ADARA Networks, Inc.
SOFTWARE LICENSE
AND PRIVACY POLICY AGREEMENT
(Term License)
PLEASE READ THIS SOFTWARE LICENSE AND
PRIVACY POLICY AGREEMENT (“AGREEMENT”)
CAREFULLY BEFORE ACCESSING, DOWNLOADING OR OTHERWISE USING Virtual 5G Application (“SOFTWARE”)
NOTE: Virtual 5G collects the list of installed applications on the device while selecting applications or creating profiles to enable acceleration for the selected applications/profiles.
We do NOT collect, use or share personal or sensitive data.
We do NOT collect, use or share personal or sensitive data therefore our procedures are NOT to handle such data.
We do NOT collect, use or share personal or sensitive data therefore we do NOT retain such data and we do NOT have any such data to delete.
BY CLICKING THE “I ACCEPT”
BUTTON OR DOWNLOADING OR OTHERWISE USING THE SOFTWARE, YOU ACCEPT THIS
AGREEMENT AND ACKNOWLEDGE THAT YOU HAVE READ, UNDERSTAND AND AGREE TO BE BOUND BY ITS TERMS.
IF YOU ARE AN INDIVIDUAL ACTING ON BEHALF OF AN ENTITY, YOU REPRESENT AND
WARRANT THAT YOU HAVE THE AUTHORITY TO ENTER INTO THIS AGREEMENT ON BEHALF OF
THAT ENTITY. IF YOU DO NOT HAVE SUCH AUTHORITY, YOU ARE SOLELY RESPONSIBLE FOR YOUR USE OF THE SOFTWARE. IF YOU
DO NOT ACCEPT THE TERMS OF THIS AGREEMENT, THEN YOU ARE NOT PERMITTED TO
ACCESS, DOWNLOAD OR OTHERWISE USE THE SOFTWARE.
This Agreement, including all referenced documents is between ADARA NETWORKS, INC. ("ADARA") and the purchaser of the license to the Software ("Customer"). This Agreement is effective ("Effective Date") the earlier of the date that Customer downloads the Software begins using the Software. This Agreement applies where Software is download or used for any purpose.
a.
Upon
payment of the license fees, ADARA grants to Customer a personal,
nonexclusive and nontransferable license to use the binary form of the ADARA
Software with the end user’s documentation (the “Licensed Products”) for
internal business purposes only for the term purchased.
Support and maintenance to the Licensed Products, is provided under a separate optional Licensed Products Support and Maintenance Agreement for an annual fee.
a. Customer may not make copies of the Licensed
Products, except for backup
and archival purposes.
b. Customer has the right to
develop interfaces to the Licensed Products using the Licensed Products. Such Customer- developed interfaces shall
be owned by Customer.
c. Except for any Customer
user interfaces developed, any changes or
modifications to the Licensed Products shall be owned by ADARA. Any changes or modifications to the Licensed
Product render any limited warranty void and support services will be
charged at ADARA’s then prevailing service rate, but ADARA shall have no
obligation to provide such services.
d.
The Licensed Products may not be sold, leased,
assigned, sublicensed or otherwise transferred by Customer.
a. The Licensed Products and
the pricing and terms (collectively “Information”) are the proprietary and
confidential information of ADARA and/or
its licensors. Customer
agrees to maintain
the Information in strict
confidence and not to disclose, duplicate or otherwise reproduce, directly or indirectly, the Information
in whole or in part.
b. Customer may not modify,
create derivative works of, translate, disassemble, reverse
engineer, de-compile or derive the source code of the Licensed Products. Customer agrees not to
remove any copyright notice or other proprietary markings from the
Information.
c. Customer agrees that the failure
to comply with this Agreement shall cause irreparable harm to
ADARA and/or its Business Associates for which a remedy at law would be
inadequate. In the event of the
breach or threatened breach by Customer of its obligations under this Section,
ADARA shall be entitled to
equitable relief for specific performance and/or an injunction for any actual or threatened breach, besides exercising any other remedies at law or in equity.
