END USER LICENSE AGREEMENT PLEASE READ THIS END USER LICENSE AGREEMENT CAREFULLY BEFORE USING THE METRICSTREAM SUPPLIED SOFTWARE AND RELATED DOCUMENTATION (THE "LICENSED MATERIALS"). BY DOWNLOADING, INSTALLING OR USING THE LICENSED MATERIALS, YOU ARE BINDING YOURSELF AND THE BUSINESS ENTITY THAT YOU REPRESENT (COLLECTIVELY, “LICENSEE”) TO THIS AGREEMENT. IF YOU DO NOT AGREE TO THE TERMS OF THIS LICENSE AGREEMENT, THEN METRICSTREAM IS UNWILLING TO LICENSE THE SOFTWARE TO YOU AND: (A) YOU MAY NOT DOWNLOAD, INSTALL OR USE THE SOFTWARE; AND (B) YOU MAY RETURN THE SOFTWARE FOR A FULL REFUND, The following terms of this End User License Agreement (“Agreement”) govern Licensee’s access and use of the Licensed Material, except to the extent that there is a separate signed agreement between Licensee and MetricStream governing Licensee’s use of the Licensed Material. To the extent of a conflict between the provisions of the signed agreement and this End User License Agreement, the signed agreement shall prevail. 1. Grant of License. (a) License to Licensed Materials. MetricStream hereby grants to Licensee a non-transferable, non-exclusive, Subscription license (with no right to sublicense) for the term of this Agreement (as specified in Section 6(a)) for the MetricStream software, in machine readable (object code) form (the “MetricStream Software”) and related documentation and supporting materials in either machine readable or hard copy form (the “Documentation”), collectively referred to in this Agreement as the “Licensed Materials” to: (i) install and use the MetricStream Software solely for Licensee’s internal enterprise application management, and (ii) use the Documentation solely in connection with Licensee’s authorized use of the MetricStream Software. (b) Limitation of Rights. Licensee acknowledges that Licensee’s rights in and to Licensed Materials are solely as set forth in Section 1(a) hereto and do not include any rights of ownership in any of the Licensed Materials. Licensee agrees that MetricStream owns all right, title and interest, including but not limited to copyright, patent, trade secret and all other intellectual property rights, in and to the Licensed Materials, and any changes, derivative works, modifications or corrections thereof. Licensee hereby irrevocably assigns to MetricStream any and all rights it may be deemed to have in any changes, modifications or corrections to the Licensed Materials, including but not limited to copyright rights, and agrees to execute all documents necessary to implement and effect such assignment. Licensee shall not, and shall not permit any third party to, (i) modify or use the Licensed Materials except to the extent permitted in Section 1(a); or (ii) decompile, reverse engineer, disassemble or otherwise determine or attempt to determine source code (or the underlying ideas, algorithms, structure or organization) of any object code contained in the MetricStream Software. Except as expressly set forth herein, Licensee will not market, sublicense, distribute, reproduce, rent, lease or offer for timesharing any Licensed Material. Except as set forth in Section 12(b) hereto, this Agreement and the license granted pursuant hereto may not be assigned, sublicensed or otherwise transferred by Licensee without the prior written consent of MetricStream. (c) Audit Rights. MetricStream reserves the right, upon ten (10) days prior written notice to Licensee, to audit usage of the Licensed Materials at Licensee’s premises during normal business hours to verify Licensee’s compliance with the terms of this Agreement. If use not authorized by this Agreement is found, Licensee agrees to cease such use immediately upon receipt of written notification. (d) Export Restrictions. Licensee acknowledges and agrees to comply with all export and re-export restrictions and regulations of the Department of Commerce or other United States agency or authority. Without limiting the foregoing or any other provision of this Agreement, Licensee agrees not to download or transfer (or authorize anyone to download or transfer) the Licensed Materials (i) into (or to a national or resident of) Cuba, Iraq, Libya, Yugoslavia, North Korea, Iran, Syria or any other country to which the U.S. has embargoed goods; or (ii) to anyone on the U.S. Treasury Department’s list of Specially Designated Nationals or the U.S. Commerce Department’s Denied Person List. (e) U.S. Government End Users. The MetricStream