ZMANDA RECOVERY MANAGER ENTERPRISE EDITION WITH MANAGEMENT CONSOLE LICENSE AGREEMENT

BY CLICKING ON THE “YES” BUTTON, YOU AND THE ENTITY YOU REPRESENT (“YOU”) ARE UNCONDITIONALLY CONSENTING TO BE BOUND BY AND ARE BECOMING A PARTY TO THIS LICENSE AGREEMENT (“AGREEMENT”) TO THE EXCLUSION OF ALL OTHER TERMS. IF YOU DO NOT AGREE TO ALL OF THE TERMS OF THIS AGREEMENT, CLICK THE “NO” BUTTON AND THE INSTALLATION PROCESS WILL NOT CONTINUE. IF THESE TERMS ARE CONSIDERED AN OFFER, ACCEPTANCE IS EXPRESSLY LIMITED TO THESE TERMS.

1. LICENSES. The Zmanda Recovery Manager Enterprise Edition with Management Console that you are about to install contains certain open source software that is distributed alongside Zmanda software. Such open source software includes, without limitation, Zmanda Recovery Manager, as well certain versions of Apache, MySQL, Perl, and PHP (“Open Source Software”). ALL USE OF THE OPEN SOURCE SOFTWARE IS SUBJECT TO AND GOVERNED BY (AND YOU AGREE TO AND WILL INDEMNIFY ZMANDA FOR NONCOMPLIANCE WITH) THE RESPECTIVE LICENSES AVAILABLE AT http://www.mysql.com/company/legal, http://www.apache.org/licenses/LICENSE-2.0, http://www.php.net/license/3_01.txt, http://www.perl.com/pub/a/language/misc/Artistic.html. In addition, subject to the terms and conditions of this Agreement, Zmanda, Inc. (“Zmanda”) hereby grants you a limited, non-sublicensable, non-transferable, royalty-free, nonexclusive license to use its Management Console software and certain Zmanda software included with the Zmanda Recovery Manager Enterprise Edition (collectively, “Software”) that you are about to install only (a) in accordance with any documentation that accompanies it, (b) for one instance of use per Zmanda Recovery Manager Enterprise Edition annual subscription, and (c) while you have a valid Zmanda Recovery Manager Enterprise Edition subscription. The Software is licensed, not sold.

2. RESTRICTIONS. You may not, directly or indirectly: copy, distribute, rent, lease, timeshare, operate a service bureau with, use commercially or for the benefit of a third party, reverse engineer, disassemble, decompile, attempt to discover the source code or structure, sequence and organization of, or remove any proprietary notices from, the Software. As between the parties, title, ownership rights, and intellectual property rights in and to the Software, and any copies or portions thereof, shall remain in Zmanda and its suppliers or licensors. You understand that Zmanda may modify or discontinue offering the Software at any time. To recieve support for backup of MySQL Cluster you have to buy a separate Zmanda Recovery Manager Cluster Edition subscription. The Software is protected by the copyright laws of the United States and international copyright treaties. This Agreement does not give you any rights not expressly granted herein.

3. SUPPORT AND UPGRADES. This Agreement does not entitle you to any support, upgrades, patches, enhancements, or fixes for the Software (collectively, “Support”). However, if you have a valid Zmanda Recovery Manager Edition subscription, you are entitled to Support for the Software. Any Support provided for the Software that may be made available to you by Zmanda shall become part of the Software and subject to this Agreement.

4. WARRANTY DISCLAIMER. ZMANDA PROVIDES THE SOFTWARE “AS IS” AND WITHOUT WARRANTY OF ANY KIND, AND ZMANDA HEREBY DISCLAIMS ALL EXPRESS OR IMPLIED WARRANTIES, INCLUDING WITHOUT LIMITATION WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, PERFORMANCE, ACCURACY, RELIABILITY, AND NON-INFRINGEMENT. THIS DISCLAIMER OF WARRANTY CONSTITUTES AN ESSENTIAL PART OF THIS AGREEMENT.

