
BAKBONE SOFTWARE

SOFTWARE LICENSE AND SUPPORT SERVICES AGREEMENT

-IMPORTANT-

Read This Carefully Before Opening or Downloading the Software
and User Documentation, or Other Media Package.

DO NOT PROCEED WITH THE DOWNLOADING, INSTALLATION, EVALUATION OR
USE OF THE BAKBONE SOFTWARE, INC. OR ANY OF ITS AFFILIATES,
RESPECTIVELY, AS AND WHEN APPLICABLE (INDIVIDUALLY, "BAKBONE"
AND COLLECTIVELY, THE "BAKBONE GROUP") OFFERED PROPRIETARY
AND/OR THIRD PARTY PROPRIETARY LICENSED SOFTWARE ("SOFTWARE")
AND USER DOCUMENTATION ("DOCUMENTATION") (COLLECTIVELY,
"SOFTWARE PRODUCT") THAT, AS APPLICABLE, (I) YOU PLAN TO
DOWNLOAD, OR (II) ACCOMPANIES THIS SOFTWARE LICENSE AND SUPPORT
SERVICES AGREEMENT ("AGREEMENT") OR (III) IS PROVIDED TO YOU BY
AN AUTHORIZED DISTRIBUTOR, OEM, VAR OR OTHER REMARKETER OF
BAKBONE (COLLECTIVELY, "DISTRIBUTOR") UNTIL YOU, ON BEHALF OF
YOUR BUSINESS ENTITY, HAVE READ AND AGREED TO THIS AGREEMENT. BY
DOWNLOADING, CLICKING YOUR ACCEPTANCE ACKNOWLEDGMENT,
INSTALLING, EVALUATING OR OTHERWISE USING ANY OF THE SOFTWARE
PRODUCTS OR SERVICES PROVIDED BY BAKBONE  (OR AUTHORIZING ANY
OTHER PERSON TO DO SO), YOU AND YOUR BUSINESS ENTITY ARE
CONSENTING TO BE BOUND BY AND WILL BE A PARTY TO THIS AGREEMENT.
YOU REPRESENT THAT YOU HAVE THE AUTHORITY TO BIND YOUR BUSINESS
ENTITY TO THIS AGREEMENT.  IF YOU DO NOT ACCEPT THE TERMS AND
CONDITIONS OF THIS AGREEMENT, YOU DO NOT HAVE ANY RIGHT TO
DOWNLOAD, INSTALL, EVALUATE, USE OR OTHERWISE BENEFIT FROM THE
SOFTWARE PRODUCTS OR SERVICES.

1.	EVALUATION LICENSE.
Should you elect to first evaluate the Software ("Evaluation
Software"), and notwithstanding any provision of this Agreement
to the contrary, you are granted a nonexclusive, nontransferable
restricted term license ("Evaluation License") by BAKBONE for
the sole purpose of evaluation of the Software, in object code
form, for internal use purposes.  While under an Evaluation
License, You agree (i) not to use the Evaluation Software in a
production environment, unless otherwise authorized in advance
and in writing by BAKBONE, (ii) any and all results, including,
but not limited to any benchmarks, shall only be disclosed by
you to BAKBONE, and (iii) that such evaluation is not for
competitive examination purposes or development analysis
purposes.  The term of your Evaluation License ("Evaluation
Period") shall commence on the earlier date that you download
the Evaluation Software or you are otherwise in receipt of the
Evaluation Software temporary evaluation key and will expire
after the number of days as specified for the applicable
Software Product or version under evaluation, at
www.bakbone.com, unless such applicable Evaluation Period is
extended in writing by BAKBONE.  BAKBONE advises you that the
Evaluation Software through the provided temporary evaluation
key has an expiration time functionality that deactivates the
Evaluation Software's functions upon the expiration date of the
Evaluation Period.   The Evaluation Software may not be
transferred, and is licensed to you without any fee.  THE
EVALUATION SOFTWARE IS PROVIDED TO YOU "AS IS," WITHOUT ANY
REPRESENTATIONS OR WARRANTIES, EXPRESS OR IMPLIED, INCLUDING,
BUT NOT LIMITED TO MERCHANTABILITY OR FITNESS FOR ANY PARTICULAR
PURPOSES.    To the maximum extent permitted by applicable law,
you agree to release, defend, indemnify and hold BAKBONE
harmless from any claims and/or damages of any kind by any party
or entity, arising out of your use of any Evaluation Software.
You hereby acknowledge that BAKBONE shall not be responsible for
any damages or losses resulting from, without limitation, any
data or information loss and from any and all system failure
that may occur during or upon expiration of the Evaluation
Period.   All other terms and conditions of this Agreement shall
otherwise apply to any Evaluation License granted hereunder.
Should there be any conflict between the other provisions of
this Agreement and this Section 1, the conflicting terms or
conditions in this Section 1 shall control.

