LIMITED SOFTWARE END-USER LICENSE AGREEMENT

IMPORTANT!
READ THIS LIMITED SOFTWARE END-USER LICENSE AGREEMENT ("EULA") CAREFULLY
BEFORE INSTALLING, ACCESSING, DOWNLOADING AND/OR USING THE SOFTWARE. THIS
EULA CONSTITUTES A LEGALLY BINDING AGREEMENT BETWEEN "LICENSEE" (EITHER AN
INDIVIDUAL, ON BEHALF OF ITSELF, IF NO ENTITY IS THE BENEFICIAL RECIPIENT
OF THE SOFTWARE, OR AN EMPLOYEE, AGENT OR REPRESENTATIVE, ON BEHALF OF AN
ENTITY THAT IS THE BENEFICIAL RECIPIENT OF THE SOFTWARE, THAT PERFORMS THE
ACTION OF INSTALLING, ACCESSING, DOWNLOADING AND/OR USING THE SOFTWARE)
AND STARFISH STORAGE CORPORATION ("LICENSOR"). IF THE SOFTWARE IS
INSTALLED, ACCESSED, DOWNLOADED AND/OR USED, INCLUDING BY REQUESTING THE
AUTHORIZATION CODE OR ACTIVATION KEY TO INSTALL THE SOFTWARE, LICENSEE IS
DEEMED TO HAVE UNCONDITIONALLY ACCEPTED THIS EULA AND AGREES TO BE BOUND
BY ITS TERMS. FURTHER, BY ENTERING "YES" AT THE END OF THIS TEXT, LICENSEE
HAS DEMONSTRATED LICENSEE'S UNCONDITIONAL ACCEPTANCE OF THIS EULA. IF
LICENSEE DOES NOT AGREE TO THE TERMS OF THIS EULA (SUCH DISAGREEMENT
DEMONSTRATED BY NOT ENTERING "YES" BELOW), LICENSEE IS NOT AUTHORIZED TO
INSTALL, ACCESS, DOWNLOAD AND/OR USE THIS SOFTWARE; AND AS A RESULT,
LICENSEE SHALL IMMEDIATELY RETURN, OR IF RECEIVED ELECTRONICALLY, DESTROY
THE SOFTWARE AND THEREAFTER, CERTIFY DESTRUCTION OF THE SOFTWARE.
FOLLOWING RETURN OF THE SOFTWARE OR RECEIPT OF CERTIFICATION, LICENSEE
WILL RECEIVE A FULL REFUND OF ANY LICENSE FEE PAID. THIS EULA REPRESENTS
THE COMPLETE AGREEMENT CONCERNING THE SOFTWARE, AND IT SUPERSEDES ANY
PRIOR OR CONCURRENT AGREEMENT, REPRESENTATION, OR UNDERSTANDING BETWEEN
THE PARTIES, INCLUDING BUT NOT LIMITED TO ANY ASSOCIATED PURCHASE ORDER
TERMS AND CONDITIONS UNDER WHICH THE SOFTWARE WAS OBTAINED.
Notwithstanding the foregoing, Licensee may have already accepted a
version of the terms and conditions in this EULA by signing a separate
license agreement with Licensor; and therefore, the individual, employee,
agent or representative of the entity must make inquiries of the Licensee
to determine if such other license agreement exists. If none exists, any
action as recited above binds the Licensee to this EULA. If a license
agreement has been signed by an authorized representative of Licensee,
this EULA shall be considered to supplement the executed license agreement
but shall not supersede the terms of that executed license agreement. Any
legal entity that Licensor controls, controls Licensor, or which has at
least 50 percent of its voting shares controlled by one or more of
Licensor’s shareholders (collectively, "Licensor Affiliates") is a third-
party beneficiary of this EULA.
1.  Description/Term/Fees: Licensee acknowledges that the Software is
licensed, not sold, to Licensee. The Software means a single copy. It is
also understood that this EULA may be provided to Licensee through a
Licensor-authorized distributor; however, Licensee acknowledges that
Licensor is the sole contracting party with respect to this EULA; and as a
result, Licensee is not permitted to rely on or agree to any distributor
modifications, additions, alterations, changes or expansions of any of the
terms or conditions of this EULA.
Licensee requests that Licensor license to Licensee the following software
components: (a) STARFISH: a core engine that functions as a data mover or
crawler, as elected; (b) “Modules”: unique-need functionality or
applications that are interoperable with STARFISH to perform desired or
custom operation in Licensee's environment or to perform desired or custom
tasks; (c) “External Code”: scripts, sample code, and other source code
made available by Licensor to Licensee; and (d) associated documentation,
databases, printouts, code listings, user manuals and formats for data
outputs and results (collectively, "Software"). Notwithstanding the
foregoing, some of the Software components may be designated or identified
by Licensor as "Evaluation Software" for the purposes of permitting
Licensee to evaluate the Software for a limited period of time.
Software Delivery: The Software may be delivered electronically or on
tangible media.
