Introduction

By registering to use the Cloud Services you acknowledge and agree that you have read and understood the Standard Terms (as amended below) and the terms set out in this Service Description for Cloud Services (together, the “Terms”) and any use of the Cloud Services will be subject to the Terms. You warrant that the Administrator, and any other person using the applicable user name and password, has your authority to purchase the Cloud Services for your use and to manage the use of the Cloud Services on your behalf.

General

1. Definitions

“Acceptable Use Policy” means our acceptable use policy, as set out in Appendix 1 to this Service Description.

“Administrator” means your nominated administrator who has your authority to purchase Cloud Services and manage those services on your behalf.

“Cloud Services” means Vodafone’s cloud services as set out on and provided through the Cloud Services Portal, and as further defined in this Service Description.

“Cloud Services Portal” means the Vodafone Internet site for discovery, browsing, subscribing, consumption, reporting and customer administration of the Cloud Services.

“Cloud Services (Server Cloud Backup)” means the provision of server backup using the HP Autonomy LIveVault Product, as further defined in the Cloud Services (Server Cloud Backup) section of this Service Description.

“LiveVault End User License Agreement” mean the licence terms as set out in Appendix 2 to this Service Description, as may be amended by HP from time to time.

“Standard Terms” means Vodafone’s Business Terms.

“Vodafone”, “we” and “our” means Vodafone New Zealand Limited and “you” means you, our customer.

2. Standard Terms.
The Cloud Services will be supplied to you on the basis of:

• The Standard Terms, subject to the amendments referred to below; and
• The terms set out in this Service Description.

The Standard Terms are amended as follows:

• Ordering of the Cloud Services will be completed on-line via the Cloud Services Portal;
• Clause 2.1: your agreement with us for Cloud Services will commence on the date that we advise you via your nominated email address that the Cloud Services are available for your use;
• “Initial Term” means one month from the date we advise you, via your nominated email address that the Cloud Services are available for your use”;
• Clause 26.10: your notice details will be the details supplied by your Administrator when setting up the Cloud Services.
• Clause 1.3: the following Specific Terms are incorporated into the Agreement:

”Specific Terms” means the Service Description: Cloud Services (Server Cloud Backup) and the particular Cloud Services that will be provided to you and the associated Charges payable by you, the details of which are set out in the “My Services” section under the “My Subscriptions” tab on the Cloud Services Portal.”

3. Your Services

Minimum Term.
The Cloud Services are provided to you on a month-to-month basis, commencing on the date we advise you, via your nominated email address, that the Cloud Services are available for your use. Charging for the Cloud Services will also start from this date. Charging will continue until you fully decommission the services thereby terminating them. Any virtual server that is powered down or suspended, but not terminated, will incur on-going costs.

Suspension or Termination.
Any rights for us to suspend or terminate the Cloud Services are in addition to our rights to suspend or terminate your service under the Standard Terms.

We may suspend or cancel your receipt of the Cloud Services and you must continue to pay all charges relating to the relevant suspended services during the period of suspension if we reasonably believe that you are in breach of:

1. the Acceptable Use Policy;
2. the LiveVault End User Licence Agreement;
3. the Standard Terms;
4. the terms and conditions set out in this Service Description; or
5. any user guides provided by us.

In addition to our other rights to cancel or suspend your receipt of the Cloud Services, we may also suspend or cancel your receipt of the Cloud Services (but without you incurring any charges relating to such services during the period of suspension) due to a reasonable suspicion on our behalf that the continued provision of a product, service or feature may compromise the security of our service platform, for example due to hacking attempts or denial of service attacks or a vulnerability discovered in relation to a particular item of technology which we use to deliver the Cloud Services.

Where we suspend or cancel your receipt of the Cloud Services, we will provide you with as much notice as is reasonably possible in the circumstances prior to suspending or cancelling the services.

Acceptable Use Policy.
You must use the Cloud Services in accordance with the Acceptable Use Policy.

User and Responsibility Guides.
You must follow our reasonable directions in relation to:

1. your use of the Cloud Services; and
2. the data that is stored or hosted as part of the services you are receiving under the Cloud Services.

We may provide you with user guides relating to the Cloud Services which will set out relevant technical information related to your services as well as instructions for use.

Third Party Claims.
You indemnify us against all loss, liability, cost or expense, suits or proceedings arising as a result of or in connection with any third party claim that relates to your data (including hosted content, any data stored on our storage platform and any software or configuration data you install on our service platform) or arising as a result of or in connection with your use of the Cloud Services.

4. Ancillary Services

Help Desk

If you experience a fault with your service, you may contact our help desk. Our help desk staff will attempt to rectify the fault, but may require certain information from your authorised representative before the fault can be rectified. The help desk may not be able to assist if your authorised representative is unavailable.

Cloud Services Portal

As part of your service, we will provide your Administrator with a user account and password enabling you to access our online Cloud Services Portal so that you can order Cloud Services, review information about your products, services and features and administer them.

You acknowledge that the accessibility and functionality of the online Cloud Services Portal may be affected by your internet connection, browser and/or the computer system you are using.

Security

We aim to protect our equipment and service platform against intrusions, viruses, trojan horses, worms, time bombs and other similar harmful software which may affect your service, as well as vulnerabilities which may expose our equipment and service platform to the risk of intrusion or attack. We do not, however, guarantee such protection.

You must take steps to prevent unauthorised access to your service and our service platform, for example, by not disclosing security credentials (such as user names and passwords) related to the services purchased as part of the Cloud Services.

You are responsible for the use of the Cloud Services by your users. You are also responsible for maintaining the confidentiality of your passwords and you are solely responsible for all activities that occur under your password. You agree to notify us immediately of any unauthorised use of your password/s or any other breach of security related to the Cloud Services Portal or the Cloud Services.

