Advance Access Program Agreement, version 10-10 Company Initials _____
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RIVERBED TECHNOLOGY
ADVANCED ACCESS PROGRAM AGREEMENT
This Advanced Access Program Agreement (the 'Agreement') is made as of ___________, 201__ (the 'Effective Date') by and between Riverbed
Technology, Inc., ('Riverbed') having its principal place of business at 199 Fremont Street, San Francisco, CA 94105, and
_____________________________________________________, ('Company') having its principal place of business at
________________________________________________________.
1. Participation in Riverbed Advanced Access Program.
1.1. This Agreement sets forth the terms and conditions under which
Company will participate in the Riverbed Advanced Access
Program ('Program') for purposes of installing, using and testing
certain pre-release versions of Riverbed software or hardware
('Products'). As of the Effective Date, Company is a Program
participant and entitled to receive those benefits, and participate in
such activities, as Riverbed may provide in connection with such
Program from time to time.
1.2. Advanced Access Product Schedules. Specific Program activities
will be set forth in one or more 'Product Schedule(s)' provided by
Riverbed (the 'Schedule(s)') that will incorporate the terms of this
Agreement by reference and detail the Pre-Release Products being
tested, the Testing Period, Testing Site, and contact persons for the
parties. Product Schedules may be signed by the parties, or
acknowledged via electronic documents exchanged between and
confirmed by the parties using the procedure described in section
3.1 below.
2. Definitions.
2.1. 'Equipment' means the hardware delivered by Riverbed to
Customer under this Agreement.
2.2. 'Pre-Release Product(s)' means any Product identified on a
Schedule, and its associated Documentation, which has yet to
undergo final testing and qualification by Riverbed and has not
been issued for general availability, and shall also include any
subsequent or modified versions of the foregoing that Riverbed
may, in its sole discretion, choose to provide the Company under
the terms of this Agreement.
2.3. 'Software' means the computer programs provided by Riverbed to
the Company, separately or in connection with its use of the
Equipment, and which may include any software embedded in the
Equipment.
2.4. 'Documentation' means any supporting materials which Riverbed
may provide to the Company in connection with its use of the Pre-
Release Products.
3. Schedules, Delivery and Return of Products
3.1. Schedules. Company may from time to time submit a Schedule
under this Agreement using an electronic document provided by
Riverbed, and sent by email. Company may accept the Schedule
by using procedures mutually agreed by the parties which may
include, but is not limited to clicking an 'Accept' button in the email,
or by a reply email stating 'Accept'. Riverbed shall not be under
any obligation to make Products available under this Agreement
until a properly acknowledged Schedule is received from Company.
Company specifically agrees that Riverbed is entitled to rely on,
process and fulfill, and that Company shall be bound by, shall be
responsible for, and shall not dispute the legal sufficiency of, or the
contents of, any Schedules confirmed electronically (an 'Electronic
Schedule'). Any mechanically or magnetically stored data
pertaining to Electronic Schedules, or printouts thereof, and any
communication that is stored contemporaneously with, by a reliable
method in the regular course of business, shall be admissible
evidence of such Schedule. Riverbed may periodically request
confirmation or verification of specific Electronic Schedules.
Company shall promptly notify Riverbed if Company suspects that
an Electronic Schedule (i) has been placed by someone whom
Company has not, or no longer wishes to be, authorized to submit
an Electronic Schedule; or (ii) has not been processed correctly by
Riverbed.
3.2. Delivery of Pre-Release Product. Riverbed will ship the Pre-
Release Products to the testing site listed in a Schedule at a
mutually agreed upon time. Riverbed will be responsible for all
shipping costs for the delivery of the Pre-Release Products to the
Company.
3.3. Return of Pre-Release Products. Company agrees to return any
Pre-Release Products, including all copies of Software and
Documentation to Riverbed at Riverbed's expense on or before the
Testing End Date listed in a Schedule. Company will be
responsible, and will reimburse Riverbed, for loss of or damage to
the Pre-Release Product while in Company's possession.
