This Design Partnership Program Early Access Agreement (this “Agreement”) is entered into by and between Aryaka Networks, Inc. (“Aryaka”), a Delaware corporation with offices at 4699 Old Ironsides Drive, Suite 470, Santa Clara, CA 95054 USA, and the entity identified in a Design Partnership Statement of Work (“Company”), This Agreement is effective as of the date the applicable Design Partnership Statement of Work (as defined below) is fully executed by both Parties (the “Effective Date”). Aryaka and Company are referred to collectively herein as “Parties” and, each individually, as a “Party.”
In consideration of the agreements contained herein, the Parties agree as follows:
For purposes of this Agreement, the following terms have the meanings below.
“Company Data” means all electronic data or information submitted by Company to the Aryaka network (excluding Aryaka Confidential Information) through Company’s use of Early Access Services.
“Early Access Service” means a service provided by Aryaka that is identified in an DPSOW and any associated Aryaka downloaded materials (including Java Applets, soft-ANAP, and browser/User Interface components), user guides, code, user interface passwords, accessories, and other documents, including associated offline components as may be further described in the applicable DPSOW.
“Design Partnership Statement of Work” or “DPSOW” means a statement of work executed pursuant to this Agreement that identifies the Early Access Service to be provided by Aryaka. Each DPSOW is subject to and governed by this Agreement and is incorporated herein by this reference and made a part of this Agreement.
“Third Party Content” means third party software, technology, services, data, and other content or material that Company, its affiliates or Users may have access to or use through, in connection with, or as part of the Early Access Services.
“Users” means individuals who have been authorized by Company or provided access to use the Early Access Services. Users may include Company’s or its affiliates’ employees, consultants, contractors, and agents who perform work on behalf of the Company or that use the Company’s corporate wide area network.
2.1 General. Aryaka is providing access to a select group of Aryaka customers (including Company pursuant to this Agreement) to Early Access Services. In exchange for access to the Early Access Services, the parties agree (i) Aryaka will make each Early Access Service identified in an DPSOW available to Company pursuant to this Agreement and the applicable DPSOW; and (ii) the Parties will engage in regular discussions of Company requirements and design meetings involving Company and Aryaka personnel, including during and after deployment of any Early Access Services, and (iii) Company will provide ongoing Feedback (defined in Section 4.2 below) Aryaka Design Partnership Agreement Page 2 of 7 to Aryaka regarding Early Access Services. Early Access Services will be made available solely for use by Company and its Users in accordance with this Agreement for a period of ninety (90) days after the effective date of the applicable DPSOW (the “Early Access Period”, which may be extended as stated in the DPSOW).
2.2 Pre-Production Services; Modifications. Company understands and acknowledges that Early Access Services are pre-production services that are not commercially available and that Aryaka provides Early Access Services without support or service levels. If Company does use Early Access Services in production or use production data in connection with its use of Early Access Services, Company does so at its own risk. Aryaka will have no liability for any outages, service interruptions, degradation in performance, or loss of data arising from or related to the Early Access Services. Aryaka may, in its discretion, at any time or from time to time and without notice modify or suspend Early Access Services or discontinue Early Access Services, in whole or in part, without obligation or liability to Company.
2.3 Company Responsibilities. Company will: (i) ensure that Users comply with this Agreement; (ii) have full responsibility for the accuracy, quality, integrity, and legality of Company Data and the means by which Company or its affiliates acquire Company Data; and (iii) use commercially reasonable efforts to prevent unauthorized access to or use of the Early Access Services and hardware or equipment provided by Aryaka, and promptly notify Aryaka of any such unauthorized access or use.
2.4 Use Restrictions. Company will not (and will not permit any third party to): (i) access or use the Early Access Services or hardware or equipment provided by Aryaka except as expressly permitted in this Agreement and solely in jurisdictions approved by Aryaka during the onboarding process; (ii) sell, resell, rent, or lease the Early Access Services or provide Early Access Services through a service bureau or the like; (iii) use the Early Access Services to store, transmit, use, or access infringing, libelous, or otherwise unlawful or tortious material, material in violation of thirdparty privacy rights, or viruses or other harmful or malicious code, or otherwise use the Early Access Services in violation of applicable law; (iv) create derivative works based on the Early Access Services, or copy, frame, or mirror any part or content of the Early Access Services, other than copying or framing on Company’s own intranets or otherwise for Company’s own internal business purposes or for purposes consistent with this Agreement; (v) decompile, disassemble or reverse engineer the Early Access Services, attempt to determine any source code, algorithms, methods or techniques used or embodied in the Early Access Services, or access the Early Access Services in order to build a competitive product or service, or copy any features, functions or graphics of the Early Access Services; (vi) interfere with or disrupt the integrity or performance of the Early Access Services or third-party data contained therein; (vii) attempt to gain unauthorized access to the Early Access Services or their related systems or networks; or (viii) publish or distribute information about Aryaka’s benchmarks, prices, or other data collected outside Company’s organization without express prior written permission from Aryaka in each instance. Company will be liable for the acts and omissions of all Users relating to this Agreement.
