This Master Subscription Agreement (“Agreement”) is made and entered into effective _________________, and if no date is filled in, then the Effective date shall be the date of last signature (“Effective Date”), between _________________________________, with offices at ___________________________________________ (“Customer”), and Aryaka Networks, Inc., having its place of business at 1800 Gateway Drive, San Mateo, California 94404 (“Aryaka”), which are hereinafter referred to collectively as the “Parties” and individually as the “Party”. In consideration of the mutual covenants herein contained, the Parties here to agree as follows:
As used in this Agreement:
“24/7” means twenty-four (24) hours per day, seven (7) days per week.
“Affiliate” of an entity means any other entity, which directly or indirectly controls, is controlled by, or is under common control with such entity. The term “control” (including the terms “controlled by” and “under common control with”) means the direct or indirect power to direct or cause the direction of the management and policies of an entity, whether through the ownership of voting securities, by contract or otherwise.
“ANAP” means the Aryaka Network Access Point (ANAP), a device that provides bandwidth optimization, SD-WAN capabilities, and application acceleration over a WAN link that is connected to an Aryaka Network point of presence (AN POP or Aryaka POP).
“Aryaka Equipment” means any hardware and equipment provided by Aryaka to Customer, which enables Customer to access the Aryaka Network, including but not limited to the ANAP-1000, ANAP-1500, ANAP-2000, ANAP-2500, ANAP-3000, including ANAPs with “High Availability” (HA), and an Aryaka Router, if provided by Aryaka as part of the access mechanism to the Aryaka Network.
“Aryaka Network” means Aryaka’s geographically distributed network of proprietary servers and software.
“Bursting” allows Customer to use bandwidth greater than the purchased bandwidth capacity for the purpose of addressing Customer’s seasonal traffic demands.
“Confidential Information” has the meaning set forth in Section 8.1 below.
“Deployment Window” means a predefined window for provisioning timeframe, as mutually agreed to by Aryaka and Customer, and set forth on the Order Form.
“Disclosing Party” has the meaning set forth in Section 8.1 below.
“Force Majeure” means circumstances beyond Aryaka’s reasonable control, including without limitation, acts of God, acts of government, flood, fire, earthquakes, civil unrest, acts of terror, strikes or other labor problems (excluding those involving Aryaka employees).
“Initial Term” of this Agreement has the meaning set forth in Section 12.1 below.
“Last Mile Circuit” means the physical link (wired or wireless) that is used to connect Customer’s Premise to the closest Aryaka POP. The physical link may be a direct Layer-2 connection or an Internet Circuit. The type of the Last Mile Circuit will be specified in the Order Form.
“Link Monitoring” means the monitoring by Aryaka of Customer’s Last Mile Circuit link to be conducted on a 24x7x365 basis, including reports and support as specified in Exhibit C to this Agreement. Link Monitoring shall be included with the Last Mile Circuit if and as specified in the Order Form together with a letter of authorization from Customer.
“Malicious Code” means viruses, worms, time bombs, Trojan horses and other harmful or malicious code, files, scripts, agents or programs.
“Marks” means all registered and common law trademarks, trademark registrations, service marks, trade names, copyrights, licenses, designs, logos, marketing and promotion materials and all intellectual property rights relating thereto, and any similar rights owned, used by or licensed to a party, and any applications currently pending therefor.
“NOC” means network operating center.
“Optimized Capacity” means subscribed bandwidth for all the sites per region.
“Order Form” means the ordering documents for purchases hereunder, including addenda thereto, that are entered into between the Parties from time to time. Each Order Form issued under this Agreement shall become effective when executed by both Parties. Order Forms shall be deemed incorporated into this Agreement by reference and shall list quantity Unit Price, UOM, and Deployment Window. If Last Mile Circuits are ordered, they will be set forth on a separate and distinct Order Form.
“Oversubscription” means a Customer has a temporary need to go beyond its subscription units as set forth in the Order Form. Units may be bandwidth, sites, Last Mile Management, and/or High Availability ANAPs.
“Provision” means that connectivity was successfully brought up between Customer’s site and POP for routing the traffic.
“Receiving Party” has the meaning set forth in Section 8.1 below.
“RFS Date” means the date in which a last mile link has been provisioned.
“SD-WAN” means software-defined wide area network.
“Services” means access to the Aryaka services listed in Section 2 below, including MyAryaka (Aryaka’s customer portal), Aryaka Equipment (including, but not limited to, ANAP-1000, ANAP-1500, ANAP-2000, ANAP-2500, or ANAP-3000) with HA, the Aryaka Router (if provided by Aryaka as part of the access mechanism to the Aryaka Network), Link management and Last Mile Circuits and any and all Aryaka downloaded materials (including but not limited to Java Applets, soft-ANAP, and browser/User Interface components), user guides, code, user interface passwords, accessories and other documents, that are purchased by Customer or its Affiliates under a fully executed Order Form, including associated offline components.
