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EMC SOFTWARE TOOLS LICENSE AGREEMENT

IMPORTANT - PLEASE READ CAREFULLY
THIS EMC SOFTWARE TOOLS LICENSE AGREEMENT (THE "AGREEMENT") IS A LEGAL
AGREEMENT BETWEEN EMC CORPORATION (OR BASED ON WHERE YOU LIVE, ONE OF ITS
AFFILIATES) ("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 SOFTWARE, TOOLS, COMPONENTS, ASSOCIATED
MEDIA, PRINTED MATERIALS, DOCUMENTATION, AND PROGRAMMING THAT MAY BE ACCESSED
VIA EMC'S PUBLIC FTP SITE (the "Software"). [THIS AGREEMENT ALSO APPLIES TO ANY
EMC UPDATES, SUPPLEMENTS OR NEW RELEASES FOR THIS SOFTWARE.
BY CLICKING ON THE "AGREE" BUTTON SET FORTH BELOW, OR DOWNLOADING, INSTALLING,
COPYING OR OTHERWISE USING ALL OR ANY PORTION OF THE SOFTWARE, YOU ARE
REPRESENTING TO EMC THAT (I) YOU ARE AUTHORIZED TO LEGALLY BIND THE CUSTOMER,
AND (II) YOU ACCEPT ALL OF THE TERMS AND CONDITIONS OF THIS AGREEMENT.
IF YOU DO NOT ACCEPT THE TERMS OF THIS AGREEMENT, CLICK ON THE "CANCEL" 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.
THIS AGREEMENT SHALL BECOME EFFECTIVE ON THE DATE ON WHICH CUSTOMER CLICKS ON
THE "AGREE" BUTTON DESCRIBED ABOVE OR DOWNLOADS THE SOFTWARE, WHICHEVER OCCURS
FIRST (THE "EFFECTIVE DATE").
1.0
DEFINITIONS
1.1
"Confidential Information" means any and all information or materials pr
ovided by one party to the other which are in tangible form and labeled "confide
ntial" or the like, or, if disclosed orally, are identified as being confidentia
l at the time of disclosure and are followed up within two (2) weeks in a tangib
le form that is appropriately labeled, but shall not include information or mate
rials that (i) were, on the Effective Date, generally known to the public; or (i
i) become generally known to the public after the Effective Date other than as a
result of the act or omission of the receiving party; or (iii) were rightfully
known to the receiving party prior to that party receiving same from the disclos
ing party; or (iv) are or were disclosed by the disclosing party to a third part
y generally without restriction on disclosure; or (v) the receiving party lawful
ly received from a third party without that third party's breach of agreement or
obligation of trust; or (vi) are independently developed by the receiving party
.
1.2
"Documentation" means the then-current, generally available, written use
r manuals and online help and guides for any Software provided by EMC.
1.3
"Equipment" means the Customer owned, operated or maintained EMC storage
device(s), peripheral hardware or appliances and/or the Central Processing Unit
("CPU") and/or the management station hardware on or with which the Software wa
s designed to operate.
1.4
"Software" means all software, tools, components, associated media, prin
ted materials, Documentation and programming that may be accessed via EMC's ["Pu
blic FTP Site"].
2.0
GRANT OF LICENSE AND RESTRICTIONS
2.1
Software. Commencing on the Effective Date, EMC grants Customer a non-ex
clusive, non-transferable license, without rights to sublicense, to use the Soft
ware, subject to the terms of this Agreement, to install, upgrade, maintain, con
figure, or other like function as enabled by the Software solely in connection w
ith (a) Customer's Equipment or (b) Equipment that Customer may support as an EM

C Partner. Customer may make one (1) copy of the Software for backup purposes on
ly.
2.2
Documentation. EMC hereby grants to Customer a non-exclusive, non-transf
erable license, without rights to sublicense, to use the then-current, generally
available Documentation as provided solely for purposes of supporting Customer'
s use of the Software.
2.3
Ownership. Software and Documentation 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, includ
ing but not limited to partial, physical or electronic copies, of the Software.
2.4
Customer may not: (a) provide, disclose or otherwise make available Soft
ware in any form to anyone other than Customer's agents, employees, consultants
or independent contractors ("Personnel"), who shall use Software solely in conne
ction with (i) Customer's Equipment or (ii) Equipment that Customer may support
as an EMC Partner, without EMC's prior written consent. Customer shall be fully
responsible to EMC for the compliance of Customer's personnel herewith; (b) modi
fy, enhance, supplement, create derivative works from, reverse assemble, reverse
engineer, reverse compile or otherwise reduce to human readable form the Softwa
re, except and only to the extent that applicable law expressly permits, without
EMC's prior written consent; (c) translate, adapt, vary or modify the Software
or Documentation; (d) disclose the results of any benchmark tests of the Softwar
e to any third party without EMC's prior written approval; or (e) rent, lease o
r lend the Software.
