VyOS Subscription Agreement
Updated July 24, 2023
This VyOS Subscription Agreement (hereinafter referred to as the “Agreement”) constitutes a legal and binding agreement between Us, including Our subsidiaries, affiliates and contractors acting on Our behalf and the user/subscriber and his heirs, agents, successors, assigns and - for the purpose of Global subscription - his Affiliates and Subsidiaries and Branch Offices (hereinafter singularly and collectively referred to as the “Customer”, “You” or “Your”), detailed in Our Quotation sent to you or Our invoice or Our Business Partner’s order or invoice, that purchase, instal or use VyOS and any Our Services. The Effective Date of this Agreement is the earliest of the start date of services stated in Our invoice, previous acceptance of this Agreement (or Our Business Partner’s order or/and invoice, previous acceptance of this Agreement) or the date that Customer has access and is able to use Our products or services. In addition to any terms and conditions related to Your use of the Service pursuant to any agreement by and between You and Our Business Partner, this Agreement governs all access to and use by the Customer of the Software and the Services and addresses unique commercial considerations that apply to VyOS, the Services and our subscription business model, during the Subscription Term.
IMPORTANT NOTICE: Please read this agreement carefully before purchasing and/or using the Software or the Services from Us or from Our Business Partner. In addition to any terms and conditions related to Your use of the Software and the Services pursuant to any agreement by and between You and Our Business Partner, it sets out the terms and conditions of which, pursuant to the Quotation, invoice or Our Business Partner’s order or invoice, the Customer acknowledges that it has read and understood before entering into a binding agreement with Us. An individual or/and entity, acting on behalf of an entity represents that he or she or it has the authority to enter into this Agreement on behalf of that entity, any person or entity that access to or uses the Software or the Services and any person or entity (e.g., system integrator, consultant or contractor) that access to or uses the Software and the Services on another person’s or entity’s behalf. If the Customer does not accept the terms of this Agreement, then he must not purchase, install and use the Software and the Services.
1.1 “We, Our, Us” means VyOS Contracting Entity defined in Section 11.8.
“Customer”, “You”, “Licensee”, “Your” - user of VyOS and his heirs, agents, successors, assigns and - for the purpose of Global subscription - his Affiliates and Subsidiaries and Branch Offices (location(s) of a legal entity, other than the main office, where business is conducted).
1.2 “VyOS” or “Software” means VyOS software provided by Us (or authorized services provider or business partner) and consisting of VyOS software application (exclusively or along with any third-party software included therein or therewith) that includes or refers to this Agreement and any related documentation (including, without limitation, user and technical documentation, further explanatory written materials related to the Software, etc.), services (including, without limitation, SaaS, internet-based service, etc.), tool, application, component, object code, source code, appearance (including, without limitation, images, designs, fonts, etc.), structure as well as any modification and update thereof, regardless of the delivery mechanism.
1.3 “EULA” means the End User License Agreement that governs the installation and use of VyOS.
1.4 “Services” means software support services and any other services provided by Us, or through Our Business Partner, on a subscription basis.
1.5 “Quotation” means the document We provide You to describe the specific Software and Services, Subscription(s) and associated fees that You are purchasing under this Agreement. Quotation includes the specific Software and/or Support descriptions, Subscription, Subscription Term, associated fees and payment terms. By confirming, accepting or signing the Quotation, You agree to be bound by the terms of this Agreement.
1.6 “Purchase Order” means the document You can use to place an order for Software and Services, our Subscription(s), with Us under this Agreement. Purchase Orders include the specific Software and Support descriptions, Subscription, Subscription Term and associated fees.
1.7 “Authorized Users” means employees or individual contractors to whom, pursuant to this Agreement, the Customer has granted a right to access and use the Software with his credentials, provided that such access shall be for his sole benefit and in full compliance with this Agreement and Our EULA. All Authorized Users are bound by the terms of this Agreement.
1.8 “Cloud Provider” means authorized hosting partner’s cloud marketplace platform, a company that delivers cloud computing based services, resources and solutions to businesses and/or offers solutions via the cloud marketplace.
1.9 “Business Partner” shall mean Our authorized sales agent, partner, Cloud Provider, reseller or distributor of the Software and Services authorized to sell our Subscriptions.
In instances where Customer purchases through a Business Partner, final prices and terms and conditions of sale will be as agreed between Customer and the Business Partner from which Customer makes such purchases; however, the terms set forth in Our EULA are applicable to Customer’s use and the performance of the Software. Customer acknowledges that: (a) We may share information with the Business Partner related to Customer’s use and consumption of VyOS, and vice versa, for account management and billing purposes; (b) the termination provisions below will also apply if Customer’s Business Partner fails to pay applicable fees to Us; and (c) Business Partner is not authorized to make any changes to this Agreement, our EULA or otherwise authorized to make any warranties, representations, promises or commitments on Our behalf or in any way concerning VyOS.
«Business Partner’s order» means the ordering document(s), issued during Your purchasing process by Our Business Partner in a way and manner as defined by Our Business Partner. Business Partner’s order may describe specific Software and Services, Subscription(s), associated fees, payment terms, and shall be subject to the terms of this Agreement and EULA.
1.10 “License Material” means Our subscriber portal, Our download portal, Our monitoring services, Our controller appliance hosting and any other of Our solutions, that are available to You while using VyOS and our Services. We reserve the right not to provide some part of the License Material as well as the right to replace Our License Material with any third-party solutions and vice versa.
1.11 “Law” means, in general in this Agreement, any local, state, national, and international law, statute, rule, ordinance or regulation.
1.12 “Data” means, in general in this Agreement, any information, text, software, pictures, messages or any other data or material, however named.
1.13 An "Affiliate" is a legal entity with a Person, possessing 20 to 50% ownership of an Affiliate. Legal entity is "affiliated" with another legal entity if both of them are owned in whole or in part (but not less than 20% ownership) by the same Person.
