Saisei EULA

This is a license agreement (the “Agreement”) for the Saisei Traffic Manager (STM), owned by Saisei Networks, Inc. (“Saisei”). Please read this Agreement carefully. By enabling your users/subscribers to access and utilize the Saisei STM, you agree to these terms. If you do not agree to the terms of this Agreement, you may not, nor allow others to, install, access, or utilize the Saisei STM for any purpose. If the licensed materials have been provided to you for evaluation purposes (“Evaluation Materials”), the terms and conditions set forth below shall apply unless specific alternative terms are set forth for the Evaluation Materials.

2. Definitions

In this Agreement, the following definitions shall apply (in addition to those set forth in the body of this Agreement):

• “You” or “Your” means the party purchasing the Saisei STM subscription and utilizing the software capabilities.
• “Initial Term” means the initial subscription term specified in the order. Upon the conclusion of the Initial Term, this Agreement may be renewed for successive periods.
• “Licensed Materials” means the Saisei STM and all associated written or electronic documentation (“Documentation”) that is provided by Saisei to you for use in conjunction with the operation of the Saisei STM.
• “Order” means an order by you for a subscription license to the Saisei STM.
• “Saisei STM” means Saisei’s proprietary software appliance that runs on standard x86 hardware and enables flow-based network visibility, policy control, and advanced traffic engineering.

3. Orders; Fees

You shall place orders directly with Saisei or as directed by Saisei. No order will be binding unless acknowledged and accepted in writing or by e-mail by Saisei. The fees for licensing the licensed material shall be set forth in the order (the “Fees”), and do not include taxes. You assume the obligation for and shall pay when due all present and future taxes, excluding any taxes on or measured by Saisei’s net income. All fees are payable net thirty (30) days from the date of invoice, in U.S. dollars only.

4. License; Restrictions

In consideration of your payment to Saisei of the Fees, you are granted (for the term specified in the order), for your internal use only, a non-exclusive, non-transferable license, without the right to sublicense, to:

• (a) Allow the number of examiners (users/subscribers) specified in the order access and use of Saisei STM; and
• (b) Use the documentation.

All licensed materials under this Agreement are licensed and not sold and shall remain the sole and exclusive property of Saisei. Saisei reserves all other rights to the licensed materials and all intellectual property relating thereto not specifically licensed in this Agreement. You shall not sell, transfer, rent, copy, duplicate, reverse engineer, reverse compile, modify, or create derivative works of, tamper with, or grant any rights in licensed materials. You agree to the display of any copyright and trademark notices incorporated by Saisei. If the licensed materials have been provided to you as evaluation materials, such use shall be:

• (a) Limited to thirty (30) days from delivery (the “Evaluation Period”) for use on no more than two (2) systems, and
• (b) Evaluation materials may be used solely for your internal evaluation of the suitability of the evaluation materials and in no event for production use, unless otherwise agreed in writing.

You shall defend, indemnify, and hold harmless Saisei from all claims, damages, and losses, howsoever arising and whether direct, indirect, or consequential, including all legal fees and expenses, arising from claims brought by any third party relating to your use of the licensed materials.

5. Ownership

Unless otherwise expressly agreed to in writing by Saisei, all written materials, including programs, files, specifications, and documentation and any work product, patents, information, inventions, or copyrightable material that are produced by Saisei or any of its employees or consultants during the course of its performance hereunder or results from the performance of any services by Saisei shall be the sole property of Saisei. You are granted a license to use such material to the extent necessary to obtain the benefits contemplated by the license granted by this Agreement.

6. Warranties; Disclaimer

Saisei warrants that for the initial term (“Warranty Period”), the Saisei STM will conform in all material respects to the applicable specifications. If the Saisei STM does not meet Saisei’s warranty during the Warranty Period, Saisei will (at its option), as your sole and exclusive remedy:

• (a) Repair, replace or modify the Saisei STM so it will comply with the applicable warranty, or
• (b) Terminate that portion of the order that cannot be made compliant with applicable specifications and refund to you the pro-rated portion of unused fees of the Saisei STM within thirty (30) calendar days of the termination of the respective license.

