DataGuard Licensing Agreeement

Version 1.3

THIS DOCUMENT IS A LEGAL AGREEMENT (the “Agreement”) BETWEEN SYMMETRY SYSTEMS, INC. (“Licensor”) AND YOU OR THE ORGANIZATION ON WHOSE BEHALF YOU ARE ENTERING INTO THIS AGREEMENT (“Licensee”) IN RELATION TO THE DATAGUARD SOFTWARE GENERALLY MADE AVAILABLE IN OBJECT CODE FORMAT (“Software”). THESE TERMS SHALL APPLY FOR THE TERM IDENTIFIED IN ANY ORDER FORM SIGNED BY LICENSEE FOR THE SOFTWARE (each an “Order Form”) UNTIL EACH RENEWAL OF THE TERM WHEREUPON ANY UPDATED TERMS AND CONDITIONS SHALL APPLY.

BY DOWNLOADING, INSTALLING, COPYING OR OTHERWISE USING THE SOFTWARE, YOU ACCEPT THE FOLLOWING TERMS AND CONDITIONS. IF YOU DO NOT AGREE WITH ANY OF THE TERMS OR CONDITIONS OF THIS LICENSE AGREEMENT, DO NOT PROCEED WITH THE DOWNLOADING, COPYING, INSTALLATION OR ANY OTHER USE OF THE SOFTWARE OR ANY PORTION THEREOF AS YOU HAVE NO RIGHTS TO DO SO. THE SOFTWARE IS PROTECTED BY UNITED STATES COPYRIGHT LAWS AND INTERNATIONAL COPYRIGHT LAWS, AS WELL AS OTHER INTELLECTUAL PROPERTY LAWS AND TREATIES. THE SOFTWARE IS LICENSED, NOT SOLD.

THIS LICENSE AGREEMENT DESCRIBES YOUR RIGHTS AND RESTRICTIONS WITH RESPECT TO THE SOFTWARE AND ITS COMPONENTS.

1. SOFTWARE AND RESTRICTIONS

1.1 Software. Subject to Licensee’s compliance with the terms and conditions of this Agreement, Licensor hereby grants Licensee a non- exclusive, non-transferable, and non-sublicensable license to use the Software (1) for Licensee’s internal business purposes and in conformity with the Software’s documentation and (2) for the number of Clusters on Schedule 1. If License desires to increase the number of authorized Clusters beyond those on Schedule 1, Licensee must notify Licensor and the parties may agree to an amendment to this agreement increasing the number of authorized Clusters. Licensor states that on delivery to Licensee the Software does not contain any viruses, Trojan horses, or other malicious code.

1.2 Restrictions. Licensee shall not, and shall not authorize or assist any third party to: (1) modify, adapt, translate, reverse engineer, decompile, disassemble, or attempt to derive the source code of any part of the Software; (2) use or integrate the Software with any software, hardware, or system other than Licensee’s computer equipment on which the Software is designed to operate; (3) sell, resell, license, sublicense, distribute, rent or lease any part of the Software or provide any third party with access to the Software; (4) disclose to any third party any results of any benchmark or other performance tests of the Software; (5) remove, alter, or obscure any proprietary rights notices contained in or affixed to the Software; or (6)
use the Software to store or transmit any malicious code.

THE SOFTWARE IS NOT INTENDED TO BE USED FOR ACTIVITIES WHERE USE OR FAILURE COULD LEAD TO DEATH, PERSONAL INJURY, OR ENVIRONMENTAL DAMAGE, INCLUDING THE OPERATION OF AIRCRAFT NAVIGATION, NUCLEAR FACILITIES, WEAPONS SYSTEMS, LIFE-SUPPORT SYSTEMS, AUTONOMOUS VEHICLES, AIR TRAFFIC CONTROL, EMERGENCY SERVICES, OR ANY APPLICATION OR INSTALLATION WHERE FAILURE COULD RESULT IN DEATH, SEVERE PHYSICAL INJURY OR PROPERTY DAMAGE AND, NOTWITHSTANDING ANYTHING TO THE CONTRARY IN THIS AGREEMENT, LICENSEE SHALL HAVE NO LIABILITY FOR SUCH USE

1.3 Payment. Licensee shall pay to Licensor the fees (the “Fees”) for use of the Software as posted on Licensor’s site or set forth in an applicable Order Form, via the method reasonably designated by Licensor. All payments shall be due 30 days from the invoice date. All payments are non-refundable and exclusive of all taxes, levies, and assessments of any jurisdiction (other than income tax). If Licensee fails to pay Licensor the fees when due and fails to cure such nonpayment within 30 days of the applicable due date, any outstanding fees will accrue interest at a rate of 1.5% per month, or the maximum permitted by law, whichever is lower, until the outstanding fees are paid and Licensee shalls promptly reimburse Licensor for all expenses of collection including attorneys’ fees and costs.