A “Subsidiary” means a legal entity that is controlled directly or indirectly by another Person.
A Person is considered to “control” another Person if: (i) the first Person beneficially owns or directly or indirectly exercises control or direction over securities of the second Person carrying votes which, if exercised, would entitle the first Person to elect a majority of the directors of the second Person, unless that first Person holds the voting securities only to secure an obligation, or (ii) the second Person is a partnership, other than a limited partnership, and the first Person holds more than 50% of the interests of the partnership, or (iii) the second Person is a limited partnership, and the general partner of the limited partnership is the first Person.
1.14 “Person” shall mean an individual or legal entity, including corporation, partnership, limited liability company, association, company, joint venture, estate, trust, association, other entity or organization of any kind or nature.
1.15 “Branch Office” shall mean a location of a legal entity, other than the main office, where business is conducted.
2. Subscription, Delivery and Support.
2.1 Subscription and Access. You can lawfully access and/or use the Software and the Services, and Our License Material by way of subscriptions to Us or from any of Our Cloud Providers or any of Our Business Partners. In particular, You may order and purchase any of Our multiple subscription types: Software Access Subscriptions and Software Support Subscriptions depending on your requirements (hereinafter “Subscription” or “Subscriptions”) and stated in the Quotation or Our invoice, or in Our Business Partner’s order or invoice.
Software Access Subscription gives You access to Our LTS release and its prebuilt images for virtual and hardware platforms, comprising hand-tested, ready to use images, and you will receive feature/ fix back ports.
Software Support Subscriptions give You access to Our LTS release and Support Services. Support Services are available in different tiers and prices.
Cloud Provider Subscriptions give You access to Our prebuilt images for cloud marketplaces provided by Our Cloud Providers.
Non-Subscription Software Product means new codes, untested and ready to use images available free of charge in Rolling release that You may access via VyOS website that do not require a subscription and do not require paying a subscription fee to Us.
2.2 Ordering. You may order the Software and the Services, Our Subscription(s) directly from Us by confirming and signing Our Quotation after which you may submit an standard Purchase Order. Any of Our Subscription shall be governed by the Quotation, Our EULA, this Agreement, and any other document mentioned as a reference and included herein if applicable. You may order the Software and the Services, Our Subscription(s) from a Business Partner following its ordering procedure and according to its terms and conditions.
2.3 Delivery. Upon acceptance of a Subscription, by confirming or signing the Quotation or our Business Partner’s order or invoice, or confirmation of payment, the Software shall be deemed delivered on the date that We make such Software available to You with a direct link. You will create Your own account operating by means of e-mail address indicated by You. Such an account will ensure Your access to the Software and Services acquired by You and other notices and communication sent to You by Us in relation to this Agreement.
2.4 Support Services. Support Services mean the delivery of problem resolution and customer support activities by Our employees and contractors, or through Our Business Partner. You may be entitled to use, receive, access or consume Our Support Services pursuant to a Quotation or Our invoice, or Our Business Partner’s order or invoice as described in the Software Support Subscription and the SLA Agreement, if any (please, see Exhibit A if you have ordered a Software Support Subscription). Based on Your Subscription, We provide Software Support Services in different tiers and it’s priced per HA pair and the response time, available support channels and actions to fix the problem varies with different tiers. Support Services may be temporarily limited, interrupted or curtailed due to maintenance, repair, modifications, upgrades or relocation.
We may extend support to people even if the compatibility problem is caused by a Business Partner, by trying to suggest work around and help you in gathering diagnostic information and communicating with the Business Partner.
We may provide support and other services for unsupported configurations and/or subscriptions at our discretion but are not obliged to.
2.5 Availability. We will use commercially reasonable efforts to ensure the availability of the Software and the Services for Our customers. Regardless, You acknowledge and agree that We have no control or liability over the availability of the Software and the Services on a continuous or uninterrupted basis, so that from time to time the Software may be inaccessible or inoperable, including, without limitation: (i) equipment malfunctions, periodic maintenance procedures or repairs; (ii) causes beyond Our reasonable control or that are not reasonably foreseeable (including, without limitation, threat to security, interruption or failure of telecommunication or digital transmission links, hostile network attacks, network congestion or other failures); (iii) limitations due to Your particular device or hardware; (iv) Your violation of any relevant provision of this Agreement or other applicable licenses. Any unavailability of the Software and the Services under this Section shall not excuse You from Your obligation to make timely payment(s).
2.6 Language. The Software, the official documentation, and Services including but not limited to Support Services are provided by Us in English. Our Business Partners may provide support in other languages.
Subject to the following terms, We grant to You a perpetual, worldwide license to the Software (most of which includes multiple software components) pursuant to different open sourced and public licenses. The license agreement for each software component is located in the software component's source code and permits you to run, copy, modify, and redistribute the software component (subject to certain obligations in some cases), both in source code and binary code forms, with the exception of the images identified in Section 7 below. You shall either agree to the terms of each applicable public license or You must not install/use those components or exercise such licensed rights. You shall also agree to the terms of Our EULA or You must not install/use the Software. This Agreement, and Our EULA, do not limit your rights under, or grant you rights that supersede, the license terms of any particular component.
You are also granted a limited, personal, worldwide, non-assignable, non-sublicensable, non-transferable and non-exclusive license to access and use the License Material when you purchase Our Subscriptions solely on, or in direct reference to the Software and Services, and during the Subscription Term, only in connection with Your own internal use, and You will not share access to them with any third parties.
This Agreement will also govern any Software’s upgrades or updates provided by Us, or through Our Business Partner, that replace and/or supplement the original software, unless such upgrades are accompanied by a separate agreement, in which case the terms of that agreement will govern.
