Software License and Support and Maintenance Agreement

This SOFTWARE LICENSE AND SUPPORT AND MAINTENANCE AGREEMENT (this “ Agreement”) is made by and between DATADOBI, BV, a company organized under the laws of Belgium (“Datadobi ” or “Licensor”), and the entity installing, accessing or using the Licensed Property (as defined below) (“ Licensee”). By clicking the “I Agree” or similar button or in the absence of such button, by installing, accessing or using the Licensed Software, Licensee (1) represents that Licensee has read this Agreement and understands its terms and conditions; and (2) agrees to be bound by all the terms and conditions of this Agreement. If you do not agree to and accept each of the terms, conditions and provisions of this Agreement, you may not install, access or use, and must delete from your computer, the Licensed Property (and all other materials accompanying the Licensed Property).

1 Definitions and interpretation
1.1 In this Agreement:

“Affiliate” means, with respect to a party to this Agreement, an entity that controls, is controlled by, or is under common control with such party, where “control” means the ownership of more than a majority of the voting ownership interests of the entity or party.
“Action” means a functionality provided by the Licensed Software, other than Organize functionalities, such as a functionality that migrates, deletes, replicates, copies or moves data in a Dataset.
“API” means a set of definitions, protocols and functions that allow an application of Licensee or a third party to communicate with and send commands to certain of Datadobi’s software products.
“Customer” means an entity to which Licensee provides services using the Licensed Software pursuant to a written agreement between Licensee and such entity.
“Business Day” means any weekday, other than a bank or public holiday in Belgium.
“Business Hours” means between 09:00 and 18:00 Belgian time on a Business Day.
“Data Unit” means a byte of un-deduped, un-compressed and un-archived data.
“Dataset” means one or more drives, volumes, partitions, folders or other grouping of Data Units on a Data Storage System that are selected by a user. For example, if a user instructs the Licensed Software to scan the entirety of a Data Storage System, the entire Data Storage System is a Dataset. By way of further example, if a user instructs the Licensed Software to scan a specific set of partitions on a Data Storage System, only the scanned partitions are part of the Dataset.
“Data Storage System” means the computer system(s) owned or controlled by Licensee or Customer that store, or have the capacity to store, digital data.
“Data Under Management” means each Dataset of Licensee or Customer in respect of which any functionality of the Licensed Software is used at any time during the Term, subject to adjustment as set forth in Section 4.3.
“Data Under Management Cap” means the aggregate amount of all Data Under Management across all Data Storage Systems of Licensee or Customer expressed in Data Units, as identified in the Order Acknowledgement or permitted by a license key supplied by Licensor from time to time.
“Documentation” means the Licensed Software data sheets and other documentation concerning the Licensed Software supplied by Licensor to Licensee.
“Effective Date” means the date when Datadobi issues the Order Acknowledgement for the Software.
“Force Majeure Event” means an event, or a series of related events, that is outside the reasonable control of the party affected (including failures of or problems with the internet or a part of the internet, power failures, industrial disputes affecting any third party, changes to the law, disasters, explosions, fires, floods, riots, terrorist attacks and wars).
“Intellectual Property Rights” means all intellectual property rights of any nature wherever in the world, whether registered or unregistered, including any application or right of application for such rights, including copyright and related rights; rights in databases, proprietary or confidential information, trade secrets and/or know-how; rights in names and other identifiers of origin such as business names, trade names, trademarks, service marks, and prohibitions against passing off; prohibitions against unfair competition; and patents, utility models and rights in designs.
“Licensed Property” means the Licensed Software and the Documentation, collectively.
“Licensed Software” means the Software and all Updates made available to Licensee by Licensor from time to time.
“Order Acknowledgement” means a written or electronic shipment notification or other order acknowledgement issued by Datadobi for Software in response to a request by Licensee, either in hardcopy-format, electronic mail, electronic/digital document, or by fax.
“Organize” means any function of the Licensed Software directed to scanning, analyzing, classifying, tagging or visualizing a Dataset.
“Restricted Migration” means any of the following types of data extraction or migrations: (a) Write Once Read Many (WORM) migrations; (b) Multi-Protocol (MUP) migrations; (c) Cloud Tiering Appliance (CTA) migrations; (d) Content Addressed Storage migrations; or (e) any other type of migration project that Licensor may specify from time to time in writing.
“Software” means: (a) StorageMAPTM; (b) DobiReplicate® if such software is required to perform a replication Action; (c) APIs made available by Licensor to Licensee from time to time for use with StorageMAP or DobiReplicate or (d) any enhancement, Update or upgrade to StorageMAP or APIs made available by Licensor to Licensee from time to time for use with StorageMAP or DobiReplicate.
“Support and Maintenance Exhibit” means Exhibit A to this Agreement.
“Term” has the meaning set forth in Section 2 of this Agreement.
“Update” means an update (including bug-fix), improvement or patch to the Software made available by Licensor to Licensee.