The Cloud Services do not include the following security features:

• For the server: intrusion detection, intrusion prevention and host intrusion protection; and
• For the network: network intrusion detection and network intrusion prevention.

You will not access or attempt to access the Vodafone internal network or perform penetration testing in relation to the Cloud Services.

Service Software.
We use software to provide the Cloud Services. We do not guarantee that such software is error-free.

As part of your service, we may provide you with a non-exclusive, non-transferable licence to use certain software (“Service Software”) for the sole purpose of you accessing and using your service.

You must comply (and ensure that your users comply) with all licence terms applicable to the Service Software, this Service Description, the Standard Terms and the Live Vault End User Licence Agreement set out in Appendix 2.

Because of the nature of the Cloud Services, which are made up of technology and services provided by our third party suppliers, we may not have control over certain terms and conditions which the third party supplier requires you to click to accept or otherwise enter into when you first use your service.

We will endeavour to provide you with a copy of these third party terms and conditions.

If you do not agree to the third party terms which we provide, we may not be able to provide you with certain products, services or features. If you accept the third party terms and conditions, you must comply with those terms and conditions. If you fail to do so, we may be required by the relevant third party to cancel your service.

Except as permitted by law, you must not (and you must ensure that your users do not):

1. remove any copyright, trade mark or similar notices on the Service Software;
2. attempt to reverse engineer, decompile, disassemble, or derive any part of the source code of the Service Software; or
3. modify, translate, or create derivative works based on the Service Software.

You must install Service Software, other software, upgrades and patches as directed by us. If you fail to do so, we may suspend or refuse to support your service.

Your Software.
You must not use third party applications in connection with the Cloud Services which have licence terms and conditions which conflict with or could cause you to breach the Standard Terms or this Service Description.

5. Your Information.

Your Data.
If we host or store your data as part of your service, you grant us a licence to host or store your data for all purposes required for or related to our provision of the Cloud Services.

If we do not think that your data meets certain required standards, we may suspend or cancel your Cloud Services or we may direct you to remove your data or request your authorisation for us to do so on your behalf. Some examples of data that do not meet our standards includes pornographic, offensive or defamatory content.

You are responsible for backing up your data. Notwithstanding any other clause in this Service Description or any other terms between us, we are not liable for any loss or corruption of data irrespective of how such loss arose.

We may delete your data immediately on termination of your Cloud Services. You are responsible for transferring your data elsewhere.

Privacy.
In order to deliver the Cloud Services, you allow us to disclose personal information we collect from you and your users to third parties such as our suppliers, contractors and third party service providers (or their suppliers).

We rely on you to ensure that you have taken all legally necessary steps to allow us and our third party suppliers to collect personal information from your users and to use, disclose, store and transfer such personal information in accordance with the our Privacy Statement (see our Privacy Policy ) and these additional privacy terms. You indemnify us against any claim, cost, loss or liability which may arise in connection with your failure to do so.

Take Down Notices and Directions.
You must promptly notify us if you receive any mandatory take-down, service cessation or link deletion notices from any regulatory authority, that relates to your hosted content or data stored on our services platform. You must promptly comply with any such notices and directions.

We may immediately disable or suspend access by you or your customers to your hosted content by written notice to you if:

1. you fail to comply with, or we receive, any mandatory take-down, service cessation or deletion notices from a regulatory authority that relates to your hosted content or data or any part of it; or
2. we reasonably suspect that your hosted content or any part of it breaches any laws, regulations, determinations or industry codes applicable to your service or your hosted content, or infringes the rights (including intellectual property rights) of any person.

Intellectual Property.
If we provide you with any documents, processes, service configurations or software as part of your service, we (or our licensors) will:

1. continue to own the intellectual property rights in those materials; and
2. grant you a non-exclusive, non-transferable licence to use that material solely for purposes required to use the Cloud Services.

You must immediately inform us if you become aware of any infringement or suspected infringement of our intellectual property rights.

Your Records.
You are responsible for ensuring that you comply with all laws or regulations which require you to retain certain records, data and information.

Virtualisation.
Many of the products, services and features provided under the Cloud Services are provided through the use of virtualisation technology and you acknowledge and agree that the hardware and software that we use to provide you with your products may be shared with other customers.

6. Pricing

Pricing.
Pricing for the Cloud Services is specified in the Cloud Services Portal. We will commence billing for your Cloud Services from the date we advise you, via your nominated email address that the Cloud Services are available to you.

In addition to the General terms above, the following terms apply if you are purchasing Cloud Services (Server Cloud Backup) from us.

To be eligible for Cloud Services (Server Cloud Backup) you need an account with Vodafone and a fixed broadband plan with Vodafone.

The Cloud Services (Server Cloud Backup) use our third party supplier HP’s Autonomy LiveVault product. A LiveVault software module (“LiveVault Agent”), installed on all servers to be backed up, encrypts all data before transferring it from the servers as well as while in transit, and at HP's secure, offsite, datacentres. You can choose for your data to remains encrypted on the optional TurboRestore™ appliance in your data center (additional charges apply for a TurboRestore appliance). To ensure the physical security and availability of stored data, Cloud Services (Server Cloud Backup) mirror all data to a second, geographically dispersed datacentre, for full failover and redundancy. However, Vodafone has no responsibility or liability for your transmissions of data.

All backed up data is stored in NZ datacentres.

Vodafone reserves the right to suspend the Cloud Services (Server Cloud Backup) if your use of the services materially and adversely affects Vodafone or its suppliers’ operations or delivery of similar services to other customers.

