LICENSING and SERVICES AGREEMENT
ARBOR NETWORKS, INC., IF YOUR PRINCIPAL PLACE OF BUSINESS IS IN THE UNITED STATES, OR ARBOR NETWORKS UK LTD., IF YOUR PRINCIPAL PLACE OF BUSINESS IS OUTSIDE OF THE UNITED STATES (“ARBOR”) LICENSES THE PRODUCT AND/OR USE OF ARBOR’S CLOUD SERVICE AND/OR MANAGED SERVICES (”SERVICES”) AND DOCUMENTATION (TOGETHER, THE “SOFTWARE”) TO YOU ("YOU” OR “YOUR") PROVIDED YOU ACCEPT ALL OF THE TERMS OF THIS LICENSE, CLOUD AND MANAGED SERVICE AGREEMENT (the “AGREEMENT”). IF YOU’VE PURCHASED THE CLOUD OR MANAGED SERVICE, YOU ALSO AGREE TO THE ADDITIONAL TERMS AND CONDITIONS LOCATED AT www.netscout.com/arbor-cloud-supplemental-terms-and-conditions AND/OR www.netscout.com/managed-service-supplemental-terms-and-conditions . BY SIGNING THE ATTACHED FORM, OPENING THIS PACKAGE, BREAKING THE SEAL, CONNECTING PRODUCT TO YOUR NETWORK, OR ACCESSING THE SERVICE, YOU AGREE TO THE TERMS AND CONDITIONS OF THIS AGREEMENT.
1. License to Use. Arbor grants You a limited, revocable non-exclusive, non-transferable license (the “License”) to: a) use Arbor’s software in machine-readable form that is shipped to You and/or identified on the attached form (“Form”) and accompanying documentation (collectively “Product”) on the machines on which the software has been installed or authorized by Arbor; and/or b) access and use the Services as described herein. The term of the license shall be as stated on the Form. Your affiliate(s), purchasing agents, and outsourcing vendors (“Affiliates”) may on your behalf purchase or use Product and/or Services hereunder so long as each is bound to terms as in this Agreement and You indemnify Arbor for their breach of this Agreement. Any future trial or purchase of Product and services and future trials or purchases of Services is governed exclusively by this Agreement and may be effected by You or Your Affiliates providing a purchase order or trial request. Trial term licenses for Services shall be as stated on the Form. Trial term licenses for Product shall be for the longer of thirty (30) days from date of Product’s delivery to You or as stated on the Form supplied by Arbor. Any feed, release, revision or enhancement to the Software that Arbor may furnish to You becomes a part of Product or Services and is governed by this Agreement. Specifically, for Product, if You have not purchased a license by the end of a Product trial term or You breach this Agreement, You agree to return Product and any machine provided by Arbor to Arbor in its original condition less normal wear and tear in original packaging or equivalent and in accordance with Arbor’s RMA process within 10 days. You agree to pay for any damage to Product occurring prior to receipt by Arbor. If You purchase a license to Product, this Agreement will control that purchase and title to machines (where applicable) provided hereunder vests in You.
2. Proprietary Rights and Restrictions. Arbor and/or its licensors and outsourcing vendors (together, “Vendors”) retain all right, title, and interest in the Software and in all copies thereof, and no title to the Software or any intellectual property or other rights therein, are transferred to You other than as specified herein. No right, title or interest to any trademarks, service marks or trade names of Arbor or its Vendors is granted by this Agreement. Software is copyrighted and contains proprietary information and trade secrets belonging to Arbor and/or its Vendors. You will only use Software for Your own internal business purposes. You may not make copies of the Software, other than a single copy in machine-readable format for back-up or archival purposes. You may make copies of the associated documentation for Your internal use only. You shall ensure that all proprietary rights notices on Software are reproduced and applied to any copies. Licenses are limited to use in accordance with the “Description” on the Form and user documentation. You agree not to cause or permit the reverse engineering or decompilation of the Software or to derive source code therefrom. You may not create derivative works based upon all or part of Software. You may not transfer, lend, lease, assign, sublicense, and/or make available through timesharing, Software, in whole or in part. If you are purchasing spare Product, You’re only licensed to use such spare during such time as another Product is removed from service for repair.
