v.1 Confidential Page 1 of 15 VORMETRIC, INC. END USER LICENSE AGREEMENT IMPORTANT: READ CAREFULLY PRIOR TO ANY INSTALLATION OR USE OF THE SOFTWARE USE OF THIS SOFTWARE IS SUBJECT TO THE VORMETRIC END USER LICENSE AGREEMENT (THE "AGREEMENT") SET FORTH BELOW BETWEEN YOU, THE LICENSEE, AND VORMETRIC, INC. ("VORMETRIC"). BY SUBSCRIBING TO THIS PRODUCT YOU AGREE TO TERMS AND CONDITIONS OUTLINED IN THE PRODUCT AGREEMENT. IF YOU DO NOT ACCEPT THESE TERMS FULLY, YOU MAY NOT INSTALL OR OTHERWISE USE THE SOFTWARE. NOTWITHSTANDING ANYTHING TO THE CONTRARY IN THIS NOTICE, UNLESS YOU HAVE A SEPARATE WRITTEN AGREEMENT WITH VORMETRIC FOR SOFTWARE USE, INSTALLING OR OTHERWISE USING THE SOFTWARE INDICATES YOU ACCEPTANCE OF THESE LICENSE TERMS AND THESE TERMS SHALL GOVERN YOUR USE OF THE SOFTWARE. 1 DEFINITIONS 1.1 "Documentation" means the user documentation, release notes, and installation guides provided by Vormetric for the Software. 1.2 "Failure" means a reproducible defect in the Software that causes the Software to fail to operate substantially in accordance with the Documentation and that is reported to Vormetric. 1.3 "Agent Software" means the thin host-installed Vormetric Data Security software in executable code. 1.4 "Software" means any or all of the Agent Software and Data Security Manager and all updates, upgrades, new versions, new releases, or error corrections that Vormetric may offer to the Licensee or that Licensee is authorized to receive pursuant to this Agreement. 1.5 "Update" means any updates or enhancements to the Software that Vormetric provides to Licensees that receive continuing support services. Updates are provided so long as no amounts are owed by Licensee to Vormetric. Error corrections and Updates are subject to the terms and conditions of this Agreement. 1.6 "Amazon Web Services" means the Amazon portal through which Licensee purchases and donwloads Vormetric's Software. 2 LICENSE GRANT 2.1 Agent Software. Vormetric grants Licensee a worldwide, non-exclusive, and non-transferable (except as provided in Section 20 ("General")) license to reproduce, install and use the number of copies of the Agent Software for which licenses have been purchased by Licensee under this Agreement through Amazon Web Services ("AWS"). Licensee may reproduce, install and use additional copies of the Agent Software subject to the prior written agreement of Vormetric and the payment of the applicable license fees by Licensee. 3 USE AND RESTRICTIONS Licensee may not use the Software in any manner or for any purpose other than as expressly permitted by this Agreement. Licensee shall not attempt to, (a) modify, alter, tamper with, repair, or otherwise create derivative works of any software included, or (b) access or use the Software in a way intended to avoid incurring fees or exceeding usage limits or quotas. All licenses granted to Licensee in this Agreement are conditional to the continued compliance this Agreement, and will immediately and automatically terminate if Licensee does not comply with any term or condition of this Agreement. During and after the Term, Licensee will not assert, nor will Licensee authorize, assist, or encourage any third party to assert, against us or any of our affiliates, customers, vendors, business partners, or licensors, any patent infringement or other v.1 Confidential Page 2 of 5 intellectual property infringement claim regarding any Software you have used. Licensee may not remove, delete, or alter any copyright, trademark, or proprietary notices, labels, or marks on the Software. 4 TITLE AND OWNERSHIP The Software is licensed, not sold, to Licensee. All right, title, and interest including, without limitation, all intellectual property rights, in and to the Software, in whole and in part and all copies thereof, are, and shall remain, the sole and exclusive property of Vormetric and/or its licensors. Vormetric hereby reserves all rights not expressly granted to Licensee. 5 REVERSE ENGINEERING Licensee shall not, nor shall Licensee assist any third party to, reverse engineer, decompile, disassemble or in any other manner attempt to derive the source code of any component of the Software for any purpose. Licensee shall notify Vormetric if Licensee becomes aware of any person or entity attempting to reverse engineer, reverse compile, or disassemble any of the Software. 