NSFOCUS Web Application Firewall (WAF)(BYOL)

END USER LICENSE AND SERVICES AGREEMENT

BY CLICKING ON THE "ACCEPT" BUTTON, TAKING AN ACTION TO INDICATE
ACCEPTANCE, OR USING THE PRODUCTS (AS DEFINED BELOW) END USER AGREES TO
THE TERMS OF THIS END USER LICENSE AND SERVICES AGREEMENT ("AGREEMENT")
WITH NSFOCUS, INC. ("NSFOCUS"). IN THE EVENT THE INDIVIDUAL IS ENTERING
INTO THIS AGREEMENT ON BEHALF OF A CORPORATE OR OTHER PUBLIC OR PRIVATE
ENTITY, END USER REFERS TO THAT ENTITY, AND SUCH INDIVIDUAL CERTIFIES
THAT HE/SHE IS AN AUTHORIZED REPRESENTATIVE OF THE END USER. IF END USER
DOES NOT AGREE TO ALL OF THE TERMS OF THIS AGREEMENT, CLICK THE "CANCEL"
BUTTON, DISCONTINUE THE SET-UP AND INSTALLATION OR DISCONTINUE USE OF
THE PRODUCT. IF THE TERMS OF THE AGREEMENT ARE CONSIDERED AN OFFER,
ACCEPTANCE IS EXPRESSLY LIMITED TO THESE TERMS.

1. *Definitions.* The following capitalized terms shall have the
meanings set forth below:
1. *"Appliance"* means the NSFOCUS branded computer hardware on
which the Software operates.
2. *"Delivery"* shall mean, (i) in the case of Software, when the
Software is made available by NSFOCUS for End User to
electronically download; (ii) in the case of Subscription
Services, when the Subscription Service has been provisioned and
made available to End User to access; and (iii) in the case of
an Appliance, when the Appliance has been tendered by NSFOCUS
for shipment.
3. *"Documentation"* means NSFOCUS's technical specifications that
accompany and describe the installation, use and operation of a
Product.
4. *"End User"* means the party that has purchased the Products for
its own use, either directly from NSFOCUS or through an
authorized third party.
5. *"Licensed Volume"* means the volume or other measurement of
permitted use for the Products as agreed to by NSFOCUS.
6. *"Open Source Software"* means third party software that NSFOCUS
distributes with the Software pursuant to a license that
requires, as a condition of use, modification and/or
distribution of such software, that the software or other
software combined and/or distributed with it be (i) disclosed or
distributed in source code form; (ii) licensed for the purpose
of making derivative works; or (iii) redistributable at no charge.
7. *"Products"* mean Appliances, Software or Subscription Services,
as the case may be.
8. *"Services"* mean Professional Services or Support, as the case
may be.
9. *"Software"* means NSFOCUS's or its licensors' software (in
object code format) or content, any updates or upgrades thereto
provided to End User by NSFOCUS and any Documentation pertaining
thereto. Software may be delivered to End User on Appliances or
on a standalone basis. The term "Software" does not include Open
Source Software.
10. *"Subscription Services"* mean the subscription services,
including content, updates and upgrades thereto, that may be
made available to End User by NSFOCUS directly or through its
resellers and suppliers. Subscription Services include, without
limitation, the NTI services, the Cloud DPS services and
the WVSS cloud services.
11. *"Support"* means the technical support and maintenance services
for the Product and periodic bug fixes and updates to the
Software that NSFOCUS may make generally available at an annual
subscription cost to end users.
12. *"Professional Services"* mean the installation, configuration,
and training services that NSFOCUS may provide to an End User.
2. *Licenses and Restrictions. *
1. *Software.* Conditioned on the terms and conditions of this
Agreement, NSFOCUS grants End User a perpetual (subject to
Section 11 and any term license restrictions or applicable
subscription period), nonexclusive, nontransferable,
nonsublicensable license to use the Software in accordance with
its Documentation only for End User's internal business purposes
on the Appliances or in the Licensed Volume licensed by End
User. If End User purchases Software on a standalone basis, the
license granted herein shall include the right to copy the
Software up to the Licensed Volume.