3. Confidentiality. When disclosing information under this Agreement, the disclosing party will be the “Disclosing Party” and the receiving party will be the “Receiving Party.” The term “Confidential Information” includes: (a) a party’s technical, financial, commercial or other proprietary information including without limitation product roadmaps, pricing, software code and documentation, Software, techniques or systems and (b) information or data that is confidential and proprietary to a third party and is in the possession or control of a party. The Receiving Party will not disclose any of the Disclosing Party’s Confidential Information to any third party except to the extent such disclosure is necessary for performance of the Agreement or it can be documented that any such Confidential Information is in the public domain and generally available to the general public without any restriction or license, or is required to be disclosed by any authority having jurisdiction so long as Disclosing Party is provided advance notice of such disclosure by the Receiving Party. Each party’s respective Confidential Information shall remain its own property.
4. Product Warranty, Indemnification. Arbor warrants, for ninety (90) days from shipment, that Product will perform in compliance with user manuals accompanying Product. If, within ninety (90) days of shipment, You report to Arbor that Product is not performing as described above, and Arbor is unable to correct it within ninety (90) days of the date You report it, You may return the non-performing Product at Arbor’s expense, and Arbor will refund amounts paid for such Product. The foregoing is Your sole and exclusive remedy. Arbor agrees to defend You from and against any third party claim or action based on any alleged infringement of any U.S. patent or copyright arising from use of the Product or Services according to the terms and conditions of this Agreement (“Claim”), and Arbor agrees to indemnify You from damages awarded against You in any such Claim or settlement thereof, provided that (i) Arbor is promptly notified in writing of such Claim, (ii) You grant Arbor sole control of the defense and any related settlement negotiations, and (iii) You cooperate with Arbor in defense of such Claim. Notwithstanding the foregoing, Arbor shall have no liability to You if the infringement results from (a) use of the Product or Services in combination with software not provided by Arbor; (b) modifications to the Product or Services not made by Arbor; (c) use of the Product or Services other than in accordance with the Documentation or this Agreement; or (d) failure to use an updated, non-infringing version of the applicable Product or Services. The foregoing states the entire liability of Arbor with respect to infringement.
5. Limitations. EXCEPT AS OTHERWISE PROVIDED HEREIN, ARBOR AND ITS THIRD PARTY VENDORS MAKE NO OTHER WARRANTIES, EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE. ARBOR’S AGGREGATE LIABILITY FOR ANY AND ALL CLAIMS ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT, THE PERFORMANCE OF PRODUCT PROVIDED HEREUNDER, AND/OR ARBOR'S PERFORMANCE OF SERVICES (INCLUDING, WITHOUT LIMITATION, THE SERVICES), SHALL NOT EXCEED THE AMOUNT PAID UNDER THIS AGREEMENT FOR PRODUCT AND/OR SERVICES WITHIN THE TWELVE (12) MONTH PERIOD IMMEDIATELY PRECEDING THE CLAIM, WHETHER A CLAIM IS BASED ON CONTRACT OR TORT, INCLUDING NEGLIGENCE. IN NO EVENT SHALL ARBOR OR ITS VENDORS BE LIABLE FOR ANY INDIRECT, SPECIAL, INCIDENTAL, PUNITIVE, OR CONSEQUENTIAL DAMAGES, INCLUDING, WITHOUT LIMITATION, DAMAGES RESULTING FROM LOSS OF PROFITS, DATA, OR BUSINESS ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT, EVEN IF ARBOR HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. IN NO EVENT SHALL ARBOR BE LIABLE FOR ANY UNAUTHORIZED ACCESS TO, ALTERATION OF, OR THE DELETION, DESTRUCTION DAMAGE, LOSS OR FAILURE TO STORE ANY OF YOUR CONTENT OR OTHER DATA. YOUR SOLE RECOURSE HEREUNDER SHALL BE AGAINST ARBOR AND YOU SHALL HOLD THIRD PARTY VENDORS HARMLESS.
