End User License Agreement for Scalable Graphics CGX 3D desktop remoting for Windows Server 2008R2 and 2012 Scalable Graphics Subscription Purchased Services Agreement IMPORTANT - READ CAREFULLY BEFORE ACCESSING OR USING This Scalable Graphics Subscription Purchased Services Agreement (this "Agreement") sets forth the terms and conditions under which Scalable Graphics USA and/or its Affiliates ("SGX") makes available to you ("You") the Purchased Services described below during the subscription period. Do not access or use the Purchased Services until you have carefully read the following terms and conditions. By accepting this Agreement, either by clicking a box indicating your acceptance or by using or accessing the Purchased Services, you agree to be legally bound by the terms and conditions of this Agreement. If you are entering into this Agreement on behalf of a company or other legal entity, you represent that you have the authority to bind such entity and its Affiliates to these terms and conditions, in which case the terms "You" or "Your" shall refer to such entity and its Affiliates. If you do not have such authority or do not agree to the terms of this Agreement, do not access or use the Purchased Services. This Agreement is effective between You and SGX as of the date You accept it. TERMS AND CONDITIONS 1. Definitions "Affiliate" means any entity which directly or indirectly controls, is controlled by, or is under common control with the subject entity. "Control," for purposes of this definition, means direct or indirect ownership or control of more than 50% of the voting interests of the subject entity. "System" means a server node on which You install or execute all or a portion of the Software. "Purchased Services" means any services, including Support Services that You or Your Affiliates purchase under this Agreement. "Support Services" means the support and maintenance services identified in Section 2.6 below. "Software" means the SGX CGX family of products for which you purchase the Purchased Services, including without limitation, as applicable (i) SGX CGX 3D desktop remoting for Windows Server 2008R2; and (ii) CGX 3D desktop remoting for Windows Server 2012, including any updates or upgrades thereto provided to You under this Agreement. "You" or "Your" means the company or other legal entity for which you are accepting this Agreement, and Affiliates of that company or entity. 2. Subscription Access and Use SGX provides a nonexclusive, nontransferable right to access and use the Software as a service, solely for Your own internal and personal use, subject to the following requirements. 2.1 If You are a company, You must assign the subscription to one person within the company, and only that person may use or access the subscription or any subscription benefits. 2.2 The subscription provides You with access to the Software and associated benefits. When Your subscription concludes, You will no longer have access to the Software or any associated benefits and You must discontinue Your use of the Software. 2.3 SGX reserves the right to change the benefits available under the subscription at any time without any notice to You, such as the version of the Software being made available or the Support Services. 2.4 Your use of any software components which You may download in connection with the provision of Support Services are governed by the end user license agreements provided with such components, such as click-through license terms. In addition some software that you access remotely as part of the Purchased Services without downloading may be provided by third parties, including, without, limitation, Microsoft, and your use of such third party software is governed by both the terms of this Agreement and by the terms of the additional applicable third party end user license agreements that are appended at the end of this Agreement (the "Third Party EULAs"). To the extent that any applicable Third Party EULA is more restrictive or imposes greater or additional obligations on you than this Agreement, the Third Party EULA will govern and control insofar as your right to access and use the applicable third party software is concerned. Your license to use any downloaded software components or other third party software that you may access as part of the Purchased Services will terminate automatically upon termination of your right to use the Purchased Services hereunder. 2.5 SGX makes no representation that the Software or Purchased Services or any of the transactions facilitated by the Purchased Services are legal outside of the United States. You are solely responsible for complying with any and all laws of jurisdictions outside of the United States, which may apply to your use of the Software or Purchased Services. 2.6 SGX reserves the right to suspend or terminate Your subscription, without any notice or obligation to You, if SGX detects suspicious activity related to use of the Software or Purchased Services. SGX reserves the right to determine in its sole discretion whether an activity constitutes suspicious activity. 