These Software Terms (also referred to as the “Software Terms” or “EULA”) and Supplemental License Terms (as defined below) together with the general Lumina Networks Terms and applicable annexes thereto, govern the license and use of Lumina Networks, Inc. (“Lumina Networks”) Software and associated Services and Support. The Lumina Networks Terms are incorporated by this reference: https://www.luminanetworks.com/terms-conditions/.
ACCESSING, DOWNLOADING, INSTALLING OR USING LUMINA NETWORKS SOFTWARE CONSTITUTES ACCEPTANCE OF THESE SOFTWARE TERMS BY AN AUTHORIZED REPRESENTATIVE OF THE END USER (AS DEFINED). IF THE END USER REQUESTS ANOTHER THIRD PARTY TO DOWNLOAD, ACCESS OR USE THE SOFTWARE ON ITS BEHALF OR CONTINUES TO USE THE SOFTWARE AFTER THE SOFTWARE HAS BEEN DOWNLOADED BY A THIRD PARTY, THESE SOFTWARE TERMS WILL BE BINDING ON THE END USER AND END USER WILL BE RESPONSIBLE FOR ITS OWN AND SUCH THIRD PARTY’S COMPLIANCE WITH THE PROVISIONS OF THESE SOFTWARE TERMS. IF END USER DOES NOT ACCEPT THESE SOFTWARE TERMS OR DID NOT PURCHASE OR ACQUIRE THIS LICENSE FOR SOFTWARE FROM LUMINA NETWORKS OR A SOURCE AUTHORIZED AND APPROVED BY LUMINA NETWORKS, END USER HAS NO LICENSE OR RIGHT TO USE THE SOFTWARE. IN SUCH CASEANY USE OF THE SOFTWARE IS PROHIBITED AND THE LIMITED WARRANTY AND INDEMNIFICATION PROVISIONS UNDER THESE SOFTWARE TERMS DO NOT APPLY.
1. Scope of Agreement & Definitions.
1.1 Scope of Agreement. These Software Terms apply to Software, and associated Support, purchased from or otherwise provided by Lumina Networks or its authorized distributors or resellers. If End User obtained a license for the Software and/or purchased Support through a distributor or reseller authorized by Lumina Networks, the provisions of End User’s purchase agreement with the distributor or reseller also apply, provided that if there is a conflict between the terms provided by a distributor or reseller and this EULA, the terms stated in this EULA control. To the extent allowed by law, Lumina Networks may change or modify the terms and conditions of these Software Terms without further notice.
1.2 Supplemental License Terms. The use of certain Lumina Networks Offerings may be subject to additional terms and conditions (“Supplemental License Terms”). When applicable, such Supplemental License Terms apply in addition to these Software Terms to the relevant Lumina Networks Offering licensed or purchased by End User, provided that if there is a conflict between the terms provided in Supplemental License Terms and this EULA, the terms stated in the Supplemental License Terms control.
1.3.1 “Active Port” refers to an in use virtual or physical Port, i.e., a port used to transmit data during a Subscription term.
1.3.2 “End User” refers to either: (i) the entity or person(s) downloading, accessing, or using the Software for the purposes of this Agreement as provided by these Software Terms; or (ii) a customer of a Managed Service Provider that will use the Software in connection with receiving Managed Services from a Managed Service Provider. “Managed Services” refers to services pertaining to the operation, administration, maintenance and provisioning of networked systems, as part of which, one or more customers are provided with direct or indirect access to products that display, run, access or otherwise interact with the Software. “Managed Service Provider” refers to an entity in the business of providing Managed Services to its customers.
1.3.3 “Documentation” means the printed, electronic or online user instructions and help files and other documentation made available by Lumina Networks, as may be updated from time to time by Lumina Networks.
1.3.4 “Lumina Networks Offerings” refers to Software, Support, Services, and Documentation identified in End User’s applicable purchase documentation.
1.3.5 “Node” refers to a device, machine (real or virtual), instance, process or other information technology resource that is part of a network and has a separate network address, and that sends or receives instructions or information, directly or indirectly, from the Software (whether because the resource is configured to send or receive information or instructions from or to the Software, or the Software is configured to send or receive information or instructions to or from the resource.) The maximum aggregate number of ports for each Node with a physical network element is 50.
1.3.6 “Port” means a physical or virtual connection point that is used for inter-Node communication on a network.
1.3.7 “Services” means any and all services, support, maintenance, training, education provided by Lumina Networks other than Support provided pursuant to a Support Plan.
1.3.8 “Software” refers to the computer software and Source Code, noted in the applicable purchase documentation, including but not limited to patches, bug fixes and derivatives thereof (if any) provided by Lumina Networks under these Software Terms.
1.3.9 “Source Code” means the literal computer code of the Software and any material beyond the literal code itself that facilitates or expedites the review and understanding of the Software.
1.3.10 “Subscription” refers to a license that is limited for a specific time period as noted in the purchase documentation.
1.3.11 “Support” means technical assistance, maintenance and other services provided pursuant to a Support Plan.
1.3.12 “Support Plan” means a subscription to a Lumina Networks-defined plan for Software technical assistance and maintenance.
1.3.13 “Usage” refers to a license that is based on End User’s actual or metered use of the Software as noted in the applicable purchase documentation.
