Arcserve s acceptance of an order from Arcserve s partner shall be deemed to be acceptance by Arcserve of the Agreement.

Transcription

1 Arcserve Managed Service Provider License Agreement Scheme Arcserve (USA), LLC, One CA Plaza, Islandia, NY 11749, USA ARCSERVE MAY PUBLISH ADDITIONAL TERMS ("ADDITIONAL TERMS") FROM TIME TO TIME COVERING ACCESS TO AND USE OF LICENSED PROGRAMS. BY USING OR DOWNLOADING ANY LICENSED PROGRAMS AND RELATED MATERIALS, YOU AGREE TO THE AGREEMENT AND ADDITIONAL TERMS. THE AGREEMENT, TOGETHER WITH ANY ADDITIONAL TERMS, FORM A LEGALLY BINDING AGREEMENT BETWEEN YOU AND ARCSERVE. IF THERE IS ANY CONFLICT BETWEEN THE ADDITIONAL TERMS AND THE AGREEMENT, THEN THE ADDITIONAL TERMS SHALL TAKE PRECEDENCE WITH RESPECT TO THAT SUBJECT MATTER. THE AGREEMENT MAY BE CHANGED OR MODIFIED AT ANY TIME. IT IS YOUR RESPONSIBILITY TO CHECK THIS AGREEMENT PERIODICALLY FOR CHANGES. YOUR CONTINUED USE AND ACCESS OF THE LICENSED PROGRAMS FOLLOWING THE POSTING OF CHANGES WILL MEAN THAT YOU ACCEPT AND AGREE TO THE CHANGES. IF YOU ARE ACCEPTING ON BEHALF OF YOUR EMPLOYER OR ANOTHER ENTITY, YOU REPRESENT AND WARRANT THAT: (I) YOU HAVE FULL LEGAL AUTHORITY TO BIND YOUR EMPLOYER, OR THE APPLICABLE ENTITY, TO THIS AGREEMENT; (II) YOU HAVE READ AND UNDERSTAND THIS AGREEMENT; AND (III) YOU AGREE, ON BEHALF OF THE PARTY THAT YOU REPRESENT, TO THIS AGREEMENT. IF YOU DO NOT AGREE OR IF YOU DO NOT HAVE THE LEGAL AUTHORITY TO BIND YOUR EMPLOYER OR THE APPLICABLE ENTITY, DO NOT ACCESS OR USE THE LICENSED PROGRAMS. Arcserve s acceptance of an order from Arcserve s partner shall be deemed to be acceptance by Arcserve of the Agreement. 1. Definitions CPU means Central Processing Unit and shall designate the part of the computer that computes information and on which the Licensed Program is installed. Effective Date means the date acceptance by Arcserve of MSP to the Arcserve Managed Service Provider License Agreement Scheme. MSP Client means an entity that has a formal contractual agreement with MSP for the provision of Managed Services, provided such entity is not engaged in facility management or service bureau service, or otherwise using the Licensed Program to process the data of any third party. Key Code means the electronic key code to unlock the trial status of a Licensed Program and activate it for production purposes. Licensed Program or Arcserve Software or Licensed Software or Software means the Recovery Management products listed on Exhibit A as made available by Arcserve from time to time. Location shall mean any premises in the Territory (defined below) occupied or controlled by MSP at which the Licensed Program are installed. "Managed Services" shall mean the provision of managed services and facilities management services to the MSP Client by MSP in respect of the MSP Client s internal and proprietary data and the operation of the Licensed Program on behalf of the MSP Client. Such managed services include the provision of online and website based services that the MSP Client may access. This specifically excludes the right to use the Licensed Program for sharing, renting, service bureau and third party training. Distributor shall mean a distributor authorized by Arcserve to sell Licensed Programs to MSPs. Territory shall mean North America. 2. Access to Licensed Programs and Key Codes 2.1 Subject to acceptance by Arcserve of MSP to the Arcserve Managed Service Provider License Agreement Scheme, the MSP shall then be sent a welcome by Arcserve together with details of how to download the trial Licensed Programs and access Maintenance and details of how to request batches of ten (10) Key Codes. Page 1 of 8 Rev. 3-13

2 2.2 MSP may then request further Key Codes through the Arcserve online system located at: MSP Requests must be in batches of 10 (ten) Key Codes at one time. Arcserve reserves the right to refuse reorders or change its Licensed Programs and pricing at any time. 2.3 MSP may only purchase and pay for Key Codes and Maintenance through Distributor. 2.4 The fees for the Key Codes and Maintenance shall be as agreed between MSP and Distributor. In the event that MSP fails to pay Distributor or Distributor fails to pay Arcserve for the Key Codes or Maintenance, Arcserve reserves the right to suspend MSPs use of the key Codes, Licensed Program and Maintenance by giving MSP 30 days notice in writing of the same. 2.5 For monthly subscriptions the distributor will invoice MSP monthly based on the number of Key Codes reported by MSPs in accordance with Section 7 below. For annual subscriptions (in one, two, or three-year increments) those part numbers should be ordered, and MSP invoiced for, at the beginning of the subscription period by placing an order through the standard ordering process and identifying the MSP as the End User field on the order form when filling out order information. 