This END-USER LICENSE AGREEMENT (the “Agreement”) is a legal agreement between you (the
“Customer”) and ADARA Networks, Inc. (“ADARA”), with its principal place of business at 1731 Technology Drive, San Jose, CA 95110. Customer must sign this Agreement prior to or contemporaneously
with placing an order for the purchase of ADARA products with any ADARA Value Added Reseller.
a. ADARA makes appliances which include software object code deployed on hardware,
together with any business process libraries delivered with and any related
documentation. ADARA grants to Customer a personal, nonexclusive and
nontransferable license to use the ADARA hardware and/or software listed on Exhibit 1
(the “Licensed Products”).
b. Neither this Agreement nor the Licensed Products may be sold, leased, assigned,
sublicensed or otherwise transferred by Customer, in whole or in part.
2. SCOPE OF USE
a. Customer may not make copies of the Licensed Products.
b. Customer has the right to develop interfaces to the Licensed Products strictly for its use
in conjunction with its use of the Licensed Products. Such Customer-developed software
interfaces shall be the property of Customer.
c. Except for any Customer user interfaces developed pursuant to Section 2(b) above, any
changes or modifications to the Licensed Products shall be the property of ADARA. Any
changes or modifications will mean that the limited warranty set forth below will no
longer apply and ADARA shall have the right to charge Customer for additional support
services at ADARA’s then prevailing service rate, but ADARA shall have no obligation
to provide such services.
3. DELIVERY; INSTALLATION
a. The Licensed Products shall be delivered in an appliance form which includes executable
object code deployed on hardware. ADARA shall deliver any related documentation to
Customer (the “Documentation”). ADARA shall be under no obligation to provide any
updates, enhancements, modifications, revisions, additions, replacements, conversions or
maintenance to the Licensed Products, unless Customer and ADARA have agreed to do
so in a separate Licensed Products Support and Maintenance Agreement.
4. PROPRIETARY INFORMATION
a. The Licensed Products and the pricing and terms of this Agreement (collectively
“Information”) are the proprietary and confidential information of ADARA and/or a third
party which has granted marketing and licensing rights to ADARA (hereinafter “Business
Associate”). Customer agrees to maintain the Information in strict confidence and not to
disclose, duplicate or otherwise reproduce, directly or indirectly, the Information in
whole or in part.
b. Customer agrees not to modify, create derivative works of, translate, disassemble, reverse
engineer, de-compile or derive the source code of the Licensed Products in whole or in
part. Customer agrees to take all reasonable steps to ensure that no unauthorized persons
shall have access to the Information and that all authorized persons having access to the
Information shall refrain from any such disclosure, duplication or reproduction.
Customer agrees not to remove any copyright notice or other proprietary markings from
the Information, and any copy of the Information made by Customer for backup purposes
shall contain the same copyright notice and proprietary markings contained on the copies
of the Licensed Products furnished by ADARA to Customer under this Agreement.
c. Customer’s failure to comply with the provisions of this Agreement shall result in
irreparable harm to ADARA and/or its Business Associates for which a remedy at law
would be inadequate. Accordingly, in the event of the breach or threatened breach by
Customer of its obligations under this Section, ADARA shall be entitled to equitable
relief in the form of specific performance and/or an injunction for any actual or
threatened breach, in addition to the exercise of any other remedies at law or in equity.
d. If Customer is required to produce Information by any governmental agency having
jurisdiction pursuant to an order to produce or in the course of a legal proceeding
pursuant to a lawful request for discovery, then Customer shall promptly notify ADARA
of the order or request in discovery and reasonably cooperate with ADARA if ADARA
elects (at ADARA’s expense ) to seek to limit or to avoid such disclosure by any lawful
means and, if information is disclosed, Customer shall only disclose such information as
it, in good faith, reasonably believes must be disclosed to comply with Customer’s
e. Customer agrees not to challenge, directly or indirectly, the right, title and interest of
ADARA in and to the Licensed Products or the Information. Customers agrees not to
directly or indirectly, register, apply for registration or attempt to acquire any legal
protection for any of the Licensed Products, the Information, or any proprietary rights in
f. Customer agrees to provide immediate, written notification to ADARA of all
circumstances surrounding the unauthorized possession or use of the Licensed Products
by any person or entity. Customer agrees to cooperate fully with ADARA in any
litigation relating to or arising from such unauthorized possession or use.
g. ADARA reserves all proprietary and commercial rights regarding the Licensed Products
not expressly granted to Customer in this Agreement.
h. Notwithstanding any other provision of this Agreement, the obligations set forth in this
Section will survive the termination of this Agreement for any reason.
