NetQ Cloud End User License Agreement

NVIDIA NETQ END USER LICENSE AGREEMENT

NVIDIA NETQ is a cloud-based operation software that provides visibility, provisioning, troubleshooting, actionable insights and operational intelligence about the health of Your network (“NETQ”).

These license terms form a legal agreement (“Agreement”) between you, either as an individual person or legal entity (each “You” or “Your”) and NVIDIA Corporation (“NVIDIA”), governing Your use of NETQ. Please read this Agreement carefully before clicking any form of “I Accept” button and before registering or using NETQ.

If You are entering into this Agreement on behalf of a company or other legal entity, You represent that You have the legal authority to bind the entity to this Agreement, in which case, “You” will mean the entity You represent. If You don’t have the required authority to accept this Agreement or if You do not agree to and accept the terms of this Agreement, do not register, access or otherwise use NETQ.

LICENSE.

Subject to the terms of this Agreement and timely payment of any fee (if applicable), NVIDIA grants You a limited, non-exclusive, non-transferable, non-sublicensable license, while You remain in compliance with these terms, to:

(a) access and use NETQ as a cloud service for your internal business use during the Term of the Agreement, and

(b) provision/monitor switches, DPUs and other networking products up to the number of licenses You purchased.

AUTHORIZED USERS.

You may allow employees and contractors of Your entity (“Authorized Users”) to access and use NETQ from Your devices, provided that they use NETQ to support Your business and they agree to the terms and conditions set forth in this Agreement and that You are solely responsible for the use of NETQ and the compliance with the terms of this Agreement by Your Authorized Users. If You are an academic institution You may allow users enrolled or employed by the academic institution to access and use NETQ from Your devices. If You become aware that Your Authorized Users do not follow the terms of this Agreement You agree to take all steps to immediately resolve the non-compliance and prevent new occurrences.

PERFORMANCE.

A number of factors may affect Your use of NETQ or may impede or interfere with Your ability to start or continue using NETQ, and You understand that NVIDIA is not responsible for: (a) any factors or circumstances outside of NVIDIA’s reasonable control, including issues with Your device, telecommunications, firewall, Your service providers, or the public internet; (b) the type of device You have, Your location, the available bandwidth, or the speed of Your internet connection; or (c) other reasonable technical reasons, errors, or bandwidth constraints.

LIMITATIONS.

You may not reverse engineer, decompile or disassemble or remove copyright or other proprietary notices from any portion of NETQ.

Except as expressly provided in this Agreement, You may not copy, sell, rent, sublicense, transfer, distribute, modify, create derivative works of any portion of NETQ, including without limitation, in any publicly accessible software repositories. Without limiting the foregoing, You may not use NETQ as part of a product or service to any third party.

You may not misuse, disrupt or exploit NETQ for any unauthorized or illegal use, or try to circumvent any technical limitations or access areas or download software or materials not intended for users (including using NETQ in any unauthorized way to access third-party information or sites), or disturb the use and enjoyment of NETQ by other users.

You may use NETQ only for authorized and legal purposes, consistent with applicable laws, regulations and the rights of others, including but not limited to, export control laws, data privacy and security rules and regulations.

You may not disclose the results of any limitations, testing or benchmarking of NETQ to any third party.

You may not access or use NETQ in a way intended to avoid incurring fees or exceeding use limits or quotas.

You shall not use NETQ with any system or application where the use or failure of such system or application can reasonably be expected to threaten or result in personal injury, death, or catastrophic loss including, without limitation, use in connection with any avionics, navigation, military, medical, or life support or other life critical application (“Critical Applications”). You acknowledge that NVIDIA does not design, test or certify NETQ for use in the context of a Critical Application and NVIDIA shall not be liable to You or any third party, in whole or in part, for any claims or damages arising from such use.

By accepting this Agreement or using NETQ You agree to indemnify, defend and hold NVIDIA harmless including its affiliates and their respective officers, directors, employees and agents, from and against any claims, disputes, demands, liabilities, damages, losses, costs and expenses arising out of or in any way connected with: (a) breach of the terms of this Agreement by You and Your Authorized Users; or (b) You or Your Authorized Users’ infringement or misappropriate of any third party’s intellectual property right or any other violation of any applicable law.

PRE-RELEASE AND FEATURES.

NETQ features or certain versions may be identified as alpha, beta, preview or otherwise as pre-release, may not be fully functional, may contain errors or design flaws, and may have reduced or different security, privacy, accessibility, availability and reliability standards relative to commercially provided NVIDIA software, materials and services. Use of a pre-release version may result in unexpected results, such as loss of use or loss of content. You may use a pre-release features or version at Your risk and stop at Your convenience.

OWNERSHIP.

The NETQ, the modifications thereto and the respective intellectual property rights therein, are owned by NVIDIA or its licensors and are licensed to you as described in this Agreement. Except as expressly provided herein, no license or right is granted to You directly or indirectly by implication, estoppel or otherwise. You agree to cooperate with NVIDIA and provide reasonably requested information to verify Your compliance with these terms.

