A10 Lightning ADS Services Subscription Agreement
A10 NETWORKS, INC.
A10 LIGHTNING ADS
SUBSCRIPTION SERVICES AGREEMENT
THE TERMS AND CONDITIONS OF THIS A10 LIGHTNING ADS SUBSCRIPTION SERVICES AGREEMENT (“AGREEMENT”) GOVERN USE OF (INCLUDING PAYMENT FOR) A10 LIGHTNING ADS SERVICES AND RELATED DOCUMENTATION.
A10 is willing to license and allow access to Services to Provider only upon the condition that Provider accepts all the terms contained in this Agreement. If you are accepting the terms of this Agreement on behalf of a company or other legal entity, you represent and warrant that you have the authority to bind that company or other legal entity to the terms of this Agreement, and, in such event, “Provider” will refer to that company or other legal entity. If Provider does not accept all the terms of this Agreement, then A10 is unwilling to license or allow access of the Services to Provider, and Provider must cease using the Services.
1. Scope. This Agreement applies to the Provider’s access to and use of A10 Lightning ADS subscription services (“Service” or “Services”) identified in one or more ordering documents signed by the Parties, including any exhibits thereto (“Order” or “Orders”). Services also include Provider’s license to the associated software controller and software module licenses purchased in an Order, such software delivered in executable form (the “Software”). This Agreement and all Orders represent the Parties’ entire understanding regarding the Services and shall control over any different or additional terms of any purchase order or other non-A10 ordering document, and no terms included in any such purchase order or other non-A10 ordering document shall apply to the Services. In the event of a conflict between this Agreement and an Order, the terms of this Agreement shall control.
2. Grant of License To Use Services.
2.1 Production License. Conditioned upon Provider’s compliance with the terms and conditions of this Agreement, during the Term, A10 grants Provider a non-exclusive and non-transferable license during the Term for Provider to use the Services (including Software), solely for Provider’s internal business purposes, which may include providing hosting, application, service bureau, or software-as-a-service (SaaS) services to third parties (“Production License”).
2.2 Trial License. Notwithstanding the foregoing, if Provider has been provided a trial version of the Services and has not paid the fees, Provider’s license is limited to a Trial License, namely as follows: Conditioned upon Provider’s compliance with the terms and conditions of this Agreement, during the Trial Term, A10 grants Provider a non-exclusive and non-transferable license for Provider to use the Services (including Software), solely for Provider internal business purposes, solely in a non-production environment, solely for the purpose of evaluating whether Provider will purchase a production-environment use license, and solely during the Trial Term; the SERVICES MAY CONTAIN A DISABLING DEVICE THAT WILL PREVENT IT FROM BEING USED AFTER THE TRIAL PERIOD ENDS. PROVIDER AGREES NOT TO TAMPER WITH THE DISABLING DEVICE OR THE SERVICES. PROVIDER SHOULD TAKE PRECAUTIONS TO AVOID ANY LOSS OF DATA THAT MIGHT RESULT WHEN THE SERVICES CAN NO LONGER BE USED.
3. Services.
3.1 Access to Services. During the Subscription Term (as defined below), Provider may access and use the Services and may permit Users to access and use the Services, subject to the terms of the Agreement. User may only use and access the Services through an account provided by A10 to User (“Account”). If Provider is an entity with more than one employee or contractor needing access to the Services, a separate Account will be required for each User, i.e., each such individual employee or contractor. Provider may establish up to the number of Accounts set out in the Confirmation, and for each Account an individual shall establish a password in accordance with A10’s procedures. User shall maintaining the security of its passwords and shall be fully responsible for all Services accessed and transactions executed by every User Account, whether intended or otherwise. User shall immediately report to A10 any compromise of any Account, including any security breach with respect to any password or Account. “Users” means Provider's employees, agents or contractors who are authorized by Provider to use the Services on behalf of Provider; provided however that Provider is responsible for ensuring compliance with the terms of this Agreement by all its Users.
3.2 Usage Rights. The Services are provided by A10 from a data center facility(ies) to which Users may access remotely via the Internet.
3.3 Provider Equipment. Provider shall be solely responsible for obtaining and maintaining appropriate equipment and ancillary services needed to connect to, access or otherwise use the Services, including, without limitation, computers, computer operating system and web browser (collectively, "Equipment"). Provider shall ensure that Equipment complies with all configurations and specifications set forth in A10’s published documentation.