1.Data Protection

Depending upon the configuration option you select, backup configurations may be set to run continuously (up to every 15 minutes for Windows servers) 24 x 7 or to run on a scheduled basis (see section 4 System Requirements for supported configurations). When a backup configuration is running, only changes to files and databases your users have selected for backup on the Protected Server are captured by the LiveVault Agent, encrypted, and sent to the secure data vaults. Queued Changes (as defined in section 4 Deploying the Cloud Services (Server Cloud Backup) below) are sent to the secure data vaults when there is a Valid Connection (as defined in section 5 Bandwidth Requirements below) between the Protected Server and the Cloud Services (Server Cloud Backup) and there are no preceding items waiting to be sent. The Cloud Services (Server Cloud Backup) retain secured copies of your users’ data for the retention period described in the plans below for so long as the schedule is in effect.

You may subscribe to multiple retention plans, based on your Protected Server fleet and backup requirements for each.

If you are using the continuous backup configuration for Windows servers, historical images of your data are retained based on one of the following retention plans as selected by you during initial configuration. You may initiate restore requests from the LiveVault web management interface for any of the current data sets.

Window System Retention Plans

For Linux servers, the continuous backup configuration is not available (due to inherent constraints within Linux). For these systems, only custom backup or nightly backup configurations are available, providing a recovery point of two (2) hours.

Linux System Retention Plans

Retain Period: period when your data for a Protected Server is held in the Cloud Services (Server Cloud Backup) secure data vaults before the oldest of your data is overwritten.

Data Protection Guidelines

Windows Systems

The ‘Standard Backup Guidelines’ are set out below will generally provide acceptable performance and incident-free service in most environments. You should not exceed these maximums without a review of the circumstances and expectations. If you experience problems in your environment, conforming to these guidelines is likely to be required.

Linux Systems

500 GB recommended maximum policy size.

1 TB recommended maximum data protected.

1,000,000 (1 million) maximum number of files per policy.

The guidelines above will generally provide acceptable performance and incident-free service in most environments, assuming capable hardware and fewer than 1 million files on the system. However, various factors can impact the actual backup performance, including the following:

• Disk throughput:
• Number of files on the computer:
• Number of files open during the file system scan: and
• Size of the files open during the file system scan.

These and other factors, and your own tolerance for backup times should determine how much data you protect on a single server with the Cloud Services (Server Cloud Backup).

2.Data Recoverability

Restore Performance

Free Internet-based restores are provided upon your request. The completion time of the restore/recovery will depend on your Internet connection speed, data change rates, and the total amount of data requested. Should Vodafone, as part of its monitoring function, observe any unusual, abnormal, or excessive number of restore requests, Vodafone reserves the right to require you and your users to modify procedures and behaviour in this area.

Restore times over the Internet are limited by your connection bandwidth speed and quality. Data transfer speeds are dependent upon the bandwidth latency between your site and the HP data center(s). Below is a table showing the expected data transfer times based on different network latency figures. As an example if the bandwidth latency time is 50ms, then the maximum possible GB/hr rate “on the wire” is 4.3 GB/hr. Assuming a 2:1 compression, the maximum observed rate would be 8.6GB/hr.

The impact of bandwidth latency with 64K TCP/IP window which assumes you have enough available bandwidth to support the speeds is shown in the table below.

Physical Media Restores Device

Restores via a physical media device utilizing disks is supported by the Cloud Services (Server Cloud Backup). Restores via a media device shall be provided upon your request for an additional fee.

Shipment of a media restore device is dependent on (a) the time the restore request is received and (b) the amount of data being restored.

Delivery is dependent on the shipping method chosen and subject to local courier pickup times.

3.Deploying the Cloud Services (Server Cloud Backup)

When used in accordance with the following usage requirements and guidelines, Cloud Services (Server Cloud Backup) provide on-line backup protection for servers that meet the system requirements (section 4). Cloud Services (Server Cloud Backup) are able to protect applications, open files, open databases, and registry and security information on supported Windows and Unix / Linux machines.

To deploy the Cloud Services (Server Cloud Backup), you download the LiveVault Agent on to each Protected Server you have registered; the LiveVault Agents can be downloaded (as many as you need, free of charge) from the online Web management portal. LiveVault Agents become billable once installed and connected to the platform. On the 16th of each month the volume of protected data is sampled from each Protected Server. The billable amount is then computed based on the rate for the selected Retention Plan and the volume of protected data.

Once configured and deployed, the LiveVault Agent replicates the selected data in its entirety (“Initial Backup”) to a TurboRestore Appliance (TRA) at your site, if applicable, and to the offsite data storage backup vaults (“LiveVault Server”). After the Initial Backup, only changes to files and databases selected for backup on the Protected Server (the “Changes”) are sent to the local appliance(s) and / or LiveVault Server.

You manage LiveVault through a web management interface that is personalized with your custom content. A dynamic management page shows you the current status of all of your backup and restore jobs, and enables you to make immediate modifications or requests. You may view an inventory of all data files, current and historic, and initiate restores from the web management interface.

4.System Requirements

Each Protected Server must meet the system requirements in order to effectively utilize the Cloud Services (Server Cloud Backup). These requirements may change from time to time.

In addition, there are other restrictions referenced online at https://livevaultservice.livevault.com/ that you should be aware of relating to the use of certain other software products (such as open file managers and anti-virus software) on Protected Servers.

5.Bandwidth Requirements

The Cloud Services (Server Cloud Backup) are able to measure the rate at which data on a Protected Server is changing. After a few hours of routine operation, during normal business hours, you will be able to determine the completion time for the Initial Backup and an estimate of bandwidth required for continuous operation of the Cloud Services (Server Cloud Backup). Bandwidth requirements are based on a combination of rated bandwidth, latency and bandwidth error rates.

