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BEFORE YOU INSTALL OR USE THIS EMC SOFTWARE READ THE FOLLOWING
USE
(INCLUDING INSTALLATION, COPYING OR ANY OTHER USE)
OF THIS EMC 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 EMC Corporation ("EMC") for the EMC 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
1.1. "Authorized Use for EMC Binary Code" means use of the EMC Binary Code solely for the Purpose.
1.2 "Authorized Use for EMC Internal Code" means use of the EMC Internal Use Code solely for the Purpose..
1.3 "Authorized Use for EMC Source Code" means use of the EMC Source Code solely for the Purpose.
1.4. "Derivative Works" means: (a) for copyrightable or copyrighted material, any translation (including translation into other computer languages), port, modification, correction, addition, extension, upgrade, improvement, compilation, abridgment or other form in which an existing work may be recast, transformed or adapted; (b) for patentable or patented material, any improvement thereon; and (c) for material which is protected by trade secret, any new material derived from such existing trade secret material, including new material which may be protected by copyright, patent and/or trade secret.
1.5 "Explanatory Materials" means explanatory and informational materials or documentation concerning the EMC Licensed Code, in printed or electronic format, including without limitation, manuals, descriptions, user and/or installation instructions, diagrams, printouts, listings, flowcharts, and training materials, contained on visual media such as paper or photographic film, or on other physical storage media in machine-readable form. Explanatory Materials do not include any code.
1.6 "Feedback" means any ideas or suggestions provided by Licensee or Subsequent Users to EMC (in any manner, whether in writing or orally or otherwise) regarding the EMC Licensed Code, Explanatory Materials, EMC Devices and Results, including possible enhancements or improvements thereto.
1.7 "Intellectual Property Rights" means (by whatever name or term known or designated) copyrights, trade secrets, patents, moral rights and any other intellectual and industrial property and proprietary rights (excluding trademarks) including registrations, applications, renewals and extensions of such rights anywhere in the world.
1.8 "JRE Code" means Oracle Corporation's JAVA SE Runtime Environment Code.
1.9 "EMC Binary Code" means the software programs distributed to Licensee and/or Subsequent User, in binary form (whether production ready, prototype, alpha, beta, or otherwise), and any other machine readable materials, including, but not limited to, libraries, source files, header files, and data files, any Updates and New Versions provided by EMC.
1.10. "EMC Devices" means only those family of EMC products (“EMC Products”) properly purchased from EMC or its agents or EMC Products the Licensee or Subsequent User intends or may plan to purchase from EMC or its agents.
1.11 "EMC Internal Use Code" means the software programs distributed to Licensee and/or Subsequent User, in source code or object code format (whether production ready, prototype, alpha, beta, or otherwise), and including, but not limited to any, libraries, source files, header files, and data files, and Updates and New Versions provided by EMC that are only for Licensee's internal use and may not be distributed to a Subsequent User.
1.12 "EMC Licensed Code" means collectively all the software programs (including beta, prototype or non-production ready programs) which are owned or distributed by EMC and licensed to Licensee via any media, including but not limited to, the EMC Download Center, CD-Rom, Flash-based storage device, email, http site, or other user portal, through acceptance of this Agreement. The EMC Licensed Code is specifically referenced individually in this Agreement as EMC Source Code, EMC Binary Code, or EMC Internal Use Code and may include EMC’s Nytro Predictor code.
1.13. "EMC Source Code" means the software programs distributed to Licensee and/or Subsequent User, in source form (whether production ready, prototype, alpha, beta, or otherwise), and including, but not limited to any, libraries, source files, header files, and data files, and Updates and New Versions provided by EMC.
1.14. "New Version" means significant changes, modifications, enhancements, and/or functional improvements to the EMC Licensed Code. New Versions are made and generally distributed solely at the discretion of EMC. Licensee must use the latest New Version of EMC Licensed Code that is available. EMC is under no obligation to port any development work from one version to the latest New Version of EMC Licensed Code and EMC Licensed Code may not be compatible with other versions of the code.
