END-USER LICENSE AGREEMENT FOR INCONTINUUM SOFTWARE IMPORTANT—READ CAREFULLY: This End-User License Agreement (“EULA”) is a legal agreement between you, either a corporate enterprise, or a service provider, and InContinuum Software B.V. for the software that accompanies this EULA, which includes computer software in object code and may include associated media, printed materials, “online” or electronic documentation, and Internet-based services (“Software”). This EULA also governs any product support services relating to the Software except as may be included in another agreement between you and InContinuum Software. YOU ARE REQUIRED TO ACCEPT THE TERMS OF THIS EULA AS PART OF THE INSTALLATION AND INITIALISATION OF THE SOFTWARE. IN ANY EVENT, BY INSTALLING, COPYING OR OTHERWISE USING THE SOFTWARE YOU AGREE TO BE BOUND BY THE TERMS OF THIS EULA. IF YOU DO NOT AGREE, DO NOT INSTALL, COPY OR USE THE SOFTWARE. 1. GRANT OF LICENSE. InContinuum Software grants you the following rights provided that you comply with all terms and conditions of this EULA: If you are a customer of one of InContinuum’s pay-as-you-grow editions, you agree that: 1) The license granted to you for the Software shall be a term-based license for twelve (12), twenty-four (24), thirty-six (36) or sixty (60) months, with a minimum initial term of twelve (12) months; 2) The license shall be extended for a new term equal to the current term plus 12 months every time you, the customer, change the service object (i.e. virtual machine, server platform build, container, virtual network or additional services) commitment as defined by InContinuum Software, as amended from time to time; 3) The license shall be automatically extended for successive terms of 12 months unless terminated by either party by at least 30 days’ prior written notice served on the other party prior to the anniversary date; • InContinuum Software grants you a personal, non-exclusive, non-transferable license to install and use the Software on one or more servers within your organization for creating, maintaining, hosting or running service objects (i.e. virtual machines, server platform builds, containers and virtual networks) used by any of your partners or customers to create, maintain and use service objects on any of your servers that run the Software. The license granted to you shall be valid as long as you continue to pay the applicable recurring license fees to InContinuum or to InContinuum’s distributor. • You may install and use the Software on an unlimited number of servers, provided that: 1) For each copy of the Software installed, you have paid the applicable upfront base license fee(s) and/or you will pay the applicable recurring license fee for service object activation keys as amended from time to time; 2) All of your customers, that use or have access to the Software have explicitly accepted the terms and conditions of this EULA and fully comply with such terms and conditions; If you are a customer of one of InContinuum’s perpetual license edition(s) you agree that: 1) The license granted to you for the Software shall be a perpetual license; • InContinuum Software grants you a personal, non-exclusive, non-transferable license to install and use the Software on one or more servers within your organization for creating, maintaining and/or hosting service objects, (i.e. virtual machines, server platform builds, containers, virtual networks or additional services) used by any of your users and/or to allow your users to create, maintain and use virtual machines, server platform builds, containers and virtual networks on any of your servers that run the Software. • You may install and use the Software on an unlimited number of servers, provided that: 1) For each copy of the Software installed, you have paid the applicable base license fee(s) and/or you will pay the applicable license fee for service object activation keys as amended from time to time; 2) If you are an enterprise customer all of your users or customers that use or have access to the Software have explicitly accepted the terms and conditions of this EULA and fully comply with such terms and conditions;   For all customers: • You agree that the applicable fees will be published by InContinuum Software at their then current web address, as amended from time to time, or by your reseller as the case may be. • If InContinuum Software or your reseller has agreed in writing to a discount with you on any of the applicable fees, you are entitled to deduct such discount from the amounts due from time to time. • For the purposes of this EULA, a ‘virtual machine’ shall mean an instance of an operating system ran by you or any of your users or customers and any application programs installed thereon, in a separate environment, running on a server on which the Software is installed, or suspended to disk or any other storage media accessible by the computing device. • For the purposes of this EULA, a ‘server platform build’ shall mean an instance of an operating system ran by you or any of your users or customers and any application programs installed thereon, in a separate environment, running on a server on which the Software is installed, or suspended to disk or any other storage media accessible by the computing device. • For the purposes of this EULA, a ‘container’ shall mean an application packaged into a standardized unit for software development including