IMPORTANT: READ THIS LICENSE AGREEMENT CAREFULLY BEFORE CHECKING THE 'YES' CHECKBOX BELOW. THIS LICENSE AGREEMENT ('AGREEMENT') IS A LEGAL AGREEMENT BETWEEN YOU, EITHER AN INDIVIDUAL OR THE COMPANY OR OTHER LEGAL ENTITY YOU REPRESENT ('LICENSEE' OR 'YOU'), AND BIVIO NETWORKS, INC. ('BIVIO', 'WE,' OR 'US'), AND DESCRIBES THE TERMS FOR A LICENSE TO EACH BIVIO INSTALLATION SOFTWARE (THE 'BIVIO SOFTWARE') PROVIDED DURING THE ORDER PROCESS.

THE BIVIO SOFTWARE HAS BEEN DEVELOPED TO INSTALL THE ACCOMPANYING THIRD PARTY APPLICATIONS ('THIRD PARTY APPLICATIONS') ON A BIVIO PRODUCT (DEFINED BELOW). THE THIRD PARTY APPLICATIONS MAY EITHER BE (1) SOFTWARE DESIGNATED ON THE ORDER SCREEN AS BEING LICENSED UNDER AN 'OPEN SOURCE' OR 'FREE SOFTWARE' LICENSE ('OPEN SOURCE LICENSE') OR (2) SOFTWARE DESIGNATED ON THE ORDER SCREEN AS BEING OWNED BY A THIRD PARTY AND LICENSED UNDER A SEPARATE THIRD PARTY LICENSE ('THIRD PARTY LICENSE'). THE THIRD PARTY APPLICATIONS ARE LICENSED UNDER THE TERMS OF SUCH SEPARATE OPEN SOURCE LICENSE OR THIRD PARTY LICENSE, AS APPLICABLE ('THIRD PARTY APPLICATION LICENSE'). YOU ARE NOT GRANTED A LICENSE TO, PROVIDED ANY WARRANTY WITH RESPECT TO, OR RECEIVING ANY SUPPORT FOR ANY THIRD PARTY APPLICATIONS UNDER THIS AGREEMENT. ANY SUCH LICENSE, WARRANTY, OR SUPPORT SHALL BE PROVIDED, IF AT ALL, BY THE APPLICABLE THIRD PARTY AND SUBJECT TO THE THIRD PARTY APPLICATION LICENSE. THE APPLICABLE OPEN SOURCE LICENSE IS PROVIDED WITH THE SOURCE CODE FOR EACH THIRD PARTY APPLICATION. A LINK TO THE THIRD PARTY LICENSE IS PROVIDED DURING THE ORDER PROCESS. BY DOWNLOADING, INSTALLING AND/OR USING THE THIRD PARTY APPLICATION, YOU WILL BE DEEMED TO HAVE ACCEPTED, AND AGREED TO ABIDE BY, THE APPLICABLE THIRD PARTY APPLICATION LICENSE (INCLUDING PAYMENT OF ANY FEES REQUIRED THEREUNDER).

THIS AGREEMENT (FOR A LICENSE TO THE BIVIO SOFTWARE) IS ACCEPTED BY YOUR CLICKING ON THE 'ACCEPT' BUTTON BELOW, DOWNLOADING, INSTALLING AND/OR USE OF THE BIVIO SOFTWARE, AND BY DOING SO, (1) YOU REPRESENT AND WARRANT THAT YOU HAVE THE RIGHT, AUTHORITY, AND CAPACITY TO ENTER INTO THIS AGREEMENT AND (2) YOU AGREE TO ABIDE BY ALL OF THE TERMS AND CONDITIONS SET FORTH HEREIN.

1. Definitions
1.1 'Bivio Product' means Bivio’s network appliance platform product originally purchased by a party directly from Bivio or a third party authorized by Bivio to resell such product.

1.2 'Documentation' means user manuals or documentation provided to Licensee along with the Bivio Software.

