viptela Customer License Agreement This Customer License Agreement ("CLA") is an agreement between a user of the Product ("Customer") and Viptela, Inc. ("Viptela"). EXCEPT AS SET FORTH HEREIN, ANY USE OF THIS PRODUCT REQUIRES A VALID AND ACTIVE VSMART LICENSE SUBSCRIPTION OBTAINED BY CUSTOMER FROM VIPTELA THROUGH ONE OF THE FOLLOWING MEANS (EACH AN "ORDERING AGREEMENT"): TEMPORARY EVALUATION LICENSE ORDER FORM; MASTER SUBSCRIPTION AGREEMENT BETWEEN CUSTOMER AND VIPTELA; RESELLER AGREEMENT BETWEEN VIPTELA AND MANAGED SERVICE PROVIDER AND/OR VALUE ADDED RESELLER (AS DEFINED BELOW); SUBSCRIPTION PURCHASE AGREEMENT BETWEEN STANDARD CUSTOMER AND VIPTELA AUTHORIZED MANAGED SERVICE PROVIDER AND/OR VALUE ADDED RESELLER (AS DEFINED BELOW). CUSTOMER ACCEPTS THIS CLA UPON ITS INSTALLATION AND USE OF THE PRODUCT LICENSE KEYS AND IN ACCORDANCE WITH THE TERMS OF THE APPLICABLE ORDERING AGREEMENT. CUSTOMER EXPRESSLY AGREES THAT THIS CLA SHALL HOLD HIGHEST ORDER OF PRECEDENCE AND NO TERMS IN ANY ORDERING AGREEMENT SHALL BE DEEMED TO SUPERSEDE ANY TERM HEREIN. THIS CLA SUPERSEDES ANY PREVIOUS VERSIONS. DEFINITIONS "Intellectual Property" means all (a) rights associated with works of authorship throughout the world, including but not limited to copyrights and moral rights, (b) trademarks, service marks, trade name and logo rights, and similar rights, (c) trade secret rights and other rights in inventions, know-how and confidential or proprietary information, (d) patent rights, (e) domain names and Internet keywords, (f) other intellectual property or other proprietary rights, whether arising by operation of law, contract, license, or otherwise, and (g) registrations, initial applications, renewals, extensions, provisionals, continuations, divisions or reissues thereof now or hereafter in force (including any rights in any of the foregoing). "License Key" means the code provided to Customer by Viptela that enables the Product to operate with the specified vSmart License Subscription. "Managed Service Provider" means a Customer that is in the regular business of managing the functionality of the Product for a fee to Standard Customers. "Product" or "Products" collectively means the Viptela hosted vSmart and vManage software, including Third Party Software ("Software Product") and its associated vEdge hardware and firmware ("Hardware Product"), provided to Customer in association with this CLA, together with all the accompanying manuals and other documentation as applicable and available, plus all modifications, enhancements, upgrades, and extensions thereto that may be provided by Viptela to Customer from time to time. "Standard Customer" means a Customer that that will use the Products on and for its own behalf. "Third Party Software" means any software programs provided by third parties contained in the Product. "Value Added Reseller" means a Viptela authorized partner that is not a Managed Services provider, but is in the regular business of reselling the Product. "vManage" means Viptela's cloud hosted software defined network management software that is accessed by Customer via web browser. vManage enables Customer to set policies, configure the Products including implementation of Product modifications made generally available by Viptela, and to access the Product features ordered under the vSmart License Subscription. "vSmart" means Viptela's cloud hosted software defined network controller that is accessed by Customer via web browser. "vEdge" means the Viptela manufactured customer premise device required to connect Customer sites to Viptela's hosted vManage and vSmart functionality. "vSmart License Subscription" means the subscription term and features ordered by Customer and accepted and delivered by Viptela under the terms of an Ordering Agreement that entitles Customer to access to the vSmart and vManage hosted components during the subscription term. LICENSE AND RESTRICTIONS 2.1 License and Hosted Access. Subject to the terms and conditions of this CLA, and payment of the applicable Product fees, Viptela hereby grants Customer a subscription term-based, limited, non-exclusive, non-sublicensable, non-transferable license for the term of the vSmart License Subscription to access, configure, and use the Product in a Viptela hosted environment. Customer has no right to take possession of the Software Product or to receive, use or examine any source code or design documentation relating to the Product, including no right to source code escrow for any reason whatsoever. With regards to any Hardware Product, the license shall be valid only as part of the vSmart License Subscription, except as authorized below in Section 2.3 - Standalone Hardware License. 