VAST DATA – End User License Agreement

PLEASE READ CAREFULLY THESE LICENSE TERMS (THE “Terms”) BEFORE INSTALLING, ACCESSING, OR USING THE SOLUTION (AS DEFINED BELOW) INCLUDING ANY SOFTWARE OR HARDWARE THEREIN, PROVIDED TO YOU (“USER”, “YOU”) BY VAST (AS DEFINED BELOW) DIRECTLY, OR INDIRECTLY THROUGH A DISTRIBUTOR, RESELLER OR LICENSEE AUTHORIZED BY VAST (THE “DISTRIBUTOR”) PURSUANT TO AN ENGAGEMENT BETWEEN DISTRIBUTOR AND YOU (THE “DISTRIBUTOR ENGAGEMENT”). BY INSTALLING, HAVING INSTALLED, CONTROLLING, ACCESSING OR OTHERWISE USING THE SOLUTION IN ANY MANNER, YOU ARE ACCEPTING AND AGREEING TO BE BOUND BY ALL THE TERMS AND CONDITIONS HEREOF AND REPRESENTING THAT YOU HAVE FULL RIGHT, POWER, AND AUTHORITY TO ENTER INTO AND PERFORM HEREUNDER. YOU MAY NOT INSTALL, DEPLOY, CONTROL, ACCESS OR USE THE SOLUTION IN ANY MANNER UNTIL YOU HAVE ACCEPTED THESE TERMS. FURTHERMORE, YOU HEREBY WAIVE ANY RIGHTS OR REQUIREMENTS UNDER ANY LAWS OR REGULATIONS IN ANY JURISDICTION WHICH REQUIRE AN ORIGINAL (NON-ELECTRONIC) SIGNATURE OR DELIVERY OR RETENTION OF NON-ELECTRONIC RECORDS, TO THE EXTENT PERMITTED UNDER APPLICABLE LAW.

THESE TERMS ARE MADE BETWEEN YOU AND VAST DATA, INC. AND ITS AFFILIATES (“VAST”), WITH RESPECT TO THE SOLUTION, AND NOTWITHSTANDING ANYTHING TO THE CONTRARY IN ANY OTHER DOCUMENT, AGREEMENT OR ARRANGEMENT BETWEEN YOU AND ANY THIRD PARTY INCLUDING DISTRIBUTOR OR ANYONE ON ITS BEHALF.

YOU ASSUME ALL RESPONSIBILITY FOR THE SELECTION OF THE SOLUTION, FOR YOUR RELIANCE ON THE RESULTS OF USE OF THE SOLUTION AND SOLUTION SERVICES AND FOR ANY USE OF THE SOLUTION NOT IN ACCORDANCE WITH THE TERMS HEREOF OR AS CONTEMPLATED HEREUNDER.

1. DEFINITIONS

1.1 “Affiliate” means any entity which controls, is controlled or is under common control with either of the parties. Any entity shall be deemed to “control” another entity if it owns directly or indirectly more than 50% of the outstanding voting securities or capital of other entity or other comparable equity with respect to an entity other than a company.

1.2 “Documentation” means the standard written materials regarding the Solution issued and generally provided by VAST to its customers.

1.3 “Third Party Components” shall mean collectively any devices and products, whether hardware or software, which are licensed by 3rd parties and that are integrated into or with the Solution.

1.4 “Software” shall mean VAST’s software, provided with or incorporated into the Solution.

1.5 “Solution” shall mean VAST’s software storage device, including all Software and hardware therein.

2. LICENSE RIGHTS; RESTRICTIONS

2.1 VAST grants you, subject to full compliance with the terms and conditions set forth herein, a non-exclusive, non-transferable, non-sublicensable, perpetual (unless otherwise expressly limited under the Distributor Engagement) license to:

2.1.1 use, access, and operate the Solution as provided, installed and configured by VAST or Distributor, solely for your internal use and not for any further commercialization or provision of the Solution to any third party (“Purpose”) all strictly in accordance with the technical instructions set forth in the Documentation; and

2.1.2 access, use and make verbatim copies of the Documentation provided to you by VAST or Distributor, solely in connection with your use of the Solution as permitted hereunder for the Purpose, and provided that all copyright notices are included and maintained therein.

