A10 Software License and Services Agreement

A10 NETWORKS, INC.

SOFTWARE LICENSE

AND

SERVICES AGREEMENT

PLEASE READ THE FOLLOWING TERMS AND CONDITIONS CAREFULLY BEFORE INSTALLING OR USING THE A10 NETWORKS SOFTWARE (INCLUDING MAINTENANCE RELEASES, IF ANY) OR ANY A10 NETWORKS DOCUMENTATION (COLLECTIVELY, THE “SOFTWARE”) OR USING THE A10 NETWORKS SERVICES.

THE TERMS AND CONDITIONS OF THIS SOFTWARE LICENSE AND SERVICES AGREEMENT (“AGREEMENT”) GOVERN USE OF THE SOFTWARE AND SERVICES UNLESS CUSTOMER AND A10 NETWORKS, INC. (“A10 NETWORKS”) HAVE EXECUTED A SEPARATE AGREEMENT GOVERNING USE OF THE SOFTWARE AND SERVICES.

This Agreement is divided into four Parts. Only those terms applicable to the Software and Services for which Customer has been granted access by A10 Networks apply to Customer with respect to the Software and Services expressly noted in each Part; provided however, that Part IV (General) applies to all Software and Services.

A10 Networks is willing to license the Software and allow access to Services to Customer only upon the condition that Customer accepts all the terms contained in this Agreement. If Customer installs or uses the Software or accesses Services or keeps it for 30 days after the date of purchase (or the date of delivery, if A10 Networks has made the Software or Services available to Customer without charge), then Customer has indicated that Customer understands this Agreement and accepts all of its terms. If you are accepting the terms of this Agreement on behalf of a company or other legal entity, you represent and warrant that you have the authority to bind that company or other legal entity to the terms of this Agreement, and, in such event, “Customer” refers to that company or other legal entity. If Customer does not accept all the terms of this Agreement, then A10 Networks is unwilling to license the Software or allow use of or access to Services by Customer, and Customer must permanently delete the Software and cease using Services.

Part I. Software Products

The terms of this Part I apply to the following A10 Networks software products: VTHUNDER SOFTWARE, THUNDER SERIES SOFTWARE, AGALAXY SOFTWARE, AGALAXY SOFTWARE, BAREMETAL SOFTWARE, AXAPI® SOFTWARE DEVELOPMENT KIT, AX SERIES SOFTWARE

1. Grant of License.

(a) Production License. Conditioned upon Customer’s compliance with the terms and conditions of this Agreement, A10 Networks grants Customer a personal, limited, non-exclusive and non-transferable (without a right to sublicense, except as otherwise expressly provided herein) license solely for Customer’s internal business purposes and solely for the purpose of further optimizing Customer network, which may include providing hosting, application, service bureau, or software-as-a-service (SaaS) services to third parties, with respect to the applicable A10 Networks Software identified on Customer’s purchase order as accepted by A10 Networks (in each case, the “Software” as applicable), solely as follows to:

VTHUNDER SOFTWARE (as delivered for use on a virtual machine): to Execute (as defined below) a single instance with a unique identifier (UID) of the executable form of the Software on a single hypervisor.

THUNDER SERIES SOFTWARE (as delivered on an A10 appliance): to Execute (as defined below) the executable form of the Software on a single hardware appliance manufactured by or for A10 Networks.

AGALAXY SOFTWARE (as delivered for use on a virtual machine): to Execute (as defined below) a single instance with a unique identifier (UID) of the executable form of the Software on a single hypervisor, solely for Customer’s internal business purposes and solely for the purpose of further optimizing Customer network.

AGALAXY SOFTWARE (as delivered on an A10 appliance): to Execute (as defined below) a single instance with a unique identifier (UID) of the executable form of the Software on a single hypervisor, solely for Customer’s internal business purposes and solely for the purpose of further optimizing Customer network.

BareMetal Software: to Execute (as defined below) a single instance with a unique identifier (UID) of the executable form of the Software on a single Intel x86 based server (“Bare Metal Hardware”).

AXAPI^® SOFTWARE DEVELOPMENT KIT: to use, copy, and modify the source code portions, if any, of the Software as delivered for the sole purpose of developing Modified Software configured to enable configuration and management of software and hardware appliances manufactured by or for A10 Networks, and to use, distribute and sublicense the binary code version of the Software and/or Modified Software, solely for the purpose of configuring and managing software and hardware appliances manufactured by or for A10 Networks, provided that each party receiving the Software and/or Modified Software is bound to Customer by a written agreement with terms that are at least as restrictive as those contained herein. “Modified Software” means the Software as modified by Customer in accordance with this Agreement.

AX SERIES SOFTWARE (as delivered on an A10 appliance): to Execute (as defined below) the executable form of the Software on a single hardware appliance manufactured by or for A10 Networks.

(b) Trial License. Notwithstanding any other term herein, if Customer has downloaded a trial version or otherwise is licensed for evaluation or proof of concept (POC), and has not paid the license fees, Customer’s license is limited to a Trial License, namely as follows: Conditioned upon Customer’s compliance with the terms and conditions of this Agreement, during the Trial Term, A10 Networks grants Customer a non-exclusive and non-transferable license to the applicable Software in accordance with the terms of the Production License terms (set forth above in Section 1(a)) solely during the Trial Term; the Software MAY CONTAIN A DISABLING DEVICE THAT WILL PREVENT IT FROM BEING USED AFTER THE EVALUATION PERIOD ENDS. Customer AGREES NOT TO TAMPER WITH THE DISABLING DEVICE OR THE Software. Customer SHOULD TAKE PRECAUTIONS TO AVOID ANY LOSS OF DATA THAT MIGHT RESULT WHEN THE Software CAN NO LONGER BE USED.

(c) General License Provisions applicable to both Trial License and Production License. Customer may make copies of the Software for backup purposes; provided that Customer reproduces on it all copyright and other proprietary notices that are on the original copy of the Software. A10 Networks reserves all rights in the Software not expressly granted to Customer in this Agreement. For purposes of this Agreement, “Execute” and “Execution” means to load, install, and run the Software in order to benefit from its functionality as designed by A10 Networks. “Software” means the version of the Software identified on Customer’s purchase order as accepted by A10 Networks, together with any Maintenance Releases provided to the Customer pursuant to this Agreement. “Maintenance Release” means any update or release of the Software that A10 Networks may provide to the Customer from time to time during the Term or the Trial Term, that may contain, among other things, error corrections, enhancements or other changes to the user interface, functionality, compatibility, capabilities, performance, efficiency or quality of the Software, but does not constitute a New Version. “New Version” means any new version of the Software that A10 Networks may from time to time introduce and market generally as a distinct licensed product, and which A10 Networks may make available to the Customer at an additional cost under a separate written agreement.

2. Term. The license granted under this Agreement remains in effect for a period of 75 years (the “Term”), unless earlier terminated in accordance with this Agreement; provided however, that the license granted with respect to a Trial License shall remain in effect only for the a period beginning on the date of delivery and ending ninety (90) days thereafter (the “Trial Term”). Customer may terminate the license at any time by destroying all copies of the Software in Customer possession or control. The license granted under this Agreement will automatically terminate, with or without notice from A10 Networks, if Customer breaches any term of this Agreement or exceeds the scope of the license granted herein. Upon termination, Customer must at A10 Networks’ option either promptly destroy or return to A10 Networks all copies of the Software in Customer possession or control. All terms in Part IV of this Agreement will survive termination or expiration of this Agreement for any reason.