1.4 Ownership. This is a license agreement and not an agreement for sale. Licensor reserves ownership of all intellectual property rights inherent in or relating to the Software, which include, but are not limited to, all copyright, patent rights, all rights in relation to registered and unregistered trademarks (including service marks), confidential information (including trade secrets and know-how) and all rights other than those expressly granted by this agreement. Licensee must not remove, obscure or interfere with any copyright, acknowledgment, attribution, trademark, warning or disclaimer statement affixed to, incorporated in or otherwise applied in connection with the Software.

1.5 Feedback. Licensee welcomes feedback, comments, and suggestions for improvements to the Software. All feedback is entirely voluntarily and shall not, absent a separate written agreement between the parties, create any confidentiality obligation for Company. Company may freely use, disclose, reproduce, license, distribute, or exploit the feedback without restriction.

2. TERM AND TERMINATION

2.1 Term. This agreement begins on the date of purchase and shall apply for any agreed trial period, for the period paid, or for the term provided in an Order Form. Unless otherwise provided in an Order Form and unless identified as a trial, evaluation, or proof of concept term, the Term automatically renews for additional successive one-year periods (each a “Renewal Term”) unless earlier terminated as provided below or unless either party gives the other party written notice of non-renewal at least 30 days prior to the expiration of the then-current Term.  Fees for each Renewal Term shall increase by seven percent (7%) from the prior years’ Fees, not to include any discounts referenced on the applicable Order Form.

2.2 Termination. A party may terminate this agreement upon notice to the other party if the other party breaches this agreement and if such breach is capable of being cured, such other party does not cure such breach within 30 days after receiving notice of such breach.

2.3 Effect of Termination. Upon termination of this agreement, Licensee shall uninstall the Software from all equipment or devices and certify such uninstallation in writing. Licensee shall not retain any copy of the Software or its documentation following termination. Terms which by their nature should survive will survive, including, without limitation, ownership provisions, indemnification, warranty disclaimers, limitations of liability, and dispute resolution provisions.

3. DISCLAIMER OF WARRANTIES; INDEMNIFICATION AND LIMITATIONS

3.1 Disclaimer of Warranties. Except as expressly set forth in this agreement, the Software is provided by Licensor “as is” and Licensor makes no other warranties, express, implied, statutory, or otherwise with respect to the Software or its use or operation. Licensor disclaims the implied warranties of merchantability, fitness for a particular purpose, title, and non-infringement.

3.2 Indemnification.  Licensor agrees to defend, indemnify and hold harmless Licensee and its officers, directors, employees and agents, from and against any and all claims, damages, obligations, losses, liabilities, costs, debts, or expenses (including but not limited to attorneys’ fees), to the extent allowed by applicable law, that arise from or are caused by: (i) Licensor’s use of and access to the Software; (ii) Licensor’s violation of this Agreement; or (iii) Licensor’s violation of any third party right, including without limitation any copyright, property, moral or privacy right.

3.3 LIMITATION OF LIABILITY.  TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, COMPANY AND ITS RESELLERS DISCLAIM ALL WARRANTIES AND CONDITIONS, EITHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, AND NON-INFRINGEMENT, WITH REGARD TO THE SOFTWARE. COMPANY DOES NOT GUARANTEE THAT THE OPERATION OF THE SOFTWARE OR THE CODE IT PRODUCES WILL BE UNINTERRUPTED OR ERROR-FREE, AND LICENSEE ACKNOWLEDGE THAT IT IS NOT TECHNICALLY PRACTICABLE FOR US TO DO SO.  IN NO EVENT WILL COMPANY OR ITS RESELLERS BE LIABLE TO LICENSEE, WHETHER IN CONTRACT, BY REASON OF NEGLIGENCE OR OTHERWISE, FOR PUNITIVE, CONSEQUENTIAL, EXEMPLARY, INCIDENTAL, OR INDIRECT DAMAGES OR COSTS (INCLUDING LEGAL FEES AND EXPENSES) OR LOSS OF GOODWILL OR PROFIT IN CONNECTION WITH THE SUPPLY, USE OR PERFORMANCE OF OR INABILITY TO USE THE SOFTWARE, OR NON-PERFORMANCE OF ANY OBLIGATIONS PROVIDED HEREUNDER, OR IN CONNECTION WITH ANY CLAIM ARISING FROM THIS AGREEMENT, EVEN IF COMPANY OR ITS RESELLERS HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES OR COSTS. LICENSEE AGREES THAT COMPANY’S ENTIRE LIABILITY HEREUNDER FOR DAMAGES SHALL NOT EXCEED THE LESSER OF (I) THE AGGREGATE AMOUNTS PAID OR PAYABLE BY LICENSEE WITHIN THE SIX-MONTH PERIOD IMMEDIATELY PRECEDING THE DATE THE LIABILITY THAT GAVE RISE TO DAMAGES WAS INCURRED; AND (II) FIVE HUNDRED DOLLARS ($500).