1.3.14 “Virtual Machine” means a software based implementation that emulates the computer architecture and functions of a real world computer.
1.3.15 “Virtual Machine License” refers to a license to implement a Virtual Machine(s).
1.3.16. “Virtual Node” is a software process that is defined by a unique network address
1.3.17 “Virtual Port” is a process identified by a unique port number that runs on a Virtual Node.
2. License and License Restrictions.
2.1 License. End User’s license to the Software is as specified herein and in the Supplemental License Terms (if any). Subject to the provisions of these Software Terms and payment of the applicable fees, Lumina Networks grants End User a limited, non-sublicensable, non-exclusive, non-transferable, non-assignable, revocable license to (i) install and execute, solely for End User’s own internal purposes, the Software only in object code form, and (ii) access and use the Documentation, solely for End User’s own internally purposes in support of End User’s permitted use of the Software; in each for the duration of the Subscription specified in End User’s purchase documentation and for the Usage specified therein. During the Subscription End User may 1) use the Software to the extent of authorizations End User has acquired and 2) make and install copies of the Software to support the authorized Usage, providing End User reproduces the copyright notice and any other legends of ownership on each copy, or partial copy, of the Program. If no Subscription term is specified in End User’s purchase documentation, the term of the Subscription shall be one year. This license shall be subject to any additional or modified limitations and restrictions under End User’s agreement with the distributor or reseller. Software must be used only in accordance with the applicable documentation and policies for the Software provided by Lumina Networks. The license(s) granted herein excludes licenses obtained for evaluation purposes. End User may only use the Software in a manner for which End User has purchased or obtained a valid license. In order to download, access or use the Lumina Networks Offering, End User may be required to obtain, use and register a license key and provide additional information.
2.2. License Restrictions. All Software delivered hereunder is licensed, not sold. Except as expressly provided in these Software Terms or any relevant Supplemental License Terms, End User may not itself, or through any parent, subsidiary, affiliate, agent, or other third party, nor permit third parties to:
2.2.1 Modify, translate, adapt, change, enhance Software or create derivative works based upon the Software, including, without limitation, using the Software for the development of other software or applications;
2.2.2 Copy, or otherwise reproduce the Software in whole or in part;
2.2.3 Decompile, translate, reverse engineer, disassemble, attempt to discover any source code or underlying ideas or algorithms, structure, architecture or algorithms of the Software (except to the extent that applicable law or any Public License (as defined in Section 2.5) prohibits reverse engineering restrictions), or otherwise reduce the Software to human-readable form;
2.2.4 Remove, modify or otherwise tamper with any notice or legend on any labeling on any physical media containing the Software or any copyright or other distinguishing mark associated with the Software;
2.2.5 Use, license, sell, transfer, or any way distribute or sublicense the Software that is outside the scope of the licenses granted herein;
2.2.6 Provide, lease, lend, use, disclose, divulge or make available to, or permit for timesharing or service bureau purposes the Software; or
2.2.7 Take any action that would cause the Software or any proprietary portion thereof to become part of the public domain.
2.3 Limitations. End User’s rights in the Software are limited to those expressly granted herein and/or the Supplemental License Terms. End User may not extract or run any component of the Software independently. Further, End User may not utilize any Software or portion thereof that is licensed to End User under the terms of any unpaid, demonstration, evaluation, or trial license agreement to pass traffic in a network. All the limitations and restrictions on the Software in these Software Terms also apply to Documentation.
2.4 Derivative Works. To the extent that End User creates a derivative work of the Software (“Derivative Software”) by a method permitted by law or Public License as described in Section 2.2.3 or by using any Source Code or underlying ideas or algorithms, structure, or architecture of the Software by permissible means under these Software Terms, applicable Supplemental License Terms and/or under local, state or federal law, End User shall not use, distribute or license any such Derivative Software that competes with the Software or any other Lumina Networks product. All use, distribution or licenses of or for the Derivative Software, regardless if it directly or indirectly competes with the Software or other Lumina Networks products, must comply with these Software Terms and applicable Supplemental License Terms.
2.5 Third Party and Open-Source Software. The Software may consist of, include or be distributed with third-party software (“Third-Party Software”). Such Third-Party Software may be licensed under terms different from those contained in these Software Terms, which may include open source Supplemental License Terms (including the GNU General Public License (“GPL”), the GNU Lesser General Public License (“LGPL”), Eclipse Public License (“EPL”) and other public licenses (each a “Public License”). End User’s rights and obligations with respect to Software licensed under the terms of a Public License (“Public Software”) are set forth in the applicable Public License and these Software Terms. Information about applicable Public Licenses may be found in the electronic media or content downloaded with the Software. Otherwise, to obtain a copy of the applicable licensing provisions for the Public Software used by Lumina Networks, please refer the following website (as may be updated from time to time): Lumina-Networks-OpenSource-Attributions-2017-12.pdf. End User either must agree to the provisions of each applicable Public License or not use such Public Software. These Software Terms are not intended to change or restrict the terms of any Public License, and Lumina Networks does not seek to restrict the copying or redistribution of Public Software that is otherwise freely re-distributable to third parties (and not otherwise restricted by federal copyright or other laws). Lumina Networks disclaims all liability and warranties with respect to software (including any derivative created by or through such software) subject to a Public License.
