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ROUND ROCK, TOGS
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City of Round Rock
Agenda Item Summary
Agenda Number:
Title: Consider excuting a Mobile Device Management Solution - Airwatch End
User Licence Agreement with Airwatch, LLC
Type: City Manager Item
Governing Body: City Manager Approval
Agenda Date: 3/29/2013
Dept Director: Brooks Bennett
Cost: $1,200.00
Indexes: General Fund
Attachments:
Text of Legislative File CM -13-005
City of Round Rock Page 1 Printed on 3/28/2013
DocuSign Envelope ID: C1F2CE3B-A657-4096-BCD3-CEBB980E3BEE
airwatchTM
Payment Information
•
By Wire
Beneficiary Name: AirWatch LLC
Bank Name: Bank of America
Account number: 003266992553
Routing number: 026009593
SWIFT: BOFAUS3N
IBAN: N/A
By ACH
Beneficiary Name: AirWatch LLC
Bank Name: Bank of America
Account number: 003266992553
Routing number: 061000052
Terms;& Conditions
Quote
By Credit Card
https://payments.air-watch.com/
Please note the Quote # from above when paying by Credit Card.
By Check
AirWatch LLC
P.O Box 742332
Atlanta, GA 30374-2332
1. If a Third Party Appliance is being provided, the fees listed above are exclusive of tax or freight, and insurance.
2. Pricing is quoted based on, and purchases are subject to AirWatch's and expressly conditioned upon the unequivocal application of all terms
and conditions included in the End User License Agreement, which is available at
http://www.air-watch.com/downloads/legal/201211_AirWatch_EULA.pdf ("EULA") and incorporated by reference. The EULA supersedes the
standard terms and conditions of any customer purchase orders or similar documents. The acceptance of this Quote as evidenced by your
signature below represents your agreement to license the software described in this quote under such terms and conditions as are set forth in
the EULA.
3. Payment terms are as set forth in the EULA.
4. Expenses are billed to the customer as incurred according to the AirWatch travel and expense policy and are the responsibility of the
customer.
5. Applicable Sales Tax is not included in this Quote and is the responsibility of the purchaser. Sales tax may be required in various states
including but not limited to licenses made in California, Georgia, Virginia, and Washington.
6. As provided in the EULA, in the case of a Perpetual License, annual Maintenance commences upon delivery of the Software and will be
billed annually.
7. As provided in the EULA, in the case of Subscription Licenses, Maintenance Fees are included with the Subscription License Fees and
there will be no separate billing for Maintenance with respect to Subscription Licenses.
8. Additional licenses may be purchased through another Order as set forth in the EULA.
9. This Sales Quotation and all pricing information stated herein and related hereto are confidential information of AirWatch.
Initials „„.-Aosiri
DocuSign Envelope ID: C1F2CE3B-A657-4096-BCD3-CEBB980E3BEE
a t rwa tc h ="
Acceptance Information:
Customer Signature
By
Name
Title
Date
siedve,w
C/fAx1;93_
Initials
AirWatch Signature
By
Name
Title
Date
Quote
DocuSign Envelope ID: C1F2CE3B-A657-4096-BCD3-CEBB980E3BEE
airwatch"
Customer
Bill To
MDM-SB-SD
escflptio
City of Round Rock
221 E Main St
Round Rock, TX 78664
Created Date
Quote Number
Expiration Date
Payment Terms
Price Book
Contact Name
Phone
Email
Quote
3/5/2013
00040243
4/4/2013
Net 30
AirWatch
Heath Douglas
(512) 801-4520
hdouglas@round-rock.tx.us
AirWatch Mobile Device Management - License Subscription Only
Standard Hosting Fee.
MCM-PL-SCL PROMO Perpetual License - Secure Content Locker— No Cost Special
Promotion
Total Price
Grand Total
USD112
3.25 I Months
USD, ,12
0.75. Months:
USDj12
0.00 1 Months
For questions about this quote or remittance of PO, please contact the AirWatch representative listed below:
AirWatch Contact Katie Monaghan
Phone Number (404) 902-4107
Email katiemonaghan@air-watch.com
Submit Tax Exempt certificate with PO if eligible. Sales Tax applicable in CA, GA, VA, and WA.
Send Purchase Order, Payment by Wire or Payment by Credit Card referencing the Quote # above.
initial
USD
975.00
25.00
USD 0.00
USD 1,200.00
USD 1,200.00
airwatc a
End User License Agreement
JMPORTANT( READ THIS DOCUMENT CAREFULLY.
THE TERMS AND CONDITIONS OF THIS END USER LICENSE AGREEMENT (THE "EULA") CONSTITUTE A LEGAL AGREEMENT BETWEEN YOU
AND AIRWATCH, LLC ("AIRWATCH") WITH RESPECT TO USE OF THE PROPRIETARY AIRWATCHTM SOFTWARE (THE "SOFTWARE"). BY (1)
EXECUTING A QUOTE, (2) INSTALLING, COPYING, DOWNLOADING OR OTHERWISE ACCESSING THE SOFTWARE, OR (3) CLICKING TO
ACCEPT, YOU COMPLETELY AND UNEQUIVOCALLY AGREE TO BE BOUND BY THE TERMS OF THIS EULA WITHOUT MODIFICATION. IF YOU
ARE ENTERING INTO THIS AGREEMENT ON BEHALF OF A COMPANY OR OTHER LEGAL ENTITY, YOU REPRESENT THAT YOU HAVE THE
AUTHORITY TO BIND SUCH ENTITY TO THESE TERMS AND CONDITIONS, IN WHICH CASE THE TERMS "YOU," "YOUR," OR "USER" SHALL
REFER TO SUCH ENTITY. IF YOU DO NOT HAVE SUCH AUTHORITY, OR IF YOU DO NOT AGREE WITH THE TERMS AND CONDITIONS OF THiS
EULA, YOU MAY NOT USE OR COPY THE SOFTWARE. IF YOU DO NOT INTEND TO BE LEGALLY BOUND TO THE TERMS AND CONDITIONS OF
THIS EULA, DO NOT ACCESS OR OTHERWISE USE THE SOFTWARE AND DO NOT CLICK "ACCEPT" OR OTHERWISE ASSENT TO THIS EULA. IN
THE EVENT THAT EITHER OF THE FOREGOING TWO SENTENCES APPLIES, YOU SHOULD PROMPTLY RETURN ALL COPIES OF THE SOFTWARE
AND DOCUMENTATION IN THE MANNER PROVIDED HEREIN.
In consideration of the mutual covenants herein expressed, and other true and valuable consideration, the receipt and adequacy of which is
hereby acknowledged, the Parties hereby agree as follows:
1 DEFINITIONS. The following capitalized terms shall have the meanings and applications as set forth below:
1.1 "Addendum to Quote" means an addendum to the original Quote, which shall reference the original Quote by date and Quote number and fully
incorporate this EULA by reference. An Addendum to Quote must be physically or electronically executed by User.
1.2 "Affiliate" means any entity Controlled by, in common Control with, or having Control over a Party. Subject to the terms and conditions of this EULA,
which shall be fully applicable, any Affiliate of User may use the license granted hereunder and, in such event, all references to User shall be deemed to be
references to Affiliate and User and Affiliate shall be jointly and severally liable hereunder. With respect to User, any direct competitor of AirWatch, shall be
excluded from the term Affiliate.
1.3 "AirWatch" means AirWatch, LLC.
1.4 "APNs" means the Apple Push Notification service (APNs) which is used to allow the Software to securely communicate with Apple Devices over -the -air.
1.5 "APNs Certificate" means the certificate required by Apple for use of the APNs.
1.6 "Apple" means Apple Inc.
1.7 "Business Day" means a business day, but excludes weekends and the following holidays recognized by AirWatch on the dates on which they are
observed by the State of Georgia: New Year's Day, Memorial Day, Independence Day, Labor Day, Thanksgiving Day and Christmas Day. The day after Thanksgiving
Day and Christmas Eve are also recognized by AlrWatch.
1.8 "Confidential Information" shall have the meaning ascribed thereto in Section 10.1.
1.9 "Control" means having at least fifty percent (50%) ownership of, an effective majority of the voting shares of, or voting control over a legal entity.
1.10 "Customer Support Centel" means AirWatch's customer support center which may be reached by phone or email on a 24/7/365 basis.
1.11 "Deliverables" mean, as the context dictates, tangible or intangible products delivered to User as a result of the performance of Professional Services by
AirWatch, either in connection with Maintenance or otherwise.
