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						EMC SOFTWARE TOOLS LICENSE AGREEMENT
						
						IMPORTANT -  PLEASE READ CAREFULLY

THIS EMC SOFTWARE TOOLS LICENSE AGREEMENT (THE "AGREEMENT") IS A LEGAL AGREEMENT BETWEEN EMC CORPORATION (OR BASED ON WHERE YOU LIVE, ONE OF ITS AFFILIATES) ("EMC") AND YOU AND THE ORGANIZATION ON WHOSE BEHALF YOU ARE ACCESSING THIS AGREEMENT (THE "CUSTOMER") AND GOVERNS CUSTOMER'S ACCESS TO, DOWNLOADING OF, AND USE OF ANY AND ALL SOFTWARE, TOOLS, COMPONENTS, ASSOCIATED MEDIA, PRINTED MATERIALS, DOCUMENTATION, AND PROGRAMMING THAT MAY BE ACCESSED VIA EMC'S PUBLIC FTP SITE (the "Software"). [THIS AGREEMENT ALSO APPLIES TO ANY EMC UPDATES, SUPPLEMENTS OR NEW RELEASES FOR THIS SOFTWARE.

BY CLICKING ON THE "AGREE" BUTTON SET FORTH BELOW, OR DOWNLOADING, INSTALLING, COPYING OR OTHERWISE USING ALL OR ANY PORTION OF THE SOFTWARE, YOU ARE REPRESENTING TO EMC THAT (I) YOU ARE AUTHORIZED TO LEGALLY BIND THE CUSTOMER, AND (II) YOU ACCEPT ALL OF THE TERMS AND CONDITIONS OF THIS AGREEMENT.
 
IF YOU DO NOT ACCEPT THE TERMS OF THIS AGREEMENT, CLICK ON THE "CANCEL" BUTTON OR DISCONTINUE YOUR EFFORTS TO DOWNLOAD THE SOFTWARE, AND THE REGISTRATION, DOWNLOAD AND/OR INSTALLATION PROCESS WILL NOT CONTINUE. IN SUCH EVENT, NO ACCESS TO, OR AUTHORIZATION TO DOWNLOAD OR USE THE SOFTWARE, IS GRANTED BY EMC.

THIS AGREEMENT SHALL BECOME EFFECTIVE ON THE DATE ON WHICH CUSTOMER CLICKS ON THE "AGREE" BUTTON DESCRIBED ABOVE OR DOWNLOADS THE SOFTWARE, WHICHEVER OCCURS FIRST (THE "EFFECTIVE DATE").
 
1.0	DEFINITIONS
1.1	"Confidential Information" means any and all information or materials provided by one party to the other which are in tangible form and labeled "confidential" or the like, or, if disclosed orally, are identified as being confidential at the time of disclosure and are followed up within two (2) weeks in a tangible form that is appropriately labeled, but shall not include information or materials that (i) were, on the Effective Date, generally known to the public; or (ii) become generally known to the public after the Effective Date other than as a result of the act or omission of the receiving party; or (iii) were rightfully known to the receiving party prior to that party receiving same from the disclosing party; or (iv) are or were disclosed by the disclosing party to a third party generally without restriction on disclosure; or (v) the receiving party lawfully received from a third party without that third party's breach of agreement or obligation of trust; or (vi) are independently developed by the receiving party.
1.2	"Documentation" means the then-current, generally available, written user manuals and online help and guides for any Software provided by EMC.
1.3	"Equipment" means the Customer owned, operated or maintained EMC storage device(s), peripheral hardware or appliances and/or the Central Processing Unit ("CPU") and/or the management station hardware on or with which the Software was designed to operate.
1.4	"Software" means all software, tools, components, associated media, printed materials, Documentation and programming that may be accessed via EMC's ["Public FTP Site"].