d. If Customer must produce
Information to any governmental agency having jurisdiction under an order to produce
or in a legal proceeding
under a lawful request for discovery, then Customer shall promptly notify ADARA
of the order or request in discovery and reasonably cooperate with ADARA if
ADARA elects (at ADARA’s
expense) to limit or to avoid such disclosure by any lawful means and, if
information is disclosed,
e. Customer agrees to provide
immediate, written notification to ADARA of all circumstances surrounding the
unauthorized possession or use of the Licensed Products by any person or
entity. Customer agrees to cooperate fully with ADARA in any litigation relating to or arising
from such unauthorized possession or use.
f. ADARA reserves all
proprietary and commercial rights in the Licensed Products not expressly
granted.
a. ADARA represents and
warrants it owns or otherwise has the rights
in the Licensed Products and has the right to grant a license
to use the Licensed Products under this Agreement.
b. ALL SALES ARE FINAL. THE WARRANTY SET FORTH ABOVE IS A LIMITED
WARRANTY AND IT IS THE ONLY
WARRANTY MADE BY ADARA.
c. ADARA EXPRESSLY DISCLAIMS,
AND CUSTOMER EXPRESSLY WAIVES, ALL OTHER WARRANTIES, EXPRESS OR IMPLIED,
IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND THE IMPLIED WARRANTY OF NON- INFRINGEMENT. ADARA DOES NOT WARRANT AND SPECIFICALLY DISCLAIMS ANY
REPRESENTATIONS THAT THE SOFTWARE WILL MEET CUSTOMER'S REQUIREMENTS OR THAT THE
OPERATION OF THE SOFTWARE AND/OR ITS USE WILL BE UNINTERRUPTED OR ERROR-FREE, OR THAT DEFECTS IN THE SOFTWARE, IF ANY, WILL BE
CORRECTED.
d. ADARA’S LIMITED WARRANTY IS
IN LIEU OF ALL LIABILITIES OR OBLIGATIONS OF ADARA FOR DAMAGES ARISING
OUT OF OR IN CONNECTION WITH THE DELIVERY OF THE SOFTWARE OR RELATED SERVICES. EXCEPT
FOR THE ABOVE LIMITED WARRANTY, THE ENTIRE RISK AS TO THE QUALITY AND
PERFORMANCE OF THE SOFTWARE IS WITH THE CUSTOMER.
a. By ADARA.
i. ADARA shall indemnify,
defend, and hold Customer harmless from any action against Customer if it is
based on an allegation that the Licensed Products
have infringed a US
intellectual property right, provided that Customer
(i) promptly notifies ADARA of any such action; (ii) gives ADARA full authority, information and assistance to defend such claim; and (iii) gives ADARA sole control of the defense of such claim and all negotiations for the compromise or settlement of the claim. Customer’s failure to perform these conditions will excuse ADARA from all its indemnification obligations, whether provided by law or this Agreement.
ii. ADARA shall have no obligation to indemnify, defend,
or hold Customer harmless regarding any claim based upon
(a) Licensed Products modified by anyone other than ADARA; (b) use of other than the then-current release of the Licensed Products, if infringement could have been avoided by the then-current release and such current release has been made available to Customer; (c) use of
the Licensed Products with Customer data where use with such data established the infringement claim; (d) use of the Licensed Products with other software or hardware, where use with such other software or hardware established the infringement claim; (e) use of the Licensed Products in a manner inconsistent with its Documentation, and/or (f) use of the Licensed Products which breaches this Agreement.
iii.
