End User License Agreement

NComputing Support and Subscription (SnS) Terms and Conditions As of June 25, 2013
OF DEALING OR USAGE IN TRADE. NO ADVICE OR INFORMATION, WHETHER ORAL
OR WRITTEN, OBTAINED FROM NCOMPUTING OR ELSEWHERE SHALL CREATE ANY
WARRANTY NOT EXPRESSLY STATED IN THIS AGREEMENT. SOME JURISDICTIONS
DO NOT ALLOW THE DISCLAIMER OF IMPLIED WARRANTIES, SO THE DISCLAIMER
OF IMPLIED WARRANTIES ABOVE MAY NOT APPLY TO THE CUSTOMER.
5. Limitation of Liability. EXCEPT TO THE EXTENT THAT LIABILITY MAY NOT BY LAW
BE LIMITED OR EXCLUDED, IN NO EVENT WILL NCOMPUTING OR OTHER SERVICE
PROVIDERS BE LIABLE FOR LOSS OR CORRUPTION OF DATA, LOST PROFITS OR
LOSS OF CONTRACTS, COST OF PROCUREMENT OF SUBSTITUTE PRODUCTS OR
OTHER SPECIAL, INCIDENTAL, PUNITIVE, CONSEQUENTIAL OR INDIRECT DAMAGES
ARISING FROM THE SERVICES OR PROVISION THEREOF, HOWEVER CAUSED AND
ON ANY THEORY OF LIABILITY (INCLUDING, WITHOUT LIMITATION, NEGLIGENCE).
THIS LIMITATION WILL APPLY EVEN IF NCOMPUTING OR ANOTHER SERVICE
PROVIDER HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, AND
NOTWITHSTANDING THE FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED
REMEDY. IN NO EVENT SHALL NCOMPUTING’S OR OTHER SERVICE PROVIDERS’
AGGREGATE LIABILITY EXCEED THE AMOUNT PAID BY YOU FOR THE SERVICES IN
THE APPLICABLE SERVICES PERIOD. YOU ACKNOWLEDGE AND AGREE THAT THIS
PROVSION REFLECTS A REASONABLE ALLOCATION OF RISK BETWEEN THE
PARTIES.
6. Term and Termination.
a. Term. Services can be purchased for duration of a 1- to 5-year term. This Agreement will
commence on the Effective Date and continue in effect for the term specified in the Order;
the “Initial Services Period”. Subject to Customer's payment of the applicable Services
Fees, the Agreement will automatically renew on each anniversary of the Effective Date
for successive one (1) year terms (each, a “Renewal Services Period”) unless either
party provides the other party with written notice of its intention not to renew at least sixty
(60) days prior to the end of the Initial Services Period or the then-current Renewal
Services Period. Services shall renew during any Renewal Services Period at the same
Support Plan and Service Level as that ordered during the Initial Services Period.
b. Termination. NComputing may suspend performance of Services if Customer fails to
meet its obligations as set forth under this Agreement. NComputing may terminate
Services and/or this Agreement, at its sole discretion, if such failure continues for thirty
(30) days after NComputing’s written request to Customer to meet such obligations.
NComputing may terminate the Agreement and all Services at any time if Customer is in
material breach of this Agreement or the license agreement of the applicable Software.
Customer may terminate this Agreement at any time on written notice to NComputing,
subject to all Service Fees being non-refundable as set forth in Section 3.1. Following any
termination of this Agreement, NComputing shall immediately invoice Customer for all
accrued fees and charges and all reimbursable expenses, and Customer shall pay the
invoiced amount immediately upon receipt of such invoice.
c. Survival. Notwithstanding the expiration or termination of this Agreement or any renewal
period hereof, it is acknowledged that those rights and obligations that by their nature are
intended to survive such expiration or earlier termination will survive, including, without
limitation, the limitations of liability set forth herein and each party’s confidentiality
obligations under Section 7. The termination of this Agreement shall not limit or otherwise
affect the respective rights and obligations of the Parties which accrued prior to the date of
termination, and which shall continue to exist following the termination of this Agreement.
7. Confidentiality. By virtue of this Agreement, the parties may have access to information
that is identified by the other party as confidential or proprietary (“Confidential
Information”). The parties agree to disclose only information that is required for the
performance of obligations under this Agreement. Confidential Information shall be limited to
pricing offered by NComputing, the Software and/or Services, and all information clearly
identified as “confidential” at the time of disclosure. Confidential Information shall not include
information that: (a) is or becomes a part of the public domain through no act or omission of
the other Party; (b) was in the other party’s lawful possession prior to the disclosure and had
not been obtained by the other party either directly or indirectly from the disclosing party; (c)