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This Advanced Access Program Agreement (the "Agreement") with Riverbed Technology, Inc. ("Riverbed") states the terms and conditions of Company’s participation in the Riverbed Advanced Access Program outlined below. The term “Company” refers to you individually, or if you are entering into this Agreement on behalf of a company or other legal entity, to such company or entity. To the extent that you are acting on behalf of a Company, you hereby represent and warrant that you have the authority to bind such Company to the terms of this Agreement. BY ACCEPTING THIS AGREEMENT, EITHER BY CLICKING A BOX INDICATING ACCEPTANCE OF THIS AGREEMENT, BY PROCEEDING WITH REGISTRATION TO THE PROGRAM, OR BY PARTICIPATING IN THE PROGRAM, INCLUDING RECEIVING ANY PRE-RELEASE PRODUCT, COMPANY AGREES TO BE BOUND BY ALL TERMS HEREOF. IF COMPANY DOES NOT AGREE TO THE TERMS HEREOF, OR IF THE INDIVIDUAL ACCEPTING THIS AGREEMENT DOES NOT HAVE THE AUTHORITY TO BIND COMPANY TO THE TERMS HEREOF, THEN COMPANY MAY NOT PROCEED WITH REGISTRATION OR PARTICIPATION IN THE PROGRAM AND MUST REJECT THIS AGREEMENT.
1. Participation in Riverbed Advanced Access Program.
1.1. This Agreement sets forth the terms and conditions under which Company will participate in the Riverbed Advanced Access Program (“Program”) for purposes of installing, using and testing certain pre-release versions of Riverbed software or hardware (“Products”). As of the Effective Date, Company is a Program participant and entitled to receive those benefits, and participate in such activities, as Riverbed may provide in connection with such Program from time to time.
1.2. Advanced Access Product Schedules. Specific Program activities will be set forth in one or more “Product Schedule(s)” provided by Riverbed (the “Schedule(s)”) that will incorporate the terms of this Agreement by reference and detail the Pre-Release Products being tested, the Testing Period, Testing Site, and contact persons for the parties. Product Schedules may be signed by the parties, or acknowledged via electronic documents exchanged between and confirmed by the parties using the procedure described in section 3.1 below.
2.1. “Equipment” means the hardware delivered by Riverbed to Customer under this Agreement.
2.2. “Pre-Release Product(s)” means any Product identified on a Schedule, and its associated Documentation, which has yet to undergo final testing and qualification by Riverbed and has not been issued for general availability, and shall also include any subsequent or modified versions of the foregoing that Riverbed may, in its sole discretion, choose to provide the Company under the terms of this Agreement.
2.3. "Software" means the computer programs provided by Riverbed to the Company, separately or in connection with its use of the Equipment, and which may include any software embedded in the Equipment.
2.4. "Documentation" means any supporting materials which Riverbed may provide to the Company in connection with its use of the Pre-Release Products.
3. Schedules, Delivery and Return of Products
3.1. Schedules. Company may from time to time submit a Schedule under this Agreement using an electronic document provided by Riverbed, and sent by email. Company may accept the Schedule by using procedures mutually agreed by the parties which may include, but is not limited to clicking an “Accept” button in the email, or by a reply email stating “Accept”. Riverbed shall not be under any obligation to make Products available under this Agreement until a properly acknowledged Schedule is received from Company. Company specifically agrees that Riverbed is entitled to rely on, process and fulfill, and that Company shall be bound by, shall be responsible for, and shall not dispute the legal sufficiency of, or the contents of, any Schedules confirmed electronically (an “Electronic Schedule”). Any mechanically or magnetically stored data pertaining to Electronic Schedules, or printouts thereof, and any communication that is stored contemporaneously with, by a reliable method in the regular course of business, shall be admissible evidence of such Schedule. Riverbed may periodically request confirmation or verification of specific Electronic Schedules. Company shall promptly notify Riverbed if Company suspects that an Electronic Schedule (i) has been placed by someone whom Company has not, or no longer wishes to be, authorized to submit an Electronic Schedule; or (ii) has not been processed correctly by Riverbed.
