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HomeMy WebLinkAboutAgreement A-18-330 with Commvault Systems Inc.pdfAgreement No. 18-330 1 AGREEMENT 2 3 THIS AGREEMENT is made and entered into this 12th day of June, 2018 ("Effective Date"), by 4 and between the COUNTY OF FRESNO, a political subdivision of the State of California, hereinafter 5 referred to as "COUNTY", and Commvault Systems, Inc., a Delaware corporation, whose address is 1 6 Commvault Way, Tinton Falls, New Jersey, 07724, hereinafter referred to as "Commvault" or 7 "COMMVAUL T". 8 WI T N E S S ET H: 9 WHEREAS, COUNTY desires to establish the integrity, rights, and value of the software and 10 licenses currently deployed and to provide for the purchase of additional capacity licensing, 11 maintenance, annual upgrades and support services for these systems for its COUNTY departments, as 12 needed; and 13 14 WHEREAS, Commvault desires to confirm that software and licenses previously purchased 15 directly from Commvault or a software reseller have the same rights and value and are determined to be 16 licensed in perpetuity or on a subscription basis, as applicable, by the COUNTY, in accordance with the 17 terms of Commvault's End User License and Limited Warranty Agreement, attached as Exhibit B, dated 18 November, 2017, between the parties (the "EULA"). 19 20 Now, therefore, the COUNTY and Commvault, for good and valuable consideration, do hereby 21 agree as follows: 22 23 Support Terms and Conditions 24 1 SUPPORT FEATURES/ SUPPORT RESPONSIBILITY 25 26 1.1 27 28 Commvault support ("Support") will only be provided on all, but not less than all, Commvault Licenses that are used in COUNTY's software configuration. If COUNTY wishes to purchase maintenance and Support for less than 100% of its Licenses, it shall forfeit the non-supported -1- -2- 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Licenses. Any such forfeited License must be repurchased for future use. 1.2 The features and specifications of the Support shall be provided in accordance with Commvault’s then-current policies, which may be amended from time to time, at Commvault’s discretion. As part of maintenance and Support, COUNTY shall be entitled to ongoing release updates, if and when available, for the Products during the Term. 1.3 Beginning on the Effective Date and continuing for the life of this Agreement (Section 6, TERM AND CONDITIONS), Commvault shall provide Support pursuant to the specific support plan as chosen by COUNTY. Commvault may perform Support itself or subcontract the performance of the Support, in whole or in part. Support shall be provided in accordance with Commvault’s Global Customer Support Services Guide, a current copy of which may be found at ma.commvault.com/Guides/Commvault-Global-Customer-Support-Guide-2018-01-31.pdf. 1.4 Exhibit A – Software Products, attached hereto as “Exhibit A” and incorporated herein by reference establishes the Software Products to be provided and Support to be performed, and respective fees (hereinafter “Fees”) to be paid by COUNTY. 1.5 Attached as “Exhibit B” is Commvault Systems End User License and Limited Warranty Agreement (“EULA”) which is hereby incorporated by reference. 2 COUNTY RESPONSIBLITIES COUNTY shall: a) Follow all of Commvault’s published instructions, which include administrative documentation and release notes provided to the COUNTY with respect to use and operation of the Products; b) Immediately notify Commvault’s county service center of any Support requirement, at (877) -3- 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 780-3077 or at any other telephone number(s) as Commvault may designate from time to time; c) Provide sufficient information at the time the trouble call is placed to identify the product requiring Support. Such information shall include, as applicable: remote dial-in access number, product-type, and CommCell identification number; d) To the extent possible, provide Commvault at the time of the trouble report call with sufficient information to allow Commvault the opportunity to determine the cause of the problem over the telephone; e) Properly maintain, at its expense, all network Support and/or third party equipment required in order to facilitate the product properly functioning and, if applicable, remote dial-in access; f) Provide Commvault personnel with full and safe access to the premises and products in connection with Commvault’s performance of its obligations; g) Maintain products at the current generally available product version levels; and, h) Otherwise cooperate with Commvault to resolve any trouble report or Support issue. 3 ADDITIONAL PRODUCTS OR SUPPORT Upon COUNTY’s request, and under direction of the Chief Information Officer or his designee, Exhibit A may be amended to include additional products and Support, and shall co-terminate with the Term. The COUNTY will not purchase additional products and Support exceeding the maximum expenditure limits. 4 PRODUCT RELOCATION COUNTY is free to relocate Products, however, COUNTY shall provide to Commvault at least ten (10) days prior written notice of Product relocation. COUNTY shall provide Commvault -4- 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 information reasonably requested by Commvault, including any new internet protocol address. COUNTY acknowledges that the Product licenses are dependent on an internet protocol address and in the event that the Products are relocated, the Products will disable themselves immediately. COUNTY waives any and all claims, including but not limited to those regarding data loss/compromise, resulting from such an event. 5 EXCLUSIONS FROM SUPPORT / PRODUCT EXCHANGE – RETURN – END OF LIFE 5.1 Commvault shall not be obligated to furnish Support, nor shall Commvault be liable under this Agreement, or any other, for repair or replacement of Products, or additions thereto, due to improper use, theft; natural disasters, strikes, riots, sabotage, acts of war, changes or modifications by other than Commvault personnel or without Commvault supervision or authority, shock, electrical damage, accident, fire, water damage, air conditioning failure, and/or failure by COUNTY to maintain the site specifications recommended by Commvault. The dispatch of a Customer Engineer to provide such Support will be subject to availability. If Support is required due to any of the above causes, Commvault will provide such Support at prevailing time and material rates, plus actual expenses incurred. Commvault shall have no obligation to perform any Support if the provisioning of such Support would pose a health or safety risk to Commvault’s personnel. 5.2 In the event COUNTY requests replacement of Products which are rendered un-repairable or unusable due to an event set forth in Section 5.1, COUNTY acknowledges and agrees that Commvault shall have the right to invoice COUNTY for such replacement Products. All Products returned to Commvault for exchange shall become the property of Commvault. Replacement Products delivered to COUNTY shall become COUNTY’s property. 5.3 COUNTY acknowledges that, from time to time, Commvault may obsolete certain products and that COUNTY may be required to update their product version level in order to meet certain -5- 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 support requirements. The Support services provided hereunder remain subject to Commvault’s Product Obsolescence Policy, which is available on Commvault’s web site at ma.commvault.com/Support/ProductSupport. 