EMC_ScaleIO_Software_Agreement.txt

EMC ScaleIO(R) Limited Software License Agreement

IMPORTANT - PLEASE READ CAREFULLY

1. DELIVERY AND ACCEPTANCE.
This Software contains computer programs and other proprietary material and information, the 
use of which is subject to and expressly conditioned upon acceptance of this EMC ScaleIO 
Limited Software License Agreement (the "Agreement").  This Agreement is a legally binding 
document between you (meaning the individual person or the entity that the individual 
represents that has obtained the Software for an Internal Business Purpose and not, for 
example, for outright resale) (the "Customer") and EMC (which means (i) EMC Corporation, if 
Customer is located in the United States; (ii) the local EMC sales subsidiary, if Customer is 
located in a country in which EMC Corporation has a local sales subsidiary; and (iii) EMC 
Information Systems International ("EISI"), if Customer is located outside the United States and 
in a country in which EMC Corporation does not have a local sales subsidiary). 
Unless EMC agrees otherwise in writing, this Agreement governs Customer's use of the 
Software except to the extent all or any portion of the Software is: (a) the subject of a separate 
written agreement; or (b) governed by a third party licensor's terms and conditions. Capitalized 
terms have meaning stated in the Agreement.  
If Customer does not have a currently enforceable, written and separately signed software 
license agreement directly with EMC or the Distributor from whom Customer obtained this 
Software, then by clicking on the "Agree" or "Accept" or similar button at the end of this 
Agreement, or proceeding with the installation, downloading, use or reproduction of this 
Software, or authorizing any other person to do so, you are representing to EMC that you are: (i) 
authorized to bind the Customer; and (ii) agreeing on behalf of the Customer that the terms of 
this Agreement shall govern the relationship of the parties with regard to the subject matter in 
this Agreement and are waiving any rights, to the maximum extent permitted by applicable law, 
to any claim anywhere in the world concerning the enforceability or validity of this Agreement.  
If Customer has a currently enforceable, written and separately signed software license 
agreement directly with EMC or the Distributor from whom Customer obtained this Software, 
then by clicking on the "Agree" or "Accept" or similar button at the end of this Agreement, or 
proceeding with the installation, downloading, use or reproduction of this Software, or 
authorizing any other person to do so, you are representing that you are: (i) authorized to bind 
the Customer; and (ii) agreeing on behalf of the Customer that the terms of such written, signed 
agreement shall replace and supersede the terms of this Agreement and shall govern the 
relationship of the parties with regard to this Software, and are waiving any rights, to the 
maximum extent permitted by applicable law, to any claim anywhere in the world concerning the 
enforceability or validity of such written signed agreement.  If you do not have authority to agree 
to the terms of this Agreement on behalf of the Customer, or do not accept the terms of this 
Agreement on behalf of the Customer, click on the "Cancel" or "Decline" or other similar button 
at the end of this Agreement and/or immediately cease any further attempt to install, download 
or use this Software for any purpose, and remove any partial or full copies made from this 
Software.
EMC and Customer enter into this Agreement and this Agreement shall become effective on the 
date on which Customer downloads or Uses the Software, whichever occurs first (the "Effective 
Date").  NOW, THEREFORE, in consideration of the premises and obligations contained herein, 
it is agreed as follows:  

2. DEFINITIONS.
A. "Affiliate" means a legal entity that is controlled by, controls, or is under common "control" of 
EMC or Customer. "Control" means more than 50% of the voting power or ownership interests. 
B. "Confidential Information" means and includes all proprietary information of EMC, including 
without limitation, all source code, software designs, and development environments of any 
nature whatsoever.  Confidential Information does not include information that is: (i) rightfully in 
the receiving party's possession without obligation of confidentiality prior to receipt from the 
disclosing party; (ii) a matter of public knowledge through no fault of the receiving party; (iii) 
rightfully furnished to the receiving party by a third party without restriction on disclosure or use; 
or (iv) independently developed by the receiving party without use of or reference to the 
disclosing party's Confidential Information. 
C. "Distributor" means a reseller, distributor, system integrator, service provider, independent 
software vendor, value-added reseller, OEM or other partner that is authorized by EMC to 
license Software to end users.  The term shall also refer to any third party duly authorized by a 
Distributor to license Software to end users.
D. "Documentation" means the then-current, generally available, written user manuals and 
online help and guides for Software provided by EMC. 
E. "Internal Business Purposes" means an internal (non-commercial) Use for the purpose(s) of 
testing and demonstrating the features of the Software, and not for Customer product 
development, product testing, or other Customer research and development or commercial 
purposes.
F. "Software" means the EMC software product which requires acceptance of this Agreement, 
and any copies made by or on behalf of Customer, Software Releases, and all Documentation 
for the foregoing.
G. "Software Release" means any subsequent version of Software provided by EMC after initial 
delivery of Software but does not mean a new item of Software. 
H. "Support Services" means the annual service available from EMC (at its discretion) or its 
designee which provides Software Releases and support services for Software.
I. "Use" or "Using" means to perform as defined under 17 U.S.C. Section 101 et seq. or other 
applicable copyright statute.  For avoidance of doubt, Use does not include the right to- i) create 
derivative works, ii) distribute, iii) publically display, iv) transmit, v) reproduce, or vi) sublicense 
the Software.  