LiveVault Changes are sent to the LiveVault Server when there is a Valid Connection between the Protected Server, backup appliance (TRA) and the LiveVault Server. “Valid Connection” means that the bandwidth actually available between the end user’s Protected Server(s) and the LiveVault Server is adequate for the amount of data being protected and the rate of the data changes as discussed below. The bandwidth actually available can be affected by other network traffic into or out of the end user’s premises and may be affected by occasional or intermittent slowdowns or interruptions in the network path(s) to the LiveVault Server. The Cloud Services (Server Cloud Backup) will continue operation during brief periods when limited bandwidth is available and will automatically resume operation following network interruptions.

Vodafone estimates that a typical file system will see a daily change rate of 5%. At this change rate, the expected bandwidth requirement is 20 Kbps per protected gigabyte (“GB”). The following table provides an estimate of the upstream bandwidth required to protect various amounts of data:

Highly dynamic servers such as mail servers and active database servers may have additional bandwidth requirements. Higher rates of change will result in a linear increase in bandwidth required.

Increased amounts of protected data, increased rates of data change, other demands for bandwidth, or other factors that contribute to latency may, at a given time, limit the effectiveness of the Cloud Services (Server Cloud Backup).

6.Initial Protection Time Requirements

The Initial Backup process for each Protected Server must complete before a Protected Server is fully protected by the Cloud Services (Server Cloud Backup). This process may take several days.

7.SERVICE LEVELS

The following service levels apply to the Cloud Services (Server Cloud Backup):

Appendix 1: Cloud Services Acceptable Use Policy

Vodafone expects that You (the customer) will use the Cloud Services (“Services”) in accordance with this Acceptable Use Policy (“AUP” or “Policy”). Any illegal, unauthorised, or improper use of the Services could be harmful to Vodafone, its suppliers, its licensors, other customers, the technological integrity of Vodafone infrastructure, or Services, or may otherwise damage Vodafone’s reputation.

Consequently, this Policy describes prohibited uses of the Services, including (but not limited to) the Cloud Services Portal. Vodafone may modify this Policy at any time on 14 days’ notice by emailing You.

By using the Services (including accessing the Cloud Services Portal), You agree to comply with this Policy. If You breach a material term of this Policy or authorise or help others to do so, and such breach remains un-remedied after reasonable written notice from Vodafone (no less than 14 days), Vodafone may suspend some or all affected Services or terminate Your use of the Services in accordance with the Standard Terms and/or the Service Description.

If a breach of a material term of this Policy involves any illegal activity conducted by You, then Vodafone reserves the right to suspend the Services without providing notice.

This Policy forms part of the terms of the agreement for providing and use of the Services. You are solely responsible for violations of this Policy by You, including your employees or contractors.

Obligation to Report

In delivering the Services, Vodafone provides the physical or virtual servers, related storage and other resources, and support services according to the terms of the Service Description.

In the course of delivering the Services, Vodafone does not monitor, and may not be aware of, Your use of the Services, including Your loading and managing of Your application software, data or content. Except as needed to deliver the Services, as authorised by You, or as required by law, Vodafone will not have access to Your application software, data or content.

Therefore, if You become aware of any violation of this Policy, You agree to notify Vodafone as soon as reasonably practicable and cooperate in any efforts to stop or remedy the violation. To report any such violation or suspicion of such violation, You should contact the Vodafone Select Help Desk on 0508 400 300.

Vodafone may investigate any violation of this Policy or misuse of the Services or the Cloud Services Portal, although Vodafone is not obligated to do so. Vodafone may deem it necessary to report any activity that it suspects violates any law or regulation to appropriate law enforcement officials or regulators, without necessarily advising You.

Subject to Vodafone’s obligations of confidentiality (a) such reporting in the preceding paragraph may include disclosing appropriate information, and network and systems information related to alleged violations of this AUP, the Standard Terms or the Service Description, and (b) Vodafone may cooperate with appropriate public agencies or other appropriate third parties to assist with the investigation and prosecution of illegal conduct related to alleged violations of this Policy.

Accurate Information Required

You agree to use reasonable endeavours to provide accurate and complete information when You purchase or use the Services, and You agree to use reasonable endeavours to keep such information accurate and complete during the entire time that You use the Services.

No Illegal, Harmful, or Offensive Usage or Content

By using the Services, You represent that You will use the Services only in accordance with the Standard Terms, the Service Description, this Policy and with all applicable laws in all relevant jurisdictions.

You may not use, or encourage, promote, facilitate, or instruct others to use the Services for any use that is reasonably considered to be illegal, harmful, or offensive, or to knowingly transmit, store, or otherwise make available any content that is reasonably considered to be illegal, harmful, or offensive and in breach of this Agreement. These prohibited activities and content involve:

• Illegal activities, including disseminating, promoting, or facilitating pornography or any activity that is likely to be in breach of, or does breach, any applicable laws, codes, or regulations including data protection.
• Any offensive content that is defamatory, obscene, deceptive, abusive, an invasion of privacy, objectionable, or otherwise inappropriate.
• Any content that infringes or misappropriates the intellectual property or proprietary rights of others or assists others in infringing such rights.
• Any activity that is reasonably likely to be harmful to the Services or to Vodafone’s or its suppliers’ reputation, including engaging in any fraudulent or deceptive practices.

No Security Violations

You may not use the Services to violate, or attempt to violate, the security or integrity of any network, computer, or communications system, software application, or network or computing device (“System”). These prohibited activities include You taking, or attempting to take, any of the following actions:

• Accessing or using any such System without permission.
• Probing, scanning, or testing the vulnerability of such System, or breaching any security measures without express authorisation of the owner of the System.
• Monitoring data or traffic on any System without such permission.
• Falsifying the origin of any TCP-IP packet headers, email headers, or any part of a message.
• Gaining unauthorised access to the Services or any other accounts, computer systems, or networks, whether through hacking, password mining, reverse engineering, or any other means.