6 TERM AND CONDITIONS 6.1 This Agreement shall begin on the Effective Date and shall continue for the period of three (3) years (“Initial Term”), with the option of two (2) one-year renewal periods, based upon payment of the annual fee. 6.2 The COUNTY may terminate this Agreement, or Support for any Product, for: a) Non-Allocation of Funds – The terms of this Agreement, and the services to be provided thereunder, are contingent on the approval of funds by the appropriating government agency. Should sufficient funds not be allocated, the services provided may be modified, or this Agreement terminated by giving Commvault thirty days (30) advance written notice. b) Breach of Contract: 1) An illegal or improper use of funds, 2) A failure to comply with any term of this Agreement; 3) Improperly performed services where Commvault has been notified of the breach and been given thirty (30) days to commence to cure such breach and has failed to cure such breach. c) In no event shall any payment by the COUNTY constitute a waiver by the COUNTY of any breach of this Agreement or any default which may then exist on the part of Commvault. Neither shall such payment impair or prejudice any remedy available to the COUNTY with respect to the breach or default. The COUNTY shall have the right to demand of Commvault -6- 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 the repayment to the COUNTY of any funds disbursed to Commvault under this Agreement, which in the judgment of the COUNTY were not expended in accordance with the terms of this Agreement. In the event of a termination by COUNTY, COUNTY shall only be entitled to a refund of prepaid unused Maintenance and Support fees. d) Without Cause - Under circumstances other than those set forth above, this Agreement may be terminated by COUNTY upon giving Commvault ninety (90) days written notice of an intention to terminate prior to the annual anniversary of the Effective Date. 6.3 Commvault may terminate this Agreement, or Support for any product set forth in Exhibit A, in accordance with the terms of the EULA and as follows: (a) for COUNTY’s non-performance of any obligation hereunder upon thirty (30) days written notice; and, (b) for non-payment by COUNTY upon ten (10) days written notice following the start of the delinquency period as set forth in section 7.3. 7 COMPENSATION/INVOICING 7.1 License Services a) The Initial Term of this Agreement establishes a recurring cost of $115,085 for products and maintenance for each of the first three years of the Initial Term. Additional products and associated maintenance fees may be added to the Agreement, in the amount of $84,915 for each of the first three In no event will the COUNTY purchase services or goods provided under this Agreement exceeding Six Hundred Thousand Dollars ($600,000) during the Initial Term. Maximum budgetary expenditure limits will be increased by Three Hundred Thousand Dollars ($300,000) per year, for elective years four (4) and five (5). In no event shall COUNTY purchase services or goods provided under this Agreement exceeding One Million, Two Hundred Thousand Dollars for the complete five year period (overall Term). b) The Chief Information Officer (CIO) may authorize changes to Exhibit A, allowing for -7- 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 additional hardware and software components, and associated maintenance, to be added, not to exceed the limits as stated in 7.1(a). c) Commvault may increase maintenance and support fees with thirty (30) days advance written notice to COUNTY, provided that Commvault may not increase Support fees more than once in any one (1) year period. Overall, per annum fees may not increase by more than 3% from year three (3) to year four (4), and from year four (4) to year five (5), respectively. 1) Billing and payment to Commvault shall be facilitated through Dell Financial Services, as per contact details listed below for the first three years of this Agreement (Initial Term): Dell Financial Services PO Box 81577 Austin, TX 78708-1577 2) Any modifications to Exhibit A, approved by the CIO, shall be determined via agreement between Commvault and the COUNTY, and solicited in prorated form through Dell Financial Services for each of the individual years, across the Initial Term. 3) Payments for each of the one-year extensions (Extended Term) shall be made to Commvault Systems, Inc. directly, and shall not involve payment to the third party financier Dell Financial Services. d) COUNTY may request professional services within the terms of this Agreement (“Professional Services”). Hourly rates and other time and materials rates for any Professional Services shall be those in effect when the Support is rendered and shall be payable as specified in the written request for quote and resulting quote and invoice for such Fees. Any and all pre-paid Professional Services Credits, including training courses and eLearning materials, will expire one (1) year from the date of purchase if not used. -8- 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 e) In no event will the COUNTY purchase services performed and goods provided under this Agreement exceeding One Million Two Hundred Thousand Dollars ($1,200,000). In no event will the COUNTY seek to procure additional goods or services beyond the limits of this Agreement nor will Commvault provide goods and services beyond the limits of this Agreement. 7.2 Commvault may adjust the Support Fees during the Term if material specifications, attachments or features of the products change. 7.3 COMMVAULT shall submit invoices on an annual basis in advance, either electronically or via mail, to the County of Fresno ISD-IT Accounts 333 W. Pontiac Way, Fresno, CA 93612, or Business Office (itsdbusinessoffice@fresnocountyca.gov). COUNTY will pay CONTACTOR in US dollars within forty-five (45) days of receipt of an approved invoice. However, Commvault reserves the right to change payment terms upon written notice to COUNTY if COUNTY is delinquent in the payment of any invoice and if Commvault deems such change appropriate. Commvault reserves the right to suspend Support, without any liability to COUNTY, in the event any invoice remains unpaid for more than sixty (60) days beyond the date of invoice, unless such non-payment is the result of a bona fide dispute. 7.4 If COUNTY has received a special discount based on volume or term commitment and COUNTY fails to meet that commitment for any reason other than a bona fide dispute, Commvault reserves the right to back-bill the full amount of such discount. 7.5 It is understood that all of Commvault’s expenses incidental to Commvault’s performance of maintenance and Support services under this Agreement shall by borne by Commvault unless otherwise approved for reimbursement in writing by COUNTY prior to the incurring of such expenses. -9- 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 8 TAXES, DUTIES, AND TARIFFS COUNTY agrees to pay amounts equal to any applicable taxes or other governmental charges imposed or levied on, or in connection with, the Support rendered, the products or other transactions under this Agreement. These taxes shall include, by way of illustration and not by limitation, sales taxes, use and excise taxes; all duties, tariffs, and taxes (such as Value Added Tax (VAT)) imposed or levied by the US government, and state or local authority, and any foreign government or agency; and any taxes or similar amounts paid/payable by Commvault except taxes based on Commvault’s net income. 9 INSURANCE Without limiting the COUNTY's right to obtain indemnification from Commvault or any third parties, Commvault, at its sole expense, shall maintain in full force and effect, the following insurance policies or a program of self-insurance, including but not limited to, an insurance pooling arrangement or Joint Powers Agreement (JPA) throughout the term of the Agreement: A. Commercial General Liability Commercial General Liability Insurance with limits of not less than One Million Dollars ($1,000,000) per occurrence and an annual aggregate of Two Million Dollars ($2,000,000). This policy shall be issued on a per occurrence basis. Specific coverage may include completed operations, products liability, contractual liability, Explosion-Collapse- Underground, fire legal liability or any other liability insurance deemed necessary because of the nature of this contract. B. Automobile Liability Automobile Liability with limit no less than $1,000,000 per accident for bodily injury and property damage. Coverage should include owned, non-owned and hired vehicles used in connection with this Agreement. -10- 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 C. Technology Professional Liability (Errors and Omissions) Technology Professional Liability (Errors and Omissions) Insurance appropriate to Commvault’s profession, with limits not less than $2,000,000 per occurrence or claim, $2,000,000 