2.	GRANT OF LICENSE.
If a production license(s) for the Software Product is (are)
purchased by you, then this Section 2 shall be applicable.
BAKBONE grants to you, a personal, nonexclusive,
nonsublicensable, nonassignable license to use the corresponding
licensed number of copies of the Software, in object code form
only, including any Documentation, updates, additional modules,
or additional software provided by BAKBONE or through an
authorized Distributor solely for your own internal use
operations (other than for development or competitive analysis
purposes) on the authorized number of computer systems, platform
types, servers and other platforms as indicated by your purchase
order and for which you have paid the applicable licenses fees
for the country in which the Software Product was to be located.
You are permitted to copy the Software into the memory of the
authorized hardware solely as necessary to use the Software in
accordance with this Agreement.  You may use one copy of the
Software (i) on the authorized hardware at any one time; and
(ii) you may only make an additional copy of the Software
Product into any computer-readable or printed form for backup or
archival purposes required in support of your use of the
Software Product pursuant to this Agreement.

3.	CONFIDENTIALITY AND PROPRIETARY RIGHTS.
You agree (i) not to disclose to any third party the Software
Product, (ii) to take all reasonable steps necessary to protect
the Software Product from access by or disclosure to any third
party, and (iii) will immediately advise BAKBONE of any
unauthorized disclosure or access to the Software Products.  You
acknowledge that title and full ownership, trade secrets,
copyright and patent rights to the Software Products remain with
BAKBONE, or the respective suppliers, whether nor not any
portion thereof is or may be validly copyrighted or patented.
The Software Product is protected by United States, local and
international copyright and/or patent laws and international
treaty provisions.

4.	MODIFICATIONS AND REVERSE ENGINEERING.
Except as otherwise provided herein, you shall not copy, modify,
reverse engineer, map, decompile, enhance, or make derivative
works or compilations or portions or otherwise the source code
internal structure, organization or any other aspect of the
Software, or any part thereof.  Any unauthorized modifications,
derivative works, or any other intellectual property, created
directly or indirectly using or referring to the Software, or
components thereof, or enhancements of the Software, shall
belong exclusively to BAKBONE, and/or the respective suppliers
and you hereby assign any and all rights in them (including
without limitation moral rights) to BAKBONE.  You hereby agree
to promptly enter into any further documentation required by
BAKBONE in its sole discretion to legally or commercially effect
such assignment, including, without limitation, ensuring that
your employees and/or contractors do the same.  You hereby
expressly waive any rights you may obtain inconsistent with the
foregoing through application of the law of any other country or
otherwise.  You hereby acknowledge that you have no right
whatsoever and shall have no right whatsoever, whether by the
express terms of this Agreement or by any course of conduct, to
use, review, or access the source code for the Software.