1.3 'Effective Date' means the date Licensee accepts this Agreement.

1.4 'License Fees' means the fees set forth on the Bivio Software order screen.

1.5 'Script Code' means the human-readable software code that may be executed by a computer and used by an user without further compilation.

2. Bivio Software

2.1 License Grant. Subject to the terms and conditions of this Agreement (including payment of the License Fee), Bivio hereby grants to Licensee a restricted, non-transferable (except in accordance with Section 11.3), non-exclusive, license, during the term of this Agreement, without the right to sublicense, (a) to install, or have a third party authorized by Bivio to install, and use the Bivio Software on one Bivio Product of the Licensee and in accordance with the Documentation, (b) to copy the Bivio Software as necessary for reasonable backup purposes, and (c) to copy and use the Documentation, in each case solely for Licensee’s internal business purposes.

2.2 Restrictions on Use. Licensee acknowledges that the Bivio Software and its structure, organization, and Script Code constitute valuable trade secrets of Bivio and its suppliers. Accordingly, Licensee agrees not to (a) modify, adapt, alter, translate, or create derivative works from the Bivio Software; (b) merge the Bivio Software with other software not provided or licensed by Bivio; (c) sublicense, lease, rent, loan, or otherwise transfer (except in connection with an assignment of Licensee’s rights permitted under Section 11.3) the Bivio Software to any third party; (d) use the Bivio Software in any service bureau or time-sharing arrangement; (e) use the Bivio Software on any product other than on a Bivio Product; and (f) otherwise use or copy the Bivio Software except as expressly allowed under Section 2.

2.3 Acceptance. The Bivio Software will be deemed irrevocably accepted upon Licensee’s download of the Bivio Software.

3. Proprietary Rights. The Bivio Software and Documentation, and all worldwide intellectual property rights therein, are the exclusive property of Bivio and its suppliers. All rights in and to the Bivio Software not expressly granted to Licensee in this Agreement are reserved by Bivio and its suppliers. Licensee will not remove, alter, or obscure any proprietary notices (including copyright notices) of Bivio or its suppliers on the Bivio Software or the Documentation.

4. License Fees. Licensee will pay Bivio the License Fees. All payments (if any) will be made in U.S. dollars, are due upon submitting the order for the Bivio Software on the order screen, and are nonrefundable. Licensee will be responsible for and will indemnify and hold Bivio harmless from payment of all taxes (other than taxes based on Bivio’s income), fees, duties, and other governmental charges, and any related penalties and interest, arising from the payment of fees to Bivio under this Agreement or the delivery or license of the Bivio Software to Licensee. Any portion of the License Fees that is not paid when due will accrue interest at eighteen percent (18%) per annum or the maximum rate permitted by applicable law, whichever is less, from the due date until paid.

5. Confidentiality. Licensee agrees that Licensee will hold the Bivio Software (including without limitation the Script Code thereof), any Documentation, and related information (collectively, 'Confidential Information') in strict confidence and will not disclose Confidential Information to any third party. Licensee will use the same efforts to protect the Confidential Information from unauthorized access, reproduction, disclosure, or use as it uses in connection with its own information of a similar nature, but in no event less than reasonable efforts. In the event Licensee becomes aware of any unauthorized use or disclosure of Confidential Information, Licensee will notify Bivio immediately in writing and will give full cooperation to minimize the effects of such unauthorized use or disclosure. Licensee will grant access to the Confidential Information only to employees of Licensee who (i) have a need for access to the Confidential Information, and (ii) have executed a written agreement with Licensee that requires the employee to protect third party confidential information on terms at least as protective as the terms of this Agreement. Licensee will ensure that its employees comply with these confidentiality requirements.

6. Support. If you have entered into a separate support agreement with Bivio for your Bivio Product, then Bivio will provide support for the Bivio Software under the terms of such separate support agreement.

