| End-user Software Download License Agreement |
| |
| Please read this document carefully before proceeding. This Software License |
| Agreement (the Agreement) licenses the software to you and contains warranty |
| and liability disclaimers. By opening the package or installing or using the |
| software, you are confirming your acceptance of the software and agreeing to |
| become bound by the terms of this Agreement. |
| |
| 1. Definitions. |
| |
| (a) Open Source Software is defined in Section 5 below. |
| (b) 3ware Software means the software program covered by this Agreement, and |
| all related updates supplied by 3ware. |
| (c) 3ware Product means the 3ware Software and any related documentation, |
| models and multimedia content (such as animation, sound and graphics), and |
| all related updates supplied by 3ware. |
| |
| 2. License. This Agreement allows you to: |
| |
| (a) Use the 3ware Product on a single computer. |
| |
| (b) Make one copy of the 3ware Product in machine-readable form solely for |
| backup purposes. You must reproduce on any such copy all copyright notices |
| and any other proprietary legends found on the original. |
| |
| (c) Certain rights are not granted under this Agreement, but may be |
| available under a separate agreement. If you would like to enter into a |
| Site or Network License, please contact 3ware. |
| |
| 3. Restrictions. |
| |
| You may not make or distribute copies of the 3ware Product, or electronically |
| transfer the software from one computer to another over a network. You may not |
| use the software from multiple locations of a multi-user or networked system at |
| any one time. The software contains trade secrets and in order to protect them, |
| you may not de-compile, reverse engineer, disassemble, or otherwise reduce the |
| 3ware Software to a human-perceivable form. You may not modify, sell, rent, |
| transfer, sublicense, resell for profit, network, distribute or create |
| derivative works based upon the 3ware Product or any part thereof. You will not |
| export or re-export, directly or indirectly, the 3ware Product into any country |
| prohibited by the United States Export Administration Act and the regulations |
| thereunder. |
| |
| 4. Ownership. |
| |
| The foregoing license gives you limited rights to use the 3ware Product. You do |
| not become the owner of, and 3ware and, if applicable, any licensors, retain |
| title to, the 3ware Product, and all copies, regardless of form or media, |
| thereof. All rights not specifically granted in this Agreement, including |
| Federal and International Copyrights, are reserved by 3ware. |
| |
| 5. Open Source Software. |
| |
| Notwithstanding anything to the contrary, the licenses set forth in this |
| Agreement do not extend to software or materials which may be made available by |
| 3ware, or otherwise obtained or used by you, subject to a General Public |
| License (GPL), Library General Public License (LGPL) (copies of which are |
| available on the world wide web at http://www.gnu.org/copyleft/gpl.html) or |
| other open source terms (collectively, Open Source Software). You agree that |
| all Open Source Software (if any) shall be and shall remain subject to the |
| terms and conditions under which it is provided. It is understood that such |
| terms and conditions may require the source code (including derivative works |
| and collective works) to be made available to the public for use in accordance |
| with the applicable open source terms and conditions. You agree not to use or |
| combine the Open Source Software with the 3ware Software or Product or other |
| items in any manner that would subject the 3ware Software or Product or 3wares |
| confidential information to open source terms and conditions. |
| |
| 6. Term. |
| |
| This license is effective until terminated. You may terminate it at any time by |
| destroying the Software and documentation together with all copies and merged |
| portions in any form. It will also terminate immediately if you fail to comply |
| with any term or condition of this License Agreement. Upon such termination you |
| agree to destroy the Software and documentation, together with all copies and |
| merged portions in any form. |
| |
| 7. Disclaimer of warranties and of technical support. |
| |
| THE 3WARE PRODUCT IS PROVIDED TO YOU FREE OF CHARGE, AND ON AN "AS IS" BASIS, |
| WITHOUT ANY TECHNICAL SUPPORT OR WARRANTY OF ANY KIND FROM 3WARE INCLUDING, |
| WITHOUT LIMITATION, A WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR |
| PURPOSE AND NON-INFRINGEMENT. SOME STATES DO NOT ALLOW THE EXCLUSION OF IMPLIED |
| WARRANTIES, SO THE ABOVE EXCLUSION MAY NOT APPLY TO YOU. YOU MAY ALSO HAVE |
| OTHER LEGAL RIGHTS WHICH VARY FROM STATE TO STATE. THESE LIMITATIONS OR |
| EXCLUSIONS OF WARRANTIES AND LIABILITY DO NOT AFFECT OR PREJUDICE THE STATUTORY |
| RIGHTS OF A CONSUMER; I.E., A PERSON ACQUIRING GOODS OTHERWISE THAN IN THE |
| COURSE OF A BUSINESS. |
| |
| 8. Limitation of damages. |
| |
| NEITHER 3WARE NOR ITS SUPPLIERS SHALL BE LIABLE FOR ANY INDIRECT, SPECIAL, |
| INCIDENTAL OR CONSEQUENTIAL DAMAGES OR LOSS (INCLUDING DAMAGES FOR LOSS OF |
| BUSINESS, LOSS OF PROFITS, OR THE LIKE), WHETHER BASED ON BREACH OF CONTRACT, |
| TORT (INCLUDING NEGLIGENCE), PRODUCT LIABILITY OR OTHERWISE, EVEN IF 3WARE OR |
| ITS REPRESENTATIVES HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. SOME |
| STATES DO NOT ALLOW THE LIMITATION OR EXCLUSION OF LIABILITY FOR INCIDENTAL OR |
| CONSEQUENTIAL DAMAGES, SO THIS LIMITATION OR EXCLUSION MAY NOT APPLY TO YOU. |
| THE LIMITED WARRANTY, EXCLUSIVE REMEDIES AND LIMITED LIABILITY SET FORTH ABOVE |
| ARE FUNDAMENTAL ELEMENTS OF THE BASIS OF THE BARGAIN BETWEEN 3WARE AND YOU. YOU |
| AGREE THAT 3WARE WOULD NOT BE ABLE TO PROVIDE THE 3WARE SOFTWARE ON AN ECONOMIC |
| BASIS WITHOUT SUCH LIMITATIONS. |
| |
| 9. Export. |
| |
| You acknowledge that the laws and regulations of the United States restrict the |
| export and re-export of Software. You agree that you will not export or |
| re-export the Software or media in any form without the appropriate United |
| States and foreign government approval. |
| |
| 10.Government end users (USA only). |
| |
| RESTRICTED RIGHTS LEGEND The 3ware Software is "Restricted Computer Software." |
| Use, duplication, or disclosure by the U.S. Government is subject to |
| restrictions as set forth in this Agreement and as provided in DFARS |
| 227.7202-1(a) and 227.7202-3(a) (1995), DFARS 252.227-7013 (OCT 1988), FAR |
| 12.212(a)(1995), FAR 52.227-19, or FAR 52.227-14, as applicable." Manufacturer: |
| 3ware, Inc., 455 West Maude Avenue, Sunnyvale, California 94085. |
| |
| 11. General. |
| |
| This Agreement shall be governed by the internal laws of the State of |
| California. This Agreement contains the complete agreement between the parties |
| with respect to the subject matter hereof, and supersedes all prior or |
| contemporaneous agreements or understandings, whether oral or written. This |
| Agreement may be amended only in writing, signed by both parties. Any attempted |
| oral modification shall be void and without any effect. All questions |
| concerning this Agreement shall be directed to: 3ware, Inc., 455 West Maude |
| Avenue, Sunnyvale, California 94085. Attention: General Counsel. DiskSwitch |
| End-User Software Download License Agreement 6/14/02 |