Software License Term: The duration of the Software license as set forth
on the order that references and incorporates this EULA and is accepted by
Licensor, or if none exists, then the Evaluation Software Term.
Evaluation Software Term: Thirty days from the date of the Software
Delivery of the Evaluation Software, unless extended or terminated by
Licensor.
License Fee: The License Fee for the Software shall be subject to
published or negotiated fees based on the desired pricing structure that
defines Software access and/or use such as, but not limited to, capacity,
site specific, machine specific, number of user specific or application
specific to the Licensee. Licensor shall be entitled to audit Licensee as
provided under Section 24 to ensure Licensee's compliance with the pricing
structure. Evaluation Software is not subject to any License Fee during
the Evaluation Software Term.
2.  Grant/Restrictions: Following unconditional acceptance of this EULA,
Licensor grants to Licensee a fully paid-up, non-sublicensable, non-
transferable, non-exclusive license and right to access, install, download
and use the Software based on the applicable fee and pricing structure
solely in connection with Licensee's internal business needs and
requirements, and for no other purposes ("Grant"). Licensee is authorized
to make only one archival copy of the Software for backup purposes.
Licensee is not authorized to copy (except as provided herein), alter,
modify, enhance, improve, change or create derivative works of the
Software, nor shall Licensee be authorized to reverse engineer, decompile,
disassemble or, in any way, derive source code from the Software object
code. Further, Licensee is not authorized to disclose, disseminate,
distribute, make generally available, sublicense or transfer, in any
manner, in whole or in part, the Software, or any components or modules of
the Software, or incorporate or embody the Software with any other
Licensee or third-party software, products, services or systems, except as
otherwise provided herein, or expressly agreed to by Licensee and Licensor
in a separate license agreement or writing, or make the Software
interoperable with third-party software, except where otherwise stated
herein or in a separate license agreement. Licensee is not authorized to
enhance or add value to the Software. In the event the Software has
associated Licensor-supplied documentation, the documentation shall also
be subject to the Grant. Licensor specifically reserves all remaining
rights and interests not expressly granted in this EULA, and no other
rights or interests are granted to Licensee by Licensor under this EULA.
3.  Data/Report Generation: Licensee shall be entitled to generate data and
information in the form of work products derived from the operation or
function of the Software, and Licensee shall retain rights in such data
and information contents contained in the work products. However, the work
products format shall be considered proprietary to Licensor, and subject
to U.S. and international copyright protections; and as a result,
Licensor's proprietary notices or markings shall remain intact and
unaltered on the work products, and shall be displayed as provided for
herein. Licensee may make copies of the work products only for internal
distribution; provided that any notices or markings shall be included on
all copies of any work products derived from the Software.
4.  Warranty: Licensor represents and warrants that Licensor has the lawful
right to grant the rights recited hereunder. Licensor further provides the
following limited warranty for the Software and its performance, function
and operation for the "Warranty Period," which is 30 days from the earlier
date of Licensee's initial receipt or installation of Software ("Delivery
Date"). During the Warranty Period, Licensor warrants that the standard,
generally supported Software (excluding Evaluation Software and External
Code), when properly installed and operable in the appropriate hardware
and software environment as more particularly specified in associated
documentation, will substantially conform to the functional and
performance specifications set forth in the applicable user manual in
connection with specified application for the Software use. With respect
to Software that is delivered on media, during the Warranty Period,
Licensor warrants that the media on which the Software is furnished will
be free of defects in materials and workmanship, subject to normal use
during the Warranty Period. In either of the foregoing cases, Licensee
must notify Licensor, in writing, of any nonconformity in connection with
the foregoing representations within the Warranty Period to obtain the
remedy recited herein. In particular, Licensee's exclusive remedy and
entire liability of Licensor, and its authorized representatives, for the
breach of the foregoing warranty shall be, at Licensor's sole discretion,
the repair or replacement of the Software; and/or the replacement of the
media on which the Software resides; or a refund of the Licensee Fee,
which then results in this EULA’s termination. The foregoing warranty and
Warranty Period applies only to the initial delivery of Software to the
original Licensee under the initial corresponding purchase order and does
not renew with the delivery of: (a) Software updates, error corrections,
bug fixes or upgrades; or (b) new or reissued authorization codes or
activation keys. The foregoing warranty for the Warranty Period shall not
be valid if: the Software has been subject to misuse, alteration,
enhancement, change or modification, whether authorized or not authorized
by Licensee, or any other third party; or the Software is not installed,
operated or maintained in accordance with Licensor's published
instructions; or the Software is supported by an unauthorized third party;
or the Software is used outside the authorizations, scope or obligations
recited in this EULA. Further, Licensee shall assume the entire
responsibility for selecting the Software to achieve Licensee's intended
results, and the results obtained from the performance of the Software.
Notwithstanding the foregoing or the following, Evaluation Software and
External Code are provided "AS IS" without any warranties, express or
implied, whatsoever.
