Technician License Agreement for ShadowProtect®IT Edition™ and ShadowProtect IT Edition Professional

ShadowProtect IT Edition and ShadowProtect IT Edition Professional can create, edit, or restore computer backup images of servers and desktops without the need to install the Software itself. The Software is intended to provide IT professionals with a bootable recovery environment to create and restore compressed and encrypted backup images. The Software includes an interface for network configuration and a simple interface to restore individual files or folders or update backup images. Backup images can be saved to a variety of destinations. The Software also provides complete and efficient bare metal recovery.

Please carefully read the terms and conditions of this license agreement (the “Agreement”) for the Software before accepting the license or using the Software. StorageCraft® Technology Corporation (“StorageCraft”), is willing to license the Software to you as the individual, company, or legal entity that will be using the Software (“you” or “Licensee”), but only on the condition that you accept all terms of this Agreement. This Agreement is a legal and enforceable contract between you and StorageCraft. By opening the Software packaging, breaking the seal, clicking the “I Agree” or “I Accept” button, or otherwise indicating assent by loading, using, or retaining the Software, you accept this Agreement and agree to all the terms and conditions it contains. If you do not agree to the terms and conditions, do not open the Software packaging, break the seal, use the software, or click the “I Agree” button. You may contact the StorageCraft customer service department for information on obtaining a refund of the license fee paid and instructions on returning the Software and Documentation. If you load, retain, or otherwise use the Software under any trial, evaluation or purchase transaction, your conduct constitutes acceptance of this Agreement and you will be bound by all of its terms and conditions. Please print a copy of this Agreement and retain it for later reference. You may also access this Agreement on StorageCraft’s website at www.storagecraft.com/legal/.

This Agreement is made and entered into by and between StorageCraft and Licensee, which is the Party that has paid the Subscription Fee and accepted this Agreement. StorageCraft and Licensee are sometimes collectively referred to as “the Parties” and individually referred to as a “Party.”

Section 1 Definitions. Capitalized terms will have the meaning given in this Section 1.

1.1. “Designated Technician” means the natural person designated by Licensee to use the Software and to maintain exclusive custody of the Software. If the Licensee is an entity and not an individual, the Designated Technician must be an employee of the Licensee. If the Licensee is an individual, then the Licensee must be the Designated Technician.

1.2. “Documentation” means all on-line help files or written instruction manuals and user guides addressing the use of the Software.

1.3. “Effective Date” means the date on which Licensee has paid the applicable Subscription Fee and either activated the Software or downloaded the Three-Day ISO.

1.4. “Intellectual Property Rights” means all of StorageCraft’s ownership rights associated with intellectual property and the Software, including but not limited to patents, copyrights, trademarks, trade secrets, know-how, and any and all rights to exclude existing from time to time in a specified jurisdiction under patent law, copyright law, moral rights law, trade-secret law, trademark law, unfair competition law, or other similar rights.

1.5. “License Activation File” means a file on the USB flash media that contains the Original Copy, which file holds the licensing information for the Software, including the Product Key and license expiration information.

1.6. “Maintenance” means a time-limited right during the Subscription Period to (i) all Updates and Upgrades to the Software, subject to the terms and conditions imposed by this Agreement, and (ii) Product Support. Maintenance is provided on a per-Product Key or per-seat basis. Updates, Upgrades, and additional features of the Software will be released, added, or created at StorageCraft’s sole and complete discretion, and StorageCraft makes no warranty, promise, or commitment to make any such offering.

1.7. “Object Code” means the output of a compiler after it processes the Software source code in the form of an executable, dll, or library file.

1.8. “Original Copy” means the single copy of the Software provided to Licensee on USB flash media in conjunction with this Agreement.

1.9. “Product Key” means a unique identifier associated with each license of Software that is required to activate each license.

1.10. “Product Support” means Standard Support for the Software. “Standard Support” includes telephone support for Emergency Level Support Issues during StorageCraft’s regular business hours; StorageCraft’s on-line support system; the StorageCraft-moderated user forum; and the StorageCraft knowledge base, which is a question and answer resource that includes frequently asked questions.

1.11. “Renewal Subscription” means one or more extension terms to the Subscription Period granted by StorageCraft to Licensee based on Licensee’s payment of the applicable renewal Subscription Fee during the term of a prior Subscription Period. A Renewal Subscription commences immediately upon the expiration of the prior Subscription Period and provides Licensee with all the rights and benefits of the initial Subscription, but for the term of the Renewal Subscription.

