FEATHER VPN IS A BADU NETWORKS PRODUCT AND SERVICE. AS SUCH IT IS GOVERNED BY THE BADU NETWORKS END-USER LICENSE AND WARRANTY AS MODIFIED HEREIN.
IMPORTANT PLEASE READ BEFORE INSTALLATION OR USE OF ANY PRODUCTS (AS DEFINED BELOW). THIS BADU NETWORKS END USER LICENSE AGREEMENT AND PRODUCT WARRANTY STATEMENT (“AGREEMENT”) IS A BINDING AGREEMENT BETWEEN BADU NETWORKS, INC. AND THE ENTITY OR COMPANY THAT IS THE AUTHORIZED PURCHASER OR LICENSEE OF THE PRODUCTS (“LICENSEE”). BY PURCHASING, DOWNLOADING, INSTALLING OR IN ANY WAY USING A PRODUCT, LICENSEE IS UNCONDITIONALLY CONSENTING TO BE BOUND BY AND IS BECOMING A PARTY TO THIS AGREEMENT WITH BADU NETWORKS. IF LICENSEE DOES NOT UNCONDITIONALLY AGREE TO ALL OF THE TERMS OF THIS AGREEMENT, LICENSEE IS NOT AUTHORIZED TO AND MAY NOT DOWNLOAD, INSTALL OR USE ANY OF THE PRODUCTS.
NOTICE – EXCEPT FOR THE LICENSE RIGHTS GRANTED HEREIN, NO INTELLECTUAL PROPERTY RIGHTS ARE TRANSFERRED. PLEASE CONTACT BADU NETWORKS WITH ANY QUESTIONS.
- (a) “Additional Use Rights” means the terms and conditions set forth at www.badunetworks.com and may be updated by Badu Networks from time to time.
- (b) “Documentation” means the then-current written and/or electronic end user or technical documentation pertaining to a Product that is provided by Badu Networks together with the delivery of a Product or otherwise made available by Badu Networks.
- (c) “Hardware” means any hardware or equipment on Badu Networks’ or one of its affiliate’s then-current price list or otherwise made available by Badu Networks, including any components or replacements of any of the foregoing.
- (d) “Products” means, collectively, the Hardware and Software and all Documentation associated therewith.
- (e) “Software” means any software on Badu Networks’ or one of its affiliate’s then-current price list or otherwise made available by Badu Networks, including (i) software provided on a stand-alone basis, (ii) software provided on or with any Hardware, (iii) software provided as part of hosted services, software as a service (SaaS), or cloud services, and (iv) any upgrades, updates, patches, enhancements, or fixes to any of the foregoing that may be made available by Badu Networks.
Subject to the terms and conditions of this Agreement and provided that Licensee has paid the applicable fees, Badu Networks hereby grants Licensee a limited, personal, non-sublicensable, non-transferable (except as expressly provided in Section 10), nonexclusive license to: (a) install, access, and use Software (in object code format only), (b) access, use, and reasonably reproduce the Documentation, and (c) exercise any other rights applicable to a Product as expressly set forth in the Additional Use Rights. Licensee shall exercise the foregoing license rights solely for Licensee’s internal business use in accordance with the Documentation and shall comply with all other restrictions and limitations applicable to each Product, including all terms and conditions set forth in the Additional Use Rights. If there is a conflict between the terms and conditions of the Additional Use Rights and the main body of this Agreement, the Additional Use Rights will control, but only with respect to the applicable Product to which such terms pertain. Subject to the foregoing, the specific Products licensed to Licensee under this Agreement, including the number of licenses issued and the term of any applicable license or subscription, as applicable, will be identified on the applicable ordering documentation received by Badu Networks. Except as set forth in the applicable ordering documentation received by Badu Networks, the Product description on Badu Networks’ then-current price list, or the Additional Use Rights with respect to a particular Product, licenses granted hereunder are perpetual. Licensee may use each licensed copy of the Software that is provided on or with any Hardware only as embedded in or for execution on that specific unit of Hardware (or replacement thereof) owned or leased by Licensee. Licensee may also copy configurations of the Software (excluding any Software provided on or embedded in any Hardware) solely for backup and archival purposes. Without granting any additional licenses hereunder, Licensee may authorize its contractors and outsourcers to access, use or operate the Products solely on Licensee’s behalf, provided that (i) Licensee obtains any such third party’s binding consent to abide by the terms of this Agreement, and (ii) Licensee remains responsible for such third parties’ use of the Products and compliance with the terms and conditions of this Agreement, and any breach of this Agreement by any such third party will be deemed a breach of this Agreement by Licensee.