No Interference or Disruption of Services or Others’ Networks, Systems, or Internet Connections

You may not make network connections to any users, hosts, or networks unless You have permission to communicate with them. You may not take any action, or attempt any action, that interferes with or disrupts the proper functioning of a network or system. These prohibited activities involve You taking, or attempting to take, any of the following actions (unless obligated by law or permitted otherwise under the Agreement):

• Engaging in any activity that interferes with or adversely affects other Vodafone customers’ use of the Services.
• Collecting information by deceit, under false pretences, or by impersonating any person or entity or otherwise misrepresenting Your affiliation with a person or entity.
• Using any content or technology that may damage, interfere with, intercept, or take unauthorised control of any system, program, or data, including, but not limited to, viruses, worms, or time bombs.
• Using the Services in any manner that appears to Vodafone to threaten the Service Infrastructure. This includes You providing inadequate security, allowing unauthorised third party access, or attempting to circumvent Vodafone’s measures for controlling, monitoring, or billing usage.
• Using viruses, worms, corrupt files, Trojan horses, or other forms of corruptive code, or any other content which may compromise the Services, Network or Computing Infrastructure operations, or its performance for other Vodafone customers.
• Interfering with the proper functioning of any System, including any deliberate attempt to overload a System by any means.
• Monitoring or crawling a System so that such System is impaired or disrupted.
• Conducting or condoning denial of service attacks.
• Avoiding any use limitations placed on a System, such as access and storage limitations.

Appendix 2: LiveVault End User License Agreement

END USER LICENSE TERMS

Version:15 June 2011

PLEASE READ THIS END-USER LICENSE AGREEMENT (“AGREEMENT”) CAREFULLY BEFORE INSTALLING, DOWNLOADING, COPYING OR OTHERWISE USING THE PRODUCTS.

TO COMPLETE YOUR ORDER FOR THE PRODUCTS PROVIDED PURSUANT TO THIS AGREEMENT, YOU MUST ACCEPT THE TERMS AND CONDITIONS OF THIS AGREEMENT BY ELECTRONICALLY CHECKING THE BOX MARKED "I ACCEPT." BY CLICKING “I ACCEPT” YOU ARE AGREEING TO ALL OF THE TERMS AND CONDITIONS OF THIS AGREEMENT, INCLUDING THE LIMITATIONS ON LIABILTY SET FORTH HEREIN.IT IS STRONGLY RECOMMENDED THAT YOU PRINT AND RETAIN A COPY OF THIS AGREEMENT FOR YOUR RECORD.

IF YOU ARE ENTERING INTO THIS AGREEMENT ON BEHALF OF A LEGAL ENTITY, THEN BY CHECKING THE BOX "I ACCEPT" YOU ARE CERTIFYING THAT YOU HAVE THE PROPER AUTHORITY TO BIND ALL USERS OF THE ARCHIVING SOLUTION WITHIN YOUR ORGANIZATION TO THE TERMS AND CONDITIONS OF THIS AGREEMENT.IF YOU DO NOT HAVE SUCH AUTHORITY, OR IF YOU DO NOT AGREE WITH ALL OF THE TERMS AND CONDITIONS OF THIS AGREEMENT, YOU ARE NOT PERMITTED TO USE THE PRODUCTS AND YOU MUST IMMEDIATELY UNINSTALL THE SOFTWARE.

IF YOU AND AUTONOMY HAVE EXECUTED A HARDCOPY OF THE DIGITAL MASTER END-USER LICENSE AGREEMENT THAT IS CURRENTLY IN EFFECT THEN IT WILL SUPERSEDE AND REPLACE THIS AGREEMENT.

IF YOU HAVE ANY QUESTIONS ABOUT THIS AGREEMENT, PLEASE CONTACT: AUTONOMY, INC., HAVING PRINCIPAL OFFICES AT ONE MARKET, SPEAR TOWER, 19TH FLOOR, SAN FRANCISCO CALIFORNIA 94105

This Agreement is by and between the company, entity or individual (“You” and/or “Your”) which is acquiring the license to use the Products, as defined below, and Autonomy, Inc. (an HP company) (“Autonomy”).“You” and/or “Your” and “Autonomy” may be individually referred to as “Party” and/or collectively referred to as the “Parties.” This Agreement will become effective on the date on which You click on the box marked “I Accept” described above or download the Software, whichever occurs first.

(a)Definitions

“Documentation” means the applicable installation guides, service descriptions, technical specifications, on-line help files, and user manuals for the Software provided by Autonomy.

“Maintenance Services” means the maintenance service in support of the Software purchased by You commencing on the Shipment Date and terminating as reflected in the Order.

“Products” means the Software and/or Documentation.

Order” means your order for Products made through the Market Place Portal.

“Shipment Date” means the earliest calendar day in which Autonomy (i) initially ships to You the Products via a reputable overnight courier; (ii) allows You to access the Products via a TCP/IP and/or FTP transfer site; or (iii) actually installs the Software and provides the Documentation. Without limiting the warranties set forth herein, the Products will be deemed accepted upon shipment.

“Software” means the software products as reflected in the Order.

“Upgrades” and/or “Updates” means error corrections, minor enchantments, and major enhancements to the Software that You have licensed hereunder as reflected in the Order; however, Upgrades and/or Updates exclude dependent software that works with the Software but provides separate and optional functionality, which Autonomy may offer to You for an additional charge as reflected in the Order.