2.2 Use Restrictions.

2.2.1 Unless otherwise expressly provided herein, you agree that you will not, nor will you allow any third party on your behalf to: (a) distribute, license, rent, lease, sublicense, loan, sell or otherwise allow any third party to access the Solution; (b) modify, alter, copy, transfer, emulate or create any derivative works of the Solution or of any part thereof; (c) reverse engineer, decompile, decode, decrypt, disassemble, or in any way attempt to derive source code or designs from the Solution or any part thereof; (d) remove, alter or obscure any copyright, trademark or other proprietary rights notice, on or in, the Solution and/or the Documentation; (e) bundle, integrate, or attempt to integrate with the Solution, any third-party software technology other than as expressly permitted in writing by VAST (including through the Documentation); (f) use the Solution for any benchmarking or for competing development activities, or (g) publish or disclose to any third party any technical features, quality, performance or benchmark test, or comparative analyses relating to the Solution and/or any Pre-Release Products (as defined below), except for your internal use or as expressly permitted by VAST in writing.

2.2.2 Without derogating from the foregoing, you shall take commercially reasonable precautions to prevent any unauthorized access and/or unauthorized usage of the Solution. You shall be responsible and liable for any act or omission by any of your Affiliates, your personnel or your Affiliates’ personnel, as if performed by you.

2.3 Pre-Release Products. In addition to the Solution, and pursuant to VAST’s express consent and/or request, VAST may make available to you a beta or pre-release versions of its other products and services (“Pre-Release Products”). You acknowledge that the Pre-Release Products (i) are not at the level of performance or compatibility of final, generally available products; (ii) may not operate correctly, (iii) may be modified prior to being made generally available; (iv) may not be made for general release, and (v) should not be used in a production environment.

2.4 Feedback. You may provide VAST with feedback regarding the use, operation, performance, and functionality of the Solution and any Pre-Release Products, including identifying potential errors and improvements (“Feedback”). You hereby grant VAST a perpetual, irrevocable, worldwide, unlimited, sublicensable, fully paid-up and royalty-free right to use the Feedback in any manner.

2.5 Marks and Use of Name. These Terms do not grant the you any rights to VAST’s trademarks or service marks.

2.6 Third Party Software. ACCEPTING THESE TERMS YOU CONFIRM AND ACKNOWLEDGE THE UTILIZATION OF THIRD PARTY COMPONENTS, IN THE SOLUTION AND ACKNOWLEDGE THAT SUCH THIRD PARTY COMPONENTS ARE BEING INSTALLED WITH YOUR CONSENT. WITHOUT DEROGATING FROM VAST’S LIMITED WARRANTY PROVIDED IN SECTION 3 BELOW, SUCH THIRD PARTY COMPONENTS ARE UTILIZED ON AN ” IS” BASIS WITHOUT ANY WARRANTY WHATSOEVER AND VAST HEREBY EXPRESSLY DISCLAIMS WITH RESPECT TO ANY SUCH THIRD PARTY COMPONENTS, AND TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW ALL WARRANTIES, WHETHER EXPRESS, IMPLIED OR STATUTORY, INCLUDING, WITHOUT LIMITATION, THE IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE.

2.7 Export Restrictions. You acknowledge that the Solution may be subject to United States’ export jurisdiction and to any other applicable laws and regulation concerning the transfer of the Solution or any part thereof across international borders. You will comply with all applicable national and international laws that apply to your use of the Solution, including United States Export Administration Regulations, as well as end user, end use and destination restrictions which may be issued by the United States and other governments from time to time.

3. LIMITED WARRANTY; DISCLAIMERS

3.1 Unless otherwise required by applicable law, VAST warrants that: (i) the hardware in the Solution shall perform substantially in accordance with the relevant specifications set forth in the Documentation for a period of twenty-four months following the date of shipment of the Solution by VAST, and (ii) the Software shall perform substantially in accordance with the relevant specifications set forth in the Documentation for a period of ninety (90) days following the date of shipment of the Solution by VAST. The limited warranty set forth in subsection (i) above excludes all warranty and liability with respect to storage media that has been used in excess of such storage media’s advertised endurance levels.

3.2 VAST’s sole obligation and your exclusive remedy under Section 3.1 above is limited to VAST rectifying, at its own expense, any such defect which was notified to VAST at vastsupport@vastdata.com during the applicable warranty period and returned to VAST in secure packaging, freight and shipment pre-paid as instructed by VAST within 30 days of such notice. Such rectification of the defect may be performed, by repair, replacement, or correction of the Solution or any part thereof, which may also include a future software release of the Solution
issued within 45 days of such notice of defect. In the event the Solution was purchased directly from VAST and VAST is not able to rectify the defect as specified above within 45 days of receiving the returned Solution, VAST will refund the purchase price paid by you for the Solution, reduced on a straight-line basis over a three-year life. Replacement Products or components will continue to be warranted for the remainder of the warranty term.

