Acceptance of this Agreement

This Opsware Inc., formerly known as Loudcloud, web site and all of its information (the "Web Site") are provided to you under these "Terms of Use" and any amendments to these Terms of Use that may be posted by Opsware Inc. from time to time (collectively, the "Agreement"). BY ACCESSING, BROWSING AND/OR USING THIS SITE AND/OR ANY WEB SITES PROVIDED BY OPSWARE, INC., FORMERLY KNOWN AS LOUDCLOUD, YOU AGREE TO BE BOUND BY THE AGREEMENT. The Agreement constitutes the entire agreement between you and Opsware Inc. and supercedes any prior agreements between you and Opsware Inc. regarding the use and contents of this Web Site.

Privacy

The information that we obtain through your use of the the site, or through any registration process or otherwise, is subject to our Privacy Policy.

Modifications to this Agreement

Opsware Inc. may make changes to this Agreement from time to time in its sole discretion, and will post any such changes on the Web Site. Your continued use of the Web Site constitutes your acceptance of any such changes.

Modification or Suspension of the Web Site

You agree that Opsware Inc. may, in its sole discretion, and at any time, discontinue, suspend or modify its operation of this Web Site, or any part thereof, temporarily or permanently, without notice to you, and you agree that Opsware Inc. shall not be liable therefor.

International Use

You agree to comply with all applicable local laws regarding online conduct and acceptable Content, including without limitation, laws regarding the transmission of technical data exported from the United States or the country in which you reside.

No Reselling of Web Site

You agree not to sell, resell, reproduce, duplicate, copy or use for any commercial purposes any portion of the Web Site, or use of or access to the Web Site.

Termination

You agree that Opsware Inc. may, in its sole discretion, and at any time, terminate your use of the Web Site, and may remove or delete any Content within the Web Site, for any reason, without prior notice to you. You further agree that Opsware Inc. shall not be liable to you or to any third-party for any termination of your use of or access to the Web Site. In the event of any termination of this Agreement or your use of or access to the Web Site, you agree the provisions regarding Proprietary Rights, Indemnification, Disclaimer or Warranties, and Limitations of Liability shall survive any such termination.

Proprietary Rights

You agree that content available through the Web Site, including without limitation, content in the form of text, graphics, software, music, sound, photographs, and videos, and content provided by suppliers, sponsors or third party advertisers, is protected by copyrights, trademarks, patents or other proprietary rights and laws. Except as expressly authorized by Opsware Inc. or the applicable supplier, sponsor or advertiser, you agree not to copy, modify, rent, lease, loan, sell, assign, distribute, license, reverse engineer or create derivative works based on the Web Site or any content (including without limitation any software) available through the Web Site.

Disclaimer of Warranties

YOU EXPRESSLY UNDERSTAND AND AGREE THAT YOUR USE OF THE WEB SITE IS AT YOUR SOLE RISK.THE WEB SITE IS PROVIDED ON AN "AS IS" AND "AS AVAILABLE" BASIS. TO THE FULLEST EXTENT PERMISSIBLE PURSUANT TO APPLICABLE LAW, OPSWARE INC. EXPRESSLY DISCLAIMS ALL WARRANTIES OF ANY KIND, WHETHER EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION ANY WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT.

OPSWARE INC. DOES NOT MAKE ANY WARRANTY THAT THE WEB SITE WILL MEET YOUR REQUIREMENTS, OR THAT THE WEB SITE WILL BE UNINTERRUPTED, TIMELY, SECURE, OR ERROR FREE, OR THAT DEFECTS, IF ANY, WILL BE CORRECTED; NOR DOES OPSWARE INC. MAKE ANY WARRANTY AS TO THE RESULTS THAT MAY BE OBTAINED FROM THE USE OF THE WEB SITE, AS TO THE ACCURACY OR RELIABILITY OF ANY INFORMATION OBTAINED THROUGH THE WEB SITE, AS TO THE QUALITY OF ANY PRODUCTS, WEB SITES, INFORMATION OR OTHER MATERIAL PURCHASED OR OBTAINED BY YOU THROUGH THE WEB SITE OR AS A RESULT OF THE WEB SITE, OR AS TO ANY TRANSACTIONS ENTERED INTO BY USE OF OR AS A RESULT OF THE WEB SITE.

YOU UNDERSTAND AND AGREE THAT ANY MATERIAL AND/OR DATA DOWNLOADED OR OTHERWISE OBTAINED THROUGH THE USE OF THE WEB SITE IS AT YOUR OWN DISCRETION AND RISK AND THAT YOU WILL BE SOLELY RESPONSIBLE FOR ANY DAMAGE TO YOUR COMPUTER SYSTEM OR LOSS OF DATA THAT RESULTS FROM THE DOWNLOAD OF SUCH MATERIAL AND/OR DATA.

NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED BY YOU FROM OPSWARE INC. OR THROUGH THE WEB SITE SHALL CREATE ANY WARRANTY NOT EXPRESSLY MADE HEREIN.

