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HomeMy WebLinkAboutCalix Master Purchase and License Agreement- Locked (MPLA012820) (28) Calix Master Purchase and License Agreement CALIX CONFIDENTIAL © 2020 Calix, Inc. All Rights Reserved. (MPLA012820) 1 Contract Number: Calix Master Purchase and License Agreement This Calix Master Purchase and License Agreement (the “Agreement”) is made as of the date last signed (the “Effective Date”), by and between Calix, Inc., a Delaware corporation (“Calix”) with its principal place of business at 2777 Orchard Parkway, San Jose, California 95134, United States of America and <enter full legal name>, a <enter type of entity> formed under the laws of <enter state or country of formation> (hereafter “Customer”) with its principal place of business at <enter principal business address>. Calix and Customer each are individually sometimes referred to as a “Party,” and collectively sometimes referred to as the “Parties”. Capitalized terms shall have the meaning ascribed herein. RECITALS A. Calix has developed proprietary operating systems framework software for its network systems and premises systems, including its AXOS® and EXOS® branded operating system platforms (each a “Platform”) and additional software for each Platform (each a “Software Module”) for use with Calix-branded network and premises systems (the “Systems Products”). The Platforms and the Software Modules are collectively referred to as the “Software”). B. Calix provides cloud-based services subscriptions including its proprietary cloud-based microservices software platform for EXOS, its suite of cloud-based services that enable analytics, insights, automation and other functionality and the value-added cloud-based services that Calix may from time to time make available on a subscription basis (collectively, the “Cloud Services”) for use on a Platform. C. Calix provides the Software, Systems Products and Cloud Services under the terms and conditions stated in this Agreement. AGREEMENT NOW, THEREFORE, the Parties, intending to be legally bound, agree as follows: Article I. Software License 1. Grant of License. Subject to the terms of this Agreement and payment of the License Fees for the applicable Software, Calix grants to Customer and its authorized users during the License Term a personal, non-exclusive, non-transferable, revocable, limited license to use the Software, in object code form only, in conjunction with the Systems Products solely in the United States and Canada (the “Territory”) during the term of this Agreement for Customer’s business purposes in accordance with this Agreement (the “Software License”). a. End User Rights Only. Customer’s license rights are solely as an end user and Customer shall have no right to provide, market, distribute, sub-license or otherwise transfer the Software. Customer must reproduce and include the copyright notice and any other notices that appear on the original Software and on any copies and any media thereof. b. Use with Systems Products. Unless otherwise expressly permitted in writing by Calix, Customer’s rights to use the Software are limited to use only with the Systems Products. Purchases of Systems Products are subject to the terms and conditions of a current purchase agreement executed between Customer and Calix. If Customer does not have a current purchase agreement executed with Calix as of the Effective Date, Calix’s standard purchase agreement terms and conditions for equipment, attached hereto as Exhibit A, shall apply and are deemed to be fully incorporated into the terms and conditions of this Agreement as of the Effective Date. c. Rights Related to Deployment. Customer’s Software License includes the limited right to distribute Software on premises Systems Products as part of Customer’s deployment of premises Systems Products Calix Master Purchase and License Agreement CALIX CONFIDENTIAL © 2020 Calix, Inc. All Rights Reserved. (MPLA012820) 2 to its subscribers within the Territory on the condition that Customer ensures that each Customer subscriber’s right to use the Software is: (i) limited to end use only with no right to provide, market, distribute, sub-license or otherwise transfer; (ii) expressly subject to the same restrictions applicable to Customer as set forth in Section 2 of Article I; (iii) provided “as is” without warranty or support of any kind by Calix; (iv) limited to use only with Calix-branded premises systems; and (v) conveys no right of ownership or title whatsoever to any Software. The foregoing limited distribution right is subject to the terms and limitations stated in this Agreement. d. Number and Use of Licenses. Calix reserves the right to track data reasonably necessary to monitor and/or manage Customer’s use of the Software in accordance with the Software License and terms of this Agreement, including without limitation, Customer’s active subscribers for the Software based on device registration, location and other data available through Calix’s cloud-based microservices software platform for Cloud Services, use of software code, subscriber management tools and applications, reporting and/or other reasonable method, and Customer agrees to reasonably cooperate, allow and secure applicable authorizations for Calix access and use of the foregoing data for such purposes. e. Right to Use Marketing Materials and Collateral. Calix may from time to time elect to make available Calix marketing materials and collateral (“Marketing Materials”) for Customer’s use in promoting, marketing and offering services. Calix hereby grants Customer the right to use such Marketing Materials, including license rights to Calix intellectual property therein, subject to and provided Customer: (i) shall use the Marketing Materials only in conjunction with Calix Systems Products, Software or Subscription Services; (ii) hereby acknowledges and accepts that the Marketing Materials are provided for use only on an “as is” basis without any warranty, guaranty or indemnity of any kind by Calix; (iii) shall not remove any product identification, copyright, or other notices included on the Marketing Materials; and (iv) shall otherwise comply with the terms and conditions of this Agreement. 2. Restrictions. a. Customer receives no rights to the Software other than those specifically granted in Section 1 of Article I above. Without limiting the generality of the foregoing, the following restrictions apply to all Software. Customer shall not, and shall not direct or allow any third party to: (i) decompile, disassemble, or otherwise reverse engineer or attempt to reconstruct or discover any source code or underlying ideas or algorithms of the Software by any means whatsoever; (ii) remove any product identification, copyright, or other notices; (iii) provide, lease, lend, use, or allow others to use the Software to or for the benefit of third parties; or (iv) except as specified herein or in the applicable user documentation provided by Calix or with the prior express, written consent of Calix, modify, incorporate into other software, or create a derivative work of any part of the Software; provided, however, nothing in this subparagraph (iv) prohibits Customer from using the Software in conjunction with its other authorized uses of Software. b. Customer shall not, without the prior written approval of Calix or other than as expressly provided herein, allow any third party to use the Software for any purpose other than to assist Customer in using or maintaining and troubleshooting Customer’s access network operations. c. The Software, along with the specifications, processes, designs, know-how and other technologies provided by Calix as part of the Software, are protected by applicable copyright, trade secret, and other intellectual property laws. Customer shall ensure that no unauthorized person shall have access to the Software, and that no persons authorized to have access shall make any unauthorized copy. Customer shall promptly report to Calix any unauthorized disclosure or any use of any Software of which it becomes aware and shall take such further steps as may reasonably be requested by Calix, including but not limited to taking all appropriate and necessary legal action, to prevent or minimize any unauthorized use, modification, copying, or transmission thereof. 3. Obligations of Use. Customer shall be exclusively responsible for the testing, supervision, management, and control of its use of the Software, including without limitation: (i) determining whether the Software will Calix Master Purchase and License Agreement CALIX CONFIDENTIAL © 2020 Calix, Inc. All Rights Reserved. (MPLA012820) 3 achieve the desired results; (ii) obtaining the rights to use, and properly maintaining, the computers and other hardware and network systems necessary and appropriate to operate the Software; (iii) providing a proper environment and utilities for the equipment on which the Software operates, including an uninterrupted power supply; (iv) having properly trained personnel; (v) ensuring proper machine and network configuration, audit controls, and operating methods; (vi) establishing adequate backup plans, based on alternative procedures and access to qualified network and/or programming personnel; and (vii) implementing sufficient recovery procedures and checkpoints to satisfy its requirements for security and accuracy of input and output as well as restart and recovery in the event of malfunction. 