1.2 In this Agreement, a reference to a statute or statutory provision includes a reference to:
(a) that statute or statutory provision as modified, consolidated and/or re-enacted from time to time; and
(b) any regulations made under that statute or statutory provision.

1.3 Section headings are for ease of reference and do not have any legal effect; references to Sections are to sections of the body of this Agreement unless otherwise stated.

1.4 The words “include,” “includes” and “including” shall be deemed to be followed by the words “without limitation” and the word “or” is not exclusive.

2 Term of Agreement
The “Term” of this Agreement will begin on the Effective Date and will continue for the term specified in the Order Acknowledgement or, if no term is specified, for one (1) year, unless earlier terminated in accordance with Section 12.

3 License
3.1 Subject to the payment by Licensee of the relevant charges and fees in respect of the Licensed Property and Licensee’s compliance with this Agreement, Licensor grants to Licensee a non-exclusive and non-transferable (except as set forth in Section 14.6) license during the Term, to:
(a) install the Licensed Software (in accordance with the Documentation) for use in Licensee’s physical or virtual data center;
(b) access and use the applicable Licensed Software indicated in the Order Acknowledgement in accordance with the Documentation and up to the Data Under Management Cap applicable to the license that Licensee purchased;
(c) in the case of Licensed Software that is an API, use such API for the sole purpose of interacting with the other Licensed Software for which it was designed for use;
(d) use any number of instances of the Documentation in connection with the permitted use of the Licensed Software; and
(e) make and maintain a reasonable number of copies of the Licensed Property for backup purposes;in each case, anywhere in the world.

3.2 Licensee may not and shall not:
(a) copy or reproduce the Licensed Property or any part of it other than in accordance with the license granted in Section 3.1;
(b) sell, resell, rent, lease, loan, supply, distribute, redistribute, publish or re-publish the Licensed Property or any part of it, except as provided in Section 14.6;
(c) modify, alter, adapt, translate or edit, or create derivative works of, the Licensed Property or any part of it;
(d) reverse engineer, decompile, disassemble the Licensed Software or any part of it and any 
information derived in violation of such restriction shall automatically be deemed Licensor 
Confidential Information and owned exclusively by Datadobi;
(e) use the Licensed Software other than in accordance with the Documentation; or
(f) circumvent or remove or attempt to circumvent or remove the technological measures applied to the Licensed Property for the purposes of preventing unauthorized use,providing that nothing in this Section 3.2 will prohibit or restrict Licensee from doing any act that applicable law sanctions notwithstanding the agreed restrictions set forth in this Section 3.2.

3.3 All Intellectual Property Rights in the Licensed Property are and will remain, as between the parties, the property of Licensor.

3.4 All licenses to the License Software expire upon the earlier of expiration or termination of the Term, and no refund or credit will be issued for the unused portion of the Data Under Management Cap. For example, there will be no refund or credit if, at the expiration of the Term, Licensee has 50TiB of Data under Management under a license that provides a 100TiB Data Under Management Cap.

3.5 Licensee may not and shall not use Licensed Software to perform or attempt to perform any Restricted Migration without Licensor’s prior written consent and/or Licensee’s completion of all Licensor training or certification programs that Licensor may generally require of its licensees from time to time.

4 Datasets and Data Under Management
4.1 A given Dataset is established in the Licensed Software the first time that the user instructs the Licensed Software to perform any Organize or Action function on such Dataset.

4.2 The Data Under Management of a Dataset in the Licensed Software at any given time is equal to the larger of (a) the total amount of Data Units in such Dataset at the time of establishment of such Dataset in the Licensed Software or (b) after a Dataset is established in the Licensed Software, the total amount of Data Units in such Dataset at the time that the user performs any Organize or Action function on such Dataset.

4.3 Except as set forth in Section 4.4, Data Under Management is calculated on a cumulative and peak basis across all Datasets in the Licensed Software during the Term inclusive of Datasets removed from the Licensed Software during the Term. For clarity, Data Under Management for a Dataset in the Licensed Software (a) includes any incremental increase in the amount of Data Units in such Dataset at the time of running an Organize or Action function on such Dataset (as compared to the amount of Data Units in such Dataset the last time an Organize or Action function was run on such Dataset) and (b) does not decrease as a result of (i) such Dataset becoming smaller (such as by deleting or moving Data Units from the Dataset) or (ii) removing such Dataset from the Licensed Software other than as set forth in Section 4.4.

4.4 If the Term is for two (2) years or more or if the Term is renewed as contemplated by Section 13.2, (a) the Datasets in the Licensed Software as of the anniversary of the Effective Date are Data Under Management and will count towards the Data Under Management Cap for the following year and (b) Datasets removed from the Licensed Software prior to the anniversary of the Effective Date will no longer be Data Under Management and will not count towards the Data Under Management Cap for the following year (unless and until such Dataset is reestablished in the Licensed Software during the following year).

