END-USER SOFTWARE LICENSE AGREEMENT INTEL SERVER CONTINUITY SUITE IMPORTANT - READ BEFORE PROCEEDING PLEASE READ THE TERMS OF THIS AGREEMENT CAREFULLY BEFORE PROCEEDING. BY SELECTING THE "AGREE" BUTTON, YOU AGREE TO THE TERMS OF THIS AGREEMENT. YOU AGREE THAT THIS AGREEMENT IS ENFORCEABLE AS THOUGH IT WERE A NEGOTIATED AGREEMENT SIGNED BY YOU. THIS AGREEMENT IS ENFORCEABLE AGAINST YOU AND ANY LEGAL ENTITY THAT OBTAINS THE SOFTWARE AND ON WHOSE BEHALF IT IS USED. YOU AGREE THAT YOU ARE BOUND BY THIS AGREEMENT WHETHER YOU ARE ACTING ON YOUR OWN BEHALF OR ON BEHALF OF A THIRD PARTY AND THAT YOU HAVE THE AUTHORITY TO BIND THAT ENTITY AND ITS AFFILIATES TO THESE TERMS AND CONDITIONS. YOU AGREE THAT ANY OF YOUR AGENTS, REPRESENTATIVES, EMPLOYEES, OR ANY PERSON OR ENTITY ACTING ON YOUR BEHALF WILL BE BOUND BY, AND WILL ABIDE BY, THESE TERMS AND CONDITIONS. IF YOU DO NOT AGREE TO ALL THE TERMS, SIMPLY CLICK "DO NOT AGREE" AND DISCONTINUE THIS PROCESS. This End-User Software License Agreement (“Agreement”) is between Intel Corporation (“Intel”) located at 2200 Mission College Blvd., Santa Clara, CA 95052-8119 and You. This Agreement has an “Effective Date” as of the date You click to accept the terms of this Agreement. 1. DEFINITIONS (a) “Intel Product” means an Intel-based server that is (i) compatible with the Software and (ii) authorized by Intel to run the Software. The complete list of compatible and authorized Intel Products is available on the Intel support website. (b) “Licensed Copy” means one (1) copy of the Software for use on one (1) Intel Product. Each Licensed Copy must be registered to a specific Intel Product. (c) “Software” means the Intel Server Continuity Suite software programs in the configuration You ordered that is delivered to You with this Agreement. Software can be provided either by electronic download, on physical media, or preloaded on an Intel Product. Software includes Intel-proprietary software, Third Party Software (defined below) licensed by Intel for use with the Software, related explanatory written materials or files (“Documentation”); and upgrades, modified versions, updates, additions, and copies of the Software, if any, licensed to You by Intel (collectively, “Updates”) (d) “You” or “Your” means you as an individual or, if you are accepting this Agreement on behalf of a legal entity, including, without limitation, a corporation, partnership or government agency, “You” or “Your” means that legal entity. 2. SOFTWARE LICENSE, RESTRICTIONS (a) Licenses. During the life of the Intel Product, Intel grants to You a non-exclusive, revocable, non-transferable, limited license, without the right to sublicense, under Intel’s copyrights to use one Licensed Copy of the Software on Your Intel Product in accordance with the Documentation subject to the terms and conditions of this Agreement. (b) Restricted Use. Your Licensed Copy of the Software must be registered by You to one specific Intel Product and may only be installed and used on that specific Intel Product for the life of that Intel Product. The Software may not be used until it is registered to a specific Intel Product. You may not share, install, move, transfer or use the Licensed Software on any other Licensed Product, computer or server. You may not lease or sell the Software. You may make one back-up copy of the Software solely for archival purposes. (c) No Modification. You may not modify, adapt, translate or create derivative works based upon the Software. You may not reverse engineer, decompile, disassemble or otherwise attempt to discover the source code of the Software. (d) No Other Rights. The Software is protected by the intellectual property laws of the United States and other countries, and international treaty provisions. Except as otherwise expressly stated above, Intel grants no express or implied rights under Intel’s intellectual property rights. Except as expressly stated in this Agreement, no license or right is granted to You directly or by implication, inducement, estoppel or otherwise. (e) Title. Title to the Software remains with Intel or its Third Party Software licensors. The Software is copyrighted and protected by the laws of the