4. Ownership. Calix retains all title to and, except as expressly and unambiguously licensed herein, all Calix’s rights under which Calix is authorized to grant the licenses hereunder, including patent rights, copyrights, trade secret rights, sui generis database rights, and all other intellectual property rights and moral rights in and to the Software and the specifications, processes, designs, know-how and other technologies provided by Calix as part of the Software. The licenses granted herein are not intended to and do not constitute a sale of the Software or any portion or copy of it. To the extent Customer elects to provide Calix any feedback or suggestions concerning the Software, Customer disclaims any ownership, right or title to, and Calix shall be the sole owner of, any modifications and derivative works to the Software developed in connection thereto by Calix. Article II. Subscription Services “Subscription Services” refers to Customer’s subscription to and/or use of any Cloud Services made available by Calix as described in this Article II. Subscription Services extend only to the Territory of the Software License. 1. Cloud-Based Microservices for EXOS. An annual subscription to Calix’s cloud-based microservices software platform is required for premises Systems Products operating on EXOS. Customer shall be provided a service provider identification number (SPID) for registration of its EXOS Systems Products. Upon Calix’s issuance of the SPID, the “Service Activation Date,” the EXOS Systems Products shall be automatically registered and connected to Calix’s cloud-based microservices software platform for EXOS, which provides Customer with the ability to (i) extend and configure access for its subscribers to services available with the subscription; (ii) receive Software License updates; (iii) set services policies, including authorization of any related data flows, controls and data management features; and (iv) view available value-added cloud-based services for EXOS Systems Products that may be offered from time to time by Calix. 2. Calix Cloud. Calix Cloud services are available for separate purchase, on a subscription basis, at Customer’s option to enable additional functionality such as role-based data analytics, insights, automation and other cloud- based functionality that Calix may make available from time to time. Subscription to Calix Cloud services requires Customer acceptance of Calix’s standard terms and conditions for the service in the applicable order form(s) and terms of service (TOS) for Calix Cloud, including but not limited to Customer’s agreement to the data processing terms to enable the selected Calix Cloud services. 3. Value-Added Cloud-Based Services. Calix makes available certain value-added cloud-based services on its EXOS Platform, including third party services, for separate purchase on a subscription basis at Customer’s option. Subscription to such services requires Customer acceptance of additional terms and conditions, which may include third party terms and conditions, stated in the order form for the selected services, including but not limited to Customer’s agreement to the data processing terms to enable the selected services. 4. Data Use and Protection. Use of one or more of the Software and/or Subscription Services may include collection and processing of customer and subscriber data, information or material provided, submitted or otherwise transmitted by or from Customer or its subscribers (collectively, “Customer Data”) as described in Calix published product and/or user documentation for the applicable Software and/or Subscription Service and applicable Calix privacy policies. a. All Customer Data submitted by Customer or collected from its subscribers in connection with the Software and/or Subscription Services, however transmitted or provided, will remain the sole property of Customer Calix Master Purchase and License Agreement CALIX CONFIDENTIAL © 2020 Calix, Inc. All Rights Reserved. (MPLA012820) 4 or its subscribers to the full extent provided by law. Customer shall have sole responsibility for the accuracy, quality, integrity, legality, reliability, appropriateness of any Customer Data made available to Calix. b. Customer hereby grants to Calix and its authorized agents or affiliates a non-exclusive worldwide license to host, copy, store, use, transmit, process and display Customer Data to the extent reasonably necessary to offer, provide, maintain and/or develop enhancements to the Software and/or Subscription Services and the delivery of the Software and/or Subscription Services. The foregoing license to “process” includes authorization for Calix to combine, correlate and/or apply algorithms to Customer Data in order to create and display insights and analytics or enable automation or other functionality to Customer in connection with the Software and/or Subscription Services. Calix will not use Customer Data for any purpose other than (i) to provide and maintain the Software and/or Subscription Services as described herein or in Calix published product and/or user documentation for such Software and/or Subscription Services, (ii) in accordance with this Agreement and any order form for Software and/or Subscription Services, (iii) as requested and instructed by Customer and/or its subscribers, (iv) on an anonymous and/or aggregated basis to evaluate the data, including behavioral analytics and trends, to develop enhancements and improve the Software and/or Subscription Services and the delivery of such Software and/or Subscription Services, (v) internally to develop or enhance its business and processes, or (vi) as required by law, regulation or legal process (in which case Calix shall use reasonable efforts to notify customer unless not permitted by such law, regulation or legal process). Customer further grants Calix and its authorized agents or affiliates a worldwide, perpetual, irrevocable, royalty-free license to use and incorporate into the Subscription Services any suggestion, enhancement request or other feedback provided by Customer. c. Customer Data may include subscriber data that may be considered under applicable laws to be personal data or personally identifiable information of an individual. Both Parties will comply with all applicable data protection legislation with respect to the use, processing, storage or transfer of any subscriber data that may be considered under applicable laws to be personal data or personally identifiable information of an individual and will maintain appropriate records and information to demonstrate its compliance with such legislation. d. Subscription Services may involve use, processing, storage or transfer of subscriber data that are considered to be personal data or personally identifiable information of an individual. Customer’s election to subscribe to any such Subscription Services shall be considered Customer’s instructions authorizing Calix to use, process, store or transfer subscriber data subject to the Subscription Service in accordance with the product and/or user documentation for such Subscription Services or as otherwise needed to carry out Calix’s contractual obligations for the Subscription Service. Prior to entering into any Subscription Service that includes the use, processing, storage or transfer of Customer Data, Customer will ensure that it has all necessary appropriate consents and/or notices in place to enable the lawful use, processing, storage or transfer of Customer Data and/or personal data or personally identifiable information of an individual by Calix on behalf of the Customer in connection with the selected Subscription Services for the term and purposes of such Subscription Services. e. Both Parties shall take reasonable measures to secure, safeguard and protect Customer Data, which shall be treated as Confidential Information. Both Parties shall also take reasonable measures to secure, safeguard and protect subscriber data provided in connection with Subscription Services against unauthorized or unlawful use or processing and against accidental loss, destruction or damage, including implementation of reasonable organizational measures and technologies to securing the confidentiality of the data and to secure and safeguard the data in delivery of the Subscription Services. Calix shall reasonably cooperate with and assist Customer (at Customer’s cost) in Customer’s compliance requirements in connection with the Subscription Services under applicable data protection legislation, which may include responding to subscriber requests, removal of subscriber data from systems, completion of impact assessments and/or issuance of notifications. Calix Master Purchase and License Agreement CALIX CONFIDENTIAL © 2020 Calix, Inc. All Rights Reserved. (MPLA012820) 5 f. Subscription Services may include use of third-party systems and services. Customer agrees that its use or its subscribers’ use of the Subscription Services constitutes its express consent for Calix to engage third parties to host, copy, store, use, transmit, process and display Customer Data to the extent reasonably necessary to offer, provide, maintain, further develop, improve and/or enhance the Subscription Services and/or delivery of the Subscription Services, provided such third parties shall be subject to confidentiality and non-disclosure obligations at least as protective of Customer Data as set forth in Section 4 of Article V (Confidentiality) and obligations to comply with applicable data protection laws. g. Customer shall provide Calix such access to Customer Data, systems and networks as is necessary in order for Calix to provide Subscription Services and to otherwise carry out its obligations to provide support for the Subscription Services. Except for Customer Data required for Calix’s provision and/or license of its products, platforms and services, Calix shall not have access to any other Customer or subscriber data or information, including without limitation any information considered under applicable laws to be personally identifiable information of any individual (collectively, “Excluded Data”). Customer shall employ commercially reasonable efforts to ensure no Excluded Data is supplied, transmitted or otherwise transferred to Calix or any Calix systems or through any Calix services unless expressly agreed in advance in writing between the Parties. In the event any Excluded Data is supplied, transmitted or otherwise transferred to Calix, Customer shall take reasonable steps to promptly notify Calix. h. Within a reasonable time after the effectiveness of termination of any Subscription Services, Calix shall permanently delete any stored subscriber data collected for such Subscription Service without retaining any copies unless required otherwise under applicable law. For clarity, the Parties agree that any data retained and stored on an anonymous, anonymized and/or aggregated basis, or that is not personal data or personally identifiable information, does not constitute data required to be deleted under this section. i. Subscription Services are subject to Calix privacy policies and terms of use including the “Calix Privacy and Security Policy – Calix Cloud and EXOS Subscription Services” posted on the My Calix portal for customers at https://www.calix.com/content/dam/calix/mycalix-misc/misc/Calix-Product-Privacy- Policy.pdf. Copies are available upon request. Calix reserves the right to modify its privacy policies and terms of use from time to time in its business judgment and as it deems required for compliance with applicable laws and regulations. 