3.2. Delivery of Pre-Release Product. Riverbed will ship the Pre-Release Products to the testing site listed in a Schedule at a mutually agreed upon time. Riverbed will be responsible for all shipping costs for the delivery of the Pre-Release Products to the Company.
3.3. Return of Pre-Release Products. Company agrees to return any Pre-Release Products, including all copies of Software and Documentation to Riverbed at Riverbed’s expense on or before the Testing End Date listed in a Schedule. Company will be responsible, and will reimburse Riverbed, for loss of or damage to the Pre-Release Product while in Company’s possession.
4. Program Benefits, Riverbed Obligations. Riverbed will on occasion make available to Company, as a Program participant access to (i) Riverbed Product support material; (ii) technical support as Riverbed, in its reasonable discretion, deems necessary to assist Company to properly install and operate the Pre-Release Products.
5. Company Obligations.
5.1. Testing. Testing activities may be conducted jointly by Riverbed and Company and may require frequent interaction between Riverbed personnel and a technical representative at Company’s testing location. During the “Testing Period” listed in a Schedule, the Company will use the Pre-Release Product solely to internally test and evaluate the functionality, performance compatibility and reliability of the Product. Customer shall not use Product(s) for any other purpose except as expressly stated herein.
5.2. Restrictions on Use. The Company agrees not to (i) copy, modify, reverse engineer, decompile or disassemble the Pre-Release Product, make derivative works based upon the Product, or use the Product to develop any products, (ii) sell, license, rent, lease or otherwise transfer the Pre-Release Product (or any part thereof) to, or use it for the benefit of, any third party, or (iii) publish or provide any benchmark or comparison tests to any third party or assist any third party to do any of the foregoing. The Company will not remove the Pre-Release Products from Testing Site. Under no circumstance may the Pre-Release Products be used in a network accessible by third parties or any production environment. Company will not export, or allow the export or re-export of the Pre-Release Product or any Confidential Information in violation of any applicable export laws, restrictions or regulations of the United States or any applicable foreign agency or authority.
5.3. Product Information, Reporting. The Company agrees to provide Riverbed with feedback on Pre-Release Product performance, stability and other relevant information to assist Riverbed in the ongoing development and improvement of the Pre-Release Products. Riverbed shall have a royalty-free, worldwide, transferable, sublicenseable, irrevocable, perpetual license to use or incorporate into the Pre-Release Products any such feedback, or any other suggestions, enhancement requests, recommendations provided by Company relating to the Pre-Release Products. Any information on testing, data, analysis or results of any comparative, competitive, benchmarking or infringement testing of the Pre-Release Product(s) is Riverbed Confidential Information. Use and publication of any test data is at the sole discretion and control of Riverbed.
6. Software License. Riverbed hereby grants to Company a personal, non-transferable, non-sublicensable, non-exclusive license to use the Software during the Testing Period, and hereof solely in accordance with the Documentation and solely for the purpose of testing and evaluating the Product. Except as expressly set forth at http://www.riverbed.com/license/additional_use_rights, Company may use each licensed copy of the Software only as embedded in or for execution on a specific unit (or replacement thereof) of Riverbed hardware owned or leased by Company (including any units of replacement for the foregoing provided as part of warranty or support services).
7. Pre-Release Products Are Experimental. Riverbed’s supplying of the Pre-Release Products does not represent a commitment, promise or legal obligation on Riverbed's part to deliver any new products, features or functionality for general availability. Riverbed does not commit, promise, or agree to finally release and/or offer for sale the Pre-Release Product(s), whether or not perfected, and the development, release, and timing of any features or functionality remains at Riverbed's sole discretion. Riverbed reserves the right to unilaterally cease and abandon the Pre-Release Product(s) at any time without any obligation or liability whatsoever. Company shall have no obligation or commitment to (i) purchase Pre-Release Product(s) that are Equipment, or (ii) license Pre-Release Product(s) that are Software, whether such is subsequently perfected or not. Company acknowledges that any orders for other products that Riverbed sells are not in reliance on the Pre-Release Products furnished pursuant to this Agreement ever becoming a commercial product. Further, Riverbed assumes no liability in connection with any uses of the Pre-Release Products whatsoever, including without limitation, installation and use by Company in a production environment, on production-quality Equipment, or in combination with other Software or data supplied by Riverbed or used together with the Pre-Release Products.
