QLogic Corporation END USER SOFTWARE LICENSE AGREEMENT - SANsurfer FC HBA Software

Important: READ CAREFULLY BEFORE CLICKING ON THE “I ACCEPT” BUTTON OR INSTALLING THIS SOFTWARE.

THIS PRODUCT CONTAINS COMPUTER PROGRAMS AND RELATED DOCUMENTATION (“SOFTWARE”) THAT BELONG TO QLOGIC CORPORATION. (“QLOGIC”), THE USE OF WHICH IS SUBJECT TO THIS END USER SOFTWARE LICENSE AGREEMENT (“AGREEMENT”). CLICKING ON THE “I ACCEPT” BUTTON BELOW OR INSTALLING/USING THE SOFTWARE CONSTITUTES ACCEPTANCE BY LICENSEE (“LICENSEE” MEANS YOU OR THE BUSINESS ENTITY ON WHOSE BEHALF YOU USE OR INSTALL THE SOFTWARE, AS APPLICABLE) OF ALL THE TERMS AND CONDITIONS OF THIS AGREEMENT. IF LICENSEE DOES NOT AGREE TO THE TERMS AND CONDITIONS OF THIS AGREEMENT, LICENSEE SHALL NOT INSTALL/USE THE SOFTWARE. WRITTEN APPROVAL IS NOT A PREREQUISITE TO THE VALIDITY OR ENFORCEABILITY OF THIS AGREEMENT.