7. WARRANTY DISCLAIMER. BIVIO PROVIDES THE BIVIO SOFTWARE, DOCUMENTATION, AND THIRD PARTY APPLICATIONS 'AS IS', WITH ALL FAULTS, AND EXPRESSLY DISCLAIMS ANY WARRANTIES, WHETHER EXPRESS, IMPLIED, OR STATUTORY, INCLUDING ANY WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, AND NON-INFRINGEMENT OF THIRD-PARTY RIGHTS. BIVIO DOES NOT WARRANT THAT USE OF THE BIVIO SOFTWARE OR THIRD PARTY APPLICATION WILL BE UNINTERRUPTED, OR ERROR-FREE, THAT DEFECTS WILL BE CORRECTED, OR THAT THE BIVIO SOFTWARE OR THIRD PARTY APPLICATION IS FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS. BIVIO PROVIDES THE THIRD PARTY APPLICATIONS AS A CONVENIENCE TO LICENSEE AND DOES NOT MAKE ANY REPRESENTATIONS OR WARRANTIES WITH RESPECT THERETO. IF APPLICABLE LAW REQUIRES ANY WARRANTIES WITH RESPECT TO THE BIVIO SOFTWARE, ALL SUCH WARRANTIES ARE LIMITED IN DURATION TO NINETY (90) DAYS FROM THE DATE OF DOWNLOAD.

8. LIMITATION OF LIABILITY. TO THE MAXIMUM EXTENT PERMITTED BY LAW, IN NO EVENT SHALL BIVIO OR ITS LICENSORS OR SUPPLIERS BE LIABLE FOR LOST PROFITS OR REVENUES, BUSINESS INTERRUPTION, LOSS OF OR DAMAGE TO BUSINESS INFORMATION OR DATA OR OTHER PECUNIARY LOSS, OR FOR ANY INDIRECT, EXEMPLARY, SPECIAL, INCIDENTAL, CONSEQUENTIAL OR SIMILAR DAMAGES ARISING FROM OR RELATED TO THIS AGREEMENT OR THE USE OR INABILITY TO USE THE BIVIO SOFTWARE OR DOCUMENTATION OR THIRD PARTY APPLICATIONS, EVEN IF BIVIO OR ITS LICENSORS OR SUPPLIERS HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. IN NO EVENT SHALL BIVIO’S TOTAL AGGREGATE LIABILITY ARISING FROM OR RELATED TO THIS AGREEMENT, WHETHER IN CONTRACT OR IN TORT OR UNDER ANY OTHER LEGAL THEORY (INCLUDING STRICT LIABILITY AND NEGLIGENCE) EXCEED THE GREATER OF THE LICENSE FEES PAID BY LICENSEE TO BIVIO OR FIFTY DOLLARS ($50.00). BIVIO’S LICENSORS AND SUPPLIERS WILL HAVE NO LIABILITY FOR DAMAGES WHATSOEVER.

9. Basis of Bargain. The warranty disclaimer and limitation of liability set forth above are fundamental elements of the basis of this Agreement between Bivio and Licensee. Bivio would not be able to provide the Bivio Software on an economic basis without such limitations. The warranty disclaimer and limitation of liability inure to the benefit of Bivio’s suppliers.

10. Term and Termination

10.1 Term. The term of this Agreement will commence on the date Licensee accepts this Agreement and continue until terminated as provided herein.

10.2 Termination. Licensee may terminate this Agreement at any time, with or without cause, upon written notice to Bivio; provided that no fees will be refunded. This Agreement terminates immediately upon Licensee’s breach of this Agreement.

10.3 Survival. Upon the expiration or termination of this Agreement for any reason, Sections 1, 2.2, 3, 4, 5, 7, 8, 9, 10.3 and 11 shall survive and remain in effect, and Licensee shall promptly cease use of and return to Bivio or destroy all Confidential Information, including the Bivio Software and Documentation, and all copies thereof and certify to Bivio in writing that Licensee has done so.

