AtScale End User License Agreement

IMPORTANT: THIS AGREEMENT IS A LEGAL AGREEMENT BETWEEN THE PERSON, COMPANY, OR ORGANIZATION THAT HAS LICENSED THIS SOFTWARE (“YOU” OR “CUSTOMER”) AND ATSCALE. PLEASE READ THE TERMS AND CONDITIONS OF THIS LICENSE AGREEMENT CAREFULLY BEFORE CONTINUING WITH THE SOFTWARE INSTALLATION PROCESS OR USING THE SOFTWARE. BY INSTALLING OR USING THE SOFTWARE, OR BY CLICKING A BUTTON OR CHECKING A BOX MARKED “I AGREE” OR SOMETHING SIMILAR, YOU SIGNIFY THAT YOU HAVE READ, AND YOU ARE AGREEING TO BECOME BOUND BY THE TERMS OF THIS AGREEMENT. IF YOU DO NOT AGREE TO BE BOUND BY THESE TERMS, OR DO NOT HAVE AUTHORITY TO BE BOUND TO THESE TERMS DO NOT INSTALL OR USE THE SOFTWARE. IF YOU DO NOT AGREE TO ALL OF THE TERMS OF THIS AGREEMENT, THEN ATSCALE IS UNWILLING TO LICENSE THE SOFTWARE TO YOU.

License. Subject to the terms of this Agreement, AtScale grants to Customer a limited, non-exclusive, non-transferable license during the Term, without the right to sublicense, to install and use the software identified on the then-current purchase order, order form, or other applicable ordering document applicable to Customer’s relationship with AtScale (such ordering document, the “Order Form,” and such software, the “Software”), in object code format only, and the accompanying product documentation (the “Product Documentation”) on Customer’s servers at the authorized location(s) or with an indicated and supported Cloud provider as specified on the Order Form, by the number of authorized concurrent users specified on the Order Form, solely for internal use as it relates to operations of Customer. The Software and the Product Documentation are referred to collectively in this Agreement as the “Licensed Materials.” In the event Customer desires to obtain licenses for additional Authorized Users; Customer shall deliver a written request therefor to AtScale.

Restrictions on Use. Customer shall not, and shall not permit any third party to: (a) use the Licensed Materials except to the extent permitted herein; (b) modify or create any derivative work of any part of the Licensed Materials; (c) permit any parent, subsidiaries, affiliated entities or third parties to use the Licensed Materials; (d) process or permit to be processed the data of any other party unless in connection with Customer’s authorized use of the Software; (e) market, sell, license, sublicense, distribute, publish, display, reproduce, rent, lease, loan, assign or otherwise transfer to a third party the Licensed Materials or any copy thereof, in whole or in part; or (f) use the Licensed Materials for third-party training, commercial time-sharing or service bureau use. Customer shall have no rights to any source code for the Software. Customer agrees that, except to the extent permitted by law, it shall not cause or permit the disassembly, decompilation or reverse engineering of the Software or otherwise attempt to gain access to the source code to the Software (or the underlying ideas, algorithms, structure or organization of the object code in the Software). Without limiting the foregoing, in the event that Customer desires to reverse engineer the Software for interoperability purposes, Customer agrees to first contact AtScale and provide AtScale an opportunity to create such changes as are needed for interoperability purposes. Customer agrees that only AtScale shall have the right to maintain, enhance or otherwise modify the Licensed Materials.

AtScale Audit Rights. You will keep true and accurate records with respect to the number of authorized users and data usage under the AtScale Subscription License Agreement. You agree to provide compliance records to AtScale at AtScale’s request. You acknowledge and agree that AtScale may conduct periodic audits of Your use of the Software related to the amount of data usage by You and You agree to reasonably cooperate with such audits which may (i) be electronic; and (ii) include requests that You run certain programs and deliver the results to AtScale.

Third Party Software. Customer acknowledges that it may use certain third party software in connection with the Software and that AtScale makes no warranties, express or implied, with respect to any such third party software.