6 FEES AND PAYMENT. Licensee shall pay all fees specified in its Vormetric AWS Order. Except as otherwise specified herein or in the AWS Order and payment obligations are non-cancelable and fees paid are non-refundable. Licensee is responsible for cancelling services with AWS according to the requirements of AWS. 7 REFUNDS. By accepting this Agreement, Licensee accepts and acknowledges that no refund shall be available for the purchase of the Software. 8 TAXES. All fees and charges payable by Licensee are exclusive of applicable taxes and duties, including VAT and applicable sales tax. Licensee will provide Vormetric any information it reasonably requests to determine whether it is obligated to collect VAT from Licensee, including Licensee's VAT identification number. Licensee will notify and pay Vormetric any additional amounts necessary to ensure that the net payment amount received, after any deduction and withholding, equals the amount Vormetric would have received if no deduction or withholding had been required. 9 TERM; TERMINATION 9 Term. The term for this Agreement shall commence on purchase date of the Software, which shall be the effective date of this Agreement ("Effective Date") and will remain in effect until terminated by Vormetric or Licensee in accordance with Section 9.2. 9.2 Termination. (a) Termination for Convenience. Licensee may terminate this Agreement for any reason by ceasing use of the Software. Vormetric may terminate this Agreement for any reason at any time. (b) Termination For Cause. Either party may terminate this Agreement for cause upon 30 days advance notice to the other party if there is any material default or breach of this Agreement by the other party, unless the defaulting party has cured the material default or breach within the 30 day notice period. 10 SUPPORT. Review the support section of the Vormetric's AWS website for details regarding support of Software. The support language found on Vormetric's AWS website shall govern Vormetric's support obligations. 11 CONFIDENTIALITY 11.1 General. For purposes of this Agreement, "Confidential Information" shall mean the source code of the Software, the terms of this Agreement, Licensee's security policies and technical infrastructure, pricing information, product roadmaps, the terms of this Agreement, and all nonpublic information, whether in oral, written or other tangible form. Recipient agrees not to use, disseminate, or in any way disclose any Confidential Information of Discloser to any person, firm or business, except to the extent necessary for the performance of Recipient's obligations hereunder. Recipient agrees to treat all Confidential Information of Discloser with the same degree of care as Recipient accords to Recipient's own Confidential Information, but in no case less than reasonable care. Recipient will take all reasonable measures to ensure that no unauthorized person shall have access to the Proprietary Information and that all Authorized Parties having access refrain from making any unauthorized v.1 Confidential Page 3 of 5 disclosure in violation of this Agreement. Recipient shall comply with all applicable federal and state laws and shall be responsible for any failure by the Authorized Parties to so comply. Recipient shall immediately give notice to Discloser of any unauthorized use or disclosure of Discloser's Confidential Information. Recipient agrees to assist Discloser in remedying any such unauthorized use or disclosure by Recipient or any of its employees or independent contractors of Discloser's Confidential Information. 11.2 Exclusions. The obligations of Recipient under this Section with respect to any portion of the Confidential Information of Discloser, shall not apply to such portion that Recipient can document: (i) was in the public domain at or subsequent to the time such portion was communicated to Recipient by Discloser through no fault of Recipient, or (ii) was developed by employees or agents of Recipient independently of and without reference to any Confidential Information of Discloser. A disclosure of Confidential Information, either (x) in response to a valid order by a court or other governmental body or (y) otherwise required by law, shall not be considered to be a breach of this Agreement by Recipient or a waiver of confidentiality for other purposes; provided, however, Recipient shall provide prompt prior written notice thereof to Discloser to enable Discloser to seek a protective order or otherwise prevent or limit such disclosure. 