VKERNEL END–USER LICENSE AGREEMENT

Note to user: In this document, “You” means the licensee of the Software and “VKernel” means VKernel Corporation, the Licensor of the Software.

BEFORE YOU DOWNLOAD AND USE VKERNEL VIRTUAL APPLIANCE PRODUCTS AND ANY RELATED DOCUMENTATION, INCLUDING USER MANUALS (COLLECTIVELY THE “SOFTWARE”), PLEASE CAREFULLY REVIEW ALL TERMS AND CONDITIONS AND BE SURE YOU UNDERSTAND THEM. CHOOSING “I ACCEPT” AND PROCEEDING WITH THE DOWNLOAD INDICATES YOUR ACKNOWLEDGEMENT THAT YOU HAVE READ THIS LICENSE AGREEMENT, THAT YOU UNDERSTAND IT, AND THAT YOU AGREE TO BE LEGALLY BOUND BY ITS TERMS. IF YOU DO NOT AGREE TO ANY OF THE TERMS AND CONDITIONS LICENSE AGREEMENT YOU MUST NOT DOWNLOAD THE SOFTWARE.

1. Title, Intellectual Property Rights. The Software furnished under this Agreement is licensed, not sold or transferred, to You and is protected by the copyright, patent and trade secret laws of the United States and international treaties, and is subject to export control laws and regulations of the United States. VKernel shall have sole and exclusive ownership of all right, title, and interest in and to the Software and any interim releases, bypasses, fixes and updates supplied under a valid subscription license.

2. Licenses, Audit Rights.

2.1 General License Grant. Subject to specific terms and conditions set forth in this section 2 and the Agreement generally, VKernel hereby grants to You a terminable, non–exclusive, non–transferable right to use the Software as licensed under this Agreement. The license term shall be perpetual unless this Agreement is terminated pursuant to Section 7 herein.

2.2 Trial License. You may, free of charge, download and use the Software to create an unlimited number of ESX server reports for fourteen (14) days. The trial begins upon Software activation using the trial license key supplied by VKernel and terminates fourteen (14) days later when the Software will cease to function. You may purchase a perpetual license at any time by contacting sales@vkernel.com or by calling VKernel at 866 370 2733.

2.3 Usage limits. Your use of the Software is limited to ESX host servers with usage not to exceed the number of CPU sockets specified in the purchase order submitted to VKernel by You (the “Purchase Order”) (whether such CPU is attached to the particular system board by ZIFF socket or “package” in the case of side–mounted CPUs).

2.4 Audit Rights and Routines. VKernel may, at any time, require assurances of compliance with the terms of this Agreement, including an annual usage certification. VKernel may audit Your use of the Software by all or some of the following measures: (a) by executing an automatic audit routine embedded in the Software that reports to VKernel the number of servers and virtual machines being monitored by the Software; and/or (b) upon reasonable notice, either by on–site review or otherwise specified. Regardless of method, VKernel will comply with all Your reasonable security requirements and will furnish You a copy of its audit report upon written request. If the audit reveals that You have used the Software beyond the scope of Your license, You shall be in material breach of this Agreement. You will cure such material breach immediately by ordering any additional licenses or upgrades required to be in compliance, and paying such additional license fees as necessary to cure the breach in accordance with VKernel’s then current Price List. If You fail to do so, VKernel may terminate this Agreement and all licenses and uses immediately.

3. Restrictions. You may use the Software only in accordance with this Agreement. You may make one (1) copy of the Software for back–up or archival purposes only (the “Archival Copy”). YOU MAY NOT: (a) copy the Software, except as provided above, (b) reverse engineer, disassemble, decompile, translate or adapt the Software, (c) modify, translate, distribute or prepare derivative works based on the Software, or any part thereof; (d) remove any proprietary notices, labels, or marks on the Software; (e) publish, display, disclose, distribute, rent, loan, lease, sublicense, transfer or make available all or any portion of the Software to any other person or entity. Distribution of this Software via the Internet, wide area networks (WANs), bulletin board systems or any other means of distribution of any kind is expressly prohibited unless a duly authorized representative of VKernel consents in advance of and in writing to such distribution.

4. Maintenance and Support. Maintenance and support shall be provided only if selected on the Purchase Order according to the options specified therein and payment is made therefore. Subject to Your payment of the appropriate maintenance and support fee, VKernel will provide either directly during its normal business hours or through its authorized channel partner telephone and e–mail consultation services regarding general operation and use of the Software. You will be entitled to download from the VKernel website on a when and if available basis (1) interim and new releases of the Software and (2) corrections, patches, or bypasses for errors (“bug fixes”) as released by VKernel to the extent and on the same schedule as made generally available to other licensed users of the Software. All interim releases and bug fixes shall be considered a part of the Software and subject to the terms and conditions of this Agreement. Maintenance and support may be renewed annually at the price quoted for this order which may be increased for changes in the consumer price index.

