END USER LICENSE AGREEMENT

1. “Quotation Form” means the ordering document which describes the Software and or Services being ordered by Licensee and which incorporates this Agreement by reference.
2. “Perpetual” refers to a software license that does not expire and authorizes use of a program indefinitely. Generally, outside of termination, a Perpetual software license allows the holder to use a specific version of a given software program continually with payment of a single fee.
3. “Subscription” refers to a software license that expires after an agreed upon term. Subscriptions can be set to automatically renew which refreshes the expiration date of the license.
4. “Software” means: (i) the machine-readable object code version of the Software made generally available by Stealthbits and described in the applicable Quotation Form; (ii) the related Documentation; (iii) corrections, enhancements, and upgrades to the Software that Stealthbits may make available pursuant to Section 8 below; and (iv) all copies of the foregoing.
5. “Documentation” means the published user manuals and Documentation that Stealthbits makes generally available for the Software.
6. “Affiliate” means any entity controlled by, controlling, or under common control with Licensee.
7. “Services” means all Services provided by Stealthbits under this Agreement.
8. “Error” means a reproducible failure of the Software to perform in substantial conformity with its Documentation. Provided, however, any nonconformity resulting from Licensee’s improper use of the licensed Software, combining or merging the licensed Software with software not approved by Licensor for use with the licensed Software, targeting a platform not explicitly listed in the Documentation as supported, or modification of the licensed Software which has not been performed by Licensor, shall not be considered an Error.
9. “Error Correction” means either a software modification or addition that, when made or added to the Software, corrects the Error, or a procedure or routine that, when observed in the regular operation of the Software, eliminates the practical adverse effects of the Error.
10. “Severity 1 – Critical Business Impact” means that the Software is not operational and no Workaround is possible, or, a Workaround exists but is unacceptable because of the impact on Licensee’s business. Error results in the use of the Software being severely affected or completely unavailable. In addition, Error may involve downtime, outage, severe performance degradation, or other failure of one or more business critical systems, functions or services that adversely affects the ability of multiple end users to perform their functions.
11. “Severity 2 – Serious Business Impact” means that the Software is operational, but its functionality is seriously affected, and implementing a Workaround is time consuming and will adversely affect Licensee’s business. In addition, Error may involve downtime, outage, serious performance degradation or other failure of one or more non-critical business systems, functions or services that adversely affects the ability of multiple end users to perform their functions.
12. “Severity 3 – Minor Business Impact” means that the Software is operational, but its functionality is affected and a Workaround is available and acceptable. In addition, it may include an Error or problem with a system, function or service that materially adversely affects an end user’s ability to process, but for which there is a reasonable and practical circumvention so that the affected end user can continue performing its functions with minimal loss of efficiency or functionality; or involves downtime, outages, performance degradation or other failure of a single non-critical system, function or service or affecting a single end user only.
13. “Severity 4 – Enhancement Request” means that the Software is useable and operating as designed, but Licensee has a question or would like to submit a formal proposal for a new system, function, or service, or an alteration to an existing licensed system, function or service. It may involve a problem with respect to a system, function or service that affects a single end user issue that is non-critical to job function and includes a Workaround. All Enhancement Requests are considered but may not be included in a future release.
14. “Workaround” means a procedure or change to the configuration of Software intended to provide relief to the Licensee by reducing the effective Severity of the Error or problem until such time as a permanent Error Correction is provisioned.
15. “Update” means any Update or new release of the Software made available by Stealthbits to the Licensee.
16. “Active Directory User Accounts” are used by human users or programs such as system services used to log on to a computer. Each user or application that accesses resources in a Windows domain must have an account in the Active Directory server. Windows uses this user account to verify that the user or application has permission to use a resource. http://msdn.microsoft.com/en-us/library/ms677992(v=vs.85).aspx.
17. “Exchange Mailbox” is any object defined as such by a Microsoft Exchange Server. Mailboxes send, receive, and store electronic mail messages, and can be configured for personal use, shared between multiple users, or serve as a resource mailbox tied to an application or service.
18. “End of Life” means a process that consists of a series of technical and business milestones and activities that, once completed, make the Software obsolete. Once obsolete, the Software is not sold, manufactured, improved, repaired, maintained, or supported. End of Life starts on or shortly after the date of the second subsequent release (major release or minor release). Until the product is obsolete, the applicable Software is fully supported, but no further service packs will be released.
19. “End of Support” means the applicable Software is no longer supported by Supplier, and no patches or service packs will be issued. End of Support occurs six (6) months after the End of Life process starts.