1.12. “ShadowProtect Granular Recovery for Exchange (“GRE”)” means a StorageCraft product that works with licensed Microsoft® Exchange Server Exchange database (“EDB”) files to permit, among other things, the recovery of mailbox items and searching of email messages and attachments. ShadowProtect GRE requires Microsoft Exchange Server files, which must be copied from a licensed and installed Exchange Server folder to the IT Edition Professional GRE folder. This Agreement does not grant a license to Microsoft Exchange Server. By using ShadowProtect GRE, Licensee affirms that the use of Microsoft Exchange Server is lawfully licensed.

1.13. “ShadowProtect IT Edition” means the version of ShadowProtect IT Edition that is in current release on the Effective Date and subsequent versions of ShadowProtect IT Edition, which product is sold and distributed on a subscription basis and delivered to Licensees on USB flash media. ShadowProtect IT Edition does not include separately licensed products or add-on modules. ShadowProtect IT Edition includes the ability to demo ShadowProtect GRE in a trial mode, but does not allow the Licensee to use the restore or search capabilities of the licensed version of ShadowProtect GRE.

1.14. “ShadowProtect IT Edition Professional” means the version of ShadowProtect IT Edition Professional that is in current release on the Effective Date and subsequent versions of ShadowProtect IT Edition Professional, which product is sold and distributed on a subscription basis and delivered to Licensees on USB flash media. ShadowProtect IT Edition Professional includes a licensed copy of ShadowProtect GRE. With the exception of ShadowProtect GRE, ShadowProtect IT Edition Professional does not include separately licensed products or add-on modules.

1.15. “Software” means the copyrighted product licensed under this Agreement to Licensee consisting of ShadowProtect IT Edition, ShadowProtect IT Edition Professional and ShadowProtect GRE, depending upon the Subscription Fee paid.

1.16. “StorageCraft Recovery Environment Builder” means a utility that creates an instance of the StorageCraft Recovery Environment based on Windows® PE.

1.17. “StorageCraft Recovery Environment” means the bootable CD component of the Software or an ISO file that permits Licensee to create the bootable CD component of the Software (and all functionality included therein) which provides a bootable operating system environment that runs a version of the Software. StorageCraft provides two versions of the StorageCraft Recovery Environment. One version is for use exclusively on Windows platforms and the other may be used on both Windows and Linux platforms. This Agreement does not grant Licensee a license to an operating system and/or application capable of being restored with the StorageCraft Recovery Environment. By using the StorageCraft Recovery Environment, Licensee affirms that the underlying operating system and or application are properly licensed for use in the restore process.

1.18. “Subscription Fee” means the price paid by Licensee to StorageCraft or its reseller, distributor, or authorized representative in exchange for a license to use the Software during the Subscription Period.

1.19. “Subscription Period” means the term of the license granted by StorageCraft to Licensee during which Licensee’s Designated Technician may use the Software. A Subscription Period commences on the Effective Date. The duration of the Subscription Period may be for two weeks, one month, three months, or annual. A “One Month Subscription” means a license granted by StorageCraft to Licensee with a Subscription Period of thirty (30) calendar days, which period begins on the date the Software is activated. A “Three Month Subscription” means a license granted by StorageCraft to Licensee with a Subscription Period of ninety (90) calendar days, which period begins on the date the Software is activated. An “Annual Subscription” means a license granted by StorageCraft to Licensee with a Subscription Period of three-hundred sixty-five (365) calendar days, which period begins on the date the Software is activated. A “Two Week Subscription” means a license granted by StorageCraft to Licensee with a Subscription Period of fourteen (14) calendar days, which period begins on the date the Software is activated.

1.20. “Support Issue” means a technical question or issue associated with the Software, which StorageCraft ranks or categorizes according to Severity Level as a Low Level, Medium Level, High Level or Emergency Level Support Issue. “Emergency Level” severity means a Support Issue that arises notwithstanding proper installation and use of the Software and in which one or more of the following mission critical production issues is occurring: (i) a mission critical production server is not functioning and cannot be restored with the Software, or (ii) a mission critical production server is disabled when used with the Software. “High Level” severity means a Support Issue has occurred notwithstanding proper installation and use of the Software, but Licensee’s operations can continue in a restricted fashion, although long-term productivity may be adversely affected. “Medium Level” severity means a Support Issue has occurred notwithstanding proper installation and use of the Software, but a problem has occurred with a limited adverse effect on Licensee’s business operations. “Low Level” Support Issue includes all issues related to education, enhancement, activation, licensing, information, general questions, best practices or errors with little or no effect on critical production environments.

