IM 43D07N10-04EN

IM 43D07N10-04EN 2nd Edition

All Rights Reserved. Copyright © 2020, Yokogawa Electric Corporation

1. Third-party software component License

Manged Service Suite software products of Yokogawa Electric Corporation (“Yokogawa”) uses or contains third-party software component licensed or distributed under any of the following licenses by original vendors. Notwithstanding anything to the contrary stated in the Manged Service Suite Software License Agreement, installation or use of Third-party software component shall be subject to the following license terms and this Terms and Conditions of the original vendor, which shall prevail over the Manged Service Suite Software License Agreement. Some of Third-party software may, in its accompanying files, specify different version of the license terms and/or additional terms, which, if any, shall take precedence over the following license terms: The text of the license terms may be provided below and available in the relevant websites. UPON YOUR INSTALLATION OR USING OF THE SOFTWARE, YOKOGAWA AUTOMATICALLY ASSUMES THAT THE USER HAS AGREED UPON ALL THE ARTICLES OF THE TERMS AND CONDITIONS DESCRIBED IN THIS DOCUMENT. UNLESS OTHERWISE DO NOT INSTALL OR USE THE SOFTWARE, AND IN SUCH CASE, NOTIFY YOUR SALES CONTACT. THE SOFTWARE SERVES AS PART OF “MANAGED SERVICE SUITE” DESCRIBED IN THE GENERAL SPECIFICATIONS OF “MANAGED SERVICE SUITE" (GS43D07N10-01EN)”.

2. Limited Warranty

Each Third-party software component shall be provided on warranty of original vendors. Any warranties of merchantability or fitness for a particular purpose, noninfringement of third-party rights (including, but not limited to patent, copyright, trade secret) shall not be provided by Yokogawa.

Third-party software component license terms:

All the terms and conditions shall follow the original vendors’ license embedded from the next page, unless it is stipulated in this section.

Managed Service Suite Terms and Conditions of third-party software component

IM 43D07N10-04EN

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IM43D07N10-04EN 2nd Edition: 2020.12.14-00

■ McAfee Products

McAfee Products

https://www.mcafee.com

MCAFEE END USER LICENSE AGREEMENT

BY DOWNLOADING, INSTALLING, COPYING, ACCESSING OR USING THIS SOFTWARE, YOU AGREE TO THE TERMS

OF THIS END USER LICENSE AGREEMENT. IF YOU ARE ACCEPTING THESE TERMS ON BEHALF OF ANOTHER

PERSON OR COMPANY OR OTHER LEGAL ENTITY, YOU REPRESENT AND WARRANT THAT YOU HAVE FULL

AUTHORITY TO BIND THAT PERSON, COMPANY OR LEGAL ENTITY TO THESETERMS.

IF YOU DO NOT AGREE TO THESE TERMS:

■ DO NOT DOWNLOAD, INSTALL, COPY, ACCESS OR USE THIS SOFTWARE,AND

■ PROMPTLY RETURN THIS SOFTWARE AND PROOF OF ENTITLEMENT TO THE PARTY FROM WHOM YOU ACQUIRED THEM

1) Definitions.

a) “Authorized Partner” means any of McAfee’s distributors, resellers or other business partners that are authorized by McAfee in writing to sell Support or the Software license rights granted under this Agreement.

b) “Cloud Services” means the cloud services that McAfee provides to Customer as specified in one or more Grant Letters. Access to the Cloud Services requires either an active support agreement or an active subscription, as required by the specific offering.

c) “Documentation” means explanatory materials in printed, electronic or online form accompanying the Software in English and other languages, ifavailable.

d) “DATs” means detection definition files, also referred to as signature files, that contain the code(s) anti-malware software uses to detect and repair viruses, Trojan horses, and potentially unwantedprograms.

e) “Grant Letter” means a confirmation notice letter issued by McAfee to you, confirming the Software and Support purchased by you, including the applicable product entitlement, as defined in the Product Entitlement Definitions (further described at Section 3(a) below).

f) “High Risk System” means a device or system that requires extra safety functionalities such as fail-safe or fault- tolerant performance features to maintain a safe state where it is reasonably foreseeable that failure of the device or system could lead directly to death, personal injury, or catastrophic property damage. A device or system with a fail-safe feature in the event of failure may revert to a safe condition rather than break down, may include a secondary system that comes into operation to prevent a malfunction, or may operate as a backup in the event of a malfunction. A device or system with a fault-tolerant feature in the event of failure may continue its intended operation, possibly at a reduced level, rather than failing completely. Without limitation, High Risk Systems may be required in critical infrastructure, industrial plants, manufacturing facilities, direct life support devices, aircraft, train, boat or vehicle navigation or communication systems, air traffic control, weapons systems, nuclear facilities, power plants, medical systems and facilities, and transportation facilities.

g) “McAfee” means (i) McAfee, LLC, with offices located at 2821 Mission College Blvd., Santa Clara, California 95054, USA, if the Software is purchased in the United States (except as provided in subclause (vi), below), Canada, Mexico, Central America, South America, or the Caribbean, (ii) McAfee Ireland Limited, with its registered offices located at Building 2000, City Gate, Mahon, Cork, Ireland, if the Software is purchased in Europe, the Middle East, or Africa, (iii) McAfee (Singapore) Pte Ltd., with a trading address located 101 Thomson Road 29-02/05 United Square, Singapore, 307591, Singapore, if the Software is purchased in Asia (other than China (if the Software is purchased in RMB) or Japan) or the region commonly referred to as Oceania, (iv) McAfee Co. Ltd., with offices located at Shibuya Mark City West, 12-1, Dogenzaka 1-chome, Shibuya-ku, Tokyo, 150-0043, Japan, if the Software is purchased in Japan, (v)

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McAfee (Beijing) Security Software Co. Ltd.., with a trading address located at Room 616, No. 6 North Workers’ Stadium Road, Chaoyang District, Beijing, China, if the Software is purchased in China (in RMB), or (vi) McAfee Public Sector LLC, with offices located at 2821 Mission College Blvd., Santa Clara, California 95054, USA, if the Software is purchased by the U.S. Government, State or Local Government, Healthcare organization or Educational institution within the United States.

h) “Software” means the McAfee software program in object code format (i) licensed from McAfee and purchased from McAfee or its Authorized Partners, or (ii) embedded in or pre-loaded on McAfee-branded hardware equipment purchased from McAfee or its Authorized Partners, in each case including Upgrades and Updates that you install during the applicable Support period. Software may also include additional features or functionality that can be accessed with either a current subscription or active support contract to certain Cloud Services as required by the specific offering and subject to the Cloud Terms of Service.

i) “Standard” means a technology specification created by a government sponsored group, an industry sponsored group, or any similar group or entity that creates technology specifications to be used by others. Examples of Standards include GSM, LTE, 5G, Wi-Fi, CDMA, MPEG, and HTML. Examples of groups that create Standards include IEEE, ITU, 3GPP, and ETSI.

j) “Subsidiary” means any entity controlled by you through greater than fifty per cent (50%) ownership of the voting securities.

k) “Support” or “Technical Support” means the support services offered by McAfee for the support and maintenance

of the Software and the McAfee-branded hardware equipment as further specified in the McAfee Technical Support and Maintenance Terms.

l) “Updates” are related to content of the Software, including, without limitation, all DATs, signature sets, policy updates, and database updates for the Software, and that are made generally available to McAfee’s customer base as a part of purchased Support and which are not separately priced or marketed by McAfee.

m) “Upgrade” means any and all improvements in the Software that are made generally available to McAfee’s customer base as part of purchased Support and which are not separately priced or marketed by McAfee.

2) License Grant; Proprietary Rights.

a) Subject to the terms and conditions of this Agreement, McAfee hereby grants to you a non-exclusive, non- transferable right to use the Software (for the purpose of this Agreement, to use the Software includes to download, install, and access the Software) listed in the Grant Letter solely for your own internal business operations. You are not granted rights to Updates and Upgrades unless you have purchased Support (or a service subscription granting rights to Updates and Upgrades).

b) The Software, including, without limitation, its object code and source code, whether or not provided to you, is strictly confidential to McAfee. McAfee (or its licensors) owns exclusively and reserves all – and you may not exercise any – right, title, and interest in and to the Software, including, without limitation, all intellectual property rights in and to the Software, except to the extent of the limited Software use license granted to you in this Agreement. This Agreement is not an agreement of sale, and no title, intellectual property rights, or ownership rights to the Software are transferred to you pursuant to this Agreement. You acknowledge and agree that the Software and all ideas, methods, algorithms, formulae, processes, and concepts used in developing or incorporated into the Software, all future Updates and Upgrades, and all other improvements, revisions, corrections, bug-fixes, hot- fixes, patches, modifications, enhancements, releases, DATs, signature sets, upgrades, and policy and database updates and other updates in, of, or to the Software, all derivative works based upon any of the foregoing, and all copies of the foregoing are trade secrets and proprietary property of McAfee, having great commercial value to McAfee.

c) All Cloud Services, and any Software that includes Cloud Services, are subject to the McAfee Cloud Terms of Service Agreement, which is posted at: http://www.mcafee.com/us/about/legal/cloud-terms-of-service- agreement.aspx

3) Copy and Use Terms.

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a) Product Entitlement: The use of the Software depends on the licenses purchased (e.g. nodes) and is subject to the Product Entitlement Definitions set forth https://www.mcafee.com/us/resources/legal/mcafee-product- entitlement-definitions.pdf on the applicable date of your Grant Letter.

b) Multiple Platforms/Bundles: If the Software supports multiple platforms or if you receive the Software bundled with other software, the total number of devices on which all versions of the Software is installed may not exceed your product entitlement. Certain Software licensed as part of a suite-based McAfee product may also require the purchase of a separate McAfee server license in order to use the Software on certain types of servers, in each case as specified in the Documentation.

c) Term: The license is effective for a limited period of time (“Term”) in the event that such Term is set forth in the Grant Letter, otherwise the licenses shall be perpetual.

d) Copies: You may copy the Software as reasonably necessary for back-up, archival or disaster recovery purposes.

e) Subsidiaries; Managing Parties: You may permit use of the Software in accordance with the terms of this Agreement by a Subsidiary only for so long as such entity remains your Subsidiary. You also may permit a third party with which you enter into a contract to manage your information technology resources (“Managing Party”), provided that (i) the Managing Party only uses the Software for your internal operations and not for the benefit of another third party or the Managing Party, (ii) the Managing Party agrees to comply with the terms and conditions of this Agreement and (iii) you provide McAfee with written notice that a Managing Party will be using the Software on your behalf. You shall be responsible and fully liable for each Subsidiary’s and Managing Party’s compliance with or breach of the terms of this Agreement.

f) General Restrictions: You may not, and you may not cause or allow any third party to: (i) decompile, disassemble or reverse-engineer the Software; or create or recreate the source code for the Software; (ii) remove, erase, obscure, or tamper with any copyright or any other product identification or proprietary rights notices, seal, or instructional label printed or stamped on, affixed to, or encoded or recorded in or on any Software or Documentation; or fail to preserve all copyright and other proprietary notices in all copies of the Software and Documentation made by you; (iii) lease, lend or use the Software for timesharing or service bureau purposes; sell, market, license, sublicense, distribute, or otherwise grant to any person or entity any right to use the Software except to the extent expressly permitted in this Agreement; or use the Software to provide, alone or in combination with any other product or service, any product or service to any person or entity, whether on a fee basis or otherwise; (iv) modify, adapt, tamper with, translate, or create derivative works of the Software or the Documentation; combine or merge any part of the Software or Documentation with or into any other software or documentation; or refer to or otherwise use the Software as part of any effort to develop software (including, without limitation, any routine, script, code, or program) having any functional attributes, visual expressions, or other features similar to those of the Software or to compete with McAfee; (v) except with McAfee’s prior written permission, publish any performance or benchmark tests or analysis relating to the Software; or (vi) attempt to do any of the foregoing. You may not run or operate the Software in a cloud, Internet-based computing, or similar on-

demand computing environment unless your Grant Letter specifically provides such.

4) Technical Support and Maintenance.

The McAfee Technical Support and Maintenance Terms and Conditions apply if you have purchased Support. The McAfee Technical Support and Maintenance Terms and Conditions are incorporated by reference and can be found at https://support.mcafee.com/terms. After the support or service subscription period specified in a Grant Letter has expired, you have no further rights to receive any Support including Upgrades, Updates and telephone support. McAfee may change the Support offered at any time, effective as of the commencement of any renewal period. You will secure any and all privacy-related rights and permissions from individual persons as may be required by regulation, statute, or other law or your internal policies or guidelines in order to disclose to McAfee, in connection with McAfee’s performance of Support or otherwise under this Agreement, applicable personally identifiable information, data, and material.

5) Limited Warranty and Disclaimer.

a) Limited Warranty: McAfee warrants that, for a period of sixty (60) days from the purchase date (“Warranty Period”), the Software licensed hereunder will perform substantially in accordance with the Documentation (the “Limited Warranty”).

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b) Exclusive Remedy: In case of any breach of the above Limited Warranty, as your exclusive remedy and McAfee’s entire obligation and liability McAfee will (i) repair or replace the Software or (ii) if such repair or replacement would in McAfee’s opinion be commercially unreasonable, upon McAfee’s receipt of your written representation and promise that you have removed all instances of the Software and will not use the Software, refund the price paid by you for the applicable Software.

c) Exclusion of Warranty: THE ABOVE LIMITED WARRANTY WILL NOT APPLY IF: (i) THE SOFTWARE IS NOT USED IN ACCORDANCE WITH THIS AGREEMENT OR THE DOCUMENTATION, (ii) THE SOFTWARE OR ANY PART THEREOF HAS BEEN MODIFIED BY ANY ENTITY OTHER THAN MCAFEE OR (iii) A MALFUNCTION IN THE SOFTWARE HAS BEEN CAUSED BY ANY EQUIPMENT OR SOFTWARE NOT SUPPLIED BY MCAFEE.

d) Disclaimer: EXCEPT FOR THE LIMITED WARRANTY SET FORTH ABOVE, THE SOFTWARE IS PROVIDED “AS IS” AND MCAFEE MAKES NO REPRESENTATIONS OR WARRANTIES, AND MCAFEE DISCLAIMS ALL REPRESENTATIONS, WARRANTIES, AND CONDITIONS, ORAL OR WRITTEN, EXPRESS OR IMPLIED, ARISING FROM COURSE OF DEALING, COURSE OF PERFORMANCE, OR USAGE IN TRADE, OR OTHERWISE, INCLUDING, WITHOUT LIMITATION, IMPLIED WARRANTIES OF MERCHANTABILITY, QUALITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, NON-INFRINGEMENT, OR SYSTEMS INTEGRATION. WITHOUT LIMITING THE FOREGOING, MCAFEE MAKES NO WARRANTY, REPRESENTATION, OR GUARANTEE AS TO THE SOFTWARE’S USE OR PERFORMANCE AND DOES NOT WARRANT, REPRESENT, OR GUARANTEE THAT THE OPERATION OF THE SOFTWARE WILL BE FAIL- SAFE, UNINTERRUPTED, OR FREE FROM ERRORS OR DEFECTS OR THAT THE SOFTWARE WILL PROTECT AGAINST ALL POSSIBLE THREATS.

e) High Risk Systems Terms: THE SOFTWARE MAY FAIL AND IS NOT DESIGNED, DEVELOPED, TESTED, OR INTENDED TO BE RELIABLE IN THE CONTEXT OF HIGH RISK SYSTEMS. WITHOUT LIMITING ANYTHING ELSE, MCAFEE HAS NO RESPONSIBILITY FOR, AND YOU WILL INDEMNIFY AND HOLD HARMLESS MCAFEE FROM, ALL CLAIMS, SUITS, DEMANDS, AND PROCEEDINGS ALLEGING, CLAIMING, SEEKING, OR ASSERTING, ANY LIABILITY, LOSS, OBLIGATION, RISK, COST, DAMAGE, AWARD, PENALTY, SETTLEMENT, JUDGMENT, FINE, OR EXPENSES (INCLUDING ATTORNEYS FEES) ARISING FROM OR IN CONNECTION WITH YOUR USE OF THE SOFTWARE ON OR IN A HIGH RISK SYSTEM, INCLUDING, WITHOUT LIMITATION, THOSE THAT (i) COULD HAVE BEEN PREVENTED BY DEPLOYMENT OF FAIL- SAFE OR FAULT-TOLERANT FEATURES TO THE HIGH RISK SYSTEM, (ii) ARE BASED ON A CLAIM, ALLEGATION, OR ASSERTION THAT THE FUNCTIONING OF THE HIGH RISK SYSTEM DEPENDS OR DEPENDED ON THE FUNCTIONING OF THE SOFTWARE OR THAT THE FAILURE OF THE SOFTWARE CAUSED A HIGH RISK SYSTEM TO FAIL.

6) Limitation of Remedies and Damages.

a) UNDER NO CIRCUMSTANCES AND UNDER NO LEGAL THEORY, WHETHER IN TORT, NEGLIGENCE, CONTRACT OR OTHERWISE, SHALL EITHER PARTY BE LIABLE TO THE OTHER UNDER THIS AGREEMENT OR IN CONNECTION WITH ITS SUBJECT MATTER FOR ANY INDIRECT, SPECIAL, INCIDENTAL, PUNITIVE, EXEMPLARY, CONSEQUENTIAL, OR EXTRA-CONTRACTUAL DAMAGES OF ANY KIND, LOSS OF GOODWILL, LOSS OF PERSONNEL SALARIES, LOST PROFITS OR REVENUE, DAMAGES DUE TO WORK STOPPAGE AND/OR COMPUTER FAILURE OR MALFUNCTION, AND/OR COSTS OF PROCURING SUBSTITUTE SOFTWARE OR SERVICES, WHETHER OR NOT FORESEEABLE, EVEN IF THE EXCLUSIVE REMEDIES PROVIDED BY THIS AGREEMENT FAIL OF THEIR ESSENTIAL PURPOSE AND EVEN IF EITHER PARTY HAS BEEN ADVISED OF THE POSSIBILITY OR PROBABILITY OF SUCH DAMAGES.

b) REGARDLESS OF WHETHER THE CLAIM FOR SUCH DAMAGES IS BASED IN CONTRACT, TORT AND/OR ANY OTHER LEGAL THEORY, IN NO EVENT SHALL EITHER PARTY’S AGGREGATE LIABILITY TO THE OTHER PARTY FOR DIRECT DAMAGES UNDER THIS AGREEMENT OR IN CONNECTION WITH ITS SUBJECT MATTER EXCEED THE AMOUNT OF TOTAL FEES PAID OR PAYABLE BY YOU FOR THE SOFTWARE GIVING RISE TO SUCH CLAIM DURING THE 12 MONTHS IMMEDIATELY PRECEDING THE

EVENT GIVING RISE TO SUCH CLAIM.

c) No provision of this Agreement shall exclude or limit in any way (i) the liability of either party for death or personal injury caused by negligence or (ii) your liability for excess usage of and/or any breach of McAfee’s intellectual property rights in the Software.

d) THE LIMITATION OF LIABILITY IN THIS SECTION IS BASED ON THE FACT THAT END USERS USE THEIR COMPUTERS FOR DIFFERENT PURPOSES. THEREFORE, ONLY YOU CAN IMPLEMENT BACK-UP PLANS AND SAFEGUARDS APPROPRIATE TO YOUR NEEDS IN THE EVENT THAT AN ERROR IN THE SOFTWARE CAUSES

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COMPUTER PROBLEMS AND RELATED DATA LOSSES. FOR THESE BUSINESS REASONS, YOU AGREE TO THE LIMITATIONS OF LIABILITY IN THIS SECTION AND ACKNOWLEDGE THAT WITHOUT YOUR AGREEMENT TO THIS PROVISION, THE FEE CHARGED FOR THE SOFTWARE WOULD BE HIGHER.