• Stealthbits shall make new versions and releases of the Software available to Licensee, including Software corrections, enhancements and upgrades, if and when it makes them generally available, without charge under a maintenance subscription for such Software.
• Stealthbits shall respond via email or phone to unlimited communications from Licensee that report Software failures.
• Stealthbits will respond to Licensee notifications and will make commercially reasonable efforts to provide a Workaround and an Error Correction within the time scales set forth in the table below:

• Maintenance and Support Services for all Software are available during the standard support hours of Monday through Friday from 8AM to 8PM Eastern Time, excluding all nationally recognized United States holidays.
• Software Maintenance and Support Services may be requested via the Web, email, or telephone.
  • Website: https://www.support.stealthbits.com
  • E-mail: support@stealthbits.com
  • Phone/Voicemail: +1 201-447-9359
• Stealthbits may, in its sole discretion, withhold, deprioritize, or cease the provisioning of Maintenance and Support Services for:
• Any version of the Software that has reached End of Support.
• Defects or Errors found to be resulting from any modifications to Software which have not been approved by Stealthbits.
• Failures associated with the targeting of platforms of versions thereof that are not supported by both Stealthbits and the target platform’s respective vendor, or for whom the Licensee is not entitled to support from the target platform’s respective vendor.
• Errors caused by the use of the Software on or with equipment or programs not approved by Stealthbits based on software prerequisites, minimum hardware requirements, minimum operating system version, network connectivity requirements, and service account requirements not being met. Documentation describing such prerequisites and minimum requirements shall be provided.
• Stealthbits shall respond to a reasonable number of communications from Licensee that request consultation on the operational/technical aspects of the Software.
• Consultation requests (such as advanced customizations, workflow development or execution, bespoke or extensive training, server or database migrations, re-implementation, implementation of newly licensed or newly available functionality, upgrades from Software versions that have reached End of Support, disaster recovery assistance, and in-depth product/architecture consultation) may be deemed by Stealthbits to be outside the scope of Software Maintenance and Support Services, and may be referred to the Professional Services Organization of Stealthbits (PSO).

• At the request of Licensee, but which do not qualify under Software failures by virtue of the exceptions listed in Section 8.3.
• At the request of Licensee but are not necessary under the Software Maintenance and Support Services as listed in Section 8.3.

Stealthbits warrants that, for a period of thirty (30) days from the date of delivery (“Warranty Period”): (i) the media provided by Stealthbits, if any, on which the Software is recorded, will be free from material defects in materials and workmanship under normal use; and (ii) the operation of the Software, as provided by Stealthbits, will substantially conform to the Documentation applicable to the Software.

THE FOREGOING WARRANTIES ARE EXCLUSIVE AND IN LIEU OF ALL OTHER WARRANTIES, WHETHER EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO THE IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE.

Licensee must report in writing any breach of the foregoing warranties to Stealthbits during the Warranty Period, and Licensee’s exclusive remedy, and Stealthbits’ sole obligation, for any such breach of warranty shall be for Stealthbits to replace the defective media and to correct or provide a Workaround for reproducible Errors that cause a breach of the warranty within a reasonable time considering the severity of the Error and its effect on Licensee, or, at Stealthbits option, refund the license fees paid for the nonconforming Software upon return of such Software to Stealthbits and termination of the related license hereunder.

Stealthbits will, at its own expense, defend or settle any claim, suit, action, or proceeding brought against Licensee by a third party (a “Claim”) to the extent that the Claim is based on an allegation that use of the then-current version of the Software in accordance with this Agreement directly infringes any patent, copyright or trademark, or misappropriates any trade secret (“Infringes”); provided that Licensee: (i) shall have given prompt written notice of such Claim to Stealthbits; (ii) permits Stealthbits to retain sole control of the investigation, defense or settlement of such Claim; and (iii) shall provide Stealthbits with such cooperation and assistance as Stealthbits may reasonably request from time to time in connection with the investigation, defense or settlement thereof. Stealthbits shall have no obligation hereunder to indemnify Licensee for any claim: (a) resulting from use of the Software other than as authorized in this Agreement and in the manner described in the Documentation; (b) resulting from a modification of the Software other than by Stealthbits; or (c) based on Licensee’s use of the Software after Stealthbits recommends discontinuation because of possible or actual infringement or use of a superseded or altered release of Software if the infringement would have been avoided by use of a current unaltered release of the Software made available to Licensee.