5.  No Other Warranties: EXCEPT FOR THE WARRANTIES EXPRESSLY PROVIDED
HEREIN, THE SOFTWARE AND ANY MODIFICATIONS, AS SUBSEQUENTLY DEFINED, ARE
PROVIDED "AS IS," AND LICENSOR DISCLAIMS ANY AND ALL OTHER WARRANTIES OR
CONDITIONS, EITHER EXPRESS OR IMPLIED (WRITTEN OR ORAL), WITH RESPECT TO
THE SOFTWARE, INCLUDING WITHOUT LIMITATION THAT THE SOFTWARE WILL OPERATE
UNINTERRUPTED OR ERROR FREE, BE FREE OF ANY OMISSION, INACCURACY, DEFECT,
COMPUTER VIRUS OR OTHER OPERATIONAL, FUNCTIONAL OR PERFORMANCE PROBLEM, OR
THAT ANY DEFECT IN THE SOFTWARE WILL BE CORRECTED; OR THAT THE SOFTWARE
WILL BE FREE OF ANY COMMON LAW OR STATUTORY INTELLECTUAL PROPERTY
INFRINGEMENT; OR THAT THE SOFTWARE IS MERCHANTABLE OR FIT OR SUITABLE FOR
A PARTICULAR PURPOSE OR LICENSED APPLICATION; OR THAT THE FUNCTIONS IN THE
SOFTWARE WILL MEET LICENSEE'S REQUIREMENTS, EVEN IF LICENSOR HAS BEEN
INFORMED OF ANY BUSINESS OR TECHNICAL NEED OR REQUIREMENT BY LICENSEE FOR
THE SOFTWARE; OR THAT THE SOFTWARE HAS ANY ASSOCIATED OBLIGATIONS ARISING
OUT OF COURSE OF DEALING, USAGE OR TRADE. NO ORAL OR WRITTEN INFORMATION
OR ADVICE GIVEN BY LICENSOR, OR AN AUTHORIZED LICENSOR REPRESENTATIVE,
SHALL CREATE ANY OTHER WARRANTY OR IN ANY WAY INCREASE THE SCOPE OF THE
WARRANTY RECITED HEREIN. ADDITIONALLY, LICENSEE RECEIVES NO WARRANTY,
EXPRESS OR IMPLIED, FROM ANY THIRD-PARTY SOFTWARE THAT MAY BE PROVIDED
UNDER THIS EULA. LICENSEE SHALL BE RESPONSIBLE FOR ADEQUATELY SAFEGUARDING
(SUCH AS BY BACKING UP) LICENSEE'S DATA AND OTHER SOFTWARE USED IN
CONJUNCTION WITH THE SOFTWARE. LICENSOR, AND ANY THIRD-PARTY SOFTWARE
PROVIDER, ASSUMES NO LIABILITY FOR ANY CORRUPTION, ERASURE, MISHANDLING,
OR THE LIKE OF LICENSEE'S DATA OR OTHER SOFTWARE. SOME JURISDICTIONS DO
NOT ALLOW THE EXCLUSION OF IMPLIED WARRANTIES, SO THE ABOVE EXCLUSION MAY
NOT APPLY TO LICENSEE. FURTHER, LICENSEE ACKNOWLEDGES THAT LICENSOR UNDER
THIS EULA OFFERS NO WARRANTIES WITH RESPECT TO: (A) SERVICES RENDERED
HEREUNDER; (B) SOFTWARE WHICH IS LICENSED AT NO CHARGE; (C) EXTERNAL CODE;
OR (D) EVALUATION SOFTWARE, ALL OF WHICH ARE PROVIDED "AS IS."
6.  Support/Maintenance: Support and maintenance services (collectively the
“Support Services”) for the Software delivered by Starfish shall be provided
subject to payment by Licensee of any applicable Support Services fees and in
accordance with the terms of this EULA and the Starfish Customer Support Guide,
which sets out the details of the Support Services, and which is incorporated
herein by reference. Services performed by Licensor or Licensor Affiliates,
including without limitation installation or configuration of Software or
Evaluation Software, are subject to the terms and conditions recited in
this EULA. The Starfish Customer Support Guide may be found at:
http://www.starfishstorage.com/terms/csg_20190320.pdf. Licensor shall not
be required to provide support or maintenance services for any External
Code or Evaluation Software.
7.  Modifications/Developments/Updates: In the event Licensor develops,
generates or creates any component of the Software, including Modules, and
Licensor delivers such Software to Licensee, Licensee acknowledges that
such developed, generated or created Software is considered "Software" or
"Modifications," as applicable, and is subject to the terms and conditions
recited in this EULA. However, Licensor shall not be obligated, at any
time, to provide to Licensee any new versions or releases of the Software,
any developed, generated or created Software, or any bug fixes, error
corrections, modifications, improvements, enhancements, derivative works
or updates to the Software (collectively, "Modifications"). References to
Software shall include Modifications that are provided by Licensor to
Licensee. In the event that Licensor, at its sole discretion, so provides,
the terms and conditions of this EULA shall apply to the Modifications and
such Modifications shall be subject to the Grant. Additionally, Licensor
has the right, at any time and without notice, to change or discontinue
the availability of the Software, or any aspect, component, function,
operation, capability, application or feature thereof.