5. Use of Subscription Services. a. Customer shall not, and shall not permit its authorized users and subscribers to transmit any material that is illegal, misleading, defamatory, indecent or obscene, threatening, infringing of any third-party proprietary rights, invasive of personal privacy or harmful to children (collectively “Objectionable Matter”) in connection with any products or services under this Agreement. Customer and its subscribers shall abide by rules governing permitted and appropriate use of services that Calix may publish in connection with use of any Subscription Services. Calix may, at its option at any time, adopt additional rules for permitted and appropriate use and may update them from time to time. Customer’s and/or its users and subscribers’ continued use of products and services under this Agreement shall constitute Customer and/or its users and subscribers’ agreement to be bound by such rules. Customer and its users and subscribers will comply with all applicable laws and confidentiality obligations regarding Customer Data, use of the Subscription Services and use of any Calix-supplied text, audio, video, graphics, applications, portal, developer portal, network intelligence and other information and data available by means of the Subscription Services or on one or more Calix web portals (such content collectively, the “Calix Content”), including laws governing use and handling of private or personally identifiable information. Calix reserves the right to remove any Customer Data that constitutes Objectionable Matter or violates any law or Calix rules regarding permitted and appropriate use but is not obligated to do so. b. Customer shall not and shall take commercially reasonable steps to require that its users and subscribers do not interfere with or disrupt the integrity of performance of the Subscription Services, any Calix Content and/or Customer Data. Calix reserves the right to suspend or terminate Customer and/or any subscriber Calix Master Purchase and License Agreement CALIX CONFIDENTIAL © 2020 Calix, Inc. All Rights Reserved. (MPLA012820) 6 account or activity that is disrupting or causing harm to Calix or Calix agent or affiliate computers, systems or infrastructure or is in violation of state or federal laws. Article III. Calix Services 1. Support Services. Support Services are provided subject to the terms and conditions of this Agreement and payment of applicable Support Fees. For so long as Customer is current in the payment of applicable Support Fees, Customer shall be entitled to maintenance, consisting of updates and minor upgrades made when and as available from time to time by Calix for the Software, and technical support services based on the applicable support package offering detailed in the Calix Support Service Description Document available on the My Calix customer portal at: https://www.calix.com/content/dam/calix/mycalix-misc/misc/services/Services- Description_Calix-Support.pdf (collectively, the “Support Services”). Support Services shall be required for the full License Term. Accordingly, Customer’s initial purchase order for the Software shall include purchase of Support Services with Support Fees based on one of Calix’s support package offerings (Standard, Essential or Vantage). If no support package offering is selected, the Essential package will be assigned and priced accordingly. Customer may elect to upgrade its Support Services selection at any time during the License Term by requesting a quotation for the Support Services upgrade from Calix, issuing a PO for the upgrade and paying the applicable upgrade fees. a. Customer must be current on payment of all License Fees and Support Fees during the License Term to be entitled to receive any Support Services. In the event of any lapse in License Term and Support Services, or for payment therefor, Calix reserves the right to charge a reinstatement fee to reinstate Support Services. Calix’s obligations to provide Support Services shall be subject to all limitations, restrictions, and qualifications relating to the Software as set forth herein, as well as Customer’s obligations with respect to the Software. Unless set forth in this Agreement, Calix shall have no obligation to provide Customer any maintenance or support, or any updates, upgrades, releases, or versions of any of the Software, including without limitation, under the Calix Advantage Program (“CAP”) or any other Calix support programs. b. Customer shall provide Calix such access necessary in Calix’s reasonable determination for Calix to provide maintenance and support and otherwise carry out its obligations for Support Services. 2. Other Calix Services. Calix offers other services such as managed services and professional services, including consultation, configuration, workflow development and full-service packages for set up and optimization of Subscription Services, installation, training. The License Fees and Support Fees do not entitle Customer to such services or any related travel, living and other out-of-pocket expenses for such services, all of which are subject to separate purchase at Calix’s standard pricing and support program terms and conditions for such offerings. Article IV. Fees; Term and Termination 1. Fees and Charges. Use of and access to the Software, Cloud Services, Support Services and related documentation are subject to Customer’s payment of license, subscription and support fees as provided herein. a. Software License. Customer’s right to use the Software is subject to Customer’s timely payment of the license fees for the Software at Calix standard rates for the applicable Platform and Software Modules (the “License Fees”) for the License Term at Calix standard rates as stated in an authorized Calix quotation issued to Customer. Calix shall be entitled to invoice License Fees upon activation of the License. The Software License and fees therefor shall commence upon the Service Activation Date. i. License Fees and Annual Adjustment for Term Licenses. Term Licenses are invoiced annually in advance, with each invoice covering the next 12 months of License use based on the forecast of Customer’s planned active subscriber lines and are subject to annual adjustment. The License Fees shall apply to the Initial License Term and each Renewal License Term. The initial invoice shall be issued on the delivery date and shall include the License Fees for the first 12 months of the Initial Calix Master Purchase and License Agreement CALIX CONFIDENTIAL © 2020 Calix, Inc. All Rights Reserved. (MPLA012820) 7 License Term. License Fees for additions of Software Modules are invoiced upon delivery of the Software Modules, with the initial invoice pro-rated to be coterminous with the License Term for the existing License. Subsequent invoices shall occur approximately 60 days in advance of the anniversary of the initial delivery of the Software and shall include (i) License Fees at the applicable pricing tier based on the forecast of Customer’s planned active subscriber lines for the next 12 months of the License Term and (ii) any incremental charge based on Customer’s actual active subscriber lines in excess of the pricing tier applied for the 12-month period of License use prior to the annual renewal. ii. License Fees and Annual Adjustment for Perpetual Licenses. Perpetual Licenses are invoiced immediately upon delivery of the Software with such invoice covering License use for the full License Term based on the forecast of Customer’s planned active subscriber lines at the time and are subject to annual adjustment for any increase in subscriber line pricing tier as well as annual Support Fees. License Fees for additions of Software Modules are invoiced upon delivery of the Software Modules. At each anniversary of the initial delivery of the Software, the License shall be reviewed to determine any incremental charge based on Customer’s actual active subscriber lines in excess of the pricing tier applied for the Perpetual License Fees and Support Fees previously invoiced. Following review, Calix shall invoice Customer for any incremental charges based on Customer’s actual active subscriber lines in excess of the pricing tier applied for the 12-month period of License use prior to the annual review. For clarity, if Customer has paid License Fees for its Perpetual License at the highest subscriber line pricing tier, no incremental License Fees shall apply thereafter. b. Cloud-Based Microservices Subscription. Access and use of the Calix cloud-based microservices for EXOS are subject to an annual subscription fee at Calix standard rates commencing upon the Service Activation Date and continuing annually thereafter