Broadleaf Services, Inc Cloud Backup Services Terms & Conditions

Transcription

1 Broadleaf Services, Inc Cloud Backup Services Terms & Conditions By signing the Broadleaf Quote and/or providing a purchase order for these services, the Customer agrees to be bound by the terms and conditions of this Signed Quote and the Product Terms and Conditions applicable to those Products as set forth in the Exhibit s below as well as the Broadleaf Services, Inc (Company) Standard Terms and Conditions on the Date of this Signed Quote (collectively the Product Terms ). Customer acknowledges that it has read, understands and agrees to the Product Terms, which are incorporated herein by reference and together with this Signed Quote (or Purchase Order or Order Form) comprise the Agreement. The parties hereto have caused this Agreement to be executed by their duly authorized representatives as of the Date of this Signed Quote, Purchase Order or Order Form. EXHIBIT 1 Mandatory Terms Software 1. DEFINITIONS Agent Software means that Licensed Software identified as agent software on Company s price list. Appliance means an appliance that is comprised of the Appliance Hardware and Appliance Software, as set forth in the applicable Order Form. Appliance Hardware means that server and storage Hardware that is pre-configured to include the Appliance Software. Appliance Software means the Licensed Software, operating system and any other software set forth in the applicable Order Form that is preloaded or otherwise installed onto the Appliance Hardware by Company or its Supplier. Claim means a claim, suit or other similar proceeding. Covered Equipment means that equipment listed on the applicable Order Form for which Customer may use the RDR Services. Covered Site means that location listed on the applicable Order Form where the Covered Equipment is located for which Customer may use the RDR Services. Customer Data means any data, information and other materials generated by the Users use of the Licensed Software and that is stored by EVault as a part of the Subscription Services or Other Services. Desktop Functions means consumer or business tasks or processes performed by a computer or computing device including , word processing, spreadsheets, database, network/internet browsing, scheduling and personal finance. Disaster means any unplanned event or condition that renders Customer unable to use the Covered Equipment for its intended computer processing and related business production purposes. Documentation means the then-current, generally available, written instructions, user guides, and user manuals for the Products, if applicable, whether in electronic, paper or other equivalent form, provided by Company and in connection with any updates, modifications and improvements to the Products, regardless of form or media. EDPM Appliance means that Appliance known as the EVault Software for Microsoft System Center Data Protection Manager Appliance. End-User Client Software means that Licensed Software licensed to Customer to install and use on servers and Users computers that are being backed up, as indicated in the applicable Documentation, including, without limitation, Agent Software, Plug-in Software and EVault ProMail Software. EVault ProMail Service means a Subscription Service that provides capture, archiving and management of and instant messages using the EVault ProMail Software. EVault ProMail Software means that Licensed Software known as the EVault ProMail software. Mandatory Terms - US - Version B

2 EVault Quick Ship Module means that Appliance that is used to transport Customer Data from Company to Customer or Customer to Company. EVault SaaS Services means a Subscription Service that provides off-site automated data protection and recovery using Licensed Software. Executable Code means the fully compiled version of a software program that can be executed by a computer and used by an end user without further compilation. Hardware means computer servers and/or other data storage appliances either sold alone or as a part of an Appliance. High Risk Use means a use where failure or fault of any kind of the Product could lead to death or serious bodily injury of any person or to severe physical or environmental damage including, without limitation, aircraft or other modes of human transportation, nuclear or chemical facilities or medical devices. Hosting Services means those hosting services, including space, power and bandwidth, including, without limitation, hosting services for the EVault Plug-n-Protect appliance. Intellectual Property Rights means, collectively, all worldwide intellectual property rights in and to any works of authorship, moral rights, copyrights, trademarks, service marks, patents, designs, trade secrets and algorithms. Licensed Software means the machine-readable, object-code version of the proprietary software owned by EVault Inc. and its subsidiaries, including all related Documentation and any modified, updated or enhanced versions and recovery images of the program that Company may provide to Customer. Licensed Software does not include any Third Party Software offered under a third party license agreement, but it may include Third Party Software sublicensed to Customer by Company subject to the terms of this Agreement. Maintenance Release means a Licensed Software release containing error corrections or minor enhancements, in Executable Code form, that is made commercially available by Company and generally indicated by a change to the digit to the right of the first decimal point or a change in the digit to the right of the second decimal point (e.g., a change from version x.x.x to x.y.x or a change from version x.x.x to x.x.y) and any corrections and updates to the associated Documentation. New Version means a Licensed Software release containing major new enhancements, features or functionality, in Executable Code form, that is made commercially available by Company and generally indicated by a change in the digit to the left of the first decimal point (i.e., a change from version x.x.x to y.x.x) and the associated Documentation. Other Services means those subscription services provided by Company, other than the Subscription Services, including, without limitation, the RDR Service. Passive Vault means that virtual, dedicated environment provided in EVault s data centers to which Customer replicates its active, local vault under the EVault Offsite Replication Service. Plug-in Software means that Licensed Software identified as a software plug-in on Company s price list. Premium Data Transfer Services means those services that provide for the transfer of data via an Appliance, including, without limitation, the QuickShip DAS, QuickShip Vault, Data Recovery DAS, Data Recovery Vault, Seeding DAS and Seeding Vault. Products means one or more of the following products or services purchased by Customer as set forth in an Order Form: Subscription Services, license to use Licensed Software, Software Managed Services, Hosting Services, Support Services, Professional Services, Hardware and Appliances. Professional Services means implementation, training, installation and data recovery, migration and restoration services and other professional services provided by Company to Customer, but specifically excluding Subscription Services, Support Services, Software Managed Services and Hosting Services. Project Coordinator means that project coordinator, designated by Customer, in connection with Professional Services. Purchase Price means the one-time purchase price for the Appliance, as set forth in the applicable Order Form. RDR Service means the EVault Remote Disaster Recovery Service. Regulatory Agencies has the meaning set forth in Section 5.6 of these Product Terms. Server Environment means that hardware and operating system combination for which Customer licenses the Server Software. Server Software means that Licensed Software for installation and use on a Server Environment, as indicated in the applicable Documentation. Service Effective Date means (a) with respect to Subscription Services, Other Services, Hosting Services and Software Managed Services, the date upon which EVault notifies Customer by or otherwise that installation is complete or the service is operational; and (b) with respect to Support Services, the date the related Licensed Software is delivered. Software Managed Services means delivery and management of equipment, applications and/or systems relating to the use of Licensed Software. Source Code means the human-readable version of a software program than can be compiled into Executable Code. Statement of Work means a statement of work signed by the parties pursuant to which Company provides Professional Services to Customer. Subscription Services means the provision of access over the Internet to the functionality of the Licensed Software running on the Company System including the EVault SaaS Services, the EVault Managed Service, the EVault ProMail Service and the EVault Offsite Replication Service. Mandatory Terms - US - Version B

3 Supplier means a third party that manufacturers Products or grants to Company the right to resell or sublicense Products. Support Fees means those fees for the purchase, extension or renewal of Support Services, as set forth in the applicable Order Form. Support Services means maintenance and technical support services provided by Company for Products, but specifically excluding Software Managed Services, Hosting Services and Professional Services. System means the computer hardware and software (including, without limitation, the Licensed Software and other software applications, software interfaces, operating system and databases), data storage and all other resources (including, without limitation) telecommunications equipment) used by Company to make Licensed Software and Customer s data available to, and usable by, Customer via the Internet. Term has the meaning set forth in Section 11.1 of these Product Terms. Third Party Software means any software, licensed as a stand alone product or as a part of another software, that is not owned by EVault Inc. or its subsidiaries. Transfer Appliance means an Appliance leased or purchased by Customer as a part of the Premium Data Transfer Services. Users means Customer s employees, contractors and agents. Warm Site has the meaning set forth in Section 3.1 on Exhibit A of these Product Terms. WinPE has the meaning set forth in Section 5.4 of these Product Terms. 2. LICENSE RIGHTS 2.1 License Grant. Subject to the terms and conditions of this Agreement, Company grants to Customer a non-exclusive, non-transferable license to install and use (a) the Server Software on the Server Environment; and (b) the End-User Client Software on Users workstations and servers, subject to those terms, including without limitation, number of servers and workstations, number of Users and usage volume, set forth in the applicable Order Form. The Licensed Software is licensed on a perpetual basis. The Licensed Software may be used by Customer solely for Customer s internal business purposes and in accordance with the Documentation. Customer may make up to two (2) copies of the Licensed Software solely for backup or archival purposes. 2.2 Environmental Assessment. Customer warrants and represents that it has completed the environmental assessment form completely and accurately. Customer understands that Company will rely on this information in recommending the Products needed to support Customer s computing environment and agrees that that while Company may recommend a Product configuration, Customer is responsible for determining the Products actually purchased. Customer also understands and agrees that to the extent the information included on the environmental assessment form is inaccurate or incomplete or Customer desires a higher level of performance, Customer may need to purchase additional Products. 3. OWNERSHIP AND RESTRICTIONS 3.1 TITLE. Customer acknowledges and agrees that as between Company and Customer title to and ownership of the Products (excluding any Hardware purchased by Customer) and Systems, including all corrections, enhancements, or other modifications to the Licensed Software, whether made by Company or any third party, and all Intellectual Property Rights therein, are and will at all times be deemed the sole and exclusive property of Company and its Suppliers. All rights not expressly granted to Customer in this Agreement are reserved by Company and its Suppliers. 3.2 PROPRIETARY RIGHTS NOTICES. Customer shall not delete, alter, cover, or distort any copyright, trademark, or other proprietary rights notice placed by Company or its Suppliers on or in the Products and shall ensure that all such notices are reproduced on all copies thereof. 3.3 RESTRICTIONS ON USE. Customer acknowledges that the Licensed Software and its structure, organization and Source Code constitute valuable trade secrets of Company or its Suppliers. Accordingly, Customer will not, directly or indirectly, do any of the following: (a) modify, adapt, alter, translate, or create derivative works from the Licensed Software or use the Licensed Software for application development purposes; (b) merge the Licensed Software with other software; (c) sublicense, lease, rent, loan, distribute, sell or otherwise transfer or make available the Licensed Software or Products to any third party except as specifically permitted by this Agreement; (d) reverse engineer, decompile, disassemble, or otherwise attempt to derive the source code for the Licensed Software or evaluate the Licensed Software in order to develop a competitive product; (e) use the Licensed Software or Products to process data or provide any service bureau activity for any third party; (f) otherwise use the Licensed Software except as expressly allowed under this Agreement; (g) violate any local, state, federal or foreign law, treaty, regulation or convention applicable to Customer in connection with its Users use of the Licensed Software; (h) willfully tamper with the security of any of the Systems or tamper with other customer accounts of Company; (i) attempt to access data on the System not belonging to or intended for Customer; (j) attempt to probe, scan or test the System or to breach the security or authentication measures without proper authorization; (k) willfully render any part of the Systems unusable; or (l) publish or disclose to third parties any evaluation of the Licensed Software without the prior written consent of Company and its Suppliers. 3.4 THIRD PARTY SOFTWARE. Notwithstanding anything to the contrary contained in this Agreement, any Third Party Software included in the Licensed Software, Appliance Software or licensed as a stand alone product is subject to the terms and conditions of any end user license agreement or additional terms accompanying such software and/or posted on Company s website. If the Licensed Software includes Microsoft Corporation s WinPE software and related utility programs ( WinPE ), Customer may only use WinPE as a boot, diagnostic, disaster recovery, setup, restoration, emergency services, installation, test and/or configuration utilities program and not as a general purpose operating system product. CUSTOMER UNDERSTANDS THAT WINPE CONTAINS A SECURITY FEATURE THAT WILL CAUSE THE COMPUTER SYSTEM TO REBOOT WITHOUT PRIOR NOTIFICATION TO THE END-USER AFTER TWENTY-FOUR (24) HOURS OF CONTINUOUS USE. To the maximum extent permitted by applicable law, neither Microsoft Corporation nor any of its affiliates shall be liable to Customer for any claims or amounts relating to WinPE or other Microsoft software licensed pursuant to this Agreement. Further, Microsoft Corporation and its affiliates will not provide Customer with any customer support for WinPE or other Microsoft software licensed pursuant to this Agreement. Mandatory Terms - US - Version B