5. Warranties and Disclaimers.

5.1 Limited Software Warranty. Except as disclaimed under Section 5.2, VKernel warrants that the Software will function substantially as designed for a period of ninety (90) days from the date of download of the Software by You. All software contains errors, however, and You acknowledge that use of any software entails the likelihood of some human and machine errors, omissions, delays, interruptions, and losses, including inadvertent loss of data or damage to media, which may give rise to loss or damage. Good data processing procedure dictates that any program be thoroughly tested with non–critical data before relying on it. Accordingly, VKernel makes no warranty that the Software is error–free. This warranty is only for the benefit of You, the customer, and neither creates or grants any third–party beneficiary rights.

5.2 Disclaimer. YOU EXPRESSLY ACKNOWLEDGE AND AGREE THAT ANY USE BY YOU OF THE SOFTWARE IS AT YOUR OWN RISK. EXCEPT FOR THE LIMITED NINETY (90) DAY WARRANTY ON THE SOFTWARE SET FORTH ABOVE, THE SOFTWARE IS PROVIDED “AS IS” AND WITHOUT WARRANTY OF ANY KIND. VKERNEL EXPRESSLY DISCLAIMS, TO THE MAXIMUM EXTENT ALLOWED BY APPLICABLE LAW, ALL OTHER WARRANTIES OF ANY KIND, BOTH EXPRESS AND IMPLIED, INCLUDING, BUT NOT LIMITED TO, IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, ABSENCE OF LIEN, ENCUMBRANCE OR SECURITY INTEREST, NON–INFRINGEMENT, AND QUIET ENJOYMENT. VKERNEL DOES NOT WARRANT THAT THE FUNCTIONS CONTAINED IN THE SOFTWARE WILL MEET ANY REQUIREMENTS OR NEEDS YOU MAY HAVE, OR THAT THE OPERATION OF THE SOFTWARE WILL BE UNINTERRUPTED OR ERROR–FREE, OR THAT ANY DEFECTS OR ERRORS IN THE SOFTWARE WILL BE CORRECTED. YOU ASSUME THE ENTIRE RISK AS TO THE RESULTS AND PERFORMANCE OF THE SOFTWARE AND, EXCEPT AS OTHERWISE PROVIDED HEREIN, YOU (AND NOT V–KENREL) ASSUME THE ENTIRE COST OF ALL SERVICING, REPAIR AND/OR CORRECTION.

6. Limited Liability.

6.1 YOU AGREE THAT UNDER NO CIRCUMSTANCES, INCLUDING NEGLIGENCE, SHALL VKERNEL, ITS AFFILIATES, OR ANY OF THEIR DIRECTORS, OFFICERS, EMPLOYEES SHAREHOLDERS, REPRESENTATIVES OR AGENTS, OR THEIR RESPECTIVE SUCCESSORS, ASSIGNS, HEIRS, OR ESTATES, BE LIABLE TO YOU ON ACCOUNT OF ANY ERRORS, OMISSIONS, DELAYS, OR LOSSES OR FOR ANY, INDIRECT, INCIDENTAL, SPECIAL OR CONSEQUENTIAL DAMAGES (INCLUDING, BUT NOT LIMITED TO, PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES, LOSS OF USE, LOSS OF BUSINESS, LOSS OF PROFITS, BUSINESS INTERRUPTION, LOST DATA, LOSS OF BUSINESS INFORMATION, HARM TO REPUTATION, AND THE LIKE), OR ENHANCED, EXEMPLARY OR PUNITIVE DAMAGES, ARISING IN ANY WAY OUT OF OR CONNECTED WITH THE SOFTWARE OR ANY PART THEREOF, OR THE POSSESSION, USE, INABILITY TO USE, OR MALFUNCTION OF THE SOFTWARE OR ANY PART THEREOF, INCLUDING WITHOUT LIMITATION DAMAGE TO PROPERTY AND, TO THE MAXIMUM EXTENT PERMITTED BY LAW, DAMAGES FOR BODILY OR PERSONAL INJURY, EVEN IF VKERNEL OR ANY VKERNEL AUTHORIZED REPRESENTATIVE HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES OR LOSS. YOU FURTHER AGREE THAT YOUR REMEDY FOR ANY BREACH OF THIS AGREEMENT, WHETHER A BREACH OF WARRANTY OR OTHERWISE, SHALL BE LIMITED TO REPAIR OF, REPLACEMENT OF, OR REFUND OF THE PRICE PAID FOR, THE PRODUCT IN QUESTION (AT OWNER’S SOLE OPTION AND DISCRETION).