a complete filesystem that contains everything needed to run: code, runtime, system tools and system libraries, running on a cloud resource on which the Software is installed, or suspended to disk or any other storage media accessible by the computing device. • For the purposes of this EULA, a ‘virtual network’ shall mean networking infrastructure created by the process of combining hardware and software network resources and network functionality into a single, software-based administrative entity that can be made accessible to the computing device running an application. • A ‘server’ means a computer device that runs generally accepted server software and/or that serves as such in a network of devices. A ‘processor’ shall mean a single physical chip that houses no more than sixteen (16) processor cores.   2. RESERVATION OF RIGHTS AND OTHER RESTRICTIONS. The Software is protected by copyright and other intellectual property laws and treaties. InContinuum Software or its suppliers own the title, copyright, and other intellectual property rights in the Software. The Software is licensed, not sold. InContinuum Software reserves all rights not expressly granted to you in this EULA. Reverse engineering, decompiling, or disassembling the Software is prohibited, except and only to the extent that such activity is expressly permitted by applicable law notwithstanding this limitation. Renting, leasing, or lending the Software (other than as allowed under section 1 above) is also prohibited. 3. CONSENT TO USE OF DATA. You agree that InContinuum Software and its affiliates may collect and use technical information gathered as part of the process of obtaining license activation keys for the Software or as part of any support services provided to you, if any, related to the Software. InContinuum Software may use this information solely to determine whether or not you have paid all fees due and improve its products and services or to provide customized services or technologies to you and will not disclose this information in a form that personally identifies you or any of your employees or customers. 4. LINKS TO THIRD PARTY SITES. You may link to third party sites through the use of the Software. The third party sites are not under the control of InContinuum Software, and InContinuum Software is not responsible for the contents of any third party sites, any links contained in third party sites, or any changes or updates to third party sites. InContinuum Software is not responsible for web casting or any other form of transmission received from any third party sites. InContinuum Software is providing these links to third party sites to you only as a convenience, and the inclusion of any link does not imply an endorsement by InContinuum Software of the third party site.   5. ADDITIONAL SOFTWARE/SERVICES. This EULA applies to updates, supplements, add-on components, or Internet-based services components, of the Software that InContinuum Software may provide to you or make available to you after the date you obtain your initial copy of the Software, unless we provide other terms along with the update, supplement, add-on component, or Internet-based services component for agreement. InContinuum Software reserves the right to discontinue any Internet-based services provided to you or made available to you through the use of the Software. This EULA does not grant you any rights to use software other than the Software. You shall obtain an appropriate license for any other software you use or run in connection with the Software. 6. NOT FOR RESALE SOFTWARE. Software identified as “Not For Resale” or “NFR,” may not be sold or otherwise transferred for value, or used for any purpose other than demonstration, test or evaluation. 7. SUPPORT SERVICES. If you are an customer of one of InContinuum Software’s perpetual license editions and subject to your payment of all of the applicable support fees, InContinuum Software shall use all commercially reasonable efforts to support you and your use of the Software in accordance with the InContinuum support policy as set forth at http://www.incontinuum.com/support as amended from time to time. You agree to procure Support Services from InContinuum Software for at least one (1) year after the date you acquired the Software. If you are a customer of InContinuum’s pay-as-you-grow license editions all applicable support services fees are bundled into the recurring Software license costs unless otherwise specified. InContinuum Software will provide the Support Services only for the most current release and the immediately preceding major release of the Software. InContinuum Software may elect to cease supporting a platform and will communicate this to you via its website upon twelve (12) months prior notice. If agreed by the parties, InContinuum Software may also charge additional license and support fees for third party products and/or additional functionality or features incorporated in an upgrade of the Software. 8. EXPORT RESTRICTIONS. You acknowledge that the Software may be subject to legal export jurisdiction. You agree to comply with all applicable international and national laws that apply to the Software, as well as end-user, end-use, and destination restrictions issued by the EU and other governments. For additional information see http://www.incontinuum.com/ 9. SOFTWARE TRANSFER. If you want to move the Software to a different server, please contact InContinuum Software or your reseller for options and conditions. After the transfer, you must completely remove the Software from the former computer. 