1.12 "Delivery Date" means, (1) with respect to User licenses for which User receives Hosted Services, the date on which User first accesses the Software; (11)
with respect to User Licenses for which User hosts the Software, the date on which the User begins using the Software after downloading and inputting the license
keys provided by AirWatch; or (iii) with respect to a Trial license, the date that would be applicable based on sections (1) and (ii) above, depending on whether the
Trial License is provided on a Subscription or Perpetual License model.
1.13 "Derivatives" mean: (i) for copyrightable or copyrighted material, any translation, abridgment, revision or other form in which an existing work may be
recast, transformed or adapted; (ii) for patentable or patented material, any improvement thereon; (iii) for material which is protected by trade secret, any new
material derived from such existing trade secret material, including new material which may be protected by copyright, patent or trade secret; and (iv) results of any
research, tests or analysis of a Party's Confidential Information, or intellectual or proprietary property.
1.14 "Device" or "Devices" is a type of Licensed Unit and means User's mobile device(s), mobile phone(s),smartphone(s), tablet computer and computing
device(s) (excluding laptop computers), personal digital assistant(s) (PDAs), enterprise digital assistant(s) (EDAs), ruggedized devices, and any similar or similarly
functioning electronic devices, which may be monitored and managed by the Software, whether such device is owned by User or by User's Unit Users, all as
reflected on the Order.
1.15 "Documentation" means only those written user guides, specifications, and manuals supplied or made available to User by AirWatch that set forth the
specifications for the Software and/or explain, facilitate, or instruct in the use of the Software, as such may be updated by AirWatch from time to time.
Documentation specifically excludes, without limitation, marketing, advertising, sales, and promotional materials and any oral or email communications regarding
Software capabilities or specifications.
1.16 "Effective Date" means the date on which User accepts or is deemed to accept this EULA in the manner described in Section 16.1.
1.17 "Embedded Software means any software provided as an included part of the Software that is owned by one or more third parties and licensed to
AirWatch. Other than Embedded Software, User shall be responsible for any third party components, hardware, or software, including those that may become
necessary from time to time.
1.18 "Enhancements are only available to those users who have purchased and are current on Maintenance and mean (I) any revision, amendment, or
modification to the Software requested by User for which User may or may not pay an agreed-upon fee to AirWatch for the Professional Services necessary to
develop and provide such revision, amendment, or modification and/or (ii) Enhancements that are generally distributed by AirWatch to users who are current on
Maintenance in its sole discretion.
All information contained in this document is confidential and for the use of the Parties hereto.
Copyrig t 2011- 2012 y AirWatch, LLC
h
b
1.19 "Force Majeure" means any failure of performance or equipment due to causes beyond the reasonable control of a Party, including but not limited to:
acts of God, fire, flood, explosions or other catastrophes; accidents; storms; national emergencies, insurrections, riots, wars; governmental legislation, acts, orders or
regulations; unavailability of rights-of-way or materials; strikes, lock -outs, work stoppages, or other labor difficulties; or other similar occurrences.
1.20 "Hosted Service Fees" mean those fees paid by User for the Hosted Services and shown as a separate line Item on an Order.
1.21 "Hosted Services" mean, if and as set forth on the applicable Order, the services provided to host, on the AirWatch Servers (as defined in Section 6.1) on
User's behalf, the necessary Software to allow communication and control functions with Licensed Units via internet-based consoles.
1.22 "TOS" means Apple's mobile operating system installed on Apple's Devices including iPhones, iPads, and iPod Touches.
1.23 "License Type" means the basis on which the Software is licensed to User as reflected on the Order and includes, without limitations, licenses on a per
Device basis, a per user basis, an enterprise -wide basis, a server basis, a site-specific basis, or other basis.
1.24 "Licensed Unit" means, based upon the License Type, the unit on which the pricing for the license is based, as reflected on the Order, and includes,
without limitation, Devices, users, enterprises, servers, or sites.
1.25 "Maintenance" means, for users who are current on Maintenance Fees, maintenance and support services performed in accordance with AirWatch's
Maintenance Specifications and, at a minimum, includes: (i) reporting of and consultation regarding bug and error fixes on a 24/7/365 basis; (11) reasonable amounts
of telephone support to assist User with the use of the Software during the hours of 8:00 a.m. to 8:00 p.m., User's local time; (iii) Updates provided to other
licensees of the Software; and (iv) Enhancements generally distributed by AirWatch in its sole discretion, if arty.
1.26 "Maintenance Fees" mean the fees for Maintenance.
1.27 "Maintenance Specifications" mean AirWatch's Maintenance specifications and policies, as amended from time to time by AirWatch.
1.28 "Order' means a Quote, any Addendum to Quote, any purchase order, and/or any other form or writing that is physically or electronically executed by
both User and AirWatch and references the original Order by date and Order number or otherwise seeks to purchase the offerings subject to this EULA, as the case
may be. This EULA shall be deemed incorporated by reference into any Order without modification, except as provided in Section 16.14.
1.29 "Party" means either AirWatch or User and "Parties" means both AirWatch and User.
1.30 "Perpetual License" shall have the meaning ascribed thereto in Section 2.2.
1.31 "Person" means any natural person, corporation, partnership, limited liability company, or other legal entity.
1.32 "Professional Services" means professional services performed by AirWatch for User as reflected on an Order or in an SOW pursuant to Section 5.2 and
includes without limitation installation, activation, training, configuration, modification, customization, reconfiguration, support, or other professional services.
1.33 "Professional Service Fees" mean the fees for Professional Services, if any, as set forth on an Order or in an SOW.
1.34 "Quote" means the AirWatch "Quote" provided to User by AirWatch via physical or electronic means which sets forth (i) the number and type of
Licensed Units to be licensed under Subscription Licenses, (ii) the number and type of Licensed Units to be licensed under Perpetual Licenses and the
Maintenance therefor, (Ili) the number and type of licensed Units to be licensed under Trial Licenses, (iv) pricing, and (v) the hours and cost of any
Professional Services to be initially provided for installation, training, or other matters, if any, and which (a) is physically or electronically executed by User
and (b) expressly incorporates by reference all terms and conditions contained in this EULA.
1.35 "Software" means AirWatch's proprietary software in machine-readable, object code form only that is more fully described in the Quote, including (i)
the Embedded Software, if any, (11) any Updates made available to User pursuant to any Maintenance purchased by User, and (iii) Enhancements, if any.
1.36 SOW' means a statement of work executed by the Parties, specifying the terms and conditions, deliverables, and compensation for delivery of
Professional Services or other items.
1.37 "Subscription License" shall have the meaning ascribed thereto in Section 2.1.
1.38 "Third Party Appliance" means an off -the shelf, third party manufactured, computer hardware appliance (a server) that is provided "AS IS" by AirWatch
and on which a third party operating system and other third party operating software is loaded by the third party manufacturer and on which components of the
Software is loaded to support up to a recommended maximum 2,000 Licensed Unit deployment.
1.39 "Third Party Software" means any software or other product that is (i) owned by one or more third parties; (it) licensed by AlrWatch from such third
parties; (iii) not included in the Software as Embedded Software; and (iv) subsequently sublicensed by AirWatch "AS IS" to User, as reflected in an Order.
1.40 "Trial License" shall have the meaning ascribed thereto in Section 2.3.
1.41 "Unit User" means an individual user of a Licensed Unit who is an officer, director, employee, contractor, representative, or agent of User or Users
Affiliate.
1.42 "Updates" are only available to those users who have purchased and are current on Maintenance and mean error corrections, patches, bug fixes, new
releases, new versions, and updates of the Software that are generally made available by AirWatch to such users for no fee and may contain substantial new
features, functions of performance, and/or extensions or improvements of capabilities (for example, updates from version 1 to version 1.1, 1.1.1 or 2.1), provided,
however, that to the extent that AirWatch, for a fee, offers to users generally (including those users who have purchased Maintenance) any new products, such
products shall not be included in the definition of Updates.
1.43 "User' means the Party executing this EULA as User above.
1.44 "User license" means a Subscription License, Perpetual License, and/or Trial License, as the context dictates.
1.45 "User License Fees" means the license fees paid or payable under a Subscription License, Perpetual License, and/or Trial License, as the context dictates.
2 Ltcerur GRANT. The Software components provided under each User license include those necessary for the number and type of Licensed Units indicated on
each Order. Any Affiliate of User may use any license granted hereunder and, in such event, all references to User shall be deemed to be references to the
applicable User orAffiliate.