5. LIMITED WARRANTY; ALL SALES ARE FINAL
a. ADARA represents and warrants that it owns or otherwise has the rights in the Licensed
Products and has the right to grant a license to use the Licensed Products provided under
b. ALL SALES ARE FINAL. THE WARRANTY SET FORTH ABOVE IS A LIMITED
WARRANTY AND IT IS THE ONLY WARRANTY MADE BY ADARA.
c. ADARA EXPRESSLY DISCLAIMS, AND CUSTOMER EXPRESSLY WAIVES, ALL
OTHER WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, WITHOUT
LIMITATION, WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A
PARTICULAR PURPOSE. ADARA DOES NOT WARRANT AND SPECIFICALLY
DISCLAIMS ANY REPRESENTATIONS THAT THE SOFTWARE WILL MEET
CUSTOMER'S REQUIREMENTS OR THAT THE OPERATION OF THE
SOFTWARE AND/OR ITS USE WILL BE UNINTERRUPTED OR ERROR-FREE,
OR THAT DEFECTS IN THE SOFTWARE, IF ANY, WILL BE CORRECTED.
d. ADARA’S LIMITED WARRANTY IS IN LIEU OF ALL LIABILITIES OR
OBLIGATIONS OF ADARA FOR DAMAGES ARISING OUT OF OR IN
CONNECTION WITH THE DELIVERY OF THE SOFTWARE OR RELATED
SERVICES. EXCEPT FOR THE ABOVE LIMITED WARRANTY, THE ENTIRE
RISK AS TO THE QUALITY AND PERFORMANCE OF THE SOFTWARE IS WITH
THE CUSTOMER. The warranties set forth in this Section are subject to the limitations
set forth below.
a. By ADARA.
i. ADARA shall indemnify, defend, and hold Customer harmless from any action
against Customer to the extent that it is based on an allegation that the software
contained in the Licensed Products licensed under this Agreement have
infringed an intellectual property right or trade secret, provided that Customer (i)
promptly notifies ADARA of any such action; (ii) gives ADARA full authority,
information and assistance to defend such claim; and (iii) gives ADARA sole
control of the defense of such claim and all negotiations for the compromise or
settlement of the claim. Customer’s failure to perform these conditions will
excuse ADARA from all its indemnification obligations, whether provided by
law or this Agreement.
ii. Notwithstanding the above, ADARA shall have no liability to indemnify,
defend, or hold Customer harmless with respect to any claim based upon (a)
Licensed Products that have been modified by anyone other than ADARA; (b)
use of other than the then-current release of the Licensed Products, if
infringement could have been avoided by use of the then-current release and
such current release has been made available to Customer; (c) use of the
Licensed Products in conjunction with Customer data where use with such data
gave rise to the infringement claim; (d) use of the Licensed Products with other
software or hardware, where use with such other software or hardware gave rise
to the infringement claim; (e) use of the Licensed Products in a manner
inconsistent with its Documentation, and/or (f) use of the Licensed Products
which breaches this Agreement.
iii. If ADARA determines that the Licensed Products are or are likely to be the
subject of a claim of infringement, ADARA shall have the right (i) to replace
Customer’s copy of the Licensed Products with non-infringing Licensed
Products that have substantially equivalent functionality; (ii) to modify the
Licensed Products so they are free of infringement; (iii) to procure the right to
continue to use the Licensed Products; or (iv) to terminate the license to use the
Licensed Products and associated documentation.
