Quantum vmPRO / DXi V1000 / DXi V2000 / DXi V4000 End User License Agreement

1. Definitions:

   1. "Designated System" shall be the system specified on the sales quote or other applicable sales document at the time the Software is licensed, and means

      1. the specific Hardware that is authorized for use with Software; and/or

      2. the parameters otherwise defining or limiting use of Software by some relevant licensing metric, including, but not limited to, socket, capacity, or target.

   2. "Documentation" means the published Documentation accompanying the Products or available online at Quantum's website, (as applicable) and any Updates thereto, in any form or media provided.
   3. "Feature" means Software functionality for which Quantum charges and/or licenses separately, and specified by Quantum at the time the Software and/or Feature is licensed.
   4. "Hardware" means the equipment on which the Software and Open Source Software is pre-installed or on which it may be installed by Licensee.
   5. "Licensee" shall mean the individual or legal entity that downloads, uses, and/or installs Software in any form, including use following installation and/or download on the Designated System by a third party on behalf of the Licensee.
   6. "Open Source Software" means those third party software components identified as such in the Documentation or in the "About", "Readme" or similar files in the Product, which are required to be licensed under separate terms and conditions by the supplier of such Open Source Software ("Open Source License") and which are delivered as part of the Products and any Updates thereto. To obtain a copy of the source code for the Open Source Software, please contact Quantum. A copy of the applicable Open Source License is provided with the Open Source Software, in the Documentation, or via the following link on the Quantum website: www.quantum.com/opensource.
   7. "Products" means the Software, Hardware, Open Source Software, and Documentation licensed or purchased by Licensee.
   8. "Software" means the current version of Quantum proprietary software program(s) DXi V1000, DXi V2000, DXi V4000, and/or vmPRO software downloaded through the Quantum web portal accompanying this license, in object code form only, and any Updates thereto. Software does not include source code or Open Source Software.
   9. "Updates" means maintenance releases and error corrections to the Software, Open Source Software and/or Documentation which are generally provided by Quantum to customers receiving maintenance at no additional charge. Updates do not include releases, improvements, and enhancements for which Quantum charges separately or extra as determined by Quantum in its sole discretion.
2. License:
   1. License Grant. Quantum grants to Licensee a personal, non-exclusive, non-transferable license, without the right to sublicense, to use the Software, Documentation, and Features with the Designated System.
   2. No-Cost License. Licensee may use Software on a Designated System for no cost up to the capacity or other limit specified at the time of download. Use beyond the designated limits shall be a violation of the No Cost License and subject to additional fees in addition to any other remedies available to Quantum. Additional capacity and/or functionality shall be authorized for use only upon payment of additional license fees as quoted by Quantum.
   3. Support. Notwithstanding any terms to the contrary, No Cost Licenses are downloaded "as is" without warranty or support. Upon purchase of a Software license capacity upgrade or a software support plan, Quantum will support Software pursuant to Quantum standard terms and conditions of support in accordance with the level of support purchased.
   4. Open Source. Licensee acknowledges that Open Source Software is licensed separately pursuant to the applicable Open Source License. Licensee's use of any Open Source Software shall be subject to and Licensee agrees to comply with the applicable restrictions and other terms and conditions of the applicable Open Source License.
   5. Use. Licensee is authorized to use the Software with the Designated System only, or on backup equipment if the Designated System is inoperative until such time as the Designated System is restored to operation. This grant is specifically limited to use by the Licensee for normal, customary, internal data processing, and specifically excludes Licensee's time-sharing or the rental of the Software or use of the Software in the development or marketing of a competitive or compatible product. No right to use, print, copy, or display the Software or Documentation, in whole or in part, is granted hereby except as expressly provided in this License.
   6. Copying. Licensee may copy Software in a non-printed, machine-readable form for archival and backup purposes only, and copy the Documentation as needed for internal use only of licensed Software. In order to protect Quantum's trade secret and copyrights in the Software and Documentation, Licensee agrees to reproduce and incorporate Quantum's proprietary rights, trade secret or copyright notices in any copy or partial copy in the same form an manner as on the original, and will maintain appropriate records of the location of such copy.
