For Rockport Networks Inc. d.b.a. Cerio Products

Please read all of the following terms carefully. This Equipment Purchase and End User Software License Agreement (the “Agreement”) is a binding agreement between Rockport Networks d.b.a. Cerio (“Cerio”), and the person or entity identified in the applicable Order Acknowledgement Form as the end user (“Customer”), stating the terms and conditions that govern Customer’s use of the Cerio Composable Open Systems Platform, which comprises both Software and Equipment as defined or referenced herein.  

UNLESS YOU ACCEPT ALL THE TERMS AND CONDITIONS OF THIS AGREEMENT, YOU RECEIVE NO RIGHTS OR LICENSES HEREUNDER. BY DOWNLOADING THE SOFTWARE, INSTALLING THE SOFTWARE, USING THE EQUIPMENT THAT CONTAINS THE SOFTWARE, OPENING A PACKAGE CONTAINING EQUIPMENT THAT FORMS A PART OF THE ROCKPORT SWITCHLESS NETWORK, CLICKING ON AN “ACCEPT” BUTTON OR THE LIKE REGARDING THE TERMS AND CONDITIONS OF THE AGREEMENT HEREIN, OR OTHERWISE RUNNING, EXECUTING OR USING THE SOFTWARE OR ROCKPORT SWITCHLESS NETWORK, YOU ARE WARRANTING THAT YOU: (i) HAVE THE AUTHORITY TO ENTER INTO THIS AGREEMENT ON BEHALF OF CUSTOMER, (ii) HAVE THE AUTHORITY TO BIND THE CUSTOMER TO THE TERMS AND CONDITIONS OF THE AGREEMENT HEREIN, AND (iii) CONSENT TO CUSTOMER BEING BOUND BY THIS AGREEMENT AND ALL OF ITS TERMS AND CONDITIONS HEREIN. CUSTOMER AGREES THAT THIS AGREEMENT IS LIKE ANY WRITTEN NEGOTIATED AGREEMENT SIGNED BY CUSTOMER, AND THAT THIS AGREEMENT IS ENFORCEABLE AGAINST CUSTOMER. IF YOU, ON BEHALF OF CUSTOMER, DO NOT AGREE TO ALL OF THE TERMS AND CONDITIONS OF THIS AGREEMENT, CUSTOMER MUST IMMEDIATELY DISCONTINUE USE OF THE ROCKPORT SWITCHLESS NETWORK, AND RETURN SAME TO ROCKPORT OR THE LICENSED REPRESENTATIVE FROM WHOM IT HAS BEEN OBTAINED. 

To the extent Customer has a separately executed agreement with Rockport on a different subject matter, such agreement will continue unmodified under its own terms. In the event of conflict between this Agreement and any other terms or conditions provided by Rockport, the terms of this Agreement will govern. 

If Customer purchases the Rockport Switchless Network from a Licensed Representative who sells or sublicenses, as applicable, the Equipment and Software of the Rockport Switchless Network to Customer under the terms of an agreement between Customer and Licensed Representative (a “Sublicense Agreement”), then the terms of the Sublicense Agreement with the Licensed Representative shall govern Customer’s use of the Rockport Switchless Network in accordance with the following. Licensed Representatives may only grant rights, and must pass through terms and conditions, consistent with this Agreement. Thus, even though Customer’s Sublicense Agreement is between Customer and the Licensed Representative, by installing Software or using the Rockport Switchless Network, Customer acknowledges and agrees that: (a) any license rights in the Sublicense Agreement that are greater than the license rights in this Agreement shall not apply; (b) any license terms and conditions in this Agreement that are not contained in the Sublicense Agreement apply to Customer; (c) the limitations of liability set forth in this Agreement will apply in favor of Rockport, its affiliates and Licensed Representatives despite the existence of a Sublicense Agreement; and (d) Rockport is a third-party beneficiary of the Sublicense Agreement and is entitled to exercise and enforce all of the Licensed Representative’s rights and benefits under that Sublicense Agreement. 

1. DEFINITIONS AND INTERPRETATIONS 

The following definitions apply to this Agreement. 

 “Confidential Information” meansall information (in whatever form, whether oral, written, or otherwise) disclosed or made available in connection with this Agreement, directly or indirectly, by or on behalf of Rockport to Customer or obtained (in whatever manner) by Customer, directly or indirectly, from Rockport, and, includes all information pertaining to the Software and Equipment disclosed to Customer in the course of transactions in association with this Agreement, as well as any technology, techniques, processes, programs, data, schematics, trade secrets, know-how, inventions, and the like relating whatsoever to the Rockport Switchless Network in general, but shall exclude information which: (a) at the time of disclosure is already in the public domain; (b) after disclosure becomes part of the public domain through no act, omission or default of Customer; (c) is communicated to Customer by a third party who has the lawful right to do so without any duty to hold the information in confidence; or (d) prior to the time of disclosure was known to or had been independently developed by Customer, and this is demonstrable from written records of Customer. 

“Documentation” means the human-readable printed or electronic material supplied with the Rockport Switchless Network that describes the installation, administration, operation, features, functions, and/or specifications of the Rockport Switchless Network in a user guide or manual format, or the like. Documentation does not include demonstrations, presentations, proposals, marketing material, and other content made available for sales or general informational purposes only. 

“Encumber” or “Encumbrance” includes any mortgage, charge, pledge, hypothec, security interest, assignment, lien (statutory or otherwise), easement, title retention agreement or arrangement, conditional sale, deemed or statutory trust, restrictive covenant or other encumbrance of any nature which, in substance, secures payment or performance of an obligation, or that relates to any right or interest that exists in someone other than Rockport. 

“Equipment” means the particular hardware/equipment supplied as part of the Rockport Switchless Network as ordered by Customer and confirmed in an Order Acknowledgement Form, including the Purchased Number of Nodes and Purchased Number of SHFLs. 