iv. THE PROVISIONS OF THIS SECTION STATE THE EXCLUSIVE
LIABILITY OF ADARA AND THE EXCLUSIVE REMEDY OF CUSTOMER
WITH RESPECT TO ANY CLAIM OF INTELLECTUAL PROPERTY OR
TRADE SECRET INFRINGEMENT BY THE SOFTWARE OR ANY PART
THEREOF, AND ARE IN LIEU OF ALL OTHER WARRANTIES, EXPRESS
OR IMPLIED, INCLUDING THE IMPLIED WARRANTY OF NON-INFRINGEMENT, AND INDEMNITIES WITH RESPECT THERETO.
b. By Customer.
i. Customer will indemnify, defend, and hold ADARA harmless from any action
against ADARA involving the Licensed Products that is not based on an
allegation that the Licensed Products licensed under this Agreement has
infringed an intellectual property right or trade secret. This includes, but is not
limited to, claims, actions, liabilities, losses, damages, judgments, grants, costs
and expenses (including attorneys’ fees) arising out of injury or death to
persons, or damage to property, resulting from or pertaining to the use or
operation of the Licensed Products, whether or not occasioned by the negligence
or misconduct of Customer or anyone that Customer has allowed to use the
Licensed Products. Customer will indemnify and promptly reimburse ADARA
for any expenses, including attorneys’ fees, incurred by ADARA for its own
7. LIMITATION OF LIABILITY
a. EXCEPT AS EXPRESSLY SPECIFIED IN THIS AGREEMENT, NEITHER ADARA
NOR ITS BUSINESS ASSOCIATES SHALL BE LIABLE FOR ANY LOSS OR
DAMAGE THAT MAY ARISE IN CONNECTION WITH CUSTOMER’S USE OF
THE SOFTWARE. IN NO EVENT SHALL ADARA OR ITS BUSINESS
ASSOCIATES BE LIABLE FOR ANY INDIRECT, SPECIAL, INCIDENTAL OR
CONSEQUENTIAL DAMAGES, EVEN IF ADARA HAS BEEN ADVISED OF THE
POSSIBILITY OF SUCH DAMAGES, AND NOTWITHSTANDING ANY FAILURE
OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY OF ANY KIND. IN NO
EVENT SHALL CUSTOMER BE ENTITLED TO ANY MONETARY DAMAGE
AGAINST ADARA FOR THE PRODUCT TO WHICH CUSTOMER’S CLAIM
8. DEFAULT AND REMEDIES
a. ADARA may, at its sole discretion, upon twenty-four (24) hours’ written notice to
Customer, terminate all Licenses granted under this Agreement under the following
circumstances: (i) Customer threatens to breach its obligations under Section 4
(Proprietary Information) and this threat remains for a period of five (5) days after
ADARA provides written notice of this threatened breach; (ii) Customer breaches its
obligations under Section 4 (Proprietary Information) and this breach remains uncured
for a period of five (5) days after ADARA provides written notice of this breach; (iii)
Customer fails to pay any amounts due under this Agreement;, (iv) Customer otherwise
fails to comply with any or all covenants, agreements or conditions in this Agreement and
such failure continues for thirty (30) days after written notification from ADARA; and
(v) in the case of export, Customer is in violation of any laws or regulations of any
applicable government authority in connection with the Licensed Products or its use.
b. In the event of ADARA terminates the License granted to Customer, Customer shall have
no further right to use the Licensed Products, including any copies, and shall, within ten
(10) days after the effective date of any such termination, certify in writing and under
penalty of perjury under the laws of California to ADARA that such Licensed Products
and all materials relating thereto, including all copies, in the possession of Customer have
been removed from Customer’s system and destroyed.
a. Announcements. Customer agrees that ADARA may make public announcements from
time to time, through the issuance of press release(s), on ADARA’s websites or otherwise
that refer to the existence of this Agreement, the nature of the relationship between the
parties created by this Agreement and/or the nature of the Licensed Products. ADARA
shall also have the right to use Customer’s name, trademarks, and logos, to refer to the
existence of this Agreement, and the nature of the relationship between the parties created
by this Agreement and/or the nature of the Licensed Products in customer lists, collateral
and presentation materials, on ADARA’s websites, in interviews with press, at trade
shows, and for other general publicity purposes.