10. AUDIT RIGHT. You will maintain accurate records as to your use of the Software and the service objects created or hosted via the Software, and/or other service object metrics created or hosted via the Software. You will grant InContinuum Software access to such records not more than twice per annum in order to determine your compliance with the terms and conditions of this EULA and the amounts due on the basis of the applicable fees as set forth on the then-current price list for the Software. 11. TERMINATION. Without prejudice to any other rights, InContinuum Software may terminate this EULA if you fail to comply with the terms and conditions of this EULA and fail to rectify the same within thirty days’ notice by InContinuum. In such event, you must destroy all copies of the Software and all of its component parts.   12. DISCLAIMER OF WARRANTIES. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, INCONTINUUM SOFTWARE AND ITS SUPPLIERS PROVIDE THE SOFTWARE, AND SUPPORT SERVICES (IF ANY) AS IS AND WITH ALL FAULTS, AND INCONTINUUM SOFTWARE AND ITS SUPPLIERS HEREBY DISCLAIM ALL OTHER WARRANTIES AND CONDITIONS, WHETHER EXPRESS, IMPLIED OR STATUTORY, INCLUDING, BUT NOT LIMITED TO, ANY (IF ANY) IMPLIED WARRANTIES, DUTIES OR CONDITIONS OF MERCHANTABILITY, OF FITNESS FOR A PARTICULAR PURPOSE, OF RELIABILITY OR AVAILABILITY, OF ACCURACY OR COMPLETENESS OF RESPONSES, OF RESULTS, OF WORKMANLIKE EFFORT, OF LACK OF VIRUSES, AND OF LACK OF NEGLIGENCE, ALL WITH REGARD TO THE SOFTWARE, AND THE PROVISION OF OR FAILURE TO PROVIDE SUPPORT OR OTHER SERVICES, INFORMATION, SOFTWARE, AND RELATED CONTENT THROUGH THE SOFTWARE OR OTHERWISE ARISING OUT OF THE USE OF THE SOFTWARE. ALSO, THERE IS NO WARRANTY OR CONDITION OF TITLE, QUIET ENJOYMENT, QUIET POSSESSION, CORRESPONDENCE TO DESCRIPTION OR NON-INFRINGEMENT WITH REGARD TO THE SOFTWARE. THE ENTIRE RISK AS TO THE QUALITY, OR ARISING OUT OF THE USE OR PERFORMANCE OF THE SOFTWARE AND ANY SUPPORT SERVICES, REMAINS WITH YOU. 13. EXCLUSION OF INCIDENTAL, CONSEQUENTIAL AND CERTAIN OTHER DAMAGES. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT SHALL INCONTINUUM SOFTWARE OR ITS SUPPLIERS BE LIABLE FOR ANY SPECIAL, INCIDENTAL, PUNITIVE, INDIRECT, OR CONSEQUENTIAL DAMAGES WHATSOEVER (INCLUDING, BUT NOT LIMITED TO, DAMAGES FOR LOSS OF PROFITS, FOR BUSINESS INTERRUPTION, FOR PERSONAL INJURY, FOR NEGLIGENCE, AND FOR ANY OTHER PECUNIARY OR OTHER SIMILAR LOSS WHATSOEVER) ARISING OUT OF OR IN ANY WAY RELATED TO THE USE OF OR INABILITY TO USE THE SOFTWARE, THE PROVISION OF OR FAILURE TO PROVIDE SUPPORT OR OTHER SERVICES, INFORMATION, SOFTWARE, AND RELATED CONTENT THROUGH THE SOFTWARE OR OTHERWISE ARISING OUT OF THE USE OF THE SOFTWARE, OR OTHERWISE UNDER OR IN CONNECTION WITH ANY PROVISION OF THIS EULA, EVEN IN THE EVENT OF THE FAULT, TORT (INCLUDING NEGLIGENCE), MISREPRESENTATION, STRICT LIABILITY, BREACH OF CONTRACT OR BREACH OF WARRANTY OF INCONTINUUM SOFTWARE OR ANY SUPPLIER, AND EVEN IF INCONTINUUM SOFTWARE OR ANY SUPPLIER HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. 14. LIMITATION OF LIABILITY AND REMEDIES. NOTWITHSTANDING ANY DAMAGES THAT YOU OR YOUR CUSTOMERS MIGHT INCUR FOR ANY REASON WHATSOEVER (INCLUDING, WITHOUT LIMITATION, ALL DAMAGES REFERENCED HEREIN AND ALL DIRECT OR GENERAL DAMAGES IN CONTRACT OR ANYTHING ELSE), THE ENTIRE LIABILITY OF INCONTINUUM SOFTWARE AND ANY OF ITS SUPPLIERS UNDER ANY PROVISION OF THIS EULA AND THE EXCLUSIVE REMEDY OF YOU AND YOUR CUSTOMERS HEREUNDER SHALL BE LIMITED TO THE GREATER OF THE ACTUAL DAMAGES YOU AND/OR YOUR CUSTOMERS INCUR IN REASONABLE RELIANCE ON THE SOFTWARE UP TO THE AMOUNT ACTUALLY PAID BY YOU FOR THE COPY OF THE SOFTWARE THAT GAVE RISE TO THE DAMAGES. THE FOREGOING LIMITATIONS, EXCLUSIONS AND DISCLAIMERS SHALL APPLY TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW. 15. APPLICABLE LAW AND COMPETENT COURT. This EULA and the use of the Software is governed by the laws of the Netherlands. The United Nations Convention for the International Sale of Goods shall not apply. Any dispute between you and InContinuum Software shall exclusively be brought before the competent court of Amsterdam if you are located in any country of the EU. If you are not located in any country of the EU, any dispute between you and InContinuum Software shall exclusively be solved by arbitration by the ICC. 16. ENTIRE AGREEMENT; SEVERABILITY. This EULA (including any addendum or amendment to this EULA which is included with the Software) are the entire agreement between you and InContinuum Software relating to the Software and the support services (if any) and they supersede all prior or contemporaneous oral or written communications, proposals and representations with respect to the Software or any other subject matter covered by this EULA. To the extent the terms of any InContinuum Software policies or programs for support services conflict with the terms of this EULA, the terms of this EULA shall control. If any provision of this EULA is held to be void, invalid, unenforceable or illegal, the other provisions shall continue in full force and effect. The parties agree that any additional legal or commercial terms contained in any links referred to in this EULA shall not apply between the parties. [End of document]