1.1 "Documentation" means Cloudian's standard end-user manuals for the Licensed Software and any updates thereto that Cloudian may provide to Licensee.

1.2 "Effective Date" means the date on which Cloudian provides to Licensee a license key for the License Software.

1.3 "Installation Site" means any facility at which the Licensee is permitted to install and run the Licensed Software. The Installation Sites are initially identified on the License Request Submission, and additional facilities may be designated by Licensee as Installation Sites to Cloudian from time to time in writing.

1.4 "Licensed Software" means (a) Cloudian's multi-tenant cloud storage software product and (b) any bug fixes, updates and upgrades thereto that Cloudian may provide to Licensee. For avoidance of doubt, "Licensed Software" does not include any Third Party Software.

1.5 "Licensed Storage Capacity" means the maximum amount of Stored Data that that may be stored using the Licensed Software. The Licensed Storage Capacity will be 100 terabytes (TB) as of the Effective Date and may be changed solely as set forth in Section 2.3.

1.6 "Licensee Storage Service" means the storage service described on the License Request Submission.

1.7 "Majority-Owned Subsidiary" means, with respect to a party, an entity that is controlled by such party, where "control" of an entity means ownership, directly or indirectly, of more than fifty percent (50%) of the voting rights in such entity (or, if such entity is not a corporation, equivalent rights).

1.8 "Third Party Software" means any software that Cloudian may provide to Licensee together with separate license terms that govern such software.

1.9 "Stored Data" means data (including file overhead) that is stored using the Licensed Software.

1.10 "Support Amendment" means a written amendment to this Agreement containing terms and conditions governing technical support services for the Licensed Software offered by Cloudian.

2.1 License Grant. Subject to the terms and conditions of this Agreement, Cloudian hereby grants to Licensee a non-exclusive, personal, non-transferable, non-sublicensable license to: (a) install the Licensed Software at the Installation Sites; (b) use the Licensed Software solely to operate the Licensee Storage Service, provided that at no time does the amount of Stored Data exceed the Licensed Storage Capacity; and (c) make and use a reasonable number of copies of the Documentation in connection with the permitted use of the Licensed Software.

2.2 License Terms. This Agreement will commence on the Effective Date and, unless earlier terminated in accordance with another provision of this Agreement, will be in effect until the end of an initial one-year period commencing on the Effective Date ("Initial License Term"). Thereafter, unless earlier terminated in accordance with another provision of this Agreement, this Agreement will remain in effect for consecutive one-year periods ("Subsequent License Terms") unless and until either party provides written notice of non-renewal at least sixty (60) days prior to the end of the Initial License Term or any Subsequent License Term. Each of the Initial License Term and each Subsequent License Term will be referred to herein as a "License Term." Without limitation of Section 3.3, Licensee acknowledges and agrees that (i) the Licensed Software will only operate on servers on which a valid license key is installed, (ii) each license key provided by Cloudian will expire at the end of the License Term for which it is issued, after which the Licensed Software may cease to function unless a new license key is installed, (iii) it is Licensee's sole responsibility to avoid disablement of the Licensed Software by obtaining a new license key from Cloudian prior to the expiration of each License Term, installing such new license key correctly on all servers on which the Licensed Software is running, and verifying in the management user interface of the Licensed Software that the Licensed Software has been activated for the following License Term, and (iv) Cloudian may require Licensee to submit Software Usage Files (as defined below) to Cloudian covering all or part of a License Term before issuing a license key for the following License Term.

2.3 Licensed Capacity Increases.

2.4 License Reports. The Licensed Software may generate (a) reports containing information regarding the usage of the Licensed Software, which may include the amount of Stored Data, the number of servers and other machines on which the Licensed Software is installed, and the number of processor cores and/or disk drives contained in such servers and other machines, (b) electronic files containing some or all of the foregoing information ("Audit Files"), and (c) certain logs and other reports (subsections (a)-(c), collectively, "Software Usage Data Files"). Licensee acknowledges and agrees that the information contained in any Software Usage Data Files will be deemed to be accurate and binding on Licensee unless disputed by Licensee in good faith within thirty (30) days of being made available to Licensee. Licensee will permit, and will not interfere with, the generation of any Software Usage Data Files, and Licensee will not delete, remove, move, obscure, decrypt, modify or otherwise tamper with any Software Usage Data Files. If Cloudian requests any Software Usage Data Files, Licensee will promptly (i) send such Software Usage Data Files to Cloudian or, at Licensee's option, (ii) permit and enable Cloudian to remotely retrieve such Software Usage Data Files over the Internet.

