StorMagic Inc. Software (“Software”) End user License Agreement (“Agreement”)
Please read this Agreement carefully before installing or using the StorMagic SvSAN Software. Installation and use of such Software is conditioned upon and restricted to the terms and conditions of this Agreement. By installing or using the program, you agree to accept and be bound by this Agreement.
1.1 No Sale. The program is owned by StorMagic Inc. and is licensed to you in accordance with the terms of this Agreement. This is not a sale of the Software. StorMagic retains all rights, title, and ownership to the Software.
1.2 License Granted. StorMagic grants you a non-exclusive, non-transferable license to use the Software strictly in accordance with the terms and conditions of this Agreement. If StorMagic grants you multiple licenses for the Software (or a license for multiple machines for the Software), the terms of this Agreement apply to each machine for which the Software is licensed. Your license hereunder is solely for the object code version of the StorMagic SvSAN Software. The limitations and restrictions on your use of the Software include all whole or partial copies of it, including portions merged into other programs, machine-readable instructions, audio/visual content (such as images, text, recordings, or pictures), and related licensed materials, as well as any documentation.
2. Use of the Software
2.1 Single Machine License. You may install and use the Software on only one virtual or physical machine at any one time, unless a license to use on more than one machine is expressly granted by an exhibit executed by licensor.
2.2 Reproduction, Modification. You may make one backup copy of the Software as is reasonably necessary for your archival purposes, which may not be installed or used unless the original installed and used copy is removed and deleted from its machine. You must reproduce the copyright notice and any other legend of ownership on any copy, or partial copy, of the Software. You may not: 1) use, copy, merge, transmit, translate, transfer, modify, or make any derivative works from the Software or any portion of it except as expressly permitted in this Agreement; 2) reverse engineer, reverse compile, or otherwise translate or disassemble the Software; or 3) sublicense, rent, lease, or timeshare the Software.
2.3 Proprietary Information. The Software is confidential and proprietary information of StorMagic. You agree to maintain the Software in confidence and not to disclose or otherwise make available the Software (or any component thereof) to any third party without the prior written consent of StorMagic.
3. Transfer of Rights and Obligations
3.1 No Transfer Without Consent. You may not transfer your rights or obligations under this Agreement, including the license for the Software granted under this Agreement, to another party unless StorMagicexpressly consents to such transfer in writing. For purposes of this Agreement, any change in control of you, including by sale of more than 50% of the equity of you (individually or in aggregate), sale of all or substantially all of your assets, merger, exchange, or operation of law, will constitute such a transfer requiring consent. Any attempt to transfer without such consent is void.
3.2 Transfer Requirements. If StorMagic consents to a requested transfer, you must transfer to the requested transferee a copy of this Agreement, a copy of the Software, and all other documentation (including proof of entitlement). Your license is then terminated. You must concurrently delete, remove, and destroy all copies of the Software and any other related materials in your possession, and certify the same to StorMagic in writing. Software for which StorMagic provides multiple licenses or provides a license for multiple machines (for example, as a pack) may only be transferred in its entirety. In this case, individual licenses or machine licenses, or seat licenses may not be separately transferred.
4. Limited Warranty
4.1 Acceptance of Software. The Software will be deemed accepted upon the earlier of: (i) actual receipt of the Software (in physical or electronic form) by you; or (ii) first installation of the Software on any of your machines.
4.2 Operation. Subject to the exclusions set forth in Section 4.3, for a period of ninety (90) days following the acceptance of the Software under Section 4.1 above, StorMagic warrants that the Software will operate substantially in accordance with StorMagic‘s SvSAN Product Specifications sheet for such Software found at StorMagic‘s website at www.StorMagic.com.
4.3 Exclusions. Notwithstanding the foregoing, no warranty shall apply to problems resulting from: (i) any modification of or damage (except modifications or damages caused by StorMagic) to the Software or its operating environment, (ii) failure to operate the Software in the proper hardware and Software environment, (iii) failure to operate the Software in accordance with StorMagic‘s documentation and instructions, or (iv) failure to implement any updates, improvements, modifications, patches and/or bug fixes provided by StorMagic. Your sole remedy for a breach of warranty under this Agreement will be limited to the performance and re-performance of services by StorMagic sufficient to cause the Software to perform in accordance with warranty. In the event StorMagic fails in respect of the foregoing sentence, your sole remedy is a refund of license fees paid for the Software at issue, amortized on a straight-line five (5) year basis from the date of acceptance of such Software.
