This is a License Agreement (the “Agreement”) for the Saisei Traffic Manager (STM), as further defined
below, owned by Saisei Networks, Inc. (“Saisei′′). Please read this Agreement. By enabling Your
users/subscribers to access and utilize the Saisei STM, You agree to these terms. If You do not agree to
the terms of this Agreement, You may not, nor allow others to, install, access or utilize the Saisei STM for
any purpose. If the Licensed Materials have been provided to You for evaluation purposes (“Evaluation
Materials”), the terms and conditions set forth below shall apply unless specific alternative terms are set
forth for the Evaluation Materials.
1. Definitions. In this Agreement, the following definitions shall apply (in addition to those set forth in the
body of this Agreement):
“You” or “Your” means the party purchasing the Saisei STM subscription and utilizing the software
“Initial Term” means the initial subscription term specified in the Order. Upon the conclusion of the Initial
Term, this Agreement may be renewed for successive periods.
“Licensed Materials” means the Saisei STM and all associated written or electronic documentation
(“Documentation”) that is provided by Saisei to You for use in conjunction with the operation of the Saisei
“Order” means an order by You for a subscription license to the Saisei STM.
“Saisei STM” means Saisei′s proprietary software appliance that runs on standard x86 hardware and
enables flow-based network visibility, policy control & advanced traffic engineering.
2. Orders; Fees. You shall place Orders directly with Saisei or as directed by Saisei. No Order will be
binding unless acknowledged and accepted in writing or by e-mail by Saisei. The fees for licensing the
Licensed Material shall be set forth in the Order (the “Fees”), and do not include taxes. You assume the
obligation for and shall pay when due all present and future taxes, excluding any taxes on or measured
by Saisei′s net income. All Fees are payable net thirty (30) days from the date of invoice, in U.S. dollars
3. License; Restrictions. In consideration of Your payment to Saisei of the Fees, You are granted (for
the Term specified in the Order), for Your internal use only, a non exclusive, non-transferable license,
without right to sublicense, to (a) allow the number of examiners (users/subscribers) specified in the
Order access and use of Saisei STM; and (b) use the Documentation. All Licensed Materials under this
Agreement are licensed and not sold and shall remain, the sole and exclusive property of Saisei. Saisei
reserves all other rights to the licensed Materials and all intellectual property relating thereto not
specifically licensed in this Agreement. You shall not sell, transfer, rent, copy, duplicate, reverse engineer,
reverse compile, modify or create derivative works of, tamper with or grant any rights in Licensed
Materials. You agree to the display of any copyright and trademark notices incorporated by Saisei.
If the Licensed Materials have been provided to You as Evaluation Materials, such use shall be (a) limited
to thirty (30) days from delivery (the “Evaluation Period”) for use on no more than two (2) systems, and (b)
Evaluation Materials may be used solely for Your internal evaluation of the suitability of the Evaluation
Materials and in no event for production use, unless otherwise agreed in writing.
You shall defend, indemnify and hold harmless Saisei from all claims, damages, and losses, howsoever
arising and whether direct, indirect, or consequential, including all legal fees and expenses, arising from
claims brought by any third party relating to Your use of the Licensed Materials.
Saisei Networks, Pte Ltd Reseller Agreement 12 CONFIDENTIAL Updated 08-07-14
4. Ownership. Unless otherwise expressly agreed to in writing by Saisei, all written materials, including
programs, files, specifications and documentation and any work product, patents, information, inventions
or copyrightable material that are produced by Saisei or any of its employees or consultants during the
course of its performance hereunder or results from the performance of any services by Saisei shall be
the sole property of Saisei. You are granted a license to use such material to the extent necessary to
obtain the benefits contemplated by the license granted by this Agreement.
5. Warranties; Disclaimer. Saisei warrants that for the Initial Term (“Warranty Period”), the Saisei STM
will conform in all material respects to the applicable specifications. If the Saisei STM does not meet
Saisei′s warranty during the Warranty Period, Saisei will (at its option), as Your sole and exclusive
remedy, (a) repair, replace or modify the Saisei STM so it will comply with the applicable warranty, or (b)
terminate that portion of the Order that cannot be made compliant with applicable specifications and
refund to you the pro-rated portion of unused Fees of the Saisei STM within thirty (30) calendar days of
the termination of the respective license. Saisei warranties are for the benefit of You only and are void if
the Saisei STM is used in violation of the applicable Documentation or Saisei′s instructions. THE
FOREGOING WARRANTIES ARE IN LIEU OF AND EXCLUDE ALL OTHER EXPRESS AND IMPLIED
WARRANTIES, INCLUDING BUT NOT LIMITED TO, WARRANTIES OF MERCHANTABILITY, FITNESS
FOR A PARTICULAR PURPOSE, ERROR FREE OPERATION OR NON-INTRUSION DUE TO
HACKING OR OTHER SIMILAR MEANS OF UNAUTHORIZED ACCESS.
NOTWITHSTANDING THE GENERALITY OF THE FOREGOING, HOWEVER, EVALUATION
MATERIALS ARE PROVIDED “AS IS” ONLY, WITHOUT WARRANTIES OF ANY KIND.