2.5 Third Party Software. For avoidance of doubt, the license set forth in Section 2.1 does not apply to any Third Party Software, all of which is provided to Licensee pursuant to separate licensing terms.

3.1 License Restrictions. Licensee will not, and will have no right to: (a) install or copy any Licensed Software, or copy the Documentation, except as expressly set forth in Section 2.1; (b) distribute, disclose or otherwise provide the Licensed Software or Documentation to any third party; (c) grant to any third party any license, sublicense or other rights in or to the Licensed Software or Documentation; (d) use the Licensed Software or Documentation except as expressly set forth in Section 2.1; (e) without limitation of the foregoing, use the Licensed Software or Documentation in connection with the development, marketing, distribution or exploitation of any products or services that are competitive with the Licensed Software, or use the Licensed Software to store an amount of Stored Data in excess of the Licensed Storage Capacity; (f) create derivative works of, translate, adapt or otherwise modify the Licensed Software; (g) decompile, disassemble or reverse engineer the Licensed Software, or otherwise attempt to derive or extract any source code, ideas, algorithms, procedures, workflows or hierarchies from the Licensed Software; (h) transfer the Licensed Software or the Documentation to any sites other than the Installation Sites; (i) perform, or disclose the results of to any third party, any benchmark tests or other comparisons of the Licensed Software with any other software; (j) disclose the specifications of, or Cloudian's product roadmap for, the Licensed Software or any related products to any third party; (k) use Cloudian storage software licensed under any other agreement to operate the Licensee Storage Service; or (l) authorize, instruct or assist any third party to perform any of the foregoing activities. Licensee will comply with all applicable laws (including consumer, privacy, telecommunications and export laws) in connection with its use of the Licensed Software and operation of the Licensee Storage Service.

3.2 Injunctive Relief. Licensee acknowledges and agrees that any breach of Section 3.1 by Licensee will cause irreparable injury to Cloudian and that, in addition to any other remedies that may be available at law, in equity or otherwise, Cloudian will be entitled to obtain injunctive relief against such breach or threatened breach or the continuation of such breach, without the necessity of proving actual damages or posting a bond or other security.

3.3 Enforcement Mechanisms. Licensee acknowledges and agrees that (a) the Licensed Software is being licensed to Licensee with certain limitations on its use, including a limitation that it may be used only during the License Terms and a limitation on the amount of Stored Data, and (b) the Licensed Software may contain certain mechanisms to enforce such limitations, including mechanisms that disable the Licensed Software upon the expiration or termination of the License Term or prohibit storage of any Stored Data in excess of the Licensed Storage Capacity. Cloudian will have no liability of any kind in connection with Licensee's inability to use the Licensed Software in excess of such limitations due to such mechanisms or any other causes.

3.4 Records; Audit. During the period in which the License Agreement remains in effect and for a period of at least three (3) years commencing on the expiration or termination of the License Agreement, Licensee will keep and maintain complete and accurate books and records relating to this Agreement, and Cloudian will have the right, from time to time, to have an independent third party audit Licensee's books and records to verify Licensee's compliance with the terms and conditions of this Agreement. If any such audit reveals any underpayment of three percent (3%) or more of the total of all amounts payable to Cloudian in connection with any License Term, or any other material breach of this Agreement, Licensee will promptly pay to Cloudian all costs and expenses of such audit. Licensee will promptly pay Cloudian the amount of any underpayment by Licensee, and correct any other noncompliance, revealed by any such audit.