2.2 Evaluation/Demonstration License. This Section shall apply only when Customer is licensing the Product for an initial evaluation period or Value Added Reseller/Managed Service Provider is licensing the Product for evaluation and/or demonstration purposes. The license is valid only for the evaluation/demonstration period specified in the Ordering Agreement and may only be used for non-production lab evaluation purposes (Customer/Valued Added Reseller/Managed Service Provider) and/or demonstration purposes (Valued Added Reseller/Managed Service Provider). Under no circumstances will an evaluation license be construed to mean that Customer is authorized to provide Product evaluation services directly to any third party for any reason whatsoever, provided that Valued Added Reseller/Managed Service Provider may provide demonstration services to potential Customer(s). In the event that Customer wishes to enter into a license subscription agreement with Viptela for non-evaluation purposes, Customer shall enter into an applicable Ordering Agreement directly with Viptela or a Viptela authorized Managed Services Provider or Value Added Reseller and upon License Key activation of a vSmart License Subscription this CLA shall continue in full force and effect. In the event that Customer determines not to enter into a licensing subscription transaction with Viptela at the end of such evaluation period, then Customer's rights under this CLA shall terminate and Customer shall promptly return to Viptela all evaluation Product. Customer acknowledges and agrees that maintenance and support as described in Section 3 are not provided from Viptela for evaluation licenses. NOTWITHSTANDING ANYTHING TO THE CONTRARY IN SECTION 6 LIMITED PRODUCT WARRANTY, PRODUCTS LICENSED FOR EVALUATION UNDER THIS SECTION ARE PROVIDED TO CUSTOMER "AS IS," WITHOUT ANY WARRANTIES OF ANY KIND, INCLUDING, BUT NOT LIMITED TO, WARRANTIES CONCERNING THE INSTALLATION, USE OR PERFORMANCE OF THE PRODUCTS. VIPTELA AND ITS SUPPLIERS DISCLAIM ANY AND ALL WARRANTIES, EITHER EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO ANY WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT, SYSTEM INTEGRATION, NON-INTERFERENCE AND/OR ACCURACY OF INFORMATIONAL CONTENT. VIPTELA AND ITS SUPPLIERS DO NOT WARRANT THAT ANY VIPTELA PRODUCTS WILL MEET CUSTOMER REQUIREMENTS OR THAT THE OPERATION THEREOF WILL BE UNINTERRUPTED OR ERROR-FREE, OR THAT ERRORS WILL BE CORRECTED. 2.3 Standalone Hardware License. Viptela does not sell, nor make available for resale, Hardware Products on a standalone basis. However, following expiration of the applicable vSmart License Subscription and in the event that Customer desires to continue to utilize Hardware Product on a standalone basis without any vSmart or vManage functionality, then Customer is granted a perpetual, non-exclusive, non-sublicensable, non-transferable license to use the Hardware Products, solely for purposes consistent with Viptela published Hardware Product specifications and in accordance with the terms and conditions of this CLA. Customer acknowledges and agrees that maintenance and support as described in Section 3 are not included nor are they available for purchase from Viptela for standalone Hardware Product licenses. NOTWITHSTANDING ANYTHING TO THE CONTRARY IN SECTION 6 LIMITED PRODUCT WARRANTY, HARDWARE PRODUCTS LICENSED UNDER THIS SECTION ARE PROVIDED TO CUSTOMER "AS IS," WITHOUT ANY WARRANTIES OF ANY KIND, INCLUDING, BUT NOT LIMITED TO, WARRANTIES CONCERNING THE INSTALLATION, USE OR PERFORMANCE OF THE PRODUCTS. VIPTELA AND ITS SUPPLIERS DISCLAIM ANY AND ALL WARRANTIES, EITHER EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO ANY WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT, SYSTEM INTEGRATION, NON-INTERFERENCE AND/OR ACCURACY OF INFORMATIONAL CONTENT. VIPTELA AND ITS SUPPLIERS DO NOT WARRANT THAT ANY VIPTELA PRODUCTS WILL MEET CUSTOMER REQUIREMENTS OR THAT THE OPERATION THEREOF WILL BE UNINTERRUPTED OR ERROR-FREE, OR THAT ERRORS WILL BE CORRECTED. 