3.4 Provider Data. Provider will have sole responsibility for the accuracy, quality, integrity, reliability, and appropriateness of all Provider Data. “Provider Data” means all data, information and content that Provider uploads for storage or processing by the Services.
3.5 Services Configuration. The Services consist of configurable capabilities, such as load balancing, content switching, web application firewalling, application delivery optimization, and application traffic insights. While A10 may assist Provider or provide examples to Provider in configuring the capabilities, Provider is solely responsible for determining the appropriate configuration for each capability that it uses, and for the resulting operation and performance of the Services.
4. A10 OBLIGATIONS.
4.1 Provision of Purchased Services. A10 will (a) make the Services available to Provider pursuant to this Agreement and the applicable Order Forms at no additional charge, and/or upgraded support if purchased, (b) use commercially reasonable efforts to make the online Services available 24 hours a day, 7 days a week, except for: (i) planned downtime (of which A10 shall give advance electronic notice as provided in the Documentation), and (ii) any unavailability caused by circumstances beyond A10’s reasonable control, including, for example, an act of God, act of government, flood, fire, earthquake, civil unrest, act of terror, strike or other labor problem (other than one involving A10 employees), data center provider or Internet service provider failure or delay, or denial of service attack.
4.2 Protection of Provider Data. A10 will not use any Provider Data except as necessary to provide the Purchased Services or respond to requests from Provider. A10 will maintain administrative, physical, and technical safeguards for protection of the security, confidentiality and integrity of Provider Data, as described in the Documentation. Those safeguards will include, but will not be limited to, measures for preventing access, use, modification or disclosure of Provider Data by A10 personnel except (a) to provide the Purchased Services and prevent or address service or technical problems, (b) as compelled by law in accordance with Section 11.3 (“Compelled Disclosure”) below, or (c) as Provider expressly permit in writing.
4.3 A10 Personnel. A10 will be responsible for the performance of A10 personnel (including A10 employees and contractors) and their compliance with A10 obligations under this Agreement, except as otherwise specified herein.
4.4 Support and Maintenance. A10 will provide support for Provider’s use of the Services in accordance with A10’s then-standard support services description at www.a10networks.com/support website (“Support”) for the Subscription Term. A10 may update or modify the Services from time to time in its discretion; provided that A10 will not materially decrease the functionality of the Services. Support includes Maintenance Releases but not New Versions. “Maintenance Release” means any update or release of the Services that A10 may provide to the Provider when and if available during the Subscription Term, that may contain, among other things, error corrections, enhancements or other changes to the user interface, functionality, compatibility, capabilities, performance, efficiency or quality of the Services, but does not constitute a New Version. “New Version” means any new version of the Services that A10 may from time to time introduce and market generally as a distinct licensed product, and which A10 may make available to the Provider at an additional cost under a separate written agreement.
5. Suspension or Termination. A10 reserves the right to temporarily suspend or permanently terminate use of or access to the Services by Provider or User(s) in the event that (i) Provider or such User(s) violates, or is deemed by A10, in A10’s sole determination to be in violation of the terms of this Agreement, (ii) uses the Services in a manner that A10 reasonably believes will cause it liability, or (iii) A10 does not timely receive payment from the Provider or, as applicable, the channel partner, that purchased the Services from A10. Provider also remains responsible for paying Provider’s annual service fee if Provider’s Service is suspended as permitted herein.
6. Payment and Fees.
6.1 Fees and Taxes. Provider shall pay all fees set forth in an invoice. All fees are non-cancelable, nonrefundable and non-creditable, and quantities purchased cannot be decreased during the relevant subscription term. All fees are exclusive of taxes, levies, or duties imposed by taxing authorities, and Provider shall be responsible for payment of all such taxes, levies, or duties (excluding U.S. taxes based on A10’s income), even if such amounts are not listed in an invoice. The amounts payable under this Agreement do not include sales or use tax, goods and services tax or customs duties, withholding taxes or any similar taxes, duties and fees including state and local taxes, duties and fees (if applicable). If any such tax, duty or fee is applicable to the fees payable to A10, the payment due from Provider to A10 will be grossed up such that A10 will receive the fees payable as if no such tax or duty had been applied. Provider shall pay all fees in U.S. Dollars or in such other currency as agreed to in writing by A10.
