Cumulus Networks(r)

End User Software License Agreement

These license terms, along with each Order Confirmation mutually executed by you (“Licensee”) 
and either Cumulus Networks, Inc. (“Cumulus”) or a reseller who is authorized by Cumulus to 
distribute Cumulus software to you (“Authorized Reseller”) are an agreement between Cumulus 
and you. These terms apply to the software with which they are distributed, including the 
media on which you received it, if any. The terms also apply to any Cumulus updates, 
supplements, and support services for the software that Cumulus may supply to you, unless 
other terms accompany those items. If so, those terms apply.

By using the software, you confirm that you have a valid Order Confirmation for every copy of 
the software that you use and that you accept these terms in connection with each copy. IF 
YOU DO NOT ACCEPT THESE TERMS, DO NOT USE THE SOFTWARE.  BY USING THE SOFTWARE, 
YOU ACCEPT AND AGREE TO ABIDE BY THIS SOFTWARE LICENSE AGREEMENT (“Agreement”).

EVALUATION, BETA, AND NFR LICENSES. If you receive a license to the Product that is identified 
by Cumulus as an Evaluation License or Beta License, then the following additional limitations 
apply to your license: unless otherwise authorized by Cumulus in writing, your use of the 
Product is (i) only permitted for a term of thirty days in an internal non-production environment 
(testing and evaluation only); and is (ii) limited to no more than five concurrent instances of the 
Product, solely running on hardware owned or solely controlled by you, unless otherwise 
authorized by Cumulus.  If you a receive a license to the Product that is identified by Cumulus as 
a Not-For-Resale (NFR) license, then the following additional limitations apply to your license: 
your use of the Product is (i) only permitted for one instance on hardware owned or solely 
controlled by you, while you are a partner in good standing under the applicable Cumulus 
partner program that made you eligible to receive the NFR license, (ii) limited to product 
demonstrations, tests, and training only (no production, information processing or 
infrastructure use allowed).  Notwithstanding anything to the contrary, Evaluation, Beta 
License, and NFR licensed Products are provided “AS-IS” without indemnification, support, or 
warranties of any kind, expressed or implied.  You assume all risk associated with any use of 
Evaluation, Beta License, and NFR licensed Products.

THIS AGREEMENT MAY ONLY BE SUPERSEDED BY A SEPARATE, SIGNED WRITTEN AGREEMENT 
WITH CUMULUS NETWORKS, INC. THAT EXPRESSLY REFERENCES AND SUPERSEDES THIS 
AGREEMENT (A “SUPERSEDING AGREEMENT”).

The parties agree as follows:

       1.         Definitions.
a. “Product” shall mean the executable version(s) of the networking software made available by 
Cumulus as explicitly defined in the Order Confirmation(s) (as defined in Section 3(a)) governed 
by this Agreement and as made available to Licensee, including all updates and new releases of 
the Product made available to Licensee under this Agreement and the applicable end-user 
documentation.
b. “Proprietary Information” means all inventions, algorithms, know-how and ideas and all 
other business, technical and financial information a party obtains from the other party if: a) 
identified as confidential or proprietary at or before disclosure, or b) a reasonable person 
would presume such information to be confidential given the content or circumstances of the 
disclosure.
c. “Proprietary Rights” shall mean patent rights, copyrights, trade secret rights, sui generis 
database rights and all other intellectual and industrial property rights of any sort.