2.6. Common Clause License Condition. Without limiting other conditions in the License, the grant of rights under the License will not include, and the License does not grant to you, the right to Sell the Software. For purposes of the foregoing, “Sell” means practicing any or all of the rights granted to you under the License to provide to third parties, for a fee or other consideration (including without limitation fees for hosting or consulting/support services related to the Software), a product or service whose value derives, entirely or substantially, from the functionality of the Software. Any license notice or attribution required by the License must also include this Commons Clause License Condition notice.
3.1 Support. If the Lumina Networks Offerings include Support services that require registration or activation, End User is responsible for registering or activating such Support via the web site designated by Lumina Networks. Lumina Networks’ obligation to provide Support is conditioned upon such registration or activation, receipt of all amounts due and payable for the Lumina Networks Offerings and End User’s compliance with these Software Terms, applicable Supplemental License Terms and any other provisions applicable to such Lumina Networks Offerings. If End User reports an issue to Lumina Networks related to the Support for the Software (“Service Request”), End User will classify the Service Request according to the “Severity Level” descriptions located in the Support policies located on Lumina Networks’ website at: https://www.luminanetworks.com/terms-conditions/. Additional charges may apply if Lumina Networks determines that the cause of the Service Request was not related to the Software or the request is not covered by Lumina Networks’ Support obligations. Lumina Networks reserves and retains all rights, title and interest in and to any patents (issued, non-issued, or pending), copyrights, trade secrets, work product and other intellectual property resulting from performance of Support or other Services.
3.2 Cancellation of Support. Lumina Networks may revise or cancel Support at any time.
3.3 Exclusions. Unless otherwise provided for in the policies applicable to the Support Plan purchased by End User, Support does not cover and Lumina Networks disclaims any responsibility for Service Requests arising out of alterations of or modifications to the Software performed by any party other than Lumina Networks, or by accident, negligence, improper installation, misapplication, abuse, alteration or misuse of the Software or End User’s failure to use the Software in accordance with the provisions of these Software Terms or the Documentation and instructions provided by Lumina Networks. Unless otherwise provided for in the policies applicable to the Support Plan purchased by End User, if End User modifies, alters or changes the Software, in any form or manner, such changes will void Support and result in additional fees. Additional charges may apply if Lumina Networks determines that the cause of the Service Request was not related to the Software or the request is not covered by Lumina Networks’ obligations. Unless otherwise provided for in the policies applicable to the Support Plan purchased by End User, Support does not cover and Lumina Networks disclaims any responsibility for support requests related to publically available software including, but not limited to, open source software.
4. Disclaimer of Warranties
EXCEPT AS EXPRESSLY SET FORTH IN THESE SOFTWARE TERMS, THE LUMINA NETWORKS OFFERINGS AND THIRD PARTY PRODUCTS (IF ANY) ARE DELIVERED “AS IS” AND NEITHER LUMINA NETWORKS NOR ITS THIRD-PARTY SUPPLIERS, TO THE EXTENT ALLOWED BY APPLICABLE LAW, MAKES ANY WARRANTIES, CONDITIONS OR REPRESENTATIONS, EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, INCLUDING BUT NOT LIMITED TO IMPLIED CONDITIONS OR WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT. TO THE EXTENT AN IMPLIED WARRANTY OR CONDITION CANNOT BE EXCLUDED, SUCH WARRANTY OR CONDITION IS LIMITED IN DURATION TO THE APPLICABLE WARRANTY PERIOD. IF END USER MADE ITS PURCHASE THROUGH A THIRD PARTY, LUMINA NETWORKS IS NOT RESPONSIBLE FOR THE REPRESENTATIONS OR WARRANTIES MADE BY SUCH THIRD PARTY. Lumina Networks, its authorized third party reseller(s), and its third party suppliers do not warrant that the Lumina Networks Offerings will meet End User’s requirements, that the Lumina Networks Offerings will operate in the combinations which End User may select for use, or that the operation of the Lumina Networks Offerings will be uninterrupted or error-free. The Software may include usage, metering, tracking, disabling features or other similar features. Availability of Lumina Networks Offerings varies by location. Lumina Networks, its authorized third party resellers and its third party suppliers are not responsible for pricing, typographical or other errors and Lumina Networks reserves the right to cancel any orders arising from such errors as well as cancel, modify or discontinue the Lumina Networks Offerings at any time. End User acknowledges that the security features of Lumina Networks Offerings do not guarantee the security of End User’s network, and that End User is solely responsible for all aspects of security, including without limitation, correct installation, maintenance, updating and setup of the security features of the Lumina Networks Offerings and all related requirements, correctly configured security policies, selection of hardware and software (including network security tools), correct installation, configuration, and maintenance of the hardware and software, the interoperability of the various components of End User’s network, and providing a physically and electronically secure operating environment. Due to interoperability requirements, End User acknowledges and agrees that the use of any Third Party Products (as defined below) may cause errors in the operation of the Software or may cause additional resolution time which may not be covered by Support. End User agrees to pay Lumina Networks for any time spent by Lumina Networks diagnosing issues that result from use of Third Party Products which shall be billed at Lumina Networks’ hourly billing rate. End User agrees to pay such amounts without deduction or set-off net 30 days from the date of invoice in United States (“U.S.“) dollars.
