Arcserve (USA), LLC and/or its affiliates or subsidiaries ("Arcserve") End User License Agreement (the "Agreement") for the Arcserve software product that is being installed as well as the associated documentation and any SDK, as defined below, included within the product ("the Product"). Carefully read the following terms and conditions regarding your use of the Product before installing and using the Product. Throughout this Agreement, you will be referred to as "You" or "Licensee." By selecting the "I accept the terms of the License Agreement" radio button below, and then clicking on the "Next" button, you are (I) Representing that you are not a minor, and have full legal capacity and have the authority to bind yourself and your employer, as applicable, to the terms of this Agreement; (II) Consenting on behalf of yourself and/or as an authorized representative of your employer, as applicable, to be bound by this Agreement. By selecting the "I do NOT accept the terms of the License Agreement" radio button below, and then clicking on the "Cancel" button, the installation process will cease. 1. Arcserve (or where the Product is being supplied outside of North America the Arcserve subsidiary identified after Section 15 below for the country in which the Product is being supplied, and in such instance Arcserve shall mean the Arcserve subsidiary identified) provides Licensee with one copy of the Product, for use by a single user, or the quantity designated as the authorized use limitation ("Authorized Use Limitation") on any Order Form (defined below) referencing the terms of this Agreement or CD sleeve included within the Product box. Arcserve licenses the Product to Licensee on a non-exclusive basis, pursuant to the terms of this Agreement as well as the terms of (a) any Arcserve Order Form or Registration Form which has been signed by Licensee and Arcserve; or (b) a License Program Certificate which is provided by Arcserve to Licensee, as applicable (each hereafter referred to as the "Order Form"). 2. If the Product is an alpha or beta version of the program, hereinafter referred to as the "beta program" or "beta version" and not generally available to date, Arcserve does not guarantee that the generally available release will be identical to the beta program or that the generally available release will not require reinstallation. Licensee agrees that if it registers for support or if otherwise required by Arcserve, Licensee shall provide Arcserve with specific information concerning Licensee’s experiences with the operation of the Product. Licensee agrees and acknowledges that the beta version of the Product (a) is to be used only for testing purposes and not to perform any production activities unless Arcserve shall have otherwise approved in writing and (b) has not been tested or debugged and is experimental and that the documentation may be in draft form and will, in many cases, be incomplete. Licensee agrees that Arcserve makes no representations regarding the completeness, accuracy or Licensee’s use or operation of the beta version of the Product. BETA PRODUCTS ARE PROVIDED ON AN "AS IS" BASIS, WITHOUT WARRANTIES OR REPRESENTATIONS OF ANY KIND, EITHER EXPRESS OR IMPLIED INCLUDING, WITHOUT LIMITATION, ANY WARRANTIES OR REPRESENTATIONS OF TITLE OR NON-INFRINGEMENT. If Licensee is also a Tester of the beta version of the Product (as "Tester" is defined by the Beta Testing Agreement that was agreed to by Licensee during the registration process before obtaining the beta version of the Product), Licensee agrees that the terms of this Agreement are in addition to, and do not supersede, the terms of the Beta Testing Agreement. 3. If the Product is being licensed on a trial or evaluation basis, Licensee agrees to use the Product solely for evaluation purposes, in accordance with the usage restrictions set forth in Section 1, for a thirty-day evaluation period unless a different period is otherwise noted (the "Trial Period"). At the end of the Trial Period, Licensee’s right to use the Product automatically expires and Licensee agrees to de-install the Product and return to Arcserve all copies or partial copies of the Product or certify to Arcserve in writing that all copies or partial copies of the Product have been deleted from Licensee’s computer libraries and/or storage devices and destroyed. If Licensee desires to continue its use of the Product beyond the Trial Period, Licensee may contact Arcserve to acquire a license to the Product for the applicable fee. LICENSEE’S USE OF THE PRODUCT DURING THE TRIAL PERIOD IS ON AN "AS IS" BASIS WITHOUT ANY WARRANTY, AND Arcserve DISCLAIMS ALL WARRANTIES INCLUDING, WITHOUT LIMITATION, THE IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE, AS WELL AS ANY EXPRESS WARRANTIES PROVIDED ELSEWHERE IN THIS AGREEMENT. 4. If the Product includes a Software Development Kit ("SDK"), the terms and conditions of this paragraph apply solely for the use of the SDK. The SDK may include software, APIs and associated documentation. The SDK is provided solely for Licensee's internal use to develop software that enables the integration of third party software or hardware with the Product, or to develop software that functions with the Product, such as an agent. Licensee’s use of the SDK is restricted solely to enhance Licensee’s internal use of the Product. No distribution rights of any kind are granted to Licensee regarding the Product. In addition to the limitations on use set forth in Section 8, below, Licensee may not reproduce, disclose, market, or distribute the SDK or the documentation or any applications containing any executable versions of the SDK to third parties, on the internet, or use such executables in excess of the applicable Authorized Use Limitation. If there is a conflict between the terms of this section and the terms of any other section in this Agreement, the terms of this section will prevail solely with respect to the use of the SDK. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, AND NOTWITHSTANDING ANYTHING CONTAINED HEREIN TO THE CONTRARY, THE SDK IS PROVIDED AND LICENSED "AS IS" WITHOUT WARRANTY OF ANY KIND. 5. Payment of the fees specified on the Order Form or as agreed between Licensee and an authorized reseller of Arcserve, shall entitle Licensee to use the Product for the term specified on the Order Form (the "Term"), which use may include the right to receive maintenance services therefore for the period set forth on the Order Form. All fees payable hereunder shall be payable in advance. Licensee will install each new release of the Product delivered to Licensee. After the Term, continued usage and/or maintenance of the Product as provided herein shall be subject to the payment by Licensee of the fees described on the Order Form. Notwithstanding the foregoing, if the Product was licensed under this Agreement without an Order Form, Licensee shall be entitled to use the Product for an indefinite period, but the license does not include the right to receive maintenance services. Notwithstanding the foregoing, with respect to any Product that relies on continuous content updates, such as signature files and security updates, Licensee shall be entitled to such content updates for a period of one (1) year from the effective date of the license. 6. If maintenance is provided by Arcserve, it shall be renewed annually as specified in the Order form with Arcserve. All fees are net of applicable taxes. Licensee agrees to pay any tariffs, duties or taxes imposed or levied by any government or governmental agency including, without limitation, federal, state and local, sales, use, value added and personal property taxes, (other than franchise and income taxes for which Arcserve is responsible) upon a presentation of invoices by Arcserve. Any claimed exemption from such tariffs, duties or taxes must be supported by proper documentary evidence delivered to Arcserve. Any invoice which is unpaid by Licensee when due shall be subject to an interest charge equal to the lower of 1.5% per month or the highest applicable legal rate. 7. Licensee may use the Product as provided herein solely to process its own data and the data of its majority-owned subsidiaries and use is restricted to the location, computer equipment, and Authorized Use Limitation specified on the Order Form or CD sleeve, as applicable. If Licensee desires to use the Product beyond such restrictions, it shall notify Arcserve, and Licensee will be invoiced for and shall pay the applicable fees for such expanded use. 8. The Product, including any source or object code that may be provided to Licensee hereunder, as well as documentation, appearance, structure and organization, is the proprietary property of Arcserve and/or its licensors, if any, and may be protected by copyright, patent, trademark, trade secret and/or other laws. Title to the Product, or any copy, modification, translation, partial copy, compilation, derivative work or merged portion of any applicable SDK, shall at all times remain with Arcserve and/or its licensors. Usage rights respecting the Product may not be exchanged for any other Arcserve product. The Product is licensed as a single product. Its component parts may not be separated for use. Licensee and its employees will keep the Product and the terms of this license strictly confidential and use its best efforts to prevent and protect the Product from unauthorized disclosure or use. Licensee may not (i) disclose, de-compile, disassemble nor otherwise reverse engineer the Product except to the extent the foregoing restriction is expressly prohibited under applicable law; (ii) create any derivative works based on the Product; (iii) use the Product to provide facilities management or in connection with a service bureau or like activity whereby Licensee, without purchasing a license from Arcserve for such purpose, operates or uses the Product for the benefit of a third party who has not purchased a copy of the Product; or (iv) permit the use of the Product by any third party without the prior written consent of Arcserve. Licensee shall not release the results of any benchmark testing of the Product to any third party without the prior written consent of Arcserve. Licensee will not transfer, assign, rent, lease, use, copy or modify the product, in whole or in part, or permit others to do any of the foregoing with regard to the Product without Arcserve’s prior written consent, except to the extent the foregoing restriction is expressly prohibited under applicable law. Licensee will not remove any proprietary markings of Arcserve or its licensors. Licensee may copy the Product as reasonably required for back-up and disaster recovery purposes, provided that production use of the Product is restricted to the Authorized Use Limitation specified on the Order Form or CD sleeve, and provided that use of the Product for disaster recovery testing shall be limited to one week in any three month period. The Product may be used only within the boundaries of the country where the Product was purchased (except as otherwise provided on the Order Form) unless Arcserve consents otherwise in writing. If this license terminates for any reason, Licensee shall certify to Arcserve in writing that all copies and partial copies of the Product have been deleted from all computers and storage devices and are returned to Arcserve or destroyed and are no longer in use. Licensee shall comply with all relevant import and export regulations, including those adopted by the Office of Export Administration of the US Department of Commerce. The Product and any accompanying documentation have been developed entirely at private expense. They are delivered and licensed as "commercial item" "computer software" as defined in FAR 2.101. In the event Licensee is a U.S. Federal Government agency, the licensing terms of Arcserve's then current GSA FSS contract shall govern use of the