Open Source Software. The Software may be delivered with Open Source Software that is subject to open source licensing terms. The Open Source Software is not subject to the terms and conditions of this Agreement. Instead, each item of Open Source Software is licensed under the terms of the end-user license agreement that accompanies such Open Source Software. Nothing in this Agreement limits Your rights under, or grants You rights that supersede, the terms and conditions of any applicable end user license for the Open Source Software. If required by any license for particular Open Source Software, AtScale makes such Open Source Software, and AtScale’s modifications to that Open Source Software, available by written request at the notice address specified below. The Open Source Software is provided “AS IS”, WITHOUT ANY WARRANTY OF ANY KIND, AND ATSCALE FURTHER DISCLAIMS ALL OTHER WARRANTIES, EXPRESS, IMPLIED OR STATUTORY, WITH RESPECT TO OPEN SOURCE SOFTWARE, INCLUDING BUT NOT LIMITED TO THE IMPLIED WARRANTIES OF NONINFRINGEMENT, MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE. NEITHER ATSCALE NOR THE LICENSORS OF OPEN SOURCE SOFTWARE SHALL HAVE ANY LIABILITY FOR ANY DIRECT, INDIRECT, INCIDENTAL, SPECIAL, EXEMPLARY, OR CONSEQUENTIAL DAMAGES (INCLUDING WITHOUT LIMITATION LOST PROFITS), HOWEVER CAUSED AN ON ANY THEORY OF LIABILITY, WHETHER IN CONTRACT, STRICT LIABILITY, OR TORT (INCLUDING NEGLIGENCE OR OTHERWISE) ARISING IN ANY WAY OUT OF THE USE OR DISTRIBUTION OF THE SOFTWARE, EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. Copyrights to the Open Source Software are held by the copyright holders indicated in the copyright notices in the corresponding source files.

Ownership. Customer acknowledges and agrees that AtScale or its licensors own and shall retain all proprietary rights, title and interest, including all patent, copyright, trade secret, know-how, design rights, trademark, and other intellectual property rights, in and to the Licensed Materials and any changes, corrections, bug fixes, enhancements, updates and other modifications thereto (collectively, “Modifications”), whether made by or on behalf of Customer, AtScale or any third party, and as between the parties all such rights shall vest in and be assigned to AtScale. Customer acknowledges that the license granted under this Agreement does not provide Customer with title to or ownership of the Licensed Materials, but only a right of limited use under the terms and conditions of this Agreement.

Confidentiality. Confidential Information includes without limitation diagnostics, Software, Software releases, Product Documentation or materials supplied by AtScale; and materials and information marked with a proprietary or confidential legend and disclosed in the performance of this Agreement. You must keep Confidential Information protected using the same degree of care that

You exercise with respect to Your own information of like importance and may use it only for the purposes for which it was provided under the Agreement. Confidential Information may be disclosed only to Your employees, contractors and third party providers performing services in furtherance of this Agreement that are obligated to You under similar confidentiality restrictions and only for the purposes for which it was provided under this Agreement. If You believe you must disclose Confidential Information in order to comply with a valid court order or subpoena, you must promptly notify AtScale and cooperate with AtScale, if AtScale chooses to contest the disclosure requirement, seek confidential treatment of the information to be disclosed, or to limit the nature or scope of the information to be disclosed. Notwithstanding the foregoing, You may disclose Confidential Information which is: (i) already publicly known without breach of this Agreement; (ii) discovered or created by without use of, or reference to, the Confidential Information; or (iii) otherwise known to You through no wrongful conduct.

Limited Warranty. AtScale warrants to Customer that for a period of ninety (90) days from delivery of the Software, the Software, as delivered, will perform substantially in accordance with the Product Documentation for the Software. AtScale’s liability and Customer’s exclusive remedies under the limited warranty set forth above shall be, at AtScale’s election, to attempt, through reasonable efforts, to correct any failure of the Software to conform to the Product Documentation or to replace the defective Software. The above remedies are available only if (a) discovery of the non-conformity occurs during the applicable warranty period, (b) AtScale is promptly notified in writing by Customer of such discovery, and (c) AtScale’s examination of Software discloses that such non-conformity exists. These limited warranties shall not apply if the Software has been: (i) altered or modified; (ii) subjected to negligence, computer or electrical malfunction; or (iii) used, adjusted, installed or operated (A) other than in accordance with this Agreement or the instructions furnished by AtScale or (B) with an application or in an environment other than that intended or recommended by AtScale.