“Service Credit” has the meaning set forth in Exhibit A.
“Subscription Term” means the term for the purchased Services, as set forth in the Order Form, which commences upon the first day after the Deployment Window terminates.
“UOM” means unit of measurement.
“Unit Price” is the per unit price for bandwidth, site licensing, HA ANAPs, and Links.
“Users” means individuals who are authorized by Customer to use the Services, or who have been supplied user identifications and passwords by Customer (or by Aryaka at Customer’s request). Users may include but are not limited to Customer’s or its Affiliates’ employees, consultants, contractors and agents; or third parties with whom Customer transacts business or that use its corporate Wide Area Network.
“Taxes” has the meaning set forth in Section 6.6 below.
“Customer Data” means all electronic data or information submitted by Customer to the Aryaka Network.
2. SERVICES DESCRIPTION SUMMARY
2.1 “Smart Access” means usage of Aryaka’s global network for accelerating remote-access virtual private network (VPN) connectivity with cloud-based management and visibility using MyAryaka.
2.2 “SmartCDN” means usage of either the Web Application Delivery as-a-Service (WADS) or IP Application Delivery-as-a-Service (IADS) which are used for accelerating any web or IP-based public applications over Aryaka’s global network using capabilities such as, for example, TCP optimization, caching and compression with cloud-based management and visibility using MyAryaka.
2.3 “SmartCONNECT means Aryaka’s global SD-WAN service that combines a global optimized private network, SD-WAN functionality at the edge, L3 VPN connectivity, cloud connectivity, wan optimization capabilities including compression, data deduplication, application acceleration proxies, and SmartLink with cloud- based management and visibility using MyAryaka.
3. SERVICES, RENEWALS, END OF LIFE
3.1 Aryaka shall make the Services available to Customer pursuant to this Agreement and the relevant Order Form during a subscription term which is set forth in each Order Form “Subscription Term”. The Order Form shall automatically renew for additional periods equal to the initial term set forth in the Order Form, unless either party gives the other written notice of non-renewal at least ninety (90) days before the end of the relevant Subscription Term.
3.2 The aggregate pricing during any such renewal Subscription Term shall be the same as that during the prior Subscription Term unless Aryaka has given Customer written notice of a pricing increase at least thirty (30) days before the end of such prior term.
3.3 Customer agrees that its purchases hereunder are neither contingent on the delivery of any future functionality or features nor dependent on any oral or written public comments made by Aryaka regarding future functionality or features.
3.4 It is understood that Aryaka may, in its discretion, at certain times elect to discontinue production, distribution and support of elements or versions of the Aryaka Services, and thereby designate such elements or versions as end of life (“EOL”). In the event that Aryaka elects to announce EOL for any such elements or versions, Aryaka will provide three (3) months prior written notice, which may be by direct notice or posting on Aryaka’s website. Aryaka’s resellers or other third-party providers will have a period of three (3) months after receipt of such notice to upgrade Customers to the last commercially available (non-EOL) version of the Services. During the 3-month notice period (from either Aryaka or Aryaka partner) Customers may continue exercising all of the rights set forth in this Agreement with respect to such EOL Services. Aryaka (either directly or through a third party contractor selected by Aryaka) will continue providing support for the last commercially available version of such EOL Services in accordance with Aryaka’s applicable support terms for a period of one (1) year from the announced EOL date or upon termination of the related SOF (whichever is earlier), provided that Customers continue to pay applicable license and support fees, if any, during the wind down period for the support described above.
4. USE OF THE SERVICES
This Section sets forth the responsibilities of each Party with respect to the Services purchased by Customer together with any terms and conditions that apply to a particular Aryaka Service:
4.1 Aryaka’s Responsibilities. Aryaka shall provide to Customer:
NETWORK AVAILABILITY AND OPERATIONS. Aryaka shall provision, maintain and operate on a 24/7 basis, the Aryaka Network, all network software and peripherals, and Aryaka Network connectivity, as necessary to perform the Services in accordance with this Agreement except for: (i) planned downtime (of which Aryaka shall give at least forty-eight (48) hours prior written notice via email to Customer’s registered technical contactsand which Aryaka shall schedule, to the extent practicable, during the weekend hours from 11:59PM UTC Friday to 11:59PM UTC Sunday or (ii) any unavailability caused by an act of Force Majeure. Aryaka shall staff “NOC” 24/7.
NETWORK SECURITY. Subject to Section 8.3 below, Aryaka shall keep in place with respect to the Aryaka Network and the NOC network security as reasonably necessary to monitor and protect against unauthorized access to Customer Data while on or within the Aryaka Network.