1.15 "Purpose" shall mean internal use of the Licensed Code for the evaluation of Storage Products for use with EMC Devices and generating Results to be used for planning purposes only, and no other use or purpose.
1.16 "Results" means any and all results, output, projections, guidelines, estimates or analyses generated by or performed by the EMC Licensed Code.
1.17 "Storage Products" means the hardware and software being used or which Licensee or Subsequent User intends or may plan to use with EMC Devices and the EMC Licensed Code, including Licensee and Subsequent User hardware and software.
1.18 "Subsequent User" means any user subsequent to Licensee, including but not limited to, all Licensee customers, resellers, end users, and OEMs.
1.19 "Taxes" means all taxes, levies, imposts, duties, fines or other charges of whatsoever nature however imposed by any country or any subdivision or authority thereof in any way connected with this Agreement or any instrument or agreement required hereunder, and all interest, penalties or similar liabilities with respect thereto, except such taxes as are imposed on or measured by a party's net income or property.
1.20 "Updates" means maintenance releases, bug fixes, errata or other corrections, and minor improvements or modifications to the EMC Licensed Code which may be provided by EMC to Licensee or a Subsequent User from time to time at EMC's sole discretion. EMC is under no obligation to provide Updates or provide support and maintenance services to Licensee or to Subsequent Users.
2. Grant of Rights
2.1 EMC Binary Code. Subject to the terms of this Agreement, EMC 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:
(a) Use the EMC Binary Code and related Explanatory Materials solely for the Authorized Use for Binary Code;
(b) Make copies of the EMC Binary Code and related Explanatory Materials to support the Authorized Use for Binary Code and for archival and backup purposes in support of the Authorized Use for Binary Code;
(c) Distribute the EMC Binary Code for use with or as incorporated in Licensee's products or , Storage Products or for use with EMC Devices to its Subsequent Users, or for use by Licensee or Subsequent Users intending to purchase EMC Devices;
(d) Distribute the Explanatory Materials related to EMC Binary Code;
(e) Sublicense the rights provided in paragraphs (a) and (b) above in accordance with the terms provided in this Agreement to contract manufacturers ("CMs") and/or original design manufacturers ("ODMs"), in each case meeting the requirements of Section 3.1(d) below for the purpose of manufacturing Storage Products; and
(f) Sublicense the rights provided in paragraphs (a) through (d) 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 EMC Devices, in each case meeting the requirements of Section 3.1(e) below.
2.2 EMC Source Code. Subject to the terms of this Agreement, EMC 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 EMC Source Code and related Explanatory Materials solely for the Authorized Use for Source Code;
(b) Make copies of the EMC 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 EMC Source Code for the Authorized Use for EMC Source Code;
(d) Distribute the binary form only of any authorized Derivative Work of the EMC 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 EMC Devices.
2.3 EMC Internal Use Code. Subject to the terms of this Agreement, EMC 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 EMC Internal Use Code and related Explanatory Materials solely for the Authorized Use for Internal Code; and
(b) Make copies of the EMC 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 EMC and may provide Feedback to EMC. EMC shall own all Feedback it receives, subject to any intellectual property rights of the Licensee or Subsequent User. EMC 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 EMC 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 EMC 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. EMC Binary Code. The Licenses granted in Section 2.1 for EMC Binary Code and related Explanatory Materials are subject to the following restrictions:
(a) Licensee shall not use the EMC Binary Code and related Explanatory Materials for any purpose other than as expressly provided in Article 2;
(b) Licensee shall reproduce all copyright notices and other proprietary markings or legends contained within or on the EMC Binary Code and related Explanatory Materials on any copies it makes; and
(c) Licensee shall not distribute or disclose the EMC Binary Code and related Explanatory Materials except pursuant to an agreement with terms at least as protective of EMC's Binary Code as the terms of this Agreement. Licensee shall not, and shall not allow its Subsequent Users to, disassemble, de-compile, or reverse engineer the EMC Binary Code.