7) Intellectual Property Indemnity.

a) Indemnity: McAfee will indemnify, and, at its election, defend, you against claims asserted against you in a suit or action if: (i) the claim is for direct patent infringement or direct copyright infringement, or for McAfee’s trade secret misappropriation and (ii) the claim is (A)asserted against the Software, alone and not in combination with anything or (B) a combination of the Software.

b) Exclusions: Notwithstanding anything else in this Agreement, McAfee has no obligation to indemnify or defend you for claims asserted, in whole or in part, against:

(i) technology or designs that you gave to McAfee;

(ii) modifications or programming to Software that were made by anyone other than McAfee;or

(iii) the Software’s alleged implementation of some or all of a Standard.

c) Conditions: As a condition of McAfee’s obligations under this Section 7, you must provide to McAfee: (i) prompt written notice of the claim and your agreement to give McAfee sole control over the defense and settlement of the claim; and (ii) your full and timely cooperation.

d) McAfee’s Consent: McAfee will not be responsible for any cost, expense, or compromise that you make or incur without McAfee’s prior written consent.

e) Remedies: McAfee may, at its sole discretion and at is expense: (i) procure for you the right to continue using the Software; (ii) replace the Software with a non-infringing Software; (iii) modify the Software so that it becomes non- infringing; or (iv) upon your return of the Software to McAfee, and/or removal of the Software from your systems, refund the residual value of the purchase price paid by you for the infringing Software, depreciated using a straight-line method of depreciation over a three (3) year period from the date of delivery of the Software to you.

f) Personal Indemnity: The foregoing indemnity is personal to you. You may not transfer or to anyone, including your customers.

g) Exclusive Remedy: The indemnity section states McAfee’s entire obligation and your exclusive remedy for claims of patent or copyright infringement, or trade secret misappropriation, made in whole or part against the Software.

8) Termination.

Without prejudice to your payment obligations, you may terminate your license at any time by uninstalling the Software. McAfee may terminate your license in the event that you materially breach the terms of this Agreement and you fail to cure such breach within thirty (30) days of receiving notice of such breach. Upon such termination, you shall promptly return or destroy all copies of the Software and Documentation.

9) Additional Terms.

a) Evaluation Software: If the Software has been identified by McAfee as “Evaluation” Software, then the provisions of this section apply and shall supersede any other conflicting term of this Agreement. Your royalty-free, non- transferable, limited license to use the Evaluation Software, for evaluation purposes only, is limited to thirty (30) days unless otherwise agreed to in writing by McAfee. The Evaluation Software may contain errors or other problems that could cause system or other failures and data loss. Consequently, Evaluation Software is provided to you “AS IS” and McAfee disclaims any warranty or liability obligations to you of any kind. Support is not available for Evaluation Software. Any information about the Evaluation Software gathered from its use shall be used solely for evaluation purposes and shall not be provided to any third parties. The restrictions described in Section 3(g) apply. If you fail to destroy the Evaluation Software after the evaluation period has expired, McAfee may, at its discretion, invoice you in an amount equal to the McAfee List Price for the Software and you shall pay such invoice upon receipt. WHERE LEGAL LIABILITY CANNOT BE EXCLUDED, BUT MAY BE LIMITED, MCAFEE’S LIABILITY AND THAT OF ITS SUPPLIERS AND AUTHORIZED PARTNERS UNDER THIS AGREEMENT RELATED TO EVALUATION SOFTWARE, OR IN CONNECTION WITH EVALUATION SOFTWARE, SHALL BE LIMITED TO THE SUM OF FIFTY (50) U.S. DOLLARS OR THE EQUIVALENT IN LOCAL CURRENCY IN TOTAL.

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b) Beta Software: If the Software that you have received has been identified by McAfee as “Beta” Software, then the provisions of Section 9(a) above shall apply accordingly. McAfee has no obligation to you to further develop or publicly release the Beta Software. Support is not available for Beta Software. If requested by McAfee, you will provide feedback to McAfee regarding testing and use of the Beta Software, including error or bug reports. You agree to grant McAfee a perpetual, non-exclusive, royalty-free, worldwide license to use, copy, distribute and make derivative works and incorporate the feedback into any McAfee product at McAfee’s sole discretion. Upon receipt of a later unreleased version of the Beta Software or release by McAfee of a publicly released commercial version of the Beta Software, you agree to return or destroy all earlier Beta Software received from McAfee.

c)“Free” or “Open-Source” Software: The Software may include components (including, without limitation, programs, applications, tools, utilities, libraries, and other programming code) that are made available from third parties under a free or open source software licensing model (“FOSS Code”). FOSS Code components included with the Software are redistributed by McAfee under the terms of the applicable FOSS Code license for such component; your receipt of FOSS Code components from McAfee under this Agreement neither enlarges nor curtails your rights or obligations defined by the FOSS Code license applicable to the FOSS Code component. Copies of the FOSS Code licenses for FOSS Code components included with Software are included with or referenced in the Software’s Documentation.

10) Notice to U.S. Government End Users.

The Software and accompanying Documentation are deemed to be “commercial computer software” and “commercial computer software documentation”, respectively, pursuant to DFAR Section 227.7202 and FAR Section 12.212, as applicable. Any use, modification, reproduction, release, performance, display or disclosure of the Software and accompanying Documentation by the United States Government shall be governed solely by the terms of this Agreement and shall be prohibited except to the extent expressly permitted by the terms of this Agreement.

11) Privacy and Collection of Personal or SystemInformation.

a) The Software, Support or service subscription may employ applications and tools to collect personally identifiable, sensitive or other information about you and users (e.g., including, without limitation, your and users’ name, address, e-mail address and payment details), their computers, files stored on their computers, or their computers’ interactions with other computers (e.g., including, without limitation, information regarding network, licenses used, hardware type, model, hard disk size, CPU type, disk type, RAM size, 32 or 64 bit architecture, operating system types, versions, locale, BIOS version, BIOS model, total scanners deployed, database size, system telemetry, device ID, IP address, location, content, McAfee products installed, McAfee components, processes and services information, frequency and details of update of McAfee components, information about third party products installed, extracts of logs created by McAfee, usage patterns of McAfee products and specific features, etc.) (collectively, “Data”).

b) The collection of this Data may be necessary to provide you and users with the relevant Software, Support or service subscription functionalities as ordered (e.g., including, without limitation, detecting and reporting threats and vulnerabilities on your and users’ computer network), to enable McAfee to improve our Software, Support or service subscription (e.g., including, without limitation, content synchronization, device tracking, troubleshooting, etc.), and to further or improve overall security for you and users. You may be required to uninstall the Software or disable Support or its service subscription to stop further Data collection that supports these functions.

c) By entering into this Agreement, or using the Software, Support or service subscription, you and users agree to the McAfee Privacy Policy on the McAfee web site (www.mcafee.com) and to the collection, processing, copying, backup, storage, transfer and use of this Data by McAfee and its service providers, in, from and to the United States, Europe, or other countries or jurisdictions potentially outside of your or user’s own as part of the Software, Support or service subscription. McAfee will only collect, process, copy, backup, store, transfer and use personally identifiable information in accordance with the McAfee privacy policy on the McAfee web site (www.mcafee.com).

12) Audit.

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Upon thirty (30) days’ prior notice McAfee may request, and you must provide, a Software-facilitated system-generated report (the “System Report”) verifying your Software deployment. You acknowledge that the System Report is based on technological features of the Software that provide Software deployment verification. If the Software does not contain technological features that provide Software deployment verification, you will prepare and provide to McAfee within the thirty (30)-day period an accurate Software deployment verification report for the Software. McAfee will only request the System Report (or your prepared Software deployment verification report) one time per year and will not unreasonably interfere with the conduct of your business. However, if a System Report or your prepared Software deployment verification report identifies that you are out of compliance with the license terms of this Agreement, you will be required to purchase the additional licenses and pay any reinstatement fees associated with the licenses and/or support and an out-of-compliance fee may also beassessed.

13) Export Controls.

You acknowledge that the Software is subject to U.S. and when applicable, European Union export regulations. You shall comply with applicable export and import laws and regulations for the jurisdiction in which the Software will be imported and/or exported. You shall not export the Software to any individual, entity or country prohibited by applicable law or regulation. You are responsible, at your own expense, for any local government permits, licenses or approvals required for importing and/or exporting the Software. For additional information regarding exporting and importing the Software, see “Export Compliance” at http://www.mcafee.com/us/about-us.aspx. McAfee reserves the right to update this website from time to time at its sole discretion. If McAfee receives notice that you are or you become identified as a sanctioned or restricted party under applicable law, then McAfee will not be obligated to perform any of its obligations under this license if such performance would result in violation of the sanctions or restrictions.

14) Governing Law.

All disputes arising out of or relating to this Agreement or its subject matter will be governed by the substantive laws: (a) of the State of New York, if you purchased the license to the Software in the United States, Mexico, Central America, Canada, South America or the Caribbean, (b) of England and Wales, if you purchased the license to the Software in Europe, Middle East, Africa, Asia (other than Japan) or the region commonly referred to as Oceania and (c) of Japan, if you purchased the license to the Software in Japan, without giving effect to its rules relating to conflict of laws. If you purchased the license to the Software in any other country, then the substantive laws of the Republic of Ireland shall apply, unless another local law is required to be applied. This Agreement will not be governed by the United Nations Convention on Contracts for the International Sale of Goods, the application of which is expressly excluded. The Uniform Computer Information Transactions Act as enacted shall not apply. The United States District Court for the Southern District of New York, when New York law applies, the courts in England, when the law of England and Wales applies, the courts in the Republic of Ireland, when the law of Ireland applies, and the courts in Japan, when the law of Japan applies, shall each have exclusive jurisdiction over all disputes arising out of or relating to this Agreement or its subject matter.

15) Confidentiality

Each party hereto acknowledges that by reason of its relationship with the other party hereunder, it may have access to confidential information and materials concerning the other party’s business, technology, and/or products that is confidential to the other party (“Confidential Information”). Each party’s Confidential Information is of substantial value to the party, which value could be impaired if such information was disclosed to third parties or used in violation of this Agreement. Written or other tangible Confidential Information must at the time of disclosure be identified and labeled as Confidential Information belonging to the disclosing party. When disclosed orally or visually, Confidential Information must be identified as confidential at the time of the disclosure, with subsequent confirmation in writing within fifteen (15) days after disclosure. Each party agrees that it will not use in any way for its own account or the account of any third party, such Confidential Information, except as authorized under this Agreement, and will protect Confidential Information at least to the same extent as it protects its own Confidential Information and to the same extent that a reasonable person would protect such Confidential Information. Neither party may use the other party’s Confidential Information except to perform its duties or exercise its rights under this Agreement. The Confidential Information restrictions will not apply to Confidential Information that is (i) already known to the receiving party at the time of access hereunder, (ii) becomes publicly available through no wrongful act of the receiving party, (iii) independently developed by the receiving party

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without benefit of the disclosing party’s Confidential Information, (iv) has been rightfully received from a third party not under obligation of confidentiality or (v) is required to be disclosed by law, provided the party compelled to disclose the Confidential Information provides the party owning the Confidential Information with prior written notice of disclosure adequate for the owning party to take reasonable action to prevent such disclosure, where reasonably possible. Unless otherwise agreed to by both parties, upon termination of this Agreement or an applicable Addendum, each party will return the other party’s Confidential Information.

16) Miscellaneous.

a) Except for actions for non-payment or breach of McAfee’s proprietary rights in the Software and Documentation, no action, regardless of form, arising out of this Agreement may be brought by either party more than two (2) years after a party knew or should have known of the claim.

b) Any terms of this Agreement which by their nature should survive the termination of this Agreement shall survive such termination.

c)McAfee may assign this Agreement, in whole, at any time subject to your prior written consent; provided, however, any assignment resulting from or as part of a merger, consolidation, acquisition of all or substantially all of the assets of McAfee, or internal restructuring or reorganization does not require your consent.

d) This Agreement, including all documents incorporated by reference, represents the entire agreement between the parties and expressly supersedes and cancels any other communication, representation or advertising whether oral or written, on the subjects herein. If you issue an order to an Authorized Partner or to McAfee and the terms and conditions of the order conflict with the terms and conditions of (i) this Agreement or (ii) the Grant Letter, then the terms and conditions specified in this Agreement and in the Grant Letter shall control. No terms or conditions of any pre-printed or boilerplate purchase order of yours or other document of yours will govern the transactions contemplated by this Agreement. This Agreement may not be modified except by a written addendum issued by a duly authorized representative of McAfee. No provision hereof shall be deemed waived unless such waiver shall be in writing and signed by McAfee. If any provision of this Agreement is held invalid, unenforceable, invalid, or prohibited under law, then such provision will be deemed restated to reflect the original intention of the parties as nearly as possible in accordance with applicable law and the remainder of this Agreement shall continue in full force andeffect.

e) All notices, requests, demands and determinations for McAfee under this Agreement (other than routine operational communications) shall be sent to: the applicable entity address in Section 1(g) of this Agreement addressed to “Attention: Legal Department”.

McAfee Corporate End User License Agreement (April 2017)

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■ OPNsense

OPNsense is a trademark of OPNsense project

OPNsense

https://opnsense.org

OPNsense is an open source, easy-to-use and easy-to-build HardenedBSD based firewall and routing platform. OPNsense includes most of the features available in expensive commercial firewalls, and more in many cases. It brings the rich feature set of commercial offerings with the benefits of open and verifiable sources.

OPNsense started as a fork of pfSense® and m0n0wall in 2014, with its first official release in January 2015. The project has evolved very quickly while still retaining familiar aspects of both m0n0wall and pfSense. A strong focus on security and code quality drives the development of the project.

OPNsense offers weekly security updates with small increments to react on new emerging threats within in a fashionable time. A fixed release cycle of 2 major releases each year offers businesses the opportunity to plan upgrades ahead. For each major release a roadmap is put in place to guide development and set out clear goals.

Terms and Conditions

All contents are Copyright © 2014-2016 Deciso B.V. All rights reserved.

1. Rules and Regulations

The following rules and regulations apply to all visitors to or users of this Web Site. By accessing this Web Site, user acknowledges acceptance of these terms and conditions. Deciso B.V.. (“Deciso”) reserves the right to change these rules and regulations from time to time at its sole discretion.

2. Disclaimer Of Warranty

Although Deciso has attempted to provide accurate information on the Web Site, Deciso assumes no responsibility for the accuracy of the information. Deciso may change the programs or products mentioned at any time without notice.

Deciso makes no representation or warranties, either express or implied by or with respect to anything in this Web Site, and shall not be liable for any implied warranties of merchantability or fitness for a particular purpose or for any indirect special or consequential damages.

3. Software License Agreement

Any software which you download is governed in accordance with the license terms accompanying the file.

4. Applicable law

Dutch law is applicable on all goods and services.

Middelharnis, January 2, 2015

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■ Ubuntu

Ubuntu and Canonical are registered trademarks of Canonical Ltd.

Ubuntu

Ubuntu 18.04

https://ubuntu.com Licensing

Ubuntu is a collection of thousands of computer programs and documents created by a range of individuals, teams and companies.

Each of these programs may come under a different licence. This licence policy describes the process that we follow in determining which software will be included by default in the Ubuntu operating system.

Copyright licensing and trademarks are two different areas of law, and we consider them separately in Ubuntu. The following policy applies only to copyright licences. We evaluate trademarks on a case-by-case basis.

Categories of software in Ubuntu

The thousands of software packages available for Ubuntu are organised into four key groups or components: main, restricted, universe and multiverse. Software is published in one of these components based on whether or not it meets our free software philosophy, and the level of support we can provide for it. In addition, software may be published for Ubuntu as a universal Linux snap package, in which case licenses are determined by the snap publisher and documented in the snap store.

This policy only addresses the software that you will find in main and restricted, which contain software that is fully supported by the Ubuntu team and must comply with this policy.

Ubuntu 'main' component licence policy

All application software included in the Ubuntu main component:

•Must include source code. The main component has a strict and non-negotiable requirement that application software included in it must come with full source code.

•Must allow modification and distribution of modified copies under the same licence. Just having the source code does not convey the same freedom as having the right to change it. Without the ability to modify software, the Ubuntu community cannotsupport software, fix bugs, translate it, or improve it.

Ubuntu 'main' and 'restricted' component licence policy

All application software in both main and restricted must meet the following requirements:

•Must allow redistribution. Your right to sell or give away the software alone, or as part of an aggregate software distribution, is important because: ◦You, the user, must be able to pass on any software you have received from Ubuntu in either source code or compiled form.

◦While Ubuntu will not charge licence fees for this distribution, you might want to charge to print Ubuntu CDs, or create your own customised versions of Ubuntu which you sell, and should have the freedom to do so.

•Must not require royalty payments or any other fee for redistribution or modification.It's important that you can exercise your rights to this software without having to pay for the privilege, and that you can pass these rights on to other people on exactly the same basis.

•Must allow these rights to be passed on along with the software. You should be able to have exactly the same rights to the software as we do.

•Must not discriminate against persons, groups or against fields of endeavour. The licence of software included in Ubuntu can not discriminate against anyone or any group of users and cannot restrict users from using the software for a particular field of endeavour - a business for example. So we will not distribute software that is licensed "freely for non-commercial use".

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•Must not be distributed under a licence specific to Ubuntu. The rights attached to the software must not depend on the program being part of Ubuntu system. So we will not distribute software for which Ubuntu has a "special" exemption or right, and we will not put our own software into Ubuntu and then refuse you the right to pass it on.

•Must not contaminate other software licences.The licence must not place restrictions on other software that is distributed along with it. For example, the licence must not insist that all other programmes distributed on the same medium be free software.

•May require source modifications to be distributed as patches. In some cases, software authors are happy for us to distribute their software and modifications to their software, as long as the two are distributed separately, so that people always have a copy of their pristine code. We are happy to respect this preference. However, the licence must explicitly permit distribution of software built from modified source code.

Documentation, firmware and drivers

Ubuntu contains licensed and copyrighted works that are not application software. For example, the default Ubuntu installation includes documentation, images, sounds, video clips and firmware. The Ubuntu community will make decisions on the inclusion of these works on a case-by-case basis, ensuring that these works do not restrict our ability to make Ubuntu available free of charge, and that you can continue to redistribute Ubuntu.

Software installed by default

When you install Ubuntu, you will typically install a complete desktop environment. It is also possible to install a minimal set of software (just enough to boot your machine) and then manually select the precise software applications to install. Such a "custom" install is usually favoured by server administrators, who prefer to keep only the software they absolutely need on the server.

All of the application software installed by default is free software. In addition, we install some hardware drivers that are available only in binary format, but such packages are clearly marked in the restricted component.

© 2020 Canonical Ltd. Ubuntu and Canonical areregistered trademarks of Canonical Ltd.

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■ Veeam Backup & Replication Standard

Veeam Backup & Replication

https://www.veeam.com/eula.html

IMPORTANT, PLEASE READ CAREFULLY: THIS END USER LICENSE AGREEMENT “EULA” IS A LEGAL AGREEMENT BETWEEN YOU (AS AN INDIVIDUAL OR ENTITY, “YOU” THE “CUSTOMER”) AND VEEAM SOFTWARE GROUP GMBH (“VEEAM”), FOR PRODUCTS AND SERVICES, WHICH MAY INCLUDE COMPUTER SOFTWARE AND ASSOCIATED DOCUMENTATION (“SOFTWARE”). BY INSTALLING OR OTHERWISE USING THE SOFTWARE OR RECEIVING THE SERVICES, YOU AGREE TO BE BOUND BY THE TERMS OF THIS EULA. IF YOU DO NOT AGREE WITH THE TERMS OF THIS EULA, DO NOT USE THE SOFTWARE OR SERVICES.