3.2 Scope of the licenses.
You are permitted to download, install and use the Software, across all devices and platforms previously agreed with Us, as indicated in the Subscription you have subscribed to and the Quotation or Our invoice or Our Business Partner’s order or invoice, during the Subscription Term. In case the Software is hosted by Us or by a Cloud Provider or Business Partner and accessed by You remotely, You are permitted to use the images on the specified number of network devices and platforms specified in the Quotation or Our invoice or Our Business Partner’s order or invoice, and You may be entitled to receive the Support Services on those, based on the type of the Subscription, SLA and the Quotation or Our invoice or Our Business Partner’s order or invoice, during the Subscription Term.
Any additional platforms fall outside this Agreement and involve additional costs. Should other platforms be required during the Subscription Term then they can be added at a prorated cost to the end of the Subscription Term.
You can build your own images using Our code and distribute them subject to the applicable license or licenses as set forth herein, they shall not appear to have been made by and distributed by Us.
3.3 Duration of the license. License to License Material granted on a subscription basis expires at the end of the applicable Subscription Term set forth in the Quotation or Our invoice or Our Business Partner’s order or invoice, unless renewed.
3.4 Reservation of rights. We expressly reserve any and all rights not expressly granted to You in this Agreement. For clarity, this Agreement is not intended to change or restrict the terms of any public license, and We do not seek to restrict, or receive compensation for, copying or redistribution of publicly licensed software code which is otherwise freely redistributable to third parties in accordance with licensing terms of such software (and not otherwise restricted by any applicable law or regulation). Nothing in this Agreement will limit Us from providing software, materials, or services for itself or other clients, irrespective of the possible similarity of such software, materials or services to those that might be delivered to you.
4. Your responsibilities
4.1 General responsibilities. You are entirely responsible for the use of the Software and/or Services and, to such purpose, You shall not use, encourage, promote, facilitate, instruct (or induce others to do the foregoing on) the Software and the Services for any activity that violates any applicable Law, this Agreement, the EULA, or for any other illegal, fraudulent, harmful, or offensive purpose.
Please review the prohibited use of the Software set forth in Our EULA.
Your responsibilities shall include the prohibition of sharing access to Our subscriber portal, trademarked material and non-free logos.
4.2 Account security. When you get a Subscription, You will be assigned a username and a password for an account, of which You are entirely responsible for safeguarding and maintaining the confidentiality thereof. You may not access or create multiple accounts in a manner that is intended to avoid, or has the effect of avoiding, payment of Fees or circumventing thresholds or unit limitations associated with your Account or otherwise in a manner intended to violate the Agreement. You acknowledge and accept that We will assume that any person using the Software and the Services with Your username and password, either is You or is authorized to act for You. You further undertake not to share the account password to any third party, other than Your Authorized Users, or let anyone else access the Software and Services, or do anything else that might jeopardize the security thereof. You agree to make every reasonable effort to prevent unauthorized third parties from accessing the Software and Services and agree to notify Us immediately of any unauthorized use thereof.
You shall be responsible as well as for all activities that occur under Your usernames, passwords or accounts or as a result of any Authorized Users’ access to the Software; identify and authenticate all the Authorized Users, approve their access to the Software, control against unauthorized access by the same Authorized Users, and maintain the confidentiality of usernames, passwords and account information.
4.3 Data lawfulness. You undertake to have all the interest and title in and to the Data transmitted, stored, displayed, distributed or otherwise made available through the Software and/or the Services, and that You are solely responsible for the accuracy, quality, integrity, legality, reliability, and appropriateness thereof. Without limiting the foregoing, You warrant and represent that the Data is fully compliant with any applicable Law. In no way whatsoever We will be responsible for your Data.
4.4 Backup. You are encouraged to archive your Data regularly and frequently. You shall bear full risk of loss and damage of Your Data.
4.5 Sanctions compliance. You undertake to follow that You and any Person, allowed to use the Software and the Services by You, is not a subject or the target of sanctions, embargoes and restrictive measures (“Sanctions”), administered by the Office of Foreign Assets Control of the U.S. Department of the Treasury or the U.S. Department of State, the United Nations Security Council, the European Union, Her Majesty’s Treasury of the United Kingdom, Department of Foreign Affairs and Trade of the Australian Federal Government, or other relevant sanctions authority (“Sanctioning Authorities”).
You undertake to comply with all the abovementioned Sanctions in all possible ways to keep Us harmless and oblige to immediately terminate relations with any person that becomes (or is) subject or target of any of the abovementioned Sanctions, or assists anybody to evade or violate the above mentioned Sanctions.
4.6 Indemnification. To any third party’s claim arising out of a violation of Your obligations under this Section, Sect. 10 (Indemnification) below shall apply, in addition to any other rights or remedies afforded to Us under this Agreement and/or as per the applicable Law.
5.1 Price. You shall pay all fees specified in all invoices for Software and Services, associated to the Subscription(s), which will be agreed in the Quotation or Ous Business Partner’s order. Fees are based on Software and Services, associated to the Subscription(s), purchased and not actual usage (hereinafter, the “Fee”). Our orientative prices are listed on Our website.
Prices and payment terms applicable to the Software and Services purchased from a Business Partner are set forth and governed by the Business Partner’s ordering procedure and its terms and conditions.
We may also provide “Managed Software Subscriptions” with unique pricing customized to your requirements included in your customized proposal and quotation. For more information about Our prices, please contact us at: [email protected].
We shall have the right to change the prices at any time. Prices shall be effective as of the date they are posted on the Website. Notwithstanding the foregoing, the changes of the prices shall not affect Your current Fee. Any renewal of this Agreement will be at Our list prices in effect ninety (90) days prior to renewal.
5.2 Invoicing. Unless otherwise specified on the Quotation or Our Business Partner’s order, the Fee shall be invoiced upon execution of the applicable Quotation or Our Business Partner’s order and when renewal is proceeded. Customer agrees to provide Us with accurate and complete billing information (including legal name, address, telephone number, and billing or credit information).
If during the term of this Agreement, your use exceeds the Subscription purchased/paid by You and identified in the Quotation, Our invoice or Our Business Partner’s order or invoice, You must report Us the matter about Your additional usage. We (or Our Business Partner) will invoice You for the same and You agree to pay for the additional use in accordance with this Section.