6.2 Invoicing and Payment. Provider will receive invoices in advance of the applicable subscription term that are due in full. Provider’s invoice will include recurring charges, prorated charges/credits based on the install/disconnect date, administrative, and late payment charges, and any non-recurring charges. Applicable taxes and surcharges may be added if applicable. All amounts invoiced are due and payable within thirty (30) days of the date of invoice. Unpaid invoices that are not the subject of a written good faith dispute are subject to a finance charge of 1.5% per month on any outstanding balance, or the maximum permitted by law, whichever is lower, plus all reasonable expenses of collection.
6.3 Purchases through Channel Partners. If Provider purchases the Services from an A10 channel partner, then this Section 6 will not apply and payment and fees will be as agreed between Provider and such channel partner.
7. Rates.
7.1 Changes. A10 may change any rates, fees, expenses, or charges regarding Provider’s Services at any time. A10 will provide Provider with notice of material changes either in Provider’s invoice or separately.
IF A10 INCREASES THE PRICE OF ANY OF THE SERVICES TO WHICH PROVIDER SUBSCRIBES, BEYOND THE LIMITS SET FORTH IN PROVIDER’S ORDER, A10 WILL DISCLOSE THE CHANGES AT LEAST ONE BILLING CYCLE IN ADVANCE (EITHER THROUGH A NOTICE WITH PROVIDER’S BILL, EMAIL OR OTHERWISE), AND PROVIDER MAY TERMINATE THIS AGREEMENT WITHOUT PAYING AN EARLY TERMINATION FEE PROVIDED PROVIDER’S NOTICE OF TERMINATION IS DELIVERED TO A10 WITHIN THIRTY (30) DAYS AFTER THE FIRST NOTIFICATION REFLECTING THE CHANGE.
7.2 Charges. Provider is responsible for paying all charges for or resulting from Services provided under this Agreement, including, without limitation, recurring service, usage charges, activation fees that may apply to each optional service, overage charges, administrative, and late payment charges.
IF PROVIDER DISPUTES ANY CHARGES ON PROVIDER’S INVOICE, PROVIDER MUST NOTIFY A10 IN WRITING WITHIN 30 DAYS OF THE DATE OF THE INVOICE OR PROVIDER WILL HAVE WAIVED ITS RIGHT TO DISPUTE THE INVOICE AND TO PARTICIPATE IN ANY LEGAL ACTION RAISING SUCH DISPUTE.
7.3 Advance Payments And/Or Deposits. A10 may require Provider to make deposits or advance payments for Services, which A10 may offset against any unpaid balance on Provider’s account. Interest will not accrue on advance payments or deposits unless required by law. Based on Provider’s creditworthiness as A10 determines it, A10 may establish a credit limit and restrict Services or features. If Provider’s account balance goes beyond the limit A10 set for Provider, A10 may immediately interrupt or suspend Services until Provider’s outstanding balance is brought below the credit limit. Any charges Provider incurs in excess of Provider’s limit become immediately due. If Provider has more than one account with A10, Provider must keep all accounts in good standing to maintain Services. If one account is past due or over its limit or Provider’s accounts when aggregated are over its limit, all accounts in Provider’s name are subject to interruption or termination and all other available collection remedies.
8. Service Limitations.
8.1 Prohibited Uses Of Services.
8.1.1 Services are not intended to be used in any manner which has any of the following effects and such use is prohibited if it: (a) conflicts with applicable law, (b) hinders other customers’ access to the Services network, (c) compromises Services network security or capacity, (d) excessively and disproportionately contributes to network congestion, (e) adversely impacts network service levels or legitimate data flows, (f) degrades network performance, or (g) causes harm to the network or other customers.
8.1.2 The Services may not be used in any manner that: (i) defeats, obstructs or penetrates, or attempts to defeat, obstruct or penetrate the security measures of A10’s network or systems, or another entity’s network or systems; (ii) accesses, or attempts to access without authority, the accounts of others; or (iii) adversely affects the ability of other people or systems to use either A10’s services or other parties’ Internet-based resources. For example, this includes, but is not limited to, using malicious software or “malware” that is designed, intentionally or unintentionally, to infiltrate a network or computer system such as spyware, worms, Trojan horses, rootkits, and/or crimeware; attempting “denial of service” attacks against a network host or individual user; and sending “spam” or unsolicited commercial or bulk email (or activities that have the effect of facilitating unsolicited commercial email or unsolicited bulk e-mail).