1.21. “Three-Day ISO” means a downloadable ISO file that permits Licensee to create a temporary, bootable CD version of the Software for use in situations in which (a) the USB flash media version of the Software is not capable of running on the target computer and (b) the use of the StorageCraft license server is not a suitable solution. The Three-Day ISO version of the software expires and ceases to function seventy-two (72) hours after it is downloaded from StorageCraft’s website. The Three-Day ISO is intended and licensed for use only in exceptional and extraordinary circumstances. StorageCraft, in its sole discretion, may impose additional conditions on the use or download of the Three-Day ISO. Moreover, if StorageCraft, in its sole discretion, determines that Licensee has abused any right to the Three-Day ISO or otherwise violated the terms of this Agreement, StorageCraft may suspend or terminate Licensee’s ability to access or download the Three-Day ISO.

1.22. “Update” means the process in which StorageCraft makes available to existing users of the Software patches, issue corrections, and bug fixes. StorageCraft makes no warranty, promise, or commitment to create or release any Updates.

1.23. “Upgrade” means StorageCraft’s release to the public of a version of the Software that replaces the prior version of the Software on StorageCraft’s price list pursuant to StorageCraft’s then-current Upgrade policies. StorageCraft makes no warranty, promise, or commitment to create or release any Upgrades.

1.24. “Use” means the loading, execution, running, utilization, storage, display, or copying of the Software in its Object Code form by Licensee’s Designated Technician, which is permitted only in accordance with the terms of this Agreement.

Section 2 Proprietary Rights. This is a license and not a sale. The Software and Documentation are proprietary products of StorageCraft or of its licensors and are protected under United States copyright laws and international treaty provisions. Nothing in this License constitutes a waiver of StorageCraft rights under U.S. or international copyright law or any other law. Ownership of the Software and Documentation and all copies, modifications, translations, and merged portions thereof shall at all times remain with StorageCraft, including all copyrights, patent rights, trade secret rights, trademarks, know-how, and other intellectual property rights therein. Licensee’s rights to use the Software are specified and limited solely to those rights expressly identified in this Agreement. StorageCraft retains all rights not expressly granted to Licensee in this Agreement. This Agreement governs any Updates, Upgrades, releases, revisions, or enhancements to the Software that the StorageCraft may furnish to the Licensee. This Agreement does not include a grant to Licensee of any: (a) ownership right, title, interest, security interest, or other interest in the source code or Object Code of the Software or in StorageCraft Intellectual Property Rights; (b) Intellectual Property Rights relating to the Software, any copy of any part of the Software, or the Documentation; (c) right or authority to modify the Software; (d) right to use the Software to develop derivatives or derivative works of the Software; (e) right to reverse engineer, decompile, or recompile the Software or any part of it or otherwise attempt to discover source code or trade secrets related to the Software; (f) right to copy the Software, except as expressly permitted elsewhere in this Agreement; (g) right to copy, sublicense, sell, lend, rent, lease, give, transfer, assign, or otherwise dispose of all or any portion of the Software or any interest in the Software without StorageCraft’s prior written consent (any such disposition made without such consent shall be null and void); and/or (h) right to remove, obscure or alter any notice of patent, copyright, trade secret, trademark, or other proprietary right of StorageCraft.

Section 3 Grant of License. Licensee is granted a revocable, non-exclusive, non-transferable, non-sublicenseable, license-fee bearing, Object Code license during the Subscription Period, subject to timely payment to StorageCraft of all applicable Subscription Fees, which license shall permit Licensee’s Designated Technician to use the Software strictly in accordance with the terms of this Agreement. Licensee understands and agrees that all functionality of the Software will time out and cease to operate at the end of the subscription period. StorageCraft shall have no responsibility to provide service or support for the Software after the subscription period.

Section 4 License Restrictions. The authorized use of the Software by the Designated Technician is solely limited to use of the Original Copy of the Software directly from the USB flash media, and in rare and exceptional circumstances, the use of the Three-Day ISO as permitted by this Agreement. This Agreement does not authorize any installation or copying of the Software. Licensee and the Designated Technician will not, directly or through any parent, subsidiary, affiliate, agent or third party, do any of the following with respect to the Software or Documentation: (a) use the Software or Documentation in violation of the terms of this Agreement; (b) copy the Software or Documentation except as specifically authorized by this Agreement; (c) permit concurrent use of any copy of the Software or part of the Software; (d) sell, lease, rent, license, sublicense, grant a security interest in, or otherwise deal with any portion of the Software or Documentation; (e) provide, lend, disclose, divulge or make available to, or permit use of the Software or Documentation by persons other than the Licensee’s Designated Technician without StorageCraft’s prior written consent; (g) assign or transfer the rights granted to Licensee under this Agreement on a permanent basis unless: (i) Licensee retains no copies of the Software, (ii) prior to such assignment or transfer, the assignee or transferee agrees in writing to the terms and conditions of this Agreement; and (iii) StorageCraft consents to such assignment or transfer; (h) use the Software in any service bureau or time sharing arrangement; (i) download the Three-Day ISO more than once every ten (10) days; (j) automate or script all or any portion of the Software’s functionality; (k) remove or alter any proprietary notices, labels or legends on any copy of the Software or Documentation; (l) ship or transmit (directly or indirectly) any copies of the Software or Documentation to any country or destination prohibited by the United States Government; or (m) reverse engineer, decompile, disassemble, modify, translate, make any attempt to discover the source code of the Software, or create derivative works from, employ or manipulate the Software.

