END USER LICENSE AGREEMENT BY SUBSCRIBING TO THIS PRODUCT THROUGH THE AMAZON WEB SERVICES, INC.'S ("AWS") AWS MARKETPLACE, YOU AGREE TO THE TERMS AND CONDITIONS OF THIS END USER LICENSE AGREEMENT ("AGREEMENT"). YOU WILL BE REFERRED TO AS THE "CUSTOMER." CUSTOMER ACKNOWLEDGES THAT CUSTOMER HAS READ AND AGREES TO ALL THE TERMS AND CONDITIONS OF THIS AGREEMENT WITH CLUSTRIX, INC. ("CLUSTRIX"). THE DATE THAT CUSTOMER AGREES TO THIS AGREEMENT IS THE "EFFECTIVE DATE." 1. SERVICES 1.1 Definitions. a. "AMI" means an Amazon Machine Image, which is a special type of pre-configured operating system and virtual application software which is used to create a virtual machine within the Amazon Elastic Compute Cloud (EC2). b. "Software" means the Clustrix relational database software. c. "Software Fee" means the fees set forth on the Clustrix pricing page on the AWS Marketplace, if any, that Customer is obligated to pay Clustrix for the Software in accordance with the terms of this Agreement. 1.2 Clustrix's Obligations. Clustrix shall: a. provide the Software for the applicable term as set forth in Section 4.1. b. use commercially reasonable efforts to secure and obtain a current certification on the U.S. Department of Commerce Safe Harbor List to comply with the U.S.-EU & Swiss Safe Harbor Frameworks. c. at its option and from time to time, modify the Software, (e.g. to provide new features, implement new protocols, maintain compatibility with emerging standards or comply with regulatory requirements.. 2. PAYMENT TERMS. Customer agrees to pay the applicable Software Fee and any other additional fees (such as overage fees and/or fees for a mirrored database) based on the pricing that Customer selected in the AWS marketplace. 3. CUSTOMER DATA 3.1 Customer Data. As between Clustrix and Customer, Customer shall own all data, information or material that Customer enters into the Software or has entered on its behalf ("Customer Data"). Customer is solely responsible for the accuracy, quality, integrity, legality, reliability, appropriateness and copyright of all Customer Data. 4. TERM AND TERMINATION 4.1 Term. The initial term of Agreement shall commence upon the Effective Date and shall continue for the number of months or hours for which Customer has paid. Customer may terminate this Agreement at any time by ceasing use of the Software. 4.2 Termination and Suspension. This Agreement may be terminated by either party for cause immediately by written notice upon the occurrence of any of the following events: (a) if the other ceases to do business; (b) if the other breaches any material provision of this Agreement and fails to cure such breach within thirty (30) days of its receipt of written notice from the non-breaching party specifying the nature of the breach in reasonable detail; or (c) if the other becomes insolvent or seeks protection under any bankruptcy, receivership, trust, deed, creditor's arrangement, or comparable proceeding, or if any such proceeding is instituted against the other and not dismissed within sixty (60) days. In addition to other rights and remedies it may have, Clustrix, without liability to Customer, reserves the right to suspend Software usage if Customer has breached any provisions of this Agreement until Customer is no longer in breach. Additionally, Customer acknowledges and agrees that AWS may terminate Customer's rights to use the Software and/or Customer's AWS account in accordance with the terms of the AWS Customer Agreement and in such event, Customer's license to use the Software will immediately terminate. 4.3 Other Termination by Clustrix. If Clustrix determines that a law or regulatory action prohibits, substantially impairs or makes impractical the provision of any Software, Clustrix may, at its option, upon written notice to Customer and without liability, terminate the Software, or modify the affected Software, or the terms and conditions applicable to such Software, in order to conform to such law or action. 4.4 Effect of Termination. Upon termination or expiration of this Agreement, Clustrix shall cease providing support for the Software hereunder. 