DELL SOFTWARE LICENSE AGREEMENT
This is a legal agreement ("Agreement") between you, the user, and Dell Products L.P or Dell Global B.V. (Singapore Branch), a Singapore branch of a company incorporated in The Netherlands with limited liability, on behalf of Dell Inc. and Dell Inc.'s subsidiaries and affiliates (together "Dell"). This Agreement covers all software (and upgrades and updates thereto) that is distributed by Dell and for which there is no separate license agreement between you and the manufacturer or owner of the software (collectively the "Software"). This Agreement is not for the sale of Software or any other intellectual property. All title and intellectual property rights in and to Software are owned and retained by the manufacturer or owner of the Software. All rights not expressly granted under this Agreement are reserved by the manufacturer or owner of the Software. By opening or breaking the seal on the Software packet(s), installing, downloading, activating the Software, click-accepting these terms, or using the Software, you agree to be bound by the terms of this Agreement. If you do not agree to these terms, you may not install, download, activate, or otherwise use the Software and must promptly return for a full refund all Software (including accompanying media, written materials, and packaging) or delete any Software, as directed by Dell; for software included with your purchase of hardware, you must return the entire hardware/software package. Provided, however, the right to a full refund does not apply to any updates or upgrades subject to the terms of this Agreement. If you are an entity, you acknowledge that the individual accepting these terms has appropriate authority to do so and to bind you.
Subject to the terms, conditions and limitations of this Agreement, Dell grants you a limited, nonexclusive, nontransferable (except as set forth herein), non-assignable license, to use the Software (in object code only) only on as many computers, devices, or in such configurations as you are expressly entitled, or one computer or device, if no other entitlement is specified, and for only such period as you are entitled, in the case of a term license, and perpetually, if no term is specified. You may use the Software only on Dell computers or devices, with the exception of mobile device application software specifically designed by Dell to be run on non-Dell hardware. "Use" means to install, store, load, execute, and display the Software. If you are a commercial customer of Dell, you hereby grant Dell, or an agent selected by Dell, the right to perform an audit of your use of the Software during normal business hours; you agree to cooperate with Dell in such audit; and you agree to provide Dell with all records reasonably related to your use of the Software. The audit will be limited to verification of your compliance with the terms of this Agreement. The Software is protected by United States and other applicable copyright laws, patent laws, and international treaties. You may make one copy of the Software solely for backup or archival purposes or transfer it to a single hard disk or storage device provided you keep the copy solely for backup or archival purposes. You shall reproduce and include copyright and other proprietary notices on and in any copies for the Software. You may not sublicense, rent, or lease the Software or copy the written materials accompanying the Software. You may transfer the Software and all accompanying materials on a permanent basis as part of a sale or transfer of the Dell product on which it was preloaded by Dell, where applicable, if you retain no copies and the recipient agrees to the terms hereof. Any such transfer must include the most recent update and all prior versions. You may not reverse engineer, decompile or disassemble, modify, or create derivative works of the Software. If the package accompanying your Dell computer or device contains optical discs or other storage media, you may use only the media appropriate for your computer or device. You may not use the optical discs or storage media on another computer, device, or network, or loan, rent, lease, or transfer them to another user except as permitted by this Agreement.
LIMITED WARRANTY AND LIMITATION OF LIABILITY
Dell warrants that the Software media (if applicable) will be free from defects in materials and workmanship under normal use for 90 days from the date you receive them. This warranty is limited to you and is not transferable. Any implied warranties are limited to 90 days from the date you receive the Software. Some jurisdictions do not allow limits on the duration of an implied warranty, so this limitation may not apply to you. The entire liability of Dell and its suppliers, and your exclusive remedy, shall be, at Dell's option, either (a) termination of this Agreement and return of the price paid for the Software or (b) replacement of any media not meeting this warranty that is sent with a return authorization number to Dell, within the 90 day warranty period, at your cost and risk. This limited warranty is void if any media damage has resulted from accident, abuse, misapplication, or service or modification by someone other than Dell. Any replacement media is warranted for the remaining original warranty period or 30 days, whichever is longer.
Dell and its suppliers do NOT warrant that the functions of the Software will meet your requirements or that operation of the Software will be uninterrupted or error free. You assume responsibility for selecting the Software to achieve your intended results and for the use and results obtained from the Software. The terms of this Agreement do not entitle you to any maintenance or support for the Software.
DELL, ON BEHALF OF ITSELF AND ITS SUPPLIERS, DISCLAIMS ALL OTHER WARRANTIES, EXPRESS, IMPLIED, OR OTHERWISE, INCLUDING BUT NOT LIMITED TO IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE OR ANY WARRANTY REGARDING TITLE OR AGAINST INFRINGEMENT, FOR THE SOFTWARE AND ALL ACCOMPANYING WRITTEN MATERIALS. THIS LIMITED WARRANTY GIVES YOU SPECIFIC LEGAL RIGHTS; YOU MAY HAVE OTHERS, WHICH VARY FROM JURISDICTION TO JURISDICTION.
IN NO EVENT SHALL DELL OR ITS SUPPLIERS BE LIABLE FOR ANY DAMAGES WHATSOEVER (INCLUDING WITHOUT LIMITATION DAMAGES FOR LOSS OF BUSINESS PROFITS, BUSINESS INTERRUPTION, LOSS OF BUSINESS INFORMATION OR OTHER DATA, OR OTHER PECUNIARY LOSS) ARISING OUT OF USE OR INABILITY TO USE THE SOFTWARE, EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. BECAUSE SOME JURISDICTIONS DO NOT ALLOW AN EXCLUSION OR LIMITATION OF LIABILITY FOR CONSEQUENTIAL OR INCIDENTAL DAMAGES, THE ABOVE LIMITATION MAY NOT APPLY TO YOU.