2. *Subscription Services.* Conditioned on the terms and conditions
of this Agreement and for the applicable subscription period,
NSFOCUS grants End User a nonexclusive, nontransferable,
nonsublicensable, revocable right to use and access the
Subscription Services in accordance with its Documentation only
for End User's internal business purposes.
3. *Restrictions.* End User may not (and may not permit any third
party to): (i) modify, incorporate or use in any other works,
translate, reverse engineer (except to the limited extent
applicable statutory law expressly prohibits reverse engineering
restrictions), decompile, disassemble, otherwise attempt to
derive source code from or create derivative works based on the
Products; (ii) make unauthorized copies of the Products; (iii)
disclose, distribute, transfer or market the Products to third
parties; (iv) remove or modify any proprietary notices, labels
or marks on or in any copy of the Products; (v) distribute,
sell, sublicense, rent, lease or use the Products (or any
portion thereof) for time sharing, hosting, service provider or
other computer services to third parties or otherwise make the
functionality of the Software available to third parties; (vi)
publicly disseminate reports generated by the Products or
Product performance information or analysis (including, without
limitation, benchmarks and performance tests) from any source
relating to the Products; (vii) use the Products or reports
generated by the Products in End User's products or services or
in its marketing of products or services to third parties;
(viii) access the database or any other third party product that
is embedded in the Software with applications other than the
Software; or (ix) use the Products other than as permitted
herein. Notwithstanding anything to the contrary in this
Agreement, End User may allow a third party to use the Products
for the internal business purposes of End User, provided that
such party is subject to the license terms and restrictions on
use of the Products and the confidentiality provisions set forth
in this Agreement. End User shall be responsible for the acts or
omissions of such party as if such acts or omissions were
committed by End User.
4. *Appliance.* End User acknowledges that the Software included
with the Appliance is licensed and not sold. Such Software is
licensed solely in conjunction with such Appliance (and not
separately or apart from such Appliance). If End User sells,
leases, lends, rents, distributes or otherwise transfers any
Appliance to any third party or if NSFOCUS terminates this
Agreement under Section 11.b or for a breach of Section 2.c,
then End User will erase all Software from such Appliance. If
End User enters into a subscription or term agreement for the
use of Appliances, all right, title and interest in such
Appliances will remain with NSFOCUS and the Appliances must be
returned at the end of the subscription period of term. End User
must keep such Appliances free from liens, shall be responsible
for any damage to such Appliances during the term, reasonable
wear and tear excepted, and shall carry a policy of fire and
extended coverage (all risks), in an amount equal to the full
replacement value of such Appliances.
5. *Open Source Software.* Open Source Software is copyrighted and
licensed under the GPL/LGPL and other licenses. Copies of or
references to those licenses are included with Software in the
"Help" section. If delivery of source code is required by the
applicable license, End User may obtain the complete
corresponding Open Source Software source code for a period of
three years after NSFOCUS's last shipment of the Software, by
sending a request to: Legal Department - Open Source Software
Request, NSFOCUS, Inc., 33979 Freedom Circle, Suite 900
Santa Clara, CA 95054, United States.
6. *US Government End User.* For purposes of this Agreement,
"commercial computer software" is defined at FAR 2.101. If
acquired by or on behalf of a civilian agency, the U.S.
Government acquires this commercial computer software and/or
commercial computer software documentation and other technical
data subject to the terms of the Agreement as specified in 48
C.F.R. 12.212 (Computer Software) and 12.211 (Technical Data) of
the Federal Acquisition Regulation ("FAR") and its successors.
If acquired by or on behalf of any agency within the Department
of Defense ("DOD"), the U.S. Government acquires this commercial
computer software and/or commercial computer software
documentation subject to the terms of the Agreement as specified
in 48 C.F.R. 227.7202-3 of the DOD FAR Supplement ("DFARS") and
its successors. This U.S. Government End User Section 2(f) is in
lieu of, and supersedes, any other FAR, DFARS, or other clause
or provision that addresses government rights in computer
software or technical data.
