Calix, Inc. (“Calix”) has created, owns and operates certain private and or limited access websites such as the “My Calix” web portal (the “Calix Portals”) to share and/or license certain Calix owned information and content for authorized users (each a “User” and collectively, “Users”) subject to these Terms of Use (“TOU”).  Calix is willing to provide access and use to you (referred to as “You” or “Your”) as a User, provided Your access and use shall be subject to and governed by the TOU, including any additional or different disclaimers, legal notices or additional terms and conditions that may apply to Your use or access included with any particular content or materials. Please read the TOU carefully as it is legally binding. If You are accessing the Calix Portals in Your capacity as an employee of a company or other legal entity, Your acceptance shall be deemed as made on behalf of and binding upon such company or other legal entity.

ACCEPTANCE OF TERMS

By clicking “I AGREE” or accessing, downloading, installing or using any part of the Calix Portals, You accept and agree to abide by the terms of the TOU. If You are not willing to be bound by all the terms, click “I DECLINE” and Your access setup will not continue. If You are accepting these terms on behalf of another person or a company or other legal entity, you represent and warrant that You have full authority to act for and to bind that person, company, or legal entity to these terms.  If You do not have such authority, You must not accept this TOU and may not access or use the Calix Portals. Calix may from time to time modify the TOU to reflect changes in applicable law, content or for other reasons in Calix’s discretion.  Changes will apply prospectively from the date posted or notified by Calix.  Your continued access and use of the Calix Portals after the changes are posted indicate Your acceptance of such changes.

DEFINITIONS

The following definitions (and additional definitions provided in this TOU) apply:

1.       “You” or “Your” means the company or other legal entity for which you are accepting this TOU by accessing, downloading, installing or using the Calix Portals and/or Calix Content, and includes Affiliates of that company or entity. “Affiliate” means any entity that directly or indirectly controls, is controlled by, or is under common control with the subject entity.

2.       “Calix Content” means Calix-supplied text, documentation, software, applications, code, materials and any audio, video, graphics and other information and data as made available by Calix on the Calix Portals.

3.       “Calix Products” means Calix branded hardware, software applications and/or services, including services under the Calix Advantage Program.

4.       “Calix Portals” means one or more private websites hosted by Calix.  Calix Portals contain confidential and proprietary Calix owned information, materials and other content that Calix is willing to share only with authorized Users.

5.       “User” includes You and each of Your employees, consultants, contractors or agents who are expressly permitted by You to access and/or use the Calix Portals and have been supplied User identifications and passwords for such access. If you are a Calix reseller, User may include one or more direct customers, provided such customer is specified in an executed Calix reseller agreement with You.

PERMITTED ACCESS AND USE; LIMITED SOFTWARE LICENSE

Calix will provide You access to the Calix Portals and use of the Calix Content only for Your use in connection with Calix Products purchased from Calix or through an authorized Calix partner. You may download, view, store, print and otherwise display the Calix Content in connection with the foregoing permitted uses.  You may not sell, distribute, transmit, resell, license, transfer, rent or lease the Calix Portals or Calix Content, except that You may additionally use the Calix Content to the extent of any license, authorization or other rights under any agreement executed between You and Calix for the purchase, evaluation or use of Calix Products for the term of such agreement.  All software made available on the Calix Portals is the copyrighted work of Calix and any use outside of the scope of license granted in this TOU is an infringement of such rights.  If You access and use any software or related documentation, including developer kits, libraries or tools, or any application program interface or code (collectively, “Software”) made available on the Calix Portals, You are granted a limited license to use such Software to the limited extent of any license to software in any agreement executed between You and Calix for the purchase, evaluation or use of Calix Products for the term of such agreement and subject to the requirements of such license (including without limitation all restrictions and notice/marking requirements).  If You do not have license rights under a continuing agreement executed between You and Calix, then You are hereby granted a limited, non-exclusive, non-transferable license to use the Software solely for Your internal use in connection with Calix Products.  If You have been appointed by Calix as an authorized channel partner and You and Calix have executed Calix’s reseller agreement, You are also licensed to permit Your end customers to access and use the Calix Portals and Calix Content.  All licenses and rights conveyed in this TOU are conditioned upon Your agreement to maintain the Calix Content as Confidential Information (as defined below) at all times.