4.5 For example, if Licensee has two different Datasets established in the Licensed Software, one of which is 10TiB and the other of which is 20TiB, Data Under Management for purposes of the Data Under Management Cap is 30TiB. If Licensee then removes the 10TiB Dataset from the Licensed Software, the removed 10TiB Dataset is still classified as Data Under Management such that 30TiB from the two Datasets will continue to count against the Data Under Management Cap until the removed 10TiB Dataset is no longer Data Under Management as described in Section 4.4. If prior to the annual adjustment of Data Under Management pursuant to Section 4.4, Licensee performs an Organize or Action function against 5TiB of Data Units that were previously part of the removed 10 TiB Dataset, total Data Under Management for purposes of the Data Under Management Cap would still equal 30TiB until the annual adjustment of Data Under Management pursuant to Section 4.4. On the other hand, if after the annual adjustment of Data Under Management pursuant to Section 4.4 (which adjustment resulted in the 20TiB Dataset remaining as Data Under Management and the removed 10TiB Dataset no longer being Data Under Management), Licensee then performs an Organize or Action function against 5TiB of Data Units not in the 20TiB Dataset (whether or not previously part of the removed 10TiB Dataset), total Data Under Management that counts toward the Data Under Management Cap would then equal 25TiB.

4.6 The Licensed Software does not double count overlaps across different Datasets in the Licensed Software when calculating Data Under Management for purposes of applying the Data Under Management Cap. For example, if a Dataset in the Licensed Software consists of Drive A and Drive B and another Dataset in the Licensed Software consists of Drive B and Drive C, the total Data Under Management for purposes of the Data Under Management Cap is equal to the sum of Data Units in Drive A, Drive B and Drive C, not the sum of Data Units in Drive A and Drive B plus the Data Units in Drive B and Drive C.

4.7 If Licensee acquires a license that permits use of Organize functions only, Action functions will not be available for use with any Dataset. Upon Licensee obtaining a license to the Licensed Software that enables Actions, both Organize and Action functions will be available for use with all Datasets.

5 Audit Rights
5.1 Licensee grants Licensor the right to audit, at Licensor’s expense, Licensee’s deployment and use of the Licensed Property for compliance with the terms of this Agreement at any mutually agreeable time during Licensee’s normal Business Hours. Licensor shall give Licensee at least five (5) days prior notice of the audit and such audits shall be conducted no more than once annually. If Licensee’s use of the Licensed Property is found to be greater than contracted for, Licensor shall have the option to terminate this Agreement for Licensee’s breach or invoice Licensee for the difference between Licensee’s permitted use of the Licensed Property and Licensee’s actual use of the Licensed Property (at Licensor’s then current rates), and Licensee shall pay such invoice within thirty (30) days after the date of such invoice. If the resulting adjustments to the license fees owing by Licensee are greater than five percent (5%) of the license fees paid by Licensee under this Agreement, Licensee will pay the expenses associated with such audit in addition to the additional license fees.

6 Updates
6.1 Licensee must promptly apply to the Licensed Software each Update made available by Licensor to Licensee from time to time.

6.2 Licensor will have no obligation to provide support for the Software under Section 7 in relation to any version of the Licensed Software that does not incorporate the most recent Update to the Licensed Software.

7 Support and maintenance
7.1 Licensor will provide support and maintenance for the Licensed Software in accordance with the Support and Maintenance Exhibit.

8 Limited warranties
8.1 Licensee warrants to Licensor that it has the legal right and authority to enter into and perform its obligations under this Agreement.

8.2 Licensor warrants to Licensee that:
(a) it has the legal right and authority to enter into and perform its obligations under this Agreement;

(b) to the knowledge of Licensor, the use of the Licensed Property by Licensee in accordance with the terms of this Agreement will not infringe the Intellectual Property Rights of any third party;

(c) for ninety (90) days after the Effective Date, the Licensed Software will operate materially in accordance with the Documentation. All warranty claims not made in writing within such period shall be deemed waived. This warranty is contingent on the proper installation and use of the Licensed Software as described in the Documentation. The sole and exclusive remedy for breach of the foregoing warranty shall be for Licensor to provide support and maintenance to Licensee in accordance with the Support and Maintenance Exhibit; and

(d) Licensor has tested the Licensed Software made available to Licensee for download for computer virus and other malicious third party software infections in accordance with standard industry practice from time to time.

8.3 Licensee acknowledges that:
(a) the Licensed Software may not be error-free and that errors in the Licensed Software will not constitute a breach of this Agreement; and

(b) the Licensed Software has not been developed to meet the specific requirements of Licensee, and accordingly Licensee will be responsible for ensuring that the Licensed Software is suitable to meet Licensee’s requirements.