3. *Support and Subscription Services.* Provided End User has an active
and fully paid contract for Support, NSFOCUS will provide Support in
accordance with its standard Support terms then in effect.
Subscription licenses for Software include Support. Provided End
User has an active and fully paid contract for Subscription
Services, NSFOCUS will provide such Subscription Services in
accordance with the applicable standard Service Level Agreement
(SLA) then in effect.
4. *Additional Terms for Subscription Services.*
1. *Accessing and Use of Subscription Services.* Except as
explicitly set forth herein, End User is solely responsible for
acquiring and maintaining all of the equipment, software,
services and items necessary to access and make use of the
Subscription Services, including without limitation paying all
fees, charges, taxes, and other costs related to internet access
and for configuration changes that may be required to route
activity to the Products. End User may access the Subscription
Services only through the interfaces and protocols provided or
authorized by NSFOCUS and its partners, and agrees to set up,
maintain and use the Subscription Services in strict compliance
with NSFOCUS's and its partners' instructions. End User is
solely responsible for maintaining the confidentiality of any
passwords and account information required to access
Subscription Services, for all acts that occur in connection
with End User's account and to immediately notify NSFOCUS of any
unauthorized use of End User's account. In the event of
expiration or termination of any Subscription Services that
require DNS routing, End User will be solely responsible for
rerouting its DNS traffic and NSFOCUS, its partners and
suppliers shall have no liability for End User's failure to do so.
2. *Authorization. * Certain Subscription Services are offered to
cache, monitor and optimize web pages and web sites. As such,
End User hereby grants NSFOCUS and its partners a nonexclusive,
worldwide, fully paid-up, royalty-free license to use, transfer,
display, minimize and compress the content and material on End
User web sites ("*End User Content*"), in any media formats,
solely as necessary for the performance of the Subscription
Services. NSFOCUS and its partners do not store or provide
backup services for End User Content, and if End User's use of
the Subscription Services terminates for any reason, NSFOCUS and
its partners may, without notice, delete or deny End User access
to any of content or meta data that may remain in its/their
possession or control. In addition, End User agrees that if, at
NSFOCUS's and its partners' sole determination, End User is
using the Subscription Services in a manner that violates laws,
rules or regulations or creates an excessive burden or potential
adverse impact on NSFOCUS's, its partners' or its suppliers'
systems, business or customers, NSFOCUS, its partners or its
suppliers may suspend or terminate End User's access to the
Subscription Services without notice to or liability to End User.
5. *Professional Services.* Professional Services, if any, to be
provided by NSFOCUS to an End User will be subject to a separate
statement of work ("*SOW*") agreed to by NSFOCUS and NSFOCUS's
standard Professional Services terms then in effect.
6. *Fees, Payment Terms, Shipment and Delivery. *
1. For orders accepted directly by NSFOCUS, End User shall pay
NSFOCUS the applicable fees designated by NSFOCUS. Overage fees
may apply and be due to NSFOCUS or an NSFOCUS reseller if End
User exceeds its allowance for any Subscription Services at
NSFOCUS's then-current overage rates. Any fees payable to
NSFOCUS are non-refundable and payable in US Dollars. End User
shall also pay all sales, use, value-added and other taxes,
tariffs and duties of any type assessed against End User, except
for taxes based on NSFOCUS's income. Should End User be required
under any law or regulation of any governmental entity or
authority outside of the United States, to withhold or deduct
any portion of the payments due to NSFOCUS, then End User shall
increase the sum payable to NSFOCUS by the amount necessary to
yield to NSFOCUS an amount equal to the sum it would have
received had no withholdings or deductions been made. Fees shall
be invoiced as follows: (a) fees for all Subscription Services,
subscription licenses for Software and Support shall be invoiced
at the time of the initial order and in advance of each renewal
period; (b) fees for other Software licenses and Appliance
purchases will be invoiced upon Delivery. All payments from End
User to NSFOCUS are due net thirty (30) days after the date of
invoice. If End User's account for Subscription Services or
Support is thirty (30) days or more overdue, in addition to any
of its other rights or remedies, NSFOCUS reserves the right to
suspend such services to End User, without liability to End
User, until such amounts are paid in full. NSFOCUS shall have
the right to conduct and/or direct an independent accounting
firm to conduct, during normal business hours, an audit of End
User's facilities, computers and records to confirm End User's
use of Products is in compliance with this Agreement. End User
shall provide reasonable cooperation with any such audit.