4 4. LIMITED WARRANTY AND DISCLAIMER 4.1 LICENSED SOFTWARE. Company warrants to Customer that for a period of thirty (30) days following the date of delivery (the Warranty Period ), the Licensed Software, under normal use and if installed properly on hardware appropriate for use therewith, shall perform substantially in accordance with the Documentation. For any breach of this warranty during the Warranty Period and to the extent not otherwise covered by a maintenance agreement between Company and Customer, Customer s sole and exclusive remedy and the sole and exclusive liability of Company and its Suppliers, will be for Company to use reasonable efforts to correct promptly any documents, reproducible errors and defects to make the Licensed Software operate as warranted. COMPANY PROVIDES THIRD PARTY SOFTWARE AND MICROSOFT SOFTWARE AS IS WITHOUT WARRANTIES OF ANY KIND, ALTHOUGH THE THIRD PARTY SUPPLIERS OF SUCH SOFTWARE MAY PROVIDE THEIR OWN WARRANTIES DIRECTLY TO CUSTOMER. 4.2 DISCLAIMER. EXCEPT AS EXPRESSLY WARRANTED IN THIS SECTION, THE PRODUCTS ARE PROVIDED AS IS, WITHOUT ANY WARRANTY OF ANY KIND, WHETHER EXPRESS, IMPLIED, OR STATUTORY, INCLUDING BUT NOT LIMITED TO ANY IMPLIED WARRANTIES OR CONDITIONS OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, NON-INFRINGEMENT OR NON-MISAPPROPRIATION OF INTELLECTUAL PROPERTY RIGHTS OF A THIRD PARTY, CUSTOM, TRADE, QUIET ENJOYMENT, ACCURACY OF INFORMATIONAL CONTENT OR RESULTS, OR SYSTEM INTEGRATION, OR ANY WARRANTIES OR CONDITIONS ARISING UNDER ANY OTHER LEGAL REQUIREMENT. COMPANY AND ITS SUPPLIERS MAKES NO WARRANTY THAT THE LICENSED SOFTWARE WILL RUN PROPERLY ON ALL HARDWARE, THAT THE LICENSED SOFTWARE, SUBSCRIPTION SERVICES OR OTHER PRODUCTS WILL MEET THE NEEDS OR REQUIREMENTS OF CUSTOMER OR ITS USERS OR WILL OPERATE IN THE COMBINATIONS THAT MAY BE SELECTED FOR USE BY CUSTOMER OR ITS USERS, THAT THE LICENSED SOFTWARE OR SUBSCRIPTION SERVICES WILL BE UNINTERRUPTED OR ERROR FREE, OR THAT ALL ERRORS WILL BE CORRECTED. 5. LIMITATION OF LIABILITY 5.1 WAIVER OF CONSEQUENTIAL DAMAGES. IN NO EVENT WILL EITHER PARTY OR ANY SUPPLIER OF COMPANY BE LIABLE FOR: (a) THIRD PARTY CLAIMS OR LIABILITIES OTHER THAN THOSE IDENTIFIED IN SECTION 5; OR (b) ANY SPECIAL, INDIRECT, INCIDENTAL, EXEMPLARY, PUNITIVE OR CONSEQUENTIAL DAMAGES, INCLUDING, WITHOUT LIMITATION, LOSS OR DAMAGE TO DATA, INACCURACY OF DATA, LOSS OF ANTICIPATED REVENUE OR PROFITS, WORK STOPPAGE OR IMPAIRMENT OF OTHER ASSETS OR LOSS OF GOOD WILL, WHETHER OR NOT FORESEEABLE AND WHETHER OR NOT A PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES AND NOTWITHSTANDING ANY FAILURE OF THE ESSENTIAL PURPOSE OF THIS AGREEMENT OR ANY LIMITED REMEDY HEREUNDER. 5.2 CAP ON LIABILITY. IN NO EVENT WILL THE TOTAL LIABILITY OF COMPANY AND ITS SUPPLIERS ARISING OUT OF OR IN CONNECTION WITH THE PRODUCTS AND THIS AGREEMENT EXCEED WITH RESPECT TO LICENSED SOFTWARE, THE PRO RATA PORTION, BASED ON A THREE-YEAR STRAIGHTLINE DEPRECIATION OF THE ACTUAL AMOUNT OF LICENSE FEES PAID TO COMPANY FOR THE AFFECTED LICENSED SOFTWARE. 5.3 DISCLAIMER. THE FOREGOING LIMITATIONS APPLY TO ALL CAUSES OF ACTION IN THE AGGREGATE, INCLUDING WITHOUT LIMITATION, BREACH OF CONTRACT, BREACH OF WARRANTY, INDEMNIFICATION, NEGLIGENCE, STRICT LIABILITY, MISREPRESENTATION AND OTHER TORTS, AND STATUTORY CLAIMS. EACH OF THE PARTIES ACKNOWLEDGES THAT IT UNDERSTANDS THE LEGAL AND ECONOMIC RAMIFICATIONS OF THE FOREGOING LIMITATIONS, AND THAT THE FOREGOING LIMITATIONS ALLOCATE THE VARIOUS RISKS BETWEEN THE PARTIES AND FORM AN ESSENTIAL PART OF THE AGREEMENT OF THE PARTIES. 6. TERM AND TERMINATION 6.1 TERM. This Agreement and the term of the license to use the Licensed Software will commence upon the effective date set forth herein and will continue until terminated in accordance with the provisions of this Agreement. 6.2 RIGHT TO TERMINATE. Either party may terminate this Agreement, a Statement of Work and all licenses and services provided hereunder upon written notice: (a) if the other party materially breaches this Agreement and fails to cure such breach within thirty (30) days after receiving written notice from the non-breaching party; (b) if the other party files a petition for bankruptcy, insolvency or reorganization under any bankruptcy law or is adjudicated bankrupt; (c) if a petition in bankruptcy is filed against the other party and such petition is not dismissed within sixty (60) days of the filing date; (d) if the other party becomes insolvent or makes an assignment for the benefit of its creditors pursuant to any bankruptcy or insolvency law; or (e) if a receiver is appointed for the other party or its business. In addition, Company may suspend Customer s access to Customer Data or Support Services or terminate this Agreement and/or a Statement of Work, effective immediately, if Customer fails to pay any portion of the Fees when due within ten (10) days after receiving written notice from Company that payment is past due. Fees will continue to accrue during any such suspension. 6.3 OBLIGATIONS UPON TERMINATION. Upon the termination or expiration of this Agreement: (a) Customer shall promptly pay in full all outstanding payments to Company (but in any event, no later than ten (10) days following the date on which termination or expiration is effective); (b) all licenses granted hereunder (if any) will immediately terminate and Customer shall immediately cease all use of the related Products; (c) Customer shall remove all copies (or permits Company to remove all copies, if applicable) of the Licensed Software from its computer systems and shall return or destroy, at Company s option, all such copies; and (d) the receiving party shall promptly return all Confidential Information (except Customer Data) of the disclosing party in its possession or control. With respect to (c) and (d) of the preceding sentence, Customer shall certify to Company in writing within ten (10) days of the date on which termination or expiration is effective that it has made no other copies, or has completely destroyed all copies, including backup or archive copies, of the Licensed Software or any portion thereof, and that no copies of any portion of the Licensed Software are in existence on any network, system, or equipment ever owned or used by Customer. The expiration or termination of this Agreement does not relieve either party of any obligations that have accrued on or before the effective date of the termination or expiration. 6.4 SURVIVAL. The following Sections will survive the termination or expiration of this Agreement: Ownership and Restrictions, Limited Warranty and Disclaimer, Limitation of Liability and any other provisions of this Agreement that by reasonable interpretation are intended by the parties to survive the termination or expiration of this Agreement. 7. GENERAL. Mandatory Terms - US - Version B

5 7.1 ASSIGNMENT. Neither party will indirectly or directly transfer or assign any rights under this Agreement, in whole or part, without the prior written consent of the other party. Notwithstanding the foregoing, either party may, without the prior written consent of the other party, assign this Agreement to a subsidiary or affiliated entity as part of a divestiture, corporate reorganization or consolidation or to another party in connection with a merger, acquisition, or sale of substantially all assets or stock to which this Agreement relates, provided the successor agrees in writing to assume all of the assigning party s obligations hereunder. Any assignments contrary to this Section 12.4 will be void. Subject to the foregoing, this Agreement will bind and inure to the benefit of the parties and their respective successors and permitted assigns. Notwithstanding the foregoing, all or certain portions of the Products sold or licensed under this Agreement and Company s obligations under this Agreement may be provided by a Supplier or subcontractor of Company. Company agrees that it will be responsible for its Suppliers and subcontractors and their performance under this Agreement. 7.2 INTERNATIONAL TRADE COMPLIANCE. The Products, including any Third Party Software, are subject to the customs and export control laws and regulations of the United States and any country in which the products are manufactured, received or used. Further, under U.S. law, the Products may not be sold, leased or otherwise transferred to restricted countries, or used by a restricted end-user or an end-user engaged in activities related to weapons of mass destruction including, without limitation, activities related to designing, developing, producing or using nuclear weapons, materials, or facilities, missiles or supporting missile projects, or chemical or biological weapons. Customer will comply with these laws and regulations and shall ensure that any person to which Customer requests Company to route Product directly has been made aware of the associated export controls. 7.3 INSPECTIONS. Customer will permit Company or its representatives to review Customer s relevant records and inspect Customer s facilities and systems to ensure compliance with the Agreement. Company will give Customer at least ten (10) days advance notice of any such inspection and will conduct the same during normal business hours in a manner that does not unreasonably interfere with Customer's normal operations. 7.4 THIRD-PARTY BENEFICIARIES. The Suppliers of Company, including without limitation EVault Inc. and its subsidiaries, can enforce all provisions of this Agreement as third-party beneficiaries. For the avoidance of doubt, the disclaimer of warranties and limitations of liability extend to these third-party beneficiaries. Mandatory Terms - US - Version B

6 EXHIBIT 2 Mandatory Terms Subscription Services, Other Services, Hosting Services and Software Managed Services 1. DEFINITIONS Additional Software means software that is added to the EDPM Appliance after installation of the original image and that supports the functions of the EVault Software for Microsoft System Center Data Protection Manager. Agent Software means that Licensed Software identified as agent software on Company s price list. Agreement means the Order Form and these Product Terms. Appliance means an appliance that is comprised of the Appliance Hardware and Appliance Software, as set forth in the applicable Order Form. Appliance Fees means the Purchase Price, any monthly fees and any support fees, as well as any other related fees (including without limitation license fees for additional Licensed Software and related support), set forth in the applicable Order Form. Appliance Hardware means that server and storage Hardware that is pre-configured to include the Appliance Software. Appliance Software means the Licensed Software, operating system and any other software set forth in the applicable Order Form that is preloaded or otherwise installed onto the Appliance Hardware by Company or its Supplier. Change Request means a written request to change the terms or scope of a Statement of Work. Claim means a claim, suit or other similar proceeding. Confidential Information means (a) any confidential, proprietary or trade secret information of the disclosing party ( Discloser ) that if in tangible form is marked as confidential, secret or with a comparable legend or if disclosed orally or visually is identified as confidential at the time of disclosure; and (b) discussions relating to such information. Discloser shall use reasonable efforts to mark its confidential information in tangible form as confidential; however, tangible information that does not bear such a legend and the discussions relating thereto, will be protected hereunder as Confidential Information if the receiving party ( Recipient ) knew or should have reasonably known under the circumstances that the information is confidential. Customer Data is deemed to be Confidential Information. Covered Equipment means that equipment listed on the applicable Order Form for which Customer may use the RDR Services. Covered Site means that location listed on the applicable Order Form where the Covered Equipment is located for which Customer may use the RDR Services. Customer Data means any data, information and other materials generated by the Users use of the Licensed Software and that is stored by EVault as a part of the Subscription Services or Other Services. Deliverables means any deliverables provided to Customer pursuant to a Statement of Work. Desktop Functions means consumer or business tasks or processes performed by a computer or computing device including , word processing, spreadsheets, database, network/internet browsing, scheduling and personal finance. Disaster means any unplanned event or condition that renders Customer unable to use the Covered Equipment for its intended computer processing and related business production purposes. Documentation means the then-current, generally available, written instructions, user guides, and user manuals for the Products, if applicable, whether in electronic, paper or other equivalent form, provided by Company and in connection with any updates, modifications and improvements to the Products, regardless of form or media. EDPM Appliance means that Appliance known as the EVault Software for Microsoft System Center Data Protection Manager Appliance. End-User Client Software means that Licensed Software licensed to Customer to install and use on servers and Users computers that are being backed up, as indicated in the applicable Documentation, including, without limitation, Agent Software, Plug-in Software and EVault ProMail Software. EVault ProMail Service means a Subscription Service that provides capture, archiving and management of and instant messages using the EVault ProMail Software. EVault ProMail Software means that Licensed Software known as the EVault ProMail software. EVault Quick Ship Module means that Appliance that is used to transport Customer Data from Company to Customer or Customer to Company. EVault SaaS Services means a Subscription Service that provides off-site automated data protection and recovery using Licensed Software. Executable Code means the fully compiled version of a software program that can be executed by a computer and used by an end user without further compilation. Fees has the meaning set forth in Section 4.1 of these Product Terms. Hardware means computer servers and/or other data storage appliances either sold alone or as a part of an Appliance. Mandatory Terms - US - Version B

