1This license applies to the firmware binary files associated with the 2QLogic qlc hba driver. 3 4THIS PRODUCT CONTAINS COMPUTER PROGRAMS AND RELATED DOCUMENTATION 5("SOFTWARE") THAT BELONG TO QLOGIC CORPORATION ("QLOGIC"), THE USE OF WHICH 6IS SUBJECT TO THIS END USER SOFTWARE LICENSE AGREEMENT ("AGREEMENT") UNLESS 7OTHERWISE AGREED TO IN WRITING BY QLOGIC. CLICKING ON THE "AGREE" BUTTON 8BELOW, INSTALLING/USING THE SOFTWARE OR ENTERING A LICENSE KEY CONSTITUTES 9ACCEPTANCE BY LICENSEE ("LICENSEE" MEANS YOU OR THE BUSINESS ENTITY ON WHOSE 10BEHALF YOU USE OR INSTALL THE SOFTWARE, AS APPLICABLE) OF ALL THE TERMS AND 11CONDITIONS OF THIS AGREEMENT UNLESS OTHERWISE AGREED TO IN WRITING BY QLOGIC. 12IF LICENSEE DOES NOT AGREE TO THE TERMS AND CONDITIONS OF THIS AGREEMENT, 13LICENSEE SHALL NOT INSTALL/USE THE SOFTWARE OR ENTER A LICENSE KEY. WRITTEN 14APPROVAL IS NOT A PREREQUISITE TO THE VALIDITY OR ENFORCEABILITY OF THIS 15AGREEMENT. 16 171. License Grant. Subject to the terms and conditions of this 18 Agreement, QLogic grants Licensee a limited, non-exclusive license 19 to redistribute, install, download and/or use the Software (in 20 object code form only) with certain approved products manufactured 21 by or for QLogic and approved products manufactured by or for an OEM 22 customer of QLogic ("QLogic Approved Products"). This license is 23 only available to original end user purchasers of QLogic Approved 24 Products that have been purchased through QLogic authorized 25 distribution channels or approved OEM distribution channels. This 26 license is not available to any end users of QLogic products who 27 have purchased QLogic products, which have previously been used and 28 the license is not available to any purchaser of QLogic application 29 specific integrated circuits ("ASICs") or any product incorporating 30 an ASIC, unless the product incorporating the ASIC is a QLogic 31 Approved Product. No rights or licenses in the Software are granted 32 to Licensee other than those rights expressly granted in this 33 Agreement. Nothing in this License entitles Licensee to any 34 upgrades or updates to, or future releases of, the Software. If 35 Licensee redistributes the Software, then Licensee shall reproduce 36 all copyright notices and must include this Agreement or an 37 agreement which is at least as restrictive as this Agreement. 38 392. Permitted Use. Licensee may only install and use the Software in 40 accordance with the documentation provided with the Software and 41 with QLogic Approved Products. 42 433. Intellectual Property Rights. The Software contains or embodies 44 intellectual property of QLogic (or any of its licensors). The 45 structure, organization and code are valuable trade secrets of 46 QLogic (or its licensors). QLogic and/or its licensors do not grant, 47 convey or license to Licensee any rights under any patents, 48 copyrights, trademarks or any other intellectual property except as 49 specifically granted herein. The Software is protected under U.S. 50 copyright laws, international treaty provisions and applicable laws 51 (including patent laws, if applicable) of the country in which it is 52 being used. Any unauthorized duplication of the Software is 53 expressly forbidden. 54 554. Ownership of Software. Notwithstanding anything to the contrary, 56 QLogic and its licensors retain all title to and, except as 57 expressly and unambiguously licensed herein, all rights and interest 58 in (i) the Software, all copies and derivative works thereof (by 59 whomever produced), and (ii) all copyright rights, patent rights, 60 trade secret rights, moral rights and all other intellectual 61 property and proprietary rights anywhere in the world in the 62 Software. The Software is only licensed to Licensee and is not 63 sold. 64 655. Restrictions and Cooperation. Licensee shall not (and shall not 66 allow any third party to) (i) decompile, disassemble, or otherwise 67 reverse engineer or attempt to reconstruct or discover any source 68 code, or underlying ideas or algorithms of the Software (except to 69 the extent expressly permitted under applicable law); (ii) provide, 70 lease, lend, use for timesharing or otherwise use or allow others to 71 use the Software to or for the benefit of third parties; (iii) 72 except as specified in the applicable user documentation, modify, 73 incorporate into or with other hardware or software, or create a 74 derivative work of any part of the Software; (iv) disseminate 75 performance information or analysis from any source relating to the 76 Software; (v) make any copies of the Software except as required to 77 use the Software as licensed hereunder, except for one (1) copy 78 solely for archival and back-up purposes, or (vi) remove any 79 product identification, copyright notice or other proprietary legend 80 from the Software. Licensee agrees to cooperate with QLogic and its 81 licensors in connection with their efforts to protect their 82 copyright/patent rights and other legal rights in the Software. 83 QLogic may, from time to time, implement additional security 84 measures for the Software, and Licensee shall cooperate with 85 such measures and be responsible for installing upgrades that 86 include such measures. 87 886. Further Obligations. Licensee shall defend, indemnify and hold 89 QLogic harmless from and against any and all claims, damages, 90 liabilities, costs and expenses (including, without limitation, 91 attorneys" fees) arising out of Licensee"s breach of its obligations 92 under this Agreement. 