CAPACITY AND RELIABILITY. Aryaka shall maintain adequate capacity on its network during the Subscription Term as necessary to meet Customer’s committed network usage set forth in the Order Form. Aryaka’s network will remain distributed geographically and Aryaka will keep in place distributed network connections.
ADDITIONAL SERVICES. Aryaka shall provide Customer with such installation, support, training or other additional services as may be specified in the Order Form or as may be requested by Customer, from time to time, during the term and as set forth in a separate schedule or addendum agreed to and executed by both Parties. Standard support for the Services is provided at no additional charge. Aryaka will make the Services available to Customer according to the terms of the Service Level Agreement, attached hereto as Exhibit A, and Aryaka will provide the Services in accordance with applicable laws and government regulations.
4.2 Customer’s Responsibilities.
Customer shall (i) be responsible for compliance with this Agreement, (ii) be solely responsible for the accuracy, quality, integrity and legality of Customer’s Data and of the means by which Customer acquired its Customer Data, (iii) use commercially reasonable efforts to prevent unauthorized access to or use of the Services and Aryaka Equipment, and notify Aryaka promptly of any such unauthorized access or use, (iv) return Aryaka Equipment to Aryaka , at Aryaka’s expense, within sixty (60) business days after the termination of this Agreement pursuant to shipping instructions to be provided by Aryaka, and (v) use the Services only in accordance with applicable laws and government regulations. Customer will be charged an amount of $1,000 if Aryaka Equipment is not returned to Aryaka within sixty (60) business days from the termination of the Services.
Customer shall not (i) make the Services available to anyone other than Users, (ii) sell, resell, rent or lease the Services (however, sales or transfers for value to Customer’s Affiliates is not prohibited), or provide Services through a service bureau or the like, (iii) use the Services to store, transmit, use or access infringing, libelous, or otherwise unlawful or tortious material, or to store, transmit, use or access material in violation of third-party privacy rights, (iv) use the Services to store, transmit, use or access Malicious Code, (v) interfere with or disrupt the integrity or performance of the Services or third-party data contained therein, (vi) attempt to gain unauthorized access to the Services or their related systems or networks (vii) publish or distribute information about Aryaka’s benchmarks, prices, or other data collected outside Customer’s organization without express prior written permission from Aryaka, or (viii) connect or otherwise use the Aryaka Network without also using the Services and the Aryaka Equipment.
4.3.1 Customer’s purchase of the optimized capacity will be on a per region basis and can be allocated only among the sites in a particular region.
4.3.2 The sites can consume capacity in a region subject to availability of the site license required for consuming that capacity.
4.3.3 Customer may add sites, provided that Customer does not exceed the maximum number of site licenses purchased for that capacity tier.
4.3.4 Site moves, bandwidth reallocation and add-on relocations are limited to no more than two (2) changes per site in any given month.
4.3.5 Customer cannot exceed the purchased aggregate SBW, number of site licenses and/or service limits as set forth in the Order Form. Aryaka shall notify Customer, in writing if such event occurs, and the Parties have to agree to enter into an amended order form.
4.4 Terms for use of Smart Access Services, when such Services are purchased by Customer:
4.4.1 Aryaka reserves the right to limit the total number of User sessions if and when the number of simultaneous User sessions exceeds the number of sessions designated in the particular “User Pack” purchased by Customer.
4.4.2 Aryaka reserves the right to limit the maximum network data transfer rates that can be achieved over the Aryaka Network if and when the aggregate data usage exceeds the data usage allocation schedule specified in Table 1 of Exhibit D to this Agreement
4.4.3 It is understood and agreed that the Smart Access Services will be delivered by Aryaka only from the list of POPs set forth in Table 2 of Exhibit D to this Agreement.
4.5.1 Aryaka reserves the right to choose the edge POPs and Origin POPs to deliver the Services on its global network.
4.5.2 Aryaka reserves the right to limit the maximum data transfer rates achieved over the Aryaka network based on the aggregate commits purchased.
4.6.1 Aryaka reserves the right to choose the ANAP device type based on Customer subscription and capabilities desired.
4.6.2 Aryaka reserves the right to choose and or move sites to a POP for connecting a site to its network based on providing optimal service delivery.
4.7 Terms for use of Last Mile Circuits, when such Services are purchased by Customer:
4.7.1 The initial term for the Last Mile Circuit will be as specified in the Order Form. At the end of the initial term, this Agreement (with respect to the Last Mile Circuit terms) shall automatically renew for additional periods equal to one (1) year (“Renewal Period”), unless either Party gives the other written notice of nonrenewal at least ninety (90) days before the end of the Initial Term or any Renewal Period.