United States and other countries and international treaty provisions. Intel may attach Intel’s or its suppliers’ ownership label or copyright notice on all or any portion of the Software at any time, and You will not deface, remove or obscure such labels or notices 3. DATA, FEEDBACK (a) Data. In consideration for the rights Intel grants You under this Agreement, You hereby agree that Intel, its subsidiaries and affiliates may collect and use non-personally identifiable data and related information, including, but not limited to, technical information about your Intel Product, related software, services, or peripherals, and the operation of the Software prepared, collected, or generated through Your use of the Software, provided that Intel will use or disclose such data in an aggregated, non-personally identifiable form for purposes determined by Intel including, but not limited to, industry studies, internal validation, quality assurance and product authentication. You acknowledge that any and all use of such data by Intel in accordance with this Section will not constitute a breach of confidentiality or trade secrets, or any terms and conditions of this Agreement, or give rise to any other claim by You against Intel. You also agree that Intel, its subsidiaries or affiliates may collect and use non-personally identifiable data that is gathered periodically to facilitate the provisioning of Software Updates, product support and other services to You (if any) related to the Software, and to verify compliance with the terms of this Agreement. Intel may use this information to improve Intel’s products or to provide services or technologies to You. (b) Feedback License. If You provide Intel with comments or suggestions for the modification, correction, improvement or enhancement of the Software (collectively, “Feedback”), then You hereby grant to Intel a non- exclusive, irrevocable, worldwide, royalty-free license, including the right to sublicense Intel licensees and customers, under your intellectual property rights in the Feedback, and the rights to use and disclose the Feedback in any manner Intel chooses and to display, perform, copy, have copied, make, have made, use, sell, offer to sell, and otherwise dispose of Intel’s and its sublicensees’ products embodying the Feedback in any manner and via any media Intel chooses, but without reference to the source of the Feedback. (c) Data Privacy. It is Your responsibility to take all necessary measures to guard and protect the privacy of Your data and the data of Your customers or clients, in accordance with all applicable laws. Intel is not responsible or liable for guarding or protecting the privacy of such data. 4. SUPPORT AND MAINTENANCE SERVICES, THIRD PARTY SOFTWARE (a) Support and Maintenance. You will receive email and telephone support for the Software, in accordance with the] support section of the user manual for the Software, for the life of the Intel Product registered with the Software (“Support”). In order to obtain Support, You must contact the reseller who sold you the Software. You will receive one (1) year of included maintenance from the date of your initial purchase of the Software. Maintenance includes commercially released Updates to the Software (“Maintenance”). Following the first year of included Maintenance, You may also purchase additional years of Maintenance for payment of an additional fee. (b) Third Party Software. The Software includes software licensed by Intel from third parties (“Third Party Software”). Your right to use such Third Party Software, will be governed by the additional terms and conditions, if any, which are included along with such Third Party Software. YOUR USE OF THIRD PARTY SOFTWARE IS AT YOUR OWN RISK. INTEL MAKES NO WARRANTIES, CONDITIONS, INDEMNITIES, REPRESENTATIONS OR TERMS, EXPRESS OR IMPLIED, WHETHER BY STATUTE, COMMON LAW, EQUITY, CUSTOM, USAGE OR OTHERWISE AS TO ANY OTHER MATTERS, INCLUDING BUT NOT LIMITED TO NON-INFRINGEMENT OF THIRD PARTY RIGHTS, TITLE, INTEGRATION, ACCURACY, SECURITY, AVAILABILITY, SATISFACTORY QUALITY, MERCHANTABILITY OR FITNESS FOR ANY PARTICULAR PURPOSE WITH RESPECT TO THE THIRD PARTY SOFTWARE. (c) Open