2.1 Subscription License. To the extent reflected in an Order, subject to the terms, conditions, payment requirements, and restrictions set forth in this EULA,
AirWatch hereby grants to User a limited, revocable, personal, nonexclusive, non -transferable, world-wide, non-sublicensable license to use the Software on a
subscription basis, solely for the purposes, and subject to the restrictions, expressly set forth herein (the "Subscription License"). The Order will set forth whether
User will receive Hosted Services in conjunction with the Subscription License. If AirWatch is to provide Hosted Services, they will be provided pursuant to Section 6.
2.2 Perpetual license. To the extent reflected in an Order, subject to the terms, conditions, payment requirements, and restrictions set forth in this EULA,
AirWatch hereby grants to User a limited, paid-up, perpetual (subject only to revocation as provided in this EULA), personal, nonexclusive, non -transferable, world-
wide, non-sublicensable license to use the Software solely for the purposes, and subject to the restrictions, expressly set forth herein (the "Perpetual License"). If
AirWatch is to provide Hosted Services, they will be provided pursuant to Section 6.
2.3 Trial License. If the Software is provided to User for evaluation purposes ("Trial"), the Quote is a zero dollar quote, or as otherwise reflected on the
Quote, subject to the terms, conditions, and restrictions set forth in this EULA, AirWatch hereby grants User a limited, revocable, personal, nonexclusive, non-
transferable license to use the Software solely for the purposes of testing and evaluating the Software (the "Trial License") for thirty (30) days from the Delivery Date
or for such other trial period reflected on the Quote (the 'Trial Period"). User is solely responsible for taking appropriate measures to back up its systems and for
taking other measures to prevent any loss of files or data. The Software provided under a Trial License may contain an automatic disabling mechanism that prevents
its use after a certain period of time. Under any Trial License, the Software is provided "PS 15" without any warranty of any kind and User understands and agrees
that the Trial License is specifically and expressly excluded from the warranties, remedies, and terms set forth in Section 11 (other than the warranty and remedy
Page 2 of 8
EULA201211
set forth in Section 11.3 and all disclaimers set forth in Section 11.7). In the event User chooses to continue use of the Software beyond the Trial Period, then the
Trial License shall convert to the applicable Subscription or Perpetual License under this EULA at AirWatch's then -current rates, terms, and conditions, including,
without limitation, Section 9 of this EULA.
2.4 General Rights. In connection with any User License, User may make a reasonable number of copies of the Software for backup, testing, disaster
recovery, or archival purposes and/or for internal use, provided User also reproduces on such copies any copyright, trademark or other proprietary markings and
notices contained in the Software and/or Documentation and does not remove any such marks from the original. In connection with any User Ucense, User may
only employ a third party who is a direct competitor of AirWatch to provide management, staging, support, hosting, or similar services with regard to the Software
on its behalf with the prior written consent of AirWatch. The Order will reflect the License Type for the Software license and the number of Licensed Units. Unless
otherwise stated herein or in an Order, the Software is licensed on a per Device basis, in which case: (1) the Software may only be used or accessed by User on no
more than the number of Devices specified on each Order, but the license for the Software may be transferred from Device to Device and (ii) there is no limit on the
number of computers from which the Devices may be monitored using the Software.
3 LICENSE RESTRICTIONS. User shall use industry -standard physical, logical, and electronic security and confidentiality systems to protect the Software, using at least
the same degree of care it utilizes for the protection of its own software and other confidential and proprietary information. User further agrees that It:
3.1 Shall not share with or assign, copy, sublicense, transfer, lease, rent, sell, distribute, install, or otherwise provide to any other Person (other than Unit
Users) (1) the User Ucense, (11) the Software; (iii) any use or application of the Software; or (iv) User's rights under this EULA;
3.2 Shall use the Software solely for User's internal use with User's ordinary business operations, only in accordance with all applicable laws and regulations,
and in a manner consistent with this EULA or any supplemental limitations specified or referenced in the relevant Order, if any;
3.3 Shall not use the Software except as specified or referenced in the Documentation or use the Documentation except for supporting its authorized use of
the Software;
3.4 Shall not modify, adapt, translate, duplicate (except as expressly set forth in this EULA), disassemble, decompile, reverse assemble, reverse compile, or
reverse engineer, or take similar action with respect to the Software for any purpose, or otherwise attempt to discover the underlying source code of the Software,
for any purpose (unless enforcement is prohibited by applicable law and then, to only the extent specifically permitted by applicable law, and only upon providing
AirWatch with reasonable advance written notice and opportunity to respond);
3.5 For the purpose of designing, modifying, or developing software or services similar in purpose, scope, or function to the Software, shall not engage in
competitive analysis, benchmarking, use, evaluation or viewing of the Software or Documentation or create any Derivatives based upon the Software, whether for
Users internal use or for license or for resale;
3.6 Shall not use the Software, and will ensure that the Software is not used, In or in conjunction with any applications where product failure could lead to
injury to persons, Toss of life or severe property or environmental damage ("Critical Applications");
3.7 Shall not use the Software without obtaining its own APNs Certificate from Apple if User uses the Software to manage Devices running on LOS; and
3.8 Shall not permit any Person, whether acting directly or on behalf of User, to breach or violate any of the restrictions set forth in this Section 3.
4 THIRD PARTY SOFTWARE. Third Party Software may be provided in addition to the Software as a convenience, but is not required or necessary for the use of the
Software. Except as explicitly stated in Section 11.9, any Third Party Software (including any appurtenant maintenance and/or support purchased) listed on an Order
is provided "AS IS", with no warranties of any kind. Any Third Party Software sublicense will terminate when this EULA terminates, when the User License
terminates, or when the Software is no longer being used by User. User shall not reverse engineer, modify, copy, distribute, or otherwise disclose the Third Party
Software, which shall be subject to the same restrictions as those set forth with respect to the Software in Section 3.
5 MAINTENANCE AND SUPPORT.
5.1 Included Services. Maintenance shall be provided in accordance with AirWatch's then -current Maintenance Specifications. Maintenance is offered for
only the Software. AirWatch will provide Maintenance for prior releases and versions for a period of one (1) year following the initial release date of the superseding
release or version.
5.1.1 Subscription License. All Subscription Licenses include Maintenance and the monthly, quarterly, or annual license fees for the Subscription
License reflected on the Order include all Maintenance Fees. In the case of Subscription Licenses, Maintenance may not be separated from the Subscription
License and may not be terminated without also terminating the Subscription License.
5.1.2 Perpetual Ucense. With respect to Perpetual Licenses, User shall initially subscribe to Maintenance on a twelve-month basis dated from the
Effective Date ("Maintenance Period"). User hereby purchases Maintenance at the price set forth in the Order and the initial Maintenance Period begins on the
Effective Date. User may not elect to exclude any of the Software or any of the Ucensed Units from Maintenance during the Maintenance Period. At least thirty
(30) days' prior to the expiration of any Maintenance Period, AirWatch shall provide written notice to User of the Maintenance Fees for the upcoming
Maintenance Period. Thereafter. with respect to all Licensed Units under license, User may elect to (1) renew Maintenance, or (ii), elect not to renew
Maintenance. If no written notice is provided to AirWatch prior to the expiration of any Maintenance Period, there shall be an automatic renewal of
Maintenance at the rates applicable according to Section 9.3. In the event User adds Licensed Units under a Perpetual License pursuant to Section 8 during a
Maintenance Period, the Maintenance Fees for such Licensed Units shall be prorated from the date they are added to the end of the then -current Maintenance
Period at the rate for Maintenance Fees in effect for such Maintenance Period. If AirWatch is providing Hosted Services in a shared environment in connection
with Devices under Perpetual Ucenses and User elects to terminate Maintenance or is not current with Maintenance Fees, then AirWatch may terminate the
Hosted Services with no further obligations or liability, until such time as Maintenance is reinstated or the Maintenance Fees are brought current.
5.1.3 Triol License. With respect to any Trial License, User will be entitled to receive Maintenance during the Trial Period and no payment of
Maintenance Fees shall be required.
5.2 Additional Work. To the extent that AirWatch is requested to provide services to User beyond AirWatch's standard Maintenance, the resulting services
shall be provided to User as Professional Services under an Order or SOW, billed at AirWatch's then -current rates for Professional Services, and invoiced to User as
provided in Section 9. All Professional Services provided at User's site shall be subject to AirWatch's then -current expense reimbursement policies.
6 HosrED SERVICES. Hosted Services are provided whenever AirWatch will host the Software on Users behalf, as set forth in the Order. In connection with Trial
Licenses, any Hosted Services are provided "AS IS" with no warranties of any kind. Section 6 does not in any way apply in instances where User will host Perpetual
Licenses, Subscription Licenses, or Trial Licenses on its own premises, and, in all such circumstances, User shall have no rights and AlrWatch shall have no obligations
under this Section 6.