Section 5 Subscription Fee.

5.1. Subscription Fee. In consideration for the rights granted in Section 3 of this Agreement, Licensee agrees to pay the applicable Subscription Fee whether paid directly to StorageCraft or to a StorageCraft authorized reseller or distributor. The Subscription Fee in effect will be available at the StorageCraft website or at websites of StorageCraft’s authorized resellers and distributors.

5.2. Subscription Renewal. The Licensee is entitled to renew its subscription to the Software by payment of the applicable renewal Subscription Fee corresponding to the length of the original Subscription Period. Renewal Subscriptions are of the same duration as the original Subscription Period. Licensee understands that the functionality of the Software will time out and fully cease at the conclusion of the last day of the Subscription Period. Licensee may secure continued use of the Software by timely paying the Renewal Subscription fee.

Section 6 Appointment of Designated Technician.

6.1. Licensee shall designate an individual natural person as its Designated Technician, and Licensee’s rights under this Agreement are subject to and conditioned upon Licensee’s appointment of a Designated Technician. The Designated Technician is the only Licensee agent, employee, or representative authorized to use the Software. The Software is not licensed to be copied (except as provided herein), and is not licensed to be shared among agents, employees, or representatives of Licensee, nor is it licensed to be installed or redistributed.

6.2. The Software is to be used only by the Designated Technician to service a single computer at a time. There is no limit to the number of computers that may be serviced serially using the Software, provided that the Designated Technician does not make simultaneous use of the Software on more than one computer.

6.3. At StorageCraft’s request, Licensee will provide the name and contact information of the Designated Technician to StorageCraft.

6.4. In the event that the Designated Technician becomes permanently unavailable to serve as Licensee’s Designated Technician, Licensee may appoint a replacement Designated Technician within ten (10) days after the occurrence of the unavailability. To qualify as a replacement Designated Technician, the replacement Designated Technician must be an employee of the Licensee.

6.5. In the event a Designated Technician becomes unavailable for a period of fourteen (14) to ninety (90) days, Licensee may appoint a temporary Designated Technician, who shall be authorized to serve under this Agreement until the Designated Technician is again available. To qualify as a temporary Designated Technician, the temporary Designated Technician must be an employee of the Licensee.

6.6. For Two Week, One Month, and Three Month Subscriptions, Licensee may appoint only one (1) temporary Designated Technician or replacement Designated Technician during the Subscription Period. For Annual Subscriptions, Licensee may appoint no more than two (2) temporary Designated Technicians or replacement Designated Technicians during the Subscription Period.

6.7. In the event that Licensee appoints a temporary Designated Technician or a replacement Designated Technician, Licensee shall notify StorageCraft of the name of the temporary or replacement Designated Technician within five (5) days of such appointment.

Section 7 Support. Licensee is entitled to Product Support during the Subscription Period. Notwithstanding the foregoing, however, if Licensee obtained the Software subject to this Agreement for free, or without the payment of monetary compensation, Licensee has no entitlement to Support.

Section 8 Termination. This Agreement is effective until terminated as permitted in this Section. Licensee may terminate this License for convenience at any time. In the event that Licensee breaches Sections 2, 3, 4, 5, or 6, StorageCraft may terminate this License effective immediately by providing a notice of breach to Licensee. StorageCraft may terminate this Agreement on ten (10) days written notice to Licensee if Licensee breaches any other provision of this Agreement and fails to cure such breach within ten (10) days after receiving written notice of the breach from StorageCraft. Upon termination of this License, Licensee must cease all use of the Software and Documentation, return the USB flash media containing the Original Copy, and destroy all copies of the Software and Documentation. On termination, Licensee shall not be entitled to a refund of any portion of the Subscription Fee.