If the Software is adjudged by a court of competent jurisdiction to Infringe, and Licensee’s use of such Software is enjoined, Stealthbits shall, at its expense and option either: (i) obtain for Licensee the right to continue using the Software; (ii) replace the Software with a functionally equivalent non-Infringing product; (iii) modify the Software so that it is non-Infringing; or (iv) accept the return of the Infringing Software and, for a Perpetual license, refund a pro-rated portion of the license fee paid for the Infringing Software, based on a five (5) year product life, or, for a Subscription license, refund a pro-rata portion of the fees for the remainder of the then current Subscription term. This Section 10 states the entire liability of Stealthbits, and Licensee’s sole and exclusive remedy, with respect to infringement of intellectual property rights.

1. This Agreement shall be governed by and construed in accordance with the laws of the State of New Jersey, excluding its conflicts of laws and principles. The parties agree that the United Nations Convention on Contracts for the International Sale of Goods does not apply to this Agreement. Any action seeking enforcement of this Agreement or any provision hereof shall be brought exclusively in the state or federal courts located in the State of New Jersey, United States of America. Each party hereby agrees to submit to the jurisdiction of such courts.
2. If any provision of this Agreement shall be held by a court of competent jurisdiction to be contrary to law, that provision will be enforced to the maximum extent permissible, and the remaining provisions of this Agreement will remain in full force and effect.
3. Software is a “commercial item,” “commercial computer software” and/or “commercial computer software documentation.” Consistent with DFAR section 227.7202 and FAR section 12.212, any use, modification, reproduction, release, performance, display, disclosure or distribution of the Software by the U.S. government shall be governed solely by the terms of this Agreement and shall be prohibited except to the extent expressly permitted herein.
4. All notices, requests, demands or communications required or permitted hereunder shall be in writing, delivered personally, or mailed by first class mail, postage prepaid, addressed to the parties as set forth above or at such other address as shall be specified in writing by either of the parties to the other in accordance with this Section 15(d). All notices, requests, demands or communications shall be deemed effective upon personal delivery or four (4) days following deposit in the U.S. mail in accordance with this Section.
5. Upon obtaining Licensee’s written consent, Stealthbits may use Licensee as a reference account for marketing purposes, including: (i) allowing Stealthbits to reference Licensee on its reference account customer lists in print and on its website; (ii) providing quotes for press releases and the website of Stealthbits; and (iii) participating in one phone interview for the development of a webinar.
6. Performance of any obligation required by a party hereunder may be waived only by a written waiver signed by an authorized representative of the other party, which waiver shall be effective only with respect to the specific obligation described therein.
7. Each party will be excused from performance for any period during which and to the extent that it is prevented from performing any obligation or service as a result of causes beyond its reasonable control and, without its fault or negligence, including without limitation, acts of God, strikes, lockouts, riots, acts of war, epidemics, pandemics, communication line failures, and power failures.
8. The terms and conditions of this Agreement shall govern all Quotation Forms. The terms and conditions of any Quotation Form shall incorporate the terms and conditions of this Agreement and shall control over any conflicting terms and conditions contained in this Agreement in the event that such Quotation Form is generated by Stealthbits. In the event the applicable Quotation Form is not generated by Stealthbits, the terms and conditions of this Agreement shall control over any conflicting terms and conditions contained in said Quotation Form.
9. This Agreement, together with the attached exhibits, if any, and Quotation Forms which are incorporated herein by reference, constitute the entire agreement between the parties regarding the subject matter hereof and supersede all prior or contemporaneous agreements or representations, written or oral, concerning the subject matter of this Agreement and such exhibits or Quotation Forms. The terms and conditions of this Agreement and in any Quotation Form shall control in the event there are different or additional terms set forth in any purchase order submitted by Licensee. Terms or conditions contained in Licensee’s purchase orders shall apply only to the extent they confirm the Software and Services ordered, the applicable fees and the requested shipment date. Neither this Agreement nor any Quotation Form may be modified or amended except by a writing executed by a duly authorized representative of each party. No other act, document, usage or custom shall be deemed to amend or modify this Agreement.