4.7.2 If the Customer terminates the Last Mile Circuit before the end of the initial term, as set forth in the Order Form for, or any Renewal Period, in addition to all early termination fees to be remitted to Aryaka, Customer will pay to Aryaka one hundred percent (100%) of the costs and expenses Aryaka incurs with the third-party service providers for early termination of the Last Mile Circuit.
4.7.3 Upon completion of the site survey of Customer’s premises, the particular third-party service provider will advise Aryaka if there will be additional charges for providing service above the charges previously quoted to the Customer. In any such case, Aryaka will propose the associated cost changes to the Customer. The Customer has the right to reject the proposed charges within five (5) days of receipt of the proposal. If the Customer rejects the proposal, then the original order for the Last Mile Circuit will be automatically cancelled with no early termination fees. The proposal will be considered accepted if not so rejected by the Customer within the 5-day period.
4.7.4 Upon completion of the site survey of Customer’s premises, the third-party service provider will advise Aryaka if there will be “no service available” or equivalent, or if a redesign is required. Aryaka will then undertake to locate an alternate provider for the Last Mile Circuit. Aryaka will propose the alternate Last Mile Circuit together with the associated cost changes to the Customer. The Customer has the right to reject the proposed alternate within five (5) days of receipt of the proposal. If the Customer rejects the proposal, then the original order for the Last Mile Circuit will be automatically cancelled with no early termination fees. The proposal will be considered accepted if not so rejected by the Customer within the 5-day period.
4.7.5 All start or completion dates provided at the time of signing the Last Mile Circuit order are advisory and non-binding. The final service activation date will be provided after the third-party service provider has completed the site survey of Customer’s premises.
4.7.6 Aryaka will not be responsible for delays in (i) completion of internal wiring, (ii) the Customer responding to requests for additional information, or (iii) gaining access to the Customer’s premises to have the service installed.
4.7.7 All Last Mile Circuit quotes are based on providing connectivity to the Minimum Point Of Entrance (MPOE). All wiring from the MPOE to Customer’s facilities or equipment is the responsibility of Customer. Upon request from Customer, Aryaka will advise whether it has the capability to provide the internal wiring, together with an estimate of the associated extra cost.
4.7.8 Notwithstanding Subsection 4.1(d) above, for all Last Mile Circuits, the Mean Time to Repair and the Service Availability Service Level Agreement will, as provided by (or limited by, as the case may be), the particular third-party service provider, depend upon the type of circuit that is ordered. Aryaka will pass through to Customer any service credits that become due to the Customer from the third-party service provider for violations of the service provider’s applicable service level agreement.
4.8 Terms for Bursting, when such Services are purchased by Customer:
4.8.1 Bursting is applicable only for bandwidth and is calculated on a monthly basis, for each region, as the amount by which the actual usage exceeds the subscribed bandwidth. The usage for a region is calculated as the sum of the 99thpercentile for individual sites in that region.
4.8.2 Customers will pay an additional usage fee, as set forth in the Order Form, for the extra bandwidth used.
4.8.3 A site may burst up to a maximum of 1.5 times it SBW.
4.8.4 The burst rate is limited to a maximum of 100 Mbps.
4.9 Terms for Oversubscription, when such Services are purchased by Customer:
4.9.1 Oversubscription is applicable for bandwidth, sites, Last Mile Management and HA ANAPs.
5. PUBLICITY AND TRADEMARKS. Subject to Customer’s logo and trademark usage guide, Customer hereby permits Aryaka to identify Customer as a customer of Aryaka and to display Customer’s logo in connection with identifying Customer as a customer of Aryaka. Subject to prior approval of both Parties, within six (6) months of the date of this Agreement, Customer agrees to participate in a joint press release with Aryaka announcing Customer’s use of Aryaka’s Services, subject to each party’s logo and trademark usage guide. Customer may enter into a separate agreement with Aryaka with respect to collaborating and engaging in mutually beneficial marketing activities, subject to the terms and conditions of a co-marketing agreement.
6. FEES AND PAYMENT FOR SERVICES
6.1 Fees. In consideration of all Services provided in accordance with the terms hereof and the applicable Order Form, Customer shall pay all fees specified in all Order Forms. Except as otherwise specified herein or in an Order Form, (a) fees are quoted and payable in United States dollars (b) fees are based on Services purchased and not actual usage, (c) payment obligations are non-cancelable and fees paid are non-refundable (except in case of a material breach of Aryaka).