Cloudian may operate (but will have no obligation to operate or continue to operate) a support web site for users of the Licensed Software to post questions regarding the operation of the Licensed Software, which questions may be answered by Cloudian and other users (such web site, the "Community Support Site"). If Cloudian operates the Community Support Site, Licensee may access such web site. Licensee acknowledges and agrees that some or all questions posted by Licensee may not be answered, and that some or all answers to such questions may not be accurate or complete.

5.1 Support Services. Licensee will have the option to purchase technical support services for the Licensed Software from Cloudian, subject to the parties' execution of a Support Amendment. Cloudian will have no obligation to provide Licensee with any technical support or maintenance for the Licensed Software, or any bug fixes, updates and upgrades thereto, except to the extent expressly set forth in a Support Amendment that is duly executed by both parties.

5.2 Mandatory Support. Licensee will purchase technical support services for the Licensed Software from Cloudian upon the occurrence of either of the following:

6.1 Attribution logo

6.2 Marketing materials. Cloudian will have the right to use Licensee's name and logo to identify Licensee as a licensee of the Licensed Software on Cloudian's websites and promotional materials. As reasonably requested by Cloudian, Licensee will provide Cloudian with quotes regarding its use of the Licensed Software that Cloudian may use in press releases and other marketing materials. In addition, Licensee hereby consents to receiving product announcements and other promotional emails from Cloudian.

7.1 Ownership. Licensee acknowledges and agrees that, as between Cloudian and Licensee, Cloudian and/or its licensors own and will retain all right, title and interest (including all intellectual property rights) in and to the Licensed Software and Documentation.

7.2 No implied rights. Except as expressly set forth in this Agreement, Cloudian grants no licenses or other rights in or to the Licensed Software or Documentation (whether by implication, estoppel, or otherwise) to Licensee or any third parties. All rights not expressly granted to Licensee are retained by Cloudian and its licensors.

7.3 Proprietary rights markings. Licensee will ensure that all copies of the Licensed Software and Documentation will contain all copyright, trademark, patent, confidentiality and other notices in the same manner as such notices appear on or in the Licensed Software and Documentation as provided to Licensee. Licensee will not remove, alter, cover or obfuscate any such notices placed on or in the Licensed Software or Documentation.

7.4 Feedback. If Licensee provides any feedback in connection with the Licensed Software (including any ideas or suggestions for new features or other improvements), Cloudian will be free to disclose, use and implement such feedback, in whole or part, for any purpose, without restriction and without compensation or attribution to Licensee.

CLOUDIAN MAKES NO REPRESENTATIONS OR WARRANTIES, EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, WITH RESPECT TO THE LICENSED SOFTWARE, DOCUMENTATION, THIRD PARTY SOFTWARE OR COMMUNITY SUPPORT SITE, OR ANY OTHER PRODUCTS, SERVICES OR MATERIALS PROVIDED BY OR FOR CLOUDIAN HEREUNDER, OR THE LICENSEE STORAGE SERVICE, INCLUDING ANY WARRANTIES OF FITNESS FOR A PARTICULAR PURPOSE, MERCHANTABILITY, ACCURACY OR NONINFRINGEMENT, OR ANY WARRANTIES ARISING FROM A COURSE OF DEALING, COURSE OF PERFORMANCE OR USAGE OF TRADE. Without limiting the generality of the foregoing, Cloudian does not represent or warrant that the Licensed Software, Documentation, Third Party Software, the Community Support Site, any services provided by Cloudian, or the Licensee Storage Service will meet the requirements of Licensee (even if such requirements are known to Cloudian), or will be uninterrupted or error free. For purposes of clarification, Cloudian makes no representations or warranties to any of customers of Licensee, any users of the Licensee Storage Service, or any other third parties.