(b)License Grant

Autonomy hereby grants to You and You hereby accept, a limited, nonexclusive, nontransferable, perpetual license for the Products in order to use the Services, as reflected in the Order, to (i) install the Software on Your computer systems equal to the number and type described in the Order; (ii) use the Software in executable form only for Your internal business needs; (iii) use the Documentation to support the use of the Software; and/or (iv) make a commercially reasonable number of copies of the Software in executable form only, for non-production backup purposes.

(c)License Restrictions

You specifically agree to limit the use of the Products and/or Maintenance Services to those specifically granted in this Agreement. Notwithstanding the foregoing, You specifically agree not to (i) attempt to reverse engineer, decompile, disassemble, or attempt to derive the source code of the Software or any portion thereof; (ii) modify, port, translate, localize and/or create derivative works of the Products;(iii) remove any of Autonomy’s, or its vendors, copyright notices and proprietary legends; (iv) use the Products (a) to infringe on the intellectual property rights of any third party or any rights of publicity or privacy; (b) to violate any law, statute, ordinance or regulation (including, but not limited to, the laws and regulations governing export/import control, unfair competition, anti-discrimination and/or false advertising); (c) to propagate any virus, worms, Trojan horses or other programming routine intended to damage any system or data; (d) in any application that may involve risks of death, personal injury, severe property damage/environmental damage, and/or in any life support applications, devices or systems; and/or (v) file copyright or patent applications that include the Products or any portion thereof. You are solely responsible for maintaining the security of the environment in which the Software is used, the security and integrity of Software files and specifications, and the administrative passwords for the Software.

(d)Termination and/or Suspension of License

Autonomy may terminate and/or suspend Your Products license without liability, with or without notice, based on Autonomy’s reasonable belief that: (i) You are using the Products in violation of any applicable federal, state, or local law, ordinance or regulation; (ii) the Products are being used in breach of the section entitled “License Restrictions” or otherwise in a potential harmful or unlawful manner; (iii) the use of the Products adversely affects Autonomy’s equipment, security network infrastructure, or its service to others; or (iv) a court or other governmental authority having jurisdiction issues an order prohibiting Autonomy from furnishing the Products to You. In the event that the Products are suspended, Autonomy will use commercially reasonable efforts to inform You and will work with You to resolve such issues and re-instate the Products.

(e)Maintenance Services

Autonomy will provide Maintenance Services for the Software. You acknowledge that this Agreement includes a warranty for the Software for a period of ninety (90) calendar days from the Shipment Date. The initial Maintenance Services period commences upon the Shipment Date of the Software; therefore, the Warranty Period (as defined herein) overlaps the initial Maintenance Services period. You will receive at no additional charge all Upgrades and/or Updates that are not designated by Autonomy as new products and/or modules for which a separate fee may be charged.

(f)Error Correction

Autonomy will use commercially reasonable efforts to correct verifiable and reproducible errors when properly reported to Autonomy. The error correction(s), when completed, may be provided in the form of a "Temporary Fix," which will consist of sufficient programming and operating instructions to implement such error correction(s).

(g)Previous Versions

It is Your responsibility to obtain and install all Upgrades and/or Updates; Autonomy will take commercially reasonable efforts in accordance with reasonable industry standards to notify You of all Upgrades and/or Updates. Autonomy reserves the right to withhold support for versions of the Software, which have not had the latest Upgrades and/or Updates installed. If You elect not to install the latest Upgrades and/or Updates, then Autonomy will only provide Maintenance Services for the previous versions of the Software for one (1) year commencing immediately upon the commercial availability of such subsequent Upgrades and/or Updates.

(h)Software Warranty

Autonomy warrants for a period of ninety (90) calendar days from the initial Shipment Date of the Software, (“Warranty Period”) for Your benefit alone, that the Software will perform substantially and materially in accordance with such Software’s technical specifications included or referred to in the applicable Documentation (“Software Warranty”).Autonomy does not warrant that the Software will be error-free in all circumstances. You will provide prompt written notice of any non-conformity. Your exclusive remedy, and Autonomy’s exclusive obligation with respect to a material breach of this Software Warranty, will be for Autonomy to use commercially reasonable efforts to repair or replace such Software so as to make such Software substantially conforming to the applicable Documentation. Autonomy will have no obligation with respect to any failure of the Software to perform as warranted under this section if such failure results from: (a) improper use, operation, or neglect of the Software; (b) unauthorized changes, repairs, or modifications to the Software; (c) the merger of the Software (in whole or part) with any other software or equipment by You not previously approved by Autonomy; and/or (d) any material breach by You of Your obligations under this Agreement.

(i)Warranty Exclusions and Exclusive Remedy

EXCEPT FOR THE WARRANTIES SET FORTH IN THE SECTION ENTITLED “SOFTWARE WARRANTY,” AUTONOMY MAKES NO OTHER WARRANTIES, EXPRESS OR IMPLIED.AUTONOMY DISCLAIMS ANY AND ALL WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE. THE PROVISIONS SET FORTH in THE SECTION ENTITLED “SOFTWARE WARRANTY” STATES AUTONOMY’S ENTIRE RESPONSIBILITY AND YOUR exclusive remedy WITH RESPECT TO ANY AND ALL breach of warrantY.

(j)Exclusion of Consequential Damages

IN NO EVENT WILL EITHER PARTY BE LIABLE TO THE OTHER OR ANY THIRD PARTY FOR ANY CONSEQUENTIAL, INDIRECT, SPECIAL, PUNITIVE, AND/OR INCIDENTAL DAMAGES, WHATSOEVER, INCLUDING BUT NOT LIMITED TO LOST PROFITS OR LOSS OF DATA, EVEN IF SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH POTENTIAL LOSS OR DAMAGE.THE FOREGOING WILL NOT APPLY TO YOUR BREACH OF THE “LICENSE GRANT” AND/OR “LICENSE RESTRICTIONS” SET FORTH HEREIN.