5.	OTHER RESTRICTIONS.
You may not sell, sublicense, transfer or assign the Software
Product, or in part, without the express written consent of
BAKBONE.  You may not modify or translate the Software Product.
You further agree: (i) not to remove any Software Product
identification or notices of any proprietary or copyright
restrictions from the Software or any Documentation; (ii) not to
develop any derivative works thereof or include any portion of
the Software in any other software program; and (iii) not to
develop methods to enable unauthorized parties to use or access
the Software Product.

6.	LIMITED WARRANTY AND REMEDY.
If and when you are provided with a copy of the Software Product
via a physical media,  BAKBONE warrants the physical media, and
the physical documentation, to be free of defects in materials
and workmanship for a period ninety (90) days from the date of
shipment.  If BAKBONE receives notification within this warranty
period of any such defects and such notification is determined
to be correct, BAKBONE will, at its sole option and discretion,
repair or replace the media or documentation.  The foregoing is
your sole and exclusive remedy and states BAKBONE's entire
liability arising out of this warranty.

7.	SUPPORT SERVICES.

7.1	Evaluation Support Services.
During the Evaluation Period for a Software Product, you will be
entitled to receive limited telephone, fax and email support
during normal business hours of the BAKBONE GROUP entity that is
responsible for overseeing your evaluation of the Software
Product as to any installation and usage issues related to the
Software Product solely to facilitate your evaluation of the
Software pursuant to Section 1.

7.2	Support Services.
If and when you subscribe for support services ("Support") for
the Software Product then you will be entitled to the support
services described below and to the extent then currently
indicated at www.bakbone.com.  The initial Support period
("Support Period") commences on the date that you subscribe for
such services, expires after the applicable numbers of years for
Support you purchase, and renews on an annual basis thereafter
at BAKBONE's then current noticed terms and pricing, unless (i)
either party gives the other no less than thirty (30) days prior
written notice of non-renewal, or (ii) both parties agree to a
specific multi-annual period.  Should you discontinue your
Support subscription and thereafter desire to re-subscribe, you
will be responsible for the payment of BAKBONE's then current
reinstatement fees in addition to the payment of the then
current Support fees.

Support shall include, if and to the extent subscribed: (i)
telephone support during the normal business hours of the
responsible BAKBONE GROUP entity, unless you have subscribed for
additional support coverage, (ii) fax and email support, and
(iii) all error corrections, updates and revisions that is made
generally available by BAKBONE to its other Support subscribers.
No on-site support services are provided by BAKBONE.

8.	NO OTHER WARRANTIES.
THE LIMITED WARRANTY ABOVE IS EXCLUSIVE AND IN LIEU OF ALL OTHER
CONDITIONS AND WARRANTIES FOR THE SOFTWARE AND DOCUMENTATION.
THE BAKBONE GROUP, AND ITS SUPPLIERS AND DISTRIBUTORS MAKE NO
OTHER CONDITIONS OR WARRANTIES, EXPRESS, IMPLIED, STATUTORY OR
OTHERWISE, AND EXPRESSLY DISCLAIM ALL OTHER CONDITIONS AND
WARRANTIES, INCLUDING BUT NOT LIMITED TO, IMPLIED CONDITIONS OR
WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE,
AND NON-INFRINGEMENT FOR THE SOFTWARE AND DOCUMENTATION.

9.	LIMITED LIABILITY.
TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT
AND UNDER NO LEGAL THEORY SHALL THE BAKBONE GROUP OR ITS
SUPPLIERS AND DISTRIBUTORS BE LIABLE TO YOU FOR ANY COSTS OF
SUBSTITUTE PRODUCTS, OR FOR ANY CONSEQUENTIAL, SPECIAL,
INCIDENTAL, PUNITIVE OR INDIRECT DAMAGES OF ANY KIND ARISING OUT
OF THE LICENSE OR, USE OF, OR INABILITY TO USE ANY SOFTWARE OR
DOCUMENTATION, OR THE SUPPORT SERVICES EVEN IF THE BAKBONE GROUP
OR ITS SUPPLIERS AND DISTRIBUTORS HAVE BEEN ADVISED OF THE
POSSIBILITY OF SUCH DAMAGES.  IN NO EVENT SHALL THE BAKBONE
GROUP'S OR ITS SUPPLIERS' OR DISTRIBUTORS' LIABILITY EXCEED THE
PAID LICENSE FEE FOR THE AFFECTED SOFTWARE PRODUCT OR THE PAID
SUPPORT SUBSCRIPTION FEE FOR THE AFFECTED SUPPORT FOR THE THEN
CURRENT SUPPORT PERIOD.