2.5
Customer acknowledges that it has been informed by EMC that use of the S
oftware may result in the transmission of certain user, site, error and/or array
configuration data, related to the Equipment, to EMC. By using the Software, yo
u consent to the transmission of this data. Such data shall be used by EMC solel
y in support of the related Equipment and shall be subject to the confidentialit
y provisions stated herein. EMC shall use reasonable security measures, such as
authentication and encryption, when transmitting such data to protect against un
authorized access.
3.0
DELIVERY AND INSTALLATION
3.1
Delivery of the Software is by download from the applicable EMC website
or EMC provided media only.
3.2
EMC shall, as necessary, provide Customer with information needed to ini
tially download, install and use the version of the Software current as of the E
ffective Date.
4.0
DISCLAIMER OF WARRANTY
4.1
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 AR
E SPECIFICALLY EXCLUDED, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTY OF
MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT, AND ANY
WARRANTY ARISING BY STATUTE, OPERATION OF LAW, COURSE OF DEALING OR PERFORMANCE,
OR USAGE OF TRADE.
4.2
THE SOFTWARE ENABLES CUSTOMER TO INSTALL, UPGRADE, MAINTAIN, CONFIGURE,
SPECIFY AND/OR CHANGE CERTAIN INTERNAL SYSTEM PARAMETERS, OR OTHER LIKE FUNCTION
AS ENABLED BY THE SOFTWARE. CUSTOMER, AND NOT EMC, IS RESPONSIBLE FOR PROPERLY
USING THE SOFTWARE. CUSTOMER ACKNOWLEDGES THAT IT HAS SUFFICIENT KNOWLEDGE AND E
XPERIENCE TO UNDERSTAND THE RESULTS OF ANY CHANGES IT MAKES OR MAY MAKE BY USING
THE SOFTWARE. PROBLEMS THAT ARE CAUSED BY CUSTOMER'S FAILURE TO PROPERLY USE SO
FTWARE MAY, AT EMC'S REASONABLE DISCRETION, BE EXCLUDED FROM COVERAGE UNDER THE
APPLICABLE EMC PRODUCT WARRANTY OR MAINTENANCE AGREEMENT.
4.3
No representation or other affirmation of fact, including but not limite
d to statements regarding capacity, suitability for use or performance of Softwa
re, 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 containe
d in this Agreement.

5.0
TERMINATION
5.1
This license shall terminate automatically if Customer fails to perform
any of its material covenants, obligations or responsibilities under this Agreem
ent. EMC shall, in addition to any other remedies which may be available to EMC
under this Agreement, at law or in equity, in its sole discretion, have the righ
t to terminate this Agreement and any or all related license(s) granted to Custo
mer by written notice thereto, with such termination to be effective immediately
. On termination, Customer shall cease all use and destroy all copies of the Sof
tware and Documentation.
6.0
EXPORT RESTRICTIONS
6.1
The Software and the technology included therein is subject to governmen
tal restrictions on exports from the U.S.; restrictions on exports from other co
untries in which such Software and technology included therein may be produced o
r located; disclosures of technology to foreign persons; exports from abroad of
derivative products thereof; and the importation and/or use of such Software and
technology included therein outside of the United States (collectively, "Export
Laws"). Diversion contrary to U.S. law is expressly prohibited. Customer shall,
at its sole expense, comply with all Export Laws and EMC export policies made a
vailable to Customer by EMC. Customer represents that it is not a Restricted Pe
rson, which shall be deemed to include any person or entity: (1) located in or a
national of Cuba, Iran, Libya, North Korea, Sudan, Syria, or any other countrie
s that may, from time to time, become subject to U.S. export controls for anti-t
errorism reasons or with which U.S. persons are generally prohibited from engagi
ng in financial transactions; or (2) on any restricted person or entity list mai
ntained by any U.S. governmental agency. Certain information, products or techn
ology may be subject to the International Traffic in Arms Regulations ("ITAR").
This information, products or technology shall only be exported, transferred or
released to foreign nationals inside or outside the United States in compliance
with ITAR.
7.0
FEEDBACK
7.1
If customer gives feedback about the Software to EMC, Customer gives to
EMC, without charge, the right to use, share and commercialize such feedback in
any way and for any purpose. These rights survive termination of this Agreement.