4.5 Survival. Sections 1.1, 2, 3, 4.4, 4.5, 5.1, 6, 7, 8.2 and 9 shall survive the expiration or termination of this Agreement. 5. LIMITED WARRANTY 5.1 Warranty Disclaimer. THE SOFTWARE PROVIDED TO CUSTOMER HEREUNDER IS PROVIDED ON AN "AS IS" BASIS, AND CLUSTRIX MAKES NO REPRESENTATION OR WARRANTY RELATING THERETO, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR ANY OTHER WARRANTIES THAT MIGHT ARISE FROM THE COURSE OF DEALING, USAGE OR TRADE PRACTICE. NO ADVICE OR INFORMATION PROVIDED BY CLUSTRIX WILL CREATE A WARRANTY. CUSTOMER ASSUMES TOTAL RESPONSIBILITY FOR ANY AND ALL RISK ARISING FROM CUSTOMER'S USE OF, OR INABILITY TO USE, THE SOFTWARE, SERVICE OR ANY PRODUCT OF CLIENT SOFTWARE. CLUSTRIX SHALL HAVE NO RESPONSIBILITY FOR LOSS OF DATA OR INABILITY TO USE THE SOFTWARE DUE TO THE ACTS OR OMISSIONS OF AWS. Any support services for the Software must be purchased separately and directly from Clustrix. 6. INDEMNIFICATION 6.1 Indemnity by Clustrix. Clustrix agrees to defend any claim against Customer alleging that the technology used to provide the Software provided by Clustrix when used in accordance with this Agreement infringes any United States patent, copyright or trade secret, and to pay any final judgment rendered on such claim, provided Customer gives Clustrix prompt notice of the claim, allows Clustrix control of the defense or settlement of the claim, and fully cooperates with Clustrix in such defense or settlement, provided that no settlement shall be made without Customer's prior written consent and further provided that Customer may participate in the defense thereof with counsel of its own choosing and at its own expense. The foregoing obligations will not apply to claims related to or arising from (a) modifications to the Software made other than by or for Clustrix, (b) use of Software other than as intended by Clustrix, or (c) any combination of the Software with any product, service or software not supplied by Clustrix if the claim would not have arisen but for the combination. If the Software or the software used by Clustrix to provide the Software becomes, or in Clustrix's opinion is likely to become, the subject of an infringement claim, Clustrix may,: (i) obtain for Customer the right to continue using the Software; (ii) modify the Software in order to avoid the claim of infringement; or (iii) if in Clustrix's opinion neither (i) nor (ii) is commercially reasonable, terminate the Software on thirty (30) days prior written notice. This Section states Clustrix's sole liability and Customer's sole remedy for any damages arising in connection with any claim of infringement or misappropriation by the Software, or the software used to provide the Software, of any third party intellectual property rights. 6.2 Indemnity by Customer. Customer agrees to defend any third party claim against Clustrix alleging that any Customer business practices or data is in violation of any law, rule, or regulatory action, or breaches of any applicable law or regulation and to pay any final non-appealable judgment rendered on such claim, provided Clustrix gives Customer prompt notice of the claim, allows Customer sole control of the defense or settlement of the claim, and fully cooperates with Customer in such defense or settlement. 7. LIMITATION OF LIABILITY 7.1 No Liability For Consequential Damages. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, EXCEPT FOR A BREACH OF SECTION 8 BY CUSTOMER, IN NO EVENT SHALL EITHER PARTY BE LIABLE TO THE OTHER FOR ANY INCIDENTAL, INDIRECT, SPECIAL, EXEMPLARY DAMAGES, DAMAGES FOR LOSS OF BUSINESS PROFITS, LOSS OF BUSINESS INFORMATION, OR OTHER PECUNIARY LOSS ARISING OUT OF THE USE OF THE SOFTWARE, EVEN IF SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH LOSS OR DAMAGES. THE LIMITATIONS ON LIABILITY AND TYPES OF DAMAGES STATED IN THIS SECTION APPLY, REGARDLESS OF THE FORM OF ANY LAWSUIT OR CLAIM EITHER PARTY MAY BRING, WHETHER IN TORT, CONTRACT OR OTHERWISE, AND REGARDLESS OF WHETHER ANY LIMITED REMEDY PROVIDED IN THIS AGREEMENT FAILS OF ITS ESSENTIAL PURPOSE. 