5. Third Party Products
“Third Party Products” refers to products or services that may be used, offered or sold with Lumina Networks Offerings. Third Party Products are not manufactured or published by Lumina Networks, and may not be supported or serviced by Lumina Networks. Should Lumina Networks assist End User in procuring, using, or supporting Third Party Products, End User and the third party provider of such Third Party Product, and not Lumina Networks, is responsible for any licenses, representations, support, warranties, obligations and offerings made by such third party. For clarification, support, if any provided by Lumina Networks for Third Party Products or through a community forum is provide “AS IS” without any warranty of any kind, implied or expressed.
6.1 By Lumina Networks. Subject to the provisions of these Software Terms and Supplemental License Terms, Lumina Networks will defend and indemnify End User against any third-party claim that Lumina’s proprietary Software (expressly excluding Third Party Products, services and Third Party Software) in the form provided by Lumina Networks infringes a United States or a European Union patent, copyright or misappropriate a valid trade secret recognized in the United States or the European Union; provided End User shall (i) promptly notify Lumina Networks in writing of the claim; (ii) provide Lumina Networks sole control over the defense and settlement of such claim at Lumina Networks’ expense and with Lumina Networks’ choice of counsel; and (iii) at Lumina Networks’ request and expense (for End User’s actual and reasonable out of pocket expenses), provide full information and reasonable assistance to Lumina Networks with respect to such claim.
6.2 Exclusions. Lumina Networks is not obligated to defend, nor is it liable in any manner for infringement or other claims arising out of: (a) compliance with third party or End User provided technology or specifications; (b) modification of the Software (except modifications provided by Lumina Networks) or use of such Software in a manner not contemplated by Lumina Networks as described in the relevant specifications; (c) End User’s combination of Software with hardware, software or other materials (including, but not limited to, Third Party Products) not provided by Lumina Networks or that is otherwise not designated by Lumina Networks as for use with the Software; (d) End User’s failure to use reasonable materials or instructions (including refusals to implement updates, patches or upgrades) that would have rendered Software non-infringing; (e) End User’s use of Software not currently supported by Lumina Networks; or (f) End User’s use of Software in breach of these Software Terms or any applicable Supplemental License Terms.
6.3 Existing Claims. Lumina Networks has no obligations if End User was aware of any actual, pending or threatened claims that are or would otherwise be the subject of Lumina Networks’ indemnity obligation hereunder at the time End User purchased or secured the applicable license for the Lumina Networks Offering. Lumina Networks’ obligation to indemnify End User applies only to final judgments entered in such a suit by a court of competent jurisdiction or proceeding and against settlements arising out of such a claim. End User may join in defense of a claim with counsel of its choice at its expense and subject to Lumina Networks’ exclusive right to control the defense. Lumina Networks is not liable to End User under these Software Terms for any Software if End User does not have an active and valid Support contract in place with Lumina Networks for the Software at the time of the claim.
6.4 Lumina Networks’ Options. If at any time any Software becomes or in the opinion of Lumina Networks may become the subject of a claim of infringement as provided in this Section, Lumina Networks may, at its option and expense: (i) procure for End User the right to continue using such Software; (ii) replace or modify such Software; or, in the event Lumina Networks concludes that neither option (i) or (ii) is reasonably available or cost efficient, (iii) terminate the license granted under these Software Terms and Supplemental License Terms with respect to such Software. LUMINA NETWORKS WILL NOT BE LIABLE FOR ANY COSTS OR EXPENSES INCURRED WITHOUT ITS PRIOR WRITTEN AUTHORIZATION. THE FOREGOING PROVISIONS STATE THE ENTIRE LIABILITY AND OBLIGATIONS OF LUMINA NETWORKS AND ITS SUPPLIERS, AND THE EXCLUSIVE REMEDY OF END USER WITH RESPECT TO ANY ACTUAL OR ALLEGED INFRINGEMENT OF ANY INTELLECTUAL PROPERTY RIGHT BY THE LUMINA NETWORKS OFFERINGS OR ANY PART THEREOF, OR BY THEIR OPERATION.
7. Proprietary Rights
Lumina Networks and each of its third party suppliers own and retains for itself all right, title and interest in and to the Software and all designs, engineering details, data, materials, discoveries, inventions, trade secrets, patents and other proprietary rights pertaining to or reflected by the Lumina Networks Offerings.