“Licensed Representative” means a person, entity, corporation, partnership, or the like, that is a Rockport authorized direct or indirect distributor, systems integrator, value added reseller, reseller, or otherwise authorized entity, who has been authorized by Rockport to directly or indirectly purchase and directly or indirectly distribute the Rockport Switchless Network to customers. 

“Maintenance Release” means software released from time to time by Rockport to correct or remove program errors and bug fixes or to provide minor updates, improvements or enhancements to the Software, and includes related updates to the Documentation. 

“New Version” means a new release or version of the Software released by Rockport from time to time and made generally available by Rockport to any of its customers to provide significant improvements and/or enhancements to the existing operational or functional capabilities of the Software, and any related updates to the Documentation. 

“Node” means a Rockport proprietary PCIe card, as detailed in an Order Acknowledgement Form, with Rockport loaded or loadable Software therein, that connects to a SHFL as part of the Rockport Switchless Network. 

“Order Acknowledgement Form” means a Rockport Order Acknowledgement form, or similar form provided by a Licensed Representative, that identifies the Customer, Equipment (including the Purchased Number of Nodes, Purchased Number of SHFLs and associated SHFL Configuration(s)), and Software, as applicable, and any other items or terms that may be applicable to the transaction, such Order Acknowledgement Form being subject to Rockport’s standard Terms and Conditions of Sale (or Licensed Representative’s terms and conditions of sale, as applicable), and the terms of this Agreement. 

“Party” means Rockport or Licensed Representative, as applicable, or Customer, and “Parties” means Rockport or Licensed Representative, as applicable, and Customer. 

“Purchased Number of Nodes” means the number of Nodes ordered by Customer and confirmed in an Order Acknowledgement Form. 

“Purchased Number of SHFLs” means the number of SHFLs of a given SHFL Configuration ordered by Customer and confirmed in an Order Acknowledgement Form. 

“Rockport Switchless Network” means Rockport’s proprietary direct interconnect network that simplifies the management and deployment of clusters by eliminating the need for physical switches, and includes Rockport’s proprietary SHFLs, Nodes, and Software. 

“SHFL” means a Rockport proprietary passive optical interconnect device that provides direct interconnection of Rockport’s proprietary Nodes. 

“SHFL Configuration” means Rockport’s lower level 24 node SHFL (LS24T) that directly connects to Nodes, or Rockport’s upper level SHFL that provides network or dimensional expansion (US2T or US3T), or another configuration or name as detailed in an Order Acknowledgement Form. 

“Software” means Rockport’s proprietary network management software (“Autonomous Network Manager”), and proprietary embedded software and/or firmware (“Node Software”), as may be listed and/or described in an Order Acknowledgement Form, that is to be used with the Equipment to operate the Rockport Switchless Network, and includes without limitation, the object code, scripted code, any permitted copies of that Software and applicable Documentation, and any applicable Maintenance Release or New Version of that same Software, but does not include the source code, Register-Transfer Level (RTL) code and other human readable forms, for such software. 

“Territory” means the country or region where Customer is authorized by Rockport or Licensed Representative to use the Rockport Switchless Network, or as otherwise stated in an Order Acknowledgement Form. 

2. TRIAL PERIOD 

2.1 After delivery of Equipment and/or Software in accordance with an Order Acknowledgement Form, and Customer’s explicit or implicit consent to being bound by the terms and conditions of this Agreement in full as required, Customer has thirty (30) days or such other period of time as may be specified in the Order Acknowledgement Form (the “Trial Period“), to test the Equipment and/or Software in the operation of the Rockport Switchless Network (with any Trial Period specified in the Order Acknowledgement Form governing in case of conflict). If Customer fails to notify Rockport or Licensed Representative of any “bugs” in the Equipment and/or Software or operational nonconformities with the Documentation for the Equipment and/or Software (collectively, “Nonconformities“) within the Trial Period, Customer is deemed to accept such Equipment and/or Software.  The day that Customer accepts or is deemed to have accepted the Equipment and/or Software is the “Acceptance Date“.  If, prior to the Acceptance Date, Customer discovers any Nonconformities and notifies Rockport or Licensed Representative of same, Rockport or Licensed Representative agrees to promptly (but no later than fifteen (15) business days thereafter) attempt to correct such Nonconformities at its own expense and notify Customer when such attempted correction is complete, if possible, at which time the Trial Period is renewed.  If subsequent to such attempted correction Customer finds Nonconformities during the renewed Trial Period, then Customer may, by notice to Rockport or Licensed Representative: (i) continue to request Rockport or Licensed Representative to attempt to correct the Nonconformities, such attempted correction to be at Rockport’s sole discretion, the denial of which will comprise termination of this Agreement; or (ii) advise that the Agreement is terminated. Rockport may otherwise terminate the Agreement during the Trial Period for any reason whatsoever. 

2.2 In the event this Agreement is terminated during a Trial Period, Customer shall comply with Section 5.2 of this Agreement, and return any and all Equipment and Confidential Information to Rockport or Licensed Representative at Customer’s expense, in as good a condition as when provided to Customer, ordinary wear and tear excepted, within ten (10) business days. Customer will be invoiced for fees owing in accordance with the terms of the Order Acknowledgement Form or invoice, as applicable, if it fails to return the Equipment or stop using the Software within this period. Rights and obligations under sections of this Agreement that, by their nature should survive, will survive termination under this section. 

2.3 Upon the Acceptance Date, Customer is responsible to pay all fees owing in accordance with the terms of Rockport’s or Licensed Representative’s Order Acknowledgement Form or invoice, as applicable. 

