Refund policy

END USER LICENSE AGREEMENT

THIS END USER LICENSE AGREEMENT (the "Agreement"), is a legal and enforceable contract between
You, as the organization or person using the Software Product or purchasing a Hardware Product and
Arcserve, LLC or StorageCraft, LLC an Arcserve company (collectively “Arcserve”), each individually
a “Party” and collectively the “Parties”. If Your purchase includes Cloud Services, You agree to be bound
by the Cloud Terms of Service available at https://www.arcserve.com/cloud-services/ or a successor site
published by Arcserve in addition to the terms set forth herein.
Carefully read the following terms and conditions regarding Your use of the Product before installing and
using the Product. Throughout this Agreement, You will be referred to as "You", “Your” or "Licensee."
You are accepting this Agreement if You indicate Your assent to its terms by clicking the “accept” button;
install the Software Product, including through a manual, silent, unattended or push installation; use the
Software Product, including by installing, loading, running, executing, displaying, deploying or retaining the
Software Product; open or break the seal on a package containing the Software Product; and/or otherwise
indicate Your assent to the terms of this Agreement. When You accept this Agreement, You are:
(i) Agreeing that Your acceptance hereof also constitutes Your acceptance of this Agreement for all
Software Products that You install using the Product or use in conjunction with that Software
Product;
(ii) Agreeing that, in the event Your Order Form includes a Hardware Product, Your acceptance hereof
also includes your acceptance of Arcserve’s Hardware Product Schedule available at
https://www.arcserve.com/hardware-product-schedule regarding your rights, obligations and
acceptance of such Hardware Product;
(iii) Representing that You are not a minor, and have full legal capacity and have the authority to bind
Yourself and Your employer, as applicable, to the terms of this Agreement;
(iv) Consenting on behalf of Yourself and/or as an authorized representative of Your employer, as
applicable, to be bound by this Agreement;
(v) Agreeing that You have not based Your purchasing decision on the future availability of any new
products and/or additional features, components, or versions of the Product, nor on any oral or
written comments made by Arcserve regarding future functionality or features and that Arcserve,
in its sole discretion, will determine if and when updates, upgrades and additional features of the
Products will be released;
(vi) Agreeing that You have read and understood the terms set forth in Arcserve’s Privacy Notice,
including but not limited to Arcserve’s use of cookies, available at
https://www.arcserve.com/privacy-notice and agree to be bound thereby and agree that the use of
the Product(s), the Portal (defined below) and Arcserve’s website are subject thereto; and
(vii) Acknowledging that Arcserve may, in its sole discretion, modify the terms and conditions of this
Agreement and/or any policies referenced herein at any time by notice to You, including without
limitation by posting the revised terms and conditions on its website at
https://www.arcserve.com/EULA. Such modified terms and conditions become effective on
posting. Your continued use of the Product after the effective date of the modifications will be
deemed acceptance of the modified terms. For the avoidance of doubt, such modified terms and
conditions shall supersede any prior version of this Agreement that may have been imbedded in or
packaged with the Product itself.
By selecting the “decline” button, the installation process will cease and You will not be able to install, access
or use the Product.

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NOW IT IS AGREED as follows:
1. DEFINITIONS.
A. “Arbitral Dispute” shall have the meaning as set forth in Section 20.K.
B. “Authorized Use” means the specific usage entitlements and restrictions designated on an Order
Form and/or in the applicable Documentation.
C. “Authorized User” means the employees or agents of Licensee, that Licensee permits or has
engaged to operate and use the Product or Documentation on Licensee’s sole behalf.
D. “Cloud Services” means any of the following Arcserve cloud services: Arcserve UDP Cloud Hybrid
(including BaaS and DRaaS), Arcserve Email Archiving Cloud (formerly Arcserve UDP Cloud
Archiving), Arcserve Cloud Direct (including BaaS and DRaaS; formerly Arcserve UDP Cloud
Direct) and/or any other cloud services that may be offered by Arcserve and not listed herein.
E. “Community Edition” shall have the meaning as set forth in Section 15.E.
F. “Designated Technician” means the employee, agent, or representative designated by the Licensee
as its sole user and who maintains exclusive custody of the Software Product among Licensee’s
agents, employees, or representatives.
G. “Documentation” means the current user guide and readmes relating to the Product.
H. End User” means a person, organization, or entity that accepts this Agreement. In the case of a
subscription based Software Product used by a managed service provider (“MSP”) or an
organizational End User, the End User is the MSP or the organizational End User.
I. “Events of Default” shall have the meaning as set forth in Section 18.A.
J. “Fees” means fees for the Hardware Product, Software Product license(s) and Product Support as
set forth on the Order Form.
K. “Government End User” means an agency or instrumentality of the U.S. Federal Government.
L. “Hardware Product” means an appliance or other piece of hardware to be provided by Arcserve.
M. "Intellectual Property Rights" means any and all registered and unregistered rights granted, applied
for, or otherwise now or hereafter in existence under or related to any patent, copyright, trademark,
trade secret, database protection, or other intellectual property rights laws, and all similar or
equivalent rights or forms of protection, in any part of the world.
N. “IT Edition” means a license to ShadowProtect IT Edition and/or ShadowProtect IT Edition
Professional.
O. “Minimum Customer Terms” shall have the meaning as set forth in Section 4.B.
P. “Open Source Components” shall have the meaning as set forth in Section 14.
Q. “Order Form” means an Arcserve ordering document, quote or registration form which has been
signed by Licensee and Arcserve or a license program certificate, which is provided by Arcserve to
Licensee, as applicable.
R. “Portal” means a password-protected area on Arcserve’s Internet website that permits End Users of
some Products to access certain functionality and information concerning their account with
Arcserve.
S. “Product” means collectively Hardware Product and Software Product.

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T. “Product Support” means maintenance and support provided by Arcserve for its Products in
accordance with the guidelines located at https://support.arcserve.com, which are hereby
incorporated into this Agreement by this reference.
U. “Sanctions and Export Control Laws” means any law, regulation, statute, prohibition, executive
order or similar measure applicable to the Products and/or to either Party relating to the adoption,
application, implementation and enforcement of economic sanctions, export controls, trade
embargoes or any other restrictive measures, including, but not limited to, the Export
Administration Act, the Arms Export Control Act, the International Economic Emergency Powers
Act, and regulations issued pursuant to these and those administered and enforced by the European
Union, the United Kingdom, and the United States, each of which shall be considered applicable to
the Products.
V. “Software Product” means collectively the Arcserve software product that is being installed and the
associated Documentation, any Arcserve software product embedded in a Hardware Product and
any SDK/API included within the software product.
W. “Term” means the period of time specified on the Order Form.
X. “Three-Day ISO” means the three (3) day period that Licensee’s temporary IT Edition ISO image
containing the Windows Recovery Environment can be used in the restore operation without
connecting to a licensing server.
Y. “Third Party Software” shall have the meaning as set forth in Section 14.
Z. “Third Party Terms” shall have the meaning as set forth in Section 14.
aa. “Trial Period” shall have the meaning as set forth in Section 15.D.
bb. “U.S Government Contract” means a United States General Services Administration Schedule
Contract or other applicable United States Government contract.
2. LICENSE.
A. Arcserve or its applicable affiliate provides Licensee with the number of copy(ies) of the Software
Product set forth on the Order Form, for use by Licensee’s Authorized Users in accordance with the
Authorized Use. Subject to and conditioned upon Licensee’s payment of all Fees, and Licensee’s
strict compliance with all terms set forth in this Agreement, Arcserve licenses the Software Product
to Licensee on a personal, revocable, non-exclusive, non-transferable, non-sublicensable, and
limited basis, to install and use the Software Product pursuant to the terms of this Agreement and
the applicable Order Form.
B. This license grants Licensee the right, exercisable solely by and through Licensee’s Authorized
Users, to:
(i) Install and use the Software Product during the Term as set forth on the Order Form and
in accordance with all Authorized Use;
(ii) Download and install in accordance with the Documentation the authorized number of
copy(ies) of the Software Product as set forth on the Order Form accessible only on
computers owned or leased and controlled by Licensee. In addition to the foregoing,
Licensee may make one copy of the Software Product solely for archival/backup
purposes, provided that (1) production use of the Software Product is restricted to the
Authorized Use, (2) use of the Software Product for disaster recovery testing shall be
limited to one week in any three month period, and (3) Licensee shall not, and shall not
allow any person to, install or use any such copy other than if and for so long as the copy
installed in accordance with the preceding sentence is inoperable and, provided, further,

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that Licensee uninstalls and otherwise deletes such inoperable copy(ies). Such copy of
the Software Product made by the Licensee will be the exclusive property of Arcserve;
will be subject to the terms and conditions of this Agreement; and must include all
trademark, copyright, patent, and other Intellectual Property Rights notices contained in
the original;
(iii) Use and run the Software Product, as properly installed, in accordance with this
Agreement, the applicable Order Form and the Documentation and solely for Licensee's
internal business purposes;
(iv) Use the Software Product as provided herein solely to process its own data and the data
of its majority-owned subsidiaries as restricted by location, computer equipment, and
Authorized Use. If Licensee desires to use the Software Product beyond such restrictions,
it shall notify Arcserve, and Licensee will be invoiced for and shall pay the applicable
fees for such expanded use. If the Software Product purchased is included on a Hardware
Product, then Licensee is restricted from installing any additional instances of the
"Recovery Point Server" or “Service Node” functionality as applicable, other than the
instance running on the Hardware Product; and
(v) To the extent permitted herein or in the Order Form, transfer any copy of the Software
Product from one computer to another, provided that: (1) the number of computers on
which the Software Product is installed at any one time does not exceed the number
licensed by Licensee; and (2) Licensee notifies Arcserve in writing of each such transfer,
including in such notice the information required under this Agreement for each computer
on which the Software Product is installed.