2.4 Modifications. If during the term of the vSmart License Subscription Viptela integrates any modifications, including enhancements, standard releases, and patches, into the Product, then each such modification will be deemed to be part of the Product(s) available to Customer under the terms of this CLA. 2.5 Standard Customer Restrictions and Responsibilities. As applicable, the Products are licensed to a Standard Customer solely for its own use and may only be operated within the designated features and limits of the applicable vSmart License Subscription. No Product, or any portion thereof, may be used by or on behalf of, accessed by, re-sold to, rented to, or distributed to any other party. Standard Customer shall by bound by the terms of this CLA independent of the source of its applicable Ordering Agreement. Standard Customer shall be responsible for all of its activities while using the Products, including without limitation: (i) promptly updating the registration information of the primary account holder for the vSmart License Subscription if it changes or is no longer current, accurate, and complete; (ii) using commercially reasonable efforts to prevent unauthorized access to, or use of, the Products, and notifying Viptela promptly of such unauthorized access or use; (iii) if applicable, obtaining and maintaining any third party equipment needed to access the Products; and (iv) paying all third-party access charges incurred while using the Products. 2.6 Managed Service Provider Restrictions and Responsibilities. As applicable, the Products are licensed to a Managed Services Provider for use to manage the functionality of the Product only for the operations of Standard Customers and may only be operated within the designated features and limits of the applicable vSmart License Subscription. Managed Service Provider is responsible for the compliance with the applicable terms and conditions set forth in this CLA by its Standard Customers. No Product, or any portion thereof, may be used by or on behalf of, accessed by, re-sold to, rented to any other party, except for the management of Standard Customers who have made a valid purchase of the Product from Managed Services Provider. Managed Service Provider shall be responsible for all of its activities while using the Products, including without limitation: (i) promptly updating the registration information of the primary account holder for the vSmart License Subscription if it changes or is no longer current, accurate and complete; (ii) using commercially reasonable efforts to prevent unauthorized access to, or use of, the Products, and notifying Viptela promptly of such unauthorized access or use; (iii) being responsible for the accuracy, quality, integrity, legality, reliability, and appropriateness of all activities of its Standard Customers and providing applicable support services to Standard Customers; (iv) being responsible for obtaining and maintaining any third party equipment needed to access the Products; and (v) paying all third-party access charges incurred while using the Products. 2.7 General Restrictions. Customer may not copy the Product, in whole or in part, unless permitted by law or authorized by Viptela under the terms of the applicable Ordering Agreement. In the event that Customer is authorized to copy the Product, Customer must reproduce and include the copyright notice and any other notices that appear on the original Product on any back up copy. Customer agrees not to allow third parties to access the Product unless specifically authorized by Viptela under the terms of the applicable Ordering Agreement. Customer will only use the Products in accordance with Viptela published specifications and subject to the terms of this CLA. Customer will not, and will not permit others to, whether directly or indirectly: (i) reverse engineer, decompile, disassemble, or otherwise attempt to discover the source code or underlying ideas or algorithms of the Software Product; (ii) modify, translate, or create derivative works based on the Software Product; (iii) rent, lease, distribute, sell, resell, assign, or otherwise transfer rights to the Software Product; (iv) use or attempt to use the Hardware Product firmware on third party hardware components; (v) remove any proprietary notices or labels on the Software Product; (vi) disassemble or attempt to reverse engineer the Hardware Product; (vii) remove or erase the firmware from the Hardware Products, or otherwise try to disable or alter the firmware functionality; (viii) load any other software onto the Hardware Product; (ix) remove any logo, trademark, or service mark of Viptela from any item of Hardware Product; (x) publicly disseminate performance information or analysis about the Products including, without limitation benchmarking test results, or (xi) make any alterations, updates, enhancements, additions or improvements to the Product without the prior written approval of Viptela. Any alterations, updates, enhancements, additions, or improvements so approved will be the sole property of Viptela. If any alterations, updates, enhancements, additions or improvements interfere with the normal operation, maintenance, or support of the Product (including by increasing the cost of maintenance or support or creating a safety hazard), Customer will promptly remove the same and restore the Product to its normal condition. 