1.0 License Grant. This EULA grants you, the user, a non-exclusive, non-transferable license to use the Software, in object code for your internal business purposes (and not for managing third party data unless the product you have licensed expressly permits you to) under the terms and conditions stated herein. The Software is to be installed, used, and deployed in accordance with the specific license you purchased, a description of the license can be found at https://www.veeam.com/licensing-policy.html (“Licensing Policy”). This EULA and the Licensing Policy can be updated from time to time, in Veeam’s sole discretion and will be made available at www.veeam.com

2.0 Permissible Use. You may use the Software for the number of licenses or capacity that you have purchased. You are permitted to make copies of the Software and documentation for your own use in accordance to EULA and Licensing Policy. Any copies or partial copies of Software and documentation that you make must incorporate all patent, copyright and trademark notices.

3.0 Prohibited Use. You may not (a) process third party data (as a service provider), provide commercial hosting services, sell, sublicense, rent or lease the Software to another party without purchasing the specific Veeam license to do so, (b) decompile, disassemble, reverse engineer or modify in any manner, any of the Software (except to the extent such prohibition is expressly prohibited by law), (c) use the Software in violation of any applicable laws or regulations, or (d) make available the Software or your license file on any type of public sharing website or forums. The restrictions on using the Software to process the data of third parties, provide commercial hosting services, sublicense, rent or lease the Software does not apply to those participants of the Veeam Cloud & Service Provider Program ("VCSP Program"), granted the rental license to use the Software under the terms of the VCSP Program. You agree that you may not disclose, transfer or otherwise make available the results of any performance or functionality tests of the Software, to any third party without the prior written consent of Veeam.

4.0 Evaluation and “Not for Resale” Licenses. Software may be provided to you for beta, demonstration, test or evaluation purposes, or is labeled as “Not for Resale” (“NFR”). The license granted under an Evaluation, Beta or NFR license shall be for a term of thirty (30) days (the “Evaluation Period”) unless otherwise provided by Veeam, limited specifically for evaluation or demonstration purposes only. You agree not to use the Software under an Evaluation License in a production environment or for production data processing purposes and your use of a Beta or Evaluation License Software is at your sole risk to backup data. There is no obligation to support, maintain or provide any assistance regarding any of these licenses. In no event will Veeam be liable for any damages for any claim or cause for any direct, actual, indirect damages, loss of data, consequential, incidental or special indirect damages, even if Veeam has been advised of the possibility of such damages.

5.0 Free Licenses and Community Licenses. Free and Community License products can be used in your own production environment in accordance with the terms and conditions of this Agreement. You may not use the Free and Community Licenses to provide services to third parties or to process third party data. These versions can be used without additional purchase and can be upgraded to paying versions of the products to unlock additional functionality and features. There is no obligation to support, maintain or provide any assistance regarding any of these licenses. In no event will Veeam be liable for any damages for any claim or cause for any direct, actual, indirect damages, loss of data, consequential, incidental or special indirect damages, even if Veeam has been advised of the possibility of such damages.

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6.0 Maintenance and Support (“Maintenance”) for the Software is available in accordance with Licensing policy and Support Policy, which can be found at www.veeam.com/support.html. Maintenance, if it is included in the Software purchased, will commence upon the date your order is processed and the license file is generated. You will receive (a) support for your Software, and (b) any updates, enhancements or improvements that are included or defined in the Maintenance Policies. Software updates cannot be applied to the Software with an expired Maintenance.

7.0 Technical Information Collection. You agree that Veeam may, for business purposes and improving the Software, collect, process and use technical information that is gathered as part of any product maintenance and support services provided to you, and any other technical information you provide to Veeam, provided that such information does not identify You, a specific individual, or contain any personally identifiable information. By providing technical data and information to Veeam, you consent to Veeam’s storage and processing of such technical information for purposes of providing Software and support to you.

8.0 Technical Reporting and Logs. The Software has the capability to provide certain reports and survey information, including the generation and collection of geolocation data, regarding its use to Veeam. This data collection is turned OFF by default and must be enabled by you. You always have the option to enable or disable at any time. Any information collected is deemed confidential and will only be used by Veeam internally to enhance the quality of the Software.

9.0 Personal Information. In the event you provide personal information to Veeam as part of your purchase and use of the Software, or for obtaining Maintenance, your personal information will be used, stored and processed in accordance with the Veeam Privacy Policy, which can be found at https://www.veeam.com/privacy-policy.html. You can always update your preferences by visiting the Veeam customer portal.

10.0 Capacity Limitations in Software. For certain Software, your use of the Software may be limited by the capacity purchased. In the event you exceed the purchased capacity, the Software may not process additional workloads beyond the maximum capacity until you purchase additional capacity.

11.0 Intellectual Property Rights. All right, title and interest to the intellectual property rights in and to the Software, and any copies that you are permitted to make, are owned by Veeam and / or its licensors and is protected by Swiss, United States and other country patent, copyright, trade secret and other laws and international treaties. Such licensors, in addition to any other rights or remedies available to them, are third party beneficiaries of this EULA for their respective software. This Software is LICENSED, NOT SOLD. The purchase of the Software license (perpetual or subscription), is non-returnable and non-refundable. The Software is protected by patents, and certain trademarks and logos used in the software are protected by trademarks. A list of patents and trademarks can be found at https://www.veeam.com/veeam-patents-and-registered-trademarks.html.

12.0 Audit. During the term of this Agreement and for a period of one year thereafter, Veeam may, during normal business hours and upon reasonable prior notice to End User, inspect the files, computer processors, equipment and facilities of End User to verify End User's compliance with this EULA.

13.0 Open Source and Third Party Software. “Open Source” means various open source software components licensed under the terms of applicable open source license agreements included in the materials relating to such software. Open Source Software is composed of individual software components, each of which has its own copyright and its own applicable license conditions. A current list of Open Source Software and third party software components used by Veeam can be found at http://www.veeam.com/eula-oss.html.

14.0 Veeam Community Forums. Any information that you post on the Veeam Community Forums is deemed non-confidential to you. Veeam has no obligation to manage or protect any information (confidential or personal) that you disclose on the Veeam Community Forums.

15.0 Limited Warranty and Limitation of Liability. Veeam warrants that it has the right and authority to grant the License under this EULA. Veeam will defend or, at its option, settle any action against End User based upon a claim that its use of the Software infringes any patent, copyright or other intellectual property right of a third party, and will indemnify End User against any amounts awarded against End User as a result of the claim, provided Veeam is promptly notified of the assertion of the claim and has control of its defense or settlement. Veeam warrants that the Software, in its unmodified form as initially delivered or made available to End User, will perform substantially in accordance with the Documentation for a warranty period of ninety (90) days from the date the Software is delivered to End User. This warranty does not apply to Licenses under sections 4.0 and 5.0. In the event the Software fails in a material respect to operate in accordance with the Documentation during the warranty period and Veeam is unable to correct the defect, Veeam’s sole and exclusive liability and End User’s sole and exclusive remedy shall be a refund of the License fee, if any, paid by End User for the Software. In the event a reported problem with the Software is End User’s fault, End User agrees to reimburse Veeam for its correction efforts in accordance with its

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then standard rates. The foregoing limited warranty will not apply if failure of the Software is the result of damage or misuse caused by End User. EXCEPT FOR THE LIMITED WARRANTY SET FORTH ABOVE, THE SOFTWARE IS PROVIDED 'AS IS”, WITHOUT WARRANTY OF ANY KIND, EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION ANY IMPLIED WARRANTY THAT THE SOFTWARE IS FREE OF DEFECTS, MERCHANTABLE OR FIT FOR A PARTICULAR PURPOSE. NO ORAL OR WRITTEN INFORMATION OR ADVICE GIVEN BY VEEAM OR ANY THIRD PARTY, INCLUDING, WITHOUT LIMITATION, ANY VEEAM DISTRIBUTORS OR RESELLERS, SHALL CREATE ANY WARRANTY IN ADDITION TO, OR IN ANY WAY INCREASE THE SCOPE OF, THE LIMITED WARRANTY. In no event will Veeam, its affiliates, resellers, or distributors or suppliers be liable for any indirect, special, incidental or consequential damages arising out of the use of or inability to use the Software, including, without limitation, damages for lost profits, loss of goodwill, work stoppage, computer failure or malfunction, or any and all other commercial damages or losses, even if advised of the possibility thereof.

16.0 General. This Agreement sets forth Veeam's entire obligation and End User’s exclusive rights with respect to the Software and, except to the extent otherwise specifically provided in a purchase order or other written communication or advertising signed or jointly issued by both parties with respect to the Software, supersedes any conflicting terms of any purchase order and any other communication or advertising with respect to the Software. No failure of either party to exercise or enforce any of its rights under this EULA will act as a waiver of those rights. If any provision of this EULA is found illegal or unenforceable, it will be enforced to the maximum extent permissible, and the legality and enforceability of the other provisions of this EULA will not be affected. This EULA will be governed by the laws of Switzerland, without regard to its choice of law principles. You agree that exclusive jurisdiction for any claim or dispute arising out of or in connection with this EULA resides in the Courts of Switzerland in the Canton of Zug. This Agreement and the underlying licenses may not be assigned without completely removing the software installation from the assignor, notifying and providing Veeam with the assignee contact information (for support purposes), and is subject to the assignee agreeing to and complying with the terms and conditions of this Agreement and the Licensing Policy.

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■ VMware vSphere Essentials Kit

VMware vSphere is a registered trademark of VMware in the United States and in other countries.

VMware vSphere Essentials Kit

https://www.vmware.com/download/eula.html

On-Premises Software Offerings

VMware commercial on-premises software offerings are provided under the VMware End User License Agreement and the VMware Product Guide:

VMWARE END USER LICENSE AGREEMENT

PLEASE NOTE THAT THE TERMS OF THIS END USER LICENSE AGREEMENT SHALL GOVERN YOUR USE OF THE SOFTWARE, REGARDLESS OF ANY TERMS THAT MAY APPEAR DURING THE INSTALLATION OF THE SOFTWARE.

IMPORTANT-READ CAREFULLY: BY DOWNLOADING, INSTALLING, OR USING THE SOFTWARE, YOU (THE INDIVIDUAL OR LEGAL ENTITY) AGREE TO BE BOUND BY THE TERMS OF THIS END USER LICENSE AGREEMENT (“EULA”). IF YOU DO NOT AGREE TO THE TERMS OF THIS EULA, YOU MUST NOT DOWNLOAD, INSTALL, OR USE THE SOFTWARE, AND YOU MUST DELETE OR RETURN THE UNUSED SOFTWARE TO THE VENDOR FROM WHICH YOU ACQUIRED IT WITHIN THIRTY (30) DAYS AND REQUEST A REFUND OF THE LICENSE FEE, IF ANY, THAT YOU PAID FOR THE SOFTWARE.

EVALUATION LICENSE. If You are licensing the Software for evaluation purposes, Your use of the Software is only permitted in a non-production environment and for the period limited by the License Key. Notwithstanding any other provision in this EULA, an Evaluation License of the Software is provided “AS-IS” without indemnification, support or warranty of any kind, expressed or implied.

1. DEFINITIONS.

1.1. “Affiliate” means, with respect to a party at a given time, an entity that then is directly or indirectly controlled by, is under common control with, or controls that party, and here “control” means an ownership, voting or similar interest representing fifty percent (50%) or more of the total interests then outstanding of that entity.

1.2. “Documentation” means that documentation that is generally provided to You by VMware with the Software, as revised by VMware from time to time, and which may include end user manuals, operation instructions, installation guides, release notes, and on-line help files regarding the use of the Software.

1.3. “Guest Operating Systems” means instances of third-party operating systems licensed by You, installed in a Virtual Machine and run using the Software.

1.4. “Intellectual Property Rights” means all worldwide intellectual property rights, including without limitation, copyrights, trademarks, service marks, trade secrets, know how, inventions, patents, patent applications, moral rights and all other proprietary rights, whether registered or unregistered.

1.5. “License” means a license granted under Section 2.1 (General License Grant).

1.6. “License Key” means a serial number that enables You to activate and use the Software.

1.7. “License Term” means the duration of a License as specified in the Order.

1.8. “License Type” means the type of License applicable to the Software, as more fully described in the Order.

1.9. “Open Source Software” or “OSS” means software components embedded in the Software and provided under separate license terms, which can be found either in the open_source_licenses.txt file (or similar file) provided within the Software or at www.vmware.com/download/open_source.html.

1.10. “Order” means a purchase order, enterprise license agreement, or other ordering document issued by You to VMware or a VMware authorized reseller that references and incorporates this EULA and is accepted by VMware as set forth in Section 4 (Order).

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1.11. “Product Guide” means the current version of the VMware Product Guide at the time of Your Order, copies of which are found at www.vmware.com/download/eula.

1.12. “Support Services Terms” means VMware’s then-current support policies, copies of which are posted at www.vmware.com/support/policies.

1.13. “Software” means the VMware Tools and the VMware computer programs listed on VMware’s commercial price list to which You acquire a license under an Order, together with any software code relating to the foregoing that is provided to You pursuant to a support and subscription service contract and that is not subject to a separate license agreement.

1.14. “Territory” means the country or countries in which You have been invoiced; provided, however, that if You have been invoiced within any of the European Economic Area member states, You may deploy the corresponding Software throughout the European Economic Area.

1.15. “Third Party Agent” means a third party delivering information technology services to You pursuant to a written contract with You.

1.16. “Virtual Machine” means a software container that can run its own operating system and execute applications like a physical machine.

1.17. “VMware” means VMware, Inc., a Delaware corporation, if You are purchasing Licenses or services for use in the United States and

VMware International Unlimited Company, a company organized and existing under the laws of Ireland, for all other purchases.

1.18. “VMware Tools” means the suite of utilities and drivers, Licensed by VMware under the “VMware Tools” name, that can be installed in a

Guest Operating System to enhance the performance and functionality of a Guest Operating System when running in a Virtual Machine.

2. LICENSE GRANT.

2.1. General License Grant. VMware grants to You a non-exclusive, non-transferable (except as set forth in Section 12.1 (Transfers; Assignment)) license to use the Software and the Documentation during the period of the license and within the Territory, solely for Your internal business operations, and subject to the provisions of the Product Guide. Unless otherwise indicated in the Order, licenses granted to You will be perpetual, will be for use of object code only, and will commence on either delivery of the physical media or the date You are notified of availability for electronic download.

2.2. Third Party Agents. Under the License granted to You in Section 2.1 (General License Grant) above, You may permit Your Third Party Agents to access, use and/or operate the Software on Your behalf for the sole purpose of delivering services to You, provided that You will be fully responsible for Your Third Party Agents’ compliance with terms and conditions of this EULA and any breach of this EULA by a Third Party Agent shall be deemed to be a breach by You.

2.3. Copying Permitted. You may copy the Software and Documentation as necessary to install and run the quantity of copies licensed, but otherwise for archival purposes only.

2.4. Benchmarking. You may use the Software to conduct internal performance testing and benchmarking studies. You may only publish or otherwise distribute the results of such studies to third parties as follows: (a) if with respect to VMware’s Workstation or Fusion products, only if You provide a copy of Your study to [email protected] prior to distribution; (b) if with respect to any other Software, only if VMware has reviewed and approved of the methodology, assumptions and other parameters of the study (please contact VMware at [email protected] to request such review and approval) prior to such publication and distribution.

2.5. VMware Tools. You may distribute the VMware Tools to third parties solely when installed in a Guest Operating System within a Virtual Machine. You are liable for compliance by those third parties with the terms and conditions of this EULA.

2.6. Open Source Software. Notwithstanding anything herein to the contrary, Open Source Software is licensed to You under such OSS’s own applicable license terms, which can be found in the open_source_licenses.txt file, the Documentation or as applicable, the corresponding source files for the Software available at www.vmware.com/download/open_source.html. These OSS license terms are consistent with the license granted in Section 2 (License Grant), and may contain additional rights benefiting You. The OSS license terms shall take

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precedence over this EULA to the extent that this EULA imposes greater restrictions on You than the applicable OSS license terms. To the extent the license for any Open Source Software requires VMware to make available to You the corresponding source code and/or modifications (the "Source Files"), You may obtain a copy of the applicable Source Files from VMware's website at www.vmware.com/download/open_source.html or by sending a written request, with Your name and address to: VMware, Inc., 3401 Hillview Avenue, Palo Alto, CA 94304, United States of America. All requests should clearly specify: Open Source Files Request, Attention: General Counsel. This offer to obtain a copy of the Source Files is valid for three years from the date You acquired this Software.

3. RESTRICTIONS; OWNERSHIP.

3.1. License Restrictions. Without VMware’s prior written consent, You must not, and must not allow any third party to: (a) use Software in an application services provider, service bureau, or similar capacity for third parties, except that You may use the Software to deliver hosted services to Your Affiliates; (b) disclose to any third party the results of any benchmarking testing or comparative or competitive analyses of VMware’s Software done by or on behalf of You, except as specified in Section 2.4 (Benchmarking); (c) make available Software in any form to anyone other than Your employees or contractors reasonably acceptable to VMware and require access to use Software on behalf of You in a matter permitted by this EULA, except as specified in Section 2.2 (Third Party Agents); (d) transfer or sublicense Software or Documentation to an Affiliate or any third party, except as expressly permitted in Section 12.1 (Transfers; Assignment); (e) use Software in conflict with the terms and restrictions of the Software’s licensing model and other requirements specified in Product Guide and/or VMware quote; (f) except to the extent permitted by applicable mandatory law, modify, translate, enhance, or create derivative works from the Software, or reverse engineer, decompile, or otherwise attempt to derive source code from the Software, except as specified in Section 3.2 (Decompilation); (g) remove any copyright or other proprietary notices on or in any copies of Software; or (h) violate or circumvent any technological restrictions within the Software or specified in this EULA, such as via software or services.

3.2. Decompilation. Notwithstanding the foregoing, decompiling the Software is permitted to the extent the laws of the Territory give You the express right to do so to obtain information necessary to render the Software interoperable with other software; provided, however, You must first request such information from VMware, provide all reasonably requested information to allow VMware to assess Your claim, and VMware may, in its discretion, either provide such interoperability information to You, impose reasonable conditions, including a reasonable fee, on such use of the Software, or offer to provide alternatives to ensure that VMware’s proprietary rights in the Software are protected and to reduce any adverse impact on VMware’s proprietary rights.

3.3. Ownership. The Software and Documentation, all copies and portions thereof, and all improvements, enhancements, modifications and derivative works thereof, and all Intellectual Property Rights therein, are and shall remain the sole and exclusive property of VMware and its licensors. Your rights to use the Software and Documentation shall be limited to those expressly granted in this EULA and any applicable Order. No other rights with respect to the Software or any related Intellectual Property Rights are implied. You are not authorized to use (and shall not permit any third party to use) the Software, Documentation or any portion thereof except as expressly authorized by this

EULA or the applicable Order. VMware reserves all rights not expressly granted to You. VMware does not transfer any ownership rights in any Software.

3.4. Guest Operating Systems. Certain Software allows Guest Operating Systems and application programs to run on a computer system. You acknowledge that You are responsible for obtaining and complying with any licenses necessary to operate any such third-party software.

4. ORDER. Your Order is subject to this EULA. No Orders are binding on VMware until accepted by VMware. Orders for Software are deemed to be accepted upon VMware’s delivery of the Software included in such Order. Orders issued to VMware do not have to be signed to be valid and enforceable.

