This Product Loan/Evaluation Agreement (this "Agreement") is entered into on the preferred ship date inserted at right (the "Effective Date") between Procera Networks Inc., a Nevada corporation with its principal place of business at 100C Cooper Court, Los Gatos, CA 95032 ("Procera Networks") and the corporation at the address listed above in this document (“Customer”).
1. LOAN OF PRODUCTS.
Procera Networks agrees to loan to Customer certain hardware and/or software listed in the separate quote provided herewith (the “Quote”) for certain products (the “Products”) for the purpose of Customer's evaluation of the Products (the “Purpose”) in accordance with the terms and conditions of this Product Loan/Evaluation Agreement (the “Agreement”). Customer agrees: (a) to use the Products only for the Purpose; (b) to assume liability for any damages to the Products from misuse, neglect, or abuse; (c) to maintain the Products only at the location specified below; (d) not to alter or modify the Products; and (e) upon termination of the Agreement, either return or pay for the Products/Licensed Material in accordance with section 7 below.
2. LICENSED MATERIALS.
2.1. Procera Networks hereby grants to Customer, a temporary, limited, nonexclusive and nontransferable license to use the software Products including firmware) and documentation furnished with the Products “Licensed Materials”) for the term of this Agreement. All Licensed Materials, and all copies thereof made by Customer, including translations, compilations and partial copies, are and shall remain the property of Procera Networks.
2.2 Customer shall not make any copies of any Licensed Materials except as may be necessary for Customer to exercise its rights under this Agreement. All copies made by Customer shall include the copyright and proprietary notices contained in or on the Licensed Materials delivered to Customer. Customer shall maintain records of the number and location of all copies of such Licensed Materials. Customer shall take appropriate action, by instruction, agreement or otherwise, regarding all persons permitted access to any Licensed Materials so as to enable Customer to fulfill its obligations under this Agreement.
2.3 Customer may not, except as expressly authorized by Procera Networks and only to the extent established by applicable law, decipher, reverse translate, decompile, disassemble or otherwise reverse engineer, reconstruct or discover any source code or underlying ideas or algorithms or file formats or programming or interoperability interfaces of the licensed Materials, by any means whatsoever, or attempt or permit third parties to do so. Customer may not develop methods to enable unauthorized parties to use the Licensed Materials. Customer may not develop (or assist third parties to develop) any other product that infringes any proprietary rights of Procera Networks in the Licensed Materials. Customer may not (and will not allow any third party to) modify the Licensed Materials or incorporate any portion of the Licensed Materials into any other software or create a derivative work of the Licensed Materials.
3. CONFIDENTIALITY.
Customer acknowledges that the Products contain proprietary and confidential information belonging exclusively to Procera Networks, including, without limitation, technology, know- how, documentation, inventions, ideas, concepts, data, processes, and trade secrets (“Confidential Information”). Confidential Information does not include (i) information already known or independently developed by Customer; (ii) information in the public domain through no wrongful act of Customer; or (iii) information Customer received from a third party who is under no confidentiality obligation with respect thereto. With respect to the Confidential Information, Customer hereby agrees that Customer shall at no time misappropriate such Confidential Information or disclose it to any person or entity, and shall use at least the same degree of care in safeguarding the Confidential Information as Customer uses in safeguarding Customer’s own confidential information but in no event less than a reasonable standard of care. Customer acknowledges that violations of the provisions of this Section shall cause irreparable harm to Procera Networks not adequately compensable by monetary damages. In addition to other relief, Customer agrees that injunctive relief shall be available to prevent any actual or threatened violation of such provisions.
4. MAINTENANCE AND SUPPORT.
Procera Networks has no obligation to provide support, maintenance, upgrades, modifications, or new releases under this Agreement.
5. TITLE.
The Products shall at all times remain the property of Procera Networks. The customer agrees not to pledge, loan, mortgage or dispose of the Products, or to permit any liens to be placed on the Products.
6. TERMINATION.
This Agreement shall terminate upon the expiration of the term stated below or upon written request from either party, whichever occurs first. Sections 3, 5, 8, 9 and 12 shall survive the termination of this Agreement.