2.7 You are solely responsible for maintaining the confidentiality and security of your user name and password for access to the Purchased Services and for any violations of Agreement by anyone who obtains access to your user name and password and uses them to access the Purchased Services. You are also solely responsible for any damages that you may suffer by reason of any access to your account by anyone who obtains access to your user name and password. 2.8 You are entitled to SGX's standard email support for unlimited number of incidents for assistance on use of the Software as a service ("Support Services"). This may include assistance on installation, configuration, and deployment or for resolution of a problem using the Software. SGX makes no warranty that the Support Services will be provided on a timely basis or that they will be effective to address your concerns. 2.9 You acknowledge and agree that you have the following responsibilities: (a) To make sure that the information you provide to SGX is accurate. (b) To update all information you provided to SGX to maintain its accuracy. (c) To make full and timely payments for any purchases made involving the Software or Purchased Services. (d) To be fully responsible for all transactions or other activities that occur or are undertaken under your user name and password. (e) To safeguard the confidentiality of your user name and password. (f) To immediately report to SGX if your user name or password for the Purchased Services are stolen or compromised or if you notice any unusual activity in connection with your account. (g) To pursue any problems with any non-SGX software, products, services or content accessed through the Purchased Services directly with the provider of such products or services. (h) To refrain from any resale of the Purchased Services or any part thereof, from collecting or using any information any information provided by other users without their express written consent, or from otherwise engaging in any form of data mining or data extraction with respect to any data accessible through the Purchased Services. (i) To not use the Software or Purchased Services or any part thereof in a manner that would: (i) infringe any third party copyright, patent, trademark, trade secret, or other proprietary rights or rights of publicity or privacy; (ii) be fraudulent or involve the sale of counterfeit or stolen items; (iii) violate any law, statute, ordinance, or regulation (including without limitation those governing export control, consumer protection, unfair competition, anti-discrimination, or false advertising); (iv) be false, misleading, or inaccurate; (v) create liability for SGX or any company providing software, products, services or content though the Purchased Services or cause SGX or any company providing software, products, services or content though the Purchased Services to lose (in whole or in part) the benefit of any third party relationship; (vi) be defamatory, trade libelous, unlawfully threatening, or unlawfully harassing; or (vii) be obscene, pornographic, or contain child pornography. (j) To refrain from gaining access or attempting to gain access to any information, software or data on SGX's servers or otherwise within its control which is encrypted, protected by security procedures or devices or (except for your personal information) otherwise not generally made available to the public. (k) To refrain from using the Software or Purchased Services or any part thereof in a manner which will or might interfere with the full use and enjoyment by other users of the Software or Purchased Services. (l) To refrain from using the Software or Purchased Services or any part thereof to facilitate or promote the spread of software or materials that contain a virus, corrupted files, or similar programs that may damage or impair the operation of another's computer, software, data or the System, the Software or Purchased Services. (m) To review this Agreement from time to time to be aware of any changes to it. 2.10 You agree to defend, indemnify, and hold harmless SGX and the companies that provide software, products, services and content that may be accessed through the Purchased Services, their licensees, successors, and assignees, affiliated merchants, content providers, technology and service providers, or web site providers, the parent, affiliated and subsidiary companies of each of them and the officers, directors, employees, and agents of each of them from and against any and all third party claims, damages, liabilities, costs and expenses, including reasonable legal fees and expenses, arising out of or related to any breach or alleged breach by you of this Agreement or any use of the Software or Purchased Services by you or any party under your control. SGX reserves the right, at our expense, to assume the exclusive defense and control of any matter otherwise subject to indemnification by You, in which event You will cooperate with us in asserting any available defenses. You will not settle any action or claims on our behalf without our prior written consent. 