Software and Documentation qualify as "commercial items," as that term is defined at Federal Acquisition Regulation (“FAR”) (48 C.F.R.) 2.101, consisting of "commercial computer software" and "commercial computer software documentation" as such terms are used in FAR 12.212. Consistent with FAR 12.212 and DoD FAR Supp. 227.7202-1 through 227.7202-4, and notwithstanding any other FAR or other contractual clause to the contrary in any agreement into which this Agreement may be incorporated, Licensee may provide to the Government end user or, if this Agreement is direct, Government end user will acquire, the MetricStream Software and Documentation with only those rights set forth in this Agreement. Use of either the MetricStream Software or Documentation or both constitutes agreement by the Government that the MetricStream Software and Documentation are “commercial computer software” and “commercial computer software documentation,” and constitutes acceptance of the rights and restrictions herein. 2. Installation. It is the responsibility of Licensee to provide and prepare, in the configuration specified in the Documentation, the system environment upon which MetricStream Software is to be installed. Unless Licensee contracts for MetricStream to install the MetricStream Software pursuant to a separate agreement, Licensee is solely responsible for the set-up and installation of the MetricStream Software. Licensee is also responsible for ensuring a proper environment and proper utilities for the computer system of which the MetricStream Software will operate, including but not limited to an uninterrupted power supply. 3. Maintenance and Support. For twelve (12) months from the date of download or delivery of the MetricStream Software, whichever occurs earlier (“Included Support Period”), MetricStream will provide to Licensee maintenance services, upgrades and updates (“Support Services”) with respect to the Licensed Materials as follows: (a) Licensee Responsibilities. Licensee agrees to notify MetricStream promptly following the discovery of any Error. Upon discovery of an Error by Licensee, Licensee agrees, if requested by MetricStream, to submit promptly to MetricStream a listing of output and any other data, including the operating conditions under which the Error occurred or was discovered, that MetricStream may reasonably require to reproduce the Error. (b) MetricStream Responsibilities -- Telephone and Electronic Support. MetricStream will provide support by telephone, a web portal or electronic mail. The technical support telephone line will be staffed by a MetricStream technical support representative during the hours of 9:00 a.m. to 5:00 p.m. (Pacific Time) Monday through Friday, excluding holidays scheduled by MetricStream (“Normal Business Hours”), subject to modification at MetricStream’s reasonable discretion. Voicemail, cell phone and/or pager phone numbers may be provided for back- up support when the line is busy or after Normal Business Hours. In order to provide quality services, these support services may be used by up to 5 personnel designated by the Licensee. (c) Response to Errors. MetricStream will provide Support Services to Licensee to ensure a consistent and high level of operation of the Licensed Materials. In the event Licensee notifies MetricStream of an Error in the Licensed Materials, MetricStream will provide Support Services necessary to correct the Error in accordance with the terms of this Agreement. MetricStream shall use commercially reasonable efforts to correct Errors in accordance with the following response times and with as little disruption to Licensee as commercially practicable: (i) Severe Errors. MetricStream shall, within two (2) hours of the receipt of notice of any Severe Error, contact Licensee to verify such Severe Error and begin a resolution process. Upon verification of such Severe Error, MetricStream will use commercially reasonable efforts to provide a Workaround. MetricStream will use commercially reasonable efforts to provide an Error Correction for such Severe Error in the next scheduled patch release of the Licensed Materials. (ii) Moderate Errors. MetricStream shall, within four (4) hours of the receipt of notice of any Moderate Error, contact Licensee to verify such Moderate Error and begin a resolution process. Upon verification of such Moderate Error, MetricStream will use commercially reasonable efforts to provide a Workaround. MetricStream