALAXY, AVCS, AX, AXAPI, IDACCESS, IDSENTRIE, IP TO ID, SMARTFLOW, SOFTAX, VIRTUALADC, VIRTUAL CHASSIS, VIRTUALN and VTHUNDER are trademarks or registered trademarks of A10 Networks, Inc. in the United States and other countries. All other trademarks are property of their respective owners.
Patent Protection. A10 Networks products including all vThunder Series products are protected by one or more of the following patents in the United States:
8,423,676, 8,387,128, 8,332,925, 8,312,507, 8,291,487, 8,266,235, 8,151,322, 8,079,077, 7,979,585, 7,716,378, 7,675,854, 7,647,635, 7,552,126, 6,473,802, and 6,374,300.
Environmental Considerations. Some electronic components may possibly contain dangerous substances. For information on specific component types, please contact the manufacturer of that component. Always consult local authorities for regulations regarding proper disposal of electronic components in Customer area.
15. Contact Information. For additional information about A10 products, terms and conditions of delivery, and pricing, contact Customer nearest A10 Networks location, which can be found by visiting www.a10networks.com.