2.5 Third Party Content and Partners. Third Party Content provided or made available in connection with Early Access Services may be subject to third party terms or other additional terms, as referenced in the applicable DPSOW. Aryaka may provide Early Access Services in certain non-U.S. jurisdictions through local country partners licensed to provide services in those Aryaka Design Partnership Agreement Page 3 of 7 jurisdictions and, in such cases, additional terms may apply, as referenced in the applicable DPSOW. Company understands that in certain non-U.S. jurisdictions such as China, applicable laws and regulations are subject to rapid change and that Early Access Services may need to be modified or restricted from time to time in future as a result of changes in laws, as a result of changes in interpretation of or enforcement practices in relation to existing law, or as otherwise required by local government authorities. Company understands that such modifications and restrictions may involve or result in, without limitation, (i) discontinuation of certain Early Access Services or use of certain software or hardware utilized to provide Early Access Services; (ii) blocking or removal of Company’s domain, information, or content; and (iii) provision of certain information to local government authorities.
The Early Access Services are provided without charge by Aryaka to Company pursuant to this Agreement. Each Party is responsible for its own costs and expenses in connection with its performance under this Agreement.
4.1 Reservation of Rights. Subject to the limited use rights expressly granted hereunder with respect to Early Access Services, Aryaka reserves all right, title, and interest in and to Aryaka products and services (whether existing or under development and including all Early Access Services and any hardware and equipment provided by Aryaka), any and all related or underlying technology and documentation, materials, concepts, and ideas generated through access or use of the Early Access Services, and any derivative works, modifications, improvements, or updates of or to any of the foregoing (collectively, “Aryaka Technology”), including all patent, copyright, trademark, trade secret and other intellectual property or proprietary rights. Company will not take any action to jeopardize, encumber, limit, or interfere in any manner with Aryaka’s or its licensors’ ownership of and rights with respect to any Aryaka Technology or any derivative works, modifications, improvements, or updates thereto. As between Company and Aryaka, Aryaka exclusively owns and retains all right, title, and interest in and to the Aryaka Technology, and no rights are granted to Company hereunder other than as expressly set forth herein. For clarity, Aryaka retains the right to the return by Company of all hardware or equipment provided by Aryaka pursuant to this Agreement. As between Company and Aryaka, Company exclusively owns all right, title, and interest in and to Company Data.
4.2 Feedback. Company hereby irrevocably assigns to Aryaka all right, title, and interest worldwide (including all intellectual property rights) in and to any suggestions, enhancement requests, recommendations, corrections, input, or other feedback provided by Company or its Users in connection with the Early Access Services (“Feedback”) effective upon creation. The Parties agree that Aryaka may freely use and incorporate Feedback into its product and services without obligation or compensation to Company. Company will cooperate with Aryaka to perfect such rights including executing documents reasonably requested by Aryaka from time to time. If Company fails to do so promptly, Company hereby appoints Aryaka as Company’s attorney in fact for the limited purpose of executing such documents on Company’s behalf.
Each Party (as “Receiving Party”) will hold in confidence all information disclosed by the other Party (the “Disclosing Party”) in connection with this Agreement that is identified as confidential or that the Receiving Party should reasonably understand to be confidential (“Confidential Information”), using the same degree of care it uses to protect its own confidential information of like kind (but no less than reasonable care), and will not use or disclose such information except for purposes consistent with this Agreement or as required by applicable law (provided the Receiving Party gives prompt prior written notice of any compelled disclosure, to the extent legally permitted, and provides reasonable assistance, at the Disclosing Party’s cost, if the Disclosing Party wishes to contest such disclosure). Access to Confidential Information will be limited to the Receiving Party’s employees, contractors and agents who need such access and are bound by confidentiality obligations no less protective than this Section. Without limiting the foregoing, Confidential Information of Aryaka includes the Early Access Services, all related equipment, software (including source code and object code), underlying technology, processes and material, security information, audits and reports, and the terms and conditions of this Agreement, all DPSOWs. Confidential Information does not include information that: (i) is or becomes publicly known through no fault of the Receiving Party; (ii) was known to the Receiving Party prior to disclosure without an obligation of confidentiality; (iii) was independently developed without use of or reference to the Disclosing Party’s Confidential Information; or (iv) is lawfully received from a third party without an obligation of confidentiality. All Personal Information exchanged by the Parties in connection with this Agreement shall be governed by the Early Access Data Protection Addendum, which can be found at https://www.aryaka.com/eadpa/ (“EADPA”). The EADPA may be updated or modified from time to time, in response to changing regulations, laws or as required by Aryaka, without notice. The EADPA is incorporated herein by this reference and made a part of this Agreement.