8.1.3 Services may not be used in any manner that has the effect of excessively contributing to network congestion, or hindering other customers’ access to the network. For example, this includes, but is not limited to, using “auto-responders,” “cancel-bots,” or similar automated or manual routines that generate excessive amounts of traffic or that disrupt user groups or email use by others and software or other devices that maintain continuous active Internet connections when a connection would otherwise be idle or any “keep alive” functions, unless they adhere to A10 data retry requirements (as may be modified from time to time).
8.1.4 Provider will not use Services for any of the prohibited activities set forth in this Section 8.1.
8.2 A10’s Rights to Ensure Compliance. Provider agrees that A10 has the right to take any and all actions necessary to enforce this Section 8 if Provider uses Services in any manner that is prohibited, including, but not limited to, the following actions:
8.2.1 A10 may modify, without advance notice, the permitted and prohibited activities, and the optimization requirements for Services;
8.2.2 A10 may engage in any reasonable network management practice to enhance customer service, to reduce network congestion, to adapt to advances and changes in technology, and/or to respond to the availability of bandwidth;
8.2.3 A10 may reduce Provider’s data throughput speeds at any time or place if Provider’s data usage exceeds an applicable, identified usage threshold during any billing cycle.
8.2.4 A10 may interrupt, suspend, cancel or terminate Provider’s Services in accordance with Sections 5, 7 or 14.
8.3 Additional Provider Obligations. As a condition to A10 providing Provider with the Services, Provider acknowledges and agrees that it is responsible for each of the following:
8.3.1 Provider will ensure that all Users given access to the Services have the right to access the information and data made accessible to them by Provider through the Services.
8.3.2 Provider will (a) obtain all permissions, authorizations, licenses or approvals from each applicable data source as may be necessary or required to use and to provide the Provider Data to A10 in connection with the delivery of the Services and (b) comply with all applicable laws in its performance under this Agreement.
8.3.3 Provider will ensure that none of the Provider Data contains any viruses or similar contaminants.
8.4 Future Functionality. Provider agrees that its purchases are not contingent on the delivery of any future functionality or features, or dependent on any oral or written public comments made by A10 regarding future functionality or features.
9. License Restrictions. Except as expressly specified in this Agreement, Provider agrees not to do any of the following, notwithstanding the fair use doctrine or any statutory or common law provision that might otherwise permit any of the following (except to the extent applicable law makes any of the following prohibitions unenforceable or otherwise permits the recited acts notwithstanding the agreement not to perform them): (a) copy (except in the course of loading or installing) or modify the Services, including but not limited to adding new features or otherwise making adaptations that alter the functioning of the Services; (b) transfer, sublicense, sell, resell, lease, lend, rent or otherwise distribute or make the Services available to any third party; (c) make the functionality of the Services available to Users through any means except as expressly provided herein, including but not limited to by allowing the Services to be used as a file-sharing service; or (c) use the Services for purposes of competitive analysis of the Services, the development of a competing Services product or any other purpose that is to A10’s commercial disadvantage.
10. Trade Secrets. Provider acknowledges and agrees that portions of the Services, including but not limited to the underlying software that enables the Services and the specific design and structure of individual modules or programs, constitute or contain trade secrets of A10 and its licensors. Accordingly, Provider agrees not to disassemble, decompile or reverse engineer the Services, in whole or in part, or permit or authorize a third party to do so, except to the extent such activities are expressly permitted by law notwithstanding this prohibition. Further, Provider agrees not to publicly display or disclose to third parties the Services, or any portions thereof, including, but not limited to performance metrics.
11. CONFIDENTIALITY.
11.1 Definition of Confidential Information. “Confidential Information” means all 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. Provider Confidential Information includes Provider Data; A10 Confidential Information includes the Services and underlying software; and Confidential Information of each party includes the terms and conditions of this Agreement and all Order Forms (including pricing), 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 does not include any information that (i) is or becomes generally known to the public without breach of any obligation owed to the Disclosing Party, (ii) was known to the Receiving Party prior to its disclosure by the Disclosing Party without breach of any obligation owed to the Disclosing Party, (iii) is received from a third party without breach of any obligation owed to the Disclosing Party, or (iv) was independently developed by the Receiving Party.