2. NSFOCUS will use commercially reasonable efforts to ship the
Appliances and the Software license keys at the times requested
in Orders (in partial or full shipments); provided, however,
that NSFOCUS shall in no event be liable for any delay in
Delivery or for failure to give notice of delay. Without
liability to any person and without prejudice to any other
remedy, NSFOCUS may withhold or delay shipment of any Order if
End User is late in payment or is otherwise in default under
this Agreement. Title to purchased Appliances and risk of loss
shall pass to End User upon Delivery, and Products shall be
deemed accepted by End User upon Delivery. End User may specify shipping
instructions with the Order. In the absence of specific shipping
instructions from End User, NSFOCUS will ship by the method it
deems most advantageous. End User shall pay and be exclusively
liable for all costs associated with shipping and delivery
including without limitation, freight, shipping, customs charges
and expenses, cost of special packaging or handling and
insurance premiums incurred by NSFOCUS in connection with the
shipment of Appliances to End User. In its discretion, NSFOCUS
may advance shipping charges on behalf of End User on Appliances
shipped to End User, and End User agrees to reimburse NSFOCUS
for any such advanced charges and expenses.
3. If End User enters into a subscription or term agreement for
Appliances, NSFOCUS will pay the shipping and insurance costs
and End User will pay customs charges and expenses and costs of
special packaging or expedited shipping requested by End User.
End User shall return such Appliance within fifteen (15) days
after the end of the applicable term or be charged for the
Appliances at NSFOCUS's then-current prices.
7. *Confidentiality.*
1. As used herein, "*Confidential Information*" means all
confidential and proprietary information of a party
("*Disclosing Party*") disclosed 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. Confidential Information includes,
without limitation, the Products, their performance (including
any benchmarking information) and NSFOCUS's pricing of the
Products and Services. Confidential Information shall 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) was independently
developed by the Receiving Party without breach of any
obligation owed to the Disclosing Party; or (iv) is received
from a third party without breach of any obligation owed to the
Disclosing Party.
2. The Receiving Party agrees that it will (i) use Confidential
Information for the sole purpose of exercising its rights and
performing its obligations under this Agreement, (ii) divulge
Confidential Information only to those of its employees,
directors, independent consultants or agents who have a need to
know such Confidential Information and who are bound by
professional duty or in writing (in advance) to confidentiality
and non-use obligations at least as protective of such
information as this Agreement, and (iii) not disclose any
Confidential Information to any third party. The Receiving Party
shall notify and cooperate with the Disclosing Party immediately
upon discovery of any unauthorized use or disclosure of
Confidential Information of the Disclosing Party. The Receiving
Party may disclose Confidential Information to comply with an
order from a court of competent jurisdiction or with a mandatory
requirement of a governing regulatory body, provided such party,
to the extent permitted by law and as soon as reasonably
practicable under the circumstances, informs the Disclosing
Party and allows the Disclosing Party the opportunity to object
to the disclosure order or to take action to preserve the
confidentiality of the information. The Receiving Party shall
cooperate with the Disclosing Party in such party's reasonable
efforts to limit the disclosure of the information. End User
acknowledges, understands and agrees that NSFOCUS may, as part
of its provision of the Product and/or Services to End User,
collect, store and use information obtained from End User,
including, but not limited to, information about End User's
users and customers ("*Information*") for the purposes of the
provision of the Product, Services and other services to End
User and may use such information for analysis and improvement
of NSFOCUS's products and services. End User represents and
warrants that it has all rights and permissions necessary to
transfer such Information and grant NSFOCUS access to such
Information as contemplated herein.