3. USE RESTRICTIONS.
a. Unless expressly authorized by this Agreement, required by applicable law or with Arcserve’s prior
written consent, Licensee shall not, and shall require its Authorized Users not to, directly or
indirectly, do any of the following:
(i) use the Product or Documentation in violation of the terms of this Agreement, including
using them beyond the scope of the license granted under Section 2 or in a manner that
exceeds the Authorized Use;
(ii) infringe Arcserve’s Intellectual Property Rights in or related to the Product or the
Documentation;
(iii) provide access to, allow use of, or otherwise make available the Product, or any features
or functionality of the Product, to any third party, including any subcontractor,
independent contractor, affiliate, or service provider of Licensee, except for an
Authorized User, for any reason, whether or not over a network or on a hosted basis,
including in connection with the internet or any web hosting, wide area network (WAN),
virtual private network (VPN), virtualization, software as a service, cloud, or other
technology or service, or modify the Product, in whole or in part, or permit others to do
any of the foregoing with regard to the Product;
(iv) modify, translate, adapt, or create derivative works or improvements, whether or not
patentable, of the Product or Documentation or any part thereof;
(v) combine the Software Product or any part thereof with, or incorporate the Software
Product or any part thereof in, any other programs;
(vi) disclose, de-compile, decode, disassemble nor otherwise reverse engineer the Software
Product or otherwise attempt to derive or gain access to the source code or trade secrets

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of the Software Product or any part thereof;
(vii) work around any technical or security limitations of the Software Product:
(viii) use the Software Product to provide facilities management or in connection with a service
bureau, time sharing arrangement or like activity whereby Licensee, without purchasing
a license from Arcserve for such purpose, operates or uses the Software Product for the
benefit of a third party who has not purchased a copy of the Software Product;
(ix) exchange the Authorized Use respecting the Software Product for any other Arcserve
product. The Software Product is licensed as a single product. Its component parts may
not be separated for use;
(x) remove, delete, alter, or obscure any proprietary markings, trademarks or any copyright,
patent, or other intellectual property or proprietary rights notices of Arcserve or its
licensors provided on or with the Product or Documentation, including any copy thereof;
(xi) except as expressly permitted herein, copy the Software Product or Documentation, in
whole or in part;
(xii) grant a security interest in, transfer, assign, rent, lease, lend, sell, sublicense, distribute,
publish or otherwise dispose of the Product or Documentation;
(xiii) use the Product or Documentation in violation of any law, regulation, or rule;
(xiv) release the results of any benchmark testing of the Product to any third party;
(xv) use the Product or Documentation for purposes of competitive analysis of the Product,
the development of a competing software product or service, or any other purpose that is
to Arcserve’s commercial disadvantage; and
(xvi) use Products for which Licensee has not paid and Arcserve has not received the applicable
fees.

B. If the Software Product being licensed and/or the Hardware Product being installed hereunder will
be used in providing managed services directly or indirectly to customers, Licensee shall not, and
shall require its Authorized Users not to directly or indirectly, scheme with third parties for the
aggregation of Authorized Use entitlements of the Product in an attempt to achieve lower pricing.
C. If the Software Product being licensed and/or the Hardware Product being installed includes
StorageCraft’s VirtualBoot or OneSystem service, the following use restrictions apply and Licensee
shall not, and shall require its Authorized Users not to, directly or indirectly, do any of the following:
(i) use VirtualBoot in conjunction with image files created by software other than the
specific Software Product with which VirtualBoot was provided to Licensee;
(ii) copy, frame or mirror any part or content of the OneSystem services, other than copying
or framing on an intranet or otherwise for internal business purposes; and

(iii) interfere with or disrupt the integrity or performance of the OneSystem services or third-
party data contained therein.

D. The Product may be used only within the boundaries of the country where the Product was
purchased (except as otherwise provided on the Order Form) unless Arcserve consents otherwise in
writing.
E. Licensee’s right to use the Software Product will terminate and the Software Product may cease to
function if the Licensee violates the terms of this Agreement or the applicable term of the Software
Product lapses or expires. A Software Product may require a reliable Internet connection permitting

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the Software Product to periodically connect with Arcserve systems. The Software Product may
lose functionality, cease to function, or deactivate if necessary system requirements are not satisfied.
Certain Software Products are licensed only for use and installation on a particular operating system
or type of machine.
4. CONDITIONS AND RESTRICTIONS ASSOCIATED WITH CERTAIN PRODUCTS.
A. Perpetual License. Licensee may not use the functionality of any Software Product licensed to
Licensee on a perpetual basis to provide managed or professional services to third parties.
B. Subscription Based License. If Licensee is an MSP or in the business of providing managed or
professional services to third parties, Licensee may license the Software Product on a subscription
basis in order to install and use the Software Product on computers owned by its customer, provided
that such installation and use does not otherwise violate this Agreement. If Licensee licenses the
Software Product on a subscription basis through a distributor, reseller, or master MSP (collectively
referred to as “Distributor”), Licensee understands and acknowledges that, in the event that such
Distributor fails to pay fees associated with use or distribution of the Software Product, or otherwise
breaches its agreement with Arcserve (or its subsidiary or corporate affiliate), Licensee’s use of the
Software Product, access to the Portal, if any, and/or Product Support may be suspended or
terminated. Licensee further understands, acknowledges, and consents that Licensee’s agreement
with such Distributor may be assigned to Arcserve or its designee to permit continued delivery of
the Software Product. If Licensee licenses the Software Product on a subscription basis as an MSP
or as part of a business engaged in protecting, managing, and/or storing customer data, the following
shall apply: (i) Licensee will advise the customer in writing of all terms in this Agreement that may
adversely affect the customer if this Agreement is terminated; (ii) Licensee is responsible for
delivering any managed and professional services in compliance with this Agreement and ensuring
Licensee’s customers compliance with the requirements of this Agreement; (iii) Licensee shall enter
into a written agreement with its customers, the terms of which shall include the following: (1)
Arcserve is the owner of the Software Product; (2) the Software Product is licensed to Licensee, not
the customer; (3) the Software Product is licensed “as is”, with all faults, and there are no warranties,
representations, or conditions, express or implied, written or oral, arising by statute, operation of
law, or otherwise relating to the Software Product; and (4) Arcserve is not liable for any damages,
whether direct, incidental, indirect, special, punitive, or consequential (subsections (iii)(1) through
(iii)(4) collectively, the “Minimum Customer Terms”); and (iv) if Licensee fails to advise customers
of the Minimum Customer Terms, Licensee shall indemnify and hold Arcserve and its parent,
affiliate and subsidiaries harmless from any and all claims, damages, and liabilities arising from
such failure.
C. IT Edition License. An IT Edition license requires Licensee to identify a Designated Technician.
Licensee may appoint a successor Designated Technician once per calendar quarter. Arcserve shall
have the right to audit Licensee’s use of IT Edition to determine compliance with this Agreement.
IT Edition must be used directly from the USB flash media, or in unusual circumstances, from the
Three-Day ISO, which shall not be downloaded more than once in any ten (10) day period and shall
be used only in situations in which the USB flash media version of the Software Product is not
capable of running on the target computer or the use of the license server is not a suitable solution.
Arcserve, in its sole discretion, may condition, suspend, or terminate Licensee’s ability to access or
create the Three-Day ISO. Licensee shall not copy, install, redistribute, or share a license of IT
Edition among its agents, employees, representatives, or third parties and shall not automate or
script all or any portion of the functionality of IT Edition.
D. OneSystem Service License. A license to the OneSystem Service is solely a right to remotely access
the functionality of the OneSystem off-premises console management services Software. Licensee
shall use commercially reasonable security precautions in its use of the OneSystem Service.
5. INTELLECTUAL PROPERTY RIGHTS AND OWNERSHIP.