Source Software. The Software may be delivered with open source software that is distributed as free software, open source software, or pursuant to similar licensing and distribution models (e.g., GNU, Linux, etc.) (“Open Source Software”). YOUR USE OF OPEN SOURCE SOFTWARE IS AT YOUR OWN RISK. INTEL MAKES NO WARRANTIES, CONDITIONS, INDEMNITIES, REPRESENTATIONS OR TERMS, EXPRESS OR IMPLIED, WHETHER BY STATUTE, COMMON LAW, EQUITY, CUSTOM, USAGE OR OTHERWISE AS TO ANY OTHER MATTERS, INCLUDING BUT NOT LIMITED TO NON-INFRINGEMENT OF THIRD PARTY RIGHTS, TITLE, INTEGRATION, ACCURACY, SECURITY, AVAILABILITY, SATISFACTORY QUALITY, MERCHANTABILITY OR FITNESS FOR ANY PARTICULAR PURPOSE WITH RESPECT TO THE THIRD PARTY SOFTWARE. INTEL DISCLAIMS ON BEHALF OF ALL CONTRIBUTORS TO ANY OPEN SOURCE SOFTWARE ALL WARRANTIES AND CONDITIONS, EXPRESS AND IMPLIED; INTEL EXCLUDES ON BEHALF OF ALL SUCH CONTRIBUTORS ALL LIABILITY FOR DAMAGES, INCLUDING, BUT NOT LIMITED TO, INDIRECT, SPECIAL, INCIDENTAL AND CONSEQUENTIAL DAMAGES. ALL OPEN SOURCE SOFTWARE DELIVERED WITH THE SOFTWARE IS DELIVERED FREE-OF-CHARGE AND THE SOURCE CODE FOR ALL SUCH OPEN SOURCE SOFTWARE IS AVAILABLE FROM INTEL AT http://downloadcenter.intel.com/Detail_Desc.aspx?agr=Y&DwnldID=20644 AND THE OPEN SOURCE SOFTWARE LICENSE AGREEMENTS ARE AVAILABLE AT http://support.intel.com/support/motherboards/server/scs/sb/CS-032979.htm. 5. UPDATES If the Software is an Update to a previous version of the Software, You must possess a valid license to the previous version in order to receive and be licensed to the Update. All Updates are provided to You on a “license exchange basis”. You agree that by loading, copying or otherwise using an Update, Your license to any previous version of the Software is automatically terminated. 6. NO WARRANTY THE SOFTWARE IS PROVIDED ON AN “AS IS” BASIS, WITHOUT REPRESENTATION, WARRANTY OR CONDITION OF ANY KIND, INCLUDING WITHOUT LIMITATION, ANY EXPRESS OR IMPLIED, BY STATUTE OR OTHERWISE, REPRESENTATIONS, WARRANTIES OR CONDITIONS THAT THE SOFTWARE IS FREE OF DEFECTS, MERCHANTABLE, FIT FOR A PARTICULAR PURPOSE, NON-INFRINGING, WILL OPERATE ERROR-FREE, OR IN AN UNINTERRUPTED FASHION, THAT ANY DEFECTS OR ERRORS IN THE SOFTWARE CAN OR WILL BE CORRECTED, OR THAT THE SOFTWARE IS COMPATIBLE WITH ANY PARTICULAR HARDWARE OR SOFTWARE PLATFORM. EFFORTS BY INTEL TO MODIFY THE SOFTWARE WILL NOT BE DEEMED A WAIVER OF THESE LIMITATIONS. THE ENTIRE RISK AS TO THE QUALITY AND PERFORMANCE OF THE SOFTWARE IS BORNE BY YOU. THIS DISCLAIMER CONSTITUTES AN ESSENTIAL PART OF THIS AGREEMENT. NO USE OF THE SOFTWARE IS AUTHORIZED UNDER THIS AGREEMENT EXCEPT UNDER THIS DISCLAIMER. INTEL SHALL NOT BE LIABLE FOR THE CONTENT OF YOUR, OR YOUR CUSTOMER’S/CLIENT’S, INFORMATION OR DATA INTRODUCED BY YOU INTO THE SOFTWARE OR YOUR INTEL PRODUCT. YOU SHALL ENSURE THAT ALL SECURITY FEATURES AVAILABLE ON YOUR INTEL PRODUCT AND SOFTWARE ARE ENABLED AND USED AT ALL TIMES. INTEL IS NOT RESPONSIBLE FOR YOUR INABILITY TO ACCESS OR USE ANY DATA ON YOUR INTEL PRODUCT OR TO USE THE SOFTWARE, FOR ANY LOSS OF DATA, OR FOR ANY VIRUSES OR OTHER HARMFUL CODE WHICH COULD (I) DAMAGE, DESTROY OR ALTER YOUR INTEL PRODUCT, SOFTWARE, OR ITS OPERATING ENVIRONMENT; (II) HINDER YOUR ABILITY TO USE YOUR INTEL PRODUCT, THE SOFTWARE OR ANY OTHER HARDWARE ASSOCIATED WITH IT; (III) IN ANY MANNER, REVEAL, DAMAGE, DESTROY OR ALTER ANY DATA OR OTHER INFORMATION ACCESSED THROUGH OR PROCESSED BY YOUR INTEL PRODUCT OR SOFTWARE; OR (IV) IN ANY MANNER, DAMAGE, DESTROY OR ALTER YOUR INFORMATION SYSTEMS, DATA OR OTHER INFORMATION ACCESSED THROUGH OR PROCESSED BY YOUR INFORMATION SYSTEMS. SOME STATES OR JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF IMPLIED REPRESENTATIONS, WARRANTIES OR CONDITIONS OR LIMITATIONS ON HOW LONG AN IMPLIED REPRESENTATION, WARRANTY OR CONDITION MAY LAST, SO THE ABOVE LIMITATIONS MAY NOT APPLY TO YOU. 7. LIMITATION OF LIABILITY IN NO EVENT WILL INTEL OR ITS SUPPLIERS BE LIABLE FOR ANY DAMAGES WHATSOEVER (INCLUDING, WITHOUT LIMITATION, LOST PROFITS, BUSINESS INTERRUPTION, OR LOST INFORMATION) ARISING OUT OF THE USE OF OR INABILITY TO USE THE SOFTWARE, EVEN IF INTEL HAS BEEN ADVISED OF THE POSSIBILITY OF THE