4. Program Benefits, Riverbed Obligations. Riverbed will on
occasion make available to Company, as a Program participant
access to (i) Riverbed Product support material; (ii) technical
support as Riverbed, in its reasonable discretion, deems necessary
to assist Company to properly install and operate the Pre-Release
Products.
5. Company Obligations.
5.1. Testing. Testing activities may be conducted jointly by Riverbed
and Company and may require frequent interaction between
Riverbed personnel and a technical representative at Company's
testing location. During the 'Testing Period' listed in a Schedule,
the Company will use the Pre-Release Product solely to internally
test and evaluate the functionality, performance compatibility and
reliability of the Product. Customer shall not use Product(s) for any
other purpose except as expressly stated herein.
5.2. Restrictions on Use. The Company agrees not to (i) copy, modify,
reverse engineer, decompile or disassemble the Pre-Release
Product, make derivative works based upon the Product, or use the
Product to develop any products, (ii) sell, license, rent, lease or
otherwise transfer the Pre-Release Product (or any part thereof) to,
or use it for the benefit of, any third party, or (iii) publish or provide
any benchmark or comparison tests to any third party or assist any
third party to do any of the foregoing. The Company will not
remove the Pre-Release Products from Testing Site. Under no
circumstance may the Pre-Release Products be used in a network
accessible by third parties or any production environment.
Company will not export, or allow the export or re-export of the Pre-
Release Product or any Confidential Information in violation of any
applicable export laws, restrictions or regulations of the United
States or any applicable foreign agency or authority.
5.3. Product Information, Reporting. The Company agrees to provide
Riverbed with feedback on Pre-Release Product performance,
stability and other relevant information to assist Riverbed in the
ongoing development and improvement of the Pre-Release
Products. Riverbed shall have a royalty-free, worldwide,
transferable, sublicenseable, irrevocable, perpetual license to use
or incorporate into the Pre-Release Products any such feedback, or
any other suggestions, enhancement requests, recommendations
provided by Company relating to the Pre-Release Products. Any
information on testing, data, analysis or results of any comparative,
competitive, benchmarking or infringement testing of the Pre-
Release Product(s) is Riverbed Confidential Information. Use and
publication of any test data is at the sole discretion and control of
Riverbed.
6. Software License. Riverbed hereby grants to Company a
personal, non-transferable, non-sublicensable, non-exclusive
license to use the Software during the Testing Period, and hereof
solely in accordance with the Documentation and solely for the
purpose of testing and evaluating the Product. Except as expressly
set forth at http://www.riverbed.com/license/additional_use_rights,
Company may use each licensed copy of the Software only as
embedded in or for execution on a specific unit (or replacement
thereof) of Riverbed hardware owned or leased by Company
(including any units of replacement for the foregoing provided as
part of warranty or support services).
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7. Pre-Release Products Are Experimental. Riverbed's supplying
of the Pre-Release Products does not represent a commitment,
promise or legal obligation on Riverbed's part to deliver any new
products, features or functionality for general availability. Riverbed
does not commit, promise, or agree to finally release and/or offer
for sale the Pre-Release Product(s), whether or not perfected, and
the development, release, and timing of any features or
functionality remains at Riverbed's sole discretion. Riverbed
reserves the right to unilaterally cease and abandon the Pre-
Release Product(s) at any time without any obligation or liability
whatsoever. Company shall have no obligation or commitment to
(i) purchase Pre-Release Product(s) that are Equipment, or (ii)
license Pre-Release Product(s) that are Software, whether such is
subsequently perfected or not. Company acknowledges that any
orders for other products that Riverbed sells are not in reliance on
the Pre-Release Products furnished pursuant to this Agreement
ever becoming a commercial product. Further, Riverbed assumes
no liability in connection with any uses of the Pre-Release Products
whatsoever, including without limitation, installation and use by
Company in a production environment, on production-quality
Equipment, or in combination with other Software or data supplied
by Riverbed or used together with the Pre-Release Products.