HOSTED & INTERNET-ACCESSIBLE SOFTWARE
Some or all of the Software may be remotely hosted or accessible to you through the Internet. In such case, Dell may suspend, terminate, withdraw, or discontinue all or part of the Software or your access to the Software upon receipt of a subpoena or law-enforcement request, or when Dell believes, in its sole discretion, that you have breached any term of this Agreement or are involved in any fraudulent, misleading, or illegal activities. Dell may modify the Software at any time with or without prior notice to you. Dell may perform scheduled or unscheduled repairs or maintenance, or remotely patch or upgrade the Software installed on its and your computer system(s), which may temporarily degrade the quality of the Software or result in a partial or complete outage of the Software. Updates, patches or alerts may be delivered from Dell servers, which may be located outside of your country. Dell provides no assurance that you will receive advance notification of such activities or that your use of the Software will be uninterrupted or error-free.
OPEN SOURCE SOFTWARE
A portion of the Software may contain or consist of open source software, which you can use under the terms and conditions of the specific license under which the open source software is distributed.
THIS OPEN SOURCE SOFTWARE IS DISTRIBUTED IN THE HOPE THAT IT WILL BE USEFUL, BUT IS PROVIDED "AS IS" WITHOUT ANY WARRANTY, EXPRESS,IMPLIED, OR OTHERWISE, INCLUDING BUT NOT LIMITED TO THE IMPLIED WARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE OR ANY WARRANTY REGARDING TITLE OR AGAINST INFRINGEMENT. IN NO EVENT SHALL DELL, THE COPYRIGHT HOLDERS, OR THE CONTRIBUTORS BE LIABLE FOR ANY DIRECT, INDIRECT, INCIDENTAL, SPECIAL, EXEMPLARY, OR CONSEQUENTIAL DAMAGES (INCLUDING BUT NOT LIMITED TO PROCUREMENT OF SUBSTUTUTE GOODS OR SERVICES; LOSS OF USE, DATA, OR PROFITS; OR BUSINESS INTERRUPTION) HOWEVER CAUSED AND ON ANY THEORY OF LIABILITY, WHETHER IN CONTRACT, STRICT LIABILITY, OR TORT (INCLUDING NEGLIGENCE OR OTHERWISE) ARISING IN ANY WAY OUT OF THE USE OF THIS OPEN SOURCE SOFTWARE, EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGE.
Under certain open source software licenses, you are entitled to obtain the corresponding source files. You may find corresponding source files for the Software at http://opensource.dell.com or at such other locations indicated by Dell.
EXPORT
You are advised that the Software is subject to U.S. export laws as well as the laws of the country where it is delivered or used. You agree to abide by these laws. Under these laws, the Software may not be sold, leased, or transferred to restricted countries (currently Cuba, Iran, North Korea, Sudan, and Syria), restricted end-users, or for restricted end-uses. You specifically agree that the Software will not be used for activities related to weapons of mass destruction, including but not limited to activities related to the design, development, production, or use of nuclear materials, nuclear facilities, or nuclear weapons, missiles, or support of missile projects, or chemical or biological weapons.
U.S. GOVERNMENT RESTRICTED RIGHTS
The software and documentation are "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 C.F.R. 12.212 and 48 C.F.R. 227.7202-1 through 227.7202-4, all U.S. Government end users acquire the software and documentation with only those rights set forth herein. Contractor/manufacturer is Dell Products L.P., One Dell Way, Round Rock, Texas, 78682.
GENERAL
This license is effective until terminated. It will terminate upon the conditions set forth above or if you fail to comply with any of its terms. Upon termination, you agree that the Software and accompanying materials, and all copies thereof, will be destroyed. This Agreement is governed by the laws of the State of Texas, without regard to principles of conflicts of laws. Each provision of this Agreement is severable. If a provision is found to be unenforceable, this finding does not affect the enforceability of the remaining provisions of this Agreement. This Agreement is binding on successors and assigns. Dell agrees and you agree to waive, to the maximum extent permitted by law, any right to a jury trial with respect to the Software or this Agreement. Because this waiver may not be effective in some jurisdictions, this waiver may not apply to you. You acknowledge that you have read this Agreement, that you understand it, that you agree to be bound by its terms, and that this is the complete and exclusive statement of the Agreement between you and Dell regarding the Software.
SUPPLEMENTAL TERMS FOR EMC SOFTWARE
You may use one copy of the Software on only one computer or device at a time for your own internal business purposes. You shall not, without Dell's prior written consent copy, provide, disclose or otherwise make available Software in any form to anyone other than your employees, consultants or independent contractors who shall use the Software in a manner that is consistent with this Agreement.
Notwithstanding anything to the contrary in the Agreement, licenses to Software are non-exclusive, non-transferable and non-sub licensable and subject to the restriction that the Software be used solely in conjunction with the equipment (storage system or switch/hub) or related central processing unit for which it was licensed.
Rev. 110711
DELL EQUALLOGIC PS SERIES ARRAY END USER LICENSE AGREEMENT
This License Agreement ("Agreement") is made as of the date of shipment of the Products to the Customer (the "Effective Date") by and between Dell, Inc, its subsidiaries and affiliates, with offices at 300 Innovative Way, Suite 301, Nashua, NH 03062 ("collectively "the Company"), and the Customer. In consideration of the mutual obligations set forth below the parties, intending to be legally bound, agree as follows:
1. Definitions
2. Grant of License
The Company hereby grants to Customer a nonexclusive, nontransferable license to install and use the Software solely for Customer's ordinary internal business purposes and solely for Software's intended use in conjunction with Product. The Software is in use if it is loaded on the Product or any computer's permanent or temporary memory. Customer may make one copy of the Software for archive and security backup purposes only. You must include on any backup copy all copyright and other notices included on the Software as supplied by the Company. Installation on a network server for the sole purpose of your internal distribution of the Software is permitted so long as all arrays are properly licensed Products to which the Software is distributed. All rights not expressly granted to Customer in this Agreement are reserved by the Company. There are no implied rights. Unless otherwise indicated on the sales quotation, this License is perpetual (subject to termination pursuant to Section 6 below).