3. Upon termination of this Agreement for any or no reason, the
Receiving Party shall (i) immediately cease all use of the
Disclosing Party's Confidential Information, (ii) at the
instruction of the Disclosing Party, either promptly destroy all
Confidential Information of the Disclosing Party or return all
Confidential Information of the Disclosing Party; provided,
however that the Receiving Party may retain a reasonable number
of copies of the Confidential Information (and any materials
embedding the same) for the sole purposes of satisfying legal or
regulatory requirements regarding record and data retention that
the Receiving Party is obligated to comply with, enforcing this
Agreement and/or archiving consistent with good business
practices. For the avoidance of doubt, such copies remain
subject to the confidentiality and restricted use provisions of
this Agreement.
4. If the Receiving Party discloses or uses (or threatens to
disclose or use) any Confidential Information of the Disclosing
Party in breach of this Section 7, the Disclosing Party shall
have the right, in addition to any other remedies available to
it, to seek injunctive relief to enjoin such acts, it being
specifically acknowledged by the parties that any other
available remedies are inadequate.
8. *Proprietary Rights; Indemnity.*
1. All title and intellectual property rights in and to the
Products are owned exclusively by NSFOCUS and its partners and
suppliers. Other than as expressly set forth in this Agreement,
no license or other rights in or to the Products and
intellectual property rights thereto are granted to End User,
and all such licenses and rights are hereby expressly reserved.
Any ideas, suggestions, modifications and the like made by End
User with respect to a Product will be the property of NSFOCUS
regardless of whether NSFOCUS chooses to exercise its rights to
incorporate such ideas, suggestions or modifications into the
Product.
2. Subject to the remainder of this Section 8.b, NSFOCUS will
indemnify End User from any Liability (as defined below) to a
third party resulting from infringement of a U.S. patent or any
copyright, or misappropriation of any third party trade secrets
by the Product as delivered ("*Infringement Claim*"); provided
that End User (1) promptly notifies NSFOCUS of any and all
threats, claims and proceedings of such Infringement Claim, (2)
gives reasonable assistance in response to NSFOCUS's request for
assistance, and (3) grants NSFOCUS sole control over defense and
settlement thereof. For purposes of this section "Liability"
means the resulting costs (including reasonable attorneys' fees)
and damages awarded against End User to the third party making
such Infringement Claim, by a court of competent jurisdiction or
agreed in settlement. The foregoing obligations do not apply
with respect to Products or portions or components thereof, (i)
that are modified after delivery by NSFOCUS, (ii) combined with
other products, processes or materials, where the alleged
infringement relates to such combination, (iii) where End User
continues allegedly infringing activity after being notified
thereof or modifications that would have avoided the alleged
infringement have been made available to End User, or (iv) where
End User's use of such Product is not strictly in accordance
with this Agreement. In the event that Products are held to or
believed by NSFOCUS to infringe, NSFOCUS at its discretion, will
have the option to (A) modify the allegedly infringing Products
to be non-infringing, (B) obtain for End User a license to
continue using the Products, or (C) request the return of the
Product and upon receipt thereof terminate this Agreement as to
the infringing Product and refund to End User the unused portion
of the fees paid under this Agreement for such infringing
Product, depreciated on a straight-line basis over a three (3)
year period. End User will defend, indemnify and hold NSFOCUS
harmless against any claims, damages settlements and expenses
(including attorneys' fees) excluded from NSFOCUS's indemnity
obligations in (i) - (iv) above. THIS SECTION SETS FORTH
NSFOCUS'S SOLE OBLIGATION AND END USER'S SOLE AND EXCLUSIVE
REMEDY IN THE EVENT OF VIOLATION OF THIRD PARTY RIGHTS.