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A. Licensee acknowledges that the Software Product is provided under license, and not sold or given,
to Licensee. Licensee does not acquire any ownership interest in the Software Product or
Documentation provided under this Agreement, or any other rights to the Software Product or
Documentation other than to use and access the Software Product in accordance with the license
granted under this Agreement, subject to all terms, conditions, restrictions and Authorized Use.
Arcserve and its licensors and service providers reserve and shall retain their entire right, title, and
interest in and to the Documentation, the Software Product, including without limitation all copies,
updates, upgrades, releases, revisions, enhancements, modifications, translations, localizations,
components, and features and all Intellectual Property Rights arising out of or relating to the
Documentation or the Software Product, subject to the license expressly granted to the Licensee in
this Agreement. Licensee shall use commercially reasonable efforts to safeguard the Software
Product (including all copies thereof) from infringement, misappropriation, theft, misuse, or
unauthorized access. Licensee’s right to use and access the Software Product and Documentation
are limited to those rights expressly identified in this Agreement.
B. The Software Product, including any source or object code that may be provided to Licensee
hereunder, as well as Documentation, appearance, structure and organization, is the proprietary
property of Arcserve and/or its licensors, if any, and may be protected by copyright, patent,
trademark, trade secret and/or other laws. Title to the Software Product, or any copy, modification,
translation, partial copy, compilation, derivative work or merged portion of any applicable SDK (as
defined below), shall at all times remain with Arcserve and/or its licensors.
C. This Agreement, including this Section 5 applies to and governs any update, upgrade, fix, revision
or enhancement to the Software Product.
D. Licensee acknowledges that certain Software Products include features and functionality that back
up, replicate, and/or transfer electronic data and that these processes require the copying of such
data, which may include digital files, software programs, and other data that may be protected by
third-party intellectual property rights, such as copyrights. Licensee understands and agrees that
Arcserve has no knowledge concerning the data contained in the backup images Licensee creates,
replicates, or transfers through use of Software Products, including no knowledge of the third-party
intellectual property rights applicable to that data. Licensee acknowledges and agrees that it is solely
its obligation to understand and comply with laws associated with the contents of these backup
images. Licensee represents and warrants that its use of Software Products does not violate
applicable international, national, state, regional or local laws or regulations governing the backup,
copying, or transfer of the data contained in the backup images.
6. PORTAL; PASSWORDS
A. If Licensee is permitted use of the Portal, it is solely responsible for: (i) all transactions conducted
through use of its Portal access credentials, (ii) all changes made to its data or account through use
of such credentials, (iii) ensuring that only persons Licensee has authorized to use the credentials
have access to them, and (iv) timely payment of fees and charges due and owing for all Products
and Product Support deployed, issued, or provisioned through the Portal using Licensee’s
credentials. If Licensee becomes aware of unauthorized access to its account or credentials,
Licensee will notify Arcserve immediately at [email protected]. If Arcserve determines that
a security breach has occurred or is likely to occur, it may suspend Licensee’s Portal account and
require Licensee to change its passwords and other credentials.
B. Licensee understands that loss of its password or other credential to any Product, the Portal or other
systems will result in the loss of access to Licensee’s data and potential inability to use the Product,
system, or Portal. Arcserve shall not have any (i) obligation to keep, maintain, or monitor any
password Licensee creates; (ii) liability associated with loss of any password; or (iii) obligation to
assist in its recovery. BY CREATING A PASSWORD OR ENCRYPTING DATA, LICENSEE
ASSUMES ALL RISK ASSOCIATED WITH LOSS OF THAT PASSWORD AND THE

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ASSOCIATED DATA.
7. PRODUCT SUPPORT.
A. Arcserve offers Product Support for its Products. Arcserve reserves the right to update its Product
Support guidelines from time to time and such updates will be effective on the date that they are
posted to Arcserve’s website.
B. Product Support will only be provided by Arcserve as follows:
(i) For Hardware Products and perpetual or term based Software Products, Arcserve shall
provide Product Support for the time period set forth on the Order Form, provided
Licensee has purchased and properly paid for Product Support. Once the initial Product
Support term expires, License is required to renew Product Support as specified in the
Order Form in order to continue to receive Product Support from Arcserve.
(ii) For subscription based Products, Arcserve shall provide Product Support as part of the
subscription license. Once the subscription period expires, Licensee is required to renew
the Product Support subscription as specified in the Order Form in order to continue to
use the Product and receive Product Support from Arcserve.
(iii) For subscription based Products billed based on Licensee’s consumption, Arcserve shall
provide Product Support so long as the Licensee’s account with Arcserve and/or the
applicable Distributor is in good standing and Licensee is not otherwise in breach of the
terms of this Agreement or any other agreement with Arcserve or Distributor.

C. If Licensee fails to renew and pay the applicable Product Support fee, Arcserve’s obligation to
provide Product Support shall cease. Licensee may reinstate Product Support thereafter by paying
to Arcserve a fee equal to One Hundred and Fifty percent (150%) of Arcserve’s then prevailing
Product Support fee for each year for which the fee has not been paid.
D. Except as set forth herein or as otherwise agreed upon in writing by Arcserve, Product Support is
not provided for plugins, SDKs, APIs, integration tools, Alpha/Beta Licenses, No Charge Editions,
Internal Use/Not-For-Sale Licenses, Trial/Evaluation Licenses, Community Edition versions or
generally any Product, utility, or tool for which a fee or monetary consideration was not paid to
Arcserve.
E. Licensee acknowledges and agrees that Arcserve may vary, update, and discontinue Products,
Software Product versions, Software Product features, Product Support, and support for third party
products (including without limitation operating systems and platforms) from time to time for
reasons including but not limited to changes in demand or enhancing security and technology.
F. From time to time, Arcserve may collect and process technical and related information about
Licensee’s use of the Products and Cloud Services and use such information to support and
troubleshoot issues, invoice, analyze trends and improve the Products and Cloud Services.
8. WARRANTY.
A. Arcserve warrants that it can enter into this Agreement and that it has the right to grant the Software
Product licenses as set forth herein. Arcserve also warrants that the Software Product will operate
substantially in accordance with the specifications set forth in the Documentation, under ordinary
operating circumstances, for a period of thirty (30) days from Licensee’s acquisition of the license
for the Software Product. If Licensee notifies Arcserve in writing of a breach of this warranty
during the warranty period set forth above, Arcserve’s entire liability and Licensee’s sole remedy
shall be for Arcserve, at Arcserve’s sole option (i) to correct, repair or replace the Software Product
within a reasonable time, or (ii) if within a reasonable time after receiving Licensee’s written notice
of breach of the above warranty, Arcserve is unable to cause the Software Product to operate in

