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BEFORE YOU INSTALL OR USE THIS LSI SOFTWARE READ THE FOLLOWING

USE (INCLUDING INSTALLATION, COPYING OR ANY OTHER USE) OF THIS LSI SOFTWARE IS SUBJECT TO THIS AGREEMENT   

IMPORTANT - READ CAREFULLY: This Software License Agreement ("SLA") is a legal agreement between you (either an individual or a single entity) and LSI Corporation ("LSI") for the LSI Licensed Software identified herein and licensed herein, which includes computer software and may include associated media, printed materials, and "online" or electronic documentation ("LICENSED SOFTWARE"). By installing, copying, or otherwise using the LICENSED SOFTWARE, you agree to be bound by the terms of this SLA.  If you do not agree to the terms of this SLA, you may not install, copy or use the LICENSED SOFTWARE.  The LICENSED SOFTWARE is licensed, not sold.

 

YOU MAY EXPERIENCE SLOWED STORAGE PRODUCT PERFORMANCE WITH USE OF THIS SOFTWARE AND ANY USE IS PURELY AT YOUR OWN RISK

 

NOW THEREFORE, in consideration of the foregoing and the mutual promises and covenants contained in this SLA (also referred to as "Agreement"), the parties hereby agree as follows:

1.  Definitions

2.  Grant of Rights

2.1            LSI Binary Code.  Subject to the terms of this Agreement, LSI grants to Licensee a non-exclusive, world-wide, revocable (for breach in accordance with Section 7), non-transferable limited license, without the right to sublicense except as expressly provided herein, solely to:

2.2             LSI Source Code.  Subject to the terms of this Agreement, LSI grants to Licensee a non-exclusive, worldwide, revocable (for breach in accordance with Section 7), non-transferable  limited license, without the right to sublicense except as expressly provided herein, solely to:

(a) Use the LSI Source Code and related Explanatory Materials solely for the Authorized Use for Source Code;

(b)  Make copies of the LSI Source Code and related Explanatory Material to support the Authorized Use for Source Code only and for archival and backup purposes in support of the Authorized use for Source Code;

(c) Modify and prepare Derivative Works of the LSI Source Code for the Authorized Use for LSI Source Code;

(d)  Distribute the binary form only of any authorized Derivative Work of the LSI Source Code ("Licensee Binary Derivative") and necessary portions of the related Explanatory Materials; and

(e)  Sublicense the rights granted in paragraph (d) above in accordance with the terms provided in this Agreement to Subsequent Users who are not end users for the purpose of distributing and supporting Storage Products and/or LSI Devices.

2.3            LSI Internal Use Code.  Subject to the terms of this Agreement, LSI grants to Licensee a non-exclusive, worldwide, revocable (for breach in accordance with Section 7), non-transferable  limited license, without the right to sublicense or distribute, solely to:

(a) Use the LSI Internal Use Code and related Explanatory Materials solely for the Authorized Use for Internal Code; and

(b)  Make copies of the LSI Internal Use Code and related Explanatory Materials to support the Authorized Use for Internal Code only and for archival and backup purposes in support of the Authorized use for Internal Code.

2.4 Feedback and Results.  Licensee and Subsequent Users shall provide the Results to LSI and may provide Feedback to LSI.  LSI shall own all Feedback it receives, subject to any intellectual property rights of the Licensee or Subsequent User.  LSI may use the Feedback provided and/or the Results from Licensee or a Subsequent User for any purpose, without restriction, including to develop and sell new or existing products.  Licensee and Subsequent Users hereby grant LSI a royalty-free, non-exclusive, world-wide, irrevocable, transferable, sublicensable license to use, copy, make, have made, sell, have sold, distribute the Results or Feedback for any purpose.  The Results are not considered Confidential Information, pursuant to this Agreement.  

      2.4.1 Any Results are based on the information, data or traces collected from Licensee’s or Subsequent User’s Storage Product and environment.  No Storage Product user data is collected as part of the Results.  The generated Results may vary and may contain inaccuracies.  Any content of the Results are intended for planning and evaluation purposes only.  The actual performance or experience from use of LSI Devices or a Storage Product may vary depending on many factors, including but not limited to workload characteristics, environment, configuration, third party components, and tuning.  Any reliance on the Results is purely at the Licensee’s or Subsequent User’s own risk and expense.