3. Reservation of Rights. No rights or licenses are granted by SGX under this Agreement, expressly, by implication, inducement, estoppel or otherwise with respect to any proprietary information or patent, copyright, trade secret, maskworks or other intellectual property right owned or controlled by SGX, except as expressly provided in this Agreement. Any additional license rights under SGX's intellectual property rights must be express and in writing, signed by an authorized officer of SGX. SGX and its suppliers will remain the sole owner(s) of all right, title and interest (including, without limitation, all intellectual property rights therein) in the Software, and modifications or derivative works thereof created by or on behalf of SGX. You hereby acknowledges SGX's and/or its suppliers' ownership of the copyright, trademark, patent, trade secret and any other intellectual property rights in the Software and components. 4. Third Party Software. The Software may contain the software and other property of third party suppliers. No third party software that is provided with the Software will be used independently from the Software. 5. SGX's Trademarks and Logos. No rights or licenses are granted by this Agreement, expressly or by implication, to use any SGX or third party trademarks or trade names, or any word or mark similar thereto, in connection with the Software. 6. Other Restrictions. 6.1 Except as expressly set forth in this Agreement, You will not use, rent, lease, loan, sell, or distribute the Software in whole or in part, nor sublicense to any third party the right to reproduce or distribute the Software. 6.2 You will not reverse engineer, disassemble, decompile, or otherwise attempt to derive or modify the Software, nor assist in any way, directly or indirectly, in any effort to do so. 6.3 You will not alter, remove or obscure any proprietary notices from the Software relating to SGX's (or its suppliers') intellectual property rights. 6.4 You will not access the Software or be entitled to Purchased Services if You do not have an active subscription. 6.5 You will not share, transfer, resell, or assign Your subscription or your access to the Software or Purchased Services. 6.6 You will not perform, disclose or publish benchmark data or any other comparison data related to the performance of the Software or Purchased Services. Breach of this provision will immediately terminate Your access to the Software and Purchased Services, without refund and will subject You to suit by SGX. 6.7 You will not use Software in any application or situation where Software failure could lead to death or serious bodily injury of any person, or to severe physical or environmental damage ("High Risk Use"). You agree that the Software is not fault-tolerant and is not guaranteed to be error free or to operate uninterruptedly. High Risk Use include but are not limited to: aircraft or other modes of human mass transportation, nuclear or chemical facilities, life support systems, implantable medical equipment, motor vehicles, or weaponry systems. 6.8 Other subscription benefits that do not include Software may be subject to additional terms. 7. Purchased Services. 7.1. Provision of Purchased Services. SGX shall make available to You the Purchased Services pursuant to the terms of this Agreement. The Purchased Services are the use and benefit only of You (or, if You are company, the single individual to whom the subscription is assigned under section 2.1 above), and only for the Systems for which You purchase them. Any unauthorized use of the Purchased Services will be deemed to be a material breach of this Agreement. You agree that Your purchases hereunder are neither contingent on the delivery of any current or future functionality or features nor dependent on any oral or written public comments made by SGX regarding current or future functionality or features. 7.2. Reservation of Rights in Purchased Services. Subject to any limited rights expressly granted hereunder, SGX reserves all rights, title and interest in and to the Purchased Services, including all related intellectual property rights. No rights are granted to You hereunder other than as expressly set forth herein. 7.3. Restrictions. (a) You shall not (i) permit any third party to access the Purchased Services except as permitted herein, (ii) create derivative works based on the Purchased Services except as authorized herein, (iii) reverse engineer the Purchased Services, or (iv) access the Purchased Services in order to (a) build a competitive product or service, or (b) copy any features, functions or graphics of the Purchased Services. You shall not use the Purchased Services in a way that burdens or adversely affects the functionality of the System or that hampers, impedes, delays or otherwise impairs the full use and enjoyment of the Software by other users of the Software and Purchased Services. If SGX believes that you have violated any terms of this section 7.3(a), then in addition to other remedies available to SGX at law or in equity, SGX may immediately terminate your account. (b) The Purchased Services will enable you to install and run certain third party software on the System using the Purchased Services. Note that third