11.3 Specific Performance. The parties acknowledge that it will be impossible to measure in money the damage to the parties hereto of any failure to comply with the obligations of this Section 11, that every such restriction and obligation is material, and that in the event of any such failure, the parties will not have an adequate remedy at law or in damages. Therefore, each party consents to the non-breaching party seeking an injunction or the enforcement of other equitable remedies against it at the suit of an aggrieved party, without bond or other security, to compel performance of all of the terms of this Section 11, and waives any defenses to an equitable remedy, including without limitation the defenses of failure of consideration, breach of any other provision of this Agreement, and availability of relief in damages. The parties in no way waive their rights to contest any action on the merits or pursue any other remedy which might be available to such party. 12 DISCLAIMER THE SOFTWARE IS PROVIDED "AS IS." WE AND OUR AFFILIATES AND LICENSORS MAKE NO REPRESENTATIONS OR WARRANTIES OF ANY KIND, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE REGARDING THE SOFTWARE, INCLUDING ANY WARRANTY THAT THE SOFTWARE WILL BE UNINTERRUPTED, ERROR FREE OR FREE OF HARMFUL COMPONENTS, OR THAT ANY CONTENT, INCLUDING YOUR CONTENT OR THE THIRD PARTY CONTENT, WILL BE SECURE OR NOT OTHERWISE LOST OR DAMAGED. EXCEPT TO THE EXTENT PROHIBITED BY LAW, WE AND OUR AFFILIATES AND LICENSORS DISCLAIM ALL WARRANTIES, INCLUDING ANY IMPLIED WARRANTIES OF MERCHANTABILITY, SATISFACTORY QUALITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT, OR QUIET ENJOYMENT, AND ANY WARRANTIES ARISING OUT OF ANY COURSE OF DEALING OR USAGE OF TRADE. 13 LIMITATION OF LIABILITY WE AND OUR AFFILIATES OR LICENSORS WILL NOT BE LIABLE TO YOU FOR ANY DIRECT, INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL OR EXEMPLARY DAMAGES (INCLUDING DAMAGES FOR LOSS OF PROFITS, GOODWILL, USE, OR DATA), EVEN IF A PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. FURTHER, NEITHER WE NOR ANY OF OUR AFFILIATES OR LICENSORS WILL BE RESPONSIBLE FOR ANY COMPENSATION, REIMBURSEMENT, OR DAMAGES ARISING IN CONNECTION WITH: (A) YOUR INABILITY TO USE THE SERVICES, INCLUDING AS A RESULT OF ANY (I) TERMINATION OR SUSPENSION OF THIS AGREEMENT OR YOUR USE OF OR ACCESS TO THE SERVICE OFFERINGS, (II) OUR DISCONTINUATION OF ANY OR ALL OF THE SERVICE OFFERINGS, OR, (III) WITHOUT LIMITING ANY OBLIGATIONS UNDER THE SLAS, ANY UNANTICIPATED OR UNSCHEDULED DOWNTIME OF ALL OR A PORTION OF THE SERVICES FOR ANY REASON, INCLUDING AS A RESULT OF POWER OUTAGES, SYSTEM FAILURES OR OTHER INTERRUPTIONS; (B) THE COST OF PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES; (c) ANY INVESTMENTS, EXPENDITURES, OR COMMITMENTS BY YOU IN CONNECTION WITH THIS AGREEMENT OR YOUR USE OF OR ACCESS TO THE SERVICE OFFERINGS; OR (D) ANY UNAUTHORIZED ACCESS TO, ALTERATION OF, OR THE DELETION, DESTRUCTION, DAMAGE, LOSS OR FAILURE TO STORE ANY OF YOUR CONTENT OR OTHER DATA. IN ANY CASE, OUR AND OUR AFFILIATES' AND LICENSORS' AGGREGATE LIABILITY UNDER THIS AGREEMENT WILL BE LIMITED TO THE AMOUNT YOU ACTUALLY PAY US UNDER THIS AGREEMENT FOR THE SERVICE THAT GAVE RISE TO THE CLAIM DURING THE 12 MONTHS PRECEDING THE CLAIM. 14 INDEMNIFICATION AND INFRINGEMENTS Subject to Section 17 ("Limitation of Liability") herein, Vormetric will indemnify, defend and hold harmless Licensee against any and all claims, losses and liabilities incurred by Licensee directly as a result of any filed claim against Licensee that the Software furnished and used within the scope of this Agreement infringes a v.1 Confidential Page 4 of 5 United States patent or United States copyright. This commitment is subject to the following conditions: (i) Licensee notifies Vormetric in writing within thirty (30) days of the claim, (ii) Vormetric has sole control of the defense and all related settlement negotiations, and (iii) Licensee provides Vormetric, at Vormetric's expense, with the assistance, information, and authority necessary to perform the above. Vormetric shall have no liability for any claim of infringement if (a) the infringement or alleged infringement is caused by the combination, operation, or use of any Software furnished to Licensee with equipment, programs, or data not furnished by Vormetric if such infringement would have been avoided by the use of