1. AGREEMENT

This License Agreement ("Agreement") is between Licensee and netElastic ("netElastic") for the netElastic software product, which includes computer software, electronic documentation, and associated materials ("Software").

BY DOWNLOADING, INSTALLING, COPYING OR OTHERWISE USING THE SOFTWARE, LICENSEE AGREES TO BE BOUND BY THE TERMS OF THIS AGREEMENT. IF LICENSEE DOES NOT AGREE TO THE TERMS OF THIS AGREEMENT, LICENSEE MAY NOT DOWNLOAD OR USE THE SOFTWARE AND MUST DESTROY ALL COPIES OF THE SOFTWARE IN ITS POSSESSION.

2. LICENSE

Subject to the limitations and restrictions set forth herein, netElastic grants to Licensee a revocable, non-exclusive, and non-transferable license, without the right to sublicense, touse the Software, in executable form for the duration purchased.

Licensee shall not:

(a) Modify, unbundle, reverse engineer, or create derivative works based on the Software;

(b) Make unauthorized copies of the Software (except as necessary for backup purposes);

(c) Rent, sell, transfer, or grant any rights in and to any copy of the Software, in any form, to any third party;

(d) Remove any proprietary notices, labels, or marks on or in any copy of the Software;

(e) Distribute any copy of the Software to any third party;

(f) Distribute any key for the Software provided by netElastic to any third party;

(g) Use the Software in any manner that extends or is broader than the uses purchased by Licensee from netElastic or an authorized netElastic reseller;

(h) Use the Software in any manner other than as expressly provided herein.

Any material breach of this Section 2 or failure by Licensee to pay any applicable fees due shall result in automatic termination of the license granted herein.

3. OWNERSHIP

Licensee agrees and acknowledges that all rights, title, and interest, including without limitation all patents, copyrights, trade secrets, trademarks, and other intellectual property and proprietary rights (collectively the "Intellectual Property Rights") in and to the Software are, and will at all times remain, the sole and exclusive property of netElastic and its licensors. netElastic shall retain all rights and title to the Software, even if suggestions made by Licensee are incorporated into subsequent versions of the Software. Licensee agrees and acknowledges that it will not earn or acquire any rights or licenses in the Software or any Intellectual Property Rights therein by virtue of Licensee's performance under this Agreement.

4. CONFIDENTIALITY

Licensee agrees not to disclose, provide or otherwise make available such Intellectual Property Right, Software features and mode of operation, test results, business plans, or financial information of netElastic in any form to any third party without netElastic’s prior written consent. Licensee agrees to implement reasonable security measures to protect such trade secrets and copyrighted material.

5. LIMITED SOFTWARE PRODUCT WARRANTY

netElastic warrants that when properly installed, configured, and used under normal conditions, the software product will perform substantially as advertised.

6. DISCLAIMER OF WARRANTIES

UNLESS OTHERWISE EXPLICITLY AGREED TO IN WRITING, NETELASTIC MAKES NO OTHER WARRANTIES OR REPRESENTATION OR WARRANTY OF ANY KIND, EXPRESS, IMPLIED, OR STATUTORY, INCLUDING BUT NOT LIMITED TO WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, NONINFRINGEMENT, OR ARISING FROM A COURSE OF DEALING, USAGE, OR TRADE PRACTICE. FURTHER, NETELASTIC DOES NOT WARRANT THAT THE SOFTWARE IS ERROR FREE OR THAT BUYER WILL BE ABLE TO OPERATE THE SOFTWARE WITHOUT PROBLEMS OR INTERRUPTION.

7. LIMITATION OF LIABILITY

IN NO EVENT WILL NETELASTIC OR ITS AFFILIATES, LICENSORS OR SUPPLIERS BE LIABLE FOR ANY LOSS OF USE, INTERRUPTION OF BUSINESS, LOST PROFITS, OR LOST DATA, OR INDIRECT, SPECIAL, INCIDENTAL, OR CONSEQUENTIAL DAMAGES, OF ANY KIND REGARDLESS OF THE FORM OF ACTION, WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY OR OTHERWISE, EVEN IF NETELASTIC OR ITS AFFILIATE, LICENSOR OR SUPPLIER HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGE, AND WHETHER OR NOT ANY REMEDY PROVIDED SHOULD FAIL OF ITS ESSENTIAL PURPOSE.

8. COMPLIANCE WITH LAW

Licensee will comply with all laws and regulations applicable to Licensee's performance of its obligations under this Agreement. Licensee acknowledges that the Software, including documentation and other technical data, are subject to export controls imposed by the U.S. Export Administration Act of 1979, as amended (the "Act"), and the regulations promulgated thereunder. Licensee will not export or re-export (directly or indirectly) any Software or documentation or other technical data without complying with the Act and the regulations thereunder.

9. TERM & TERMINATION

Any breach of this Agreement shall result in automatic termination of this Agreement and the license granted herein. Upon such termination or upon expiration of license term, Licensee shall, at its cost, return or destroy the Software within five (5) calendar days of termination or expiration of the license term. Sections 3, 4, 7-10 shall survive the cancellation or termination of this Agreement for any reason, provided that Section 2 shall be terminable as set forth in Section 2.

10. GENERAL PROVISIONS

Governing Law & Jurisdiction: This Agreement shall be construed in accordance with, and all disputes arising in connection with it shall be governed by the laws of the state of California, without application of choice of law principles. Any action arising out of or related to this Agreement will be brought solely in the federal and state courts in the Northern District of California, and Licensee hereby expressly consents to the personal jurisdiction thereof.

Costs & Fees: The prevailing Party shall be entitled to recover from the non-prevailing Party its costs, including reasonable attorneys' fees and court costs, incurred in connection with the collection of any amounts due under this Agreement or with the enforcement or interpretation of this Agreement.

Severability: If a court of competent jurisdiction shall hold any provision of this Agreement invalid or unenforceable, the remaining provisions of the Agreement shall remain in full force and effect, and the provision of portion thereof affected shall be construed so as to be enforceable to the maximum extent permissible by law.

Electronic Signatures: The parties acknowledge and agree that this Agreement is subject to the U.S. Electronic Signatures in Global and National Commerce Act, the Singapore Electronic Transmissions Act, the U.K. Electronic Communications Act 2000 and any similar law in any other applicable jurisdiction that makes legally effective a contract in electronic form, and authorizes acceptance by means of an electronic signature or process.

Force Majeure: Neither party is in breach of this Agreement for any cessation, interruption, or delay in the performance of its obligations hereunder (other than payment obligations) due to causes beyond its reasonable control including earthquake, flood, fire, storm, or other natural disasters, act of God, pandemic, labor controversy or threat thereof, civil disturbance or commotion, acts or threats of terrorism, disruption of public markets, war or armed conflict.