7.2 Direct Damages. EXCEPT FOR A BREACH OF SECTION 8 BY CUSTOMER OR CUSTOMER'S PAYMENT OBLIGATIONS, IN NO EVENT SHALL EITHER PARTY'S TOTAL, AGGREGATE LIABILITY TO THE OTHER PARTY OR TO ANY THIRD PARTY FOR ANY CLAIMS OR DAMAGES ARISING UNDER THIS AGREEMENT EXCEED THE GREATER OF: ONE HUNDRED DOLLARS ($100.00) AND THE AMOUNTS PAID AND PAYABLE BY CUSTOMER DURING THE TWELVE (12) MONTH PERIOD IMMEDIATELY PRECEEDING THE CLAIM. 8. LICENSE AND OWNERSHIP 8.1 License to Software. Subject to the terms of this Agreement, Clustrix hereby grants to Customer a non-exclusive, non-transferable, personal license during the Agreement term to access and use the Software for Customer's internal business use and solely on the number of instances of AMI's and for the amount of time for which Customer has paid. 8.2 Ownership. The Software is licensed to Customer for use during the term of this Agreement, not sold. There are no implied rights. All right, title and interest in and to the Software is owned by Clustrix or its suppliers, and is protected by United States copyright laws and international treaty provisions. In no event shall Customer reverse engineer, modify, decompile, time share, disassemble or extract any portion of any Software provided hereunder. 9. GENERAL PROVISIONS 9.1 Modifications/Waiver. This Agreement shall not be modified, amended or in any way altered, nor may it be modified by custom and usage of trade or course of dealing, except by an instrument in writing and signed by duly authorized officers of both of the parties hereto. Performance of any obligation required of a party hereunder may be waived only by a written waiver signed by a duly authorized officer of the other party, which waiver shall be effective only with respect to the specific obligation described therein. The waiver by either party hereto of a breach of any provision of this Agreement by the other shall not operate or be construed as a waiver of any subsequent breach of the same provision or any other provision of this Agreement. 9.2 Severability. In the event that any provision hereof is found invalid or unenforceable pursuant to judicial decree or decision, the remainder of this Agreement shall remain valid and enforceable according to its terms. Without limiting the foregoing, it is expressly understood and agreed that each and every provision of this Agreement which provides for a limitation of liability, disclaimer of warranties or exclusion of damages is intended by the parties to be severable and independent of any other provision and to be enforced as such. Further, it is expressly understood and agreed that in the event any remedy hereunder is determined to have failed of its essential purpose, all limitations of liability and exclusion of damages set forth herein shall remain in full force and effect. 9.3 Binding Agreement. This Agreement shall be binding upon and inure to the benefit of each of the parties hereto and their respective legal successors and assigns, provided that any successor or assignee shall be bound by all the terms and conditions of this Agreement. 9.4 Governing Law. This Agreement shall be construed and enforced in accordance with the laws of the State of California applicable to agreements a wholly executed and wholly performed therein, excluding its choice of law rules based upon the jurisdiction of any legal action or proceeding. Any legal action or proceeding brought by either party against the other arising out of or related to this Agreement shall be brought only in a state or federal court of competent jurisdiction located in the counties of San Francisco, California, and the parties hereby consent to the in personam jurisdiction and venue of said courts in which such matter is first filed. In any legal action or proceeding brought under this Agreement, the prevailing party will be entitled to recover its attorneys' fees and costs. 9.5 Changes. This Agreement may be changed, modified, supplemented or updated by Clustrix from time to time. If Clustrix makes a material change to this Agreement that will affect an existing license, Clustrix will notify Customer by posting a notice in the release notes for the Software or using some other mechanism as made available by Amazon.