3. LICENSE TERMS.
A. License Grant.  Subject to Customer's compliance with this Agreement, EMC grants to 
Customer a non-exclusive, world-wide, royalty free, full-paid, terminable, and nontransferable 
license, under EMC's copyrights, to Use: (i) the Software for the Customer's Internal Business 
Purposes; and (ii) the Documentation related to Software for the purpose of supporting 
Customer's Use of Software for Customer's Internal Business Purposes.  To the extent 
applicable to Software, Customer may be required to follow EMC's then current product 
registration process, if any, to obtain and input an authorization key or license file.  
Documentation is licensed solely for purposes of supporting Customer's Use of Software as 
permitted in this Section.  
B. License Restrictions.  All Software licenses granted herein are for the Use of object code 
only.  Notwithstanding the definition of Use (see Section 2.I), the Customer is: (a) permitted to 
reproduce one copy of the Software in connection with the Customer's authorized Use for 
Internal Business Purposes or for backup purposes; (b) authorized to sublicense its Use rights 
under Section 3.A to a contractor employed by the Customer so along as the rights granted to 
the contractor do not exceed the rights granted under this Agreement; and (c) Customer may 
reproduce the Documentation insofar as reasonably necessary in connection with Customer's 
authorized Use for Internal Business Purposes of Software.  Customer shall not, without EMC's 
prior written consent: (i) use Software in a service bureau; (ii) use or make the Software 
available as service to a third party; (iii) perform or disclose to any third party the results of any 
comparative or competitive analyses, benchmark testing or analyses of Software performed by 
or on behalf of Customer; (iv) make available Software in any form to anyone other than 
Customer's employees or contractors; (v) transfer Software to an Affiliate or a third party; or (vi) 
publically disclose Confidential Information associated with the Software.
C. Software Releases.  Software Releases shall be subject to the license terms applicable to 
Software.
D. Audit Rights.  EMC (including its independent auditors) shall have the right to audit 
Customer's usage of Software to confirm compliance with the agreed terms stated herein.  Such 
audit is subject to reasonable advance notice by EMC and shall not unreasonably interfere with 
Customer's business activities.  Customer will provide EMC with the support required to perform 
such audit and will, without prejudice to other rights of EMC, address any non-compliant 
situations identified by the audit by forthwith procuring additional licenses for a fee.
E. Reserved Rights.  All rights not expressly granted to Customer are reserved. In particular, 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 of the Software or 
Documentation.  For avoidance of doubt, Customer shall not remove any copyright and other 
proprietary notices from any copy of the Software or Documentation.  Unless expressly 
permitted by applicable mandatory law, Customer shall not modify, enhance, supplement, 
create derivative works from, reverse assemble, reverse engineer, decompile or otherwise 
reduce to human readable form the Software without EMC's prior written consent, nor shall 
Customer permit any third party to do the same.

4. DISCLAIMER OF WARRANTY.
A. DISCLAIMER OF WARRANTIES GENERALLY. 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 ARE SPECIFICALLY 
EXCLUDED, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTY OF 
MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE OR NON-INFRINGEMENT, 
AND ANY WARRANTY ARISING BY STATUTE, OPERATION OF LAW, COURSE OF 
DEALING OR PERFORMANCE, OR USAGE OF TRADE.  UNLESS OTHERWISE AGREED 
TO IN WRITING, EMC SHALL HAVE NO OBLIGATION TO PROVIDE SUPPORT, SUPPORT 
SERVICES, OR MAINTENANCE OF ANY KIND UNDER THIS AGREEMENT.  
B. Express Disclaimer of IP Warranty and Representation. EMC makes no warranty or 
representation regarding third-party intellectual property rights infringed through the Use (or 
use) of the Software, and shall have no liability to Customer for any action (or any prior related 
claims) brought by or against Customer alleging that Customer's sale, use or other disposition of 
Software licensed under this Agreement infringes any patent, copyright, trade secret or other 
intellectual property right. In event of such an action, EMC retains the right to terminate this 
Agreement and take possession of the Software. UNLESS OTHERWISE AGREED TO IN 
WRITING, THIS SECTION STATES EMC'S ENTIRE LIABILITY WITH RESPECT TO 
ALLEGED INFRINGEMENTS OF INTELLECTUAL PROPERTY RIGHTS BY THE SOFTWARE 
OR ANY PART OF IT OR ITS OPERATION.  THIS SECTION STATES EMC'S ENTIRE 
LIABILITY WITH RESPECT TO ALLEGED INFRINGEMENTS OF INTELLECTUAL 
PROPERTY RIGHTS BY SOFTWARE OR ANY PART OF IT OR ITS OPERATION.
C. Disclaimer of Warranties Related to Performance. No representation or other affirmation of 
fact, including but not limited to a statement regarding capacity, suitability for use (or Use) or 
performance of Software, 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 contained 
in this Agreement or otherwise agreed to in writing by EMC.