(k)Limitation of Liability

AUTONOMY WILL NOT BE LIABLE FOR ANY LOSS OR DAMAGE UNLESS SUCH LOSS OR DAMAGE IS DUE TO AUTONOMY’S NEGLIGENCE.IF AUTONOMY IS FOUND LIABLE, THE AMOUNT OF AUTONOMY’S MAXIMUM LIABILITY FOR ANY AND ALL LOSS AND/OR DAMAGE (IN CONTRACT, TORT, OR OTHERWISE) WILL NOT EXCEED, IN THE AGGREGATE, THE TOTAL AMOUNT OF THE FEE PAID TO AUTONOMY WITHIN THE PRIOR SIX (6) MONTHS FROM WHICH SUCH CLAIM ARISES.IF THE DATA TRANSMITTED IS INSURED BY YOU, YOU WILL CAUSE YOUR INSURERS OF SUCH DATA TO WAIVE ANY RIGHT OF SUBROGATION AGAINST AUTONOMY.

(l)Essential Purpose

THE LIMITATION OF LIABILITY AND EXCLUSION OF CERTAIN DAMAGES STATED HEREIN WILL APPLY REGARDLESS OF THE FAILURE OF ESSENTIAL PURPOSE OF ANY REMEDY. BOTH PARTIES HEREUNDER SPECIFICALLY ACKNOWLEDGE THAT THESE LIMITATIONS OF LIABILITY ARE REFLECTED IN THE PRICING.

(m)Your Environment

Autonomy will bear no liability to You or any third party resulting from Your decision not to implement any reasonable change to Your technical environment that supports the Products and/or Maintenance Services that may be advised by Autonomy in writing; and You will hold Autonomy harmless from and against any suit or proceeding (including reasonable attorneys' fees) brought against Autonomy arising directly from such a failure to provide the necessary access and/or support for Autonomy to implement any such change. Further, You agree to inform Autonomy of any system change to You that may reasonably be expected to affect Autonomy’s ability to provide the Products and/or Maintenance Services.

(n)Indemnification

If a third party claims that the original, unaltered, unmodified Software infringes any United States patent, copyright or trade secret, Autonomy will (as long as You are not in material default under this Agreement) indemnify, defend and hold You harmless against such claim at Autonomy’s expense and pay all damages that a court of competent jurisdiction finally awards, provided that You (i) promptly notify Autonomy in writing of the claim; (ii) allow Autonomy to control the defense or any related settlement negotiations; and (iii) cooperate with Autonomy in the defense of any such claim(s); provided that Autonomy will not affect any settlement unless such settlement provides You with a full release. If such a claim is made or appears possible, Autonomy may, at its option, (i) secure for You the right to continue to use the Software; (ii) modify or replace the Software so it is non-infringing; or, (iii) require You to return the Software for a prorata refund or credit (at Autonomy’s sole option).However, Autonomy has no obligation for any claim based on a modified version of the Software or the combination, operation, or use of the Software with any software, product, data, or apparatus not provided by Autonomy. THIS PARAGRAPH STATES AUTONOMY’S ENTIRE OBLIGATION TO YOU AND YOUR SOLE AND EXCLUSIVE REMEDY WITH RESPECT TO ANY CLAIMS OF INFRINGEMENT.

(o)Intellectual Property & Protections

Autonomy or its suppliers are the sole and exclusive owner of all right, title, and interest in and to the Software (excluding any open source third party software), Maintenance Services, Documentation and all copies thereof including all Upgrades and/or Updates, derivations, modifications and enhancements thereto (including, but not limited to, ownership of all intellectual property rights).This Agreement does not provide You with title or ownership of the Software, Maintenance Services, and/or Documentation, but only a right of limited use. Modification of the source code will void Your Software Warranty and Autonomy will have no further Maintenance Services responsibility. You recognize and acknowledge the exclusive right of Autonomy and/or its suppliers in and to all patents, trademarks, service marks, trade names, copyrights, and other intellectual property and proprietary rights in and to the Products, including all Upgrades and/or Updates (“Intellectual Property”), and that such Intellectual Property is the sole and exclusive property of Autonomy and/or its suppliers. You waive Your right to contest the validity and/or ownership of such Intellectual Property.

(p)Termination for Material Breach

This Agreement may be terminated by either Party upon thirty (30) calendar days written notice for a material breach by the other Party, unless such other Party cures the breach within the thirty (30) calendar day notification period.You agree upon any termination to destroy the Software, together with all copies in any form. Termination of this Agreement does not relieve You of any liability arising prior to termination.

(q)Termination for Changes to Applicable Law

This Agreement may be terminated by either Party if the continued relationship, the provision of the Software, Documentation, and/or Maintenance Services, and/or the transactions hereunder, would violate any applicable law (whether such law is existing at the time of this Agreement or thereafter modified or enacted) and result in material costs or liabilities to the terminating Party that were not anticipated as part of the Agreement.

(r)Confidentiality

"Confidential Information" means any proprietary, confidential and/or trade secret information of the Party disclosing such information relating to, among other things, the Software, Equipment, technology, specifications, manufacturing methods, know-how, business or marketing plans, business relationships, and the terms of this Agreement. Confidential Information will not include information that: (i) was in the public domain when disclosed; (ii) becomes public domain after disclosure, other than as a result of the violation of this Agreement; (iii) was in the receiving Party’s possession when disclosed and was not acquired directly or indirectly from the disclosing Party; (iv) is shown by written evidence to have been developed by the receiving Party independently after disclosure without benefit of the Confidential Information; or (v) was received after disclosure from a third-party who did not require it to be held in confidence and who did not acquire it directly or indirectly from the disclosing Party. Confidential Information will be used only in the manner contemplated by this Agreement and will not be intentionally disclosed to third-parties without the disclosing Party’s written consent. The receiving Party will use at least the same degree of care to safeguard Confidential Information that it uses to protect its own confidential and proprietary information, but in no event less than reasonable care under the circumstances.