3.3 VAST’s warranty under Section 3.1 above will not apply in the event the Solution or any part thereof is (i) modified or adjusted in any manner by any party other than VAST or without VAST’s written approval, (ii) used in conjunction with your or any third party’s products, which resulted in the defect, other than as specified in the Documentation or approved in writing by VAST, (iii) abused, mishandled, misused or otherwise used not in accordance with the Documentation and these Terms, or (iv) was not fully paid for. VAST’s warranty hereunder is a one- time warranty and does not restart upon the provision of any updates, upgrades or new release of the Solution or any part thereof.

3.4 All Pre-Release Products are provided by VAST for evaluation purposes only and on an “as is” basis, without warranty or liability of any kind, for use at your own risk. VAST may, at its sole discretion, use reasonable efforts to resolve issues identified in Pre-Release Products.

3.5 EXCEPT AS EXPRESSLY PROVIDED IN THIS AGREEMENT, THE SOLUTION, IS PROVIDED BY VAST “AS IS” AND VAST MAKES NO REPRESENTATIONS OR WARRANTIES, ORAL OR WRITTEN, EXPRESS OR IMPLIED, REGARDING THE SOLUTION, ARISING FROM COURSE OF DEALING, COURSE OF PERFORMANCE, USAGE OF TRADE, QUALITY OF INFORMATION, QUIET ENJOYMENT OR OTHERWISE, INCLUDING IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, OR NON-INTERFERENCE. YOU ACKNOWLEDGE THAT YOU HAVE NOT ENTERED INTO THIS AGREEMENT IN RELIANCE UPON ANY WARRANTY OR REPRESENTATION NOT
EXPRESSLY CONTAINED IN THESE TERMS.
4. USAGE DATA

4.1 You acknowledge that pursuant to your express consent which you may provide through the Solution during the Solution installation, the Solution may store certain data and diagnostic information in connection with the routine operation of the Solution, including, as may be elected by you, performance, capacity usage, data reduction ratios, configuration data and hardware faults (“Usage Data”), which will be periodically transmitted to or accessed by VAST for the purpose of VAST’s internal use. No data identifying a User is accessed, transmitted or provided to VAST or any third party as part of this process, and no interruption of service is required to gather such Usage Data. You will control VAST’s access to the Solution.

5. PROPRIETARY RIGHTS

5.1 You agree and acknowledge that, as between you and VAST, VAST is and shall remain the sole and exclusive owner of any and all Intellectual Property rights in or pertaining to the Solution and any part thereof, including any modifications, enhancements, improvements, updates and upgrades, and derivative works, thereof. “Intellectual Property” shall mean all inventions, ideas, concepts, analyses, (whether patented, or patentable, or not), methods, methodologies, designs, processes, patents, patent applications, rights associated with works of authorship, including copyrights, copyrights applications, copyrights restrictions, moral rights, any information, ancillary materials, devices, results, know-how, and all rights relating to the protection of trade
secrets and confidential information; design rights and industrial property rights; mask works, software, all code including source code, object code, firmware, Usage Data; and any other proprietary rights relating to intangible property. Other than as explicitly stated hereunder, no license, express or implied, in or to the Intellectual Property of VAST, is granted to you under these terms.

6. INDEMNIFICATION

VAST shall indemnify and hold you and your respective officers, directors, employees and successors and permitted assigns (“Indemnified Parties”) harmless from and against any costs and damages actually awarded against the Indemnified Parties by a competent court in a final judgment, as a result of, and defend the Indemnified Parties against, any third party claim that the Solution, or any portion thereof, directly infringes such third party’s Intellectual Property rights. Such obligation is subject to: (i) the Indemnified Parties promptly notifying VAST in writing of any such claim; (ii) VAST having the ability to assume sole control of the defense and/or settlement of such claim; (iii) the Indemnified Parties furnishing to VAST, on request, all
reasonable information available to the Indemnified Parties for such defense; and (iv) the Indemnified Parties not admitting fault with respect to any such claim and/or making any payments or concessions with respect to such claim without the prior written consent of VAST. VAST shall (i) keep the Indemnified Parties duly informed in connection with the litigation and/or settlement negotiations, and (ii) not execute any settlement covenant that imposes any liability or obligations on the Indemnified Parties without the prior written consent from the relevant Indemnified Parties.