RESTRICTIONS ON USE

You agree that you will not use the Calix Portals or Calix Content in any manner that may disparage, damage, disable, impair or otherwise harm Calix, Calix’s provision of the Calix Portals or Calix Content, or otherwise interfere with Calix’s hosting or availability of the Calix Portals or Calix Content to Users.  You also agree that You will comply with all applicable local, state, federal or international laws and regulations in Your access and use of the Calix Portals and Calix Content.  You agree not to submit through the Calix Portals any material that is illegal, misleading, defamatory, indecent or obscene, threatening, infringing of any third party proprietary rights, invasive of personal privacy, harmful to children or otherwise objectionable (collectively “Objectionable Matter”).  Calix may, at its option at any time, adopt rules for permitted and appropriate use and may update them from time to time on the Calix Portals; You will be bound by any such rules.  Calix reserves the right to remove any submitted or posted materials that constitute Objectionable Matter or violate any Calix rules regarding appropriate use, but is not obligated to do so. You will comply with all applicable laws involving private and/or personally identifiable data.  If You choose to post, submit or make available any information to Calix, You hereby grant to Calix a perpetual, irrevocable, non-exclusive, worldwide, fully-paid up and royalty-free license to freely use such information to maintain, enhance or evaluate the Calix Portals or Calix Content. You further grant Calix a worldwide, perpetual, irrevocable, royalty-free license to use and incorporate into the Calix Content any suggestion, enhancement request or other feedback provided by You or Users relating to the Calix Content.

You agree not to reverse engineer any component of the Calix Content, including any software or other technology made available through the Calix Portals. You will not use or access the Calix Portals or Calix Content to: (1) build a competitive product or solution, (2) make or have made a product using similar ideas, features, functions or graphics of the Calix Content, (3) make derivative works based upon the Calix Content or (4) copy any features, functions or graphics of the Calix Content.

The Calix Content and any related materials, including Software and documentation, made available through the Calix Portals are subject to United States export laws and regulations, including restrictions on destinations, end users and end use.  You must comply with, and may not use any Calix Content or materials made available through the Calix Portals in contravention of, any applicable domestic and international export laws and regulations.

CALIX OWNERSHIP; INTELLECTUAL PROPERTY RIGHTS

Calix and its suppliers retain all rights, title and interest, including any intellectual property rights in any jurisdiction and whether or not registered, in the Calix Portals and Calix Content. This TOU grants no ownership rights to You. No license is granted to You except as to use of the Calix Portals and Calix Content as expressly stated herein. The Calix name, the Calix logo, and the product names associated with the Calix Portals and Calix Content are trademarks of Calix or third parties, and they may not be used without Calix’s prior written consent.  In no event will Calix’s ownership and rights with respect to the Calix Portals or Calix Content be altered, diminished or negatively impacted through Your access or use.

CONFIDENTIAL INFORMATION

“Confidential Information” means all trade secrets, intellectual property rights, and other non-public information, technical data or know-how furnished with the expectation and agreement that the confidential nature of the information will be maintained which is (1) labeled as “confidential”, (2) accessed through a restricted or non-public website (i.e., requires authorized log-in credentials), (3) accessed through download of software, or (4) reasonably identifiable as confidential based on the nature of the information and/or manner of its disclosure.  The Calix Content shall be treated as Calix Confidential Information.  You agree that You will hold in confidence the Calix Content and any other Confidential Information provided to You by Calix by means that are no less protective than those used for Your own confidential information, which shall not be less than the industry standard of care. You agree not to disclose any Calix Confidential Information to anyone other than Your employees or contractors on a “need to know” basis and who are bound by confidentiality obligations.  You also agree that You will not use any Calix Confidential Information except to the extent of the licenses and rights granted to You under this TOU.

Upon termination of Your rights and/or account under this TOU, You will (at Calix’s opton) either: (1) return all Calix Confidential Information and all copies thereof in Your possession, custody or control or (2) destroy all Confidential Information and all copies thereof in Your possession, custody or control.  Upon request, You will certify in writing that no copies have been retained by You or Your employees or agents.

In case You receive legal process that demands or requires disclosure of any Calix Confidential Information, You will give prompt notice to Calix, to the extent legally permissible, to enable Calix to challenge such demand or seek confidential treatment.

PRIVACY POLICY

Calix’s privacy policy, as made available on its public website at www.calix.com, and as may be modified from time to time by Calix, applies to any personal or other information related to Your use of the Calix Portals.  By accessing and using the Calix Portals, You accept the terms of such privacy policy.

REPRESENTATIONS AND WARRANTIES

You represent and warrant that (1) the Calix Portals will not be accessed and the Calix Content will not be downloaded or used in, or transported 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, and (2) You (and, if you are a Calix channel partner, any of Your end customers) are not listed on any U.S. Government list of prohibited or restricted parties.  Calix reserves the right to terminate this TOU for cause in case the You and/or Your end customer materially breach the foregoing provisions.

You are responsible for all activities that occur under Your User account. You are responsible for maintaining the security and confidentiality of all Your username and password.  A User account may not be shared or used by more than one User.  You agree to use commercially reasonable efforts to prevent unauthorized access to the use of the Calix Portals or Calix Content and/or its related systems.

You represent and warrant that You have the legal power and authority to enter into this TOU. You represent and warrant that You have not falsely identified Yourself or provided any false information to gain access to the Calix Portals and Calix Content.

