License Grant. Subject to the terms and conditions of this EULA, Company hereby grants End User a nonexclusive, nontransferable, limited license to use the copy of the software and any related documentation included therewith (collectively, the "Software"), without the right to sublicense the Software, solely for End User's internal use on a single storage center system (consisting of one or two controllers and related disk drives and ancillary hardware) that is compatible with the Software. End User may not, nor may it permit any third party to, loan, lease, distribute, transfer or make available the Software to any third party, nor modify or remove any proprietary rights notices in the Software, decompile, disassemble, reverse engineer or otherwise attempt to create the source code for the Software. Except as necessary for the use of the Software, no copying of the Software, in whole or in part, is permitted.
License Fee. End User's license to use the Software hereunder is contingent upon End User's payment when due of all license fees with respect thereto.
Ownership. Title to the Software is not transferred to End User, and ownership of all copies of, and all rights including all intellectual property rights in and to, the Software is and remains vested in Company, subject to the limited rights granted to End User in this EULA.
LIMITED WARRANTY AND WARRANTY DISCLAIMER. Company warrants to End User for a period of ninety (90) days after End User's purchase of the license granted hereunder that the Software will operate substantially in accordance with the documentation provided therewith. If the foregoing warranty is breached, and if End User notifies Company of such breach not more than 180 days after End User's purchase of the license granted hereunder, Company will, in its discretion, either modify the Software so as to correct such breach or refund the license fees that End User paid for the license granted hereunder. The foregoing is End User's exclusive remedy for any breach of warranty hereunder. This exclusive remedy shall not be deemed to have failed of its essential purpose so long as Company is willing and able to modify the Software or to refund the license fees paid in the manner provided herein. EXCEPT AS EXPLICITLY PROVIDED HEREIN, THE SOFTWARE IS PROVIDED "AS IS," WITHOUT WARRANTY OF ANY KIND, EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO ANY WARRANTY OF NON-INFRINGEMENT, PERFORMANCE, MERCHANTABILITY, OR FITNESS FOR A PARTICULAR PURPOSE. Company does not warrant that the Software will meet End User's requirements, operate without interruption or be error-free.
Indemnification for Infringement. Subject to the limitations stated below and unless End User has modified the Software, Company will defend, indemnify and hold harmless End User from any claim, suit, or proceeding to the extent made against End User for infringement of any United States patent, copyright, trademark, or trade secret by use of the Software as permitted under this EULA. End User will promptly provide notice to Company of any such claim, suit, or proceeding. Any compromise, settlement or offer of settlement of any claim under this Section 5 will require the prior consent of End User, which consent shall not be unreasonably withheld, conditioned or delayed. End User agrees that Company shall have full and complete control over the conduct of such proceeding. The parties hereto agree to cooperate fully with each other in connection with the defense, negotiation or settlement of any claim under this Section 5. This Section 5 states the entire liability and obligations of Company, and the exclusive remedy of End User, with respect to any alleged infringements of any patent, copyright, trademark and/or other intellectual property right by the Products or Software or any part thereof.
Term and Termination. This EULA and the license granted to End User to use the Software hereunder shall be terminated (i) by Company, at its option, if End User materially breaches any provision of this EULA; or (ii) by End User, at its option. Upon any termination, End User shall promptly return the Software and any copies thereof in any form. Company will not have any obligation to refund any portion of any license fee upon the termination of this EULA. Sections 3, 6, 7, 8 and 9 of this EULA shall survive its termination.
Copyright. United States copyright laws and international treaty provisions protect the Software. Unauthorized use or copying of the Software, including Software that has been modified, merged, or included with other software, or of the written materials or documentation included with the Software is expressly prohibited, except as explicitly set forth in this EULA. Any copies that you are authorized to make pursuant to this EULA, must contain the same copyright and other proprietary notices that appear on or in the Software
Confidentiality. End User acknowledges and agrees that the Software and documentation related to its use include proprietary information, trade secrets, know-how and confidential information, that is Company's exclusive property. End User agrees that, without Company's prior written consent, it will not grant access to the Software or its documentation, including any flow charts, logic diagrams, user manuals and screens, to any persons or entities except for employees and agents of End User who have a business need to have such access and who are obligated (by a separate confidentiality agreement, by operation of employment policies or otherwise) to maintain the confidentiality thereof.
LIMITATION OF LIABILITY. IN NO EVENT SHALL COMPANY BE LIABLE FOR ANY INCIDENTAL, CONSEQUENTIAL, PUNITIVE OR SIMILAR DAMAGES OF ANY KIND ARISING UNDER OR IN ANY WAY RELATED TO THE SOFTWARE OR THIS EULA. EXCEPT AS IT RELATES TO INDEMNIFICATION FOR INFRINGEMENT REFERENCED IN SECTION 5, IN NO EVENT SHALL COMPANY'S AGGREGATE LIABILITY ARISING UNDER OR IN ANY WAY RELATED TO THE SOFTWARE OR THIS EULA EXCEED THE AGGREGATE LICENSE FEES PAID FOR THE LICENSE GRANTED HEREUNDER. THE FOREGOING LIMITATIONS SHALL APPLY REGARDLESS OF THE FORM OF ANY CLAIM HEREUNDER, WHETHER FOR BREACH OF ANY WARRANTY, FOR BREACH OR REPUDIATION OF ANY OTHER TERM OR CONDITION OF THIS AGREEMENT OR ANY RELATED WRITING, FOR NEGLIGENCE, ON THE BASIS OF STRICT LIABILITY, OR OTHERWISE. No action arising under or in any way related to the Software or this EULA may be brought by End User more than one (1) year after such cause of action has become known to the parties.
General. This EULA (a) constitutes the entire agreement between the parties relating to the subject matter hereof and supersedes any prior negotiations, proposals, representations and agreements; (b) may only be changed by a writing signed by the parties specifically referencing this EULA; (c) shall be interpreted in accordance with the laws of the State of Minnesota, U.S.A., excluding its choice of law rules; and (d) is not assignable, in whole or in part, by End User, except to a parent or subsidiary of End User or in connection with the sale of substantially all of the assets of End user, in each case upon timely notice to Company of such assignment. Any prohibited assignment is null and void. Failure by either party to enforce any term hereof shall not be deemed a waiver. Company shall have the right to receive costs and expenses, including reasonable attorneys' fees, incurred in connection with the enforcement of this EULA. All claims arising out of or relating to this EULA shall be heard in an appropriate court sitting in Minneapolis, Minnesota, U.S.A. In the event any provision of this EULA is declared invalid, the remainder shall continue in binding effect.