If ADARA determines the Licensed Products are or are likely to be the
subject of a claim of infringement, ADARA shall have the right (i) to replace Customer’s copy of the
Licensed Products with non-infringing Licensed Products that have substantially
equivalent functionality; (ii) to modify the Licensed Products
so they are free of
infringement; (iii) to procure the right to continue to use the Licensed Products;
or (iv) to terminate
the license to use the Licensed Products and Documentation.
iv. THIS IS CUSTOMER’S EXCLUSIVE
REMEDY FOR ANY CLAIM OF INTELLECTUAL PROPERTY INFRINGEMENT
b. By Customer.
i. Customer will indemnify,
defend, and hold ADARA harmless from any action against ADARA involving the
Licensed Products not based on an allegation that the Licensed Products
has infringed a US intellectual property right. This
includes, but is not limited to, claims,
actions, liabilities, losses, damages,
judgments, costs and expenses
(including attorneys’ fees) arising out of injury
or death to persons, or damage to tangible and
intangible property, resulting from or pertaining to Customer’s use or
operation of the Licensed Products. Customer will indemnify and promptly
reimburse ADARA for any expenses, including attorneys’ fees, incurred by ADARA
for its own defense.
a. ADARA SHALL NOT BE LIABLE
FOR ANY LOSS OR DAMAGE THAT MAY ARISE IN CONNECTION WITH CUSTOMER’S USE OF THE
LICENSED PRODUCT. ADARA AND ITS BUSINESS ASSOCIATES SHALL NOT BE LIABLE FOR ANY
LOST PROFITS, INDIRECT, SPECIAL, INCIDENTAL OR CONSEQUENTIAL DAMAGES, EVEN IF
ADARA HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, AND NOTWITHSTANDING
ANY FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY OF ANY KIND. ADARA’S
MAXIMUM LIABILTIY UNDER ANY THEORY SHALL NOT EXCEED THE AMOUNT CUSTOMER PAID
ADARA FOR THE LICENSED PRODUCT.
a. ADARA may terminate this Agreement if Customer fails to cure a breach within 15 days after ADARA
provides notice of the breach. For misuse of intellectual property, the notice
period shall be 2 days.
b.
Customer may terminate this Agreement at any time
after full payment of the license fee has been made.
c. If this Agreement is terminated,
Customer shall pay all
amounts due and Customer
shall have no further right to use the Licensed Products and shall, within ten
(10) days after the effective date of any such termination, certify in writing
that such Licensed Products and all materials relating thereto in the
possession of Customer have been removed from Customer’s system and destroyed
and the appliance shall be returned to ADARA shipping prepaid.
a. No Waiver. The failure of either party to exercise any right will not prevent a subsequent exercise or
enforcement of such provisions or be deemed a waiver of any subsequent breach.
b. Assignment. Customer may not assign this Agreement without the prior written
consent of ADARA, which consent may be granted
or withheld in ADARA’s sole discretion. ADARA may
assign this Agreement, provided the assignee assumes the obligations of ADARA
under this Agreement. ADARA may also assign
its right to payments under this Agreement
or grant a security interest in this Agreement or
such payment right to any third party without requiring such third party to be
liable for the obligations of ADARA under this Agreement. This Agreement is
binding upon and shall inure to the benefit of the parties and their respective
successors and assigns.
c. Force Majeure. If performing this Agreement or any obligation, except for making payments,
is prevented, restricted, or interfered with by a force beyond the party’s control,
the party so affected will resume performance when
such causes are removed. If performance is prevented for more than 30 days,
either party may terminate the Agreement.
d. Export. Customer shall not export, re-export
or transfer, whether directly or indirectly, the
Licensed Products outside the United States of America without first complying
with the export laws of the United States of America.
e. Survival. All provisions of this Agreement relating to proprietary,
confidentiality, and non-disclosure rights shall survive the termination of
this Agreement.
f. Governing Law and
Jurisdiction. This Agreement governed under the laws of
California. Any lawsuit between the
parties shall be brought in Santa Clara County California. The parties consent
to the exclusive personal
and subject matter jurisdiction and venue in this county. The prevailing party in a lawsuit shall recover its reasonable attorney’s
fees, expert fees and costs.
g. Integration. This Agreement is the entire Agreement between the parties
regarding its subject matter and merges all prior discussions and negotiations
and supersedes and replaces any other agreement between ADARA and Customer
regarding its subject matter.