5.3 Payment of Fees. Unless otherwise stated on the Quotation, or in the invoice from Us or agreed with Us, all invoices shall be paid within thirty (30) days of the date of invoice.
If an invoice is disputed, You will provide Us with written notice describing the basis for the dispute prior to starting using Software, Services, but at least fifteen (15) days before the due date. Starting using Software and Services without disputing invoice deprives the Customer of the right to dispute such an invoice, except correcting typos and errors.
You must pay the Fee without withholding or deduction. For any amounts payable by You hereunder that remain unpaid after the due date of an invoice, You shall pay upon demand interest equal to one and one-half percent (1.5%) per month or the highest legal rate, whichever is less, from the due date until such amount is paid.
All Fees and other amounts paid under the Agreement are non-refundable, except as expressly set forth in our Refund Policy.
5.4 Taxes. The Fee(s) set forth in any Quotation are exclusive of, and You are liable for and will pay, all taxes, including any value added tax and goods and services tax or any similar tax imposed on or measured by this Agreement. If You are required to withhold or deduct any Taxes from the Fee, then You agree to increase the amount payable to Us by the amount of such Taxes so that We receive the full amount of the Fee. Each Party is responsible for its own withholding taxes, employment taxes and other amounts required to be withheld or paid in connection with its personnel.
5.5 Purchases through Business Partners. In the event You purchase the subscription through a Our Business Partner, the terms and conditions of this Agreement shall apply and supersede any other agreement except for any terms and conditions related to pricing, ordering, delivery, payment or Taxes. Such terms and conditions shall be negotiated solely by and between You and such Business Partner. In the event You had not paid or cease to pay the Business Partner, or terminate Your agreement with a Business Partner, or Business Partner fails to payUs the applicable fees of your Software and/or Services, We shall have the right to terminate Your access to the Software and Services unless You and We have agreed otherwise in writing.
5.6. Special Offer. We reserve the right to offer Software Access Subscription free of charge or for discounted price to eligible organizations included in any of the categories below: (i) schools, colleges, academies and universities; (ii) emergency services providers; (iii) renewable energy and recycling organizations and facilities; (iv) startups; (v) non-profit organizations; (vi) government departments, agencies, entities, and organizations; (vii) laboratories. These categories may change from time to time, please check with Us which ones are available prior Your application.
Such offer may be done by Us solely at Our discretion after Your application and Our review of Your documentation, and any other information We may need and request to You to verify and confirm that You meet Our eligibility requirements to one of the categories above. Once approved and accepted, We reserve the right to change the scope , term and conditions of Our Software Access Subscription, at any time without a prior notice.
If your application is not accepted, We reserve the right to offer purchase at our regular price or prohibit You from using Our Software and Services.
In no event Software Support Subscription shall be offered free of charge.
Your right to use a free of charge or discounted Software Access Subscription may be terminated by Us, at any time, in the event You provided incorrect documentation or/and information or/and You no longer meet Our requirement to the category You applied for. You shall inform Us on this event immediately as it happens.
You shall provide Us with feedback on Our Software at Our request in way, form and manner as required. Failure to do so may result in termination of Your right to use Software Access Subscription at Our discretion.
6. Term and termination
6.1 Subscription Term. Unless otherwise agreed in writing, the Agreement begins on the Effective Date and continues until it is terminated as set forth below. Subscription Term means the period of time Software and/or Services, the Subscription, is being purchased by You and delivered by Us to You. Subscription Term is typically a one (1) year period, unless another period of time set forth in the applicable Quotation, our invoice or Our Business Partner’s order or invoice, from the Effective Date and for which a Subscription is valid. Subscriptions automatically renew for successive terms of the same duration as the original Subscription Term, unless otherwise stated in the Quotation, our invoice or Our Business Partner’s order or invoice, unless either party gives written notice to the other party of its intention not to renew and cancel at least sixty (60) days before the expiration of the applicable Subscription Term. Any Software and Services that you order must be consumed during the applicable Subscription Term and any unused Software and Services will expire.
6.2 Termination. We are entitled to terminate this Agreement (in whole or with respect to any Quotation, order or invoice obtained from Us or a Business Partner) if You fail to pay amounts when due or otherwise materially breaches this Agreement and fail to remedy the breach within ten (10) days from the receipt of a notification sent in writing or electronically. In such a case, You must pay all related damages, taxes and expenses. In addition, if You breach the Agreement (including with respect to payment of Fees, compliance with Sanctions) We may at Our option and without limiting other remedies either provide Services with delay or/and, suspend any Software, Services (until the breach is remedied) or/and terminate this Agreement immediately as well as providing Software, Services (if You fail to remedy the breach in above defined period of time).
Either party may terminate this Agreement by notice to the other party if the other party becomes the subject of a petition in bankruptcy or any other proceeding relating to insolvency, receivership, liquidation or assignment for the benefit of creditors.
This Agreement shall remain in effect until any Subscription cancellation and expiration of the Subscription Term with non renewal.
6.3 No access after termination. Upon the termination of this Agreement, You no longer have rights to access the Software and Services via Our subscriber portal and your account(s) and use any version of the Software released after your subscription expiration date. If you have copies of the Software obtained when You still had an active subscription, you can keep using them indefinitely as long as you comply with this Agreement and our EULA, in particular - with Section 7 below and provided this is not intended to interfere with any rights you may have from other public and open source licenses. We may permanently delete your accounts in Our servers and data associated with those accounts, if any.
If the Agreement is terminated in whole, all outstanding Quotations or Our Business Partner’s orders will terminate. If this Agreement, any Quotation, or Our Business Partner’s order is terminated, You agree to pay for all items specified in the applicable Quotation or invoice or Our Business Partner’s order or invoice, that You used or deployed or that were provided by Us up to the date of termination and that We will not issue any refunds for any Fee paid.