7 High Risk Use means a use where failure or fault of any kind of the Product could lead to death or serious bodily injury of any person or to severe physical or environmental damage including, without limitation, aircraft or other modes of human transportation, nuclear or chemical facilities or medical devices. Hosting Services means those hosting services, including space, power and bandwidth, including, without limitation, hosting services for the EVault Plug-n-Protect appliance. Indemnified Parties means the officers, directors, employees and agents of the party seeking indemnification. Intellectual Property Rights means, collectively, all worldwide intellectual property rights in and to any works of authorship, moral rights, copyrights, trademarks, service marks, patents, designs, trade secrets and algorithms. Licensed Software means the machine-readable, object-code version of the proprietary software owned by EVault Inc. and its subsidiaries, including all related Documentation and any modified, updated or enhanced versions and recovery images of the program that Company may provide to Customer. Licensed Software does not include any Third Party Software offered under a third party license agreement, but it may include Third Party Software sublicensed to Customer by Company subject to the terms of this Agreement. Maintenance Release means a Licensed Software release containing error corrections or minor enhancements, in Executable Code form, that is made commercially available by Company and generally indicated by a change to the digit to the right of the first decimal point or a change in the digit to the right of the second decimal point (e.g., a change from version x.x.x to x.y.x or a change from version x.x.x to x.x.y) and any corrections and updates to the associated Documentation. New Version means a Licensed Software release containing major new enhancements, features or functionality, in Executable Code form, that is made commercially available by Company and generally indicated by a change in the digit to the left of the first decimal point (i.e., a change from version x.x.x to y.x.x) and the associated Documentation. Order Form means the ordering documents, in a form specified by Company, that is signed and submitted by Customer to Company. Other Services means those subscription services provided by Company, other than the Subscription Services, including, without limitation, the RDR Service. Passive Vault means that virtual, dedicated environment provided in EVault s data centers to which Customer replicates its active, local vault under the EVault Offsite Replication Service. Plug-in Software means that Licensed Software identified as a software plug-in on Company s price list. Premium Data Transfer Services means those services that provide for the transfer of data via an Appliance, including, without limitation, the QuickShip DAS, QuickShip Vault, Data Recovery DAS, Data Recovery Vault, Seeding DAS and Seeding Vault. Product Terms means these Product Terms and Conditions All Products and Services. Products means one or more of the following products or services purchased by Customer as set forth in an Order Form: Subscription Services, license to use Licensed Software, Software Managed Services, Hosting Services, Support Services, Professional Services, Hardware and Appliances. Professional Services means implementation, training, installation and data recovery, migration and restoration services and other professional services provided by Company to Customer, but specifically excluding Subscription Services, Support Services, Software Managed Services and Hosting Services. Project Coordinator means that project coordinator, designated by Customer, in connection with Professional Services. Purchase Price means the one-time purchase price for the Appliance, as set forth in the applicable Order Form. RDR Service means the EVault Remote Disaster Recovery Service. Regulatory Agencies has the meaning set forth in Section 5.6 of these Product Terms. Server Environment means that hardware and operating system combination for which Customer licenses the Server Software. Server Software means that Licensed Software for installation and use on a Server Environment, as indicated in the applicable Documentation. Service Effective Date means (a) with respect to Subscription Services, Other Services, Hosting Services and Software Managed Services, the date upon which EVault notifies Customer by or otherwise that installation is complete or the service is operational; and (b) with respect to Support Services, the date the related Licensed Software is delivered. Software Managed Services means delivery and management of equipment, applications and/or systems relating to the use of Licensed Software. Source Code means the human-readable version of a software program than can be compiled into Executable Code. Statement of Work means a statement of work signed by the parties pursuant to which Company provides Professional Services to Customer. Subscription Services means the provision of access over the Internet to the functionality of the Licensed Software running on the Company System including the EVault SaaS Services, the EVault Endpoint Protection service the EVault Managed Service, the EVault ProMail Service and the EVault Offsite Replication Service. Supplier means a third party that manufacturers Products or grants to Company the right to resell or sublicense Products. Mandatory Terms - US - Version B

8 Support Fees means those fees for the purchase, extension or renewal of Support Services, as set forth in the applicable Order Form. Support Services means maintenance and technical support services provided by Company for Products, but specifically excluding Software Managed Services, Hosting Services and Professional Services. System means the computer hardware and software (including, without limitation, the Licensed Software and other software applications, software interfaces, operating system and databases), data storage and all other resources (including, without limitation) telecommunications equipment) used by Company to make Licensed Software and Customer s data available to, and usable by, Customer via the Internet. Taxes has the meaning set forth in Section 4.4 of these Product Terms. Term has the meaning set forth in Section 11.1 of these Product Terms. Third Party Software means any software, licensed as a stand alone product or as a part of another software, that is not owned by EVault Inc. or its subsidiaries. Transfer Appliance means an Appliance leased or purchased by Customer as a part of the Premium Data Transfer Services. Users means Customer s employees, contractors and agents. Warm Site has the meaning set forth in Section 3.1 on Exhibit A of these Product Terms. WinPE has the meaning set forth in Section 5.4 of these Product Terms. 2. PRODUCT SPECIFIC TERMS AND CONDITIONS. Terms and conditions applicable to the specific Products are set forth below. Customer warrants and represents that it has completed the environmental assessment form completely and accurately. Customer understands that Company will rely on this information in recommending the Products needed to support Customer s computing environment and agrees that that while Company may recommend a Product configuration, Customer is responsible for determining the Products actually purchased. Customer also understands and agrees that to the extent the information included on the environmental assessment form is inaccurate or incomplete or Customer desires a higher level of performance, Customer may need to purchase additional Products. SUBSCRIPTION SERVICES (EVault SaaS Services, EVault Managed Service, EVault Endpoint Protection Service, EVault ProMail Service and EVault Offsite Replication Service) Provision of Service. Commencing on the Service Effective Date, Company will provide to Customer that level and type of Subscription Service purchased by Customer, including Support Services, as set forth in the applicable Order Form. For all levels of the Subscription Services, Company shall provide online access to Customer Data for restoration and recovery purposes; however, Company reserves the right to physically ship to Customer the backup data on a mobile device within twenty-four (24) business hours. Software License. As a part of the provision of the Subscription Services, End-User Client Software must be installed on Customer s systems by Company and Customer must access other Licensed Software running on Company s Systems via the Internet. Subject to the terms and conditions of this Agreement, Company grants to Customer, for use solely by Customer and its Users, a limited, non-exclusive and nontransferable right and license to (a) install and use the End-User Client Software solely in connection with Company s provision of the Subscription Services; and (b) access and use the Licensed Software via the Internet solely for Customer s own internal business purposes. The End-User Client Software is licensed on a perpetual basis. Customer Responsibilities. (a) (b) Backing Up Data and Agent Monitoring. Customer will perform regular backups using the Subscription Services to hardware that Company owns and maintains at one of its data centers. Customer must monitor all backup activity by reviewing backup notifications and using Company s Web Central Control software or other tool. Customer shall report to Company any errors in executing such backups promptly by web submission, or telephone. Associated Costs. Customer is responsible for all Internet, communication and other costs associated with the use of the Subscription Services. Customer is responsible for implementing reasonable security and environmental precautions to ensure a high level of system availability and data protection and recovery. EVault Offsite Replication Service. (a) (b) Required Licensed Software. During the term of the EVault Offsite Replication Service, Customer must license and use the EVault software in its local environment, including the active, local vault that is backed up to the Passive Vault, and purchase Support Services for such Licensed Software. Customer shall install all Maintenance Releases for the Licensed Software in a timely manner. The Licensed Software and Support Services are subject to a separate fee. Passive Vault. Only a single active, local vault can be replicated to a single Passive Vault. All data replicated to the Passive Vault must be encrypted by Customer using the encryption feature in the EVault software. Further, Customer agrees that it will not install and run any software on the Passive Vault without the prior written consent of Company or its supplier. Customer is responsible for managing the Passive Vault, including, without limitation, configuration of the system in accordance with Company s recommendations, application and activation of required licenses, monitoring of backup and restore processes, scheduling and monitoring of optimization processes, setup and monitoring of the replication process and initiation of the EVault Director software failover and failback processes. In addition, Customer is responsible for setup of the network connections at the location of the local, active vault required to support replication activities and maintaining sufficient available bandwidth as needed to allow ongoing replication of Customer Data. EVAULT REMOTE DISASTER RECOVERY SERVICE Mandatory Terms - US - Version B