6.1 Systems Management. AirWatch, or its hosting supplier, shall: (1) provide all necessary hardware and communications facilities in connection with
delivery of Hosted Services (the "AirWatch Servers)"); (ii) use commercially reasonable efforts to monitor and maintain the host servers and to ensure continuous
connectivity, availability, and operation of the host servers on the World Wide Web; and (Iii) monitor hardware and systems Software and environmental controls
and take commercially reasonable actions based on detected problems or issues as necessary to achieve the service levels set forth herein.
6.2 Availability. AirWatch shall use commercially reasonable efforts to maintain the availability of the server(s) on which AirWatch or its hosting supplier(s)
host the Software on behalf of User ("Availability") to allow User the ability to dial into or otherwise remotely access ("Access") the AirWatch Server 99.9% of the
calendar month, time excluding any period of time designated by AirWatch during which AirWatch may limit or suspend Access to the AirWatch Server and/or
Software so that AirWatch may perform routine maintenance (the "Scheduled Maintenance Window").
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EUTA201211
6.3 Outage Notification and Classification. Upon discovery by User of a failure or lack of Availability for any period of time of at least one minute during
which User is unable to utilize the Hosted Services due to AirWatch's failure to provide User with the specified services (an "Outage"), User shall notify the Customer
Support Center. Upon verification of such a failure or lack of Availability, AirWatch, in consultation with User, will promptly issue an internal case number, classified
as Level 1, 2, or 3 (described below). Classifications of Outages are as follows:
6.3.1 Level 1: Complete Outage of the Hosted Services;
6.3.2 Level 2: Significant, frequent and recurring complications or disruptions in User's Access to the AirWatch Server where such failures adversely
impact User's business operations, although the Hosted Services remain substantially operational; or
6.3.3 Level3: Minimal interference or disruptions in User's Access to the AirWatch Server causing insignificant impact to User's business operations.
6.4 AirWatch Response Times. Upon Issuing an internal case number, classified as either Level 1, 2. or 3 in the manner set forth in Section 6.3, AirWatch
agrees to use commercially reasonable efforts to respond to reported failures according to the following schedule:
6.4.1 Level 1: 1 hour, as measured from the time of issuance of the internal case number by AirWatch;
6.4.2 Level 2: 2 hours, as measured from the time of issuance of the intemal case number by AirWatch; or
6.4.3 Level3: 1 Business Day, as measured from the time of issuance of the internal case number by AirWatch.
The AirWatch response times set forth in this Section 6.4 are not excluded from Outage computations for credit calculations under Section 11.4 unless the Outage
itself is the result of an Excluded Event as defined in Section 11.4.
6.5 Other Parties. If an Outage occurs as a result of action or inaction by any party other than AirWatch, AirWatch shall use commercially reasonable efforts
to restore Availability. In the event such Outage occurs as a result of action or inaction by User, then the restoration of Availability will be for User's account at
AirWatch's then—current time and expense rates.
7 THIRD PARTY APPLIANCE.
7.1 Delivery. Third Party Appliances may be delivered to User when User will host the Software on its own premises, but are not delivered in every instance.
If and as set forth in the Order, User has agreed to purchase Third Party Appliance(s) in connection with a Perpetual License, AirWatch will provide the Third Party
Appliance(s) to User with the number of pre -loaded licenses for licensed Units reflected on the Order. If and as set forth in the Order, AirWatch has agreed to
provide a Third Party Appliance in connection with a Trial License, AirWatch will provide the Third Party Appliance to User with the number of pre -loaded licenses for
Licensed Units reflected on the Order and the Third Party Appliance is provided "AS IS," with no warranties of any kind. This Section 7 does not in any way apply
unless a Third Party Appliance is provided and, in all other circumstances, User shall have no rights and AirWatch shall have no obligations under this Section 7.
7.2 Manufacturer's Warranties. AirWatch hereby assigns to User all assignable warranties, representations, covenants, and indemnities granted to AirWatch
by any third party to connection with any Third Party Appliance provided to User and all assignable remedies for breach of such warranties, representations,
covenants and indemnities.
8 AODm0NAL ORDERS. In the event that User wishes to place additional Licensed Units under a User License or avail itself of any other offerings set forth herein, the
Parties shall execute an Order detailing the number and type of additional User licenses and/or other offerings to be obtained. Pricing for such Orders shall be as set
forth in the original Order, subject to any pricing changes made pursuant to Section 9.3, or, if no pricing is provided in the original Order, AirWatch's then -current
published prices shall apply.
9 USER PAYMENT OsuGATtoNs. All fees payable hereunder are due and payable within thirty (30) days of the date of invoice. Any amounts not subject to a good
faith dispute that are not paid within forty-five (45) days of the date of invoice will incur interest at a rate equal to the lower of one percent (1.0%) per month or the
highest rate then permitted by law and AirWatch may suspend Hosted Services and/or Maintenance until the undisputed portion of User's account is brought
current. All fees and charges referred to herein (including those shown on an Order, an SOW, or any invoice) are exclusive of taxes. Taxes imposed by government
agencies, with the exception of franchise taxes and taxes based upon the net income of AirWatch, whether based upon the Software, services, their use, or this EULA
(including sales and use taxes) are an additional obligation of User.
9.1 Payments. As set forth in an Order and invoiced accordingly, User agrees to pay the fees for Perpetual Licenses (the "Perpetual License Fees") and/or the
initial and, thereafter, the recurring fees for the Subscription Licenses (the "Subscription License Fees") to AirWatch based upon (i) the rates set forth in the
applicable Order (subject to adjustment pursuant to Section 9.3) and (ii) the number of Licensed Units set forth in the Order(s). User also agrees to pay any
Maintenance Fees, Hosted Service Fees, Professional Service Fees, and any other fees or charges listed on an Order or an SOW (collectively, the "Other Fees").
Maintenance Fees are included as a part of Subscription Licenses Fees. In the event User obtains additional Perpetual Licenses pursuant to Section 8, any
Maintenance Fees shall be prorated over the balance of the then -current Maintenance Period. To the extent that User takes delivery of additional licenses for
additional Licensed Units pursuant to Section 8, (a) the pricing shall be subject to the pricing on the original Quote, unless such pricing is changed as set forth in
Section 9.3, and (b) any Maintenance Fees shall be prorated over the balance of the then -current Maintenance Period.
9.2 Payments for Trial Licenses. No license or other payments will be due from User for the Trial Ucense during the Trial Period, unless (I) set forth on the
Quote, or (ii) incurred by User for Professional Services pursuant to Section 5.2.
9.3 Price increases. For any future period, AirWatch may increase the Subscription License Fees, Perpetual License Fees, or Other Fees; provided, however,
that AirWatch notifies User in writing of such fee increase at least thirty (30) days in advance of the fee increase and that each increase shall not exceed AirWatch's
then -current published prices.
10 CONFIDENTIALITY AND PROPRIETARY RIGHTS.
10.1 Confidential Information. In the course of performance of this EULA, either Party ("Discloser") may find it necessary to disclose to the other Party
("Recipient"), or Recipient may otherwise obtain from Discloser, certain information which is confidential ("Confidential Information"). "Confidential Information"
means non-public information concerning a Discloser's operations, methods of doing business, technologies, technical designs, research and development, know
how, trade secrets, software source code, software, software documentation, computer programs, algorithms, technical specifications and data, testing and bench-
marking procedures and results, customers, personnel, vendors, financial information, and other information which (1) has been the subject of reasonable efforts by
Discloser to be kept secret and (ii) is information that would reasonably be considered proprietary or confidential. Confidential Information does not include
information that: (a) becomes part of the public domain prior to or after the time of disclosure, through no improper action of Recipient; (b) was already in the
possession of Recipient at the time of disclosure; (c) is received by Recipient from a third party, provided that such Confidential Information was not, to Recipient's
knowledge, obtained by such third party, directly or indirectly, from Discloser, (d) is developed independently by Recipient without the benefit of any Confidential
Information disclosed by Discloser hereunder; (e) is not treated as confidential by Discloser; or (f) is approved for release by Discloser, in its sole discretion, in writing
and in advance. Recipient shall use any Confidential Information received (or Derivatives thereof) solely for the purpose of performing its obligations under this
EULA. Recipient shall not disclose or permit any Person access to any Confidential Information, except to Recipient's officers, directors, employees, contractors,
representatives, or agents on a need to know basis and where all such officers, directors, employees, contractors, representatives, or agents have confidentiality
obligations at least as restrictive as those set forth in this Section 10.1. Recipient agrees to use reasonable efforts to protect the confidential or proprietary nature of
such Confidential Information (and any Derivatives thereof), using at least the same degree of care it utilizes for the protection of its own strictly confidential and
proprietary information. If Recipient is required by a govemmental agency, law, or court of law to disclose any Confidential Information of Discloser, Recipient must
first, if legally permissible, give written notice of the required disclosure to Discloser; take reasonable steps to allow Discloser to seek to protect the confidentiality of
the Confidential Information required to be disclosed; and then disclose only that part of the Confidential Information which, in the written opinion of Recipient's
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legal counsel, it is required to disclose. The obligations under this EULA will continue: (1) with respect to Confidential Information (and/or Derivatives thereof) that
does not constitute a trade secret, for a period of five (5) years after the termination of this EULA; and (ii) for any Confidential Information (and/or Derivatives
thereof) that constitutes a trade secret, for so long as such information remains a trade secret under applicable law. All Confidential Information and Derivatives
thereof will be returned to Discloser within ten (10) days following the termination of this EULA. Without limiting the foregoing or the license restrictions set forth in
Section 3, User shall not disclose any AirWatch Confidential Information, including the Software, to any competitor of AirWatch.