3. Payments
If Customer has purchased the Product through a value added reseller ("VAR") of the Company, the payment obligations of the customer are agreed upon between the VAR and the customer. If the Customer is buying the product directly from the Company, the Customer's payment obligations are set forth on the sales quotation. Customer agrees to pay all fees due pursuant to this Agreement in U.S. dollars, and unless the sales quotation expressly provides otherwise all fees are due net thirty (30) days from the date of invoice. Any amount not paid when due shall bear a late payment charge, until paid, in an amount equal to 1.5% per month or, if lower, the maximum rate allowed by law. In addition, Customer shall reimburse the Company for all reasonable costs (including court costs and attorneys' fees and expenses) incurred in collecting amounts owed under this Agreement. Customer shall be responsible for all sales, use, property, excise, and other similar taxes resulting from the transactions contemplated by this Agreement, excluding taxes on the net income of the Company.
4. Term of Agreement; Termination.
This Agreement shall commence upon the Effective Date and, unless terminated in accordance with this Section 4, or terminated by transfer with written approval by the Company according to Section 15, shall be perpetual. Either party may terminate this Agreement in the event of a material breach of this Agreement by the other party that is not cured within thirty (30) days of written notice thereof from the other party; provided, however, that this Agreement shall immediately terminate upon breach by Customer of Section 6.
5. Effect of Termination.
Upon termination of this Agreement, all licenses granted hereunder shall automatically terminate except as expressly stated in this Agreement. Each party shall promptly pay to the other any amounts due and owing hereunder. No termination of this Agreement shall release Customer from any obligation to pay the Company any amount that has accrued or will accrue or become payable prior to, at, or after the date of termination of this Agreement. Each party shall immediately cease using and return all property in its possession belonging to the other party, including without limitation all Products and tangible embodiments of Confidential Information (as defined below). Customer shall not be entitled to a refund, in whole or in part, of any amounts paid hereunder, other than in accordance with Section 8(a). Sections 3, 5-10 and 12- 15 hereof will survive termination of this Agreement.
6. Representations, and Covenants of Customer.
(a) Except as expressly permitted in this Agreement, Customer shall not, and shall not permit others to, (i) use, modify, copy (except for one copy of the Software for archive and security back-up purposes), or otherwise reproduce the Product in whole or in part, (ii) reverse engineer, decompile, disassemble, or otherwise attempt to derive the source code form, algorithms, processes, state machines or structure of the Software or the proprietary network protocols implemented by the Software, higher algorithms or state machines, (iii) transmit the Software over a network by telephone or electronically using any means (iv) distribute, sublicense, assign, share, timeshare, sell, grant a security interest in, use for service bureau purposes, or otherwise transfer the Software or Customer's right to use the Products without the prior written consent of the Company and then only upon a permanent transfer of the Products purchased and provided all Software is included in such transfer and Customer does not retain a copy of the Software, (v) remove any proprietary notices or labels on the Products. Without limiting the foregoing, copying or reproduction of the software to any other server or location for further reproduction or redistribution is expressly prohibited. (b) Customer hereby covenants and agrees to (i) limit access to the Products to its employees and consultants who require access in connection with Customer's use of the Products and who are bound by a duty of confidentiality no less protective than this Agreement, (ii) take all reasonable precautions to prevent unauthorized or improper use or disclosure of the Products, (iii) ensure that its use of the Products is in compliance with all foreign, federal, state, and local laws and regulations, including without limitation all laws and regulations relating to export and import control, privacy rights, and data protection and (iv) for any utilization of the Products for or on behalf of the United States of America, its agencies and/or instrumentalities ("U.S. Government"), ensure use, duplication, or disclosure of the Software by the U.S. government is subject to the restrictions set forth in FAR 12.212 for civilian agencies and DFAR 227.7202 for military agencies. If the licensee hereunder is the U.S. Government, the Software is licensed hereunder (i) only as a commercial item and (ii) only with those rights as are granted to all other end users pursuant to the terms and conditions of this Agreement. Customer agrees to indemnify the Company for all claims or alleged claims for a breach of any of the foregoing covenants. Customer will obtain any export and/or re-export authorization required under the Export Administration Regulations of the United States Department of Commerce and other relevant regulations controlling the export of Product or related technical data.
7. Proprietary Rights and Confidentiality.
(a) Customer acknowledges and agrees that (i) as between the Company and Customer, all rights, title and interest in and to the Product and all derivatives thereof (including any and all patents, copyrights, trade secret rights, trademarks, trade names and other proprietary rights embodied therein or associated therewith) are and shall remain with the Company, their suppliers or licensors', and this Agreement in no way conveys any right or interest in the Product other than a limited license to use them in accordance herewith, and (ii) the Products are works protected by copyright, trade secret, and other proprietary rights and laws. (b) Each party acknowledges that by reason of its relationship to the other party under this Agreement it may have access to Confidential Information. Each party agrees to maintain in confidence and use only as expressly permitted in this Agreement all Confidential Information received from the other, both orally and in writing. For the purposes of this Agreement, the term "Confidential Information" means the Products, the terms of this Agreement, and any other non-public information or materials; provided, that Confidential Information shall not include information the receiving party can demonstrate (i) is or becomes a matter of public knowledge through no fault of the receiving party, (ii) was rightfully in the receiving party's possession prior to disclosure by the disclosing party, as evidenced by written records of the receiving party, (iii) subsequent to disclosure, is rightfully obtained by the receiving party from a third party in lawful possession of such Confidential Information, as evidenced by written records of the receiving party, (iv) is independently developed by the receiving party without reference to Confidential Information, or (v) is required to be disclosed by law. (c) The above limitations include but are not limited to the disclosure of information relating to the performance, functionality, reliability or any benchmarking tests or results of the Products. Under no circumstances are the above listed items to be placed into the public domain by the Customer without the prior written consent of the Company.