will use commercially reasonable efforts to provide an Error Correction for such Moderate Error in the next scheduled patch release of the Licensed Materials. (iii) Minor Errors. MetricStream shall, within the next business day of the receipt of notice of any Minor Error, contact Licensee to verify such Minor Error and begin a resolution process. MetricStream will initiate work to provide Error Correction for such Minor Error in the next regular release of the Licensed Materials at the Licensee’s sole discretion. (d) Version Level Support. MetricStream agrees to support a previous version release of the Licensed Materials for twelve (12) months following the release of a new version of the Licensed Materials. (e) Exclusions from Support Services. Support Services do not cover services for (i) any failure or defect in the Licensed Materials caused by the improper use, alteration, or damage of the Licensed Materials by Licensee or persons not authorized by MetricStream; (ii) modifications to the Licensed Materials not made by MetricStream; (iii) software not provided or approved by MetricStream; (iv) use of the Licensed Materials on hardware that has not been approved by MetricStream or (v) any modifications, changes or customizations (collectively referred to as “modifications”) made by MetricStream to the Licensed Materials specifically for the benefit of Licensee and that are not incorporated into MetricStream’s standard software generally offered to other customers, commencing ninety (90) days after such modifications have been accepted by the Licensee. Any services required to install, upgrade, deploy, test or validate a new release of the Software is specifically excluded. Support performed by MetricStream related to any of these exclusions will be charged to Licensee on a Time and Materials at then current rates. (f) Continuation of Support Services and Annual Support and Maintenance Fees. Upon expiration of the Included Support Period, Licensee may elect to continue to receive Support Services, In such event, Licensee shall pay to MetricStream its then current annual maintenance and support fee (“Annual Maintenance and Support Fee”) to obtain the Support Services set forth herein. Such Annual Maintenance and Support Fee may be increased by MetricStream at a rate of not greater than five percent (5%) every twelve (12) months. Subsequent years are optional at Licensee’s discretion; however, if Licensee discontinues Support Services and then decides to renew Support Services at a future point in time, the renewal fee for that renewed first year of Support Services will be twice the previous Annual Maintenance and Support Fee plus any increases as allowed during that period (e.g., a renewal fee equal to one year Annual Maintenance and Support Fee plus the Annual Maintenance and Support Fee for the upcoming year). (g) Form of Releases. MetricStream reserves the sole right to provide any particular Error Correction or Workaround under this Agreement in one of three forms, and at MetricStream’s sole discretion and depending on the nature, size, scope and impact of such Error Correction or Workaround, as applicable. The three forms include: (i) Field Service Bulletins. Written advisory form, which may include suggested modifications to the Licensed Materials in written form. (ii) Software Modifications. Machine-readable modifications to the Licensed Materials, with revision levels clearly identified. (iii) New Software Releases. Machine-readable software updates of the Licensed Materials that must be reinstalled and/or upgraded by the customer, with revision levels clearly identified. (h) Definitions. (i) “Error(s)” shall mean any verifiable and reproducible failure of the Licensed Materials to materially conform to the Documentation. Notwithstanding anything contained in this Agreement to the contrary, the term “Error” shall not include any failure of the Licensed Materials to materially conform the Documentation that: (i) results from Licensee’s misuse or improper use of the Licensed Materials; (ii) does not materially affect the operation and use of the Licensed Materials; (iii) results from the modification by Licensee of the Licensed Materials; or (iv) results from Licensee’s failure to implement in a timely manner any Error Correction provided to Licensee. (ii) “Error Correction” shall mean either a modification or addition to or deletion from the Licensed Materials that, when made to such software