party software that may be licensed for your installation and use on local computers or local networks may not be licensed for installation and/or use on the System or using the Purchased Services. It is your responsibility to determine whether particular third party software is licensed for installation and use on the System using the Purchased Services, and, if it is not so licensed, to either not use such Software on the System or using the Purchased Services or to obtain the necessary license to allow you to do so. SGX reserves the right to disable the use of particular third party software that is not licensed for use on the System or to immediately terminate your account without notice if SGX determines that you are using third party software that is not properly licensed. (c) The Purchased Services will also enable you to store and access data and media products, such as video and audio files on the System. The rights licensed to you in such data and media products may not include the right to store or access such products on the System. It is your responsibility to determine whether particular third party data and media products are licensed for storage and/or access on the System using the Purchased Services, and, if they is not so licensed, to either not use such data and media products on the System or using the Purchased Services or to obtain the necessary license to allow you to do so. SGX reserves the right to disable the use of particular third party data and media products that are not licensed for use on the System or to immediately terminate your account without notice if SGX determines that you are using third party data or media products that are not properly licensed. 7.4. Suggestions. SGX will have a royalty-free, worldwide, irrevocable, perpetual license to use and incorporate into our products and services any suggestions, enhancement requests, recommendations or other feedback provided by You relating to the operation of the Purchased Services. 8. Third Parties and Disclaimer 8.1. Third Parties. SGX does not and cannot control the performance of any data, product, connectivity or services controlled by third parties. At times, action or inaction by third parties may impair or disrupt the Purchased Services. SGX makes no representations and expressly disclaims all warranties regarding the data, products, or services of any other party, including the providers of electrical or telecommunication products, connectivity or services. Additionally, the Purchased Services may contain products and data of independent third parties. SGX makes no warranty of any kind as to the any third party products or data. 8.2. Disclaimer. EXCEPT AS EXPRESSLY PROVIDED IN THIS SECTION 8, THE PURCHASED SERVICES AND THE SOFTWARE AND ALL THIRD PARTY SOFTWARE USED IN CONNECTION THEREWITH ARE PROVIDED "AS IS" AND WITHOUT WARRANTIES OR CONDITIONS OF ANY KIND (EXPRESS OR IMPLIED), INCLUDING WITHOUT LIMITATION, THE IMPLIED WARRANTIES OF MERCHANTABILITY, SATISFACTORY QUALITY AND FITNESS FOR A PARTICULAR PURPOSE, AND ALL OTHER CONDITIONS, TERMS, UNDERTAKINGS AND REPRESENTATIONS OF ANY KIND WHATSOEVER, EXPRESS OR IMPLIED, WHETHER BY STATUTE, COMMON LAW OR OTHERWISE, ARE HEREBY EXCLUDED TO THE FULLEST EXTENT PERMITTED BY LAW. NO ORAL OR WRITTEN INFORMATION OR ADVICE GIVEN BY US, OUR AFFILIATES, DEALERS, DISTRIBUTORS, AGENTS OR EMPLOYEES WILL CREATE A WARRANTY OR IN ANY WAY INCREASE THE SCOPE OF ANY WARRANTY PROVIDED HEREIN. WE DO NOT GUARANTEE OR WARRANT THAT THE USE OF THE PURCHASED SERVICES OR SOFTWARE WILL BE UNINTERRUPTED OR ERROR-FREE. 9. LIMITATION OF LIABILITY 9.1. Exclusion of Consequential and Related Damages. IN NO EVENT WILL SGX OR ANY THIRD PARTY WHOSE SOFTWARE IS USED IN CONNECTION WITH THE PURCHASED SERVICES HAVE ANY LIABILITY TO YOU FOR ANY LOST PROFITS OR REVENUES OR FOR ANY DIRECT, INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL, COVER OR PUNITIVE DAMAGES HOWEVER CAUSED, WHETHER IN CONTRACT, TORT OR UNDER ANY OTHER THEORY OF LIABILITY, AND WHETHER OR NOT THE PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF CERTAIN WARRANTIES OR CONDITIONS OR THE LIMITATION OR EXCLUSION OF LIABILITY FOR LOSS OR DAMAGE CAUSED BY NEGLIGENCE, BREACH OF CONTRACT OR BREACH OF IMPLIED TERMS, OR INCIDENTAL OR CONSEQUENTIAL DAMAGES. ACCORDINGLY, NOTHING IN THIS AGREEMENT SHALL EXCLUDE OR LIMIT OUR WARRANTY OR LIABILITY FOR LOSSES WHICH MAY NOT BE LAWFULLY EXCLUDED OR LIMITED BY APPLICABLE LAW. ONLY THE LIMITATIONS WHICH ARE LAWFUL IN YOUR JURISDICTION WILL APPLY TO YOU, AND OUR LIABILITY WILL BE LIMITED TO THE MAXIMUM EXTENT PERMITTED BY LAW. By way of example (and without limitation) SGX and the companies providing software, products, services or content though the Purchased Services will not be responsible for: (a) loss or damage to any data or information provided by You in connection with Your use of the Purchased Services; (b) any inability that you may have to access or use the Purchased Services at any particular time (c) any damages arising from the termination of your use of the Purchased Services or any part thereof; and (d) any damages arising from the interception, theft, or misuse of information transmitted to or through the Purchased Services. 