8. Confidential Information
8.1 Confidentiality. Confidential Information means any information disclosed by Lumina Networks to End User, either directly or indirectly, in writing, orally or by inspection of tangible objects, proprietary information, technical data, trade secrets (other than the Source Code) or know-how (including, without limitation, research, product plans, products, services, customers, markets, works of original authorship, photographs, negatives, digital images, software, computer programs, know-how, ideas, inventions (whether or not patentable), processes, formula, technology, designs, drawings, engineering, hardware configuration information, marketing or finance documents and other technical, business, financial, customer and product development plans, forecasts, strategies and information), which is designated as “Confidential,” “Proprietary” or some similar designation by Lumina Networks or which the End User knows or has reason to known is regarded as confidential by Lumina Networks (“Confidential Information“). Confidential Information may include information disclosed to Lumina Networks by third parties. End User will at all times keep in confidence all such Confidential Information, and shall not use such Confidential Information without Lumina Networks’ written consent except in the performance of End User’s duties hereunder. End User may not disclose the Confidential Information to any person except its employees to whom it is necessary to disclose the Confidential Information for permissible internal business purposes and who have agreed to receive it under terms at least as restrictive as those specified in these Software Terms. End User’s obligation to protect Confidential Information is satisfied if End User utilizes the same control over the Confidential Information as End User employs to avoid disclosure of End User’s own confidential and valuable information (but no less than commercially reasonable control). End User will immediately give notice to Lumina Networks of any unauthorized use or disclosure of the Confidential Information. End User agrees to assist Lumina Networks in remedying such unauthorized use or disclosure of the Confidential Information. The foregoing obligations will not apply to the extent End User can demonstrate:
8.1.1 The disclosed Confidential Information was part of the public domain at the time of disclosure;
8.1.2 End User can establish by written evidence that the disclosed Confidential Information was in the possession of the End User, without an obligation of confidentiality, at the time of its disclosure by Lumina Networks;
8.1.3 End User received the disclosed Confidential information from a third party without similar restrictions on disclosure and without breach of these Software Terms or any other agreement; or
8.2 In the event that End User is required to disclose the Confidential Information to a government agency to further the objectives of these Software Terms, such as to obtain permission to distribute the Lumina Networks Offering as permitted hereunder, or in the event a proper court of competent jurisdiction orders its disclosure, End User will use its best efforts to minimize the disclosure of such Confidential information and will consult with and assist Lumina Networks in obtaining a protective order prior to such disclosure.
8.3 Retention Rights. Lumina Networks may use any general learning, skills, or know-how or any information retained in the unaided memory of a person who had access to the End User’s confidential information for any purpose. Lumina Networks is free to develop products independently and Lumina Networks is not obligated to restrict the future work assignments of people who have had access to End User’s confidential information or to restrict Lumina Networks product development or plans in any way due to such access. Lumina Networks may use any technical information it derives from providing Support or other services. In the event of an unauthorized use, distribution or disclosure of any Confidential Information, the parties agree that Lumina Networks will not have an adequate remedy at law. Therefore, injunctive or other equitable relief may be appropriate to restrain such use, distribution or disclosure, whether threatened or actual. To the extent that Lumina Networks provides End User serial numbers, access codes, entitlement numbers or the license to access or use Software or Support, End User is responsible for the security and use of such information, including that contained in the documentation therefore. If End User believes any Lumina Networks Confidential Information has been lost, stolen, or misused, End User must immediately notify Lumina Networks and its designated Support contact.
8.4 Source Code. Notwithstanding the foregoing provisions of this Section 8, Lumina Networks’ proprietary Source Code constitutes a trade secret and may not be disclosed under these Software Terms or otherwise. End User may not disclose or use Lumina Networks’ proprietary Source Code without the express written consent of Lumina Networks. Lumina Networks will make any and all source code applicable to Open Source Software available as required by the terms of the applicable Open Source license.
9. Export Controls
End User acknowledges that the Lumina Networks Offerings provided under these Software Terms may be subject to the provisions of the U.S. Export Administration Regulations and export and import regulations in countries outside the U.S. End User agrees to comply with all such applicable laws and regulations, as required. End User acknowledges and agrees that it will not import, export, re-export, transfer or use, directly or indirectly, the Lumina Networks Offerings in violation of the laws and regulations of any applicable jurisdiction. This restriction expressly includes, but is not limited to, the export regulations of the United States, and the import and export restrictions of any country in which End User transacts business. End User also agrees that it will not itself, nor allow any third parties to export, import, transfer, use or re-export the Lumina Networks Offering, directly or indirectly (i) to any U.S. embargoed country; (ii) to any person or entity on a denial list published by the U.S. Government; or (iii) for any end use that is prohibited by United States or other applicable law, including nuclear, missile, chemical biological weaponry or other weapons of mass destruction. End User acknowledges that certain Software or technologies may be classified as “restricted encryption” items under section
740.17(b)(2) of the U.S. Export Administration Regulations and may require export licenses or U.S. re-export approval when being shipped from the U.S. or other countries. End User agrees to indemnify, defend (with counsel approved in writing in advance by Lumina Networks) and hold Lumina Networks, its affiliates, subsidiaries, officers, directors, employees and agents, harmless against any claims for cost, damage, expense or liability arising out of or in connection with any breach of End User’s obligations under this Section.
10. LIMITATION OF LIABILITY
IN NO EVENT WILL LUMINA NETWORKS BE LIABLE FOR ANY CONSEQUENTIAL, INCIDENTAL, INDIRECT, SPECIAL OR PUNITIVE DAMAGES OF ANY KIND. IN ADDITION, IN NO EVENT WILL LUMINA NETWORKS BE LIABLE FOR LOSS OF PROFITS OR REVENUE, LOST BUSINESS, AND LOST OR CORRUPT DATA OR GOODWILL ARISING OUT OF OR RELATED TO THESE SOFTWARE TERMS, HOWEVER, CAUSED AND ON ANY THEORY OF LIABILITY. THESE LIMITATIONS APPLY NOTWITHSTANDING THE FAILURE OF THE ESSENTIAL PURPOSE OF ANY LIMITED REMEDY. LUMINA NETWORKS ENTIRE LIABILITY ARISING OUT OF OR RELATED TO THESE SOFTWARE TERMS SHALL BE LIMITED TO THE AMOUNTS PAID OR PAYABLE TO LUMINA NETWORKS FOR THE SOFTWARE IN THE TWELVE (12) MONTH PERIOD PRIOR TO THE DATE THE CAUSE OF ACTION AROSE. THE FOREGOING LIMITATIONS SHALL NOT APPLY ONLY TO THE EXTENT THAT SUCH CONTRACTUAL LIMITATIONS CANNOT, UNDER APPLICABLE LAWS, SO LIMIT LUMINA NETWORKS’ LIABILITY.