2.5 Without limiting Section 4, Licensee may exercise the foregoing license rights in Sections 2.1 to 2.3 directly and/or indirectly through its employees and contractors, who are bound by terms at least as restrictive as this Agreement.

3.  License Restrictions

3.1.            LSI Binary Code.  The Licenses granted in Section 2.1 for LSI Binary Code and related Explanatory Materials are subject to the following restrictions:

3.2.            LSI Source Code.  The Licenses granted in Section 2.2 for LSI Source Code and related Explanatory Materials are subject to the following restrictions:

 

 3.3.            LSI Internal Use Code.  The Licenses granted in Section 2.3 for LSI Internal Use Code and related Explanatory Materials are subject to the following restrictions:

3.4.            Derivative Works of LSI Source Code Made by Licensee.  Subject to LSI's rights in the underlying LSI Source Code, Licensee shall own all right, title and interest in and to the Derivative Works (both binary and source format) it makes from LSI Source Code, provided that such Derivative Works are not made in breach of this Agreement.  Licensee shall not be required to disclose its Derivative Works of the LSI Source Code to LSI.  LSI shall have no obligations whatsoever to support, maintain, contribute to, or provide Updates, New Versions or any modifications to Licensee Derivative Works of the LSI Source Code and shall have no liability whatsoever for such Derivative Works.  In the event Licensee requests LSI's input regarding Licensee Derivative Works of LSI Source Code and plans to disclose such Derivative Works to LSI, a separate written agreement shall first be executed by the parties.  

3.5.            LSI Derivative Works.  Nothing contained herein shall prevent LSI from creating any Derivative Works of its LSI Source Code at any time.  Licensee further agrees that LSI may independently create a Derivative Work similar to or in competition with the Licensee Derivative Work of the LSI Source Code and may use that Derivative Work for any purpose.  Licensee grants LSI a Covenant Not to Sue for any independently developed Derivative Works created by LSI for its own LSI Source Code that Licensee may believe or claim infringes on any of Licensee's Intellectual Property Rights relating to the Licensee Derivative Works of the LSI Source Code.

3.6.            U.S. Government Subsequent Users. All LSI Licensed Code and Explanatory Materials qualify as "commercial items," as that term is defined at 48 C.F.R. 2.101, consisting of "commercial computer software" and "commercial computer software documentation" as such terms are used in 48 C.F.R. 12.212. Consistent with 48 CFR 52.227-19, 48 C.F.R.12.212 and 48 C.F.R. 227.7202-1 through 227.7202-4, Licensee will provide to U.S. Government end users such LSI Binary Code with only those rights set forth herein that apply to non-governmental end users. Use of such LSI Binary Code constitutes agreement by the government entity that the computer software and computer software documentation is commercial and constitutes acceptance of the rights and restrictions herein.

3.7.            No Implied Licenses.  Except for the express and limited licenses granted herein for specific purposes, no rights or licenses are granted by LSI under this Agreement, by implication, inducement, estoppel or otherwise with respect to any proprietary information or to any patents, copyrights, trade secrets, trademarks, maskworks or other Intellectual Property Rights owned or controlled by LSI.  Any further licenses must be express, in writing and signed by an authorized representative of LSI.

3.8.            Injunctive Relief.  In the event of a breach by Licensee of this Section 2 or 3, LSI shall be entitled to applicable injunctive relief and to all remedies available in equity and law to prevent Licensee from disassembling, de-compiling, reverse engineering, disclosing or using the LSI Licensed Code in whole or in part.  

3.9.            LSI Licensed Code Containing JRE.  Certain LSI Licensed Code may contain JRE.  Use of the JRE is restricted by JRE licensing terms to General Purpose Desktop Computers and Servers, as defined below.  Licensee may seek its own license for the JRE directly with the owner, if it deems necessary.  "General Purposes Desktop Computers and Servers" under JRE licensing terms is defined as "computers, including desktop, laptop and tablet computers, or servers, used for general computing functions under end user control (such as but not specifically limited to email, general purpose Internet browsing and office suite productivity tools)".  The full terms and conditions for use of the JRE are available at:  https://cds.sun.com/is-bin/INTERSHOP.enfinity/WFS/CDS-CDS_Developer-Site/en_US/-/USD/ViewLicense-Start.