8. Ownership.
8.1. Equipment. Company acknowledges that the Equipment supplied
as a Pre-Release Product is loaned to the Company only for the
testing purposes set forth herein and that Riverbed retains
ownership of all right, title and interest to the Product and the
intellectual property rights related thereto.
8.2. Software. Software supplied as a Pre-Release Product is licensed
only for the express purposes hereunder. No title to, or ownership
of, the Software or Documentation is transferred to Company.
Company shall reproduce and include copyright and other
proprietary notices on and in any copies, including but not limited to
partial, physical or electronic copies, of the Software and
Documentation.
9. Disclaimer of Warranty. COMPANY ACKNOWLEDGES AND
AGREES THAT THE PRE-RELEASE PRODUCT(S) ARE
PROVIDED 'AS IS'' AND MAY NOT BE FUNCTIONAL IN
COMPANY'S ENVIRONMENT. COMPANY'S USE OF THE
PRODUCT IS ENTIRELY AT ITS OWN RISK. RIVERBED MAKES
NO WARRANTIES IN CONNECTION WITH THE PRODUCT,
EXPRESS, IMPLIED, STATUTORY OR OTHERWISE. RIVERBED
SPECIFICALLY DISCLAIMS ALL IMPLIED WARRANTIES,
INCLUDING WARRANTIES OF MERCHANTABILITY,
NONINFRINGEMENT AND FITNESS FOR A PARTICULAR
PURPOSE, OR ARISING FROM A COURSE OF DEALING,
USAGE OR TRADE PRACTICE. COMPANY AGREES ALL
PRODUCT TESTS SHALL BE CONDUCTED IN A NONPRODUCTION
ENVIRONMENT. RIVERBED DISCLAIMS ANY
LIABILITY WHATSOEVER FOR PRODUCT TESTS PERFORMED
IN A PRODUCTION ENVIRONMENT.
10. Termination.
10.1. Either party may terminate this Agreement (i) for any reason, by
giving the other thirty (30) days' prior written notice to the other
party; or (i) immediately, on notice, in the event of a material breach
by such other party. The effect of such termination shall be that no
new Schedule may be signed referencing this Agreement after
such termination. However, such termination shall not serve to
terminate any Schedule in effect prior to the date on which
termination of this Agreement takes effect, unless termination is
due to material breach hereof, in which case termination of the
Agreement shall serve to immediately terminate all Schedules.
10.2. Membership in the Program requires that the Company participate
in one or more Product testing cycles per calendar year. Riverbed
reserves the right to cancel this agreement immediately if the
Company does not continue to meet this requirement.
10.3. Schedules. Each Schedule shall commence on the date specified
on the applicable Schedule; and unless otherwise terminated
sooner, shall (i) terminate when either party sends the other a
notice of termination for convenience, which notice shall be
effective ten (10) days after receipt by the non-terminating party; or
(ii) terminate immediately upon written notice in the event of a
material breach by the non-terminating party; or (iii) end on the
Evaluation End Date specified in such Schedule, whichever occurs
first. A notice of termination hereunder may specify that it applies to
all or only a portion of the Pre-Release Product(s) listed on the
applicable Schedule.
10.4. Upon expiration or termination of this Agreement, Company shall
immediately cease use of the Pre-Release Products and shall
return the Pre-Release Products to Riverbed, including all
Confidential Information and data (including all copies thereof) then
in Company's possession or control, and certify in writing as to such
action. Upon termination hereof for any reason, the terms of the
following sections shall survive: 3.3, 5.2, 5.3, and 7-13. If
Company fails return the Pre-Release Products after the end of the
Testing Period, Riverbed may at any time during normal working
hours and not excluding any other remedies Riverbed may have,
enter the Test Site and remove the Products with no liability to
Company and at Company's expense.