4.4 Limited Warranty Excludes All Others. The express limited warranties set forth in this section 4 are the sole warranties given with respect to the software. All other warranties, express or implied, including, but not limited to, implied warranties of merchantability and fitness for a particular purpose, are expressly disclaimed. StorMagic does not warrant that its software, products or services will meet your requirements or that the operation of the software will be uninterrupted or error free. Except as expressly provided above, all software, products and services are provided with all fault, and the entire risk as to the quality, performance, accuracy, and effort of the software is with you.
5. Software Services
StorMagic may from time to time offer certain services, including support and maintenance for the Software. All such services must be entered into pursuant to separate Agreements fully detailing such services (including the term, cost, and type of services), and this Agreement and your purchase of a Software license due not entitle you to any services, including support and maintenance services.
6. Infringement Indemnification
6.1 Indemnification. Subject to the exceptions set forth in this Section and Section 6.2 below, if you are the subject of a third party claim that the Software infringes that party’s patent or copyright, StorMagic will indemnify and defend you against that claim, provided that you: (i) promptly notify StorMagic in writing of the claim; (ii) allow StorMagic to control the defense of such claim, including selection of counsel byStorMagic acceptable to and controlled by StorMagic and control of any related settlement negotiations; and (iii) cooperate fully with StorMagic in the defense of such claim. You will permit StorMagic, atStorMagic‘s option and expense, either to: (i) procure for you the right to continue using the Software; (ii) replace or modify the Software so that it becomes non-infringing; or (iii) terminate your license as to the affected Software, accept the return of the affected Software, and grant to you a pro-rata refund of the license fee paid hereunder for the affected Software, amortized on a straight-line basis over a five (5) year period. This paragraph states StorMagic‘s exclusive liability for infringement or other violation of the intellectual property rights of any third party. This is StorMagic‘s entire obligation to you regarding any claim of infringement.
6.2 Exclusions from Indemnification. Notwithstanding anything herein to the contrary, StorMagic will have no obligation or liability to you under this Section 6 if any otherwise covered claim is based upon: (i) use of the Software in a manner other than that for which it was furnished by StorMagic; (ii) any Software which has been modified by or for you in such a way as to cause it to become infringing; (iii) your failure to implement any update, upgrade, or patch delivered by StorMagic to you or made available to you that is designed to avoid such claim; or (iv) use of the Software in conjunction with systems, products or components not furnished by StorMagic.
7. Limitation of Liability, Damages
7.1 Types of Damages Limitation. StorMagic will not be liable for any consequential, special, incidental, or indirect damages (including lost profits or savings or loss of data or records), even if StorMagic, or its reseller, has been advised of the possibility of such damages.
7.2 Damage Amount Limitation. Regardless of the basis on which you may be entitled to recover damages from StorMagic, for any and all claims individually and in aggregate (including claims for breach of contract, negligence, misrepresentation or other tort), StorMagic‘s liability is limited to the amount of license fees you actually paid to StorMagic for the Software license granted hereunder
7.3 Timing of Actions. Neither party may bring a legal action under this Agreement more than two years after the cause of action arose, except for breach of Sections 1, 2, or 3 of this Agreement, for which the statute of limitations for such breach will govern.
8.1 Termination of License. StorMagic may terminate your license if you fail to comply with the terms of this Agreement. If StorMagic does so, all your license rights to the Software are terminated, you must remove from all machines all copies of the Software, and must delete and destroy all copies of the Software and certify such deletion and destruction to StorMagic.
8.2 Compliance with Laws. Each of you and StorMagic agrees to comply with all laws and regulations governing such parties, this Agreement, and the Software. In particular, you agree to comply with all applicable export laws and regulations with respect to the Software.
8.3 Governing Law. This Agreement is governed by the laws of the state of Minnesota, without regard to its choice of laws principles.
8.4 Waivers. The failure by either you or StorMagic at any time to enforce any of the provisions of this Agreement or any right or remedy available hereunder or at law or in equity, or to exercise any option herein provided, will not constitute a waiver of such provision, right, remedy or option or in any way affect the validity of this Agreement. The waiver of any default by either you or StorMagic will not be deemed a continuing waiver, but will apply solely to the instance to which such waiver is directed.
8.5 No Third Party Beneficiaries. Other than StorMagic, any reseller from whom you purchased the license granted hereunder (if any), and you, there are no beneficiaries under this Agreement.