Ksplice Uptrack Subscription Agreement

This Ksplice Uptrack Subscription Agreement (the “Agreement”) is
between Oracle America, Inc. (“Oracle”) and all subscribers to the
Service (“you” or “Customer”). The Effective Date of this Agreement is
the earlier of the date that the Customer accepts the Agreement or the
date that the Customer uses the Service.

PLEASE READ THIS AGREEMENT CAREFULLY BEFORE USING OR SUBSCRIBING TO
THE SERVICE. BY USING OR SUBSCRIBING TO THE SERVICE, YOU SIGNIFY YOUR
ASSENT TO THIS AGREEMENT. IF YOU ARE ACTING ON BEHALF OF AN ENTITY,
THEN YOU REPRESENT THAT YOU HAVE THE AUTHORITY TO ENTER INTO THIS
AGREEMENT ON BEHALF OF THAT ENTITY. IF YOU DO NOT ACCEPT THE TERMS OF
THIS AGREEMENT, THEN PLEASE DO NOT ACCESS, USE OR SUBSCRIBE TO THE
SERVICE.

Use and Subscription Conditions

 - You must be at least thirteen (13) years old to use the Service.
 - You are responsible for securing Internet access to use the
   Service.
 - You must provide a valid, unique email address to Oracle for each
   account designation.
 - Oracle reserves the right to modify the Service at any time and
   for any reason or no reason.


Agreement Definitions

“System” is defined as the computer on which the Ksplice Uptrack
Subscription program is installed. Where computers/blades are
clustered, each computer/blade within the cluster shall be defined as
a system.

Service Description

The Ksplice Uptrack service is a solution for managing updates to a
System (the “Service”).

Software Use

Any software (“Software”) that is made available to you to download
from the Service is the copyrighted work of Oracle and/or third
parties. Your use of the Software is governed by the terms of the
Agreement.  You will not install any Software unless you first agree
to the terms of the Agreement.  Upon acceptance of the terms of the
Agreement, you have the limited right to receive the Service solely
for your business operations and subject to the terms of this
Agreement.  The Service is effective upon the date of your order.
Some Oracle software related to the Service provided in this Agreement
is available in source code form under the terms of the GNU General
Public License and other open source licenses (collectively, “Open
Source Licenses”), as specified with the software. Nothing in this
Agreement will be construed to limit any rights granted under the Open
Source Licenses.

Protection in Event of Infringement

Provided you are a current subscriber to the Service, if a third party
makes a claim against you that any covered programs furnished by
Oracle (“material” or “materials”), and used by you for your business
operations infringes its intellectual property rights, Oracle, at its
sole cost and expense, will defend you against the claim and indemnify
you from the damages, liabilities, costs and expenses awarded by the
court to the third party claiming infringement or the settlement
agreed to by Oracle, if you do the following:

 - Notify Oracle promptly in writing, not later than 30 days after
   you receive notice of the claim (or sooner if required by
   applicable law);
 - Give Oracle sole control of the defense and any settlement
   negotiations; and
 - Give Oracle the information, authority, and assistance it needs
   to defend against or settle the claim.

If Oracle believes or it is determined that any of the material may
have violated a third party’s intellectual property rights, Oracle
may choose to either modify the material to be non-infringing (while
substantially preserving its utility or functionality) or obtain a
license to allow for continued use, or if these alternatives are not
commercially reasonable, then Oracle may, upon 30 days notice to you
terminate your right to receive indemnification for your further use
of the materials specified; and refund any unused, prepaid service
fees , you have paid for the covered programs.  Notwithstanding the
above, Oracle will not defend or indemnify you in connection with
claims, damages, liabilities, costs or expenses arising out of, or
caused by, or related to: (a) your distribution of the material; (b)
your alteration of the material; (c) your use of a version of the
material which has been superseded, if the infringement claim could
have been avoided by using the current version of the material; (d)
your use of the material outside the scope of use identified in the
user documentation (e) your use of the material when you were not a
subscriber to the service; (f) any information, design,
specification, instruction, software, data, or material not furnished
by Oracle (g) the combination of any material with any products or
service not provided by Oracle; (h) your claim, lawsuit, or action
against a third party (i) any Open Source Licenses and software.
This section provides your exclusive remedy for any infringement
claims or damages, liabilities, costs or expenses.