8.4 Licensee acknowledges that depending on the settings that the user sets for certain of the Licensed Software, the Licensed Software will delete data from the source Data Storage System and/or delete or overwrite any and all data on the target Data Storage System(s). Licensee further acknowledges Licensor’s recommendation that, prior to implementing any Action (including any Action configured, started or automated using an API or scripts that utilize an API), Licensee create and maintain complete and independent backups of both the source and target Data Storage System(s) in order to ensure that such data remains safe, secure and accessible in the event of any data loss that may occur during use of the Licensed Software. Licensee acknowledges and agrees that it is Licensee’s responsibility to conduct such backups, and Licensor shall have no fault or liability for any data loss that may occur because of user error (whether related to application software or an API, settings made (or not made) by the user (whether related to application software or an API) or that could be restored from properly created and maintained backups. Without limiting the foregoing, Licensor shall have no fault or liability for any data loss that may occur as a result of Licensee’s performance of a Restricted Migration in violation of Section 3.5.

8.5 The warranty in Section 8.2(c) is conditioned upon Licensee promptly providing to Licensor all information and assistance, and access to its premises and systems, as Licensor may require.

8.6 EXCEPT AS SET FORTH IN SECTION 8.2, DATADOBI MAKES NO AND EXPRESSLY DISCLAIMS ANY AND ALL REPRESENTATIONS AND WARRANTIES, WHETHER EXPRESS OR IMPLIED, INCLUDING THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT.

9 Intellectual Property Indemnity
9.1 Licensor shall defend Licensee against any third party claim that a Licensed Property infringes or misappropriates any copyright, patent or trade secret and indemnify Licensee against any damages actually awarded or paid in connection therewith; provided, that: (i) the claimed infringement does not relate to, or result from, Licensee’s or any third party’s modification(s) of the Licensed Property, use of the Licensed Property in combination with software or hardware not supplied or expressly approved in writing by Licensor or Licensee’s breach of this Agreement; and (ii) Licensee gives Licensor prompt, written notice of any such 
claim and allows Licensor to control the defense and all related settlement negotiations. If any infringement claim has occurred or in Licensor’s reasonable judgment is likely to occur and Licensor is required to indemnify and defend Licensee by virtue of the foregoing sentence, then Licensee shall allow Licensor, at Licensor’s option and expense, to procure the right for Licensee to continue using the Licensed Property that is the subject of such claim, or to replace or modify such Licensed Property so that such Licensed Property becomes non-infringing yet remains substantially functionally equivalent. If neither of the foregoing alternatives is available on terms that are reasonable, in Licensor’s sole discretion, then Licensee shall, upon the request of Licensor, return the Licensed Property to Licensor, whereupon Licensor shall return to Licensee any amounts prepaid by Licensee for periods following the date of Licensee’s return of the Licensed Property. This Section 9.1 states Licensee’s sole and exclusive remedy arising from copyright, patent and trade secret infringement claims made against Licensee with respect to the Licensed Property, and Licensor shall incur no liability to Licensee relating to such infringement or misappropriation claims except as provided in this Section 9.1.

10 Confidentiality
10.1 Licensee acknowledges that: (i) the Licensed Property is and shall remain the exclusive property of Licensor and its successors and assigns; and (ii) Licensee has no right, title or interest to or in the Licensed Property except as expressly granted in this Agreement.

10.2 Licensee hereby acknowledges that during the Term of this Agreement, it will receive information from Licensor that belongs exclusively to Licensor or a third party supplier of Licensor and that Licensor regards as highly confidential and proprietary, including but not limited to the Licensed Property and any source code, translations, compilations, partial copies and derivative works associated therewith (“ Licensor’s Confidential Information”). Licensor’s Confidential Information does not include: (i) information already known or independently developed by Licensee outside the scope of this relationship by personnel not having access to any Licensor’s Confidential Information; (ii) information in the public domain through no wrongful act of Licensee; or (iii) information received by Licensee on a non-confidential basis from a third party who was free to disclose such information.

10.3 With respect to Licensor’s Confidential Information, and except as expressly authorized herein, Licensee shall not use or commercialize Licensor’s Confidential Information or disclose Licensor’s Confidential Information to any person or entity, except to its own employees having a “need to know” (and who themselves are bound by equivalent non-use and non-disclosure obligations applicable to the Licensed Property), and to such third parties as Licensor may approve in writing in advance (such approved third parties being “Authorized Third Parties”); provided that all such Authorized Third Parties shall have first executed a confidentiality agreement in a form acceptable to Licensor. Neither Licensee nor any Authorized Third Parties shall: (i) alter or remove from any Licensed Property or associated Documentation any proprietary, copyright, trademark or trade secret legend; or (ii) attempt to decompile, disassemble or reverse engineer the Licensed Property or other Licensor’s Confidential Information (and any information derived in violation of such covenant shall automatically be deemed Licensor’s Confidential Information owned exclusively by Licensor). Licensee and its Authorized Third Parties shall use at least the same degree of care in safeguarding the Licensor’s Confidential Information as Licensee uses in safeguarding its own confidential information, but in no event less than reasonable due diligence and care. Upon termination of this Agreement, Licensee shall, and shall cause its Authorized Third Parties to, cease all use of, and return or destroy, all Licensor’s Confidential Information in its or their possession or control. The appropriate officer of Licensee shall certify to Licensor in writing, within fifteen (15) days after such termination, that Licensee has complied with the obligations of the foregoing sentence.

