Exaba End User Licence Agreement

Effective date: 18 August 2026

This End User Licence Agreement (EULA) sets out the terms on which you may use Exaba, our object storage platform for data backup. It is an agreement between Exaba Limited, a company incorporated in New Zealand (company number 9135153) (Exaba, we, us or our), and you – the person or organisation that uses Exaba.

By setting up, accessing or using Exaba, creating or using an Account, or clicking to accept, you agree to this EULA. If you are accepting for an organisation, you confirm you have authority to bind it, and “you” means that organisation. If you don’t agree, please don’t use Exaba.

1. Definitions

1.1 In this EULA:

Account means a tenancy within Exaba set up for a customer, which may include one or more Users;

Affiliate means an entity that controls, is controlled by, or is under common control with, a party;

Documentation means the guides, manuals and specifications for Exaba, as updated from time to time;

Exaba or the Software means our software-defined object storage platform for data backup, including its software, images, Licence Keys, Updates and Documentation;

Licence Key means a key or credential we issue that enables, activates or meters use of Exaba;

Partner means a person we authorise under a Partner Agreement to host and provide Exaba to customers;

Partner Agreement means our agreement with a Partner;

Telemetry Data has the meaning given in clause 5.2;

Updates means updates, upgrades, patches, new versions or fixes to Exaba that we make available from time to time;

User means an individual you authorise to access and use Exaba, including through an Account;

Your Data means the data that you, your Accounts or your Users store, back up or process using Exaba.

1.2 Other capitalised terms are defined where they first appear. Headings are a guide only. “Including” is not limiting, and references to a law include later changes to it.

2. About this agreement

2.1 If you have a separate signed agreement with us that covers Exaba, that agreement applies instead of this EULA where they differ.

2.2 Exaba is provided to you by or through a Partner under a Partner Agreement. This EULA governs your use of Exaba and sits alongside your agreement with the Partner (your Customer Agreement); it does not replace it. If your Customer Agreement conflicts with this EULA on our intellectual property, the restrictions in clause 8, the trade rules in clause 9, or the disclaimers and liability limits in clauses 15 and 16, this EULA applies.

2.3 We may rely on and enforce any part of your Customer Agreement that is expressed for our benefit. Your Customer Agreement cannot give you greater rights in Exaba than this EULA gives you.

3. Your licence to use Exaba

3.1 We grant you a personal, non-exclusive, non-transferable licence to use Exaba, and to hold and use one or more Accounts, solely for the backup and recovery of data (and not as primary or production storage), for as long as this EULA applies and you comply with it. If you are a business, this licence is for your internal business operations; if you are an individual, it is for your own use.

3.2 Resellers. If your Customer Agreement expressly permits, you may also provide Exaba-based services to your own customers (for example, by provisioning Accounts for them). If you do, you must ensure that each customer (and its Users) is bound by terms at least as protective of us as this EULA (including an equivalent indemnity in our favour). Except as this clause 3.2 allows, you must not resell, sublicense or provide Exaba, or access to it, to any third party.

3.3 You may allow Users to use Exaba through your Accounts. You are responsible for your Accounts, your Users, and anyone you allow to use Exaba through you, as if their acts were your own.

3.4 You will need a Licence Key to use Exaba, as we specify. We issue Licence Keys, and they enable, activate and meter Exaba and collect Telemetry Data.

3.5 This licence does not transfer any ownership of Exaba to you, and you cannot transfer, assign or sublicense it except as this EULA allows.

3.6 Evaluation version. Any container-based (Docker) version of Exaba that we make available for self-hosting is provided for your internal evaluation and testing only, and not for production or commercial use, unless we agree otherwise in writing.

4. Ownership of Exaba

4.1 Exaba is licensed, not sold. We (and our licensors) own Exaba, the Documentation and all intellectual property rights in them, including any changes, improvements or new versions.

4.2 We keep all rights we do not expressly grant you, and you may use Exaba only as this EULA allows.

4.3 If you give us feedback or suggestions about Exaba, we may use them freely and without charge, and we own any intellectual property that results.

5. Your data and privacy

5.1 Your data is yours. You keep all rights in Your Data, and we do not claim any ownership of it.

5.2 We do not access your content. Exaba is designed so that we do not access the content of Your Data. To run, meter and improve the service, we and our Affiliates process limited operational data and metadata – for example, information about how Exaba is used, its status and availability, and the volume and indexes of data stored (but not the stored content itself) (Telemetry Data). You authorise us to process Telemetry Data for these purposes, and you must obtain any consents from your Users (and any customers you serve) that we need in order to do so.