Except as expressly permitted by this Agreement, Licensee shall not authorize or permit any other person or entity to, directly or indirectly: (a) copy, modify (except as expressly permitted under the applicable Documentation), distribute, or create derivative works of any Product, (b) disassemble, decompile or reverse engineer any of the Products, or otherwise attempt to discover any source code, structure, algorithms, sequence, organization or ideas underlying any of the Products (except where the foregoing is expressly prohibited by applicable local law, and then only to the extent so prohibited), (c) sell or resell any Products, (d) sublicense, rent, lease, use for timesharing or service bureau purposes for third parties or otherwise provide temporary access to any Product or use any Product for the benefit of any third party, (e) publish or disclose any information or results relating to performance, performance comparisons or other “benchmarking” activities relating to any Product, (f) obscure, alter, remove, or destroy any proprietary markings, restrictive legends, or intellectual property notices on any Product, or (g) access or use any Product for purposes of designing or developing a competing product or service. Notwithstanding the foregoing, Licensee may use the Products pursuant to a leasing arrangement whereby Licensee leases the Product from a third party authorized by Badu Networks. Licensee acknowledges and agrees that the Software (including its design and structure) and Documentation constitutes trade secrets and/or confidential information of Badu Networks or its licensors. Except as expressly permitted by this Agreement, Licensee shall hold in confidence and shall not disclose, provide, or permit access to any Software or Documentation in any form to any third party without Badu Networks’ prior written consent. Licensee shall maintain records of the number and location of all copies of software. Badu Networks may, at its discretion, electronically audit software provided hereunder to verify compliance with the license provisions. If Licensee’s license is canceled or terminated, or when Licensee no longer uses the software, Licensee shall return or destroy the software and all copies and certify to Badu Networks that it has done so. Regardless of any references to any sale or purchase in this Agreement, all Software is licensed by Badu Networks, and not sold. As between the parties, all ownership rights with respect to the intellectual property rights in and to the Products, and any copies or portions thereof, remain in Badu Networks and its suppliers and licensors. The Products are protected by the intellectual property laws (including copyright laws) of the United States, foreign jurisdictions and all applicable international treaties. This Agreement does not grant Licensee any rights not expressly set forth herein. Any action of Licensee in contravention of this Section 3 may result in the termination of this Agreement, including the license grant for the Software, as described in Section 8 below.