5. RECORDS AND AUDIT. During the License Term for Software and for two (2) years after its expiration or termination, You will maintain accurate records of Your use of the Software sufficient to show compliance with the terms of this EULA. During this period, VMware will have the right to audit Your use of the Software to confirm compliance with the terms of this EULA. That audit is subject to reasonable notice by VMware and will not unreasonably interfere with Your business activities. VMware may conduct no more than one (1) audit in any twelve (12) month period, and only during normal business hours. You will reasonably cooperate with VMware and any third party auditor and will, without prejudice to other rights of VMware, address any non-compliance identified by the audit by promptly paying additional fees. You will promptly reimburse VMware for all reasonable costs of the audit if the audit reveals either underpayment of more than five (5%) percent of the Software fees payable by You for the period audited, or that You have materially failed to maintain accurate records of Software use.

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6. SUPPORT AND SUBSCRIPTION SERVICES. Except as expressly specified in the Product Guide, VMware does not provide any support or subscription services for the Software under this EULA. You have no rights to any updates, upgrades or extensions or enhancements to the Software developed by VMware unless you separately purchase VMware support or subscription services. These support or subscription services are subject to the Support Services Terms.

7. WARRANTIES.

7.1. Software Warranty, Duration and Remedy. VMware warrants to You that the Software will, for a period of ninety (90) days following notice of availability for electronic download or delivery (“Warranty Period”), substantially conform to the applicable Documentation, provided that the Software: (a) has been properly installed and used at all times in accordance with the applicable Documentation; and

(b) has not been modified or added to by persons other than VMware or its authorized representative. VMware will, at its own expense and as its sole obligation and Your exclusive remedy for any breach of this warranty, either replace that Software or correct any reproducible error in that Software reported to VMware by You in writing during the Warranty Period. If VMware determines that it is unable to correct the error or replace the Software, VMware will refund to You the amount paid by You for that Software, in which case the License for that Software will terminate.

7.2. Software Disclaimer of Warranty. OTHER THAN THE WARRANTY ABOVE, AND TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, VMWARE AND ITS SUPPLIERS MAKE NO OTHER EXPRESS WARRANTIES UNDER THIS EULA, AND DISCLAIM ALL IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE AND NON-INFRINGEMENT, AND ANY WARRANTY ARISING BY STATUTE, OPERATION OF LAW, COURSE OF DEALING OR PERFORMANCE, OR USAGE OF TRADE. VMWARE AND ITS LICENSORS DO NOT WARRANT THAT THE SOFTWARE WILL OPERATE UNINTERRUPTED OR THAT IT WILL BE FREE FROM DEFECTS OR THAT IT WILL MEET YOUR REQUIREMENTS.

8. INTELLECTUAL PROPERTY INDEMNIFICATION.

8.1. Defense and Indemnification. Subject to the remainder of this Section 8 (Intellectual Property Indemnification), VMware shall defend You against any third party claim that the Software infringes any patent, trademark or copyright of such third party, or misappropriates a trade secret (but only to the extent that the misappropriation is not a result of Your actions) under the laws of: (a) the United States and Canada; (b) the European Economic Area; (c) Australia; (d) New Zealand; (e) Japan; or (f) the People’s Republic of China, to the extent that such countries are part of the Territory for the License (“Infringement Claim”) and indemnify You from the resulting costs and damages finally awarded against You to such third party by a court of competent jurisdiction or agreed to in settlement. The foregoing obligations are applicable only if You: (i) promptly notify VMware in writing of the Infringement Claim; (ii) allow VMware sole control over the defense for the claim, any settlement negotiations and any related action challenging the validity of the allegedly infringed patent, trademark, or copyright; and (iii) reasonably cooperate in response to VMware requests for assistance. You may not settle or compromise any Infringement Claim without the prior written consent of VMware.

8.2. Remedies. If the alleged infringing Software become, or in VMware’s opinion be likely to become, the subject of an Infringement Claim, VMware will, at VMware’s option and expense, do one of the following: (a) procure the rights necessary for You to make continued use of the affected Software; (b) replace or modify the affected Software to make it non-infringing; or (c) terminate the License to the affected Software and discontinue the related support services, and, upon Your certified deletion of the affected Software, refund: (i) the fees paid by You for the License to the affected Software, less straight-line depreciation over a three (3) year useful life beginning on the date such Software was delivered; and (ii) any pre-paid service fee attributable to related support services to be delivered after the date such service is stopped. Nothing in this Section 8.2 (Remedies) shall limit VMware’s obligation under Section 8.1 (Defense and Indemnification) to defend and indemnify You, provided that You replace the allegedly infringing Software upon VMware’s making alternate Software available to You and/or You discontinue using the allegedly infringing Software upon receiving VMware’s notice terminating the affected License.

8.3. Exclusions. Notwithstanding the foregoing, VMware will have no obligation under this Section 8 (Intellectual Property Indemnification) or otherwise with respect to any claim based on: (a) a combination of Software with non-VMware products (other than non-VMware products that are listed on the Order and used in an unmodified form); (b) use for a purpose or in a manner for which the Software was not designed;

(c) use of any older version of the Software when use of a newer VMware version would have avoided the infringement; (d) any modification to the Software made without VMware’s express written approval; (e) any claim that relates to open source software or freeware technology or any derivatives or other adaptations thereof that is

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not embedded by VMware into Software listed on VMware’s commercial price list; or (f) any Software provided on a no charge, beta or evaluation basis. THIS SECTION 8 (INTELLECTUAL PROPERTY INDEMNIFICATION) STATES YOUR SOLE AND EXCLUSIVE REMEDY AND VMWARE’S ENTIRE LIABILITY FOR ANY INFRINGEMENT CLAIMS OR ACTIONS.

9. LIMITATION OF LIABILITY.

9.1. Limitation of Liability. TO THE MAXIMUM EXTENT MANDATED BY LAW, IN NO EVENT WILL VMWARE AND ITS LICENSORS BE LIABLE FOR ANY LOST PROFITS OR BUSINESS OPPORTUNITIES, LOSS OF USE, LOSS OF REVENUE, LOSS OF GOODWILL, BUSINESS INTERRUPTION, LOSS OF DATA, OR ANY INDIRECT, SPECIAL, INCIDENTAL, OR CONSEQUENTIAL DAMAGES UNDER ANY THEORY OF LIABILITY, WHETHER BASED IN CONTRACT, TORT, NEGLIGENCE, PRODUCT LIABILITY, OR OTHERWISE. BECAUSE SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF LIABILITY FOR CONSEQUENTIAL OR INCIDENTAL DAMAGES, THE PRECEDING LIMITATION MAY NOT APPLY TO YOU. VMWARE’S AND ITS LICENSORS’ LIABILITY UNDER THIS EULA WILL NOT, IN ANY EVENT, REGARDLESS OF WHETHER THE CLAIM IS BASED IN CONTRACT, TORT, STRICT LIABILITY, OR OTHERWISE, EXCEED THE GREATER OF THE LICENSE FEES YOU PAID FOR THE SOFTWARE GIVING RISE TO THE CLAIM OR $5000. THE FOREGOING LIMITATIONS SHALL APPLY REGARDLESS OF WHETHER VMWARE OR ITS LICENSORS HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES AND REGARDLESS OF WHETHER ANY REMEDY FAILS OF ITS ESSENTIAL PURPOSE.

9.2. Further Limitations. VMware’s licensors shall have no liability of any kind under this EULA and VMware’s liability with respect to any third party software embedded in the Software shall be subject to Section 9.1 (Limitation of Liability). You may not bring a claim under this EULA more than eighteen (18) months after the cause of action arises.

10. TERMINATION.

10.1. EULA Term. The term of this EULA begins on the notice of availability for electronic download or delivery of the Software and continues until this EULA is terminated in accordance with this Section 10.

10.2. Termination for Breach. VMware may terminate this EULA effective immediately upon written notice to You if: (a) You fail to pay any portion of the fees under an applicable Order within ten (10) days after receiving written notice from VMware that payment is past due; or

(b) You breach any other provision of this EULA and fail to cure within thirty (30) days after receipt of VMware’s written notice thereof.

10.3. Termination for Insolvency. VMware may terminate this EULA effective immediately upon written notice to You if You: (a) terminate or suspend your business; (b) become insolvent, admit in writing Your inability to pay Your debts as they mature, make an assignment for the benefit of creditors; or become subject to control of a trustee, receiver or similar authority; or (c) become subject to any bankruptcy or insolvency proceeding.

10.4. Effect of Termination. Upon VMware’s termination of this EULA: (a) all Licensed rights to all Software granted to You under this EULA will immediately cease; and (b) You must cease all use of all Software, and return or certify destruction of all Software and License Keys (including copies) to VMware, and return, or if requested by VMware, destroy, any related VMware Confidential Information in Your possession or control and certify in writing to VMware that You have fully complied with these requirements. Any provision will survive any termination or expiration if by its nature and context it is intended to survive, including Sections 1 (Definitions), 2.6 (Open Source Software), 3 (Restrictions; Ownership), 5 (Records and Audit), 7.2 (Software Disclaimer of Warranty), 9 (Limitation of Liability), 10 (Termination), 11 (Confidential Information) and 12 (General).

11. CONFIDENTIAL INFORMATION.

11.1. Definition. “Confidential Information” means information or materials provided by one party (“Discloser”) to the other party (“Recipient”) which are in tangible form and labelled “confidential” or the like, or, information which a reasonable person knew or should have known to be confidential. The following information shall be considered Confidential Information whether or not marked or identified as such: (a) License Keys; (b) information regarding VMware’s pricing, product roadmaps or strategic marketing plans; and (c) non-public materials relating to the Software.

11.2. Protection. Recipient may use Confidential Information of Discloser; (a) to exercise its rights and perform its obligations under this EULA; or (b) in connection with the parties’ ongoing business relationship. Recipient will not use any Confidential Information of Discloser for any purpose not expressly permitted by this EULA, and will disclose the Confidential Information of Discloser only to the employees or contractors of Recipient who have a need to know such Confidential Information for purposes of this EULA and who are under a duty of confidentiality no less restrictive than Recipient’s duty hereunder. Recipient will protect Confidential Information from unauthorized use,

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access, or disclosure in the same manner as Recipient protects its own confidential or proprietary information of a similar nature but with no less than reasonable care.

11.3. Exceptions. Recipient’s obligations under Section 11.2 (Protection) with respect to any Confidential Information will terminate if Recipient can show by written records that such information: (a) was already known to Recipient at the time of disclosure by Discloser; (b) was disclosed to Recipient by a third party who had the right to make such disclosure without any confidentiality restrictions; (c) is, or through no fault of Recipient has become, generally available to the public; or (d) was independently developed by Recipient without access to, or use of, Discloser’s Information. In addition, Recipient will be allowed to disclose Confidential Information to the extent that such disclosure is required by law or by the order of a court of similar judicial or administrative body, provided that Recipient notifies Discloser of such required disclosure promptly and in writing and cooperates with Discloser, at Discloser’s request and expense, in any lawful action to contest or limit the scope of such required disclosure.

11.4. Data Privacy. You agree that VMware may process technical and related information about Your use of the Software which may include internet protocol address, hardware identification, operating system, application software, peripheral hardware, and non-personally identifiable Software usage statistics to facilitate the provisioning of updates, support, invoicing or online services and may transfer such information to other companies in the VMware worldwide group of companies from time to time. To the extent that this information constitutes personal data, VMware shall be the controller of such personal data. To the extent that it acts as a controller, each party shall comply at all times with its obligations under applicable data protection legislation.

12. GENERAL.

12.1. Transfers; Assignment. Except to the extent transfer may not legally be restricted or as permitted by VMware’s transfer and assignment policies, in all cases following the process set forth at www.vmware.com/support/policies/licensingpolicies.html, You will not assign this EULA, any Order, or any right or obligation herein or delegate any performance without VMware’s prior written consent, which consent will not be unreasonably withheld. Any other attempted assignment or transfer by You will be void. VMware may use its Affiliates or other sufficiently qualified subcontractors to provide services to You, provided that VMware remains responsible to You for the performance of the services.

12.2. Notices. Any notice delivered by VMware to You under this EULA will be delivered via mail, email or fax.

12.3. Waiver. Failure to enforce a provision of this EULA will not constitute a waiver.

12.4. Severability. If any part of this EULA is held unenforceable, the validity of all remaining parts will not be affected.

12.5. Compliance with Laws; Export Control; Government Regulations. Each party shall comply with all laws applicable to the actions contemplated by this EULA. You acknowledge that the Software is of United States origin, is provided subject to the U.S. Export Administration Regulations, may be subject to the export control laws of the applicable territory, and that diversion contrary to applicable export control laws is prohibited. You represent that (1) you are not, and are not acting on behalf of, (a) any person who is a citizen, national, or resident of, or who is controlled by the government of any country to which the United States has prohibited export transactions; or (b) any person or entity listed on the U.S. Treasury Department list of Specially Designated Nationals and Blocked Persons, or the U.S. Commerce Department Denied Persons List or Entity List; and (2) you will not permit the Software to be used for, any purposes prohibited by law, including, any prohibited development, design, manufacture or production of missiles or nuclear, chemical or biological weapons. The Software and accompanying documentation are deemed to be “commercial computer software” and “commercial computer software documentation”, respectively, pursuant to DFARS Section 227.7202 and FAR Section 12.212(b), as applicable. Any use, modification, reproduction, release, performing, displaying or disclosing of the Software and documentation by or for the U.S. Government shall be governed solely by the terms and conditions of this EULA.

12.6. Construction. The headings of sections of this EULA are for convenience and are not to be used in interpreting this EULA. As used in this EULA, the word ‘including’ means “including but not limited to”.

12.7. Governing Law. This EULA is governed by the laws of the State of California, United States of America (excluding its conflict of law rules), and the federal laws of the United States. To the extent permitted by law, the state and federal courts located in Santa Clara County, California will be the exclusive jurisdiction for disputes arising out of or in connection with this EULA. The U.N. Convention on Contracts for the International Sale of Goods does not apply.

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12.8. Third Party Rights. Other than as expressly set out in this EULA, this EULA does not create any rights for any person who is not a party to it, and no person who is not a party to this EULA may enforce any of its terms or rely on any exclusion or limitation contained in it.

12.9. Order of Precedence. In the event of conflict or inconsistency among the Product Guide, this EULA and the Order, the following order of precedence shall apply unless otherwise set forth in an enterprise license agreement: (a) the Product Guide, (b) this EULA and (c) the Order. With respect to any inconsistency between this EULA and an Order, the terms of this EULA shall supersede and control over any conflicting or additional terms and conditions of any purchase order, acknowledgement or confirmation or other document issued by You.

12.10. Entire Agreement. This EULA, including accepted Orders and any amendments hereto, and the Product Guide contain the entire agreement of the parties with respect to the subject matter of this EULA and supersede all previous or contemporaneous communications, representations, proposals, commitments, understandings and agreements, whether written or oral, between the parties regarding the subject matter hereof. This EULA may be amended only in writing signed by authorized representatives of both parties.

12.11. Contact Information. Please direct legal notices or other correspondence to VMware, Inc., 3401 Hillview Avenue, Palo Alto, California 94304, United States of America, Attention: Legal Department.

Cloud Service Offerings

VMware commercial cloud and hosted services are provided under the VMware Terms of Service and the VMware Data Processing Addendum, together with the ancillary documents listed below.

VMware Cloud Service Offerings TERMS OF SERVICE

Last updated: 13 September 2019

By using a Service Offering, you agree to be bound by these terms of service between you and VMware (“Terms of Service”), and by the Service Offering Documentation, which together constitute the “Agreement”. If you do not agree to these Terms of Service or to any other portion of the Agreement you must not use the Service Offering. “You” means you individually or the entity that you represent (and, as applicable, your Users). If you are entering into the Agreement for an entity, you represent that you have the authority to bind that entity. “VMware”, “we”, or “us” means VMware, Inc., a Delaware corporation, if the billing address for your Order is in the United States, or VMware International Unlimited Company, a company organized and existing under the laws of Ireland, if the billing address for your Order is outside the United States. Capitalized terms used in these Terms of Service are defined throughout these Terms of Service and in Section 14 (“Definitions”). Section references in this document are to the provisions of these Terms of Service.

The Agreement takes effect when you click “I accept” or similar button or check box presented to you as part of the sign-up process or when you first use the Serving Offering, whichever is earlier, and will remain in effect during the relevant Subscription Term or until terminated as specified in the Agreement.

1. THE SERVICE OFFERING.

1.1 Generally. We may deliver the Service Offering with the assistance of our affiliates and suppliers. We will remain responsible to you for delivery of the Service Offering.

1.2 Use of the Service Offering.

1.2.1 You may use the Service Offering only (a) during the Subscription Term, (b) for your own benefit, and (c) in accordance with the Agreement. To use the Service Offering you must register and set up an authorized account with Login Credentials. You must keep your registration information accurate and complete during the term of the Agreement.

1.2.2 You are responsible for (i) any use of the Service Offering that occurs under your Login Credentials,

(ii) Your Content, and (iii) your Users’ compliance with the Agreement. If you become aware of any User’s or End User’s violation of the Agreement you must promptly suspend that User’s or End User’s access to the Service Offering. If you become aware that any of Your Content, or any Third-Party Content, violates Section 3.1 (“General Restrictions”) or Section 3.2 (“Content Restrictions”), you must promptly remove that Content or suspend use of that Third-Party Content. If you believe your account has been compromised, including any unauthorized access to or

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use or disclosure of any account information, passwords, user names, or Login Credentials, you must notify us as soon as possible by submitting a Severity 1 Service Request (see the applicable Support Policy).

1.2.3 You may receive software from us, incidental to your use of the Service Offering, which must be installed in your on-premises environment to enable you to use the Service Offering. You may use that software only (a) in connection with your use of the Service Offering, (b) for the Subscription Term, and (c) in accordance with the Agreement. If that software is subject to an accompanying license agreement, you must comply with the terms of that license. If that software does not have an accompanying license agreement, then VMware’s standard end user license agreement (found here) applies.

1.2.4 If we reasonably believe a problem with the Service Offering may be attributable to Your Content or to your use of the Service Offering, you must cooperate with us to identify the source of the problem and to resolve the problem.

1.3 Monitoring. We monitor and collect configuration, performance, and usage data relating to your use of the Service Offering: (a) to facilitate delivery of the Service Offering (such as (i) tracking entitlements,

(ii) providing support, (iii) monitoring the performance, integrity, and stability of the Service Offering’s infrastructure, and (iv) preventing or addressing service or technical issues); and (b) to improve our products and services, and your experience. You must not interfere with that monitoring. We will not access Your Content except as necessary to provide the Service Offering, or pursuant to Section 1.9 (“Required Disclosures”).

1.4 Third-Party Content. You may use Third-Party Content, at your option. If you choose to use Third- Party Content, you are responsible for complying with any terms that are presented to you when you access that Third-Party Content, including any separate fees or charges imposed by the provider of that Third-Party Content. Third-Party Content is available “AS IS” without indemnification, support (unless otherwise specified), or warranty or condition of any kind. We may suspend or terminate provision and hosting of any Third-Party Content at any time, and that suspension or termination will not be deemed a material, detrimental change.

1.5 Evaluation Use. If you use any Evaluation Service, the terms of this Section 1.5 govern that use, and control over any conflicting provision of these Terms of Service. The term “Service Offering” includes an Evaluation Service in all provisions of these Terms of Service that are not in conflict with the provisions of this Section 1.5.

1.5.1 You may use an Evaluation Service only (a) for internal testing and evaluation or trial purposes, and (b) for a period of 30 days (unless we specify otherwise) beginning on the date we provide you Login Credentials for or access to the Evaluation Service. You will not have access to the Evaluation Service or to any data or Content in the Evaluation Service after your authorized use period ends.