9. *Warranty and Disclaimer. *
1. NSFOCUS warrants that during the sixty (60) day period
commencing on the date of first Delivery, the Software and the
Appliances will perform substantially in accordance with their
Documentation. In the event of a breach of the foregoing
warranty with respect to the Software, as End User's sole and
exclusive remedy, NSFOCUS shall, at its sole expense, use
reasonable efforts to modify the Software, so that it performs
substantially in accordance with its Documentation. In the event
of a breach of the foregoing warranty with respect to an
Appliance, as End User's sole and exclusive remedy, NSFOCUS
shall, at its sole expense and at its option, repair the
Appliance or replace the Appliance with a new or reconditioned
Appliance that performs materially in accordance with its
Documentation. The foregoing warranty extends only to the
original purchaser and will not apply to the misuse of or damage
to the Products. The rights and remedies granted End User under
this Section state NSFOCUS's entire liability, and End User's
exclusive remedy, with respect to any breach of the warranty set
forth in this Section 9(a).
2. EXCEPT AS EXPRESSLY SET FORTH IN SECTION 9(a), THE PRODUCTS OR
SERVICES ARE PROVIDED "AS-IS' AND NSFOCUS MAKES NO WARRANTY OF
ANY KIND, WHETHER EXPRESS, IMPLIED, STATUTORY, OR OTHERWISE.
NSFOCUS, ITS PARTNERS AND SUPPLIERS MAKE NO WARRANTY THAT USE OF
THE PRODUCTS OR SERVICES WILL BE UNINTERRUPTED, ERROR-FREE OR
DEFECT-FREE, OR AVAILABLE AT ALL TIMES. NSFOCUS HEREBY
SPECIFICALLY DISCLAIMS, ON BEHALF OF ITSELF AND ITS PARTNERS AND
SUPPLIERS, ALL IMPLIED WARRANTIES, INCLUDING ANY WARRANTY OF
MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, TO THE
MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW.
3. End User acknowledge that WVSS branded Products may provide
risk information about and scoring of certain cloud applications
and services and that this will be provided for information
purposes only. Any such information and scoring is provided
"as-is", is based on information available at the time it is
gathered and may be incomplete or misinterpreted and is subject
to change. NSFOCUS disclaims any responsibility for decisions
End User may make regarding the use of web applications or
services based on such information.
10. *Limitations of Liability. * IN NO EVENT WILL END USER'S OR
NSFOCUS'S (AND ITS PARTNERS' OR SUPPLIERS') LIABILITY FOR DIRECT
DAMAGES HEREUNDER EXCEED THE TOTAL VALUE OF AMOUNTS TO BE PAID BY
END USER FOR THE PRODUCT OR SERVICE AT ISSUE. IN NO EVENT SHALL END
USER OR NSFOCUS (OR ITS PARTNERS' OR SUPPLIERS') HAVE ANY LIABILITY
TO THE OTHER FOR ANY LOST PROFITS OR REVENUES, LOSS OF DATA OR USE,
INTERRUPTION OF THE SERVICES, COSTS OF PROCUREMENT OF SUBSTITUTE
GOODS OR SERVICES, OR FOR ANY INDIRECT, SPECIAL, INCIDENTAL,
PUNITIVE, OR CONSEQUENTIAL DAMAGES HOWEVER CAUSED AND, WHETHER IN
CONTRACT, TORT OR UNDER ANY OTHER THEORY OF LIABILITY, WHETHER OR
NOT THE PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGE.
THE FOREGOING LIMITATIONS SHALL NOT APPLY TO END USER WITH RESPECT
TO ANY CLAIMS ARISING UNDER SECTION 2 (LICENSES AND RESTRICTIONS),
OR TO EITHER PARTY UNDER SECTION 7 (CONFIDENTIALITY).
11. *Term and Termination. *
1. The term of this Agreement will commence upon Delivery of the
Products to End User and will continue in effect for such time
as End User continues to have the right to access the Products.
Support, Subscription Services and subscription licenses for
Software and/or Appliances will automatically renew at the end
of the applicable term unless either party gives the other at
least thirty (30) days' notice of non-renewal prior to the end
of the then current term.
2. Either party may terminate this Agreement due to a material
breach of this Agreement by the other party if such material
breach remains uncured for a period of thirty (30) days
following receipt of written notice by the breaching party;
provided that NSFOCUS may terminate this Agreement and/or all
licenses granted to End User hereunder immediately upon written
notice to End User if End User breaches any provision of Section
2 (License & Restrictions), Section 4 (Additional Terms for
Subscription Services) or Section 7 (Confidentiality).