2.0	GRANT OF LICENSE AND RESTRICTIONS
2.1	Software. Commencing on the Effective Date, EMC grants Customer a non-exclusive, non-transferable license, without rights to sublicense, to use the Software, subject to the terms of this Agreement, to install, upgrade, maintain, configure, or other like function as enabled by the Software solely in connection with (a) Customer's Equipment or (b) Equipment that Customer may support as an EMC Partner. Customer may make one (1) copy of the Software for backup purposes only. 
2.2	Documentation. EMC hereby grants to Customer a non-exclusive, non-transferable license, without rights to sublicense, to use the then-current, generally available Documentation as provided solely for purposes of supporting Customer's use of the Software.
2.3	Ownership. Software and Documentation is licensed only. 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, including but not limited to partial, physical or electronic copies, of the Software. 
2.4 	Customer may not: (a) provide, disclose or otherwise make available Software in any form to anyone other than Customer's agents, employees, consultants or independent contractors ("Personnel"), who shall use Software solely in connection with (i) Customer's Equipment or (ii) Equipment that Customer may support as an EMC Partner, without EMC's prior written consent. Customer shall be fully responsible to EMC for the compliance of Customer's personnel herewith; (b) modify, enhance, supplement, create derivative works from, reverse assemble, reverse engineer, reverse compile or otherwise reduce to human readable form the Software, except and only to the extent that applicable law expressly permits, without EMC's prior written consent; (c) translate, adapt, vary or modify the Software or Documentation; (d) disclose the results of any benchmark tests of the Software to any third party without EMC's prior written approval; or (e)  rent, lease or lend the Software.
2.5	Customer acknowledges that it has been informed by EMC that use of the Software may result in the transmission of certain user, site, error and/or array configuration data, related to the Equipment, to EMC. By using the Software, you consent to the transmission of this data. Such data shall be used by EMC solely in support of the related Equipment and shall be subject to the confidentiality provisions stated herein. EMC shall use reasonable security measures, such as authentication and encryption, when transmitting such data to protect against unauthorized access.

3.0	DELIVERY AND INSTALLATION
3.1	Delivery of the Software is by download from the applicable EMC website or EMC provided media only. 
3.2	EMC shall, as necessary, provide Customer with information needed to initially download, install and use the version of the Software current as of the Effective Date.

4.0	DISCLAIMER OF WARRANTY
4.1	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 AND NON-INFRINGEMENT, AND ANY WARRANTY ARISING BY STATUTE, OPERATION OF LAW, COURSE OF DEALING OR PERFORMANCE, OR USAGE OF TRADE.
4.2	THE SOFTWARE ENABLES CUSTOMER TO INSTALL, UPGRADE, MAINTAIN, CONFIGURE, SPECIFY AND/OR CHANGE CERTAIN INTERNAL SYSTEM PARAMETERS, OR OTHER LIKE FUNCTION AS ENABLED BY THE SOFTWARE. CUSTOMER, AND NOT EMC, IS RESPONSIBLE FOR PROPERLY USING THE SOFTWARE. CUSTOMER ACKNOWLEDGES THAT IT HAS SUFFICIENT KNOWLEDGE AND EXPERIENCE TO UNDERSTAND THE RESULTS OF ANY CHANGES IT MAKES OR MAY MAKE BY USING THE SOFTWARE. PROBLEMS THAT ARE CAUSED BY CUSTOMER'S FAILURE TO PROPERLY USE SOFTWARE MAY, AT EMC'S REASONABLE DISCRETION, BE EXCLUDED FROM COVERAGE UNDER THE APPLICABLE EMC PRODUCT WARRANTY OR MAINTENANCE AGREEMENT.
4.3	No representation or other affirmation of fact, including but not limited to statements regarding capacity, suitability for 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.

5.0	TERMINATION
5.1	This license shall terminate automatically if Customer fails to perform any of its material covenants, obligations or responsibilities under this Agreement. EMC shall, in addition to any other remedies which may be available to EMC under this Agreement, at law or in equity, in its sole discretion, have the right to terminate this Agreement and any or all related license(s) granted to Customer by written notice thereto, with such termination to be effective immediately. On termination, Customer shall cease all use and destroy all copies of the Software and Documentation.

6.0	EXPORT RESTRICTIONS
6.1 	The Software and the technology included therein is subject to governmental restrictions on exports from the U.S.; restrictions on exports from other countries in which such Software and technology included therein may be produced or located; disclosures of technology to foreign persons; exports from abroad of derivative products thereof; and the importation and/or use of such Software and technology included therein outside of the United States (collectively, "Export Laws"). Diversion contrary to U.S. law is expressly prohibited. Customer shall, at its sole expense, comply with all Export Laws and EMC export policies made available to Customer by EMC.  Customer represents that it is not a Restricted Person, which shall be deemed to include any person or entity: (1) located in or a national of Cuba, Iran, Libya, North Korea, Sudan, Syria, or any other countries that may, from time to time, become subject to U.S. export controls for anti-terrorism reasons or with which U.S. persons are generally prohibited from engaging in financial transactions; or (2) on any restricted person or entity list maintained by any U.S. governmental agency.  Certain information, products or technology may be subject to the International Traffic in Arms Regulations ("ITAR").  This information, products or technology shall only be exported, transferred or released to foreign nationals inside or outside the United States in compliance with ITAR.

7.0	FEEDBACK
7.1 	If customer gives feedback about the Software to EMC, Customer gives to EMC, without charge, the right to use, share and commercialize such feedback in any way and for any purpose. These rights survive termination of this Agreement.