DAMAGES. SOME JURISDICTIONS PROHIBIT EXCLUSION OR LIMITATION OF LIABILITY FOR IMPLIED WARRANTIES OR CONSEQUENTIAL OR INCIDENTAL DAMAGES, SO THE ABOVE LIMITATION MAY NOT APPLY TO YOU. YOU MAY ALSO HAVE OTHER LEGAL RIGHTS THAT VARY FROM JURISDICTION TO JURISDICTION. THE SOFTWARE LICENSED UNDER THIS AGREEMENT IS NOT DESIGNED OR INTENDED FOR USE IN ANY MEDICAL, LIFE SAVING OR LIFE SUSTAINING SYSTEMS, TRANSPORTATION SYSTEMS, NUCLEAR SYSTEMS, OR FOR ANY OTHER MISSION CRITICAL APPLICATION IN WHICH THE FAILURE OF THE SOFTWARE COULD LEAD TO PERSONAL INJURY OR DEATH. YOU WILL INDEMNIFY AND HOLD INTEL AND THE INTEL PARTIES HARMLESS AGAINST ALL CLAIMS, COSTS, DAMAGES, AND EXPENSES, AND REASONABLE ATTORNEY FEES ARISING OUT OF, DIRECTLY OR INDIRECTLY, THE DISTRIBUTION OF THE SOFTWARE AND ANY CLAIM OF PRODUCT LIABILITY, PERSONAL INJURY OR DEATH ASSOCIATED WITH ANY UNINTENDED USE, EVEN IF THE CLAIM ALLEGES THAT AN INTEL PARTY WAS NEGLIGENT REGARDING THE DESIGN OR MANUFACTURE OF THE SOFTWARE. THE LIMITED REMEDIES, WARRANTY DISCLAIMER AND LIMITED LIABILITY ARE FUNDAMENTAL ELEMENTS OF THE BASIS OF THE BARGAIN BETWEEN INTEL AND YOU. INTEL WOULD NOT BE ABLE TO PROVIDE THE SOFTWARE WITHOUT THESE LIMITATIONS. 8. PUBLICITY You will not use Intel’s name in any publications, advertisements, or other announcements without Intel’s prior written consent. You do not have any rights to use any Intel trademarks or logos. 9. EXPORT RULES You will not export, either directly or indirectly, any product, service or technical data or system incorporating the Software without first obtaining any required license or other approval from the U.S. Department of Commerce or any other agency or department of the United States Government. In the event the Software is exported from the United States or re-exported from a foreign destination by You, You will ensure that the distribution and export/re-export or import of the Software is in compliance with all laws, regulations, orders, or other restrictions of the U.S. Export Administration Regulations and the appropriate foreign government. You agree that neither You nor any of Your subsidiaries will export/re-export any technical data, process, product, or service, directly or indirectly, to any country for which the United States government or any agency thereof or the foreign government from where it is shipping requires an export license, or other governmental approval, without first obtaining the license or approval. 10. REMEDIES If You breach this Agreement, You will promptly return the Software to Intel. A breach by You will irrevocably harm Intel, and Intel will be entitled to injunctive or other equitable relief, in addition to any other remedies afforded by law. 11. GOVERNING LAW & JURISDICTION Any claims arising under or relating to this Agreement will be governed by the internal substantive laws of the State of Delaware or federal courts located in Delaware, without regard to principles of conflict of laws. Each party hereby agrees to jurisdiction and venue in the courts of the State of Delaware for all disputes and litigation arising under or relating to this Agreement. The parties agree that the United Nations Convention on Contracts for the International Sale of Goods is specifically excluded from application to this Agreement. 12. NOTICE TO U.S. GOVERNMENT END USERS The technical data and computer software covered by this license is a “Commercial Item,” as the term is defined by the FAR 2.101 (48 C.F.R. 2.101) and is “commercial computer software” and “commercial computer software documentation” as specified under FAR 12.212 (48 C.F.R. 12.212) or DFARS 227.7202 (48 C.F.R. 227.7202), as applicable. This commercial computer software and related documentation is provided to end users for use by and on behalf of the U.S. Government, with only those rights as are granted to all other end users pursuant to the terms and conditions of this Agreement. Use for or on behalf of the U.S. Government is permitted only if the party acquiring or using this Software is properly authorized by an appropriate U.S. Government official. This use by or for the U.S. Government clause is in lieu of, and supersedes, any other FAR, DFARS, or other provision that addresses Government rights in the computer software or documentation covered by this license. 