4.  Confidentiality

4.1            Licensee agrees to limit access to the LSI Licensed Code and Explanatory Materials to employees and contractors of Licensee (which may include, without limitation, contractors retained by Licensee to maintain or modify the LSI Licensed Code and Explanatory Materials on behalf of Licensee) having a need to access or know the LSI Licensed Code and Explanatory Materials and who have executed nondisclosure agreements with Licensee obligating them to maintain the confidentiality of the LSI Licensed Code and Explanatory Materials.

4.2            Licensee shall hold in confidence the LSI Licensed Code and Explanatory Materials as LSI's confidential information ("Confidential Information") and shall use the LSI Code and Explanatory Materials only as expressly provided in Section 2, and protect the confidentiality of such Confidential Information with the same degree of care as Licensee uses to protect its own confidential or proprietary information of great commercial value, but in no event less than reasonable care and for no less than three (3) years from the date of disclosure.

4.3            Licensee agrees to notify LSI immediately after Licensee becomes aware of any suspected misuse or unauthorized disclosure of any Confidential Information.  The obligations of confidentiality imposed on Licensee under this Section 4 shall not apply or shall cease to apply to any of such Confidential Information that Licensee clearly establishes: (i) was already rightfully in the possession of Licensee at the time of disclosure as evidenced by records of Licensee; (ii) is or becomes publicly available through no act or omission of Licensee; (iii) is rightfully received by Licensee from a third party without an obligation of confidentiality; (iv) is independently developed by Licensee's employees or contractors without use of or access to the information; or (v) is approved for unrestricted disclosure in writing by an authorized representative of LSI.  LSI makes no warranty as to the accuracy of any Confidential Information, which is furnished "AS IS" with all faults.

5.  Ownership of Code by LSI, Fees, and Taxes

5.1  LSI reserves all right, title, ownership and interest in and to the LSI Licensed Code and Explanatory Materials existing prior to and after the Effective Date of this Agreement, or created or generated by LSI at any time, subject to any licenses granted.  LSI reserves all right, title, ownership and interest in and to any Derivative Works it creates at any time to the LSI Licensed Code and Explanatory Materials, subject to any licenses granted.

5.2  Fees and Taxes.  No fees are due in connection with this Agreement unless separately specified by LSI.  If any such fees are separately specified in writing, the following applies: 

6.  Support

7.  Term and Termination

 

 10.  General

10.1  Assignment.  Licensee shall not assign this Agreement or any of its rights or delegate any of its duties under this Agreement without the prior written consent of LSI.  Subject to the foregoing, this Agreement will be binding upon, enforceable by, and inure to the benefit of the parties and their respective successors and assigns.  Any attempted assignment in violation of this Section 10.1 shall be null and void.

10.2    Governing Law.  This Agreement shall be construed and interpreted in accordance with the law of the State of California without reference to its conflicts of law principles.

10.3  Exclusive Jurisdiction. All disputes arising out of or related to this Agreement will be subject to the exclusive jurisdiction and venue of the California state courts of Santa Clara County, California in United States District Court for the Northern District of California, and the parties consent to the personal and exclusive jurisdiction of these courts.