8.0	CONFIDENTIALITY
8.1	The receiving party shall protect the other's Confidential Information for three (3) years after receipt thereof, by means of the same standard of care as used by the receiving party to protect its own information of a similar nature and importance, and no less than reasonable care. The receiving party shall use Confidential Information only to fulfill its obligations or to exercise its rights hereunder, and shall disclose Confidential Information only to those persons in its organization who have a need to know such Confidential Information in the performance of their duties in connection herewith and who are bound by a written agreement to protect the confidentiality of such Confidential Information, and will promptly report to the disclosing party any actual or suspected breach hereof.  This Agreement shall govern disclosures between the parties for two (2) years after the Effective Date. The receiving party shall protect Confidential Information, in the manner provided herein, for three (3) years after receipt thereof, unless such obligation ceases earlier pursuant to Section 1.1 above.

9.0.	NO INDEMNIFICATION
9.1	EMC shall have no liability to Customer for any action (and all related claims) brought by or against Customer alleging that Customer's sale, 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.
9.2	THIS SECTION 9.0 STATES EMC'S ENTIRE LIABILITY WITH RESPECT TO ALLEGED INFRINGEMENTS OF INTELLECTUAL PROPERTY RIGHTS BY THE SOFTWARE OR ANY PART OF THEM OR BY ITS OPERATION.

10.0	LIMITATION OF LIABILITY
10.1	EMC'S AND ITS SUPPLIERS' TOTAL LIABILITY AND CUSTOMER'S SOLE AND EXCLUSIVE REMEDY FOR A CLAIM OF DAMAGE TO REAL OR TANGIBLE PERSONAL PROPERTY OR ANY OTHER CLAIM WHATSOEVER, INCLUDING BUT NOT LIMITED TO CLAIMS BASED ON CONTRACT, WARRANTY, NEGLIGENCE OR STRICT LIABILITY IN TORT, THAT ARISES OUT OF OR IN CONNECTION WITH SOFTWARE OR SERVICES PROVIDED HEREUNDER, SHALL BE LIMITED TO PROVEN DIRECT DAMAGES CAUSED BY EMC'S SOLE NEGLIGENCE IN AN AMOUNT NOT TO EXCEED US$5,000. 
10.2	IN NO EVENT SHALL EMC OR ITS SUPPLIERS BE LIABLE FOR CONSEQUENTIAL, INCIDENTAL, INDIRECT, OR SPECIAL DAMAGES (INCLUDING, BUT NOT LIMITED TO, LOSS OF PROFITS, REVENUES, DATA AND/OR USE) EVEN IF ADVISED OF THE POSSIBILITY THEREOF. NEITHER PARTY SHALL BRING ANY CLAIM ARISING OUT OF THE SOFTWARE OR SERVICES PROVIDED HEREUNDER MORE THAN EIGHTEEN (18) MONTHS AFTER SUCH CLAIM HAS ACCRUED.

11.0	GENERAL
11.1	Assignment - Customer shall not assign any right or interest hereunder nor delegate its duties under this Agreement either in whole or part without the prior written consent of EMC. Any such action in violation of the foregoing shall be void. 
11.2	Entire Agreement - The terms contained herein constitute the entire agreement between the parties with respect to the subject matter hereof and shall supersede all prior communications and agreements, either oral, written or otherwise recorded.
11.3	Governing Law - This Agreement shall be governed by the laws of the Commonwealth of Massachusetts, excluding its conflict of law rules. The U. N. Convention on Contracts for the International Sale of Goods shall not apply.
11.4	Notices - Except for routine communications, all other notices required or permitted hereunder, including but not limited to notices of default or breach, shall be signed by an authorized representative of the sender. Such notices shall be deemed to have been received (i) when hand delivered; (ii) three (3) days after having been sent postage prepaid, by registered or certified first class mail, return receipt requested; (iii) when sent by electronic transmission, with written confirmation by the method of transmission; or (iv) one (1) day after deposit with an overnight carrier, with written verification of delivery.
11.5	Waiver - The failure of either party to exercise or enforce any of its rights under this Agreement will not be deemed a forfeiture of such rights. 
11.6	Independent Contractors - The parties are independent contractors for all purposes under this Agreement. Nothing contained herein shall be deemed to constitute either party as an agent or representative of the other party, or both parties as joint venturers or partners for any purpose. Neither party shall be responsible for the acts or omissions of the other party, and neither party will have authority to speak for, represent or obligate the other party in any way.
11.7	Severability - If any provision of this Agreement shall be held illegal or unenforceable, such provision shall be deemed separable from, and shall in no way affect or impair the validity or enforceability of, the remaining provisions.
11.8	Modification - 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.

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