2.8 Third Party Violation. Customer acknowledges and agrees that the Product may provide the customized ability to restrict access to certain programs. The restriction of access to any of these programs may be in violation with other license agreements that Customer may have knowingly or unknowingly agreed to. The restriction of these programs and the potential violation of a third party license is Customer's sole responsibility. Viptela has neither any obligation nor ability to verify what, if any, third party agreements Customer may have agreed to. 2.9 Third Party Software. Certain Third Party Software may be provided with the Product for use in connection with the Product subject to the licenses of their respective proprietors. The provisions of this Agreement shall apply to all Third Party Software providers and to Third Party Software as if they were Viptela and the Product, respectively. 2.10 Traffic Analytics. Certain Viptela products and/or features may enable the collection of data traffic and related analytics. Viptela may collect and use aggregated and anonymized statistical related data that is derived or collected from Customer's use of the Products, including identifiers and key values (interface, app routes, tunnel stats, CPU and memory utilization, etc.) as well as traffic flow based information. No personal data, customer data, or configuration of Hardware Products shall be collected. All data collected shall be used solely to provide support to Customer and for the general purpose of improving the Products. 2.11 Product Access. Subject to Customer's payment of the vSmart License Subscription fees as established in, and ordered pursuant to, the applicable Ordering Agreement, Viptela will provide Customer with access to the Products commencing as of the date Customer first accesses the Products and accepts this CLA through the expiration of the term of the applicable vSmart License Subscription, subject to the terms of this CLA. MAINTENANCE AND SUPPORT Maintenance and support of the Products, including Hardware Products, is provided to Customer as part of the vSmart License Subscription. Viptela does not offer standalone or unbundled maintenance and support. Available service descriptions are located at http://www.viptela.com/license-support-services/ and Customer will select its required support level via an order under the terms of an Ordering Agreement. Notwithstanding the foregoing, if Customer's Ordering Agreement a) is with a Managed Service Provider and b) the Managed Service Provider retains the vSmart License Subscription in order to provide a managed service to Customer, then this Section 3 (Maintenance and Support) will not apply. Customer may obtain support from the Managed Service Provider directly and is not entitled to any direct support from Viptela including Software Product releases, updates, or fixes. TITLE AND INTELLECTUAL PROPERTY All right, title, and interest in and to the Software Product shall remain with Viptela and any applicable third party licensors. Viptela owns (i) all right, title, and interest, including all Intellectual Property therein, in and to the Software Product and related documentation, and (ii) all Intellectual Property in the Hardware Product. Nothing in this Agreement will be construed as transferring or changing Viptela's Intellectual Property rights or interests in the Products in any respect. In addition, Customer may provide Viptela with suggestions or feedback regarding the Products ("Feedback"). Excluding any portion of the Feedback that is Customer's Intellectual Property or confidential information (as may be defined in the applicable Ordering Agreement), Customer hereby grants to Viptela a worldwide, perpetual, royalty fee right to use the Feedback for the purpose of improving the Products. Other than the rights expressly granted to Customer in this CLA, Viptela reserves all rights with respect to the Products and any and all related rights, including any derivative works and any media, mode, or method of distribution or transmission of the Products, whether available now or developed in the future. TERM AND TERMINATION The term of this CLA shall be coterminous with the applicable evaluation and/or vSmart License Subscription, and shall expire automatically at expiration of the applicable vSmart License Subscription, except as provided herein for standalone Hardware Product. Upon termination of this CLA, Customer agrees to cease all use of the Product and to return to Viptela all related documentation and materials in Customer's possession, and so certify to Viptela upon request. Except for the license and Product access granted herein and as expressly provided herein, the