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accordance with Arcserve’s written Documentation, then either Party may terminate this Agreement
on written notice to the other Party and Arcserve or the authorized reseller will refund the relevant
license Fees Licensee paid for such non-compliant Software Product. Arcserve’s obligation to
refund shall only occur after the Licensee returns the Software Product to Arcserve or its authorized
reseller from whom it obtained the Software Product, with the purchase receipt included. The
warranties set forth in this Section do not apply to Community Edition versions, as defined in
Section 15.E below, alpha/beta versions of the Software Product, Software Products licensed on a
trial or evaluation basis, any other product licenses covered by or referenced in Section 15 below
or to SDKs/APIs.
B. The warranty in subsection (A) above, shall not apply if (i) the Software Product has not been used
in accordance with the terms and conditions of this Agreement, the Documentation or applicable
laws, (ii) the Software Product has been used for a purpose or application for which it was not
intended, (iii) the defect is a result of alteration, abuse or damage, (iv) the issue has been caused by
the failure of Licensee to apply updates, upgrades or any other action or instruction recommended
by Arcserve, (v) the issue has been caused by the act or omission of, or by any materials supplied
by, the Licensee or any third party, or (vi) the issue results from any cause outside of Arcserve’s
reasonable control.
C. After the end of the warranty period as set forth in subsection (A) above, if Licensee obtains Product
Support from Arcserve for the Software Product and Arcserve is unable to cause the Software
Product to operate in accordance with Arcserve’s Documentation within a reasonable period of
time, Licensee may terminate this Agreement on written notice to Arcserve, and Arcserve or the
authorized reseller will refund the pre-paid and unearned Product Support Fees relating to the period
of time of such termination until the end of the then current Product Support term. If the defective
Software Product was purchased on a subscription basis, such refund will be provided only when
Licensee returns the Software Product to Arcserve or its authorized reseller from whom it obtained
the Software Product, with the purchase receipt included.
D. EXCEPT FOR THE EXPRESS WARRANTIES AS SET FORTH ABOVE IN SECTION 8.A,
THE SOFTWARE PRODUCT IS PROVIDED AND LICENSED “AS-IS”, WITH ALL FAULTS,
AND THERE ARE NO WARRANTIES, REPRESENTATIONS, OR CONDITIONS, EXPRESS
OR IMPLIED, WRITTEN OR ORAL, ARISING BY STATUTE, OPERATION OF LAW, OR
OTHERWISE, REGARDING THE SOFTWARE PRODUCT OR ANY OTHER ARCSERVE
SOFTWARE PRODUCT OR SERVICE PROVIDED UNDER OR IN CONNECTION WITH
THIS AGREEMENT. TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW,
ARCSERVE AND ITS THIRD-PARTY LICENSORS AND SUPPLIERS AND THE
CONTRIBUTORS OF CERTAIN INCLUDED SOFTWARE DISCLAIM ALL WARRANTIES
AND CONDITIONS, WHETHER EXPRESS, IMPLIED OR SATUTORTY, INCLUDING,
WITHOUT LIMITATION, THE IMPLIED WARRANTIES OF MERCHANTABILITY,
SATISFACTORY QUALITY, UNINTERRUPTED USE, NON-INFRINGEMENT AND
FITNESS FOR A PARTICULAR PURPOSE. ADDITIONALLY, ARCSERVE DOES NOT
WARRANT THAT THE SOFTWARE PRODUCT WILL MEET LICENSEE’S
REQUIREMENTS OR THAT USE OF THE SOFTWARE PRODUCT WILL BE
UNINTERRUPTED OR ERROR FREE.
E. THE PRODUCTS CONTAIN TECHNOLOGY THAT IS NOT FAULT TOLERANT AND IS
NOT DESIGNED, MANUFACTURED, OR INTENDED FOR USE IN ENVIRONMENTS OR
APPLICATIONS IN WHICH THE FAILURE OF THE PRODUCT COULD LEAD TO DEATH,
PERSONAL INJURY, OR SEVERE PHYSICAL, PROPERTY, OR ENVIRONMENTAL
DAMAGE.
F. NO THIRD PARTY, INCLUDING AGENTS, DISTRIBUTORS, AUTHORIZED ARCSERVE
RESELLERS OR MSPs ARE AUTHORIZED TO MODIFY ANY OF THE ABOVE

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WARRANTIES OR MAKE ANY ADDITIONAL WARRANTIES ON BEHALF OF
ARCSERVE.
G. SOME STATES/JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF IMPLIED
WARRANTIES, SO THE ABOVE EXCLUSION MAY NOT APPLY TO LICENSEE AND
LICENSEE MAY HAVE OTHER LEGAL RIGHTS THAT VARY FROM STATE TO STATE
OR BY JURISDICTION. IF ANY IMPLIED WARRANTY IS NOT DISCLAIMED UNDER
APPLICABLE LAW, THEN SUCH IMPLIED WARRANTY IS LIMITED TO THIRTY (30)
DAYS FROM LICENSEE’S ACQUISITION OF THE LICENSE FOR THE SOFTWARE
PRODUCT, SUBJECT TO THE EXCLUSIVE REMEDY PROVISION SET FORTH IN THIS
AGREEMENT.
9. ARCSERVE INDEMNITY.
A. Arcserve will indemnify, hold Licensee harmless, and defend or, at its option, settle any third-party
claim that Licensee’s use of the Software Product as authorized hereby infringes any patent,
copyright or other intellectual property right of any third party. Arcserve’s indemnity obligation
set forth in this Section is contingent upon Licensee (i) promptly notifying Arcserve in writing, not
later than ten (10) days after Licensee receives notice of the claim (or sooner if required by
applicable law); (ii) providing Arcserve with sole control of the defense and any settlement
negotiations; (iii) providing information, authority, and assistance to Arcserve to defend against or
settle the claim; (iv) promptly ceasing use or possession the Software Product that is subject to the
claim; and (v) without Arcserve’s prior written consent, not acknowledging the validity of the claim
or taking any action that might impair the ability of Arcserve to contest the claim.
B. If Arcserve believes or it is determined that any of the materials comprising the Software Product
may have violated a third party’s intellectual property rights, Arcserve may choose to either modify
the material to be non-infringing (while substantially maintaining its functionality) or obtain from
the third party a license to permit Licensee’s continued use. If neither of the foregoing is possible,
upon reasonable terms, cost and expense, Arcserve may terminate this Agreement on written notice
to the Licensee and Arcserve or the authorized reseller will: (i) for a perpetual license, refund the
Fees Licensee paid for the infringing Software Product, depreciated on a straight line five (5) years
basis, commencing on the date of purchase, only when Licensee returns the Software Product to
Arcserve or its authorized reseller from whom it obtained the Software Product, with the purchase
receipt included or (ii) for a subscription license, refund any pre-paid and unused Fees Licensee
paid Arcserve for the infringing Software Product.
C. Arcserve will have no liability or responsibility to indemnity, defend or hold Licensee harmless if
Licensee (i) alters or modifies the Software Product or materials comprising the Software Product,
(ii) uses the Software Product outside of the scope of use set forth in this Agreement, the Order
Form, and any related Documentation, including in a manner other than that for which it was
furnished by Arcserve or its authorized reseller, (iii) uses a version of the Software Product which
has been superseded, if the infringement could have been avoided by using the current version of
the Software Product, or (iv) uses the Software Product with other software, hardware or other
materials not supplied or approved in writing by Arcserve. Lastly, Arcserve will not indemnify
Licensee if the claim is based on use or possession in a country that is not a party to the World
Intellectual Property Organization treaties on patents, trademarks, and copyrights.
D. The infringement indemnity set forth in this Section does not apply to Community Edition versions,
as defined in section 15.E below, alpha/beta versions of the Software Product, Software Products
licensed on a trial or evaluation basis, any other product licenses covered by or referenced in Section
15 below or to SDKs/APIs. Further, this Section provides Licensee’s sole and exclusive remedy
for any infringement claims and damages.
10. LICENSEE INDEMNITY. Licensee shall, to the fullest extent permitted by law and at Licensee’s own