       2.         License Grant.
a. Subject to full payment under Section 3 and to Licensee’s compliance with the other terms 
and conditions of this Agreement, Cumulus grants to Licensee, and only Licensee, under all 
Proprietary Rights of Cumulus, a limited, non-exclusive, fully paid-up license only to reproduce 
and internally use for Licensee’s benefit the Quantity of Purchased Licenses of the Product only 
for the applicable license term length, solely on the applicable switch silicon, and solely up to 
the maximum port speeds as specified in each Order Confirmation (as defined in Section 3(a)). 
b. The foregoing license does not allow any sublicense, distribution or disclosure of the Product 
to any third party and Licensee agrees that it will not engage in any such sublicensing, 
disclosure or distribution.
c. Licensee shall not (and shall not allow its personnel or any third party to): (i) modify or create 
derivative works of the Product; (ii) reverse engineer or attempt to discover any source code or 
underlying ideas or algorithms of the Product (except to the extent that applicable law prohibits 
reverse engineering restrictions), (iii) remove or alter any product identification, trademark, 
copyright or other notices embedded within or appearing within or on the Product; or (iv) 
publish or otherwise distribute the results of benchmarking or performance studies to third 
parties without prior written consent from Cumulus. Licensee shall be solely responsible for the 
observance and compliance with all terms and conditions hereunder by its employees, 
contractors, service providers and agents and any other third party who has been permitted 
access to the Product as a result of Licensee’s action or inaction. Licensee shall indemnify, hold 
harmless and defend Cumulus and its licensors from and against any claims or suits, including 
attorneys' fees and expenses, which arise or result from any unauthorized or illegal use or 
distribution of the Product.
d. The Product includes open source software packages (collectively, the “Open Source 
Software”).  Each open source software package included in the Product is made available to 
Licensee in accordance with its applicable open source software package license.  In the event 
of any conflict between an open source software package license and the text of this 
Agreement, the open source software package license shall control with respect to that specific 
open source package only.
e. The Product is governed by export laws, restrictions, and regulations of the United States. 
Licensee will not export or re-export, or allow the export or re-export of the Product in violation 
of any such laws, restrictions or regulations.
f. The Product (i) was developed at private expense and includes trade secrets and confidential 
information; (ii) is a Commercial Item consisting of Commercial Computer Software and 
Commercial Computer Software Documentation regulated under DFARS Section 227.7202 and 
FAR Section 12.212 and shall not be deemed to be  Noncommercial Computer Software or 
Noncommercial Computer Software Documentation under any provision of DFARS; and (iii) is 
NOT offered to US Government agencies under the Commercial Computer Software License set 
forth at FAR 52.227-19.  Consistent with 48 CFR 12.212 and 48 CFR 227.7202 as applicable, the 
Product is licensed to government end users solely as a Commercial Item and with only those 
rights as are granted to other end users under the terms of this Agreement.  This section 2(f) is 
in lieu of and supersedes any clause in the FAR, DFAR, or other FAR supplement 
clauses.  Unpublished rights reserved under the copyright laws of the United States.

      3. Price; Payment; Records.
a. During the term of this Agreement, Licensee may place requests for additional Purchased 
Licenses by submitting orders to either Cumulus or an Authorized Reseller.  Cumulus or the 
Authorized Reseller will respond with a formalized and accepted order confirming the number 
of Purchased Licenses, the License Term, the total price, and any taxes due (each such form, an 
“Order Confirmation”).  Each Order Confirmation is hereby incorporated into this Agreement in 
its entirety. Each Purchased License set forth on an Order Confirmation shall enable Licensee to 
create a single copy of the Product and use the copy of the Product in accordance with the 
License Grant set forth in Section 2.
b. During the term of this Agreement, Licensee shall be entitled to buy Purchased Licenses in 
accordance with the Order Confirmations delivered by Cumulus to Licensee (exclusive of taxes, 
if any).  Order Confirmations for additional licenses will incorporate an extension License Term 
for all existing Purchased Licenses under this agreement so that after the Order Confirmation, 
the License Term for all Purchased Licenses will end on the date that is the end of the period for 
the additional licenses being purchased.  Extension License Terms will be priced on a daily pro-
rata basis calculated as the Purchase License price set forth on the Order Confirmation divided 
by 365 for each day of extension. 

c. Licensee will pay to Cumulus (or an Authorized Reseller) all applicable fees set forth in each 
Order Confirmation (the “Fees”) within thirty (30) days of receipt of each Order Confirmation, 
or as otherwise agreed between Licensee and an Authorized Reseller. The applicable currency 
will be stated on the Order Confirmation; otherwise it is US dollars. Fees are not refundable. 
Unless explicitly identified as Taxes on the Order Confirmation, all amounts due are exclusive of 
taxes, withholding, duties, levies, tariffs, and other governmental charges (including without 
limitation VAT), excluding taxes on net income of Cumulus (collectively, “Taxes”), and Licensee 
is responsible for payment of all Taxes. The parties will reasonably cooperate to lawfully 
minimize Taxes.  In the event Licensee does not pay Cumulus or an Authorized Reseller any 
portion of the Fees when due, Licensee shall also pay Cumulus or the Authorized Reseller a late 
payment fee in the amount of 1.5% of the total amount outstanding per month for the period 
any such Fees are delinquent, unless otherwise agreed between Licensee and the Authorized 
Reseller. 

d.  During the Term of this Agreement and for one (1) year following its termination, Licensee 
will create and maintain records regarding Licensee’s use of the Product, which records shall 
include, without limitation, each installation of a copy of the Product and a unique identifier for 
the hardware where it is installed (collectively, "Records"). At the request of Cumulus, Licensee 
will promptly provide such Records to Cumulus for the purpose of verifying compliance with 
this Agreement. In the event that Licensee fails to create, maintain or deliver Records as 
required under this Section or in the event of any dispute as to the accuracy of such Records, 
Cumulus may audit Licensee’s use of the Product (e.g., via review of copies of applicable log 
files, etc.), at any location in which the Product is or has been installed or otherwise utilized by 
Licensee.