11.1 Payments; Payment Terms. Lumina Networks requires pre-payment unless otherwise stated on the purchase documentation or invoice from Lumina Networks, Where payment is not made in advance End User shall pay amounts due and payable to Lumina Networks within thirty (30) days of the date of the invoice using the payment method agreed upon by Lumina Networks. If credit and credit terms have been agreed to by Lumina Networks, then the credit is provided as of the due date, and any credit charges will be applied as of that date. Lumina Networks is under no obligation to offer, and may revoke, credit or credit terms in its sole discretion. Payment shall be made to the applicable Lumina Networks entity named on the purchase documentation. In addition to any other remedy available to Lumina Networks for late payment, Lumina Networks may charge interest on overdue amounts at the rate of one and one half percent (1.5%) per month, or the maximum rate allowed by law, whichever is less, for each month, or partial month, calculated from the payment due date. All payments are to be made in United States Dollars. Lumina Networks may invoice parts of an order separately or together in one invoice. If End User purchases a multi-year Subscription and related Support Plan, and Lumina Networks agrees to annualize such Subscription purchase over the Subscription term, End User agrees to make all annual payments in full and such purchase is non-cancellable over the term of the Subscription. Any assignment of End User’s payment obligations to a third-party financing company must be approved in advance in writing by Lumina Networks, and Lumina Networks’ approval will not excuse End User from its obligations hereunder. Lumina Networks shall be entitled to all reasonable legal and attorney fees and associated costs of collecting overdue amounts.
11.2 Taxes. Charges are stated exclusive of sales, use, value added, customs charges, duties, gross receipts, and services or other taxes or fees imposed under or by any governmental authority, whether levied against End User or Lumina Networks (“Taxes”). Except for Taxes based on or measured by Lumina Networks net income, End User shall pay, or reimburse Lumina Networks for its payment of all Taxes, freight, and insurance. If End User claims an exemption from its obligation to pay Taxes, it must promptly provide Lumina Networks with an appropriate, accurate, and valid tax exemption certificate. End User must make all payments free and clear, without deduction for any present or future Taxes imposed by any taxing authority. If End User is prohibited by law from making any payment unless such deductions are made or withheld, End User must pay an additional amount such that the net amount received by Lumina Networks, after such deduction or withholding, equals the amount that would have been received if the deduction or withholding had not occurred. End User must promptly furnish Lumina Networks with a copy of an official tax receipt or other appropriate evidence of any tax imposed on payments, including taxes on any additional amounts paid as required by this Section. Each party agrees to cooperate with each other to minimize any applicable Taxes, including reasonable notice and cooperation in the case of any audit.
11.4 Payment Disputes. All invoices shall be deemed accurate unless End User provides Lumina Networks notice in writing of a material error within 10 calendar days following receipt of the invoice. Such notice must describe the grounds for the dispute in reasonable detail. If the dispute described in the notice is reasonable, and End User timely pays any undisputed part of the invoice, the due date for the disputed amount will be extended until Lumina Networks determines whether such amount is accurate. If End User withholds payment of a disputed amount, and Lumina Networks concludes that such amount is accurate and payable, End User shall pay interest as described herein from the due date for such amounts until Lumina Networks receipt of those amounts. End User may not offset, defer or deduct any invoiced amounts that Lumina Networks determines are not erroneous following the notification process set forth above.
12. Term and Termination
12.1 Term and Termination. The term applicable for the license(s) granted for Software and any associated Support or Services begins on the date End User first purchases, accesses, downloads, installs, or uses (whichever occurs first) the Software (“Initial Access”) and continues through the Subscription term purchased and as stated on End User’s purchase documentation. Lumina Networks may immediately suspend, or terminate the license(s) granted under these Software Terms and the Supplemental License Terms or restrict access to the Lumina Networks Offerings if Lumina Networks believes End User breached or will breach any provision of these Software Terms or the Supplemental License Terms. Lumina Networks reserves the right to temporarily suspend or permanently terminate use of or access to the Software or Support.
12.2 End User will provide Lumina Networks with an estimate of the number of units required by it annually. This estimate will
include renewal of previously expired Licenses for each Software product required. End User will base any renewal orders upon this estimate. Unless otherwise specified in the Purchase Order, the License will automatically renew for additional terms of the same length as the initial license term at Lumina Networks’ then current pricing unless either party declines renewal by notice in writing to that effect delivered to the other party at least 30 days prior to expiration of the then current License Term.