2.4 It is expressly understood, acknowledged and agreed that Customer may provide Rockport or Licensed Representative reasonable suggestions, comments and feedback regarding the Rockport Switchless Network during the Trial Period, including but not limited to usability, bug reports, and test results, with respect to testing of the Rockport Switchless Network (collectively, “Feedback“). If Customer provides such Feedback to Rockport or Licensed Representative, Customer shall grant Rockport the following worldwide, non-exclusive, perpetual, transferable, irrevocable, royalty free, fully paid up rights: (i) to make, use, copy, modify, sell, distribute, sub-license, and create derivative works of, the Feedback as part of any product, technology, service, specification or other documentation developed or offered by Rockport (individually and collectively, “Rockport Product“); (ii) to publicly perform or display, import, broadcast, transmit, distribute, license, offer to sell, and sell, rent, lease or lend copies of the Feedback (and derivative works thereof) as part of any Rockport Product; (iii) solely with respect to Customer’s copyright and trade secret rights, to sublicense to third parties the foregoing rights, including the right to sublicense to further third parties; and (iv) to sublicense to third parties any claims of any patents owned or licensable by Customer that are necessarily infringed by a third party product, technology or service that uses, interfaces, interoperates or communicates with the Feedback or portion thereof incorporated into a Rockport Product, technology or service. Further, Customer represents and warrants that Customer’s Feedback is not subject to any license terms that would purport to require Rockport to comply with any additional obligations with respect to any Rockport Product that incorporates any Feedback. 

3. LICENCE GRANT 

3.1 The Software is LICENSED, NOT SOLD, only in accordance with the terms of this Agreement. Subject to Customer’s continuous and full compliance with all the terms of this Agreement and Rockport’s standard Terms and Conditions of Sale, and payment of any applicable fees when and if due, Rockport hereby grants to Customer a limited, non-exclusive, non-sublicensable, non-transferable, perpetual licence in the Territory to: (i) install the Autonomous Network Manager on one or more of the Purchased Number of Nodes, as applicable; (ii) use, and allow its employees and authorized contractors to use, the Software in accordance with the Documentation in a manner consistent with the terms of this Agreement, solely in association with the Equipment for the running or operation of the Rockport Switchless Network; and (iii) use the Software solely for Customer’s internal business purposes or as otherwise agreed to in writing. 

3.2 Use of some open source and third party software applications or components included in or accessed through or with the Software (“Third Party Software”) is licensed by a third party under its own terms of use (“Third Party Terms”). Third Party Software is governed solely by the applicable Third Party Terms and not by this Agreement. Third Party Terms may be  found in a “Notice” file that accompanies the Software or Documentation. The Software is accompanied by such Third Party Software largely to enable the Software to operate as designed. Customer is not permitted to use such Third Party Software independently of the Software unless Customer secures a separate license or otherwise abides by the Third Party Terms, as necessary and applicable, for such use of the Third Party Software. Rockport shall have no warranty, support, maintenance, or other obligations or liability under this Agreement with respect to such Third Party Software. 

3.3 In the event that Rockport or Licensed Representative requires Customer to register as an end user, this Agreement is valid only if the registration is complete and accurate. 

3.4 Unless contrary to applicable law, Customer is not licensed to use the Software on secondhand or refurbished Rockport equipment not authorized by Rockport, or on Rockport equipment not purchased through Rockport or a Licensed Representative. 

3.5 Archival Copy. Customer may make one (1) archival copy of the Software at no additional charge provided that Customer reproduces, affixes to, marks on, or otherwise includes all proprietary, confidentiality, trademark, and copyright notices that appear on or were included with the original to such archival copy, and further provided that Customer treats such archival copy as Confidential Information. 

3.6  Disaster Recovery Copy. Customer may make one (1) additional copy of the Software for the charge set out in the accompanying Order Acknowledgement Form for disaster recovery purposes only, provided that Customer reproduces, affixes to, marks on, or otherwise includes all proprietary, confidentiality, trademark, and copyright notices that appear on or were included with the original, and further provided that Customer treats such disaster recovery copy as Confidential Information. The server on which such disaster recovery copy is installed must be turned off at all times, except for disaster recovery, or for data synchronization between primary and disaster recovery servers. The disaster recovery server on which the data recovery copy resides must not be configured to be used for Customer’s commercial or business purposes, and must solely be used in the event of a disaster. 

4. INSTALLATION AND SUPPORT 

4.1 Unless otherwise agreed to by Rockport or by a Licensed Representative in an Order Acknowledgement Form or otherwise in writing, Customer is responsible for the expense of installation of the Equipment and installation of the Autonomous Network Manager on one or more of the Purchased Number of Nodes, as applicable. 

4.2 Unless otherwise authorized by Rockport or by a Licensed Representative in writing, only Rockport, Licensed Representative, or Customer, may install, maintain, or perform testing on the Software and Equipment for the running or operation of the Rockport Switchless Network. 

4.3 Rockport shall provide any Maintenance Release of the Software for the Equipment at no extra charge for a period of two (2) years from the Acceptance Date. Rockport shall provide any New Version of the Software for the Equipment at no extra charge for a period of one (1) year from the Acceptance Date. No such continued support or maintenance of the Software for the Equipment after these periods is included under this Agreement, and any additional support or maintenance beyond the initial one (1) and two (2) year periods, respectively, requires the signing of a separate support and maintenance agreement and payment of applicable fees. 

5. TERMINATION 

5.1 Rockport or Licensed Representative may terminate this Agreement if Customer is in material breach of this Agreement, or if Customer is delinquent in the payment of any applicable invoice or fees owing. In addition, this Agreement may be terminated in whole or in part at Rockport’s option if Customer ceases to carry on business, or if Customer becomes (a) a debtor in a voluntary case under the U.S. Bankruptcy Code or Canada’s Bankruptcy and Insolvency Act, (b) an alleged debtor in an involuntary petition under the U.S. Bankruptcy Code or Canada’s Bankruptcy and Insolvency Act, or (c) the subject of any proceeding relating to insolvency (including seeking generally to restructure, grant relief from or stay the enforcement of its debts) or for any receivership, liquidation or composition for the benefit of creditors; and such case, petition or proceeding is not dismissed within sixty (60) days after filing. 

