End User License Agreement

M10 Networks, Inc. END USER LICENSE AGREEMENT(CLOUD BASED EVALUATION/DEVELOPMENT VERSION) THIS DOCUMENT IS A LEGAL CONTRACT. PLEASE READ IT CAREFULLY. BY CLICKING ON THE “ACCEPT” BUTTON, OR INSTALLING THE MOBILE APP AND USING THE SOFTWARE YOU ARE ENTERING INTO THIS EULA.This End User License Agreement (“EULA”) governs your access to and use of the M10 software solution, consisting generally of the M10 client-side mobile application (the “Mobile App”) and the M10 cloud-based application (together, the “Software”), provided by M10 Networks, Inc. (“M10,” “we,” or “us”) on a beta, evaluation, development, or other non-paid basis.  You wish to evaluate and use the Software as part of the M10 evaluation and development program (the “Beta Program”).  If you subsequently purchase a commercial M10 license from us, the terms of our applicable commercial license agreement will supersede any conflicting terms of this EULA with respect to that purchase.

  1. Acceptance of this EULA.  Your use of and access to the Software are conditioned on your compliance with this EULA and all applicable local, state, national, and international laws, rules and regulations. By clicking on the “accept” button and installing the Mobile App or by using the Software you are indicating that you understand and agree to abide by this EULA. If the Software is to be used by or on behalf of a company or other organization, the individual expressing acceptance of this EULA represents and warrants that he or she has the authority to bind that company or other organization to this EULA, and “you,” and “your” will refer to that company or other organization. If you do not accept all of the terms of this EULA, we will not be able to license the Software to you, you may not use the Software, and you must delete all copies of the Mobile App without retaining any copies thereof.

 

  1. Rights to Use the Software.  Subject to your compliance with this EULA, we grant you a limited, non-exclusive, non-transferable, revocable license during the license period: (i) to install, copy and redistribute the Mobile App in connection with compute fabrics, such as Cascading, etc.; and (ii) to access and use the Software via our cloud-based service (subject to your having a valid Account as described in Section 6 below) or, in the case of the Mobile App, in object code form, solely for your own personal or internal business use in connection with your evaluation of the Software and/or your authorized development of compute fabrics. The foregoing rights may be suspended or terminated as set forth in this EULA. Your rights in the Software will be limited to those expressly granted in this Section 2. We and our licensors reserve all rights and licenses in and to the Software not expressly granted to you under this EULA. You will reproduce all of M10’s and its licensors’ copyright notices and any other proprietary rights notices on all copies of the Software (or any portion thereof) that you make, and will further ensure that all such copies are accompanied by a copy of this EULA.

 There are no license fees for your use of the Software under this EULA. You are responsible for all costs and expenses associated with the use of the Software and the performance of all testing and evaluation activities. 

  1. Prohibitions.  You acknowledge that this EULA does not grant any rights to use the Software in a production environment or for direct revenue-generating purposes. These activities are strictly prohibited, and you agree not to make any such use of the Software or to access or use the Software for any other purpose that is not expressly authorized in Section 2 above.

 YOU ACKNOWLEDGE THAT M10 DOES NOT HAVE ANY MONEY TRANSMITTER LICENSES OR MONEY SERVICE BUREAU LICENSES AND YOU WILL NOT USE THE SOFTWARE IN A MANNER THAT WOULD CAUSE M10 TO HAVE TO BE LICENSED AS A MONEY TRANSMITTER OR MONEY SERVICE BUREAU.

You acknowledge that the Software contains trade secrets of M10 and its licensors, and, in order to protect such trade secrets and other interests that M10 and its licensors may have in the Software, you may not, and you agree not to: (i) reverse engineer, decompile or disassemble the Software; (ii) sell or sublicense the Software; (iii) modify the Software; (iv) distribute or copy the Software, except that you may copy or distribute the Mobile App as expressly permitted in Section 2; (v) use the Software in any unlawful manner, for any unlawful purpose, or in any manner inconsistent with this EULA or our applicable documentation; (vi) access or use any areas of the Software for which we have not granted you authorization, or tamper or interfere with our computer systems or the technical delivery systems of our providers; or (vii) encourage, authorize, or enable anyone to do any of the foregoing.

You promise to indemnify and hold harmless M10 and its representatives fully against any claims, liabilities, costs, expenses, and other harm arising from your unauthorized use of the Software or any other violation of this EULA (including any of the prohibitions stated above). We reserve the right, but have no obligation, to monitor compliance with the prohibitions set forth above, and we may investigate and prosecute violations of any of the above and/or involve and cooperate with law enforcement authorities in prosecuting users who violate this EULA. 