9 RDR Services. Subject to the terms and conditions of this Agreement, commencing on the Service Effective Date, Company shall provide to Customer the RDR Services for the Covered Equipment at the Covered Site only, as set forth in the applicable Order Form. Depending upon the level of RDR Services purchased by Customer, as designated in the applicable Order Form, in the event Customer declares a Disaster, Company will provide an installed, fully operational computer system and networking capability, equal to or better than the site configuration set forth in the Order Form (the Warm Site ), upon which Company or Customer, as applicable, can restore Customer s data. The monthly fees for the RDR Services are set forth in the applicable Order Form. In addition, in the event of a Disaster, a Disaster declaration fee and a daily usage fee will apply. For the avoidance of doubt, a declaration fee is a onetime charge that applies each time a Customer declares a Disaster and daily usage fees are fees to cover the use of the Warm Site after a declaration is made. Disaster declaration fees will be $500 USD for each x86 server or virtual machine and $1500 USD for each IBM server, unless otherwise specified in the Order Form. After a declaration is made, i365 will charge a daily usage fee for use of the Warm Site. The first thirty (30) days are included as part of the declaration fee. Beginning on the thirty-first (31 st ) day i365 will charge Customer 35% of Remote Disaster Recovery (RDR) Services Monthly subscription as set in the Order Form. Beginning on the sixty-first (61 st ) day of declaration the daily usage fee increases to 45% of the RDR Services Monthly subscription set in the Order From. Daily usage fees are charged on a per day basis for use of Warm Site. RDR Setup. During RDR setup, Customer is required to fill out and electronically sign/agree to (via ) the Warm Site configuration. i365 will compare the information in the Warm Site configuration to the Order Form and if there is a difference in resources required of more than 15%, then a new Order must be placed to make up the difference in resources or Customer must reduce the resources required in the Warm Site. Customer Responsibilities. (a) (b) (c) (d) (e) (f) Level of Services and Customer Software. Customer is responsible for determining whether the service level selected by Customer and specified in the applicable Order Form is sufficient to meet Customer s requirements for continuing its information processing activities in the event a Disaster is declared. During the term of the RDR Services, Customer shall maintain its Licensed Software, system software and operating systems at a release level for which Company or the manufacturer, as applicable, then currently provides support. If the RDR Services are used in an IBM i environment, Customer must provide to Company a SAVSYS tape or SAVSYS optical media prior to commencement of the service and each time the operating system on the Covered Equipment is upgraded. Testing. Customer shall conduct disaster recovery testing under the supervision of Company as soon as practicable following the effective date of the RDR Services. Customer is responsible for scheduling this test and ensuring that this test occurs prior to a declaration of a Disaster. As a part of such testing, Customer shall identify its disaster recovery leads. Testing should be completed using Customer s actual servers, server application sets and server count, as defined in the Warm Site configuration. Company shall provide Customer with access to a Warm Site in order to conduct testing, subject to that number of tests or hours of usage permitted under the level of RDR Services purchased by Customer, as set forth in the applicable Order Form. If Customer requires additional testing, a Warm Site will be available to Customer for a fee, as set forth in Company s then current pricing list. Customer must schedule tests at least sixty (60) days in advance. Priority for use of the Warm Sites is given to customers that have a declared Disaster. Accordingly, all tests are subject to cancellation by Company and in the event of a cancellation, will be rescheduled as soon as possible. During each Test, Company support staff shall provide reasonable supplies and support to Customer, as needed. Following a joint review of the disaster recovery test, Company will assign a resource to coordinate test support activities. Declaration of a Disaster. Customer shall designate one or more individuals who have the authority to declare a Disaster on behalf of Customer and provide to Company a list of such individuals. Customer understands and agrees that a Disaster may only be declared by one of these individuals. In the event a Disaster occurs, Customer must notify Company that it is declaring a Disaster in accordance with that disaster recovery declaration process provided by Company. During a Disaster. During a disaster recovery using the RDR Services, Customer shall provide any equipment, software, workspace, supplies, personnel and/or telecommunications services needed, that are not included in Warm Site. For the avoidance of doubt, Customer must provide its own equipment, such as laptops, in order to access and use the Warm Site. Customer also must re-routing all external IP addresses and aliases to the IP addresses provide by Company. Further, Customer must provide, during a Disaster or Test, the appropriate skills and knowledge required to recover, support and maintain the business applications being recovered on the Warm Site. Following a Disaster, Customer is responsible for installing its applications on its equipment. Encryption Keys. If Customer declares a Disaster, Customer must provide to Company its encryption keys in order for Company to be able to restore the data to the Warm Site. Such encryption keys are deemed to be Confidential Information, and Company will hold such keys and all data protected by such keys in accordance with Company s confidentiality obligations set forth in the Master Agreement. Changes to Warm Site. Customer must notify Company in writing of any changes to the Warm Site compared to the Warm Site configuration filled out by Customer during the RDR setup. Customer must complete a new Warm Site configuration and go thru the RDR setup process for any changes to the warm site prior to a test or Disaster declaration. No test can be completed and no restoration in the event of a declaration of a Disaster can be performed, if there are changes to the Warm Site that have not been documented as outlined above. Availability of Warm Site. Customer understands and agrees that when a Disaster is declared, the availability of services and equipment will be on a first-come first served basis. Accordingly, while Company will provide a Warm Site and restore Customer s data within the timeframe designated for the RDR Services level purchased by Customer, a Warm Site may not be immediately available upon declaration of a Disaster. HOSTING SERVICES AND SOFTWARE MANAGED SERVICES. EVault Managed Services for Software Customers. Commencing on the Service Effective Date, Company will provide to Customer the EVault Managed Service for Software Customers purchased by Customer with respect to vaults owned by Customer and located on either the premises of Company or its Suppliers or Customer s premises, as set forth in the applicable Order Form. Customer must obtain the necessary Hardware and Licensed Software licenses. Customer must maintain support and maintenance with respect to the Licensed Software for so long as Customer is purchasing the EVault Managed Service for Software Customers. If the Hardware is located on the premises of Company or its Suppliers, Company will provide the required Hardware for a Fee. If the Hardware is located on Customer s premises, Customer must provide Hardware that complies with the hardware specifications required by Company. Further, Customer must provide Company and its Suppliers with all access to Customer's systems and sites necessary to provide the EVault Managed Service for Software Customers. Customer also shall establish, maintain Mandatory Terms - US - Version B

10 and upgrade the configuration of the hardware system and related resources (including size of memory, disk capacity, operating system and other parameters) so that they are consistent with specifications published from time to time by Company. Hosting Services for the EVault Plug-n-Protect Appliance. Commencing on the effective date set forth in the Order Form, Company will provide to Customer the Hosting Services purchased by Customer with respect to those EVault Plug-n-Protect appliances owned by Customer and located on Company s premises, as set forth in the applicable Order Form. Customer must maintain Support Services with respect to each EVault Plug-n- Protect appliance for so long as Customer is purchasing the Hosting Services. Customer also shall establish the configuration of the hardware system and related resources (including size of memory, disk capacity and other parameters) that are consistent with specifications published from time to time by Company. EVAULT ENDPOINT PROTECTION SERVICE Monitoring of usage. EVault Endpoint Protection (EEP) service allows the customer to self-control such aspects of the service as addition and removal of devices that are protected by the service, level of service used for each device protected by the service and amount of data protected by the service. Company will provide the Customer with usage information as part of the service and billing for the service will be based on those metrics; it is the sole responsibility of the Customer to monitor the usage levels regularly. Encryption keys. Data protected with EVault Endpoint Protection service is encrypted at all times. As part of the account setup, Company will provide the Customer with one or more set of encryption keys that will enable full access to data stored under the created account. It is the sole responsibility of the Customer to control access, store in escrow and secure those encryption keys. Loss of the keys will equate to loss of data and loss of control to the keys (to third party) will equate to data breach. Location of Data. Data protected with EVault Endpoint Protection services may be stored at facilities located within or outside of the United States and managed by EVault and/or third parties. 3. OWNERSHIP AND RESTRICTIONS 3.1 TITLE. Customer acknowledges and agrees that as between Company and Customer title to and ownership of the Products (excluding any Hardware purchased by Customer) and Systems, including all corrections, enhancements, or other modifications to the Licensed Software, whether made by Company or any third party, and all Intellectual Property Rights therein, are and will at all times be deemed the sole and exclusive property of Company and its Suppliers. All rights not expressly granted to Customer in this Agreement are reserved by Company and its Suppliers. 3.2 PROPRIETARY RIGHTS NOTICES. Customer shall not delete, alter, cover, or distort any copyright, trademark, or other proprietary rights notice placed by Company or its Suppliers on or in the Products and shall ensure that all such notices are reproduced on all copies thereof. 3.3 RESTRICTIONS ON USE. Customer acknowledges that the Licensed Software and its structure, organization and Source Code constitute valuable trade secrets of Company or its Suppliers. Accordingly, Customer will not, directly or indirectly, do any of the following: (a) modify, adapt, alter, translate, or create derivative works from the Licensed Software or use the Licensed Software for application development purposes; (b) merge the Licensed Software with other software; (c) sublicense, lease, rent, loan, distribute, sell or otherwise transfer or make available the Licensed Software or Products to any third party except as specifically permitted by this Agreement; (d) reverse engineer, decompile, disassemble, or otherwise attempt to derive the source code for the Licensed Software or evaluate the Licensed Software in order to develop a competitive product; (e) use the Licensed Software or Products to process data or provide any service bureau activity for any third party; (f) otherwise use the Licensed Software except as expressly allowed under this Agreement; (g) violate any local, state, federal or foreign law, treaty, regulation or convention applicable to Customer in connection with its Users use of the Licensed Software; (h) willfully tamper with the security of any of the Systems or tamper with other customer accounts of Company; (i) attempt to access data on the System not belonging to or intended for Customer; (j) attempt to probe, scan or test the System or to breach the security or authentication measures without proper authorization; (k) willfully render any part of the Systems unusable; or (l) publish or disclose to third parties any evaluation of the Licensed Software without the prior written consent of Company and its Suppliers. 3.4 THIRD PARTY SOFTWARE. Notwithstanding anything to the contrary contained in this Agreement, any Third Party Software included in the Licensed Software, Appliance Software or licensed as a stand alone product is subject to the terms and conditions of any end user license agreement or additional terms accompanying such software and/or posted on Company s website. If the Licensed Software includes Microsoft Corporation s WinPE software and related utility programs ( WinPE ), Customer may only use WinPE as a boot, diagnostic, disaster recovery, setup, restoration, emergency services, installation, test and/or configuration utilities program and not as a general purpose operating system product. CUSTOMER UNDERSTANDS THAT WINPE CONTAINS A SECURITY FEATURE THAT WILL CAUSE THE COMPUTER SYSTEM TO REBOOT WITHOUT PRIOR NOTIFICATION TO THE END-USER AFTER TWENTY-FOUR (24) HOURS OF CONTINUOUS USE. To the maximum extent permitted by applicable law, neither Microsoft Corporation nor any of its affiliates shall be liable to Customer for any claims or amounts relating to WinPE or other Microsoft software licensed pursuant to this Agreement. Further, Microsoft Corporation and its affiliates will not provide Customer with any customer support for WinPE or other Microsoft software licensed pursuant to this Agreement. 3.5 CUSTOMER S DATA. Customer agrees that it is solely responsible for the content of all communications it makes while using Customer s account and all Customer Data it processes using the Subscription Services or Other Services. Customer agrees that Users will not use the Subscription Services or Other Services to communicate any message or material that (a) is known, or reasonably should be known, to be libelous, harmful to minors, obscene or constitutes pornography; (b) is known, or reasonably should be known, to infringe the copyrights, patents, trade secrets, trademarks, trade names or other proprietary rights of a third party or is otherwise unlawful; or (c) would otherwise give rise to civil liability, or that constitutes or encourages conduct that could constitute a criminal offence, under any applicable law or regulation. Customer is solely responsible for the collection, accuracy, currency, quality, legality, completeness and use of Customer Data that is processed using the Products, stored on the System, or disclosed to or used by Customer or Users in connection with the Licensed Software. 3.6 AUTHORIZATION TO RELEASE DATA. Notwithstanding anything to the contrary contained in this Agreement, if Customer requests Company or its Suppliers to provide assurances to any governmental agency, regulatory organization or similar institution, including without limitation, the U.S. Securities and Exchange Commission and the Financial Institution Regulatory Authority (collectively, Regulatory Agencies ) regarding the services provided by Company, Customer authorizes Company and its Suppliers to furnish to such Regulatory Agencies all data, and other records stored by Customer on servers of Company or its Suppliers or routed through exchange servers of Company or its Suppliers. Further, Customer authorizes Company and its Suppliers to provide to the Regulatory Agencies assurances that Company and its Suppliers will comply with Mandatory Terms - US - Version B

