CLOUDOPTIMIZER END USER LICENSE AGREEMENT PLEASE READ THIS END USER LICENSE AGREEMENT ("AGREEMENT") CAREFULLY BEFORE USING THE CLOUDOPTIMIZER SOFTWARE (THE "SOFTWARE") OFFERED BY CLOUDOPT, INC. ("CLOUDOPT"). BY USING THE SOFTWARE IN ANY MANNER AND BY CLICKING "I ACCEPT" or "PLACE YOUR ORDER" OR "SUBMIT" OR ANY OTHER WORDING THAT INDICATES ACCEPTANCE OR AGREEMENT TO THESE TERMS, YOU (THE "LICENSEE") AGREE THAT YOU HAVE READ AND AGREE TO BE BOUND BY AND A PARTY TO THE TERMS AND CONDITIONS OF THIS AGREEMENT TO THE EXCLUSION OF ALL OTHER TERMS. IF YOU DO NOT UNCONDITIONALLY AGREE TO ALL THE TERMS AND CONDITIONS OF THE AGREEMENT, YOU HAVE NO RIGHT TO USE THE SOFTWARE. USE OF THE SOFTWARE IS EXPRESSLY CONDITIONED UPON YOUR ASSENT TO ALL THE TERMS AND CONDITIONS OF THIS AGREEMENT, TO THE EXCLUSION OF ALL OTHER TERMS. 1. LICENSE GRANT. Subject to Licensee's compliance with all of the terms and conditions of this Agreement, payment of all fees, and any applicable user/use limitations, CloudOpt grants to Licensee a limited, personal, non-sublicensable, nontransferable, nonexclusive license to download, install and use (in object code only) the Software solely for Licensee's internal business purposes during the term of this Agreement. CloudOpt shall at all times retain all title to and ownership of the Software and all copies thereof. Licensee agrees to use the Software only as set forth in this Agreement and only in the ordinary course of business. 2. LICENSE RESTRICTIONS. Licensee shall not (and shall not allow any third party to) (a) reproduce or modify the Software, (b) provide, rent, sell, lease, disclose, use for time sharing or service bureau purposes, or otherwise transfer or distribute the Software or any part thereof or use it for the benefit of a third party, (c) reverse assemble, reverse compile or reverse engineer the Software, or otherwise attempt to discover any Software source code or underlying proprietary information of CloudOpt (except to the limited extent that applicable law prohibits reverse engineering restrictions), (d) without the express prior written consent of CloudOpt, disclose to any third party the results of any benchmarking or comparative study or analysis involving the Software, or (e) possess or use the Software, or allow the transfer, transmission, export, or re-export of the Software or a portion thereof in violation of any export control laws or regulations administered by the U.S. Commerce Department, U.S. Treasury Department's Office of Foreign Assets Control, or any other government agency. Notwithstanding the foregoing, Licensee may make one (1) copy of the Software for backup purposes only. Licensee shall maintain the copyright notice and any other notices that appear on the Software on any copies (including backup copies) and any media. CloudOpt reserves the right, in its sole discretion, to modify this Agreement at any time by posting a notice on its website, and/or by notifying Licensee via email or postal mail. Licensee shall be responsible for reviewing and becoming familiar with any such modifications. Licensee's use of the Software following such notification constitutes Licensee's acceptance of the terms and conditions of this Agreement as modified. LICENSEE ACKNOWLEDGES THAT THE SOFTWARE MAY INCLUDE FEATURES TO PREVENT USE AFTER TERMINATION OR EXPIRY OF THE APPLICABLE LICENSE PERIOD. LICENSEE ALSO ACKNOWLEDGES AND AGREES THAT ANY SUBSEQUENT LICENSE PERIODS FOLLOWING THE INITIAL LICENSE PERIOD SHALL BE SUBJECT TO THE TERMS OF THIS AGREEMENT. 3. SUPPORT. Many questions can be answered by accessing CloudOpt's online knowledge base at kb.cloudopt.com. Additionally, CloudOpt offers technical support via email at support@cloudopt.com. CloudOpt will use commercially reasonable efforts to respond to Licensee's requests for support within two business days, but does not make any representations or warranties that it will respond to a request for support within a certain amount of time, or that it will be able to remedy any problem the Licensee is experiencing. 