6.1 Mutual Warranties. Each Party warrants to the other Party that (i) it is a corporation or other legal entity duly organized, validly existing, and in good standing in the jurisdiction of its formation; and (ii) it has all necessary corporate or similar authority to enter into this Agreement and each DPSOW.
6.2 Company Warranties. Company represents, warrants, and covenants during the Term that: (i) it will not transmit to Aryaka any viruses or other harmful or malicious code; and (ii) Company Data does not and will not infringe or violate the intellectual property, publicity, privacy,
or other rights of any third party.
6.3 Disclaimer. EXCEPT AS EXPRESSLY PROVIDED IN THIS AGREEMENT AND TO THE MAXIMUM EXTENT PERMITTED BY LAW, THE EARLY ACCESS SERVICES, ANY HARDWARE OR EQUIPMENT PROVIDED BY ARYAKA, AND ANY THIRD PARTY CONTENT ARE PROVIDED “AS-IS” AND “AS AVAILABLE”. ARYAKA, ITS AFFILIATES AND LICENSORS DISCLAIM ALL REPRESENTATIONS, WARRANTIES, CONDITIONS OR GUARANTEES OF ANY KIND, WHETHER EXPRESS, IMPLIED OR STATUTORY, INCLUDING ANY WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NONINFRINGEMENT, AND ANY WARRANTIES THAT MAY ARISE FROM COURSE OF DEALING, COURSE OF PERFORMANCE, OR USAGE OF TRADE. ARYAKA DOES NOT WARRANT THAT USE OF OR ACCESS TO THE EARLY ACCESS SERVICES WILL BE ERROR-FREE, UNINTERRUPTED OR SECURE.
Company will indemnify, defend and hold Aryaka, its affiliates and their respective directors, officers, employees, and agents (“Aryaka Indemnified Parties”) harmless from and against any claim, demand, suit, or proceeding and any damages, judgments, losses or expenses, including reasonable attorneys’ fees, made or brought against or incurred by any Aryaka Indemnified Party(ies) arising out of or related to: (i) any breach by Company of any provision of this Agreement; (ii) Company Data; or (iii) Company’s negligence or willful misconduct; provided, that Aryaka (a) promptly gives Company written notice of the claim; (b) gives Company sole control of the defense and settlement of the claim (provided that Company may not settle any claim without Aryaka’s prior written consent unless the settlement unconditionally releases the applicable Aryaka Indemnified Party(ies) of all liability); and (c) provides Company with all reasonable assistance in connection with the defense of the claim, at Company’s expense.
TO THE MAXIMUM EXTENT PERMITTED BY LAW AND EXCEPT AS SET FORTH IN THIS SECTION BELOW, (A) IN NO EVENT SHALL EITHER PARTY’S TOTAL AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT, WHETHER IN CONTRACT, TORT OR UNDER ANY OTHER THEORY OF LIABILITY, EXCEED USD $500; AND (B) IN NO EVENT SHALL EITHER PARTY HAVE ANY LIABILITY TO THE OTHER PARTY FOR ANY LOST PROFITS OR REVENUES OR FOR ANY INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL, COVER OR PUNITIVE DAMAGES HOWEVER CAUSED, WHETHER IN CONTRACT, TORT OR UNDER ANY OTHER THEORY OF LIABILITY, AND WHETHER OR NOT THE PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THIS SECTION SHALL NOT APPLY TO OR LIMIT (I) COMPANY’S LIABILITY FOR BREACHES OF SECTION 2.4 (USE RESTRICTIONS), SECTION 4 (PROPRIETARY RIGHTS) OR SECTION 5 (CONFIDENTIALITY AND PERSONAL INFORMATION), OR (II) COMPANY’S OBLIGATIONS UNDER SECTION 7 (INDEMNIFICATION).
9.1 The term of this Agreement will be coterminous with the Early Access Period defined in the applicable DPSOW (“Term”). Either Party may terminate this Agreement at any time by providing the other Party with written notice.
9.2 Upon termination or expiration of this Agreement, Aryaka will cease providing access to the Early Access Services and Company will immediately stop using any component of the Early Access Services. Any equipment provided by Aryaka specifically for the Early Access Services shall be returned to Aryaka in accordance with instructions provided by Aryaka. Company will be charged $1,000 for each piece of equipment that is lost, damaged, or not returned.