8.0
CONFIDENTIALITY
8.1
The receiving party shall protect the other's Confidential Information f
or three (3) years after receipt thereof, by means of the same standard of care
as used by the receiving party to protect its own information of a similar natur
e and importance, and no less than reasonable care. The receiving party shall us
e Confidential Information only to fulfill its obligations or to exercise its ri
ghts hereunder, and shall disclose Confidential Information only to those person
s in its organization who have a need to know such Confidential Information in t
he performance of their duties in connection herewith and who are bound by a wri
tten agreement to protect the confidentiality of such Confidential Information,
and will promptly report to the disclosing party any actual or suspected breach
hereof. This Agreement shall govern disclosures between the parties for two (2)
years after the Effective Date. The receiving party shall protect Confidential
Information, in the manner provided herein, for three (3) years after receipt th
ereof, unless such obligation ceases earlier pursuant to Section 1.1 above.
9.0.
NO INDEMNIFICATION
9.1
EMC shall have no liability to Customer for any action (and all related
claims) brought by or against Customer alleging that Customer's sale, use or oth
er disposition of any Software infringes any patent, copyright, trade secret or
other intellectual property right. In event of such an action, EMC retains the r
ight to terminate this Agreement and take possession of the Software.
9.2
THIS SECTION 9.0 STATES EMC'S ENTIRE LIABILITY WITH RESPECT TO ALLEGED I
NFRINGEMENTS OF INTELLECTUAL PROPERTY RIGHTS BY THE SOFTWARE OR ANY PART OF THEM

OR BY ITS OPERATION.
10.0
LIMITATION OF LIABILITY
10.1
EMC'S AND ITS SUPPLIERS' TOTAL LIABILITY AND CUSTOMER'S SOLE AND EXCLUSI
VE REMEDY FOR A CLAIM OF DAMAGE TO REAL OR TANGIBLE PERSONAL PROPERTY OR ANY OTH
ER CLAIM WHATSOEVER, INCLUDING BUT NOT LIMITED TO CLAIMS BASED ON CONTRACT, WARR
ANTY, NEGLIGENCE OR STRICT LIABILITY IN TORT, THAT ARISES OUT OF OR IN CONNECTIO
N WITH SOFTWARE OR SERVICES PROVIDED HEREUNDER, SHALL BE LIMITED TO PROVEN DIREC
T DAMAGES CAUSED BY EMC'S SOLE NEGLIGENCE IN AN AMOUNT NOT TO EXCEED US$5,000.
10.2
IN NO EVENT SHALL EMC OR ITS SUPPLIERS BE LIABLE FOR CONSEQUENTIAL, INCI
DENTAL, INDIRECT, OR SPECIAL DAMAGES (INCLUDING, BUT NOT LIMITED TO, LOSS OF PRO
FITS, REVENUES, DATA AND/OR USE) EVEN IF ADVISED OF THE POSSIBILITY THEREOF. NEI
THER PARTY SHALL BRING ANY CLAIM ARISING OUT OF THE SOFTWARE OR SERVICES PROVIDE
D HEREUNDER MORE THAN EIGHTEEN (18) MONTHS AFTER SUCH CLAIM HAS ACCRUED.
11.0
GENERAL
11.1
Assignment - Customer shall not assign any right or interest hereunder n
or delegate its duties under this Agreement either in whole or part without the
prior written consent of EMC. Any such action in violation of the foregoing shal
l be void.
11.2
Entire Agreement - The terms contained herein constitute the entire agre
ement between the parties with respect to the subject matter hereof and shall su
persede all prior communications and agreements, either oral, written or otherwi
se recorded.
11.3
Governing Law - This Agreement shall be governed by the laws of the Comm
onwealth of Massachusetts, excluding its conflict of law rules. The U. N. Conven
tion on Contracts for the International Sale of Goods shall not apply.
11.4
Notices - Except for routine communications, all other notices required
or permitted hereunder, including but not limited to notices of default or breac
h, shall be signed by an authorized representative of the sender. Such notices s
hall be deemed to have been received (i) when hand delivered; (ii) three (3) day
s after having been sent postage prepaid, by registered or certified first class
mail, return receipt requested; (iii) when sent by electronic transmission, wit
h written confirmation by the method of transmission; or (iv) one (1) day after
deposit with an overnight carrier, with written verification of delivery.
11.5
Waiver - The failure of either party to exercise or enforce any of its r
ights under this Agreement will not be deemed a forfeiture of such rights.
11.6
Independent Contractors - The parties are independent contractors for al
l purposes under this Agreement. Nothing contained herein shall be deemed to con
stitute either party as an agent or representative of the other party, or both p
arties as joint venturers or partners for any purpose. Neither party shall be re
sponsible for the acts or omissions of the other party, and neither party will h
ave authority to speak for, represent or obligate the other party in any way.
11.7
Severability - 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 provision
s.
11.8
Modification - This Agreement (i) is the complete statement of the agree
ment of the parties with regard to the subject matter hereof; and (ii) may be mo
dified only by a writing signed by both parties.
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