  1. Ownership.  Your rights with respect to the Software are limited to those expressly granted in Section 2 above. We and our licensors reserve sole and exclusive ownership of the Software and all copyrights, patents, trademarks, and other intellectual property rights therein. You may not remove, alter, or obscure any copyright, trademark, or other proprietary rights notices appearing on the Software. If you provide us with any suggestions, comments, or other feedback regarding the Software (“Feedback”) you acknowledge that such Feedback will become the exclusive property of M10, and we may use (or not use) any such Feedback in any manner and for any purpose, without compensation to you and without implying or creating any interest on your part in any of our products or services that may be based on such Feedback. You hereby irrevocably assign to us all right, title, and interest in any feedback you provide.

 

  1. Modifications to Software.  The Software may change from time to time and/or we may stop (permanently or temporarily) providing the Software (or features within the Software), possibly without prior notice to you. We may decide to charge users a fee for the use of certain features, although if we do, we will provide you with prior notice before such fees apply to you.

 

  1. Your Account.  In order to access and use certain features of the Software, you will need to register and create an account with us (“Account”). By creating an Account, you represent that you are of legal age to form a binding contract and are not a person barred from receiving services under the laws of the United States or any other applicable jurisdiction. When creating an Account, you may be required to provide certain personal information about yourself and will establish a username and a password. You agree to provide accurate, current and complete information about your Account. Your Account may give you access to other features of the M10 websites, such as the cascading.org community website, which are also subject to the Terms of Service of the sites; accordingly, you may be required to accept those Terms of Service in order to create an Account. We reserve the right to suspend or terminate your Account if: (i) any information provided during the registration process or thereafter is or becomes inaccurate, false or misleading; or (ii) your Account is inactive for more than one (1) year. (Please also see Section 11 for other terms for termination.) You are responsible for maintaining the confidentiality of your password and Account, and agree to notify us if your password is lost, stolen, or disclosed to an unauthorized third party, or otherwise may have been compromised. You are responsible for all activities that occur under your Account.

 

  1. Data Collection and Transmission; Privacy Policy.  In order for the Software to perform the functions for which it was designed, the Software will gather and transmit to our servers certain technical information, Account information, and metadata associated with your use of the Software, including but not limited to application telemetry, IP addresses, IP configurations, stored sessions, open ports, account credentials, network metadata, and device operating system, status, version, and configuration (collectively, “Metadata”). For clarity, this “Metadata” is used to power the M10 Software and will not include any of the actual data that you process with the compute fabrics.


You consent to our collection, transmission, storage, monitoring, copying, processing, analysis and use of the Metadata to administer, develop and improve the Software and our other products and services, and to monitor compliance with this EULA. You acknowledge that this may include transmission of your Metadata to or from locations in the United States, Europe, and other countries or jurisdictions, potentially including those outside of where you reside or use the Software. We may also disclose Metadata as needed to cooperate with law enforcement activities and otherwise to fulfill our legal obligations and protect our legal rights but we otherwise will not disclose personally identifiable Metadata without your consent. You are solely responsible for securing any privacy-related rights and permissions from your individual users of the Software, consistent with this Section 7, as may be required by local law or by your organization’s internal policies. M10’s Privacy Policy (available at http://m10.io/privacy) (the “Privacy Policy”) applies to the Beta Program and the Software provided under this EULA. You acknowledge and agree that by participating in the Beta Program or by using the Software, M10 may receive certain information about you. including personally identifiable information. and you hereby consent to M10’s collection, use and disclosure such information in accordance with the Privacy Policy. 

  1. Contacting You and Feedback.  As part of providing the Software to you, we may need to provide you with certain communications, such as service announcements and administrative messages. These communications are considered part of the Software and your Account, which you may not be able to opt-out from receiving.

 You agree to report any flaws, errors or imperfections discovered in the Software or other materials where you have been granted access to.   You  understand that prompt and accurate reporting is the purpose of the Beta Program and you undertake to use your best efforts to provide frequent reports on all aspects of the product both positive and negative and you acknowledge that any improvements, modifications and changes arising from or in connection with your contribution to the Software, shall remain or become the exclusive property of M10. 