3. Software Rights 3.1 Arcserve grants the MSP a non-exclusive, non-transferable right to: (a) Install and deploy the Licensed Program at Locations in the Territory and use the Licensed Program to in the provision of Managed Services to MSP Client subject to the conditions set out below. (b) Where a copy of Licensed Program is installed on a MSP Client CPU, MSP shall (and shall include appropriate terms within its contract with the MSP Client) to: (i) (ii) (iii) (iv) Ensure the MSP Client complies with the obligations of confidentiality set out in this Agreement and shall include terms within its agreement with a MSP Client recognizing that the intellectual property rights in the Licensed Program belong to Arcserve or its licensors; Ensure the MSP Client shall not be permitted access to the Licensed Program and perform the Managed Services so as to prevent access to the Licensed Program to the MSP Client. Ensure that the benefit of the usage of the Licensed Program by the MSP Client is solely in connection with services provided by MSP to such MSP Client and forbid such MSP Client from downloading any Licensed Program to any server or desktop that is not managed as part of the Managed Service provided by MSP; Ensure that upon cessation of such use it shall be permanently deleted from that CPU, and any back-up copies destroyed. 3.2 Notwithstanding Arcserve s other rights and remedies, should the MSP become aware that an MSP Client is in breach of any of the above provisions MSP shall promptly notify Arcserve and shall take such action as is necessary to bring the MSP Client back within the above terms and keep Arcserve informed of the action it is taking. The MSP shall indemnify Arcserve for all losses, costs, damages and expenses incurred by Arcserve as a result of any breach of the Licensed Program committed by the MSP Client. 3.3 Any failure of a MSP Client to comply with the obligations in this clause 3 as required to be passed on to such MSP Client by MSP shall be deemed to be a breach of this agreement by MSP for which MSP shall (subject to the terms of this Agreement) be liable. 3.4 Upon cessation of use of any copy of Licensed Program on any MSP Client CPU, it may not be redeployed for any other MSP Client or for internal use by MSP. 3.5 MSP acknowledges and agrees that any internal use of the Licensed Program by MSP shall be subject to the terms and conditions of the end user license agreement supplied with the Licensed Program and that MSP shall be required to pay the applicable fees for such use to the Distributor. 4. Arcserve License Program. The Terms and Conditions of Arcserve s License Program s (OLP,MLP,GLP) for Licensed Program (the Program ), as may be updated from time to time, re-incorporated herein. The terms of this Agreement take precedence over the Program where there is conflict. 5. Maintenance. Maintenance shall be provided to MSP only in accordance with Arcserve s then prevailing maintenance policies for the Licensed Programs as may be updated from time to time. No maintenance is granted to the MSP Client. 6. Support. MSP shall provide first level support for the Licensed Program(s) in which MSP shall ensure that members of its technical staff complete sufficient training regarding the Arcserve Software Page 2 of 8 Rev. 3-13

3 as necessary to provide first level support to MSP Clients. Level 1 Support includes the initial response to an Page 3 of 8 Rev. 3-13

4 MSP Client reported Incident (and any follow-up response as appropriate), initial information gathering, entitlement and escalation to Level 2. Arcserve shall not have any obligation to provide first level support to MSP s Clients. Arcserve shall provide MSP with second level support. 7. Monthly Reports. On or before the 7 th of each calendar month, MSP shall submit to the Distributor a report specifying the total units of each Licensed Program used during the preceding month ( the Report ) together with a purchase order. An authorized representative of MSP shall certify that the Report is accurate. The format of Reports shall be dictated by the Distributor but at a minimum shall contain the following information: (i) (ii) (iii) (iv) (v) MSP Name MSP contact details MSP enrollment number Quantities of each of the Licensed Programs Effective date and term end and/or expiration date 8. Training. MSP must send suitably qualified personnel to attend and complete training relevant to the Licensed Programs as specified by Arcserve from time to time. Such training may be classroom based or provided online. 