6. Product Installation and Support. Installation purchased directly from Arbor with Product is governed by this Agreement, but Arbor shall not be required to continue any installation for longer than 90 days following receipt of Product. If a perpetual license is granted hereunder, You agree to purchase support ("Support") for at least the initial year from shipment. Thereafter, Arbor will invoice approximately sixty (60) days prior to the end of the Support term for additional one-year periods so long as Product is covered by Support. Failure to pay such invoice will result in a lapse of Your Support. If Support lapses, upon renewal of Support a 10% reinstatement fee will be assessed and you shall pay all Support fees back to the date Support lapsed. Each annual renewal service price shall be no less than the previous service price. With Support, Arbor will provide You (i) telephone and email based technical support in accordance with the level purchased and (ii) all new maintenance releases to Product when and if available during Your participation in Support. Arbor shall not be required to provide Support on any Product (i) for more than twelve months after its general release, or (ii) more than one release behind the currently shipping release. Arbor shall be permitted to subcontract any or all of its services or Support obligations under this Agreement to an affiliated company including, without limitation, NetScout Systems, Inc. in the United States.
7. Regulatory Compliance. You agree to comply strictly with all U.S. export control laws, including the U.S. Export Administration Act and Export Administration Regulations (“EAR”), and any additional laws or regulations now or hereafter in effect with respect to import, export and use restrictions which may be applicable to Your license and/or use of the Product. Product is prohibited for export or re-export to the list of U.S. embargoed countries or to any person or entity on the U.S. Department of Commerce Denied Persons List or on the U.S. Department of Treasury's lists of Specially Designated Nationals, Specially Designated Narcotics Traffickers or Specially Designated Terrorists. Your obligations under this Section shall be at Your own expense. You agree to cooperate with Arbor in any investigation, inspection, audit or enforcement of the government rights and regulations described herein. If Product is being shipped by Arbor, then it is exported from the U.S. in accordance with the EAR. Diversion contrary to U.S. law is prohibited. If You are licensing Product or its accompanying documentation on behalf of the U.S. Government, it is classified as “Commercial Computer Product” and “Commercial Computer Documentation” developed at private expense, contains confidential information and trade secrets of Arbor and its licensors, and is subject to “Restricted Rights” as that term is defined in the Federal Acquisition Regulations (“FARs”). Contractor/Manufacturer is: Arbor Networks, Inc., and its subsidiaries, 310 Littleton Road, Westford, MA 01886, USA. You shall indemnify, defend and hold harmless Arbor from and against any and all claims arising from Your failure to comply with this Section.
You acknowledge and agree that Arbor’s performance of its obligations under this Agreement will not require Arbor to process, transmit and/or store Your Personal Data (defined below) and/or Personal Data of Your customers, other than limited Personal Data with respect to the management of this Agreement and the Products provided hereunder. As used herein, “Personal Data” is defined as any information relating to an identified or identifiable natural person. You are responsible for Your Personal Data (including those of Your customers), and agree to take appropriate procedural, technical and organizational measures to protect against unlawful or unauthorized use of such Personal Data, and against accidental loss or destruction of, or damage to such Personal Data. By submitting Personal Data to Arbor, You agree that Arbor and its Affiliates and subcontractors may process, transmit and/or store Personal Data only to the extent necessary for, and for the sole purpose of, enabling Arbor to perform its obligations under this Agreement, or as may be required by law. Arbor will take appropriate procedural, technical and organizational measures to protect against unlawful or unauthorized use of Your Personal Data in Arbor’s possession, and against accidental loss or destruction of, or damage to Your Personal Data in Arbor’s possession. To the extent Arbor processes Personal Data for You and notwithstanding anything to the contrary set forth in this Agreement, Arbor’s only obligations and liability with respect to Your Personal Data shall be as set forth in the Data Processing Addendum (“DPA”) which is located at https://www.netscout.com/resources/gdpr which will govern the transfer, access and use of Personal Data and is incorporated herein by reference.
