AYLA NETWORKS, INC.
EXPLORER PACKAGE CONTRACT
Ayla Networks, Inc. and the Customer named in the signature block have entered into this contract for a one year promotional subscription to the Explorer Package, beginning on the date in the signature block below. By entering the information required in the signature block and clicking the ‘Submit’ button, Customer 1) represents that it has the authority to bind the entity named in the signature block; and 2) agrees to the terms contained herein. Ayla accepts this contract on the date in the signature block below by confirming receipt of this contract and performing its obligations hereunder.
Renewal: Upon 30 days prior written notice, Customer may renew this contract at Ayla’s current rates. If Customer does not provide notice, this subscription shall expire on the last day of the term.
Payment: All fees are due 30 days following the start of the subscription. Customer shall pay any taxes imposed by applicable law, except for Taxes based on Ayla’s income. All amounts due hereunder are unconditional and not subject to any setoff, counterclaims or any other defenses. Customer shall pay a 1.5% late charge, assessed from the due date to the date payment is made, for any amount that is past due for more than 10 days.
Ayla grants to Customer a personal, non-exclusive license to use the Product specified herein. For certain software made available to Customer in source code format, Customer may modify the source code to incorporate it into production units solely for the purpose of connecting to the cloud platform. Customer may not use Ayla’s proprietary software to connect to any other cloud service or platform. Any transfer by Customer of the software made available in source code format shall be in object code format only. If there is any unauthorized use or disclosure of the source code by Customer, Customer shall be liable to Ayla. If Customer is incorporating any software into its production units for resale, Customer agrees to incorporate an end user license agreement which describes the nature of the license, includes restrictions on the license and disclaims all warranties, all in a form satisfactory to Ayla.
Customer agrees not to: (a) access or use the Product except as expressly permitted hereunder; (b) sell, rent, pledge, assign or otherwise transfer Customer's rights, in whole or in part, to any third party; (c) modify, adapt, translate or create derivative works based on the Product; (d) remove or alter any copyright, trademark, or other proprietary legends; (e) use the Product to store or transmit infringing, libelous, or otherwise unlawful material, or transmit material in violation of third-party privacy rights; (f) publish, post, upload or otherwise transmit data that contains any viruses, Trojan horses, worms, time bombs, corrupted files or other computer programming routines that are intended to damage, detrimentally interfere with, surreptitiously intercept or expropriate any systems, data, personal information or property of another; (g) use the Product to create a competitive offering; or (h) disclose to any third party any performance measures, benchmark tests or other comparisons of the Product. Customer shall not transmit or provide: (i) social security numbers (or similar identification number) ; (ii) health insurance or policy identification numbers, protected health information regulated under the Health Insurance Portability and Accountability Act of 1996; or (iii) credit card or any other payment information.
The Product may contain open source materials, as listed here http://www.aylanetworks.com/third-party-software, and may be updated from time to time. Customer shall not take action with any portion of the Product in a manner that would require (a) the Product to be disclosed or distributed in source code format; or (b) the Product to be redistributable at no charge; (c) permits reverse engineering of the Product; or (d) require third party attribution.
Customer grants to Ayla a perpetual, royalty-free, transferable right, with full rights to create derivative works, and otherwise use any comments, suggestions, enhancement requests, recommendations or other feedback provided by Customer.
Both parties agree that any confidential information exchanged shall be kept confidential. Confidential information means any information relating to a party, its business, technology, suppliers, licensors, resellers, distributors, customers, and third parties to whom the disclosing party has an obligation of confidentiality, which is marked as ‘confidential’ or disclosed under circumstances indicating its confidential nature, or otherwise would be considered confidential by a reasonable person.
Customer’s subscription may include a specified number of transactions. A ‘transaction’ is an exchange of information between devices, servers, mobile aps and software APIs. Transactions are counted in accordance with Ayla’s Cloud Platform Usage Policy, found at https://connection.aylanetworks.com/s/article/Cloud-Platform-Usage-Policy, and such policy may be updated from time to time. Credits or refunds will not be available for any unused transactions upon expiration of the term, even if the term is extended.
Customer owns data transmitted to Ayla. In order for Ayla to provide the features included in the subscription, Customer grants to Ayla a worldwide, non-exclusive, royalty-free license: (a) to use, store, process, modify, reproduce, distribute and display the data, and to grant sublicenses to third parties, for the purpose of providing the Product or enhancements thereto, use the data for development, diagnostic, planning, analysis and corrective purposes; and (b) use anonymized data. Anonymized data is data which does not identify an individual, and is not attributed to Customer.
For data obtained from a production unit, subject to Customer’s payment of the fees, data will be available for export by Customer for a period of 3 years, beginning on the first day of the subscription term.
Ayla will provide up to 5 service hours to advise Customer on best practices in the IoT industry, product planning, design, architecture review, and manufacturing considerations.