6.2 YOU FURTHER AGREE THAT IN NO EVENT WILL THE TOTAL AGGREGATE LIABILITY OF VKERNEL AND ITS DIRECTORS, OFFICERS, EMPLOYEES SHAREHOLDERS, REPRESENTATIVES OR AGENTS, OR THEIR RESPECTIVE SUCCESSORS, ASSIGNS, HEIRS, OR ESTATES FOR ANY CLAIMS, LOSSES, OR DAMAGES ARISING UNDER THIS AGREEMENT AND SERVICES PERFORMED HEREUNDER, WHETHER IN CONTRACT OR TORT, INCLUDING NEGLIGENCE AND STRICT LIABILITY, EXCEED THE TOTAL AMOUNT PAID BY YOU TO VKERNEL DURING THE PRECEDING TWELVE (12) MONTH PERIOD, EVEN IF VKERNEL HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH POTENTIAL CLAIM, LOSS, OR DAMAGE. THE FOREGOING LIMITATION OF LIABILITY AND EXCLUSION OF CERTAIN DAMAGES SHALL APPLY REGARDLESS OF ANY REMEDIES THAT MIGHT OTHERWISE BE AVAILABLE.

7. Termination.

7.1 Termination of License. VKernel may immediately terminate this Agreement if You have failed to pay the applicable license fee in a timely manner or if You have breached the terms of this Agreement, including, but not limited to, those contained in Sections 2.3 and 3.

7.2 Your Obligations upon Termination. Upon termination of this Agreement, You shall (1) immediately cease use of the Software and (2) return to VKernel or destroy all whole or partial copies of the Software with a certificate signed by Your duly authorized representative stating that You have returned or destroyed the original and all full and partial copies of the Software. This obligation requires permanent removal of the Software from all media and storage, regardless of form, including but not limited to computers.

7.3 Survival. In addition to those provisions that by their nature are intended to survive any termination or expiration of this Agreement or any license granted hereunder, Sections 2.3, 2.4, 3, 5, 6, 7.2, 8, 9, and 10, shall specifically survive such termination or expiration.

8. Confidentiality. The Software contains confidential and proprietary trade secrets of VKernel, and You may use the Software only pursuant to the license set forth herein. In addition, You shall not disclose the Software, or any part thereof, to any third party, and shall hold the Software in strictest confidence.

9. Indemnification. You shall indemnify, defend, and hold harmless VKernel and its affiliates, and their directors, officers, employees, shareholders, representatives and agents, and all of their respective successors, assigns, heirs, and estates, from and against any third party claims threatened or instituted against them arising out of any wrongful action or inaction by You in connection with the Software.

10. General.

10.1 No Agency. No agency, partnership, joint venture or other joint relation is created by this Agreement. You are not authorized to obligate VKernel or act in the name of VKernel in any way.

10.2 Entire Agreement. This Agreement is the complete and exclusive statement of the parties’ agreement concerning the subject matter of this Agreement, including, but not limited to the terms and conditions governing the licensing of the Software, and supersedes all proposals or prior agreements, oral or written, and all other communications between the parties relating to the subject matter hereof.

10.3 Modification. This Agreement may not be modified or amended except by a writing signed by authorized representatives of both parties. It is agreed that no use of trade or other regular practice or method of dealing between the parties hereto shall be used to modify, interpret, supplement, or alter in any manner the terms of this Agreement. The terms of this Agreement will supersede and be superior to any conflicting or contrary terms included in any Purchase Order or other submittal made by You.

10.4 Waiver. A waiver by either party of its rights hereunder shall not be binding unless contained in a writing signed by an authorized representative of the party waiving its rights. The non–enforcement or waiver of any provision shall not constitute a waiver of such provision on any other occasions unless expressly so agreed in writing.

10.5 Severability. If a court of competent jurisdiction deems any provision of this Agreement invalid, it shall be deemed omitted from this Agreement. If any provision is deemed unenforceable by a court of competent jurisdiction, such provision shall be valid to the extent permitted by law.

10.6 Assignment. This Agreement and the rights granted under it may not be assigned or transferred by You without the written consent of VKernel. Any attempt to do so is void and of no force or effect. This Agreement shall be binding on the parties respective successors, permitted assigns, and heirs and estates (if applicable).

10.7 Notices. All notices shall be in writing and shall be sent to the parties at the addresses provided at the commencement of this Agreement (or to such other address as either party may specify in writing) by (I) first class mail, certified or registered, return receipt requested, postage prepaid, (II) overnight courier service, (III) messenger, or (IV) confirmed facsimile transmission.

