INTEL® ENTRY STORAGE SERVER SS4200-E
END USER SOFTWARE LICENSE AGREEMENT

IMPORTANT: READ BEFORE COPYING, INSTALLING OR USING.

IF YOU ("LICENSEE" OR "YOU") DO NOT AGREE TO THE TERMS OF THIS AGREEMENT, INTEL CORPORATION ("INTEL") IS UNWILLING TO GRANT YOU A LICENSE TO THE SOFTWARE, AND YOU SHOULD DISCONTINUE THE INSTALLATION PROCESS. 

BY INSTALLING, CONFIGURING, OR USING THE SOFTWARE AND THE ASSOCIATED DOCUMENTATION (TOGETHER, "SOFTWARE"), YOU ACKNOWLEDGE THAT YOU HAVE READ, UNDERSTAND, AND AGREE TO BE BOUND BY THE TERMS OF THIS AGREEMENT AS OF THE DATE ON WHICH YOU INSTALL, CONFIGURE, OR USE THE SOFTWARE (SUCH DATE, THE "EFFECTIVE DATE"). IF YOU DO NOT LEGALLY REPRESENT ANY CORPORATION OR OTHER ORGANIZATION, BY INSTALLING OR USING THE SOFTWARE, YOU AGREE TO BE BOUND BY THE TERMS OF THIS AGREEMENT. 

1.	TERM AND TERMINATION. This Agreement will become effective as of the Effective Date and will continue until terminated as set forth herein (the "Term"). Intel may terminate this Agreement immediately upon written notice to Licensee if Licensee, in any manner, breaches any term of this Agreement. Upon the termination of this Agreement: (a) all rights and licenses granted to Licensee in this Agreement will immediately cease to exist; and (b) Licensee must promptly discontinue all use of the Software, erase all copies of the Software from the Hardware (and any other computers) on which it has been installed, and return or, at the option of Intel, destroy all copies of the Software in Licensee's possession or control. At the request of Intel, Licensee will certify in writing to Intel that it has fully complied with these requirements. Sections 2.2, 3, 4.4, 5, 6, 7, and 10 will survive termination of this Agreement for any reason. 

2.	GRANT OF LICENSE. 

2.1.	License. During the Term of this Agreement, and subject to the terms and conditions of this Agreement, Intel grants to Licensee a non-exclusive, worldwide, perpetual, personal, non-transferable, non-sublicensable, limited and revocable license solely to: (a) install (to the extent it has not already been installed) and configure the Software only on the Hardware in accordance with the documentation and specifications accompanying the Software and Hardware; and (b) use the Software, solely for internal purposes and solely in connection with the normal operation of the Hardware. Licensee's use of the Software will at all times be in accordance with the terms of this Agreement. 

2.2.	Restrictions. Licensee acknowledges that Licensee's use of the Software is limited to the express terms of the license granted under this Agreement, and that the license does not permit Licensee to otherwise use the Software. Licensee acknowledges that the Software (including its structure, organization, and source code) constitute valuable intellectual property of Intel and Intel's licensors. Licensee will not, and will not permit any user of the Software or other third party to: (a) modify, adapt, alter, translate, or create derivative works from the Software; (b) use or merge the Software or any component or element thereof with other software not provided by Intel; (c) sublicense, distribute, sell, or otherwise transfer the Software to any third party (except in connection with a sale of the Hardware); (d) use the Software for service bureau use, or lease, rent or loan the Software or the use thereof to any third party; (e) reverse engineer, decompile, disassemble, or otherwise attempt to derive the source code for the Software; (f) make any changes to any proprietary rights notices contained anywhere in the Software, including without limitation any text which is designed to appear in any "about" boxes displayed by the Software; or (g) remove the Software from the Hardware or use the Software for any other purpose other than to operate the Hardware. Licensee will not remove, alter or obscure any copyright notice or any other proprietary notice that appears on or in the Software or on any copies. The limitations in this Section 2.2 apply equally to Licensee's use of the Software, in whole or in part, including any component or portion thereof. 