5.3 Privacy. Where we handle personal information, we do so in line with our Privacy Policy and applicable privacy laws (including, in New Zealand, the Privacy Act 2020). You are responsible for having the right to store Your Data – including any personal information about other people – and for complying with the privacy and other laws that apply to it.

6. Acceptable use

6.1 You may use Exaba only for the lawful backup and recovery of data. You must not use Exaba, and must not allow anyone else to use it, to:

(a) store or share data you do not have the right to store or share;

(b) store or distribute content that is unlawful, infringes someone’s rights (including intellectual property or privacy), or is harmful, malicious or deceptive;

(c) distribute malware, or to attack, disrupt or gain unauthorised access to any system, network or data;

(d) break any law or regulation, or any acceptable-use or content rules your Partner applies; or

(e) interfere with, overload, or undermine the security, integrity or proper operation of Exaba or anyone else’s use of it.

6.2 You are responsible for everything that happens in your Accounts and for everyone you let use Exaba through you.

7. Your responsibilities

7.1 You are responsible for your Accounts, Users, credentials and Licence Keys, and for keeping them secure. Tell us or your Partner promptly if you become aware of any unauthorised use or security problem.

7.2 Exaba is hosted and operated for you by a Partner on the Partner’s infrastructure. As between you and us, you are responsible for how you set up, configure and use your Accounts, for Your Data, and for your compliance with this EULA. We are not responsible for the hosting environment or underlying infrastructure, or for any problems, outages, loss of data or security breaches arising from infrastructure or systems operated by you or your Partner rather than from the Software itself.

8. Software restrictions

8.1 You must, and must ensure that your Accounts, your Users, and anyone you allow to use Exaba or access it through you (including any customers you serve under clause 3.2 and their users):

(a) use Licence Keys (if any) only as we issue them, and do not disclose, share, transfer or otherwise make them available to any other person except as necessary to operate an Account and as we permit in writing;

(b) treat Exaba, the Documentation and Licence Keys as our Confidential Information in accordance with clause 14; and

(c) use Exaba only within the scope, capacity, deployment and configuration licensed to you or notified by us, and not beyond any limit enabled or metered by the applicable Licence Key.

8.2 You must not, and must ensure your Users do not, except where the law allows:

(a) copy, modify or create derivative works from Exaba, or reverse engineer, decompile or disassemble it, or try to derive its source code;

(b) resell, sublicense, rent, lease, distribute or provide Exaba, or access to it, to any third party, except as clause 3.2 allows;

(c) remove or obscure any ownership or proprietary notices, or use our trade marks, logos or branding;

(d) circumvent, disable or interfere with any licensing, metering, security or use-restriction control; install any counterfeit, unauthorised or tampered version of Exaba; or obtain Updates other than from us or an authorised provider;

(e) use Exaba to build, or help build, anything that competes with it, or publish benchmarking or performance results about Exaba without our written consent;

(f) attack or undermine the security, integrity or intended operation of Exaba; or

(g) use Exaba for any unlawful purpose, for any high-risk activity where failure could cause death, injury or serious damage (such as nuclear, aviation, life-support or weapons systems), or in connection with weapons of mass destruction.

9. Trade and sanctions compliance

9.1 You must comply with all applicable trade, sanctions and export-control laws. You must not use, export, re-export, supply or transfer Exaba, directly or indirectly, to or for any person, country or use restricted under those laws, including any person subject to sanctions (a Sanctioned Person) or owned or controlled by one.

9.2 You confirm that neither you nor your Users is a Sanctioned Person or located in a country under comprehensive sanctions. We may suspend or end your licence to enforce this clause.

10. Third-party and open source software

10.1 Exaba may include third-party or open source software that is licensed under its own terms (Third Party Terms). That software is governed by its Third Party Terms, not this EULA, and you must comply with them.

10.2 Where required, notices and (for open source software) source files or offers are made available in the Documentation, in a NOTICES or “read me” file, or at a location we specify.

10.3 Our warranties and other obligations do not cover third-party software, and we are not liable for it except where the law does not allow us to exclude liability.

11. Updates, support and availability

11.1 We may provide Updates from time to time at our discretion. Access to Updates, support and maintenance may require a valid support entitlement under a Partner Agreement or separate agreement.