      4. Delivery and Support.
a. After delivery of the first Order Confirmation under this Agreement, Cumulus will promptly 
deliver to Licensee one copy of the Product in executable form.
b. Unless contractually or legally prohibited from doing so, Cumulus will provide Licensee at no 
cost with updates and new releases of the Product that it makes generally commercially 
available to Cumulus customers in connection with its lowest list price, provided Licensee has 
one or more Purchased Licenses that are in good standing under this Agreement.  

      5. Publicity; Agreement Disclosure; Trademarks.
a. Cumulus shall have the right to reference Licensee as a customer without disclosing the 
terms of this Agreement. Except as required by law or otherwise set forth in this Agreement, all 
public announcements regarding the terms of this Agreement shall be coordinated between 
Cumulus and Licensee by mutual agreement.
b. Except as otherwise specified herein, neither party may use any of the other party’s 
trademarks and service marks (“Marks”) except in accordance with written (including electronic 
communications) approval of the other party.  Licensee grants Cumulus a limited license to use 
Licensee’s Marks in accordance with Licensee’s Marks usage guidelines for the sole purpose of 
identifying Licensee as a customer.  The parties will not otherwise use or register (or make any 
filing with respect to) the other party’s Marks anywhere in the world.  Neither party will contest 
anywhere in the world the use by or authorization by the other party of any of such party’s 
Marks.  No other right or license with respect to any trademark, tradename, or other 
designation is granted under this Agreement.

       6. Prohibition Against Assignment. Neither this Agreement nor any rights, licenses or 
obligations hereunder, may be assigned by either party without the prior written approval of 
the non-assigning party; any prohibited purported assignment shall be void. Notwithstanding 
the foregoing, either party may assign this Agreement or delegate its rights and obligations to 
any acquirer of all or of substantially all of such party's assets or business or equity securities 
pertaining to the subject matter of this Agreement, provided however, that in the event of any 
such assignment, upon receipt of notice of assignment, the non-assigning party shall have a 
period of thirty days to terminate this Agreement upon written notice.

       7. Term of Agreement. The term of this Agreement shall run until expired as set forth in the  
last to expire of the valid electronic license file you receive from Cumulus or an Authorized 
Reseller (the “Initial Term”).  At the end of the then current Term (if such term expires), unless 
written notice of intention not to renew is delivered by one party to the other party on or 
before thirty (30) days before the end of the Term, the Agreement shall automatically renew 
for an additional one-year terms (each a “Renewal Term” and collectively with the “Initial 
Term” the “Term”).  This Agreement may be terminated if either party materially fails to 
perform or comply with this Agreement or any material provision hereof. Termination shall be 
effective thirty (30) days after notice of termination to the defaulting party if the defaults have 
not been cured within such thirty (30) day period.  

      8. Survival. Rights to payment, Sections 1, 2(b-e), 3(b), 6, 7, 8, 9, 10, 11, 12, 13 (b-d), and 14 
and, except as otherwise expressly provided herein, any right of action for breach of this 
Agreement prior to termination shall survive any termination of this Agreement.  In the event 
of termination for breach by Cumulus, all Purchased Licenses shall survive termination until the 
end of the applicable License Term.  In the event of termination for Licensee’s breach, all 
Purchased Licenses shall immediately terminate.

      9. Notices and Requests. All notices, consents, authorizations, and requests in connection 
with this Agreement shall be deemed given immediately after they are sent by air express 
courier, charges prepaid; and addressed with Attention to the Legal Department to the 
applicable address set forth in the most recent Order Confirmation governed by this Agreement 
or to such other address as the party to receive the notice or request so designates by written 
notice under this Section 9 to the other.

      10. Controlling Law; Attorney’s Fees. This Agreement shall be governed by and construed 
under the laws of the State of California and the United States without regard to its conflicts of 
laws provisions and without regard to UCITA or the United Nations Convention on Contracts for 
the International Sale of Goods. The sole jurisdiction and venue for actions related to the 
subject matter hereof shall be the California state and U.S. federal courts in Santa Clara County, 
California. Both parties consent to the jurisdiction and venue of such courts and agree that 
process may be served in the manner provided herein for giving of notices or otherwise as 
allowed by California or federal law.  The prevailing party in any dispute shall be entitled to 
recover its reasonable costs attorneys’ fees, and other expenses.

      11. Confidentiality
The pricing terms of this Agreement, the Product and underlying inventions, algorithms, know-
how and ideas are Cumulus Proprietary Information. Except as expressly and unambiguously 
allowed herein, Licensee will hold in confidence and not use or disclose any Proprietary 
Information and its employees and contractors will be similarly bound in writing.  Nothing 
herein shall permit the receiving party to disclose or use, except as explicitly permitted 
elsewhere in this Agreement, confidential information of the disclosing party and then only on 
an “as-needed” basis for purposes of this Agreement.  Upon any termination of this Agreement, 
Licensee will promptly return or destroy any Proprietary Information and any copies, extracts 
and derivatives thereof, except as otherwise set forth in this Agreement.  Additionally, Licensee 
will promptly delete any and all copies of the Product i) as soon as the applicable Purchased 
License expires with respect to that copy of the Product; and ii) prior to any distribution of 
hardware where the Product is installed to any third party, including a hardware reseller or 
manufacturer.  Each party acknowledges that its breach of this Section 11 would cause 
irreparable injury to the other for which monetary damages are not an adequate remedy. 
Accordingly, a party will be entitled to seek injunctions and other equitable remedies in the 
event of such a breach by the other.