13. TERM AND TERMINATION This Agreement is effective upon the earlier of Your first receipt, installation or use of the Software and will continue until terminated as provided in this Agreement. (a) You may terminate this Agreement at any time by uninstalling the Software, permanently disabling all access to the Software, and returning the Software and all Documentation to Intel. (b) This Agreement will immediately and automatically terminate upon breach by You of any terms of this Agreement or Intel’s Terms of Use. Upon occurrence of such automatic termination or the receipt of a notice of termination by Intel, You agree to uninstall the Software and promptly return the Software and all Documentation to Intel. The provisions of Sections 1, 2(b)-(f), 3, 4(d), 6-20 will survive the termination of this Agreement, but this will not imply or create any continued license right for You to the Software after termination of this Agreement. 14. ASSIGNMENT You may not delegate, assign or transfer this Agreement, the license granted or any of Your rights or duties under this Agreement, expressly, by implication, by operation of law, by way of merger (regardless of whether You are the surviving entity) or acquisition, or otherwise and any attempt to do so, without Intel’s express prior written consent, will be void. Intel may assign this Agreement, and its rights and obligations under this Agreement, in its sole discretion. 15. ENTIRE AGREEMENT The terms and conditions of this Agreement constitutes the entire agreement between the parties with respect to the subject matter of this Agreement, and merges and supersedes all prior, contemporaneous agreements, understandings, negotiations and discussions. Neither of the parties to this Agreement will be bound by any conditions, definitions, warranties, understandings or representations with respect to the subject matter of this Agreement other than as expressly provided for in this Agreement. Intel is not obligated under any other agreements unless they are in writing and signed by an authorized representative of Intel. Without limiting the foregoing, terms and conditions on any purchase orders or similar materials submitted by You to Intel, and any terms contained in Intel’s standard acknowledgment form that are in conflict with these terms, will be of no force or effect. 16. ATTORNEYS’ FEES In the event any proceeding or lawsuit is brought by Intel or You in connection with this Agreement, the prevailing party in the proceeding will be entitled to receive from the other party its costs, expert witness fees and reasonable attorneys’ fees, including costs and fees on appeal. 17. NO AGENCY Nothing contained in this Agreement will be construed as creating any agency, employment relationship, partnership, principal-agent or other form of joint enterprise between the parties. 18. SEVERABILITY In the event that any provision of this Agreement is unenforceable or invalid under any applicable law or is held by applicable court decision, that unenforceability or invalidity will not render this Agreement unenforceable or invalid as a whole, and, in that event, the provision will be changed and interpreted so as to best accomplish the objectives of the unenforceable or invalid provision within the limits of applicable law or applicable court decisions. 19. WAIVER The failure of either party to require performance by the other party of any provision of this Agreement will not affect the full right to require the performance at any time thereafter; nor will the waiver by either party of a breach of any provision of this Agreement be taken or held as a waiver of the provision itself. 20. LANGUAGE This Agreement is in the English language only, which language will be controlling in all respects, and all versions of this Agreement in any other language will be for accommodation only and will not be binding on You or Intel. All communications and notices made or given pursuant to this Agreement, and all documentation and support to be provided, unless otherwise noted, will be in the English language.