5. NO INDEMNITY. 
A. No Indemnification Generally.  In no event and under no legal theory, whether in tort 
(including negligence), contract, or otherwise, unless required by applicable law (such as 
deliberate and grossly negligent acts) or agreed to in writing, shall EMC be liable to Customer 
for damages, including any direct, indirect, special, incidental, or consequential damages of any 
character arising as a result of this Agreement or out of the use (or Use) or inability to use (or 
Use) the Software (including but not limited to damages for loss of goodwill, work stoppage, 
computer failure or malfunction, or any and all other commercial damages or losses), even if 
such Customer has been advised of the possibility of such damages. 
B. No Indemnification for Intellectual Property. EMC shall have no liability to Customer for any 
action (and all prior related claims) brought by or against Customer alleging that Customer's use 
(or Use) or other disposition of any Software infringes any patent, copyright, trade secret or 
other intellectual property right.  In event of such an action, EMC retains the right to terminate 
this Agreement and take possession of the Software.  This section states EMC's entire liability 
with respect to alleged infringements of intellectual property by the Software, or any part of the 
Software by its operation.
C. LIMITATION ON LIABILITY. IN NO EVENT WILL EMC BE LIABLE TO CUSTOMER FOR 
ANY DIRECT, SPECIAL, INCIDENTAL, EXEMPLARY, PUNITIVE OR CONSEQUENTIAL 
DAMAGES (INCLUDING LOSS OF USE, DATA, BUSINESS OR PROFITS) OR FOR THE 
COST OF PROCURING SUBSTITUTE PRODUCTS ARISING OUT OF OR IN CONNECTION 
WITH THIS AGREEMENT OR THE USE OF THE SOFTWARE, WHETHER SUCH LIABILITY 
ARISES FROM ANY CLAIM BASED UPON CONTRACT, WARRANTY, TORT (INCLUDING 
NEGLIGENCE), STRICT LIABILITY OR OTHERWISE, AND WHETHER OR NOT EMC HAS 
BEEN ADVISED OF THE POSSIBILITY OF SUCH LOSS OR DAMAGE.  THE FOREGOING 
LIMITATIONS WILL SURVIVE AND APPLY EVEN IF ANY LIMITED REMEDY SPECIFIED IN 
THIS AGREEMENT IS FOUND TO HAVE FAILED OF ITS ESSENTIAL PURPOSE.  IN ANY 
CASE, EMC'S AGGREGATE LIABILITY TO CUSTOMER ARISING WITH RESPECT TO THIS 
AGREEMENT WILL NOT EXCEED FIFTY UNITED STATES DOLLARS ($50).  SOME 
JURISDICTIONS DO NOT ALLOW THE LIMITATION OR EXCLUSION OF LIABILITY FOR 
INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THE ABOVE LIMITATION OR 
EXCLUSION MAY NOT APPLY TO CUSTOMER.
D. Special Exclusion. IN JURISDICTIONS THAT DO NOT ALLOW LIMITATION OR 
EXCLUSION OF CONSEQUENTIAL OR INCIDENTAL DAMAGES, ALL OR A PORTION OF 
SECTION 5.A ABOVE MAY NOT APPLY.

6. TERMINATION. 
A. Customer or EMC may terminate this Agreement for its convenience upon thirty (30) days' 
notice to the non-terminating party.  Either Customer or EMC may terminate this Agreement 
upon written notice due to the other party's material breach of the terms governing use of the 
Software; provided that such breach is not cured within thirty (30) days after the provision of 
written notice to the breaching party specifying the nature of such breach.  Upon termination of 
this Agreement, Customer shall cease all use and return or certify destruction of the applicable 
Software (including copies) to EMC.  Any provision that by its nature or context is intended to 
survive any termination or expiration, including but not limited to provisions relating to 
Confidential Information, disclaimer of warranty, and indemnity, shall so survive.  For avoidance 
of doubt, any provision related to licensing shall cease to have legal effect when this Agreement 
is terminated.