Computer Program(s), in lieu of the terms contained in the license delivered with the Program(s). For such purposes, the term "Product" and "Computer Program" shall have the same meaning hereunder. The Computer Program(s) was developed at private expense, is commercial, and is published and copyrighted. Third parties purchasing on behalf of a Federal Government agency shall only transfer the Computer Program(s) to the Government with "Restricted Rights" as that term is defined in FAR 52.227-19(c)(2) or DFAR 252.227-7015, and in accordance with Arcserve's then current GSA FSS contract. All Software is provided FOB shipping point or electronic delivery. Acceptance is waived and deemed to have occurred at the earliest of point of physical shipment or delivery of keys/access codes for electronic delivery. Arcserve is the manufacturer of the Product. This Agreement shall be governed by and interpreted in accordance with the laws of the State of New York, without regard to its choice of law provisions. 9. Arcserve warrants that it can enter into this Agreement and that it will indemnify, hold Licensee harmless, and defend or, at its option, settle any claim that Arcserve is not so authorized or that Licensee’s use of the Product as authorized hereby infringes any patent, copyright or other intellectual property right of any third party. Arcserve also warrants that the Product will operate in accordance with its published specifications, provided that Arcserve’s only responsibility will be to use reasonable efforts, consistent with industry standards, to cure any defect. The foregoing warranty respecting the operation of the Product will be in effect only during any period for which Licensee shall have paid the applicable license fee and annual maintenance fee, or, with respect to Products licensed without an Order Form, during a period of ninety (90) days from Licensee’s acquisition of license for the Product. If, within a reasonable time after receiving Licensee’s written notice of breach of either of the above warranties, Arcserve is unable to cause the Product to operate (a) without infringing a third party’s intellectual property rights, or (b) in accordance with Arcserve’s written specifications, then either party may terminate this Agreement on written notice to the other party and Arcserve or the authorized reseller will refund the relevant license fees paid for such non-compliant Product only when Licensee returns the Product to Arcserve or its authorized reseller from whom it obtained the Product, with the purchase receipt within the warranty period noted above. The warranties set forth in this Section do not apply to beta versions of the Product, Product licensed on a trial or evaluation basis or to Software Development Kits. 10. EXCEPT AS SET FORTH ABOVE, TO THE FULL EXTENT PERMITTED BY APPLICABLE LAW: (I) NO OTHER WARRANTIES, WHETHER EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, THE IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE, ARE MADE BY ARCSERVE; (II) IN NO EVENT WILL ARCSERVE BE LIABLE TO LICENSEE OR ANY OTHER PARTY FOR ANY CLAIM FOR LOSS, INCLUDING TIME, MONEY, GOODWILL, AND CONSEQUENTIAL DAMAGES, WHICH MAY ARISE FROM THE USE, OPERATION OR MODIFICATION OF THE PRODUCT, EVEN IF ARCSERVE HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. IN THE EVENT THAT THE ABOVE LIABILITY LIMITATION IS FOUND TO BE INVALID UNDER APPLICABLE LAW, THEN ARCSERVE’S LIABILITY FOR SUCH CLAIM SHALL BE LIMITED TO THE AMOUNT OF THE LICENSE FEE ACTUALLY PAID FOR THE PRODUCT BY LICENSEE. NO THIRD PARTY, INCLUDING AGENTS, DISTRIBUTORS, OR AUTHORIZED ARCSERVE RESELLERS IS AUTHORIZED TO MODIFY ANY OF THE ABOVE WARRANTIES OR MAKE ANY ADDITIONAL WARRANTIES ON BEHALF OF ARCSERVE. ARCSERVE DOES NOT WARRANT THAT THE PRODUCT WILL MEET LICENSEE’S REQUIREMENTS OR THAT USE OF THE PRODUCT WILL BE UNINTERRUPTED OR ERROR FREE. 11. Licensee may assign this Agreement only if Licensee complies with Arcserve’s then prevailing policies respecting assignment of licenses, which includes a requirement that the scope of use of the Product not be expanded beyond the business of Licensee and the business of Licensee’s majority-owned subsidiaries. Arcserve may assign this Agreement to any third party that succeeds to Arcserve’s interests in the Product and assumes the obligations of Arcserve hereunder; and Arcserve may assign its right to payment hereunder or grant a security interest in this Agreement or such payment right to any third party. 12. If Licensee breaches any term of this Agreement or if Licensee becomes insolvent or if bankruptcy or receivership proceedings are initiated by or against Licensee, Arcserve shall have the right to withhold its own performance hereunder and/or to terminate this Agreement immediately and, in addition to all other rights of Arcserve, all amounts due or to become due hereunder will immediately be due and payable to Arcserve. 13. If Licensee fails to pay the applicable maintenance fee, then Licensee may reinstate maintenance thereafter by paying to Arcserve a fee equal to 150% of Arcserve’s then prevailing maintenance fee for each year for which the maintenance fee has not been paid. 14. If a court holds that any provision of this Agreement to be illegal, invalid or unenforceable, the remaining provisions shall remain in full force and effect. No waiver of any breach of this Agreement shall be a waiver of any other breach, and no waiver shall be effective unless made in writing and signed by an authorized representative of the waiving party. 15. In the event Licensee acquires a license for the Product outside of the United States, the following Sections will apply to the use of the Product: Notwithstanding the terms of the last sentence of Section 8, the laws of the country in which Licensee acquires a license for the Product shall govern this Agreement, with a number of exceptions defined by the complete End User License Agreement presented during the product installation.