10.2 Title. User acknowledges that the Software (including Enhancements and Updates), any Derivatives, any Deliverables, and all AirWatch copyrights,
names, trademarks, trade names, service marks or any other identifying characteristics are proprietary intellectual property of significant value and goodwill to
AirWatch (the "AirWatch IP") and the Software and all AirWatch IP are owned by AirWatch. This EULA only grants User the right to use the AirWatch IP specified in
this EULA under the terms and restrictions specified in this EULA. User does not, and will not, acquire any other right, title or interest in any AirWatch IP, which will
at all times remain the exclusive property of AirWatch or the applicable third party licensor to AirWatch. User will not remove, suppress or modify in any way any
proprietary marking which is on or in the Software, which is visible during their operation, or which is on any media supplied with the Software, except where
expressly allowed. User acknowledges and agrees that AirWatch shall be the sole owner of any Enhancements, Updates, upgrades, new versions, or new releases of
the Software or Derivatives or Deliverables that are developed by AirWatch during the term of this EULA and thereafter, all of which shall be AirWatch IP. Without
limiting the foregoing, User expressly acknowledges and agrees that AirWatch shall be the sole owner of any newly -developed intellectual property, including but
not limited to newly -developed, revised, or modified source code related in any way to the Software or AlrWatch's general business, regardless of whether
developed, revised, or modified in response to User's requests, suggestions, or ideas, even if performed as a part of Professional Services paid for by User, all of
which shall be AirWatch IP. During the term of this EULA and thereafter, User shall not assert the invalidity of the AirWatch IP, or contest AirWatch's right, title or
interest therein and thereto, and User shall not cause, influence, or assist in any manner whatsoever, any other Person to make any such assertions or contest.
11 LIMITED WARRANTIES; REMEDIES; DLSCIAIMERS; LIMITATION OF LIABILITY.
11.1 Limited Software Warranty and Remedies. In connection with Subscription or Perpetual Licenses granted hereunder, AirWatch warrants that the
Software delivered by AirWatch to User, will substantially perform, in all material respects, in accordance with the Documentation (the "Software Warranty") for
the ninety (90) day period following the Delivery Date ("Software Warranty Period"). If deviations from the requirements set forth in the Software Warranty occur
within the Software Warranty Period, the Software is considered non -conforming and, upon written notice to AirWatch within the Software Warranty Period,
AirWatch will, without additional compensation, either (1) use its reasonable efforts to repair, at its facilities, the Software; or (2) replace the Software, in each case
to correct the nonconformity. If, in AirWatch's discretion, AirWatch is unable to correct the nonconformity within a reasonable period, or if neither option (1) nor
(2) is commercially feasible, AirWatch may terminate this EULA and the relevant Subscription or Perpetual License upon written notice to User and refund the
appropriate amount as set forth below. The Software Warranty Period is not extended in any way by any Enhancement or Update, by placing more Licensed Units
under license, or by any delivery of additional Software and replacement or repair of the Software does not extend the Limited Warranty Period, provided, however,
the foregoing events are governed by the Maintenance Warranty described in Section 11.6, for so long as User is subscribed to Maintenance. For clarity, newly
purchased User Licenses receive the Software Warranty from their Delivery Date, but purchasing new User Licenses does not extend the Software Warranty Period
for previously purchased User Licenses. The Software Warranty does not cover any Software: (a) that has not been used in accordance with this EULA and the
Documentation; (b) that has been altered in any way by User or any third party not under the control of AirWatch, or their employees or agents; (c) that is used in an
operating environment other than as specified In the Documentation; (d) where such nonconformity in the Software is due to abuse, neglect, or other improper use
by User; or (e) where reported errors or nonconformities cannot be reproduced by AirWatch, working, in good faith, with User's assistance.
11.1.1 Termination of Subscription License. If AirWatch terminates this EULA and a related Subscription License pursuant to Section 11.1, with respect
to the affected Software, (i) AirWatch shall refund to User any Subscription License Fees and any unused Other Fees that have been prepaid to AirWatch by User
and (ii) User shall comply with Section 13.4.1.
11.1.2 Termination of Perpetual License. If AirWatch terminates this EULA and a related Perpetual License pursuant to Section 11.1, then with respect
to the affected Software, (i) AirWatch shall refund to User any Perpetual License Fees paid by User and the unused remainder of any Other Fees prepaid to
AirWatch by User and (ii) User shall comply with Section 13.4.1.
11.2 Infringement Claims. In connection with Subscription or Perpetual Licenses granted hereunder, AirWatch, at its sole expense, agrees to defend and
Indemnify User against any third party claim that User's use of the Software, as delivered by AirWatch to User and used in accordance with this EULA and the
Documentation, directly infringes a third party copyright, patent issued by the U.S. Patent and Trademark Office, or misappropriates a trade secret, provided that: (i)
User notifies AirWatch in writing within thirty (30) days of the claim; (11) AirWatch has sole control of the defense and all related settlement negotiations, as long as
such settlement shall not include a financial obligation on User; and (iii) User provides AirWatch with the information, assistance and authority to enable AirWatch
to perform AirWatch's obligations under this Section 11.2. In any action based on a claim of infringement, AirWatch may, at its option and own expense and as its
entire obligation to User with respect to such claims, either: (1) procure the right for User to continue using the Software in accordance with the provisions of this
EULA; (2) make such alterations, modifications or adjustments to the Software so that the infringing Software becomes non -infringing without Incurring a material
diminution in performance or function; (3) replace the Software with a non -infringing substantially similar substitute; or (4) if neither (1), (2), nor (3) can be achieved
after the exercise of commercially reasonable efforts, either Party may terminate the Subscription or Perpetual License(s), as the case may be, for the affected
Software and AirWatch shall issue a refund to User as described below. AirWatch shall have no liability or obligations for an infringement claim pursuant to this
Section 11.2 to the extent that it results from: (a) modifications to the Software made by a party other than AirWatch, if the claim would not have occurred but for
such modifications; (b) the combination, operation or use of the Software with non-AirWatch equipment, devices, software or data, unless the claim would not have
occurred but for the use of the Software in the combination, operation or use; (c) the use of an unsupported version of the Software; (d) use of the Software outside
the scope of this EULA or the Documentation; (e) AirWatch's use of any designs, plans, instructions, specifications, diagrams or the like, provided by User; or (f)
User's failure to use all applicable Enhancements and Upgrades to the Software made available to User by AirWatch, if the claim would not have occurred but for
such failure. Nothing in this provision shall be construed as a limitation on User's ability to retain legal counsel at its own expense to monitor the proceedings.
11.2.1 Termination of Subscription License. If AirWatch terminates this EULA and a related Subscription License pursuant to Section 11.2, with respect
to the affected Software, (I) AirWatch shall refund to User the unused remainders of any Subscription License Fees and Other Fees that have been prepaid to
AirWatch by User; and (11) User shallcomply with Section 13.4.1.
11.2.2 Termination of Perpetual License. If AirWatch terminates this EULA and a related Perpetual license pursuant to Section 11.2, with respect to the
affected Software, (1) AirWatch shall refund to User the Perpetual License Fees amortized over a three (3) year depreciation period from the Delivery Date and
the unused remainder of any prepaid Other Fees and (ii) User shall comply with Section 13.4.1.