11.2 Duty of Care. The Receiving Party will use the same degree of care that it uses to protect the confidentiality of its own confidential information of like kind (but not less than reasonable care) to (i) not use any Confidential Information of the Disclosing Party for any purpose outside the scope of this Agreement, and (ii) except as otherwise authorized by the Disclosing Party in writing, limit access to Confidential Information of the Disclosing Party to those of its and its affiliates’ employees and contractors who need that access for purposes consistent with this Agreement and who are subject to confidentiality obligations to the Receiving Party not materially less protective of the Confidential Information than those herein. Neither party will disclose the terms of this Agreement or any Order Form to any third party other than its affiliates, legal counsel and accountants without the other party’s prior written consent, provided that a party that makes any such disclosure to its affiliate, legal counsel or accountants will remain responsible for such affiliate’s, legal counsel’s or accountant’s compliance with this Section 11 (“Confidentiality”). Notwithstanding the foregoing, A10 may disclose the terms of this Agreement and any applicable Order Form to a subcontractor to the extent necessary to perform A10’s obligations to Provider under this Agreement, under terms of confidentiality materially as protective as set forth herein.
11.3 Compelled Disclosure. The Receiving Party may disclose Confidential Information of the Disclosing Party to the extent compelled by law to do so, provided the Receiving Party gives the Disclosing Party prior notice of the 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 complying and providing secure access to that Confidential Information.
12. OWNERSHIP. The Services are licensed, not sold. As between Provider and A10, all right, title, and interest in and to the Services, and any and all intellectual property rights therein, belong exclusively to A10. The Services are protected by United States patent, copyright and trade secret laws and international treaties. Provider will not delete or in any manner alter the copyright, trademark, and other proprietary rights notices or markings appearing on the Services as delivered to Provider. Nothing contained in this Agreement shall be construed as transferring any right, title, or interest in or to the Services and/or any intellectual property rights in the same to Provider, and except for the limited rights granted to Provider as expressly set forth herein, all such rights are reserved to A10.
13. Usage Information. A10 will collect remotely data with respect to Provider’s use of the Services and A10’s storage or processing of Provider Data, including but not limited to quantity of traffic, bandwidth used, and viability of the Services for A10’s use including but not limited to invoicing Provider, and providing Provider support and maintenance services (collectively, “Usage Information”). A10 will use reasonable methods to monitor and collect Usage Information to better optimize the operation of the network, and use such Usage Information and the know-how resulting from the provision of the Services to enhance, improve and provide the Services and new products and services
14. Term and Termination.
14.1 Term. The Agreement shall commence as of the date set forth in the first Order (“Commencement Date”) and, unless earlier terminated as set forth herein, shall remain in effect through the end of the term set forth in any current Order (“Subscription Term”). The term of this Agreement shall automatically renew for additional one-year terms (each a Subscription Term), unless terminated in accordance with this Section 14.
14.2 Termination for Convenience. Provider may terminate this Agreement for any or no reason prior to the end of the Subscription Term; provided however that all fees for the then-current Subscription Term are non-cancelable, nonrefundable and non-creditable. Termination will be effective upon A10’s receipt of (i) written notice of the request to terminate from Provider or the applicable channel partner at least thirty (30) days in advance written of the requested date of termination, and (ii) any other amounts owed from Provider or the applicable channel partner for Services provided through the date of termination.
14.3 Termination for Breach. In the event of a material breach by either Party of this Agreement or any Order, the non-breaching Party shall have the right to terminate the applicable Order or this Agreement, in such Party’s sole discretion, for cause if such breach has not been cured within thirty (30) days of written notice from the non-breaching Party specifying the breach in detail. A10 may immediately terminate Provider's password, account, and access to the Services if (i) Provider fails to make payment due within ten (10) business days after A10 has provided Provider with notice of such failure; or (ii) Provider violates Section 3, 5, 8.1, 8.3, 9, 10, 11 or 12 of this Agreement. Any suspension by A10 of the Services under the preceding sentence shall not relieve Provider of its payment obligations under the Agreement. If A10 terminates an Order for Provider's material breach, all fees set forth on such Order are immediately due and payable.
