AirWave Annual Service & Support Plan

 
Thank you for agreeing to enroll in the AirWave Software Support and Maintenance Plan ("Plan").The following sets forth the terms and conditions of the Plan. 
1.      Definitions.
 

(a)    "Agreement" means the Plan as set forth herein.

 

(b)    "AirWave" means AirWave Wireless, a division of Aruba Networks, Inc., a Delaware corporation.

 

(c)    "AirWave Business Hours" means AirWave's regular business hours, which are from 8:00 am to 6:00 pm California Time, Monday through Friday, excluding U.S. holidays.

 

(d)    "Documentation" means any and all written and electronic user's guides, specifications and other documentation related to the Software provided to You by AirWave.

 

(e)    "High Priority Condition" means any Software error that results in the Software being substantially or completely nonfunctional, unavailable or inoperative.

 

(f)    "Normal Priority Condition" means any Software error that occurs intermittently, affects a non-essential operation, or otherwise results in the Software failing to operate in accordance with its Documentation in a way that does not substantially interfere with use of the Software.

 

(g)    "Purchase Confirmation" means a written confirmation (which includes email confirmation) that AirWave sends to you to confirm receipt of your purchase order or other ordering document used to purchase support under the AirWave Support Plan and confirming certain terms applicable to your receipt of such support.You must notify AirWave within ten business days if any such terms are incorrect; otherwise, AirWave will be entitled to rely on all such terms in providing support hereunder and otherwise performing this Agreement.

 

(h)    "Software" means the proprietary AirWave Management Platform (or "AMP"), VisualRF and RAPIDS computer programs, which together comprise the AirWave Wireless Management Suite ("AWMS"), as well as the proprietary AirWave Master Console computer program and all other software programs offered under the AirWave or AirWave Wireless name.

 

(i)     "Support Customers" means those licensees of AirWave software that are current in their payment of the annual support fee for the AirWave Support Plan and are not otherwise in breach of this Agreement.You must be a Support Customer to be entitled to receive technical support under the Plan.

 

(j)     "Support Term" means the period of time for which you have purchased support under the AirWave Support Plan.Your initial Support Term will be one year from the Effective Date of this Agreement, unless a different Support Term is identified on the Purchase Confirmation.

 

(k)    "Upgrade" means any bug fix, error correction, alteration, modification, upgrade, improvements or other release of any Software that incorporates new or additional functionality, that AirWave determines (in its sole discretion) to make generally available to users of such Software at no additional charge.

 

(l)     "Version" means a release of any Software determined by AirWave (in its sole discretion) to be a new version.AirWave identifies Versions by sequential increases to the units digit of its release names (e.g., AWMS-Enterprise Edition V1.0, V2.0, etc.), releases that increase the decimal digits only (e.g., V1.1, V1.25, etc.) do not constitute new Versions.

 

(m)  "You" means any end-user of AirWave's computer software programs and the organizations for which they work or represent.

 

2.      Maintenance Services.During the Support Term (as defined below) of this Plan, AirWave will furnish you the following maintenance, support and other services ("Software Support Services") for the Software.
 

(a)    Scope of Support. AirWave will provide telephone support for calls received during AirWave Business Hours, on general questions regarding installation, configuration and usage of the Software.This telephone support will not include support for the Software with regard to any questions that are specific to your operating environment, to any hardware or other software that you operate, or to any specific needs you may have that are not generally addressed in the Documentation.

 

(b)    Designated Support Contact.AirWave will provide technical support only to a single technical contact that you designate, as identified and confirmed in the Purchase Confirmation.You must notify AirWave in writing in order to change your designated support contact, and your written notice must include name and full contact information for the new individual you designate.All calls to AirWave technical support must come from your designated support contact.

 

(c)    High Priority Conditions.AirWave will provide an initial response to any notice of a High Priority Condition received during AirWave Business Hours within four hours after receipt, and will exercise reasonable efforts to correct (or provide a reasonably satisfactory work-around for) the High Priority Condition within two business days.

 

(d)    Normal Priority Conditions.AirWave will provide an initial response to any notice of a Normal Priority Condition within three business days after receipt and may elect (in its sole discretion) to address any Normal Priority Condition in a subsequent Upgrade; provided, however, that AirWave will exercise reasonable efforts to provide a temporary solution or work-around to the extent that a Normal Priority Condition is inhibiting any operation of the Software.

 

(e)    Error Correction.AirWave will make reasonable efforts to provide a temporary solution or work-around to any High Priority and Normal Priority Conditions.Notwithstanding the foregoing, the failure to achieve a solution or workaround after reasonable effort shall not be a breach of this Plan or the Agreement generally.

 

3.      Professional Services.

Should you require any maintenance or support services not provided under this AirWave Support Plan, you must provide AirWave with a written request for the additional services that you desire. Should AirWave determine in its sole discretion to provide such additional services, you and AirWave will negotiate in good faith regarding a statement of work or other written agreement and the applicable fees and expenses for such additional services. If no written agreement has been signed within thirty (30) days after AirWave's receipt of your written request for additional services, neither party shall be obligated to continue such negotiations, and AirWave will have no obligation to provide the additional services.