8.  Additional Restrictions: In addition to the restrictions under section
2, Licensee shall not be authorized to network, timeshare, lease, loan,
distribute, disseminate, disclose or make available, by any means, the
Software to third parties. Licensee agrees, during the term of this EULA,
not to misuse, engage in unauthorized use or misappropriate use of the
Software or use the Software in a manner so as to breach the restrictions
recited herein, and to prevent the misuse, unauthorized use or
misappropriate use of the Software by any third party, as well as prevent
any third party from networking, copying, disclosing, disseminating,
distributing, reverse engineering, decompiling, disassembling, creating
derivative works or deriving other products/services from the Software.
All copies of the Software, including Modifications, shall remain the
property of Licensor, or its licensors. Licensee may allow third party
consultants or contractors ("Authorized Third Party") to access and use
the Software on Licensee's behalf provided that: (a) the use is solely for
Licensee's internal business operations, as recited under the Grant; (b)
the Authorized Third Party is bound by a written EULA with Licensee
protecting Licensor's intellectual property and confidential information
with terms no less stringent than recited this EULA; (c) Licensee ensures
that such Authorized Third Party's use of the Software complies with the
terms of this EULA; and (d) upon completion of the Authorized Third
Party's services requiring use of the Software, Licensee ensures that the
Software is immediately, completely and irretrievably made inaccessible
and unusable by the Authorized Third Party. Under no circumstances shall
Licensee use the Software or allow its use for the purpose of developing,
enhancing or marketing any product, function or operation that is in any
way competitive with the Software.
9.  Confidential/Proprietary Interests: Licensor represents and Licensee
acknowledges that the Software, including source and object code, and
Modifications are confidential, as provided under section 13, and/or
proprietary to Licensor under the terms and conditions recited. All
confidential and proprietary notices, including but not limited to
copyright, trade secret, patent or trademark notices, displayed on the
Software shall be retained intact and without modification on the Software
and Modifications, including any work products derived or generated
therefrom. Such notices shall be displayed on any and all documents,
media, printouts, visualization or on any other electronic or tangible
expressions, including any work products as previously described,
associated with, related to or derived or generated from the Software.
Licensee acknowledges that Licensor, and/or third-party licensor, has the
full right, title and/or interest in and to all associated, related and/or
resultant U.S. and international intellectual property (either statutory
or common law), which includes, but is not limited to, patents, trade
secrets, trademarks or copyrights, including any and all derivative works
thereof, to the Software and Modifications, which is provided, created
and/or generated by Licensor or Licensee. Licensee also acknowledges that
the licensing of the Software does not grant to Licensee, either
implicitly or explicitly, a license to any patent, copyright or any other
intellectual property (whether statutory or common law) interest in or to
the Software and Modifications, other than what is specified herein.
Licensee may choose to, but is not required, to provide suggestions, data,
or other information to Licensor regarding possible improvements,
enhancements, changes, alternations or corrections in the operation,
functionality or use of Software, whether in the course of receiving
services, evaluating or using Software, including Evaluation Software; and
as a result, any inventions, concepts, ideas, methods, improvements,
modifications or developments that are based on or arises from the
Software, Modifications or foregoing provided items shall be considered to
be the exclusive property of Licensor, and Licensor may assert any
proprietary interest, whether statutory or common law, it deems
appropriate thereto. Any unauthorized or authorized improvements, changes,
enhancements, modifications or alterations, or derivative works to the
Software as made by Licensee shall be considered to be the exclusive
property of Licensor, and Licensor may assert associated proprietary
interest therein.
10.  Open Source/Third-Party Software: If any portion of the Software is
characterized and explicitly identified as "Open Source," such "Open
Source" Software code shall be subject to the typical MIT License (a
permissive free software license) or the like license that is applicable
to public or open source license requirements for Open Source Code access,
use and dissemination. To the extent any third-party software or other
technology that is owned or licensed by a third party is required or
desired by Licensee to be accessed or used in combination with the
Software, Licensee shall be obligated to obtain a license or rights to
such third-party software or technology before Software delivery,
installation, access, or use and shall assume the entire responsibility
and liability therefore, including any associated costs and expenses.
Licensor shall not be obligated to obtain, on behalf of Licensee, any
rights or licenses to such third-party software or technology.