3. Upon the earlier of expiration of End User's rights or
termination of the Agreement, NSFOCUS will cease providing
Subscription Services, Support and Professional Services,
licenses to Software will terminate and each party shall
promptly return or destroy the other party's Confidential
Information in accordance with the provisions of Section 7(c).
Termination shall not relieve End User of the obligation to pay
any fees accrued or payable to NSFOCUS prior to the effective
date of expiration or termination. The following sections shall
survive termination of this Agreement: Sections 2(c), 2(d),
2(f), 4, 6 -12, and 16.
12. *Compliance with Laws; Export.* End User acknowledges that the
Software contains encryption technology that is subject to export
restrictions by the U.S. government and import restrictions by
certain other governments. End User will not and will not allow any
third-party to remove or export from the U.S. or allow the export or
re-export of any part of the Software or any direct product thereof:
(i) into (or to a national or resident of) Cuba, Iran, North Korea,
Sudan or Syria (to the extent the U.S. government or any agency
thereof restricts export or re-export to such countries); (ii) to
anyone on the U.S. Commerce Department's Table of Denial Orders or
U.S. Treasury Department's list of Specially Designated Nationals;
(iii) to any country or region to which such export or re-export is
restricted or prohibited, or as to which the U.S. government or any
agency thereof requires an export license or other governmental
approval at the time of export or re-export without first obtaining
such license or approval; or (iv) otherwise in violation of any
export or import restrictions, laws or regulations of any U.S. or
applicable foreign agency or authority. End User agrees to the
foregoing and warrants that it is not located in, under the control
of, or a national or resident of any such prohibited country or on
any such prohibited party list. The Software is restricted from
being used for the design or development of nuclear, chemical, or
biological weapons or missile technology without the prior
permission of the U.S. government. End User agrees to indemnify and
hold NSFOCUS, its partners and suppliers harmless against any
claims, losses or expenses arising out of End User's breach of this
Section 12.
13. *End User Mention.* End User consents to NSFOCUS using its name and
logo to identify End User as a customer of NSFOCUS, such as use on
NSFOCUS's web site. Any use shall be subject to NSFOCUS complying
with any guidelines that End User may deliver to NSFOCUS from
time-to-time regarding the use of its name and logo. This consent
terminates upon termination of this Agreement.
14. *Force Majeure.* Neither party will be liable to the other for any
delay or failure to perform any obligation under this Agreement
(except for a failure to pay fees) if the delay or failure is due to
unforeseen events, which occur after the signing of this Agreement
and which are beyond the reasonable control of the parties, such as
strikes, blockade, war, terrorism, riots, natural disasters, refusal
of license by the government or other governmental agencies, in so
far as such an event prevents or delays the affected party from
fulfilling its obligations and such party is not able to prevent or
remove the force majeure at reasonable cost.
15. *Evaluation.*
1. *Evaluation Product.* If the order is for End User to evaluate
Product and its related Documentation on a temporary basis for
non-commercial use ("Evaluation Product") and NSFOCUS agrees to
such evaluation, conditioned on End User's compliance with the
terms and conditions of this Agreement, NSFOCUS grants to End
User during the Evaluation Period (as defined below), a
cost-free, nonsublicensable, nontransferable, nonassignable and
nonexclusive, revocable license to use the Evaluation Product,
solely at the location identified in writing by End User and
solely for End User's internal evaluation of the Evaluation
Product. End User may only grant access to the Evaluation
Product to employees, contractors, agents or consultants who are
bound to confidentiality and non-use obligations no less
protective of NSFOCUS's proprietary rights than this Agreement.
Notwithstanding anything to the contrary as stated in this
Agreement, all worldwide right, title and interest to the
Evaluation Product, and all intellectual property rights in and
to them, are and will remain the exclusive property of NSFOCUS.