1.5.2 Use of an Evaluation Service may be subject to additional terms from a third-party service provider.

1.5.3 You may use the Service Offering Documentation provided with an Evaluation Service solely in support of your authorized use of the Evaluation Service.

1.5.4 We will provide the Evaluation Service: (a) free of charge; (b) without support; (c) “AS IS”; and (d) without indemnification, warranty, or condition of any kind. No service level commitment will apply to the Evaluation Service.

1.5.5 The Data Processing Addendum does not apply to your use of (i) an Evaluation Service or (ii) any feature within an Evaluation Service, that is not generally available to our customers.

1.5.6 You must not put production data or data regulated by law or regulation into an Evaluation Service. If you put that data into an Evaluation Service, you do so at your own risk and we will not be responsible for the consequences of that use.

1.5.7 Certain features or functionality of a Service Offering may not be available in an Evaluation Service. Providing any Evaluation Service, or any feature or functionality in an Evaluation Service, does not constitute our commitment to offer the Evaluation Service or that feature or functionality on a generally available basis.

1.5.8 We may modify or terminate an Evaluation Service at any time, and any modification or termination will not be deemed a material, detrimental change.

1.5.9 The aggregate liability (excluding indirect damages, for which we expressly disclaim all liability) of VMware, and its affiliates and suppliers, for any claim arising from your use of an Evaluation Service will not exceed $5,000 USD (or the equivalent in local currency).

1.6 Open Source Software.

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1.6.1 You may receive open source software when you use the Service Offering or any Evaluation Service. The open source software you receive, as well as open source software that you may interact with when using the Service Offering and that we are required to disclose to you, is made available under the applicable open source licenses, found here. You can obtain a copy of these licenses and any source code (and modifications) that we are required to make available under these licenses (“Source Files”) here or by sending a written request, with your name and address, to: VMware, Inc., Attention: General Counsel, 3401 Hillview Avenue, Palo Alto, CA 94304, United States of America. All requests must clearly specify: “Open Source Files Request”. This offer to obtain a copy of the Source Files is valid for three years from the date you last received open source software or interacted with the open source software when using the Service Offering.

1.6.2 Open source software embedded in the Service Offering will not be deemed to be “Third-Party Content”. All provisions in these Terms of Service applicable to the Service Offering (e.g., our warranty, liability, indemnification, and other obligations) will control as between you and VMware over any conflicting terms set forth in any open source software license otherwise applicable to that open source software.

1.7 Optional Feedback. You may provide comments and suggestions regarding a Service Offering, but you are not required to do so. If you provide comments or suggestions, we may use that feedback without restriction, and you hereby irrevocably assign to us all right, title, and interest in and to that feedback. Subject to the preceding sentence regarding any feedback you provide, providing any comments and suggestions does not grant us any rights in Your Content or your intellectual property.

1.8 Modifications.

1.8.1 We may from time to time: (a) modify the Service Offering and/or the Agreement, including any Service Level Agreement, or (b) cease providing any Service Offering. Any changes will become effective on the date published or as we may notify you, but in no case less than 30 days after the date we publish notice of those changes or modifications (except for new features or functionality, which may take effect immediately). Your continued use of the Service Offering after the effective date of any change will be deemed acceptance of the modified Service Offering or terms. It is your responsibility to check the VMware website, here, periodically, for modifications to the Agreement.

1.8.2 If we make a material, detrimental change to the Service Offering or the Agreement, we will notify you prior to the effective date of that change. If you elect to terminate the Agreement because of that change, you must notify us not later than 30 days after the date of our notice. If you terminate the Agreement pursuant to this Section 1.8.2, the termination will be effective as of: (a) the date we receive your notice of termination; or (b) any later date specified in your notice, provided that the effective termination date must not be more than 90 days after the date on which we receive your notice, unless you and we agree to some longer period. You will be responsible for all fees incurred prior to the effective date of any termination pursuant to this Section 1.8.2. If you terminate the Service Offering pursuant to this Section 1.8.2, we will refund any prepaid fees prorated as of the effective date of the termination. Termination and refund, as provided in this Section 1.8.2, is your sole and exclusive remedy if we make a material, detrimental change to the Service Offering or to the Agreement.

1.9 Required Disclosures. If we are required by a subpoena, court order, agency action, or any other legal or regulatory requirement to disclose any of Your Content we will provide you with notice and a copy of the demand as soon as practicable, unless we are prohibited from doing so pursuant to applicable law. If you request, we will, at your expense, take reasonable steps to contest any required disclosure. We will limit the scope of any disclosure to only the information we are required to disclose.

2. DATA PROTECTION AND SECURITY.

2.1 You are solely responsible for ensuring that the Service Offering and its security is appropriate for Your Content and your intended use.

2.2 You are responsible for taking and maintaining appropriate steps to protect the confidentiality, integrity, and security of Your Content. Those steps include (a) controlling access you provide to your Users, (b) configuring the Service Offering appropriately, (c) ensuring the security of Your Content while it is in transit to and from the Service Offering, (d) using encryption technology to protect Your Content, and

(e) backing up Your Content.

2.3 You are responsible for providing any necessary notices to Users and obtaining any legally required consents from Users regarding their use of the Service Offering.

3. ACCEPTABLE USE.

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3.1 General Restrictions. You must not: (a) resell or sublicense the Service Offering; or (b) use the Service Offering (i) in a way prohibited by law or that would cause you or us to be out of compliance with applicable law, (ii) to violate any rights of others, (iii) to try to gain unauthorized access to, test the vulnerability of, or disrupt the Service Offering or any other service, device, data, account, or network, (iv) to distribute spam or malware, (v) in a way that could harm the Service Offering or impair anyone else’s use of it, (vi) in a way intended to work around the Service Offering’s technical limitations, recurring fees calculation, or usage limits, or (vii) for High Risk Activities.

3.2 Content Restrictions. You must not upload into the Service Offering any Content that: (a) may create a risk of harm or any other loss or damage to any person or property; (b) may constitute or contribute to a crime or a tort; (c) includes any data that is illegal, unlawful, harmful, pornographic, defamatory, infringing, or invasive of personal privacy or publicity rights; (d) contains any data that you do not have a right to upload into the Service Offering; or (e) constitutes information governed by HIPAA unless you have signed a Business Associate Agreement (as defined by HIPAA) with us, or is otherwise prohibited as specified in the Agreement.

3.3 Uploading Content. You acknowledge that uploading Your Content to the Service Offering does not constitute a disclosure of Your Content to us and, accordingly, Section 12 (Confidential Information) does not apply to Your Content.

3.4 Notification of Infringement Concerns. If you believe that your copyrighted work has been copied and is accessible on the Service Offering in a way that constitutes copyright infringement you may send a notice to our copyright agent, providing the following information: (a) a description of the copyrighted work that you claim has been infringed and a description of the infringing activity; (b) the location of the material that you claim is infringing, such as the URL where it is posted; (c) your name, address, telephone number, and email address; (d) a statement by you that you have a good faith belief that the disputed use of the material is not authorized by the copyright owner, its agent, or the law; (e) your statement under penalty of perjury that the information in your notice of infringement concern is accurate, and that you are the copyright owner or are authorized to act on the copyright owner’s behalf; and (f) your electronic or physical signature, as the copyright owner or as the person authorized to act on the copyright owner’s behalf. Solely for purposes of reporting copyright infringement, please contact VMware’s copyright agent as follows:

VMware, Inc.

Intellectual Property Counsel 3401 Hillview Avenue

Palo Alto, California 94304 United States of America Email: [email protected] Telephone: +1-877-486-9273

4. INTELLECTUAL PROPERTY OWNERSHIP.

4.1 Ownership of Service Offering. As between you and us, we own all right, title, and interest in and to the Service Offering and any related VMware Software, including all improvements, enhancements, modifications, and derivative works of them, and all Intellectual Property Rights in all of them. This includes any information we collect and analyze about your use of the Service Offering pursuant to Section 1.3 (“Monitoring”). Your rights to use the Service Offering are limited to those expressly granted in the Agreement. No other rights are implied with respect to the Service Offering, any related VMware Software, or any related Intellectual Property Rights.

4.2 Ownership of Your Content. As between you and us, you retain all right, title and interest in and to Your Content and all Intellectual Property Rights in Your Content. Our rights to access and use Your Content are limited to those expressly granted in the Agreement.

5. ORDERS, PAYMENT, AND TAXES.

5.1 Orders Generally.

5.1.1 You must pay all charges you incur for your use of the Service Offering. Charges may consist of both a committed amount as well as additional amounts, including but not limited to charges for add-on features that you order or enable, as well as charges you incur based on actual usage of the Service Offering (metered charges, or “overages”). You must establish a method of payment to cover charges. We may bill you directly for any additional charges, even if you purchase the entitlement for the Service Offering through a VMware authorized reseller. We may not require a purchase order to invoice you for charges.

5.1.2 All Orders are subject to the terms of the Agreement and are not binding until we accept them. An Order will be deemed accepted when we deliver your Login Credentials to the email address associated with the account. We are not required to provide the Service Offering to you until you provide to us all information we require for processing your Order and provisioning the Service Offering for you. All Orders are non-refundable and non-cancellable except as expressly provided in the Agreement. Any refunds to which you are entitled under the

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Agreement will be remitted to you or to the VMware channel partner from which you purchased your entitlement to use the Service Offering.

5.1.3 If a physical object is shipped in connection with the Service Offering, shipping and delivery terms are Ex Works VMware’s regional fulfillment facility (INCOTERMS 2010) or as we or your authorized VMware reseller may otherwise specify.

5.1.4 If you pay for a Service Offering through a credit card, you will be subject to any additional terms presented to you by our third-party credit card payment processor, which will be the merchant of record for that transaction.

5.2 Direct Orders. This Section 5.2 applies only to Orders directly with VMware. If you purchase an entitlement to the Service Offering through a VMware authorized reseller, different terms regarding invoicing, payment, and taxes may apply.

5.2.1 Unless you and we agree otherwise, (i) charges you incur for using the Service Offering will be governed by the applicable price list at the time of invoicing, and (ii) you must pay all charges no later than 30 days after the date of invoice.

5.2.2 Service Offering fees are exclusive of Taxes. You must pay or reimburse us for all Taxes arising out of the transactions contemplated by the Agreement. If you are required to pay or withhold any Tax for payments due under the Agreement, you must gross up your payments to us so that we receive all sums due in full and free of any deductions. If you are required to pay any Taxes to a taxing authority, you must also provide documentation to us showing that you paid those Taxes. You confirm that we can rely on the name and address you provide to us when you register for the Service Offering or in connection with your payment method as being the place of supply for sales tax and income tax purposes, or as being the place of supply for VAT purposes where you have established your business.

6. TEMPORARY SUSPENSION.

6.1 Generally. We may, at our option, suspend your use of any Service Offering if: (a) you are in breach of the Agreement (other than payment) and do not cure that breach within 10 days after we notify you of that breach; (b) any payment is not received when due; (c) we believe that your use of the Service Offering poses a security risk to the Service Offering or to other users of the Service Offering; or (d) we suspect fraud or abuse. We will give you notice before suspending your use of the Service Offering if permitted by law or unless we reasonably determine that providing notice presents a risk of harm to the Service Offering, to other users of the Service Offering, or to any person or property, in which case we will notify you as soon as feasible or permitted. We will suspend your access only to the Service Offering that is the subject of the issue giving rise to the suspension. We will promptly reinstate your access to the Service Offering once we have determined that the issue causing the suspension has been resolved.

6.2 Effect of Suspension. You will remain responsible for all fees incurred before and during any suspension. You will not be entitled to any service credits under the applicable Service Level Agreement that you might have otherwise accrued during any suspension.

7. TERMINATION.

7.1 Generally. You have the right to use the Service Offering during the applicable Subscription Term. You may stop using a Service Offering at any time, but you will remain liable for all fees and charges otherwise due during the applicable Subscription Term.

7.2 Termination for Cause.

7.2.1 We may, at our option, terminate the Agreement effective immediately upon written notice to you

(i) if we have the right to suspend under Section 6.1 (“Temporary Suspension; Generally”) or (ii) to comply with applicable law.

7.2.2 Subject to Section 7.2.1, either you or we may terminate the Agreement effective immediately upon written notice to the other party if that party (a) commits a breach of the Agreement and fails to cure within 30 days of notice of the breach, or (b) commits a material breach of the Agreement that cannot be cured, or (c) terminates or suspends its business.

7.2.3 If you terminate the Agreement pursuant to Section 7.2.2, we will refund any prepaid Service Offering fees prorated as of the effective date of the termination.

7.3 Termination for Insolvency. Either you or we may terminate the Agreement effective immediately upon sending the other party notice if that party: (a) becomes insolvent, admits in writing its inability to pay its debts as they

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mature, or makes an assignment for the benefit of creditors; or (b) becomes subject to control of a trustee, receiver, or similar authority, or to any bankruptcy or insolvency proceeding.

7.4 Effect of Termination.

7.4.1 Upon termination of the Agreement for any reason: (a) you must stop using the Service Offering, and (b) you must return or, if we request, destroy, any Confidential Information of VMware or our suppliers in your possession or under your control (other than information that must be retained pursuant to law). Deletion of any Content remaining in the Service Offering will occur as specified in the applicable Service Description. As between you and us, you are responsible for ensuring that you have necessary copies of all Your Content prior to the effective date of any termination.

7.4.2 Any provision that, by its nature and context is intended to survive termination or expiration of the Agreement, will survive. The Data Processing Addendum (to the extent we continue to process Personal Data, as defined in the Data Processing Addendum, following any termination of the Agreement) will also survive any termination or expiration of the Agreement.

7.4.3 Except to the extent you or we are permitted to terminate the Agreement pursuant to Sections 1.8 (“Modifications”), 7.2 (“Termination for Cause”), or 10.2 (“Indemnification by VMware”), any termination of the Agreement will not entitle you to any refunds, credits, or exchanges, and you will be liable for all fees incurred as of the effective termination date. If we terminate the Agreement prior to expiration of a Subscription Term pursuant to Section 7.2, you will be liable for all fees due with respect to the Service Offering for the remainder of the then-current Subscription Term.

8. SUPPORT. We will provide support to you for the Service Offering in accordance with the applicable Support Policy, and as specified in the applicable Service Description. We will not provide support for Your Content to your End Users.

9. WARRANTIES.

9.1 Limited Warranty: Duration and Remedy. We warrant that the Service Offering will perform in accordance with the applicable Service Level Agreement, if any, during the Subscription Term, provided that the Service Offering has at all times been used in accordance with the Agreement. If we fail to meet this limited warranty, your sole and exclusive remedy for that failure is as specified in the Service Level Agreement.

9.2 Disclaimer. OTHER THAN THE LIMITED WARRANTY SET FORTH IN SECTION 9.1, TO THE MAXIMUM EXTENT PERMITTED BY LAW, WE, FOR OURSELVES AND ON BEHALF OF OUR SUPPLIERS, DISCLAIM ALL WARRANTIES, WHETHER EXPRESS, IMPLIED, OR STATUTORY, INCLUDING ANY WARRANTIES OF MERCHANTABILITY, SATISFACTORY QUALITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, AND NON-INFRINGEMENT, AND ANY WARRANTIES ARISING FROM COURSE OF DEALING OR COURSE OF PERFORMANCE, RELATING TO THE SERVICE OFFERING AND TO ALL MATERIALS OR SERVICES PROVIDED TO YOU UNDER THE AGREEMENT, INCLUDING ANY THIRD-PARTY CONTENT. WE AND OUR SUPPLIERS DO NOT WARRANT THAT THE SERVICE OFFERING WILL BE UNINTERRUPTED OR FREE FROM DEFECTS OR ERRORS, OR THAT THE SERVICE OFFERING WILL MEET (OR IS DESIGNED TO MEET) YOUR BUSINESS REQUIREMENTS.

10. INDEMNIFICATION.

10.1 Indemnification by You. Subject to the remainder of this Section 10.1, you will (a) defend us against any Third-Party Claim; and (b) indemnify us from all fines, damages, and other costs finally awarded by a court of competent jurisdiction or a government agency, or agreed to in settlement. We will:

(i) provide you with notice of any Third-Party Claim within a reasonable period after learning of the claim (provided that any delay in providing the notice will relieve you of your indemnification obligations only to the extent that the delay prejudices you), and (ii) reasonably cooperate in response to your requests for assistance. You will have sole control over the defense of any Third-Party Claim. You may not, without our prior written consent, which will not be unreasonably withheld, conditioned, or delayed, settle any Third- Party Claim if that settlement obligates us to admit any liability or to pay any unreimbursed amounts to the claimant, or would affect any Service Offering or our business practices or policies.

10.2 Indemnification by VMware; Infringement Claims.

10.2.1 Subject to the remainder of this Section 10.2, we will: (a) defend you against any Infringement Claim; and (b) indemnify you from all fines, damages, and costs finally awarded against you by a court of competent jurisdiction or a government agency, or agreed to in settlement with regard to any Infringement Claim. The foregoing obligations are applicable only if you: (i) provide us with notice of any Infringement Claim within a reasonable period after

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learning of the claim (provided that any delay in providing the notice will relieve us of our indemnification obligations only to the extent that the delay prejudices us); (ii) allow us sole control over the defense of the Infringement Claim; and (iii) reasonably cooperate in response to our requests for assistance with regard to the Infringement Claim. We will not, without your prior written consent, which will not be unreasonably withheld, conditioned, or delayed, enter into any settlement of any Infringement Claim that obligates you to admit any liability or to pay any unreimbursed amounts to the claimant.

10.2.2 If the Service Offering becomes or in our opinion is likely to become the subject of an Infringement Claim, we will at our option and expense: (a) procure the rights necessary for you to keep using the Service Offering; or (b) modify or replace the Service Offering to make it non-infringing without materially reducing its functionality; or (c) terminate the Agreement and refund any prepaid fees, prorated for the remaining portion of the then-current Subscription Term.

10.2.3 We will have no obligation under this Section 10.2 or otherwise with respect to any Infringement Claim based on: (a) combination of the Service Offering with non-VMware products or content, including any of Your Content and/or any Third-Party Content; (b) use of the Service Offering for a purpose or in a manner not permitted by the Agreement; (c) any modification to the Service Offering made without our express written approval; (d) any claim that relates to open source software or freeware technology or any derivative or other adaptation thereof that is not embedded by VMware into the VMware Software; or (e) any Service Offering provided on a no-charge basis.

10.2.4 This Section 10.2 states your sole and exclusive remedy and our entire liability for any Infringement Claims.

11. LIMITATION OF LIABILITY.

11.1 Disclaimer. TO THE MAXIMUM EXTENT PERMITTED BY LAW, IN NO EVENT WILL WE BE LIABLE FOR ANY LOST PROFITS OR BUSINESS OPPORTUNITIES, LOSS OF USE OF THE SERVICE OFFERING, OR LOSS OF CONTENT FOR ANY REASON INCLUDING POWER OUTAGES, SYSTEM FAILURES, OR OTHER INTERRUPTIONS (SUBJECT TO OUR OBLIGATIONS UNDER THE APPLICABLE SERVICE LEVEL AGREEMENT), LOSS OF REVENUE, LOSS OF GOODWILL, BUSINESS INTERRUPTION, OR FOR ANY INDIRECT, SPECIAL, INCIDENTAL, OR CONSEQUENTIAL DAMAGES UNDER ANY THEORY OF LIABILITY, WHETHER BASED IN CONTRACT, TORT, NEGLIGENCE, PRODUCT LIABILITY, OR OTHERWISE. THIS LIMITATION WILL APPLY REGARDLESS OF WHETHER A PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF THOSE DAMAGES AND REGARDLESS OF WHETHER ANY REMEDY FAILS OF ITS ESSENTIAL PURPOSE. BECAUSE SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF LIABILITY FOR CONSEQUENTIAL OR INCIDENTAL DAMAGES, THE FOREGOING LIMITATION MAY NOT APPLY.