(d) Licensee may grant the sublicense set forth in Section 2.1(e) to its CMs and ODMs, provided that each such CM and ODM agrees to abide by the terms and conditions of this Agreement and Licensee shall remain responsible for any failure by its CMs and ODM to comply with the terms and conditions of this Agreement.
(e) Licensee may grant the sublicense set forth in Section 2.1(f) to its CMs and ODMs, provided that each such CM and ODM agrees to abide by the terms and conditions of this Agreement and Licensee shall remain responsible for any failure by its CMs and ODM to comply with the terms and conditions of this Agreement.
(f) Licensee shall not disassemble, reverse-engineer, or decompile the EMC Binary Code.
3.2. EMC Source Code. The Licenses granted in Section 2.2 for EMC Source Code and related Explanatory Materials are subject to the following restrictions:
(a) Licensee shall not use the EMC Source Code and related Explanatory Materials for any purpose other than as expressly provided in Article 2;
(b) Licensee shall reproduce all copyright notices and other proprietary markings or legends contained within or on the EMC Source Code and related Explanatory Materials on any copies it makes;
(c) Licensee shall not distribute or disclose any EMC Source Code and related Explanatory Materials to any Subsequent Users or third parties, without the express written consent of EMC;
(d) Licensee shall not knowingly infringe upon the intellectual property rights of any third party when making Derivative Works to the EMC Source Code;
(e) Licensee shall not disassemble, reverse-engineer, or decompile the EMC Source Code, except for making authorized Derivative Works; and
(f) Licensee shall not distribute or disclose the Licensee Binary Derivative except pursuant to an agreement with terms at least as protective as those in this Agreement protecting EMC's Binary Code. Licensee shall not, and shall not allow its Subsequent Users to, disassemble, de-compile, or reverse engineer the Licensee Binary Derivative.
3.3. EMC Internal Use Code. The Licenses granted in Section 2.3 for EMC Internal Use Code and related Explanatory Materials are subject to the following restrictions:
(a) Licensee shall not use the EMC Internal Use Code and related Explanatory Materials for any purpose other than as expressly provided in Article 2;
(b) Licensee shall reproduce all copyright notices and other proprietary markings or legends contained within or on the EMC Internal Use Code and related Explanatory Materials on any copies it makes;
(c) Licensee shall not distribute or disclose any EMC Internal Use Code and related Explanatory Materials to any Subsequent Users or third parties, without the express written consent of EMC; and
(d) Licensee shall not disassemble, reverse-engineer, or decompile the EMC Internal Use Code.
3.4. Derivative Works of EMC Source Code Made by Licensee. Subject to EMC's rights in the underlying EMC Source Code, Licensee shall own all right, title and interest in and to the Derivative Works (both binary and source format) it makes from EMC 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 EMC Source Code to EMC. EMC shall have no obligations whatsoever to support, maintain, contribute to, or provide Updates, New Versions or any modifications to Licensee Derivative Works of the EMC Source Code and shall have no liability whatsoever for such Derivative Works. In the event Licensee requests EMC's input regarding Licensee Derivative Works of EMC Source Code and plans to disclose such Derivative Works to EMC, a separate written agreement shall first be executed by the parties.
3.5. EMC Derivative Works. Nothing contained herein shall prevent EMC from creating any Derivative Works of its EMC Source Code at any time. Licensee further agrees that EMC may independently create a Derivative Work similar to or in competition with the Licensee Derivative Work of the EMC Source Code and may use that Derivative Work for any purpose. Licensee grants EMC a Covenant Not to Sue for any independently developed Derivative Works created by EMC for its own EMC 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 EMC Source Code.
3.6. U.S. Government Subsequent Users. All EMC 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 EMC Binary Code with only those rights set forth herein that apply to non-governmental end users. Use of such EMC 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 EMC 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 EMC. Any further licenses must be express, in writing and signed by an authorized representative of EMC.