< 10.4 In the event Licensor processes “personal data” as defined by and subject to any national law of an EU member state adopted pursuant to Regulation (EU) 2016/679 (“Personal Data”) on Licensee’s behalf pursuant to this Agreement, then: (i) Licensee acknowledges and agrees that Licensee or Customer is the controller of such Personal Data and Licensor is a processor or subprocessor of such Personal Data under this Agreement, (ii) Licensee will comply with its obligations under all applicable data protection and privacy laws, (iii) Licensor and Licensee agree to comply with the Data Processing Agreement available at: https://datadobi.com/dataprocessing-agreement/, and (iv) in the event of a transfer any Personal Data from any EU member country to another country that has not been determined by the European Commission to ensure an adequate level of protection for personal data, Licensor and Licensee agree to comply with the Standard Contractual Clauses available at: https://datadobi.com/dataprocessing-agreement/ with respect to such transfer.

11 Limitations and exclusions of liability
11.1 Nothing in the Agreement will:
(a) limit or exclude the liability of a party for death or personal injury resulting from negligence; or
(b) limit or exclude the liability of a party for fraud or fraudulent misrepresentation by that party.

11.2 The limitations and exclusions of liability set out in this Section 11:
(a) are subject to Section 11.1; and
(b) govern all liabilities arising under the Agreement or in relation to the subject matter of the Agreement, including liabilities arising in contract, tort (including negligence) or otherwise.

11.3 Licensor will not be liable to Licensee for any losses arising out of a Force Majeure Event.

11.4 EXCEPT FOR INDEMNIFICATION OBLIGATIONS UNDER SECTION 9, IN NO EVENT SHALL LICENSOR’S LIABILITY TO LICENSEE OR ANY THIRD PARTY, IN THE AGGREGATE, FOR DAMAGES ARISING OUT OF THE USE OR LICENSING OF THE LICENSED PRODUCT OR ARISING UNDER THIS AGREEMENT OR THE EXHIBITS HERETO, WHETHER IN TORT, CONTRACT OR OTHERWISE, EXCEED THE LICENSE FEES COLLECTED BY LICENSOR FROM LICENSEE FOR THE LICENSING OF THE LICENSED PROPERTY.

11.5 IN NO EVENT SHALL LICENSOR BE LIABLE TO LICENSEE OR ANY THIRD PARTY FOR ANY CONSEQUENTIAL, INCIDENTAL, INDIRECT, PUNITIVE, SPECIAL, OR SIMILAR DAMAGES, INCLUDING, WITHOUT LIMITATION, DAMAGES FOR LOSS OF PROFITS, LOSS OF GOOD WILL, WORK STOPPAGE, COMPUTER FAILURE OR MALFUNCTION, LOSS OF WORK PRODUCT, DATA LOSS, DATA CORRUPTION OR ANY AND ALL OTHER COMMERCIAL DAMAGES OR LOSSES, WHETHER DIRECTLY OR INDIRECTLY CAUSED, WHETHER IN TORT, CONTRACT, OR OTHERWISE, EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.

11.6 Licensee shall have one (1) year from the accrual of a cause of action to bring such action. If Licensee fails to bring such action within one (1) year of its accrual, then Licensee shall be deemed to have waived whatever rights Licensee may have had in relation to such cause of action including all legal and equitable remedies.

12 Termination
12.1 This Agreement will terminate immediately and automatically if:
(a) Licensee breaches any of Sections 3.2, 10 or 14.3;
(b) Licensee: (i) is dissolved; (ii) ceases to conduct its business in the ordinary course; (iii) is or becomes unable to pay its debts as they fall due; (iv) is or becomes insolvent or is declared insolvent; or (v) convenes a meeting or makes or proposes to make any arrangement or composition with its creditors;
(c) an administrator, administrative receiver, liquidator, receiver, trustee, manager or similar person is appointed over any of the assets of Licensee; or
(d) an order is made for the winding up of Licensee, or Licensee passes a resolution for its winding up.

12.2 A party may, in addition to other relief, terminate this Agreement and any license granted 
by this Agreement if the other party breaches any provision of this Agreement and fails, within 
thirty (30) days after receipt of notice of such breach, to: (i) correct the breach if the breach is 
capable of correction within such thirty (30) day time period; or (ii) commence corrective action 
reasonably acceptable to the aggrieved party and proceed with due diligence to completion of 
such action if the breach cannot be remedied within such thirty (30) day time period.