14.4 Termination for Insolvency. Either Party may terminate this Agreement immediately at its option if the other Party (i) ceases to do business in the normal course; (ii) becomes or is declared insolvent or bankrupt; (iii) is the subject of any proceeding related to its liquidation or insolvency (whether voluntary or involuntary) which is not dismissed within ninety (90) days; or (iv) makes an assignment for the benefit of creditors.
14.5 Effect of Termination
14.5.1 Provider Data. Upon any termination or expiration of an Order or this Agreement, Provider's right to access and use the Services covered by that Order or this Agreement, as applicable, shall terminate. Provider acknowledges and agrees that A10 has no obligation to retain Provider Data and that A10 may, in its sole discretion, and without notice to Provider, irretrievably delete and destroy Provider Data after the termination of the Agreement.
14.5.2 Services. The right to access the Service will automatically terminate upon termination or expiration of this Agreement or the applicable Order for any reason.
14.5.3 Survival. The following provisions will survive any expiration or termination of this Agreement: 5, 9, 10, 11, 12, 13, 14, 17 and 18.
15. Limited Warranty.
15.1 Warranty. A10 provides the Services using a commercially reasonable level of care.
15.2 Limitations. Except for the foregoing, the Services are provided “AS IS”. In no event does A10 warrant that the Services are error free or that Provider will be able to operate the Services without problems or interruptions. A10 does not warrant the following: (i) that the Services will meet Provider’s requirements, (ii) that the Services will operate in the combinations that Provider may select or configure, (iii) that the operation of the Services will be error-free or uninterrupted, or (iv) that all errors contained in the Services will be corrected. In addition, due to the continual development of new techniques for intruding upon and attacking networks, A10 does not warrant that the Services, or any equipment, system or network on which the Services are used, will be free of vulnerability to intrusion or attack.
15.3 Restrictions. This warranty does not apply if (a) the Services has been altered, except by A10 or its authorized representative, (b) the Services have not been used, installed, operated, or maintained in accordance with instructions supplied by A10, (c) the Services are licensed for trial, beta, evaluation, testing or demonstration purposes; or (d) Provider fails to notify A10 of any warranty deficiencies within 30 days from performance of the relevant Services or discovery of the relevant deficiency in the Services. This warranty also does not apply to (i) any temporary Software modules; and (ii) Services supplied by any third party.
15.4 DISCLAIMER. THE LIMITED WARRANTY SET FORTH IN SECTION 15.1 IS IN LIEU OF, AND, TO THE EXTENT ALLOWED BY APPLICABLE LAW, A10, ITS SUPPLIERS AND LICENSORS EXPRESSLY DISCLAIM, ALL OTHER WARRANTIES, REPRESENTATIONS AND CONDITIONS, EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO ANY IMPLIED WARRANTIES AND CONDITIONS OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT, SATISFACTORY QUALITY, NON-INTERFERENCE, ACCURACY OF INFORMATIONAL CONTENT, OR ARISING FROM A COURSE OF DEALING, LAW, USAGE, OR TRADE PRACTICE. TO THE EXTENT THAT ANY OF THE SAME CANNOT BE EXCLUDED, SUCH IMPLIED CONDITION, REPRESENTATION AND/OR WARRANTY IS LIMITED IN DURATION TO THE EXPRESS WARRANTY PERIOD REFERRED TO IN SECTION 15.1 ABOVE. NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED FROM A10 OR ELSEWHERE WILL CREATE ANY WARRANTY OR CONDITION NOT EXPRESSLY STATED IN THIS AGREEMENT. Further, A10 shall have no liability for any deterioration, degradation or loss in Services in any way attributable to connectivity or network access, any third party product, service or software or User’s configuration of the Services or its network. This disclaimer and exclusion shall apply even if the express warranty set forth above fails to serve its essential purpose.