9. Documentation. For purposes of this Agreement, Documentation means (a) with respect to Arcserve Software: only standard specifications, user documentation, and technical manuals and guides provided by Arcserve with its Arcserve Software (some or all of which may be in English only) and (b) with respect to Maintenance and warranty support: Arcserve s external policies covering the scope and nature of Maintenance and warranty support. You may make a reasonable number of copies of and internally distribute Documentation solely for Your internal business purposes however You may not modify such Documentation without the prior written approval of Arcserve. Any copies or partial copies of the Documentation must bear Arcserve s copyright and any other attribution notices contained in the materials copied. Such Documentation is deemed to be confidential and proprietary to Arcserve. 10. Limited Warranty. Arcserve warrants to You that: (a) it has the authority to provide You the rights and licenses mentioned herein and (b) for a period of ninety (90) days following shipment of the Licensed Program; (i) when the Arcserve Software is used in an operating environment stated in the Documentation as supported by Arcserve, the Arcserve Software will materially conform to the specifications in the Documentation for such Arcserve Software; and (ii) Maintenance shall be performed in accordance with industry standards using reasonable care and skill, and provided in accordance with Arcserve s then-prevailing policies. If it is established that Arcserve has breached either of the warranties in subsection (b) above, Arcserve s only obligation and Your exclusive remedy shall be for Arcserve to, at its option, (1) use reasonable efforts to cure the defect in the Arcserve Software; (2) replace the Arcserve Software with Arcserve Software that materially conforms to the specifications in the Documentation; or (3) terminate the Arcserve Software license and provide a pro rata refund of the fees that You have already paid, which for license and Maintenance fees paid with respect to Arcserve Software licensed under a subscription license, shall be calculated against the remainder of the Term from the date it is established that Arcserve has breached the foregoing warranties or, if the Arcserve Software was licensed under a perpetual license, a term of three years shall be used for the purposes of the license calculation. Any refund of fees paid in accordance with the warranty provisions herein will terminate the license for the affected Arcserve Software. This warranty and the remedies offered are applicable only if: (i) the reported error or defect is reasonably reproducible by Arcserve; (ii) You report the alleged breach with reasonable specificity in writing within thirty (30) days from its occurrence; (iii) You provide Arcserve with reasonable assistance in the diagnosis and remedy of the applicable breach; (iv) the Arcserve Software are within the warranty period set forth above; (v) You have installed and are using all updates, patches and fixes released by Arcserve for the affected Arcserve Software; You have complied in all material respects with the terms and conditions of the Agreement (including but not limited to payment of all fees) and have materially conformed to the Documentation for the affected Arcserve Software and Maintenance; and (vii) the error or defect is due solely to an error or omission on the part of Arcserve, its agents or employees. You understand and agree that third-party hardware equipment and software, supplied by Arcserve may be provided to You under warranty or pursuant to other terms and conditions offered by the manufacturer or licensor of such hardware or software. Where applicable, Arcserve will include such warranties or other terms in Documentation accompanying the relevant software. NO THIRD PARTY, INCLUDING AGENTS, DISTRIBUTORS, OR AUTHORIZED ARCSERVE RESELLERS, IS AUTHORIZED TO MODIFY ANY OF THE ABOVE WARRANTIES OR MAKE ANY ADDITIONAL WARRANTIES ON BEHALF OF ARCSERVE. THESE WARRANTIES ARE YOUR EXCLUSIVE WARRANTIES AND REPLACE ALL OTHER WARRANTIES OR CONDITIONS, EXPRESS Page 4 of 8 Rev. 3-13

5 OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF MERCHANTABILITY, NONINFRINGEMENT AND FITNESS FOR A PARTICULAR PURPOSE. ARCSERVE DOES NOT WARRANT THAT THE ARCSERVE SOFTWARE ORMAINTENANCE WILL MEET YOUR REQUIREMENTS OR THAT USE OF THE ARCSERVE SOFTWARE WILL BE UNINTERRUPTED OR ERROR-FREE. SOME STATES OR JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF CERTAIN EXPRESS OR IMPLIED WARRANTIES, SO THE ABOVE EXCLUSION MAY NOT APPLY TO YOU. IF PERMITTED BY APPLICABLE LAW: (A) SUCH WARRANTIES ARE LIMITED IN DURATION TO THE WARRANTY PERIOD SPECIFIED FOR THE SUBJECT ARCSERVE SOFTWARE, MAINTENANCE OR ARCSERVE SERVICE; AND (B) THE REMEDY FOR BREACH OF ANY SUCH WARRANTIES IS LIMITED TO REPAIR OR REPLACEMENT OF ANY GOODS FOUND NOT TO COMPLY WITH THEM OR THE PROVISION OF SERVICES AGAIN. NO WARRANTIES OF ANY KIND APPLY AFTER THAT PERIOD.SOME STATES OR JURISDICTIONS DO NOT ALLOW SUCH LIMITATIONS SO TO THAT EXTENT THE FOREGOING LIMITATION MAY NOT APPLY TO YOU. THESE WARRANTIES GIVE YOU SPECIFIC LEGAL RIGHTS AND YOU MAY ALSO HAVE OTHER RIGHTS WHICH VARY FROM STATE TO STATE OR JURISDICTION TO JURISDICTION. 