SUPPORT and UPGRADES
This Agreement does not entitle Licensee to receive any support services, upgrades, updates, patches, enhancements or fixes for any Product (collectively, “Support”). If Licensee desires to obtain Support, Licensee shall make separate arrangements for Support (which may include entering into a separate agreement) and pay any fees associated with such Support. Licensee is not entitled to, and shall not, install or use any Software upgrades, updates, patches, enhancements or fixes made available by Badu Networks, including on Badu Networks’ support website, except on or with Products that are covered by a then-current paid Support plan. The terms of Badu Networks’ standard Support services are located at www.badunetworks.com
WARRANTY and DISCLAIMERS
(a) Badu Networks warrants only to Licensee that the Hardware and Software, as originally shipped by Badu Networks, will conform in all material respects to the applicable published specifications for such Products during the applicable Warranty Period. “Warranty Period” means a period commencing on the date of original shipment by Badu Networks or issuance by Badu Networks of a license key, as applicable, of the applicable Product and continuing for one (1) year with respect to Hardware and ninety (90) days with respect to Software. Shipment of a replacement Product or provision of any updates or upgrades will not extend the Warranty Period. The foregoing warranty does not extend to any Product that (i) is modified or altered, (ii) is not maintained and stored in accordance with Badu Networks’ maintenance recommendations and instructions, (iii) has its serial number removed or altered, (iv) is damaged (including by electrical power surges), mishandled, or treated with abuse, negligence or other improper treatment (including use outside the recommended environment or in violation of this Agreement), or (v) is not used in accordance with the applicable Badu Networks published specifications and/or Documentation. Licensee’s sole and exclusive remedy, and Badu Networks’ sole and exclusive obligation, for any breach of the foregoing warranty will be, at Badu Networks’ option, the repair or replacement of or (at Badu Networks’ option if repair or replacement is impractical) refund of the fees received by Badu Networks for returned non-conforming units of Product for which full documentation and proof of non-conformity is provided to Badu Networks (and for which a Badu Networks RMA has been issued) within the applicable Warranty Period. Such refund will be paid to Licensee or the Badu Networks channel partner making the warranty claim. Badu Networks is not responsible for any difference between the amount paid to Badu Networks for the returned Product and the amount paid by Licensee for such returned Product.
(b) EXCEPT AS OTHERWISE EXPRESSLY PROVIDED IN THIS AGREEMENT, TO THE MAXIMUM EXTENT PERMITTED UNDER APPLICABLE LAW, BADU NETWORKS PROVIDES THE PRODUCTS “AS IS” AND WITHOUT WARRANTY OF ANY KIND, AND HEREBY DISCLAIMS ALL OTHER WARRANTIES AND CONDITIONS, WHETHER EXPRESS, IMPLIED, OR STATUTORY, INCLUDING WARRANTIES AND CONDITIONS OF MERCHANTABILITY, SATISFACTORY QUALITY, FITNESS FOR A PARTICULAR PURPOSE, PERFORMANCE, ACCURACY, RELIABILITY AND NONINFRINGEMENT. BADU NETWORKS ALSO MAKES NO WARRANTY REGARDING NONINTERRUPTION OF USE OR FREEDOM FROM BUGS OR THAT ANY PRODUCT WILL MEET LICENSEE’S REQUIREMENTS. THIS DISCLAIMER OF WARRANTY CONSTITUTES AN ESSENTIAL PART OF THIS AGREEMENT.
LIMITATION of LIABILITY