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cost and expense, defend, indemnify and hold harmless Arcserve including its parent, subsidiaries,
affiliates or associated companies, and its and their directors, officers, employees and agents from and
against any and all actions, suits, judgments, claims, proceedings, orders, losses, liabilities, damages,
penalties, fines, costs, expenses (including attorneys’ fees and court costs) and any incidental or
consequential damage, loss, cost or expense flowing from any of the foregoing, that in any way is
connected to, arises out of, or relates directly or indirectly to (i) Licensee’s unauthorized use or misuse of
the Product, Product Support or Portal provided by Arcserve, (ii) Licensee’s use of the Product, Portal or
any data that it stores, backs up, replicates, manages, manipulates or transfers through the use of the
Products or Portal in violation of any applicable law or third-party intellectual property rights, (iii)
Licensee uses the Software Product in violation of Third Party Terms (defined below), or (iv) Licensee’s
breach of any Sanctions and Export Control Laws (defined below).
11. LIMITATION OF LIABILITY.
A. IN NO EVENT WILL ARCSERVE OR ANY OF ITS THIRD PARTY LICENSORS AND
SUPPLIERS OR THE CONTIRBUTORS OF INCLUDED SOFTWARE BE LIABLE TO
LICENSEE OR ANY OTHER PARTY FOR ANY (I) USE, DELAY, OR INABILITY TO USE
THE SOFTWARE, (II) LOST REVENUES OR PROFITS, (III) DELAYS, INTERRUPTION, OR
LOSS OF SERVICES, BUSINESS, OR GOODWILL, (IV) LOSS, DISCLOSURE OR
CORRUPTION OF DATA, BACKUP DATA, OR LOSS RESULTING FROM SYSTEM OR
SYSTEM SERVICE FAILURE, MALFUNCTION, OR SHUTDOWN, (V) FAILURE TO
ACCURATELY TRANSFER, READ, OR TRANSMIT INFORMATION OR FAILURE TO
UPDATE OR PROVIDE CORRECT INFORMATION, (VI) SYSTEM INCOMPATIBILITY OR
PROVISION OF INCORRECT COMPATIBILITY INFORMATION OR BREACHES IN
SYSTEM SECURITY, (VII) ANY LOSS OR DAMAGE RELATED TO ANY THIRD PARTY
SOFTWARE, OR (VIII) FOR ANY CONSEQUENTIAL, INCIDENTAL, INDIRECT,
EXEMPLARY, SPECIAL, OR PUNITIVE DAMAGES, WHICH MAY ARISE FROM THE USE,
OPERATION OR MODIFICATION OF THE PRODUCT AND WHETHER ARISING OUT OF
OR IN CONNECTION WITH THIS AGREEMENT, INCLUDING BUT NOT LIMITED TO
BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE) OR ANY OTHER CAUSE,
REGARDLESS OF WHETHER SUCH DAMAGES WERE FORESEEABLE AND WHETHER
OR NOT ARCSERVE WAS ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
B. IN ADDITION TO THE FOREGOING, IF ARCSERVE IS LIABLE TO LICENSEE
HEREUNDER OR OTHERWISE IN CONNECTION WITH THE PRODUCT, THEN IN SUCH
EVENT ARCSERVE SHALL ONLY BE LIABLE FOR DIRECT DAMAGES AND SUCH
LIABILITY SHALL BE LIMITED, IN THE AGGREGATE, TO THE AMOUNT OF THE
LICENSE FEE ACTUALLY PAID FOR THE PRODUCT BY LICENSEE OR IN THE CASE OF
PRODUCT LICENSED ON A SUBSCRIPTION BASIS, THE AMOUNT PAID BY LICENSEE
TO ARCSERVE FOR SUCH USE IN THE SIX (6) MONTH PERIOD IMMEDIATELY
PRECEDING WRITTEN NOTICE OF THE FIRST CLAIM.
C. SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF
INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THE ABOVE LIMITATION OR
EXCLUSION MAY NOT APPLY. CONSUMERS IN CERTAIN COUNTRIES MAY BE
SUBJECT TO CERTAIN CONSUMER PROTECTION LAWS UNIQUE TO THEIR LOCALE
AND WHICH MAY LIMIT THE ABILITY TO MODIFY OR EXCLUDE LIABILITY. IF
LICENSEE ACQUIRED THE PRODUCT FOR BUSINESS PURPOSES, LICENSEE
CONFIRMS THAT ANY APPLICABLE CONSUMER PROTECTION LAWS DO NOT APPLY
TO LICENSEE OR LICENSEE’S USE OF THE PRODUCT. IF ARCSERVE BREACHES A
CONDITION OR WARRANTY IMPLIED BY APPLICABLE LAW AND WHICH CANNOT
LAWFULLY BE MODIFIED OR EXCLUDED BY THIS AGREEMENT THEN, TO THE
MAXIMUM EXTENT PERMITTED BY LAW, ARCSERVE’S LIABILITY TO LICENSEE IS
LIMITED, AT ARCSERVE’S OPTION, TO: (I) REPLACEMENT OR REPAIR OF THE

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SOFTWARE PRODUCT AND/OR RE-SUPPLY OF PRODUCT SUPPORT; OR (II) REFUND
THE FEES PAID BY LICENSEE IN ACCORDANCE WITH THE FOLLOWING: (1) FOR A
PERPETUAL LICENSE, REFUND THE FEES LICENSEE PAID FOR THE PRODUCT,
DEPRECIATED ON A STRAIGHT LINE FIVE (5) YEARS BASIS, COMMENCING ON THE
DATE OF PURCHASE, ONLY WHEN LICENSEE RETURNS THE PRODUCT TO
ARCSERVE OR ITS AUTHORIZED RESELLER FROM WHOM IT OBTAINED THE
PRODUCT, WITH THE PURCHASE RECEIPT INCLUDED OR (2) FOR A SUBSCRIPTION
LICENSE, REFUND ANY PRE-PAID AND UNUSED FEES LICENSEE PAID ARCSERVE
FOR THE PRODUCT.
12. COMPLIANCE WITH APPLICABLE LAWS; EXPORT CONTROL; ANTI-BRIBERY.
A. Licensee warrants that its use and possession of the Product is and will continue to be in accordance
with all international, national, state, regional, and local laws and regulations.
B. Licensee agrees that Arcserve, its employees, and its agents are subject to U.S. export control laws
that prohibit or restrict: (i) transactions with certain parties and (ii) the type and level of technologies
and services that may be exported from the U.S. Licensee shall comply fully with all Sanctions and
Export Control Laws to assure that neither the Product, nor any direct products thereof are: (1)
exported, directly or indirectly, in violation of the Sanctions and Export Control Laws or (2) used
for any purpose prohibited by Sanctions and Export Control Laws, including without limitation,
nuclear, chemical, or biological weapons proliferation. Licensee shall comply with all relevant
import and export regulations, including those adopted by the Office of Export Administration of
the US Department of Commerce and those applicable to Arcserve and/or Licensee.
C. Each Party warrants that in entering into this Agreement, neither Party nor any of its officers,
employees, agents, representatives, contractors, intermediaries, or any other person or entity acting
on its behalf has taken or will take any action, directly or indirectly, that contravenes (i) the United
Kingdom Bribery Act 2010, or (ii) the United States Foreign Corrupt Practices Act 1977, or (iii)
any other applicable anti-bribery laws or regulations in any part of the world.
D. Licensee acknowledges and agrees that neither the Product nor any of its underlying information or
technology may be downloaded or otherwise exported or re-exported: (i) into (or to a national or
resident of) Cuba, North Korea, Iran, Sudan, Syria, the Crimea region of Ukraine, or any other
country subject to U.S. sanctions applicable to the export or re-export of goods; or (ii) to anyone
ordinarily resident in, located in, or organized under the laws of any country or region subject to
economic or financial sanctions or trade embargoes imposed, administered, or enforced by the
European Union, the United Kingdom, or the United States; (iii) an individual or entity on the
Consolidated List of Persons, Groups, and Entities Subject to European Union Financial Sanctions;
the U.S. Department of the Treasury's List of Specially Designated Nationals and Blocked Persons
or Foreign Sanctions Evaders List; the U.S. Department of Commerce's Denied Persons List or
Entity List; or any other sanctions or restricted persons lists maintained by the European Union, the
United Kingdom, or the United States; or (iv) otherwise the target or subject of any Sanctions and

Export Control Laws. Licensee further certifies that it will not, directly or indirectly, export, re-
export, transfer, or otherwise make available the Products, or any data, information, software

programs and/or materials resulting from the Products (or direct product thereof) to any country,
region, or person described in this Section or in violation of, or for purposes prohibited by, Sanctions
and Export Control Laws, including for proliferation-related end uses. By downloading or using
the Product, Licensee agrees to the foregoing and represents and warrants that neither Licensee nor
any Party that owns or controls or is owed or controlled by Licensee is located in, under the control
of, or a national or resident of any such country or on any such list, and Licensee acknowledges that
it is responsible to obtain any necessary U.S. Government authorization to ensure compliance with
Sanctions and Export Control Laws.
13. GOVERNMENT USE.