aggregate. Coverage shall be sufficiently broad to respond to the duties and obligations as is undertaken by Commvault in this agreement and may include, but not be limited to, claims involving infringement of intellectual property, including but not limited to infringement of copyright, trademark, trade dress, invasion of privacy violations, information theft, damage to or destruction of electronic information, release of private information, alteration of electronic information, extortion and network security. The policy may provide coverage for breach response costs as well as regulatory fines and penalties as well as credit monitoring expenses with limits sufficient to respond to these obligations. D. Cyber Liability Cyber Liability Insurance, with limits not less than $1,000,000 per occurrence or claim, $1,000,000 aggregate. Coverage shall be sufficiently broad to respond to the duties and obligations as is undertaken by Commvault in this agreement and may include, but not be limited to, claims involving infringement of intellectual property, including but not limited to infringement of copyright, trademark, trade dress, invasion of privacy violations, information theft, damage to or destruction of electronic information, release of private information, alteration of electronic information, extortion and network security. The policy may provide coverage for breach response costs as well as regulatory fines and penalties as well as credit monitoring expenses with limits sufficient to respond to these obligations. E. Worker's Compensation A policy of Worker's Compensation insurance as may be required by the California Labor -11- 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Code. Commvault shall obtain endorsements to the Commercial General Liability insurance naming the County of Fresno, its officers, agents, and employees, individually and collectively, as additional insured, but only insofar as the operations under this Agreement are concerned. Such coverage for additional insured shall apply as primary insurance and any other insurance, or self-insurance, maintained by COUNTY, its officers, agents and employees shall be excess only and not contributing with insurance provided under Commvault 's policies herein. This insurance shall not be cancelled or changed without a minimum of thirty (30) days advance written notice given to COUNTY. If Commvault maintains broader coverage and/or higher limits than the minimums shown above, the COUNTY requires and shall be entitled to the broader coverage and/or higher limits maintained by Commvault. F. Additional Insurance Requirements 1. Additional Insured Status. The COUNTY, its officers, officials, employees, and volunteers are to be covered as additional insureds on the CGL policy with respect to liability arising out of work or operations performed by or on behalf of Commvault including materials, parts or equipment furnished in connection with such work or operations. General liability coverage can be provided in the form of an endorsement to Commvault’s insurance. 2. Primary Coverage. For any claims related to this contract, Commvault’s insurance coverage shall be primary insurance coverage as respects the COUNTY, its officers, officials, and employees. Any insurance or self-insurance maintained by the COUNTY, its officers, officials, employees, or volunteers shall be excess of Commvault’s insurance and shall not contribute with it. -12- 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 3. Notice of Cancellation. Each insurance policy required above shall provide that coverage shall not be canceled, except with notice to the COUNTY. 4. Waiver of Subrogation. Commvault hereby grants to COUNTY a waiver of any right to subrogation which any insurer of said Commvault may acquire against the COUNTY by virtue of the payment of any loss under such insurance. Commvault agrees to obtain any endorsement that may be necessary to affect this waiver of subrogation, but this provision applies regardless of whether or not the COUNTY has received a waiver of subrogation endorsement from the insurer. 5. Self-Insured Retentions. Self-insured retentions must be declared to and approved by the COUNTY. The COUNTY may require Commvault to purchase coverage with a lower retention or provide proof of ability to pay losses and related investigations, claim administration, and defense expenses within the retention. 6. Acceptability of Insurers Insurance is to be placed with insurers authorized to conduct business in the state with a current A.M. Best’s rating of no less than A:VII, unless otherwise acceptable to the COUNTY. 7. Claims Made Policies (note – should be applicable only to professional liability, see below). If any of the required policies provide claims-made coverage: a. The Retroactive Date must be shown, and must be before the date of the contract or the beginning of contract work. 8. Verification of Coverage. Upon request, Commvault shall furnish the COUNTY with original certificates and -13- 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 amendatory endorsements or copies of the applicable policy language effecting coverage required by this clause. All certificates and endorsements are to be received and approved by the COUNTY before work commences. However, failure to obtain the required documents prior to the work beginning shall not waive the Commvault’s obligation to provide them. The COUNTY reserves the right to require complete, certified copies of all required insurance policies, including endorsements required by these specifications, at any time. 9. Special Risks or Circumstances COUNTY reserves the right to request modifications to these requirements, including limits, based on the nature of the risk, prior experience, insurer, coverage, or other special circumstances. Within Thirty (30) days from the date Commvault signs and executes this Agreement, Commvault shall provide certificates of insurance and endorsements as stated above for all of the foregoing policies, as required herein, to the County of Fresno, (Name and Address of the official who will administer this contract), stating that such insurance coverages have been obtained and are in full force and that the County of Fresno, its officers, agents and employees will not be responsible for any premiums on the policies. In the event Commvault fails to keep in effect at all times insurance coverage as herein provided, the COUNTY may, in addition to other remedies it may have, suspend or terminate this Agreement. All policies shall be issued by admitted insurers licensed to do business in the State of California, and such insurance shall be purchased from companies possessing a current A.M. Best, Inc. rating of A FSC VII or better. 10 ASSIGNMENT Neither party shall assign, transfer or otherwise dispose of this Agreement or any of its rights or -14- 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 obligations hereunder, without the prior written consent of the other party, which consent shall not be unreasonably withheld. Notwithstanding the foregoing, Commvault may, upon written notice to COUNTY, assign this Agreement to an affiliate or a purchaser of all or substantially all of its assets. Additionally, Commvault reserves the right to sub-contract performance of any or all of its Support obligations as set forth in Section 1.3 above. 11 GOVERNING LAW / VENUE This Agreement, its construction, validity, performance and all other questions arising hereunder shall be construed in accordance with and governed by the laws of the State of California, without regard to its provisions concerning the applicability of the laws of other jurisdictions. Venue for any suit hereunder shall be in Fresno County, California. 