11.3 Anti -Virus and Disabling Code Warranty and Remedies. In connection with User Licenses granted hereunder, AirWatch warrants that it shall use
industry standard anti-virus software to scan the Software for Viruses prior to delivery (the "Anti -Virus Warrant/"). "Virus" means any computer virus, software
code, or device designed to disable, damage, impair, erase, deactivate, or electronically repossess the Software. Notwithstanding the foregoing, (I) any enabling or
license keys included with the Software for the purpose of activating the Software, (ii) any tracking mechanisms for measuring or ascertaining the number of
Licensed Units under license, Users conformance with the license restrictions set forth in Section 3 of this EULA, and/or other compliance matters included with the
Software, and/or (iii) with respect to Trial Licenses only, any included automatic disabling mechanism that prevents its use after a certain period of time, shall not
constitute a Virus for purposes of this Section 11.3. With respect to any alleged breach of the warranty set forth in this Section 11.3, AirWatch shall only be liable to
User for a breach of the Anti -Virus Warranty, if User notifies AirWatch within the thirty (30) day time period immediately following the discovery of the Virus by
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User. Users sole and exclusive remedy and AirWatch's sole obligation for a breach of the Anti -Virus Warranty is to replace all copies of the affected Software in the
possession of User with copies that do not contain a Virus.
11.4 Limited Hosted Services Warranty and Remedies. If and only if User is receiving Hosted Services, AirWatch warrants that User will have Access to the
Hosted Services 99.9% of the calendar month (the "Hosted Services Warranty"). To the extent that the Hosted Services fail to conform to the Hosted Services
Warranty, User may request service credits ("Outage Credits") in accordance with this Section 11.4. All Outage measurements will be rounded up or down to the
nearest one minute increment, with increments equal to or greater than 30 seconds being rounded up to the next minute. Outage Credits are based on cumulative
periods of Outage over a calendar month. Final determinations of the length of the cumulative periods of Outage over a calendar month shall be based on
AirWatch's internal monitoring equipment and records. Outage Credits will be taken against only the Hosted Service Fees for the month in which the Outage
occurred. Outage Credits will be calculated in accordance with the following table:
Cumulative duration of Outage periods within a
particular calendar month
Percentage of the Hosted Services Fees to be credited
as an Outage Credit
45 minutes through 3 hours, 36 minutes
10%
3 hours, 37 minutes through 7 hours, 12 minutes
20%
Greater than 7 hours, 12 minutes
30%
In no event will the Outage Credits accrued in any calendar month exceed, in the aggregate across all events, thirty percent (30%) of the amount invoiced in that
calendar month for the Hosted Service Fees. The Outage Credits set forth herein are not cumulative and may not be carried from one month to the next. User must
request any Outage Credit due hereunder within thirty (30) days of the date it accrues (i.e. upon a report that the last Outage for the calendar month has been
resolved). User waives any right to credits not requested within such thirty (30) day period. Outage Credits will be issued once validated by AirWatch and applied
toward the next invoice following the month in which the Outage Credit is validated by AlrWatch. This Section 11.4, including the Outage Credits provides Users
sole and exclusive remedy for any interruptions, deficiencies, or failures of any kind of the Hosted Services. This Section 11.4 and any Outage Credits will not apply
in the case of an Excluded Event. "Excluded Event" means any event that adversely impacts the Hosted Services that is caused by (a) the acts or omissions of User,
its employees, customers, contractors or agents; (b) the failure or malfunction of equipment, applications or systems not owned or controlled by AirWatch; (c) Force
Majeure events; (d) a Scheduled Maintenance Window; (e) any suspension of Hosted Services pursuant to Section 9; or (f) the unavailability of any User personnel
required to restore Hosted Services, including as a result of User's failure to provide AirWatch with accurate, current contact information.
11.5 Limited Third PartyAppliance Warranty and Remedies. If and only if AirWatch is providing a Third Party Appliance to User, without in any way modifying
or expanding the Software Warranty (as defined in Section 11.1) or any other warranty, AlrWatch warrants that, when the Third Party Appliance is used in
accordance with the third party manufacturer's documentation and the Software is used in accordance with the Documentation and this EULA, the Software will
operate on the Third Party Appliance (the "Appliance Warranty") for the ninety (90) day period following the Delivery Date (the "Appliance Warranty Period"). In
the event the Third Party Appliance fails to operate with the Software during the Appliance Warranty Period, upon User's written notice to AirWatch within the
Appliance Warranty Period, AirWatch shall either (1) use its reasonable efforts to repair at its facilities the Third Party Appliance; or (ii) replace the Third Party
Appliance. AlrWatch reserves the right to replace any non -conforming Third Party Appliance with another product of similar quality and purpose. Replacement or
repair of the Third Party Appliance during the Appliance Warranty Period does not extend the Appliance Warranty Period and the delivery of additional Third Party
Appliances does not extend the Appliance Warranty Period. The Appliance Warranty does not cover any Third Party Appliance: (a) that is not used in accordance
with the third party manufacturer's documentation; (b) that has been altered in any way by User or any third party, or their employees or agents; (c) to which
additional software has been added by User or any third party, or their employees or agents, (d) where nonconformities in the Third Party Appliance are due to
abuse, neglect, or other improper use by User; or (e) where reported errors or nonconformities cannot be reproduced by AirWatch, working in good faith, with
User's assistance.
11.6 Limited Maintenance Warranty and Remedies. AlrWatch warrants to User that the correction of errors in and improvements to the Software by
Updates and Enhancements pursuant to Maintenance or other Deliverables provided in connection with Maintenance will substantially conform, in all material
respects, to (1) the Maintenance Specifications and (ii) to the Documentation ("Maintenance Warranty"). If deviations from the requirements set forth in the
Maintenance Warranty occur within the then -current Maintenance Period, the Maintenance services provided are considered non -conforming and, upon written
notice provided to AirWatch within the then -current current Maintenance Period, AlrWatch will, without additional compensation, either (1) use its reasonable
efforts to repair the nonconformities; or (2) re -perform the Maintenance services to eliminate the nonconformities. If, in AirWatch's discretion, AirWatch is unable
to correct the nonconformities within a reasonable period, or if neither option (1) nor (2) is commercially feasible:
11.6.1 (t) under a Subscription license, User shall be entitled to terminate this EULA upon written notice and User shall receive a refund of the unused
remainders of any prepaid Subscription License Fees and Other Fees that have been prepaid to AirWatch by User; and
11.6.2 (ii) under a Perpetual License, User shall be entitled to terminate Maintenance upon written notice and User shall receive a pro -rata refund of
any Maintenance Fees paid for the then -current Maintenance Period.
THE MAINTENANCE WARRANTY SHALL NOT APPLY IN INSTANCES WHERE USER HAS NOT PURCHASED OR HAS DISCONTINUED MAINTENANCE. The Maintenance
Warranty does not cover any Maintenance, Updates, or Enhancements: (a) that have not been used in accordance with this EULA and the Documentation; (b) that
have been altered in any way by User or any third party, or their employees or agents; (c) that are used in an operating environment other than as specified by
AirWatch; (d) where the nonconformities are due to abuse, neglect, or other improper use by User; (e) where reported errors or nonconformities cannot be
reproduced by AlrWatch working in good faith, with User's assistance; or (f) where Maintenance Fees not subject to a good faith dispute have not been timely paid
pursuant to Section 9 .
11.7 Limited Professional Services Warranty and Remedies. AirWatch warrants to User that, solely with respect to Professional Services, for a period of
ninety (90) days following the completion of such Professional Services (the "Services Warranty Period"), (i) any Professional Services provided will be consistent
with generally accepted industry standards for the performance of services of a similar nature and (11) any Professional Services provided and any Deliverables
resulting therefrom will substantially conform, in all material respects, to such specifications as are agreed to by the Parties in an SOW or Order (the "Services
Warranty"). If deviations from the requirements set forth in the Services Warranty occur within the Services Warranty Period, the Professional Services are
considered non -conforming and, upon written notice to AirWatch within the Services Warranty Period, AirWatch will, without additional compensation, either (1)
use its reasonable efforts to repair the nonconformities; or (2) re -perform the Professional Services to eliminate the nonconformities. If, in AirWatch's discretion,
AirWatch is unable to correct the nonconformities within a reasonable period, or If neither option (1) nor (2) is commercially feasible, AirWatch shall refund to User
any fees paid for the nonconforming Professional Services. Replacement or repair of the Professional Services during the Services Warranty Period does not extend
the Services Warranty Period. The Services Warranty does not cover any Professional Services or Deliverables: (a) that have not been used in accordance with this
EULA and any specifications related to the Professional Services or Deliverables; (b) that have been altered in any way by User or any third party, or their employees
or agents; (c) that are used in an operating environment other than as specified in the Documentation; (d) where the nonconformities are due to abuse, neglect, or
other improper use by User; or (e) where reported errors or nonconformities cannot be reproduced by AirWatch working in good faith, with User's assistance.