13 Effects of expiration or termination
13.1 Upon expiration or termination of this Agreement, all licenses granted under this Agreement terminate, and Licensee must cease all further use of the Licensed Property and promptly destroy all copies thereof in its or its Customers’ possession or control. Licensee acknowledges that license keys for the Licensed Software expire or terminate automatically upon the expiration of this Agreement. Unless Licensor and Licensee mutually agree to extend the Term for an additional renewal period, (a) the Licensed Software will automatically become inoperable, (b) the Datasets, and all information collected and analyzed in respect of such Datasets, will no longer be accessible in the Licensed Software and (c) all running Organize and Action functions including, without limitation, migrations, deletions, replications and synchronizations will automatically terminate without notice and regardless of the amount of progress achieved at the time of expiration of this Agreement.

13.2 If Licensee obtains a new license to, and actually re-enables, the Licensed Software within three (3) months after the end of the Term:
(a) this license will be treated as a renewal of the Term;
(b) Licensee will be able to select which Datasets in the Licensed Software as of the end of the original Term will continue as Data Under Management; and
(c) the Dataset(s) in the Licensed Software selected in accordance with Section 13.2(b), and all information collected and analyzed in respect of such Dataset(s), will remain available in the Licensed Software.

13.3 If Licensee does not obtain a new license to, or does not actually re-enable, the Licensed Software within three (3) months after the end of the Term, and then obtains a license to, or actually re-enables, the Licensed Software:
(a) this license will be treated as an entirely new license, not as a renewal of the Term; and
(b) all Datasets in the Licensed Software as of the end of the Term, and all information collected and analyzed in respect of such Datasets, will not be available in the Licensed Software and Licensee will be required to establish entirely new Datasets in the Licensed Software.

13.4 Sections 1, 3.2, 4, 8.6, 10, 11, 13 and 14 shall survive the expiration or termination of this Agreement for any reason in accordance with their respective terms.

13.5 Expiration or termination of this Agreement will not affect rights and liabilities accrued as of the date of termination.

14 General
14.1 The parties shall use reasonable efforts to resolve amicably any disputes that may relate to or arise under this Agreement. Any disputes that cannot be resolved in such manner shall be settled exclusively by arbitration conducted in Brussels, Belgium under the auspices of the International Chamber of Commerce in accordance with its then current rules; provided that either party may seek injunctive relief from any court of competent jurisdiction. The award rendered in such arbitration shall be final, non- appealable and bind the parties, and any court having jurisdiction with respect thereto can enter judgment upon the award. Without detracting from the generality of the foregoing, the following specific provisions shall also apply:
(a) the proceedings shall be held before a panel of three arbitrators;
(b) the arbitrators shall apply the law chosen in Section 14.2;
(c) the prevailing party shall be entitled to recover, in addition to any other amounts awarded, an amount for legal and other related costs and expenses, including attorneys’ fees, incurred thereby that is reasonable and equitable in relation to the award;
(d) the costs of the arbitration (other than the parties’ costs and expenses) will be allocated among the parties in the discretion of the arbitrators; and
(e) the decision of the arbitrators shall be in writing and state the facts and law upon which the decision rests and shall be given no later than ten (10) days following the conclusion of the necessary hearings.

14.2 This Agreement and its performance shall be governed and construed in accordance with the laws of the Kingdom of Belgium applicable to contracts entered into by residents of Belgium and fully performed in Belgium.

14.3 The transfer of technology across national boundaries is regulated by the United States Government. Licensee shall not acquire, ship, transport, export or re-export the Licensed Property, directly or indirectly, into any country in violation of any applicable law (including, but not limited to, the United States Export Administration Act and the regulations promulgated thereunder) nor will Licensee use the Licensed Property for any purpose prohibited by such laws.

14.4 No breach of any provision of this Agreement will be waived except with the express written consent of the party not in breach.

14.5 If a Section of this Agreement is determined by any court or other competent authority to be unlawful and/or unenforceable, the other Sections of this Agreement will continue in effect. If any unlawful and/or unenforceable Section would be lawful or enforceable if part of it were deleted, that part will be deemed to be deleted, and the rest of the Section will continue in effect (unless that would contradict the clear intention of the parties, in which case the entirety of the relevant Section will be deemed to be deleted).

14.6 Licensor may freely assign this Agreement without Licensee’s consent. Licensee may not assign, transfer, charge, license or otherwise dispose of or deal in this Agreement and/or any its rights and/or obligations under this Agreement including in connection with a sale of Licensee’s business, except with Licensor’s prior written consent in its sole discretion. A permitted assignment by Licensee shall not be construed to (a) allow the assignee to use the Licensed Property beyond the applicable Data Under Management Cap, (b) remove the assigning Licensee’s Dataset from the Data Under Management or (c) reduce or reset the cumulative total of Data Under Management as of immediately prior to such assignment.

14.7 This Agreement is made for the benefit of the parties, and is not intended to benefit any third party or be enforceable by any third party. The rights of the parties to terminate, rescind, or agree any amendment, waiver, variation or settlement under or relating to this Agreement are not subject to the consent of any third party.