11 any requests for data belonging to Customer received from a Regulatory Agency. Customer agrees to indemnify and hold harmless Company and its Suppliers from and against any and all claims relating to or arising from Company s compliance with this provision or release of such data. 3.7 PASSWORDS. Users will access the Subscription Services and Other Services via the Internet by means of a specific account and passwords provided by Company. Company will issue to Customer, or will authorize Customer to issue, a password (each, a Password ) for each User authorized to use the Subscription Services and Other Services using Customer s account. Company encourages Customer to change the Passwords issued by Company. In addition, Customer will designate its own key for the encryption of Customer Data; if Customer loses its encryption key, it may not be able to access its data. Customer is solely responsible for the confidentiality and use of its Passwords, encryption key and the Customer account. In no event will Company or its Suppliers be liable for any loss of Customer Data or other claims to the extent the same arose from unauthorized access to the Customer s account by obtaining a Password or encryption key caused by a negligent or an intentional act or omission of Customer. 4. SECURITY AND ENCRYPTION. Company has adopted a written security policy that includes administrative, technical and physical safeguards that are intended to protect Customer s Confidential Information from unauthorized access and use. In addition, Company and Customer understand and agree to the terms and conditions set forth in the Privacy and Security Addendum attached hereto as Attachment A and incorporated herein by reference. However, Customer shall encrypt, using the encryption feature provided in the Products, all Customer Data that it transmits to Company or its suppliers, including, without limitation, data transferred over the Internet or via a Transfer Appliance or other media. The parties acknowledge and agree that, notwithstanding such measures taken to prevent unauthorized disclosure, use of or connection to the Internet provides the opportunity for unauthorized third parties to circumvent such precautions and illegally gain access to Confidential Information. Accordingly, Recipient cannot and does not (and nothing in this Agreement is intended to) guarantee the privacy, security or authenticity of any information so transmitted over or stored in any system connected to the Internet. 5. LIMITED WARRANTY AND DISCLAIMER 5.1 LICENSED SOFTWARE. Company warrants to Customer that for a period of thirty (30) days following the date of delivery (the Warranty Period ), the Licensed Software, under normal use and if installed properly on hardware appropriate for use therewith, shall perform substantially in accordance with the Documentation. For any breach of this warranty during the Warranty Period and to the extent not otherwise covered by a maintenance agreement between Company and Customer, Customer s sole and exclusive remedy and the sole and exclusive liability of Company and its Suppliers, will be for Company to use reasonable efforts to correct promptly any documents, reproducible errors and defects to make the Licensed Software operate as warranted. COMPANY PROVIDES THIRD PARTY SOFTWARE AND MICROSOFT SOFTWARE AS IS WITHOUT WARRANTIES OF ANY KIND, ALTHOUGH THE THIRD PARTY SUPPLIERS OF SUCH SOFTWARE MAY PROVIDE THEIR OWN WARRANTIES DIRECTLY TO CUSTOMER. 5.2 SUBSCRIPTION SERVICES AND OTHER SERVICES WARRANTY. Company warrants to Customer that the Subscription Services and Other Services, under normal use, will perform substantially in accordance with the Documentation. For any breach of this warranty and to the extent not otherwise covered by Support Services, Customer s sole and exclusive remedy and the sole and exclusive liability of Company and its Suppliers, will be for Company to use reasonable efforts to correct promptly any documents, reproducible errors and defects to make the Subscription Services or Other Services operate as warranted and if after a reasonable number of attempts, Company is unable to provide the Subscription Services or Other Services in compliance with the warranty, Customer may terminate the Subscription Service or Other Service, as applicable. Any claim under this warranty must be made within thirty (30) days after delivery of the non-compliant services. 5.3 HOSTING SERVICES AND SOFTWARE MANAGED SERVICES WARRANTY. Company warrants to Customer that the Hosting Services and Software Managed Services will be of professional quality conforming to generally accepted industry standards and practices. For any breach of this warranty, Customer s sole and exclusive remedy and the sole and exclusive liability of Company and its Suppliers, will be for Company to reperform the services and if after a reasonable number of attempts, Company is unable to provide the services in compliance with the warranty, Customer may terminate the affected services. Any claim under this warranty must be made within thirty (30) days after delivery of the noncompliant services. 5.4 DISCLAIMER. EXCEPT AS EXPRESSLY WARRANTED IN THIS SECTION, THE PRODUCTS ARE PROVIDED AS IS, WITHOUT ANY WARRANTY OF ANY KIND, WHETHER EXPRESS, IMPLIED, OR STATUTORY, INCLUDING BUT NOT LIMITED TO ANY IMPLIED WARRANTIES OR CONDITIONS OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, NON-INFRINGEMENT OR NON-MISAPPROPRIATION OF INTELLECTUAL PROPERTY RIGHTS OF A THIRD PARTY, CUSTOM, TRADE, QUIET ENJOYMENT, ACCURACY OF INFORMATIONAL CONTENT OR RESULTS, OR SYSTEM INTEGRATION, OR ANY WARRANTIES OR CONDITIONS ARISING UNDER ANY OTHER LEGAL REQUIREMENT. COMPANY AND ITS SUPPLIERS MAKES NO WARRANTY THAT THE LICENSED SOFTWARE WILL RUN PROPERLY ON ALL HARDWARE, THAT THE LICENSED SOFTWARE, SUBSCRIPTION SERVICES OR OTHER PRODUCTS WILL MEET THE NEEDS OR REQUIREMENTS OF CUSTOMER OR ITS USERS OR WILL OPERATE IN THE COMBINATIONS THAT MAY BE SELECTED FOR USE BY CUSTOMER OR ITS USERS, THAT THE LICENSED SOFTWARE OR SUBSCRIPTION SERVICES WILL BE UNINTERRUPTED OR ERROR FREE, OR THAT ALL ERRORS WILL BE CORRECTED. 6. INDEMNIFICATION. Customer shall defend any Claim brought against Company, its Suppliers or their respective Indemnified Parties by any third party arising from or related to Customer s: (a) violations of law or regulations in connection with the use of the Products; (b) actual or alleged infringement of a third party s Intellectual Property Rights; (c) failure to encrypt Customer Data; or (d) business operations. Customer shall pay all damages and costs awarded against Company, its Suppliers and their respective Indemnified Parties, by judgment or in settlement, in connection with such a Claim as well as any costs incurred by Company or its Suppliers in response to a request by Customer to assist with the defense of the Claim. 7. LIMITATION OF LIABILITY 7.1 WAIVER OF CONSEQUENTIAL DAMAGES. IN NO EVENT WILL EITHER PARTY OR ANY SUPPLIER OF COMPANY BE LIABLE FOR: (a) THIRD PARTY CLAIMS OR LIABILITIES OTHER THAN THOSE IDENTIFIED IN SECTION 5; OR (b) ANY SPECIAL, INDIRECT, INCIDENTAL, EXEMPLARY, PUNITIVE OR CONSEQUENTIAL DAMAGES, INCLUDING, WITHOUT LIMITATION, LOSS OR DAMAGE TO DATA, INACCURACY OF DATA, LOSS OF ANTICIPATED REVENUE OR PROFITS, WORK STOPPAGE OR IMPAIRMENT OF OTHER ASSETS OR LOSS OF GOOD WILL, WHETHER OR NOT FORESEEABLE AND WHETHER OR NOT A PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES AND NOTWITHSTANDING ANY FAILURE OF THE ESSENTIAL PURPOSE OF THIS AGREEMENT OR ANY LIMITED REMEDY HEREUNDER. Mandatory Terms - US - Version B

12 7.2 CAP ON LIABILITY. EXCEPT FOR A BREACH OF THE CONFIDENTIALITY PROVISIONS UNDER SECTION 6, IN NO EVENT WILL THE TOTAL LIABILITY OF COMPANY AND ITS SUPPLIERS ARISING OUT OF OR IN CONNECTION WITH THE PRODUCTS AND THIS AGREEMENT EXCEED (a) WITH RESPECT TO LICENSED SOFTWARE, THE PRO RATA PORTION, BASED ON A THREE-YEAR STRAIGHTLINE DEPRECIATION OF THE ACTUAL AMOUNT OF LICENSE FEES PAID TO COMPANY FOR THE AFFECTED LICENSED SOFTWARE; (b) WITH RESPECT TO SUBSCRIPTION SERVICES, HOSTING SERVICES AND SOFTWARE MANAGED SERVICES, THE FEES PAID BY CUSTOMER FOR THE APPLICABLE SERVICE DURING THE THREE (3) MONTH PERIOD IMMEDIATELY PRECEEDING THE DATE ON WHICH THE EVENT GIVING RISE TO THE CLAIM OCCURRED; AND (c) WITH RESPECT TO RDR SERVICES, THE FEES PAID BY CUSTOMER FOR SUCH SERVICE DURING THE TWELVE (12) MONTH PERIOD IMMEDIATEY PRECEDING THE DATE ON WHICH THE EVENT GIVING RISE TO THE CLAIM OCCURRED. 7.3 DISCLAIMER. THE FOREGOING LIMITATIONS APPLY TO ALL CAUSES OF ACTION IN THE AGGREGATE, INCLUDING WITHOUT LIMITATION, BREACH OF CONTRACT, BREACH OF WARRANTY, INDEMNIFICATION, NEGLIGENCE, STRICT LIABILITY, MISREPRESENTATION AND OTHER TORTS, AND STATUTORY CLAIMS. EACH OF THE PARTIES ACKNOWLEDGES THAT IT UNDERSTANDS THE LEGAL AND ECONOMIC RAMIFICATIONS OF THE FOREGOING LIMITATIONS, AND THAT THE FOREGOING LIMITATIONS ALLOCATE THE VARIOUS RISKS BETWEEN THE PARTIES AND FORM AN ESSENTIAL PART OF THE AGREEMENT OF THE PARTIES. 8. TERM AND TERMINATION 8.1 TERM. This Agreement and the term of the Products will commence upon the effective date set forth herein and will continue for the period set forth in the applicable order form (subject to the renewal terms set forth in this Agreement) ( Term ), unless earlier terminated in accordance with the provisions of this Agreement. Upon expiration of the initial term and any renewal term of the Subscription Services or Other Services, the term will automatically renew for additional one (1) year terms unless either party notifies the other of its intention not to renew at least thirty (30) days prior to the renewal date. 8.2 TERMINATION. Either party may terminate this Agreement, a Statement of Work and all licenses and services provided hereunder upon written notice: (a) if the other party materially breaches this Agreement and fails to cure such breach within thirty (30) days after receiving written notice from the non-breaching party; (b) if the other party files a petition for bankruptcy, insolvency or reorganization under any bankruptcy law or is adjudicated bankrupt; (c) if a petition in bankruptcy is filed against the other party and such petition is not dismissed within sixty (60) days of the filing date; (d) if the other party becomes insolvent or makes an assignment for the benefit of its creditors pursuant to any bankruptcy or insolvency law; or (e) if a receiver is appointed for the other party or its business. In addition, Company may suspend Customer s access to Customer Data or Support Services or terminate this Agreement and/or a Statement of Work, effective immediately, if Customer fails to pay any portion of the Fees when due within ten (10) days after receiving written notice from Company that payment is past due. Fees will continue to accrue during any such suspension. Additional termination rights are set forth in Section 8 above. 8.3 TERMINATION FEE. With respect to any Subscription Service, Other Service, Hosting Services or Software Managed Services, in addition to those termination rights set forth in Section 8.2 above, Customer may terminate such service for convenience upon thirty (30) days written notice to Company and by immediately paying a termination fee equal to (a) the monthly subscription fee in effect for the term at the time that Company receives the termination notice, multiplied by (b) the number of months remaining in the current term. 8.4 OBLIGATIONS UPON TERMINATION. Upon the termination or expiration of this Agreement: (a) Customer shall promptly pay in full all outstanding payments to Company (but in any event, no later than ten (10) days following the date on which termination or expiration is effective); (b) all licenses granted hereunder (if any) will immediately terminate and Customer shall immediately cease all use of the related Products; (c) Customer shall remove all copies (or permits Company to remove all copies, if applicable) of the Licensed Software from its computer systems and shall return or destroy, at Company s option, all such copies; and (d) the receiving party shall promptly return all Confidential Information (except Customer Data) of the disclosing party in its possession or control. With respect to (c) and (d) of the preceding sentence, Customer shall certify to Company in writing within ten (10) days of the date on which termination or expiration is effective that it has made no other copies, or has completely destroyed all copies, including backup or archive copies, of the Licensed Software or any portion thereof, and that no copies of any portion of the Licensed Software are in existence on any network, system, or equipment ever owned or used by Customer. With respect to Customer Data maintained at a Company data center, on or before termination or expiration of the services, upon Customer s request and payment of the applicable fees, Company will export the Customer Data to a mobile device and return such data to Customer. In the alternative, Customer may request, in writing, that Company delete all Customer Data maintained at an Company data center. Customer understands and agrees that following termination or expiration of the services, Company may delete all of the Customer Data from its Systems and will have no liability for such action. The expiration or termination of this Agreement does not relieve either party of any obligations that have accrued on or before the effective date of the termination or expiration. 8.5 SURVIVAL. The following Sections will survive the termination or expiration of this Agreement: Ownership and Restrictions, Limited Warranty and Disclaimer, Limitation of Liability and any other provisions of this Agreement that by reasonable interpretation are intended by the parties to survive the termination or expiration of this Agreement. 9. GENERAL. 9.1 ASSIGNMENT. Neither party will indirectly or directly transfer or assign any rights under this Agreement, in whole or part, without the prior written consent of the other party. Notwithstanding the foregoing, either party may, without the prior written consent of the other party, assign this Agreement to a subsidiary or affiliated entity as part of a divestiture, corporate reorganization or consolidation or to another party in connection with a merger, acquisition, or sale of substantially all assets or stock to which this Agreement relates, provided the successor agrees in writing to assume all of the assigning party s obligations hereunder. Any assignments contrary to this Section will be void. Subject to the foregoing, this Agreement will bind and inure to the benefit of the parties and their respective successors and permitted assigns. Notwithstanding the foregoing, all or certain portions of the Products sold or licensed under this Agreement and Company s obligations under this Agreement may be provided by a Supplier or subcontractor of Company. Company agrees that it will be responsible for its Suppliers and subcontractors and their performance under this Agreement. 9.2 INTERNATIONAL TRADE COMPLIANCE. The Products, including any Third Party Software, are subject to the customs and export control laws and regulations of the United States and any country in which the products are manufactured, received or used. Further, under U.S. law, the Products may not be sold, leased or otherwise transferred to restricted countries, or used by a restricted end-user or an end-user engaged in activities related to weapons of mass destruction including, without limitation, activities related to designing, developing, producing or using nuclear weapons, materials, or facilities, missiles or supporting missile projects, or chemical or biological weapons. Customer will comply with these laws Mandatory Terms - US - Version B