11.8 Disclaimers. EXCEPT AS EXPRESSLY SET FORTH IN THIS SECTION 11, THE SOFTWARE, HOSTED SERVICES, THIRD PARTY APPLIANCE, MAINTENANCE,
UPDATES AND ENHANCEMENTS, PROFESSIONAL SERVICES, OR OTHER DELIVERABLES PROVIDED AS A RESULT OF THE PERFORMANCE OF MAINTENANCE OR
PROFESSIONAL SERVICES (COLLECTIVELY, THE "WARRANTY SUBJECT MATTER") ARE PROVIDED "AS 15" AND AIRWATCH AND ITS LICENSORS, DEVELOPERS, AND
Page 6 of 8
EU5A201211
OTHER SUPPUERS (THE "AIRWATCH PARTIES") FURTHER DISCLAIM THAT THE FUNCTIONS CONTAINED IN THE WARRANTY SUBJECT MATTER WILL MEET THE
REQUIREMENTS OF USER OR THAT THE OPERATION OF THE WARRANTY SUBJECT MATTER WILL BE ERROR FREE. TO THE MAXIMUM EXTENT PERMITTED BY LAW,
THE LIMITED WARRANTIES SET FORTH IN THIS SECTION 11 ARE THE ONLY WARRANTIES PROVIDED FOR THE WARRANTY SUBJECT MATTER, AND THE REMEDIES FOR
BREACHES OF SUCH LIMITED WARRANTIES ARE EXCLUSIVE. EXCEPT AS EXPRESSLY SET FORTH IN THIS SECTION 11, THERE ARE NO OTHER WARRANTIES,
CONDITIONS, OR TERMS, WHETHER EXPRESS OR IMPLIED BY STATUTE, OPERATION OF LAW, TRADE USAGE, COURSE OF PERFORMANCE OR DEALING OR
OTHERWISE, INCLUDING, WITHOUT UMITATION, THE IMPLIED WARRANTIES OF MERCHANTABILITY, SATISFACTORY QUAUTY, FITNESS FOR A PARTICULAR PURPOSE,
FITNESS FOR A PARTICULAR USE, NONINFRINGEMENT, TITLE, ACCURACY, OR COMPLETENESS; ALL SUCH WARRANTIES BEING SPECIFICALLY AND FULLY DISCLAIMED
BY THE AIRWATCH PARTIES. OTHER WRITTEN OR ORAL REPRESENTATIONS OR AFFIRMATIONS OF FACT, INCLUDING BUT NOT LIMITED TO, STATEMENTS FROM
AIRWATCH OR ANY OTHER SOURCE REGARDING THE PERFORMANCE OF THE WARRANTY SUBJECT MATTER THAT ARE NOT CONTAINED IN THIS EULA, SHALL NOT BE
BINDING ON THE AIRWATCH PARTIES AND ARE HEREBY EXPRESSLY DISCLAIMED.
11.9 Assignment of Third Party Software Warranty and Disclaimer. During the term of the sublicense, AirWatch hereby assigns, subltcenses, or passes
through to User all assignable warranties, representations, covenants, and indemnities granted to AirWatch by any third party in connection with any Third Party
Software (including any appurtenant maintenance and/or support purchased) and all assignable remedies for breach of such warranties, representations, covenants,
and indemnities. To the extent that AirWatch is not permitted to assign any of such protections to User, AirWatch will, at User's expense, enforce such protections
on behalf of User to the extent AirWatch is permitted to do so under the terms of the applicable third party license. IN NO EVENT WILL AIRWATCH BE LIABLE'FOR
SUCH THIRD PARTY SOFTWARE (INCLUDING ANY APPURTENANT MAINTENANCE AND/OR SUPPORT) AND AIRWATCH SPECIFICALLY DISCLAIMS ANY EXPRESS OR
IMPLIED WARRANTIES (INCLUDING ANY WARRANTY OF NON -INFRINGEMENT) AND DISCLAIMS LIABILITY INCLUDING ANY SPECIAL, INCIDENTAL OR CONSEQUENTIAL
LOSS OR DAMAGE, INCLUDING WITHOUT LIMITATION, ANY LOST PROFITS OR SAVINGS, AND ANY LOSS OR DAMAGE CAUSED BY ANY THIRD PARTY SOFTWARE.
11.10 Limitation of Liability. EXCEPT FOR BREACHES OF SECTIONS 3 (LICENSE RESTRICTIONS) OR 10 (CONFIDENTIALITY AND PROPRIETARY RIGHTS) OR CLAIMS
UNDER THE INDEMNITY PROVISIONS OF THIS EULA, (A) NEITHER PARTY SHALL BE LIABLE FOR ANY INDIRECT, CONSEQUENTIAL, INCIDENTAL, SPECIAL OR PUNITIVE
DAMAGES, OR ANY LOST PROFITS, REVENUE, DATA, OR DATA USE AND (8) EITHER PARTY'S MAXIMUM LIABILITY FOR ANY DAMAGES ARISING OUT OF OR RELATED
TO THIS EULA OR ANY ORDER, WHETHER SUCH ACTION IS BROUGHT IN LAW, EQUITY, CONTRACT OR TORT (INCLUDING NEGLIGENCE AND STRICT LIABILITY), OR
OTHERWISE, SHALL BE LIMITED TO THE USER LICENSE FEES PAID BY USER IN THE LAST TWELVE (12) MONTH PERIOD IMMEDIATELY PRECEDING THE EVENT GIVING
RISE TO THE CLAIM, LESS ALL PAYMENTS MADE IN RESPECT OF OTHER CLAIMS SUBJECT TO THIS LIMITATION UNDER THIS EUIA.
12 INDEMNITY.
12.1 User Indemnification. User shall indemnify and hold harmless, and, at the respective option of AirWatch, defend AlrWatch and its Affiliates, officers,
directors, employees, contractors, agents. successors and assigns (the "AirWatch Indemnitees") from and against any and all claims, losses, damages, judgments,
costs and expenses, including attorneys' fees ("Claims"), incurred directly or indirectly by the AlrWatch Indemnitees arising out of or relating to User's violation of
Section 3 of this EULA.
12.2 Mutual Indemnification. Each Party (the "Indemnitor") shall indemnify and hold harmless, and, at the respective option of the other Party and its
Affiliates, officers, directors, employees, contractors, agents, successors and assigns (the "Indemnitees"), defend Indemnitees from any Claims incurred directly or
indirectly by the Indemnitees arising out of or relating to: (i) any breach or violation of Section 10 of this EULA by indemnitor, (ii) any and all third party Claims
related to any negligent acts, fraud, or intentional misconduct of the Indemnitor or its Affiliates or agents, and/or (iii) any personal injury (including death) or
damage to property resulting from the Indemnitor's or its Affiliates' or agents' acts or omissions.
12.3 Procedure. In order to perfect any indemnity claim under this Section 12, (i) Indemnitees must notify Indemnitor in writing within thirty (30) days of the
claim; (ii) Indemnitor must have sole control of the defense and all related settlement negotiations, as long as such settlement shall not include a financial obligation
on Indemnitees; and (iii) Indemnitees must provide indemnitor with the information, assistance and authority to enable Indemnitor to perform Indemnitor's
obligations under this Section 12. Nothing in this provision shall be construed as a limitation on Indemnitees' ability to retain legal counsel at its own expense to
monitor the proceedings.
13 TERM ANO TERMINATION.
13.1 Term and General Termination Rights. This EULA will commence on the Effective Date and will continue until the date it is terminated in accordance with
the terms in the Order, or as set forth herein. User shall have the right to terminate this EULA at any time, effective upon sixty (60) days written notice of
termination to AlrWatch and the return of the Software to AirWatch.
13.2 User Termination. User may terminate this EULA: (1) in the event of a material breach by AlrWatch of this EULA that is unremedied for a period of thirty
(30) days after receipt of written notice by AirWatch, effective upon the return of the Software to AirWatch or (ti) immediately with concurrent notice if AirWatch
violates or breaches Section 10 (Confidentiality and Proprietary Rights) and, (a) in the case of Subscription Licenses, User shall be entitled to the unused remainders
of any Subscription License Fees and any Other Fees that have been prepaid to AlrWatch by User or, (b) in the case of Perpetual Licenses, User shall be entitled to
the unused remainder of any Other Fees that have been prepaid to AlrWatch.