6.4 Obligations surviving termination. Provisions that survive termination or expiration of this Agreement are those relating to intellectual property, limitation of liability, indemnification, payment and others which by their nature are intended to survive.
7. Intellectual Property
7.1 Our ownership. The Software and each of their components are owned by Us and other licensors and are protected under copyright law and other laws as applicable. Title to the Software and any component and systems, or to any copy or modification shall remain with Us and other licensors, subject to the applicable license. The “VyOS” trademark, the individual Software marks, and the “VyOS” logo are trademarks or registered trademarks in the US, EU and other countries. Artwork files that feature the VyOS logo and name, including but not limited to boot splash images and user interface elements, are Our property, distributed on the "all rights reserved" basis. You cannot redistribute those files separately or as part of Software without an express permission from the copyright holder.
We also hold and retain all and any title and interest in and to the access to the License Material. This Agreement does not permit you to distribute the Software or its components using VyOS trademarks and logo, regardless of whether the Software has been modified. You may make a commercial redistribution of the Software only if (a) permitted under a separate written agreement with Us, authorizing such commercial redistribution or (b) you remove and replace all Our occurrences of and VyOS trademarks and logos. Modifications to the software may corrupt the Software. Subject to the foregoing, We, for Us and on behalf of Our licensors, hereby reserves all intellectual property rights in the Software and License Material, except for the rights expressly granted in this Agreement. By accepting this Agreement You commit not to register or request registration of any commercial name, domain name, email, trademark, symbol or distinctive; sign, with similar characteristics, color, typography, style or appearance or that includes the word “VyOS” or/and VyOS logo.
7.2 Third-party components, contributions and software programs.
We do not assert any Intellectual Property Rights over: (i) components created by third parties that may be taken from upstream sources in binary form compiled by Us from the source code; (ii) source code and documentation of the Software, which is developed collaboratively and is open to contributions by parties not affiliated with Us (to such purpose, contributors give Us non-exclusive rights according to the licenses of the Software and documentation) ; (iii) third parties software or programs included therein or therewith the Software.
You understand and acknowledge that We may distribute third-party software programs with the Software. These third-party software programs are not required to run the Software and are subject to their own license terms. The license terms accompany the third-party software programs. If You do not agree to abide by the applicable license terms for the third-party software programs, then you may not install them. If you wish to install the third-party software programs on more than one system or transfer the third-party software programs to another party, then you must contact the licensor of the applicable third-party software programs to secure such rights.
7.3 Your obligations for Our intellectual property rights preservation.
Unless You have our explicit written authorization, You must not permit others to access to Our Licensed Material, distribute or modify any material that includes VyOS trademarks and copyrighted artwork including but not limited to VyOS logos to make them appear as if they are from Us.
7.4 Customer Information. Customer Information means any data, information, software or other materials that You provide Us Under the Agreement. If You provide Customer Information in connection with Your use of or access to the Software and Services, You agree that We may use such information in connection with providing the Software and the Services. You agree that Your provision (and Our use) of Customer Information under this Agreement does not require any additional consents or licenses, will be in compliance with applicable Law, and will not violate any intellectual property, proprietary, privacy, or other right of any third party. You retain all other rights in and to Customer Information.
7.5 Your feedback and suggestions. We may freely use Your feedback, suggestions, or ideas in any way, including in future modifications of the Software or of any other related product, service, advertising or marketing material. To such a purpose, You grant Us a perpetual, worldwide, fully transferable, sub-licensable, irrevocable, free of charge, royalty-free license to use the feedback You provide to Us in any way. Notwithstanding the preceding, We will not sell, publish or share Your feedback in a way that could identify You without Your explicit permission.
7.6 Use of Your name, trademarks or logos. You agree that We may use or reference your site’s name or logo on the VyOsS website as part of the customer list, or in connection with any marketing materials or external communications related to Our Software and Services. Please email [email protected] if you wish to provide any specific requirements on use, or to opt-out of having your site or logo included in any of the foregoing.
8. Privacy, Data Protection and Confidentiality
8.2 Our right to access Personal Data. To the maximum extent permitted by the applicable Law, We expressly reserve the right to access, read, preserve, and disclose any Personal Data as We may reasonably believe necessary to: (i) enforce this Agreement (including investigation of potential violations thereof) or Our Intellectual Property Rights; (ii) detect, prevent, or otherwise address fraud, anti-piracy, security or technical issues (including, without limitation, verify a valid registration, the number of instances the Software launches, the device IP address, and/or the version of the Software, etc.).
8.3 Confidentiality. Customer and We agree to maintain the confidentiality of the proprietary information received by the other party including non-public technical and business information for a period of two (2) years after the termination of this Agreement. Our pricing and product roadmap are Our confidential information. This section shall not apply to any publicly available or independently developed information. Each Party is entitled to disclose the information, received under this paragraph, notwithstanding the limitations set forth herein, if it is required to do so by applicable law, regulation, court order or bank request, but, where legally permissible, will provide advance notice to the Party, that provided the information to enable such Party to seek a protective order or other similar protection if feasible.
