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license.txt
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license.txt
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EMC ECS Software Limited-Use License Agreement
This EMC Software License Agreement (the "Agreement") is a legal agreement between EMC Corporation, with a principal office at 176 South Street, Hopkinton, MA 01748 USA ("EMC") and you and the organization on whose behalf you are accessing this Agreement (the "Customer") and governs Customer's access to, downloading of, and use of any and all components, associated media, printed materials, documentation, and programming accessed via the EMC software (the "Software"). By clicking on the "Agree" or check box or similar button set forth below, or by downloading, installing, or using the Software, you are representing to EMC that (i) you are authorized to legally bind the Customer, and (ii) you are agreeing on behalf of the Customer that the terms of this Agreement shall govern the relationship of the parties with regard to the Software. If you do not have authority to agree to the terms of this Agreement, or do not accept the terms of this Agreement, click on the "Cancel" or similar button or discontinue your efforts to download the Software, and the registration, download and/or installation process will not continue. In such event, no access to, or authorization to download or use the Software, is granted by EMC.
EMC and Customer enter into this Agreement and this Agreement shall become effective on the date on which Customer clicks on the "Agree" button described above or downloads, installs or uses the Software, whichever occurs first (the "Effective Date"). NOW, THEREFORE, in consideration of the premises and obligations contained herein, it is agreed as follows:
1.0 DEFINITIONS
1.1 - "Equipment" means the Customer owned storage devices, systems, or central processing units that the Software was designed to run on or with.
1.2 - "Software" means the free EMC Software made available for download by Customer from a designated EMC web site.
2.0 PURPOSE AND SCOPE
2.1 - The Software shall be used for Customer's internal business purposes and in accordance with EMC's instructions and documentation. The Software is available from EMC to Customer at no charge, but only after Customer agrees to the license terms as contained in this Agreement.
2.2 - Under this Agreement, Customer may use the Software on the related Equipment it owns.
3.0 LICENSE TERMS
3.1 - EMC grants Customer a license to use the Software on the Equipment commencing on download for as long as Customer complies with this Agreement. The foregoing licenses shall be non-exclusive, non-transferable, and non-sublicensable and subject to the restriction that the Software be used solely on or in connection with the Equipment for which it was licensed. EMC may terminate licenses, without liability, if Customer breaches this Agreement and fails to cure within thirty (30) days after receipt of EMC's written notice thereof. Upon termination, Customer shall cease all use and return or certify destruction of Software (including copies) to EMC. Customer shall not, without EMC's prior written consent, use the Software in a production environment, service bureau capacity, or copy, provide, disclose or otherwise make available Software in any form to anyone other than Customer's agents, employees, consultants or independent contractors ("Personnel"), who shall use Software solely for Customer's internal business purposes in a manner consistent with this Agreement. Customer shall be fully responsible to EMC for the compliance of Customer's personnel herewith.
3.2 - Software is licensed only. No title to, or ownership of, the Software is transferred to Customer. Customer shall reproduce and include copyright and other proprietary notices on and in any copies, including but not limited to partial, physical or electronic copies, of the Software. Neither Customer nor its personnel shall modify, enhance, supplement, create derivative works from, reverse assemble, reverse engineer, reverse compile or otherwise reduce to human readable form the Software without EMC's prior written consent. Any third party software that may be provided by EMC shall be governed by the third party's separate license terms, if any.
4.0 DELIVERY AND INSTALLATION
4.1 - Delivery of the Software is by download only.
4.2 - EMC shall, as necessary, provide Customer with information to download, install and use the Software.
5.0 TERM AND TERMINATION
5.1 - If Customer fails to perform any of its material covenants, obligations or responsibilities under this Agreement, Customer shall be in default and breach of this Agreement, and EMC shall, in addition to any other remedies, which may be available to EMC under this Agreement, in law or equity, in its sole discretion, have the right to terminate this Agreement and any or all related license(s) granted to Customer by written notice thereto, with such termination to be effective immediately.
5.2 - EMC may terminate this Agreement for its convenience at any time by providing Customer with a minimum of thirty (30) days prior notice.
6.0 NO WARRANTY OR SUPPORT
6.1 - EMC PROVIDES ALL SOFTWARE HEREUNDER ON AN "AS-IS," "WHERE IS" BASIS, AND MAKES NO OTHER EXPRESS WARRANTIES, WRITTEN OR ORAL, AND ALL OTHER WARRANTIES ARE SPECIFICALLY EXCLUDED, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE OR NON-INFRINGEMENT, AND ANY WARRANTY ARISING BY STATUTE, OPERATION OF LAW, COURSE OF DEALING OR PERFORMANCE, OR USAGE OF TRADE.
6.2 - EMC shall not provide any technical support, SLA's, telephone support, on-line support, or support of any kind under this Agreement. Customer is not entitled to receive any updates, upgrades or enhancements of any kind under this Agreement. This includes, but is not limited to, security vulnerabilities that may be applicable to the Software.
