Loadbalancer.org, Inc. End User license Agreement "Relating to software pre-installed on a Loadbalancer.org appliance or any whole software image (mkcdrec iso), partition image (of any format) or vitual machine (VMware)" This end user license agreement (``Agreement'') is made between Loadbalancer.org, Inc. a company registered in the Unites States of America under EIN 204329566, whose registered office is at 270 Presidential Drive, Wilmington, DE 19807 ("LB") and the end user (``You''). Before using the Software, You must read the terms below. By using the Software and/or Documentation You agree to be and will be bound by the terms of this Agreement. If You do not agree to be so bound You should not use the Software and/or Documentation and You should destroy or delete the Software and/or Documentation from all storage media in your possession or control. 1 Right To Use Software 1.1 Grant of License. In consideration of the obligations entered into by You under this Agreement, LB hereby grants You a non-exclusive, non-transferable license (``License'') to use this software product (``Software'') and related written materials in either printed text or machine readable form (``Documentation'') in accordance with the terms and conditions of this Agreement. 1.2 This license is personal to You and is granted for your benefit only. 1.3 Permitted use. You may, subject to the following terms and conditions: 1.3.1 only use the Software on the servers for which You have a valid license key and only for the duration of the validity of such license key; Or in the abscense of a license key you must have an invoice with proof of purchase or confirmation of license registration from Loadbalancer.org, Inc. If your copy is from an authorised reseller or OEM they must have a current contract that states the specific version of the software they are licensed to resell. 1.3.2 copy the Software for backup and archival purposes only (as many as required). 1.4 Operating Instructions. You must comply with all reasonable instructions from LB relating to the operation of the Software. However, You remain solely responsible for your use of the Software. 1.5 Restrictions on Use. You must not: 1.5.1 use the Software or Documentation except in accordance with the terms of this Agreement; or 1.5.2 cause or permit the copying (with the intent of distribution) or reproduction of the Software or Documentation or transfer the Software to another machine over a network except as permitted under this Agreement; or 1.5.3 sell, rent, lease, sub-license, distribute, assign or enter into any time share or service bureau arrangements with respect to the Software (save that if You have purchased a full license key from LB for the servers on which You use the Software, You may use the Software to provide a web hosting facility to third parties); or 1.5.4 translate, modify, adapt or create derivative works from the Software; or 1.5.5 reverse engineer, decompile or disassemble the Software or create any derivative works based on the Software, except as expressly permitted by and subject to all the conditions laid down by law; or 1.5.6 use any back-up copy of the Software (or allow anyone else to use such copies) for any purpose other than to replace the original copy in the event that it is destroyed or becomes defective; or 1.5.7 export or re-export, directly or indirectly, the Software or any direct product thereof or any technical data relating thereto without LB' prior written consent. In the event that such consent is given, You shall comply with all regulations relating to such export and/or re-export including without limitation those of the United Kingdom, the European Union and the United States of America. 1.5.8 you MAY use up to two copies of the ISO or virtual machine downloaded from Loadbalancer.org, Inc. as a demonstration of the software's capabilities for a period of 30 days ONLY. This is a one time allowance per version of the software per user / company unless authorised otherwise by Loadbalancer.org, Inc. You CANNOT repeatedly download or re-install the demonstration every 30 days. 1.5.9 Downloading a new or upgraded version of the Loadbalancer.org ISO and using it will mean that you are transfering to the latest version of the license supplied with that software. Assuming that the license transfer is currently permited and or paid for. 1.6.0 You must not exceed the licensing restrictions of your model: ENTERPRISE R16: Maximum of 4 VIPs * 4 RIPs ENTERPRISE: Unrestricted ENTERPRISE VA R16: Maximum of 4 VIPs * 4 RIPs ENTERPRISE VA: Unresricted ENTERPRISE MAX: Unrestricted ENTERPRISE 10G: Unrestricted HOT SPARE / DEV: 3rd unit licensed for production use. 1.6.1 The software image as a whole is considered an artistic piece of work that is copyright LB. Any attempt to build equivalent software from the various pieces of open source software must bear no significant similarity to any copyrighted LB work. This in no way restricts your rights under the GPL. Online Software Updates, Virtual machines, mkcdrec images & pre-installed flash cards or partition images are all covered by the same copyright. 