8. Indemnification Obligations.
(a) the Company shall defend and indemnify Customer against any action or proceeding brought against Customer which alleges that the Products infringe any United States patent, copyright, or trademark, and the Company shall pay damages finally awarded or agreed in settlement against Customer (including, without limitation, court costs and reasonable attorneys' fees and expenses); provided, that (i) Customer notifies the Company promptly in writing of the claim in question, (ii) the Company has sole control of the defense and all related settlement negotiations, and (iii) Customer provides the Company with all commercially reasonable assistance, information and authority to perform the above at the Company's expense. In the event that Customer's use of the Products are enjoined by a court of competent authority, the Company shall, at its sole option and at its expense, (I) procure for Customer the right to continue to use the Products in question, (II) modify the Products to avoid infringement without material impairment of its functionality or (III) replace the Products with functionally equivalent non-infringing products. If none of the foregoing remedies can be obtained upon commercially reasonable terms, Customer shall remove and return to the Company the Products in question and the Company shall refund to Customer the unamortized portion, if any, of the fees paid by Customer to the Company for the Products in question (based on a three (3) year amortization of such fees commencing on the Effective Date). The foregoing indemnity shall not apply if the alleged infringement is attributable to the combination of the Products with products not provided by the Company, or if the Product is modified or altered by any person or entity other than the Company (or an authorized agent of the Company), or if the Products are used outside the scope of this Agreement (each a "Customer Modification"). THIS SECTION STATES THE COMPANY'S SOLE LIABILITY HEREUNDER WITH RESPECT TO INFRINGEMENT OF ANY INTELLECTUAL PROPERTY AND PROPRIETARY RIGHTS.(b) Customer, at its expense, shall defend and indemnify the Company and any of its subsidiaries or affiliates against any action or proceeding brought against the Company or any of its subsidiaries or affiliates and Customer shall pay damages finally awarded or agreed in settlement which arises from or in any manner is connected with a Customer Modification or any of Customer's actions or omissions in using the Products (excluding claims for which the Company is obligated to defend Customer under Section 8(a) hereof); provided, that (i) the Company notifies Customer promptly in writing of the claim in question, (ii) Customer has sole control of the defense and all related settlement negotiations, and (iii) the Company provides Customer with all commercially reasonable assistance, information and authority to perform the above at Customer's expense.
9. Limitation of the Company's Liability.
CUSTOMER'S SOLE REMEDY AND THE COMPANY'S SOLE OBLIGATION WITH RESPECT TO ANY CLAIMS, WHETHER IN CONTRACT, TORT OR OTHERWISE, ARISING OUT OF, CONNECTED WITH, OR RESULTING FROM THIS AGREEMENT SHALL BE GOVERNED BY THIS AGREEMENT, AND IN ALL CASES CUSTOMER'S REMEDY SHALL BE EXPRESSLY LIMITED TO MONETARY DAMAGES NOT TO EXCEED THE LESSER OF THE FEES PAID FOR THE SPECIFIC PRODUCT WHICH CAUSED THE DAMAGE OR THE COST OF REPAIR OR REPLACEMENT OF ANY HARDWARE COMPONENTS THAT MALFUNCTION IN CONDITIONS OF NORMAL USE. WITHOUT LIMITING THE FOREGOING, IT IS EXPRESSLY AGREED THAT IN NO EVENT SHALL THE COMPANY OR THEIR SUPPLIERS OR ANYONE ELSE WHO HAS BEEN INVOLVED IN THE PERFORMANCE OF THIS AGREEMENT ON BEHALF OF THE COMPANY, INCLUDING ITS EMPLOYEES, SUBCONTRACTORS OR AGENTS, BE LIABLE FOR ANY DAMAGES CAUSED BY THE PRODUCT OR THE FAILURE OF THE PRODUCT TO PERFORM, INCLUDING ANY LOST PROFITS OR SAVINGS OR SPECIAL, INDIRECT, PUNITIVE, INCIDENTAL OR CONSEQUENTIAL DAMAGES. THE COMPANY IS NOT LIABLE FOR ANY CLAIM MADE BY A THIRD PARTY OR MADE BY YOU FOR A THIRD PARTY. THIS LIMITATION OF LIABILITY CANNOT BE WAIVED OR AMENDED BY ANY PERSON. THIS LIMITATION OF LIABILITY WILL BE EFFECTIVE EVEN IF YOU HAVE ADVISED THE COMPANY OR AN AUTHORIZED REPRESENTATIVE OF THE COMPANY OF THE POSSIBILITY OF ANY SUCH DAMAGES. THIS LIMITATION OF LIABILITY, HOWEVER, WILL NOT APPLY TO CLAIMS FOR PERSONAL INJURY. NOTWITHSTANDING THE FOREGOING, THE COMPANY SPECIFICALLY DISCLAIMS, TO THE EXTENT PERMITTED BY APPLICABLE LAW, LIABILITY FOR ANY PERSONAL INJURY RESULTING FROM FAILURE TO READ AND FOLLOW INSTRUCTIONS AND SAFETY PRECAUTIONS CONTAINED IN THE DOCUMENTATION SUPPLIED WITH THE PRODUCT.
10. Use of Customer's Name.
Customer consents to being listed as a customer of the Company in any standard customer listing (or partial customer listing) published by the Company and in press releases or other publications, provided that such release or publication relates to new customers or to customers generally and does not supply detail regarding Customer or this Agreement beyond the name of the Products licensed without the prior consent of Customer.