Saisei warranties are for the benefit of you only and are void if the Saisei STM is used in violation of the applicable documentation or Saisei’s instructions. The foregoing warranties are in lieu of and exclude all other express and implied warranties, including but not limited to, warranties of merchantability, fitness for a particular purpose, error-free operation, or non-intrusion due to hacking or other similar means of unauthorized access. Notwithstanding the generality of the foregoing, however, evaluation materials are provided “as is” only, without warranties of any kind.

7. Limitation of Liability

Notwithstanding any provision of this Agreement to the contrary, in no event shall Saisei or its suppliers, officers, directors, employees, agents, shareholders, or contractors (“Related Parties”) be liable to you for consequential, incidental, special, punitive, or exemplary damages (including but not limited to lost revenues, profits, or data or other economic loss), or the cost of cover to procure substitute goods or services, regardless of the cause of action, even if advised of the possibility of such damages. In addition, the maximum liability of Saisei and its related parties, taken as a whole, for any and all claims in connection with this Agreement and the licensed materials, regardless of the form of action, shall in no circumstance exceed the fees paid to Saisei for the licensed materials, giving rise to the liability, or, for evaluation materials, $100.00 USD.

8. Termination

Either party may immediately terminate the order if the other party:

• (a) Fails to cure a material breach of these terms and conditions (provided such breach is capable of cure) within thirty (30) calendar days after its receipt of written notice regarding such breach;
• (b) Becomes insolvent or commits an affirmative act of insolvency or makes an assignment for the benefit of creditors or takes similar action;
• (c) Files a voluntary bankruptcy or similar petition or acquiesces to any involuntary bankruptcy or similar petition which is not dismissed within ninety (90) days; or
• (d) Is adjudicated bankrupt or to similar effect.

In the event of such termination, the non-defaulting party shall have no liability to the defaulting party in connection herewith, except that you shall pay Saisei the fees due pro-rata based on the term of the applicable order(s). All provisions of this Agreement that reasonably may be interpreted or construed as surviving termination of this Agreement shall survive the termination of this Agreement.

9. Confidentiality

As used in this Agreement, “Confidential Information” means all information of either party that is not generally known to the public, whether of a technical, business, or other nature (including, without limitation, trade secrets, know-how, and information relating to the technology, strategic partners, customers, business plans, promotional and marketing activities, finances, and other business affairs of such party), that is disclosed by one party to the other party or that is otherwise learned by the receiving party in the course of its discussions or business dealings with the disclosing party. Confidential Information of Saisei also includes the terms, conditions, and pricing of this Agreement. The obligations of either party herein shall not extend to any information that recipient can demonstrate through written documentation was already known to the recipient prior to its disclosure to the recipient, was or becomes known or generally available to the public (other than by act of the recipient), is disclosed or made available in writing to the recipient by a third party having a bona fide right to do so, is independently developed by recipient without the use of any Confidential Information, or is required to be disclosed by process of law, provided that the recipient shall notify the disclosing party promptly upon any request or demand for such disclosure.

10. Human Rights Compliance

(A) You and your employees, contractors, subcontractors, personnel, or any other person you authorize or permit to use the licensed materials under the order must not engage in any conduct, and must not use the licensed materials in any way, which is inconsistent with internationally recognized human rights, including as outlined in:

• (1) The United Nations’ Guiding Principles on Business and Human Rights
• (2) The Guiding Principles on Government Use of Surveillance Technologies as published by the Australian Department of Foreign Affairs and Trade, and
• (3) The Voluntary Principles on Security and Human Rights (accessible at www.voluntaryprinciples.org).

In the event of any ambiguity, discrepancy, or inconsistency in or between those documents, the highest standard applies.