9. Warranty and Liability
9.1 Limited warranty and Disclaimer. THE SOFTWARE AND THE SERVICES ARE PROVIDED AND LICENSED “AS IS”, “AS AVAILABLE” AND “WITH ALL FAULTS”, WITHOUT WARRANTY OF ANY KIND. TO THE MAXIMUM EXTENT PERMITTED BY THE APPLICABLE LAW, WE DISCLAIM ANY AND ALL WARRANTIES, WHETHER EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION, ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT, AND ANY WARRANTY THAT MAY ARISE OUT OF COURSE OF DEALING, COURSE OF PERFORMANCE, USAGE OR TRADE PRACTICE WITH RESPECT TO THE SOFTWARE, ITS DOCUMENTATION, SUPPORT SERVICES OR OTHER SERVICES RELATED TO THE SOFTWARE (INCLUDING THE PROVISION OF OR FAILURE TO PROVIDE ANY SUCH SERVICES). YOU BEAR THE ENTIRE RISK AS TO SELECTING THE SOFTWARE AND THE SERVICES FOR YOUR PURPOSES AND AS TO THE QUALITY AND PERFORMANCE OF THE SOFTWARE AND THE SERVICES. TO THE FULLEST EXTENT PERMITTED OR AUTHORIZED BY LAW AND WITHOUT LIMITATION OF THE FOREGOING, WE DO NOT WARRANT THAT THE SOFTWARE AND THE SERVICES WILL MEET YOUR REQUIREMENTS, ACHIEVE ANY INTENDED RESULTS, BE COMPATIBLE OR WORK WITH ANY OTHER SOFTWARE, APPLICATIONS, SYSTEMS OR SERVICES, BE AVAILABLE OR OPERATE WITHOUT INTERRUPTION, MEET ANY PERFORMANCE OR RELIABILITY STANDARDS OR THAT THE USE OF THE SOFTWARE WILL BE UNINTERRUPTED OR ERROR-FREE OR THAT ANY ERRORS OR DEFECTS CAN OR WILL BE CORRECTED. THE FOREGOING EXCLUSIONS AND DISCLAIMERS ARE AN ESSENTIAL PART OF THIS AGREEMENT. THIS WARRANTY EXTENDS ONLY TO THE PARTY USING AND SUBSCRIBING TO THE SOFTWARE AND SERVICES FROM US OR FROM OUR BUSINESS PARTNER.
9.2 Disclaimer of liability. TO THE MAXIMUM EXTENT PERMITTED UNDER APPLICABLE LAW, IN NO EVENT SHALL WE BE LIABLE FOR ANY DIRECT, INDIRECT, INCIDENTAL, SPECIAL, EXEMPLARY, PUNITIVE, OR CONSEQUENTIAL DAMAGES (INCLUDING, BUT NOT LIMITED TO, PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES, COMPUTER FAILURE OR MALFUNCTION, LOSS OF DATA OR PROFITS, BUSINESS INTERRUPTION, ETC.) HOWEVER CAUSED AND ON ANY THEORY OF LIABILITY, WHETHER IN CONTRACT, STRICT LIABILITY, OR TORT (INCLUDING NEGLIGENCE OR OTHERWISE) ARISING IN ANY WAY OUT OF THE USE OF THE SOFTWARE OR INABILITY TO USE THE SOFTWARE, EVEN IF WE ARE AWARE OF OR HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGE. IN ANY CASE, WE ARE NOT LIABLE FOR THE ACTS OR OMISSIONS OF OUR EMPLOYEES, CONTRACTORS, VENDORS, BUSINESS PARTNER OR OTHER SERVICE PROVIDER. THE FOREGOING EXCLUSIONS AND DISCLAIMERS ARE AN ESSENTIAL PART OF THIS AGREEMENT.
9.3 Remedies. EXCEPT FOR CLAIMS WITH RESPECT TO FRAUD, DEATH OR PERSONAL INJURY, IN NO EVENT – TO THE MAXIMUM EXTENT PERMITTED BY THE APPLICABLE LAW – OUR LIABILITY SHALL IN THE AGGREGATE EXCEED THE LESSER OF: (I) FIVE HUNDRED (500) U.S. DOLLARS (USD); (II) THE FEES EFFECTIVELY PAID BY YOU FOR THE RELEVANT SOFTWARE, DURING THE SIX (6) MONTHS PERIOD PRECEDING THE DATE ON WHICH THE CLAIM AROSE.
Some jurisdictions do not allow certain limitations of warranty or liability, therefore some or all of the limitations above provided may not apply to You. In such case, the limitations provided herein shall be applicable to You to the extent permitted by the applicable Law.
10.1 Indemnification. You shall indemnify and hold Us harmless from and against all damages, losses, and expenses of any kind (including reasonable legal fees and costs) arising by any claim made by any third party (including, without limitation, any agency, public administrations, entities, etc.) against Us in connection with any of You and/or your Authorized Users: (i) violation or breach of any term of this Agreement; (ii) violation of any applicable Law, whether or not referenced herein; (iii) violation of any rights of any third party; or (iv) use or misuse of the Software and/or the Services.
10.2 Remedies. You expressly agree and acknowledge that any violation of Your obligations pursuant to this Agreement may cause Us irreparable harm and damage, which may not be recovered at law. Therefore, You agree that Our remedies for breach of this Agreement may be in equity by way of injunctive relief, as well and any other relief available, whether in Law or in equity.
11.1 Discontinuation policy. You expressly acknowledge and accept that the Software is subject to Our discontinuation policy and, therefore, We reserve the right – without Our liability in such respect towards You or any other third party – to discontinue any Software’s feature, content or service (including, without limitation, access to technical support, access to third party software program or component, etc.), in accordance with such discontinuation policy. The preceding applies also to any third party software program or component, which is subject to such third party’s discontinuation policy, without Our liability towards You or any other third party in case any updates result in an unavailability, deficiency or incompatibility of any pre-existing third party software program or component,with the updated Software. In case the Software offers services that require a connection to Our servers (including internet-based services), such services may expire.
11.2 No advice. We don’t give any professional advice, as We are not in the business of providing legal, financial, accounting, healthcare, real estate or any other professional service or advice. You should avail of the services of a competent professional if you need this type of assistance.
11.3 Assignment. You are not allowed to transfer or assign this Agreement (including the Quotation) or any rights hereunder, unless with Our previous written consent. Conversely, We may transfer, assign, sublicense or delegate the Agreement (including the Quotation) or any portions thereof, without restriction.
11.4 Independent entities. We are independent counterparties, so no partnership, joint venture, or agency relationship exists between Us and You. You and Us are each responsible for paying their and our own employees, respectively, including employment related taxes and insurance. For the purposes of this Agreement, We shall not be considered subcontractors. We may subcontract Services to third parties and affiliates as long as (a) they agree to protect Confidential Information and (b) We remain responsible to the Customer for performance of its obligations.