11.  Termination: This EULA is effective upon Licensee's acceptance below and
shall remain effective for the Software License Term, unless terminated as
provided for herein. This EULA may be terminated, without cause, by
Licensee at any time upon 14 days' written notice. In such event, Licensee
shall cease to exercise all rights granted under the Grant and delete or
destroy the Software, and any copies of the Software, including any
associated documentation, from all computers, devices or sites, and
certify destruction thereof to Licensor. Licensee acknowledges that the
Licensee Fee is non-refundable. This EULA may be further terminated in the
event of a material breach by Licensee; provided that, Licensee shall be
permitted fourteen (14) business days from the date of receipt of such
notice to cure such breach to the Licensor's reasonable satisfaction. In
the event the breach is cured to the Licensor's reasonable satisfaction,
this EULA shall not terminate. However, if the breach is not so cured,
this EULA may, at Licensor's option, be promptly terminated. In the event
of termination for cause, Licensee shall cease to exercise all rights
under the Grant and shall promptly destroy or delete the Software, and any
copies thereof, including associated documentation, from all computers,
devices or sites, and certify such destruction to Licensor. If Licensee
receives Evaluation Software, this EULA will terminate upon lapse of the
Evaluation Software Term.
12.  Breach/Damages: NOTWITHSTANDING ANYTHING ELSE IN THIS EULA TO THE
CONTRARY OR OTHERWISE, NEITHER LICENSOR NOR LICENSOR AFFILIATES WILL IN
ANY EVENT BE LIABLE WITH RESPECT TO THE SOFTWARE OR ANY SUBJECT MATTER OF
THIS EULA UNDER ANY CONTRACT, TORT, INDEMNITY, NEGLIGENCE, STRICT
LIABILITY, OR OTHER LEGAL OR EQUITABLE THEORY FOR: (A) ANY INDIRECT,
SPECIAL, PUNITIVE, EXEMPLARY, INCIDENTAL, OR CONSEQUENTIAL DAMAGES,
HOWEVER CAUSED, EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES; (B)
DAMAGES FOR LOST PROFITS, LOST DATA, OR CORRUPTED DATA; OR (C) THE COST OF
PROCUREMENT OF SUBSTITUTE GOODS, TECHNOLOGY, OR SERVICES. NOTWITHSTANDING
ANYTHING IN THIS EULA TO THE CONTRARY OR THE FAILURE OF ESSENTIAL PURPOSE
OF ANY LIMITATION OF LIABILITY OR LIMITED REMEDY, LICENSOR'S AND LICENSOR
AFFILIATES' MAXIMUM CUMULATIVE LIABILITY ARISING FROM OR RELATING TO THIS
EULA, THE SOFTWARE, OR THE SUBJECT MATTER HEREOF, UNDER ANY LEGAL THEORY,
WHETHER IN CONTRACT, TORT (INCLUDING LICENSOR'S OR LICENSOR AFFILIATES'
OWN NEGLIGENCE), INFRINGEMENT, INDEMNITY, FAILURE TO MEET AN SLA, OR UNDER
ANY OTHER LEGAL THEORY (INCLUDING STRICT LIABILITY), WILL NOT EXCEED THE
LICENSE FEE PAID BY THE LICENSEE FOR THE SOFTWARE, BUT WILL IN NO EVENT BE
LESS THAN $1,000. IF APPLICABLE LAW LIMITS THE APPLICATION OF THE
PROVISIONS IN THIS SECTION 12, LICENSOR'S AND ITS AFFILIATES' LIABILITY
SHALL BE LIMITED TO THE MAXIMUM EXTENT PERMISSIBLE BY LAW.
13.  General Confidentiality: The Software, and Modifications, and any items
marked with a confidential legend, and the rights and interests as
described in section 9 (all collectively, "Information") are considered
confidential and shall be treated by Licensee as such during and following
the term of this EULA; however, it is understood that this EULA shall
impose no obligations of confidentiality on the Licensee where the
Information: (a) was in the Licensee's possession before receipt from
Licensor; (b) is or becomes a matter of public knowledge through no fault
of the Licensee; (c) is rightfully received by the Licensee from a third
party without a duty of confidentiality; (d) is disclosed by Licensor to a
third party without a duty of confidentiality on the third party; or (e)
is disclosed by the Licensee with Licensor's prior written approval.
Licensee shall protect the confidential nature and the proprietary rights
and interests in such Information. Licensee will treat Information in the
same manner that Licensee treats its own most confidential information
and, in no event, will take less than reasonable steps necessary to
maintain its confidentiality. Licensee will only disclose Information to
its employees, consultants, contractors, and agents that are subject to
nondisclosure restrictions that are at least as strict as this EULA.
Licensee may disclose Information pursuant to any governmental, judicial,
or administrative order, subpoena, discovery request, regulatory request
or similar method, all provided that Licensee promptly notifies Licensor
in writing of such demand for disclosure, so that Licensor may seek to
make such disclosure subject to a protective order or other appropriate
remedy to preserve the confidentiality of the Information. Licensee agrees
that it shall not oppose and shall cooperate with efforts by Licensor with
respect to any such request for a protective order or other relief.
Notwithstanding the foregoing, if Licensor is unable to obtain or does not
seek a protective order and the Licensee is legally required to disclose
such Information, disclosure of Information necessary to satisfy that
requirement may be made without liability.