14.8 This Agreement constitutes the entire agreement and understanding of the parties in relation to the subject matter of this Agreement and supersedes all previous agreements, arrangements and understandings between the parties relating to the subject matter of this Agreement. For the avoidance of doubt, if Licensee desires to invoke the replication Action and if Licensee is required to install and use DobiReplicate to use such Action, this Agreement and not the clickthrough agreements provided with DobiReplicate shall govern the use of such Licensed Software.

14.9 This Agreement cannot be amended except in a writing assented to by the party (either in writing or electronically) against whom enforcement of the amendment is sought.

14.10 All notices and requests under this Agreement (each, a “ Notice”) shall be in writing and shall be sent by internationally-recognized overnight courier or by email (a) in the case of Licensee, to the address or facsimile number provided to Licensor at the time of licensee key issuance and (b) in the case of Licensor, to Datadobi BV, Kolonel Begaultlaan 1C, 3rd Floor 3012 Leuven, Belgium. A Notice shall be deemed to have been given and received: (a) in the case of internationally-recognized overnight courier, upon the earlier of actual receipt by the recipient or the first attempted delivery of the Notice; or (b) in the case of facsimile, upon the successful transmission of all pages of the Notice to the correct facsimile number, as shown by a report generated by the transmitting facsimile machine; provided that such Notice is also confirmed by sending a copy of the Notice and the facsimile report by internationally-recognized overnight courier to the address set forth after the signature lines of this Agreement for the intended recipient. A party may change its address and/or facsimile number for Notices by giving the other written notice as set forth in this Section 14.10.

14.11 The Licensed Software and any Documentation are commercial items, as that term is defined in 48 CFR 2.101, consisting of commercial computer software and commercial computer software documentation, as those terms are used in 48 CFR 12.212. If the Licensed Software or any Documentation is acquired by or on behalf of the U.S. government or by a U.S. government contractor (including without limitation prime contractors and subcontractors at any tier), then in accordance with 48 CFR 227.720 2-4 (for Department of Defense licenses only) and 48 CFR 12.212 (for licenses with all federal government agencies), the government’s rights to the Licensed Software and such Documentation are limited to the commercial rights specifically granted in this Agreement, as restricted by this Agreement. The rights limited by the preceding sentence include, without limitation, any rights to reproduce, modify, perform, display, disclose, release, or otherwise use the Licensed Software or Documentation. This Section 14.11 does not grant Licensee any rights not specifically set forth in this Agreement.

EXHIBIT A

SUPPORT AND MAINTENANCE EXHIBIT

1 PURPOSE
This Exhibit A describes the terms and conditions under which Licensor shall provide support 
and maintenance services in respect of the Licensed Software.

2 DEFINITIONS
“Urgent” means, in the case of a production environment, that the functionality of the Licensed Software is either completely unavailable or a recurring error issue renders the Licensed Software inoperable or the error causes data corruption in a way that it can’t be recovered. The error in a production environment classified as Urgent has one or more of the following characteristics: Licensed Software hangs indefinitely or there is severe performance degradation, causing unreasonable wait times for resources or response times; Licensed Software crashes repeatedly - critical functionality is not available or the application cannot continue because a vital function is not working; critical business data is lost in an unrecoverable manner. In the case of a non-production environment, an error classified as Urgent means that the issue causes a major fault in the application, a large piece of functionality in the Licensed Software is completely broken, there is No Workaround, and significant testing cannot continue.

“High” means, in the case of a production environment, that the functionality of the Licensed Software is limited resulting in major impacts upon critical business processes or there is a high potential for an error to cause data corruption. The error in a production environment classified as High has one or more of the following characteristics: a key process crashes, but processes successfully on restart; data cannot be edited or saved, but it doesn’t prevent production of critical output; critical functionality is available but re-keying data or restarting the system is required. In the case of a non-production environment, an error classified as High means an issue where a large piece of functionality in the Licensed Software is not working properly. However, there is a workaround and significant testing can continue.

“Medium” means, in the case of a production environment, that the functionality of the Licensed Software is impaired, but key business processes are not interrupted. The error in a production environment classified as Medium has one or more of the following characteristics: the licensed software crashes infrequently, but critical functionality is still available; reporting or querying capability is impaired; non-critical process crashes infrequently; the performance of the Licensed Software is not as documented, however, the output is intact; a workaround exists; however there is operational or business impact. In the case of a non-production environment, an error classified as Medium means an issue that imposes some loss of functionality which is not in the main stream of functionality, but for which there is an acceptable and easily producible workaround. Testing can proceed without interruption.

“Low” means, in the case of a production environment, that the functionality of the Licensed Software is impaired, but a workaround exists; there is little or no operational or business impact, or a minor issue with no discernible impact on Licensee’s operations, routine administrative requests, or queries that do not require an immediate response. In the case of a non-production environment, an error classified as Low means a cosmetic defect such as a slight GUI mistake or appearance of fields in the screen are inconvenient.

“Response Delay” means the time measured between the logging of an incident by Licensee at Licensor and the time of the first reply by a competent engineer from Licensor to Licensee, 
which call shall be logged and documented by Licensor.