6.2 Invoicing and Payment. Customer will provide Aryaka with valid and updated credit card information, or with a valid purchase order, or alternative document reasonably acceptable to Aryaka. If Customer provides credit card information to Aryaka, Customer authorizes Aryaka to charge such credit card for all Services listed in the Order Form for the initial subscription term and any renewal subscription terms as set forth in Section 12.1. During the Deployment Window, Aryaka will commence invoicing Customer on a monthly basis, in arrears, for the sites and bandwidth that are Provisioned as of that month. Once the Deployment Window has been completed, Aryaka will invoice Customer quarterly in advance for 100% of the amount set forth in the Order Form. Unless otherwise stated in the Order Form, invoiced charges are due net thirty (30) days from the invoice date. For Last Mile Circuits, if purchased, Aryaka will invoice Customer based on RFS Date and pursuant to terms set forth in the Last Mile Circuits Order Form. For Bursting and Oversubscription, Aryaka will invoice Customer monthly, in arrears during the full term of the Order Form, including period after the Deployment Window. Customer is responsible for keeping Aryaka apprised thereof of any change in billing and contact information.
6.3 Overdue Charges. Notwithstanding Section 6.5 below (Payment Disputes), if any charges are not received from Customer by the due date, then at Aryaka’s discretion, (a) such undisputed charges may accrue late interest at the rate of one and one-half percent (1.5%) of the outstanding balance per month, or the maximum rate permitted by law, whichever is lower, from the date such payment was due until the date paid, (b) Aryaka may condition future subscription renewals and Order Forms on payment terms shorter than those specified in Section 6.2 (Invoicing and Payment), or (c) both (a) and (b).
6.4 Suspension of Service and Acceleration. Notwithstanding Section 6.5 below, if any undisputed amount owing by Customer under this or any other agreement for Aryaka’s Services is more than thirty (30) days overdue (or ten (10) or more days overdue in the case of amounts Customer has authorized Aryaka to charge to Customer’s credit card), Aryaka may, without limiting Aryaka’s other rights and remedies, accelerate Customer’s unpaid fee obligations under such agreements so that all such obligations become immediately due and payable, and suspend Aryaka’s Services to Customer until such amounts are paid in full. Aryaka mayrequire immediate return of Aryaka Equipment upon such suspension of Service.
6.5 Payment Disputes. Aryaka shall not exercise Aryaka’s rights under Section 6.3 (Overdue Charges) or 6.4 (Suspension of Service and Acceleration) if the applicable charges are under reasonable and good faith dispute and Customer is cooperating diligently to resolve the dispute.
6.6 Taxes. Unless otherwise stated, Aryaka’s fees do not include any taxes, levies, duties or similar governmental assessments of any nature, including but not limited to value-added, sales, use or withholding taxes, assessable by any local, state, provincial, federal or foreign jurisdiction (collectively, “Taxes”). Customer is responsible for paying all Taxes associated with Customer’s purchases hereunder. If Aryaka has the legal obligation to pay or collect Taxes for which Customer is responsible under this paragraph, the appropriate amount shall be invoiced to and paid by Customer, unless Customer provides Aryaka with a valid tax exemption certificate authorized by the appropriate taxing authority. However, Aryaka is responsible for taxes assessable based on Aryaka’s income, property and employees. All amounts payable to Aryaka must be paid free of and without any rights of counterclaim or set off, and without deduction or withholding for taxes or on any other ground whatsoever. If any such deduction or withholding is required by law or applicable taxing authority, Customer shall: (a) provide such evidence of the relevant deduction or withholding as Aryaka may reasonably require; and (b) pay to Aryaka an aggregate amount to ensure that, after the deduction or withholding has been made, Aryaka will have received a sum equal to the amount that Aryaka would otherwise have received in the absence of the deduction or withholding.
7. PROPRIETARY RIGHTS
7.1 Reservation of Rights. Subject to the limited rights expressly granted hereunder, Aryaka reserves all rights, title and interest in and to the Services, including all related intellectual property rights. No rights are granted to Customer hereunder other than as expressly set forth herein.
7.2 Restrictions. Customer shall not (a) permit any third party to access the Services except as permitted herein or in an Order Form, (b) create derivate works based on the Services, (c) copy, frame or mirror any part or content of the Services, other than copying or framing on Customer’s own intranets or otherwise for Customer’s own internal business purposes or for purposes consistent with this Agreement, (d) reverse engineer the Services, or (e) access the Services in order to (i) build a competitive product or service, or (ii) copy any features, functions or graphics of the Services.
7.3 Ownership of Customer Data. As between Customer and Aryaka, Customer exclusively owns all rights, title and interest in and to all of Customer Data.
7.4 Ownership of Aryaka Equipment. As between Customer and Aryaka, Aryaka exclusively owns all rights, title and interest in and to all Aryaka Equipment that Aryaka provides to Customer for the purpose of providing Services pursuant to the terms of this Agreement. For clarity, Aryaka retains the right to the return by Customer of all such Aryaka Equipment pursuant to the terms set forth in Section 4.2(a) above.