IN NO EVENT WILL CLOUDIAN BE LIABLE UNDER ANY LEGAL THEORY FOR ANY INCIDENTAL, INDIRECT, CONSEQUENTIAL, SPECIAL, OR PUNITIVE DAMAGES, OR DAMAGES FOR LOSS OF PROFITS, DATA OR BUSINESS, IN CONNECTION WITH THIS AGREEMENT, EVEN IF CLOUDIAN HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. CLOUDIAN'S AGGREGATE LIABILITY TO LICENSEE ARISING OUT OF OR IN CONNECTION WITH THE LICENSED SOFTWARE, DOCUMENTATION, THIRD PARTY SOFTWARE, COMMUNITY SUPPORT SITE AND ALL OTHER ASPECTS OF THIS AGREEMENT WILL NOT EXCEED THE GREATER OF (A) THE TOTAL OF ALL AMOUNTS PAID BY LICENSEE TO CLOUDIAN UNDER THIS AGREEMENT AND (B) FIVE HUNDRED UNITED STATES DOLLARS (US$500). CLOUDIAN will have no liability with respect to claims relating to or arising from the use of THIRD PARTY SOFTWARE OR ANY OTHER non-CLOUDIAN products and services, even if CLOUDIAN has recommended, referred or introduced LICENSEE to such products and services. THE FOREGOING LIMITATIONS WILL APPLY NOTWITHSTANDING ANY FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY PROVIDED HEREIN. CLOUDIAN WILL HAVE NO LIABILITY IN CONNECTION WITH THIS AGREEMENT TO ANY CUSTOMERS OF LICENSEE, ANY USERS OF THE LICENSEE STORAGE SERVICE, OR ANY OTHER THIRD PARTIES.

10.1 Termination for Cause. Either party may terminate this Agreement immediately upon written notice to the other party if the other party (a) commits a breach of Section 3.1 or (b) commits any other material breach of this Agreement and fails to remedy such material breach within thirty (30) days after receipt of written notice from the non-breaching party specifying the occurrence or existence of such material breach.

10.2 Effect of Termination. Upon any expiration or termination of this Agreement: (a) all rights, licenses and obligations of the parties under this Agreement will immediately terminate, except that the provisions of Sections 3.1, 3.4, 7.1, 8, 9, 10.2, 10.3 and 11 will survive such expiration or termination; (b) Licensee will promptly generate and send to Cloudian (by e-mail) Audit Files and any other Software Usage Data Files requested by Cloudian covering any periods for which Cloudian did not previously receive an Audit File and any other periods requested by Cloudian, and (c) Licensee will promptly (i) remove, delete and purge all copies of the Licensed Software and Documentation from all computer systems and storage media in or under the possession or control of Licensee, (ii) at Cloudian's option, either destroy or deliver to Cloudian all Licensed Software and Documentation in tangible form in or under the possession or control of Licensee, and (iii) provide Cloudian with a written certification, signed by an officer of Licensee, of Licensee's compliance with all of the foregoing. Neither party will be relieved of any payment obligations or other liability incurred under this Agreement prior to any expiration or termination of this Agreement.

10.3 No Liability. In the event of any termination of this Agreement by either party in accordance with any of the provisions of this Agreement, neither party will be liable to the other party because of such expiration or termination, for compensation, reimbursement or damages on account of the loss of prospective profits or anticipated sales or on account of expenditures, inventory, investment, leases or commitments in connection with the business or goodwill of Cloudian or Licensee.

11.1 Force Majeure. Neither party will be responsible or have any liability for any delay or failure to perform any of its obligations under this Agreement (excluding payment obligations) to the extent such failure is due to unforeseen circumstances or to causes beyond such party's reasonable control, including acts of God, earthquake, fire, flood, embargoes, labor disputes and strikes, riots, acts of terrorism, war, and acts of civil and military authorities.

11.2 Severability. If any provision of this Agreement is declared or found by a court or arbitral panel of competent jurisdiction to be invalid, illegal or otherwise unenforceable, (a) the parties will negotiate, in good faith, a substitute, valid and enforceable provision which most nearly effects the parties' intent in entering into this Agreement, and (b) the remainder of this Agreement will remain in full force and effect.