5.2 In the event of termination of this Agreement for any reason, Customer shall destroy all copies, including any and all archival copy and disaster recovery copy, of the Software and Documentation in its possession or control, and uninstall and irreversibly delete the Software installed on the Purchased Number of Nodes, as applicable.  Within ten (10) business days of the date of termination of this Agreement, Customer shall notify Rockport in writing and under oath of Customer’s compliance with the requirements of this section. Rockport is not required to refund any part of fees or taxes paid hereunder in the event this Agreement is terminated. Rights and obligations under sections of this Agreement that, by their nature should survive, will survive termination, as well as obligations for payment. 

6. RESTRICTIONS ON AND OBLIGATIONS OF CUSTOMER 

6.1 Except to the extent expressly permitted in this Agreement or otherwise by Rockport in writing, Customer expressly agrees that it WILL NOT and WILL NOT allow any third party to: 

a) own title, interest or rights in, or transfer title, interest or rights in the Software to another party; 

b) sell, distribute, sublicense, lease, loan, assign, rent, convey or otherwise transfer or provide copies of the Software to any third party; 

c) disclose, allow use of, or make the functionality of the Rockport Switchless Network available to any third party, in any format, whether as an application service provider, or on a rental basis, service bureau, timesharing service, cloud service, hosted service, network, or by any other means or other similar basis, unless expressly authorized by Rockport in writing; 

d) upload the Software to the Internet, permit downloading the Software from the Internet, or otherwise make the Software accessible to third parties or anyone via the Internet, or any other publicly accessible computer network; 

e) install and operate counterfeit versions of Software (i.e. software provided by anyone other than Rockport or a Licensed Representative); 

f) download, install, or operate any Maintenance Release or New Version of the Software, except in accordance with this Agreement, unless Customer has a valid support and maintenance agreement with Rockport; 

g) violate or circumvent any technological use restrictions in the Software; 

h) use the Software to create a competitive offering; 

i) pledge, hypothecate, alienate or otherwise Encumber the Software to any third party; 

j) decompile, disassemble, decrypt, alter or disable any existing content protection mechanism, or otherwise attempt to gain access to or derive the source code of the Software or any part thereof, or reverse-engineer the Software or Equipment (excluding reverse engineering required by applicable law for interoperability); 

k) copy, reproduce, publish, display, modify, customize, or enhance the Software, create any derivative works (including, without limitation, transformations, translations, adaptations or other altered or recast versions) of the Software or Documentation, or alter the Software in any way; 

l) merge the Software or any part thereof with any other software or product not supplied by and not authorized in writing by Rockport or a Licensed Representative; 

m) remove, conceal, or modify any product identification, legends or restrictions, proprietary, copyright, or similar intellectual property markings or notices, which are on or in the Software or Equipment; 

n) permit anyone else to use, have access to, or copy the Software other than those copies that are specifically authorized to be made under this Agreement; 

o) disclose results of any benchmark tests or performance tests of the Rockport Switchless Network without Rockport’s prior written consent; 

p) perform or disclose any of the following security testing of the Rockport Switchless Network without Rockport’s prior written consent: network discovery, port and service identification, vulnerability scanning, password cracking, remote access testing, or penetration testing; 

q) use the Rockport Switchless Network for any illegal purpose, or in violation of any local, state, national, or international law; 

r) violate any obligations with regard to Rockport’s Confidential Information, including but not limited to disclosing, providing, or otherwise making available Rockport’s Confidential Information in any form to any third party without the prior written consent of Rockport; or 

s) use the Software on, or in conjunction with, any computer hardware other than the Equipment, or link to (or use in conjunction with) any computer hardware other than the Equipment without the prior written approval of Rockport. 

6.2 The Software and Documentation comprises Confidential Information of Rockport. Customer agrees that it will make the Software, Equipment, and Documentation available only to employees and authorized contractors with a need to know, who are obligated to comply with all restrictions contained in this Agreement, and who are obligated to maintain the secrecy of the Software, Documentation and all other Confidential Information, including, but not limited to, source code and object code as applicable, any benchmark tests, security audits and other audits performed on the Software or Rockport Switchless Network in general. Customer is fully responsible for compliance with all restrictions and obligations in this Agreement by its employees and authorized contractors. 

6.3 Customer agrees to implement reasonable security measures consistent with industry practices to protect Rockport’s Software, Documentation,  and other Confidential Information in general. Customer bears all risk of loss of the Software, Documentation, and other Confidential Information while it is in Customer’s possession or under Customer’s care and control. Customer agrees to notify Rockport immediately of any unauthorized possession or use of the Software, Documentation, or Confidential Information, or of any known violations of any restrictions and obligations in this Agreement. Customer will promptly furnish full details of such unauthorized possession, use, or violation to Rockport, will assist in preventing the recurrence of such possession, use, or violation, and will cooperate, at Customer’s expense, with Rockport to protect Rockport’s Confidential Information and proprietary rights, including any intellectual property rights. Customer’s compliance with this provision shall not be construed as a waiver of any right of Rockport to recover damages from or obtain other relief against Customer. Rockport shall further have the right to inspect and enforce the restrictions, obligations, and covenants contained in this Agreement, including verifying that Customer is using the Software only with the Equipment in the running or operation of the Rockport Switchless Network. 

7. COMPLIANCE VERIFICATION 

7.1 Customer must: (a) maintain and use systems and procedures that allow Customer to accurately track its use of the Software and Rockport Switchless Network; (b) certify to Rockport in writing, at Rockport’s or Licensed Representative’s request, that Customer’s use of the Software and Rockport Switchless Network fully complies with this Agreement, indicating the number of Software licenses deployed at that time, as applicable; and (c) cooperate fully and timely with Rockport and its auditors if Rockport or Licensed Representative notifies Customer that it will conduct an audit to confirm Customer’s compliance with this Agreement. Any such audit will be conducted during normal business hours. If Rockport determines that Customer has over-deployed Software, if applicable, Customer agrees to immediately purchase licenses at the then-current list price to bring Customer’s use into compliance. If Customer over-deployed Software by 5% or more, then Customer agrees to pay the total cost of the audit, in addition to any other liabilities Customer may have. 