(B) The requirements of Clause 10(A) apply regardless of whether you:

• (I) Are a member of the publishing organization,
• (II) Have any operations in the jurisdiction where those principles or guidelines are published, or
• (III) Are otherwise bound by those principles or guidelines.

(C) You must ensure that you have reasonable policies and processes in place to ensure compliance with Clause 10(A) at and in all of your operations and supply chains.

(D) You must immediately notify Saisei upon, and in any event no later than five (5) days after, becoming aware of any actual or suspected breach of Clause 10(A).

(E) Despite any provision in this Agreement to the contrary, Saisei may, in its absolute discretion, terminate the order with immediate effect in the event that it believes, on reasonable grounds, that you have used or permitted the use of the licensed materials in breach of Clause 10(A).

(F) Without limiting the generality of Clause 10(E), Saisei will be deemed to have acted reasonably in terminating the order under Clause 10(E) if Saisei becomes listed or is threatened to be listed on any trade blacklist maintained by a government or government organization (for example, the Entity List maintained by the United States Bureau of Industry and Security) because of its provision of the licensed materials to you.

(G) You shall defend, indemnify, and hold harmless Saisei from all claims, damages, and losses, that arise from or are otherwise related to or connected with your breach of Clause 10(A), howsoever arising and whether direct, indirect, or consequential, including all legal fees and expenses.

11. Amendment

This Agreement may be changed only in writing signed by Saisei and you, and no effects shall be given to terms set forth in any purchase order, confirmation, or similar document provided by you to Saisei.

12. Miscellaneous

(A) You agree that you will not use, distribute, transfer, or transmit the licensed materials or Confidential Information in violation of U.S. export regulations.

(B) This Agreement shall be governed by the laws of the State of California, U.S.A., excluding:

• (I) Its conflicts of laws principles;
• (II) The United Nations Convention on Contracts for the International Sale of Goods; and
• (III) The Uniform Computer Information Transactions Act (UCITA) as adopted by any state.

(C) Neither party may assign any of its rights or delegate any of its obligations under this Agreement without the prior written consent of the other party (which consent shall not be unreasonably withheld), except either party may assign its rights or delegate its duties under this Agreement to the surviving entity in a merger or consolidation or to a purchaser of all or substantially all the assets of its business. Any assignment or delegation in contravention of this provision shall be null and void. All the terms and provisions of this Agreement will be binding upon and inure to the benefit of and be enforceable by the parties and their respective successors and permitted assigns. Nothing in the foregoing shall be deemed to prevent Saisei from using subcontractors in meeting its obligations hereunder.

(D) The failure by either party hereto at any time to require performance by the other party or to claim a breach of any provision of this Agreement shall not be construed as affecting any subsequent right to require the performance or to claim a breach with respect thereto.

(E) The provisions of this Agreement shall not be construed to establish any form of partnership, agency, or other joint venture of any kind between you and Saisei, or to constitute either party as the agent, employee, or legal representative of the other.

(F) If the performance by a party of any of its obligations under this Agreement (other than payment obligations) shall be interfered with by reason of any circumstances beyond the reasonable control of that party, including without limitation, fire, explosion, acts of God, war, revolution, terrorism, civil commotion, unavailability of supplies, or sources of energy or telecommunications, power failure, breakdown of machinery, labor strikes, slowdowns, picketing, or boycotts, or governmental/administrative restrictions on the importation or exportation of products, then that party shall be excused from such performance while such circumstances exist.

(G) Any provision of this Agreement that is unenforceable shall not cause any other remaining provision to be ineffective or invalid.

(H) In the event a dispute between the parties hereunder with respect to this Agreement, the prevailing party shall be entitled to receive reimbursement for all associated reasonable costs and expenses (including, without limitation, attorneys’ fees).

(I) The licensed materials are “commercial computer software” or “commercial computer software documentation.” Absent a written agreement to the contrary, the U.S. government’s rights with respect to such licensed materials are limited by the terms of this Agreement, pursuant to FAR § 12.212(a) and/or DFARS § 227.7202-1(a), as applicable.