16. A10 Indemnification.
16.1 Obligation. A10 agrees to defend or, at its option, settle, any third party claim, suit or proceeding ("Claim") brought against Provider alleging that the use of the Services or the Software by Provider in accordance with this Agreement infringes or misappropriates any intellectual property right of any third party. A10 will have sole control of the defense or settlement negotiations, and A10 agrees to pay, subject to the limitations set forth below, any final judgment entered against Provider, as a result of such infringement, in any such Claim defended by A10; provided that: (a) A10 is given prompt written notice of any such Claim and (b) Provider reasonably cooperates with A10, at A10’s expense, in such defense. Notwithstanding the foregoing, A10 shall have no obligation under this Section 16 or otherwise with respect to any Claims based upon (a) any use of the Services not in accordance with this Agreement; (b) any use of the Services in combination with other products, equipment, software or data not contemplated by this Agreement if such infringement would not have occurred absent such combination or use; or (c) any modification to the Services by anyone other than A10 if such infringement would not have occurred absent such modification.
16.2 Additional Remedies. If any portion of the Services become, or in A10’s opinion is likely to become, the subject of a Claim, A10 may, at its option: (a) procure for Provider the right to continue using the Services; (b) replace the Services with non-infringing Services which do not materially impair the functionality of the Services; (c) modify the Services so the Services are non-infringing; or (d) terminate this Agreement and refund any prepaid fees, and upon such termination, Provider will immediately cease all use of the Services.
16.3 Sole Remedy. This Section 16 states A10’s entire liability and Provider's sole and exclusive remedy with respect to alleged infringement of any intellectual property rights of any third party by the Services.
17. Provider Indemnification. Provider agrees to defend or, at its option, settle any Claims brought against A10 based on Provider Data, Provider’s breach of this Agreement, or Provider’s or Users’ use of the Services other than in compliance with this Agreement. Provider shall have sole control of the defense or settlement negotiations, and Provider agrees to pay, subject to the limitations set forth below, any final judgment entered against A10, as a result of such breach, in any such Claim defended by Provider; provided that: (a) Provider is given prompt written notice of any such Claim; and (b) A10 reasonably cooperates with Provider, at Provider’s expense, in such defense.
18. Limitation of Liability. A10’s TOTAL LIABILITY TO PROVIDER FROM ALL CAUSES OF ACTION AND UNDER ALL THEORIES OF LIABILITY WILL BE LIMITED TO THE AMOUNTS PAID TO A10 BY PROVIDER FOR THE SERVICES OR, IN THE EVENT THAT A10 HAS MADE THE SERVICES AVAILABLE TO CUSTOMER WITHOUT CHARGE, A10’s TOTAL LIABILITY WILL BE LIMITED TO $500. IN NO EVENT WILL A10 BE LIABLE TO PROVIDER FOR ANY SPECIAL, INCIDENTAL, EXEMPLARY OR PUNITIVE OR CONSEQUENTIAL DAMAGES (INCLUDING LOSS OF DATA, BUSINESS, PROFITS OR ABILITY TO EXECUTE) OR FOR THE COST OF PROCURING SUBSTITUTE PRODUCTS OR SERVICES, ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT OR THE EXECUTION OR PERFORMANCE OF THE SERVICES, WHETHER SUCH LIABILITY ARISES FROM ANY CLAIM BASED UPON CONTRACT, WARRANTY, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY OR OTHERWISE, AND WHETHER OR NOT A10 HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH LOSS OR DAMAGE. THE FOREGOING LIMITATIONS WILL SURVIVE AND APPLY EVEN IF ANY LIMITED REMEDY SPECIFIED IN THIS AGREEMENT IS FOUND TO HAVE FAILED OF ITS ESSENTIAL PURPOSE.
19. Miscellaneous
19.1 U.S. Government Customers. The Services qualify as “commercial items,” as that term is defined at Federal Acquisition Regulation (“FAR”) (48 C.F.R.) 2.101, “commercial computer software,” “commercial computer software documentation” or “technical data” as such terms are used in FAR 12.211 and FAR 12.212. Consistent with FAR 12.211, FAR 12.212 and DoD FAR Supp. 227.7102-1 through 227.7102-4 and 227.7202-1 through 227.7202-4, and notwithstanding any other FAR or other contractual clause to the contrary in any agreement into which the Agreement may be incorporated, Provider may provide to Government U.S. Government Customers or, if the Agreement is direct, U.S. Government Customer will acquire, the Services with only those rights set forth in the Agreement. Use of either the Services constitutes agreement by the U.S. Government Customer that the Services, Software and Documentation are “technical data,” “commercial computer software” or “commercial computer software documentation,” and constitutes acceptance of the rights and restrictions herein.