for the License Terms, with fees invoiced annually in advance. Calix standard rates are stated in an authorized Calix quotation issued to Customer. c. Cloud Services Subscriptions. Customer may at any time purchase on a subscription basis one or more Cloud Services, including the Calix Cloud services that enable analytics, insights, automation and other functionality and the value-added cloud-based services made available by Calix on its EXOS Platform. Access and use of the Calix Services are subject to subscription fees at Calix standard rates for the duration of the applicable subscription term, with fees invoiced annually in advance. Calix standard rates are stated in an authorized Calix quotation and order form issued to Customer. d. Annual Fee Review and Adjustment for Subscriptions. Calix standard rates for its cloud-based subscription services that are based on active subscriber lines are based on Customer’s forecast active subscriber lines at the subscription start date and subject to annual adjustment based on Customer’s actual active subscriber lines for each subscription. At each anniversary of the subscription Calix shall review Customer’s active subscriber line and, following review, Calix shall invoice Customer for (i) subscription fees at the applicable pricing tier based on the forecast of Customer’s planned active subscriber lines for the next 12 months of the subscription and (ii) any incremental charge based on Customer’s actual active subscriber lines in excess of the pricing tier applied for the 12-month period of the subscription prior to the annual renewal. e. Support Services. Access and entitlement to Support Services are subject to Customer’s payment of Calix standard fees for the selected annual support service for the applicable License at Calix standard rates (the “Support Fees”). Support Fees are invoiced in advance on an annual basis commencing with the initial invoice for the License Fees, and thereafter automatically at each anniversary of the initial delivery of the Software. Support plans may be upgraded at any time as provided under Article III hereto. f. Invoicing. All license, subscription and support fees shall be initially invoiced upon activation of the service or subscription and thereafter in advance of each subsequent service and/or renewal period, with each invoice covering the applicable license or service period and in accordance with the applicable fee schedules. Annual fee adjustments shall be invoiced following annual review. The Parties agree that fees Calix Master Purchase and License Agreement CALIX CONFIDENTIAL © 2020 Calix, Inc. All Rights Reserved. (MPLA012820) 8 for the Software and Cloud Services are based on the number of subscribers and shall be determined and subject to adjustment based on subscriber usage activity as reported in the ordinary course business records for the applicable Platforms, including reports for Customer’s account through the Calix cloud-based microservices for EXOS. Customer shall maintain reasonable accurate records of its active subscribers the Software and Cloud Services and shall upon request provide Calix with such records for purposes of determining fees. g. Payment Terms and Exclusions. All prices and fees are exclusive of shipping, taxes (including any withholding taxes), levies, tariffs, duties, and the like, which shall be invoiced as a separate line item and paid by Customer. All prices are stated in and all payments shall be made in U.S. dollars except as otherwise expressly provided in a final Calix quotation accepted by Customer. Invoices are due and payable within thirty (30) days of the invoice date. In the event payment is not received when due, Calix reserves the right to charge late fees at the rate of one and one-half percent (1½%) per month from the date such fees or charges first became due to cover Calix’s administrative and collection costs or, if lower, the maximum rate allowed by law. In the event of delinquency in payments beyond 30 days of the due date Calix shall, in addition to other available remedies, have the right to suspend the License, Subscription Services, Support Services and any other related services without notice to Customer. 2. Term and Termination. a. License Term Options. The License Term for the Software may be either a Term License or a Perpetual License at Customer’s option selected by issuing a purchase order for the applicable license type to Calix for the Software. Customer’s selection of a Term License or a Perpetual License, including any conversion by Customer under Section 2(b) of Article IV shall apply prospectively to all of Customer’s current and future licenses of the Software at the time of selection; provided, however, Customer may make such License Term election separately for the license for a Platform and the Software Modules. i. Term License. For a Term License, the License Term shall consist of the Initial License Term and each Renewal Term. The Software License shall commence on the Service Activation Date and continue for a three (3) year period through the third anniversary of the Service Activation Date (the “Initial License Term”), and thereafter, the License shall automatically renew for one (1) year terms at each anniversary of the Service Activation Date (each, a “Renewal Term”) unless and until earlier terminated in accordance with this Agreement. Pricing may be subject to change by agreement at the time of annual renewal. Subscription to the Calix cloud-based microservices for EXOS shall commence and automatically renew for the entire License Term and be coterminous with the License Term. ii. Perpetual License. For a Perpetual License, subject to Calix’s rights and Customer’s compliance with the terms of this Agreement, the License Term shall be perpetual for use in conjunction with the Systems Products for Customer’s internal business purposes. b. Conversion of Term License to Perpetual. Customer may request conversion of the License Term to a perpetual license as of an anniversary of the Effective Date or such other time authorized by Calix. Conversion shall be subject to execution of an amendment to this Agreement and payment of applicable additional license and support fees for a perpetual license. Customer may initiate its request by requesting a quotation for conversion to a perpetual license and applicable amendment document from Calix. c. This Agreement is effective from the Effective Date and continues until terminated or until all licenses and subscriptions have expired. For a Term License, after the Initial License Term, Customer may elect to not renew the License by providing written notice at least 90 days prior to the next Renewal Term and, immediately upon the effectiveness of such non-renewal or termination, Customer shall have complied with the requirements in Section 2(g) of Article IV. Except as expressly stated in the applicable order form between the Parties, subscriptions for Calix Cloud shall have a minimum initial term of three (3) years with Calix Master Purchase and License Agreement CALIX CONFIDENTIAL © 2020 Calix, Inc. All Rights Reserved. (MPLA012820) 9 automatic annual renewals of one-year terms thereafter and all other cloud-based subscriptions shall have a minimum initial term of one (1) year with automatic annual renewals of one-year terms thereafter. d. Either Party may terminate this Agreement if the other Party has materially breached the terms or conditions of this Agreement and fails to cure such breach within forty-five (45) calendar days of written notice thereof; provided, however, that if the breach is not reasonably susceptible to cure within forty-five (45) days, the Agreement shall not terminate as long as the defaulting Party shall have commenced a cure within that time period and shall, with reasonable diligence, prosecute the cure without interruption until completed. For clarity, failure to pay fees due and payable to Calix shall be considered a material breach of the Agreement, but the above described cure period shall not apply to such failure to pay. e. Calix may terminate any License, Support Service, Subscription Service and/or this Agreement immediately upon notice to Customer of any breach by Customer of Section 2 of Article I (Restrictions), Section 4 of Article II (Data Use and Protection), Section 5 of Article II (Use of Subscription Services), Section 4 of Article V (Confidentiality) or Section 5 of Article V (Compliance with Laws). f. Upon termination or expiration of this Agreement and/or a License for any reason, Calix shall be entitled to terminate access to any Subscription Services and Support Services and Customer and all of its subscribers shall (i) cease all use of the Software and Subscription Services and (ii) terminate or otherwise cause the cessation of the Software functions (whether or not modified or incorporated with or into other software) and so certify in writing to Calix that it has done so. Upon termination or expiration of any Subscription Services, Calix shall be entitled to terminate Customer and its subscribers’ access to the Subscription Services. Notwithstanding any notice of non-renewal or termination or the effectiveness of termination or expiration of this Agreement, Calix shall be entitled to License Fees, Subscription Fees and Support Fees for any period of time that Customer has not complied with the provisions in this Section 2(f) of Article IV, and any such fees shall be due and payable upon invoice by Calix. Termination of this Agreement does not affect Customer’s payment obligations for license, subscription and services fees or any other fees in accordance with the terms stated in the applicable order form(s) and/or TOS or that are otherwise payable under this Agreement. Notwithstanding any termination, Customer shall reasonably cooperate with Calix to validate and invoice fees for such use. g. Except for the License and rights to Subscription