Section 9 Limited Warranty, Exclusive Remedy. StorageCraft warrants that, for the lesser of (a) the Subscription Period or (b) sixty (60) days after the date Licensee first purchased the Software from StorageCraft or its reseller, distributor or authorized representative (collectively, the “Warranty Period”), that (a) the Software will perform substantially in accordance with its accompanying User Guide; and (b) the media on which the Software is provided will be free from defects in materials and workmanship under normal use. This warranty gives Licensee specific rights and Licensee may also have other rights that vary by jurisdiction. With the exception of the return and exchange rights set forth in the StorageCraft Technology Corporation Return and Exchange Policy, in the event of any breach of this limited warranty, Licensee’s sole and exclusive remedy against StorageCraft and its agents, employees, representatives, officers, directors, contractors, dealers, and distributors is, at the sole option of StorageCraft, either (a) return of the Subscription Fee paid by Licensee on a pro rata basis for the unused term of the Subscription Period; or (b) replacement of the defective media on which the Software is contained, provided that Licensee notifies StorageCraft of the nonconformance within the Warranty Period. Licensee must return the defective media to StorageCraft or its dealer, distributor or authorized representative at Licensee’s expense, together with a copy of Licensee’s proof of payment of the Subscription Fee within the Warranty Period. This limited warranty is void if the defect is the result of alteration, abuse, damage or misapplication. Any replacement media will be warranted for the remainder of the original Warranty Period, or thirty (30) days, whichever is longer.

Section 10 Disclaimer of Warranties. STORAGECRAFT DOES NOT WARRANT THAT THE SOFTWARE WILL MEET LICENSEE’S REQUIREMENTS OR THAT ITS OPERATION WILL BE UNINTERRUPTED OR ERROR-FREE. EXCEPT AS EXPRESSLY STATED IN THIS AGREEMENT, THE SOFTWARE IS PROVIDED AND LICENSED “AS IS” AND WITH ALL FAULTS. THERE ARE NO WARRANTIES, REPRESENTATIONS, OR CONDITIONS, EXPRESS OR IMPLIED, WRITTEN OR ORAL, ARISING BY STATUTE, OPERATION OF LAW, OR OTHERWISE, REGARDING THE SOFTWARE OR ANY OTHER PRODUCT OR SERVICE PROVIDED HEREUNDER OR IN CONNECTION HEREWITH. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, STORAGECRAFT AND ITS AUTHORIZED REPRESENTATIVES DISCLAIM ALL WARRANTIES AND CONDITIONS, WHETHER EXPRESS, IMPLIED, OR STATUTORY, INCLUDING WITHOUT LIMITATION ANY (IF ANY) WARRANTIES OR CONDITIONS OF OR RELATED TO: MERCHANTABILITY, DURABILITY, FITNESS FOR A PARTICULAR PURPOSE, LACK OF VIRUSES, NONINFRINGEMENT, ACCURACY OR COMPLETENESS OF RESPONSES, RESULTS, WORKMANLIKE EFFORT, AND LACK OF NEGLIGENCE. ALSO, TO THE MAXIMUM EXTENT PERMITTED BY LAW, THERE IS NO WARRANTY, DUTY, OR CONDITION OF TITLE, QUIET ENJOYMENT, QUIET POSSESSION, OR CORRESPONDENCE TO DESCRIPTION. THIS IS AN ARM’S LENGTH TRANSACTION AND LICENSEE HAS ENGAGED IN APPROPRIATE DUE DILIGENCE CONCERNING BOTH STORAGECRAFT AND THE SOFTWARE. CONSEQUENTLY, THE ENTIRE RISK ARISING OUT OF USE OR PERFORMANCE OF THE SOFTWARE REMAINS WITH LICENSEE. IF ANY IMPLIED WARRANTY MAY NOT BE DISCLAIMED UNDER APPLICABLE LAW, THEN SUCH IMPLIED WARRANTY IS LIMITED TO THIRTY (30) DAYS FROM THE DATE LICENSEE ACQUIRED THE SOFTWARE FROM STORAGECRAFT OR ITS DEALER, DISTRIBUTOR OR AUTHORIZED REPRESENTATIVE AND IS SUBJECT TO THE EXCLUSIVE REMEDY PROVISION SET FORTH IN THIS AGREEMENT. SOME JURISDICTIONS DO NOT PERMIT LIMITATIONS ON IMPLIED WARRANTIES, SO THE FOREGOING THIRTY (30) DAY TIME LIMITATION ON IMPLIED WARRANTIES MAY NOT APPLY TO LICENSEE. THE LIMITED WARRANTY HEREIN GIVES LICENSEE SPECIFIC LEGAL RIGHTS AND LICENSEE MAY ALSO HAVE OTHER LEGAL RIGHTS WHICH VARY BY JURISDICTION. WARRANTY INQUIRIES MAY BE SENT TO STORAGECRAFT AT: LEGAL@STORAGECRAFT.COM OR TO LEGAL DEPARTMENT, 11850 SOUTH ELECTION ROAD, SUITE 120, DRAPER, UTAH 84020, U.S.A. NO AGREEMENTS VARYING OR EXTENDING THE FOREGOING WARRANTIES OR LIMITATIONS WILL BE BINDING ON EITHER PARTY UNLESS IN WRITING AND SIGNED BY AN AUTHORIZED REPRESENTATIVE OF BOTH PARTIES.