shall materially conform such software to the Documentation, or a procedure or routine that is not materially inconvenient to Licensee and that, when observed in the regular operation of the Licensed Materials, eliminates the material adverse effect on Licensee of such Error. (iii) “Severe Error” means any demonstrable Error in the Licensed Materials that: (i) causes the Licensed Materials to have a significant loss of utility of intended function as set forth in the Documentation; (ii) causes or is likely to cause data to be lost or destroyed; or (iii) prevents the Licensed Materials from being installed or executed on the properly configured environment. (iv) “Moderate Error” means any demonstrable Error in the Licensed Materials that: (i) causes the Licensed Materials to operate improperly; or (ii) produces results materially different from those described in the Documentation, but which error does not rise to the level of a Severe Error. (v) “Minor Error” means any demonstrable Error that: (i) causes a function to not execute as documented in published the Documentation without a significant loss of utility of intended functionality; or (ii) disables one or more nonessential functions. (vi) “Workaround” means a temporary solution to an Error that MetricStream has implemented, or enabled Licensee to implement and that allows the Licensed Materials to regain functionality and provide major software functions in accordance with the Documentation. 4. Protection and Security of Licensed Materials. (a) Protection of Licensed Materials. Licensee agrees (i) to hold the Licensed Materials in strict confidence and to take all necessary precautions to protect the Licensed Materials from any disclosure or use not expressly authorized by this Agreement, (ii) not to disclose or otherwise divulge the Licensed Materials or any information derived therefrom to any person or entity, other than to those employees of Licensee that have a need to know, and (iii) not to make any use whatsoever at any time of the Licensed Materials except as licensed herein. (b) Equitable Remedy. Licensee acknowledges that due to the unique nature of the Licensed Materials, MetricStream will not have an adequate remedy in money or damages in the event of any unauthorized use or disclosure. In addition to any other remedies that may be available in law, in equity or otherwise, Licensee further acknowledges that MetricStream shall be entitled to obtain any injunctive relief that may be appropriate to prevent such unauthorized use or disclosure. (c) Copies of Licensed Materials. All copies of Licensed Materials are the property of MetricStream. Licensee will reproduce and include any copyright, trademark and/or other proprietary notices in any form on all copies of Licensed Materials in the possession of Licensee. 5. Term. (a) Term. This Agreement will remain in effect unless MetricStream or Licensee terminates this Agreement pursuant to Section 5(b) hereof. (b) Termination by MetricStream or Licensee. Either party may terminate this Agreement immediately: (i) in the event of the insolvency, bankruptcy or voluntary dissolution of the other party; or (ii) if either party materially defaults in the performance of any material provision hereunder, and if such default continues and is not cured by the breaching party within thirty (30) days after written notice thereof. (c) Effect of Termination. Notwithstanding anything to the contrary in this Agreement, any termination of this Agreement shall not relieve either party hereto of any of its obligations or liabilities accrued hereunder prior to such termination. If this Agreement is terminated as a result of Licensee’s uncured material breach, within ten (10) days after such termination of this Agreement, Licensee shall no longer have the right to use and shall cease to use the Licensed Materials provided by MetricStream then in Licensee’s possession, and Licensee shall certify in writing to MetricStream, within two (2) weeks of any termination of this Agreement, that it has ceased to use the Licensed Materials provided by MetricStream. 