7. WARRANTY.
THE PRODUCTS ARE FURNISHED TO CUSTOMER ON AN “AS IS” BASIS. PROCERA NETWORKS AND VISTAONE MAKE NO WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, THE WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE OR TITLE AND NON-INFRINGEMENT.
8. LIMITATION OF LIABILITY.
IN NO EVENT SHALL PROCERA NETWORKS OR VISTAONE BE LIABLE TO CUSTOMER FOR ANY CLAIMS FOR DIRECT, INDIRECT, SPECIAL, INCIDENTAL OR CONSEQUENTIAL LOSSES, DAMAGES OR EXPENSES ARISING OUT OF THIS AGREEMENT, OR THE USE OR PERFORMANCE OF THE PRODUCTS, REGARDLESS OF THE FORM OF ACTION, WHETHER IN CONTRACT, TORT, OR UNDER ANY STATUTE, INCLUDING NEGLIGENCE AND STRICT LIABILITY OR OTHERWISE, EXCEPT FOR BODILY INJURY CAUSED BY NEGLIGENT ACTS OR OMISSIONS OF PROCERA NETWORKS. Some jurisdictions do not allow the exclusion or limitation of incidental or consequential damages so the above may not be applicable.
9. SEVERABILITY.
If any provision of this Agreement shall be held invalid or unenforceable, the remaining provisions shall in no way be affected or impaired.
10. ASSIGNMENT.
This Agreement and the rights granted hereunder may not be assigned by Customer without the prior written consent of Procera Networks. Any assignment contrary to this section shall be void.
11. GOVERNING LAW.
THE VALIDITY AND PERFORMANCE OF THIS AGREEMENT SHALL BE GOVERNED BY CALIFORNIA LAW, WITHOUT REFERENCE TO CONFLICT OF LAW PRINCIPLES. ANY SUITS HEREUNDER WILL BE BROUGHT IN THE FEDERAL OR STATE COURTS IN THE COUNTY OF SANTA CLARA IN THE DISTRICT OF CALIFORNIA.
12. GOVERNMENT RESTRICTED RIGHTS.
This provision applies to Product acquired directly or indirectly by or on behalf of any government. The Product is a commercial product, licensed on the open market at market prices, and was developed entirely at private expense and without the use of any government funds. Any use, modification, reproduction, release, performance, display, or disclosure of the Product by any government shall be governed solely by the terms of this Agreement and shall be prohibited except to the extent expressly permitted by the terms of this Agreement, and no license to the Product is granted to any government requiring different terms.
14. ENTIRE AGREEMENT.
This Agreement constitutes the entire agreement between the parties with respect to the subject matter hereof and supersedes all proposals, oral or written, all previous negotiations and all previous communications between the parties with respect hereto. No representation, warranty or promise not specifically stated in this Agreement shall be binding on Procera Networks. A waiver of any breach or default under this Agreement shall not constitute a waiver of any other right for subsequent breach or default.
15. TERM.
The trial period for the Evaluation Equipment is thirty (30) calendar days from the "Requested Install Date" referenced above.
16. RETURN.
Unless an extension to the evaluation period is agreed upon in writing beforehand, all Evaluation Equipment must be returned to VistaOne within 15 calendar days of the evaluation period end date. After 15 days, customer will be responsible for full payment of all Evaluation Equipment and no return will be accepted.
NOTE: If you choose to return the product, it must be returned in its original condition and packaging along with email notification of the shipping/tracking number to orderfulfillment@vistaone.com.
Return Ship Location:
VistaOne Corporation
10001 Patterson Avenue
Suite 101
Richmond, VA 23238
Attn: Order Fulfillment
LOCATION OF PRODUCTS AND TECHNICAL CONTACT NOTED IN FORM AT RIGHT.
Upon receipt of your scope of work submittal, VistaOne’s engineer will contact you to finalize an installation date (see item 3 below) and to establish procedures for remote access to the Procera deep packet inspection and control appliance. The installation date should coincide with a 5-10 day period that best allows you to invest approximately ten hours to work with our engineer evaluating the Procera equipment for potential purchase.