7.5 Suggestions. Notwithstanding Section 8 below, Aryaka shall have a royalty-free, worldwide, transferable, sub-licensable, irrevocable, perpetual license to use or incorporate into the Services any suggestions, enhancement requests, recommendations or other feedback provided by Customer, including Users, relating to the operation of the Services. However, Customer’s name and the identity of any Customer Data will not be used.
8. CONFIDENTIALITY AND DATA PROTECTION
8.1 Definition of Confidential Information. As used herein, “Confidential Information” means all confidential information disclosed by a Party (“Disclosing Party”) to the other Party (“Receiving Party”), whether orally or in writing, that is designated as confidential or that reasonably should be understood to be confidential given the nature of the information and the circumstances of disclosure. Customer’s Confidential Information shall include Customer’s or its Affiliates’ Data; Aryaka’s Confidential Information shall include the Services; and Confidential Information of each Party shall include the terms and conditions of this Agreement and all Order Forms, as well as business and marketing plans, technology and technical information, product plans and designs, and business processes disclosed by such Party. However, Confidential Information (other than Customer’s Data) shall not include any information that (a) is or becomes generally known to the public without breach of any obligation owed to the Disclosing Party, (b) was known to the Receiving Party prior to its disclosure by the Disclosing Party without breach of any obligation owed to the Disclosing Party, (c) is received from a third party without breach of any obligation owed to the Disclosing Party, or (d) was independently developed by the Receiving Party.
8.2 Protection of Confidential Information. Except as otherwise permitted in writing by the Disclosing Party, (a) the Receiving Party shall use the same degree of care that it uses to protect the confidentiality of its own confidential information of like kind (but in no event less than reasonable care) not to disclose or use any Confidential Information of the Disclosing Party for any purpose outside the scope of this Agreement, and (b) the Receiving Party shall limit access to Confidential Information of the Disclosing Party to those of its employees, contractors and agents who need such access for purposes consistent with this Agreement and who have entered into or are otherwise bound by confidentiality agreements with the Receiving Party containing protections no less stringent than those herein.
8.3 Protection of Customer’s Data. Without limiting the above or anything else in this Agreement, Aryaka shall maintain appropriate administrative, physical, and technical safeguards for protection of the security, confidentiality and integrity of Customer’s Data in or on the Aryaka Network, all subject to and as set forth in the Data Protection Agreement between the parties included in Exhibit Battached hereto and made a part of this Agreement. Although the Data Protection Agreement is and addendum to this Agreement, the parties agree to provide the information and execute the Data Protection Agreement as required by the applicable data privacy laws as set forth in the Data Protection Agreement.
8.4 Compelled Disclosure. The Receiving Party may disclose Confidential Information of the Disclosing Party if it is compelled by law to do so, provided the Receiving Party gives the Disclosing Party prior written notice of such compelled disclosure (to the extent legally permitted) and reasonable assistance, at the Disclosing Party’s cost, if the Disclosing Party wishes to contest the disclosure. If the Receiving Party is compelled by law to disclose the Disclosing Party’s Confidential Information as part of a civil proceeding to which the Disclosing Party is a party, and the Disclosing Party is not contesting the disclosure, the Disclosing Party will reimburse the Receiving Party for its reasonable cost of compiling and providing secure access to such Confidential Information.
9. WARRANTIES AND DISCLAIMERS
9.1 Aryaka’s Warranties. Aryaka represents and warrants that (a) the Services shall perform materially in accordance with the terms of this Agreement including any Exhibits hereto and the applicable Order Forms during a Subscription Term, and (b) the functionality of the Services will not be materially decreased during a Subscription Term. For any breach of either such warranty, Customer’s exclusive remedy shall be as provided in Section 12.2 (Termination for Cause). The foregoing does not diminish Customer’s rights and remedies under applicable service level agreements.
9.2 Mutual Warranties. Each party represents and warrants that (a) it has the legal power and authority to enter into this Agreement, and (b) it will not transmit to the other party any Malicious Code.
9.3 EXCEPT AS EXPRESSLY PROVIDED HEREIN (INCLUDING THIS AGREEMENT AND ANY EXHIBITS HERETO AND THE ORDER FORM), NEITHER PARTY MAKES ANY WARRANTIES OF ANY KIND, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, AND EACH PARTY SPECIFICALLY DISCLAIMS ALL IMPLIED WARRANTIES, INCLUDING ANY WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE OR NON-INFRINGEMENT OF THIRD PARTY RIGHTS, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW.