14.  Assignments: Licensee shall not transfer, assign or hypothecate, in
whole or in part, this EULA or any rights or obligations hereunder; except
to a party that acquires substantially all of the assets of Licensee, or
to a party where Licensee is the subject of a merger or acquisition, or
where Licensee is reorganized; provided that, the acquiring party agrees,
in writing, to be bound by all the terms and conditions of this EULA,
without change. In the event of any permitted assignment or transfer of
this EULA or the obligations under this EULA, the parties agree that such
obligations shall be binding upon the assignee's or transferee's
executors, administrators, legal representatives, or emerging or resulting
entity, and the rights of assignor or transferor shall inure to the
benefit of assignee or transferee.
15.  Provisions Validity: If any provision of this EULA is held invalid or
unenforceable for any reason, the parties agree that such invalidity shall
not affect the validity of the remaining provisions of the EULA. This EULA
hereto contains the entirety of the understanding of the parties herein
with respect to the Software and the subject matter herein. To the extent
that the provisions of this EULA conflict with any other document, the
terms of this EULA shall prevail, except if Licensee has executed a
license agreement as described above. Sections 1, 5-6, 8-21, and 23-24
shall survive termination hereunder. Additionally, Licensee acknowledges
that if the Software is supplied by a third party through Licensor under
this EULA, then such third party is a beneficiary with respect to any
rights recited hereunder relative to inappropriate use, misuse,
unauthorized use, breach of this EULA or infringement of the Software by
Licensee; and that as a result, such third party has the right to assert
against Licensee any claim or action, whether in tort, negligence,
contract or infringement, with respect to the third-party provided
Software.
16.  Agreement Modifications: The parties acknowledge that this EULA may not
be modified or changed in any manner, except by a writing signed by
Licensor and Licensee.
17.  Disputes: Any action or proceeding arising from or relating to this EULA
must be brought in a state or federal court located in Suffolk or
Middlesex Counties in the Commonwealth of Massachusetts. The failure of
Licensor to enforce any rights granted herein or to take action against
Licensee in the event of any breach hereunder shall not be deemed a waiver
by Licensor as to subsequent enforcement of rights or subsequent actions
in the event of future breaches. The rights and remedies hereunder are
cumulative and not alternative.
18.  Export Control: Export laws and regulations of the United States, and
any other relevant local export laws and regulations, apply to and govern
the handling and use of the Software (including technical data or
information derived or resulting therefrom). Licensee agrees that such
export control laws govern use of the Software (including technical data
or information derived or resulting therefrom), and that Licensee shall
comply with all such applicable export laws and regulations (including
"deemed export" and "deemed re-export" regulations). Licensee agrees that
no Software and/or associated materials (or the direct or indirect product
thereof) will be exported, directly or indirectly, in violation of these
laws and regulations, or will be used for any purpose prohibited by these
laws including, without limitation, nuclear, chemical, or biological
weapons proliferation, or development of missile technology.
19.  Software Applications: The Software is not fault-tolerant and is not
designed or intended for use in hazardous environments requiring fail-safe
performance (such as, without limitation, the operation of nuclear
facilities, aircraft navigation or communication systems, air traffic
control, life support machines, medical applications of life/death nature,
lifesaving systems or weapons systems) in which the failure of the
Software could directly lead to death, personal injury, or severe physical
or environmental damage. Accordingly, the Grant excludes use in any such
environments and such use is unauthorized and prohibited. Further, if
Licensee does not use such Software in the environments recited herein but
uses the Software data and information output for the purposes of making
decisions in connection with such environments, Licensee acknowledges that
such data and information shall not be the sole basis for any decision
making and shall not be relied upon by Licensee for any purposes or
applications and is only for informational purposes; and Licensor makes no
warranty or representations as to the accuracy, usefulness or quality of
the generated data or information. Licensee hereby agrees: (i) not to use
the Software in such environments or rely, in any manner, on any Software
generated data or information in such environment; and (ii) to indemnify
and hold harmless Licensor, including its officers, directors, employees,
and any of its affiliates or subsidiaries, and any of its third-party
suppliers, from all losses, claims, damages, liabilities, attorneys' fees
and other costs and expenses arising from or relating, directly or
indirectly, to any claim of product liability, personal injury or death
associated with Licensee's, intended or unintended, use of Software in
such environments or any reliance, in any manner, on any Software
generated data or information in such environment, even if Licensor was
negligent.
20.  Governing Law: This EULA shall be interpreted and construed in
accordance with the laws of the Commonwealth of Massachusetts and of the
United States of America, as applicable, without regard to the
applicability of the conflict of law principles, which applicability is
expressly excluded. Any application of the United Nations Convention on
Contracts for the International Sales of Goods, as currently in effect and
amended, is expressly excluded and does not apply to the terms of this
EULA. If Licensee obtained the Software within the European Community
("EC"), nothing in this EULA shall be construed as restricting any rights
available under the EC Software Directive (91/250/EEC).