12.3 Effect of Termination and Survival. Notwithstanding any other obligation hereunder, upon any termination or expiration of these Software Terms, End User shall return to Lumina Networks each and every copy of the Software and the corresponding software keys or certify their destruction in writing, and End User shall not retain any copies of any Lumina Networks Confidential Information or Software. The following Sections of these Software Terms survive termination or expiration of these Software Terms or applicable order: 1, 2.2, 2.3, 2.4, 4, 5, 7, 8, 9, 10, 11, 12 and 13.
13.1 Governing Law; Venue. With respect to any Lumina Networks Offering licensed or purchased by the End User, these Software Terms are entered into, and all Software and other Lumina Networks Offerings shall be performed and delivered by or on behalf of Lumina Networks, Inc. All disputes arising out of these Software Terms for transactions in the US shall be subject to the exclusive jurisdiction of the state and Federal courts located in Santa Clara County, California, and the parties: (i) agree and submit to the personal and non-exclusive jurisdiction and venue of these courts, and (ii) agree that service on End User at its address of public record constitutes valid service for any proceeding in the courts of that jurisdiction; and (iii) that these Software Terms shall be governed by the laws of California without reference to conflict of laws principles. All disputes arising out these Software Terms for transactions outside the US must be finally settled under the Rules of Arbitration of the International Chamber of Commerce by three arbitrators appointed in accordance with said rules and these Software Terms will be governed by the laws of California without reference to conflict of laws principles. The place of arbitration will be Santa Clara County, California U.S.A. The arbitral tribunal shall conduct the proceedings and all awards will be rendered in the English language. The U.N. Convention on the International Sale of Goods does not apply to these Software Terms. This choice of jurisdiction does not prevent Lumina Networks from seeking injunctive or interlocutory relief with respect to a violation of intellectual property rights or confidentiality obligations in any appropriate jurisdiction.
13.2 Severability. If any term or other provision of these Software Terms is determined by a non-appealable decision of a court, administrative agency or arbitrator to be invalid, illegal or incapable of being enforced by any rule of law or public policy, all other conditions and provisions of these Software Terms shall nevertheless remain in full force and effect so long as the economic or legal substance of the transactions contemplated hereby is not affected in any manner materially adverse to either party. Upon such determination that any provision is invalid, illegal or incapable of being enforced, that provision shall be severed from these Software Terms and there shall be deemed to be substituted a similar term or provision to accomplish the intent of the parties as closely as possible to the original term or provision, as determined by any court or arbitrator having jurisdiction, to the extent permitted by applicable law; provided, however, that if any restriction or limitation set forth in any license granted hereunder is deemed invalid or unenforceable, the entire license shall terminate.
13.3 Force Majeure. Neither party shall be liable for the performance of its obligations under these Software Terms if it becomes commercially impracticable to perform due to any contingency beyond the reasonable control of that party, including as a result of a Force Majeure. In no event shall Lumina Networks be required to purchase goods from others to enable it to provide the Lumina Networks Offerings under these Software Terms. Each party, as applicable, shall give the other party notice of its inability to perform and particulars in reasonable detail of the cause of the inability. Each party must use reasonable commercial efforts to remedy the situation and remove, so far as is commercially reasonable and as soon as practicable, the cause of its inability to perform or comply. Each party shall give the other party prompt notice of the cessation of the event of Force Majeure. “Force Majeure” means a cause of any kind not reasonably within the control of a party, including, without limitation, acts of God and the public enemy, sabotage, boycotts, disruptions of transportation facilities, inability to obtain supplies or materials, acts of government or its agencies, strikes, labor disputes, power disruptions, lockouts or any other industrial disturbance, or judicial action.
13.4 Independent Contractors. The relationship between the parties established by these Software Terms is that of independent contractors, and nothing in these Software Terms shall be construed to create a relationship of agency or partnership between the parties or to allow either party to create or assume any obligation on behalf of the other party.
13.5 Subcontractors. Lumina Networks may delegate its duties to subsidiaries, affiliates or related entities or engage subcontractors to perform certain of its obligations under these Software Terms.
13.6 Compliance with Statutes and Regulations. Each party will comply with all applicable Federal, state, local and foreign statutes, rules, regulations and orders, including but not limited to the Foreign Corrupt Practices Act.
12.7 Nuclear, Aviation or Life Support Application. Lumina Networks specifically disclaims liability for use of the Lumina Networks Offerings in connection with the design, construction, maintenance and/or operation of any (i) nuclear facility, (ii) aircraft, aircraft communication or aircraft ground support system, or (iii) safety or health care control system, including without limitation, life support system.
13.8 U.S. Government Restricted Rights. The Software and any accompanying documentation provided under the Software Terms incorporate commercial computer software and commercial computer software documentation developed exclusively at private expense, and is in all respects proprietary property belonging solely to Lumina Networks or its suppliers. If End User is acquiring the Software on behalf of any part of the United States Government, the following provisions apply. The object code and accompanying documentation are deemed to be “commercial computer software” and “commercial computer software documentation”, respectively, pursuant to DFAR Section 227.7202 and FAR 12.212(b), as applicable. Any use, modification, reproduction, release, performance, display or disclosure of the object code and/or the accompanying documentation by the U.S. Government or any of its agencies shall be governed solely by the terms of these Software Terms and shall be prohibited except to the extent expressly permitted by the provision of these Software Terms. Any technical data provided that is not covered by the above provisions is deemed to be “technical data” and “commercial items” pursuant to DFAR Section 252.227.7015(a). Any use, modification, reproduction, release, performance, display or disclosure of such technical data shall be governed by the terms of DFAR Section 252.227.7015(b).