8. OWNERSHIP AND PROPRIETARY RIGHTS 

8.1 Customer agrees and acknowledges that the Software and all rights, title and interests in and to the Software (including without limitation all copyrights, patents, industrial designs, trademarks, and any and all other intellectual property rights therein) are the sole property of Rockport and its licensors (as applicable), and Customer receives no rights, title or interests in or to the Software whatsoever except as expressly set forth in this Agreement. The structure, organization, and source code of the Software are the valuable trade secrets and Confidential Information of Rockport. 

8.2 Customer agrees and acknowledges that all intellectual property rights (including without limitation all copyrights, patents, industrial designs, trademarks, and any and all other intellectual property rights) in and to the Equipment are the sole property of Rockport and its licensors (as applicable), and Customer receives no rights, title or interests in or to the intellectual property rights in the Equipment whatsoever except as expressly set forth in this Agreement. 

8.3 All rights not expressly granted to Customer in this Agreement are expressly reserved by Rockport. Without limiting the generality of the foregoing, Customer agrees that Rockport exclusively owns, and Customer unconditionally assigns to Rockport (as applicable), all rights, title and interests, including intellectual property rights, associated with any change, modification, translation, adaptation, improvement, enhancement, derivative work, or development based on or to the Software, as well as concepts, ideas, processes, techniques, inventions, or works of authorship related to the Software (collectively, “Software Improvements”), whether contributed to or developed by Rockport or Customer. Customer further agrees that Rockport exclusively owns, and Customer unconditionally assigns to Rockport (as applicable), all intellectual property rights associated with any change, modification, translation, adaptation, improvement, enhancement, derivative work, or development based on or to the Equipment, as well as concepts, ideas, processes, techniques, inventions, or works of authorship related to the Equipment (collectively, “Equipment Improvements”), whether contributed to or developed by Rockport or Customer. Rockport shall have the right to incorporate any Software Improvements or Equipment Improvements into any commercial product without compensation and without retention by Customer of any proprietary claim. Customer hereby assigns to Rockport any and all right, title, and interest (including, but not limited to, any copyright, patent, industrial design, trade secret, trademark, show-how, know-how, moral rights, and any and all other intellectual property rights) that Customer may have in and to any Software Improvements or Equipment Improvements. Upon request by Rockport, Customer will execute any document, registration or filing required to give effect to the foregoing assignment. 

8.4 No transaction regarding Software hereunder shall be deemed a sale of goods. 

9. LIMITED WARRANTIES 

9.1 Rockport warrants that the Software and Equipment will perform in substantial compliance in all material respects with any functional specifications in the Documentation in effect at the time of the Order Acknowledgement Form for a period of one (1) year from the Acceptance Date (the “Warranty Period”), subject to the Software being installed on and used solely in association with the Equipment in the Territory in accordance with the Documentation. Rockport will also use commercially reasonable efforts to provide Customer with Software that is free from viruses or programs that are designed to damage, delete, modify, or disable the Software or Customer’s data. Except for the foregoing, the Software and Equipment is provided AS IS. Rockport does not warrant or guarantee that: (i) use of the Software or Rockport Switchless Network in general will be uninterrupted, error free, or that Rockport will correct all errors in the Software; (ii) the Software or Rockport Switchless Network in general will meet Customer’s business needs, requirements, or expectations; (iii) the Rockport Switchless Network will operate in combination with Customer’s content, applications, or with any other software, hardware, systems, or data; or that (iv) Customer’s content and applications will be secure or not otherwise lost or damaged. Customer’s sole remedy and Rockport’s sole obligation for breach of this limited warranty, and only during the Warranty Period, will be limited to Rockport, at its sole discretion, making commercially reasonable efforts to provide a suitable fix, patch or workaround for the problem, or otherwise replace any nonconforming Software or Equipment with Software or Equipment that conforms to Rockport’s functional specifications in the Documentation, including through a Maintenance Release or New Version of the Software, within a commercially reasonable time, and will not include any other action or damages. Any such repair or replacement by Rockport, as the case may be and if possible, will not extend the original Warranty Period. No agent or employee of Rockport or any Licensed Representative is authorized to make any modification or addition to the limited warranty and remedy stated above. 

9.2 The above limited warranty does not apply to any damages, malfunctions, or non-conformities caused to the Software, Equipment, or Rockport Switchless Network in general by: (i) Customer’s use of the Software or Equipment in violation of this Agreement, in a manner inconsistent with the Documentation, or in a manner or for a purpose for which the Equipment or Software was not designed; (ii) use of the Software with non-designated Equipment; (iii) use of the Software with outdated or an older version of third party software, including operating system software, that may have known defects or vulnerabilities that may render such third party software unsafe, unsecure, or unreliable; (iv) Customer’s failure to follow Rockport’s installation, operation, repair or maintenance instructions; (v) Customer’s failure to permit Rockport timely access, remote or otherwise, to the Software and Equipment; (vi) failure to implement any Maintenance Release or New Version of the Software made available generally by Rockport; (vii) alteration or modification or repair of the Software or Equipment by a party other than Rockport; (viii) Software or Equipment that has been subjected to abnormal physical or electrical stress, misuse, abnormal environmental conditions, neglect, negligence or accident by Customer or a third party; or (ix) causes attributable to normal wear and tear. 

9.3 Neither the limited warranty provided in this section nor any indemnities provided in this Agreement, including but not limited to the Intellectual Property Indemnity below, apply during the Trial Period. 