19.2 Compliance with Laws. Provider agrees to comply in all material respects with all applicable laws, rules, and regulations in connection with its activities under this Agreement.
19.3 Export Administration Act and Related Laws. The Services, underlying software and technology (hereafter referred to as Services and Technology) supplied by A10 under the Agreement are subject to export controls under the laws and regulations of the United States and any other applicable countries' laws and regulations. Provider shall be responsible for being knowledgeable as to all laws, regulations, and requirements regarding the export, re-export, transfer, diversion, release and/or import of the Services and Technology or data via the Services and any other A10 items (whether tangible or intangible, including without limitation commodities, software, technology, and technical data) that Provider may receive or access under this Agreement. Provider, at its cost, agrees to conduct all activities and obligations under this Agreement in conformity with such laws, regulations and requirements. In addition, Provider understands and agrees that the Services and Technology shall not, in the absence of authorization by United States and local law and regulations, as required, be used by or exported or re-exported to (i) any United States sanctioned or embargoed country, or to foreign nationals or residents of such countries; or (ii) any person, entity, organization or other party identified on the United States Department of Commerce's Denied Persons or Entity Lists, the United States Department of Treasury's Specially Designated Nationals or Blocked Persons Lists, or the Department of State's Debarred Parties List, as published and revised from time to time; (iii) any party engaged in nuclear, chemical/biological weapons or missile proliferation activities; or (iv) any party for use in the design, development, or production of rocket systems or unmanned air vehicles. Provider warrants and represents that it is not a person, entity, organization or other party identified on the United States Department of Commerce's Denied Persons or Entity List, the United States Department of Treasury's Specially Designated Nationals or Blocked Persons Lists, or the Department of State's Debarred Parties List, as published and revised from time to time.
19.4 Anti-Corruption. Provider agrees that Provider has not received or been offered any illegal or improper bribe, kickback, payment, gift, or thing of value from any of A10’s employees or agents in connection with this Agreement. Reasonable gifts and entertainment provided in the ordinary course of business do not violate the above restriction.
19.5 General. This Agreement will be governed by and construed in accordance with the laws of the State of California, without regard to or application of conflict of laws rules or principles. The United Nations Convention on Contracts for the International Sale of Goods will not apply. Provider may not assign or transfer this Agreement or any rights granted hereunder, by operation of law or otherwise, without A10’s prior written consent, and any attempt by Provider to do so, without such consent, will be void. A10 may assign or transfer this Agreement, by operation of law or otherwise, without Provider’s consent. Except as expressly set forth in this Agreement, the exercise by either Party of any of its remedies under this Agreement will be without prejudice to its other remedies under this Agreement or otherwise. All notices or approvals required or permitted under this Agreement will be in writing and delivered by confirmed facsimile transmission, by overnight delivery service, or by certified mail, and in each instance will be deemed given upon receipt. All notices or approvals will be sent to the addresses set forth in the applicable ordering document or invoice or to such other address as may be specified by either Party to the other in accordance with this section. The failure by either Party to enforce any provision of this Agreement will not constitute a waiver of future enforcement of that or any other provision. Any waiver, modification or amendment of any provision of this Agreement will be effective only if in writing and signed by authorized representatives of both Parties. If any provision of this Agreement is held to be unenforceable or invalid, that provision will be enforced to the maximum extent possible, and the other provisions will remain in full force and effect. This Agreement and all Order(s) are the complete and exclusive understanding and agreement between the Parties regarding its subject matter, and supersedes all proposals, understandings or communications between the Parties, oral or written, regarding its subject matter. Any terms or conditions contained in Provider’s purchase order or other ordering document that are inconsistent with or in addition to the terms and conditions of this Agreement are hereby rejected by A10 and will be deemed null. Except for payment obligations, neither Party will be liable for inadequate performance to the extent caused by a condition that was beyond the Party’s reasonable control (for example, natural disaster, act of war or terrorism, riot, labor condition, governmental action, and Internet disturbance). There are no third party beneficiaries to this Agreement. A10 may use third party contractors to perform some or all of A10’s obligations under this Agreement provided that A10 will be responsible for such performance.