4. MAINTENANCE. During the Licensee's then-current License Period (as that term is defined below), and subject to payment of all applicable license fees, CloudOpt may provide Licensee, without additional charge, with error corrections, feature enhancements and workarounds ("Updates") that CloudOpt in its discretion makes generally available. CloudOpt reserves the right to offer major product enhancements as an upgrade and/or separate product, subject to the payment by Licensee of additional license fees. For the avoidance of doubt, unless otherwise specified by CloudOpt in writing, any Updates made available by CloudOpt pursuant to this Agreement shall be deemed "Software" and shall be subject to the terms of this Agreement. 5. END OF SUPPORT AND MAINTENANCE NOTICE. CloudOpt may, in its sole discretion, decide to end the support and maintenance for a retired version of the Software. CloudOpt will provide Licensee with twelve (12) months' notice prior to ending such support and maintenance, and will direct the Licensee to applicable upgrades and/or alternative versions. 6. FEES AND PAYMENT. "License Period" shall mean the applicable period specified by Licensee at the time of signing up for a subscription to the Software, together with each renewal period signed up for by the Licensee, as applicable. In the case of subscriptions purchased directly from CloudOpt, fees are payable by Licensee within thirty (30) days of the date of the invoice sent by CloudOpt to Licensee. In the case of subscriptions obtained through one of CloudOpt's partners (including without limitation RightScale, Inc. and Amazon.com, Inc.), license fees are payable by Licensee directly to such partner according to such partner's payment terms. All fees payable hereunder are non-refundable, and all payments shall be made in United States dollars within the United States. In addition, Licensee will be responsible for withholding, filing and reporting all taxes, duties and other governmental assessments associated with Licensee's subscription to and use of the Software. CLOUDOPT RESERVES THE RIGHT TO IMMEDIATELY SUSPEND THE LICENSEE'S USE OF THE SOFTWARE FOR NON-PAYMENT OF APPLICABLE LICENSE FEES. 7. RIGHTSCALE LICENSE. This Section applies only to Licensees who obtain the Software bundled with software and services provided by RightScale, Inc. (the "RightScale Products"). By using the Software bundled with RightScale Products, and by agreeing to the terms and conditions of this Agreement, Licensee grants RightScale, Inc. a limited, royalty-free, non-exclusive license to use, copy, publish, embed and distribute ServerTemplates and RightScripts that have been modified and/or created by Licensee. For further details and the definitions of RightScale's ServerTemplates and RightScripts, please see www.rightscale.com/products. 8. FEEDBACK. Licensee may, at its discretion, provide feedback to CloudOpt with respect to the Software ("Feedback"). Feedback may include, without limitation, errors or difficulties discovered in the Software and the characteristic conditions and symptoms of the errors and difficulties. Unless specifically agreed in writing, Feedback provided by the Licensee shall not create any confidentiality obligation for CloudOpt, and CloudOpt shall be free to use, disclose, reproduce, license or otherwise distribute, and exploit such Feedback as it sees fit. 9. WARRANTY DISCLAIMER; WARNING. The Software is provided "AS IS" and may not be functional on any machine or in any environment. CLOUDOPT FOR ITSELF AND ITS LICENSORS DISCLAIMS ALL WARRANTIES RELATING TO THE SOFTWARE AND ANY SERVICES PROVIDED UNDER THIS AGREEMENT (INCLUDING WITHOUT LIMITATION SUPPORT AND/OR MAINTENANCE SERVICES), EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, ANY WARRANTIES AGAINST INFRINGEMENT OF THIRD-PARTY RIGHTS, MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE, OR THAT THE SOFTWARE WILL BE UNINTERRUPTED OR ERROR FREE. BECAUSE SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF IMPLIED WARRANTIES, THE ABOVE LIMITATIONS AND EXCLUSIONS MAY NOT APPLY TO ALL LICENSEES. 