Account Security

You may be assigned one or more Access IDs in order to use the
Service. It is your duty to keep these Access IDs confidential. You
must notify Oracle immediately upon discovering any unauthorized use
of your Access IDs. You may not use one subscription for the Service
for more than one system concurrently. Any unauthorized use of the
Service will be deemed to be a material breach of this Agreement. You
agree not to attempt to gain unauthorized access to the Service. You
will not tamper with, disable, or alter any mechanism or information
used to measure your usage of the service or calculate your bill.

Account Cancellation

You may cancel your subscription to the Service at any time. To cancel
your account, please contact Oracle Customer Service at
ksplice-support_ww@oracle.com.

Should you want to cancel prepaid service, Oracle provides refunds for
all full months unused. Oracle does not provide refunds for the
current month in use. Notification of cancellation must be received
prior to your cycle date, with the cycle date being the day of the
month of your Effective Date, in order to avoid charges in full for
the next month. It is your responsibility to secure email confirmation
from Oracle that your account has been cancelled. If you have not yet
received email confirmation of your account cancellation, then the
account remains active, and you will continue to be invoiced.  If you
have a balance due at the time of cancellation, this balance must be
paid in full.  Oracle may terminate this Agreement or use of the
Service at any time without prior notice, if Oracle in its sole
discretion determines that there has been a violation of this
Agreement, applicable policies or failure to pay charges when
due. Oracle may terminate this Agreement or use of the Service at any
time by providing notice of termination to you in any reasonable
manner.

Privacy Policy

We value your privacy and will take all reasonable steps to protect
your personal information. In order to provide the Service and to
improve the Service, the Software may contact Oracle with information
about your computer’s operating system, including without limitation
the version number of the Linux kernel that you are running. The
Software may also report to Oracle any errors encountered in the
operating system kernel, to alert us in case one of our updates causes
problems.

We will not share your personal information (including email address)
with any third party, except as we, in our sole discretion, believe
necessary to (a) comply with the law, (b) enforce terms of service,
(c) detect, prevent, or otherwise address fraud, security, or
technical issues, or (d) protect against harm to the rights, property,
or safety of Oracle or others. We may also share with third parties
aggregated information that does not identify you. We each agree to
hold each other’s confidential information in confidence for a period
of three years from the date of disclosure

A party’s 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) is lawfully disclosed to the other party by a third party without
restriction on the disclosure; or (d) is independently developed by
the other party.

Disclaimer

The Service, the Software, and all content, materials, and information
are provided on an “as is” and “as available” basis. Your use of the
Service and the Software is at your own risk. Oracle makes no
warranties or representations, express or implied, as to the
functionality or usefulness of the Service, the Software, or any
content. Oracle disclaims all warranties, express or implied,
including without limitation warranties of merchantability and fitness
for a particular purpose. Oracle disclaims liability for any direct,
indirect, incidental, consequential, special, exemplary, punitive or
other damages, or lost profits, that may result, directly or
indirectly, from your use of the Service, the Software, or any
content, including without limitation any damage to computer systems,
hardware or software, loss of data, or any other performance failures,
or any errors, bugs, viruses or other defects that result from or are
associated with use of the Service, the Software, or any content.

Oracle makes no warranty that (i) the Service or the Software will be
uninterrupted, timely, secure, or error-free, (ii) the results that
may be obtained from the use of the Service or the Software will be
accurate or reliable, (iii) the quality of any Service, software, or
content, information, or other materials purchased or obtained by you
through the Service or Software will meet your expectations, (iv) any
errors in the Service or the Software will be corrected, or that the
Service, the Software, their content, and any servers on which the
Service, the Software, and content are available are free of viruses
or other harmful components.