6. Limited Warranty. (a) MetricStream Software and Documentation. MetricStream hereby warrants that the MetricStream Software shall comply in all material respects with the Documentation for ninety (90) days from delivery. Licensee’s exclusive remedy and MetricStream’s sole liability under this Agreement is limited to issuing: (x) error or defect correction information, such as correction documentation; (y) corrected code; or (z) a restriction or bypass. Notwithstanding the foregoing, MetricStream does not represent or warrant that the Licensed Materials are error-free or that all errors or defects will be corrected. The warranty set forth in this Section 7(a) shall not be available if the error or defect is determined by MetricStream to: (i) be of Licensee or user origin; (ii) have resulted from: (x) modification of the MetricStream Software without MetricStream’s approval; or (y) use of the MetricStream Software in conjunction with software not approved by MetricStream; or (iii) result from use of MetricStream Software in conjunction with equipment other than the equipment described in the Documentation. (b) No Other Warranty. EXCEPT AS SET FORTH IN SECTION 6 (a), NO OTHER WARRANTY, EXPRESS OR IMPLIED, IS MADE WITH RESPECT TO THE LICENSED MATERIALS AND ANY SERVICES, INCLUDING WITHOUT LIMITATION ANY SUPPORT SERVICES TO BE SUPPLIED HEREUNDER, AND METRICSTREAM EXPRESSLY DISCLAIMS ANY IMPLIED WARRANTIES OF MERCHANTABILITY, TITLE, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT OF THIRD PARTY RIGHTS AND THOSE ARISING FROM A COURSE OF DEALING OR USAGE OF TRADE. NO WARRANTY IS MADE REGARDING THE RESULTS OF ANY METRICSTREAM SOFTWARE OR THAT USE OF THE METRICSTREAM SOFTWARE WILL BE UNINTERRUPTED, OR THAT ANY ERRORS OR DEFECTS IN THE METRICSTREAM SOFTWARE WILL BE CORRECTED, OR THAT THE METRICSTREAM SOFTWARE FUNCTIONALITY WILL MEET LICENSEE’S REQUIREMENTS. LICENSEE ACKNOWLEDGES ITS RESPONSIBILITY TO: (i) REGULARLY BACK UP DATA MAINTAINED ON ANY HARDWARE USING THE METRICSTREAM SOFTWARE AND (ii) ADEQUATELY TEST PRIOR TO DEPLOYMENT EACH VERSION OF THE METRICSTREAM SOFTWARE IN A CONFIGURATION WHICH REASONABLY SIMULATES LICENSEE’S PLANNED ENVIRONMENT. 7. Limitation of Liability. METRICSTREAM’S LIABILITY UNDER THIS AGREEMENT OR FOR BREACH OF THIS AGREEMENT SHALL BE LIMITED TO THE AMOUNT OF THE FEES PAID BY LICENSEE TO METRICSTREAM HEREUNDER DURING THE PREVIOUS TWELVE (12) MONTHS, IF ANY. IN NO EVENT SHALL METRICSTREAM BE LIABLE FOR COSTS OF PROCUREMENT OF SUBSTITUTE GOODS, LOSS OF PROFITS, OR FOR ANY INDIRECT, SPECIAL, CONSEQUENTIAL OR INCIDENTAL DAMAGES, HOWEVER CAUSED, WHETHER FOR BREACH OF WARRANTY, BREACH OF CONTRACT, REPUDIATION OF CONTRACT, NEGLIGENCE OR OTHERWISE. 8. Indemnity. (a) Duty. MetricStream will defend, at its expense, any action brought against Licensee based upon the claim that the Licensed Materials as used within the scope of the license granted under this Agreement, directly infringe a copyright, trade secret or a U.S. Patent (issued as of the Effective Date) provided that: (i) Licensee notifies MetricStream promptly in writing of any such claim; (ii) Licensee not enters into any settlement or compromise of any claim without MetricStream’s prior written consent; and (iii) MetricStream has sole control of any such action or settlement negotiations, and Licensee provides MetricStream with information and assistance, at MetricStream’s expense, necessary to settle or defend such claim. (b) MetricStream Options. If any of the Licensed Materials become, or in the opinion of MetricStream may become, the subject of a claim of infringement, MetricStream may, at its option: (i) procure for Licensee the right to use such Licensed Materials free of any liability; (ii) replace or modify such Licensed Materials to make them non-infringing; or (iii) remove such Licensed Materials, or any part thereof, from the scope of this Agreement and provide a refund for such Licensed Materials as depreciated on a three (3) year straight line basis. MetricStream shall not be liable for any costs or expenses incurred by Licensee in connection with any potential claim of infringement without its prior written authorization. This Section 9 states MetricStream’s entire liability and Licensee’s sole and exclusive remedy for infringement of any intellectual property owned by a third party. (c) Exceptions. MetricStream assumes no liability hereunder for, and shall have no obligation to defend Licensee or to pay costs, damages or attorney's fees for, any claim based upon: (a) the combination, operation or use of any Licensed Materials furnished hereunder with software, hardware or other materials or services not provided by MetricStream if such infringement would have been avoided in the absence of such combination, operation, or use; (b) use or incorporation in the Licensed Materials of any design, technique or specification furnished by Licensee, if the infringement would not have occurred but for such incorporation or use; (c) any use of other than the current unaltered release of the Licensed Materials; or (d) Licensee’s use of the Licensed Materials other than as permitted under this Agreement. 