3. Customer Data and Databases.

To assist Customer in isolating the cause of a problem with the Software, A10 Networks may request that Customer 1) allow A10 Networks to remotely access Customer’s system or 2) send Customer information or system data to A10 Networks. However, A10 Networks is not obligated to provide such assistance unless A10 Networks and Customer enter a separate written agreement under which A10 Networks agrees to provide to Customer that type of support, which is beyond A10 Networks’ obligations in this Agreement. In any event, A10 Networks uses information about errors and problems to improve its products and services, and assist with its provision of related support offerings. For these purposes, A10 Networks may use A10 Networks entities and subcontractors (including in one or more countries other than the one in which Customer is located), and Customer authorizes A10 Networks to do so.

Customer remains responsible for 1) any data and the content of any database Customer makes available to A10 Networks, 2) the selection and implementation of procedures and controls regarding access, security, encryption, use, and transmission of data (including any personally-identifiable data), and 3) backup and recovery of any database and any stored data. Customer will not send or provide A10 Networks access to any personally-identifiable information, whether in data or any other form, and will be responsible for reasonable costs and other amounts that A10 Networks may incur relating to any such information mistakenly provided to A10 Networks or the loss or disclosure of such information by A10 Networks, including those arising out of any third party claims.

PART II. VTHUNDER (PAY-AS-YOU-GO) SERVICES

The terms of this Part II apply to the following A10 Networks Services: vThunder Subscription (Pay-As-You-Go) Services

1. Scope. This Agreement applies to the Provider’s access to and use of A10 Networks’ vThunder Subscription (Pay-As-You-Go) Services (“Services” or “vThunder Services”) identified in one or more ordering documents signed by the Parties, including any exhibits thereto, and which expressly references this Agreement (“Order” or “Orders”). Further, this Agreement applies to Provider’s license to the associated vThunder software and the local license manager, in executable form (collectively, the “Software”). This Agreement and all Orders represent the Parties’ entire understanding regarding vThunder Services and shall control over any different or additional terms of any purchase order or other non-A10 Networks ordering document, and no terms included in any such purchase order or other non-A10 Networks ordering document shall apply to vThunder Services. In the event of a conflict between this Agreement and an Order, the terms of this Agreement shall control.

2. vThunder Services.

2.1 Access to vThunder Services. During the Subscription Term or Trial Term (as defined below), Provider may access and use vThunder Services and may permit Users to access and use vThunder Services, subject to the terms of the Agreement. “Users” means Provider's employees, agents or contractors who are authorized by Provider to use vThunder Services on behalf of Provider.

2.2 Usage Rights. The vThunder Services are provided by A10 Networks from a data center facility(ies) to which Users have remote access via the Internet in conjunction with certain offline components provided by A10 Networks hereunder. Each Order defines Provider’s specific usage rights with respect to vThunder Services (“Usage Rights”), and Provider shall at all times ensure that its use does not exceed its Usage Rights.

2.3 Provider Equipment. Provider shall be solely responsible for obtaining and maintaining appropriate equipment and ancillary services needed to connect to, access or otherwise use vThunder Services, including, without limitation, computers, computer operating system, hypervisor, orchestrators and web browser (collectively, "Equipment"). Provider shall ensure that Equipment complies with all configurations and specifications set forth in A10 Networks’ published documentation.

2.4 Provider Data. Provider hereby grants A10 Networks the right to use, copy, modify and display the Provider Data for the benefit of Provider as may be necessary to provide vThunder Services. Provider will have sole responsibility for the accuracy, quality, integrity, reliability, and appropriateness of all Provider Data. “Provider Data” means all data, information and content that Provider uploads for storage or processing by vThunder Services.

2.5 Trial License. Notwithstanding any other term herein, if Provider has downloaded a trial version or otherwise is licensed for evaluation or proof of concept (POC), and has not paid the license fees, Provider’s use of the Services and license is limited to a Trial License, namely as follows: during the Trial Term, Provider may use the Software and Services solely for Provider’s internal business purposes solely in a non-production environment, and solely for the purpose of evaluating whether Provider will purchase a subscription to the FlexPool Services for production-environment use; Provider shall not be entitled to receive, and A10 shall not be obligated to provide, any Support or Maintenance in accordance with Section 3.3 below; The Software and Services MAY CONTAIN A DISABLING DEVICE THAT WILL PREVENT IT FROM BEING USED AFTER THE EVALUATION PERIOD ENDS. PROVIDER AGREES NOT TO TAMPER WITH THE DISABLING DEVICE OR THE Software and Services. PROVIDER SHOULD TAKE PRECAUTIONS TO AVOID ANY LOSS OF DATA THAT MIGHT RESULT WHEN THE Software and Services CAN NO LONGER BE USED.

3. Software.

3.1 Software License. Conditioned upon Provider’s compliance with the terms and conditions of this Agreement, A10 Networks grants Provider a non-exclusive and non-transferable license, during the Subscription Term or Trial Term (as applicable), for Provider to Execute the Software which is associated with a unique feature pool serial number, solely for Provider’s internal business purposes and solely for the purpose of further optimizing Provider’s network, which may include providing hosting, application, service bureau, or software-as-a-service (SaaS) services to third parties. “Execute” or “Execution” means to load, install, and run the Software in order to benefit from its functionality as designed by A10 Networks.

3.2 Limitations. Each instance of the Software licensed by Provider may be installed in either a designated third party service provider cloud environment or at a site owned or operated by Provider, and may be used for the Subscription Term or Trial Term (as applicable) only up to the amount of licensed unit of measurement (including, but not limited to, bandwidth or byte quantity) per time interval licensed by Provider for that instance.

3.3 Support and Maintenance. A10 Networks will provide support for Provider’s use of vThunder Services and the Software in accordance with A10 Networks’ then-standard support services description at www.a10networks.com/support (“Support”) for the Subscription Term or Trial Term (as applicable), as outlined in Exhibit A (“vThunder Subscription (Pay-As-You-Go) Services Support”). A10 Networks may update or modify vThunder Services from time to time in its discretion; provided that A10 Networks will not materially decrease the functionality of vThunder Services. Support includes Maintenance Releases but not New Versions. “Maintenance Release” means any update or release of the Software that A10 Networks may provide to the Provider when and if available during the Subscription Term or Trial Term (as applicable), that may contain, among other things, error corrections, enhancements or other changes to the user interface, functionality, compatibility, capabilities, performance, efficiency or quality of the Software, but does not constitute a New Version. “New Version” means any new version of the Software that A10 Networks may from time to time introduce and market generally as a distinct licensed product, and which A10 Networks may make available to the Provider at an additional cost under a separate written agreement.