Section 11 Limitation of Liability. THE LIABILITY OF STORAGECRAFT, IF ANY, AND THAT OF ITS AUTHORIZED REPRESENTATIVES TO LICENSEE FOR ANY LOSSES SHALL BE LIMITED TO DIRECT DAMAGES AND SHALL NOT EXCEED THE SUBSCRIPTION FEE. IN NO EVENT SHALL STORAGECRAFT OR ITS DEALERS, DISTRIBUTORS OR AUTHORIZED REPRESENTATIVES BE LIABLE FOR ANY INCIDENTAL, INDIRECT, SPECIAL, PUNITIVE, OR CONSEQUENTIAL DAMAGES (INCLUDING WITHOUT LIMITATION PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES; LOSS OF PROFITS, USE, OR DATA; OR BUSINESS INTERRUPTION), EVEN IF STORAGECRAFT OR ITS AGENTS OR REPRESENTATIVES HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THE LIMITATIONS IMPOSED BY THIS SECTION, THE REMEDIES AVAILABLE, AND THE CONSIDERATION EXCHANGED REFLECT THE ALLOCATION OF RISK BETWEEN THE PARTIES AND ARE AN ESSENTIAL ELEMENT OF THE BASIS OF THE BARGAIN BETWEEN THEM. THESE LIMITATIONS APPLY EVEN IN THE EVENT OF FAULT, TORT, NEGLIGENCE, MISREPRESENTATION, OR STRICT OR PRODUCT LIABILITY. In no event shall any person who has contributed to any part of the Software be liable for any damages whatsoever, however caused, and on any theory of liability, whether in contract, strict liability, or tort (including negligence or otherwise) arising in any way out of the use of the Software, even if advised of the possibility of such damage. Some jurisdictions do not allow the exclusion or limitation of incidental or consequential damages, so the above limitation or exclusion may not apply to Licensee. Licensee releases StorageCraft from all liability in excess of the liabilities that are limited by this Section, including without limitation any claim for indemnification or contribution whether arising under statutory or common law or otherwise. End users in certain countries may be subject to certain consumer protection laws unique to their locale and that limit the ability to modify or exclude liability. If Licensee acquired the Software for the purposes of a business, Licensee confirms that any applicable consumer protection laws do not apply. If Licensee acquired the Software in Australia and if StorageCraft breaches a condition or warranty implied by applicable law and which cannot lawfully be modified or excluded by this Agreement then, to the extent permitted by law, StorageCraft’s liability to Licensee is limited, at StorageCraft’s option, to: (a) replacement or repair of the Software and/or re-supply of customer support; or (b) the cost of replacing or repairing the Software and/or the cost of re-supplying customer support. LICENSEE AGREES TO COMPLY WITH ANY AND ALL THIRD-PARTY LICENSING REQUIREMENTS THAT LICENSEE’S USE OF THE SOFTWARE MAY IMPACT. LICENSEE FURTHER AGREES TO INDEMNIFY AND HOLD STORAGECRAFT HARMLESS FROM ANY AND ALL CLAIMS AGAINST STORAGECRAFT BY THIRD PARTIES RELATING TO LICENSEE’S USE OF THE SOFTWARE WITHOUT POSESSION OF ANY REQUIRED THIRD-PARTY LICENSES.

Section 12 United States Government Restricted Rights. RESTRICTED RIGHTS LEGEND. All StorageCraft products and documentation are commercial in nature. The software and software 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)(5) and 48 C.F.R. § 252.227-7014(a)(1), and 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. § 252.227-7015, 48 C.F.R. § 227.7202 through 227.7202-4, 48 C.F.R. § 52.227-14, and other relevant sections of the Code of Federal Regulations, as applicable, StorageCraft Software and Documentation are licensed to United States Government end users with only those rights as granted to all other end users, according to the terms and conditions contained in this Agreement.

Section 13 Compliance with Export Law. StorageCraft, 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. These laws include without limitation, the Export Administration Act, the Arms Export Control Act, and the International Economic Emergency Powers Act, and regulations issued pursuant to these and other applicable export laws (the “Export Laws”). Licensee will comply fully with all Export Laws to assure that neither the Software, nor any direct products thereof are (1) exported, directly or indirectly, in violation of the Export Laws, or (2) are used for any purpose prohibited by Export Laws, including, without limitation, nuclear, chemical, or biological weapons proliferation. None of the Software or 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 or any other country subject to U.S. sanctions applicable to the export or re-export of goods; or (ii) to anyone on the U.S. Treasury Department’s List of Specially Designated Nationals and Blocked Persons List, or the U.S. Commerce Department’s Denied Persons List, Unverified List, Entity List, or Nonproliferation Sanctions. Licensee acknowledges that it can contact the U.S. Departments of Commerce and Treasury for guidance as to applicable export licensing requirements, sanctioned programs and other restrictions. By downloading or using the Software, Licensee agrees to the foregoing and represents and warrants that Licensee is not located in, under the control of, or a national or resident of any such country or on any such list, and that Licensee acknowledges Licensee is responsible to obtain any necessary U.S. government authorization to ensure compliance with U.S. law.