93 947. Term and Termination. This Agreement will become effective on the 95 date Licensee clicks on the "Agree" button below or otherwise uses 96 the Software and will remain in force until terminated. Licensee 97 may terminate this Agreement at any time, and QLogic may terminate 98 this Agreement if Licensee breaches any of the terms or conditions 99 hereunder. Licensee agrees to destroy or return to QLogic the 100 original and all copies of the Software immediately upon any 101 termination of this Agreement. 102 1038. Confidentiality. Licensee acknowledges that the Software contains 104 valuable trade secrets of QLogic and other information proprietary 105 to QLogic and its licensors. Licensee shall: (i)"keep confidential 106 such trade secrets and proprietary information, including without 107 limitation all information concerning ideas and algorithms related 108 to the Software, (ii)"disclose such information only to its 109 employees and agents to the extent required to use the Software 110 under the terms of this Agreement and (iii)"bind its employees, 111 consultants, agents and other third parties in writing to maintain 112 the confidentiality of such trade secrets and proprietary 113 information and not use or disclose such information except as 114 permitted in this Agreement. 115 1169. Limited Warranty and Disclaimer. THE SOFTWARE IS PROVIDED "AS IS" 117 WITHOUT ANY WARRANTY OF ANY KIND INCLUDING, WITHOUT LIMITATION, ANY 118 WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND 119 NON-INFRINGEMENT. QLOGIC DOES NOT WARRANT THAT THE SOFTWARE IS 120 ERROR-FREE OR THAT IT WILL OPERATE WITHOUT INTERRUPTION. QLOGIC 121 DOES NOT WARRANT, GUARANTEE OR MAKE ANY REPRESENTATION REGARDING THE 122 USE, OR THE RESULTS OF THE USE OF THE SOFTWARE INCLUDING, WITHOUT 123 LIMITATION, THE CORRECTNESS, ACCURACY OR RELIABILITY OF SUCH USE OR 124 RESULTS. 125 12610. Limitation of Liability. TO THE MAXIMUM EXTENT PERMITTED BY LAW, 127 IN NO EVENT WILL QLOGIC BE LIABLE TO LICENSEE OR ANY THIRD PARTY 128 FOR ANY CONSEQUENTIAL, INCIDENTAL OR SPECIAL DAMAGES, INCLUDING, 129 WITHOUT LIMITATION, LOST PROFITS, LOST DATA OR LOST SAVINGS, OR FOR 130 THE COST OF PROCUREMENT OF SUBSTITUTE GOODS, SERVICES OR TECHNOLOGY 131 EVEN IF QLOGIC HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, 132 OR FOR ANY CLAIM BY ANY THIRD PARTY. 133 13411. Export. Licensee represents, warrants and agrees that it will not, 135 directly or indirectly, export, re-export or transmit the Software 136 or any part thereof to any country in which such export, re-export 137 or transmission is restricted by any applicable U.S. regulation or 138 statute, without the prior written consent of both QLogic and, if 139 required, of the Bureau of Export Administration of the U.S. 140 Department of Commerce, or such other governmental entity as may 141 have jurisdiction over such export or transmission. In addition to 142 the above, Software may not, in the absence of authorization by 143 U.S. and local law and regulations, as required, be used by or 144 exported or reexported to (i) any U.S. sanctioned or embargoed 145 country, or to nationals or residents of such countries; or (ii) 146 any person, entity, organization or other party identified on the 147 U.S. Department of Commerce's Denied Persons or Entity List, the 148 U.S. Department of Treasury's Specially Designated Nationals or 149 Blocked Persons Lists, or the Department of State's Debarred 150 Parties List, as published and revised from time to time; or 151 (iii) any party where the end-use involves nuclear, 152 chemical/biological weapons, rocket systems or unmanned air 153 vehicles. 154 15512. Miscellaneous. A party"s failure to exercise or its delay in 156 exercising any rights hereunder will not be deemed to be a waiver 157 of such right. If any provision of this Agreement shall be held by 158 any court of competent jurisdiction to be unenforceable or invalid, 159 that provision shall be limited or eliminated to the minimum extent 160 necessary so that this Agreement shall otherwise remain in full 161 force and effect and enforceable. This Agreement shall be 162 construed pursuant to the laws of the State of California and the 163 United States without regard to conflicts of laws provisions 164 thereof and without regard to the United Nations Convention on 165 Authority for the International Sale of Goods. Licensee 166 irrevocably submits to the jurisdiction of any state or federal 167 court sitting in the State of California, United States of America, 168 and consents to venue in such forum with respect to any action or 169 proceeding that relates to this Agreement. No amendment 170 to or modification of this Agreement will be binding unless in 171 writing and signed by a duly authorized officer of QLogic. The 172 provisions of Sections 3-11 shall survive termination of this 173 Agreement. This Agreement is in the English language only, which 174 language shall be controlling and any revision of this Agreement in 175 any other language shall not be binding. Both parties agree that 176 this Agreement is the complete and exclusive statement of the 177 mutual understanding of the parties and supersedes and cancels all 178 previous written and oral agreements and communications relating to 179 the subject matter of this Agreement. NO VENDOR, DISTRIBUTOR, 180 DEALER, RETAILER, SALES PERSON OR OTHER PERSON IS AUTHORIZED TO 181 MODIFY THIS AGREEMENT OR TO MAKE ANY WARRANTY, REPRESENTATION OR 182 PROMISE WHICH IS DIFFERENT THAN, OR IN ADDITION TO, THE 183 REPRESENTATIONS OR PROMISES IN THIS AGREEMENT. 184 185