10. WARNING: THE SOFTWARE CONTAINS A ROUTINE THAT MAY CAUSE THE SOFTWARE TO CEASE PROPER FUNCTIONING ON A SPECIFIED DATE. THIS MAY OCCUR BEFORE OR AFTER TERMINATION OF THE LICENSE, SO LICENSEE MUST BE PREPARED FOR SUCH EVENT AT ALL TIMES. PROVIDED THAT LICENSEE HAS A VALID SUBSCRIPTION, CLOUDOPT WILL USE COMMERCIALLY REASONABLE EFFORTS TO PROVIDE REPLACEMENT SOFTWARE FOR THE DURATION OF THE APPLICABLE LICENSE PERIOD. 11. INDEMNIFICATION. CloudOpt shall hold Licensee harmless from liability to third parties resulting from infringement by the Software of any United States patent issued sixty (60) days or more before the initial date of that Licensee's License Period, provided CloudOpt is promptly notified of any and all threats, claims and proceedings related thereto and given reasonable assistance and the opportunity to assume sole control over the defense and settlement; CloudOpt will not be responsible for any settlement it does not approve. The foregoing obligations do not apply with respect to the Software or portions or components thereof (a) not created by CloudOpt, (b) made in whole or in part in accordance with Licensee specifications, (c) that are modified after delivery by CloudOpt, (d) that are combined with other products, processes or materials where the alleged infringement relates to such combination, (e) where Licensee continues the allegedly infringing activity after being notified thereof or after being informed of modifications that would have avoided the alleged infringement, or (f) where Licensee's use of the Software is not strictly in accordance with this Agreement. Licensee will indemnify CloudOpt from all damages, costs, settlements, attorneys' fees and expenses related to (x) any claim of infringement or misappropriation excluded from CloudOpt's indemnity obligation in this Section or (y) any other claim in connection with the Software or the use or distribution thereof. 12. LIMITATION OF REMEDIES AND DAMAGES. ANY LIABILITY OF CLOUDOPT AND ITS LICENSORS WITH RESPECT TO THE SOFTWARE OR THE PERFORMANCE THEREOF AND ANY SERVICES PROVIDED UNDER THIS AGREEMENT (INCLUDING WITHOUT LIMITATION SUPPORT AND/OR MAINTENANCE SERVICES) UNDER ANY CONTRACT, NEGLIGENCE, STRICT LIABILITY OR OTHER THEORY, AND THE LICENSEE'S SOLE AND EXCLUSIVE REMEDY, WILL BE LIMITED TO PRODUCT REPLACEMENT OR, IF REPLACEMENT IS INADEQUATE AS A REMEDY OR, IN CLOUDOPT'S OPINION, IMPRACTICAL, TO REFUND OF AN APPROPRIATE PORTION THE REMAINING UNAMORTIZED LICENSE FEE PAID BY LICENSEE. CLOUDOPT SHALL NOT BE RESPONSIBLE OR LIABLE WITH RESPECT TO ANY SUBJECT MATTER OF THIS AGREEMENT UNDER ANY CONTRACT, NEGLIGENCE, STRICT LIABILITY OR OTHER THEORY (A) FOR ANY AMOUNTS IN EXCESS IN THE AGGREGATE OF THE FEES PAID TO CLOUDOPT HEREUNDER BY THE LICENSEE WITH RESPECT TO THE SOFTWARE DURING THE SIX MONTH PERIOD PRIOR TO THE CAUSE OF ACTION, (B) FOR LOSS OR INACCURACY OF DATA OR COST OF PROCUREMENT OF SUBSTITUTE GOODS, SERVICES OR TECHNOLOGY, OR (C) FOR ANY SPECIAL, INDIRECT, INCIDENTAL OR CONSEQUENTIAL DAMAGES INCLUDING WITHOUT LIMITATION LOSS OF REVENUES AND LOSS OF PROFITS. CLOUDOPT SHALL NOT BE RESPONSIBLE FOR ANY MATTER BEYOND ITS REASONABLE CONTROL. THE FOREGOING LIMITATIONS SHALL APPLY EVEN IF CLOUDOPT SHALL HAVE BEEN INFORMED OF THE POSSIBILITY OF SUCH DAMAGES. BECAUSE SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF INCIDENTAL OR CONSEQUENTIAL DAMAGES, THE ABOVE LIMITATIONS AND EXCLUSIONS MAY NOT APPLY TO ALL LICENSEES. 