11.2 We do not provide support directly under this EULA. Any support, maintenance, service levels or warranties come from your Partner (or a separate agreement with us). For help with Exaba, contact your Partner first.

11.3 We aim to keep Exaba available, but unless a specific service level has been agreed with you, we do not guarantee that Exaba will be available without interruption or error.

12. Suspension

12.1 We or your Partner may suspend your access to Exaba if: you materially breach this EULA (including clause 6, Acceptable use); we reasonably think suspension is needed to protect Exaba, other customers or any person; the law requires it; or fees for your use are overdue.

12.2 Where we reasonably can, we will give you notice, and we will restore access once the issue is resolved. Suspending your access does not reduce your other obligations under this EULA.

13. Compliance and audit

13.1 We meter your use of Exaba automatically through Licence Keys and Telemetry Data (see clauses 3.4 and 5.2), and calculate the fees payable from that data. You must not interfere with, disable or circumvent this metering. Where Exaba is used offline or in an air-gapped environment so that Telemetry Data cannot reach us, you must give us (or have your Partner give us) periodic usage reports so that we can meter your use and calculate fees.

13.2 We may verify your compliance with this EULA, including by reviewing Telemetry Data and, on reasonable notice, by auditing through your Partner or auditors under confidentiality. An audit will not give us access to the content of Your Data. If your use exceeds what is licensed or paid for, you must promptly correct it and pay the fees due, and if the shortfall is material (5% or more) you must also cover our reasonable audit costs.

14. Confidentiality

14.1 “Confidential Information” means non-public information we make available that is marked as, or would reasonably be understood to be, confidential – including Exaba, the Documentation and Licence Keys. You must keep our Confidential Information confidential, use it only for this EULA, and share it only with Users who need it and are under similar confidentiality obligations. This does not apply to information you are required to disclose by law (tell us first where you can), or that becomes public other than through your breach.

15. Warranties and disclaimer

15.1 Under this EULA we provide no warranties for Exaba and no support. Any warranty or support entitlement for Exaba you acquire for a fee is solely between you and the Partner or Exaba entity you obtained it from, on the commercial terms you agreed with them. Except as we otherwise offer, Exaba is provided “as is”. To the fullest extent the law allows, we (for ourselves, our Affiliates and suppliers): (a) make no express warranties about Exaba; (b) disclaim all implied warranties, including merchantability, fitness for a particular purpose, title and non-infringement; and (c) disclaim any warranty arising by statute, operation of law, course of dealing or performance, or usage of trade. We do not warrant that Exaba will operate uninterrupted or error-free. This clause does not affect statutory rights that cannot be excluded, including those available to consumers.

16. Limitation of liability and your backups

16.1 Commercial terms apply first. The limitations, exclusions and disclaimers of liability in any Partner Agreement or Customer Agreement that applies to you (the Commercial Terms) apply to all disputes, claims or controversies (whether in contract, tort or otherwise) between you and us relating to or arising out of this EULA, its breach, termination or validity, or your use of Exaba (each, a Dispute). If no Commercial Terms apply, this clause applies. These terms are an agreed allocation of risk between the parties. If applicable law prohibits any part of these limits, that part is modified only as far as needed to comply.

16.2 Cap on direct damages. Except for your obligation to pay for Exaba, your indemnity under clause 17, or your breach of clause 3 (licence), clause 6 (acceptable use), clause 8 (restrictions) or clause 9 (trade compliance) or of our intellectual property rights, the total liability of you and us (including our Affiliates and suppliers) arising out of any Dispute is limited to the amount you paid to us for Exaba services that are the subject of the Dispute (excluding amounts paid as reimbursement of expenses or taxes). We have no liability for any damages arising from third-party or evaluation software.

16.3 Other damages excluded. Except for the matters listed in clause 16.2, neither you nor we (including our Affiliates and suppliers) will be liable under this EULA for any special, consequential, exemplary, punitive, incidental or indirect damages, or for any loss of profit, loss of revenue, loss or corruption of data, loss of use, or cost of procuring substitute products or services.

16.4 Your data and backups. You are solely responsible for Your Data. You must keep your own independent, up-to-date backups of Your Data (and should keep more than one copy), and back up before any remedial, upgrade or other work is done on your systems. To the fullest extent the law allows, we have no liability for any loss of, damage to, or corruption of Your Data, however it arises.