  1. Confidentiality.  “Confidential Information” means the Software; any features, results or output produced by, and other information relating to, the Software (including, without limitation, all Feedback); and any business or technical information of M10 that is disclosed to you in connection with this EULA. The obligations in this section will not apply to the extent any information: (i) is or becomes generally known to the public through no fault or breach of this EULA by you; (ii) is rightfully known by you at the time of disclosure without an obligation of confidentiality; (iii) is independently developed by you without access to or use of any Confidential Information; or (iv) is rightfully obtained by you from a third party without restriction on use or disclosure. You will not use or disclose any Confidential Information, except as necessary to exercise the rights expressly granted to you in this EULA. You will use all reasonable efforts to protect Confidential Information from unauthorized use or disclosure, but in no event less than the efforts that you ordinarily use with respect to your own proprietary information of a similar nature and importance. If you are an organization, you may disclose Confidential Information only to individuals within your organization who have a bona fide need to know such Confidential Information for the exercise of your rights under this EULA, and you must ensure that each such individual first executes a written agreement (or is otherwise already bound by a written agreement) that contains use and nondisclosure restrictions at least as protective of the Confidential Information as those set forth in this EULA.

 

  1. Audit and Verification.  At any time during the term of this EULA, we may (but are not required to) monitor or, upon reasonable notice, audit your use of the Software (including by conducting an audit at your premises during normal business hours) as reasonably necessary to confirm your compliance with this EULA. We may use a third-party organization reasonably acceptable to you to assist us in conducting such an audit. You agree to cooperate with us (and any such third-party organization) in connection with any such audit and will promptly make available to us all information and materials reasonably required by us to conduct such an audit. In addition, you agree to track and keep records of the individual users using the Software and promptly notify us if you learn of any unlicensed use. At our written request, you will provide us with a certification signed by you (or, if you are an organization, by an officer of the organization) verifying that the Software is being used in compliance with this EULA.

 

  1. Termination.  If you received access to the Software as part of a M10 beta or evaluation program, your rights under this EULA will expire at the end of the applicable beta or evaluation period (as specified by M10 in connection with that program). Otherwise, your rights under this EULA will continue until we cease making the Software available to you or terminate this EULA as provided below. We have no obligation to offer license renewals or extensions, and we may condition renewals upon your acceptance of revised or new terms and conditions. Your rights under this EULA will automatically terminate, and we may suspend or terminate your Account and your use of the Software, immediately and without notice if you breach any of the terms in this EULA. In addition, we may suspend your Account and your use of the Software as we deem appropriate to prevent, investigate, or otherwise address any suspected misuse of the Software. Upon expiration or termination of this EULA or your Account, you agree to promptly and permanently delete all copies of the Software that are in your possession or control. The provisions of Sections 3, 4, 9, 10 and 12 through 17 will survive any expiration or termination of this EULA.

 

  1. Acknowledgment and Disclaimers.  You understand and agree that the Software is provided to you “AS IS” and on an “AS AVAILABLE” basis as part of the Beta Program. TO THE FULLEST EXTENT PERMISSIBLE UNDER APPLICABLE LAW, WE DISCLAIM ANY AND ALL WARRANTIES, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, INCLUDING ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, QUIET ENJOYMENT OR NON-INFRINGEMENT, AND ANY WARRANTIES ARISING OUT OF COURSE OF DEALING OR USAGE OF TRADE. We make no warranty that the Software will meet your requirements or be available on an uninterrupted, secure, or error-free basis.

Some states or jurisdictions do not allow the exclusion of express or implied warranties in certain circumstances, so the above disclaimer may not apply to you. IN THAT EVENT, SUCH EXPRESS OR IMPLIED WARRANTIES SHALL BE LIMITED IN DURATION TO THE MINIMUM PERIOD REQUIRED BY THE APPLICABLE LAW.
You acknowledge that: (i) the Software made available under this EULA is part of the Beta Program or may otherwise not have been made commercially available by M10; (ii) the Software may not operate properly, be in final form or fully functional; (iii) the Software may contain errors, design flaws or other problems; (iv) the data, information or content obtained using the Software may not be accurate; (v) use of the Software may result in unexpected results, corruption or loss of data, information, content or communications, or other unpredictable damage or loss; (vi) M10 has no obligation to release a commercial version of the Software; and (vii) M10 has the right unilaterally to abandon development of the Software, at any time and without any obligation or liability to you. You assume all risk arising from use of the Software, including, without limitation, the risk of damage to your computer system, device or the corruption or loss of data, information or content. You will be solely responsible for all costs and expenses required to restore any data, information or content that is corrupted or lost as a result of your use of the Software. YOU ACKNOWLEDGE THAT M10 DOES NOT HAVE ANY MONEY TRANSMITTER LICENSES OR MONEY SERVICE BUREAU LICENSES AND YOU WILL NOT USE THE SOFTWARE IN A MANNER THAT WOULD CAUSE M10 TO HAVE TO BE LICENSED AS A MONEY TRANSMITTER OR MONEY SERVICE BUREAU.  