2.3	Copyright indemnification. Intel shall indemnify Licensee against any third party claim that the use or disposition of the Software (in the form provided without modification) infringes any copyright in the United States or any country where the licensor of the Software (EMC Corporation*) has maintained a sales or service subsidiary or other kind of office within twelve (12) months of such claim, and pay the resulting costs and damages (including reasonable attorney's fees) awarded against Intel by a court of competent jurisdiction, provided Licensee (i) notifies Intel promptly in writing within a reasonable amount of time after being served with notice of such claim; (ii) grants Intel and its licensors sole control over the defense thereof; and (iii) reasonably cooperates, at Intel or its licensor's expense, in response to Intel or its licensor's request for assistance. Should any Software become, or in Intel's opinion be likely to become, the subject of such a claim, Intel shall have the right, at its option and expense, (a) procure for Licensee the right to make continued use thereof; or (b) replace or modify the Software such so that it becomes non-infringing; and, in the event (a) or (b) are not reasonably available, then (c) request return and upon receipt thereof refund to Licensee the amount paid therefor by Licensee. Intel and its licensors shall have no liability to the extent the alleged infringement is caused by (1) combination with any other products; (2) use for a purpose or in a manner for which the Software was not designed; (3) use of any older version of the Software when (i) a newer revision had been made available for use by Intel, (ii) Intel requires Licensees to use such newer version in place of all older versions of the Software, and (iii) use of such newer version would have prevented such third party claim; (4) any modification made by Licensee without Intel's written approval; or (5) any components or modifications made by Intel pursuant to Licensee's specific and unique instructions or design deliverables. THIS PARAGRAPH STATES THE ENTIRE SET OF OBLIGATIONS AND REMEDIES FLOWING BETWEEN INTEL AND LICENSEE ARISING FROM ANY INTELLECTUAL PROPERTY CLAIM BY A THIRD PARTY.

2.4	Open Source. To the extent a portion of the Software is subject to an open source or public license, then such open source or public license terms accompanying the Software shall govern such portion of the Software notwithstanding anything set forth expressly to the contrary.

3.	OWNERSHIP. Licensee acknowledges that the Software is licensed, not sold, to Licensee for use solely under the terms of this Agreement. The Software and all worldwide intellectual property rights therein and relating thereto, are and will remain the exclusive property of Intel and Intel's licensors. Except for the limited rights expressly granted under Section 2.1, Licensee will have no right, title, or interest (whether by implication, estoppel, or otherwise) in or to the Software or any intellectual property rights therein or thereto. Intel and its licensors reserve all intellectual property and proprietary rights in and to the Software. Intel and its licensors retain all rights, title and interest in and to any and all trademarks and logos of Intel and its licensors displayed on or in the Software. Licensee agrees never to challenge or contest Intel's and its licensor's ownership of the Software. 

4.	LIMITED WARRANTY AND DISCLAIMER. 

4.1.	Limited Warranty. For the duration set forth in Section 4.2 below, Intel warrants that for a period of ninety (90) days from the date of receipt, the media upon which any Software is shipped will be free from defects in material and workmanship. Your sole and exclusive remedy for any breach of this warranty is for Intel to replace the defective media. This offer is void if the media defect results from accident, abuse, or misapplication.

4.2.	Disclaimer. EXCEPT AS EXPRESSLY WARANTED ABOVE, THE SOFTWARE IS PROVIDED "AS IS" WITHOUT ANY WARRANTIES AND CONDITIONS REGARDING THE SOFTWARE, EXPRESS, IMPLIED OR STATUTORY REGARDING THE SOFTWARE, INCLUDING WITHOUT LIMITATION, THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT. THE SOFTWARE IS NOT DESIGNED, INTENDED OR WARRANTED FOR USE IN HAZARDOUS ENVIRONMENTS REQUIRING FAIL-SAFE PERFORMANCE, INCLUDING, WITHOUT LIMITATION, NUCLEAR FACILITIES, AIRCRAFT NAVIGATION OR COMMUNICATION SYSTEMS, AIR TRAFFIC CONTROL SYSTEMS, WEAPONS SYSTEMS, DIRECT LIFE-SUPPORT SYSTEMS MEDICAL DIAGNOSTIC SYSTEMS, OR ANY OTHER APPLICATION WHERE THE FAILURE OF THE SOFTWARE COULD LEAD DIRECTLY TO DEATH, PERSONAL INJURY, OR SEVERE PHYSICAL OR PROPERTY DAMAGE. YOU ASSUME ALL RISK OF USE IN SUCH APPLICATIONS AND INTEL AND ITS SUPPLIERS AND LICENSORS DISCLAIM ANY RESPONSIBILITY OR LIABILITY FOR ANY AND ALL DAMAGES THAT MAY BE INCURRED DUE TO THE USE OF THE SOFTWARE IN SUCH APPLICATIONS. 