4. Suspension or Termination. A10 Networks reserves the right to temporarily suspend or permanently terminate use of or access to vThunder Services by Customer or User(s) in the event that (i) Customer or such User(s) violates, or is deemed by A10, in A10’s sole determination to be in violation of the terms of this Agreement, (ii) uses vThunder Services in a manner that A10 Networks reasonably believes will cause it liability, or (iii) A10 Networks does not timely receive payment from the Customer or, as applicable, the channel partner, that purchased vThunder Services from A10 Networks. Customer also remains responsible for paying Customer’s monthly Service fee if Customer’s Service is suspended as permitted herein. A10 may in its sole discretion provides to Customer a thirty (30) day grace period after termination or expiration of the use of or access of vThunder Services, provided however, Customer shall have no right to receive any Support during any such grace period.

5. Payment and Fees.

5.1 Purchases through Channel Partners. If Customer purchases vThunder Services from an A10 Networks channel partner, then this Section 5 will not apply and payment and fees will be as agreed between Customer and such channel partner.

5.2 Fees and Taxes. Customer shall pay all fees set forth in an invoice. All fees are non-cancelable, non-creditable and nonrefundable. All fees are exclusive of taxes, levies, or duties imposed by taxing authorities, and Customer shall be responsible for payment of all such taxes, levies, or duties (excluding U.S. taxes based on A10 Networks’ income), even if such amounts are not listed in an invoice. The amounts payable under this Agreement do not include sales or use tax, goods and services tax or customs duties or any similar taxes, duties and fees including state and local taxes, duties and fees (if applicable). If any such tax, duty or fee is applicable to the fees payable to A10 Networks, the payment due from Customer to A10 Networks will be grossed up such that A10 Networks will receive the fees payable as if no such tax or duty had been applied. Customer shall pay all fees in U.S. Dollars or in such other currency as agreed to in writing by the Parties.

5.3 Invoicing and Payment. Customer will receive monthly invoices in arrears that are due in full. Customer’s invoice will include monthly recurring charges, prorated charges/credits based on the install/disconnect date, overage charges, administrative, and late payment charges, and any non-recurring charges. Applicable taxes and surcharges may be added if applicable. All amounts invoiced are due and payable within thirty (30) days of the date of invoice. Unpaid invoices that are not the subject of a written good faith dispute are subject to a finance charge of 1.5% per month on any outstanding balance, or the maximum permitted by law, whichever is lower, plus all reasonable expenses of collection.

6. Rates.

6.1 Changes. A10 Networks may change any rates, fees, expenses, or charges regarding Customer’s vThunder Services at any time. A10 Networks will provide Customer with notice of material changes either in Customer’s monthly invoice or separately.

IF A10 NETWORKS INCREASES THE PRICE OF ANY OF THE VTHUNDER SERVICES TO WHICH CUSTOMER SUBSCRIBES, BEYOND THE LIMITS SET FORTH IN CUSTOMER’S ORDER, A10 NETWORKS WILL DISCLOSE THE CHANGES AT LEAST ONE BILLING CYCLE IN ADVANCE (EITHER THROUGH A NOTICE WITH CUSTOMER’S BILL, EMAIL OR OTHERWISE), AND CUSTOMER MAY TERMINATE THIS AGREEMENT WITHOUT PAYING AN EARLY TERMINATION FEE PROVIDED CUSTOMER’S NOTICE OF TERMINATION IS DELIVERED TO A10 NETWORKS WITHIN THIRTY (30) DAYS AFTER THE FIRST NOTIFICATION REFLECTING THE CHANGE.

6.2 Charges. Customer is responsible for paying all charges for or resulting from vThunder Services provided under this Agreement, including, without limitation, recurring monthly service, usage charges, activation fees that may apply to each optional service, overage charges, administrative, and late payment charges.

IF CUSTOMER DISPUTES ANY CHARGES ON CUSTOMER’S INVOICE, CUSTOMER MUST NOTIFY A10 NETWORKS IN WRITING WITHIN 30 DAYS OF THE DATE OF THE INVOICE OR CUSTOMER WILL HAVE WAIVED ITS RIGHT TO DISPUTE THE INVOICE AND TO PARTICIPATE IN ANY LEGAL ACTION RAISING SUCH DISPUTE.

6.3 Bill Calculation. Service usage and monthly fees will be billed as specified in the applicable Order at the rate plan selected by the Customer (“Rate Plan”). Except as provided below, monthly Services and certain other charges are billed in accordance with Customer’s designated Rate Plan. There is no proration of such charges if vThunder Service is terminated on any day other than the last day of Customer’s billing cycle. Customer agrees to pay for all Services used on behalf of Customer or on behalf of Customer’s end users.

SERVICE USAGE IS CALCULATED IN ACCORDANCE WITH THE RATE PLAN (AND CORRESPONDING BANDWIDTH LIMITS) CUSTOMER SELECTS. CUSTOMER’S RATE PLAN IS SET FORTH IN THE APPLICABLE ORDER.

If Customer selects a Rate Plan that includes a predetermined maximum allotment of Services (for example, a predetermined amount of megabytes per second), unless otherwise specifically provided as a part of such Rate Plan, any unused allotment of vThunder Services from one billing cycle will not carry over to any other past or future billing cycle. Additional reasonable charges may apply for additional copies of Customer’s invoice, or for detailed information about Customer’s usage of vThunder Services.

6.4 Delayed Billing. Billing of usage for data or other Services may occasionally be delayed. Such usage charges may appear in a later billing cycle, in addition to usage charges for Services for the month when such delayed usage charges are actually billed, and may result in additional charges for that month.

6.5 Advance Payments And/Or Deposits. A10 Networks may require Customer to make deposits or advance payments for vThunder Services, which A10 Networks may offset against any unpaid balance on Customer’s account. Interest will not accrue on advance payments or deposits unless required by law. Based on Customer’s creditworthiness as A10 Networks determines it, A10 Networks may establish a credit limit and restrict vThunder Services or features. If Customer’s account balance goes beyond the limit A10 Networks set for Customer, A10 Networks may immediately interrupt or suspend vThunder Services until Customer’s outstanding balance is brought below the credit limit. Any charges Customer incurs in excess of Customer’s limit become immediately due. If Customer has more than one account with A10 Networks, Customer must keep all accounts in good standing to maintain vThunder Services. If one account is past due or over its limit or Customer’s accounts when aggregated are over its limit, all accounts in Customer’s name are subject to interruption or termination and all other available collection remedies.

7. Service Limitations.

7.1 General Terms That Apply To All Rate Plans. A10 Networks provides services, including but not limited to, features that may be used with vThunder Services and Software. The absolute capacity of the services network is limited; consequently, vThunder Services may only be used for expressly permitted activities.

For Services subject to the Rental Billing Model (Customer sets the fixed bandwidth limit) and data allowance without overage coverage, once Customer exceeds its set bandwidth limit, additional data will be dropped as specified in the applicable Rate Plan. For Services subject to the Rental Billing Model and data allowance with overage coverage, once Customer exceeds its set bandwidth limit, Customer will be automatically charged for overage as specified in the applicable Rate Plan; and further, once Customer exceeds its designated overage data allowance, additional data will be dropped as specified in the applicable Rate Plan.

All data allowances, including overages, must be used in the billing period in which the allowance is provided. Unused data allowances will not roll over to any other billing periods.