Services and Support Services, the terms of this Agreement shall survive termination. Termination is not an exclusive remedy, and all other remedies will be available whether or not the License or any services is terminated. Article V. General Terms 1. Limited Warranties. a. Calix warrants for a period of ninety (90) days from the Service Activation Date, subject to Customer being current on all fees due hereunder, that: (i) the Software, as delivered, shall substantially conform to the product specifications published by Calix for such Software; and (ii) the Software, when used in accordance with the user documentation supplied by Calix, shall conform to and operate in accordance with such user documentation. Calix’s sole obligation for any failure of the Software to conform to the foregoing warranty, is for Calix to do one of the following (at Calix’s sole discretion): (i) modify the Software to conform it to the foregoing warranty; (ii) replace the Software with a version that conforms to the foregoing warranty; or (iii) terminate the License with respect to the non-conforming Software and refund the License Fees that have been paid by Customer for the non-conforming Software. Any modifications, replacements or updates shall be delivered electronically. The foregoing warranty shall not apply to the extent that any breach thereof arises out of: any modifications to the Software made by Customer or its employees, agents, or contractors or any third party without Calix’s written consent; improper installation, testing, misuse or neglect; failure by Customer or its users or subscribers to implement mandatory updates or modifications made available by Calix; or any breach by Customer of this Agreement. Any warranty claims must be made by written notice to Calix on or before the expiration of the warranty period. Calix Master Purchase and License Agreement CALIX CONFIDENTIAL © 2020 Calix, Inc. All Rights Reserved. (MPLA012820) 10 b. Calix warrants that the Subscription Services will perform in all material respects to the functionality described in Calix’s official user documentation published by Calix for the applicable Subscription Service and made available on Calix’s customer web portal. Customer’s exclusive remedy and Calix’s sole liability in the event of any breach of the foregoing warranty for Subscription Services shall be termination of the Subscription Service for a pro-rated refund of payments made for the remaining months for the current Subscription Service period following the effective date of termination if Calix fails to remedy such breach within 60 days after receipt of written notice from Customer regarding such breach. c. WARRANTY DISCLAIMER. EXCEPT AS EXPRESSLY PROVIDED IN THIS SECTION 1 OF ARTICLE V (LIMITED WARRANTIES), THE SOFTWARE AND ALL SERVICES PROVIDED HEREUNDER, INCLUDING SUBSCRIPTION SERVICES, ARE PROVIDED “AS IS” WITHOUT WARRANTY OF ANY KIND, EITHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, RELIABILITY OR AVAILABILITY, ACCURACY, LACK OF VIRUSES, NONINFRINGEMENT OF THIRD-PARTY RIGHTS OR OTHER VIOLATION OF RIGHTS, CAPACITY, AND TITLE, AND ANY EXPRESS WARRANTIES BY DESCRIPTION, REPRESENTATION, OR OTHER AFFIRMATION OF FACT, SAMPLE, OR ILLUSTRATION, WHETHER ORAL, WRITTEN, OR CONTAINED IN ANY LETTER, BROCHURE, WEBSITE, PHOTOGRAPH, OR OTHER MEDIUM. CALIX DOES NOT WARRANT THAT THE OPERATION OF THE SOFTWARE OR SUBSCRIPTION SERVICES WILL BE UNINTERRUPTED OR ERROR- FREE, WILL MEET ALL OF THE NEEDS OF CUSTOMER AND/OR ITS SUBSCRIBERS, OR WILL CAUSE CUSTOMER AND OR ITS SUBSCRIBERS TO BE IN COMPLIANCE WITH ALL LAWS OR REGULATIONS. CALIX DOES NOT AND CANNOT WARRANT THE RESULTS OF USING THE SOFTWARE OR ANY SUBSCRIPTION SERVICE. CALIX DOES NOT WARRANT THAT THE OPERATION OF THE SOFTWARE OR ANY SUBSCRIPTION SERVICE WILL BE UNINTERRUPTED OR ERROR FREE. 2. Limitation of Liability EXCEPT WITH RESPECT TO A BREACH OF SECTION 2 OF ARTICLE I (RESTRICTIONS), IN NO EVENT SHALL EITHER PARTY BE LIABLE FOR ANY LOST REVENUE, LOST PROFITS, INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL, OR PUNITIVE DAMAGES, HOWEVER CAUSED AND UNDER ANY THEORY OF LIABILITY, WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE AND STRICT LIABILITY) OR OTHERWISE, ARISING OUT OF THIS AGREEMENT, EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, AND NOTWITHSTANDING ANY FAILURE OF PURPOSE OF ANY LIMITED REMEDY. ADDITIONALLY, IN NO EVENT SHALL CALIX BE RESPONSIBLE FOR LOSS OF DATA OR RECORDS BY CUSTOMER OR CUSTOMER’S AFFILIATES OR AGENTS, IT BEING UNDERSTOOD THAT CUSTOMER SHALL BE RESPONSIBLE FOR ENSURING PROPER AND ADEQUATE BACKUP AND STORAGE OF ITS DATA. THE TERMS OF THIS LIMITATION DO NOT LIMIT OR EXCLUDE ANY LIABILITY TO THE EXTENT NOT PERMITTED BY APPLICABLE LAW. IN NO EVENT SHALL THIS AGREEMENT BE CONSTRUED TO EXEMPT A PARTY FROM LIABILITY FOR DAMAGES OR INJURY TO ANY PERSONS INTENTIONALLY CAUSED SOLELY BY ITS OWN ACTS OR FOR ITS OWN VIOLATIONS OF LAW. EXCEPT FOR ANY LIMITATION OF LIABILITY FOR PRODUCTS EXPRESSLY PROVIDED AS A SEPARATE LIMITATION UNDER THIS AGREEMENT, NOTWITHSTANDING ANYTHING TO THE CONTRARY IN THIS AGREEMENT, CALIX’S TOTAL AGGREGATE LIABILITY HEREUNDER SHALL NOT EXCEED THE AGGREGATE LICENSE, SUBSCRIPTION SERVICES AND SUPPORT SERVICES FEES RECEIVED BY CALIX FROM CUSTOMER UNDER THIS AGREEMENT DURING THE TWELVE-MONTH PERIOD PRECEDING THE ACCRUAL OF ANY LIABILITY OF CALIX TO CUSTOMER AND WRITTEN NOTICE BY CUSTOMER TO CALIX OF SAME. Calix Master Purchase and License Agreement CALIX CONFIDENTIAL © 2020 Calix, Inc. All Rights Reserved. (MPLA012820) 11 3. Indemnification. a. Customer shall defend, indemnify and hold harmless Calix and its shareholders, officers, directors and employees against any claim, demand, suit or proceeding (“Claim”) (i) resulting from the negligence or willful misconduct of Customer or Customer’s subscribers in the use or deployment of the Software or any Subscription Services; (ii) alleging that the Customer Data or other data or information supplied by Customer infringes the intellectual property rights or other rights of a third party or has caused harm to a third party; or (iii) by a third party alleging that such third party did not consent to the collection, use, processing or disclosure of its Customer Data, including personally identifiable information, in connection with the Software or the Subscription Services. b. Calix will defend and indemnify Customer with respect to any Claim filed against Customer by an unaffiliated third party to the extent the Software licensed under this Agreement directly infringes any U.S. patent, copyright or other intellectual property right of such third party, and will pay any damages and costs (including attorneys’ fees) finally awarded against Customer by a court of competent jurisdiction and attributable to the Software, subject to the limitations and conditions in this Agreement. If any Software, or part thereof, becomes, or in Calix’s opinion may become, the subject of an infringement claim, Calix may, at its option: (i) procure for Customer the right to continue using the Software; (ii) modify or replace the Software with substantially equivalent non-infringing software; or (iii) require return of the Software in which case Calix shall refund Customer a pro-rata portion of the associated License Fee previously paid by Customer. This Section 3(b) of Article V states Calix’s entire liability for any infringement of intellectual property rights for the Software. c. Notwithstanding any other provision of this Agreement, Calix has no obligation to indemnify Customer in the event of Customer’s nonpayment for the Software license rights or with respect to: (i) use of the Software in a manner that is not permitted under the Agreement or that is inconsistent with Calix’s product or user documentation; (ii) modifications to the Software made by anyone other than Calix; (iii) the combination of Software with hardware or software not manufactured, developed or otherwise expressly certified or authorized by Calix in writing, or with third-party services, processes or materials where the infringement or misappropriation would not occur but for such combination; or (iv) Customer’s continued use of the Software or other allegedly infringing activity contrary to requests by Calix. In such event, Customer shall defend, indemnify and hold harmless Calix against such action, and pay all settlements entered into, and all final judgments, fees and costs awarded in connection with such action. d. Each Party’s indemnification obligations in this Section 3 of Article V are subject to the indemnified Party (i) notifying the indemnifying Party promptly in writing of such action and setting forth reasonable details as to how the Software potentially directly infringe; (ii) giving the indemnifying Party control and authority over the defense or settlement of such action (provided any participation by an indemnified Party in any defense or settlement shall be at its own cost); and (iii) providing all reasonable assistance to the indemnifying Party (at the indemnifying Party’s expense). The indemnifying Party shall defend the indemnified Party with counsel reasonably acceptable to the indemnified Party and shall not compromise or otherwise settle a claim or action against the indemnified Party without its consent, which shall not be unreasonably withheld, conditioned, or delayed. 