1This license applies to the firmware binary files associated with Emulex 2drivers. 3 4THIS PRODUCT CONTAINS FIRMWARE ("EMULEX FIRMWARE") THAT BELONGS TO EMULEX 5CORPORATION ("EMULEX"), THE USE OF WHICH IS SUBJECT TO THIS LICENSE AGREEMENT 6("AGREEMENT") UNLESS OTHERWISE AGREED TO IN WRITING BY EMULEX. INSTALLING OR 7USING THE EMULEX FIRMWARE CONSTITUTES ACCEPTANCE OF ALL THE TERMS AND 8CONDITIONS OF THIS AGREEMENT UNLESS OTHERWISE AGREED TO IN WRITING BY EMULEX. 9IF LICENSEE DOES NOT AGREE TO THE TERMS AND CONDITIONS OF THIS AGREEMENT, 10LICENSEE SHALL NOT INSTALL OR USE THE EMULEX FIRMWARE. WRITTEN APPROVAL IS 11NOT A PREREQUISITE TO THE VALIDITY OR ENFORCEABILITY OF THIS AGREEMENT. 12 131. Limited Licenses 14 151.1 Derivatives. Emulex hereby grants Licensee the personal, 16nontransferable, nonexclusive, royalty-free right and license to include the 17Emulex Firmware in derivative works that Licensee may create under the terms 18and conditions of License #1. For avoidance of doubt, Licensee acknowledges 19that the Emulex Firmware is not licensed under nor otherwise subject to the 20terms and conditions of License #1. 21 221.2 Distribution. Emulex hereby grants Licensee the personal, 23nontransferable, nonexclusive, royalty free, right and license to use, 24distribute, and sublicense copies of Emulex Firmware solely for use with 25Emulex hardware products for which the Emulex Firmware was written and that 26Licensee has purchased from Sun Microsystems or its authorized distributors 27or resellers. Such distribution may be on electronic media or via download 28from Licensee's website or other electronic means. Licensee shall grant each 29sublicensee a nonexclusive, nontransferable license to use the Emulex 30Firmware in Object Code only and shall authorize such sublicensees to make 31one archival copy of the Emulex Firmware. Licensee shall not use, reproduce, 32duplicate, copy, or otherwise sublicense, disclose, distribute, or 33disseminate the Emulex Firmware except as permitted under this Agreement. 34 351.3 End User. Emulex grants Licensee a personal, worldwide, 36nontransferable, nonexclusive, royalty-free right and license to use the 37Emulex Firmware only with Emulex hardware products and without circumventing 38any security or rights management features. 39 401.4 Restrictions. Licensee agrees to maintain intact and not modify or 41delete Emulex's copyright notice that is contained with each copy of the 42Emulex Firmware. Licensee shall not (1) reverse engineer, reverse compile or 43reverse assemble all or any part of the Emulex Firmware, (2) disseminate 44performance information or analysis to any third party, other than solely for 45product support purposes, from any source relating to the Emulex Firmware, or 46cause or permit others to do either of both of the foregoing. Licensee 47agrees to prevent any unauthorized copying of the Emulex Firmware. 48 492. Intellectual Property Rights. The Emulex Firmware is licensed, not sold. 50Emulex or its licensors retain all right, title and interest, including 51without limitation all intellectual property rights, in and to all copies, 52regardless of form or media, of the Emulex Firmware. The Emulex Firmware 53contains trade secrets of Emulex and Licensee agrees that it shall employ 54reasonable security precautions to maintain the confidentiality of such trade 55secrets. 56 573. Indemnity. Licensee shall defend, indemnify and hold Emulex harmless 58from and against any and all claims, damages, liabilities, costs and expenses 59(including, without limitation, attorneys' fees) arising out of Licensee's 60breach of its obligations under this Agreement. 61 624. Term and termination. The term of this Agreement shall continue until 63Licensee (a) ceases exercising its rights under Section 1 of this Agreement, 64(b) breaches a material term of this Agreement, or (c) gives written notice 65of termination to Emulex. Upon termination of this Agreement, all copies of 66the Emulex Firmware in the possession of Licensee shall be either returned to 67Emulex or destroyed by Licensee. 68 695. Warranty Disclaimer. Emulex makes no warranties whatsoever, express or 70implied, with respect to the Emulex Firmware. Licensee agrees that the 71Emulex Firmware is accepted and utilized "AS IS." EMULEX DISCLAIMS ANY AND 72ALL PROMISES, REPRESENTATIONS, AND WARRANTIES, EXCEPT AS EXPRESSLY SET FORTH 73IN THIS AGREEMENT, WITH RESPECT TO THE EMULEX FIRMWARE; ANY DATA, 74INFORMATION, OR OTHER MATERIAL FURNISHED TO THE LICENSEE HEREUNDER, INCLUDING 75THEIR CONDITION; CONFORMITY TO ANY REPRESENTATION OR DESCRIPTION; THE 76EXISTENCE OF ANY LATENT OR PATENT DEFECTS; AND TITLE, MERCHANTABILITY, OR 77FITNESS FOR A PARTICULAR PURPOSE OR USE. 78 796. Limitation of Liability. Emulex shall have no liability to Licensee, or 80any third party, whether in contract, tort, negligence or products liability 81for any claim, loss of use, business interruption, lost data, lost files, or 82for any indirect, special, incidental, or consequential damages of any kind 83or nature whatsoever arising out of or in connection with the use of or 84inability to use the Emulex Firmware or the performance or operation of the 85Emulex Firmware, even if Emulex has been advised of the possibility of such 86damages occurring. 87 888. Miscellaneous. The laws of the state of California, without regard to 89its choice of law rules, shall govern the interpretation and enforcement of 90this Agreement. The parties are independent contractors of one another. 91Nothing herein shall be deemed to create any relationship of agency, 92partnership, or joint venture between the parties. Licensee represents that 93it is acting on its own behalf and is not acting as an agent for or on behalf 94of any third party, and further agrees that it may not assign its rights or 95obligations under this Agreement without prior written consent of Emulex. 96Both parties shall adhere to all applicable laws, regulations, and rules 97relating to the export of Emulex Firmware and any other information provided 98hereunder. If any term or condition of this Agreement is held invalid, 99illegal or unenforceable by a court of competent jurisdiction, all the other 100terms and conditions shall survive. The Emulex Firmware may be provided to 101units or agencies of the U.S. government only as "commercial computer 102firmware," "restricted computer firmware," or with "restricted rights" as 103defined in applicable regulations, and may not be provided as source code. 104Manufacturer is Emulex Design & Manufacturing Corporation, 3333 Susan St., 105Costa Mesa, CA 92626. 106