10.	TERM.
This Agreement and the applicable license grant is effective
until terminated.  You may terminate it at any time by
destroying the Software together with all copies, modifications
and merged portions in any form.  This Agreement and license
grant will also terminate automatically upon your failure to
comply with any term or condition of this Agreement.  In the
event of such termination, you agree to promptly destroy the
Software Product together with all copies, modifications and
merged portions in any form.  Sections 1, 3, 4, 5, 8, 10, 11, 12
and 13 shall survive any termination or expiration of this
Agreement or license grant.

11.	GOVERNING LAW.
This Agreement shall be governed by and interpreted only in
accordance with the laws of the State of California, U.S.A.,
without reference to conflict of laws principles.

12.	FORUM SELECTION AND DISPUTE RESOLUTION

(a)	Except as otherwise provided below, any controversy or claim
arising out of or relating to this Agreement shall be submitted
to final and binding arbitration before, and in accordance with,
the rules of the International Chamber of Commerce ("ICC").  If
the claim seeks damages of U.S. $100,000 or less, it shall be
decided by a single independent arbitrator.  If the claim seeks
damages in excess of U.S. $100,000, it shall be decided by three
(3) independent arbitrators, one nominated by each party and one
selected by the ICC, in accordance with ICC's rules and
procedures.  The arbitration process, including selection of the
arbitrator or arbitrators, exchanges of requests for information
and the arbitration hearing shall be completed within sixty (60)
days following the initiation of the arbitration by either
party.  The arbitrator(s) shall issue a written judgment within
ten (10) days following the arbitration hearing.  Judgment upon
any arbitration award may be entered in any court having
jurisdiction thereof.  This provision is self executing, and in
the event that either party fails to appear at any properly
noticed arbitration proceeding, an award may be entered against
such party notwithstanding said failure to appear.  Such
arbitration shall be conducted in San Diego, California.

(b)	Notwithstanding the foregoing: (i) any claim relating to the
validity of the Software Products' copyright or patents, the
BAKBONE trademarks, or other proprietary technology or
intellectual property shall not be determined by arbitration,
but only by a court located in the Southern U.S. Federal
District of California, to whose jurisdiction the parties hereby
consent or such other court with BAKBONE, in its sole discretion
as owner of the licensed intellectual property, shall select;
and (ii) you acknowledge that any breach of your obligations
under this Agreement which relates to the proprietary rights, or
which is otherwise not subject to remedy by monetary damages,
will cause BAKBONE irreparable harm, and that BAKBONE
accordingly will be entitled to injunctive and other equitable
relief in addition to all other remedies provided by this
Agreement or available at law, in any court of competent
jurisdiction.

13.	GENERAL.
This is the entire Agreement, including any and all agreed to
price and payments terms, between you and BAKBONE, and
supersedes any prior agreement or representations, if any,
whether written or oral, relating to the subject matter of this
Agreement.  The parties disclaim the application of the United
Nations Convention on the International Sale of Goods.  You may
not export or re-export the Software or documentation without
the appropriate United States or foreign government licenses.
If any provision of this Agreement is ruled invalid, such
invalidity shall not affect the validity of the remaining
portions of this Agreement.  This Agreement can only be modified
in writing by the parties.  Any and all waivers of a party must
also be in writing.