21.  U.S. Government Rights: In connection with any acquisition of the
Software by or for any unit or agency of the U.S. Government, the
Software, and the associated documentation, are considered "Commercial
Items," as such term is defined under the applicable Federal Acquisition
Regulation ("FAR") for non-Department of Defense agencies or units of the
U.S. Government and Defense Federal Acquisition Regulation Supplement
("DFARS") for the Department of Defense; and more specifically, for FARs,
by the FAR 2.101, comprising "commercial computer software" and
"commercial computer software documentation" as specified under FAR 12.212
and FAR 12.211, as applicable, reciting Government Restricted Rights and
Limited Rights under FAR 52.227-14 and FAR 52.227-19, as applicable; and
for DFARs, DFARS 227.7202-1 - 227.7202-4, Subpart 227.401, as applicable,
reciting Government Restricted Rights under DFAR 252.227-7013, DFAR
252.227-7014 and DFAR 252.227-7015, as applicable. With respect to an
acquisition by the U.S. Government, whether directly or indirectly,
Licensor asserts that the Software, and associated documentation, have
been developed entirely at Licensor's private expense and no portion of
the Software, as defined herein, was first produced in the performance of
any U.S. Government contract, and Licensee so acknowledges the Licensor's
assertion. Further, the Software is subject to appropriate common law or
statutory copyright interests and rights as well as other statutory and
common law proprietary and/or confidential protection, including, but not
limited to, trade secret protections. Therefore, the Software, as defined
herein, is considered: "Unpublished – All rights reserved under the
Copyright Laws of the U.S." As a result, any rights granted and
restrictions imposed on the Software, including but not limited to, use,
duplication, release, creation of derivative works, modification,
disclosure, distribution or transfer of the Software will be subject to
the commercial licensing terms as recited under this EULA (which license
rights are customarily provided to non-U.S. Government customers and
licensees). The Licensee, whether or not the Licensee is an agency or unit
of the U.S. Government that directly or indirectly acquires the Software,
acknowledges that any acquisition of the Software shall be solely under
the terms of this EULA, unless otherwise agreed to, in writing.
Notwithstanding the foregoing, however, if the U.S. Government requires
any access to or use of the Software that require needs outside the scope
of the rights granted hereunder, Licensor will, at its sole discretion,
consider addressing that agency or unit's requirements by first
considering if the agency or unit has its own acquisition regulations
applicable to computer software and computer software documentation in
lieu of the applicable FARS and DFARs; provided that, such regulations
shall be consistent and equivalent with the rights and interests recited
herein or not provide broader rights than granted under the applicable FAR
or DFAR. Therefore, if the unique agency or unit regulations are not
acceptable to Licensor or if such regulations are non-existent, then
Licensor will determine if U.S. Government access and use of the Software
can be provided to the U.S. Government under the applicable above-
referenced FARs or DFARs. Both parties intend that the Software be
adequately and properly marked and identified with the applicable
Restricted Rights or Limited Rights Legends as specified under the
applicable FAR or DFAR and include the proprietary copyright legends. The
manufacturer is Starfish Storage Corporation, 271 Waverley Oaks Road,
Suite 301, Waltham, MA 02452.
22.  Evaluation Software: If Evaluation Software, which is considered
Information and proprietary under Section 9 to Licensor, is provided to
Licensee, the following provisions shall apply to Licensee's experimental
use and evaluation of the Software. In addition to the terms and
conditions recited herein, Licensor further grants to Licensee a
temporary, non-transferable, non-exclusive, non-sublicensable right to use
and evaluate Evaluation Software, without charge, for the Evaluation
Software Term on a single local area network at one site. All of the
rights granted and applicable restrictions recited herein apply to the
Evaluation Software, except where otherwise recited in this section. This
Grant and Licensee's use and evaluation of Evaluation Software shall not
be construed as a commercial offer to license the Evaluation Software or
Software (e.g., Licensor may elect not to release commercially the
Evaluation Software or Software, in any form). Licensee agrees to use and
evaluate the Evaluation Software under normal conditions as directed by
Licensor, and Licensee acknowledges the experimental nature of Evaluation
Software and agrees not to rely on proper functioning or performance of
Evaluation Software as more particularly recited in the associated
specification and documentation. Licensee will contact Licensor
periodically during Licensee's use and evaluation of Evaluation Software
to discuss any malfunctions, problems, performance issues or suggested
improvements, which discussions shall be considered Information of
Licensor. Upon completion of Licensee's use and evaluation of the
Evaluation Software, Licensee will send a written evaluation, which may be
in the form of an email, of Evaluation Software to Licensor, including its
strengths, weaknesses and recommended improvements, which evaluation shall
be considered Information of Licensor. Licensee agrees to maintain
Evaluation Software and its evaluation review, in confidence and shall
restrict access to Evaluation Software, including any functionality,
methods and concepts, solely to those employees authorized by Licensee to
perform Evaluation Software use and evaluation. Licensee agrees, during
the Evaluation Software Term, that any written evaluations, and all
inventions, product improvements, modifications or developments arising
from the use and evaluation of the Evaluation Software conceived or made
by Licensee will be the exclusive property of Licensor, and Licensor shall
have exclusive proprietary rights, title and interest in all of the
foregoing.