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A. This Section 13 applies if Licensee is a Government End User, or a prime contractor or
subcontractor (at any tier) under any contract, grant, cooperative agreement, or other activity with
the U.S. Federal Government. In such case, the terms and conditions of this Section shall pertain to
the Government End User’s use and disclosure of the Product and Documentation and shall
supersede any conflicting terms or conditions.
B. If Licensee is a Government End User purchasing a Product pursuant to a U.S. Government
Contract, Licensee accepts the terms of this Agreement by placing an order for the Product under
the applicable U.S. Government Contract, effective as of the date of such order.
C. Notwithstanding any language in this Agreement to the contrary, disputes with the U.S. Federal
Government shall be subject to resolution pursuant to the Contract Disputes Act of 1978, as
amended. This Agreement does not limit or disclaim any of the warranties specified in a valid
Government Contract under Federal Acquisition Regulation 52.212-4(o). In the event of a breach
of warranty, the U.S. Federal Government reserves all rights and remedies under the: (i)
Government Contract under which it placed an order for the Software, (ii) Federal Acquisition
Regulations, and (iii) Contract Disputes Act, 41 USC 7101-7109.
D. The Product and any accompanying Documentation have been developed entirely at private
expense and are commercial in nature. The Software Products and Documentation are “Commercial
Items”, as that term is defined in 48 C.F.R. § 2.101, consisting of “Commercial Computer Software”
and “Commercial Computer Software Documentation”, as such terms are defined in 48 C.F.R. §
252.227-7014(a)(1), (4)-(5), and used in 48 C.F.R. § 12.212 and 48 C.F.R. § 227.7202, as
applicable. Government End Users acknowledge that the Software Product and Documentation are
licensed only as Commercial Items with only those rights that are granted to all other end users of
the Software Product, according to the terms and conditions contained in this Agreement.
E. Sections 20.I (Governing Law), and 20.K (Dispute Resolution) of this Agreement shall not apply
to Government End Users but shall continue to apply to prime contractors and subcontractors of the
U.S. Federal Government. All other provisions of this Agreement remain in effect as written.
14. THIRD PARTY SOFTWARE. Licensee acknowledges that the Software Product may be distributed
alongside certain third-party software ("Third Party Software") or open source software licenses of third
parties (“Open Source Components”), which both are provided under separate license terms (the "Third
Party Terms"). Information regarding Third Party Software and Open Source Components provided to
Licensee by Arcserve is set forth in more detail at https://www.arcserve.com/third-party-terms. Licensee
further acknowledges that the provisions of the Third Party Terms will apply to such Third Party Software
and Open Source Components in lieu of the terms of this Agreement. No provision of the Third Party
Terms gives Licensee any right, title or interest in the Software Product. To the extent the provisions of
the Third Party Terms applicable to an Open Source Component prohibit any of the restrictions in this
Agreement with respect to such Open Source Component, such restrictions will not apply to the Open
Source Component affected by such prohibition. To the extent the provisions of the Third Party Terms
applicable to the Open Source Components require Arcserve to make an offer to provide source code or
related information in connection with Open Source Components, such offer is hereby made. Any request
for source code or related information should be directed only to [email protected]. Licensee
acknowledges receipt of notices for the Open Source Components for the initial delivery of the Software
Product.
15. ALPHA/BETA VERSIONS; NO CHARGE EDITION; INTERNAL USE/NOT-FOR-RESALE;
TRIAL/EVALUATION VERSIONS; UDP COMMUNITY EDITION.
A. Alpha /Beta License. If the Software Product is an alpha or beta version of the program, hereinafter
referred to as the "beta program" or "beta version" and not generally available to date, Arcserve
does not guarantee that the generally available release will be identical to the beta program or that
the generally available release will not require reinstallation. Licensee agrees that if required by

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Arcserve, Licensee shall provide Arcserve with specific information concerning Licensee’s
experiences with the operation of the Software Product. Licensee agrees and acknowledges that the
beta version of the Software Product (i) is to be used only for testing purposes and not to perform
any production activities unless Arcserve shall have otherwise approved in writing and (ii) has not
been tested or debugged and is experimental and that the documentation may be in draft form and
will, in many cases, be incomplete. Licensee agrees that Arcserve makes no representations
regarding the completeness, accuracy or Licensee’s use or operation of the beta version of the
Software Product. If Licensee is also a Tester of the beta version of the Software Product (as
"Tester" is defined by the Beta Testing Agreement that was agreed to by Licensee during the
registration process before obtaining the beta version of the Software Product), Licensee agrees that
the terms of this Agreement are in addition to, and do not supersede, the terms of the Beta Testing
Agreement.
B. No Charge Edition. If the Software Product is a No Charge Edition, then this edition runs in a
limited capability mode, with limited Product Support for some languages that the Software Product
presently supports. It is possible to upgrade to a paid version of the Software Product to enable
functions that are disabled in the No Charge Edition. Support options and languages supported for
the No Charge Edition are subject to change without notice.
C. Internal Use/Not-For-Resale (“NFR”) License. If the Software Product is an Internal Use/NFR
License, the Software Product may be used solely for internal use, may not be sold, resold,
transferred or leased, and is subject to suspension, deactivation, and/or termination at Arcserve’s
sole discretion.
D. Trial/Evaluation License. If the Software Product is being licensed on a trial or evaluation basis,
Licensee agrees to use the Software Productsolely for evaluation purposes such as testing and/or
assessing the Software Product’s features, functionality, and interoperability, in accordance with
the usage restrictions set forth in Section 3, for a thirty (30) day evaluation period unless a different
period is otherwise noted (the "Trial Period"). At the end of the Trial Period, Licensee’s right to
use the Software Product automatically expires and Licensee agrees to de-install the Software
Product and return to Arcserve all copies or partial copies of the Software Product or certify to
Arcserve in writing that all copies or partial copies of the Software Product have been deleted from
Licensee’s computer libraries and/or storage devices and destroyed. If Licensee desires to continue
its use of the Software Product beyond the Trial Period, Licensee may contact Arcserve to acquire
a license to the Software Product for the applicable fee.
E. Community Edition. If the Software Product is being licensed as a Community Edition as defined
below, in addition to the usage restrictions set forth in Section 3, above, the following shall apply:
(i) Licensee shall only have up to 1 TB of protected source data. Licensee’s ability to backup data
will stop once 1 TB of protected source data is reached and Licensee will be required to license a
paid for version of UDP for the total storage capacity needed; (ii) Licensee may only download one
copy of the Community Edition per customer; (iii) Licensee may not combine the Community
Edition with a paid for version of UDP (i.e. combine 1 TB community edition with 9 TB of paid
for license to have 10 TB of storage). For purposes herein, “Community Edition” shall mean a fully
functional, premium edition of UDP minus Arcserve Backup, license of the Software Product at no
cost to Licensee. Arcserve shall provide Licensee with access to its UDP Community Forum but
has no further obligation to provide Licensee Product Support or assistance. Licensee agrees that
Arcserve makes no representations regarding the completeness, accuracy or Licensee’s use or
operation of the UDP Community Edition.
F. With respect to the Software Products and licenses set forth in subsections A through E of this
Section 15, such Software Products and licenses shall be PROVIDED ON AN "AS IS" BASIS,
WITHOUT WARRANTIES OR REPRESENTATIONS OF ANY KIND, EITHER EXPRESS OR
IMPLIED, INCLUDING WITHOUT LIMITTION, THE IMPLIED WARRANTIES OF

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MERCHANTABILITY, SATISFACTORY QUALITY, UNINTERRUPTED USE, NON-
INFRINGEMENT AND FITNESS FOR A PARTICULAR PURPOSE AS WELL AS ANY

EXPRESS WARRANTIES PROVIDED ELSEWHERE IN THIS AGREEMENT.
ADDITIONALLY, ARCSERVE DOES NOT WARRANT THAT THE SOFTWARE
PRODUCTS OR LICENSES WILL MEET LICENSEE’S REQUIREMENTS OR THAT USE
THEREOF WILL BE UNINTERRUPTED OR ERROR FREE.
16. SOFTWARE DEVLEOPMENT KIT; API’S.
A. If the Software Product includes a Software Development Kit ("SDK") or one or more application
programming interfaces, scripts, and/or associated tools (“APIs”), the terms and conditions of this
paragraph apply. The SDK may include software, APIs and associated documentation. The SDK
and APIs are provided solely for Licensee's internal use (except in the case of an MSP delivering
managed services to third parties, who may use the API to benefit their customer) to develop
software that enables the integration of third-party software or hardware with the Software Product,
or to develop software that functions with the Software Product, such as an agent. Licensee’s use of
the SDK and APIs are restricted solely to enhance Licensee’s (or its customer’s) internal use of the
Software Product. Furthermore, Licensee agrees that the SDK and APIs shall be used solely in
conjunction with the particular Software Product licensed to Licensee; only used with the user
interface delivered with the Software Product or with an approved third-party user interface, service,
agent, or module; not be used in conjunction with or to develop products or services competitive to
the particular Software Product licensed; and shall not be used in a manner that suggests ownership
by Licensee or anyone other than Arcserve. No distribution rights of any kind are granted to
Licensee regarding the Software Product or SDK/APIs. In addition to the limitations on use set forth
in Section 3(A), above, Licensee may not reproduce, disclose, market, or distribute the SDK/APIs
or the documentation or any applications containing any executable versions of the SDK/APIs to
third parties, on the internet, or use such executables in excess of the Authorized Use. If there is a
conflict between the terms of this section and the terms of any other section in this Agreement, the
terms of this section will prevail solely with respect to the use of the SDK/APIs.
B. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, AND
NOTWITHSTANDING ANYTHING CONTAINED HEREIN TO THE CONTRARY, SDKs
AND APIs ARE PROVIDED ON AN "AS IS" BASIS WITHOUT ANY WARRANTIES OR
REPRESENTATIONS OF ANY KIND, EITHER EXPRESS OR IMPLIED, INCLUDING
WITHOUT LIMITTION, THE IMPLIED WARRANTIES OF MERCHANTABILITY,
SATISFACTORY QUALITY, UNINTERRUPTED USE, NON-INFRINGEMENT AND
FITNESS FOR A PARTICULAR PURPOSE AS WELL AS ANY EXPRESS WARRANTIES
PROVIDED ELSEWHERE IN THIS AGREEMENT. ADDITIONALLY, ARCSERVE DOES
NOT WARRANT THAT THE PRODUCTS OR LICENSES WILL MEET LICENSEE’S
REQUIREMENTS OR THAT USE THEREOF WILL BE UNINTERRUPTED OR ERROR
FREE.
17. FEES.
A. Payment of the Fees specified on the Order Form or as agreed between Licensee and an authorized
reseller of Arcserve, shall entitle Licensee to use the Product for the Term, which use may include
the right to receive Product Support therefore for the time period set forth on the Order Form. All
Fees payable hereunder shall be payable in advance unless otherwise set forth in Your executed
agreement with Arcserve. Licensee will install each new release of the Software Product delivered
to Licensee. After the Term, continued usage and/or Product Support as provided herein shall be
subject to the payment by Licensee of the Fees. Notwithstanding the foregoing, if the Software
Product was licensed under this Agreement without an Order Form, Licensee shall be entitled to
use the Software Product for the Term, but the license does not include the right to receive Product
Support; provided however, with respect to any Software Product that relies on continuous content
updates, such as signature files and security updates, Licensee shall be entitled to such content