3.8. Injunctive Relief. In the event of a breach by Licensee of this Section 2 or 3, EMC 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 EMC Licensed Code in whole or in part.
3.9. EMC Licensed Code Containing
JRE. Certain EMC 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-
4. Confidentiality
4.1 Licensee agrees to limit access to the EMC 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 EMC Licensed Code and Explanatory Materials on behalf of Licensee) having a need to access or know the EMC Licensed Code and Explanatory Materials and who have executed nondisclosure agreements with Licensee obligating them to maintain the confidentiality of the EMC Licensed Code and Explanatory Materials.
4.2 Licensee shall hold in confidence the EMC Licensed Code and Explanatory Materials as EMC's confidential information ("Confidential Information") and shall use the EMC 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 EMC 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 EMC. EMC makes no warranty as to the accuracy of any Confidential Information, which is furnished "AS IS" with all faults.
5. Ownership of Code by EMC, Fees, and Taxes
5.1 EMC reserves all right, title, ownership and interest in and to the EMC Licensed Code and Explanatory Materials existing prior to and after the Effective Date of this Agreement, or created or generated by EMC at any time, subject to any licenses granted. EMC reserves all right, title, ownership and interest in and to any Derivative Works it creates at any time to the EMC 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 EMC. If any such fees are separately specified in writing, the following applies:
5.2.1 Payment is due by Licensee upon download, at time of purchase, or no later than within thirty (30) days of date of EMC invoice therefore, as designated by EMC, in the event that a fee is associated with the EMC Licensed Code and Explanatory Materials. All payments shall be made in U.S. currency unless otherwise agreed. If at any time, Licensee is delinquent in the payment of any invoice, or is otherwise in breach of this Agreement, EMC may, at its discretion, and without prejudice to its other rights, withhold delivery (including partial delivery) of any order or may, at its option, require Licensee to prepay for further deliveries. Any sum not paid by Licensee, when due, shall bear interest until paid at a rate of 1.5% per month (18% per annum) or the maximum rate permitted by law, whichever is less.
5.2.2 All payments or reimbursements due under this Agreement and any instrument or agreement required hereunder shall be made free and clear and without deduction for any and all present and future Taxes. Payments due to EMC under this Agreement and any instrument or agreement required hereunder shall be increased so that amounts received by EMC, after provisions for Taxes and all Taxes on such increase, will be equal to the amounts required under this Agreement and any instrument or agreement required hereunder if no Taxes were due on such payments.
5.2.3 The Licensee shall indemnify EMC for the full amount of Taxes attributable to the provision of products or services under this Agreement, and any liabilities (including penalties, interest and expenses) arising from such Taxes, within thirty (30) days from any written demand by EMC. The Licensee shall provide evidence that all applicable Taxes have been paid to the appropriate taxing authority by delivering to EMC receipts or notarized copies thereof within thirty (30) days after the due date for such tax payments.
5.2.4 Without prejudice to the survival of any other Agreement of Licensee hereunder, the obligations of Licensee contained in this section shall survive the payment in full of all payments hereunder.
6. Support
(a) EMC may provide the following support services for the EMC Licensed Code to the extent EMC deems reasonable: Updates if and when released and errata in EMC's sole discretion. EMC shall not be responsible for any other support or maintenance of EMC Licensed Code to Licensee or its Subsequent Users, unless otherwise agreed to in writing by the parties in a signed agreement. EMC is under no obligation to provide support services of any kind and may discontinue support services at any time. EMC will not provide support for modified EMC Licensed Code or Licensee's Derivative Works of the EMC Source Code.
(b) Any Updates to the EMC Licensed Code provided by EMC (which shall only be provided by EMC in its sole discretion) shall be governed by the terms of this Agreement.