4. Confidentiality. a. “Confidential Information” means all proprietary and/or confidential information, technical data or know- how of a Party and/or its affiliates, which is furnished to the other Party in written or tangible form, including without limitation, any and all information relating to Software, software code, designs, techniques, specifications, development and marketing plans, product roadmaps, strategies, and forecasts, pricing, discounts and financial information; any personal data or personally identifiable information, as well as the terms of this Agreement. Oral disclosure will be deemed Confidential Information if it would reasonably be considered to be of a confidential nature. Neither Party will use the other Party’s Confidential Information except as reasonably required for the performance of this Agreement. Each Party will hold in Calix Master Purchase and License Agreement CALIX CONFIDENTIAL © 2020 Calix, Inc. All Rights Reserved. (MPLA012820) 12 confidence the other Party’s Confidential Information by means that are no less restrictive than those used for its own confidential materials. Each Party agrees not to disclose the other Party’s Confidential Information to anyone other than its employees or subcontractors who are bound by confidentiality obligations and who need to know the same to perform such Party’s obligations hereunder. Notwithstanding the foregoing, Confidential Information does not include information which the receiving Party is able to demonstrate is: (i) already in the possession of the receiving Party free of confidentiality obligation to the disclosing Party; (ii) independently developed by the receiving Party; (iii) publicly disclosed through no fault of the receiving Party; (iv) rightfully received by the receiving Party from a third party that is not under any obligation to keep such information confidential; or (v) disclosed pursuant to the requirements of law, regulation, or court order, provided that the receiving Party will promptly inform the disclosing Party of any such requirement and reasonably cooperate with efforts to limit disclosure, procure a protective order or similar treatment. Upon termination or expiration of this Agreement, each Party will return or destroy all of such Confidential Information of the disclosing Party and all copies thereof in the receiving Party’s possession or control to the disclosing Party. The receiving Party will certify in writing that no copies have been retained by the receiving Party, its employees or agents. b. Customer agrees that Calix may collect and use system and/or device information gathered as part of the Subscription Services and/or product support services related to the Software to improve, further develop and enhance its Subscription Services, Support Services, internal processes and other products and services. c. The Parties agree that there may be no adequate remedy at law for any breach of this Section 4 of Article V, including without limitation any actual or threatened disclosure of Confidential Information, and that either Party, in addition to any other rights or remedies, will be entitled to seek equitable relief including an injunction restraining any such breach or threatened breach by the other Party. The receiving Party of Confidential Information agrees to reasonably cooperate with disclosing Party in the event any action is necessary to enforce the terms of this Section 4 of Article V with respect to the activities of any third party (including any third party agent of the receiving Party), including providing reasonable assistance to protect any rights provided in law or equity regarding the Confidential Information or to remedy any injury resulting from the inappropriate or unauthorized disclosure or use of the Confidential Information. 5. Compliance with Laws. Customer acknowledges that the Calix products, platforms, services and Calix Content referenced herein, including without limitation the Systems Products, Software, Cloud Services or other Subscription Service, and all materials related thereto contain U.S. origin materials, including proprietary and/or confidential information of Calix, and are subject to U.S. laws and regulations. Accordingly, Customer represents and warrants that (i) Customer will not, and will not permit its subscribers to, download, use, transfer, transmit or transported any Calix products, platforms, software, services or Calix Content to a country that is subject to a U.S. Government embargo, or has been designated by the U.S. Government as a “terrorist- supporting” country; (ii) Customer shall, and shall require its subscribers to, comply strictly with all applicable export laws, restrictions, and regulations of any U.S. or foreign agency or authority; and (iii) no use, export or re-export of any Calix products, platforms, software, services or Calix Content or exercise of rights under any licenses granted by Calix may be by, on behalf of, or for the benefit of any national or resident of any U.S.- embargoed country or anyone on the U.S. Treasury Department’s list of Specially Designated Nationals or the U.S. Department of Commerce’s Table of Denial Orders, as such materials may be updated from time to time. Customer will not export or re-export, or allow the export or re-export of any product, technology, or information it obtains or learns pursuant to this Agreement (or any direct product thereof) in violation of any such laws, restrictions, or regulations. By using any Calix products, platforms, software, services or Calix Content, Customer represents and warrants that it is not located in, under control of, or a national or resident of any such country or on any such list. Customer shall obtain any necessary licenses and/or exemptions and bear all related expenses with respect to any export or re-export of any Calix products, platforms, software services or Calix Content, or any part thereof. Customer agrees to defend, indemnify, and hold harmless Calix from any and all loss, liability, and expense (including reasonable attorneys’ fees and court costs) incurred by Calix Master Purchase and License Agreement CALIX CONFIDENTIAL © 2020 Calix, Inc. All Rights Reserved. (MPLA012820) 13 Calix as a result of any claim, demand, or action brought against Calix relating to Customer’s breach of the obligations in this Section 5 of Article V (Compliance with Laws). 6. Third-Party Software Notices. Software or services supplied under this Agreement may include separately licensed third-party components including software licensed under freeware or open source software terms. This Agreement does not alter any rights or obligations with respect to such third-party components. Additional notices and license terms applicable to third-party components of the Software may be found in the Software release notes, which are available for download from the Calix Software Center in the Calix customer portal accessible at https://www.calix.com/my-calix.html). Customer’s use of the Software constitutes its agreement to the provisions of each such applicable notice and/or license term. Calix does not seek to restrict, or receive compensation for, the copying or redistribution of publicly licensed code that is otherwise freely re- distributable to third parties (and not otherwise restricted by federal copyright or other laws). Calix disclaims all liability and warranties with respect to software subject to a public license. CALIX DISCLAIMS ANY RESPONSIBILITY FOR ANY DISCLOSURE OF INFORMATION OR ANY OTHER PRACTICES OF ANY THIRD-PARTY APPLICATION PROVIDER. CALIX EXPRESSLY DISCLAIMS ANY WARRANTY REGARDING WHETHER CUSTOMER’S PERSONAL INFORMATION IS CAPTURED BY ANY THIRD-PARTY APPLICATION PROVIDER OR THE USE TO WHICH SUCH PERSONAL INFORMATION MAY BE PUT BY SUCH THIRD-PARTY APPLICATION PROVIDER. 7. Audit Rights. During the Term and for a period of twelve (12) months following the expiration or termination of this Agreement, Calix shall have the right to audit Customer’s compliance with the terms of this Agreement, including usage hereunder, provided Calix shall provide Customer with advanced notice of at least five (5) days and shall not conduct audits more frequently than twice per calendar year. Customer shall reasonably cooperate in such audits. Customer shall maintain at all times accurate records of its compliance with this Agreement and shall provide Calix with such records promptly upon request. In the event Customer has not complied with its obligations hereunder, Customer shall reimburse Calix for the cost of the audit in addition to any fee obligations resulting from the audit and such other rights and remedies as Calix may have. 8. Notice. All notices required or permitted under this Agreement will be in writing and will be effective upon confirmed receipt by hand delivery, fax, courier, certified mail to the address set forth above (and in the case of Calix, with courtesy copy to calixlegal@calix.com). 9. Governing Law and Venue. This Agreement shall for all purposes be governed by and interpreted in accordance with the laws of the State of California, without reference to its conflict of laws principles. The Parties shall use reasonable efforts to resolve any disputes, controversies or differences arising out of or relating to this Agreement amicably. If the Parties are not able to reach resolution within 60 days (or such longer period as mutually agreed), then any dispute, claim or controversy arising out of or relating to this Agreement, or the breach thereof, shall be determined by binding arbitration administered by the American Arbitration Association in accordance with its Arbitration Rules as modified by this Agreement. The arbitration shall be held before one neutral arbitrator. The arbitration and proceedings shall be confidential. The place of arbitration shall be San Francisco, California. The arbitrator will issue a detailed written decision and award that shall set forth the legal principles of the opinion, shall decide all issues submitted, and shall be final and binding upon the Parties. Judgment on the arbitral award may be entered in any court of competent jurisdiction. This Section 9 of Article V shall not preclude either Party from seeking injunctive or other equitable relief in an appropriate court of competent jurisdiction. The United Nations Convention on Contracts for the International Sale of Goods does not apply to the transactions contemplated by this Agreement. 