6.1 Should the Solution, or any part thereof, become, or in VAST’s opinion be likely to become, the subject of any infringement claim as specified above, then VAST will, at its own option and expense either: (i) procure the right to continue using the Solution without infringement; (ii) replace or modify the Solution without non-negligibly reducing its functionality, so that it becomes non-infringing; or (iii) if (i) or (ii) cannot be achieved with by using reasonable commercial efforts, VAST shall be entitled to terminate your license to use the Solution immediately upon written notice.

6.2 Notwithstanding the foregoing, VAST shall have no liability for any claim of infringement which results from (a) the use of the Solution in violation of any provision of these Terms, (b) your failure to install changes, revisions or new release as instructed or provided by VAST at no cost, (c) use of a combination of the Solution or any part thereof with other products, equipment, or software not provided or approved in writing for such use under the Documentation or by VAST, or (d) modifications of the Solution not made by VAST or without VAST’s prior written consent.

6.3 This section 6 states the exclusive remedy of the Indemnified Parties and the entire liability of VAST with respect to infringement claims involving the Solution or any part or use thereof, and VAST shall have no additional liability with respect to any alleged or proven infringement.

7. LIMITATION OF LIABILITY
IN NO EVENT WILL VAST, NOR ITS AFFILIATES, OR THEIR RESPECTIVE DIRECTORS, OFFICERS, SHAREHOLDER, AND EMPLOYEES’ (“VAST’S PARTIES”) AGGREGATE LIABILITY TO YOU, EXCEED THE AMOUNTS PAID BY YOU TO VAST IN RESPECT OF THE SOLUTION. IN NO EVENT WILL VAST OR VAST PARTIES, HAVE ANY LIABILITY TO YOU FOR ANY INDIRECT, CONSEQUENTIAL, SPECIAL, EXEMPLARY OR INCIDENTAL DAMAGES, INCLUDING WITHOUT LIMITATION DAMAGES FOR LOST PROFITS OR REVENUES, BUSINESS INTERRUPTION, LOSS OF GOODWILL, COMPUTER FAILURE OR MALFUNCTION, LOSS OF DATA OR BUSINESS INFORMATION ARISING FROM THE INSTALLATION, OPERATION, USE OF OR INABILITY TO USE THE SOLUTION, EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES OR IF SUCH POSSIBILITY WAS REASONABLY FORESEEABLE. NO ACTION, REGARDLESS OF FORM, ARISING OUT OF OR RELATING TO THESE TERMS MAY BE BROUGHT AGAINST VAST MORE THAN TWELVE (12) MONTHS AFTER THE TERMINATION OR EXPIRATION OF THESE TERMS.
8. TERM AND TERMINATION

You will have the rights set forth herein for the duration of the Permitted Use Period, and so long as the you comply with these Terms and any material non-conflicting terms of the applicable Distributor Engagement. These Terms and all rights and licenses granted hereunder shall automatically terminate if you breach the terms hereof and such breach is not cured within fourteen (14) days of written notice of such breach. Sections ‎1, 2.2, 2.3, 2.4, 2.7, 3, 5, 7, 8and 9, will survive any termination or expiration of these Terms.

9. GENERAL

9.1 Severability. In the event any provision or part of these Terms is held to be invalid or unenforceable by any court of competent jurisdiction, it shall be amended to the extent required to render it valid, legal and enforceable, or deleted if no such amendment is feasible, and such amendment or deletion shall not affect the enforceability of the other provisions hereof.

9.2 Waiver. No waiver of any breach of these Terms will be a waiver of any other breach, and no waiver will be effective unless made in writing and signed by an authorized representative of the waiving party. The failure of either party to enforce any rights granted hereunder or to take action against the other party in the event of any breach hereunder shall not be deemed a waiver by that party as to subsequent enforcement of rights or subsequent actions in the event of future breaches.

9.3 Entire Terms. These Terms supersede all previous agreements or representations, written or oral, with respect to the subject matter hereof between you and VAST. These Terms may not be modified or amended except in writing signed by a duly authorized representative of each party.

9.4 Governing Law. The validity, interpretation, and performance of these Terms shall be controlled by and construed under the laws of the State of New York as if performed wholly within New York and without giving effect to the principles of conflicts of laws. The Parties hereby consent to the exclusive jurisdiction of the courts of New York, New York.