2. *Evaluation Period.* Unless otherwise agreed to by the parties
in writing or terminated earlier in accordance with this
Agreement, an evaluation shall commence upon delivery of the
Evaluation Product and continue for thirty (30) days thereafter
("Evaluation Period"). Upon the expiration or termination of the
Evaluation Period, (i) all licenses granted under this Section
15 for such evaluation will cease, and (ii) End User will
immediately return the Evaluation Product to NSFOCUS and destroy
or erase any intangible copies of the Evaluation Product, and
certify in a writing signed by an officer of End User and
delivered to NSFOCUS that all such copies of have been returned,
destroyed or erased.
3. *Additional Evaluation Terms.* Notwithstanding anything to the
contrary as contained in this Agreement, End User acknowledges
and agrees that the Evaluation Product is provided for
evaluation "AS-IS" and NSFOCUS and its suppliers make no
representations or warranties of any kind, express or implied,
with respect to the Evaluation Product, including, without
limitation, any implied warranties of merchantability, title,
fitness for a particular purpose, informational content, system
integration, enjoyment, non-infringement or any other warranties
arising out of course of dealing, usage or trade, and no
obligation under Section 8.b (Indemnity) shall arise with
respect to an Evaluation Product.
16. *Miscellaneous Provisions. * The parties are independent contractors
under this Agreement and nothing in this Agreement authorizes a
party to act as an agent of the other or bind the other to any
transaction or agreement. This Agreement will bind and inure to the
benefit of each party's permitted successors and assigns. Neither
party may assign or transfer this Agreement in whole or in part by
operation of law or otherwise, without the other party's prior
written consent. Any attempt to transfer or assign this Agreement
without such written consent will be null and void. Notwithstanding
the foregoing, however, NSFOCUS may assign this Agreement without
consent to the acquiring or surviving entity in a merger or
acquisition in which NSFOCUS is the acquired entity (whether by
merger, reorganization, acquisition or sale of stock) or to the
purchaser of all or substantially all of NSFOCUS's assets. NSFOCUS's
licensors are intended third party beneficiaries of this Agreement.
In the event any provision of this Agreement shall be determined to
be invalid or unenforceable under law, all other provisions of this
Agreement shall continue in full force and effect. Except as
specifically provided in this Agreement, the exercise by either
party of any rights and remedies under this Agreement will be
without prejudice to its other remedies under this Agreement or
otherwise. This Agreement contains the entire agreement of the
parties with respect to the subject matter of this Agreement and
supersedes all previous communications, representations,
understandings and agreements, either oral or written between the
parties with respect to said subject matter. This Agreement may be
modified or waived only in a written instrument signed by both
parties. A waiver of any breach under this Agreement shall not
constitute a waiver or any other breach or future breaches.
Notwithstanding the foregoing, if a separate, written and mutually
signed agreement for the acquisition of the Products and/or Services
exists between End User and NSFOCUS, the terms of that written
agreement (excluding any pre-printed terms of any purchase order,
confirmation or similar document, all of which will have no effect
and will not be considered agreed to by NSFOCUS) shall take
precedence over this Agreement. All notices, requests, demands and
other communications hereunder shall be in writing to the address
set forth below for NSFOCUS and on the applicable order for End User
and shall be deemed to have been duly given: (i) upon receipt if by
personal delivery; (ii) upon receipt if sent by certified or
registered mail (return receipt requested); or (iii) two (2) days
after it is sent if by overnight delivery by a major commercial
delivery service. This Agreement will be interpreted and construed
in accordance with the laws of the State of California and the
United States of America, without regard to conflict of law
principles. The parties hereby consent to the exclusive jurisdiction
and venue of the state and federal courts located in Santa Clara
County, California for resolution of any disputes arising out or
relating to this Agreement. The provisions of the United Nations
Convention on Contracts for the International Sale of Goods and the
Uniform Computer Information Transactions Act will not apply to this
Agreement in any manner whatsoever.

NSFOCUS, Inc.
3979 Freedom Circle, Suite 900
Santa Clara, CA 95054
USA
TEL: + 1 408-907-6638