Limitations of Liability

YOU EXPRESSLY UNDERSTAND AND AGREE THAT UNDER NO CIRCUMSTANCES, INCLUDING, WITHOUT LIMITATION, NEGLIGENCE, SHALL OPSWARE INC. OR ITS PARENTS, SUBSIDIARIES, AFFILIATES, OFFICERS, DIRECTORS, EMPLOYEES, AGENTS, OR SUPPLIERS BE LIABLE FOR ANY DIRECT, INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL OR EXEMPLARY DAMAGES, INCLUDING WITHOUT LIMITATION DAMAGES FOR LOSS OF PROFITS, USE, DATA, GOODWILL OR OTHER INTANGIBLES, EVEN IF OPSWARE INC. OR ITS SUPPLIER HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, RESULTING FROM: (1) THE USE OR THE INABILITY TO USE THE WEB SITE, (2) THE COST OF PROCUREMENT OF SUBSTITUTE GOODS AND WEB SITES RESULTING FROM ANY GOODS, DATA, INFORMATION OR WEB SITES PURCHASED OR OBTAINED OR MESSAGES RECEIVED OR TRANSACTIONS ENTERED INTO BY MEANS OF OR THROUGH THE WEB SITE, (3) UNAUTHORIZED ACCESS TO OR ALTERATION OF YOUR TRANSMISSIONS OR DATA, (4) THE STATEMENTS OR CONDUCT OF ANY THIRD PARTY ON THE WEB SITE, (5) THE CONTENT OF THE OPSWARE INC. DIRECTORY, OR, (6) ANY OTHER MATTER RELATING TO THE WEB SITE.

SOME JURISDICTIONS DO NOT ALLOW THE LIMITATION OR EXCLUSION OF LIABILITY FOR INCIDENTAL OR CONSEQUENTIAL DAMAGES SO SOME OF THE ABOVE MAY NOT APPLY TO YOU.

Your Contact With Third Parties

Your dealings with third parties found on or through the Web Site, including your participation in promotions, the payment for and delivery of goods and Web Sites, and any terms, conditions, warranties or representations associated with such dealings are solely between you and the third party. Opsware Inc. does not make any representations or warranties with respect to any goods or Web Sites which may be obtained from such third parties, and you agree that Opsware Inc. will have no liability with respect to any loss or damage of any kind incurred as a result of any dealings between you and any third party, or as a result of the presence of such third parties on the Web Site.

Links

The Web Site, or third parties on the Web Site, may provide links to other sites and/or resources over which Opsware Inc. has no control. You agree that Opsware Inc. has no responsibility for and no liability for the availability of such external sites or resources, or for the Content, advertising, products or other materials available through such sites or resources.

Indemnification

You agree to indemnify and hold harmless Opsware Inc., its parents, subsidiaries, affiliates, officers, directors, agents, employees, co-branders or other partners, and suppliers, from any claim, demand, action, or damage, including reasonable attorneys’ fees, made by any third party due to, arising out of or related to your use of the Web Site, your violation of the Agreement or any rights of another, or your connection to the Web Site.

Trademark Notices

Opsware, Opsware System 3, Opsware Automation Platform, Service Automation Module, Opsware Command Center, Intelligent Software Module, Multimaster, Opsware Agent, Opsware Command Engine, Relationship Map, Environment Blueprint are service marks and trademarks of Opsware Inc. You may not use or display these marks without Loudcloud’s prior written consent. All other trademarks appearing on the Web Site are the property of their respective owners.

Copyright, Copyright Agent

Opsware Inc. respects the intellectual property of others, and we ask our users to do the same. If you believe that your work has been copied in a way that constitutes copyright infringement, please provide Opsware Inc.’s Copyright Agent the following information:

1. an electronic or physical signature of the person authorized to act on behalf of the owner of the copyright interest;
2. a description of the copyrighted work that you claim has been infringed;
3. a description of where the material that you claim is infringing is located on the Web Site;
4. your address, telephone number, and email address;
5. a statement by you that you have a good faith belief that the disputed use is not authorized by the copyright owner, its agent, or the law;
6. a statement by you, made under penalty of perjury, that the above information in your notice is accurate and that you are the copyright owner or authorized to act on the copyright owner’s behalf.

Opsware Inc.’s Copyright Agent for Notice of claims of copyright infringement on its site is Jordan J. Breslow, who can be reached as follows:

• By mail: 599 N. Mathilda Ave., Sunnyvale, CA 94085
• By telephone: +1 (408) 744-7577
• By email: [email protected]

Applicable Law

This Agreement shall be governed by and construed in accordance with the laws of the State of California, without giving effect to conflict of laws provisions. You and Opsware Inc. agree to submit to the personal and exclusive jurisdiction of the courts located within the county of Santa Clara, California.

Miscellaneous

If any provision of this Agreement is found by a court or other binding authority to be invalid, you agree that every attempt shall be made to give effect to the parties’ intentions as reflected in that provision, and the remaining provisions contained in this Agreement shall continue in full force and effect.

You agree that any claim or cause of action arising out of your use of the Web Site or this Agreement must be filed within one year after such claim or cause of action arose or it shall forever be barred, notwithstanding any statute of limitations or other law to the contrary. Any failure by Opsware Inc. to enforce or exercise any provision of this Agreement or related right shall not constitute a waiver of that right or provision.