11. Limitation of Liability. Regardless of the basis which You may be entitled to claim damages from Arcserve or its suppliers (including but not limited to breach of contract, negligence, misrepresentation, or other contract or tort claim), You agree that Arcserve is liable for no more than 1) damages for bodily injury (including death) and damage to real property and tangible personal property in the amount of five hundred thousand dollars ($500,000) and 2) the amount of any other actual direct damages up to the amount that You actually paid for the Arcserve Software and Maintenance that are the subject of the claim. This limitation of liability also applies to Arcserve s employees, contractors, resellers and suppliers. It is the maximum amount which they, and Arcserve, are collectively responsible. EXCEPT AS SET FORTH ABOVE, TO THE FULL EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT WILL ARCSERVE OR ITS SUPPLIERS BE LIABLE TO YOU OR ANY OTHER PARTY FOR ANY INDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL, EXEMPLARY, OR PUNITIVE DAMAGES ARISING OUT OF OR RELATED TO THIS AGREEMENT, INCLUDING BUT NOT LIMITED TO ANY CLAIM FOR LOST PROFITS, LOST REVENUES, LOSS OF GOODWILL, LOST SAVINGS, OR LOST DATA, EVEN IF ARCSERVE OR ITS SUPPLIERS HAVE BEEN ADVISED IN ADVANCE OF THE POSSIBILITY OF SUCH DAMAGES. IN THE EVENT THAT THE ABOVE LIABILITY LIMITATION IS FOUND TO BE INVALID UNDER APPLICABLE LAW, THEN ARCSERVE AND ITS SUPPLIER S LIABILITY FOR SUCH CLAIM SHALL BE LIMITED TO THE AMOUNT OF THE FEES YOU HAVE ACTUALLY PAID FOR THE ARCSERVE SOFTWAREAND MAINTENANCE GIVING RISE TO THE CLAIM. 12. Confidentiality. Confidential Information means all information that is either marked as confidential or that a reasonable person would deem to be confidential based on the circumstances (including the source of the information) and industry practices. By way of illustration, Arcserve Confidential Information includes, but is not limited to, Arcserve Software, Documentation, technical data and information, methodologies and related documents, training materials, product plans and roadmaps, market strategies, business models, pricing and personnel data. You and Arcserve agree to: (a) maintain in confidence the disclosing party s Confidential Information to the same extent that the receiving party maintains its own proprietary information of similar kind and value; (b) not disclose the other party s Confidential Information to any third party other than the receiving party s authorized personnel who have a need to know such Confidential Information in connection with this Agreement, except as expressly permitted herein or otherwise with the disclosing party s prior written approval; and (c) not use such Confidential Information for any purpose except those permitted by this Agreement. Notwithstanding the foregoing, (a) each party may provide or permit access to the disclosing party s Confidential Information to the receiving party s attorneys, independent accountants and financial advisors for the sole purpose of enabling such attorneys, independent accountants and financial advisors to provide advice to the receiving party, and (b) Arcserve may provide or permit access to Your Confidential Information to its contractors, resellers and distributors who have a need to know such Confidential Information to assist Arcserve with the activities contemplated or required of it by this Agreement; provided that in each such case the third party to whom Confidential Information is being disclosed is subject to obligations of confidentiality and non-use with respect to such Confidential Information substantially similar to the obligations of confidentiality and nonuse set forth in this Section 12. The obligations set forth in this Section 12 shall not apply with respect to any portion of such Confidential Information which: (a) is publicly disclosed by the disclosing party, either before or after it becomes known to the receiving party; (b) was known to the receiving party, without any obligation to keep it confidential, prior to when it was received from the disclosing party; (c) is subsequently disclosed to the receiving party by a third party that is lawfully in possession thereof and without obligation to keep it confidential; (d) has been published by a third party or otherwise enters the public domain through no fault of the receiving party or in breach of this Agreement; or (e) has been independently developed or acquired by the receiving party. Page 5 of 8 Rev. 3-13