7.2 Prohibited Uses Of vThunder Services.

7.2.1. vThunder Services are not intended to be used in any manner which has any of the following effects and such use is prohibited if it: (a) conflicts with applicable law, (b) hinders other customers’ access to A10 Networks network, (c) compromises vThunder Services, network security or capacity, (d) excessively and disproportionately contributes to network congestion, (e) adversely impacts network service levels or legitimate data flows, (f) degrades network performance, or (g) causes harm to the network or other customers.

7.2.2. The vThunder Services may not be used in any manner that: (i) defeats, obstructs or penetrates, or attempts to defeat, obstruct or penetrate the security measures of A10 Networks’ network or systems, or another entity’s network or systems; (ii) accesses, or attempts to access without authority, the accounts of others; or (iii) adversely affects the ability of other people or systems to use either A10 Networks’ services or other parties’ Internet-based resources. For example, this includes, but is not limited to, using malicious software or “malware” that is designed, intentionally or unintentionally, to infiltrate a network or computer system such as spyware, worms, Trojan horses, rootkits, and/or crimeware; attempting “denial of service” attacks against a network host or individual user; and sending “spam” or unsolicited commercial or bulk email (or activities that have the effect of facilitating unsolicited commercial email or unsolicited bulk e-mail).

7.2.3. vThunder Services may not be used in any manner that has the effect of excessively contributing to network congestion, or hindering other customers’ access to the network. For example, this includes, but is not limited to, using “auto-responders,” “cancel-bots,” or similar automated or manual routines that generate excessive amounts of traffic or that disrupt user groups or email use by others and software or other devices that maintain continuous active Internet connections when a connection would otherwise be idle or any “keep alive” functions, unless they adhere to A10 Networks data retry requirements (as may be modified from time to time).

7.2.4. Customer agrees not to use vThunder Services for any of the prohibited activities set forth in this Section 7.2.

7.3 A10 Networks’ Rights to Ensure Compliance. Customer agrees that A10 Networks has the right to take any and all actions necessary to enforce this Section 7 if Customer uses vThunder Services in any manner that is prohibited, including, but not limited to, the following actions:

7.3.1. A10 Networks may modify, without advance notice, the permitted and prohibited activities, and the optimization requirements for Services;

7.3.2. A10 Networks may engage in any reasonable network management practice to enhance customer service, to reduce network congestion, to adapt to advances and changes in technology, and/or to respond to the availability of bandwidth;

7.3.3. A10 Networks may reduce Customer’s data throughput speeds at any time or place if Customer’s data usage exceeds an applicable, identified usage threshold during any billing cycle.

7.3.4. A10 Networks may interrupt, suspend, cancel or terminate Customer’s Services in accordance with Sections 4 or 9.

7.4 Additional Customer Obligations. As a condition to A10 Networks providing Customer with the Services and Software, Customer acknowledges and agrees that it is responsible for each of the following:

7.4.1. Customer will ensure that all Users given access to the Services or Software have the right to access the information and data made accessible to them by Customer through the Services.

7.4.2. Customer will (a) obtain all permissions, authorizations, licenses or approvals from each applicable data source as may be necessary or required to use and to provide the Customer Data to A10 Networks in connection with the delivery of the Services and (b) comply with all applicable laws in its performance under this Agreement.

7.4.3. Customer will ensure that none of the Customer Data contains any viruses or similar contaminants.

8. Data Collection. Customer acknowledges and agrees that A10 Networks will collect remotely certain data with respect to Customer’s use of the Services and Software and A10 Networks’ storage or processing of Customer Data, including but not limited to quantity of traffic, bandwidth used, and viability of the Services or Software for A10 Networks’ use including but not limited to invoicing Customer, and providing Customer support and maintenance services (collectively, “Usage Information”). A10 Networks may use reasonable methods to monitor and collect Usage Information to better optimize the operation of the network. A10 Networks shall have, to the extent Customer owns any rights in the Usage Information, an unlimited right and license to use such Usage Information and the know-how resulting from the provision of the Services and Software to enhance, improve and provide the Services and Software and derivatives thereof, provided that the foregoing is not a license to provide or disclose any Customer Data to any third party in raw or disaggregated form, identify any A10 Networks’ customers individually, or to identify Customer as the source of any such Customer Data or analytical results.

9. Term and Termination.

9.1 Term. The Agreement shall commence as of the date set forth in the first Order (“Commencement Date”) and, unless earlier terminated as set forth herein, shall remain in effect through the end of the term set forth in any current Order (“Subscription Term”); provided however, that access to the Services and the license granted with respect to a Trial License shall remain in effect only for the a period beginning on the Commencement Date and ending ninety (90) days thereafter (the “Trial Term”).

9.2 Termination for Convenience. Customer may terminate this Agreement for any or no reason prior to the end of the Subscription Term or Trial Term. Termination will be effective upon A10 Networks’ receipt of (i) written notice of the request to terminate from Customer or the applicable channel partner and (ii) any other amounts owed from Customer or the applicable channel partner for Services and Software provided through the date of termination.

9.3 Termination for Breach. In the event of a material breach by either Party of this Agreement or any Order, the non-breaching Party shall have the right to terminate the applicable Order or this Agreement, in such Party’s sole discretion, for cause if such breach has not been cured within thirty (30) days of written notice from the non-breaching Party specifying the breach in detail. A10 Networks may immediately terminate Customer's password, account, and access to the Services if (i) Customer fails to make payment due within ten (10) business days after A10 Networks has provided Customer with notice of such failure; or (ii) Customer violates Sections 2, 3, 4, 7.2 or 7.4 of this Part II, or any term set forth in Part IV of this Agreement. Any suspension by A10 Networks of the Services under the preceding sentence shall not relieve Customer of its payment obligations under the Agreement. If A10 Networks terminates an Order for Customer's material breach, all fees set forth on such Order are immediately due and payable.

9.4 Termination for Insolvency. Either Party may terminate this Agreement immediately at its option if the other Party (i) ceases to do business in the normal course; (ii) becomes or is declared insolvent or bankrupt; (iii) is the subject of any proceeding related to its liquidation or insolvency (whether voluntary or involuntary) which is not dismissed within ninety (90) days; or (iv) makes an assignment for the benefit of creditors.

9.5 Effect of Termination

9.5.1. Customer Data. Upon any termination or expiration of an Order or this Agreement, Customer's right to access and use the Services covered by that Order or this Agreement, as applicable, shall terminate. Customer acknowledges and agrees that A10 Networks has no obligation to retain Customer Data and that A10 Networks may, in its sole discretion, and without notice to Customer, irretrievably delete and destroy Customer Data after the termination of the Agreement.

9.5.2. Services and Software. The right to access the Services and the license to the Software will automatically terminate upon termination of this Agreement or the applicable Order for any reason. Upon such termination, Customer must at A10 Networks’ option, either promptly destroy or return to A10 Networks all copies of the Software in Customer’s possession or control.

9.5.3 Survival. The following provisions will survive any expiration or termination of this Agreement: Sections 4, 5, 6, 8 and 9 of this Part II, and all terms set forth in Part IV of this Agreement.