10. Assignment. Customer may not assign or transfer its rights or obligations under this Agreement without Calix’s prior consent, except to a person or entity who acquires all or substantially all of the assets or business of Customer, whether by sale, merger or otherwise. Any attempted assignment or transfer in violation of this provision shall be void and without effect. This Agreement and the License hereunder will bind and inure to the benefit of the Parties and their respective successors and permitted assigns. Calix Master Purchase and License Agreement CALIX CONFIDENTIAL © 2020 Calix, Inc. All Rights Reserved. (MPLA012820) 14 11. General. If any portion of this Agreement is held invalid, it shall not affect the validity of the remaining portions. Failure of either Party to exercise a right granted or to require performance of any term of this Agreement, or waiver by either Party of a breach of this Agreement shall not prevent subsequent exercise or enforcement of, or be deemed a waiver of any subsequent breach of, the same or other term of this Agreement. Nothing in this Agreement shall create a joint venture, partnership, or similar arrangement between the Parties. No Party is authorized to act as agent for the other Party except as expressly stated in this Agreement. Neither Party shall be responsible for any failure to perform or delay attributable in whole or in part to any cause beyond its reasonable control, including but not limited to any delay, interruption, error, or malfunction due to natural disaster; transportation problems; defects, or malfeasance of third-party software, hardware, communications, or power supplies; materials shortages; disruptions in availability of electricity, energy or natural resources; strikes; actual or threatened war (whether or not declared); government or regulatory action; civil unrest; riots; earthquakes; floods; fire; actual or threatened terrorist acts; sabotage; labor disputes; failure or delay in delivery by suppliers or subcontractors; acts or omissions of the other Party or its agents or affiliates; acts of God; and other acts, events, or circumstances beyond its reasonable control, whether or not foreseeable or identified. The Parties acknowledge that they have read and understand this Agreement and agree to be bound by its terms. The Parties agree that this Agreement is the complete and exclusive statement of the agreement between Customer and Calix, and supersedes any proposal or prior agreement, oral or written, and any other communications relating to the subject matter of this Agreement. The terms of this Agreement shall override any conflicting terms contained in any purchase order, order form, quote, acceptance, or other document. No modification, addition, deletion or waiver of any term or condition of this Agreement shall be binding on either Party unless in writing signed by an authorized representative of such Party. This Agreement may be executed in one or more counterparts, each of which shall be deemed an original, and all of which together shall constitute one agreement. Signatures delivered by fax, scan, or other electronic means shall be considered original signatures for all purposes under this Agreement. * * * * * IN WITNESS WHEREOF, both Parties have caused this Agreement to be executed by their duly authorized representatives as of the Effective Date. CALIX, INC. By: Name: Title: Contact: Date: CUSTOMER By: Name: Title: Contact: Date: Calix Master Purchase and License Agreement CALIX CONFIDENTIAL © 2020 Calix, Inc. All Rights Reserved. (MPLA012820) 15 Exhibit A Terms and Conditions for Products These Terms and Conditions for Products shall apply to Customer’s purchases of systems products, equipment and other hardware that Calix makes available for sale (collectively, the “Products”) for Customer’s end use. The terms and conditions in this Exhibit A are made a part of and incorporated into the Master Purchase and License Agreement entered into between Customer and Calix (the “Agreement”) only if there is no executed agreement for Customer’s purchase of Calix Products in effect with Customer prior to the Effective Date of the Agreement. 1. Scope. Calix agrees to sell to Customer the Products that Calix makes available for general sale to end customer based on purchase orders authorized and placed by Customer and accepted by Calix as set forth below. This Agreement is non-exclusive. Products are sold for use by Customer and its end users only and may not be resold to third parties. Calix customer support services shall be extended only to Products purchased directly from Calix or its specifically authorized resellers and are subject to Calix standard terms and conditions for support services. Under no circumstances shall provision to Customer of any product road maps, or other documents or oral presentations of any kind concerning Calix’s future product development plans, be construed as a binding commitment to provide any such new products, features or enhancements to Customer on any specific timetable or at all. 2. Forecasts. Within five days of the beginning of each calendar quarter, Customer shall provide Calix with a written good faith rolling 12-month forecast (the “Forecast”) which sets forth Customer’s projected demand for Products for each of the 12 months following delivery of such Forecast. Forecasts are provided for informational purposes and shall not create any binding obligations on behalf of either party. Notwithstanding the foregoing, Customer may elect to issue a binding forecast to secure specific delivery dates and volumes mutually agreed with Calix. 3. Purchase Orders. Customer shall order Products by issuing written purchase orders (“POs”) signed by customer. No PO shall request a delivery date sooner than Calix’s standard lead time for the Products ordered. Calix shall have the right, in its sole discretion, to accept or reject POs, and no PO shall be binding unless accepted by Calix in writing, and any terms not expressly accepted shall not be considered binding on Calix. Each PO will set forth the following minimum information: the Product(s) and quantities desired, requested shipment date, ship-to location(s), billing address, and any shipping instructions. A PO constitutes a firm purchase obligation of Customer, provided that Customer may cancel any PO prior to the Scheduled Ship Date (as defined below), subject to payment of a 15% cancellation fee if canceled fewer than 20 business days before the Scheduled Ship Date. POs cannot be cancelled on or after the Scheduled Ship Date. 4. Scheduled Ship Date. Calix will schedule the shipment date (the “Scheduled Ship Date”) for the Products in each accepted PO. Calix shall use commercially available methods for shipment of Products. Time of any delays and holds resulting from Customer activity or inactivity shall be applied to extend the Scheduled Ship Date. Should Calix be unable to make shipment of a Product by the Scheduled Ship Date, it shall inform Customer of the revised Scheduled Ship Date with an updated to its acceptance of the PO. Calix may ship Products in partial shipments and such partial shipments may be invoiced individually. 5. No Returns. All purchased Products shall be deemed accepted once provided to the carrier for shipment. Products do not carry any right of return. Any Product return request must be approved in advance by Calix and subject to Calix RMA. Any approved returns must be received by Calix unopened in original packaging and in original condition within 30 days of shipment to Customer. Product returns are subject to a 15% restocking fee, which Calix may invoice for immediate payment. 6. Prices; Shipping; Title. Customer shall pay the Product prices provided to Customer by Calix in authorized written quotations from time to time. Calix shall have the right to revise prices upon 30 days’ written notice to Customer. Revised prices shall apply to all POs submitted after the effective date of the revision. All prices are exclusive of shipping, insurance and installation charges, all of which are Customer’s sole responsibility. Prices are exclusive of all sales, use, excise, value added, withholding and other taxes, and all customs duties and tariffs. Such charges will be added to the price or subsequently invoiced to the Customer. In the event Calix is required to pay any such tax, duty or charge, Customer will promptly reimburse Calix. All shipments are Incoterms 2010 EXW Calix’s designated manufacturing facility, and title and risk of loss will pass to Customer when Calix places the Products at the disposal of the carrier. The carrier shall be deemed Customer’s agent, and any claims for damages in shipment must be filed by Customer with the carrier. Further, Calix is authorized to designate a carrier under Calix’s standard shipping practices. Calix Master Purchase and License Agreement CALIX CONFIDENTIAL © 2020 Calix, Inc. All Rights Reserved. (MPLA012820) 16 7. Invoicing; Payment Terms; Security Interest. Calix is entitled to invoice for Products upon shipment. Calix may determine and grant credit terms on a per-PO basis and may change or withdraw credit terms at any time in its sole discretion. Unless otherwise specified in Calix’s invoice, all payments shall be made in US dollars payable within 30 days from the date of invoice. Amounts not paid when due will accrue interest at the greater of 1.5% per month, or the maximum allowed by law. If any payment is more than 30 days overdue, Calix shall have the right to suspend performance under this Agreement, including without limitation all warranty, support and services under any Calix agreement with Customer, until all payments are made current. Customer shall pay all costs (including reasonable attorneys’ fees) incurred by Calix in connection with collection of late payments. In the event Customer is delinquent in payment of invoices, Calix shall have a right of set-off against any sums payable or reimbursable to Customer. Customer has no right of set-off as to any invoices issued by Calix whether against other POs or other transactions with Calix. Customer hereby grants calix a security interest in the products in the amount of any unpaid balance of purchase price until paid. Customer is obligated to cooperate with calix to perfect such security interest rights if requested by calix for unpaid balances. 