12 LIMITED WARRANTY / DISCLAIMER / LIMITATION OF LIABILITY Commvault warrants to COUNTY, in accordance with the terms of the EULA, that it will perform the Support in a good and workmanlike manner. COUNTY's exclusive remedy and Commvault’s sole liability for the breach of such warranty shall be to re-perform the affected Support. Commvault warrants its replacement parts for a period of thirty (30) days from the date of receipt by COUNTY or for the remainder of the original product warranty, whichever is longer. Except as set forth in this paragraph, Commvault DISCLAIMS ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, THE IMPLIED WARRANTIES OF MERCHANTABILITY AND OF FITNESS FOR A PARTICULAR PURPOSE AND ANY STATUTORY WARRANTY OF NON-INFRINGEMENT. Neither Commvault nor its support provider shall be liable for any incidental, special, indirect or consequential damages of any kind or nature whatsoever, arising out of or in any way related to this Agreement, the Products, the Support or the use or inability to use any Products, including, without limitation, lost goodwill, lost profits, loss of data or software, work stoppage or impairment -15- 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 of other goods, and whether arising out of breach of warranty, breach of contract, tort (including negligence), strict liability or otherwise, even if advised of the possibility of such damage or if such damage could have been reasonably foreseen, except only in case of personal injury to the extent applicable law requires such liability. Such limitation is intended to apply notwithstanding any failure of essential purpose of any exclusive remedy provided herein. Notwithstanding any other provision hereof, in no event shall Commvault or its Support provider's entire liability related to or in connection with the performance of Support under this Agreement, whether based on contract, warranty, tort (including negligence), strict liability or otherwise, exceed the actual amount received by Commvault for the most recent annual fee under this Agreement. Such limitation of liability shall not apply only if and to the extent required by applicable law. In all cases, any claim against Commvault or its Support providers must be brought within 2 years after discovery of the occurrence of the alleged act or omission giving rise to damages. 13 NOTICING AND CONTACT 13.1 All notices required or permitted under this Agreement shall be deemed to have been duly given when made in writing and (i) when delivered personally, by overnight express, or (ii) three (3) days after mailing if mailed by certified or registered mail. Notices shall be provided to COUNTY and Commvault at the addresses as shown below. Either party may designate a different address by written notice as provided herein. -16- 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 The persons and their addresses having authority to give and receive notices under this Agreement include the following: COUNTY COUNTY OF FRESNO – ISD-IT Chief Information Officer 2048 N Fine Ave Fresno, CA 93727 Commvault Commvault Systems, Inc. 1 Commvault Way Tinton Falls, New Jersey 07724 ATTN: Service Contract Administrator Commvault Systems, Inc. Copy To: VP and General Counsel Same Address -17- 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 13.2 Primary Escalation Contact Information: The persons and their contact information that the COUNTY can contact to escalate problems or situations are: COUNTY Contact #1: Darren Rice Network Systems Engineer Office Phone: (559) 600-5828 Email: drice@fresnocountyca.gov Commvault Commvault Systems, Inc. 1 Commvault Way Tinton Falls, New Jersey 07724 Office Support: (877) 780-3077 COUNTY Contact #2: Antoine Grayson IT Manager – Systems/Service Desk Office Phone: (559) 600-5808 Email: agrayson@co.fresno.ca.us ATTN: Service Contract Administrator Commvault Systems, Inc. Copy To: VP and General Counsel Same Address 14 EMPLOYMENT PRACTICES Commvault shall not discriminate against any employee or applicant for employment to be employed in the performance of this Agreement, with respect to hire, tenure, terms, conditions or privileges of employment, or any other matter directly or indirectly related to employment, because of race, sex, religion, color, national origin, ancestry, age, handicap, disabled veteran status and Vietnam-era veteran status. 15 NO SOLICITATION COUNTY recognizes that Commvault expends considerable time, effort and expense in training its employees. As such, in the event COUNTY hires any employee of Commvault, in any capacity whatsoever, whether full-time, part-time or on a consultant basis, on behalf of itself or any person or entity, during the term of this Agreement and for a period of twelve (12) months thereafter, COUNTY shall pay Commvault the sum equal to three (3) months’ pay at the last rate paid by Commvault to such employee or Twenty Thousand Dollars ($20,000) whichever is greater. -18- 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 16 SEVERABILITY If any provision of this Agreement shall be held illegal, invalid or unenforceable, in whole or in part, such provision shall be modified to the extent necessary to make it legal, valid and enforceable, and the legality, validity and enforceability of all other provisions of this Agreement shall not be affected thereby. This Agreement shall be fairly interpreted in accordance with its terms without any strict construction in favor of or against either party and ambiguities shall not be interpreted against the drafting party. 17 SURVIVAL OF OBLIGATIONS The following Sections shall survive termination of this Agreement for whatever reason: Section 6 (6.3 until obligations under this Agreement have been paid in full), 7, 10, 11, 12, 13, 14, 15, 16, 17, 18, 19, 20, 21, and 22. 18 WAIVER A waiver by any party hereto of a breach or violation of any provision of this Agreement will not be a waiver of any subsequent breach or violation of that provision, or a waiver of any other provision of this Agreement. COUNTY shall not require waivers or releases of personal rights from employees or representatives of Commvault in connection with the fulfillment of Commvault’s obligations hereunder. 19 HOLD HARMLESS: Commvault agrees to indemnify, save, hold harmless, and at COUNTY'S request, defend the COUNTY, its officers, agents, and employees from any and all costs and expenses (including, without limitation, costs and fees of litigation), damages, liabilities, claims, and losses occurring or resulting to COUNTY to the extent in connection with the performance, or failure to perform, by Commvault, its officers, agents, or employees under this Agreement. COUNTY agrees to indemnify -19- 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Commvault in accordance with the terms of the EULA. 20 AUDITS AND INSPECTIONS: Commvault shall at any time during business hours, and as often as the COUNTY may deem necessary, make available to the COUNTY for examination all of its records and data with respect to the matters covered by this Agreement. Commvault shall, upon request by the COUNTY, permit the COUNTY to audit and inspect all of such records and data necessary to ensure Commvault’s compliance with the terms of the Agreement. If this Agreement exceeds Ten Thousand Dollars ($10,000.00), Commvault shall be subject to the examination and audit of the California State Auditor for a period of three (3) years after final payment under contract (Government Code Section 8546.7). 21 DISCLOSURE OF SELF-DEALING TRANSACTIONS: Commvault is a publically-traded company and as such has disclosure obligations to report related party transactions in its Annual Report and Proxy Statement which can be obtained through contacting Commvault Systems, Inc., through its contact address as given described in section 13.1. 22 ENTIRE AGREEMENT The Master Agreement, including Exhibits A, B, and C constitutes the entire agreement between the parties relating to the subject matter hereof and supersedes all prior oral and written and all contemporaneous oral negotiations, commitments and understands of the parties. This Agreement supersedes all pre-printed terms and conditions contained in any purchases order, order acknowledgement form, invoice or other business form submitted hereafter by either party to the other. This Agreement may not be changed, modified, or amended, except by a written document signed by duly authorized representatives of both parties. 1 IN WITNESS WHEREOF , the parties hereto have executed this Master Agreement as of the day 2 and year first hereinabove written . 