If the Product does not achieve the functionality specified in applicable documentation, Ayla will use commercially reasonable efforts to correct or replace such non-conformity after Customer's written notice specifying such non-conformity. If the non-conformity cannot be corrected, Ayla will notify Customer, and upon Customer's request, Ayla will refund the fees actually paid by Customer for the affected Product, up to the amount specified in the limitation of liability section. Customer's rights to use the Product and any related services will be terminated upon such refund. Ayla is not responsible for the performance or functionality of any third party software or hardware in which the Product may be embedded. This section constitutes Ayla's sole and exclusive liability in the event of a warranty claim.
EXCEPT FOR THE EXPRESS WARRANTIES CONTAINED HEREIN, EACH PARTY HEREBY DISCLAIMS ALL OTHER WARRANTIES, EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, INCLUDING ANY WARRANTY OF TITLE, MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT. AYLA DOES NOT WARRANT THAT THE PRODUCTS WILL MEET CUSTOMER'S REQUIREMENTS, WILL BE ERROR-FREE OR SECURE, OR WILL BE PROVIDED WITHOUT INTERRUPTION.
Customer will indemnify, defend and hold harmless Ayla from and against any losses, costs, or damages (including attorneys’ fees) in connection with any claims related to its production units.
Limitation of Liability:
EXCEPT FOR DAMAGES ARISING FROM CUSTOMER'S BREACH OF ITS CONFIDENTIALITY OBLIGATIONS, OR RELATED TO THE MISUSE, INFRINGEMENT OR MISAPPROPRIATION OF AYLA'S INTELLECTUAL PROPERTY, NEITHER PARTY WILL BE LIABLE FOR ANY INDIRECT, SPECIAL, INCIDENTAL OR CONSEQUENTIAL DAMAGES RELATED TO THIS CONTRACT. AYLA'S AGGREGATE LIABILITY TO CUSTOMER ARISING FROM OR RELATING TO THIS CONTRACT WILL NOT EXCEED THE AMOUNTS PAID BY CUSTOMER IN THE SIX (6) MONTHS PRECEDING THE EVENT OUT OF WHICH THE ALLEGED LIABILITY AROSE.
Ayla may suspend use of the Product or terminate Customer’s rights if: (i) Customer fails to pay any amounts owed to Ayla, and such breach is not cured within 10 days; or (ii) Customer fails to cure any non-monetary breach within 30 days. Upon termination, the provisions related to limitation of liability, indemnity (for licenses that are not terminated, or for devices), payment and others which by their nature are intended to survive shall survive.
11.1 Assignment. Neither party shall assign, sell, transfer, delegate or otherwise dispose of any rights or obligations hereunder without the prior written consent of the other party. Notwithstanding the foregoing, a party may assign this contract in connection with a merger, consolidation, corporate reorganization, sale of all or substantially all of its assets, sale of stock, change of name or like event, provided that: (a) the assigning party provides notice to the other party; (b) the other party shall have the right to terminate the contract in the event that the assignee is a competitor of the other party.
11.2 Compliance with Law. Each party will comply with all applicable laws, rules and regulations. Customer agrees to comply with the U.S. Export Administration Regulations and the export laws of any country to which either party is subject and will not export or transfer the Product to any destination, person or entity restricted by relevant export laws.
11.3. Government Use. If the Product is acquired by or on behalf of the U.S. Government, then, as provided in FAR 12.212 and DFARS 227.7202-1 through 227.7202-4, as applicable, the U.S. Government's rights in the Product will be as specified herein.
11.4 Force Majeure. Neither party shall be liable for any loss, damage or penalty resulting from delays or failures in performance resulting from force majeure events. Force majeure events are events beyond a party's reasonable control, including acts of nature, labor disputes, the stability or availability of the internet, actions by a governmental authority, telecommunication failures, war, acts of terrorism, riots, civil disturbances, sabotage, power grid failures, and denial of service and other hacking attacks.
11.5 Notices. Any notice required to be given hereunder shall be in writing and delivered personally, by email, or by courier with confirmation of delivery. Notices shall be deemed effective upon receipt.
11.6. Each party represents and warrants that: (a) it has the full corporate right, power and authority to enter into this contract and perform its obligations hereunder; and (b) the execution and performance hereunder, do not violate any obligation of such party. This contract shall be governed by the laws of the State of California, and any dispute hereunder shall be subject to the jurisdiction of the state courts located in Santa Clara County, California and federal courts located in the Northern District of California. The parties disclaim the application of the United Nations Convention on the International Sale of Goods or the Uniform Computer Information Transactions Act to this contract. Any delay or omission of either party to exercise any right or remedy shall not operate as a waiver of any right or remedy. If any provision of this contract is invalid, illegal or unenforceable, that provision shall be limited or eliminated to the extent necessary so that this contract otherwise remains in full force and effect.