5. LIMITATION OF LIABILITY. UNDER NO CIRCUMSTANCES AND UNDER NO LEGAL THEORY, INCLUDING, WITHOUT LIMITATION, TORT, CONTRACT, STRICT LIABILITY, OR OTHERWISE, SHALL ZMANDA OR ITS LICENSORS, SUPPLIERS OR RESELLERS BE LIABLE TO YOU OR ANY OTHER PERSON FOR ANY INDIRECT, SPECIAL, INCIDENTAL, OR CONSEQUENTIAL DAMAGES OF ANY CHARACTER INCLUDING, WITHOUT LIMITATION, DAMAGES FOR LOST PROFITS, LOSS OF GOODWILL, WORK STOPPAGE, ACCURACY OF RESULTS, COMPUTER FAILURE OR MALFUNCTION, DAMAGES RESULTING FROM YOUR USE OF THE SOFTWARE.

6. TERMINATION. You may terminate this Agreement and the license granted herein at any time by destroying or removing from all computers, networks, and storage media all copies of the Software. Zmanda may terminate this Agreement and the license granted herein immediately if you breach any provision of this Agreement. This Agreement will automatically terminate upon the termination of your Zmanda Recovery Manager Enterprise Edition subscription, and upon receiving notice of such termination from Zmanda, you will destroy or remove from all computers, networks, and storage media all copies of the Software. Sections 2 and 4 through 8 shall survive termination of this Agreement. Termination is not an exclusive remedy and all other remedies will be available whether or not termination occurs.

7. EXPORT CONTROLS. You shall comply with all export laws and restrictions and regulations of the Department of Commerce, the United States Department of Treasury Office of Foreign Assets Control (“OFAC”), or other United States or foreign agency or authority, and you shall not export, or allow the export or re-export of the Software in violation of any such restrictions, laws or regulations. By downloading or using the Software, you agree to the foregoing and represents and warrants that you are not located in, under the control of, or a national or resident of any restricted country.

8. MISCELLANEOUS. You may not assign this Agreement in whole or in part without the consent of Zmanda (and any attempt to do so shall be void); Zmanda may assign and transfer any rights and/or obligations. The provisions hereof are for the benefit of the parties only and not for any other person or entity. Any notice, report, approval, authorization, agreement or consent required or permitted hereunder shall be in writing; notices shall be sent to the address the applicable party has or may provide by written notice or, if there is no such address, the most recent address the party giving notice can locate using reasonable efforts. No failure or delay in exercising any right hereunder will operate as a waiver thereof, nor will any partial exercise of any right or power hereunder preclude further exercise. If any provision shall be adjudged by any court of competent jurisdiction to be unenforceable or invalid, that provision shall be limited or eliminated to the minimum extent necessary so that this arrangement shall otherwise remain in full force and effect and enforceable. This agreement shall be deemed to have been made in, and shall be construed pursuant to the laws of the State of California and the United States without regard to conflicts of laws provisions thereof, and without regard to the United Nations Convention on the International Sale of Goods or the Uniform Computer Information Transactions Act. Notwithstanding the foregoing sentence, (but without limiting Zmanda’s right to seek injunctive or other equitable relief in any court of competent jurisdiction), any disputes arising from this Agreement (including the enforceability of this arbitration provision) shall be referred to and administered by a single arbitrator in accordance with the Judicial Arbitration and Mediation Services (“JAMS”) Arbitration Rules and Procedures. The arbitrator shall be affiliated with JAMS and selected by joint agreement of the parties. In the event the parties cannot agree on an arbitrator within thirty (30) days of the initiating party providing the other party with written notice that it plans to seek arbitration, the parties shall each select an arbitrator affiliated with JAMS, which arbitrators shall jointly select a third such arbitrator to resolve the dispute. The written decision of the arbitrator shall be final and binding on the parties. The arbitration proceeding shall be carried on in San Francisco, California using the English language. In any action or proceeding to enforce rights under this Agreement, the prevailing party will be entitled to recover costs and attorneys’ fees. This is the complete and exclusive statement of the mutual understanding of the parties and supersedes and cancels all previous written and oral agreements and communications relating to the subject matter hereof and any waivers or amendments shall be effective only if made in writing; however, any pre-printed or standard terms of any purchase order, confirmation, or similar form, even if signed by the parties after the effectiveness hereof, shall have no force or effect. The substantially prevailing party in any action to enforce this agreement will be entitled to recover its attorney’s fees and costs in connection with such action. As defined in FAR section 2.101, DFAR section 252.227-7014(a)(1) and DFAR section 252.227-7014(a)(5) or otherwise, all Software and accompanying documentation provided by Zmanda are “commercial items,” “commercial computer software” and/or “commercial computer software documentation.”