9.2. Limitation of Liability. IN NO EVENT SHALL SGX'S AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT (WHETHER IN CONTRACT OR TORT OR UNDER ANY OTHER THEORY OF LIABILITY) EXCEED THE TOTAL AMOUNT PAID BY YOU TO FOR THE PURCHASES SERVICES. 9.3. Sole Remedies; Materiality. You agree that SGX's liability arising under this Agreement or in connection with the Software or Purchased Services shall be expressly limited to the liability and damages provided herein. You agree that the limitations referenced in this Section 9 are material terms of this Agreement. 9.4 If you believe that your work has been copied, distributed or otherwise used by SGX in a way that constitutes copyright infringement or otherwise violates your rights, you agree to follow our procedure for giving notice of such claims. Please click here for instructions. 10. Term and Termination 10.1. Term of Agreement. This Agreement commences on the date You accept it by accessing the Software and Purchased Services and continues until your subscription has been terminated. 10.2 Termination for Convenience. You may cancel the Purchased Services at any time if You do not renew by paying the subscription fee prior to the expiration of the subscription period. SGX may suspend or terminate Your subscription if SGX believes that You have failed to comply with any part of this Agreement. SGX may also terminate your subscription and any right to use the Software and Purchased Services at any time without cause by notice to you and by refunding a pro rata portion of any subscription fee that you have paid covering the subscription period that has not yet expired at the time of termination. If Your subscription ends for any reason: (i) You must stop using the Software and Purchased Services associated with the subscription, and (ii) You will no longer be entitled to receipt of Software Services. SGX may terminate this Agreement at any time and without cause by providing You with thirty (30) days written notice. SGX will have no liability or obligation to You for terminating this Agreement without cause. SGX will not be responsible in any manner for any damages of any kind, including without limitation, anticipated profits or other expenses incurred by You as a result of termination of this Agreement pursuant to this Section 10.2. 10.3. Termination for Cause. SGX may terminate this Agreement for cause in the event of Your material breach of this Agreement. 10.4. Surviving Provisions. Sections 1, 3, 4, 5, 6, 7.2, 7.3, 7.4, 8.3, 9, 10.4 will survive any termination or expiration of this Agreement. 11. Disclosure Of Information To process your transactions, You agree that the information You provide to SGX may be disclosed to payment processors, third party providers of software, products, services and content that you may access through the Purchased Services and other parties involved in your transactions. Such information may include your name, address, contact information and billing information. SGX may also disclose information regarding you to third party providers of software used in conjunction with the Purchased Services to the extent required by SGX's agreements with such third parties. To provide You and other users better service and for other reasons, You agree that SGX may use and disclose general, statistical data that may include information about You and/or Your purchases to third parties. Your name and e-mail address will not be included in this general, statistical information. In addition to the foregoing, SGX may gather and use information about You as permitted by our Privacy Statement, which is incorporated herein by reference. 12. Notices 12.1. Manner of Giving Notice. All notices required or permitted to be given hereunder shall be in writing, shall make reference to this Agreement, and shall be delivered by hand, or dispatched by prepaid air courier or by registered or certified airmail, postage prepaid, addressed as follows: Notices to SGX: Scalable Graphics USA 115 Perimeter Center Place, Suite 640 Atlanta, GA 30346 Notices to You: To the address that you furnish when you purchase the Purchased Services. Such notices shall be deemed served when received by addressee or, if delivery is not accomplished by reason of some fault of the addressee, when tendered for delivery. Either You or SGX may give written notice of a change of address and, after notice of such change has been received, any notice or request shall thereafter be given at such changed address. 13. GOVERNING LAW AND JURISDICTION 13.1. Agreement to Governing Law and Jurisdiction. This Agreement is made under and will be construed in accordance with the laws of the State of California without giving effect to that state's choice of law rules. Each Party hereby agrees to jurisdiction and venue in the courts of the State of California or federal courts located in California for all disputes and litigation arising under or relating to this Agreement, and this Agreement shall be considered to have been signed in the United States by both Parties. The Parties agree that the terms of the United Nations Convention on Contracts for the International Sale of Goods (CISG) do not apply to this Agreement. 