4.      License.
 

(a)    Conditions on Receipt of Support

                                     i.     Current License Rights.Your right to receive support services under the Plan is expressly conditioned on your having a current, effective license to the Software for which you are seeking support, and on your use of a Version of such Software that is either the current Version or one Version earlier.AirWave is under no obligation to support any Versions older than one generation prior to the current Version.You must also be a current Support Customer, and you must not be in a material, uncured breach of your obligations under the Plan or any of the provisions of this Agreement.

                                    ii.     Complete Purchase.In order to receive services under the AirWave Support Plan for any Software that you have licensed, you must be a current Support Customer for all Software that you have licensed (i.e., you cannot selectively purchase support for some but not all AirWave software that you are licensing), and your support fee must be calculated on all servers, computers and other devices on which the Software is permitted to operate.Any extension of your Software rights will require a commensurate extension of your support services, and of payment therefor.AirWave will charge you (and invoice you for) support fees on a pro-rated basis for any additions or other changes to the Software in the middle of a Support Term

5.      Limitations.AirWave shall be under no obligation to furnish Software Support Services under this Plan to the extent that such Software Support Services are required as a result of:
 (a) the operation of the Software in environmental conditions or configurations outside those prescribed in the user manual or other AirWave documentation for the Software; (b) your material 
failure to maintain the Software in accordance with the standards of maintenance prescribed in the user manual or other AirWave documentation provided to you with the Software; 
(iii) maintenance of the Software by anyone other than AirWave or a third party authorized by AirWave; or (iv) causes unrelated to the Software as delivered to you by AirWave,
 including without limitation, modifications to the Software, made by or on your behalf. 
 
6.      Terms and Renewals. 
 

(a)    Termination for Breach.AirWave will have the right to terminate your participation in the Plan if you should commit a material breach of any of the provisions of this Agreement, and such breach remains uncured for a period of thirty (30) days after you receive notice from AirWave describing the breach.

 

(b)    Termination for Unsupported Environment.In addition, AirWave will have the right to terminate your participation under the Plan if AirWave should determine, in its sole discretion that you have implemented any Software in an operating environment or configuration that AirWave does not support.Upon any such determination, AirWave will promptly notify you in writing and provide a refund of the unused portion of any applicable support fees.

 

(c)    Renewal. Your participation in the Plan will commence on date that you receive your license key (not the date that you install the Software) and will continue for the Support Term; provided, however, that the Support Term will automatically renew for successive one-year periods (or such longer times as may be identified in an email or other writing from AirWave confirming your renewal) upon AirWave's acceptance of notice from you that you desire to renew hereunder.AirWave (or its designee) will exercise reasonable efforts to provide you with at least 30 days prior written notice (which includes notice by email) of the upcoming expiration of your Plan, together with details on renewal pricing and any changes to the terms of the Plan; provided, however, it is ultimately your obligation to ensure that AirWave timely receives notice of renewal from you.Any renewal hereunder is further conditioned on your timely payment of the support fee for your renewal term for all software that you have licensed from AirWave.

 

(d)    Lapsed Support.After any lapse of Software Support Services through the termination or expiration of this Agreement (other than AirWave's termination for breach), the parties subsequently may elect to reinstate (or instate, as the case may be) such Software Support Services for Software for which the Software Support Services lapsed and any Software not previously covered by Support Services upon the terms and conditions set forth in this Agreement; provided, however, that You agree to pay for the period of time that has lapsed as well as any renewal term.

 

7.      Limited Warranty
 

AirWave warrants only to You that the Software Support Services will be performed with at least the same degree of skill and competence normally practiced by AirWave-trained technical support engineers performing the same or similar services.Your sole and exclusive remedy, and AirWave's entire liability, for any breach of the foregoing warranty shall be for AirWave to re-perform, in a conforming manner, any nonconforming Software Support Services that are reported to AirWave by You in writing within sixty (60) days after the date of completion of such services.

EXCEPT AS EXPRESSLY SET FORTH IN THE PRECEDING PARAGRAPH, THE SUPPORT SERVICES AND ALL MATERIALS FURNISHED TO YOU UNDER THIS AGREEMENT ARE PROVIDED "AS IS" WITHOUT WARRANTY OF ANY KIND.AIRWAVE AND ITS SUPPLIERS AND LICENSORS DISCLAIM ANY AND ALL OTHER REPRESENTATIONS AND WARRANTIES, GUARANTEES, AND CONDITIONS, WHETHER EXPRESS, IMPLIED, OR STATUTORY, WITH RESPECT TO THE SOFTWARE SUPPORT SERVICES AND ANY MATERIALS FURNISHED HEREUNDER, INCLUDING THE WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, NONINFRINGEMENT, ACCURACY, AND QUIET ENJOYMENT.YOU ACKNOWLEDGE THAT YOU HAVE NOT ENTERED INTO THIS AGREEMENT IN RELIANCE UPON ANY WARRANTY OR REPRESENTATION OTHER THAN THOSE SET FORTH IN THE PRECEDING PARAGRAPH.