(s)General

i.Notices

All notices under this Agreement will be in English and will be in writing and delivered by overnight courier or hand, postage prepaid certified or registered first-class mail with return receipt requested, or facsimile. Notices will be deemed given upon personal delivery, five (5) calendar days after deposit in the mail, or upon acknowledgment or receipt of electronic transmission. Notice to Autonomy will be sent to Autonomy at One Market, Spear Tower, 19th Floor, San Francisco, California 94105, United States, Attention: General Counsel. Notices to You will be sent to the address set forth in the Order or to such other address as You may specify in writing in accordance with this section.

ii.Force Majeure

Neither Party will be liable for any failure or delay in performing services or any other obligation under this Agreement, nor for any damages suffered by the other Party by reason of such failure or delay, which is, indirectly or directly, caused by an event beyond such Party’s foreseeable control including but not limited to strikes, riots, natural catastrophes, terrorist acts, governmental intervention, or other acts of God, or any other causes beyond such Party’s reasonable control.

iii.Relationship with Third Parties

This Agreement governs the relationship between Autonomy and You. No other person or entity will be a party to this Agreement nor will they be considered a third-party beneficiary of this Agreement.

iv.Severability & Survival

The illegality or unenforceability of any provision of this Agreement will not affect the validity and enforceability of any legal and enforceable provisions hereof. Should any provision of this Agreement be deemed unenforceable by a court of competent jurisdiction then such clause will be re-construed to provide the maximum protection afford by law in accordance with the intent of the applicable provision. The following sections will survive any termination or expiration of this Agreement: “License Grant”, “License Restrictions”, “Fee”, “Taxes”, “Exclusion of Consequential Damages”, “Limitation of Liability”, “Essential Purpose”, “Your Environment”, “Indemnification”, “Intellectual Property & Protections”, “Confidentiality”, “Subpoena”, “Audit”, and “General”.

v.Assignment

You may not assign this Agreement without the prior written consent of Autonomy, which will not be unreasonably withheld or delayed.

vi.Applicable Law

This Agreement and all resulting claims and/or counterclaims will be governed, construed, enforced, and performed in accordance with the laws of the Commonwealth of Massachusetts, USA, without reference and/or regard to its conflicts of laws principles and the U.N. Convention on Contracts for the International Sale of Goods. Each Party hereby submits to the exclusive jurisdiction of the courts of Massachusetts and hereby waives any objections to venue with respect to actions brought in such courts.

vii.Export Restrictions

You agree and certify that software, products, services, and/or all related technical information and materials that You receive from Autonomy will not be exported or re-exported outside of the United States (“U.S.”) except as authorized and permitted by the laws and regulations of the U.S., and export or re-export contrary to U.S. laws is prohibited. You agree to comply, at Your own expense, with any and all foreign governmental requirements relating to Your exports from the U.S., importation and use outside of the U.S., and/or re-exports from abroad of such products, services, and/or all technical information and materials. You will indemnify, defend, and hold harmless Autonomy from and against any claim, loss, liability, or damage suffered by Autonomy related to Your breach of this provision. You also agrees that Autonomy may withhold provision of software, products, services, and/or technical information and materials under this Agreement if Autonomy believes, in good faith, that You have breached this provision.

viii.Government End-User Notice

The Software is a “Commercial Item,” as that term is defined at 48 C.F.R. § 2.101, consisting of “Commercial Computer Software” and “Commercial Computer Software Documentation,” as such terms are used in 48 C.F.R. § 12.212 and 48 C.F.R. § 227.7202, as applicable. Consistent with 48 C.F.R. §§ 12.212, 48 C.F.R. 227.7202-1 through 227,7202-4, the Commercial Computer Software and Commercial Computer Software Documentation are being licensed to United States Government end-users (a) only as Commercial Items and (b) with only those rights as are granted to all other end-users pursuant to the terms and conditions herein.

ix.ITAR

You understand that Autonomy employees may have access to native data to perform the Services herein and represent that none of this data requires protection from access by foreign person(s) because it contains technical information regarding defense articles or defense services within the meaning of the International Traffic in Arms Regulations (22 CFR 120) or technical data within the meaning of the Export Administration Regulations (15 CFR 730-774). If any of this data does contain any such information, You will notify Autonomy of the specific data that contains such information and acknowledge that special storage and service rates will apply thereto.

x.Waiver

Each Party agrees that the failure of the other Party at any time to require performance by such Party of any of the provisions herein will not operate as a waiver of the rights of such Party to request strict performance of the same or like provisions, or any other provisions hereof, at a later time.

xi.Entire Agreement & Integration

This Agreement and any and all Orders represent the entire agreement between the Parties on the subject matter hereof and supersede all prior discussions, agreements and understandings of every kind and nature between the Parties.No modification of this Agreement will be effective unless in writing and signed by authorized representatives of both Parties.Except as otherwise set forth herein, any and all additional and conflicting terms and conditions presented with or in any communication, including, but not limited to, Your P.O., except with respect to price, quantity, and location specified in a P.O., are hereby rejected, and will be deemed null and void.

xii.Headings and Conflict

All headings used herein are for convenience of reference only and will not in any way affect the interpretation hereof. If there is any conflict between this Agreement and any Order, the order of precedence will be that this Agreement will supersede, then the Order.