4. MISCELLANEOUS

4.1 Governing Law. This agreement shall be governed by the laws of the State of California, without regard to the conflict of laws provisions thereof, and shall be subject to the exclusive jurisdiction of the courts located in San Mateo County, California, and the parties hereby submit to the personal jurisdiction and venue of these courts.

4.2 Severability. The parties acknowledge that if a dispute between the parties arises out of this agreement or the subject matter of this agreement, they would want the court to interpret this agreement as follows: (1) with respect to any provision that it holds to be unenforceable, by modifying that provision to the minimum extent necessary to make it enforceable or, if that modification is not permitted by law, by disregarding that provision; (2) if an unenforceable provision is modified or disregarded in accordance with this section 5.3, by holding that the rest of the agreement will remain in effect as written; (3) by holding that any unenforceable provision will remain as written in any circumstances other than those in which the provision is held to be unenforceable; and (4) if modifying or disregarding the unenforceable provision would result in failure of an essential purpose of this agreement, by holding the entire agreement unenforceable.

4.3 Export and Government Rights. Licensee shall not remove or export from the United States or allow the export or re-export of the Software or anything related thereto, or any direct product thereof in violation of any restrictions, laws or regulations of the United States Department of Commerce, the United States Department of Treasury Office of Foreign Assets Control, or any other United States or foreign agency or authority. As defined in FAR section 2.101, the Software and related documentation are “commercial items” and according to DFAR section 252.227 7014(a)(1) and (5) are deemed to be “commercial computer software” and “commercial computer software documentation.” Consistent with DFAR section 227.7202 and FAR section 12.212, any use modification, reproduction, release, performance, display, or disclosure of such commercial software or commercial software documentation by the U.S. Government will be governed solely by the terms of this agreement and will be prohibited except to the extent expressly permitted by the terms of this agreement.

4.4 No Implied License. There are no implied licenses or other implied rights granted under this agreement, and all rights, save for those expressly granted hereunder, shall remain with Licensor and Licensor’s licensors. In addition, no licenses or immunities are granted to the combination of the Software with any other software or hardware not delivered by Licensor or Licensor’s resellers to Licensee under this agreement.

4.5 Waiver. No waiver of satisfaction of a condition or nonperformance of an obligation under this agreement will be effective unless it is in writing and signed by the party granting the waiver.

4.6 Assignment. Licensee may not assign or transfer this agreement without Licensor’s prior written consent. Any attempted assignment or delegation in violation of this Section shall be null and void. This agreement may be assigned by Licensor in whole or part and will inure to the benefit of Licensor’s successors and assigns.

4.7 Force Majeure.  Licensor shall not be deemed to have defaulted under or breached this Agreement, for any failure or delay in fulfilling or performing any term of this Agreement, when and to the extent such failure or delay is caused by acts of God, flood, fire, explosion, war, terrorism, invasion, riot, other civil unrest, pandemic or threat thereof, embargoes or blockades in effect on or after the date of this Agreement, or national or regional emergency, in each case, or any other such event that is outside Licensor’s reasonable control.

4.8 Entire Agreement. This agreement is the complete and exclusive statement of the mutual understanding of the parties and supersedes and cancels all previous written and oral agreements and communications relating to the subject matter of this Agreement. No oral or written information given by Licensor, Licensor‘s resellers, or otherwise on Licensor’s behalf shall create a warranty or collateral contract, or in any way increase the scope of this agreement in any way, and Licensee may not rely on any such oral or written information. Any waivers or amendments shall be effective only if made in writing. Further, any different or additional terms of any related purchase order, confirmation, or similar form shall have no force or effect. The license granted herein is conditioned upon the acceptance of the terms and conditions hereof to the exclusion of all other terms, and no other or additional terms shall apply, unless so provided in writing signed by the parties hereto. Licensee expressly agrees by Licensee’s use of the Software that no such other, different or additional terms or conditions shall apply, notwithstanding any statements to the contrary included in any purchase order, confirmation, or similar form, and regardless of whether Licensor accepts payments referenced therein which shall not constitute acceptance of additional terms and conditions.