11. General Provisions

11.1 Compliance with Laws. Licensee acknowledges that the laws and regulations of the United States restrict the export and re-export of commodities and technical data of United States origin, including the Bivio Software. Licensee agrees that it will not export or re-export the Bivio Software in any form in violation of the export or import laws of the United States or any foreign jurisdiction. Licensee will defend, indemnify, and hold harmless Bivio from and against any violation of such laws or regulations by Licensee or any of its agents, officers, directors, or employees.

11.2 Inspections. Licensee will permit Bivio or its representatives to review Licensee’s relevant records and inspect Licensee’s facilities to ensure compliance with this Agreement. Bivio will give Licensee at least ten (10) days advance notice of any such inspection and will conduct the same during normal business hours in a manner that does not unreasonably interfere with Licensee’s normal operations.

11.3 Assignments. Licensee may not assign or transfer, by operation of law or otherwise, any of its rights under this Agreement (including its licenses with respect to the Bivio Software) to any third party without Bivio’s prior written consent; except pursuant to a transfer of all or substantially all of Licensee’s business and assets, whether by merger, sale of assets, sale of stock, or otherwise. Any attempted assignment or transfer in violation of the foregoing will be void. Bivio may freely assign or transfer its rights or delegate any of its duties under this Agreement to any third party.

11.4 U.S. Government Users. If Licensee is a branch or agency of the United States Government, the following provision applies. The Bivio Software and Documentation are comprised of 'commercial computer software' and 'commercial computer software documentation' as such terms are used in 48 C.F.R. 12.212 and are provided to the Government (i) for acquisition by or on behalf of civilian agencies, consistent with the policy set forth in 48 C.F.R. 12.212; or (ii) for acquisition by or on behalf of units of the Department of Defense, consistent with the policies set forth in 48 C.F.R. 227.7202-1 and 227.7202-3.

11.5 Governing Law and Venue. This Agreement will be governed by the laws of the State of California as such laws apply to contracts between California residents performed entirely within California. The United Nations Convention on Contracts for the International Sale of Goods does not apply to this Agreement. Any action or proceeding arising from or relating to this Agreement may be brought in a federal court in the Northern District of California or in state court in Santa Clara County, California, and each party irrevocably submits to the jurisdiction and venue of any such court in any such action or proceeding. The provisions of the Uniform Computer Information Transactions Act shall not apply to this Agreement.

11.6 Remedies. The parties’ rights and remedies under this Agreement are cumulative. Licensee acknowledges that the Bivio Software contains valuable trade secrets and proprietary information of Bivio, that any actual or threatened breach of Section 5 will constitute immediate, irreparable harm to Bivio for which monetary damages would be an inadequate remedy, and that injunctive relief is an appropriate remedy for such breach.

11.7 Waivers. All waivers must be in writing. Any waiver or failure to enforce any provision of this Agreement on one occasion will not be deemed a waiver of any other provision or of such provision on any other occasion.

11.8 Severability. If any provision of this Agreement is unenforceable, such provision will be changed and interpreted to accomplish the objectives of such provision to the greatest extent possible under applicable law and the remaining provisions will continue in full force and effect.

11.9 Construction. The headings of Sections of this Agreement are for convenience and are not to be used in interpreting this Agreement. As used in this Agreement, the word 'including' means 'including but not limited to'.

11.10 Notices. Any notices required by this Agreement shall be provided to Licensee at the email or physical address provided by Licensee upon download of the Bivio Software. Any notices required by this Agreement shall be provided to Bivio at the following address (Bivio may change its address for notice upon providing notice thereof to Licensee):

Bivio Networks, Inc.
4457 Willow Road, Suite 200
Pleasanton, CA 94588
Attention: Chief Financial Officer


11.11 Entire Agreement. This Agreement constitutes the entire agreement between the parties regarding the subject hereof and supersedes all prior or contemporaneous agreements, understandings, and communication, whether written or oral.

11.12 Modification. This Agreement may be amended only by a written document signed by both parties.