13.9 Excluded Data. The Software provided under these Software Terms is not designed to offer functionality providing security and access management for the processing and/or storage of the following categories of data: (1) data that is classified and or used on the U.S. Munitions list, including software and technical data; (2) articles, services and related technical data designated as defense articles and defense services; (3) ITAR (International Traffic in Arms Regulations) related data; and (4) other personally identifiable information that is subject to heightened security requirements as a result of End User’s internal policies or practices or by law or regulation (“Excluded Data”). End User agrees that End User is solely responsible for reviewing and ensuring that any data it provides to Lumina Networks (or to which Lumina Networks will have access) does not contain Excluded Data.
13.10 Reporting, Audit & Retention of Records.
End User will either provide Lumina Networks (or the distributor or reseller from whom End User obtained Software) with, or will permit Lumina Networks the rights necessary to generate, a report detailing End User’s use of the Software (including, but not limited to the number of Active Ports, Nodes (including Virtual Nodes) or other relevant measuring metric) one month before the end of each Subscription period. In its notice, End User will specify the number of additional seats, licenses or units (be they Active Ports, Nodes, or some other basis) and the date(s) on which they were first utilized. Lumina Networks (or the applicable distributor or reseller) will invoice End User for the additional Usage promptly upon such notice. End User agrees to pay such invoices no later than thirty (30) days from the date stated thereon. Lumina Networks shall have the right to audit and inspect End User’s use of the Software and to verify End User’s compliance with the provisions of these Software Terms (including Usage levels and compliance with all payment terms, if any) during End User’s normal business hours. End User shall promptly remedy any underpayments that are discovered, and if any underpayment exceeds 5% of the amount owed over the audited period, then End User shall reimburse Lumina Networks for the costs of the audit. End User shall retain the applicable records pertaining to its performance obligations for seven (7) years after the termination or completion of such obligation.
13.11 Notices. All notices under these Software Terms shall be in writing and shall be delivered by personal delivery, internationally recognized overnight carrier, or facsimile transmission, and shall be deemed given upon personal delivery, three (3) business days after delivery to the international carrier with proof of receipt, or by fax upon acknowledgment of receipt of electronic transmission. Notices to Lumina Networks shall be sent to Lumina Networks, Inc., Attention: Office of the General Counsel, 2077 Gateway Place, Suite #500, San Jose, Ca. USA 95110, e-mail contact information is at https://www.Luminanetworks.com/general-contact-form/, and to End User at its address of public record.
13.12 Assignment. End User shall not, directly or indirectly, in whole or in part, whether by operation of law or otherwise, assign or transfer these Software Terms, without Lumina Networks’ prior written consent, and any attempted assignment, transfer or delegation without such prior written consent shall be voidable at the sole option of Lumina Networks. Lumina Networks or its successors may assign these Software Terms, in whole or in part, and any of its rights and obligations hereunder, in its or their sole discretion. Without limiting the foregoing, these Software Terms will be binding upon and inure to the benefit of the parties and their permitted successors and assigns.
13.13 Remedies Cumulative. All rights and remedies existing under these Software Terms are cumulative to, and not exclusive of, any rights or remedies otherwise available.
13.14 Waiver; Amendment. Failure or delay on the part of either party hereto in the exercise of any right hereunder shall not impair such right or be construed to be a waiver of, or acquiescence in, any breach of any representation, warranty or agreement herein, nor shall any single or partial exercise of any such right preclude other or further exercise thereof or of any other right. No change or amendment will be made to these Software Terms except by an instrument in writing signed on behalf of each of the parties to such agreement.
13.15 No Implied Licenses; Taxes. Nothing contained in these Software Terms shall be construed as conferring any rights by implication, estoppel or otherwise, under any intellectual property right, other than the rights expressly granted in these Software Terms. If any authority imposes a duty, tax, levy or fee, excluding those based on Lumina Networks’ net income, upon the Lumina Networks Offerings, End User to pay that amount as Lumina Networks specifies or supply proper tax exemption documentation.
13.16 Translations; Order of Precedence. These Software Terms are in the English language only, which language shall be controlling in all respects, and all versions hereof in any other language shall be for accommodation only and shall not be binding upon the parties. All communications and notices to be made or given pursuant to these Software Terms, and any dispute proceeding related to or arising hereunder, shall be in the English language. In the event of any discrepancy or inconsistency between different language versions of these Software Terms (and all associated documents or correspondence concerning these Software Terms), the English language version shall prevail. If any of the provisions of these Software Terms conflict or are otherwise inconsistent with the Lumina Networks Terms, the provisions of these Software Terms will apply. In the event of a conflict between these Software Terms and the Supplemental License Terms, the Supplemental License Terms will apply.
13.17 Entire Agreement. These Software Terms constitutes the entire agreement between the parties with respect to the subject matter of these Software Terms and shall supersede all prior written and oral and all contemporaneous oral agreements and understandings between the parties.
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Last updated on Feb 2019