10.1 Relationship of the Parties. The Parties are independent contractors. This Agreement does not create nor is it intended to create a partnership, franchise, joint venture, agency, fiduciary, or employment relationship between the Parties. Without limiting Section 7 (Indemnification), there are no third-party beneficiaries of this Agreement.
Aryaka Design Partnership Agreement Page 6 of 7 10.2 Marketing. Aryaka may use and display Company’s name, logo, trademarks, and service marks on Aryaka’s website and in Aryaka’s marketing materials in connection with identifying Company as a customer of Aryaka.
10.3 Notices. All notices under this Agreement must be in writing and will be deemed to have been given upon: (i) personal delivery; (ii) date of delivery of certified first class mailing with return receipt requested; or (iii) written verification of receipt by established overnight courier. Notices will be addressed to each Party at its address in the preamble of this Agreement, with “Attention to Legal Department” of the applicable Party. Each Party may modify its recipient of notices by providing notice pursuant to this Section. All communications and notices to be made or given pursuant to this Agreement will be in the English language.
10.4 Force Majeure. Neither Party will be liable to the other for failure or delay in performing its obligations under this Agreement to the extent such failure or delay is due to circumstances beyond a Party’s reasonable control, including acts of God, acts of government, flood, fire, earthquakes, pandemics, civil unrest, acts of terror, strikes or other labor problems, or delay in third party services.
10.5 Assignment. Neither Party may assign this Agreement, whether by operation of law or otherwise, without the prior written consent of the other Party; provided that, Aryaka may assign this Agreement, without consent of Company, in connection with a merger, acquisition, corporate reorganization, or sale of all or substantially all of Aryaka’s assets. Any attempt by a Party to assign its rights or obligations under this Agreement in breach of this Section will be void and of no effect.Subject to the foregoing, this Agreement will bind and inure to the benefit of the Parties, their respective successors, and permitted assigns.
10.6 Governing Law. This Agreement will be governed by and construed in accordance with California law without regard to conflicts of law principles, and the Parties agree to submit to the exclusive jurisdiction and venue of the applicable state courts in San Mateo County, California, or federal courts of the Northern District of California. The Parties expressly disclaim application of the UN Convention on the International Sale of Goods.
10.7 Compliance with Laws. Each Party will comply with all applicable laws, including applicable anti-corruption laws and regulations, including the U.S. Foreign Corrupt Practices Act, UK Bribery Act 2010, and United Kingdom Modern Slavery Act of 2015.
10.8 Export Compliance. Each Party will comply with the export laws and regulations of the United States and other applicable jurisdictions in providing and using the Early Access Services. Without limiting the foregoing, (i) each Party warrants that it is not named on any U.S. government list of persons or entities prohibited from receiving exports; and (ii) Company will not permit Users to access or use Early Access Services in violation of any U.S. export embargo, prohibition, or restriction.
10.9 Order of Precedence. In the event of a conflict between provisions in the body of this Agreement and provisions of any DPSOW, the provisions in the body of this Agreement will control. In the event of a conflict between the provisions of the Data Protection Addendum and any other provision of this Agreement, the Data Protection Addendum will control.
10.10 Surviving Provisions. The following Sections will survive termination or expiration of this Agreement: Section 2.2 (Pre-Production Services; Modifications), Section 2.3 (Company Responsibilities), Section 2.4 (Use Restrictions), Section 4 (Proprietary Rights), Section 5 (Confidentiality and Personal Information), Section 6.3 (Disclaimer), Section 7 (Indemnification), Section 8 (Limitations of Liability), Section 9.2 (Effect of Termination), and Section 10 (General Provisions).
10.11 Miscellaneous. This Agreement (together with all DPSOWs) constitutes the entire agreement between the Parties with respect to the subject matter hereof. This Agreement supersedes all prior and contemporaneous agreements, proposals, or representations, written or oral, concerning its subject matter. No waiver will be implied from conduct or failure to enforce or exercise rights under this Agreement, nor will any waiver be effective unless in a writing signed by a duly authorized representative on behalf of the Party claimed to have waived. Aryaka may update or modify this Agreement at any time by posting the revised version online; Company’s continued use of the Early Access Services after any such update constitutes acceptance of the modified Agreement. If the application of any provision of this Agreement to any particular facts or circumstances is held to be invalid or unenforceable by a court of competent jurisdiction, then (i) the validity and enforceability of such provision as applied to any other particular facts or circumstances and the validity of other provisions of this Agreement will not in any way be affected or impaired thereby; and (ii) such provision will be enforced to the maximum extent possible so as to effect the intent of the Parties and reformed without further action by the Parties to the extent necessary to make such provision valid and enforceable.