      12. Limited Liability. EXCEPT AS OTHERWISE PROVIDED BELOW, AND NOTWITHSTANDING 
ANYTHING ELSE IN THIS AGREEMENT OR OTHERWISE, NEITHER PARTY SHALL BE LIABLE OR 
OBLIGATED UNDER ANY SECTION OF THIS AGREEMENT OR UNDER CONTRACT, NEGLIGENCE, 
STRICT LIABILITY OR OTHER LEGAL OR EQUITABLE THEORY (A) FOR ANY AMOUNTS IN EXCESS 
OF THE AGGREGATE OF THE LICENSE FEES PAID TO IT (IN THE CASE OF CUMULUS) OR (IN THE 
CASE OF LICENSEE) PAID OR OWED BY IT HEREUNDER, OR (B) ANY INCIDENTAL OR 
CONSEQUENTIAL DAMAGES, LOST PROFITS (EXCEPT AMOUNTS PAYABLE UNDER SECTION 3) OR 
LOST OR CORRUPTED DATA OR INTERRUPTED USE OR (C) COST OF PROCUREMENT OF 
SUBSTITUTE GOODS, TECHNOLOGY OR SERVICES. THE LIMITATIONS IN THIS SECTION 12 SHALL 
NOT APPLY TO BREACHES OF SECTIONS 2(b-e) AND 11 OR TO ACTIONS OF LICENSEE BEYOND 
THE SCOPE OF THE LICENSE GRANT HEREUNDER.

      13. Warranty.
a. Cumulus warrants to Licensee that the Product will be of good quality and developed using 
good workmanship in accordance with the highest professional standards. Licensee’s sole 
remedy for breach of this warranty or for product defects is its rights under Section 4(b). 
Cumulus makes no warranty regarding freedom from bugs or uninterrupted use.
 
b. The Product is not designed, intended, or certified for use in components or systems 
intended for the operation hazardous systems or applications (e.g. weapons, weapons systems, 
nuclear installations, means of mass transportation, aviation, life-support computers or 
equipment (including resuscitation equipment and surgical implants), pollution control, 
hazardous substances management, or for any other dangerous application) in which the 
failure of the Product could create a situation where personal injury or death may occur. 
Licensee understands that use of the Product in such applications is fully at the risk of Licensee, 
and Licensee hereby assumes all such risk.
c. EXCEPT AS EXPRESSLY SET FORTH ABOVE, CUMULUS MAKES NO WARRANTIES TO ANY 
PERSON OR ENTITY WITH RESPECT TO THE PRODUCT AND DISCLAIMS ALL IMPLIED 
WARRANTIES, INCLUDING WITHOUT LIMITATION WARRANTIES OF MERCHANTABILITY AND 
FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT.
d. EACH PARTY RECOGNIZES AND AGREES THAT THE WARRANTY DISCLAIMERS AND LIABILITY 
AND REMEDY LIMITATIONS IN THIS AGREEMENT ARE MATERIAL BARGAINED FOR BASES OF 
THIS AGREEMENT AND THAT THEY HAVE BEEN TAKEN INTO ACCOUNT AND REFLECTED IN 
DETERMINING THE CONSIDERATION TO BE GIVEN BY EACH PARTY UNDER THIS AGREEMENT 
AND IN THE DECISION BY EACH PARTY TO ENTER INTO THIS AGREEMENT.

      14. General. This Agreement constitutes the entire agreement between the parties with 
respect to the subject matter hereof and merges all prior and contemporaneous 
communications. It shall not be modified except by a written agreement dated subsequent to 
the date of this Agreement and signed on behalf of Licensee and Cumulus by their duly 
authorized representatives.  If any provision of this Agreement shall be held by a court of 
competent jurisdiction to be illegal, invalid or unenforceable, that provision shall be limited or 
eliminated to the minimum extent necessary so that this Agreement shall otherwise remain in 
full force and effect and enforceable.  No waiver of any breach of any provision of this 
Agreement shall constitute a waiver of any prior, concurrent or subsequent breach of the same 
or any other provisions hereof, and no waiver shall be effective unless made in writing and 
signed by an authorized represen­tative of the waiving party. 

EULA 2016.01.11	Cumulus Networks, Inc.