NOTWITHSTANDING ANYTHING ELSE IN THIS AGREEMENT OR OTHERWISE, BUT SUBJECT TO THE MAXIMUM EXTENT PERMITTED UNDER APPLICABLE LAW, WITH RESPECT TO ANY SUBJECT MATTER OF THIS AGREEMENT OR UNDER ANY TORT, CONTRACT, NEGLIGENCE, STRICT LIABILITY, STATUTE OR OTHER LEGAL OR EQUITABLE THEORY, (A) NEITHER BADU NETWORKS NOR ANY OF ITS AFFILIATES OR SUPPLIERS IS LIABLE FOR (I) ANY INDIRECT, SPECIAL, EXEMPLARY, PUNITIVE, INCIDENTAL OR CONSEQUENTIAL DAMAGES, OR FOR ANY LOSS OF PROFITS, CONTRACTS, BUSINESS, REVENUES, GOODWILL OR REPUTATION, (II) COST OF COVER OR COST OF PROCUREMENT OF SUBSTITUTE GOODS, TECHNOLOGY OR SERVICES, OR (III) LOSS OR CORRUPTION OF DATA, INTERRUPTION OF USE, LOSS OF GOODWILL, WORK STOPPAGE, ACCURACY OF RESULTS, COMPUTER FAILURE OR MALFUNCTION, OR DAMAGES RESULTING FROM LICENSEE’S USE OF ANY PRODUCT, AND (B) THE AGGREGATE LIABILITY OF BADU NETWORKS AND ITS AFFILIATES AND SUPPLIERS WILL NOT EXCEED THE AGGREGATE FEES RECEIVED BY BADU NETWORKS FOR THE APPLICABLE PRODUCT OR SERVICE THAT GAVE RISE TO THE CLAIM. THE FOREGOING LIMITATION IS CUMULATIVE, WITH ALL CLAIMS BEING AGGREGATED TO DETERMINE SATISFACTION OF THE LIMIT. THE EXISTENCE OF ONE OR MORE CLAIMS WILL NOT ENLARGE THE LIMIT. THE FOREGOING LIMITATIONS WILL APPLY EVEN IF BADU NETWORKS IS INFORMED OF THE POSSIBILITY OF SUCH DAMAGES. THE PRODUCTS ARE NOT DESIGNED FOR USE IN ANY DEVICE OR SYSTEM IN WHICH A MALFUNCTION OF THE PRODUCT WOULD RESULT IN FORESEEABLE RISK OF INJURY OR DEATH TO ANY PERSON. THIS INCLUDES OPERATION OF NUCLEAR FACILITIES, LIFE-SUPPORT SYSTEMS, AIRCRAFT NAVIGATION OR COMMUNICATION SYSTEMS AND AIR TRAFFIC CONTROL. NEITHER BADU NETWORKS NOR ANY OF ITS AFFILIATES IS LIABLE FOR ANY FAILURE OR DELAY DUE TO MATTERS BEYOND ITS REASONABLE CONTROL OR FOR ANY ALLOCATION OF PRODUCTS BETWEEN ITS CUSTOMERS IN THE EVENT OF A SHORTAGE. THIS SECTION 7 DOES NOT LIMIT LIABILITY FOR BODILY INJURY OF A PERSON.
TERM and TERMINATION
This Agreement will continue until terminated as set forth in this Section 8. Licensee may terminate this Agreement at any time upon notice to Badu Networks. This Agreement will terminate if Licensee violates or fails to comply with any provision of this Agreement and fails to cure such breach within thirty (30) days after receipt of notice of such breach from Badu Networks. Any termination of this Agreement will also terminate the licenses granted hereunder. Upon termination of this Agreement, Licensee shall cease use of all Software and Documentation, shall destroy and remove from all computers, hard drives, networks and other storage media all copies of the Software and Documentation, and shall certify to Badu Networks that such actions have occurred. Sections 1, 3, 4, 6(b), and 7 through 10 will survive any termination of this Agreement.
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Licensee shall comply with all applicable export laws, restrictions and regulations of the Department of Commerce, the United States Department of Treasury Office of Foreign Assets Control, and any other United States, European Union, Singapore or other foreign agency or authority and shall not import, export or re-export, or allow the import, export or re-export of, any Product, technology or information it obtains or learns pursuant to this Agreement (or any direct product thereof) in violation of any such laws, restrictions or regulations. Pursuant to these laws, restrictions, and regulations, Licensee shall ensure that no Product is, in the absence of authorization by U.S. and other applicable law as required, used by or exported or re-exported to (a) any U.S. sanctioned or embargoed country, or to nationals or residents of such countries, (b) any person, entity, organization or other party identified on the U.S. Department of Commerce’s Denied Persons or Entity List, the U.S. Department of Treasury’s Specially Designated Nationals or Blocked Persons List, or the Department of State’s Debarred Parties List, as published and revised from time to time, or (c) any party who is known or suspected to be involved in relation to any nuclear, biological or chemical weapons, or proliferation related end-uses restricted by the U.S. Export Administration Regulations (including the design, development, or production of missiles capable of delivering these weapons). Without limiting the foregoing, Licensee shall not use any Product, technology or information it obtains or learns pursuant to this Agreement in relation to any nuclear, biological or chemical weapons, or proliferation-related end-uses restricted by the U.S. Export Administration Regulations (including the design, development or production of missiles capable of delivering these weapons).