13 and regulations and shall ensure that any person to which Customer requests Company to route Product directly has been made aware of the associated export controls. 9.3 INSPECTIONS. Customer will permit Company or its representatives to review Customer s relevant records and inspect Customer s facilities and systems to ensure compliance with the Agreement. Company will give Customer at least ten (10) days advance notice of any such inspection and will conduct the same during normal business hours in a manner that does not unreasonably interfere with Customer's normal operations. 9.4 THIRD-PARTY BENEFICIARIES. The Suppliers of Company, including without limitation EVault Inc. and its subsidiaries, can enforce all provisions of this Agreement as third-party beneficiaries. For the avoidance of doubt, the disclaimer of warranties and limitations of liability extend to these third-party beneficiaries. 9.5 FORCE MAJEURE. Except for Customer s payment obligations for Products, neither party will be liable for any failure or delay in performance under this Agreement which might be due in whole or in part, directly or indirectly, to any contingency, delay, failure, or cause of, any nature beyond the reasonable control of such party, including, without limitation, fire, earthquake, storm, flood, power outage, strike, war, act of terrorism, law, export control regulation, instructions of government authorities or judgment of a court (not arising out of breach by such party of this Agreement). If, however, a party s performance is prevented for thirty (30) days or more, then the other party will be entitled to terminate these Product Terms on written notice to the party suffering the force majeure at any time prior to resumption of performance by the party suffering the force majeure. This Addendum shall be applicable only in the event and to the extent that: Attachment A PRIVACY AND SECURITY ADDENDUM (a) (b) (c) Customer is a Covered Entity as defined in 45 CFR ; Company is, with respect to Customer, a Business Associate as defined in 45 CFR ; and Company receives PHI (as defined below) from Customer; and/or Company receives Nonpublic Personal Information, Member Information and/or Consumer Information (each as defined below) from Customer; and/or Company receives MA Personal Information (as defined below) from Customer. 1. DEFINITIONS. Capitalized terms used, but not otherwise defined, in this Addendum shall have the same meaning as those terms in the Agreement or applicable regulation. Breach, as it relates to information, has the same meaning as the term breach in Section of the HITECH Act. Consumer Information has the same meaning as the term consumer information in the NCUA Regulation. Designated Record Set has the same meaning as the term designated record set in 45 CFR Electronic PHI has the same meaning as the term electronic protected health information in 45 CFR , limited to the information created or received by Company from or on behalf of Customer. Gramm-Leach-Bliley Act means the Financial Services Modernization Act of 1999, 15 USC HIPAA means the Health Insurance Portability and Accountability Act of 1996 and the regulations promulgated thereunder, as each may be amended from time to time. HITECH Act means the Health Information Technology for Economic and Clinical Health Act of "Individual" has the same meaning as the term "individual" in 45 CFR and shall include a person who qualifies as a personal representative in accordance with 45 CFR (g). MA Personal Information has the same meaning as the term Personal Information in the Massachusetts Personal Information Protection Law. Massachusetts Personal Information Protection Law means 201 CMR 17.00, Standards for the Protection of Personal Information of Residents of the Commonwealth. Member Information has the same meaning as the term member information in the NCUA Regulation. NCUA Regulation means that regulation of the National Credit Union Administration found at 12 CFR Part 748. Nonpublic Personal Information has the same meaning as the term nonpublic personal information in 15 USC Subchapter NPI has the meaning set forth in Section 3 below. "Privacy Rule" means the Standards for Privacy of Individually Identifiable Health Information at 45 CFR Part 160 and Part 164, Subparts A and E. "PHI" has the same meaning as the term "protected health information" in 45 CFR , limited to the information created or received by Company from or on behalf of Customer. "Required By Law" has the same meaning as the term "required by law" in 45 CFR Secretary" means the Secretary of the Department of Health and Human Services or his designee. Security Rule means the Security Standards at 45 CFR Part 160 and Part 164. Mandatory Terms - US - Version B

14 Unsecured PHI has the same meaning as the term unsecured protected health information in Section 13402(h) of the HITECH Act. 2. BUSINESS ASSOCIATE AGREEMENT UNDER HIPAA. Effective February 17, 2010, this Section 2 applies to the extent that (a) Customer is a Covered Entity as defined in 45 CFR ; (b) Company is, with respect to Customer, a Business Associate as defined in 45 CFR ; and (c) Company receives PHI from Customer. 2.1 Obligations and Activities Of Business Associate. As a Business Associate, Company shall have the following obligations: (a) (b) (c) (d) (e) (f) (g) (h) (i) (j) Company agrees to not use or disclose PHI other than as permitted or required by this Agreement or as Required By Law. Except as otherwise limited in this Agreement, Company may use or disclose PHI to perform functions, activities, or services for, or on behalf of, Customer as specified in this Agreement, provided that such use or disclosure would not violate the Privacy Rule if done by Customer or the minimum necessary policies and procedures of Customer of which Company has been informed. Company agrees to use appropriate safeguards to prevent use or disclosure of the PHI other than as provided for by this Agreement including the implementation of administrative, physical and technical safeguards that reasonably and appropriately protect the confidentiality, integrity and availability of Electronic PHI as required by the Security Rule Company agrees to mitigate, to the extent practicable, any harmful effect that is known to Company of a use or disclosure of PHI by Company in violation of the requirements of this Agreement. Company agrees to report to Customer any use or disclosure of the PHI not provided for by this Agreement of which it becomes aware. Further, Company agrees to notify Customer of any Breach of Unsecured PHI of which it becomes aware and otherwise comply with the notification requirements set forth in Section of the HITECT Act. Company agrees to ensure that any agent, including a subcontractor, to whom it provides PHI received from, or created or received by Company on behalf of, Customer agrees to the same restrictions and conditions that apply through this Agreement to Company with respect to such information. Company agrees to make its internal practices, books, and records, including policies and procedures and PHI, relating to the use and disclosure of PHI received from, or created or received by Company on behalf of, Customer available to the Secretary, at a reasonable time designated by the Secretary, for purposes of the Secretary determining Customer's compliance with the Privacy Rule. Company agrees to document such disclosures of PHI and information related to such disclosures as would be required for Customer to respond to a request by an Individual for an accounting of disclosures of PHI in accordance with 45 CFR Company agrees to provide to Customer or an Individual, in time and manner agreed by the parties, information collected in accordance with Section 2(g) of this Addendum, to permit Customer to respond to a request by an Individual for an accounting of disclosures of PHI in accordance with 45 CFR Company agrees not to exchange any PHI of an Individual for remuneration except as permitted in Section 13405(d)(2) of the HITECH Act. Company and Customer agree that Company does not receive or maintain PHI from Customer in a Designated Record Set, and Company has no ability to provide access to or amend same. If, in the performance of its obligations set forth in Sections 2(f) through 2(h) above, Company expends time and materials, Company will provide Customer with an estimate of the fee for such time and materials. Following agreement by the parties as to such fees, Company will invoice Customer, and Customer shall pay Company such fees in accordance with the payment terms set forth in this Agreement. Except as otherwise limited in this Agreement, Company may (i) use PHI for the proper management and administration of Company or to carry out the legal responsibilities of Company, and (ii) disclose PHI for the proper management and administration of Company, provided that disclosures are required by law, or Company obtains reasonable assurances from the person to whom the information is disclosed that it will be held confidential and used or further disclosed only as required by law or for the purpose for which it was disclosed to the person, and the person notifies Company of any instances of which it is aware in which the confidentiality of the information has been breached Obligations of Covered Entity. Customer shall have the following obligations: (a) (b) (c) (d) (e) (f) Customer shall use the encryption features in the Products to encrypt any and all PHI that is provided to Company. In addition to the indemnification obligations set forth in Section 9.2 of the Product Terms, Customer shall defend and indemnify Company from and against any damages and costs arising from or relating to the failure of Customer to encrypt the PHI. Customer shall notify Company of any limitation(s) in its notice of privacy practices of Customer in accordance with 45 CFR , to the extent that such limitation may affect Company's use or disclosure of PHI. Customer shall notify Company of any changes in, or revocation of, permission by an Individual to use or disclose PHI, to the extent that such changes may affect Company's use or disclosure of PHI. Customer shall notify Company of any restriction to the use or disclosure of PHI that Customer has agreed to in accordance with 45 CFR , to the extent that such restriction may affect Company's use or disclosure of PHI. Customer shall not request Company to use or disclose PHI in any manner that would not be permissible under HIPAA if done by Customer. Customer represents and warrants that it has the right and authority to provide PHI to Company for Company to perform its obligations and provide services to Customer and that Company s storage and use of any PHI in providing services to Customer is permitted under Customer s privacy policy and applicable law Term and Termination Mandatory Terms - US - Version B

15 (a) (b) (c) Term. The term of this Addendum shall be effective as of the Effective Date and shall terminate when all of the PHI provided by Customer to Company, or created or received by Company on behalf of Customer, is destroyed or returned to Customer, or, if it is infeasible to return or destroy PHI, protections are extended to such information, in accordance with the termination provisions in this Section. Termination for Cause. In addition to any termination rights set forth in the Product Terms, if Company materially breaches this Addendum, Customer may terminate this Addendum and this Agreement if Company fails to sure such breach within thirty (30) days after receiving written notice of such breach or immediately terminate this Addendum and this Agreement if cure is not possible. Effect of Termination. (i) (ii) Except as provided in Section 2.3(c)(ii) below, upon termination of this Addendum, for any reason, Company shall return or destroy all PHI received from Customer, or created or received by Company on behalf of Customer in accordance with the terms of this Agreement. This provision shall apply to PHI that is in the possession of subcontractors or agents of Company. Company shall retain no copies of the PHI. In the event that Company determines that returning or destroying the PHI is infeasible, Company shall provide to Customer notification of the conditions that make return or destruction infeasible. If the return or destruction of PHI is infeasible, Company shall extend the protections of this Agreement to such PHI and limit further uses and disclosures of such PHI to those purposes that make the return or destruction infeasible, for so long as Company maintains such PHI. (d) Termination Upon Change In Law. If the Secretary provides guidance, clarification or interpretation of HIPAA or the HITECH Act or there is a change in HIPAA or the HITECH Act such that the service relationship between Company and Customer is not considered a Business Associate relationship as defined in HIPAA, this Addendum shall terminate and be null and void Miscellaneous (a) (b) (c) (d) Regulatory References. A reference in this Agreement to a section in a regulation means the section as in effect or as amended. Amendment. The parties agree to take such action as is necessary to amend this Agreement from time to time as is necessary for Customer to comply with the requirements of HIPAA. Survival. The respective rights and obligations of Company under Section 2.3(c) of this Addendum shall survive the termination of this Agreement. Interpretation. Any ambiguity in this Addendum shall be resolved to permit Customer to comply with HIPAA. 3. GRAMM-LEACH-BLILEY ACT AND NCUA REGULATION. This Section 3 applies to the extent that Company receives Nonpublic Personal Information, Member Information and/or Consumer Information from Customer (collectively, NPI ). 3.1 Nonpublic Personal Information. NPI is deemed to be Confidential Information of Customer under the Product Terms, if applicable. Notwithstanding anything to the contrary contained in the Product Terms, NPI will be subject to the confidentiality terms of the Product Terms indefinitely. 3.2 Information Security Program. Company shall implement and maintain an information security program designed to: (a) ensure the security and confidentiality of NPI; (b) protect against any anticipated threats or hazards to the security or integrity of NPI; (c) protect against unauthorized access to or use of such records or information that could result in substantial harm or inconvenience to any customer of Customer; and (d) ensure the proper disposal of NPI. Company will adjust its information security program as necessary, due to changes in technology, changes in the sensitivity of the information Customer maintains or has access to, or changes in law or regulation, during the term of this Agreement. Upon request, Company will provide to Customer any available summaries of policies, test results or other information to document the efforts by Company to implement an information security program designed to meet the objectives of the regulations. 3.3 Encryption. Customer shall use the encryption features in the Products to encrypt any and all NPI that is provided to Company. In addition to the indemnification obligations set forth in the Agreement, Customer shall defend and indemnify Company from and against any damages and costs arising from or relating to the failure of Customer to encrypt the NPI. 4. MASSACHUSETTS STANDARDS FOR THE PROTECTION OF PERSONAL INFORMATION OF RESIDENT OF THE COMMONWEALTH. This Section 4 applies to the extent that Company receives MA Personal Information from Customer. 4.1 MA Personal Information. MA Personal Information is deemed to be Confidential Information of Customer under the Product Terms, if applicable. Notwithstanding anything to the contrary contained in the Product Terms, MA Personal Information will be subject to the confidentiality terms of the Product Terms. 4.2 Use of MA Personal Information and Appropriate Security Measures. Company shall implement and maintain appropriate security measures, in accordance with the Massachusetts Personal Information Protection Law, for the protection of MA Personal Information. Further, all use by Company of MA Personal Information shall be in accordance with the Massachusetts Personal Information Protection Law. 4.3 Encryption. Customer shall use the encryption features in the Products to encrypt any and all MA Personal Information that is provided to Company. In addition to the indemnification obligations set forth in the Agreement, Customer shall defend and indemnify Company from and against any damages and costs arising from or relating to the failure of Customer to encrypt the MA Personal Information. Mandatory Terms - US - Version B