11.5 Force majeure, exceptional cases. We shall not be responsible for any failure to perform due to unforeseen circumstances or to causes beyond Our reasonable control, including but not limited to acts of God, war, riot, embargoes, acts of civil or military authorities, fire, floods, accidents, strikes, lockouts, or shortages of transportation, facilities, fuel, energy, labor or materials. In the event of any such delay, We will be excused from such performance to the extent it is delayed or prevented by such cause.
In exceptional cases, and applicable only to ordered but unpaid Services, We may unilaterally change the price of such Services regardless of what was agreed upon or/and stated in Quotation. If such a change occurs, You may either accept the new price and perform payment or choose not to accept the price and refrain from making any payment. Non-payment shall not be deemed a breach of this Agreement, but it will result in the termination of this agreement and cessation of Our Services after the end of the prepaid period. Provisions of this paragraph overrule any other provision of this Agreement and any Quotation.
11.6 No implied waiver. Any tolerance or lack of enforcement by Us, even if on a continuous and reiterated basis, in relation to any breach or default by You of any provision of this Agreement shall not be considered as a consent to such breaches and defaults and shall not affect the validity of the clause breached nor shall be construed as a waiver to any of the rights pertaining to Us pursuant to this Agreement and/or the applicable Law.
11.7 Compliance and Export restrictions. You understand that countries may restrict the import, use, export, re-export or transfer of encryption products and other controlled materials (which may include the Software or related technical information licensed hereunder). You agree to comply with all applicable laws, restrictions and regulations in your use of the Software, including but not limited to export restrictions of various countries that the Software may be subject to, and personal data protection regulations. You are also solely responsible for defining the laws and regulations You should comply with and oblige to secure Us from any breach of any law and regulation, from any claim or litigation arising as a result of such breach and to reimburse Us any loss, resulting from such breach. You will not use the Software for a prohibited use.
11.8 Contracting Entity table. In the table below, “Customer Location” refers to where Customer is located (as determined by Customer’s business address on the invoice) and determines which table row applies to Customer:
|Customer Location*||VyOS Contracting Entity||Governing Law||Venue/Courts|
|North, South Americas and Asia||VyOS Inc.||California||Poway|
|Europe (except Spain), Middle East and Africa||VYOS EMEA Operations Limited||Ireland||Cork|
|Oceania||VyOS APAC Pty Ltd.||Australia||Sydney|
|Customer Location*||North, South Americas and Asia|
|VyOS Contracting Entity||VyOS Inc.|
|Customer Location*||Europe (except Spain), Middle East and Africa|
|VyOS Contracting Entity||VYOS EMEA Operations Limited|
|VyOS Contracting Entity||Sentrium S.L.|
|VyOS Contracting Entity||VyOS APAC Pty Ltd.|
*all sales via Cloud Providers are done by VyOS Inc. regardless of Customer location
References to “We”, “Our”, “Us” are references to the applicable VyOS Contracting Entity specified in the Contracting Entity Table, in the Quotation and in the invoice. The Services are provided by that VyOS Contracting Entity.
11.9 Governing law and exclusive jurisdiction. This Agreement, and any disputes arising out of or related hereto, will be governed exclusively by the applicable governing law above, without giving effect to any of its conflicts of laws, rules or principles. The courts located in the applicable venue above will have exclusive jurisdiction to adjudicate any dispute arising out of or relating to this Agreement or its formation, interpretation, or enforcement. Each party hereby consents and submits to the exclusive jurisdiction of such courts. Before resorting to any external dispute resolution mechanisms, the parties agree to use their best efforts in good faith to settle any dispute in relation to the Agreement. For the purpose of any dispute Person, who confirmed or signed a Quotation, shall act on behalf of his Affiliates and Subsidiaries and Branch Offices (if any).
11.10 Severability. Should any part of this Agreement be declared illegal or unenforceable, the remaining portion will remain in full force and effect.
11.11 Third Party Beneficiaries. This Agreement is binding on the parties to this Agreement and, other than as expressly provided in the Agreement, nothing in this Agreement grants any other person or entity any right, benefit or remedy.
11.13 Notices. All notices, communications and other correspondence required or permitted by this Agreement shall be in writing and shall be sent by email, to the relevant contact designated in the Quotation or Our invoice. Billing notices to you will be addressed to the billing contact designated by you in the Quotation, Purchase Order, Our invoice or by other means.
Exhibit A: Service Level Agreement
This SLA enters into force simultaneously with the Subscription Agreement and describes the Support Services that We will provide to Customer as part of the Support Services and according to the Software Support Subscription stated in the Quotation, Our invoice or Our Business Partner order or invoice and purchased by the Customer. Capitalized terms used but not otherwise defined in this SLA will have the meanings set forth in the Subscription Agreement (hereinafter, the “Agreement”) and EULA.
Support Services are offered under three subscription plans: Standard, Production and Mission Critical. Support Services are only for companies with an active subscription to one of these plans. Customers may purchase Software Support Services through one of these plans from Us or from our authorized Business Partners. Once purchased, We will activate the Customer in the VyOS subscriber portal, which will enable the Customer to obtain technical support at the appropriate level of service.
This SLA will be reviewed and updated periodically. Contents of this SLA may be amended as required, provided mutual agreement and communicated to all affected parties.
3. Scope of Services
Support Services team and personnel will:
answer questions about the product and its features;
suggest compatible hardware and review customer’s hardware configurations for compatibility;
review customer’s network designs and VyOS configurations and suggest possible improvements and investigate error conditions;
help the customer fix them and/or file bug reports.
The following Support Services are covered by this SLA per Software Support Subscription plan:
Standard: includes support via email with guaranteed response time up to next business day.