6 Moreover, the receiving Party shall have the right to disclose any Confidential Information provided hereunder if, in the reasonable opinion of the receiving party s legal counsel, such disclosure is necessary to comply with a court order or applicable law or regulation; provided that where reasonably possible, the receiving party shall notify the disclosing party sufficiently prior to making such disclosure so as to allow the disclosing party adequate time to take whatever action the disclosing party may deem to be appropriate to protect the confidentiality of the Confidential Information. For Confidential Information pertaining to Arcserve Software and Arcserve Intellectual Property, the obligations set forth above are indefinite. For all other Confidential Information, such obligations shall continue for five (5) years from the date of initial disclosure. 13. MSP Indemnification MSP shall indemnify, defend and hold harmless Arcserve, its officers, directors, employees, agents, successors and permitted assigns ( Arcserve Indemnified Parties ) from and against any and all Damages, to the extent such Damages (a) arise out of or relate to a claim that the portion of the MSP services developed by MSP without the assistance of Arcserve ( MSP Indemnifiable Material ) or any portion thereof, infringes, misappropriates, or otherwise violates any third party s intellectual property rights; and/or (b) are based on a claim that any MSP modification or in the event that MSP (i) caused any personal injury and/or tangible property damage or harm to an MSP Client or MSP Client s computer system or privacy; and/or (ii) improperly characterizes, removes or interferes with third party software, files, data, text or code or any similar claim including, without limitation, any claim of unfair competition, commercial libel or defamation, interference with contractual relations, interference with prospective economic advantages, or any violation of the Lanham Act (as codified in 15 U.S.C. 1125) or similar state law and or (iii) causes Arcserve Software to be operated in a manner that is inconsistent to any regulatory, legal requirement that may cause a fine, impairment to Arcserve Software or cause a third party action Defense and Settlement. Each Party shall give the other Party prompt notice of any such claim made against it, and the Parties shall cooperate in the defense of any such claim, suit or proceeding, including appeals, negotiations and any settlement or compromise thereof, provided that non-indemnifying Party must approve the terms of any settlement or compromise that may impose any un-indemnified or non-monetary liability on such Party Product Tampering. Unless explicitly permitted by applicable legislation, and except as specifically permitted in this Agreement, MSP shall not, nor shall it permit any third party to: (i) copy or manufacture the Arcserve Software or any portion thereof; (ii) translate, adapt, enhance, extend, decompile, disassemble or reverse engineer the Arcserve Software; or (iii) use the Arcserve Software to provide any facility management or service bureau service or otherwise use the Arcserve Software to process the data of any third party except as otherwise provided herein. MSP agrees that any such works are derivative works and as such are the sole and exclusive property of Arcserve or its licensor Allocation of Risk. The parties agree that the indemnities above and the warranties and limitations of liability mentioned herein fully and fairly reflect the allocation of risk among the parties and the price of the Arcserve Software. 14. Title. Title to, ownership of, and all rights in the intellectual property, including but not limited to patents, copyrights, trademarks, and trade secrets in the Arcserve Software and Documentation, any derivative works thereof, and any goodwill accruing from the use of such Arcserve Software and Documentation, belong exclusively to and shall remain with Arcserve, Inc. and/or its licensors. You shall not make available or disclose such intellectual property to any third parties except as expressly permitted by this Agreement, and shall take appropriate action, including by instruction or agreement with Your employees who are permitted access to such information, to satisfy Your obligations hereunder. 15. Term. The Term of this Agreement shall commence upon the Effective Date and continue for a period of one (1) year ( Initial Term ) and shall automatically renew for additional periods of one (1) year (each a Renewal Term ), unless either party provides the other party at least ninety (90) days prior written notice of its intent not to renew or the Agreement is otherwise terminated as set forth herein. 16. Termination by Either Party. Either party may terminate this Agreement for ordering or renewing subscriptions (a) solely for convenience on 30 days notice; (b) if the other fails to comply with any provision of this Agreement and does not correct such failure within thirty (30) days after written notice of such failure to comply is delivered; or (c) in the event of bankruptcy, liquidation, insolvency or assignment for the benefit of creditors of the other party. This termination does not eliminate the obligation the MSP has to their customers for unexpired subscriptions. Arcserve will not directly support those customers. 17. Effect of Termination. Upon termination or expiration, MSP may no longer use Key Codes or utilize the Licensed Software for any Page 6 of 8 Rev. 3-13