If any provision of this Agreement is found invalid or unenforceable, that provision will be enforced to the maximum extent permissible consistent with the original intent of the parties, and the other provisions of this Agreement will remain in force. The failure of Badu Networks to enforce its rights under this Agreement or to act with respect to a breach of this Agreement by Licensee or others will not be construed as a waiver of such rights and will not limit Badu Networks rights with respect to any such breach or any subsequent breaches. This Agreement is personal to Licensee and Licensee shall not assign (by operation of law or otherwise), transfer or sublicense any obligation or benefit under this Agreement, in whole or in part, for any reason whatsoever without Badu Networks’ prior written consent, and any action or conduct in violation of the foregoing will be void and without effect. Badu Networks may assign this Agreement, or delegate any of its obligations hereunder, in whole or in part (except that Badu Networks shall obtain the consent of the Government where the Government is the Licensee hereunder and such consent is required). For all purposes under this Agreement, each party shall be and act as an independent contractor of the other and shall not bind nor attempt to bind the other to any contract. This Agreement is governed by and construed in accordance with the laws of the State of California (without regard to the conflicts of laws provisions thereof or the UN Convention on the International Sale of Goods). Unless otherwise elected by Badu Networks in writing for a particular instance or prohibited by applicable law, the sole jurisdiction and venue for any court claims will be the state and U.S. federal courts located in Los Angeles, California, USA, and both parties consent to the jurisdiction of such courts. In any action or proceeding to enforce rights under this Agreement, the prevailing party will be entitled to recover costs and attorneys’ fees. There are no third party beneficiaries of this Agreement. Unless otherwise expressly provided, all remedies under this Agreement are cumulative and not exclusive. Unless otherwise expressly indicated, “including” (and other variations thereof) means, as applicable, “including but not limited to” and “herein” and “hereunder” are references to this Agreement. This Agreement, including all online terms referenced herein, constitutes the entire agreement between the parties with respect to the subject matter hereof, to the exclusion of any pre-printed or contrary terms of any purchase order (or similar document) and supersedes and cancels any prior agreements, proposals, discussions, understandings, negotiations or representations between the parties relating to the subject matter of this Agreement, and all past dealing or industry custom. This Agreement will not be modified or waived, except by a mutual signed writing, provided that Badu Networks may update the online terms referenced herein from time to time. If this Agreement is deemed an offer, acceptance is expressly limited to these terms. If there is a mutually signed agreement (not including any purchase order or similar document) expressly covering the license of Products by Badu Networks to Licensee, then the express terms of that agreement will govern to the extent such agreement conflicts with the terms of this Agreement. Badu Networks may, upon at least two (2) weeks’ advance written notice, inspect, or have an accountant or auditor inspect, Licensee’s books, records and networks relating to this Agreement and Licensee’s compliance with its terms and conditions, for up to two prior years of records from the date of such audit. Any such audit will be conducted during Licensee’s normal business hours and in a manner that does not materially interfere with Licensee’s normal business operations. If any audit reveals that Licensee is in breach of this Agreement, then Licensee shall (a) reimburse Badu Networks for the actual expenses associated with the audit and (b) if applicable, compensate Badu Networks (at Badu Networks’ then-current list price) for any unauthorized use of or access to any Product (e.g., any use by any unauthorized users or use of any unauthorized copies or instances of a Product). The parties acknowledge and agree that this Agreement is subject to the U.S. Electronic Signatures in Global and National Commerce Act, the Singapore Electronic Transactions Act, the U.K. Electronic Communications Act 2000, and any similar law in any other applicable jurisdiction that makes legally effective a contract in electronic form, and authorizes acceptance by means of an electronic signature or process.