Production: includes support via email, live chat/Slack/Teams and meetings with guaranteed response as per SL defined below.
Mission Critical: includes support via email, live chat/Slack/Teams, phone and meetings with guaranteed response as per SL defined below.
4. Service Level (SL) Definitions
SL is defined in terms of initial response time after a Customer files a support ticket. We have defined 4 severity levels under which tickets can be filed (depending on the level of support purchased), described in the table below:
|Severity 1||Defined as an incident where production server or other mission-critical systems are down and no workaround is immediately available. You have had a substantial loss of service. Your business operations have been severely disrupted. Severity 1 support requires You to have dedicated resources available to work on the issue on an ongoing basis during your contractual hours.|
|Severity 2||Defined as an incident where major functionality is severely impaired. Operations can continue in a restricted fashion, although long-term productivity might be adversely affected. A major milestone is at risk. Ongoing and incremental installations are affected. A temporary workaround is available.|
|Severity 3||Defined as an incident that causes partial, non-critical loss of functionality of the software. Impaired operations of some components, but allows the user to continue using the software. Initial installation milestones are at minimal risk.|
|Severity 4||Defined as: Questions regarding configurations, consultations. Cosmetic issues.|
|Description||Defined as an incident where production server or other mission-critical systems are down and no workaround is immediately available. You have had a substantial loss of service. Your business operations have been severely disrupted. Severity 1 support requires You to have dedicated resources available to work on the issue on an ongoing basis during your contractual hours.|
|Description||Defined as an incident where major functionality is severely impaired. Operations can continue in a restricted fashion, although long-term productivity might be adversely affected. A major milestone is at risk. Ongoing and incremental installations are affected. A temporary workaround is available.|
|Description||Defined as an incident that causes partial, non-critical loss of functionality of the software. Impaired operations of some components, but allows the user to continue using the software. Initial installation milestones are at minimal risk.|
|Description||Defined as: Questions regarding configurations, consultations. Cosmetic issues.|
The Customer will provide an initial severity level associated with a ticket. We will determine, in Our sole discretion, if the ticket was correctly classified and may increase or decrease the assigned severity level. Coverage, response times per severity level and tickets, are shown in the table below, for each Software Support Subscription plan:
|Software Support Subscription plan||Standard||Production||Mission Critical|
|Coverage||8×5 Mon - Fri, 0900 - 1700*||24×7||24×7|
|Severity 1 Reaction time||NBD*||4 hours||1 hour|
|Severity 2 Reaction time||NBD||4 hours||1 hour|
|Severity 3 Reaction time||72 hours||48 hours||24 hours|
|Severity 4 Reaction time||72 hours||72 hours||72 hours|
|Special Conditions||via Partners||via Partners||via Partners or Direct|
|Software Support Subscription plan||Coverage|
|Standard||8×5 Mon - Fri, 0900 - 1700*|
|Software Support Subscription plan||Severity 1 Reaction time|
|Mission Critical||1 hour|
|Software Support Subscription plan||Severity 2 Reaction time|
|Mission Critical||1 hour|
|Software Support Subscription plan||Severity 3 Reaction time|
|Mission Critical||24 hours|
|Software Support Subscription plan||Severity 4 Reaction time|
|Mission Critical||72 hours|
|Software Support Subscription plan||Tickets|
|Software Support Subscription plan||Special Conditions|
|Mission Critical||via Partners or Direct|
NBD* - Next Business Day
Business hours: Mon–Fri, 9 a.m. to 5 p.m. (CET/CEST)
A ticket means a discrete technical or non-technical issue that is submitted to Us by Customer to that requires a response as specified below in this document. Support tickets can be created either by email, through the support portal or by any other means previously agreed by both Parties. A ticket exists in VyOS subscriber portal and includes all the communication associated with the issue.
VyOS subscriber portal is available to the Customer of any support tier 24×7 and is the primary method for ticket submission. The support portal allows Customer to enter tickets, add information to existing tickets, receive information and updates about tickets, close tickets, and list their currently open and closed tickets.
6. Professional Services
In addition to support services, consultancy services may be included during the Subscription Term. For more information about those services please contact us at: [email protected].
We are available to discuss cases that have gone unresolved for an amount of time deemed unsatisfactory by the Customer. We hope you are satisfied with the support you have contracted for and that your organization’s needs are addressed promptly. However, We recognize that there may be times when additional attention or assistance is required. Upon request and if considered reasonable by Us, We will provide the Company with contact information with specific Our engineer, consultant, account manager or customer success manager to discuss issues that the Support Services team and personnel have been unable to resolve for some time or that were resolved in an unsatisfactory manner.
8. Effect of Termination or Non-Renewal of Support Services
In the event the Customer terminates or elects not to renew the Software Support Subscription, the Customer may continue to use the Software pursuant to the Subscription Agreement but will have no further right to Support Services for the Software.
9. Access and assistance
In the fulfillment of Our Support Services obligations, We may require actual or remote access to the Software and/or the systems on which the Software operates. With Our assistance, the Customer agrees to provide any such access and other assistance reasonably requested by Us. The Customer agrees that providing such access and assistance is a condition to Our obligation to provide Support Services under this SLA. We will not be liable for any issues that result or remain from Customer’s failure to grant the necessary access to Support Services team and personnel.
We may require reasonable availability of customer representative(s) when resolving a service related incident or request and to follow the appropriate notification procedures in order to receive the levels service specified in this SLA and the use of the defined processes for requesting help and services.
We have no obligation to provide any Support Services for: (a) bugs, errors or issues caused by or resulting from Third Party Products; (b) Customer’s use of the Software in any manner other than as strictly made available by Us; or (c) Customer’s use of the Software in violation of the Agreement. The Customer agrees that We are only responsible for providing Support Services for the latest version of the Software. We will not be liable to Customer for any support issues that are unresolved or caused by Customer’s use of outside support, but will use good faith, commercially reasonable efforts to help Customers address such issues upon request.