11.2 Cap on Monetary Liability. OUR LIABILITY FOR ANY CLAIM UNDER THE AGREEMENT WILL NOT EXCEED AN AMOUNT EQUAL TO THE TOTAL FEES PAID OR PAYABLE TO US FOR YOUR USE OF THE PARTICULAR SERVICE OFFERING GIVING RISE TO THE CLAIM IN THE TWELVE (12) MONTHS PRIOR TO THE EVENT GIVING RISE TO THE CLAIM. THE LIMITATION OF LIABILITY IN THIS SECTION 11.2 WILL NOT APPLY TO (i) VMWARE’S INDEMNIFICATION OBLIGATIONS UNDER SECTION 10.2.1 OF THESE TERMS OF SERVICE OR (ii) ANY LIABILITY WHICH MAY NOT BE EXCLUDED BY LAW.

11.3 Further Limitations.

11.3.1 Our suppliers have no liability of any kind under the Agreement. You may not bring a claim directly against any of them under the Agreement. Our liability with respect to any Third-Party Content used or made available as part of a Service Offering is subject to this Section 11.

11.3.2 You may not bring a claim under the Agreement more than eighteen (18) months after the cause of action arises.

12. CONFIDENTIAL INFORMATION.

12.1 Protection. Either party (the “recipient”) may use Confidential Information of the other party (the “discloser”) disclosed to it in connection with the Agreement solely to exercise its rights and perform its obligations under the Agreement or as otherwise permitted by the Agreement. You and we will each use reasonable care to protect that Confidential Information in the same manner as we each protect our own Confidential Information of a similar nature, but in any event with not less than reasonable care. The recipient may disclose the discloser’s Confidential Information only to the recipient’s employees, or to third parties, who have a need to know the Confidential Information for purposes of the Agreement, and who are under a duty of confidentiality no less restrictive than as specified in this Section 12. The recipient may also disclose the discloser’s Confidential Information in accordance with the procedures set forth in Section

1.9 (“Required Disclosures”).

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12.2 Exceptions. The recipient’s obligations under Section 12.1 with respect to any of the discloser’s Confidential Information will terminate if the recipient can show by written records that the information: (a) was, at the time of disclosure by the discloser, already rightfully known to the recipient without any obligation of confidentiality; (b) was disclosed to the recipient by a third party who had the right to make the disclosure without any confidentiality restrictions; (c) at the time of disclosure is, or through no fault of the recipient has become, generally available to the public; or (d) was independently developed by the recipient without access to or use of the discloser’s Confidential Information.

12.3 Injunctive Relief. Nothing in the Agreement limits either party’s ability to seek equitable relief.

13. GENERAL.

13.1 Assignment. You may not assign or transfer the Agreement, in whole or in part, by operation of law or otherwise, without our prior written consent. Any attempted assignment or transfer of the Agreement without our consent will be void and will be a breach of the Agreement. Subject to these limitations, the Agreement will bind and inure to the benefit of the parties and their respective successors and assigns.

13.2 Notices. Any notice by us to you under the Agreement will be given: (a) by email to the email address associated with your account, if you have subscribed to this method of receiving notices, or (b) by posting on either the Service Offering portal or the My VMware portal. You must direct legal notices or other correspondence to VMware, Inc., 3401 Hillview Avenue, Palo Alto, California 94304, United States of America, Attention: Legal Department.

13.3 Waiver. Waiver of a breach of any provision of the Agreement will not constitute a waiver of any later breach of that provision, or waiver of a breach of any other provision.

13.4 Severability. If any provision of the Agreement is held to be invalid or unenforceable, the remaining provisions of the Agreement will remain in force to the extent feasible.

13.5 Compliance with Laws. You and we must each comply with all laws applicable to the actions contemplated by the Agreement.

13.6 Export Control. You acknowledge that the Service Offering is of United States origin, is provided subject to the U.S. Export Administration Regulations (including “deemed export” and “deemed re-export” regulations), and may be subject to the export control laws of any other applicable country. You represent and warrant that: (a) you, and any User, are not, and are not acting on behalf of, (i) any person who is a citizen, national, or resident of, or who is controlled by, the government of any country to which the United States has prohibited export transactions; or (ii) any person or entity listed on the U.S. Treasury Department list of Specially Designated Nationals and Blocked Persons, or the U.S. Commerce Department Denied Persons List or Entity List, or any similar designated persons list published for the jurisdiction in which the applicable data center is located; (b) you, and any User, will not permit the Service Offering to be used for any purposes prohibited by law, including any prohibited development, design, manufacture, or production of missiles or nuclear, chemical, or biological weapons; (c) no Content will be classified or listed on the United States Munitions list or similar list published for the jurisdiction in which the applicable data center is located, or contain defense articles, defense services, or ITAR-related data;

(d) no Content will require an export license or is restricted under applicable export control laws from export to any country where VMware or VMware’s service providers maintain facilities or personnel; and (e) you, and any User, are not subject, either directly or indirectly, to any order issued by any agency of the United States government revoking or denying, in whole or in part, your United States export privileges. You must notify VMware promptly if you or any User becomes subject to any order of that type. For purposes of sales to government entities in the United States, any Service Offering and the accompanying Service Offering Documentation are deemed to be “commercial computer software” and “commercial computer software documentation”, respectively, pursuant to DFARS Section 227.7202 and FAR Section 12.212(b), as applicable. Any use, modification, reproduction, release, performing, displaying, or disclosure of any Service Offering or the Service Offering Documentation, by or for the U.S. Government will be governed solely by the terms and conditions of the Agreement, in conjunction with statutes, regulations, and the terms of the GSA Schedule, and in accordance with the provisions of Section 13.13 (“Order of Precedence”).

13.7 Force Majeure. Neither you nor VMware will be liable for any delay or failure to perform its obligations under the Agreement, except for your payment obligations, due to any cause beyond your or our reasonable control including labor disputes or other industrial disturbances, systemic electrical, telecommunications or other utility failures, earthquakes, storms or other acts of nature, embargoes, riots, acts or orders of government, acts of terrorism, or war.

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13.8 Construction. The headings of sections of these Terms of Service are for convenience and are not for use in interpreting these Terms of Service. As used in these Terms of Service, the word “including” means “including but not limited to”.

13.9 Language. The Agreement is in English, and the English language version governs any conflict with a translation into any other language.

13.10 Governing Law. If your billing address is in the United States, the Agreement is governed by the laws of the State of California and the federal laws of the United States. If your billing address is outside the United States, the Agreement is governed by the laws of Ireland. Conflict of law rules are expressly disclaimed. The U.N. Convention on Contracts for the International Sale of Goods does not apply.

13.11 Third Party Rights. Other than as expressly provided in the Agreement, the Agreement does not create any rights for any person who is not a party to it, and only persons who are parties to the Agreement may enforce any of its terms or rely on any exclusion or limitation contained in the Agreement.

13.12 Independent Parties. We and you are independent contracting parties, and the Agreement will not be construed to create a partnership, joint venture, agency, or employment relationship between us. Neither you nor VMware, nor any of our respective affiliates, officers, directors, or employees, is an agent of the other for any purpose, nor has the authority to bind the other.

13.13 Order of Precedence. The terms of the Agreement will supersede any conflicting or additional terms and conditions of any purchase order or other purchasing-related document issued by you relating to any Order for the Service Offering.

13.14 Entire Agreement. The Agreement as it may be modified from time to time is the entire agreement between you and VMware regarding its subject matter. The Agreement supersedes all prior or contemporaneous communications, understandings and agreements, whether written or oral, between you and VMware regarding its subject matter.

14. DEFINITIONS.

“Account Information” means information about you that you provide to us in connection with creation or administration of your account, including names, usernames, phone numbers, email addresses, and billing information associated with your account.

“Confidential Information” means your Login Credentials, and any non-public technical, business, or other information or materials disclosed or otherwise made available by either you or us to the other party regarding the Agreement or the Service Offering, that are in tangible form and labeled “confidential” or the like, or are provided under circumstances reasonably indicating confidentiality. Your Confidential Information does not, for purposes of the Agreement, include Your Content. If you disclose Your Content to us or if we access Your Content as permitted by the Agreement, including for purposes of providing support to you, we will use the same standard of care with respect to that data as we use to protect our own Confidential Information.

“Content” means any data, including all text, sound, video, or image files, and software (including machine images), or other information.

“Data Processing Addendum” means the then-current version of the VMware Data Processing Addendum, found here

“End User” means a user of a Service Offering who is not your employee, or onsite contractor or agent. End Users include your customers (e.g., persons to whom you provide a service, and with whom you are in a commercial contractual relationship).

“Evaluation Service” means any Service Offering, or a feature or functionality of a Service Offering, that we offer on an evaluation or trial basis. If you are participating in a separate VMware technical preview or beta program, then the terms of that program will apply.

“High Risk Activities” means workloads or applications used to control or operate activities with a likelihood of injury or death, including but not limited to controlling aircraft or other modes of human mass transportation, nuclear or chemical facilities, life support systems, implantable medical equipment, motor vehicles, weaponry systems, or any similar scenario where failure could lead to personal injury, death, or environmental damage.

“HIPAA” means the Health Insurance Portability and Accountability Act of 1996, as amended and supplemented, and the regulations issued pursuant to that Act.

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“Infringement Claim” means any claim by a third party that the Service Offering infringes any patent, trademark, or copyright of that third party, or misappropriates a trade secret of that third party (but only to the extent that the misappropriation is not a result of your actions), under the laws of: (a) the United States,

(b) Canada, (c) European Economic Area member states, (d) Australia, (e) New Zealand, (f) Japan, or (g) the People’s Republic of China, to the extent that your instance of the Service Offering is provisioned in a data center located in the applicable country (e.g., the laws of Japan would control regarding an Infringement Claim based on a Service Offering instance provisioned in a data center located in Japan).

“Intellectual Property Rights” means all worldwide intellectual property rights, including copyrights, trademarks, service marks, trade secrets, patents, patent applications, moral rights, and all other proprietary rights, whether registered or unregistered.

“Law” includes any statute, ordinance, regulation, or governmental requirement, order, or decree.

“Login Credentials” means any passwords, authentication keys, or security credentials that enable your access to and management of the Service Offering.

“Order” means the internet order page, or other ordering document, that evidences your purchase of a Service Offering, whether you purchase a subscription or use the Service Offering on an on-demand basis.

“Service Description” means the then-current version of the Service Description for the particular Service Offering, found here

“Service Level Agreement” means the then-current version of the Service Level Agreement for the particular Service Offering, found here. Certain Service Offerings may not have a Service Level Agreement.

“Service Offering” means the VMware cloud service offering specified in your Order. “Service Offering” includes an Evaluation Service.

“Service Offering Documentation” means: (i) the VMware Data Processing Addendum, which is applicable to all Service Offerings, and (ii) the specific Service Description, Support Policy, and Service Level Agreement (if any) for the Service Offering; all as revised by VMware from time to time.

“Subscription Term” means the initial term of your authorized use of the Service Offering, as set forth in the applicable Order, together with any renewal terms (if applicable). The initial term begins on the earlier of: (i) the date on which you start using the Service Offering or (ii) the date you complete the registration process; or as otherwise specified in the Order or in the applicable Service Description. For purposes of any on-demand Service Offering, “Subscription Term” means the period during which you are using the Service Offering, for which you will be billed, as specified in the applicable Service Description.

“Support Policy” means the then-current version of the Support Policy for the particular Service Offering, found here.

“Taxes” means any sales, VAT (value-added tax), GST (goods and services tax), use, gross receipts, business and occupation, and other taxes (other than taxes on our income), export and import fees, customs duties, and similar charges imposed by any government or other authority.

“Third-Party Claim” means any third-party claim or demand arising from or relating to (i) Your Content, or

(ii) your use of any Service Offering, including an Evaluation Service, in violation of the Agreement.

“Third-Party Content” means Content provided by a third party, that interoperates with the Service Offering, including open source software, but that is not embedded in or required for use of the Service Offering. As an example, Third-Party Content may include an application that is listed on a marketplace or in a catalog.

“User” means any person who is authorized to access or use the Service Offering or Your Content directly under your Login Credentials, and may include your employees, contractors, service providers, and other third parties, but does not include your End Users.

“Your Content” means Content uploaded into the Service Offering for processing, storage or hosting, by you or by any User, but does not include (i) Third-Party Content, (ii) Account Information, or (iii) data we collect as specified in Section 1.3 (“Monitoring”).

“VMware Software” means the software programs listed in our commercial price list.

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15. TERMS APPLICABLE TO UNITED STATES FEDERAL, STATE, AND LOCAL GOVERNMENT CUSTOMERS. For United States federal, state, and local government customers, the following terms and conditions supersede or modify the referenced provisions of these Terms of Service.

15.1 Replace the preamble with the following:

“If you are an executive agency or a juridical body of the U.S. Government or a state or local government agency, then, in order to be applicable, these terms of service between you and VMware (“Terms of Service”) must be incorporated into any Order for a Service Offering. These Terms of Service incorporate by reference the applicable Service Description, Data Processing Addendum, Support Policy and Service Level Agreement, all of which together constitute the “Agreement”. The incorporation of these additional documents does not diminish your rights under these Terms of Service. If you do not agree to these Terms of Service or to any other portion of the Agreement, or if this Agreement is not incorporated into the Order, you must not use the Service Offering. “You” means the entity accepting the Agreement. “VMware”, “we” or “us” means VMware, Inc., a Delaware corporation. Capitalized terms used in these Terms of Service are defined throughout these Terms of Service and in Section 14 (“Definitions”). Section references in this document are to the provisions of these Terms of Service.

“The Agreement takes effect when you click “I accept” or similar button or check box presented to you as part of the sign-up process or when you first use the Service Offering, whichever is earlier, and will be in effect until the earlier of (1) the end of the term specified in the Order or (2) the date on which the Agreement is terminated as permitted in the Agreement.”

15.2 Add the following at the end of Section 1.2.4 (“Use of the Service Offering”):

“We may ask you to act within a reasonable time to correct a violation, and if you fail to comply with our request we may suspend your account pursuant to Section 6 (‘Temporary Suspension’).”

15.3 Add the following to the end of Section 1.4 (“Third-Party Content”):

“We will use commercially reasonable efforts to provide reasonable notice of that suspension or termination, and will use commercially reasonable efforts to provide access to similar Content where necessary to maintain your uninterrupted use of the Service Offering.”

15.4 Replace Section 5.1.2 (“Orders Generally”) with the following:

“All Orders are subject to the terms of the Agreement, except as required by applicable law or, if applicable, the GSA Schedule’s Order of Precedence clause, and are not binding until accepted by VMware. We are not required to provide any Service Offering to you until you provide to us all information we require for processing your Order and provisioning the Service Offering for you. Your Order will be deemed accepted when we provide your Login Credentials.”

15.5 Add the following to the end of Section 5.2.2:

“This Section 5.2.2 does not apply to you to the extent you are exempt from any Taxes. If you are a state or a local government entity you shall, upon issuing an Order for a Service Offering, provide documentation reasonably acceptable to VMware evidencing your tax-exempt status.”

15.6 Add the following at the beginning of the first sentence of Section 6.1 (“Temporary Suspension; Generally”):

“Subject to and to the extent not prohibited by 41 U.S.C. chapter 71 (Contract Disputes) and FAR 52.233-1 (Disputes) or applicable state law prohibiting a contractor from suspending performance of a contract, …”

15.7 Replace Section 7.2.1 (“Termination for Cause”) with the following:

“Subject to and to the extent not prohibited by 41 U.S.C. chapter 71 (Contract Disputes) and FAR 52.233-1 (Disputes), we may terminate the Agreement if it is determined that you failed to comply with the terms of the Agreement.”

15.8 Replace Section 7.2.2 (“Termination for Cause”) with the following:

“You may terminate the Agreement effective immediately upon written notice to VMware if we (a) commit a breach of the Agreement and fails to cure within 30 days of notice of the breach, or (b) commit a material breach of the Agreement that cannot be cured, or (c) terminate or suspend our business.”

15.9 Replace Section 7.3 (“Termination for Insolvency”) with the following:

“7.3 Termination by You. You may terminate the Agreement for your sole convenience in accordance with FAR 52.212-4(l) or GSAR 552.212-4(l) if either clause is applicable to the relevant Order. You may terminate the

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Agreement in accordance with FAR 52.212-4(m) or GSAR 552.212- 4(m) if either clause is applicable to the relevant Order in the event of our default under the Agreement.”

15.10 Replace the first sentence of Section 7.4.1 (“Effect of Termination”) with the following:

“Upon expiration of the Agreement, or in the event of termination of the Agreement in accordance with 41 U.S.C. chapter 71 (Contract Disputes) and FAR 52.233-1 (Disputes): (a) all rights granted to you under the Agreement, including your ability to use the Service Offering, will be terminated; and (b) you must promptly discontinue your use of the Service Offering and delete or destroy any VMware or our licensors’ Confidential Information in your possession.”

15.11 Replace Section 9.2 (“Warranties; Disclaimer”) with the following:

“TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, WE, FOR OURSELVES AND ON BEHALF OF OUR AFFILIATES AND SUPPLIERS, EXPRESSLY DISCLAIM ALL WARRANTIES RELATING TO THE SERVICE OFFERING OR TO ANY MATERIALS OR SERVICES PROVIDED TO YOU UNDER THE AGREEMENT, WHETHER EXPRESS, IMPLIED, OR STATUTORY, INCLUDING ANY WARRANTIES OF TITLE AND NON-INFRINGEMENT, AND ANY WARRANTIES ARISING FROM COURSE OF DEALING OR COURSE OF PERFORMANCE. WE AND OUR AFFILIATES AND SUPPLIERS DO NOT WARRANT THAT THE SERVICE OFFERING WILL BE UNINTERRUPTED OR FREE FROM DEFECTS, OR THAT THE SERVICE

OFFERING WILL MEET (OR IS DESIGNED TO MEET) YOUR BUSINESS REQUIREMENTS. WE DO NOT COMMIT TO FIXING ALL ERRORS.”

15.12 Modify Section 10.1 (“Indemnification by You”) by adding the following language to the end of the section:

“Notwithstanding anything to the contrary in this Section 10.1, the maximum amount of all fees and damages paid in connection with your indemnification of VMware shall not exceed the amount of appropriated funds available at the time payment must be made.”

15.13 Replace Section 10.2.1 (“Indemnification by VMware”) with the following:

10.2.1 Subject to the remainder of this Section 10.2 and to the provisions of 28 U.S.C. 516 if you are a federal government entity, or the applicable state statute governing control of litigation if you are a state or local government entity, we will (a) defend you against an Infringement Claim, and

(b) indemnify you from costs and damages finally awarded against you by a court of competent jurisdiction or a government agency or agreed to by us in settlement. You will: (i) provide us with notice of any Infringement Claim within a reasonable period after learning of the claim; (ii) allow us the opportunity to participate in the claim’s defense and settlement as provided in applicable laws, rules or regulations; and (iii) reasonably cooperate in response to our requests for assistance. You must make every effort to permit us to participate fully in the defense or settlement of any Infringement Claim; however, we acknowledge that such participation will be under the control of the U.S. Department of Justice if you are a federal government entity, or may be under the control of the applicable state attorney general’s office if you are a state or local government entity.”

15.14 Replace Section 10.2.4 (“Indemnification by VMware”) with the following:

“To the extent permitted by law, this Section 10.2 states your exclusive remedy for any Infringement Claims.”