INDEMNIFICATION

You will defend, indemnify, and hold Calix (and its officers, directors, employees and agents) harmless from and against all against costs, liabilities, losses, and expenses (including reasonable attorneys’ fees) arising out of or in connection with a claim, suit, action, or proceeding by a third party (1) alleging that any data or information supplied by You infringe the intellectual property rights or other rights of a third party or has caused harm to a third party or (2) due to or arising out of Your access or use of the Calix Portals or Calix Content, Your breach of this TOU (including any other agreement with Calix that covers Your use and access under this TOU) or any alleged violation by You of applicable law in connection with the TOU (including any other agreement with Calix that covers Your use and access under this TOU).  In case of any claim that is subject to indemnification under this TOU, Calix (as indemnitee) will provide You reasonably prompt notice of the relevant claim. You will defend and/or settle, at Your own expense, any demand, action, or suit on any claim subject to indemnification.

DISCLAIMER OF WARRANTIES

The Calix Portals and Calix Content are being provided on an “AS IS” and “AS AVAILABLE” basis.  Calix does not guarantee that access and use of the Calix Portals or to the Calix Content will be free of disruption or unavailability, including any disruption or unavailability caused by circumstances beyond Calix’s reasonable control, including without limitation, acts of God, acts of government, flood, fire, earthquake, civil unrest, acts of terror, strikes or other labor disruptions (other than those involving Calix employees), Internet service provider failure or delays, delays involving hardware, software, or power systems not within Calix possession or reasonable control, or denial of service attacks. Calix does not guarantee or provide any warranty of any kind as to features or qualities of the Calix Portals or Calix Content. Any warranties that Calix may provide are applicable only if and to the extent expressly stated in writing in an agreement executed between You and Calix.  No warranties or undertaking shall be implied by any User based on any marketing or other materials in the Calix Portals or Calix Content.  To the extent the Calix Portals contain links to any third party websites, Calix is not responsible for the content of such third party websites and shall not be directly or indirectly liable for any damages, loss or claim in connection with such third party websites or Your use and/or access to such websites.

NO WARRANTIES OR REPRESENTATIONS, EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION, THOSE OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE. YOU ASSUME ALL RESPONSIBILITY FOR DETERMINING WHETHER THE CALIX PORTALS, CALIX CONTENT OR INFORMATION GENERATED THEREBY IS ACCURATE OR SUFFICIENT FOR YOUR PURPOSES. CALIX DOES NOT WARRANT THAT USE OF THE SYSTEM WILL BE ERROR-FREE OR UNINTERRUPTED. CALIX IS NOT RESPONSIBLE FOR SOFTWARE INSTALLED OR USED BY USERS (WHETHER OR NOT IN CONNECTION WITH THE CALIX CONTENT), FOR THIRD PARTY SERVICES OR MATERIALS, OR FOR THE OPERATION OR PERFORMANCE OF THE INTERNET.

LIMITATION OF LIABILITY

EXCEPT WITH REGARD TO INDEMNIFICATION OBLIGATIONS, IN NO EVENT WILL EITHER PARTY’S LIABILITY WITH RESPECT TO ANY SINGLE INCIDENT ARISING OUT OF THIS TOU EXCEED THE LICENSE FEES FOR THE 12 MONTHS IMMEDIATELY PRECEDING THE TIME OF THE EVENT OR CIRCUMSTANCE GIVING RISE TO SUCH CLAIM. IN NO EVENT WILL CALIX HAVE ANY LIABILITY TO YOU FOR ANY LOST PROFITS, REVENUES OR INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL, COVER OR PUNITIVE DAMAGES, WHETHER AN ACTION IS IN CONTRACT OR TORT AND REGARDLESS OF THE THEORY OF LIABILITY, EVEN IF A PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.

GOVERNING LAW; JURISDICTION

Unless prohibited by applicable law, this TOU will be interpreted fairly in accordance with its terms in accordance with the laws of the State of California and applicable US federal law without regard to choice or conflicts of law rules. You agree that the state and federal courts located in the county of San Francisco, California, USA will have exclusive jurisdiction and venue over any dispute or controversy arising from or relating to this TOU or its subject matter.  Notwithstanding the foregoing, You agree that Calix reserves the right to seek injunctive or equitable relief as may be applicable in any court of competent jurisdiction.

GENERAL

Calix, in its sole discretion, may suspend or terminate Your username and password, account, or use of the Calix Portals and Calix Content and/or terminate this TOU if You materially breach this TOU.  This TOU may not be assigned by You without the prior written approval of Calix.  This TOU may be enforced by and is binding on permitted successors and assigns. If any provision of this TOU is held by a court of competent jurisdiction to be invalid or unenforceable, then such provision will be construed, as nearly as possible, to reflect the intentions of the invalid or unenforceable provision, with all other provisions remaining in full force and effect. No joint venture, partnership, employment, or agency relationship exists between You (or any User) and Calix as a result of this TOU or use or access to the Calix Portals or Calix Content. The failure of Calix to enforce any right or provision in this TOU will not constitute a waiver of such right or provision unless acknowledged and agreed to by Calix in writing. This TOU comprises the entire agreement between You and Calix and supersedes all prior or contemporaneous negotiations, discussions or agreements, whether written or oral, regarding the subject matter contained herein.

Dated: August 23, 2016