PART III. FLEXPOOL SUBSCRIPTION SERVICES

The terms of this PART III apply to FlexPool Subscription Services

1. Scope. This Agreement applies to the Customer’s access to and use of A10 Networks’ FlexPool subscription services (“Service” or “FlexPool Services”) identified in one or more ordering documents signed by the Parties, including any exhibits thereto, and which expressly references this Agreement (“Order” or “Orders”). Further, this Agreement applies to Customer’s license to the associated vThunder software, Bare Metal software and the local license manager, in executable form (collectively, the “Software”). This Agreement and all Orders represent the Parties’ entire understanding regarding FlexPool Services and shall control over any different or additional terms of any purchase order or other non-A10 Networks ordering document, and no terms included in any such purchase order or other non-A10 Networks ordering document shall apply to FlexPool Services. In the event of a conflict between this Agreement and an Order, the terms of this Agreement shall control.

2. FlexPool Services.

2.1 Access to FlexPool Services. During the Subscription Term or Trial Term (as defined below), Customer may access and use FlexPool Services and may permit Users to access and use FlexPool Services, subject to the terms of the Agreement. “Users” means Customer's employees, agents or contractors who are authorized by Customer to use FlexPool Services on behalf of Customer.

2.2 Usage Rights. The FlexPool Services are provided by A10 Networks from a data center facility(ies) to which Users have remote access via the Internet in conjunction with certain offline components provided by A10 Networks hereunder. Each Order defines Customer’s specific usage rights with respect to FlexPool Services (“Usage Rights”), and Customer shall at all times ensure that its use does not exceed its Usage Rights.

2.3 Customer Equipment. Customer shall be solely responsible for obtaining and maintaining appropriate equipment and ancillary services needed to connect to, access or otherwise use FlexPool Services, including, without limitation, computers, computer operating system, hypervisor, orchestrators and web browser (collectively, "Equipment"). Customer shall ensure that Equipment complies with all configurations and specifications set forth in A10 Networks’ published documentation.

2.4 Customer Data. Customer hereby grants A10 Networks the right to use, copy, modify and display the Customer Data for the benefit of Customer as may be necessary to provide FlexPool Services. Customer will have sole responsibility for the accuracy, quality, integrity, reliability, and appropriateness of all Customer Data. “Customer Data” means all data, information and content that Customer uploads for storage or processing by FlexPool Services.

2.5 Trial License. Notwithstanding any other term herein, if Customer has downloaded a trial version or otherwise is licensed for evaluation or proof of concept (POC), and has not paid the license fees, Customer’s use of the Services and license is limited to a Trial License, namely as follows: during the Trial Term, Customer may use the Software and Services solely for Customer’s internal business purposes solely in a non-production environment, and solely for the purpose of evaluating whether Customer will purchase a subscription to the FlexPool Services for production-environment use; Customer shall not be entitled to receive, and A10 shall not be obligated to provide, any Support or Maintenance in accordance with Section 3.3 below. The Software and Services MAY CONTAIN A DISABLING DEVICE THAT WILL PREVENT IT FROM BEING USED AFTER THE EVALUATION PERIOD ENDS. CUSTOMER AGREES NOT TO TAMPER WITH THE DISABLING DEVICE OR THE Software and Services. CUSTOMER SHOULD TAKE PRECAUTIONS TO AVOID ANY LOSS OF DATA THAT MIGHT RESULT WHEN THE Software and Services CAN NO LONGER BE USED.

3. Software.

3.1 Software License. Conditioned upon Customer’s compliance with the terms and conditions of this Agreement, A10 Networks grants Customer a non-exclusive and non-transferable license, during the Subscription Term or Trial Term (as applicable), for Customer to Execute the Software which is associated with a unique feature pool serial number, solely for Customer’s internal business purposes and solely for the purpose of further optimizing Customer’s network, which may include providing hosting, application, service bureau, or software-as-a-service (SaaS) services to third parties. “Execute” or “Execution” means to load, install, and run the Software in order to benefit from its functionality as designed by A10 Networks.

3.2 Limitations. Each instance of the Software licensed by Customer may be installed in either a designated third party service provider cloud environment or at a site owned or operated by Customer, and may be used for the Subscription Term or Trial Term (as applicable) only up to the amount of licensed unit of measurement (including, but not limited to, bandwidth or byte quantity) per time interval licensed by Customer for that instance, as designated by Customer in Customer’s Order. For purchases of FlexPool Services only, multiple instances of the Software may be concurrently installed and used subject to the terms of this Agreement, provided however, that Customer shall be subject to the limitations associated with Customer’s choice of rate set forth in Customer’s Order.

3.3 Support and Maintenance. A10 Networks will provide support for Customer’s use of FlexPool Services and the Software in accordance with A10 Networks’ then-standard support services description at www.a10networks.com/support (“Support”) for the Subscription Term. A10 Networks may update or modify FlexPool Services from time to time in its discretion; provided that A10 Networks will not materially decrease the functionality of FlexPool Services. Support includes Maintenance Releases but not New Versions. “Maintenance Release” means any update or release of the Software that A10 Networks may provide to the Customer when and if available during the Subscription Term or Trial Term (as applicable), that may contain, among other things, error corrections, enhancements or other changes to the user interface, functionality, compatibility, capabilities, performance, efficiency or quality of the Software, but does not constitute a New Version. “New Version” means any new version of the Software that A10 Networks may from time to time introduce and market generally as a distinct licensed product, and which A10 Networks may make available to the Customer at an additional cost under a separate written agreement.

4. Suspension or Termination. A10 Networks reserves the right to temporarily suspend or permanently terminate use of or access to FlexPool Services by Customer or User(s) in the event that (i) Customer or such User(s) violates, or is deemed by A10, in A10’s sole determination to be in violation of the terms of this Agreement, (ii) uses FlexPool Services in a manner that A10 Networks reasonably believes will cause it liability, or (iii) A10 Networks does not timely receive payment from the Customer or, as applicable, the channel partner, that purchased FlexPool Services from A10 Networks. In the event A10 may in its sole discretion provides to Customer a thirty (30) day grace period after termination or expiration of the use of or access of FlexPool Services, provided however, Customer shall have no right to receive any Support during any such grace period.

5. Payment and Fees.

5.1 Purchases through Channel Partners. If Customer purchases FlexPool Services from an A10 Networks channel partner, then this Section 5 will not apply and payment and fees will be as agreed between Customer and such channel partner.

5.3 Invoicing and Payment. For FlexPool Services, all fees for the Subscription Term shall be due and payable in a lump sum payment at the beginning of the Subscription Term. Applicable taxes and surcharges may be added if applicable. All amounts invoiced are due and payable within thirty (30) days of the date of invoice. Unpaid invoices that are not the subject of a written good faith dispute are subject to a finance charge of 1.5% per month on any outstanding balance, or the maximum permitted by law, whichever is lower, plus all reasonable expenses of collection.

6. Rates.

6.1 Changes by Customer. During the Subscription Term, Customer may purchase more capacity at any time, and payment will be due in accordance with Section 5 above for such larger capacity. Customer may also downgrade capacity at any time, provided however, that Customer shall not be entitled to receive any credit or refund for such downgrade.