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updates for a period of one (1) year from the effective date of acceptance of the license.
B. All Fees are net of applicable taxes. Licensee agrees to pay any tariffs, duties or taxes imposed or
levied by any government or governmental agency including, without limitation, federal, state and
local, sales, use, value added and personal property taxes, (other than franchise and income taxes
for which Arcserve is responsible) upon a presentation of invoices by Arcserve. Any claimed
exemption from such tariffs, duties or taxes must be supported by proper documentary evidence
delivered to Arcserve.
C. Any invoice which is unpaid by Licensee when due shall be subject to an interest charge equal to
the lower of 1.5% per month or the highest applicable legal rate.
18. TERMINATION AND SUSPENSION.
A. Arcserve shall have the right to terminate this Agreement immediately and, in addition to all other
rights of Arcserve, demand all amounts due or that will become due hereunder immediately payable
to Arcserve if: (i) Licensee fails to pay the Fees to Arcserve in accordance with the agreed payment
terms, (ii) if Licensee breaches any term of this Agreement or any other agreement Licensee has
entered into with Arcserve or (iii) if Licensee becomes insolvent or if bankruptcy or receivership
proceedings are initiated by or against Licensee (“Events of Default”).
B. If this Agreement or Licensee’s license terminates for any reason, Licensee shall cease all use of
the Software Product and Documentation and shall within thirty (30) days after the date of
termination, certify to Arcserve in writing by a duly authorized director or officer of Licensee, that
all copies and partial copies of the Software Product have been deleted from all computers and
storage devices and are returned to Arcserve or destroyed and are no longer in use. Notwithstanding
the foregoing, Licensee’s continued use of the Software Products will at all times be subject to and
governed by this Agreement. This Section 18.B shall survive termination or expiration of this
Agreement indefinitely.
C. Licensee’s right to use and access the Software Products that are licensed on a subscription /renewal
basis will automatically terminate on expiry of the applicable Term.
D. Except as expressly set forth herein, all Fees paid or payable are non-cancellable and non-refundable
to the maximum extent permitted by law.
E. Arcserve shall have the right to withhold its own performance hereunder including suspending or
withholding Licensee’s access to certain functionality of the Product, Product Support or any access
to the Portal until the breach is cured if: (i) Licensee fails to pay the Fees to Arcserve in accordance
with the agreed payment terms, (ii) Arcserve reasonably believes Licensee has used the Product in
violation of Sections 2-5; (iii) Licensee breaches any term of this Agreement or any other agreement
Licensee has entered into with Arcserve or (iv) Licensee becomes insolvent or if bankruptcy or
receivership proceedings are initiated by or against Licensee. Arcserve’s decision to suspend
functionality or access is without prejudice to its right to terminate this Agreement for the same
cause(s) underlying the suspension.
F. The provisions of Sections 2-5, 10-12, 18, 19, 20, 21 and other provisions that by their nature
survive termination, shall survive any termination or expiration of this Agreement.
19. CONFIDENTIALITY. By virtue of this Agreement, Licensee will have access to information that is
confidential to Arcserve (“Confidential Information”). Confidential Information includes non-public
information that is designated “confidential” or that a reasonable person should understand is
confidential. Licensee will protect Arcserve’s Confidential Information from unauthorized
dissemination and use with the same degree of care that it uses to protect its own Confidential

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Information, but in no event less than a reasonable amount of care. Licensee shall only use Arcserve’s
Confidential Information in performance of this Agreement. Furthermore, Licensee agrees not to
disclose Arcserve’s Confidential Information to any third party other than those set forth in the following
sentence. Licensee may disclose Arcserve Confidential Information only to those employees, agents or
subcontractors who are required to protect the Confidential Information against unauthorized use or
disclosure in a manner no less protective than the terms contained under this Agreement, and who have
a genuine need to know the Confidential Information solely for the purpose of this Agreement. Nothing
shall prevent Licensee from disclosing Confidential Information to a governmental entity as required by
law, provided however that Licensee shall provide Arcserve with notice including providing a copy of
the order, the subpoena or the discovery request (unless otherwise directed by law enforcement
authorities), with the intent that Arcserve has an opportunity to seek a protective order, and where no
protective order is granted, Licensee shall disclose only the Confidential Information as necessary to
comply with the law, rule, regulation, summons, subpoena or order, and will advise the governmental
entity seeking such Confidential Information of the confidential nature of such information.
20. GENERAL.
A. Shipping. All Software Products are provided FOB shipping point or electronic delivery.
Acceptance is deemed to have occurred at the earliest of point of physical shipment or delivery of
keys/access codes for electronic delivery.
B. Feedback. Any suggestions, feedback or proposed modifications to the Product (in any form),
provided by Licensee to Arcserve may be freely used by Arcserve without limitation, and any
modifications to the Product resulting from such suggestions, feedback or proposed modifications
shall be exclusively owned by Arcserve.
C. Monitoring. The Software Product contains technological copy protection or other security features
designed to prevent unauthorized use of the Software Product, including features to protect against
any use of the Software Product that is prohibited under Sections 2-5. Licensee shall not, and shall
not attempt to, remove, disable, circumvent, or otherwise create or implement any workaround to,
any such copy protection or security features.
D. Audit. Licensee agrees to perform a self-audit upon ten (10) working days’ prior written notice
from Arcserve, calculating the number of Authorized Users, computers, servers or other applicable
units benefiting from the Software Products. If Licensee’s self-audit reveals that Licensee’s actual
usage exceeds the Authorized Use, Licensee shall procure the additional licenses required from
Arcserve or its preferred reseller. If Licensee does not perform a self-audit upon request from
Arcserve, or if Arcserve has reason to doubt the results of such self-audit, upon prior written notice
to Licensee, Licensee shall permit Arcserve or an independent certified accountant appointed by
Arcserve to access Licensee’s premises and inspect Licensee’s books of account and records at any
time during normal business hours for the purpose of inspecting, auditing, verifying or monitoring
the manner and performance of Licensee’s obligations under this Agreement, including without
limitation the payment of all applicable Fees. Any such audit shall minimize the disruption to
Licensee’s business operations. Arcserve shall not be able to exercise this right more than once in
each calendar year. If an audit reveals that Licensee has underpaid Fees to Arcserve, Licensee shall
be invoiced for and shall pay to Arcserve or the applicable reseller within thirty (30) days of the
date of invoice an amount equal to the shortfall between the Fees due and those paid by Licensee.
If the amount of the underpayment exceeds five percent (5%) of the Fees due or the audit reveals a
violation of any Authorized Use pursuant to this Agreement then, without prejudice to Arcserve’s
other rights and remedies, Licensee shall also pay Arcserve’s reasonable costs of conducting the
audit.
E. Notices. All notices given or served under this Agreement shall be in writing and: (i) personally
delivered to the Party to be notified, in which instance notice shall be deemed to have been given
and received upon actual delivery; (ii) sent by a reputable international overnight commercial