2. Modifications, Upgrades and Support 2.1 This license of the Software does not include any modifications, enhancements, upgrades or updates of the Software which LB may release from time to time unless You have a valid and current support contract, details of which can be found on the Loadbalancer.org website. In this case, these will be licensed under the same terms and conditions as per the original software. 2.2 LB has no obligation to support or maintain the Software under this Agreement. 3 Your Additional Obligations 3.1 Protection against Unauthorised Use. You shall immediately notify LB in writing of any unauthorised use of any Software or Documentation of which You become aware. 4 Payments 4.1 Any payments made or due to LB in respect of license keys for the Software shall be governed by LB standard terms of business from time to time which shall where appropriate be incorporated into this Agreement and which are set out at http://www.loadbalancer.org/tandc.txt 5 Warranties 5.1 LB warrants to You that the Software will perform substantially in accordance with the applicable specifications set out in the Documentation for a period of thirty (30) days from the date from which the first full license key is dispatched to you by LB (``Warranty Period'') (or your registration date or invoice date which ever is shorter). 5.2 If the Software fails to conform to the warranty set out in clause 6.1, You may as your sole and exclusive remedy download a copy of the most recent version of the Software free of charge from the LB web site if You confirm in writing to LB within the Warranty Period, together with a dated proof of your payment for the relevant license key, that You have destroyed or deleted the original copy of the Software and/or Documentation from all servers and storage media in your possession and control. On You exercising the remedy in this clause 6.2 the Warranty Period will be extended by thirty (30) days. 5.3 EXCEPT AS EXPRESSLY SET OUT IN CLAUSE 6.1, LB DOES NOT WARRANT THAT EITHER THE SOFTWARE OR DOCUMENTATION WILL MEET YOUR REQUIREMENTS, OR THAT IT OR THEY WILL BE FREE FROM VIRUSES, TROJAN HORSES, BUGS, OMISSIONS OR ERRORS, OR THAT DEFICIENCIES OR DEFECTS IN THE SOFTWARE OR DOCUMENTATION WILL BE CORRECTED. EXCEPT AS OTHERWISE EXPRESSLY PROVIDED IN THIS AGREEMENT, ALL WARRANTIES, CONDITIONS, TERMS AND UNDERTAKINGS OF ANY KIND (INCLUDING WITHOUT LIMITATION AS TO QUALITY, PERFORMANCE OR FITNESS FOR PURPOSE) IN RELATION TO THE SOFTWARE AND DOCUMENTATION, EXPRESS OR IMPLIED, WHETHER BY STATUTE, COMMON LAW, CUSTOM, TRADE USAGE, COURSE OF DEALINGS OR OTHERWISE ARE HEREBY EXCLUDED TO THE FULLEST EXTENT PERMITTED BY LAW. 6 Limitation of Liability 6.1 EXCEPT IN THE CASES OF DEATH OR PERSONAL INJURY CAUSED BY THE NEGLIGENCE OF LB AND LOSS OR DAMAGE CAUSED BY THE FRAUDULENT MISREPRESENTATION OF LB, OR IN OTHER CIRCUMSTANCES WHERE LIABILITY MAY NOT BE SO LIMITED UNDER APPLICABLE LAWS, THE LIABILITY OF LB UNDER OR IN CONNECTION WITH THIS AGREEMENT, WHETHER ARISING IN CONTRACT, TORT, NEGLIGENCE, BREACH OF STATUTORY DUTY OR OTHERWISE, SHALL IN NO CIRCUMSTANCES EXCEED THE FEES (IF ANY) PAID OR PAYABLE BY YOU IN RESPECT OF THE license KEY FOR THE SERVER ON WHICH YOU USE THE SOFTWARE FOR THE YEAR IN WHICH THE CLAIM ARISES, REGARDLESS OF THE FORM OF ACTION, EVEN IF THAT LOSS OR DAMAGE WAS REASONABLY FORESEEABLE OR LB WAS AWARE OF THE POSSIBILITY OF THAT LOSS OR DAMAGE ARISING. 6.2 LB SHALL NOT BE LIABLE TO YOU IN CONTRACT, TORT, NEGLIGENCE, BREACH OF STATUTORY DUTY OR OTHERWISE FOR ANY LOSS, DAMAGE, COSTS OR EXPENSES OF ANY NATURE WHATSOEVER INCURRED OR SUFFERED BY YOU OF A SPECIAL, INDIRECT, OR CONSEQUENTIAL NATURE INCLUDING WITHOUT LIMITATION ANY ECONOMIC LOSS OR ANY DELETION, CORRUPTION, DESTRUCTION, LOSS OR REMOVAL OF DATA, OR LOSS OF USE, TURNOVER, PROFITS, CONTRACTS, BUSINESS OR GOODWILL, OR ANY LOSS OR DAMAGE SUFFERED BY YOU AS A RESULT OF A CLAIM BROUGHT BY A THIRD PARTY, EVEN IF THAT LOSS OR DAMAGE WAS REASONABLY FORESEEABLE OR LB WAS AWARE OF THE POSSIBILITY OF THAT LOSS OR DAMAGE ARISING. 7 Ownership 7.1 Ownership. LB owns or is licensed to use the Software and Documentation. You will not become the owner of any part of the Software or Documentation or any copies thereof. 8 Term and Termination 8.1 Term. This Agreement shall commence on the date You download, install or otherwise use the Software and shall continue until terminated in accordance with this Clause 9. 8.2 Termination On Expiry of Time. This license will terminate on the expiry of any temporary license key for use of the Software unless a full license key is purchased before such expiry . 