6.2 Changes. A10 Networks may change any rates, fees, expenses, or charges regarding Customer’s FlexPool Services at any time. A10 Networks will provide Customer with notice of material changes either in Customer’s invoice or separately.

6.3 Charges. Customer is responsible for paying all charges for or resulting from FlexPool Services provided under this Agreement, including, without limitation, activation fees that may apply to each optional service, administrative, and late payment charges.

6.4 Bill Calculation. Except as provided below, there is no proration of such charges if the FlexPool Services are terminated on any day other than the last day of Customer’s Subscription Term.

FEES ARE CALCULATED IN ACCORDANCE WITH THE RATE PLAN (AND CORRESPONDING BANDWIDTH LIMITS) CUSTOMER SELECTS. CUSTOMER’S RATE PLAN IS SET FORTH IN THE APPLICABLE ORDER.

Customer’s designated Rate Plan includes a predetermined maximum allotment of bandwidth for all instances that are provisioned as part of the FlexPool. Any unused allotment of FlexPool Services from one billing cycle will not carry over to any other past or future billing cycle. Additional reasonable charges may apply for additional copies of Customer’s invoice, or for detailed information about Customer’s usage of FlexPool Services.

6.5 Advance Payments And/Or Deposits. A10 Networks requires Customer to make advance payments for FlexPool Services. Interest will not accrue on advance payments or deposits unless required by law. Based on Customer’s creditworthiness as A10 Networks determines it, A10 Networks may establish a credit limit and restrict FlexPool Services or features. If Customer’s account balance goes beyond the limit A10 Networks set for Customer, A10 Networks may immediately interrupt or suspend FlexPool Services until Customer’s outstanding balance is brought below the credit limit. If Customer has more than one account with A10 Networks, Customer must keep all accounts in good standing to maintain FlexPool Services. If one account is past due or over its limit or Customer’s accounts when aggregated are over its limit, all accounts in Customer’s name are subject to interruption or termination and all other available collection remedies.

7. Service Limitations.

7.1 General Terms That Apply To All Rate Plans. A10 Networks provides services, including but not limited to, features that may be used with FlexPool Services and Software. The absolute capacity of the services network is limited; consequently, FlexPool Services may only be used for expressly permitted activities.

If Customer initiates an additional instance that exceeds the predetermined maximum allotment of bandwidth for all instances as designated in Customer’s Order, that instance and no additional instances may be initiated.

All bandwidth allowances must be used in the Subscription Term period in which the allowance is provided. Unused bandwidth allowances will not roll over to any other billing periods.

7.2 Prohibited Uses Of FlexPool Services.

7.2.1. FlexPool Services are not intended to be used in any manner which has any of the following effects and such use is prohibited if it: (a) conflicts with applicable law, (b) hinders other customers’ access to A10 Networks network, (c) compromises FlexPool Services, network security or capacity, (d) excessively and disproportionately contributes to network congestion, (e) adversely impacts network service levels or legitimate data flows, (f) degrades network performance, or (g) causes harm to the network or other customers.

7.2.2. The FlexPool Services may not be used in any manner that: (i) defeats, obstructs or penetrates, or attempts to defeat, obstruct or penetrate the security measures of A10 Networks’ network or systems, or another entity’s network or systems; (ii) accesses, or attempts to access without authority, the accounts of others; or (iii) adversely affects the ability of other people or systems to use either A10 Networks’ services or other parties’ Internet-based resources. For example, this includes, but is not limited to, using malicious software or “malware” that is designed, intentionally or unintentionally, to infiltrate a network or computer system such as spyware, worms, Trojan horses, rootkits, and/or crimeware; attempting “denial of service” attacks against a network host or individual user; and sending “spam” or unsolicited commercial or bulk email (or activities that have the effect of facilitating unsolicited commercial email or unsolicited bulk e-mail).

7.2.3. FlexPool Services may not be used in any manner that has the effect of excessively contributing to network congestion, or hindering other customers’ access to the network. For example, this includes, but is not limited to, using “auto-responders,” “cancel-bots,” or similar automated or manual routines that generate excessive amounts of traffic or that disrupt user groups or email use by others and software or other devices that maintain continuous active Internet connections when a connection would otherwise be idle or any “keep alive” functions, unless they adhere to A10 Networks data retry requirements (as may be modified from time to time).

7.2.4. Customer agrees not to use FlexPool Services for any of the prohibited activities set forth in this Section 7.2.

7.3 A10 Networks’ Rights to Ensure Compliance. Customer agrees that A10 Networks has the right to take any and all actions necessary to enforce this Section 7 if Customer uses FlexPool Services in any manner that is prohibited, including, but not limited to, the following actions:

7.3.1. A10 Networks may modify, without advance notice, the permitted and prohibited activities, and the optimization requirements for Services;

7.3.3. A10 Networks may interrupt, suspend, cancel or terminate Customer’s Services in accordance with Sections 4 or 12.

7.4 Additional Customer Obligations. As a condition to A10 Networks providing Customer with Services and Software, Customer acknowledges and agrees that it is responsible for each of the following:

7.4.1. Customer will ensure that all Users given access to Services or Software have the right to access the information and data made accessible to them by Customer through Services.

7.4.2. Customer will (a) obtain all permissions, authorizations, licenses or approvals from each applicable data source as may be necessary or required to use and to provide the Customer Data to A10 Networks in connection with the delivery of Services and (b) comply with all applicable laws in its performance under this Agreement.

7.4.3. Customer will ensure that none of the Customer Data contains any viruses or similar contaminants.

8. Data Collection. Customer acknowledges and agrees that A10 Networks will collect remotely certain data with respect to Customer’s use of Services and Software and A10 Networks’ storage or processing of Customer Data, including but not limited to quantity of traffic, bandwidth used, and viability of Services or Software for A10 Networks’ use including but not limited to invoicing Customer, and providing Customer support and maintenance services (collectively, “Usage Information”). A10 Networks may use reasonable methods to monitor and collect Usage Information to better optimize the operation of the network. A10 Networks shall have, to the extent Customer owns any rights in the Usage Information, an unlimited right and license to use such Usage Information and the know-how resulting from the provision of Services and Software to enhance, improve and provide Services and Software and derivatives thereof, provided that the foregoing is not a license to provide or disclose any Customer Data to any third party in raw or disaggregated form, identify any A10 Networks’ customers individually, or to identify Customer as the source of any such Customer Data or analytical results.

9. Term and Termination.

9.1 Term. The Agreement shall commence as of the date set forth in the first Order (“Commencement Date”) and, unless earlier terminated as set forth herein, shall remain in effect through the end of the term set forth in any current Order (“Subscription Term”) provided however, that access to the Services and the license granted with respect to a Trial License shall remain in effect only for the a period beginning on the Commencement Date and ending ninety (90) days thereafter (the “Trial Term”).