6. Limitation of Liability. NOTWITHSTANDING ANY PROVISION OF THIS AGREEMENT TO THE
CONTRARY, IN NO EVENT SHALL SAISEI OR ITS SUPPLIERS, OFFICERS, DIRECTORS,
EMPLOYEES, AGENTS, SHAREHOLDERS OR CONTRACTORS (“RELATED PARTIES”) BE LIABLE
TO YOU FOR CONSEQUENTIAL, INCIDENTAL, SPECIAL, PUNITIVE OR EXEMPLARY DAMAGES
(INCLUDING BUT NOT LIMITED TO LOST REVENUES, PROFITS OR DATA OR OTHER ECONOMIC
LOSS), OR THE COST OF COVER TO PROCURE SUBSTITUTE GOODS OR SERVICES,
REGARDLESS OF THE CAUSE OF ACTION, EVEN IF ADVISED OF THE POSSIBILITY OF SUCH
DAMAGES. IN ADDITION, THE MAXIMUM LIABILITY OF SAISEI AND ITS RELATED PARTIES,
TAKEN AS A WHOLE, FOR ANY AND ALL CLAIMS IN CONNECTION WITH THIS AGREEMENT AND
THE LICENSE MATERIALS, REGARDLESS OF THE FORM OF ACTION, SHALL IN NO
CIRCUMSTANCE EXCEED THE FEES PAID TO SAISEI FOR THE LICENSED MATERIALS GIVING
RISE TO THE LIABILITY, OR, FOR EVALUATION MATERIALS, $100.00 USD.
7. Termination. Either party may immediately terminate the Order if the other party: (a) fails to cure a
material breach of these terms and conditions (provided such breach is capable of cure) within thirty (30)
calendar days after its receipt of written notice regarding such breach; (b) becomes insolvent or commits
an affirmative act of insolvency or makes an assignment for the benefit of creditors or takes similar action;
(c) files a voluntary bankruptcy or similar petition or acquiesces to any involuntary bankruptcy or similar
petition which is not dismissed within ninety (90) days; or (d) is adjudicated bankrupt or to similar effect. In
the event of such termination, the non-defaulting party shall have no liability to the defaulting party in
connection herewith, except that You shall pay Saisei the Fees due pro rata based on the term of the
applicable Order(s). All provisions of this Agreement that reasonably may be interpreted or construed as
surviving termination of this Agreement shall survive the termination of this Agreement.
8. Confidentiality. As used in this Agreement, “Confidential Information” means all information of either
party that is not generally known to the public, whether of a technical, business or other nature (including,
without limitation, trade secrets, know-how and information relating to the technology, strategic partners,
customers, business plans, promotional and marketing activities, finances and other business affairs of
such party), that is disclosed by one party to the other party or that is otherwise learned by the receiving
party in the course of its discussions or business dealings with the disclosing party. Confidential
Information of Saisei also includes the terms, conditions and pricing of this Agreement. The obligations of
either party herein shall not extend to any information that recipient can demonstrate through written
Saisei Networks, Pte Ltd Reseller Agreement 13 CONFIDENTIAL Updated 08-07-14
documentation was already known to the recipient prior to its disclosure to the recipient, was or becomes
known or generally available to the public (other than by act of the recipient), is disclosed or made
available in writing to the recipient by a third party having a bona fide right to do so, is independently
developed by recipient without the use of any Confidential Information, or is required to be disclosed by
process of law, provided that the recipient shall notify the disclosing party promptly upon any request or
demand for such disclosure.
9. Amendment. This Agreement may be changed only in writing signed by Saisei and You, and no effect
shall be given to terms set forth in any purchase order, confirmation or similar document provided by You
(a) You agree that You will not use, distribute, transfer, or transmit the Licensed Materials or Confidential
Information in violation of U.S. export regulations.
(b) This Agreement shall be governed by the laws of the State of California, U.S.A., excluding (i) its
conflicts of laws principles; (ii) the United Nations Convention on Contracts for the International Sale of
Goods; and (iii) the Uniform Computer Information Transactions Act (UCITA) as adopted by any state.
(c) Neither party may assign any of its rights or delegate any of its obligations under this Agreement
without the prior written consent of the other party (which consent shall not be unreasonably withheld),
except either party may assign its rights or delegate its duties under this Agreement to the surviving entity
in a merger or consolidation or to a purchaser of all or substantially all the assets of its business. Any
assignment or delegation in contravention of this provision shall be null and void. All the terms and
provisions of this Agreement will be binding upon and inure to the benefit of and be enforceable by the
parties and their respective successors and permitted assigns. Nothing in the foregoing shall be deemed
to prevent Saisei from using subcontractors in meeting its obligations hereunder.
(d) The failure by either party hereto at any time to require performance by the other party or to claim a
breach of any provision of this Agreement shall not be construed as affecting any subsequent right to
require the performance or to claim a breach with respect thereto.
(e) The provisions of this Agreement shall not be construed to establish any form of partnership, agency
or other joint venture of any kind between You and Saisei, or to constitute either party as the agent,
employee or legal representative of the other.
(f) If the performance by a party of any of its obligations under this Agreement (other than payment
obligations) shall be interfered with by reason of any circumstances beyond the reasonable control of that
party, including without limitation, fire, explosion, acts of God, war, revolution, terrorism, civil commotion,
unavailability of supplies, or sources of energy or telecommunications, power failure, breakdown of
machinery, labor strikes, slowdowns, picketing or boycotts, or governmental/administrative restrictions on
the importation or exportation of products, then that party shall be excused from such performance while
such circumstances exist.
(g) Any provision of this Agreement that is unenforceable shall not cause any other remaining provision to
be ineffective or invalid.
(h) In the event a dispute between the parties hereunder with respect to this Agreement, the prevailing
party shall be entitled to receive reimbursement for all associated reasonable costs and expenses
(including, without limitation, attorneys’ fees).
(i) The Licensed Materials are “commercial computer software” or “commercial computer software
documentation.” Absent a written agreement to the contrary, the U.S. Government’s rights with respect to
such Licensed Materials are limited by the terms of this Agreement, pursuant to FAR § 12.212(a) and/or
DFARS § 227.7202-1(a), as applicable