9.4 THE LIMITED WARRANTY SET FORTH IN THIS SECTION GIVES CUSTOMER SPECIFIC LEGAL RIGHTS. CUSTOMER MAY HAVE ADDITIONAL RIGHTS UNDER LAW WHICH MAY VARY FROM JURISDICTION TO JURISDICTION. ROCKPORT DOES NOT SEEK TO LIMIT CUSTOMER’S WARRANTY RIGHTS TO ANY EXTENT NOT PERMITTED BY LAW. 

10. DISCLAIMER 

10.1 THE LIMITED WARRANTY IN SECTION 9 AND ANY STATUTORY WARRANTY AND REMEDY THAT CANNOT BE EXCLUDED OR LIMITED UNDER LAW ARE THE ONLY WARRANTIES AND EXCLUSIVE REMEDIES APPLICABLE TO THE SOFTWARE AND EQUIPMENT. OTHER THAN THOSE OFFERED AND STATUTORY WARRANTIES AND REMEDIES, ROCKPORT AND ITS LICENSED REPRESENTATIVES HEREBY DISCLAIM ANY AND ALL WARRANTIES, CONDITIONS, REPRESENTATIONS, AND TERMS, EXPRESS OR IMPLIED, WHETHER BY COMMON LAW, CIVIL CODE, STATUTE, CUSTOM, USAGE OR OTHERWISE AS TO ANY MATTER, INCLUDING, BUT NOT LIMITED TO, PERFORMANCE, INTEGRATION, DESIGN, CONDITION, CAPACITY, QUIET ENJOYMENT, SATISFACTORY QUALITY, SECURITY, MERCHANTABILITY, TITLE, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT OF THIRD PARTY INTELLECTUAL PROPERTY RIGHTS. OTHER THAN SUCH OFFERED AND STATUTORY WARRANTIES AND REMEDIES, THE SOFTWARE AND EQUIPMENT IS PROVIDED AS IS AND WITH ALL FAULTS. ROCKPORT DOES NOT WARRANT THAT THE SOFTWARE OR EQUIPMENT WILL BE FREE OF VULNERABILITY TO INTRUSION OR ATTACK. 

10.2 CUSTOMER IS SOLELY RESPONSIBLE FOR ANY CONTENT, APPLICATION OR NON-ROCKPORT SOFTWARE THAT CUSTOMER LOADS INTO OR CREATES WITHIN THE ROCKPORT SWITCHLESS NETWORK, AND AGREES, AT CUSTOMER’S SOLE COST AND EXPENSE, TO DEFEND ROCKPORT OR LICENSED REPRESENTATIVE AGAINST ANY CLAIM AND INDEMNIFY ROCKPORT OR LICENSED REPRESENTATIVE FROM ANY DAMAGES, LIABILITIES, COSTS AND EXPENSES OR THE SETTLEMENT AGREED TO BY CUSTOMER, ARISING OUT OF OR IN ANY WAY CONNECTED WITH ANY SUCH CONTENT, APPLICATION OR NON-ROCKPORT SOFTWARE. ROCKPORT AND LICENSED REPRESENTATIVE IS NOT RESPONSIBLE FOR THE SECURITY OF ANY CONTENT, APPLICATION OR SOFTWARE THAT CUSTOMER LOADS INTO OR CREATES WITHIN THE ROCKPORT SWITCHLESS NETWORK. 

10.3 THE DISCLAIMER OF WARRANTY IN THIS SECTION MAY NOT BE VALID IN SOME JURISDICTIONS. CUSTOMER MAY HAVE ADDITIONAL WARRANTY RIGHTS UNDER LAW WHICH MAY NOT BE WAIVED OR DISCLAIMED. ROCKPORT DOES NOT SEEK TO LIMIT CUSTOMER’S WARRANTY RIGHTS TO ANY EXTENT NOT PERMITTED BY LAW. 

11. LIMITATION OF LIABILITY 

11.1 EXCEPT FOR THE EXCLUSIVE REMEDY OFFERED BY ROCKPORT AND ANY REMEDIES THAT CANNOT BE EXCLUDED OR LIMITED UNDER LAW, IN NO EVENT SHALL ROCKPORT OR ITS LICENSED REPRESENTATIVES BE LIABLE TO CUSTOMER, UNDER ANY THEORY OF LAW, FOR ANY LOSS, DAMAGES, CLAIMS, OR COSTS WHATSOEVER, INCLUDING ANY INDIRECT, DIRECT, INCIDENTAL, SPECIAL, EXEMPLARY, CONSEQUENTIAL OR PUNITIVE DAMAGES, ANY LOSS OF ANY REVENUE, LOST FUTURE REVENUE, LOST INCOME, LOST PROFITS, LOST GOODWILL, LOST SAVINGS, LOST SALES, LOST DATA, CORRUPTION OF DATA, ANY DAMAGES RESULTING FROM INTERRUPTION TO BUSINESS, LOSS OF BUSINESS OPPORTUNITIES, LOSS OF BUSINESS INFORMATION, THE COST OF RECOVERING SUCH LOST INFORMATION, THE COST OF SUBSTITUTE INTELLECTUAL PROPERTY, ANY DAMAGES RESULTING FROM PERSONAL INJURY OR FAILURE TO MEET ANY DUTY OF CARE, OR ANY PECUNIARY LOSS ARISING FROM THE USE OF, OR THE INABILITY TO USE, THE SOFTWARE OR EQUIPMENT, OR ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT, REGARDLESS OF WHETHER CUSTOMER HAS ADVISED ROCKPORT OR LICENSED REPRESENTATIVE OR WHETHER ROCKPORT OR LICENSED REPRESENTATIVE HAS ADVISED CUSTOMER OF THE POSSIBILITY OF SUCH LOSS, DAMAGES, CLAIMS, OR COSTS. IN NO EVENT SHALL ROCKPORT’S OR LICENSED REPRESENTATIVE’S AGGREGATE LIABILITY TO CUSTOMER ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT OR THE USE OF OR THE INABILITY TO USE THE SOFTWARE OR EQUIPMENT, UNDER ANY THEORY OF LAW, EXCEED THE SUM OF ALL FEES ACTUALLY PAID BY CUSTOMER FOR THE SOFTWARE AND EQUIPMENT, IF ANY. THIS LIMITATION WILL APPLY EVEN IN THE EVENT OF A FUNDAMENTAL OR MATERIAL BREACH OR A BREACH OF THE FUNDAMENTAL OR MATERIAL TERMS OF THIS AGREEMENT. 