7 purpose for new customers. MSP shall provide a final Report to Distributor within 7 days of termination. In the event that Arcserve terminates this Agreement for a material breach by MSP, MSP shall have no further right to use the Licensed Program for new customers that is the subject of the breach and must return to Arcserve or provide to Arcserve evidence that it has destroyed all copies of Licensed Program. All obligations of the parties, which expressly or by their nature survive the expiration or termination of this Agreement, shall continue in full force and effect subsequent to and notwithstanding its expiration or termination and until they are satisfied in full or by their nature expire. 18. New Product Clause Exclusion. Notwithstanding anything to the contrary in any agreement, by and between the parties hereto: (i) the Licensed Program herein shall not be construed as a New Product for purposes of any prior agreement between the parties; and (ii) the provisions of any New Product provision in any prior agreement shall not apply to the distributed Licensed Program herein or any subsequent license for distributed Licensed Program. 19. Audit. MSP agrees to furnish Arcserve with such information and access to MSP s facilities and records as Arcserve may reasonably request in order to verify MSP s compliance with the Agreement. Such examination right shall survive the termination of this Agreement for a period of three (3) years. 20. Arcserve Backup Licensed Software. Each licensed quantity shall be equal to one (1) Instance. An Instance refers to a single installation of the Licensed Software on a specific operating system on specific hardware. A hardware server may have multiple operating systems installed on it (through partitioning or virtualization). Each operating system the Licensed Program runs on requires MSP to license an additional Instance. 21. Arcserve XOsoft Replication & High Availability Licensed Software. Each licensed quantity shall be equal to one (1) Instance. An Instance refers to a single installation of the Licensed Program on a specific operating system on specific hardware of a protected server (with each Instance enabling use of the Licensed Programs on both a protected and a replica server). A hardware server may have multiple operating systems installed on it (through partitioning or virtualization). Each operating system the Licensed Program runs on requires MSP to license an additional Instance. 22. Virtual Machine Technology. Where the Licensed Program is used on multiple machines (physical and virtual ) each such use of the Licensed Program shall be counted for the purposes of determining the Authorized Use Limitation for that Licensed Software. A virtual PC and server environment is created where Virtual Machine Technology (which applies to both MSP, MSP Client and server hardware) is used to enable multiple instances of an operating system(s) to run on a single computer simultaneously. 23. FCPA Covenant. MSP acknowledges and agrees that it and its owners, directors, officers, employees or agents have not, and will not, make, attempt to make, or promise to make payments of money or anything of value, directly or indirectly, to any government or public international organization officials, political parties, or candidates for political office, for the purpose of obtaining or retaining business or securing any improper advantage, or to any other person or entity if such payment would violate applicable laws or treaties of the country in which made or the laws of the United States of America. MSP shall exercise due diligence in selecting its employees, agents, officers and directors and MSP will provide appropriate training for them and that it will monitor their activities to ensure compliance with this Agreement. If Arcserve has reason to believe that a breach of any of the representations and warranties set forth in this Section above has occurred or may occur, Arcserve may withhold further delivery of products or services until such time as it has received confirmation to its satisfaction that no breach has occurred or will not occur. Arcserve shall not be liable to MSP for any claim, losses or damages whatsoever related to its decision to withhold delivery under this provision. In the event that Arcserve concludes in its sole and absolute opinion that MSP has failed to meet its obligations under this Section, Arcserve may immediately terminate this Agreement by written notice to MSP. MSP shall indemnify Arcserve and hold Arcserve harmless from and against any claim, losses or damages whatsoever related to its breach or cancellation (or both) of the Agreement under this provision. In no event shall Arcserve be obligated under this Agreement to take or omit to take any action that Arcserve believes in good faith would cause it to be in violation of any laws of the Territory or any US laws, including without limitation, the Foreign Corrupt Practices Act. 24. Miscellaneous Page 7 of 8 Rev. 3-13