16 EXHIBIT 3 Mandatory Terms Professional Services 1. DEFINITIONS Change Request means a written request to change the terms or scope of a Statement of Work. Deliverables means any deliverables provided to Customer pursuant to a Statement of Work. Documentation means the then-current, generally available, written instructions, user guides, and user manuals for the Products, if applicable, whether in electronic, paper or other equivalent form, provided by Company and in connection with any updates, modifications and improvements to the Products, regardless of form or media. Intellectual Property Rights means, collectively, all worldwide intellectual property rights in and to any works of authorship, moral rights, copyrights, trademarks, service marks, patents, designs, trade secrets and algorithms. Products means one or more products or services purchased by Customer from Company. Professional Services means implementation, training, installation and data recovery, migration and restoration services and other professional services provided by Company to Customer, but specifically excluding Subscription Services, Support Services, Software Managed Services and Hosting Services. Project Coordinator means that project coordinator, designated by Customer, in connection with Professional Services. Statement of Work means a statement of work signed by the parties pursuant to which Company provides Professional Services to Customer. Supplier means a third party that manufacturers Products or grants to Company the right to resell or sublicense Products. 2. PROFESSIONAL SERVICES 2.1 Statements of Work. Customer and Company shall enter into a Statement of Work that describes the Professional Services to be performed by Company. If there is a conflict between this Agreement and a Statement of Work, the relevant provisions of this Agreement will control unless the Statement of Work expressly states otherwise. Following signing of a Statement of Work, Customer may request changes to the scope of the Professional Services by sending to Company a Change Request. Company will review the Change Request and notify Customer in writing of any financial or schedule change required to implement the Change Request. The Change Request will not be binding unless agreed to in writing by both parties. 2.2 Performance of Services. Company may perform the Professional Services at Company s or Customer s place of business, at Company s option. Company will have sole discretion to determine that personnel assigned to perform the Professional Services. 2.3 Access. Customer shall provide Company personnel with the necessary access to hardware and other systems as needed to perform the Professional Services. Customer warrants that it owns all right, title and interest in and to, or has full and sufficient right and authority to use in the manner contemplated by these Product Terms and any Statement of Work, any hardware, software, programming, materials or data furnished or made available by Customer to Company in connection with Company s performance of Professional Services. 2.4 Intellectual Property Rights. Company or its Suppliers do and will at all times own all Intellectual Property Rights related to the Professional Services, the Deliverables and all documentation related to the foregoing, provided that upon full payment to Company for all amounts due from Customer hereunder, Customer will have a perpetual, nonexclusive and nontransferable license to use such Deliverables for its own internal use for the business activities generally carried out by Customer. All computer software and other materials owned by Company or its Suppliers and used by Company in conjunction with the Professional Services or incorporated into the Deliverables will belong exclusively to Company and its Suppliers, whether or not they were specifically adapted by Company for use by Customer. Any concepts, ideas, know-how or techniques developed during the course of any Statement of Work by Company or its Suppliers, or jointly by Company or its Suppliers and Customer, will be the exclusive property of Company and its Suppliers. 3. LIMITED WARRANTY AND DISCLAIMER 3.1 PROFESSIONAL SERVICES WARRANTY. Company warrants to Customer that the Professional Services will be of professional quality conforming to generally accepted industry standards and practices. For any breach of this warranty, Customer s sole and exclusive remedy and the sole and exclusive liability of Company and its Suppliers, will be for Company to re-perform the services and if after a reasonable number of attempts, Company is unable to provide the services in compliance with the warranty, Customer may terminate the affected services. Any claim under this warranty must be made within thirty (30) days after delivery of the non-compliant services. 3.2 DISCLAIMER. EXCEPT AS EXPRESSLY WARRANTED IN THIS SECTION, THE PRODUCTS ARE PROVIDED AS IS, WITHOUT ANY WARRANTY OF ANY KIND, WHETHER EXPRESS, IMPLIED, OR STATUTORY, INCLUDING BUT NOT LIMITED TO ANY IMPLIED WARRANTIES OR CONDITIONS OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, NON-INFRINGEMENT OR NON-MISAPPROPRIATION OF INTELLECTUAL PROPERTY RIGHTS OF A THIRD PARTY, CUSTOM, TRADE, QUIET ENJOYMENT, ACCURACY OF INFORMATIONAL CONTENT OR RESULTS, OR SYSTEM INTEGRATION, OR ANY WARRANTIES OR CONDITIONS ARISING UNDER ANY OTHER LEGAL REQUIREMENT. COMPANY AND ITS SUPPLIERS MAKES NO WARRANTY THAT THE LICENSED SOFTWARE WILL RUN PROPERLY ON ALL HARDWARE, THAT THE LICENSED SOFTWARE, SUBSCRIPTION SERVICES OR OTHER PRODUCTS WILL MEET THE NEEDS OR REQUIREMENTS OF CUSTOMER OR ITS USERS OR WILL OPERATE IN THE COMBINATIONS THAT MAY BE SELECTED FOR USE BY CUSTOMER OR ITS USERS, THAT THE LICENSED SOFTWARE OR SUBSCRIPTION SERVICES WILL BE UNINTERRUPTED OR ERROR FREE, OR THAT ALL ERRORS WILL BE CORRECTED. 4. LIMITATION OF LIABILITY Mandatory Terms - US - Version B

17 4.1 WAIVER OF CONSEQUENTIAL DAMAGES. IN NO EVENT WILL EITHER PARTY OR ANY SUPPLIER OF COMPANY BE LIABLE FOR ANY SPECIAL, INDIRECT, INCIDENTAL, EXEMPLARY, PUNITIVE OR CONSEQUENTIAL DAMAGES, INCLUDING, WITHOUT LIMITATION, LOSS OR DAMAGE TO DATA, INACCURACY OF DATA, LOSS OF ANTICIPATED REVENUE OR PROFITS, WORK STOPPAGE OR IMPAIRMENT OF OTHER ASSETS OR LOSS OF GOOD WILL, WHETHER OR NOT FORESEEABLE AND WHETHER OR NOT A PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES AND NOTWITHSTANDING ANY FAILURE OF THE ESSENTIAL PURPOSE OF THIS AGREEMENT OR ANY LIMITED REMEDY HEREUNDER. 4.2 CAP ON LIABILITY. EXCEPT FOR A BREACH OF THE CONFIDENTIALITY PROVISIONS UNDER SECTION 6, IN NO EVENT WILL THE TOTAL LIABILITY OF COMPANY AND ITS SUPPLIERS ARISING OUT OF OR IN CONNECTION WITH THE PRODUCTS AND THIS AGREEMENT EXCEED WITH RESPECT TO PROFESSIONAL SERVICES, THE FEES PAID BY CUSTOMER UNDER THE APPLICABLE STATEMENT OF WORK, NOTWITHSTANDING ANY FAILURE OF THE ESSENTIAL PURPOSE OF THIS AGREEMENT OR ANY LIMITED REMEDY HEREUNDER. 4.3 DISCLAIMER. THE FOREGOING LIMITATIONS APPLY TO ALL CAUSES OF ACTION IN THE AGGREGATE, INCLUDING WITHOUT LIMITATION, BREACH OF CONTRACT, BREACH OF WARRANTY, INDEMNIFICATION, NEGLIGENCE, STRICT LIABILITY, MISREPRESENTATION AND OTHER TORTS, AND STATUTORY CLAIMS. EACH OF THE PARTIES ACKNOWLEDGES THAT IT UNDERSTANDS THE LEGAL AND ECONOMIC RAMIFICATIONS OF THE FOREGOING LIMITATIONS, AND THAT THE FOREGOING LIMITATIONS ALLOCATE THE VARIOUS RISKS BETWEEN THE PARTIES AND FORM AN ESSENTIAL PART OF THE AGREEMENT OF THE PARTIES. 5. GENERAL 5.1 ASSIGNMENT. Neither party will indirectly or directly transfer or assign any rights under this Agreement, in whole or part, without the prior written consent of the other party. Notwithstanding the foregoing, either party may, without the prior written consent of the other party, assign this Agreement to a subsidiary or affiliated entity as part of a divestiture, corporate reorganization or consolidation or to another party in connection with a merger, acquisition, or sale of substantially all assets or stock to which this Agreement relates, provided the successor agrees in writing to assume all of the assigning party s obligations hereunder. Any assignments contrary to this Section will be void. Subject to the foregoing, this Agreement will bind and inure to the benefit of the parties and their respective successors and permitted assigns. Notwithstanding the foregoing, all or certain portions of the Products sold or licensed under this Agreement and Company s obligations under this Agreement may be provided by a Supplier or subcontractor of Company. Company agrees that it will be responsible for its Suppliers and subcontractors and their performance under this Agreement. 5.2 FORCE MAJEURE. Except for Customer s payment obligations for Products, neither party will be liable for any failure or delay in performance under this Agreement which might be due in whole or in part, directly or indirectly, to any contingency, delay, failure, or cause of, any nature beyond the reasonable control of such party, including, without limitation, fire, earthquake, storm, flood, power outage, strike, war, act of terrorism, law, export control regulation, instructions of government authorities or judgment of a court (not arising out of breach by such party of this Agreement). If, however, a party s performance is prevented for thirty (30) days or more, then the other party will be entitled to terminate this Agreement on written notice to the party suffering the force majeure at any time prior to resumption of performance by the party suffering the force majeure. 5.3 THIRD-PARTY BENEFICIARIES. The Suppliers of Company, including without limitation EVault Inc. and its subsidiaries, can enforce all provisions of this Agreement as third-party beneficiaries. For the avoidance of doubt, the disclaimer of warranties and limitations of liability extend to these third-party beneficiaries. Mandatory Terms - US - Version B