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 FOR ACCOUNTING USE ONLY: ORG No.: Account No.: Requisition No.: COUNTY OF FRESNO ATTEST: Bernice E. Seidel Clerk of the Board of Supervisors County of Fresno , State of California PLEASE SEE ADDITIONAL SIGNATURE PAGE ATTACHED -20- 1 2 3 4 COMMVAULT SYSTEMS, INC . 5 Sunit Jain Senior Director, Sales Operations 6 Commvault S stems, Inc. 7 8 9 10 11 12 13 14 Print Name & T itle 1 Commvault Way Tinton Falls New Jerse 07724 Mailing Address (Authorized Signature) 15 Warren H. Mondschein Secretary and General Counsel; 16 1 -1--'=C=o~m~m~v~a=u=lt~S=..r...:s=te=m-=-=-s ~l~n=c·=--~~~ Print Name & Title 1 7 18 19 1 Commvault Way Tinton Falls, New Jerse , 07724 20 Mailing Address 21 22 23 24 25 26 27 28 -2 1- 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 EXHIBIT A SOFTWARE LICENSES SOFTWARE PRODUCTS: For $345,255 US Dollars paid to Commvault, facilitated through Dell Financial Services, COUNTY is purchasing Commvault subscription-based licenses to those Products in such quantities as set forth below (“Subscription License”) for the Initial Term (minimum), with option to purchase additional products for the period remaining on the Initial Term and services beyond the minimum service commitment, with two optional one- year extensions (each an “Extended Term” and together with the Initial Term, the “Term”). Payments for each of the one-year Extensions (Extended Term) shall be made to Commvault systems, Inc., directly, and shall not involvement payment to the financier Dell Financial Services: Part Number Quantity SB-C-DPE-1T-C-33 37 terabytes SB-C-DPF-1T-C-33 45 terabytes SB-cSIM-S-AF-33 128 sockets For the avoidance of doubt, should COUNTY purchase additional products during any Extended Term, such products must be purchased for the months remaining on the applicable Extended Term. PAYMENT: COUNTY shall make payment for the Products totaling $345,255 to Commvault as follows: Year Payment Date Minimum Expenditure Maximum Expenditure Initial Term 1 June 30, 2018 $ 115,085 $600,000 2 May 30, 2019 $ 115,085 3 May 30, 2020 $ 115,085 Extended Term 4 May 30, 2021 $ 118,537 +$300,000 ($900,000 Maximum) 5 May 30, 2022 $ 122,094 +$300,000 ($1,200,000 Maximum) Total $ 585,886 $ 1,200,000 COUNTY agrees that when the Products are made electronically available for download, such Product has been fully accepted by COUNTY and payment is not contingent on any other delivery, inspection or acceptance. PRIOR LICENSES: COUNTY acknowledges and agrees that all prior license rights to Commvault software, including but not limited to those licenses in CommCell ID F4272, shall be forfeited, terminated and replaced entirely with the licensing for the Term set forth herein on the Effective Date. UPON COMPLETION OF THE TERM: At the end of the Term, the license right to the Products and all maintenance and support shall terminate and Commvault shall provide COUNTY with a revised license key limited solely to read and/or recover stored data. November, 2017 EXHIBIT B CommVault Systems, Inc. End User License and Limited Warranty Agreement CommVault Software Release 11.0.0 (including Microsoft SQL Server 2008 Enterprise Edition, Microsoft SQL Server 2008 R2 Enterprise Edition, Microsoft SQL Server 2012 Enterprise Edition, SQL Server™ 2008 Express Edition, SQL Server™ 2008 R2 Express Edition, SQL Server™2012 Express Edition, SQLServer™ 2014 Standard Edition and Windows Pre-Installation Environment) End User License Agreement THIS END USER LICENSE AGREEMENT (“EULA”) IS A LEGAL AGREEMENT BETWEEN YOU (EITHER AS AN INDIVIDUAL OR ENTITY) (“YOU”) AND COMMVAULT SYSTEMS, INC. (“COMMVAULT”) FOR SERVICES PROVIDED BY COMMVAULT, AS WELL AS THE ABOVE-REFERENCED SOFTWARE PRODUCT(S), WHICH INCLUDES COMPUTER SOFTWARE AND MAY INCLUDE ASSOCIATED HARDWARE, MEDIA, AND “ONLINE” OR ELECTRONIC DOCUMENTATION (“SOFTWARE”). BY INSTALLING, COPYING OR OTHERWISE USING THE SOFTWARE, OR RECEIVING THE SERVICES YOU AGREE TO BE BOUND BY THE TERMS OF THIS EULA. IF YOU DO NOT AGREE TO THE TERMS OF THIS EULA, DO NOT INSTALL OR USE THE SOFTWARE AND/OR THE HARDWARE. YOU SHALL INFORM ALL USERS OF THE SOFTWARE OF THE TERMS AND CONDITIONS OF THIS EULA. This EULA, grants You, the user, a non-exclusive license to use the Software (and including any hardware appliance, if applicable) under the terms and conditions stated herein. You agree that all updates, enhancements, maintenance releases, patches, bug-fixes or other modifications to the Software provided to You, on a when and if available basis, shall be governed by the terms and conditions, including the limited warranty, exclusive remedies and limitations of liability provisions, contained in this EULA, or the then-current version of this EULA. This EULA may be amended from time to time by CommVault, in its discretion, and will be made available at www.CommVault.com. Except as otherwise provided herein, the license granted herein shall be perpetual provided You comply with the terms hereof. This EULA shall be in effect until terminated except as expressly otherwise provided herein. You may terminate this EULA at any time by destroying all copies of Software and corresponding documentation. This EULA will terminate immediately without notice from CommVault if You fail to comply with any provision of this EULA. Upon termination, You must destroy all copies of Software in Your possession or control. In the event You license the Software on a temporary, term or subscription basis (the “license period”), Your license to use the Software shall not be perpetual, notwithstanding any conflicting language contained in this EULA. In the event of any such license, Your license shall expire at the end of the license period which shall be as set forth on the applicable ordering document. If no license period is stated, then Your license shall continue on a month to month basis, unless terminated by either You or CommVault. You may be required to periodically re-apply license keys during such license period, which shall be provided by CommVault. Following the license period, You may use a limited recovery version of the Software solely for recovering data stored using the Software during the license period. Maintenance and support services shall only be provided during the license period. You may: (i) use the Software, with the same or lower version number identified herein, in numbers equal to the number of licenses purchased for all items, or in the event You are licensing the Software on a capacity basis, up to the maximum capacity purchased; (ii) make copies of the Software, documentation or other user information accompanying the Software solely for back-up purposes, provided such back-up copies are only utilized as a replacement for the original copy on the same computer that the Software was previously installed; and, (iii) make a copy of or print documentation provided in electronic form for Your internal use only, and You may use CommVault trademarks solely for these purposes, but You must incorporate all patent, copyright, trademark and other notices included on the materials on any copies or partial copies that You make. November, 2017 You may not: (i) make a copy of any of the Software for any purpose not explicitly permitted herein; (ii) provide commercial hosting services, sell, sublicense, rent, loan or lease the Software to another party, without the prior written consent of CommVault; (iii) except to the extent that such a prohibition is expressly prohibited by law, decompile, disassemble, reverse engineer or modify, in any manner, any of the Software; (iv) transfer or assign Your rights to use the Software; (v) use the Software in violation of applicable local, federal or other laws or regulations; (vi) use the Software for any purpose other than as permitted in this EULA; or, (vii) remove, destroy, erase, alter or otherwise modify CommVault’s trademarks. Unless this software is provided to You for beta, demonstration, test, or evaluation purposes or is labeled “Not for Resale” as further described herein, You agree to use the Software solely for Your internal data center operations and to restrict any access to the Software, documentation, or other user information accompanying the Software only to those of your employees having a demonstrable need to have such access for your internal data