8.1. Equipment. Company acknowledges that the Equipment supplied as a Pre-Release Product is loaned to the Company only for the testing purposes set forth herein and that Riverbed retains ownership of all right, title and interest to the Product and the intellectual property rights related thereto.
8.2. Software. Software supplied as a Pre-Release Product is licensed only for the express purposes hereunder. No title to, or ownership of, the Software or Documentation is transferred to Company. Company shall reproduce and include copyright and other proprietary notices on and in any copies, including but not limited to partial, physical or electronic copies, of the Software and Documentation.
9. Disclaimer of Warranty. COMPANY ACKNOWLEDGES AND AGREES THAT THE PRE-RELEASE PRODUCT(S) ARE PROVIDED “AS IS’’ AND MAY NOT BE FUNCTIONAL IN COMPANY’S ENVIRONMENT. COMPANY’S USE OF THE PRODUCT IS ENTIRELY AT ITS OWN RISK. RIVERBED MAKES NO WARRANTIES IN CONNECTION WITH THE PRODUCT, EXPRESS, IMPLIED, STATUTORY OR OTHERWISE. RIVERBED SPECIFICALLY DISCLAIMS ALL IMPLIED WARRANTIES, INCLUDING WARRANTIES OF MERCHANTABILITY, NONINFRINGEMENT AND FITNESS FOR A PARTICULAR PURPOSE, OR ARISING FROM A COURSE OF DEALING, USAGE OR TRADE PRACTICE. COMPANY AGREES ALL PRODUCT TESTS SHALL BE CONDUCTED IN A NON-PRODUCTION ENVIRONMENT. RIVERBED DISCLAIMS ANY LIABILITY WHATSOEVER FOR PRODUCT TESTS PERFORMED IN A PRODUCTION ENVIRONMENT.
10.1. Either party may terminate this Agreement (i) for any reason, by giving the other thirty (30) days’ prior written notice to the other party; or (i) immediately, on notice, in the event of a material breach by such other party. The effect of such termination shall be that no new Schedule may be signed referencing this Agree¬ment after such termination. However, such termination shall not serve to terminate any Schedule in effect prior to the date on which termination of this Agreement takes effect, unless termination is due to material breach hereof, in which case termination of the Agreement shall serve to immediately terminate all Schedules.
10.2. Membership in the Program requires that the Company participate in one or more Product testing cycles per calendar year. Riverbed reserves the right to cancel this agreement immediately if the Company does not continue to meet this requirement.
10.3. Schedules. Each Schedule shall commence on the date specified on the applicable Schedule; and unless otherwise terminated sooner, shall (i) terminate when either party sends the other a notice of termination for convenience, which notice shall be effective ten (10) days after receipt by the non-terminating party; or (ii) terminate immediately upon written notice in the event of a material breach by the non-terminating party; or (iii) end on the Evaluation End Date specified in such Schedule, whichever occurs first. A notice of termination hereunder may specify that it applies to all or only a portion of the Pre-Release Product(s) listed on the applicable Schedule.
10.4. Upon expiration or termination of this Agreement, Company shall immediately cease use of the Pre-Release Products and shall return the Pre-Release Products to Riverbed, including all Confidential Information and data (including all copies thereof) then in Company's possession or control, and certify in writing as to such action. Upon termination hereof for any reason, the terms of the following sections shall survive: 3.3, 5.2, 5.3, and 7-13. If Company fails return the Pre-Release Products after the end of the Testing Period, Riverbed may at any time during normal working hours and not excluding any other remedies Riverbed may have, enter the Test Site and remove the Products with no liability to Company and at Company’s expense.
