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1 This license applies to the firmware binary files associated with Emulex |
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2 drivers. |
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3 |
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4 THIS PRODUCT CONTAINS FIRMWARE ("EMULEX FIRMWARE") THAT BELONGS TO EMULEX |
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5 CORPORATION ("EMULEX"), THE USE OF WHICH IS SUBJECT TO THIS LICENSE AGREEMENT |
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6 ("AGREEMENT") UNLESS OTHERWISE AGREED TO IN WRITING BY EMULEX. INSTALLING OR |
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7 USING THE EMULEX FIRMWARE CONSTITUTES ACCEPTANCE OF ALL THE TERMS AND |
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8 CONDITIONS OF THIS AGREEMENT UNLESS OTHERWISE AGREED TO IN WRITING BY EMULEX. |
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9 IF LICENSEE DOES NOT AGREE TO THE TERMS AND CONDITIONS OF THIS AGREEMENT, |
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10 LICENSEE SHALL NOT INSTALL OR USE THE EMULEX FIRMWARE. WRITTEN APPROVAL IS |
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11 NOT A PREREQUISITE TO THE VALIDITY OR ENFORCEABILITY OF THIS AGREEMENT. |
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12 |
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13 1. Limited Licenses |
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14 |
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15 1.1 Derivatives. Emulex hereby grants Licensee the personal, |
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16 nontransferable, nonexclusive, royalty-free right and license to include the |
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17 Emulex Firmware in derivative works that Licensee may create under the terms |
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18 and conditions of License #1. For avoidance of doubt, Licensee acknowledges |
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19 that the Emulex Firmware is not licensed under nor otherwise subject to the |
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20 terms and conditions of License #1. |
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21 |
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22 1.2 Distribution. Emulex hereby grants Licensee the personal, |
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23 nontransferable, nonexclusive, royalty free, right and license to use, |
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24 distribute, and sublicense copies of Emulex Firmware solely for use with |
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25 Emulex hardware products for which the Emulex Firmware was written and that |
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26 Licensee has purchased from Sun Microsystems or its authorized distributors |
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27 or resellers. Such distribution may be on electronic media or via download |
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28 from Licensee's website or other electronic means. Licensee shall grant each |
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29 sublicensee a nonexclusive, nontransferable license to use the Emulex |
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30 Firmware in Object Code only and shall authorize such sublicensees to make |
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31 one archival copy of the Emulex Firmware. Licensee shall not use, reproduce, |
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32 duplicate, copy, or otherwise sublicense, disclose, distribute, or |
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33 disseminate the Emulex Firmware except as permitted under this Agreement. |
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34 |
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35 1.3 End User. Emulex grants Licensee a personal, worldwide, |
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36 nontransferable, nonexclusive, royalty-free right and license to use the |
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37 Emulex Firmware only with Emulex hardware products and without circumventing |
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38 any security or rights management features. |
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39 |
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40 1.4 Restrictions. Licensee agrees to maintain intact and not modify or |
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41 delete Emulex's copyright notice that is contained with each copy of the |
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42 Emulex Firmware. Licensee shall not (1) reverse engineer, reverse compile or |
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43 reverse assemble all or any part of the Emulex Firmware, (2) disseminate |
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44 performance information or analysis to any third party, other than solely for |
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45 product support purposes, from any source relating to the Emulex Firmware, or |
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46 cause or permit others to do either of both of the foregoing. Licensee |
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47 agrees to prevent any unauthorized copying of the Emulex Firmware. |
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48 |
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49 2. Intellectual Property Rights. The Emulex Firmware is licensed, not sold. |
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50 Emulex or its licensors retain all right, title and interest, including |
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51 without limitation all intellectual property rights, in and to all copies, |
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52 regardless of form or media, of the Emulex Firmware. The Emulex Firmware |
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53 contains trade secrets of Emulex and Licensee agrees that it shall employ |
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54 reasonable security precautions to maintain the confidentiality of such trade |
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55 secrets. |
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56 |
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57 3. Indemnity. Licensee shall defend, indemnify and hold Emulex harmless |
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58 from and against any and all claims, damages, liabilities, costs and expenses |
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59 (including, without limitation, attorneys' fees) arising out of Licensee's |
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60 breach of its obligations under this Agreement. |
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61 |
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62 4. Term and termination. The term of this Agreement shall continue until |
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63 Licensee (a) ceases exercising its rights under Section 1 of this Agreement, |
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64 (b) breaches a material term of this Agreement, or (c) gives written notice |
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65 of termination to Emulex. Upon termination of this Agreement, all copies of |
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66 the Emulex Firmware in the possession of Licensee shall be either returned to |
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67 Emulex or destroyed by Licensee. |
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68 |
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69 5. Warranty Disclaimer. Emulex makes no warranties whatsoever, express or |
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70 implied, with respect to the Emulex Firmware. Licensee agrees that the |
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71 Emulex Firmware is accepted and utilized "AS IS." EMULEX DISCLAIMS ANY AND |
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72 ALL PROMISES, REPRESENTATIONS, AND WARRANTIES, EXCEPT AS EXPRESSLY SET FORTH |
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73 IN THIS AGREEMENT, WITH RESPECT TO THE EMULEX FIRMWARE; ANY DATA, |
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74 INFORMATION, OR OTHER MATERIAL FURNISHED TO THE LICENSEE HEREUNDER, INCLUDING |
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75 THEIR CONDITION; CONFORMITY TO ANY REPRESENTATION OR DESCRIPTION; THE |
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76 EXISTENCE OF ANY LATENT OR PATENT DEFECTS; AND TITLE, MERCHANTABILITY, OR |
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77 FITNESS FOR A PARTICULAR PURPOSE OR USE. |
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78 |
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79 6. Limitation of Liability. Emulex shall have no liability to Licensee, or |
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80 any third party, whether in contract, tort, negligence or products liability |
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81 for any claim, loss of use, business interruption, lost data, lost files, or |
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82 for any indirect, special, incidental, or consequential damages of any kind |
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83 or nature whatsoever arising out of or in connection with the use of or |
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84 inability to use the Emulex Firmware or the performance or operation of the |
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85 Emulex Firmware, even if Emulex has been advised of the possibility of such |
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86 damages occurring. |
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87 |
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88 8. Miscellaneous. The laws of the state of California, without regard to |
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89 its choice of law rules, shall govern the interpretation and enforcement of |
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90 this Agreement. The parties are independent contractors of one another. |
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91 Nothing herein shall be deemed to create any relationship of agency, |
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92 partnership, or joint venture between the parties. Licensee represents that |
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93 it is acting on its own behalf and is not acting as an agent for or on behalf |
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94 of any third party, and further agrees that it may not assign its rights or |
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95 obligations under this Agreement without prior written consent of Emulex. |
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96 Both parties shall adhere to all applicable laws, regulations, and rules |
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97 relating to the export of Emulex Firmware and any other information provided |
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98 hereunder. If any term or condition of this Agreement is held invalid, |
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99 illegal or unenforceable by a court of competent jurisdiction, all the other |
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100 terms and conditions shall survive. The Emulex Firmware may be provided to |
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101 units or agencies of the U.S. government only as "commercial computer |
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102 firmware," "restricted computer firmware," or with "restricted rights" as |
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103 defined in applicable regulations, and may not be provided as source code. |
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104 Manufacturer is Emulex Design & Manufacturing Corporation, 3333 Susan St., |
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105 Costa Mesa, CA 92626. |