processing operations. You agree that you shall not permit any access to the Software, documentation, or other user information accompanying the Software to any person engaged in product research, development, support, sales, marketing, or other functions not directly related to your internal data processing operations. You also agree not to use the Software, documentation, or user information accompanying the Software to assist, directly or indirectly, in the development or design of any computer hardware or software program including, but not limited to, a program that provides or is intended to provide or include a similar feature or functionality as the Software, or any conversion utility or aid relating to the Software intended to enable or facilitate a user’s conversion from the use of the Software to an alternative program. Any software CommVault and/or its licensors may provide You as part of maintenance and support services are governed by this EULA, unless separate terms are provided. This EULA does not obligate CommVault and/or its licensors to provide any maintenance and support services or to support any Software provided as part of those services. If support services are provided, they shall be provided subject to the terms of this EULA and in accordance with CommVault’s then current policies, as such may be amended from time to time. In the event You elect to purchase maintenance and support services, You must purchase such maintenance and support services for all of the licensed Software in Your entire environment. Such maintenance and support services shall begin on the date Software is shipped to You. Personal health information, personal financial information, or any other personally identifiable information is not necessary for CommVault’s provision of services. You agree that You will not provide any such information to CommVault. You agree that CommVault and/or its licensors may, for business purposes, collect, process, and use technical information gathered as part of any product maintenance and support services provided to You related to the Software and any other technical information You provide to CommVault provided that such information does not personally identify You. By providing data or information to CommVault, including personal data or information, You hereby consent to CommVault’s use, storage or processing of such data or information in the United States (or in any other country in which we operate) for purposes of providing products and/or services to You. All title and intellectual property rights in and to the Software, and any copies You are permitted to make herein, are owned by CommVault and/or its licensors and is protected by United States and other country patent, copyright, trade secret, and other laws and by international treaty provisions. Such licensors, in addition to any other rights or remedies available to them, are third party beneficiaries of this EULA for their respective software and may have the right to enforce such terms against You. This Software is licensed, not sold. The purchase of a license to the Software is final, non-returnable and non- refundable. Acceptance of the Software occurs upon shipment by CommVault or its licensors. No rights are granted to You other than a license to use the Software upon the terms expressly set forth in this EULA. The structure, sequence, organization and source code of the Software are valuable trade secrets of CommVault and/or its licensors. The export of the Software may be restricted by the export control laws of the United States of America and other countries. You agree to comply strictly with all such regulations and acknowledge that You have the responsibility to obtain licenses to export, re- export, or import Software. This EULA shall be governed by the laws of New Jersey, USA, without regard to any provisions concerning the applicability of the laws of other jurisdictions. You agree that exclusive jurisdiction for any claim or dispute arising out of or in connection with this EULA resides in the courts of New Jersey and you hereby consent and submit to the personal jurisdiction of such courts for the purposes of litigating any such action. This EULA is the complete and exclusive statement of Your agreement with CommVault with respect to the subject matter hereof and supersedes all prior agreements. This EULA supersedes all terms and conditions contained in any purchase order, order acknowledgment form, invoice or other business form submitted by You. No advertisements, catalogues or other publications or statements, whether written or oral, regarding the performance of the Software licensed under this EULA shall form part of this EULA. If any provision of this EULA is held to be invalid or unenforceable by a court of competent jurisdiction, the remaining provisions of this EULA shall remain in full force and effect. November, 2017 In the event You license the Software on a capacity basis, if you exceed the maximum capacity purchased, the Software may cease to operate normally and/or performance may be impaired; provided however that reducing Your usage to the purchased capacity level or purchasing additional capacity will return the Software to its normal operation. Any excess capacity usage above the purchased maximum shall entitle CommVault to invoice You for licensed capacity and maintenance and support amounts owed, and if You fail to pay for the excess usage, CommVault shall be entitled to any self-help or other remedies available. You shall provide CommVault with any usage reports immediately upon request (and You shall not interfere with any automated reporting features) in order to enable CommVault to verify Your capacity usage. In the event that You license the Software by virtue of Your purchase or use of a hardware appliance, this license is limited to the hardware appliance on which the Software was originally shipped, and the Software may not be used on or transferred to any other hardware or appliance. If you have purchased the CommVault hardware appliance, by agreeing to this EULA, you are also acknowledging that you have received, read and agree to accept the hardware warranty terms as separately provided to you together with the hardware appliance. To ensure compliance with this EULA, You agree that upon reasonable notice, CommVault or CommVault’s authorized representative shall have the right to inspect and audit Your installation and use of the Software. Any such inspection or audit shall be conducted during regular business hours at your facilities or electronically. Any information obtained during the course of such audit will be used by CommVault solely for the enforcement of CommVault’s rights under this EULA and applicable law. If such audits disclose that you have installed, accessed, used, or otherwise permitted access to the Software in a manner that is not permitted by the terms of this EULA, then CommVault may terminate this EULA immediately and You shall reimburse CommVault for any unpaid license fees and all reasonable expenses related to such audit. Nothing in this section shall be deemed to limit any legal or equitable remedies available to CommVault for violation of this EULA or applicable law. Any reports regarding Your use of the Software and any other usage information, results, comments, or suggestions provided by You to CommVault regarding the Software (collectively, the “Feedback”) shall be deemed non-confidential to You. By providing Feedback, You grant and assign to CommVault, under Your intellectual property rights and other ownership rights, a worldwide, royalty-free, irrevocable, and non-exclusive license, with the right to sublicense to CommVault licensees and customers, the rights to use and disclose the Feedback in any manner CommVault chooses, and to display, perform, copy, make, have made, use, sell, and otherwise dispose of CommVault’s products embodying the Feedback in any manner and via any media CommVault or its licensees choose, without obligation to You. You also agree that the Software may automatically provide certain reports and survey information, including the generation and collection of geolocation data, regarding its use to CommVault and its