13. HIGH RISK ACTIVITIES. The Software is not designed, manufactured, or intended for use in hazardous environments requiring fail-safe performance where the failure of the Software could lead directly to death, personal injury, or significant physical or environmental damage ("High Risk Activities"). Use of the Software in High Risk Activities is not authorized. 14. GOVERNMENT USE. If Licensee is part of an agency, department, or other entity of the United States Government ("Government"), the use, duplication, reproduction, release, modification, disclosure or transfer of the Software is restricted in accordance with the Federal Acquisition Regulations as applied to civilian agencies and the Defense Federal Acquisition Regulation Supplement as applied to military agencies. The Software is a "commercial item," "commercial computer software" and "commercial computer software documentation." In accordance with such provisions, any use of the Software by the Government shall be governed solely by the terms of this Agreement. 15. MISCELLANEOUS. This Agreement constitutes the entire agreement between the parties pertaining to the subject matter hereof, and any and all written or oral agreements previously existing between the parties are expressly cancelled. This Agreement shall become effective only upon Licensee's clicking the "I Accept," "Place your order" or "Submit" button (as applicable), and it shall be governed by and construed in accordance with the laws of the State of California without regard to the conflicts of laws provisions therein. The sole and exclusive jurisdiction and venue for actions arising under this Agreement shall be the State and Federal courts in Santa Clara County, California. Licensee hereby agrees to service of process in accordance with the rules of such courts. In any action to enforce this Agreement the prevailing party will be entitled to costs and attorneys' fees. In the event that any of the provisions of this Agreement shall be held by a court or other tribunal of competent jurisdiction to be unenforceable, such provisions shall be limited or eliminated to the minimum extent necessary so that this Agreement shall otherwise remain in full force and effect and enforceable. Although fully assignable and transferable by CloudOpt, neither the rights nor the obligations arising under this Agreement are assignable or transferable by Licensee, and any such attempted assignment or transfer shall be void and without effect. 16. TERMINATION. This Agreement may be terminated by CloudOpt immediately upon notice of any breach by Licensee of the provisions of this Agreement, or for Licensee's failure to pay the applicable license fees. This Agreement will also terminate automatically upon the expiration of any applicable License Period or such other license period as have been expressly agreed to by CloudOpt. Upon termination, the license granted hereunder will terminate and Licensee shall immediately destroy any and all documents, notes and other materials regarding the Software (including any physical copies made thereof), and all other proprietary information and all copies and extracts of the foregoing, and an officer of Licensee shall certify the same to CloudOpt; otherwise, the other terms of this Agreement will remain in effect. 17. BASIS OF BARGAIN. EACH PARTY RECOGNIZES AND AGREES THAT THE WARRANTY DISCLAIMERS AND LIABILITY AND REMEDY LIMITATIONS IN THIS AGREEMENT ARE MATERIAL, BARGAINED FOR BASES OF THIS AGREEMENT AND THAT THEY HAVE BEEN TAKEN INTO ACCOUNT AND REFLECTED IN DETERMINING THE CONSIDERATION TO BE GIVEN BY EACH PARTY UNDER THIS AGREEMENT AND IN THE DECISION BY EACH PARTY TO ENTER INTO THIS AGREEMENT. 18 October 2011