11. Third Party Products.
Any third party products are provided solely as a convenience to Customer, and are provided and/or licensed under the terms of said products' manufacturer. The Company assumes no responsibility for said products including but not limited to any warranties or indemnification rights contained in Sections 9 and 10 hereof.
12. Injunctive Relief; Cumulative Remedies.
The parties hereto agree that money damages would be an inadequate remedy for the Company in the event of a breach or threatened breach by Customer of the provisions set forth in Sections 7, 8 or 15 hereof; therefore, in the event of a breach or threatened breach by Customer of any such provisions, the Company may, either with or without pursuing any other remedies afforded to it by law, immediately obtain and enforce an injunction from any court of law or equity prohibiting the Customer from breaching such provisions. All rights and remedies afforded the Company by law shall be cumulative and not exclusive.
13. General.
Customer may not sublicense, assign (by operation of law or otherwise) or transfer this Agreement or any license or any right, duty or obligation under this Agreement without the Company's prior written consent, and any attempt to do so shall be null and void. Any transfer approved by the Company shall immediately terminate this agreement. Subject to the foregoing limitations, this Agreement will mutually benefit and be binding upon the parties, their successors and assigns. Nothing in this Agreement shall be construed to imply a joint venture, partnership or agency relationship between the parties and the Company shall be considered an independent contractor when performing any services in connection with this Agreement. Any notice required to be provided pursuant to this Agreement shall be in writing and shall be deemed given if sent to the addresses stated on the sales quotation and such notices shall be effective upon receipt. A failure or delay by either party to enforce any right under this Agreement shall not at any time constitute a waiver of such right or any other right, and shall not modify the rights or obligations of either party under this Agreement. To the extent that any provision of this Agreement is found to be void or unenforceable, such provision shall be without effect and the remainder of the Agreement shall be enforced to the full extent of the law. In no event shall either party be liable for any delay or failure to perform under this Agreement which is due to causes beyond the reasonable control of such part including but not limited to any act of God, act of any government or other authority or statutory undertaking, industrial dispute, fire, explosion, accident, power failure, flood, riot or war (declared or undeclared). This Agreement shall be governed by and construed under the laws of the State of New Hampshire, without regard to principles of conflicts of laws. Application of the U.N. Convention on Contracts for the International Sale of Goods is expressly excluded. Any action brought pursuant to or in connection with this Agreement shall be brought only in the state or federal courts within the State of New Hampshire without regard to its conflict of law's provisions. In any such action, the parties shall submit to the personal jurisdiction of the courts of the State of New Hampshire and waive any objections to venue in such courts. Pre-printed terms and conditions set forth on any purchase order submitted by Customer, or on any quotation, purchase order acceptance or invoice submitted by Customer, shall have no force and effect and are expressly superseded by the terms of this Agreement. In the event of a conflict between the terms of this Agreement and the terms of the Warranty and Support Information documentation supplied with the Product, the terms of the Warranty and Support Information shall control. The Company may make Product updates and enhancements available to Customer from time to time accompanied by a revision or amendment to this Agreement. Installation or use by Customer of the Products or any such updates or enhancements shall constitute acceptance by Customer of this Agreement and/or any such revised agreement. Except as expressly provided herein, no amendment or modification of this Agreement shall be effective unless made in writing and signed by the Company and Customer. This Agreement is the entire agreement of the parties, and supersedes all prior agreements and communications, whether oral or in writing, between the parties with respect to the subject matter of this Agreement. (Rev. 030109)
DELL KACE SOFTWARE END USER LICENSE AGREEMENT
This is a legal agreement ("Agreement") between you, the user, and Dell Inc. and its subsidiaries and affiliates ("Dell"). This Agreement covers all software and associated documentation that is distributed with or for the Dell product (and upgrades and updates thereto), known as a "KACE Appliance," whether such software is delivered independently or preloaded on Dell hardware, whether branded KACE or Dell KACE or otherwise (collectively the "Software"). This Agreement is not for the sale of Software or any other intellectual property. All title and intellectual property rights in and to Software is owned by the manufacturer or owner of the Software. All rights not expressly granted under this Agreement are reserved by the manufacturer or owner of the Software. By opening or breaking the seal on the Software packet(s), installing or downloading the Software, or using the Software that has been preloaded or is embedded in your product, you agree to be bound by the terms of this Agreement. If you do not agree to these terms, promptly return all Software items (media, written materials, and packaging) and any hardware containing preloaded Software.
PLEASE NOTE: THIS AGREEMENT MAY DIFFER FROM THE LICENSE AGREEMENT INCLUDED IN THE PRINTED MATERIALS ENCLOSED IN THE BOX WITH YOUR KACE APPLIANCE. IF SO, THIS AGREEMENT SHALL CONTROL OVER THE PRINTED DOCUMENT.
If you have received Software for use on a trial basis ("Trial Software"), then your right to use the Trial Software and any other rights under this Agreement shall terminate at the end of the trial period unless you purchase a license to the Software. You may not copy, reproduce, or distribute Trial Software for any reason. DELL PROVIDES TRIAL SOFTWARE "AS IS" AND WITHOUT WARRANTY OF ANY KIND, AND DELL, ON BEHALF OF ITSELF AND ITS SUPPLIERS, DISCLAIMS ALL WARRANTIES, EXPRESS, IMPLIED, OR OTHERWISE, INCLUDING, BUT NOT LIMITED TO, IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE OR ANY WARRANTY REGARDING TITLE OR AGAINST INFRINGEMENT. You understand and agree that Dell is not obligated to provide support of any kind for Trial Software.