11.2 THE FOREGOING LIMITATIONS AND EXCLUSIONS IN THIS SECTION APPLY TO THE EXTENT PERMITTED BY APPLICABLE LAW IN CUSTOMER’S JURISDICTION. THIS LIMITATION OF LIABILITY MAY NOT BE VALID IN SOME JURISDICTIONS. CUSTOMER MAY HAVE RIGHTS THAT CANNOT BE WAIVED UNDER CONSUMER PROTECTION AND OTHER LAWS. ROCKPORT DOES NOT SEEK TO LIMIT ITS WARRANTY OR REMEDIES TO ANY EXTENT NOT PERMITTED BY LAW. THEREFORE, IF APPLICABLE LAW PROHIBITS ANY PORTION OF THE LIMITS OR EXCLUSIONS ON LIABILITY STATED HEREIN, THE PARTIES AGREE THAT SUCH LIMITATION WILL BE AUTOMATICALLY MODIFIED, BUT ONLY TO THE EXTENT REQUIRED TO MAKE THE LIMITATION OR EXCLUSION COMPLIANT WITH APPLICABLE LAW. 

11.3 Customer is solely responsible for its data. Customer shall implement IT architecture and processes enabling Customer to prevent and mitigate damages in line with the criticality of the systems and data for Customer’s business and its data protection requirements, including a business recovery plan. In that regard, Customer shall: (i) provide for a backup process on a regular (at least daily) basis and backup relevant data before Rockport, Licensed Representative, or Customer, as the appropriate case may be, performs any remedial, upgrade or other works on Customer’s purchased Rockport Switchless Network; (ii) monitor the availability and performance of its IT environment during operation of Customer’s purchased Rockport Switchless Network; and (iii) promptly react to messages and alerts received from Rockport or Licensed Representative or through notification features of the Autonomous Network Manager and immediately report any critical identified issue to Rockport or Licensed Representative. 

12. INTELLECTUAL PROPERTY INDEMNITY 

12.1 Rockport will at its expense defend Customer from any action brought against Customer to the extent that it is based upon a claim that the Software or Equipment, or any part thereof, directly infringes a patent, industrial design, copyright, trade secret or other proprietary right in the United States or Canada of any third party (“Claim”). Rockport will indemnify Customer for the damages finally awarded against Customer or settled by agreement which are attributable to such Claim, together with any of Customer’s reasonable costs and expenses directly related to the defence against the Claim. 

12.2 Rockport’s defence and indemnification obligations are subject to and limited by the following: (a) that Customer promptly notifies Rockport in writing of any knowledge of or notice Customer has concerning the Claim, or the possibility thereof; (b) that Customer allows Rockport to assume immediately and undertake the sole control of the defence of any such Claim and all negotiations for its settlement (provided that no settlement that imposes any liability or obligation on Customer will be made without Customer’s prior written consent, which will not be unreasonably withheld); (c) that Customer cooperates with Rockport’s reasonable requests for assistance in conducting such defence of the Claim; and (d) that Rockport has no obligation to reimburse Customer for any costs or expenses incurred by Customer following Rockport’s receipt of notification and its assumption of defence of the Claim. 

12.3 Should the Software or Equipment, or any part thereof, become or in Rockport’s opinion be likely to become the subject of a Claim, Customer must permit Rockport at Rockport’s sole option and expense: (i) to procure for Customer the right to continue using the Software or Equipment; (ii) to make available a modified or replacement product so that the Software or Equipment becomes non-infringing; or (iii) if Rockport determines that it is unable to perform either of alternatives (i) or (ii), then at Rockport’s sole option to take possession of the allegedly infringing Software or Equipment after giving Customer thirty (30) days prior written notice and to reimburse Customer the fees paid under this Agreement. All costs of such repossession will be at Rockport’s sole expense. 

12.4 Rockport has no obligations or liability to Customer under any provisions of this Section with respect to any claim, judgment, or finding of patent, copyright, trade secret or other proprietary right infringement which is based upon: (a) the combination or utilization of the Software or Equipment with equipment, software, supplies or devices not furnished or approved by Rockport (i.e. not Equipment), if the claim, judgment or finding would not have arisen but for such combination or utilization; (b) use of the Software or Equipment in any manner that is inconsistent with the purpose for which it was designed or contrary to the explicit provisions in the Documentation; (c) any modification, alteration or derivation of the Software or Equipment without Rockport’s explicit prior written approval or in any manner in accordance with designs, specifications or instructions provided by Customer; (d) Claims that result from the negligent or wilful misconduct of Customer; (e) Customer’s use of a superseded or replaced version of the Software, to the extent that the obligation or liability would have been avoided by the use of a then current version or New Version or Maintenance Release which Rockport makes available to Customer, or (f) use of the Software or Equipment for which there is no charge. 

12.5 This Section outlines and states Rockport’s entire liability and Customer’s sole and exclusive remedy with respect to any infringement or misappropriation of any intellectual property rights of any third party. 

13. OWNERSHIP OF RIGHTS TO SUSTAINABILITY BENEFITS 

13.1 Unless otherwise agreed by Rockport and Customer in writing, Customer acknowledges that any and all sustainability benefits, including but not limited to greenhouse gas offset credits or permits/allowances, whether in regulated or non-regulated jurisdictions, are retained and owned solely by Rockport, regardless of Customer’s use of the Software or Equipment under this Agreement. 