15.15 Add the following to the end of Section 11.2 (“Cap on Monetary Liability”):

“THIS CLAUSE SHALL NOT IMPAIR THE U.S. GOVERNMENT’S RIGHT TO RECOVER FOR FRAUD OR CRIMES ARISING OUT OF THE AGREEMENT AS PERMITTED UNDER ANY APPLICABLE FEDERAL FRAUD STATUTE, INCLUDING THE FALSE CLAIMS ACT (31 U.S.C. 3729-3733).”

15.16 Replace Section 13.1 (“Assignment”) with the following:

“Except to the extent transfer may not legally be restricted, you must not assign the Agreement, any Order, or any right or obligation under the Agreement, or delegate any performance, without our prior written consent, which consent will not be unreasonably withheld. We may assign our right to receive payment in accordance with the Assignment of Claims Act (31 U.S.C. 3727) and FAR 52.212-4(b), and we may assign the Agreement to the extent not prohibited by the Anti-Assignment Act (41 U.S.C. 15). Subject to the requirements of FAR 42.12 (Novation and Change-of-Name Agreements), you must recognize our successor in interest following a transfer of our assets or a change in our name. Any attempted assignment or transfer in violation of the foregoing will be void. Subject to the foregoing, the Agreement will be binding upon and will inure to the benefit of the parties and their respective successors and assigns.”

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15.17 Replace Section 13.10 (“Governing Law”) with the following:

“If you are a federal government entity, the Agreement is governed by the applicable federal laws of the United States. If the federal laws of the United States are not dispositive, then to the extent permitted by federal law, the Agreement will be governed by the laws of the State of California, excluding its conflict of law principles. If you are a state or local government entity, the Agreement is governed by the laws of your state, excluding its conflict of laws principles. The Agreement does not affect statutory rights that cannot be waived or changed by contract.”

15.18 Add the following to the end of Section 13.11 (“Third Party Rights”):

“Notwithstanding the foregoing, for any Orders placed with a VMware authorized reseller, the reseller may, at our request, bring a claim against you on our behalf to enforce the terms of the Agreement.”

15.19 Replace Section 13.13 (“Order of Precedence”) with the following:

“Your use of the Service Offering is subject to the Agreement to the extent that all such terms and conditions are consistent with federal law and regulations that are applicable, mandatory, and controlling. To the extent terms and conditions of the Agreement are inconsistent with federal law and regulations that are applicable, mandatory, and controlling (see FAR 12.212(a)), they are deemed deleted and unenforceable as applied to any Orders.”

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■ Windows Server 2019 Standard

Microsoft, Windows, Windows Server are registered trademarks or trademarks of Microsoft Corporation in the United States and/or other countries.

Windows Server 2019 Standard

https://www.microsoft.com/licensing/terms/ Microsoft End User License Agreement for U.S. Government

MICROSOFT CORPORATION (“MICROSOFT”) IS A FIRST TIER SUBCONTRACTOR UNDER THIS CONTRACT. THESE MICROSOFT LICENSE TERMS AND CONDITIONS APPLY TO MIRCOSOFT PRODUCTS THAT YOU ORDER FROM THE CONTRACTOR UNDER YOUR CONTRACT WITH THE CONTRACTOR. THESE MICROSOFT LICENSE TERMS AND CONDITIONS SHALL TAKE PRECEDENCE OVER ANY CONFLICTING TERMS IN AN ORDER OR ORDERING DOCUMENTATION.

__________________________________________________

In this agreement, the following definitions apply:

“Additional Product” means any Product identified as such in the Product List and chosen for Enrolled Affiliate under the applicable Enrollment and identified on your Order.

“Affiliate” means any legal entity that a party owns, that owns a party, or that is under common ownership with a party. “Ownership” means, for purposes of this definition, control of more than a 50% interest in an entity.

“Community” means the community consisting of one or more of the following: (1) a Government, (2) an Enrolled Affiliate using eligible Government Community Cloud Services to provide solutions to a Government or a qualified member of the Community, or (3) an Enrolled Affiliate with Customer Data that is subject to Government regulations for which the Enrolled Affiliate determines and Microsoft agrees that the use of Government Community Cloud Services is appropriate to meet the Enrolled Affiliate’s regulatory requirements. Membership in the Community is ultimately at Microsoft’s discretion, which may vary by Government Community Cloud Service.

“Customer Data” means all data, including all text, sound, software, or image files that are provided to Microsoft by, or on behalf of, Enrolled Affiliate through its use of the Online Services.

Any reference in this agreement or an Enrollment to a “day” means a calendar day, except references that specify “business day”.

“Enrollment” means the document that Government Partner submits to Microsoft to place orders for Enrolled Affiliate.

“Enrolled Affiliate” or “you” means any entity of the United States or entity authorized by the United States that enters into a Government Contract for Products with Government Partner.

“Enterprise” means Enrolled Affiliate and the Affiliates listed on an Enrollment.

“Enterprise Product” means any Desktop Platform Product that Microsoft designates as an Enterprise Product in the Product Terms for which Government Partner chooses to order License(s) under an Enrollment for Enrolled Affiliate. Enterprise Products must be licensed for all Qualified Devices and Qualified Users on an Enterprise-wide basis under this program.

“Federal Agency” means a bureau, office, agency, department or other entity of the United States Government.

“Fixes” means Product fixes, modifications or enhancements or their derivatives that Microsoft releases generally (such as Product service packs), or provides to Enrolled Affiliate to address a specific issue.

“Government” means a Federal Agency, State/Local Entity, or Tribal Entity acting in its governmental capacity.

“Government Community Cloud Services” means Microsoft Online Services that are provisioned in Microsoft’s multi-tenant data centers for exclusive use by or for the Community and offered in accordance with the National Institute of Standards and Technology (NIST) Special Publication 800-145. Microsoft Online Services that are Government Community Cloud Services are designated as such in the Use Rights and Product Terms.

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“Government Contract” means the Contract between you and the Contractor, which incorporates these Microsoft License Terms and Conditions.

“Government Partner” means the entity from whom you place your order for Products under the Government Contract.

“Industry Device” (also known as line of business device) means any device that: (1) is not useable in its deployed configuration as a general purpose personal computing device (such as a personal computer), a multi-function server, or a commercially viable substitute for one of these systems; and (2) only employs an industry or task-specific software program (e.g. a computer-aided design program used by an architect or a point of sale program) (“Industry Program”). The device may include features and functions derived from Microsoft software or third-party software. If the device performs desktop functions (such as email, word processing, spreadsheets, database, network or Internet browsing, or scheduling, or personal finance), then the desktop functions: (1) may only be used for the purpose of supporting the Industry Program functionality; and (2) must be technically integrated with the Industry Program or employ technically enforced policies or architecture to operate only when used with the Industry Program functionality.

“License” means Enrolled Affiliate's right to use the quantity of a Product ordered. For certain Products, a License may be available on a subscription basis (“Subscription License”). Licenses for Online Services will be considered Subscription Licenses under these Additional Use Right and Restrictions.

“Managed Device” means any device on which any Affiliate in the Enterprise directly or indirectly controls one or more operating system environments. Examples of Managed Devices can be found in the Product Terms.

“Online Services” means the Microsoft-hosted services identified in the Online Services section of the Product Terms.

“Online Services Terms” means the additional terms that apply to Customer’s use of Online Services published on the Volume Licensing Site and updated from time to time.

“Order” means the order placed by you to the Government Partner under the Government Contract.

“Product” means all products identified on the Product Terms, such as software, Online Services and other web-based services, including pre-release or beta versions. Product availability may vary by region.

“Product Terms” means the document that provides information about Microsoft Products available through volume licensing. The Product Terms document is published on the Volume Licensing Site at http://explore.ms./com and is updated from time to time.

“Qualified Device” means any device that is used by or for the benefit of Enrolled Affiliate’s Enterprise and is: (1) a personal desktop computer, portable computer, workstation, or similar device capable of running Windows Pro locally (in a physical or virtual operating system environment), or (2) a device used to access a virtual desktop infrastructure (“VDI”). Qualified Devices do not include any device that is: (1) designated as a server and not used as a personal computer, (2) an Industry Device, or (3) not a Managed Device.

At its option, the Enrolled Affiliate may designate any device excluded above (e.g., Industry Device) that is used by or for the benefit of the Enrolled Affiliate’s Enterprise as a Qualified Device for all or a subset of Enterprise Products or Online Services the Enrolled Affiliate has selected.

“Qualified User” means a person (e.g., employee, consultant, contingent staff) who: (1) is a user of a Qualified Device, or (2) accesses any server software requiring an Enterprise Product Client Access License or any Enterprise Online Service. It does not include a person who accesses server software or an Online Service solely under a License identified in the Qualified User exemptions in the Product Terms.

“Reserved License” means for an Online Service identified as eligible for true-ups in the Product Terms, the License reserved by Enrolled Affiliate prior to use and for which Microsoft will make the Online Service available for activation.

“SLA” means Service Level Agreement, which specifies the minimum service level for Online Services and is published on the Volume Licensing Site.

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“Software” means licensed copies of Microsoft software identified on the Product Terms. Software does not include Online Services, but Software may be part of an Online Service.

“Software Assurance” means an offering that provides new version rights and other benefits for Products as described in the Product Terms.

“Trade Secret” means information that is not generally known or readily ascertainable to the public, has economic value as a result, and has been subject to reasonable steps under the circumstances to maintain its secrecy.

“Tribal Entity” means a federally-recognized tribal entity performing tribal governmental functions and eligible for funding and services from the U.S. Department of Interior by virtue of its status as an Indian tribe.

“Use Rights,” means the use rights or terms of service for each Product published on the Volume Licensing Site and updated from time to time. The Use Rights supersede the terms of any end user license agreement that accompanies a Product. The Use Rights for Software are published by Microsoft in the Product Terms. The Use Rights for Online Services are published in the Online Services Terms.

“use” or “run” means to copy, install, use, access, display, run or otherwise interact.

1. Licenses for Products.

Upon Microsoft’s acceptance of Government Partner’s Enrollment for an Enrolled Affiliate, the Enrolled Affiliate has the following rights during the term of its Order. These rights apply to the Licenses obtained under the Order.

a. License Grant. By accepting an Enrollment, Microsoft grants the Enterprise a non-exclusive, worldwide and limited right to download, install and use software Products, and to access and use the Online Services, each in the quantity ordered under the Enrollment. The rights granted are subject to the terms of the Use Rights and the Product Terms and are conditions on Enrolled Affiliate’s continued compliance with the terms of this agreement, including, without limitation, payment for the Licenses. Microsoft reserves all rights not expressly granted in this agreement.

b. Duration of Licenses. Subscription Licenses and most Software Assurance rights are temporary and expire when the applicable Enrollment is terminated or expires, unless the Enrollment is renewed or Enrolled Affiliate exercises a buy-out option, which is available for some Subscription Licenses. Except as otherwise noted in the applicable Enrollment or Use Rights, all other Licenses become perpetual only when all payments for that License have been made and the initial Enrollment term has expired.

c. Applicable Use Rights.

(i) Products (other than Online Services). The Use Rights in effect on the effective date of the Enrollment will apply to Enterprise’s use of the version of each Product that is current at the time. For future versions and new Products, the Product Use Rights in effect when those versions and Products are first released will apply. Changes Microsoft makes to the Use Rights for a particular version will not apply unless the Enrolled Affiliate chooses to have those changes apply. The Use Rights applicable to perpetual Licenses that were acquired under a previous agreement or Enrollment are determined by the agreement or Enrollment under which they were acquired. Renewal of Software Assurance does not change which Use Rights apply to those Licenses.

(ii) Online Services. For Online Services, the Use Rights in effect on the subscription start date will apply for the subscription term as defined in the Product Terms.

(iii) More restrictive use rights. If a new version of a Product has more restrictive use rights than the version that is current at the start of the applicable initial or renewal term of the Enrollment, those more restrictive use rights will not apply to the Enterprise’s use of that Product during the term.

d. Downgrade rights. Enterprise may use an earlier version of Product than the version that is current on the effective date of the Enrollment. In that case, the Use Rights for the current version apply to the use of the earlier version. If the earlier Product version includes features that are not in the new version, then the Use Rights applicable to the earlier version apply with respect to those features.

e. New Version Rights under Software Assurance. Enrolled Affiliate must order and maintain continuous Software Assurance coverage for each License ordered. With Software Assurance coverage, Enterprise automatically has the

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right to use a new version of a licensed Product as soon as it is released, even if Enterprise chooses not use the new version immediately.

(i) Except as otherwise permitted under an Enrollment, use of the new version will be subject to the new version’s Use Rights.

(ii) If the License for the earlier version of the Product is perpetual at the time the new version is released, the License for the new version will also be perpetual. Perpetual Licenses obtained through Software Assurance replace any perpetual Licenses for the earlier version.

f. License confirmation. The Government Contract, the Order, the Enrolled Affiliate’s order confirmation, and any documentation evidencing transfers of Licenses, together with proof of payment, will be the Enrolled Affiliate’s evidence of all Licenses ordered by the Government Partner under an Enrollment for an Enrolled Affiliate.

g. Reorganizations, Consolidations, and Privatizations. If the number of Licenses covered by an Enrollment changes by more than ten percent as a result of a reorganization, consolidation, or privatization of any member of the Enterprise, Microsoft will work with Government Partner in good faith to determine how to accommodate the Enterprise’s changed circumstances in the context of these Additional Use Rights and Restrictions.

h.Modification or termination of an Online Service for regulatory reasons. Microsoft may modify or terminate an Online Service in any country or jurisdiction where there is any current or future government requirement or obligation that: (1) subjects Microsoft to any regulation or requirement not generally applicable to businesses operating there; (2) presents a hardship for Microsoft to continue operating the Online Service without modification; and/or (3) causes Microsoft to believe these terms or the Online Service may be in conflict with any such requirement or obligation.

i. Program updates. Microsoft may make a change to the Enterprise and/or Enterprise Subscription programs that will make it necessary for Enrolled Affiliates to enter into a new agreement and Enrollments with Government Partner at the time of an Enrollment renewal. If any such updates occur during a current contract, including option periods, such change(s) will be made at no increase in cost to Enrolled Affiliate: all pricing in the current contract, including contract options will be honored despite any such change(s).

2. Making copies of Products and re-imaging rights.

a. General. Enrolled Affiliate may make as many copies of the Products as it needs to distribute them within the Enterprise. Copies must be true and complete (including copyright and trademark notices), from master copies obtained from a Microsoft approved fulfillment source. Enrolled Affiliate may use a third party to make these copies, but Enrolled Affiliate agrees that it will be responsible for any third party’s actions. Enrolled Affiliate agrees to make reasonable efforts to notify its employees, agents, and any other individuals who use the Products that the Products are licensed from Microsoft and subject to the terms of the Government Contract and the Order.

b. Copies for training/evaluation and back-up. For all Products other than Online Services, Enrolled Affiliate may (1) use up to 20 complimentary copies of any Product in a dedicated training facility on its premises for purposes of training on that particular Product, (2) use up to 10 complimentary copies of any Product for a 60-day evaluation period, and (3) use one complimentary copy of any licensed Product for back-up or archival purposes for each of its distinct geographic locations. Trials for Online Services may be available if specified in the Use Rights.

c. Right to re-image. In certain cases, re-imaging is permitted using the Product media. If the Microsoft Product(s) is licensed (1) from an original equipment manufacturer (OEM), (2) as full packaged Product through a retail source, or (3) under another Microsoft program, then media provided under the Order may be generally used to create images for use in place of copies provided through that separate source. This right is conditional upon the following:

(i) Separate Licenses must be acquired from the separate source for each Product that is re-imaged.

(ii) The Product, language, version and components of the copies made must be identical to the Product, language, version, and all components of the copies they replace and the number of copies or instances of the re-imaged Product permitted remains the same.

(iii)Except for copies of an operating system and copies of Products licensed under another Microsoft program, the Product type (e.g., Upgrade or full License) re-imaged must be identical to the Product type from the separate source.

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(iv)Enrolled Affiliate must adhere to any Product specific processes or requirements for re-imaging identified in the Product Terms.

Re-imaged Products remain subject to the terms and use rights of the License acquired from the separate source. This subsection does not create or extend any warranty or support obligation.

3. Transferring and assigning licenses.

a. License transfers. License transfers are not permitted, except that Enrolled Affiliate may transfer only fully-paid perpetual Licenses to:

(i) an Affiliate, or

(ii) a third party solely in connection with the transfer of hardware or employees to whom the Licenses have been assigned as part of (1) a reorganization or privatization of an Affiliate or a division of an Affiliate or (2) a consolidation involving Enrolled Affiliate or an Affiliate.

Upon such transfer, Enrolled Affiliate must uninstall and discontinue using the licensed Product and render any copies unusable.

b. Notification of License Transfer. Enrolled Affiliate must notify Microsoft of a transfer of License by completing a license transfer form, which can be obtained from http://www.microsoft.com/licensing/contracts and sending the completed form to Microsoft before the license transfer. No License transfer will be valid unless Enrolled Affiliate provides to the transferee, and the transferee accepts in writing, documents sufficient to enable the transferee to ascertain the scope, purpose and limitations of the rights granted by Microsoft under the licenses being transferred (including, without limitation, the applicable Use Rights, use and transfer restrictions, warranties and limitations of liability. Any license transfer not made in compliance with this section will be void.

c. Internal assignment of Licenses and Software Assurance. Licenses and Software Assurance must be assigned to a single user or device within the Enterprise. Licenses and Software Assurance may be reassigned as described in the Use Rights.

4. Use, ownership, rights, and restrictions.

a. Products. Use of any Product is governed by the Use Rights specific to each Product and version and by these Additional Use Rights and Restrictions.

(i) Fixes. Each fix is under the same license terms as the Product to which it applies. If a Fix is not provided for a specific Product, any use terms Microsoft provides with the Fixe will apply.

b. Non-Microsoft software and technology.

Enrolled Affiliate is solely responsible for any non-Microsoft software or technology that it installs or uses with the Products or Fixes.

(i) Microsoft is not a party to and is not bound by any terms governing Enrolled Affiliate’s use of non-Microsoft software or technology. Without limiting the foregoing, non-Microsoft software or scripts linked to or referenced from any Product website, are governed by the open source licenses used by the third parties that own such code, not by Microsoft and Microsoft’s licensing terms.

(ii) If Enrolled Affiliate installs or uses any non-Microsoft software or technology with the Products or Fixes, it directs and controls the installation in and use of such software or technology in the Products or Fixes, through its actions (e.g., through Enrolled Affiliate’s use of application programming interfaces and other technical means that are part of the Online Services). Microsoft will not run or make any copies of such non-Microsoft software or technology outside of its relationship with Enrolled Affiliate.

(iii) Restrictions Enrolled Affiliate must not (and must not attempt to): (1) reverse engineer, decompile or disassemble any Product, Fix, or Services Deliverable, (2) install or use non-Microsoft software or technology in any way that would subject Microsoft's intellectual property or technology to obligations beyond those included in this agreement; or (3) work around any technical limitations in the Products or restrictions in Product documentation. Except as expressly permitted in this agreement, Enrolled Affiliate must not (i) separate and run parts of a Product on more than one device, upgrade or downgrade parts of a Product at different times, or transfer parts of a Product separately; or (ii) distribute, sublicense, rent, lease, lend, or use any Product, or Fix to offer hosting services to a third party.

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c. No transfer of ownership; Reservation of rights. Products and Fixes are protected by copyright and other intellectual property rights laws and international treaties. Microsoft (1) does not transfer any ownership rights in any Products or Fixes and (2) reserves all rights not expressly granted to Enrolled Affiliate.