If you purchased Software preloaded onto Dell hardware, whether branded KACE or Dell KACE or otherwise, (such hardware and Software together, an "Appliance"), you may use the Software only together with the Appliance on which it was loaded by Dell. If you purchased Software independent of hardware (such Software, a "Virtual Appliance"), you may install the Virtual Appliance and run the number of instances of the Virtual Appliance as you have purchased licenses. So long as you do not exceed the scope of your license, you may move a Virtual Appliance to a different server. You may distribute Software to computers or other physical or virtual devices configured for management by your Appliance or Virtual Appliance (each such device, a "Managed Computer"), provided that the number of Managed Computers does not exceed the scope of the Software license (including the number of licensed nodes) that you have purchased from Dell. In determining the number of Managed Computers, each individual physical device and each virtual device (e.g., each instance of an operating environment running concurrently with another operating environment on a single physical device) shall constitute a separate Managed Computer.
If you are a commercial customer of Dell or a Dell affiliate, you hereby grant Dell, or an agent selected by Dell, the right to perform an audit of your use of the Software during normal business hours, you agree to cooperate with Dell in such audit, and you agree to provide Dell with all records reasonably related to your use of the Software. The audit will be limited to verification of your compliance with the terms of this Agreement.
The Software is protected by United States and other applicable copyright laws and international treaties. You may make one copy of the Software purchased as a Virtual Appliance solely for backup or archival purposes or transfer it to a single hard disk or storage device provided you keep the copy solely for backup or archival purposes. Otherwise, you may not make copies of the Software except to either (i) with respect to an Appliance, load the KACE Agent Software into the computer as part of executing the Software on a Managed Computer or (ii) with respect to a Virtual Appliance, make as many copies of the software as you have licensed Virtual Appliances and load the KACE Agent Software into the computer as part of executing the Software on a Managed Computer. You shall reproduce and include copyright and other proprietary notices on and in any copies for the Software. You may not sublicense, rent or lease or otherwise transfer or distribute the Software or the accompanying written materials to others or copy the written materials accompanying the Software. You may not reverse engineer, decompile or disassemble, modify or create derivative works of the Software. If the package accompanying your computer or device contains optical discs, or other storage media, you may use only the media appropriate for your computer or device. You may not use the optical discs or storage media on another computer, device or network, or loan, rent, lease, or transfer them to another user except as permitted by this Agreement. You may not release the results of any performance or functional evaluation of any of the Software or any Dell product to any third party without prior written approval of Dell for each such release. You agree that you shall comply with all applicable laws, including without limitation, all export laws and regulations.
The Software regularly communicates with Dell during the normal course of operation to obtain and provide updated data feeds. You agree that Dell may collect, store, aggregate, and analyze information about your usage of the Software, including, without limitation, information about applications, processes, services, and characteristics of your user environment associated with using the Software, database, application server, and Licensee's error logs (collectively, the "Data"), for internal use in order to provide product support and conduct product research. If at any time during the Term you opt to activate the AppDeploy Live feature, you agree that Dell may collect, store, aggregate, analyze, and disclose to other Software users and to the general public the Data collected by Dell in anonymous, aggregate form. You further understand and agree that any information you choose to manually disclose through the AppDeploy Live feature may be used and disclosed in accordance with the foregoing sentence. In such cases, you grant Dell a non-exclusive, worldwide, royalty-free, perpetual, non-revocable license to use, compile, distribute, display, store, process, reproduce, or create derivative works of the Data. You represent and warrant that you have obtained all rights, permissions, and consents necessary to use and transfer the Data within and outside of the country in which you are located in conjunction with your use of the Software (including providing adequate disclosures and obtaining legally sufficient consent from your employees, agents, and contractors).
LIMITED WARRANTY
Dell warrants that the Software media will be free from defects in materials and workmanship under normal use for 90 days from the date you receive them. This warranty is limited to you and is not transferable. Any implied warranties are limited to 90 days from the date you receive the Software. Some jurisdictions do not allow limits on the duration of an implied warranty, so this limitation may not apply to you. The entire liability of Dell and its suppliers, and your exclusive remedy, shall be, at Dell's option, either (a) termination of this Agreement and return of the price paid for the Software or (b) replacement of any media not meeting this warranty that is sent with a return authorization number to Dell, within the 90 day warranty period, at your cost and risk. This limited warranty is void if any media damage has resulted from accident, abuse, misapplication, or service or modification by someone other than Dell. Any replacement media is warranted for the remaining original warranty period or 30 days, whichever is longer.
Dell and its suppliers do NOT warrant that the functions of the Software will meet your requirements or that operation of the Software will be uninterrupted or error free. You assume responsibility for selecting the Software to achieve your intended results and for the use and results obtained from the Software.
DELL, ON BEHALF OF ITSELF AND ITS SUPPLIERS, DISCLAIMS ALL OTHER WARRANTIES, EXPRESS, IMPLIED, OR OTHERWISE, INCLUDING, BUT NOT LIMITED TO, IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE OR ANY WARRANTY REGARDING TITLE OR AGAINST INFRINGEMENT, FOR THE SOFTWARE AND ALL ACCOMPANYING WRITTEN MATERIALS. THIS LIMITED WARRANTY GIVES YOU SPECIFIC LEGAL RIGHTS; YOU MAY HAVE OTHERS, WHICH VARY FROM JURISDICTION TO JURISDICTION.
IN NO EVENT SHALL DELL OR ITS SUPPLIERS BE LIABLE FOR ANY DAMAGES WHATSOEVER (INCLUDING, WITHOUT LIMITATION, DAMAGES FOR LOSS OF BUSINESS PROFITS, BUSINESS INTERRUPTION, LOSS OF BUSINESS INFORMATION, OR OTHER PECUNIARY LOSS) ARISING OUT OF USE OR INABILITY TO USE THE SOFTWARE, EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. BECAUSE SOME JURISDICTIONS DO NOT ALLOW AN EXCLUSION OR LIMITATION OF LIABILITY FOR CONSEQUENTIAL OR INCIDENTAL DAMAGES, THE ABOVE LIMITATION MAY NOT APPLY TO YOU.