Any material (including content) downloaded or obtained through the
use of the Service or the Software is done at your own risk and you
will be solely responsible for any damage to your computer system or
loss of data that results from the download of any material.
Information created by third parties that you may access on or through
the Service or the Software or through links is not adopted or
endorsed by Oracle and remains the responsibility of the third party.
Limitation of Liability

To the maximum extent permitted by applicable law, IN NO EVENT WILL
ORACLE BE LIABLE TO YOU FOR ANY INCIDENTAL OR CONSEQUENTIAL DAMAGES,
WHETHER IN TORT OR IN CONTRACT, INCLUDING LOST PROFITS, LOST SAVINGS
OR OTHER INCIDENTAL OR CONSEQUENTIAL DAMAGES ARISING OUT OF (A) THE
SERVICE, THE SOFTWARE PROGRAMS (B) ANY INTERRUPTION OF USE OF THE
SERVICE OR THE SOFTWARE PROGRAMS OR (C) FOR LOSS, INACCURACY OR
CORRUPTION OF DATA, EVEN IF ORACLE HAS BEEN ADVISED OF THE POSSIBILITY
OF SUCH DAMAGES. ORACLE’S LIABILITY UNDER THIS AGREEMENT SHALL BE
LIMITED TO DIRECT DAMAGES NOT TO EXCEED THE AMOUNT THAT CUSTOMER PAID
TO ORACLE FOR THE SERVICE FOR ONE YEAR.

Trademarks

The trademarks, logos, and service marks (“Marks”) displayed on the
Service and the Software are the property of Oracle or other third
parties. You are not permitted to use these Marks without the prior
written consent of Oracle or such third party which may own the
Mark. You are not permitted to distribute the Software utilizing
Oracle’s trademarks. You are not permitted to distribute the Software
utilizing Oracle trademarks.

Export Laws

Export laws and regulations of the United States and any other
relevant local export laws and regulations may apply to the service
deliverables.  You agree that such export control laws govern your use
of any Service deliverables provided under this agreement, and you
agree to comply with all such export laws and regulations (including
“deemed export” and “deemed re-export” regulations).  You agree that
no data, information, program and/or materials resulting from the
Service (or direct product thereof) will be exported, directly or
indirectly, in violation of these laws, or will be used for any
purpose prohibited by these laws including, without limitation,
nuclear, chemical, or biological weapons proliferation, or development
of missile technology.

Force Majeure

Neither of us shall be responsible for failure or delay of performance
if caused by: an act of war, hostility, or sabotage; act of God;
electrical, internet, or telecommunication outage that is not caused
by the obligated party; government restrictions (including the denial
or cancellation of any export or other license); other event outside
the reasonable control of the obligated party.  We both will use
reasonable efforts to mitigate the effect of a force majeure event.
If such event continues for more than 90 days, either of us may cancel
the unperformed Service upon written notice.  This section does not
excuse either party’s obligation to take reasonable steps to follow
its normal disaster recovery procedures or your obligation to pay for
the Service provided.

General Legal Terms

This Agreement and all claims relating to the relationship between the
parties are governed by the laws of the United States and of the State
of New York, without regard to choice of law provisions.  If one or
more of the provisions contained in this Agreement is held invalid,
illegal or unenforceable in any respect by any court of competent
jurisdiction, such holding will not impair the validity, legality, or
enforceability of the remaining provisions.

If you have a dispute with Oracle or if you wish to provide a notice
under the Protection in Event of Infringement section of this
agreement, or if you become subject to insolvency or other similar
legal proceedings, you will promptly send written notice to: Oracle
America, Inc., Attn: Ksplice, One Main Street, Seventh Floor,
Cambridge, MA, 02142.

Oracle reserves the right to amend or modify this Agreement at any
time and in any manner by providing reasonable notice to the
Customer. Customer agrees that reasonable notice may be provided by
posting on Oracle’s web site, email, or other written notice.

This Agreement constitutes the whole legal agreement between you and
Oracle, and completely replaces any prior agreements between you and
Oracle in relation to the Service.