13.3 AlrWatch Termination. AirWatch may terminate the EULA and the relevant User License under this EULA: (i) if User ceases or is delinquent in making
payments of any applicable User License Fees for a period of thirty (30) days after notification of such delinquency; (8) in the event of a material breach of this EULA
by User that is unremedied for a period of thirty (30) days after receipt of written notice by User; (iii) as provided In Sections 11.1 or 11.2; (iv) immediately with
concurrent notice if User violates or breaches Sections 3 (License Restrictions) or 10 (Confidentiality and Proprietary Rights).
13.4 Effect of Termination.
13.4.1 User Obligations. Upon the termination or expiration of this EULA and any related User License for any reason whatsoever (i) any User License
will automatically and immediately terminate, (ii) User will immediately cease and desist from all use of the Software to any way, (111) User shall immediately
remove the Software from any and all Central Processing Units (CPUs), hard drives, storage media, servers, and/or Licensed Units on which it is installed, and
(iv) within ten (10) days after the effective date of the termination or expiration of this EULA and any related User License, User is required to uninstalt and
either return or destroy the applicable Software and provide a written certification executed by an officer of User certifying such action. Except for termination
pursuant to Section 13.2, upon termination, User shall pay any fees then owing under this EULA as of the date of termination within thirty (30) days.
13.4.2 Subscription Licenses. Except as otherwise expressly stated herein, no refunds or payments of any kind shall be due User.
13.4.3 Perpetual Licenses. Except as otherwise expressly stated herein, no refunds or payments of any kind shall be due User.
13.4.4 Trial License. To the extent that User continues to use the Software after the end of the Trial Period, Section 2.3 shall apply. Otherwise, upon the
termination or expiration of this EULA and any related Trial License for any reason, except as otherwise expressly stated herein, no refunds or payments of any
kind shall be due User.
13.5 Survival. The provisions of this EULA that by their sense and context are intended to survive termination of this EULA, will so survive the termination of
this EULA.
14 NOTICES. Except as otherwise provided herein, all notices, consents, requests, instructions, approvals, and other communications made, required, or permitted
under this EULA will be given to the parties at the addresses listed on the Order by: (i) personal service, deemed effective on reported delivery date; (ii) recognized
international or overnight courier, deemed effective on reported delivery date; (iii) facsimile transmission, deemed effective on delivery date confirmation; or (iv)
email transmission, deemed effective on delivery date confirmation.
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15 Auorts. User shall maintain records regarding the number of Licensed Units monitored by the Software and shall make such information available to AirWatch
upon request. In addition to accessing the foregoing records, for the purposes of (i) determining the number of Licensed Units in use by User and (ii) verifying
compliance with Section 3 (License Restrictions) and the terms and conditions of this EULA, AirWatch may, at its expense, conduct audit reports as follows:
15.1 Subscription License. With respect to a Subscription License, AirWatch may, from time to time, remotely run license reports.
15.2 Perpetual License. With respect to a Perpetual License AirWatch may inspect the log files of the Software at mutually agreeable times.
15.3 Trial License. During and after the Trial Period, AirWatch may, from time to time, remotely run license reports and/or inspect the log files.
16 GENERAL PROVISIONS.
16.1 Acceptance of the EULA. User's acceptance of this EULA and agreement to its terms and conditions shall be indicated by any one or more of the
following actions by User:
16.1.1 Execution. Executing and returning to AirWatch, by physical or electronic means, the Quote;
16.1.2 Click through. Clicking to accept or agree to the EULA by electronic means; or
16.1.3 Use. Using the Software or any Upgrade or Enhancement.
16.2 Acceptance of an Additional Order. User's acceptance of an additional Order and reaffirmation of its agreement to the terms and conditions of the EULA
and the original Order shall be indicated by any one or more of the following actions by User:
16.2.1 Execution. Executing and returning to AirWatch, by physical or electronic means, another Order; or
16.2.2 Use. Using any additional Licensed Units described on an Order with the Software.
16.3 Governing Law. This EULA, and all disputes arising hereunder or related hereto, will be governed by and construed in accordance with the laws of the
State of Georgia, excluding its principles of conflicts of law. The venue and exclusive jurisdiction for any litigation will be in Atlanta, Georgia.
16.4 Disputes. The Parties acknowledge and agree that any breaches of Sections 3 or 10 may give rise to irreparable harm to the non -breaching Party for
which the granting of monetary damages would be an inadequate remedy, accordingly, the non -breaching Party may, in addition to all other available remedies,
seek temporary restraining orders or interlocutory, interim, and permanent injunctions or other appropriate orders to restrain any continued breach of Sections 3 or
10 by the breaching Party, as the case may be, without having to prove that actual damage has been sustained by the non -breaching Party.
16.5 Export Laws. The Software is subject to United States export control laws and regulations and may be subject to export or import regulations in other
countries. These laws and regulations include licensing requirements and restrictions on destinations, end users, and end use. User agrees to comply with all
domestic and international export and import laws and regulations that apply to the Software and acknowledges that User has the responsibility to obtain any and
all necessary licenses to export, re-export, or import the Software. More specifically, User covenants that it shall not, directly or indirectly, sell, export, re-export,
transfer, divert, or otherwise dispose of any Software, source code, or technology (including products derived from or based on such technology) received from
AirWatch under this EULA to any other person, entity, or destination prohibited by the laws or regulations of the United States, without obtaining prior
authorization from the competent government authorities as required by those laws and regulations.
16.6 Assignment. This EULA, including any rights, licenses or obligations under this EULA, may not be assigned or otherwise transferred (whether by
operation of law, merger, reorganization, or otherwise) by User to any other Person without the prior written consent of AlrWatch and any attempt to do so in
violation of the terms hereof shall be null and void.
16.7 Force Majeure. A Party is not liable under this EULA for non-performance caused by a Force Majeure, if the Party makes reasonable efforts to perform.
This provision does not relieve either Party of its obligation to make payments then owing.
16.8 Publicity. AirWatch may use the name and/or logo of User in a list of customers used In marketing materials until requested to cease this use by User.
Within forty-five (45) days of signing this EULA AirWatch may publish a press release announcing the acquisition of User as a customer, provided User has an
opportunity to review and approve the press release.
16.9 Independent Contractor. AirWatch shall at all times be considered an independent contractor under this EULA. Nothing contained herein will be
construed to create the relationship between the Parties of principal and agent, employer and employee, partners or joint venturers.
16.10 No Third Party Beneficiaries. This EULA is for the benefit of User and AirWatch and does not provide any third party the right to enforce it or to bring an
action for any remedy, claim, liability, reimbursement or cause of action or any other right or privilege.
16.11 Non -Waiver. The failure of either Party to require the performance by the other Party of any provision hereof will not constitute a waiver of that
provision or the required performance. The waiver by either Party of any breach of any provision of this EULA will only be valid if given in an executed written
instrument and any such waiver will not constitute a waiver as to any subsequent breach or continuation of the same breach.
16.12 Headings. Headings are used in this EULA for convenience only and shall not affect any construction or interpretation of this EULA.
16.13 Language. In the event that AirWatch or another party has provided User with a translation of this EULA from the English language to another language,
User agrees that such translation is provided for convenience only; that the American English language version of this EULA governs the relationship between
AirWatch and User; and, if there is any conflict between the American English language version of this EULA and such translation, the American English language
version shall take precedence. All disputes arising under this EULA shall be resolved in the English language.
16.14 Entire Agreement. This EULA constitutes the entire agreement between the Parties with respect to the subject matter hereof. This EULA and any related
Order supersede and replace all prior understandings, negotiations, commitments, representations, and agreements of the Parties relating to the Software and the
subject matter hereof. AirWatch's agreement to provide the Software to User is expressly conditioned upon the unequivocal application of all terms and conditions
included in this EULA to such transaction and any additional or different terms or conditions proposed by User (whether by purchase order, counter-offer,
acknowledgement, electronic data interchange, or otherwise) are hereby expressly objected to and will not be In any way binding upon AirWatch. Although any
related Order or SOW is incorporated by reference herein, it is the express agreement of the Parties that the terms of this EULA shall supersede any conflicting
terms in any related Order or SOW, unless the conflicting terms in such related Order or SOW clearly express an Intent to supersede this EULA by directly and
specifically referring to the section or sections of this EULA to be superseded and such Order or SOW is executed by an officer of each Party. If any term of this EULA
is found to be invalid or unenforceable, the remaining provisions will remain effective and such term shall be replaced with a term consistent with the purpose and
intent of this EWA. Any modification or amendment to this EULA will be effective only upon execution by an officer of each Party.
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