the Software without such equipment, programs, or data, or (b) the infringement is caused by alterations or modifications of the Software not authorized by Vormetric. If the Software is held to infringe, or Licensee's use of the Software is enjoined, or if Vormetric believes that the Software will become the subject of an infringement action, Vormetric shall have the option, at its expense in lieu of its indemnification obligations, (1) to modify the Software to be non-infringing, (2) to obtain for Licensee a license to continue using the Software, (3) to substitute the Software with other software having substantially similar functionality acceptable to Licensee, or (4) if none of the foregoing remedies are reasonably and commercially feasible, terminate this Agreement without further liability to.Vormetric and provide Licensee with a refund of the unamortized portion of applicable purchase price for the Appliance or the Software and the related Appliance based on a five (5) year straight-line depreciation schedule, such depreciation schedule to be deemed to have commenced on the applicable delivery date. THIS SECTION STATES VORMETRIC'S ENTIRE LIABILITY AND LICENSEE'S SOLE AND EXCLUSIVE REMEDY FOR INFRINGEMENT OF THIRD PARTY INTELLECTUAL PROPERTY RIGHTS. VORMETRIC SHALL NOT PROVIDE ANY INDEMNITY WHATSOEVER FOR ANY ACTUAL OR ALLEGED INFRINGEMENT OF ANY FOREIGN PATENT, TRADEMARK, COPYRIGHT, TRADE SECRET OR OTHER PROPRIETARY RIGHTS BY THE PRODUCT. 15 LICENSEE INDEMNIFICATION Licensee shall indemnify, defend and hold Vormetric harmless from and against any and all costs, claims, or liability, including, without limitation, reasonable attorney fees, resulting from any third party claim based on Licensee's use of the Software contrary to the Documentation. 16 PRODUCT RESALE Licensee understands that the Software is not transferable except under the terms of this Agreement. Licensee shall defend, indemnify, and hold harmless Vormetric from and against any cost, claim, or liability, including attorneys fees and court costs, arising out of or relating to any resale or transfer by Licensee of the Software. VORMETRIC SHALL HAVE NO LIABILITY TO LICENSEE OR ANY THIRD PARTY ARISING OUT OF OR RELATING TO ANY RESALE OR TRANSFER BY LICENSEE OF THE SOFTWARE. 17 COMPLIANCE WITH LAWS Licensee shall comply with all applicable laws and regulations (including local laws of the country where the Software is being used) pertaining to the Software including, without limitation, restrictions on use of products containing encryption, import or export laws and regulations, and domestic and international laws and regulations pertaining to privacy and the protection of financial, medical, or personally identifiable information. Without limiting the generality of the foregoing, Licensee shall not export or re-export the Software or allow access to the Software to any third party including, without limitation, any customer of Licensee, in violation of United States laws and regulations, including, without limitation, the Export Administration Act of 1979, as amended, and successor legislation, and the Export Administration Regulations issued by the Department of Commerce. 18 REGULATORY COMPLIANCE Licensee understands, acknowledges, and agrees that the Software is not intended to dictate Licensee's actions required for Licensee to comply with applicable legal and regulatory matters, but as a computer platform to enable Licensee to automate certain of its data protection functions. Licensee understands, acknowledges, and agrees that it is solely Licensee's responsibility to insure that (i) the requirements imposed on it under applicable law and regulation are accurately implemented in any Software that Licensee may use to protect its data, and (ii) Licensee will comply strictly with applicable law in connection with all information processed, transmitted, stored, or otherwise disposed of by Licensee or its Affiliates using the Software. 