11.3 Assignment. Neither party will, or will have the right to, assign, delegate or otherwise transfer this Agreement or any of its rights or obligations under this Agreement, whether voluntarily, by operation of law or otherwise, without the prior written consent of the other party; provided, however, that either party may (without the other party's consent) assign this Agreement, together with all of its rights and obligations hereunder, to a third party that acquires (whether by asset purchase, merger or other transaction or series of transactions) all or substantially all of its business to which this Agreement relates. Any attempted assignment, delegation or other transfer prohibited by the foregoing will be null and void. Subject to the foregoing, this Agreement will inure to the benefit of and bind each party's successors and assigns.

11.4 Governing Law. This Agreement is to be construed in accordance with and governed by the internal laws of the State of California without giving effect to any choice of law rule that would cause the application of the laws of any jurisdiction other than the internal laws of the State of California to the rights and duties of the parties. This Agreement shall not be governed by the U.N. Convention on Contracts for the International Sale of Goods, the application of which is expressly excluded.

11.5 Dispute Resolution. Any dispute relating to this Agreement (other than claims for injunctions and other equitable relief) will be settled exclusively by arbitration in San Mateo, California in accordance with the then-prevailing Commercial Arbitration Rules of the American Arbitration Association. Judgment upon the award rendered by such arbitration will be final and binding upon the parties and may be entered in any court having jurisdiction. The arbitrator(s) will not have the power to add to, subtract from or otherwise modify any provision of this Agreement, to grant any extension or renewal of this Agreement, or to award damages or other remedies expressly prohibited by the Agreement. Notwithstanding the foregoing, each party will have the right to seek injunctive or other equitable relief at any time from any court of competent jurisdiction.

11.6 No Waiver. No waiver of any provision of this Agreement will be effective unless it is specified in a writing signed by an authorized representative of each party. No course of dealing, course of performance or failure of either party to enforce any provision of this Agreement in a strict or timely manner will be construed as a waiver of such provision or any other provision. No waiver or breach of any provision of this Agreement will be construed to be a waiver of any subsequent breach of the same or any other provision.

11.7 Relationship of the Parties. This Agreement will not be construed as creating an agency, partnership, joint venture or any other form of association between the parties, and the parties will at all times be and remain independent contractors. Except as expressly agreed by the parties in writing, neither party will have any right or authority, express or implied, to assume or create any obligation of any kind, or to make any representation or warranty, on behalf of the other party or to bind the other party in any respect whatsoever.

11.8 Notices. Unless otherwise set forth in this Agreement, any notice required or permitted hereunder will be deemed to be a valid notice for the purposes of this Agreement only if it (a) is in writing, (b) makes reference to this Agreement, and (c) is delivered in person, by reputable courier, or mailed by certified or registered mail, postage prepaid, return receipt requested, in each case to the address of the intended recipient specified on the first page of this Agreement (or to such other address as may be designated by the intended recipient to the other party in accordance with this Section 11.8). Each such notice will be deemed given when received by the intended recipient.

11.9 Interpretation. The captions and headings used in this Agreement are inserted for convenience only, do not form a part of this Agreement and will not be used in any way to construe or interpret this Agreement. This Agreement may be executed in two or more counterparts, all of which, taken together, will be regarded as one and the same instrument. This Agreement will be deemed to have been drafted by all parties; no provision will be construed against either party by reason of the fact that it was drafted by such party. The words "include" and "including" will not be construed as terms of limitation and will therefore mean "including but not limited to" and "including without limitation."

11.10 Entire Agreement; Amendment. This Agreement contains the entire agreement of the parties with respect to the subject matter of this Agreement and merge and supersede any and all prior and contemporaneous agreements, understandings and communications between the parties, whether oral or written, with respect to such subject matter. This Agreement cannot be modified or amended except in a writing signed by both parties. All orders placed by Licensee with Cloudian in connection with this Agreement will be governed by and subject to the terms of this Agreement. No terms or conditions contained in any purchase order or other document submitted by Licensee will in any way modify or add to the terms of this Agreement, and any such terms or conditions that are in any way inconsistent with or additional to the terms of this Agreement are hereby rejected by Cloudian and will have no force or effect.