8.      Limitation of Liability
 

IN NO EVENT SHALL EITHER PARTY BE LIABLE FOR ANY SPECIAL, INCIDENTAL OR CONSEQUENTIAL DAMAGES (INCLUDING SUCH DAMAGES ARISING FROM BREACH OF CONTRACT OR WARRANTY OR FROM TORT (INCLUDING NEGLIGENCE) OR STRICT LIABILITY), OR FOR INTERRUPTED COMMUNICATIONS, LOST DATA OR LOST PROFITS, ARISING FROM OR IN CONNECTION WITH THIS AGREEMENT.

IN NO EVENT SHALL THE AGGREGATE LIABILITY OF AIRWAVE AND ITS SUPPLIERS AND LICENSORS WITH RESPECT TO ANY SUBJECT MATTER OF THIS AGREEMENT EXCEED, IN THE AGGREGATE, THE AMOUNTS ACTUALLY PAID TO AIRWAVE UNDER THIS AGREEMENT DURING THE TERM (OR RENEWAL TERM, AS THE CASE MAY BE) THEN IN EFFECT.

YOU AND AIRWAVE AGREE THAT THE FOREGOING LIMITATIONS OF LIABILITY FAIRLY ALLOCATE THE RISKS IN THE AGREEMENT BETWEEN THE PARTIES, THAT THIS ALLOCATION IS AN ESSENTIAL ELEMENT OF THE BASIS OF THE BARGAIN BETWEEN THE PARTIES, AND THAT THE FOREGOING LIMITATIONS SHALL APPLY NOTWITHSTANDING ANY FAILURE OF THE ESSENTIAL PURPOSE OF THIS AGREEMENT OR ANY LIMITED REMEDY HEREUNDER. THE LIMITATIONS OF LIABILITY CONTAINED IN THIS AGREEMENT WILL APPLY ONLY TO THE MAXIMUM EXTENT PERMISSIBLE UNDER APPLICABLE LAW, AND NOTHING IN THIS AGREEMENT PURPORTS TO LIMIT EITHER PARTY'S LIABILITY IN A MANNER THAT WOULD BE UNENFORCEABLE OR VOID AS AGAINST PUBLIC POLICY IN THE APPLICABLE JURISDICTION.

9.      General
 

(a)    Governing Law.This Agreement and any and all actions arising from or in any manner affecting the interpretation of this Agreement, will be governed by, and construed solely in accordance with, the laws of the State of California without reference to its conflicts of laws provisions or the United Nations Convention on Contracts for the International Sale of Goods.Any action or proceeding arising from or relating to this Agreement must be brought exclusively in U.S. federal court in the Northern District of California, or in the state courts located in Santa Clara County, California.

 

(b)    Assignment.Customer may not assign or otherwise transfer (through operation of law or otherwise) this Agreement to any third party without obtaining AirWave's prior written consent.AirWave may freely assign and delegate its rights and obligations hereunder.Any purported transfer, assignment, or delegation without the appropriate prior written consent will be null and void when attempted and of no force or effect.

 

(c)    Waivers; Amendment.No waiver of any terms or conditions of this Agreement will be valid or binding on AirWave unless AirWave makes the waiver in writing.This Agreement may not be altered, amended, modified, or otherwise changed in any way except with the express written agreement of AirWave.

 

(d)    Notices.All notices or reports permitted or required under this Agreement will be in writing and will be delivered by personal delivery, telegram, telex, telecopier, facsimile transmission, or by certified or registered mail, return receipt requested, and shall be deemed given upon personal delivery, five (5) days after deposit in the mail, or upon acknowledgment of receipt of electronic transmission.Notices shall be sent to the Chief Financial Officer (for the Customer) and the Chief Legal Officer (for AirWave).Either party may amend its address and Notice contact person upon written notice to the other.

 

(e)    Severability.If any provision of this Agreement is found or held to be invalid or unenforceable by any tribunal of competent jurisdiction, then the meaning of such provision will be construed, to the extent feasible, so as to render the provision enforceable, and if no feasible interpretation would save such provision, it will be severed from the remainder of this Agreement, which will remain in full force and effect.

 

(f)    Entire Agreement.This Agreement is intended by the parties to be a complete and wholly integrated expression of their understanding and agreement. This Agreement, including all of its attached exhibits, constitutes the entire agreement and final understanding of the parties with respect to the subject matter hereof, and supersedes any other and all prior or contemporaneous negotiations, representations, understandings, discussions, offers, and agreements between the parties, whether written or oral, express or implied, relating in any way to the subject matter hereof.