This Agreement does not entitle you to receive Software support, patches, upgrades or updates. In order to receive Software support and any patches, upgrades and updates that are released to licensed users of the Software with current support contracts, you must purchase Dell Kace technical support services, which are described at www.kace.com/support. In addition, first time purchasers of a KACE Appliance are required to purchase training services referred to as the KACE JumpStart Program at the time of purchase of their initial KACE Appliance. In connection with the KACE JumpStart Program, KACE or a KACE authorized third party will deliver online training to assist you in the installation and basic configuration of the KACE Appliance. This training will also include exercises that enable deployment of KACE Agent Software on up to 150 managed machines as well as instructions on how to successfully deploy KACE Agent Software on the remaining managed machines (if any). The KACE JumpStart Program consists of a fixed number of two hour sessions depending on the specific model and modules purchased.
These sessions must be completed within 60 days of the initial KACE Appliance shipment. Sessions not completed within that time period can be purchased separately at the then current price levels. All services delivered by or on behalf of Dell, including technical support services for Software and training including the KACE JumpStart Programs are provided pursuant to the Dell Customer Master Services Agreement posted at: www.dell.com/servicecontracts and by accepting the terms of this EULA you agree that such terms shall govern any Software support or other services provided by or on behalf of Dell.
THIS OPEN SOURCE SOFTWARE IS DISTRIBUTED IN THE HOPE THAT IT WILL BE USEFUL, BUT IS PROVIDED "AS IS" WITHOUT ANY WARRANTY, EXPRESS, IMPLIED OR OTHERWISE, INCLUDING BUT NOT LIMITED TO THE IMPLIED WARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE OR ANY WARRANTY REGARDING TITLE OR AGAINST INFRINGEMENT. IN NO EVENT SHALL DELL, THE COPYRIGHT HOLDERS, OR THE CONTRIBUTORS BE LIABLE FOR ANY DIRECT, INDIRECT, INCIDENTAL, SPECIAL, EXEMPLARY, OR CONSEQUENTIAL DAMAGES (INCLUDING, BUT NOT LIMITED TO, PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES; LOSS OF USE, DATA, OR PROFITS; OR BUSINESS INTERRUPTION) HOWEVER CAUSED AND ON ANY THEORY OF LIABILITY, WHETHER IN CONTRACT, STRICT LIABILITY, OR TORT (INCLUDING NEGLIGENCE OR OTHERWISE) ARISING IN ANY WAY OUT OF THE USE OF THIS OPEN SOURCE SOFTWARE, EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGE.
The software and documentation are "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 C.F.R. 12.212 and 48 C.F.R. 227.7202-1 through 227.7202-4, all U.S. Government end users acquire the software and documentation with only those rights set forth herein. Contractor/manufacturer is Dell Marketing USA L.P., One Dell Way, Round Rock, Texas 78682.
CONFIDENTIALITY
You agree to: (a) refrain from using Confidential Information (defined below) except as necessary to exercise the rights herein and (b) to use best efforts to preserve and protect the confidentiality of the Confidential Information. "Confidential Information" means any oral, written, graphic or machine-readable information disclosed by Dell that is (i) identified herein as confidential; (ii) designated in writing to be confidential or proprietary; or (iii) should be reasonably understood to be confidential. Notwithstanding the foregoing, Confidential Information shall not include information: (i) already publicly known through no fault of you; (ii) otherwise known to you by no wrongful conduct; or (iii) to the extent required to be disclosed by law or court order. You acknowledge that the Software and Dell products embody and contain valuable trade secrets and Confidential Information owned by Dell, including but not limited to source code, the development status of Software and Dell products, the appearance, content and flow of the user interface of the Software and Dell product, and the content and documentation of the Software or Dell product.
SUPPLEMENTAL TERMS FOR MICROSOFT SOFTWARE
You acknowledge that the Software may include certain software and materials licensed to Dell by Microsoft Corporation and/or its affiliates (collectively, "Microsoft")(such software or materials licensed by Microsoft, "Microsoft Software"). You agree that (i) this license is limited to use of Software containing Microsoft Software as a boot, diagnostic, disaster recovery, setup, restoration, emergency services, installation, test and/or configuration utilities program, and not for use as a general purpose operating system or as a substitute for a fully functional version of any operating system product; (ii) the Software containing the Microsoft Software contains a security feature that will cause the computer system to reboot without prior notification to the end user after 24 hours of continuous use; and (iii) all computer support issues will be handled solely by Dell.
SUPPLEMENTAL TERMS FOR MYSQL SOFTWARE
You acknowledge that the Software may include certain software and materials licensed to Dell by MySQL Inc. and/or its affiliates (collectively, "MySQL")(such software or materials licensed by MySQL, "MySQL Software"). You may only use the MySQL Software for your internal business purposes and not as a service bureau, unless you are a Dell Alliance Partner or otherwise expressly authorized in writing by Dell. You may not copy MySQL Software onto any public or distributed network, use it as a general SQL server, as a stand-alone application or with applications other than the Software under this Agreement.
DELL COMPELLENT SOFTWARE END USER LICENSE AGREEMENT
This End User License Agreement (this "EULA") is made between Dell Products L.P. or Compellent Technologies, Inc. (together referred to as "Company") and the party designated below as the End User ("End User").