23.  Infringement Defense: Licensor will defend or settle any action brought
against Licensee by paying, subject to the limitations stated in this
EULA, costs, damages and reasonable attorneys' fees that are finally
awarded against Licensee to the extent those amounts are based upon a
claim that the Software directly infringes any U.S. copyright or infringes
any U.S. patent, all provided Licensee, in no way, contributed to such
claim of infringement. Licensee agrees that a condition to Licensor's
obligations hereunder, Licensee must: (a) notify Licensor promptly in
writing of the action, but in no event more than ten days after Licensee
becomes aware of or is notified of such claim; (b) provide Licensor all
available information and requested assistance to settle or defend the
action; and (c) grant Licensor sole authority and control of the defense
and settlement of the action. If a claim is made hereunder, Licensor may
at its option and expense: (a) replace or modify Software so that it
becomes non-infringing; or (b) procure for Licensee the right to continue
using Software; or (c) require the return of Software or, if obtained
electronically, require a certification from Licensee that the Software
has been destroyed, and refund to Licensee any license fee paid, less an
allowance for use based on a three-year straight-line depreciation method
beginning on the initial date of delivery of the Software. Notwithstanding
the foregoing, Licensor shall have no obligation under this Section 23 or
otherwise with respect to any infringement claim based upon: (a) the
combination of Software with any product not furnished by Licensor; (b)
the modification of Software other than by Licensor or modifications made
by Licensor in conformance with Licensee's specifications; (c) the use of
other than a current unaltered release of Software; (d) any Software or
Evaluation Software is licensed at no charge to Licensee; (e) any Software
provided by Licensor's licensors, who do not provide such indemnification
to Licensor's customers; (f) Software not used in accordance with this
EULA; or (g) infringement by Licensee that is deemed willful by a court of
law. Licensor will not be responsible for any compromise made or expense
incurred without its prior written consent. THIS SECTION SETS FORTH
LICENSOR'S SOLE AND EXCLUSIVE OBLIGATIONS, AND LICENSEE'S SOLE AND
EXCLUSIVE REMEDIES, WITH RESPECT TO INFRINGEMENT OR MISUSE OR
MISAPPROPRIATION OR UNAUTHORIZED USE OF INTELLECTUAL PROPERTY RIGHTS OF
ANY KIND IN THE SOFTWARE. EXCEPT AS SET FORTH ABOVE, LICENSOR, AND ITS
LICENSORS, DISCLAIM ALL IMPLIED OBLIGATIONS WITH RESPECT TO INTELLECTUAL
PROPERTY INDEMNIFICATION.
24. Audit Rights: Licensee shall maintain evidence as to the location of
copies of the Software and shall provide such evidence to Licensor upon
request. Licensee shall also maintain evidence that Licensee is compliant
with the terms of this EULA. Therefore, upon Licensor's written request,
Licensee will furnish to Licensor documented certification signed by an
officer indicating whether the Software is being used in accordance with
the terms of this EULA and/or is meeting the requirements of the pricing
structure. Licensor, at its discretion, may seek compliance by Licensee,
without termination. For example, Licensee shall provide Licensor with any
usage reports immediately upon request (and Licensee shall not interfere
with any automated reporting features) in order to enable Licensor to
verify Licensee's capacity usage. In the event the Software is licensed
based on a pricing structure that reflects Software use on a capacity
basis, and the maximum capacity purchased has been exceeded, the Software
may fail to operate normally and/or operate with reduced performance. In
the event the Software is licensed based on a pricing structure that
reflects Software use on a capacity basis and the maximum capacity
purchased has been exceeded, then Licensor may restrict the Licensee's
usage to the purchased capacity level or require Licensee to purchase
additional capacity to accommodate compliance. As a result, any excess
capacity usage above the purchased maximum shall entitle Licensor to
invoice Licensee for licensed capacity and maintenance and support amounts
owed, and if Licensee fails to pay for the excess usage, Licensor shall be
entitled to any self-help or other remedies available, including
termination as provided hereunder. Additionally, to ensure compliance with
this EULA, Licensor agrees that upon reasonable notice, Licensor, or
Licensor's authorized representative, shall have the right to physically
or electronically inspect and audit Licensee's installation and use of the
Software and Licensee shall provide reasonable access to inspect and
audit. Any such inspection or audit shall be conducted during regular
business hours at Licensee's facilities or electronically. Any information
obtained during the course of such audit will be used by Licensor for the
enforcement of Licensor's rights under this EULA and applicable law. If
such audits disclose that Licensee has installed, accessed, used, or
otherwise permitted access to the Software in a manner that is not
permitted by the terms of this EULA, then Licensor may terminate this EULA
under Section 11, and Licensee shall reimburse Licensor for any unpaid
License Fees and all reasonable expenses related to such audit. Nothing in
this section shall be deemed to limit any legal or equitable remedies
available to Licensor for breach of this EULA or applicable law.
v. 20210114