(c) If Licensee finds what Licensee considers an error in the EMC Licensed Code, Licensee will notify EMC so that EMC can, in its sole discretion, make corrections to the EMC Licensed Code or to future revisions of the EMC Licensed Code, but EMC is under no obligation to do so.
7. Term and Termination
7.1 Term. This Agreement shall continue until terminated in accordance with this Section 7. Either party may terminate this Agreement for convenience, with or without cause, without any liability, upon ten (10) calendar days notice to the other party.
7.2 Termination for Breach. If Licensee breaches any material provision of this Agreement, EMC shall have the right to terminate this Agreement, including all licenses granted hereunder, in addition to any and all other remedies available at law or equity, unless Licensee cures such breach within sixty (60) days ("Cure Period") after receiving written notice of the breach by EMC. Licensee shall make best efforts to cure the material breach in the least amount of time possible within the Cure Period.
7.3 Insolvency. If either party: (a) becomes substantially insolvent; (b) makes an assignment for the benefit of creditors; (c) files or has filed against it a petition in bankruptcy or seeking reorganization; (d) has a receiver appointed; or (e) institutes any proceedings for liquidation or winding up or have such proceedings instituted against it; then the other party may, in addition to other rights and remedies it may have, terminate this Agreement immediately by written notice.
7.4 Consequences. Upon termination or expiration of this Agreement for any reason whatsoever, the licenses, rights, and covenants granted hereunder and any obligations imposed hereunder shall cease except the license to EMC for the Results and Feedback and except as otherwise expressly set forth herein as surviving termination or expiration.
7.5 Return of Confidential Information. Upon expiration or termination of this Agreement for any reason or upon written request by EMC, Licensee agrees to promptly return to EMC or, at EMC's request, destroy and certify by an officer of Licensee in writing the destruction of, all EMC Confidential Information furnished to Licensee, including all EMC Licensed Code and Explanatory Materials.
7.6 Survival of Licenses. Licensee may retain an archival copy of portions of the EMC Confidential Information, including EMC Licensed Code and Explanatory Materials, necessary for Licensee to provide ongoing technical support to Subsequent Users using the EMC Licensed Code ("Archival Materials") after termination, expiration or cancellation of this Agreement. Such Archival Materials may not be used for any other purpose without the written consent from EMC. Licensee shall keep such Archival Materials confidential for an additional five (5) years from the date of termination, expiration, or cancellation of this Agreement, regardless of when the EMC Confidential Information was disclosed. All end user licenses in effect and in compliance with the Agreement prior to effective termination or expiration shall survive and continue in full force and effect in accordance with their terms and Licensee may continue to perform its obligations thereunder, including support obligations.
7.7 Survival. In the event of expiration or termination of this Agreement for any reason, the following sections of this Agreement shall survive: 1, 3, 5, 7, 8, 9, 8 and 10. Termination will not prejudice either party to require performance of any obligation due at the time of termination.
8. Disclaimer of All Warranties
8.1 THE PARTIES AGREE THAT EMC FURNISHES THE EMC LICENSED CODE AND EXPLANATORY MATERIALS TO LICENSEE AND THAT THE GENERATED RESULTS ARE "AS IS," UNSUPPORTED, WITHOUT WARRANTY OF ANY KIND. EMC DISCLAIMS ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT, INCLUDING ANY THAT MAY ARISE FROM A COURSE OF PERFORMANCE, A COURSE OF DEALING OR TRADE USAGE. EMC SHALL NOT BE LIABLE FOR ANY ERROR, OMISSION, DEFECT, DEFICIENCY, RESULTS OR NONCONFORMITY IN THE EMC LICENSED CODE OR EXPLANATORY MATERIALS OR ARISING IN THE RESULTS. EMC makes no warranty or representation that the EMC LICENSED CODE, EXPLANATORY MATERIALS OR RESULTS will meet Licensee's requirements or will work in combination with any hardware or software application.