You may, but don’t have to, provide to NVIDIA suggestions, feature requests or other feedback regarding NETQ . For any feedback that You voluntarily provide, You hereby grant NVIDIA and its affiliates a perpetual, non-exclusive, worldwide, irrevocable license to use, reproduce, modify, license, sublicense (through multiple tiers of sublicensees), distribute (through multiple tiers of distributors) and otherwise commercialize it without the payment of any royalties or fees to You. NVIDIA will use the feedback at its choice.

UPDATES.

NVIDIA may change, discontinue, or deprecate any part, or all of NETQ or remove features, functionality content available. Your continued use of NETQ is deemed acceptance of such changes. In addition, You agree to receive automatic maintenance, updates and/or upgrades without notice and You permit NVIDIA to download and install them for You. NETQ may be temporarily unavailable, inaccessible, or slow when NVIDIA is performing maintenance or upgrades or at other times for reasons not within NVIDIA’s reasonable control.

AUTHORIZED USE.

You are responsible for maintaining Your login information secured for Your use only, and for the activities under Your account. You agree to immediately notify NVIDIA at: NETQSecurity@nvidia.com of any known or suspected security incidents and/or unauthorized use of Your account.

THIRD-PARTY SOFTWARE.

NETQ may come bundled with or otherwise include or be distributed with, third-party software licensed by NVIDIA supplier and/or open source software provided under open source license. Use of third-party software is subject to the third-party license terms, or else you may use the third-party software provided under this Agreement as-is with NETQ. Copyright to third party software is held by the copyright holders indicated in the third-party license terms. If and to the extent there is a conflict between the terms in this Agreement and the third-party license terms, the third-party terms control only to the extent necessary to resolve the conflict.

TERM AND TERMINATION.

This Agreement will continue to apply until terminated by either You or NVIDIA as described below.

Your right to access NETQ terminates automatically, without notice from NVIDIA, upon expiration of Your NETQ access period.

NVIDIA may, at any time, terminate this Agreement if: (a) You are in breach of the terms and conditions of this Agreement and such breach is not cured within thirty (30) days following notice from NVIDIA (or immediately if you violate NVIDIA’s intellectual property rights) or (b) if You commence or participate in any legal proceeding against NVIDIA with respect to NETQ or (c) if you fail to pay the applicable fees or (d) if NVIDIA reasonably suspects or determines that You and/or any Authorized User do not comply with any applicable laws and regulations.

Upon termination of this Agreement or suspension of Your access to NETQ, You agree to promptly discontinue using the NETQ. You may download Your data within fourteen (14) days and following this period, NVIDIA has no obligation to retain any data and may delete Your content and any other materials from NETQ at any time.

All provisions of this Agreement which by their nature should survive the termination of the Agreement will survive termination, including, without limitation, Sections 4, 6 and 10-14.

DATA COLLECTION

You hereby acknowledge and agree that NETQ may collect the following data for the following purposes:

Email address and organization name for login purpose.

Configuration and operating system data to properly configure, optimize and debug Your data center network.

Metrics, logs, settings, telemetry, configurations, performance to allow You, at Your choice, to monitor systems, applications and services on Your systems; and

Metrics, logs, settings, telemetry (such as WJH) and configurations to improve NVIDIA products and services to You and to other NVIDIA customers.

Usage data collected through cookies for assisting and guiding You how to use and navigate NETQ and provide help when required. In addition, NVIDIA uses cookies for analytics purposes to measure and improve the usage of NETQ by its users.

You should review the NVIDIA Privacy Policy, located at https://www.nvidia.com/en-us/about-nvidia/privacy-policy/, which explains NVIDIA’s policy for collecting and using personal data, as well as visit the NVIDIA Privacy Center, located at https://www.nvidia.com/en-us/privacy-center/.

NO WARRANTIES.

NETQ IS PROVIDED BY NVIDIA “AS IS”, “AS AVAILABLE” AND “WITH ALL FAULTS”. NVIDIA EXPRESSLY DISCLAIMS ALL WARRANTIES OF ANY KIND OR NATURE, WHETHER EXPRESS, IMPLIED OR STATUTORY, INCLUDING, BUT NOT LIMITED TO, ANY WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, NON-INFRINGEMENT. NO WARRANTY IS MADE ON THE BASIS OF TRADE USAGE, COURSE OF DEALING OR COURSE OF TRADE. WITHOUT LIMITING THE FOREGOING, NVIDIA DOES NOT WARRANT THAT ACCESS TO NETQ WILL BE UNINTERRUPTED; THAT NETQ WILL MEET YOUR REQUIREMENTS; THAT NETQ WILL BE AVAILABLE AT ANY PARTICULAR TIME OR LOCATION; THAT ANY DEFECTS OR ERRORS WILL BE CORRECTED; OR THAT ANY CERTAIN CONTENT WILL BE AVAILABLE.

LIMITATION OF LIABILITY.