   7. US Government Rights. If the Licensee is the United States government, Licensee understands and agrees that the Software and Documentation are provided as "Commercial Items" as defined at 48 CFR 2.101 and are being licensed to U.S. Government end users consistent with 48 CFR 12.212 and DFAR Section 227.7202, as applicable.
   8. Import/Export Regulation. Software and Documentation, including technical data, is subject to U.S. export control laws, including the U.S. Export Administration Act and its associated regulations, and may be subject to export or import regulations in other countries. Licensee agrees to comply strictly with all such regulations and acknowledges that it has the responsibility to obtain licenses to export, re-export, or import Software or Documentation.
3. Software Ownership and Protection:
   1. Title to Software. The Software, Open Source Software and Documentation are licensed, not sold. All right, title, and interest in and to the Software, Open Source Software and Documentation and in any ideas, know-how, and programs which may be developed by Quantum in the course of providing support and maintenance, including any enhancements or modifications and all intellectual property rights embodied therein, will at all times remain the property of Quantum or its licensors. Licensee hereby acknowledges that the Products are protected by the copyright laws and other laws pertaining to intellectual property and proprietary rights in the United States and other countries. Licensee is aware that this License confers only the right to use the Products while this License is in effect. It does not convey any rights of ownership in or to the Software, Open Source Software or Documentation.
   2. Restrictions. Licensee will not itself or permit others to:
      1. sell, sublicense, transfer, publish, disclose, display, provide access via a network or otherwise make available the Software or Documentation or any copy thereof to others;
      2. remove, obscure, or alter any copyright, trade secret, trademark, patent or other proprietary rights notice affixed to or displayed on the Software or Documentation;
      3. modify, merge with other programs or translate any portion of the Software or Documentation into any other assembly or language; and
      4. reverse-assemble, reverse-compile or attempt to derive a source code equivalent of the Software, except to the extent expressly permitted by law provided that if you need information in order to assist in debugging a modified Open Source Software library, contact Quantum for assistance. If Licensee is located within the European Union, please contact Quantum for information regarding interoperability.
      5. copy Software, except for a single copy of Software as part of Licensee's normal archive and back-up procedures;
      6. disclose, provide, transfer or otherwise make available the Software or Documentation, or any portion thereof, to any person other Than Licensee or Quantum personnel without the prior written consent of Quantum. Furthermore, Licensee agrees that it will not store on any media or otherwise use the Software or portions thereof such that any third party through any data processing network or other means may gain acess to the Software;
      7. Licensee agrees that it will not store the Software on any media or otherwise use the Software or portions thereof such that any third party through a data network or other means may gain access to the product.
      8. Licensee may not move, transfer, or install Quantum Software at different locations without prior notification and the written consent of Quantum.
   3. Protections. Licensee shall exercise the same degree of care in protecting the Software from unauthorized disclosure that is does in protecting its own Software, intellectual property, or trade secrets, but not less than reasonable care; and Licensee agrees to secure and protect the Software, the Documentation, and copies thereof in a manner consistent with Quantum's rights therein and to take appropriate action to satisfy its obligations in this Agreement by instruction or agreement with its employees, agents, subcontractors or others who are permitted access to the Software and Documentation. All programs or copies developed by or for Licensee in violation of this License, including translations, compilations, partial copies and up-dates, are owned by Quantum.
   4. Responsibility. Licensee has sole responsibility for use of the Products and any information entered, used, or stored thereon, including responsibility for protection of data from modification, destruction, or disclosure, and for the accuracy and integrity of the data. Quantum assumes no responsibility for Licensee's negligence or failure to protect its data.
   5. Diagnostic Data. Licensee acknowledges and agrees that the Software may transmit to Quantum data relating to the environment in which it is installed, including without limitation CPU use, memory use, I/O traffic, virtual machine names, storage device names, and other information of a similar nature (collectively, "Diagnostic Data"). The Diagnostic Data does not include any data contained within a storage device. The Software may transmit to Quantum Diagnostic Data on a daily or other periodic basis or upon a failure or crash of the Software. Licensee acknowledges and agrees that the Diagnostic Data will not create any confidentiality obligation for Quantum. Licensee hereby grants Quantum a worldwide, irrevocable license, with the right to sublicense, to use, disclose, reproduce, modify, distribute and otherwise exploit the Diagnostic Data, in any form or medium now known or discovered hereafter, in any manner and for any purpose.