1. License Grant. Subject to the terms and conditions of this Agreement, QLogic grants Licensee a limited, non-transferable, non-sublicensable, non-exclusive license to install, download and/or use the Software (in object code form only) with authorized QLogic products obtained by the Licensee from authorized QLogic distributors or resellers only. No rights or licenses in the Software are granted to Licensee other than those rights expressly granted in this Agreement.
2. Permitted Use. Licensee may only install and use the Software in accordance with the documentation provided for the Software with QLogic products purchased from a QLogic authorized source.
3. Intellectual Property Rights. The Software contains or embodies intellectual property of QLogic (or any of its licensors). The structure, organization or code are valuable trade secrets of QLogic (or its licensors). QLogic and/or its licensors do not grant, convey or license to Licensee any rights under any patents, copyrights, trademarks or any other intellectual property except as specifically granted herein. The Software is protected under U.S. copyright laws, international treaty provisions and applicable laws (including patent laws, if applicable) of the country in which it is being used. Any unauthorized duplication of the Software is expressly forbidden.
4. Ownership of Software. Notwithstanding anything to the contrary, QLogic and its licensors retain all title to and, except as expressly and unambiguously licensed herein, all rights and interest in (i) the Software, all copies and derivative works thereof (by whomever produced), and (ii) all copyright rights, patent rights, trade secret rights, moral rights and all other intellectual property and proprietary rights anywhere in the world in the Software. The Software is only licensed to Licensee and is not sold.
5. Restrictions and Cooperation. Licensee shall not (and shall not allow any third party to) (i) decompile, disassemble, or otherwise reverse engineer or attempt to reconstruct or discover any source code, or underlying ideas or algorithms of the Software (except to the extent expressly permitted under applicable law); (ii) provide, lease, lend, use for timesharing or otherwise use or allow others to use the Software to or for the benefit of third parties; (iii) except as specified in the applicable user documentation, modify, incorporate into or with other hardware or software, or create a derivative work of any part of the Software; (iv) disseminate performance information or analysis from any source relating to the Software; (v) make any copies of the Software except as required to use the Software as licensed hereunder, except for one (1) copy solely for archival and back-up purposes, or (vi) remove any product identification, copyright notice or other proprietary legend from the Software. Licensee agrees to cooperate with QLogic and its licensors in connection with their efforts to protect their copyright/patent rights and other legal rights in the Software. QLogic may, from time to time, implement additional security measures for the Software, and Licensee shall cooperate with such measures and be responsible for installing upgrades that include such measures.
6. Further Obligations. Licensee shall defend, indemnify and hold QLogic harmless from and against any and all claims, damages, liabilities, costs and expenses (including, without limitation, attorneys’ fees) arising out of Licensee’s breach of its obligations under this Agreement.
7. Term and Termination. This Agreement will become effective on the date Licensee clicks on the “I Accept” button below or otherwise uses the Software and will remain in force until terminated. Licensee may terminate this Agreement at any time, and QLogic may terminate this Agreement if Licensee breaches any of the terms or conditions hereunder. Licensee agrees to destroy or return to QLogic the original and all copies of the Software immediately upon any termination of this Agreement.
8. Confidentiality. Licensee acknowledges that the Software contains valuable trade secrets of QLogic and other information proprietary to QLogic and its licensors. Licensee shall: (i) keep confidential such trade secrets and proprietary information, including without limitation all information concerning ideas and algorithms related to the Software, (ii) disclose such information only to its employees and agents to the extent required to use the Software under the terms of this Agreement and (iii) bind its employees, consultants, agents and other third parties in writing to maintain the confidentiality of such trade secrets and proprietary information and not use or disclose such information except as permitted in this Agreement.
9. Limited Warranty and Disclaimer. THE SOFTWARE IS PROVIDED “AS IS” WITHOUT ANY WARRANTY OF ANY KIND INCLUDING, WITHOUT LIMITATION, ANY WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT. QLOGIC DOES NOT WARRANT THAT THE SOFTWARE IS ERROR-FREE OR THAT IT WILL OPERATE WITHOUT INTERRUPTION. QLOGIC DOES NOT WARRANT, GUARANTEE OR MAKE ANY REPRESENTATION REGARDING THE USE, OR THE RESULTS OF THE USE OF THE SOFTWARE INCLUDING, WITHOUT LIMITATION, THE CORRECTNESS, ACCURACY OR RELIABILITY OF SUCH USE OR RESULTS.
10. Limitation of Liability. TO THE MAXIMUM EXTENT PERMITTED BY LAW, IN NO EVENT WILL QLOGIC BE LIABLE TO LICENSEE OR ANY THIRD PARTY FOR ANY CONSEQUENTIAL, INCIDENTAL OR SPECIAL DAMAGES, INCLUDING, WITHOUT LIMITATION, LOST PROFITS, LOST DATA OR LOST SAVINGS, OR FOR THE COST OF PROCUREMENT OF SUBSTITUTE GOODS, SERVICES OR TECHNOLOGY EVEN IF QLOGIC HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, OR FOR ANY CLAIM BY ANY THIRD PARTY.
11. Export. Licensee represents, warrants and agrees that it will not, directly or indirectly, export, re-export or transmit the Software or any part thereof to any country in which such export, re-export or transmission is restricted by any applicable U.S. regulation or statute, without the prior written consent of both QLogic and, if required, of the Bureau of Export Administration of the U.S. Department of Commerce, or such other governmental entity as may have jurisdiction over such export or transmission.
12. Miscellaneous. A party’s failure to exercise or its delay in exercising any rights hereunder will not be deemed to be a waiver of such right. If any provision of this Agreement shall be held by any court of competent jurisdiction to be unenforceable or invalid, that provision shall be limited or eliminated to the minimum extent necessary so that this Agreement shall otherwise remain in full force and effect and enforceable. This Agreement shall be construed pursuant to the laws of the State of California and the United States without regard to conflicts of laws provisions thereof and without regard to the United Nations Convention on Authority for the International Sale of Goods. Licensee irrevocably submits to the jurisdiction of any state or federal court sitting in the State of California, United States of America, and consents to venue in such forum with respect to any action or proceeding that relates to this Agreement. No amendment to or modification of this Agreement will be binding unless in writing and signed by a duly authorized officer of QLogic. The provisions of Sections 3-11 shall survive termination of this Agreement. This Agreement is in the English language only, which language shall be controlling and any revision of this Agreement in any other language shall not be binding. Both parties agree that this Agreement is the complete and exclusive statement of the mutual understanding of the parties and supersedes and cancels all previous written and oral agreements and communications relating to the subject matter of this Agreement. NO VENDOR, DISTRIBUTOR, DEALER, RETAILER, SALES PERSON OR OTHER PERSON IS AUTHORIZED TO MODIFY THIS AGREEMENT OR TO MAKE ANY WARRANTY, REPRESENTATION OR PROMISE WHICH IS DIFFERENT THAN, OR IN ADDITION TO, THE REPRESENTATIONS OR PROMISES IN THIS AGREEMENT.