TO THE MAXIMUM EXTENT PERMITTED BY LAW, NVIDIA AND ITS AFFILIATES SHALL NOT BE LIABLE FOR ANY SPECIAL, INCIDENTAL, PUNITIVE OR CONSEQUENTIAL DAMAGES, OR FOR ANY LOST PROFITS, LOSS OF USE, LOSS OF DATA OR LOSS OF GOODWILL, OR THE COSTS OF PROCURING SUBSTITUTE PRODUCTS, ARISING OUT OF OR IN CONNECTION WITH THESE TERMS OR THE USE OR THE PERFORMANCE OF NETQ, WHETHER SUCH LIABILITY ARISES FROM ANY CLAIM BASED UPON BREACH OF CONTRACT, BREACH OF WARRANTY, TORT (INCLUDING NEGLIGENCE), PRODUCT LIABILITY OR ANY OTHER CAUSE OF ACTION OR THEORY OF LIABILITY. IN NO EVENT WILL NVIDIA’S AND ITS AFFILIATES TOTAL CUMULATIVE LIABILITY UNDER OR ARISING OUT OF THIS AGREEMENT EXCEED US$10.00. THE NATURE OF THE LIABILITY OR THE NUMBER OF CLAIMS OR SUITS SHALL NOT ENLARGE OR EXTEND THIS LIMIT. THE FOREGOING LIMITATIONS SHALL APPLY REGARDLESS OF WHETHER NVIDIA OR ITS LICENSORS HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES AND REGARDLESS OF WHETHER ANY REMEDY FAILS ITS ESSENTIAL PURPOSE.

The exclusions and limitations of liability in this Agreement form an essential basis of the bargain between the parties, and, absent any such exclusions or limitations of liability, the terms, including the economic terms, would be substantially different.

GENERAL.

Assignment. This Agreement shall not be transferred or assigned including by merger, consolidation, dissolution, or operation of law without NVIDIA prior written approval. Any attempted assignment not approved by NVIDIA in writing shall be void and of no effect. NVIDIA may assign, delegate, or transfer this Agreement and its rights and obligations, and if to a non- affiliate You will be notified.

Audit. NVIDIA has the right to review whether the usage of NETQ is within the scope of this Agreement. Upon a written notice to You, NVIDIA shall be entitled to conduct an audit to ensure that there is no abuse or misuse of the License and that You comply with the terms of this Agreement.

Governing Law. This Agreement will be governed in all respects by the laws of the United States and of the State of Delaware as those laws are applied to contracts entered into and performed entirely within Delaware, by Delaware residents, without regard to the conflicts of laws principles. The United Nations Convention on Contracts for the International Sale of Goods is specifically disclaimed. You agree to all terms of this Agreement in the English language. The state or federal courts residing in Santa Clara County, California shall have exclusive jurisdiction over any dispute or claim arising out of this Agreement. Notwithstanding this, You agree that NVIDIA shall still be allowed to apply for injunctive remedies or an equivalent type of urgent legal relief in any jurisdiction.

Severability. If any court of competent jurisdiction determines that any provision of this Agreement is illegal, invalid or unenforceable, such provision will be construed as limited to the extent necessary to be consistent with and fully enforceable under the law and the remaining provisions will remain in full force and effect. Unless otherwise specified, remedies are cumulative.

Relationship of the Parties. Each party acknowledges and agrees that the other is an independent contractor in the performance of this Agreement.

US Government Restricted Rights. NETQ has been developed entirely at private expense and is “commercial items” consisting of “commercial computer software” and “commercial computer software documentation” provided with RESTRICTED RIGHTS. Use, duplication or disclosure by the U.S. Government or a U.S. Government subcontractor is subject to the restrictions in this Agreement pursuant to DFARS 227.7202-3(a) or as set forth in subparagraphs (b)(1) and (2) of the Commercial Computer Software - Restricted Rights clause at FAR 52.227-19, as applicable. Contractor/manufacturer is NVIDIA, 2788 San Tomas Expressway, Santa Clara, CA 95051.

Export. NETQ is subject to United States export laws and regulations. You agree that You will not ship, transfer or export NETQ into any country, or use NETQ in any manner, prohibited by the United States Bureau of Industry and Security or economic sanctions regulations administered by the U.S. Department of Treasury’s Office of Foreign Assets Control (OFAC), or any applicable export laws, restrictions or regulations. These laws include restrictions on destinations, end users and end use. By accepting this Agreement, You confirm that You are not currently residing in a country embargoed by the U.S. and that You are not otherwise prohibited from receiving access to or using NETQ.

Notices Any notice delivered by NVIDIA to You under this Agreement will be delivered via mail, email, or fax. You agree that any notices that NVIDIA sends You electronically will satisfy any legal communication requirements. Please direct Your legal notices or other correspondence to NVIDIA Corporation, 2788 San Tomas Expressway, Santa Clara, California 95051, United States of America, Attention: Legal Department.

Entire Agreement. This Agreement and any exhibits incorporated into this Agreement constitute the entire agreement of the parties with respect to the subject matter of this Agreement and supersede all prior negotiations, conversations, or discussions between the parties relating to this subject matter. Any additional and/or conflicting terms on documents issued by You are null, void, and invalid. Any amendment or waiver under this Agreement shall be in writing and signed by representatives of both parties.

(v. December 1, 2021)