10.4  Export Control.  Licensee shall follow all export control laws and regulations relating to the LSI Licensed Code, Explanatory Materials, Feedback and Results.  Licensee hereby acknowledges responsibility for compliance with all applicable US and local laws and regulations related to import and export and acknowledges and agrees that the LSI Licensed Code is subject to the U.S. Export Administration Regulations. Diversion contrary to U.S. law is prohibited. Licensee agrees that the LSI Licensed Code is being or will be acquired for, shipped, transferred, or re-exported, directly or indirectly, to prohibited or embargoed countries, nor be used for any prohibited end-use, such as nuclear activities, chemical/biological weapons, or missile projects, unless expressly authorized by the U.S. Government.  Prohibited countries are set forth in the Supplement 1 to Part 740 of the U.S. Export Administration Regulations. Countries currently subject to U.S. embargo include: Cuba, Iran, N. Korea, Sudan and Syria. This list is subject to change without further notice from LSI Corporation and Licensee understands that compliance with the list as it exists in fact, is required.  Licensee assumes sole responsibility for obtaining any/all licenses required for export or re-export.  All ECCN and CCATS numbers and License Exception information are subject to change without notice. Modification in any way nullifies the classification. It is therefore your obligation as an exporter to verify such information and comply with the then currently applicable regulations. Any data provided by LSI is for informational purposes only.  LSI Corporation makes no representation or warranty as to the accuracy or reliability of any classifications or numbers.  Any use of such classifications or numbers by you is without recourse to LSI Corporation and is at your own risk.  LSI Corporation is in no way responsible for any damages, whether direct, indirect, consequential, incidental or otherwise, suffered by you as a result of using or relying upon such classifications or numbers for any purpose whatsoever. Licensee agrees to consult the EAR, the Bureau of Industry and Security's Export Counseling Division, and other appropriate sources before distributing, importing, or using LSI products. You may request software classification information from LSI or view it at LSI.com.  If requested, Customer agrees to sign written assurances and other export-related documents as may be required by LSI.

10.5  Waiver.  No failure or delay on the part of either party in the exercise of any right or privilege hereunder shall operate as a waiver thereof or of the exercise of any other right or privilege hereunder, nor shall any single or partial exercise of any such right or privilege preclude other or further exercise thereof or of any other right or privilege.

10.6   Notice.  Any notice or claim provided for herein to LSI shall be in writing and addressed as set forth below, and shall be given (i) by personal delivery, effective upon delivery, (ii) by first class mail, postage prepaid, addressed as set forth below, effective one (1) business day after proper deposit in the mail, or (iii) by facsimile directed to the facsimile number set forth below, but only if accompanied by mailing of a copy in accordance with (ii) above, effective as of the date of facsimile transmission.

     
    Vice President

    Global Commercial Law Group

    LSI Corporation
    Room 12K-302
    Allentown, PA  18109

    Fax:  (610) 712-1450; and

     

    LSI Corporation

    Legal Department

    1621 Barber Lane

    Milpitas, CA 95035

      Fax. (408) 433-7770

 

10.7  Severability.  If any term, condition, or provision of this Agreement, or portion of this Agreement, is found to be invalid, unlawful or unenforceable to any extent, the parties will endeavor in good faith to agree to such amendments that will preserve, as far as possible, the intentions expressed in this Agreement. Such invalid term, condition or provision will be severed from the remaining terms, conditions and provisions, which will continue to be valid and enforceable to the fullest extent permitted by law.

10.8  Other Rights.  Nothing contained in this Agreement shall be construed as conferring by implication, estoppel, or otherwise upon either party or any third party any license or other right except, solely as to the parties hereto, the rights expressly granted hereunder.

10.9  Integration; Modification.  This Agreement embodies the final, complete and exclusive statement of the terms agreed upon by the parties with respect to the subject matter hereof and supersedes any prior or contemporaneous representations, descriptions, courses of dealing, or agreements in regard to such subject matter.  No amendment or modification of this Agreement shall be valid or binding upon the parties unless stated in writing and signed by an authorized representative of each party.

10.10  Publicity.  All publicity concerning this transaction referring to the other party shall require the other party's prior written approval which shall not be unreasonably withheld.

10.11  Relationship of the Parties.  The relationship of the parties hereto is that of independent contractors.  Neither party, nor its agents or employees, shall be deemed to be the agent, employee, joint venture partner, partner or fiduciary of the other party.  Neither party shall have the right to bind the other party, transact any business on behalf of or in the name of the other party, or incur any liability for or on behalf of the other party.

10.12  Open Source.  The LSI Licensed Code may contain open source deliverables, including but not limited to JFreeChart, JSON, JCommon, and JNA.  To the extent a separate open source license applies to such code or any portion thereof or is in conflict with this Agreement, such open source license may take precedence over this Agreement.