8.2 EMC DISCLAIMS ANY AND ALL LIABILITY IN CONNECTION WITH LICENSEE'S USE OF THE EMC LICENSED CODE IN ANY MEDICAL, NUCLEAR, AVIATION, NAVIGATION, MILITARY, OR OTHER HIGH RISK DEVICE OR APPLICATION. LICENSEE REPRESENTS AND WARRANTS THAT IT WILL NOT USE THE LICENSED EMC CODE IN ANY MEDICAL, NUCLEAR, AVIATION, NAVIGATION, MILITARY, OR OTHER HIGH RISK DEVICE OR APPLICATION. LICENSEE SHALL INDEMNIFY, DEFEND, AND HOLD EMC HARMLESS AGAINST ANY LOSS, LIABILITY, OR DAMAGE OF ANY KIND THAT EMC INCURS IN CONNECTION WITH BREACH OF THE WARRANTY IN THIS SECTION 8.2.
8.3 EMC DISCLAIMS ANY AND ALL LIABILITY IN CONNECTION WITH RESULTS OR LICENSEE'S CREATION AND USE OF DERIVATIVE WORKS OF THE EMC SOURCE CODE. LICENSEE SHALL INDEMNIFY, DEFEND, AND HOLD EMC HARMLESS AGAINST ANY LOSS, LIABILITY, OR DAMAGE OF ANY KIND THAT EMC INCURS IN CONNECTION WITH LICENSEE'S DERIVATIVE WORKS OF EMC SOURCE CODE.
9. Limitation of Liability
IN NO EVENT SHALL EMC, ITS EMPLOYEES, AFFILIATES, DISTRIBUTORS, SUCCESSORS, OR SUPPLIERS BE LIABLE FOR ANY LOST PROFITS, REVENUE, SALES OR DATA OR ANY COSTS OF PROCURING SUBSTITUTE GOODS OR SERVICES, DATA CORRUPTION, DATA ACCESS ISSUES, INTERRUPTION, LOSS OF BUSINESS INFORMATION, LOSS OF STORAGE PRODUCT PERFORMANCE OR ANY SPECIAL, DIRECT, INDIRECT, INCIDENTAL, CONSEQUENTIAL, ECONOMIC OR PUNITIVE DAMAGES, HOWEVER CAUSED, AND WHETHER ARISING UNDER CONTRACT, TORT, STRICT LIABILITY, NEGLIGENCE OR OTHER THEORY OF LIABILITY, ARISING OUT OF THE USE OR INABILITY TO USE THE EMC LICENSED CODE, THE RESULTS, OR EXPLANATORY MATERIALS, EVEN IF EMC OR ITS EMPLOYEES, SUPPLIERS, AFFILIATES, DISTRIBUTORS, OR SUCCESSORS ARE ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. IN THE EVENT THAT THE APPLICABLE JURISDICTION DOES NOT ALLOW THIS EXCLUSION OR LIMITATION OF LIABILITY STATED HEREIN OR ANY OTHER SIMILAR LIMIT OF LIABILITY, BUT DOES ALLOW LIABILITY TO BE LIMITED, THE LIABILITY OF EMC, ITS EMPLOYEES, AFFILIATES, DISTRIBUTORS, SUCCESSORS, OR SUPPLIERS IN SUCH CASES, SHALL BE LIMITED TO ONE-HUNDRED ($100) US DOLLARS.
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 EMC. 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 EMC 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 EMC Licensed Code is subject to the U.S. Export Administration Regulations. Diversion contrary to U.S. law is prohibited. Licensee agrees that the EMC 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 EMC 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 EMC is for informational purposes only. EMC 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 EMC Corporation and is at your own risk. EMC 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 EMC products. You may request software classification information from EMC or view it at EMC.com. If requested, Customer agrees to sign written assurances and other export-related documents as may be required by EMC.
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 EMC 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 |
EMC Corporation |
Room 12K-302 |
Allentown,
PA 18109
Fax: (610) 712-1450; and EMC 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 EMC 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.