10. MUTUAL INDEMNIFICATION
10.1 Indemnification by Aryaka. Aryaka shall indemnify, defend and hold Customer harmless against any claim, demand, suit, or proceeding (“Claim”) made or brought against Customer by a third party that the use of the Services as authorized under this Agreement infringes or misappropriates the intellectual property rights in the United States of a third party, and shall indemnify Customer for any damages finally awarded against, and for reasonable attorney’s fees incurred by, Customer in connection with any such Claim; provided, that Customer (a) promptly give Aryaka written notice of the Claim; (b) give Aryaka sole control of the defense and settlement of the Claim (provided that Aryaka may not settle any Claim without Customer’s prior written consent unless the settlement unconditionally releases Customer of all liability); and (c) provide to Aryaka all reasonable assistance, at Aryaka’s expense.
10.2 Indemnification by Customer. Customer shall defend and hold Aryaka harmless against any Claim made or brought against Aryaka by a third party alleging that Customer’s Data, or Customer’s use of the Services in violation of this Agreement, infringes or misappropriates the intellectual property rights of a third party, or violates applicable law, and shall indemnify Aryaka for any damages finally awarded against, and for reasonable attorney’s fees incurred by, Aryaka in connection with any such Claim; provided, that Aryaka (a) promptly give Customer written notice of the Claim; (b) give Customer sole control of the defense and settlement of the Claim (provided that Customer may not settle any Claim without Aryaka’s prior written consent unless the settlement unconditionally releases Aryaka of all liability); and (c) provide to Customer all reasonable assistance, at Customer’s expense.
10.3 Exclusive Remedy. This Section 10 (Mutual Indemnification) states the indemnifying party’s sole liability to, and the indemnified party’s exclusive remedy against, the other party for any type of Claim described in this Section 10.
11. LIMITATION OF LIABILITY
11.1 Limitation of Liability. IN NO EVENT SHALL EITHER PARTY’S AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT, WHETHER IN CONTRACT, TORT OR UNDER ANY OTHER THEORY OF LIABILITY, EXCEED THE TOTAL AMOUNT PAID BY CUSTOMER HEREUNDER OR, WITH RESPECT TO EACH SINGLE INCIDENT, THE AMOUNT PAID BY CUSTOMER HEREUNDER IN THE TWELVE (12) MONTHS PRECEDING THE INCIDENT. THE FOREGOING SHALL NOT LIMIT CUSTOMER’S PAYMENT OBLIGATIONS UNDER SECTION 6 (FEES AND PAYMENT FOR SERVICES) OR EITHER PARTY’S INDEMNIFICATION OBLIGATIONS UNDER SECTION 10 (MUTUAL INDEMNIFICATION).
11.2 Exclusion of Consequential and Related Damages. 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. THE FOREGOING DISCLAIMER SHALL NOT APPLY TO THE EXTENT PROHIBITED BY APPLICABLE LAW.
12. TERM AND TERMINATION
12.1 Term of Agreement. This Agreement commences on the date Customer accepts it and continues until all Order Forms granted in accordance with this Agreement have expired or been terminated (the “Initial Term”), whichever is later. For clarity, Customer understands and agrees that, except as provided in Section 12.2 (Termination for Cause), Customer may not elect to terminate this Agreement or otherwise “opt out” of this Agreement or Customer’s obligations hereunder for any reason during the Initial Term or renewal period. Such “opt out” is available to Customer only in connection with a renewal whereby Customer provides written notice of non-renewal at least ninety (90) days before the end of the relevant term.
12.2 Termination for Cause. A party may terminate this Agreement for cause: (a) upon thirty (30) days written notice to the other party of a material breach if such breach remains uncured at the expiration of such period, or (b) if the other party becomes the subject of a petition in bankruptcy or any other proceeding relating to insolvency, receivership, liquidation or assignment for the benefit of creditors, except if any such petition is involuntary and is dismissed within sixty (60) days.
12.3 Return of Aryaka Equipment. At Aryaka’s expense, Customer agrees to return all Aryaka Equipment within sixty (60) business days after the termination of this Agreement pursuant to shipping instructions to be provided by Aryaka, provided that the terms of Section 4.2(a) above shall apply in the event that Customer does not return all items of such Aryaka Equipment pursuant to this Section 12.3.
12.4 Surviving Provisions. Section 6 (Fees and Payment for Services), 7 (Proprietary Rights), 8 (Confidentiality), 9.3 (Disclaimer), 10 (Mutual Indemnification), 11 (Limitation of Liability), 14 (Notices, Governing Law and Jurisdiction, Jury Trial) and 15 (General Provisions) shall survive any termination or expiration of this Agreement.