6.3 - No representation or other affirmation of fact, including but not limited to statement regarding capacity, suitability for use or performance of Software, whether made by EMC employees or otherwise, shall be deemed to be a warranty for any purpose or give rise to any liability of EMC whatsoever unless contained in this Agreement.
7.0 NO INDEMNIFICATION
7.1 - EMC shall have no liability to Customer for any action (and all prior related claims) brought by or against Customer alleging that Customer's use or other disposition of any Software infringes any patent, copyright, trade secret or other intellectual property right. In event of such an action, EMC retains the right to terminate this Agreement and take possession of the Software.
7.2 - THIS SECTION 7.0 STATES EMC'S ENTIRE LIABILITY WITH RESPECT TO ALLEGED INFRINGEMENTS OF INTELLECTUAL PROPERTY RIGHTS BY THE SOFTWARE OR ANY PART OF THEM OR BY ITS OPERATION.
8.0 LIMITATION OF LIABILITY
8.1 - EMC'S AND ITS SUPPLIER'S TOTAL LIABILITY AND CUSTOMER'S SOLE AND EXCLUSIVE REMEDY FOR A CLAIM OF DAMAGE TO REAL OR TANGIBLE PERSONAL PROPERTY OR ANY OTHER CLAIM WHATSOEVER, INCLUDING BUT NOT LIMITED TO CLAIMS BASED ON CONTRACT, WARRANTY, NEGLIGENCE OR STRICT LIABILITY IN TORT, THAT ARISES OUT OF OR IN CONNECTION WITH SOFTWARE OR SERVICES PROVIDED HEREUNDER, SHALL BE LIMITED TO PROVEN DIRECT DAMAGES CAUSED BY EMC'S SOLE NEGLIGENCE IN AN AMOUNT NOT TO EXCEED US$5,000. IN NO EVENT SHALL EMC OR ITS SUPPLIERS BE LIABLE FOR CONSEQUENTIAL, INCIDENTAL, INDIRECT, OR SPECIAL DAMAGES (INCLUDING, BUT NOT LIMITED TO, LOSS OF PROFITS, REVENUES, DATA AND/OR USE) EVEN IF ADVISED OF THE POSSIBILITY THEREOF. NEITHER PARTY SHALL BRING ANY CLAIM ARISING OUT OF THE SOFTWARE OR SERVICES PROVIDED HEREUNDER MORE THAN EIGHTEEN (18) MONTHS AFTER SUCH CLAIM HAS ACCRUED.
8.2 - IF CUSTOMER USES SOFTWARE FOR ANY PUR¬POSE EXCEPT AS STATED HEREIN OR OTHERWISE AGREED IN WRITING, EMC SHALL HAVE NO LIABILITY WHATSOEVER FOR ANY DAMAGE TO EQUIPMENT OR DATA, OR FINANCIAL LOSSES, RESULTING FROM SUCH USE.
9.0 GENERAL
9.1 - Assignment – Customer shall not assign any right or interest hereunder nor delegate any work or other obligation to be performed hereunder to any entity other than its corporate parent, or a division or wholly or majority owned subsidiary of the party or its corporate parent. Any such action in violation of the foregoing shall be void.
9.2 - Entire Agreement - The terms contained herein constitute the entire agreement between the parties with respect to the subject matter hereof and shall supersede all prior communications and agreements, either oral, written or otherwise recorded.
9.3 - Compliance with Export Control Laws – Customer shall comply with all applicable export laws, orders and regulations and obtain all necessary governmental permits, licenses and clearances.
9.4 - Governing Law - This Agreement shall be governed by the laws of the Commonwealth of Massachusetts, excluding its conflict of law rules. The U. N. Convention on Contracts for the International Sale of Goods shall not apply.
9.5 - Notices – Except for routine communications, all other notices required or permitted hereunder, including but not limited to notices of default or breach, shall be signed by an authorized representative of the sender. Such notices shall be deemed to have been received (i) when hand delivered to such individuals by a representative of the sender; (ii) three (3) days after having been sent postage prepaid, by registered or certified first class mail, return receipt requested; (iii) when sent by electronic transmission, with written confirmation by the method of transmission; or (iv) one (1) day after deposit with an overnight carrier, with written verification of delivery.
9.6 - No Waiver – No omission or delay by either party in requiring the other party to fulfill its obligations hereunder shall be deemed to constitute a waiver of (i) the right to require the fulfillment of any other obligation hereunder; or (ii) any remedy that may be available hereunder.
9.7 - Independent Contractors - The parties shall act as independent contractors for all purposes under this Agreement. Nothing contained herein shall be deemed to constitute either party as an agent or representative of the other party, or both parties as joint venturers or partners for any purpose. Neither party shall be responsible for the acts or omissions of the other party, and neither party will have authority to speak for, represent or obligate the other party in any way without an authenticated record indicating the prior approval of the other party.
9.8 - Separability - If any provision of this Agreement shall be held illegal or unenforceable, such provision shall be deemed separable from, and shall in no way affect or impair the validity or enforceability of, the remaining provisions.