third-party licensors, and which reporting features You may disable at any time. Any such reports or information shall be used in a manner that does not identify you or shall be kept confidential and used solely by CommVault or its third party licensors for internal purposes. Your agreement to this EULA serves as Your consent to the generation and collection of such reports and information by CommVault and its third-party licensors. To the extent that You may acquire by operation of law or equity, any right, title, or interest, including any intellectual property rights, in or to the Feedback, or any modifications, or developments related thereto, You hereby assign to CommVault Your entire right, title, and interest, including all intellectual property rights, therein and thereto, and agree to execute any necessary documents as reasonably required and requested by CommVault in connection with the foregoing. The above provisions and rights granted regarding title and intellectual property rights associated with the Software and the Feedback shall survive termination of this EULA. You agree that any information provided to You by CommVault, including the Software and related Documentation, shall be considered confidential information. You shall not disclose such confidential information without the prior written consent of CommVault. If the Software is provided to You electronically, You may not request, and CommVault is under no obligation to provide, physical delivery of any Software or media. You agree to be responsible for all taxes and any penalties and/or interest associated with Your purchase or use of the Software. You understand and agree that subsequent Software deliveries may not be eligible for electronic delivery, and in the event physical delivery is made, You shall be solely responsible for any taxes on that, or any prior, purchase. You represent and warrant that neither You, nor any of Your affiliates, have received any physical media from CommVault containing the Software. In the event that any taxing or governmental authority makes a claim against CommVault for taxes, interest, penalties or other payments related to the delivery and/or purchase by You of November, 2017 the Software, You agree to indemnify and hold CommVault harmless from and against all such claims, proceedings, actions and liabilities associated therewith. All rights not expressly granted hereunder are expressly reserved by CommVault. Software Labeled “Not for Resale” or Provided for Beta, Demonstration, Test, or Evaluation Purposes If the Software is provided to You for beta, demonstration, test or evaluation purposes or is labeled “Not for Resale,” then, notwithstanding anything to the contrary in the EULA: (i) The licenses granted herein shall be for a term of thirty (30) days (the “Evaluation Period”) unless otherwise agreed to in writing by CommVault, and CommVault reserves the right to terminate this EULA or any licenses granted hereunder immediately upon written notice at its convenience; (ii) Your use of the Software is limited to use for demonstration, test or evaluation purposes, and You may not resell or otherwise transfer the Software; (iii) You agree to keep confidential and not to disclose or otherwise make publicly available any information related to the Software, including, but not limited to test results, characteristics, and performance of the software; (iv) You agree not to copy the Software and not to provide a copy of the Software to any other party; (v) You agree not to use the Software in a production environment or for production data processing purposes, and that any use of the Software in a production environment or for production data processing purposes is at Your sole risk to backup data and take other appropriate measures to protect Your computer programs and data; and (vi) You agree to immediately, on or before the end of the Evaluation Period, promptly remove, destroy, and erase from computer memory and storage media any installed copy of the Software, and return the Software to CommVault together with all documentation and other materials provided by CommVault. Limited duration licenses, site licenses, beta, evaluation, test or demonstration Software products are delivered “AS IS” without a warranty of any kind. CommVault shall have no obligation to support, maintain, or provide other assistance regarding any limited duration licenses, site licenses, beta, evaluation, test, or demonstration Software products. IF THE SOFTWARE IS PROVIDED TO YOU FOR BETA, DEMONSTRATION, TEST, OR EVALUATION PURPOSES OR IS LABELED “NOT FOR RESALE,” IN NO EVENT WILL COMMVAULT BE LIABLE FOR ANY DAMAGES FOR ANY CAUSE OR FOR ANY CLAIM BY BORROWER OR FOR ANY THIRD PARTY CLAIM, INCLUDING BUT NOT LIMITED TO ANY DIRECT DAMAGES, ACTUAL DAMAGES, LOST PROFITS, LOST DATA OR ANY SPECIAL, INDIRECT, INCIDENTAL, OR CONSEQUENTIAL DAMAGES, EVEN IF COMMVAULT HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. Note on JAVA Support THIS SOFTWARE PRODUCT MAY CONTAIN SUPPORT FOR PROGRAMS WRITTEN IN JAVA. JAVA TECHNOLOGY IS NOT FAULT TOLERANT AND IS NOT DESIGNED, MANUFACTURED, OR INTENDED FOR USE OR RESALE AS ONLINE CONTROL EQUIPMENT IN HAZARDOUS ENVIRONMENTS REQUIRING FAIL- SAFE PERFORMANCE, SUCH AS IN THE OPERATION OF NUCLEAR FACILITIES, AIRCRAFT NAVIGATION OR COMMUNICATION SYSTEMS, AIR TRAFFIC CONTROL, DIRECT LIFE SUPPORT MACHINES, OR WEAPONS SYSTEMS, IN WHICH THE FAILURE OF JAVA TECHNOLOGY COULD LEAD DIRECTLY TO DEATH, PERSONAL INJURY OR SEVERE PHYSICAL OR ENVIRONMENTAL DAMAGE. Microsoft Corporation obligated CommVault to make this disclaimer. Limited Warranty With the exception of Software provided to You for beta, demonstration, test or evaluation purposes or that is labeled “Not for Resale”, CommVault warrants that the Software licensed hereunder shall be new and shall operate substantially in accordance with its user documentation for a period of ninety (90) days from the date of shipment by CommVault or its licensors (hereinafter the "Warranty Period"). If, during the Warranty Period, You believe any Software product to be defective, You must immediately notify CommVault in writing and follow CommVault’s instructions regarding the return of such Software. Nothing in this EULA is intended to exclude, restrict or modify any rights that You may have under any applicable legislation, which may not be excluded, restricted or modified by agreement (hereinafter the “non-excludable statutory rights”). Except in relation to any non-excludable statutory rights which may not be restricted or modified by agreement, CommVault’s sole liability to You, and Your sole remedy, shall be, at CommVault’s option, (i) repair or replacement of the Software product which does not comply with this Limited Warranty, or (ii) return of the amount paid by You for the Software product which does not comply with the Limited Warranty. In the event CommVault determines that the Software product is in compliance with this Limited Warranty, You shall pay the cost of all charges associated with the November, 2017 inspection and shipment of such Software product by CommVault. The user documentation is the exclusive statement of performance of the Software licensed hereunder. CommVault warrants that any services provided by CommVault shall be performed by competent personnel of CommVault’s and shall be of professional quality consistent with generally accepted industry standards for the performance of such services. The following four sentences only apply if You purchased CommVault Software in Australia and You are a ‘consumer’ under the Australian Consumer Law: CommVault’s Software comes with guarantees that cannot be excluded under the Australian Consumer Law. You are entitled to a replacement or refund for a major failure and compensation for any other reasonably foreseeable loss or damage. You are also entitled to have the Software repaired or replaced if the Software fails to be of acceptable quality and the failure does not amount to a major failure. If You have an enquiry or You wish to claim under this Limited Warranty, please contact CommVault. Disclaimer COMMVAULT DOES NOT WARRANT THAT THE SOFTWARE WILL OPERATE UNINTERRUPTED OR ERROR FREE. THE LIMITED