9. Taxes. Any charges and fees due hereunder are exclusive of any sales, use, or value added taxes and any other similar taxes and governmental charges, however designated, arising out of this Agreement (except taxes based on MetricStream’s income), and Licensee shall pay all such taxes and charges. In the event any such taxes are imposed upon and paid by MetricStream, Licensee shall reimburse MetricStream within 30 days of receipt of an invoice from MetricStream together with any records documenting such payment as may be reasonably requested by Licensee. 10. General. (a) Modification of the Agreement. Variance from the terms and conditions of this Agreement in any Licensee purchase order or other written notification will be of no effect. (b) Assignment. Licensee may not assign this Agreement without the prior written consent of MetricStream y. (c) Survival. The provisions of this Agreement that by their nature should survive shall survive the termination of this Agreement. (d) Governing Law. This Agreement and all acts and transactions pursuant hereto and the rights and obligations of the parties hereto shall be governed, construed and interpreted in accordance with the laws of the State of California and the United States of America. Any legal action or proceeding arising out of, or connected or relating to this Agreement or any right or obligation created by this Agreement, irrespective of the legal theory or claims underlying any such dispute (including tort and statutory claims), shall be resolved in any state or federal court in Santa Clara County, California; MetricStream and Licensee hereby submit to the jurisdiction of, and agree that venue is proper in, these courts in any such legal action or proceeding. (e) Severability; Waiver. If one or more provisions of this Agreement are held to be unenforceable under applicable law, the parties agree to renegotiate such provision in good faith, in order to maintain the economic position enjoyed by each party as close as possible to that under the provision rendered unenforceable. In the event that the parties cannot reach a mutually agreeable and enforceable replacement for such provision, then (i) such provision shall be excluded from this Agreement, (ii) the balance of the Agreement shall be interpreted as if such provision were so excluded and (iii) the balance of the Agreement shall be enforceable in accordance with its terms. No failure of either party to exercise or enforce any of its rights under this Agreement will act as a waiver of such rights or of any other rights hereunder. (f) Relationship of the Parties. Nothing in this Agreement is to be construed as creating an agency, partnership, or joint venture relationship between the parties hereto. (g) Costs. If any action at law or in equity (including arbitration) is necessary to enforce or interpret the terms of this Agreement, the prevailing party shall be entitled to reasonable attorney’s fees, costs and necessary disbursements in addition to any other relief to which such party may be entitled. (h) Force Majeure. Except for Licensee’s obligation to pay for services already performed by MetricStream, if either party is prevented from complying, either totally or in part, with any of the terms or provisions of this Agreement by reasons of fire, flood, storm, earthquake, strike, lockout or other labor trouble, riot, war, rebellion, communications or utility failures, accident or other acts of God, then upon written notice to the other party, the requirements of this Agreement, or the affected provisions hereof to the extent affected, shall be suspended during the period of such disability. (i) Entire Agreement. This Agreement constitutes the entire agreement between the parties pertaining to the subject matter hereof and supersedes any conflicting or additional terms contained in any purchase order or elsewhere, all of which terms are excluded. This Agreement has been written in the English language, and the parties agree that the English version will govern. The terms of this Agreement may only be modified by a written agreement duly signed by both parties hereto.