11. Limited Liability. RIVERBED SHALL NOT BE RESPONSIBLE OR LIABLE WITH RESPECT TO ANY SUBJECT MATTER OF THIS AGREEMENT, INCLUDING ANY SCHEDULE ISSUED PURSUANT TO THIS AGREEMENT, UNDER ANY CONTRACT, NEGLIGENCE, STRICT LIABILITY OR OTHER THEORY (A) FOR LOSS OR INACCURACY OF DATA, COMPUTER FAILURE OR MALFUNCTION, DAMAGES RESULTING FROM LICENSEE'S USE OF THE PRODUCT OR COST OF PROCUREMENT OF SUBSTITUTE GOODS, SERVICES OR TECHNOLOGY, (B) FOR ANY INDIRECT, INCIDENTAL OR CONSEQUENTIAL DAMAGES INCLUDING, BUT NOT LIMITED TO LOSS OF REVENUES AND LOSS OF PROFITS, LOSS OF GOODWILL (C) FOR ANY AMOUNT IN THE AGGREGATE IN EXCESS OF US$10,000, OR (D) FOR ANY MATTER BEYOND ITS REASONABLE CONTROL.
12. Confidential Information. Company acknowledges that, in the course of using the Pre-Release Products and performing its duties under this Agreement, it may learn or obtain information relating to the Pre-Release Products and to Riverbed that is of a confidential and proprietary nature ("Confidential Information"). Such Confidential Information includes, but is not limited to, its features and modes of operation, this Agreement, trade secrets, product performance, know how, invention techniques, processes, programs, schematics, software source documents, data, Company lists, financial information, and sales and marketing plans or any other information which Company knows or has reason to know is confidential, proprietary or trade secret information of Riverbed. Company shall at all times, both during the term of this Agreement and for a period of five years after its termination, keep in trust and confidence all such Confidential Information, and shall not use such Confidential Information other than as expressly authorized by Riverbed under this Agreement, nor shall Company disclose any such Confidential Information to any third party. Further, Company will only disclose the Product and Confidential Information to those of its employees and consultants as are necessary for the use expressly and unambiguously authorized hereunder, and only after such employees and consultants have agreed in writing to be bound by provisions no less restrictive than those of this Agreement. The obligations of confidentiality shall not apply to information which has entered the public domain except where such entry is the result of Company’s (or its representatives’) breach of this Agreement. Any press release or publication regarding this Agreement is subject to prior approval of the parties, provided, however, that Riverbed may list in its relevant marketing materials that Company is or was a participant in Riverbed’s beta test of such Products without requiring Company’s prior approval.
13. General. This Agreement shall be governed by and construed under the laws of the State of California without giving effect to the principles of conflicts of law and without application of the UN Convention on Contracts for the International Sale of Goods. The prevailing party in any action arising out of this Agreement shall be entitled to an award of its costs and attorneys’ fees. No waiver of rights under this Agreement by either party shall constitute a subsequent waiver of any right under this Agreement and all waivers must be in writing. In the event that any term of this Agreement is held by a court to be unenforceable, such provision shall be limited or eliminated to the minimum extent necessary so that this Agreement shall otherwise remain in full force and effect and enforceable. Company may not assign this Agreement without the prior written consent of Riverbed. Any attempted assignment or transfer in violation of the foregoing shall be void. All notices required or permitted under this Agreement will be in writing and will be sent to the addresses set forth in the first page of this Agreement (or such other address as a party may designate in writing). This Agreement is the complete agreement between the parties hereto concerning the subject matter of this Agreement and replaces any prior oral or written communications between the parties with respect thereto. This Agreement may only be modified by a written document executed by the parties hereto. The parties agree Schedules shall not be used to modify the terms of this Agreement. Company acknowledges and agrees that due to the unique nature of Riverbed’s Confidential Information, there can be no adequate remedy at law for any breach of its obligations hereunder and that upon any such breach or threat thereof, Riverbed shall be entitled to an injunction and other appropriate equitable relief in addition to whatever remedies it may have at law.