14. U.S. GOVERNMENT END USERS / CUSTOMERS 

14.1 The Software and Documentation are “commercial items,” as defined at Federal Acquisition Regulation (“FAR”) (48 C.F.R.) 12.101, consisting of “commercial computer software” and “commercial computer software documentation” as such terms are used in FAR 12.212. Consistent with FAR 12.211 (Technical Data) and FAR 12.212 (Computer Software) and Defense Federal Acquisition Regulation Supplement (“DFAR”) 227.7202-1 through 227.7202-4, and notwithstanding any other FAR or other contractual clause to the contrary in any agreement into which this Agreement may be incorporated, Government end users will acquire the Software and Documentation with only those rights set forth in this Agreement. Any provisions of this Agreement that are inconsistent with federal procurement regulations are not enforceable against the U.S. Government. 

15. EXPORT 

15.1 Customer will comply with any and all anti-boycott laws including any executive orders, rules, or regulations. Customer agrees to comply with all applicable export controls and economic sanctions laws and regulations, including those of the United States, the European Union and other applicable jurisdictions to ensure technology provided by Rockport or Licensed Representative under the Agreement is not used, sold, leased, disclosed, released, transferred, imported, exported or re-exported in violation of such laws and regulations, including, without limitation, export licensing requirements, end user, end-use and end-destination restrictions, prohibitions on dealings with sanctioned individuals and entities, including but not limited to persons on the Office of Foreign Assets Control’s Specially Designated Nationals and Blocked Persons List, or the U.S. Department of Commerce Denied Persons List. Customer represents and warrants that Customer is not the subject or target of, and that Customer is not located in a country or territory (including without limitation, North Korea, Cuba, Iran, Syria, and Crimea) that is the subject or target of economic sanctions of the United States, European Union or other applicable jurisdictions. 

16. SURVIVAL 

16.1 Sections 1-3, 5-11 and 13-23 shall survive termination or expiration of this Agreement to the extent reasonably applicable thereafter. 

17. FORCE MAJEURE 

17.1 Rockport is not liable to Customer for any loss or delay or non-performance of any of its obligations under this Agreement resulting from any unforeseeable event beyond its reasonable control, including, but not limited to, acts of God, decree of government, acts or omissions of Customer, fire, flood, natural disaster, epidemic or pandemic, strikes or similar official labour dispute, lockouts, embargoes, sanctions, riot, failure of communications networks, denial of service/access attacks, rebellion, sabotage, war or other hostilities or acts of terrorism. 

18. ASSIGNABILITY 

18.1 Rockport may transfer, sublicense, or assign all of its rights and obligations set out in this Agreement, in whole or in part, to a third party without notice to Customer, and upon such transfer or assignment shall be released from all obligations hereunder. The assignee shall then assume all the rights and obligations of Rockport hereunder and become licensor under this Agreement. 

18.2 Customer may not transfer, sublicense, or assign any of its rights and obligations under this Agreement without obtaining Rockport’s prior written consent and meeting the following conditions: (i) Customer shall provide, in writing, the name and address of the transferee; (ii) Customer shall pay Rockport’s standard license transfer fee, if applicable; and (iii) the transferee must agree in writing to be bound by this Agreement. Upon transfer, Customer may not retain any copies of the Software. 

19. ENTIRE AGREEMENT 

19.1 This Agreement, together with the applicable Order Acknowledgement Form and Rockport’s standard Terms and Conditions of Sale, constitutes the entire agreement and understanding between the Parties with respect to the matters dealt with herein. All previous agreements, understandings, and representations, whether written or oral, between the Parties have been superseded by this Agreement. 

19.2 Conflicting or additional terms contained in a purchase order or similar document issued by Customer cannot amend the terms of this Agreement and are of no force or effect notwithstanding any statements to the contrary made in such document. This Agreement may not be altered, amended or modified except by formal agreement in writing by the Parties. 

20. NO WAIVER 

20.1 No failure or delay by a Party to exercise or enforce any term, condition, right or remedy provided under this Agreement or by law shall constitute a waiver of that or any other term, condition, right or remedy, nor shall it preclude or restrict the further exercise of that or any other term, condition, right or remedy. No single or partial exercise of such term, condition, right or remedy shall preclude or restrict the further exercise of that or any other term, condition, right or remedy. 

21. SEVERANCE 

21.1 If any court or competent authority finds that any provision of this Agreement (or part of any provision) is invalid, illegal or unenforceable, that provision or part-provision shall, to the extent required, be deemed to be deleted, and the validity and enforceability of the other provisions of this Agreement shall not be affected, and shall continue in full force and effect. 

21.2  If, however, any invalid, unenforceable or illegal provision or part-provision of this Agreement would be valid, enforceable and legal if some part of it were deleted or minimally amended, the provision shall apply with the minimum modification necessary to make it legal, valid and enforceable. Otherwise, Rockport and Customer agree to re-negotiate in good faith any term held invalid and to be bound by the mutually agreed substitute provision. 

22.  NO PARTNERSHIP, VENTURE OR AGENCY 

22.1  Nothing herein shall be deemed to constitute Rockport and Customer as joint ventures, partners or agents of the other. Except as expressly provided in this Agreement, neither Rockport nor Customer will have any power or authority to act in the name of or on behalf of the other Party, or to bind the other Party to any legal agreement. 

23.  GOVERNING LAW AND RESOLUTION OF DISPUTES 

23.1  This Agreement shall be governed by and interpreted in accordance with the laws in force in the Province of Ontario, Canada, without reference to conflict of laws principles. The Parties hereby expressly exclude the application of the United Nations Convention on Contracts for the International Sale of Goods and Uniform Computer Information Transactions Act. 

23.2  The Parties expressly agree that any legal proceeding arising out of this Agreement must be brought in the Provincial courts located in Ottawa, Canada, and irrevocably submit to the exclusive jurisdiction of such courts. 

January 2021