Cumulus Networks®
End User Software License Agreement


These license terms, along with the Order Confirmation delivered to you
(“Licensee”) by 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 with respect to
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, NFR
licensed Products, and any Product (or portion thereof) identified by Cumulus
as Early Access 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 (the “License Term”), 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, any taxes due, and any additional terms and
conditions with respect to Purchased Licenses  (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).  If so specified in the
corresponding Order Confirmation, previously Purchased Licenses will terminate
immediately as set forth in such Order Confirmation and be replaced by new
Purchased Licenses (such replacement, the “Conversion”).  The terms applicable
to Conversions will be specified in the corresponding Order Confirmation and/or
a schedule describing the specifics of such Conversion (such schedule, the
“Conversion Notice”).
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.  Licensee may order support services from Cumulus as set forth in the
corresponding Order Confirmation, and subject to the payment by Licensee of the
applicable support fees.  Licensee acknowledges and agrees that Cumulus support
is subject to the terms and conditions set forth at the following URL:
https://cumulusnetworks.com/support/overview/ (the “Cumulus Support Program”).
c.  Unless contractually or legally prohibited from doing so, Cumulus will
provide Licensee updates and new releases of the Product that it makes
generally commercially available to Cumulus customers, provided Licensee has
one or more Purchased Licenses that are in good standing under this Agreement,
and Licensee has ordered and paid for the Cumulus Support Program as specified
in the corresponding Order Confirmation.

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 the end of the
last to expire License Term.  This Agreement will automatically terminate,
including the License grants in Section 2 if Licensee fails to comply with any
of the conditions in Section 2.  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.