9.3 Termination for Breach. In the event of a material breach by either Party of this Agreement or any Order, the non-breaching Party shall have the right to terminate the applicable Order or this Agreement, in such Party’s sole discretion, for cause if such breach has not been cured within thirty (30) days of written notice from the non-breaching Party specifying the breach in detail. A10 Networks may immediately terminate Customer's password, account, and access to Services if (i) Customer fails to make payment due within ten (10) business days after A10 Networks has provided Customer with notice of such failure; or (ii) Customer violates Sections 2, 3, 4, 7.2, 7.4, 8 of this Part III, or any term set forth in Part IV of this Agreement. Any suspension by A10 Networks of Services under the preceding sentence shall not relieve Customer of its payment obligations under the Agreement. If A10 Networks terminates an Order for Customer's material breach, all fees set forth on such Order are immediately due and payable.

9.5 Effect of Termination

9.5.1. Customer Data. Upon any termination or expiration of an Order or this Agreement, Customer's right to access and use Services covered by that Order or this Agreement, as applicable, shall terminate. Customer acknowledges and agrees that A10 Networks has no obligation to retain Customer Data and that A10 Networks may, in its sole discretion, and without notice to Customer, irretrievably delete and destroy Customer Data after the termination of the Agreement.

9.5.3. Survival. The following provisions will survive any expiration or termination of this Agreement: Sections 4, 5, 6, 8 and 9 of this Part III, and all Sections set forth in Part IV of this Agreement.

PART IV. General

The terms of this PART IV apply to all Software and Services. All terms in this Part IV shall survive termination or expiration of this Agreement.

1. License Restrictions. Except as expressly specified in this Agreement, Customer agrees not to do any of the following, notwithstanding the fair use doctrine or any statutory or common law provision that might otherwise permit any of the following (except to the extent applicable law makes any of the following prohibitions unenforceable or otherwise permits the recited acts notwithstanding the agreement not to perform them): (a) copy (except in the course of loading or installing) or modify the Software, including but not limited to adding new features or otherwise making adaptations that alter the functioning of the Services or Software; (b) transfer, sublicense, sell, resell, lease, lend, rent or otherwise distribute or make the Services or Software available to any third party; (c) make the functionality of the Services or Software available to Users through any means except as expressly provided herein, including but not limited to by uploading the Software to a network or file-sharing service; or (d) use the Services or Software for purposes of competitive analysis of the Services or Software, the development of a competing services or software product or any other purpose that is to A10 Networks’ commercial disadvantage.

2. Ownership. The Software and Services are licensed, not sold. As between Customer and A10 Networks, all right, title, and interest in and to the Services and Software, and any and all intellectual property rights therein, belong exclusively to A10 Networks. The Services and Software are protected by United States patent, copyright and trade secret laws and international treaties. Customer will not delete or in any manner alter the copyright, trademark, and other proprietary rights notices or markings appearing on the Services and Software as delivered to Customer. Nothing contained in this Agreement shall be construed as transferring any right, title, or interest in or to the Services and Software and/or any intellectual property rights in the same to Customer, and except for the limited rights granted to Customer as expressly set forth herein, all such rights are reserved to A10 Networks.

3. Trade Secrets. Customer acknowledges and agrees that portions of the Software and Services, including but not limited to the source code and the specific design and structure of individual modules or programs, constitute or contain trade secrets of A10 Networks and its licensors. Accordingly, Customer agrees not to disassemble, decompile or reverse engineer the Software, in whole or in part, or permit or authorize a third party to do so, except to the extent such activities are expressly permitted by law notwithstanding this prohibition. Further, Customer agrees not to publicly display or disclose to third parties Services or Software, or any portions thereof, including, but not limited to performance metrics.

4. Customer Indemnification. Customer agrees to defend or, at its option, settle any Claims brought against A10 Networks based on Customer Data, Customer’s breach of this Agreement, or Customer’s or Users’ use of Services or Software other than in compliance with this Agreement. Customer shall have sole control of the defense or settlement negotiations, and Customer agrees to pay, subject to the limitations set forth below, any final judgment entered against A10 Networks, as a result of such breach, in any such Claim defended by Customer; provided that: (a) Customer is given prompt written notice of any such Claim; and (b) A10 Networks reasonably cooperates with Customer, at Customer’s expense, in such defense.

5. Limited Warranty.

5.1 Warranty. A10 Networks warrants to Customer that it will (a) provide Services substantially as described its installation documentation; and (b) provide Services in a manner consistent with generally accepted industry standards. A10 Networks warrants to Customer that, for ninety (90) days following the date of delivery, the Software will perform in all material respects in accordance with its installation documentation.

5.2 Limitations. Except for the foregoing, the Software and Services are provided “AS IS”. In no event does A10 Networks warrant that the that Customer will be able to operate the Software or Services without problems. A10 Networks does not warrant the following: (i) that the Software and Services will meet Customer’s requirements, (ii) that the Software and Services will operate in the combinations that Customer may select for Execution, (iii) that the operation of the Software and Services will be error-free or uninterrupted, or (iv) that all errors contained in the Software and Services will be corrected. In addition, due to the continual development of new techniques for intruding upon and attacking networks, A10 Networks does not warrant that the Software and Services, or any equipment, system or network on which the Software or Services are used, will be free of vulnerability to intrusion or attack.

5.3 Restrictions. This warranty does not apply if (a) the Software or Services or any other equipment upon which the Software or Services are authorized to be used has been altered, except by A10 Networks or its authorized representative, (b) the Software or Services have not been used, installed, operated, or maintained in accordance with instructions supplied by A10 Networks, (c) Services or Software is licensed for trial, beta, evaluation, testing or demonstration purposes; or (d) Customer fails to notify A10 Networks of any warranty deficiencies within 30 days from performance of the relevant Services or discovery of the relevant deficiency in the Software. This warranty also does not apply to (i) any temporary Software modules; and (ii) software or services supplied by any third party.

6. DISCLAIMER. THE LIMITED WARRANTY SET FORTH IN SECTION 5 OF THIS PART IV IS IN LIEU OF, AND, TO THE EXTENT ALLOWED BY APPLICABLE LAW, A10 NETWORKS, ITS SUPPLIERS AND LICENSORS EXPRESSLY DISCLAIM, ALL OTHER WARRANTIES, REPRESENTATIONS AND CONDITIONS, EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO ANY IMPLIED WARRANTIES AND CONDITIONS OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT, SATISFACTORY QUALITY, NON-INTERFERENCE, ACCURACY OF INFORMATIONAL CONTENT, OR ARISING FROM A COURSE OF DEALING, LAW, USAGE, OR TRADE PRACTICE. TO THE EXTENT THAT ANY OF THE SAME CANNOT BE EXCLUDED, SUCH IMPLIED CONDITION, REPRESENTATION AND/OR WARRANTY IS LIMITED IN DURATION TO THE EXPRESS WARRANTY PERIOD REFERRED TO IN THE “LIMITED WARRANTY” SECTION ABOVE. NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED FROM A10 NETWORKS OR ELSEWHERE WILL CREATE ANY WARRANTY OR CONDITION NOT EXPRESSLY STATED IN THIS AGREEMENT. Further, A10 Networks shall have no liability with respect to Customer’s failure to purchase enough bandwidth for Customer’s use or that of Users. This disclaimer and exclusion shall apply even if the express warranty set forth above fails to serve its essential purpose.