DISCLAIMER OF ANY OTHER WARRANTIES. EXCEPT FOR THE EXPRESS, LIMITED WARRANTY PROVIDED IN THIS SECTION, ATSCALE MAKES NO WARRANTIES, EXPRESS, IMPLIED, STATUTORY, OR OTHERWISE, WITH RESPECT TO THE LICENSED MATERIALS OR ANY OTHER ACCOMPANYING MATERIAL PROVIDED HEREUNDER. ATSCALE SPECIFICALLY DISCLAIMS ALL OTHER WARRANTIES, EXPRESS AND IMPLIED, INCLUDING WITHOUT LIMITATION THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NONINFRINGEMENT AND THOSE ARISING FROM A COURSE OF DEALING OR USAGE OR TRADE, AND ALL SUCH WARRANTIES ARE HEREBY EXCLUDED TO THE FULLEST EXTENT PERMITTED BY LAW. EXCEPT AS EXPRESSLY PROVIDED HEREIN, THE SOFTWARE IS PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS.

Infringement. AtScale shall defend or settle, at its own expense, any third-party action against Customer or its officers, directors, employees, agents, successors and assigns to the extent based upon a claim that the Software infringes any copyright or trademark or misappropriates any trade secret, and will pay such damages or costs as are finally awarded against Customer attributable to such claim, provided that Customer: (a) notifies AtScale promptly in writing of any such action; (b) gives AtScale sole control of the defense and/or settlement of such action; and (c) gives AtScale all reasonable information and assistance. Should the Software become, or in the opinion of AtScale be likely to become, the subject of such an infringement claim, AtScale may, at its option: (i) procure for Customer the right to use the Software at no cost to Customer; (ii) replace or modify, in whole or in part, the Software to make it non-infringing; or (iii) accept return of the Software, or remove the allegedly offending module thereof, and, refund a pro rata portion of the License Fees paid for such Software or module by Customer for the then-current Term. AtScale assumes no liability hereunder for: (w) any method or process in which the Software may be used; (x) any compliance with Customer’s specifications; (y) use of software other than a current unaltered release of the Software; or (z) the combination, operation or use of the Software with non-AtScale programs or data other than those intended or recommended by AtScale, and Customer shall indemnify and hold harmless AtScale and its officers, directors, employees, agents, successors and assigns against any damages, losses, and expenses (including reasonable attorneys’ fees) arising from any third-party action to the extent based upon a claim that the Software infringes any copyright or trademark or misappropriates any trade secret due to any of the foregoing factors, and shall give AtScale all reasonable information and assistance regarding such claim. THIS SECTION SETS FORTH COMPANY’S ENTIRE LIABILITY AND OBLIGATION AND CUSTOMER’S SOLE REMEDY FOR ANY CLAIM OF INFRINGEMENT OF ANY INTELLECTUAL PROPERTY RIGHTS.

Limitation of Liability. EXCEPT AS MAY BE REQUIRED BY LAW, IN NO EVENT SHALL ATSCALE BE LIABLE FOR ANY INDIRECT, PUNITIVE, SPECIAL, INCIDENTAL OR CONSEQUENTIAL DAMAGES ARISING OUT OF THE USE OR INABILITY TO USE THE SOFTWARE, EVEN IF ATSCALE HAS BEEN ADVISED OF THE LIKELIHOOD OF SUCH DAMAGES OCCURRING. ATSCALE SHALL NOT BE LIABLE FOR ANY BUSINESS INTERRUPTION; LOST PROFITS OR REVENUE; LOSS OF GOODWILL; LOSS OF ECONOMIC ADVANTAGE; LOSS OF USE OF THE LICENSED SOFTWARE; LOSS OF DATA OR EQUIPMENT; THE COST OF SUBSTITUTE PROCUREMENT; CLAIMS BY THIRD PARTIES OR OTHER SIMILAR COSTS EXCEPT AS REQUIRED BY LAW. IN NO EVENT SHALL ATSCALE’S TOTAL LIABILITY TO YOU FOR ALL DAMAGES, LOSSES, AND CAUSES OF ACTION ARISING OUT OF OR RELATING TO THESE TERMS OR YOUR USE OF THE SOFTWARE OR INABILITY TO USE THE SOFTWARE (WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE), WARRANTY OR OTHERWISE) EXCEED THE AMOUNT OF THE FEE PAID FOR THE SOFTWARE.