“Workaround Delay” means the time measured between the logging of an incident by Licensee at Licensor and the time Licensor has provided a workaround for the incident.

3 SUPPORT AND MAINTENANCE
3.1 The services under this Support and Maintenance Exhibit (the “Services”) will be provided for the Term.

3.2 The provision of the Services shall wherever possible be aligned with Licensee’s processes, procedures and protocols.

3.3 Licensee shall and using reasonable business judgment, categorize incidents into severity level categories Urgent thru Low.

3.4 Licensee shall submit an incident as soon as it becomes aware of the occurrence of an error or other issue with the Licensed Software.

3.5 Licensor has the obligation to handle every submitted incident according to the SLA’s as set forth in this Exhibit A. Licensor shall notify Licensee immediately if it becomes aware of circumstances which may prevent achieving an applicable SLA.

3.6 Both parties shall designate members of its personnel to be contacted by the other party during the provision of the Services.

3.7 Licensor shall provide access to its electronic support services, such as its web-based technical library and knowledge base, customer forums and feedback opportunities, and access to technical support via phone and e-mail during Support Hours (as defined below).

3.8 Licensor shall be entitled, upon Licensee’s prior authorization, to access the Licensed Software directly via a remote telecommunications link, in order to isolate errors in the Licensed Software and to provide fixes and workarounds for such errors.

3.9 Upon Licensee’s prior written consent, Licensor shall deploy on-site support services at Licensor’s then-current time and materials rates to resolve errors in the Licensed Software that cannot be resolved through a remote telecommunications link.

3.10 Licensor shall provide, when generally available in accordance with policy, Updates at no additional charge. Licensee must promptly apply to the Licensed Software each Update made available by Licensor to Licensee from time to time.

3.11 Licensor will have no obligation to provide support for the Licensed Software in relation to any version of the Licensed Software that does not incorporate the most recent Update to the Licensed Software.

4 INCIDENT LOGGING, RESOLUTION AND CLOSURE PROCEDURE
4.1 If and when an incident occurs:
(a) Licensee shall log the incident at Licensor’s Support Department, detailing as much as reasonably possible the nature of the incident (e.g. reproduction scenario, logs, screen shots, error messages, etc.). Licensee must have the Instance IDs or Sales IDs about which Licensee is contacting Licensor ready. The Instance ID and/or Sales ID is available in the “About” box of the Licensed Software. Licensee may contact Licensor’s Support Department to log the incident through the following:
Communication Channel
Contact Details
Support Portal
support.datadobi.com
Email
support@datadobi.com
Telephone
Numbers in reach region
(b) Licensor shall assign a unique tracking number to the incident for proper follow-up; and shall appoint a Support Account Manager for Licensee who will act as a full customer advocate within Licensor’s Organization.
(c) Licensor’s Support Department’s normal operating hours are between 9 AM and 10 PM (09:00 and 22 :00) Central European Time (“Support Hours”). Although there is always a support person on call, please limit calls to the normal operating hours (or send an email to support@datadobi.com) unless it is extremely urgent.

4.2 An incident shall be closed only upon Licensee’s formal acceptance of its resolution or after such period of time as shall be agreed by the parties, should there be no acceptance.

5 SLA
Severity
Maximum Response Delay
Workaround Delay
Delivery vehicle
Urgent
12 hours (elapsed)
72 hours (elapsed)
Procedure, patch
High
48 hours (elapsed)
14 days (elapsed)
Procedure, patch
Medium
5 days (elapsed)
3 months (elapsed)
Service pack

5.1 The SLA commitment is for incidents in either or both production and non-production environments that are reproduced and demonstrated to be errors in the Licensed Software.

5.2 Cases of the following type will be handled as quickly as possible or according to Datadobi standard release cycles and not measured against the SLA:
(a) service requests, enhancements, administration; and
(b) questions (i.e., answer-only incidents).

6 LIMITATIONS ON MAINTENANCE
6.1 Maintenance shall not apply in the event (i) the License Software or any part thereof is modified or adjusted in any manner by any party other than Licensor; (ii) the Licensed Software is used in conjunction with another vendor’s products resulting in the defect or nonconformance; (iii) Licensee fails to follow the applicable operation, maintenance or platform requirements as instructed by Licensor; or (iv) the Licensed Software is abused, mishandled, misused or damaged. All corrections to the Licensed Software will be performed only by Licensor or its authorized subcontractors. Licensor shall not be responsible in the event any party other than Licensor corrects the Licensed Software in any manner. Additionally, maintenance does not encompass the remediation of problems or bugs determined by Licensor to have been caused by the failure or malfunction of any software, tools, equipment, or facilities not provided by Licensor. In the event a problem has been reported to Licensor and it is found that the problem is not an error in the Licensed Software or that one of the exclusions set forth above applies, then Licensor shall have the right to charge Licensee for any work performed by Licensor in respect therewith, at its then-current time and materials rates and Licensee shall pay Licensor’s invoice therefor within thirty (30) after the date of invoice.