  1. Limitation of Liability.  WE WILL HAVE NO LIABILITY TO YOU WHATSOEVER, FROM ANY CAUSES OF ACTION OR UNDER ANY THEORIES OF LIABILITY, ARISING IN ANY WAY OUT OF THIS EULA OR RESULTING FROM YOUR ACCESS TO, USE OF, OR INABILITY TO ACCESS OR USE THE SOFTWARE; PROVIDED, HOWEVER, THAT WHERE LEGAL LIABILITY CANNOT BE EXCLUDED, BUT MAY BE LIMITED, OUR TOTAL LIABILITY SHALL INSTEAD BE LIMITED TO THE SUM OF FIFTY U.S. DOLLARS ($50).


WE WILL NOT BE LIABLE TO YOU FOR ANY INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL OR PUNITIVE DAMAGES, OR FOR COSTS OF SUBSTITUTE GOODS OR SERVICES, OR FOR LOSS OF PROFITS, DATA, USE, GOODWILL, OR OTHER INTANGIBLE LOSSES, ARISING IN ANY WAY OUT OF THIS EULA OR RESULTING FROM YOUR ACCESS TO, USE OF, OR INABILITY TO ACCESS OR USE THE SOFTWARE, WHETHER BASED ON WARRANTY, CONTRACT, TORT (INCLUDING NEGLIGENCE) OR ANY OTHER LEGAL THEORY, WHETHER OR NOT WE HAVE BEEN INFORMED OF THE POSSIBILITY OF SUCH DAMAGE, AND EVEN IF A REMEDY SET FORTH HEREIN IS FOUND TO HAVE FAILED OF ITS ESSENTIAL PURPOSE. 

  1. Maintenance and Support.  We have no software maintenance or technical support obligations under this EULA. We may from time to time offer maintenance and support services or other add-on services for the Software for you to purchase. Any add-on services will be subject to such separate fees and contract terms and conditions as we may specify when offering those services.

 

  1. Export Control.  You agree to comply fully with all relevant export laws and regulations of the United States and other applicable jurisdictions to ensure that neither the Software, nor any direct product thereof, are: (i) downloaded or otherwise exported or re-exported directly or indirectly in violation of such export laws and regulations; or (ii) used for any purposes prohibited by the such export laws and regulations, including but not limited to nuclear, chemical, or biological weapons proliferation.

 

  1. U.S. Government End Users.  The Software consists of “commercial items,” “commercial computer software” and “commercial computer software documentation,” as those terms are used in FAR Subpart 12.2, DFARS 227.7202 and other government acquisition regulations, as applicable. Any use, duplication, or disclosure of the Software by the U.S. government is permitted solely as expressly provided in Section 2 above, and is subject to restrictions as set forth in this EULA.

 

  1. General.  This EULA will be governed by and construed in accordance with the laws of the State of California, without regard to or application of conflict of laws rules or principles. The parties to this EULA irrevocably consent to the jurisdiction of, and venue in, the state or federal courts located in the State of California for any disputes arising under this EULA. 

 This is the entire agreement between the parties relating to the subject matter hereof and all other terms are rejected. No waiver or modification of this EULA shall be valid unless in writing signed by each party.  The waiver of a breach of any term hereof shall in no way be construed as a waiver of any term or other breach hereof.  Our failure to enforce any right or provision of this EULA will not be deemed a waiver of such right or provision.  In the event that any provision of this EULA is held to be invalid or unenforceable, the remaining provisions of this EULA will remain in full force and effect.  You may not assign, delegate or transfer this EULA or any of your rights or obligations hereunder without our prior written consent, and any attempt to do so will be void. We may assign this EULA without your consent.  This EULA constitutes the entire agreement between you and us regarding the Software, and it supersedes and replaces any prior agreements and understandings between you and us regarding the Software (except as expressly stated in the first paragraph of this EULA with regard to any commercial M10 license you may have purchased). 

  1. Contacting Us.  If you have any questions regarding this EULA please contact us via email at info@M10.io.