Section 14 Assignment and Transfer of License Rights. Licensee may transfer the rights granted under this Agreement on a permanent basis to another person or entity, provided that Licensee retains no copies of the Software; the transferee agrees, in writing, prior to such transfer, to the terms of this Agreement; and StorageCraft consents in writing to such transfer. Any other attempt by Licensee to transfer the rights or obligations under this Agreement will be null and void and will constitute a material breach of this Agreement.

Section 15 Notices. All notices required or permitted to be given or served under this Agreement shall be in writing and: (a) personally delivered to the Party to be notified, in which instance notice shall be deemed to have been given and received upon actual delivery; (b) sent by a reputable international overnight commercial courier service (such as Federal Express) 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; (c) sent by email and facsimile, in which instance notice shall be deemed to have been given and received upon actual delivery; or (d) 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. The point of contact of the Parties for notice by any of the foregoing means shall be as follows. If to StorageCraft: StorageCraft Technology Corporation, Attn: Legal; 11850 Election Rd, Suite 100, Draper, UT 84020; email: legal@storagecraft.com; facsimile: (801)545-4705; with a copy to: StorageCraft Technology Corporation, Attn: TLA Notice, P.O. Box 1149, Riverton, UT 84065; email: notices@storagecraft.com; facsimile: (801)545-4705. If to Licensee: to the Licensee address, facsimile, and/or email address provided by Licensee to StorageCraft. Either Party may change its contact information for notice purposes by giving ten (10) days’ prior written notice to the other Party in the manner described above.

Section 16 Third-Party Licensors. The Software may contain or be delivered with code that StorageCraft has licensed from third-parties, including without limitation the Network Configuration Utility based on a derivative created by StorageCraft under a license granted by Pierre Mounir (The Truth), a proprietary software product copyrighted © 2003-2011 with all rights reserved.

Section 17 Miscellaneous.

17.1. Activation. The Documentation describes the process of activating the Software, which involves recognition of each seat of licensed Software by StorageCraft’s activation server. The records of StorageCraft’s activation server are determinative in any question concerning whether a seat of licensed Software has been activated by Licensee.

17.2. Severability. If any provision of this Agreement is unenforceable or invalid pursuant to any applicable law, such unenforceability or invalidity will not render this Agreement unenforceable or invalid as a whole, and such unenforceable or invalid provision will be changed and interpreted so as to best accomplish the objectives of such provision within the limits of applicable law.

17.3. Entire Agreement. Unless Licensee has entered into a separate, written and signed agreement with StorageCraft or one of its dealers, distributors, resellers, or authorized representatives for the supply of the Software and which agreement expressly modifies or amends this Agreement, this Agreement is the complete and exclusive statement of the agreement between StorageCraft and Licensee concerning the Software and supersedes all previous communications, representations, understandings and agreements, either oral or written, between the Parties.

17.4. Waiver or Modification. This Agreement may not be modified except by a written addendum issued by a duly authorized representative of StorageCraft. No delay or failure to take action represents a waiver of the rights inherent to or granted to StorageCraft under this Agreement. Licensee acknowledges, understands, and agrees that Licensee’s receipt of future releases of the Software, including Updates and Upgrades, will require Licensee’s acceptance of a new Technician License Agreement which may alter, amend, or replace all or part of this Agreement and affect the Parties’ obligations concerning the Software.

17.5. 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.

17.6. Compliance. For Software licensed for business or commercial purposes, during the period this Agreement remains in effect, and for three years thereafter, StorageCraft may verify Licensee’s compliance with this Agreement on its premises during its normal business hours and in a manner that minimizes disruption to Licensee’s business. StorageCraft may use an independent auditor for this purpose with Licensee’s prior approval, which Licensee will not unreasonably withhold.

17.7. Headings and Captions. The headings and captions used in this Agreement are for convenience or reference only and shall not modify, expand, limit, or describe the scope or intent of this Agreement or in any other way affect the terms or conditions of this Agreement.

17.8. Force Majeure. No delay, failure or default in performance of any obligation of StorageCraft hereunder shall constitute a breach of the Agreement to the extent caused by a force majeure.