7. MISCELLANEOUS.
A. References. EMC may identify Customer for reference purposes unless and until Customer 
expressly objects in writing 
B. Notices and Language. Any notices permitted or required under this Agreement shall be in 
writing, and shall be deemed given when delivered: (i) in person; (ii) by overnight courier, upon 
written confirmation of receipt; (iii) by certified or registered mail, with proof of delivery; (iv) by 
facsimile transmission with confirmation of receipt; or (v) by email, with confirmation of receipt 
(except for routine business communications issued by EMC, which shall not require 
confirmation from Customer). Notices shall be sent to the address, facsimile number or email 
address set forth below, or at such other address, facsimile number or email address as 
provided to the other party in writing. Notices shall be sent to: EMC Corporation, 176 South 
Street, Hopkinton, MA 01748. Fax for legal notices: 508.293.7780. Email for legal notices: 
legalnotices@emc.com. The parties agree that this Agreement has been written in the English 
language, that the English language version shall govern and that all notices shall be in the 
English language.
C. Entire Agreement. This Agreement: (i) is the complete statement of the Agreement of the 
parties with regard to the subject matter hereof; and (ii) may be modified only by a writing 
signed by both parties. All terms of any purchase order or similar document provided by 
Customer, including but not limited to any pre-printed terms thereon and any terms that are 
inconsistent or conflict with this Agreement, shall be null and void and of no legal force or effect. 
D. Force Majeure. Except for the payment of fees, if any, due EMC from Customer, neither party 
shall be liable under this Agreement because of a failure or delay in performing its obligations 
hereunder on account of any force majeure event, such as strikes, riots, insurrection, terrorism, 
fires, natural disasters, acts of God, war, governmental action, or any other cause which is 
beyond the reasonable control of such party.
E. Assignment. Customer shall not assign this Agreement or any right or delegate any 
performance without EMC's prior written consent, which consent shall not be unreasonably 
withheld. Customer shall promptly notify EMC, and EMC may terminate this Agreement on thirty 
days' (30) notice, if Customer merges with or is acquired by a third party or otherwise undergoes 
a change of control.
F. Governing Law. This Agreement is governed by: (i) the laws of the Commonwealth of 
Massachusetts when EMC means EMC Corporation; (ii) the laws of the applicable country in 
which the applicable EMC subsidiary is registered to do business when EMC means the local 
EMC subsidiary, and (iii) the laws of Ireland when EMC means EISI. In each case, the 
applicability of laws shall exclude any conflict of law rules. The U.N. Convention on Contracts for 
the International Sale of Goods shall not apply. In the event of a dispute concerning this 
Agreement, Customer consents to the sole and exclusive personal jurisdiction of the courts of 
competency in the location where EMC is domiciled.
G. Waiver. No waiver shall be deemed a waiver of any prior or subsequent default hereunder. If 
any part of this Agreement is held unenforceable, the validity of the remaining provisions shall 
not be affected.
H. Partial Invalidity. If any part of this Agreement, a purchase order or an EMC quote is held 
unenforceable, the validity of the remaining provisions shall not be affected.
I. Government Regulations and Export Control. Software and the technology included therein 
provided under this Agreement are subject to governmental restrictions on: (i) exports from the 
U.S.; (ii) exports from other countries in which such Software and technology included therein 
may be produced or located; (iii) disclosures of technology to foreign persons; (iv) exports from 
abroad of derivative products thereof; and (v) the importation and/or use of such Software and 
technology included therein outside of the United States or other countries (collectively, "Export 
Laws"). Customer shall comply with all Export Laws and EMC export policies to the extent such 
policies are made available to Customer by EMC. Diversion contrary to U.S. law or other Export 
Laws is expressly prohibited.
J. Injunctive Relief. Customer acknowledges that a violation of the sections contained in this 
Agreement may cause irreparable harm to EMC not adequately compensable by monetary 
damages irrespective of whether this Agreement (or a portion of it) is interpreted by a court of 
competent jurisdiction as a contract or a license.  In addition to other relief, it is agreed that 
temporary and permanent injunctive relief may be an appropriate remedy to prevent any actual 
or threatened violation of such sections or to enforce such section according to their terms.  
K. Questions. Questions related to this Agreement may be sent to: EMC Corporation (Attn: EMC 
Legal), 176 South Street, Hopkinton, MA 01748 USA.

		 

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