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:
"Customer" means the end user of the Products."Hardware" means the Dell EqualLogic PS Series branded array hardware along with any end user manuals supplied by the Company."Maintenance Releases" means any update, upgrade, revision, patch, bug fix or an improved, upgraded or enhanced version of the Products released by the Company to which Customer is rightfully entitled by way of a valid maintenance agreement, warranty, or other Company offering. Third Party Products are excluded and subject to their own terms and conditions. "Object Code" means computer programs assembled, compiled, or converted to magnetic or electronic binary form on software or hardware media, which are readable and usable by computer equipment, but not generally readable by humans without reverse assembly, reverse compiling, reverse conversion, reverse engineering and/or any other disassembly or recompilation. "Product(s)" means, collectively, the Hardware and Software which may be supplied to Customer. "Software" means all components of the Company's storage management software and related documentation made generally available by the Company from time to time not accompanied by its own license agreement. The term "Software" shall include any and all software, scripts, firmware, and microcode running on Hardware or any computer system, including all Maintenance Releases supplied in accordance with this Agreement. The Software shall be provided in Object Code form only. No source code will be provided. "Third Party Products" means any hardware or software licensed or distributed by the Company to Customer that is not owned by the Company.
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).
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.
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.