16.5 What we don’t exclude. Nothing in this EULA limits liability that cannot be limited by law, including for death or personal injury caused by negligence, or for fraud or wilful misconduct.

16.6 Time limit. Unless applicable law requires otherwise, any claim relating to this EULA must be brought within 12 months after the cause of action accrues.

17. Indemnity

17.1 Any indemnity terms in the Commercial Terms (as defined in clause 16.1) apply in addition to this clause and, where more favourable to you, prevail over it to the extent of any inconsistency.

17.2 You will defend us, our Affiliates and licensors against any third-party claim arising out of or relating to: (a) Your Data, or any data you or your Users store, back up or process using Exaba (including any claim that it is unlawful or infringes or misuses a third party’s intellectual property, privacy or other rights); (b) your or your Users’ use of Exaba in breach of this EULA or applicable law (including clause 6 (Acceptable use) and clause 9 (Trade and sanctions compliance)); or (c) your breach of this EULA. You will indemnify us against the damages, costs and reasonable legal fees finally awarded against us, or agreed by us in settlement, for such a claim.

17.3 To be indemnified, we will: (a) notify you of the claim promptly; (b) give you control of its defence and settlement (except that you may not settle in a way that imposes any obligation or admission on us without our consent); and (c) reasonably cooperate with you, at your expense.

18. Term and termination

18.1 This EULA starts when you first accept it or first use Exaba, and continues until it ends under this clause.

18.2 We may end this EULA or suspend the licence if: you materially breach it and do not remedy the breach within 30 days of our notice (or immediately, if it cannot be remedied); you or the Partner from whom you obtained Exaba do not pay the fees due for it on time; you become insolvent; or as clause 9 allows. Any subscription term ends automatically at the end of that term unless renewed, and this EULA ends automatically if the Partner Agreement under which Exaba is provided to you ends – but see clause 17.3.

18.3 When this EULA ends, all licences granted under it end and you must stop using Exaba and delete or destroy your copies of it (you may keep Your Data you are entitled to keep). Except as we otherwise agree, you will not receive a refund. If your Partner Agreement ends, we will allow continued use of Exaba for migration and disengagement for up to 12 months, unless we ended this EULA for your material breach or under clause 9.

18.4 Any clauses meant to continue after termination (including clauses 4, 5, 6, 8, 9, 10, 13, 14, 15, 16, 17, 19 and 20, and any amounts owed) survive.

19. Governing law and disputes

19.1 This EULA is governed by the laws of New Zealand.

19.2 The New Zealand courts have non-exclusive jurisdiction over any dispute arising out of or in connection with this EULA. Before going to court (except for urgent relief), the parties will give written notice of the dispute and try in good faith to resolve it, including by meeting within 14 days of the notice.

19.3 New Zealand consumer law. You acquire Exaba, and we supply it, in trade, and you and we agree that the Consumer Guarantees Act 1993 does not apply to the extent the law allows you to contract out of it. This clause does not limit any right you have under the Fair Trading Act 1986 or any other statutory right that cannot be excluded. You agree it is fair and reasonable to be bound by this clause.

20. General

20.1 Notices. Notices must be in writing – to us at our registered office or legal@exaba.com, and to you through Exaba or the contact details you or your Partner have provided.

20.2 Assignment. You may not assign, novate, delegate or otherwise transfer this EULA, or any right or obligation under it, without our prior written consent; even if we consent, you remain responsible for obligations you incurred before the transfer. We may assign, novate or transfer this EULA and our rights and obligations under it, in whole or in part, without your consent.

20.3 Others’ rights. Our Affiliates and licensors may rely on the protections in this EULA that are expressed for their benefit. Otherwise, a person who is not a party to this EULA cannot enforce it.

20.4 Changes. We may update or replace this EULA in full from time to time for legal, technical or business reasons. The current version is posted online with its effective date, and we may also notify you by in-product notice, in release notes or by email. Any updated or replacement version applies from its effective date, and your continued use of Exaba after that date means you accept it. If you have a Partner Agreement or Customer Agreement with amendment rules that apply to your commercial or licence terms, those rules apply instead of this clause to the extent they differ.

20.5 Other. If we do not enforce a term, we do not waive it. If a term is unenforceable, the rest still applies and that term is adjusted only as far as needed. This EULA, together with any Partner Agreement or Customer Agreement that applies to you, is the entire agreement about your use of Exaba.

By accepting this EULA, or by using Exaba or an Account, you agree to these terms.