Term and Termination. This Agreement is effective as of the date You install or use the Software and expires at such time as all license subscriptions have expired in accordance with the terms of their agreements. The term of your subscription license may be designated as a fixed term which shall be specified in Your purchase agreement with AtScale. The term of the License provided in this Agreement is NOT perpetual. This Agreement and the License for the Software and Product Documentation will terminate automatically and without provision of notice by AtScale if (i) You fail to comply with any of the terms of this Agreement, including any attempt to transfer any copy of the Software or Product Documentation to another party or any attempt to modify the Software or (ii) You cease doing business, dissolve, make an assignment for the benefit of creditors of all or substantially all of Your assets or voluntarily or involuntarily enter bankruptcy. Upon termination for any reason, You agree that You will destroy all copies of the Software and Product Documentation (full or partial) in Your possession or control or return all such copies to AtScale. Limitations of liability, limited warranty and disclaimers and restrictions of warranty shall survive termination of this Agreement.

U.S. Government Restricted Rights. If Software is being licensed by the U.S. Government, the Licensed Materials are deemed to be “commercial computer software” and “commercial computer documentation” developed exclusively at private expense, and (a) if acquired by or on behalf of a civilian agency, shall be subject solely to the terms of this computer software license as specified in 48 C.F.R. 12.212 of the Federal Acquisition Regulations and its successors; and (b) if acquired by or on behalf of units of the Department of Defense (“DOD”) shall be subject to the terms of this commercial computer software license as specified in 48 C.F.R. 227.7202-2, DOD FAR Supplement and its successors.

Export Law Assurances. Customer understands that the Licensed Materials are subject to export control laws and regulations. CUSTOMER MAY NOT DOWNLOAD OR OTHERWISE EXPORT OR RE-EXPORT THE LICENSED MATERIALS OR ANY UNDERLYING INFORMATION OR TECHNOLOGY EXCEPT IN FULL COMPLIANCE WITH ALL APPLICABLE LAWS AND REGULATIONS, IN PARTICULAR, BUT WITHOUT LIMITATION, UNITED STATES EXPORT CONTROL LAWS. NONE OF THE LICENSED MATERIALS OR ANY UNDERLYING INFORMATION OR TECHNOLOGY MAY BE DOWNLOADED OR OTHERWISE EXPORTED OR RE- EXPORTED: (a) INTO (OR TO A NATIONAL OR RESIDENT OF) ANY COUNTRY TO WHICH THE UNITED STATES HAS EMBARGOED GOODS; OR (b) TO ANYONE ON THE U.S. TREASURY DEPARTMENT’S LIST OF SPECIALLY DESIGNATED NATIONALS OR THE U.S. COMMERCE DEPARTMENT’S LIST OF PROHIBITED COUNTRIES OR DEBARRED OR DENIED PERSONS OR ENTITIES. CUSTOMER HEREBY AGREES TO THE FOREGOING AND REPRESENTS AND WARRANTS THAT CUSTOMER IS NOT LOCATED IN, UNDER CONTROL OF, OR A NATIONAL OR RESIDENT OF ANY SUCH COUNTRY OR ON ANY SUCH LIST.

Assignment. You may not transfer or assign Your license rights to any other person in any manner (by assignment, operation of law or otherwise) unless You have obtained written consent from AtScale. If You attempt to transfer or assign any of your license rights without AtScale’s consent, the transfer or assignment will be ineffective, null, and void.

General. If any provision of this Agreement is held to be invalid or unenforceable by a court of competent jurisdiction, the remainder of the provisions of this Agreement shall remain in full force and effect. The laws of the State of California, excluding its conflicts of law rules, govern this License and Your use of the Software. Your use of the Software may also be subject to other local, state, national, or international laws. AtScale retains all rights not expressly granted. Nothing in this Agreement constitutes a waiver of AtScale’s rights under U.S. copyright laws or any other federal, state, local, or foreign law or grants You any rights in source code. This Agreement cancels, supersedes and prevails over any conflicting or additional terms contained in a purchase order or order acknowledgment. You are responsible for installation, management and operation of the Software. Should You have any questions concerning this Agreement, contact AtScale, Inc. 400 S El Camino Real, Suite 800, San Mateo, CA 94402.

 

OHSUSA:765610535.2