8. Feedback; Aggregate Data; Threat Intelligence
During the term of this Agreement, You may provide feedback (which may be oral or written) to Arbor, including on the functions, operation and utility of the Product, reports of any issues, bugs or service errors, feature suggestions and corrections to problems in the Product or any portion thereof (collectively, “Feedback”). You hereby agree that Feedback provided by You to Arbor becomes the property of, and upon creation, shall be deemed to be assigned to, Arbor and that Arbor may use or exploit the same without any accounting or payment to You. You will not include in Feedback any third party proprietary or confidential information.
Notwithstanding anything to the contrary set forth herein, Arbor may receive and use aggregated and/or anonymized data from the Product for Arbor’s business purposes, provided that Arbor shall not identify You to any unaffiliated third party as the source of such data. Upon creation, Arbor will be the owner of such aggregated and/or anonymized data and may copy, commingle and use, such data, in Arbor’s sole discretion, for any lawful purpose. You may disable or modify the export of aggregated product data through the Software’s settings menu as described in the user documentation, including the election to export data which has not been anonymized or in some circumstances the level of anonymization.
The Threat Intelligence (defined below) that may be provided as part of the Product shall not be used by You other than for Your own internal business purposes and shall not be used for any other purpose or provided to any other party without Arbor’s prior written consent. As used herein, “Threat Intelligence” shall mean information and policies developed by Arbor on tactics, techniques and procedures used by third parties to compromise a potential target. Notwithstanding anything to the contrary set forth herein, the Threat Intelligence provided to YOU as part of the Product is provided by Arbor on an “AS IS” basis and the Limited WARRANTY AND INDEMNITY will not apply with respect to Threat Intelligence.
9. Modifications to the Agreement. Notwithstanding anything to the contrary in this Agreement, Arbor may modify Sections 1-3 and 6-8 of this Agreement (including any referenced policies or terms) as they relate to the Services at any time by posting a revised version at www.netscout.com/arbor-cloud-supplemental-terms-and-conditions or www.netscout.com/managed-service-supplemental-terms-and-conditions and any successor site designated by Arbor. The modified terms will become effective upon posting. By continuing to use the Services after the effective date of any modification to this Agreement, you agree to be bound by the modified terms. It is Your responsibility to check the referenced site regularly for modifications to this Agreement.
10. General. This Agreement is made under the laws of the Commonwealth of Massachusetts, USA, excluding the choice of law and conflict of law provisions. You consent to the federal and state courts of Massachusetts as sole jurisdiction and venue for any litigation arising from or relating to this Agreement. This Agreement is the entire agreement between You and Arbor relating to Product and Services and supersedes all prior, contemporaneous and future communications, proposals and understandings with respect to its subject matter, as well as without limitation terms and conditions of any past, present or future purchase order. No modification to this Agreement is binding unless in writing and signed by a duly authorized representative of each party. The waiver or failure of either party to exercise any right provided for herein shall not be deemed a waiver of any further right hereunder. If any provision of this Agreement is held invalid, all other provisions shall continue in full force and effect. All licenses and rights granted hereunder shall terminate upon expiration of the term or Your breach of this Agreement. Neither party shall be liable for the failure to perform its obligations under this Agreement due to events beyond such party's reasonable control including, but not limited to, strikes, riots, wars, fire, acts of God or acts in compliance with any applicable law, regulation or order of any court or governmental body. Neither party may assign its rights, duties or obligations under this Agreement without the prior written consent of the other party and any attempt to do so shall be void; except to a successor by merger, acquisition or restructuring that assumes the rights and duties of this Agreement. The following sections survive termination or expiration of this Agreement: Proprietary Rights and Restrictions, Confidentiality, Limitations, Regulatory Compliance, and General. All Product shipments are FCA Shipping Point and title to machines shall pass upon shipment. (05-30-18)