7. Limitation of Liability. A10 NETWORKS’ AND ITS LICENSORS’ TOTAL LIABILITY TO CUSTOMER FROM ALL CAUSES OF ACTION AND UNDER ALL THEORIES OF LIABILITY WILL BE LIMITED TO THE AMOUNTS PAID TO A10 NETWORKS BY CUSTOMER FOR THE SOFTWARE, OR, IN THE EVENT THAT A10 NETWORKS HAS MADE THE SOFTWARE AND/OR SERVICES AVAILABLE TO CUSTOMER WITHOUT CHARGE, A10 NETWORKS’ TOTAL LIABILITY WILL BE LIMITED TO $500. IN NO EVENT WILL A10 NETWORKS BE LIABLE TO CUSTOMER FOR ANY SPECIAL, INCIDENTAL, EXEMPLARY, PUNITIVE OR CONSEQUENTIAL DAMAGES (INCLUDING LOSS OF DATA, BUSINESS, PROFITS OR ABILITY TO EXECUTE) OR FOR THE COST OF PROCURING SUBSTITUTE PRODUCTS ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT OR THE EXECUTION OR PERFORMANCE OF THE SOFTWARE AND OR SERVICES WHETHER SUCH LIABILITY ARISES FROM ANY CLAIM BASED UPON CONTRACT, WARRANTY, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY OR OTHERWISE, AND WHETHER OR NOT A10 NETWORKS HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH LOSS OR DAMAGE. THE FOREGOING LIMITATIONS WILL SURVIVE AND APPLY EVEN IF ANY LIMITED REMEDY SPECIFIED IN THIS AGREEMENT IS FOUND TO HAVE FAILED OF ITS ESSENTIAL PURPOSE.

8. U.S. Government Customers. The Software qualifies as “commercial items,” as that term is defined at Federal Acquisition Regulation (“FAR”) (48 C.F.R.) 2.101, consisting of “commercial computer software” and “commercial computer software documentation” as such terms are used in FAR 12.212. Consistent with FAR 12.212 and DoD FAR Supp. 227.7202-1 through 227.7202-4, and notwithstanding any other FAR or other contractual clause to the contrary in any agreement into which the Agreement may be incorporated, Customer may provide to Government Customer or, if the Agreement is direct, Government Customer will acquire, the Software with only those rights set forth in the Agreement. Use of either the Software constitutes agreement by the Government Customer that the Software and Documentation are “commercial computer software” and “commercial computer software documentation,” and constitutes acceptance of the rights and restrictions herein.

9. Compliance with Laws. Customer agrees to comply in all material respects with all applicable laws, rules, and regulations in connection with its activities under this Agreement.

10. Export Administration Act and Related Laws. The Software and technology (hereafter referred to as Software and Technology) supplied by A10 Networks under the Agreement are subject to export controls under the laws and regulations of the United States and any other applicable countries' laws and regulations. Customer shall be responsible for being knowledgeable as to all laws, regulations, and requirements regarding the export, re-export, transfer, diversion, release and/or import of the Software and Technology and any other A10 Networks items (whether tangible or intangible, including without limitation commodities, software, technology, and technical data) that Customer may receive or access under this Agreement. Customer, at its cost, agrees to conduct all activities and obligations under this Agreement in conformity with such laws, regulations and requirements. In addition, Customer understands and agrees that A10 Networks' Software and Technology shall not, in the absence of authorization by United States and local law and regulations, as required, be used by or exported or re-exported to (i) any United States sanctioned or embargoed country, or to foreign nationals or residents of such countries; or (ii) any person, entity, organization or other party identified on the United States Department of Commerce's Denied Persons or Entity Lists, the United States Department of Treasury's Specially Designated Nationals or Blocked Persons Lists, or the Department of State's Debarred Parties List, as published and revised from time to time; (iii) any party engaged in nuclear, chemical/biological weapons or missile proliferation activities; or (iv) any party for use in the design, development, or production of rocket systems or unmanned air vehicles. Customer warrants and represents that it is not (i) a person, entity, organization or other party identified on the United States Department of Commerce's Denied Persons or Entity List, the United States Department of Treasury's Specially Designated Nationals or Blocked Persons Lists, or the Department of State's Debarred Parties List, as published and revised from time to time. A10 reserves the right in its sole discretion to deny access or use of the Software or Services to any of the foregoing entities, without any liability or any other obligation hereunder to Customer or any other third party.

11. Identified Components; Additional Terms. The Software may contain or be delivered with one or more components, which may include third-party components, as may be identified by A10 Networks in the documentation, readme.txt file, third-party click-accept or elsewhere (e.g. on www.a10networks.com) (the “Identified Component(s)”) as being subject to different license agreement terms, disclaimers of warranties, limited warranties or other terms and conditions (collectively, “Additional Terms”) than those set forth herein. Customer agrees to the applicable Additional Terms for any such Identified Component(s).

12. Open Source Statement. The Software includes “Open Source Software” that is licensed pursuant to the Open Source Software license agreement(s) identified in the Open Source Software comments in the applicable source code file(s) and/or file header(s) provided with or otherwise associated with the Software. Additional detail may be provided (where applicable) in the accompanying on-line documentation, or within the user interface of the device, if any. With respect to Open Source Software, nothing in this Agreement limits any rights under, or grants rights that supersede, the terms of any applicable Open Source Software license agreement.

13. General. This Agreement 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 United Nations Convention on Contracts for the International Sale of Goods will not apply. Customer may not assign or transfer, nor may any successor entity assume, this Agreement or any rights granted hereunder, directly or indirectly, whether by sale of stock or assets, merger (regardless of whether Customer is the surviving entity), operation of law, or otherwise, without A10 Networks’ prior written consent, and any attempt by Customer to do so, without such consent, will be void, it being understood that any direct or indirect change in ownership or control of Customer will be deemed to constitute an “assignment” for the purpose of the foregoing restriction. Except as expressly set forth in this Agreement, the exercise by either party of any of its remedies under this Agreement will be without prejudice to its other remedies under this Agreement or otherwise. All notices or approvals required or permitted under this Agreement will be in writing and delivered by confirmed facsimile transmission, by overnight delivery service, or by certified mail, and in each instance will be deemed given upon receipt. All notices or approvals will be sent to the addresses set forth in the applicable ordering document or invoice or to such other address as may be specified by either party to the other in accordance with this section. The failure by either party to enforce any provision of this Agreement will not constitute a waiver of future enforcement of that or any other provision. Any waiver, modification or amendment of any provision of this Agreement will be effective only if in writing and signed by authorized representatives of both parties. If any provision of this Agreement is held to be unenforceable or invalid, that provision will be enforced to the maximum extent possible, and the other provisions will remain in full force and effect. This Agreement is the complete and exclusive understanding and agreement between the parties regarding its subject matter, and supersedes all proposals, understandings or communications between the parties, oral or written, regarding its subject matter, unless Customer and A10 Networks have executed a separate agreement governing use of the Software. Any terms or conditions contained in Customer purchase order or other ordering document that are inconsistent with or in addition to the terms and conditions of this Agreement are hereby rejected by A10 Networks and will be deemed null.

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A10 Software License and Services Agreement