terms of this CLA shall survive termination. In the absence of a specified vSmart License Subscription Term per the terms of an applicable Ordering Agreement, the vSmart License Subscription Term shall begin two (2) days after Viptela delivers the License Keys electronically to Customer or upon Customer's installation of the License Keys, whichever is sooner. LIMITED PRODUCT WARRANTY, WARRANTY DISCLAIMERS Viptela represents and warrants (a) that the Products will operate in accordance with and substantially conform to the Product documentation, manuals, and Viptela published specifications; (b) that the Products are free, at the time of receipt by Customer of (i) any automatic restraints, computer viruses, hidden files, software locks, time bombs or other such code that will hinder Customer's ability to exercise its license rights under this CLA; and (ii) any harmful programs or data that will destroy, erase, damage or otherwise disrupt the normal operation of the Products, or allow for unauthorized access to the Products; and (c) any services furnished by Viptela will be performed in a workmanlike fashion in conformance with professional standards in the industry for comparable services. PRODUCT INDEMNITIES Viptela shall defend, indemnify and hold harmless Customer from and against any and all third party claims (including, reasonable attorneys' fees), arising out of or in connection with a claim that the Product, when used within the scope of this CLA and the applicable Ordering Agreement, infringes, violates or misappropriates a valid third party patent, copyright or other proprietary right (hereinafter "Claim"), provided that Customer (a) promptly notifies Viptela in writing within 30 days of receiving any notice of the Claim or an alleged Claim, as further delay will prejudice Viptela's ability to defend such Claim, (b) does not substantively respond, attempt settlement or make any admissions relating to the third party Claim or alleged Claim, and (c) Viptela is tendered the right to solely control the action, including any settlement thereof. Further, Customer agrees to timely and promptly provide Viptela all requested reasonable assistance to Viptela to assist in in defending the Claim. Viptela will not be obligated to defend, indemnify, hold harmless, or be liable for any costs or damages related to the Claim if such Claim arises out of (a) modification of the Product not carried out by Viptela or at its direction; (b) Customer's failure to install an enhancement provided at no additional charge that would have avoided the Claim; (c) failure to use the Products in accordance with the documentation; or (d) combination of the Product with technology not provided by Viptela is required to establish direct infringement of the Claim. If any Product delivered to Customer is held to infringe any patent, trademark, trade secret or copyright, or other proprietary right and Customer is enjoined from using that Product, Viptela will have the option to: (a) procure for Customer the right to continue using the Products; (b) replace or modify the Products with technology having substantially similar functionality; or (c) refund to Customer the unearned portion of any fee paid by Customer for use of the Products through the term of the CLA, provided that Customer's use of the Products is accordingly terminated. GOVERNMENT REGULATION AND EXPORT CONTROL Customer (or Standard Customer in the context of its relationship with a Managed Services Provider) shall comply fully with applicable United States government and any other country's export and re-export laws, regulations, and requirements. Customer shall not export or re-export any Product that may be subject to such laws, regulations and requirements, to any location, or to any Customer end-user, or for any end use, without first obtaining any export license, permit or other approval that may be required. Without limiting the foregoing, (i) Customer shall ensure that it shall not export or re-export any Product subject to export control laws to any person who is listed on any U.S. government list of prohibited or restricted parties or located in (or a national of) a country that is subject to a U.S. government embargo or that has been designated by the U.S. government as a "terrorist supporting" country, (ii) Customer shall not access or use the Products in violation of any U.S. export embargo, prohibition or restriction or for any end-use related to the development, production or use of nuclear, chemical or biological weapons or missiles. Viptela's obligations hereunder shall at all times be subject to the export control laws and regulations of the United States government and any amendments thereof.