5.	LIMITATION OF LIABILITY. IN NO EVENT WILL INTEL AND ITS SUPPLIERS AND LICENSORS BE LIABLE TO LICENSEE OR TO ANY THIRD PARTY FOR ANY SPECIAL, INDIRECT, INCIDENTAL, EXEMPLARY, PUNITIVE, OR CONSEQUENTIAL DAMAGES OF ANY KIND ARISING OUT OF THE USE OR INABILITY TO USE THE SOFTWARE (INCLUDING, WITHOUT LIMITATION, ANY LOST, CORRUPTED OR ALTERED DATA, LOSS OF USE OF DATA, RECOVERY OF DATA, OR LOSS OR INTERRUPTION OF BUSINESS OR PROFITS), EVEN IF INTEL (OR ITS SUPPLIERS OR LICENSORS) HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH LOSS OR DAMAGES AND WHETHER OR NOT SUCH LOSS OR DAMAGES ARE FORESEEABLE. YOUR RIGHTS AS STATED HEREIN ARE EXCLUSIVE REMEDIES. IN NO EVENT WILL THE LIABILITY OF INTEL AND ITS SUPPLIERS AND LICENSORS RELATING TO THIS AGREEMENT, THE SOFTWARE, OR ANY RESULTS OBTAINED FROM THE SOFTWARE, EXCEED THE INITIAL LICENSE FEES RECEIVED BY INTEL FROM THE LICENSEE FOR THE SOFTWARE (EXCLUDING ANY HARDWARE OR OTHER SOFTWARE). IN STATES WHERE LIMITATION OF LIABILITY FOR CONSEQUENTIAL OR INCIDENTAL DAMAGES IS NOT PERMITTED, THE LIABILITY OF INTEL AND ITS SUPPLIERS AND LICENSORS IS LIMITED TO THE MAXIMUM EXTENT PERMITTED BY LAW.  

6.	SUPPORT, UPDATES AND UPGRADES.  Intel has no obligation to support the Software or to provide updates or upgrades to the Software.  Intel reserves the right to provide support, updates, and upgrades that are not required under this Agreement to You at its convenience. Any updates and any other repairs, replacements or modifications to the Software made available to You will be treated as "Software" for purposes of this Agreement and will be subject to the terms and conditions of this Agreement applicable to Software.
  
7.	THIRD PARTIES. The Software has been licensed from EMC Corporation*, who shall be an approved third-party beneficiary of the terms and conditions of this Agreement between Intel and Licensee. Except as expressly set forth herein, there are no third party beneficiaries to this Agreement. Licensee will indemnify, defend and hold Intel, its licensors, its suppliers and each of their respective employees, officers, directors and affiliates, harmless from and against any claims or liabilities arising out of or related to Licensee's use of the Software. 

8.	U. S. GOVERNMENT END USERS. The Software is a "commercial item" as that term is defined in 48 C.F.R. 2.101, consisting of "commercial computer software" and "commercial computer 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. 227.7202­1 through 227.7202­4, all U.S. Government end users acquire the Software with only those rights set forth therein and in this Agreement, and do not acquire any other right, title or interest, express, implied or otherwise, in or to the Software. 

9.	TRANSFER. Neither this Agreement nor any rights or obligations of Licensee hereunder may be assigned or delegated by Licensee in whole or in part without the prior written approval of Intel, and any attempted assignment or transfer by Licensee in violation of the foregoing will be void. Notwithstanding the foregoing, if any third party purchases or otherwise acquires the Hardware, this Agreement as a whole will be deemed to have been assigned by Licensee to the third party purchasing or acquiring the Hardware, provided that any such assignment of this Agreement will not extend the term of any warranty granted or other obligation undertaken by Intel under this Agreement, and further provided that such third party first agrees in writing to be bound by the terms and conditions of this Agreement. Intel may assign this Agreement, and any rights or obligations of Licensee hereunder, without the consent of Licensee. 

10.	ENTIRE AGREEMENT. Licensee may be subject to additional terms and conditions regarding the Hardware. Notwithstanding any other such agreement, this Agreement is the complete and exclusive statement of the agreement between Intel and Licensee regarding the Software and supersedes any other agreement or proposal, oral or written, and any other communications between the parties in relation to the Software and the subject matter of this Agreement. Any and all terms and conditions on any purchase order or other ordering document of Licensee issued in connection with the Software are hereby rejected and will have no force or effect on the terms hereof. 

11.	GENERAL. This Agreement will be governed by the laws of the State of Delaware in the United States of America, without regard to or application of conflicts of law rules or principles. The parties expressly exclude (as may be applicable) the application of the United Nations Convention on the International Sale of Goods. If any provision of this Agreement is held to be unenforceable, that provision will be modified so as to be enforceable to the greatest extent possible, or if such modification is not possible, will be removed and the remaining provisions will remain in full force. In the event any proceeding or lawsuit is brought by Intel or Licensee in connection with this Agreement, the prevailing party in such proceeding or lawsuit will be entitled to receive its costs, expert witness fees and reasonable attorney's fees, including costs and fees on appeal. The failure of either party to require performance by the other party of any provision hereof will not affect the full right to require such performance at any time thereafter; nor will the waiver by either party of a breach of any provision hereof be taken or held to be a waiver of the provision itself. This Agreement will inure only to the benefit of, and be binding upon, Intel, Licensee, and their valid successors and assigns. This Agreement will not be modified except by a subsequently dated written amendment or exhibit signed by both parties or by their duly authorized representatives.  

* Other names and brands may be claimed as the property of others




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Version: 12/16/07