19 GOVERNMENT RESTRICTED RIGHTS LEGEND The Software is a "commercial item" as that term is defined at 48 CFR 2.101, consisting of "commercial computer software" and "commercial computer software documentation", as such terms are used in 48 CFR 12.212 and is provided to the U.S. Government only as a commercial end item. Consistent with 48 CFR 12.212 and DFARS 227.7202-1 through 227.7202-4, all United States government end users acquire the Software with only those rights set forth herein. Vormetric is Vormetric, Inc. at 2545 North First Street, San Jose, CA 95131. v.1 Confidential Page 5 of 5 20 GENERAL 20.1 Choice of Law. This Agreement shall be governed by the laws of the State of California, without reference to its conflict of laws principles., or the United Nations Convention on Contracts for the International Sale of Goods. The Uniform Computer Information Transactions Act or any version thereof, adopted by any State in any form ("UCITA"), shall not apply to this Agreement and, to the extent that UCITA is applicable, the parties agree to opt-out of the applicability of UCITA pursuant to the opt-out provision(s) contained therein. 20.2 Entire Agreement. This License Agreement constitutes the entire and complete agreement of the parties with respect to the terms hereof. No acceptance of any purchase order from Licensee, or delivery of any goods or services, shall constitute acceptance by Vormetric of the terms of any purchase order or other document from Licensee. No additional, inconsistent, or conflicting clauses in any purchase order, release, or other written correspondence from either party, shall be deemed to be included in these terms and conditions and shall be of no effect, even if later in time than this form, unless the parties agree otherwise in a writing specifically referring to this form, specifically stating that such writing is modifying this form, and executed by authorized signatories of each party. These terms and conditions supersede any usage of trade and control all course of dealing between Licensee and Vormetric. This Agreement replaces and supersedes any prior written or verbal agreements, understandings, communications or representations. 20.3 Notice. Any notice required or permitted to be given under this Agreement shall be in writing and shall be deemed given and received on the earlier of when actually received or three (3) business days upon deposit with the United States Mail with delivery confirmation, postage prepaid, or (or for notices given across national boundaries, by Federal Express, DHL, or other comparable delivery service, delivery prepaid), or for notices sent within the continental United States, the next business day if sent by overnight Federal Express or other nationally recognized overnight courier, and addressed to Vormetric Legal at the business address of the party as shown on the initial paragraph of this Agreement or to such other address as the party may request by written notice. A party that has failed to ensure that the other parties to this Agreement have a current address, fax number, telephone number, and electronic mail address for the party and if desired, the party's attorney, for the purpose of giving notice waives any right to complain about the inadequacy of any notice given in accordance with this Section 20.3. 20.4 Severability. If any provision of this Agreement is held invalid, the remainder of this Agreement shall continue in full force and effect, and the clause held invalid shall be modified to effect the original intent of the parties, and convey the economic benefits originally intended to be conveyed. 20.5 Assignment. Licensee may not assign this Agreement or sublicense the Software without the prior written consent of Vormetric, which shall not be unreasonably withheld or delayed, and any prohibited assignment or sublicense shall be null and void. Notwithstanding the foregoing, consent shall not be required in the context of an acquisition of either party, by asset sale, merger, change of control or operation of law. 20.6 Waiver. The failure by a party to exercise any right hereunder shall not operate as a waiver of such party's right to exercise such right or any other right in the future. 20.7 Force Majeure. Except for Licensee's obligation to pay fees, neither party shall be liable for any failure to perform due to causes beyond its reasonable control. Any deadline or time within which a party must perform under this Agreement shall automatically be extended upon the occurrence of any such cause for a period equal to the time lost because of such event, but not for more than 90 days. If such cause continues for more than 90 days, then the party not otherwise in breach of contract as a result of the cause, or either party if both are otherwise in breach of contract as a result of the cause, may terminate this Agreement upon written notice to the other.