8. Intellectual Property Rights. Calix and its licensors own and retain all rights to all Intellectual Property Rights (“IPR”) embodied in the Products. Calix at no time waives or assigns any rights or ownership to any IPR, and Customer shall not contest the ownership of any IPR. 9. Ancillary Software License. Any firmware for the Products or ancillary embedded software provided by Calix as part of the Products, including updates or modifications to such software (collectively, “Ancillary Software”) that Calix has not made subject to separate license terms is authorized for Customer’s limited end use with the Products under the following license grant, terms and restrictions. For clarity, Calix operating systems, platforms and application software are subject to separate license grant by Calix and not included in the license grant in this Section 9. (a) Calix hereby grants Customer a limited, non-exclusive, non-transferable, non-sublicensable, revocable license to use the Ancillary Software solely for Customer’s internal business end use in conjunction with the Products for so long as the Products are deployed by Customer. Customer shall not, and shall not authorize any third party to (i) transfer, copy, modify or distribute the Ancillary Software, (ii) decompile, reverse engineer or otherwise gain access to Ancillary Software source code, or unbundle embedded Ancillary Software from any Product, (iii) permit any third party to access or use the Ancillary Software, or (iv) remove or alter any copyright or trademark notice. Customer shall not modify or copy any Product Documentation. Any reference in this Agreement to purchase or sale of Ancillary Software means the acquiring or granting of this license. Customer acknowledges that except for the above license, Calix retains all right, title and interest in and to the Ancillary Software. If any derivative work is created by Customer from the Ancillary Software, Calix or its licensors shall own all right, title and interest in such derivative work(s). Customer acknowledges that the Ancillary Software and documentation constitute Calix Confidential Information and Customer agrees to abide by the confidentiality provisions of this Agreement in the use and handling of the Ancillary Software and documentation. Customer’s use of the Ancillary Software in accordance with the terms and restrictions are subject to Calix’s audit rights under this Agreement. (b) THE ANCILLARY SOFTWARE IS PROVIDED “AS IS” TO THE FULLEST EXTENT PERMITTED BY LAW. CALIX EXPRESSLY DISCLAIMS ALL OTHER WARRANTIES, EXPRESS OR IMPLIED, INCLUDING WARRANTIES OF QUALITY, PERFORMANCE, MERCHANTABILITY, FITNESS FOR ANY PARTICULAR PURPOSE, CONFORMITY TO ANY REPRESENTATION OR DESCRIPTION, NON-INFRINGEMENT, TITLE, AND OWNERSHIP. CALIX DOES NOT WARRANT THAT THE ANCILLARY SOFTWARE: (i) IS ERROR-FREE; (ii) WILL PERFORM UNINTERRUPTED; OR (iii) WILL MEET CUSTOMER’S REQUIREMENTS. EACH PARTY DISCLAIMS ALL LIABILITY AND INDEMNIFICATION OBLIGATIONS FOR ANY HARM OR DAMAGES CAUSED BY ANY THIRD PARTIES. 10. Limited Product Warranty. Calix warrants that for the period specified herein (“Warranty Period”), Products will be free from material defects in materials and workmanship and will conform to Calix’s product specifications in effect as of the date of manufacture: for CPE – one year from date of shipment; for any other Product – five years from date of shipment. The limited warranty terms of this Section 10 extend only to Customer as original purchaser. If during the Warranty Period (i) Calix is notified promptly in writing upon discovery of a material breach of the above warranty, including a detailed description of the alleged breach, (ii) the Product is returned, shipping prepaid, to a designated manufacturing facility under Calix’s then-current return procedures, and (iii) Calix determines that the Product is defective and not subject to any exception provided in this Section 10, then, as Customer’s sole remedy and Calix’s sole obligation, Calix will, at its option, repair or replace the Product without charge. Any Product repaired or replaced under warranty shall have warranty coverage for the longer of 90 days from return or the remaining Warranty Period. Replacement parts used in the repair of Products may be new or reconditioned. Calix Master Purchase and License Agreement CALIX CONFIDENTIAL © 2020 Calix, Inc. All Rights Reserved. (MPLA012820) 17 (a) The above warranty shall not apply if the Product (i) has been subjected to abuse, misuse, accident, improper testing, improper storage, or other use contrary to Calix instructions, (ii) has been repaired or modified by persons other than Calix, (iii) has not been installed, operated, repaired and maintained in accordance with its documentation, (iv) has failed due to an act of God, including without limitation fire, flood, tornado, earthquake, hurricane or lightning or (v) has been used with any third-party software or hardware, including without limitation any third-party optical interfaces, not previously approved in writing by Calix. In addition, the above warranty shall not apply to Products (A) marked or identified as “sample,” (B) loaned or provided at no cost, (C) which have had their serial numbers or other identifying marks removed or altered, or (D) sold “as is”. (b) CALIX MAKES NO ADDITIONAL WARRANTY, EXPRESS, IMPLIED OR STATUTORY, FOR ANY PRODUCT, INCLUDING WITHOUT LIMITATION ANY IMPLIED WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT, OR ARISING FROM USAGE OF TRADE, COURSE OF PERFORMANCE, OR DEALING. CALIX DOES NOT WARRANT ANY THIRD-PARTY HARDWARE OR SOFTWARE PRODUCTS PROVIDED UNDER THIS AGREEMENT. CUSTOMER’S SOLE REMEDY WITH RESPECT TO THIRD PARTY PRODUCTS SHALL BE UNDER THE ORIGINAL MANUFACTURER’S OR LICENSOR’S WARRANTY, IF ANY. 11. Product Indemnity. Calix will indemnify Customer against any third-party action alleging that a Product directly infringes a U.S. patent, and will pay any damages and costs (including attorneys’ fees) finally awarded against Customer by a court of competent jurisdiction and attributable to the Product, subject to the limitations and conditions in this Agreement. If any Product, or part thereof, becomes, or in Calix’s opinion may become, the subject of an infringement claim, Calix may, at its option: (i) procure for Customer the right to continue using the Product, (ii) modify or replace the Product with substantially equivalent non-infringing products, or (iii) require return of the Product and refund Customer a pro-rata portion of the purchase price paid for the Product based on straight line depreciation over a three-year economic life. This Section 11 states the entire liability of calix for any claims of infringement of intellectual property rights for the products. (a) Notwithstanding any other provision of this Agreement, Calix shall have no indemnification obligations in the event of Customer’s nonpayment for the Products or with respect to (i) use of any Product in combination with products not supplied by Calix, (ii) use of any Product in an unauthorized manner or in a manner inconsistent with Calix’s published Product Documentation or this Agreement, (iii) modifications to the Products not expressly certified or authorized by Calix, (iv) any service or process using any Product, or (v) Customer’s continued use of the Product or other allegedly infringing activity contrary to requests by Calix. In such event Customer shall indemnify Calix against such action, and pay all settlements entered into, and all final judgments, fees and costs awarded in connection with such action. (b) Calix’s indemnification obligations are subject to Customer (i) notifying the indemnifying party promptly in writing of such action and setting forth reasonable details as to how the Calix Products potentially directly infringe, (ii) giving the indemnifying party exclusive control and authority over the defense or settlement of such action, and (iii) providing all reasonable assistance to the indemnifying party (at the indemnifying party’s expense). For purposes of this Agreement, Product Documentation is limited to Calix product manuals and documentation that Calix publishes to its product documents library as an official product reference document for customer use. 12. Limitation of Liability for Products. In no event shall either party be liable for any lost revenue, lost profits, indirect, special, incidental, consequential, or punitive damages, however caused and under any theory of liability, whether in contract, tort (including negligence and strict liability) or otherwise, arising out of these Terms and Conditions for Products. Calix’s total cumulative liability in connection with any Products purchased by Customer, in contract, tort, strict liability or otherwise, shall in no event exceed the payments for purchases of Products (exclusive of any service, subscription or license fees) received by Calix from Customer in the 12 months immediately preceding the date the cause of action arose. The above limitations shall apply even if Calix has been advised of the possibility of such damages, and regardless of any failure of essential purpose of any limited remedy. This Limitation of Liability for Products is intended to serve as a separate limitation of liability applicable only to liability associated with Products purchased hereunder, and not applicable to any license, subscriptions or services which are subject to the Limitation of Liability set forth in Section 2 of Article V of the Agreement. *****