11. Limited Liability. RIVERBED SHALL NOT BE RESPONSIBLE OR
LIABLE WITH RESPECT TO ANY SUBJECT MATTER OF THIS
AGREEMENT, INCLUDING ANY SCHEDULE ISSUED
PURSUANT TO THIS AGREEMENT, UNDER ANY CONTRACT,
NEGLIGENCE, STRICT LIABILITY OR OTHER THEORY (A) FOR
LOSS OR INACCURACY OF DATA, COMPUTER FAILURE OR
MALFUNCTION, DAMAGES RESULTING FROM LICENSEE'S
USE OF THE PRODUCT OR COST OF PROCUREMENT OF
SUBSTITUTE GOODS, SERVICES OR TECHNOLOGY, (B) FOR
ANY INDIRECT, INCIDENTAL OR CONSEQUENTIAL DAMAGES
INCLUDING, BUT NOT LIMITED TO LOSS OF REVENUES AND
LOSS OF PROFITS, LOSS OF GOODWILL (C) FOR ANY
AMOUNT IN THE AGGREGATE IN EXCESS OF US$10,000, OR
(D) FOR ANY MATTER BEYOND ITS REASONABLE CONTROL.
12. Confidential Information. Company acknowledges that, in the
course of using the Pre-Release Products and performing its duties
under this Agreement, it may learn or obtain information relating to
the Pre-Release Products and to Riverbed that is of a confidential
and proprietary nature ('Confidential Information'). Such
Confidential Information includes, but is not limited to, its features
and modes of operation, this Agreement, trade secrets, product
performance, know how, invention techniques, processes,
programs, schematics, software source documents, data, Company
lists, financial information, and sales and marketing plans or any
other information which Company knows or has reason to know is
confidential, proprietary or trade secret information of Riverbed.
Company shall at all times, both during the term of this Agreement
and for a period of five years after its termination, keep in trust and
confidence all such Confidential Information, and shall not use such
Confidential Information other than as expressly authorized by
Riverbed under this Agreement, nor shall Company disclose any
such Confidential Information to any third party. Further, Company
will only disclose the Product and Confidential Information to those
of its employees and consultants as are necessary for the use
expressly and unambiguously authorized hereunder, and only after
such employees and consultants have agreed in writing to be
bound by provisions no less restrictive than those of this
Agreement. The obligations of confidentiality shall not apply to
information which has entered the public domain except where
such entry is the result of Company's (or its representatives')
breach of this Agreement. Any press release or publication
regarding this Agreement is subject to prior approval of the parties,
provided, however, that Riverbed may list in its relevant marketing
materials that Company is or was a participant in Riverbed's beta
test of such Products without requiring Company's prior approval.
13. General. This Agreement shall be governed by and construed
under the laws of the State of California without giving effect to the
principles of conflicts of law and without application of the UN
Convention on Contracts for the International Sale of Goods. The
prevailing party in any action arising out of this Agreement shall be
entitled to an award of its costs and attorneys' fees. No waiver of
rights under this Agreement by either party shall constitute a
subsequent waiver of any right under this Agreement and all
waivers must be in writing. In the event that any term of this
Agreement is held by a court to be unenforceable, such provision
shall be limited or eliminated to the minimum extent necessary so
Advance Access Program Agreement, version 10-10 Company Initials _____
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that this Agreement shall otherwise remain in full force and effect
and enforceable. Company may not assign this Agreement without
the prior written consent of Riverbed. Any attempted assignment or
transfer in violation of the foregoing shall be void. All notices
required or permitted under this Agreement will be in writing and
will be sent to the addresses set forth in the first page of this
Agreement (or such other address as a party may designate in
writing). This Agreement is the complete agreement between the
parties hereto concerning the subject matter of this Agreement and
replaces any prior oral or written communications between the
parties with respect thereto. This Agreement may only be modified
by a written document executed by the parties hereto. The parties
agree Schedules shall not be used to modify the terms of this
Agreement. Company acknowledges and agrees that due to the
unique nature of Riverbed's Confidential Information, there can be
no adequate remedy at law for any breach of its obligations
hereunder and that upon any such breach or threat thereof,
Riverbed shall be entitled to an injunction and other appropriate
equitable relief in addition to whatever remedies it may have at law.
RIVERBED TECHNOLOGY, INC.
_________________________________
Authorized Signature
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Name
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Title
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Date
_________________________('Company')
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Authorized Signature
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Name
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Title
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Date