10.8 Governing Law. This Agreement shall be governed by and construed and enforced in accordance with the laws of the State of New Hampshire USA as it applies to a contract made and performed therein, without regard to its conflict of laws principles. In no event shall either the United Nations Convention on Contracts for the International Sale of Goods or any adopted version of the Uniform Computer Information Transactions Act (UCITA) apply to, or govern, this Agreement. In the event of any dispute arising under this Agreement, You irrevocably submit to the jurisdiction and venue of the state and federal courts located in New Hampshire, USA Any legal action brought under this Agreement shall be conducted in the English language. If the customer/licensee is located in France or Quebec, Canada, the following clause applies: The parties hereby confirm that they have requested that this Agreement be drafted in English. Les parties contractantes conferment qu’elles ont exige quele present contrat et tous les documents associes soient rediges en anglais.

10.9 Export Compliance. This agreement is expressly made subject to any and all laws, regulations, orders, or other restrictions on the export from the United States of America of the Software or information about the Software that may be imposed from time to time by the government of the United States of America. You shall not export the Software, including documentation, or information about the Software, including documentation, unless in compliance with such laws, regulations, orders, or other restrictions. Without in any way limiting the foregoing, You hereby (1) assure VKernel that You shall adhere to the United States Export Administration laws and regulations and shall not export, re–export or release any software, source code, technical data, or products received from VKernel or the direct product of such software, source code or technical data to any proscribed country listed in the United States Export Administration laws and regulations unless properly authorized by the United States Government, and (2) agree that this assurance will be honored even after expiration of this Agreement. You acknowledge that You are familiar with United States Government export policy and regulations and undertake to be and remain in full compliance with such policy and regulations. You may not export or re–export this product in violation of any applicable laws or regulations including, without limitation, United States export regulations or the laws of the country in which You reside.

10.10 United States Government Rights. If You are a United States Government end–user or are acquiring the Software and documentation on behalf of the United States Government, the following provisions apply: The software and documentation are “commercial items,” 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 or 48 C.F.R. § 227.7202, as applicable. Consistent with 48 C.F.R. § 12.212 or 48 C.F.R. §§ 227.7202–1 through 227.7202–4, as applicable, the commercial computer software and commercial computer software documentation are being licensed to U.S. 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 set for the VKernel standard commercial agreement for this software. Unpublished rights reserved under the copyright laws of the United States.

10.11 Open–Source Acknowledgements, Disclaimers. The following open–source code is either utilized in the development of or embedded in the Software and under the terms of the various applicable licenses, VKernel makes the following acknowledgements as variously required.

AXIS 1.4. Copyright © 2004 World Wide Web Consortium, (Massachusetts Institute of Technology, European Research Consortium for Informatics and Mathematics, Keio University). All Rights Reserved. This work is distributed under the W3C® Software License [1] in the hope that it will be useful, but WITHOUT ANY WARRANTY; without even the implied warranty of MERCHANTABILITY or FITNESS FOR A PARTICULAR PURPOSE.

AXIS2 1.2 Authored and maintained by the Apache Software Foundation, the Apache License allows the use of source code for the development of both free/open source and proprietary/closed source software projects. Axis2 provides the SOAP service for the server and client engines and the data binding framework (ADB) for creation of proxies and stubs.

Dom4j 1.6.1. Copyright © 2001–2005 MetaStuff, Ltd. All Rights Reserved. Redistribution and use of the software and associated documentation, with or without modification, are permitted under the terms, conditions and disclaimers contained in the license thereto.

JSON 1.0 Copyright 2006–2008 the original author or authors. Authored and maintained by the Apache Software Foundation, the Apache License allows the use of source code for the development of both free/open source and proprietary/closed source software projects. The company uses this for transmitting data between the web server and the client browser.

Lucene 2.3.2 Licensed under the Apache License, Version 2.00. Authored and maintained by the Apache Software Foundation, the Apache License allows the use of source code for the development of both free/open source and proprietary/closed source software projects. The company uses this for the text indexing engine in the Search appliance.

10.12 Submissions. Should You decide to transmit any materials or other information to VKernel (including, without limitation, ideas, concepts or techniques for new or improved services and products), whether as information, feedback, data, questions, comments, suggestions or the like, You agree that such submissions are unrestricted and shall be deemed non–confidential and You automatically grant VKernel and its assigns a non–exclusive, royalty–free, worldwide, perpetual, irrevocable license, with the right to sublicense, to use, copy, transmit, distribute, create derivative works of, display and perform the same.

10.13 Injunctive Relief. Without in any way limiting the applicability of any equitable or other relief that might be available for any breach of this Agreement, You acknowledge and agree that money damages would not be a sufficient remedy for breach of any provisions of this Agreement relating to confidentiality and restrictions relating to use of the Software, and that VKernel shall be entitled to equitable relief, including but not limited to immediate, temporary and permanent injunctive relief, and specific performance, as a remedy for any such breach, without having to post a bond or other security. Such remedies shall not be deemed to be the exclusive remedies for a breach of this Agreement, but shall be in addition to all other remedies available at law or equity.

10.14 Paragraph Headings. Paragraph headings contained herein are for information purposes only and are of no independent legal force or effect.