18 Exhibit 4 Mandatory Terms Hardware 1. DEFINITIONS Additional Software means software that is added to the EDPM Appliance after installation of the original image and that supports the functions of the EVault Software for Microsoft System Center Data Protection Manager. Agent Software means that Licensed Software identified as agent software on Company s price list. Agreement means the Order Form and these Product Terms. Appliance means an appliance that is comprised of the Appliance Hardware and Appliance Software, as set forth in the applicable Order Form. Appliance Fees means the Purchase Price, any monthly fees and any support fees, as well as any other related fees (including without limitation license fees for additional Licensed Software and related support), set forth in the applicable Order Form. Appliance Hardware means that server and storage Hardware that is pre-configured to include the Appliance Software. Appliance Software means the Licensed Software, operating system and any other software set forth in the applicable Order Form that is preloaded or otherwise installed onto the Appliance Hardware by Company or its Supplier. Change Request means a written request to change the terms or scope of a Statement of Work. Claim means a claim, suit or other similar proceeding. Confidential Information means (a) any confidential, proprietary or trade secret information of the disclosing party ( Discloser ) that if in tangible form is marked as confidential, secret or with a comparable legend or if disclosed orally or visually is identified as confidential at the time of disclosure; and (b) discussions relating to such information. Discloser shall use reasonable efforts to mark its confidential information in tangible form as confidential; however, tangible information that does not bear such a legend and the discussions relating thereto, will be protected hereunder as Confidential Information if the receiving party ( Recipient ) knew or should have reasonably known under the circumstances that the information is confidential. Customer Data is deemed to be Confidential Information. Covered Equipment means that equipment listed on the applicable Order Form for which Customer may use the RDR Services. Covered Site means that location listed on the applicable Order Form where the Covered Equipment is located for which Customer may use the RDR Services. Customer Data means any data, information and other materials generated by the Users use of the Licensed Software and that is stored by EVault as a part of the Subscription Services or Other Services. Deliverables means any deliverables provided to Customer pursuant to a Statement of Work. Desktop Functions means consumer or business tasks or processes performed by a computer or computing device including , word processing, spreadsheets, database, network/internet browsing, scheduling and personal finance. Disaster means any unplanned event or condition that renders Customer unable to use the Covered Equipment for its intended computer processing and related business production purposes. Documentation means the then-current, generally available, written instructions, user guides, and user manuals for the Products, if applicable, whether in electronic, paper or other equivalent form, provided by Company and in connection with any updates, modifications and improvements to the Products, regardless of form or media. EDPM Appliance means that Appliance known as the EVault Software for Microsoft System Center Data Protection Manager Appliance. End-User Client Software means that Licensed Software licensed to Customer to install and use on servers and Users computers that are being backed up, as indicated in the applicable Documentation, including, without limitation, Agent Software, Plug-in Software and EVault ProMail Software. EVault ProMail Service means a Subscription Service that provides capture, archiving and management of and instant messages using the EVault ProMail Software. EVault ProMail Software means that Licensed Software known as the EVault ProMail software. EVault Quick Ship Module means that Appliance that is used to transport Customer Data from Company to Customer or Customer to Company. EVault SaaS Services means a Subscription Service that provides off-site automated data protection and recovery using Licensed Software. Executable Code means the fully compiled version of a software program that can be executed by a computer and used by an end user without further compilation. Fees has the meaning set forth in Section 4.1 of these Product Terms. Mandatory Terms - US - Version B

19 Hardware means computer servers and/or other data storage appliances either sold alone or as a part of an Appliance. High Risk Use means a use where failure or fault of any kind of the Product could lead to death or serious bodily injury of any person or to severe physical or environmental damage including, without limitation, aircraft or other modes of human transportation, nuclear or chemical facilities or medical devices. Hosting Services means those hosting services, including space, power and bandwidth, including, without limitation, hosting services for the EVault Plug-n-Protect appliance. Indemnified Parties means the officers, directors, employees and agents of the party seeking indemnification. Intellectual Property Rights means, collectively, all worldwide intellectual property rights in and to any works of authorship, moral rights, copyrights, trademarks, service marks, patents, designs, trade secrets and algorithms. Licensed Software means the machine-readable, object-code version of the proprietary software owned by EVault Inc. and its subsidiaries, including all related Documentation and any modified, updated or enhanced versions and recovery images of the program that Company may provide to Customer. Licensed Software does not include any Third Party Software offered under a third party license agreement, but it may include Third Party Software sublicensed to Customer by Company subject to the terms of this Agreement. Maintenance Release means a Licensed Software release containing error corrections or minor enhancements, in Executable Code form, that is made commercially available by Company and generally indicated by a change to the digit to the right of the first decimal point or a change in the digit to the right of the second decimal point (e.g., a change from version x.x.x to x.y.x or a change from version x.x.x to x.x.y) and any corrections and updates to the associated Documentation. New Version means a Licensed Software release containing major new enhancements, features or functionality, in Executable Code form, that is made commercially available by Company and generally indicated by a change in the digit to the left of the first decimal point (i.e., a change from version x.x.x to y.x.x) and the associated Documentation. Order Form means the ordering documents, in a form specified by Company, that is signed and submitted by Customer to Company. Other Services means those subscription services provided by Company, other than the Subscription Services, including, without limitation, the RDR Service. Passive Vault means that virtual, dedicated environment provided in EVault s data centers to which Customer replicates its active, local vault under the EVault Offsite Replication Service. Plug-in Software means that Licensed Software identified as a software plug-in on Company s price list. Premium Data Transfer Services means those services that provide for the transfer of data via an Appliance, including, without limitation, the QuickShip DAS, QuickShip Vault, Data Recovery DAS, Data Recovery Vault, Seeding DAS and Seeding Vault. Product Terms means these Product Terms and Conditions All Products and Services. Products means one or more of the following products or services purchased by Customer as set forth in an Order Form: Subscription Services, license to use Licensed Software, Software Managed Services, Hosting Services, Support Services, Professional Services, Hardware and Appliances. Professional Services means implementation, training, installation and data recovery, migration and restoration services and other professional services provided by Company to Customer, but specifically excluding Subscription Services, Support Services, Software Managed Services and Hosting Services. Project Coordinator means that project coordinator, designated by Customer, in connection with Professional Services. Purchase Price means the one-time purchase price for the Appliance, as set forth in the applicable Order Form. RDR Service means the EVault Remote Disaster Recovery Service. Regulatory Agencies has the meaning set forth in Section 5.6 of these Product Terms. Server Environment means that hardware and operating system combination for which Customer licenses the Server Software. Server Software means that Licensed Software for installation and use on a Server Environment, as indicated in the applicable Documentation. Service Effective Date means (a) with respect to Subscription Services, Other Services, Hosting Services and Software Managed Services, the date upon which EVault notifies Customer by or otherwise that installation is complete or the service is operational; and (b) with respect to Support Services, the date the related Licensed Software is delivered. Software Managed Services means delivery and management of equipment, applications and/or systems relating to the use of Licensed Software. Source Code means the human-readable version of a software program than can be compiled into Executable Code. Statement of Work means a statement of work signed by the parties pursuant to which Company provides Professional Services to Customer. Subscription Services means the provision of access over the Internet to the functionality of the Licensed Software running on the Company System including the EVault SaaS Services, the EVault Managed Service, the EVault ProMail Service and the EVault Offsite Replication Service. Mandatory Terms - US - Version B

20 Supplier means a third party that manufacturers Products or grants to Company the right to resell or sublicense Products. Support Fees means those fees for the purchase, extension or renewal of Support Services, as set forth in the applicable Order Form. Support Services means maintenance and technical support services provided by Company for Products, but specifically excluding Software Managed Services, Hosting Services and Professional Services. System means the computer hardware and software (including, without limitation, the Licensed Software and other software applications, software interfaces, operating system and databases), data storage and all other resources (including, without limitation) telecommunications equipment) used by Company to make Licensed Software and Customer s data available to, and usable by, Customer via the Internet. Taxes has the meaning set forth in Section 4.4 of these Product Terms. Term has the meaning set forth in Section 11.1 of these Product Terms. Third Party Software means any software, licensed as a stand alone product or as a part of another software, that is not owned by EVault Inc. or its subsidiaries. Transfer Appliance means an Appliance leased or purchased by Customer as a part of the Premium Data Transfer Services. Users means Customer s employees, contractors and agents. Warm Site has the meaning set forth in Section 3.1 on Exhibit A of these Product Terms. WinPE has the meaning set forth in Section 5.4 of these Product Terms. 2. HARDWARE PURCHASE. Subject to the terms and conditions of this Agreement, upon acceptance by Company of an order, Customer hereby purchases the Hardware from Company. 3. SECURITY INTEREST. Company and its Suppliers hereby reserve, and Customer hereby grants to Company and its Suppliers, a purchase money security interest in any Hardware, including Appliance Hardware, for which the full purchase price has not been received by Company prior to shipment. This interest will be satisfied by payment in full of the purchase price of the applicable Hardware and any related shipping costs and taxes. Customer hereby appoints Company and its Suppliers as its attorney in-fact to execute, on Customer s behalf and in Customer s name, financing statements and other instruments to perfect the security interest of Customer and its Suppliers in the Hardware. 4. SUPPORT SERVICES. Customer, at its option, may purchase a maintenance package for any Hardware from the Hardware manufacturer. Customer understands and agrees that Company shall have no maintenance, support or warranty responsibilities with respect to Hardware, except for support with respect to an Appliance if specifically set forth in the Order Form. 5. LIMITED WARRANTY AND DISCLAIMER 5.1 HARDWARE. WITH RESPECT TO THE HARDWARE, COMPANY WILL TRANSFER, PASS ALONG AND UPON THE REQUEST OF CUSTOMER ASSERT FOR THE BENEFIT OF CUSTOMER, AT CUSTOMER S COST AND EXPENSE, ANY WARRANTIES OF THE MANUFACTURER OR OTHER COMMITMENTS OR OBLIGATIONS OF THE MANUFACTURER. 5.2 DISCLAIMER. EXCEPT AS EXPRESSLY WARRANTED IN THIS SECTION, THE PRODUCTS ARE PROVIDED AS IS, WITHOUT ANY WARRANTY OF ANY KIND, WHETHER EXPRESS, IMPLIED, OR STATUTORY, INCLUDING BUT NOT LIMITED TO ANY IMPLIED WARRANTIES OR CONDITIONS OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, NON-INFRINGEMENT OR NON-MISAPPROPRIATION OF INTELLECTUAL PROPERTY RIGHTS OF A THIRD PARTY, CUSTOM, TRADE, QUIET ENJOYMENT, ACCURACY OF INFORMATIONAL CONTENT OR RESULTS, OR SYSTEM INTEGRATION, OR ANY WARRANTIES OR CONDITIONS ARISING UNDER ANY OTHER LEGAL REQUIREMENT. COMPANY AND ITS SUPPLIERS MAKES NO WARRANTY THAT THE LICENSED SOFTWARE WILL RUN PROPERLY ON ALL HARDWARE, THAT THE LICENSED SOFTWARE, SUBSCRIPTION SERVICES OR OTHER PRODUCTS WILL MEET THE NEEDS OR REQUIREMENTS OF CUSTOMER OR ITS USERS OR WILL OPERATE IN THE COMBINATIONS THAT MAY BE SELECTED FOR USE BY CUSTOMER OR ITS USERS, THAT THE LICENSED SOFTWARE OR SUBSCRIPTION SERVICES WILL BE UNINTERRUPTED OR ERROR FREE, OR THAT ALL ERRORS WILL BE CORRECTED. 6. LIMITATION OF LIABILITY 6.1 WAIVER OF CONSEQUENTIAL DAMAGES. IN NO EVENT WILL EITHER PARTY OR ANY SUPPLIER OF COMPANY BE LIABLE FOR ANY SPECIAL, INDIRECT, INCIDENTAL, EXEMPLARY, PUNITIVE OR CONSEQUENTIAL DAMAGES, INCLUDING, WITHOUT LIMITATION, LOSS OR DAMAGE TO DATA, INACCURACY OF DATA, LOSS OF ANTICIPATED REVENUE OR PROFITS, WORK STOPPAGE OR IMPAIRMENT OF OTHER ASSETS OR LOSS OF GOOD WILL, WHETHER OR NOT FORESEEABLE AND WHETHER OR NOT A PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES AND NOTWITHSTANDING ANY FAILURE OF THE ESSENTIAL PURPOSE OF THIS AGREEMENT OR ANY LIMITED REMEDY HEREUNDER. 6.2 CAP ON LIABILITY. IN NO EVENT WILL THE TOTAL LIABILITY OF COMPANY AND ITS SUPPLIERS ARISING OUT OF OR IN CONNECTION WITH THE PRODUCTS AND THIS AGREEMENT EXCEED WITH RESPECT TO HARDWARE, THE PURCHASE PRICE PAID BY CUSTOMER FOR THE HARDWARE GIVING RISE TO THE CLAIM. 6.3 DISCLAIMER. THE FOREGOING LIMITATIONS APPLY TO ALL CAUSES OF ACTION IN THE AGGREGATE, INCLUDING WITHOUT LIMITATION, BREACH OF CONTRACT, BREACH OF WARRANTY, INDEMNIFICATION, NEGLIGENCE, STRICT LIABILITY, MISREPRESENTATION AND OTHER TORTS, AND STATUTORY CLAIMS. EACH OF THE PARTIES ACKNOWLEDGES THAT IT UNDERSTANDS THE LEGAL AND ECONOMIC RAMIFICATIONS OF THE FOREGOING LIMITATIONS, AND THAT THE FOREGOING LIMITATIONS ALLOCATE THE VARIOUS RISKS BETWEEN THE PARTIES AND FORM AN ESSENTIAL PART OF THE AGREEMENT OF THE PARTIES. Mandatory Terms - US - Version B