WARRANTIES PROVIDED HEREIN ARE IN LIEU OF ALL OTHER WARRANTIES. COMMVAULT AND ITS LICENSORS DISCLAIM ALL OTHER WARRANTIES, EXPRESS OR IMPLIED, EITHER IN FACT OR BY OPERATION OF LAW, STATUTORY OR OTHERWISE, AND COMMVAULT AND ITS LICENSORS EXPRESSLY EXCLUDE AND DISCLAIM ANY WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, LACK OF VIRUSES OR NON- INFRINGEMENT OF INTELLECTUAL PROPERTY RIGHTS. THE PROVISIONS SET FORTH ABOVE STATE COMMVAULT’S AND ITS LICENSORS’ ENTIRE RESPONSIBILITY AND YOUR SOLE AND EXCLUSIVE REMEDY WITH RESPECT TO ANY BREACH OF ANY WARRANTY. Limitation of Liability NEITHER COMMVAULT, NOR ANY OF ITS LICENSORS, WILL, UNDER ANY CIRCUMSTANCES, BE LIABLE TO YOU OR ANY OTHER PARTY, FOR COSTS OF PROCUREMENT OF SUBSTITUTE PRODUCTS OR SERVICES, LOST PROFITS, LOSS OF INFORMATION OR DATA OR ANY OTHER SPECIAL, INCIDENTAL, PUNITIVE, INDIRECT OR CONSEQUENTIAL DAMAGES WHATSOEVER OR FOR DEATH, PERSONAL INJURY OR DAMAGE TO PHYSICAL PROPERTY OR ENVIRONMENTAL DAMAGES, REGARDLESS OF THE FORM OF ACTION, EVEN IF COMMVAULT HAS BEEN NOTIFIED OF THE POSSIBILITY OF SUCH DAMAGES AND NOTWITHSTANDING ANY FAILURE OF AN ESSENTIAL PURPOSE OF THIS LIMITED WARRANTY. IN THE EVENT COMMVAULT OR ITS LICENSORS ARE SUBJECT TO ANY LIABILITY IN CONNECTION WITH THE SOFTWARE PRODUCTS OR ANY SERVICES FOR ANY REASON WHATSOEVER, WHETHER ARISING FROM NEGLIGENCE, BREACH OF CONTRACT OR OTHERWISE, NEITHER COMMVAULT’S LIABILITY NOR THE LIABILITY OF ITS LICENSORS SHALL EXCEED THE SUM PAID BY YOU TO COMMVAULT FOR THE SOFTWARE PRODUCT WHICH WAS FOUND TO HAVE NOT COMPLIED WITH THE LIMITED WARRANTY. THIS LIMITATION SHALL APPLY EVEN IF COMMVAULT OR ITS LICENSORS HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES AND NOTWITHSTANDING ANY FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED WARRANTY. These terms and conditions, warranties, limitations and remedies contain an allocation of risk between You and CommVault. Accordingly, CommVault’s prices reflect such allocation of risk. Because some jurisdictions restrict the ability to exclude implied warranties, limit or exclude incidental or consequential damages or limit liability, the foregoing limitations and exclusions may not apply to You. United States Government and DOD This article applies to all acquisitions of this Software by or for the Federal Government. By accepting delivery of this Software, You hereby agree that this software qualifies as “commercial computer software” as that term is used in the acquisition regulation(s) applicable to this procurement. The terms and conditions of this EULA shall pertain to the November, 2017 Government’s use and disclosure of this Software, and shall supersede any conflicting contractual terms and conditions. If this EULA fails to meet the Government’s minimum needs or is inconsistent in any respect with Federal procurement law, the Government agrees to return this software, unused, to CommVault. All Software provided to the U.S. Government pursuant to solicitations issued on or after December 1, 1995 is provided with the commercial license rights and restrictions described elsewhere herein. All Software provided to the U.S. Government pursuant to solicitations issued prior to December 1, 1995 is provided with “Restricted Rights” as provided for in FAR, 48 CFR 52.227-14 (JUNE 1987) or DFAR, 48 CFR 252.227-7013 (OCT 1988), as applicable. The following paragraph is applicable only to CommVault 1-Touch products containing Microsoft Windows Pre-Installation Environment (WinPE) software: (i) The license for the CommVault 1-Touch product is limited to its use as a boot, diagnostic, disaster recovery, setup, restoration, emergency services, installation, test and/or configuration utilities program and not for use as a general purpose operating system or a fully functional version of any operating system product; (ii) the WinPE software is provided “as is”; (iii) the 1-Touch products, by virtue of the inclusion of WinPE, contain a security feature that will cause the computer system to reboot without prior notification to You after 24 hours of continuous use; (iv) neither Microsoft nor any Microsoft affiliate shall have any liability related to the 1-Touch or the WinPE products; and (v) all customer support issues will be handled solely by CommVault. The Software may contain certain software licensed by Microsoft to CommVault. This Software incorporates Microsoft SQL Server 2014 Standard Edition, Microsoft requires that Your use be subject to the terms of their End-User License Agreement, located here http://documentation.CommVault.com/CommVault/v11/article?p=features/misc/ms_sql_server_eula.htmYou warrant that You are not licensing Microsoft products under this EULA and that any copies of Microsoft software that You receive from CommVault as a result of licensing the Software do not entitle You to maintain on Your computer systems any more copies of Microsoft software than you may have previously licensed from Microsoft or other third parties. Microsoft is an intended third party beneficiary of this EULA with the right to enforce warranties and any other provision of the EULA and to verify Your compliance with same. If You license or otherwise use any Lucidworks software (the “Lucidworks Software”), then the following additional terms and conditions apply solely with respect to Your use of the Lucidworks Software: Lucidworks, Inc. (“Lucidworks”) is an intended third party beneficiary of this EULA with the right to enforce warranties and any other provision of the EULA to verify Your compliance with the same. Your use of the Lucidworks Software shall be strictly limited to any subscription period You purchase to license the Lucidworks Software and any renewals thereof. Only You may directly use or access the Lucidworks Software; provided, however, that if You are a service provider, You shall not be restricted from providing access to the output resulting from Your use of the Lucidworks Software to your customers. Lucidworks and its licensors own and retain all right, title and interest in the Lucidworks Software, and any improvements or derivative works thereof. You shall not: reverse engineer, decompile or otherwise attempt to learn the source code of the Lucidworks Software; or combine or distribute the Lucidworks Software with any software that is licensed under terms that seek to require that any of the Lucidworks Software be provided in source code. The Software may contain certain software licensed by third parties to CommVault. Such licensors are intended third party beneficiaries of this EULA with the right to enforce warranties and any other provision of the EULA and to verify Your compliance with same. Certain software components are subject to the end user license agreement located at www.redhat.com/licenses/eulas. Your use of these components of the Software are subject to the terms and conditions set forth therein. Portions copyright © 1991, 2011 Oracle and/or its affiliates. All rights reserved. The Software may contain Data Files of IBM Lotus Domino © Copyright IBM Corporation 2007. All Rights Reserved. Portions copyright 1992-2010 FairCom Corporation. Trademark Acknowledgment CommVault, CommVault and logo, the “C hexagon” logo, CommVault Systems, Solving Forward, SIM, Singular Information Management, Simpana, the “Simpana” logo, CommVault Galaxy, Unified Data Management, QiNetix, Quick November, 2017 Recovery, QR, CommNet, GridStor, Vault Tracker, InnerVault, QuickSnap, QSnap, Recovery Director, CommServe, CommCell, ROMS, IntelliSnap and CommValue are trademarks, and may be registered trademarks, of CommVault Systems, Inc. By using any of the CommVault trademarks as authorized herein, in whole or part, You agree to be bound by the then- current CommVault Trademark Guidelines located at www.CommVault.com/trademarks. All other third party brands, products, service names, trademarks, or registered service marks are the property of and used to identify the products or services of their respective owners. Patent Acknowledgment This Software is patented: see www.CommVault.com/legal-notices for information about the patents and patents pending covering this Software. Copyright Acknowledgment ©1997-2018 CommVault Systems, Inc. All rights reserved.