8.3 Termination On Breach. This Agreement and the license hereby granted to use the Software and Documentation will automatically terminate if You: 8.3.1 are in breach of any of your obligations under this Agreement, which include without limitation your obligation only to load and use the Software on the servers for which You have a valid license key; or 8.3.2 destroy all copies of the Software in your possession; or 8.3.3 voluntarily return the Software to LB. 8.4 Consequences of Termination. Upon termination of this Agreement for any reason: 8.4.1 the license shall terminate; 8.4.2 You shall destroy or delete all copies of the Software and Documentation from all storage media in your possession or control; and 8.4.3 You shall return to LB all documents and other material in tangible form in your possession or control which contain Confidential Information (as defined in Clause 10.1 below) of LB. 9 Confidentiality and ownership notices 9.1 Both parties acknowledge that, per use of this Software, the other party may have access to and become acquainted with various trade secrets, inventions, innovations, processes, information, records and specifications owned or licensed by the other party and/or used in connection with the operation of its business ("Confidential Information").Both parties agree that they will not disclose any of the aforesaid Confidential Information, directly or indirectly, or use any of them in any manner, either during the term of this Agreement or at any time thereafter, except as required by this Agreement. 9.2 You CAN! disclose to a third party the results of any performance tests carried out on the Software without the prior written consent of LB. But please be polite enough to tell us first. 9.3 You will take no action to violate, obliterate, remove or alter (in whole or in part) any copyright or trade mark notices on or in the Software and Documentation. 10 Miscellaneous 10.1 Assignment. This Agreement is personal to You and You shall not assign, delegate, subcontract, mortgage, charge or otherwise transfer all or any of your rights or obligations under this Agreement without the prior written consent of LB. LB may assign all or any of its rights or obligations under this Agreement. 10.2 Governing Law. This Agreement shall be governed by and construed in accordance with the laws of the United States Constitution. 10.3 Jurisdiction and Venue. Any dispute arising under or in connection with this Agreement shall be subject to the non-exclusive jurisdiction of the Unites States courts to which each party hereby submits. 10.4 Waiver. No failure or delay by either party in exercising or enforcing its rights will prejudice or restrict the rights of that party, and no waiver of any such rights or of any breach of any contractual terms will be deemed to be a waiver of any other right or of any later breach. 10.5 Headings. The headings in this Agreement are inserted for convenience only, and do not affect its construction or interpretation. 10.6 Severability; Invalidity. If any provision of this Agreement is prohibited by law or judged by a court to be unlawful, void or unenforceable, the provision shall, to the extent required, be severed from the Agreement and rendered ineffective as far as possible without modifying the remaining provisions of this Agreement, and shall not in any way affect any other circumstances of or the validity or enforcement of this Agreement. 10.7 Notices. Any notice under this Agreement shall be in writing and shall be sent or delivered by hand, or by first class mail or air mail, or by fax or e-mail (confirmed by first class mail or air mail), to the address or fax number or e-mail address of the other party. 10.8 Entire Agreement. This Agreement is subject to, and does not amend vary or replace, any LB standard software license agreement which you may have entered into. This Agreement is subject to any LB evaluation license agreement which You may have entered into, but such evaluation license agreement shall be replaced on its expiry by the terms and conditions of this Agreement. Save as set out above, this Agreement contains the whole agreement and understanding between the parties with respect to the subject matter hereof and supersedes and replaces all prior or contemporaneous written, electronic or oral agreements, representations or understandings between them. The parties confirm that they have not entered into this Agreement on the basis of any representation that is not expressly incorporated into this Agreement. However, nothing in this Agreement purports to exclude liability for any fraudulent misrepresentation or act. 10.9 Amendments. No amendment, waiver or variation of this Agreement shall be binding on the parties unless set out in writing, expressed to amend or vary this Agreement and signed by an authorised representative of each of the parties. Loadbalancer.org Incorporated 2002-2012.