8 24.1 Neither party will be liable to the other for failure to fulfill its obligations caused by circumstances beyond its reasonable control. Such circumstances will include without limitation acts of God, strikes, lockouts, riots, terrorist attacks, acts of war, epidemics, civil disturbance, fire, communication line failures, power failures, earthquakes, floods or other natural disasters. In such event, the obligations of the parties (excluding payment obligations) will be temporarily suspended to such extent reasonable in the circumstances The relationship between the parties is that of customer and independent contractor MSP may not assign the Agreement, the use of any Licensed Program or its rights and obligations under the Agreement without the prior written consent of Arcserve. The Agreement shall be binding on the parties and all of their respective successors and assigns All notices shall be in writing and delivered to the other party either by letter (two day delivery), if confirmed by letter and sent within 24 hours after, via facsimile (with confirmation of transmission) or personally by overnight courier If any provision of the Agreement is held to be invalid, illegal or unenforceable by any court or other competent tribunal then the remaining provisions of the Agreement shall remain in full force and effect The laws of the State of New York (excluding its conflict of law provisions) shall govern this Agreement. The parties agree that any action arising under or relating to the Agreement shall lie within the exclusive jurisdiction of the State and Federal Courts located in the Eastern District of New York. THE PARTIES HEREBY IRREVOCABLY WAIVE, TO THE FULLEST EXTENT PERMITTED BY LAW, ALL RIGHTS TO TRIAL BY JURY IN ANY ACTION, PROCEEDING OR CONTERCLAIM RELATING TO THIS AGREEMENT. The United Nations Convention on Contracts for the International Sale of Goods will not apply to the Agreement Upon expiration or termination of the Agreement, the rights and obligations of the parties which by their context, intent and meaning would reasonably be expected to survive the termination or expiration of the Agreement or any part thereof will so survive A person who is not a party to the Agreement has no rights to enforce any term of the Agreement but this does not affect any right or remedy of a third party which exists or is available under applicable law MSP represents that (i) it is duly authorized to provide personal data to Arcserve and it does so lawfully in compliance with relevant legislation, (ii) Arcserve and any entity within the Arcserve group of companies (each a "Arcserve entity") or its subcontractors can process such data and (iii) Arcserve may disclose such data to any Arcserve entity and its subcontractors for this purpose and may transfer such data to countries outside of the country of origin All purchase orders, prior agreements, proposals, representations and other understandings whether oral or written, are superseded in their entirety by the Agreement and the applicable Program Certificate. No alteration or modification of the Agreement will be valid unless made in writing and signed by the parties. Except as modified or supplemented by this Agreement, MSP s rights and licenses to the Licensed Software shall be governed by the shrink wrap or click on End User License Agreement ( End User License Agreement ) enclosed with the Licensed Software and the Program Certificate issued by Arcserve. In the event of a conflict between the Agreement and any terms and conditions in any Program Certificate or the End User License Agreement, this Agreement will control. You represent that you are duly authorized to bind your company to the terms and conditions of this Agreement. Page 8 of 8 Rev. 3-13

9 Exhibit A - Licensed Program Licensed Programs means currently shipping and supported versions of the Arcserve branded products published with a MSP Licensing or Managed MSP Licensing or Service Provider Licensing product description. Licensed Programs include: Arcserve Unified Data Protection Arcserve Backup Arcserve RHA Arcserve D2D (versions that have not reached end-of-support status) Arcserve reserves the right to add, remove, discontinue and replace products as needed with advance notice. Page 9 of 8 Rev. 3-13