13.2. Waiver of Jury Trial. Each party hereby waives any right to jury trial in connection with any action or litigation in any way arising out of or related to this Agreement. 14. General Provisions 14.1. Export Compliance. The Purchased Services, other technology SGX makes available, and derivatives thereof may be subject to export laws and regulations of the United States and other jurisdictions. Each party represents that it is not named on any U.S. government denied-party list. You shall not access or use Purchased Services in a U.S.-embargoed country (currently Cuba, Iran, North Korea, Sudan or Syria) or in violation of any U.S. export law or regulation. 14.2. Anti-Corruption. You have not received or been offered any illegal or improper bribe, kickback, payment, gift, or thing of value from any of SGX's employees or agents in connection with this Agreement. Reasonable gifts and entertainment provided in the ordinary course of business do not violate the above restriction. If You learn of any violation of the above restriction, You will use reasonable efforts to promptly notify SGX at the address listed in Section 11.1 above. 14.3. Relationship of the Parties. The parties are independent contractors. This Agreement does not create a partnership, franchise, joint venture, agency, fiduciary or employment relationship between the parties. 14.4. No Third-Party Beneficiaries. There are no third-party beneficiaries to this Agreement. 14.5. Assignment. You may not assign any of Your rights or obligations hereunder, whether by operation of law or otherwise, without the prior written consent of SGX and any purported assignment by You will be void. SGX may assign this Agreement in its entirety or any portion thereof, without Your consent. Subject to the foregoing, this Agreement shall bind and inure to the benefit of the parties, their respective successors and permitted assigns. 14.6. Continuing Business. Nothing in this Agreement will be understood to preclude or limit SGX from providing software, materials, or services for ourselves or other clients, irrespective of the possible similarity of such software, materials or services to those which might be delivered to You. 14.7. Limited Release Purchased Services. From time to time SGX may invite You to try, at no charge, products or services that are not generally available to SGX's customers ("Limited Release Purchased Services"). You may accept or decline any such trial in Your sole discretion. Any Limited Release Purchased Services will be clearly designated as beta, pilot, limited release, developer preview, non-production or by a similar description. Limited Release Purchased Services are provided for evaluation purposes and not for production use, are not supported, may contain bugs or errors, and may be subject to additional terms. LIMITED RELEASE SERVICES ARE NOT CONSIDERED "SERVICES" HEREUNDER AND ARE PROVIDED "AS IS" WITH NO EXPRESS OR IMPLIED WARRANTY. SGX may discontinue Limited Release Purchased Services at any time in SGX's sole discretion and may never make them generally available. 14.8. Entire Agreement. This Agreement, including all attachments and appendices and all quotes issued by SGX or an authorized third party, constitutes the entire agreement between the parties and supersedes all prior and contemporaneous agreements, proposals or representations, written or oral, concerning its subject matter. No failure or delay by either party in exercising any right under this Agreement shall constitute a waiver of that right. If any provision of this Agreement is held by a court of competent jurisdiction to be contrary to law, the provision shall be modified by the court and interpreted so as best to accomplish the objectives of the original provision to the fullest extent permitted by law, and the remaining provisions of this Agreement shall remain in effect. No modification, amendment, or waiver of any provision of this Agreement shall be effective unless in writing and either signed or accepted electronically by the party against whom asserted. Notwithstanding any language to the contrary therein, no terms or conditions stated in Your purchase order or other order documentation shall be incorporated into or form any part of this Agreement, and all such terms or conditions shall be null and void. 14.9 CHANGES SGX reserves the right to add to, remove, or change any of the content or functions of the Software and Purchased Services or the other software, products, services and content that may be accessed using the Purchased Services without giving specific notice to you. In addition, SGX may change the terms of this Agreement from time to time. When such a change is made, SGX will post a revised version of this Agreement at the same location where You have accessed it. Changes will be effective when they are posted. It is Your responsibility to review this Agreement from time to time to be aware of any such changes. Your continued use of the Purchased Services will indicate your agreement to any such changes.