DELL FORCE10 SOFTWARE END USER LICENSE AGREEMENT
THIS END USER LICENSE AGREEMENT ("EULA") APPLIES TO THE SOFTWARE TO WHICH THIS EULA IS ATTACHED OR OTHERWISE ASSOCIATED AND IS PROVIDED BY DELL PRODUCTS L.P. OR FORCE10 NETWORKS, INC. (TOGETHER REFERRED TO AS "LICENSOR"). COPYING, INSTALLING, OR USING ANY SOFTWARE PROVIDED BY LICENSOR SHALL BE DEEMED TO CONFIRM THE END USER'S ACCEPTANCE OF THE FOLLOWING TERMS, CONDITIONS, AND RESTRICTIONS. IF YOU DO NOT AGREE TO BE BOUND BY THE TERMS AND CONDITIONS OF THIS EULA, THEN YOU MAY NOT COPY, INSTALL, ACTIVATE OR OTHERWISE USE ANY OF THE SOFTWARE AND YOU MUST RETURN THE SOFTWARE AND THE PRODUCTS TO WHICH THE SOFTWARE IS ATTACHED FOR A FULL REFUND. ANY DISPOSITION OF THE SOFTWARE NOT IN ACCORDANCE WITH THE FOLLOWING EULA IS STRICTLY PROHIBITED.
Licensor agrees to license the end-user ("End User") of the software that Licensor (or its authorized distributor or reseller) has furnished to End User and to which this EULA is attached or otherwise associated, as well as any upgrades, updates, or modified versions of such software delivered to End User under the applicable purchase agreement, and all related documentation (collectively, "Software"), under the terms of this EULA as follows:
DELL END USER LICENSE AGREEMENT
THIS IS A LEGAL AGREEMENT BETWEEN YOU (EITHER AN INDIVIDUAL OR AN ENTITY) AND DELL PRODUCTS L.P. OR DELL GLOBAL B.V. (SINGAPORE BRANCH), ON BEHALF OF DELL INC. AND ITS WORLDWIDE AFFILIATES (COLLECTIVELY, "Dell" OR "DELL"), WHICH GOVERNS YOUR USE OF THE SOFTWARE. THE SOFTWARE SHALL MEAN COLLECTIVELY THE SOFTWARE PROGRAM, THE ASSOCIATED MEDIA, PRINTED MATERIALS, ONLINE OR ELECTRONIC DOCUMENTATION, AND ANY COPIES THEREOF, TO WHICH THIS AGREEMENT IS ATTACHED OR OTHERWISE ASSOCIATED (the "Software" or "SOFTWARE"). PLEASE READ THE TERMS AND CONDITIONS OF THIS AGREEMENT CAREFULLY, INCLUDING, WITHOUT LIMITATION, ANY SUPPLEMENTAL TERMS AND CONDITIONS APPEARING OR REFERENCED BELOW, WHICH ARE HEREBY MADE PART OF THIS END USER LICENSE AGREEMENT (COLLECTIVELY, "EULA"), BEFORE DOWNLOADING, INSTALLING, ACTIVIATING AND/OR OTHERWISE USING THE SOFTWARE. BY EXPRESSLY ACCEPTING THESE TERMS OR DOWNLOADING, INSTALLING, ACTIVATING AND/OR OTHERWISE USING THE SOFTWARE, YOU ARE AGREEING THAT YOU HAVE READ, AND THAT YOU AGREE TO COMPLY WITH AND TO BE BOUND BY THE TERMS AND CONDITIONS OF THIS EULA AND ALL APPLICABLE LAWS AND REGULATIONS IN THEIR ENTIRETY WITHOUT LIMITATION OR QUALIFICATION. IF YOU DO NOT AGREE TO BE BOUND BY THE TERMS AND CONDITIONS OF THIS EULA, THEN YOU MAY NOT DOWNLOAD, INSTALL, ACTIVATE OR OTHERWISE USE ANY OF THE SOFTWARE AND YOU SHOULD RETURN THE SOFTWARE AND ANY HARDWARE TO WHICH IT IS ATTACHED, AS DIRECTED BY DELL FOR A FULL REFUND. IF YOU ARE AN INDIVIDUAL REPRESENTING AN ENTITY, YOU ACKNOWLEDGE THAT YOU HAVE THE APPROPRIATE AUTHORITY TO ACCEPT THESE TERMS AND CONDITIONS ON BEHALF OF SUCH ENTITY.
The Software and documentation are "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 C.F.R. 12.212 and 48 C.F.R. 227.7202-1 through 227.7202-4, all U.S. Government end users acquire the Software and documentation with only those rights set forth herein. Contractor/manufacturer is Dell Products L.P., One Dell Way, Round Rock, Texas 78682.
NOTWITHSTANDING ANYTHING TO THE CONTRARY SET FORTH IN THIS EULA, DELL'S TOTAL LIABILITY FOR ANY AND ALL CLAIMS ARISING OUT OF OR IN CONNECTION WITH THIS EULA AND/OR THE SOFTWARE SHALL NOT EXCEED THE TOTAL AMOUNT RECEIVED BY DELL FOR THE PARTICULAR SOFTWARE GIVING RISE TO SUCH CLAIM(S). THIS PARAGRAPH SHALL NOT LIMIT YOUR PAYMENT OBLIGATIONS OR LIABILITY FOR MISAPPROPRIATION OR INFRINGEMENT OF DELL'S INTELLECTUAL PROPERTY.
The foregoing limitations, exclusions and disclaimers shall apply to any and all claims, regardless of whether the claim(s) for such damages is based in contract, warranty, strict liability, negligence, tort or otherwise. Insofar as applicable law prohibits any limitation on liability herein, the parties agree that such limitation will be automatically modified, but only to the extent so as to make the limitation compliant with applicable law. The parties agree that the limitations on liabilities set forth herein are agreed allocations of risk and such limitations will apply notwithstanding the failure of essential purpose of any limited remedy and even if a party has been advised of the possibility of any such liability.
DELL SHALL NOT BE LIABLE TO YOU FOR ANY CLAIM BROUGHT MORE THAN TWO YEARS AFTER THE CAUSE OF ACTION FOR SUCH CLAIM FIRST AROSE.
Les parties ont demandé que cette convention ainsi que tous les documents qui s'y rattachent soient rédigés en anglais.
Dell Inc., Attn: Dell Legal One Dell Way, Round Rock, Texas 78682
Supplemental Terms and Conditions:
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