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courier service (such as FedEx) addressed to the Party to be notified, in which instance notice shall
be deemed to have been given one (1) business day after deposit with such courier service for
delivery; (iii) sent by email, in which instance notice shall be deemed to have been given and
received upon actual delivery; or (iv) delivered to the Party to be notified by any other means where
it can be established that the Party to be notified received such notice, in which instance notice shall
be deemed to have been given and received upon the date of receipt. Arcserve’s notice address is:
Arcserve, LLC, Attn: Legal Group, 6600 City W. Parkway,, Suite 215, Eden Prairie, Minnesota
55344, USA; and via e-Mail to: [email protected]; and to: [email protected]. Licensee’s
notice address is the address and /or email address Licensee or its authorized distributor or reseller
provided to Arcserve. Either Party may change its contact information for notice purposes by giving
ten (10) days prior written notice to the other Party in any manner described above.
F. Remedies. Arcserve’s remedies set forth in this Agreement are cumulative and are in addition to,
and not in lieu of, all other remedies Arcserve may have at law or in equity, whether under this
Agreement or otherwise.
G. Assignment. Licensee may not assign this Agreement nor transfer the Software Products to any
third party without the prior written consent of Arcserve. If such consent is obtained from Arcserve,
Licensee must ensure that: (i) the entire Software Product is transferred to a single recipient and is
not sub-divided, (ii) the Software Product is deleted by the Licensee at the time of transfer, (iii) the
Licensee passes full details of the recipient to Arcserve, and (iv) the recipient agrees to be bound
by the terms and conditions of this Agreement. Any attempt by Licensee to transfer the rights or
obligations under this Agreement in violation of this Section will be null and void and will constitute
a material breach of this Agreement. Arcserve may assign this Agreement to any third party that
succeeds to Arcserve’s interests in the Software Product and assumes the obligations of Arcserve
hereunder and Arcserve may assign its right to payment hereunder or grant a security interest in this
Agreement or such payment right to any third party.
H. Severability. If a court holds that any provision of this Agreement to be illegal, invalid or
unenforceable, the remaining provisions shall remain in full force and effect.
I. Governing Law. This Agreement shall be governed by and interpreted in accordance with the laws
of the State of Utah, USA, without regard to its choice of law provisions. Notwithstanding the
foregoing, the laws of the country in which Licensee acquires a license for the Product shall govern
this Agreement, except as otherwise provided in the Country Specific Terms set forth in section 21
below.
J. Jurisdiction. The Parties irrevocably submit to the personal jurisdiction of the state or federal
courts of the State of Utah, USA. The United Nations Convention on Contracts for the International
Sale of Goods shall not apply to this Agreement. Any action for provisional relief concerning this
Agreement or the Parties’ relationship hereunder, including but not limited to a temporary
restraining order, preliminary injunction, attachment in aid of arbitration, or order for any interim
or conservatory measure, shall be brought exclusively in Salt Lake City, Utah, USA. The Parties
consent and submit to the exclusive jurisdiction of the state or federal courts in Salt Lake City, Utah
for purposes of any action for such provisional remedy or interim or conservatory measure.
K. Dispute Resolution. At the election of either Party to this Agreement, any dispute, controversy, or
claim arising out of, relating to, or in connection with the following may be submitted for final
resolution by arbitration: the Product’s performance, including without limitation any alleged
deficiency or defect; the existence or breach of a contractual, statutory, or common-law warranty
associated with this Agreement or a Product; the terms and obligations of this Agreement as they
pertain to the foregoing; and the performance, termination, rescission, or alleged breach of this
Agreement as they pertain to the foregoing (collectively, “Arbitral Dispute”). In the event
arbitration is elected, both Parties expressly waive any right to a trial by jury for any claim
constituting an Arbitral Dispute. Any claim by Arcserve for infringement, violation of copyright,

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trademark, or Intellectual Property Rights, or breach of this Agreement arising from facts
constituting infringement or violation of Intellectual Property Rights is not an Arbitral Dispute, but
shall be brought exclusively before a court of competent jurisdiction in Salt Lake City, State of
Utah, USA. If the claimant is the Party electing arbitration, they must do so in writing before filing
a complaint or otherwise bringing an action in court. If the respondent is the Party electing
arbitration, they must do so in writing on or before the last day to answer and/or respond to a
summons and/or complaint brought by the other Party. If Licensee is a resident of or is
headquartered in the USA, the arbitration shall be conducted by the American Arbitration
Association (the “AAA”), in accordance with the AAA Commercial Arbitration Rules (the “AAA
Rules”), in effect at the time of the arbitration, except as those AAA Rules may be modified by this
Agreement or stipulation of the Parties. If the Licensee is not a resident of the USA or does not
maintain a place of business in the USA, the arbitration shall be conducted by the International
Centre for Dispute Resolution (the “ICDR”), in accordance with the ICDR International Arbitration
Rules (the “ICDR Rules”), in effect at the time of the arbitration, except as those ICDR Rules may
be modified by this Agreement or stipulation of the Parties. The AAA Rules and ICDR Rules are
collectively referred to as the “Rules.” Copies of the Rules can be obtained, free of charge, at
http://www.adr.org. The Parties shall be entitled to conduct discovery as follows: twenty (20)
interrogatories, twenty (20) requests for production of documents, three (3) subpoenas to third
parties, three (3) oral depositions, and one (1) written-question deposition. The Parties intend that
any arbitration between them shall involve only the claims between the Parties and not any claims
by a Party against a third party. No other dispute between a Party and a third party shall be included
in the arbitration. Class arbitration shall not be permitted. The arbitration shall be conducted by a
single (1) arbitrator selected in accordance with the Rules except that the arbitrator must be a retired
state or federal judge or foreign equivalent who has previous experience in technology disputes.
Filing fees, arbitrator fees, and other fees charged by the arbitral body shall be paid initially by the
claimant in the proceeding. Arbitration shall be conducted in the English language. The place of
arbitration shall be Salt Lake City, Utah, USA. Any award is final and binding on the Parties and
may be challenged in a court of competent jurisdiction only upon those grounds allowed under the
Utah Uniform Arbitration Act. In the absence of challenge, judgment on the award may be entered
in any court of competent jurisdiction. Without otherwise limiting the authority conferred on the
arbitrator by this Agreement and the Rules, the arbitrator shall not have the authority to exercise
equitable principles or award equitable remedies. By agreeing to Arbitration, the Parties do not
intend to deprive any court of competent jurisdiction in Salt Lake City, Utah, USA, of its ability to
hear disputes that are not Arbitral Disputes or to issue any form of provisional remedy, including
but not limited to a temporary restraining order, preliminary injunction, attachment in aid of
arbitration, or order for any interim or conservatory measure. A request for such provisional remedy
or interim or conservatory measure by a Party to a court shall not be deemed a waiver of the
agreement to arbitrate. In any Arbitral Dispute, the arbitrator may award the successful Party all of
its costs incurred in the proceeding, including if applicable and without limitation filing, arbitrator,
and administrative fees, and other fees imposed by the arbitrator.
L. Force Majeure. The failure of Arcserve to comply with any provision of this Agreement due to an
act of God, hurricane, war (or act of war), fire, riot, pandemic, endemic, earthquake, terrorism, and
act of public enemy, actions of governmental authorities (excepting compliance with applicable
codes and regulations), or other force majeure event beyond its reasonable control will not be
considered a breach of this Agreement.
M. Waiver. Failure by either Party to enforce any particular term or condition of this License
Agreement shall not be construed as a waiver of any of its rights under it. No waiver of any breach
of this Agreement shall be a waiver of any other breach and no waiver shall be effective unless
made in writing and signed by an authorized representative of the waiving Party.
N. Entire Agreement. This Agreement, the Hardware Product Schedule and all documents and
policies referenced herein constitute the entire agreement between the Parties relating to the

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licensing and use of the Products and supersede any other oral or written communications,
agreements or representations with respect to the Products.
O. No Third-Party Beneficiary. No third party is or shall be a beneficiary of this Agreement and no
third party shall have the right to enforce this Agreement. This includes, without limitation, a third
from which Licensee purchased the Product, a third party that provides services to Licensee in
relation to the Product, or a customer to which Licensee provides services using the Product.
P. Electronic Transaction; Electronic Communications. The Parties agree that this Agreement may
be formed, executed, and/or delivered by electronic means, including the use of electronic
signatures and/or electronic agents. Arcserve shall be entitled to communicate with License via
email or other electronic communications. Licensee consents to these communications and others
regarding the Product, new product releases, upgrades, Product Support, and other information that
Arcserve believes may be relevant to use of the Products.
21. COUNTRY SPECIFIC TERMS. In the event Licensee acquires a Hardware Product, a license for the
Software Product and/or Cloud Services outside of the United States, the provisions set forth at
https://www.arcserve.com/country-specific-terms will apply to the use of the Product and/or Cloud
Services.