17.9. Applicable Law. This Agreement shall be governed and construed in accordance with the laws of the State of Utah, U.S.A., without application of any choice-of-law or conflict-of-law principles, rules, or provision that would result in the application of the laws of any jurisdiction other than Utah. 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 in Salt Lake County, State of Utah, U.S.A. The Parties consent and submit to the exclusive jurisdiction of the state or federal courts in Salt Lake County, State of Utah, U.S.A., for purposes of any action for such provisional remedy or interim or conservatory measure. The United Nations Convention on Contracts for the International Sale of goods does not apply to this Agreement.

17.10. Dispute Resolution. The Parties expressly waive any right to trial by jury concerning any dispute arising from or relating to this Agreement. 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 shall be submitted for final resolution by arbitration administered by the American Arbitration Association (the “AAA”) or the International Centre for Dispute Resolution (“ICDR”): Licensee’s purchase or use of the Software; the Software’s performance, including without limitation any alleged deficiency or defect; the existence or breach of a contractual, statutory, or common-law warranty; the terms and obligations of this Agreement; the performance, termination, rescission, or alleged breach of this Agreement; and the Agreement’s validity or enforceability, including without limitation any claim that all or any part of this Agreement is void, voidable, unconscionable, or unenforceable (collectively, “Arbitral Dispute”). In the event arbitration is elected, both Parties expressly waive any right to a trial by jury. The AAA and ICDR are referred to as “Arbitral Bodies”. Any claim for infringement or violation of copyright, trademark, or other intellectual property rights is not an Arbitral Dispute, but shall be brought before a court of competent jurisdiction in Salt Lake County, State of Utah, U.S.A. In the event of an Arbitral Dispute, the election to arbitrate must be made in writing by a Party 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 U.S. resident or maintains a place of business in the U.S., the arbitration shall be conducted in accordance with the AAA Commercial Arbitration Rules in effect at the time of the arbitration, excepting any rules pertaining to class arbitrations. If Licensee is not a U.S. resident or does not maintain a place of business in the U.S., the arbitration shall be conducted in accordance with the ICDR International Arbitration Rules in effect at the time of the arbitration, excepting any rules pertaining to class arbitrations. (The Commercial Arbitration Rules and International Arbitration 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 intend that any arbitration between them shall involve only the dispute between the Parties. 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 arbitrator selected in accordance with the Rules. The place of arbitration shall be Salt Lake County, State of Utah, U.S.A. and shall be conducted in the English language, unless the Parties agree otherwise in writing. Any award by the arbitrator(s) must be a reasoned award that: fully sets forth findings of fact from the evidence presented; applies the findings of fact to the law of the case; fully sets forth conclusions of law based upon the Parties’ respective legal theories; explains which legal theories were followed and why; and, if damages, costs, and/or fees are awarded, specifies the calculations of the types of damages, costs, and/or fees awarded as to each Party. 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, Utah Code Ann. section 78B-11-101 et seq. 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(s) by this Agreement and the Rules, the Arbitral Body shall not have the authority to exercise equitable principles and award equitable remedies. By agreeing to Arbitration, the Parties do not intend to deprive any court of competent jurisdiction in Salt Lake County, State of Utah, U.S.A., of its ability 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 an agreement to arbitrate.

17.11. No Fault Tolerance. The Software contains 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 Software could lead to death, personal injury, or severe physical, property or environmental damage.

17.12. Customer Contact. If Licensee has any questions concerning this Agreement, Licensee may contact StorageCraft as follows: website - www.storagecraft.com; telephone – 801-545-4700; fax - 801-545-4705; mail – StorageCraft Technology Corporation, 11850 Election Road, Suite 120, Draper, Utah 84020, U.S.A.

17.13. Electronic Communications. Licensee acknowledges and agrees that StorageCraft may communicate with Licensee regarding its account or the Software via email or other electronic communications. Licensee consents to these communications and others regarding the latest StorageCraft developments, including new product releases, upgrades, special offers and other information that StorageCraft believes may be relevant to your account.

© Copyright 2006-2013 StorageCraft Technology Corporation. All Rights Reserved. This Software and Documentation are the copyrighted property of StorageCraft Technology Corporation and all rights in and to ShadowProtect IT Edition and ShadowProtect IT Edition Professional are exclusively reserved to and owned by StorageCraft Technology Corporation. StorageCraft, ShadowProtect, ShadowProtect IT Edition Professional, and their respective logos and trademarks are owned exclusively by StorageCraft Technology Corporation in the United States and elsewhere. Microsoft and Windows are registered trademarks of Microsoft Corporation. Windows PE is or may be a trademark of Microsoft Corporation. This Software may include a derivative software application of PE Network Configurator authorized by license granted by Pierre Mounir (The Truth). All other brands and product names referenced in this Agreement are or may be the trademarks or registered trademarks of their respective owners.

Vers. 10.10.2013

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