b. Reference Customer. If a price discount has been negotiated and accepted by Customer
and ADARA, Customer shall be a “Reference Customer.” At ADARA’s request from
time to time, Reference Customer will serve as a reference with respect to the Licensed
Products, as well as any services that may be performed by ADARA by meeting or
conferring by telephone with at least three potential clients of ADARA during each
calendar quarter during the period of time that the Customer uses the Licensed Products
(the “Reference Term”). Each such meeting or telephone call shall be scheduled after
consultation with Reference Customer. In addition, Reference Customer will work with
ADARA and a member of the press to develop a feature article for a business or trade
publication that illustrates the use and benefits of the Licensed Products and Reference
Customer’s business process. At ADARA’s request, Reference Customer will speak at
two formal events (tradeshows or press/analyst conferences) per year during the
Reference Term on ADARA’s behalf. ADARA will pay all reasonable travel and
conference expenses of Reference Customer.
c. No Waiver. The failure of either party to exercise any right granted in this Agreement, or
to require the performance by the other party of any provision if this Agreement, or the
waiver by either party of any breach of this Agreement will not prevent a subsequent
exercise or enforcement of such provisions or be deemed a waiver of any subsequent
breach of the same or any other provision of this Agreement.
d. Assignment. Customer may not assign this Agreement or any license granted under this
Agreement, whether by operation of law, change of control, or in any other manner,
without the prior written consent of ADARA, which consent may be granted or withheld
in ADARA’s sole discretion. ADARA may assign this Agreement to any third party,
provided that such third party assumes the obligations of ADARA under this Agreement.
ADARA may also assign its right to payments under this Agreement or grant a security
interest in this Agreement or such payment right to any third party without requiring that
such third party be liable for the obligations of ADARA under this Agreement.
e. Benefit. Subject to provisions hereof restricting assignment, this Agreement shall be
binding upon and shall inure to the benefit of the parties and their respective successors
f. Force Majeure. If the performance of this Agreement or any obligation hereunder, except
for the making of payments, is prevented, restricted, or interfered with by reason of fire,
flood, earthquake, explosion or other casualty or accident, strikes or labor disputes
affecting third-party vendors, inability to procure or obtain delivery of parts, supplies or
power, war or other violence, any law, order, proclamation, regulation, ordinance,
demand or requirements of any governmental agency, or any act or condition whatsoever
beyond the reasonable control of the affected party, the party so affected will take all
commercially reasonable steps to avoid or remove such cause of nonperformance and
will resume performance hereunder with dispatch whenever such causes are removed.
g. Export. Customer shall not export, re-export or transfer, whether directly or indirectly,
the Licensed Products or any system containing the Licensed Products outside the United
States of America without first complying with the applicable export laws of the United
States of America and the import laws of the country in which the Licensed Products is to
h. Survival. All provisions of this Agreement relating to proprietary, confidentiality, and
non-disclosure rights shall survive the termination of this Agreement.
i. Remedies. Unless otherwise specified herein, the rights and remedies of both parties set
forth in this Agreement are not exclusive and are in addition to any other rights and
remedies available to it at law or in equity.
j. Attorneys’ Fees. In any dispute or legal proceeding arising out of or relating to this
Agreement, including the failure of Customer to pay any amounts due under this
Agreement, the prevailing party will be entitled to an award of its attorneys’ fees and
k. Governing Law and Jurisdiction. This Agreement is made and will be governed by and
construed in accordance with the laws of California, without giving effect to its conflicts-of-laws provisions. All litigation or other proceedings under this Agreement shall be
brought in any federal or state court located within California, and ADARA and
Customer y consent to the exclusive personal and subject matter jurisdiction and venue of
l. Integration. This Agreement sets forth the entire Agreement and understanding between
the parties with respect to its subject matter. This Agreement merges all previous
discussions and negotiations between the parties and supersedes and replaces any other
agreement which may have existed between ADARA and Customer with respect to its
IN WITNESS WHEREOF, the parties have caused this Agreement to be executed by
their duly authorized representatives.