5. Confidentiality.

“Confidential Information” is non-public information that is designated “confidential” or that a reasonable person should understand is confidential, including Customer Data. Confidential Information does not include information that (1) becomes publicly available without a breach of this agreement, (2) the receiving party received lawfully from another source without a confidentiality obligation, (3) is independently developed, or (4) is a comment or suggestion volunteered about the other party’s business, products or services.

Each party will take reasonable steps to protect the other’s Confidential Information and will use the other party’s Confidential Information only for purposes of the parties’ business relationship. Neither party will disclose that Confidential Information to third parties, except to its employees, Affiliates, contractors, advisors and consultants (“Representatives”) and then only on a need-to-know basis under nondisclosure obligations at least as protective as this agreement. Each party remains responsible for the use of the Confidential Information by its Representatives and, in the event of discovery of any unauthorized use or disclosure, must promptly notify the other party.

A party may disclose the other’s Confidential Information if required by law; but only after it notifies the other party (if legally permissible) to enable the other party to seek a protective order.

Neither party is required to restrict work assignments of its Representatives who have had access to Confidential Information. Each party agrees that the use of information retained in Representatives’ unaided memories in the development or deployment of the parties’ respective products or services does not create liability under this agreement or trade secret law, and each party agrees to limit what it discloses to the other accordingly.

These obligations apply (i) for Customer Data until it is deleted from the Online Services, and (ii) for all other Confidential Information, for a period of five years after the Confidential Information is received.

Freedom of Information Act (FOIA). Notwithstanding anything in this section to the contrary, the parties acknowledge and agree that Enrolled Affiliate is subject to the United States Freedom of Information Act (5 U.S.C. § 552) and may disclose information in response to a valid request in accordance with FOIA. Should Enrolled Affiliate receive a request under FOIA for Microsoft's confidential information, Enrolled Affiliate agrees to give Microsoft adequate prior notice of the request and before releasing Microsoft's confidential information to a third party, in order to allow Microsoft sufficient time to seek injunctive relief or other relief against such disclosure.

6. Privacy and Compliance with Laws.

a. Enrolled Affiliate consents to the processing of personal information by Microsoft and its agents to facilitate the subject matter of these Microsoft License Terms and Conditions and the applicable Order. Enrolled Affiliate will obtain all required consents from third parties (including Enrolled Affiliate’s contacts, resellers, distributors, administrators, and employees) under applicable privacy and data protection law before providing personal information to Microsoft.

b. Unless otherwise specified in the Enrollment or the Use Rights, personal information collected under these Microsoft License Terms and Conditions (i) may be transferred, stored and processed in the United States or any other country in which Microsoft or its contractors maintain facilities and (ii) will be subject to the privacy terms specified in the Use Rights. Microsoft abides by the EU Safe Harbor and the Swiss Safe Harbor frameworks as set forth by the U.S. Department of Commerce regarding the collection, use, and retention of data from the European Union, the European Economic Area, and Switzerland.

c. U.S. export. Products and Fixes are subject to U.S. export jurisdiction. Enrolled Affiliate must comply with all applicable international and national laws, including the U.S. Export Administration Regulations, the International Traffic in Arms Regulations, and end-user, end use and destination restrictions by U.S. and other governments related to Microsoft products, services, and technologies.

7. Warranties.

a. Limited warranties and remedies.

(i) Software. Microsoft warrants that each version of the Software will perform substantially as described in the applicable Product documentation for one year from the date Enrolled Affiliate is first licensed for that version. If it

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does not and Enrolled Affiliate notifies Microsoft within the warranty term, then Microsoft will, at its option (1) return the price Customer paid for the Software license, or (2) repair or replace the Software.

(ii) Online Services. Microsoft warrants that each Online Services will perform in accordance with the applicable SLA during the Enrolled Affiliate’s use. Enrolled Affiliate’s remedies for breach of this warranty are in the SLA.

The remedies above are Enrolled Affiliate’s sole remedies for breach of the warranties in this section. Enrolled Affiliate waives any breach of warranty claims not made during the warranty period.

b. Exclusions. The warranties in this agreement do not cover problems caused by accident, abuse or use in a manner inconsistent with this agreement, including failure to meet minimum system requirements. These warranties do not apply to free, trial, pre-release, or beta Products, or to components of Products that Enrolled Affiliate is permitted to redistribute.

c. DISCLAIMER. Microsoft provides no other warranties or conditions and disclaims any other express, implied or statutory warranties, including warranties of quality, title, non-infringement, merchantability, and fitness for a particular purpose.

8. Defense of third party claims.

a. By Microsoft. Microsoft will defend Enrolled Affiliate against any claims made by an unaffiliated third party that (i) any Product or Fix made available by Microsoft infringes its patent, copyright or trademark or makes unlawful use of its Trade Secret, or (ii) that arises from Microsoft’s provision of an Online Service in violation of laws applicable to all online services providers. Microsoft will pay the amount of any resulting adverse final judgment or approved settlement. This does not apply to claims or awards based on (i) Customer Data; (ii) non-Microsoft software; (iii) modifications to a Product or a Fix Enrolled Affiliate makes or any specifications or materials Enrolled Affiliate provides; (iv) Enrolled Affiliate’s combination of a Product or Fix with (or damages based on the value of) a non-Microsoft product, data, or business process; (v) Enrolled Affiliate’s use of a Microsoft trademark without express, written consent or the use or redistribution of a Product or Fix in violation of this agreement; (vi) Enrolled Affiliate’s continued use of a Product or Fix after being notified to stop due to a third party claim; or (vii) Products or Fixes provided free of charge.

b. Your agreement to protect. Enrolled Affiliate agrees that use of Customer Data or non-Microsoft software Microsoft hosts on Enrolled Affiliate’s behalf will not infringe any third party’s patent, copyright or trademark or make unlawful use of any third party’s Trade Secret. In addition, Enrolled Affiliate will not use an Online Service to gain unauthorized access to or disrupt any service, data, account or network in connection with the use of the Online Services.

c. Rights and remedies in case of possible infringement or misappropriation. If Microsoft reasonably believes that a claim under this section may result in a legal bar prohibiting Enrolled Affiliate’s use of the Product or Fix, Microsoft will seek to obtain the right for Enrolled Affiliate to keep using it or modify or replace it with a functional equivalent, in which case Enrolled Affiliate must discontinue use of the prior version immediately. If these options are not commercially reasonable, Microsoft may terminate Enrolled Affiliate’s right to the Product or Fix and refund any amounts Enrolled Affiliate has paid for those rights to Software and Fixes and, for Online Services, any amount paid for a usage period after the termination date.

d. Other terms. Enrolled Affiliate must notify Microsoft promptly in writing of a claim subject to this section; give Microsoft sole control over the defense and settlement; and provide reasonable assistance in defending the claims. Microsoft will reimburse Enrolled Affiliate for reasonable out of pocket expenses that it incurs in providing assistance. The remedies provided in this section are the exclusive remedies for the claims described in this section.

Notwithstanding the foregoing, Microsoft’s rights set forth in this section (and the rights of the third party claiming infringement) shall be governed by the provisions of 28 U.S.C. § 1498.

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9. Limitation of liability.

To the extent permitted by applicable law, for each Product, each party’s maximum, aggregate liability to the other under this Agreement is limited to direct damages finally awarded in an amount not to exceed the amounts Enrolled Affiliate was required to pay for the applicable Products during the term of the Agreement, subject to the following:

a. Online Services. For Online Services, Microsoft’s maximum liability to Enrolled Affiliate for any incident giving rise to a claim will not exceed the amount Enrolled Affiliate paid for the Online Service during the 12 months before the incident.

b. Free Products and Distributable Code. For Products provided free of charge and code that Enrolled Affiliate is authorized to redistribute to third parties without separate payment to Microsoft, Microsoft’s liability is limited to direct damages finally awarded up to US$5,000.

c. Exclusions. In no event will either party be liable for indirect, incidental, special, punitive, or consequential damages, including loss of use, loss of profits, or interruption of business, however caused or on any theory of liability.

d. Exceptions. No limitation or exclusions will apply to liability arising out of either party’s (1) confidentiality obligations (except for all liability related to Customer Data, which will remain subject to the limitations and exclusions above); (2) defense obligations; or (3) violation of the other party’s intellectual property rights.

e. This clause shall not impair the U.S. Government’s right to recover for fraud or crimes arising out of or related to these Microsoft License Terms and Conditions under any federal fraud statute, including the False Claims Act, 31 U.S.C. §§ 3729-3733.

10. True-up Requirements

a. True-Up Order. Enrolled Affiliate must submit an annual true-up order that accounts for changes since the initial order or last true-up order. If there are no changes, then an update statement must be submitted instead of a true-up order. Microsoft, at its discretion, may validate the true-up data submitted through a formal product deployment assessment using an approved Microsoft partner.

b. Enterprise Products. Enrolled Affiliate must determine the number of Qualified Devices and Qualified Users (if ordering user-based Licenses) at the time the true-up order is placed and must order additional Licenses for all Qualified Devices and Qualified Users that are not already covered by existing Licenses, including any Enterprise Online Services.

c. Additional Products. For Additional Products that have been previously ordered, Enrolled Affiliate must determine the maximum number of Additional Products used since the latter of the initial order, the last true-up order, or the prior anniversary date and submit a true-up order that accounts for any increase.

d. Online Services. For Online Services identified as eligible for true-up in the Product Terms, Enrolled Affiliate may reserve the additional Licenses prior to use, and payment may be deferred until the next true-up order. Microsoft will provide a report of Reserved Licenses in excess of existing orders to Enrolled Affiliate’s Government Partner. Reserved Licenses will be invoiced retroactively to the month in which they were reserved.

e. Subscription License reductions. Enrolled Affiliate may reduce the quantity of Subscription Licenses at the enrollment anniversary date on a prospective basis if permitted in the Product Terms as follows:

i. For Subscription Licenses part of an Enterprise-wide purchase, Licenses may be reduced if the total quantity of Licenses and Software Assurance for an applicable group meets or exceeds the quantity of Qualified Devices identified on the Product Selection Form and includes any additional Qualified Devices and Qualified Users added in any prior true-up orders. Step-up Licenses and add-on subscription licenses do not count towards this total count.

ii. For Enterprise Online Services not a part of an Enterprise-wide purchase, Licenses can be reduced as long as the initial order minimum requirements are maintained.

iii. For Additional Products available as Subscription Licenses, Enrolled Affiliate may reduce the Licenses. If the License count is reduced to zero, then Enrolled Affiliate's use of the applicable Subscription License will be cancelled.

Invoices will be adjusted to reflect any reductions in Subscription Licenses at the true-up order Enrollment anniversary date and effective as of such date.

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f. Update statement. An update statement must be submitted instead of a true-up order if, since the initial order or last true-up order, Enrolled Affiliate's Enterprise has not: (1) changed the number of Qualified Devices and Qualified Users licensed with Enterprise Products or Enterprise Online Services; and (2) increased its usage of Additional Products. This update statement must be signed by Enrolled Affiliate's authorized representative. The update statement must be received by Microsoft between 60 and 30 days prior to the Enrollment anniversary date. The last update statement is due within 30 days prior to the Expiration Date.

g. True-up order period. The true-up order or update statement must be received by Microsoft between 60 and 30 days prior to each Enrollment anniversary date. The third-year true-up order or update statement is due within 30 days prior to the Expiration Date, and any license reservations within this 30 day period will not be accepted. Enrolled Affiliate may submit true-up orders more often to account for increases in Product usage, but an annual true-up order or update statement must still be submitted during the annual order period.

h.Late true-up. If the true-up order or update statement is not received when due:

(i) Enrolled Affiliate will be invoiced for all Reserved Licenses not previously ordered; and .

(ii) Subscription License reductions cannot be reported until the following Enrollment anniversary date (or at Enrollment renewal, as applicable).

i. Step-up Licenses. For Licenses eligible for a step-up under this Enrollment, Enrolled Affiliate may step-up to a higher edition or suite as follows:

For step-up Licenses included on an initial order, Enrolled Affiliate may order according to the true-up process.

If step-up Licenses are not included on an initial order, Enrolled Affiliate may step-up initially by following the process described in the Section titled “Adding new Products not previously ordered,” then for additional step-up Licenses, by following the true-up order process.

11. Verifying compliance.

a. Right to verify compliance. Enrolled Affiliate must keep records relating to all use and distribution of Products by Enrolled Affiliate and its Affiliates. Microsoft has the right, at its expense, to verify Enrolled Affiliate’s and its Affiliates compliance with the Product’s license terms.

b. Verification process and limitations. Microsoft will provide Enrolled Affiliate at least 30 days’ notice of its intent to verify compliance. Verification will take place during normal business hours and in a manner that does not interfere unreasonably with Enrolled Affiliates operations. Microsoft will engage an independent auditor, which will be subject to a confidentiality obligation and subject to Enrolled Affiliate’s security requirements. Enrolled Affiliate must promptly provide the independent auditor with any information it reasonably requests in furtherance of the verification, including access to systems running the Products and evidence of licenses for Products Enrolled Affiliate hosts, sublicenses, or distributes to third parties. Enrolled Affiliate agrees to complete Microsoft’s self-audit process; which Microsoft may require as an alternative to a third party audit. Any information collected in the self-audit will be used solely for purposes of determining compliance.

c. Remedies for non-compliance. If verification or self-audit reveals any unlicensed use or distribution, then, within 30 days, Contractor will invoice Enrolled Affiliate for sufficient Licenses to cover that use or distribution. If unlicensed use or distribution is 5% or more, Enrolled Affiliate may be completely responsible for the costs Microsoft has incurred in verification, to the extent permitted by 31 U.S.C. § 1341 (Anti-Deficiency Act) and other applicable Federal law or similar state law (as applicable). The unlicensed use percentage is based on the total number of Licenses purchased compared to actual install base. Notwithstanding the foregoing, nothing in this section prevents the Enrolled Affiliate from disputing any invoice in accordance with the Contract Disputes Act (41 U.S.C. §§7101-7109). If there is no unlicensed use, Microsoft will not subject Enrolled Affiliate to another verification for at least one year. By exercising the rights and procedures described above, Microsoft does not waive its rights to enforce this agreement or to protect its intellectual property by any other means permitted by law.

12. Government Community Cloud.

a. Community requirements. Agency certifies that all Enrolled Affiliates in the Enterprise are members of the Community and represents that all Enrolled Affiliates in the Enterprise have agreed to use Government Community Cloud Services solely in their capacities as members of the Community and for the benefit of end users that are members of the Community. Use of Government Community Cloud Services by an entity that is not a member of the Community or to provide services to non-Community members is strictly prohibited and could result in

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termination of Government Partner’s or an Enrolled Affiliate’s license(s) for Government Community Cloud Services. Agency acknowledges that only Community members may use Government Community Cloud Services.

(i) All terms and conditions applicable to non-Government Community Cloud Services also apply to their corresponding Government Community Cloud Services, except as otherwise noted in the Use Rights and this Amendment.

(ii) Enrolled Affiliate may not deploy or use Government Community Cloud Services and corresponding non-Government Community Cloud Services in the same domain.

(iii)Any Enrolled Affiliate in the Enterprise that uses Government Community Cloud Services must maintain its status as a member of the Community. Maintaining status as a member of the Community is a material requirement for such services.

b. Use Rights for Government Community Cloud Services. For Government Community Cloud Services, notwithstanding anything to the contrary in the Use Rights:

(i) Government Community Cloud Services will be offered only within the United States.

(ii) Additional European Terms, as set forth in the Use Rights, will not apply.

(iii)References to geographic areas in the Use Rights with respect to the location of Customer Data at rest, as set forth in the Use Rights, refer only to the United States.

13. Miscellaneous.

a. Severability. If any provision in this agreement is found unenforceable, the balance of the agreement will remain in full force and effect.

b. Management and Reporting. Enrolled Affiliate must provide and manage account details (e.g., contacts, orders, Licenses, software downloads) on Microsoft’s Volume Licensing Service Center web site (or successor site) at: https://www.microsoft.com/licensing/servicecenter. On the effective date of this agreement and any Enrollments, the contact(s) Enrolled Affiliate has identified for this purpose will be provided access to this site and may assign additional users and contacts.

c. Waiver. Failure to enforce any provision of this agreement will not constitute a waiver. Any waiver must be in writing and signed by the waiving party.

d. Free Products. Any free Product provided to Enrolled Affiliate is for the sole use and benefit of the Enrolled Affiliate purposes only, and is not provided for use by or personal benefit of any specific government employee.

e. Assignment. Enrolled Affiliate may assign all its rights under this agreement to an Affiliate, but it must notify Microsoft in writing of the assignment. Any other proposed assignment under this agreement must be approved by the other party in writing. Any assignment will not relieve the assigning party of its obligations under the assigned agreement. Any attempted assignment without required approval will be void.

f. Use of contractors. Microsoft may use contractors to support services but will be responsible for their performance subject to the terms of this agreement.

g. Third party beneficiary. Microsoft is a third party beneficiary of this agreement and may enforce its terms.

h.Survival. All provisions survive termination or expiration of this agreement except those requiring performance only during the term of the agreement.

i. Privacy and Compliance with applicable Laws, privacy and security.

(i) Microsoft and Enrolled Affiliate will each comply with all applicable laws and regulations (including applicable security breach notification law). However, Microsoft is not responsible for compliance with any laws applicable to Enrolled Affiliate or Enrolled Affiliate’s industry that are not also generally applicable to information technology services providers.

j. Natural disaster. In the event of a natural disaster, Microsoft may provide additional assistance or rights to Enrolled Affiliate than are set forth in this agreement by posting them on http://www.microsoft.com at such time.

k. Disputes. Any breach of these Microsoft License Terms and Conditions, including Enrolled Affiliate’s obligations set forth herein, shall be handled in accordance with the Contracts Disputes Act (41 U.S.C. §§7101-7109).

l. Voluntary Product Accessibility Templates. Microsoft supports the government’s obligation to provide accessible technologies to its citizens with disabilities as required by Section 508 of the Rehabilitation Act of 1973, and its state

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law counterparts. The Voluntary Product Accessibility Templates (“VPATs”) for Products and the Microsoft technologies used in providing the Online Services can be found at Microsoft’s VPAT page. Further information regarding Microsoft’s commitment to accessibility can be found at http://www.microsoft.com/enable.

m. If any document incorporated by reference into these Microsoft License Terms and Conditions, including the Use Rights and terms included and/or referenced or incorporated herein and/or therein, contains a provision (a) allowing for the automatic termination of your license rights or Software Assurance services; (b) allowing for the automatic renewal of services and/or fees; (c) requiring the governing law to be anything other than Federal law; and/or (d) otherwise violates applicable Federal law, then, such terms shall not apply with respect to the Federal Government. If any document incorporated by reference into these Microsoft License Terms and Conditions, including the Use Rights and terms included and/or referenced or incorporated herein and/or therein contains an indemnification provision, such provision shall not apply as to the United States indemnifying Microsoft or any other party.

n.No provisions of any shrink-wrap or any click-through agreement (or other similar form of agreement) that may be provided in conjunction with any product(s) or services acquired under these Microsoft License Terms and Conditions shall apply in place of, or serve to modify any provision of these Microsoft License Terms and Conditions, even if a user or authorized officer of Enrolled Affiliate purports to have affirmatively accepted such shrink-wrap or click-through provisions. For the avoid of doubt and without limiting the foregoing, in the event of a conflict between any such shrink-wrap or click-through provisions (irrespective of the products or services that such provisions attach to) and any term or condition of these Microsoft License Terms and Conditions, then the relevant term or condition of these Microsoft License Terms and Conditions shall govern and supersede the purchase of such product(s) or services to the extent of any such conflict. All acceptance of agreements and renewals shall be executed in writing.

o. Section headings. All section and subsection headings used in this agreement are for convenience only and shall not affect the interpretation of this agreement

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