13. ANTI-BRIBERY LAWS.Each Party (including its officers, directors, employees, agents and any person under its control) shall comply with, and shall require its contractors, subcontractors and any contingent workers to comply with, any and all applicable anti-corruption laws and regulations, including, but not limited to, the U.S. Foreign Corrupt Practices Act and the UK Bribery Act 2010. It is the intent of the parties hereto that no payments, offers or transfers of value shall be made or received which have the purpose or effect of public or commercial bribery, acceptance or acquiescence in extortion, kickbacks or other unlawful or improper means of obtaining or retaining business or directing business to any person or entity. In addition, each party warrants to the other that none of its officers, directors, employees, agents, or representatives is an official or employee of the government of the Territory or of any department or instrumentality of such government, nor is any of them an officer of a political party or candidate for political office who will share, directly or indirectly, any part of the sums due hereunder. Both parties represent and warrant that each will conduct its business operations hereunder in accordance with all applicable U.S. and foreign laws, and regulations, and will not attempt to directly or indirectly improperly influence the sale by payments or other actions contrary to law or regulation.
14. NOTICES, GOVERNING LAW AND JURISDICTION, JURY TRIAL
14.1 Notices. Except as otherwise specified in this Agreement, all notices, permissions and approvals hereunder shall be in writing and shall be deemed to have been given upon: (a) personal delivery or (b) written verification of receipt by established overnight courier, or (c) confirmation of email message sent to the designated email address, or (d) upon delivery if sent by US certified mail prepaid return receipt. Notices to Aryaka shall be addressed to:Aryaka Networks, Inc., Attn: Legal, 1800 Gateway Drive, San Mateo, California 94404 USA, email: firstname.lastname@example.org, with a copy to VP Sales, Aryaka Networks, Inc., 1800 Gateway Drive, San Mateo, California 94404 USA. Notices to Customer shall be addressed to: ______________________, and in the case of billing-related notices, addressed to: __________________.
14.2 Governing Law and Jurisdiction. This Agreement shall be interpreted under California law without regard to choice or conflicts of law rules, and the parties agree to submit to the exclusive jurisdiction 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.
14.3 Waiver of Jury Trial. Each Party hereby waives any right to jury trial in connection with any action or litigation in any way arising out of or related to this Agreement.
15. GENERAL PROVISIONS
15.1 Export Compliance. Each party shall comply with the export laws and regulations of the United States and other applicable jurisdictions in providing and using the Services. Without limiting the foregoing, (a) each party represents that it is not named on any U.S. government list of persons or entities prohibited from receiving exports, and (b) Customer shall not permit Users to access or use Services in violation of any U.S. export embargo, prohibition or restriction.
15.2 Relationship of the Parties. The parties are independent contractors. This Agreement does not create a partnership, franchise, joint venture, agency, fiduciary or employment relationship between the parties.
15.3 No Third-Party Beneficiaries. There are no third-party beneficiaries of this Agreement.
15.4 Waiver and Cumulative Remedies. No failure or delay by either party in exercising any right under this Agreement shall constitute a waiver of that right. Other than as expressly stated herein, the remedies provided herein are in addition to, and not exclusive of, any other remedies of a party at law or in equity.
15.5 If any provision of this Agreement is held by a court of competent jurisdiction to be contrary to law, the provision shall be modified by the court and interpreted so as best to accomplish the objectives of the original provision to the fullest extent permitted by law, and the remaining provisions of this Agreement shall remain in effect.
15.6 Neither Party may assign any of its rights or obligations hereunder, whether by operation of law or otherwise, without the prior written consent of the other party (not to be unreasonably withheld). Notwithstanding the foregoing, either Party may assign this Agreement in its entirety (including all Order Forms), without consent of the other Party, to its Affiliate or in connection with a merger, acquisition, corporate reorganization, or sale of all or substantially all of its assets not involving a direct competitor of the other Party. A Party’s remedy for any purported assignment by the other Party in breach of this paragraph shall be, at the non-assigning Party’s election, either to void this Agreement or termination of this Agreement immediately upon written notice to the assigning Party. Subject to the foregoing, this Agreement shall bind and inure to the benefit of the Parties, their respective successors and permitted assigns.
15.7 Entire Agreement. This Agreement, including all exhibits and addenda hereto and all Order Forms, constitutes the entire, final, complete and exclusive agreement between the Parties and supersedes all prior and contemporaneous agreements, proposals or representations, written or oral, concerning its subject matter. No modification, amendment, or waiver of any provision of this Agreement shall be effective unless in writing and either signed or accepted electronically by both Parties hereto. However, to the extent of any conflict or inconsistency between the provisions in the body of this Agreement and any exhibit or addendum hereto or any Order Form, the terms of such exhibit, addendum or Order Form shall prevail. Notwithstanding any language to the contrary therein, no terms or conditions stated in Customer’s purchase order or other order acknowledgment, documentation or the like (excluding Order Forms) shall be incorporated into or form any part of this Agreement, and all such terms or conditions are hereby rejected by Aryaka and shall be null and void.
15.8 Execution and Delivery. This Agreement may be executed in counterpart and signature by scanned image and delivery by electronic mail are authorized.
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