   6. Confidential Information. For purposes of this Agreement, "Confidential Information" means: (i) business and technical information and any source code or binary code, which Quantum discloses to Licensee related to Software; and (ii) the terms, conditions, and existence of this Agreement. Licensee may not disclose or use Confidential Information, except for the purposes specified in this Agreement. Licensee will protect the Confidential Information with the same degree of care, but not less than a reasonable degree of care, as Licensee uses to protect its own Confidential Information. Licensee obligations regarding Confidential Information will expire in no less than five (5) years from the date of receipt of the Confidential Information, except for Quantum source code, which will be protected in perpetuity. Licensee agrees that Software contains trade secrets of Quantum. Notwithstanding any provisions contained in this Agreement concerning nondisclosure and non-use of the Confidential Information, the nondisclosure obligations shall not apply to any portion of Confidential Information that Licensee can demonstrate in writing is: (i) now, or hereafter through no act or failure to act on the part of Licensee becomes, generally known to the general public; (ii) known to Licensee at the time of receiving the Confidential Information without any obligation of confidentiality; (iii) hereafter rightfully furnished to Licensee by a third party without restriction on disclosure; or (iv) independently developed by licensee without any use of the Confidential Information. Licensee must restrict access to Confidential Information to its employees or contractors with a need for this access to perform their employment or contractual obligations and who have agreed in writing to be bound by a confidentiality obligation, which incorporates the protections and restrictions substantially as set forth in this Agreement.
4. Warranty and Warranty Servicing:
   1. Warranty. Except as otherwise provided herein, Quantum warrants that for the applicable Software warranty period published by Quantum, (commencing at shipment or download as applicable), the Software will perform in all material aspects in accordance with manufacturer's published specifications. Quantum does not warrant that the Software will meet the Licensee's requirements or that the operation of the Software will be uninterrupted or error free. The Licensee must notify Quantum in writing, within the warranty period of the Software of Licensee's claim of any failure to conform to the warranty. If Quantum determines that the Software does not materially conform to its published specifications, Quantum's sole obligation and Licensee's sole remedy is for Quantum, at its option, to correct, any defect in the Software or to accept the return of the Software. Where Software is returned for claims made during the warranty period, Licensee will receive a refund for the Software.
   2. Warranty Exclusions. This warranty shall not extend to errors that result from: (i) Licensee's failure to implement any Updates which are provided by Quantum; (ii) use of the Software other than in accordance with the Documentation or on other than the Designated System; (iii) any alterations of or additions to the Software performed by parties other than Quantum or resulting from changes made to the Open Source Software; (iv) use of the Software in a manner for which it was not designed; (v) accident, negligence, or misuse of the Software by any party other than Quantum; or (vi) combination of the Software with other products not supplied by Quantum.
   3. Compatibility. Quantum does not warrant that the Software is compatible with the current releases of all operating systems, nor that the Software will be made compatible with new releases of operating systems within a specified amount of time, or at all. At Licensee's request, Quantum will notify Licensee of the version level of the operating system with which the Software is intended to be compatible.
   4. Warranty Disclaimer. EXCEPT FOR THE EXPRESS LIMITED WARRANTY STATED ABOVE, THE SOFTWARE AND DOCUMENTATION ARE PROVIDED "AS IS" AND QUANTUM DISCLAIMS ALLWARRANTIES, TERMS AND CONDITIONS, EXPRESS OR IMPLIED, STATUTORY OR OTHERWISE FOR THE SOFTWARE OR DOCUMENTATION, INCLUDING WITHOUT LIMITATION, THE IMPLIED WARRANTIES, TERMS OR CONDITIONS OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE, NONINFRINGEMENT, OR THOSE ARISING FROM COURSE OF PERFORMANCE, DEALING, USAGE OR TRADE.
5. Term and Termination: This License commences upon installation, download, and/or use and will continue uninterrupted unless Licensee fails to comply with any conditions of this License whereupon Quantum may terminate this License effective upon receipt of notice to Licensee. Within 30 days after termination of this License, Licensee will certify, in writing, to Quantum, that Licensee has discontinued the use of all Software and Documentation and returned to Quantum the original and all copies of the Software and Documentation in any form maintained by Licensee.
6. DISCLAIMER AND LIMITATION OF LIABILITY: THE LICENSEE HAS THE SOLE RESPONSIBILITY FOR THE ADEQUATE PROTECTION AND BACK-UP OF ITS DATA USED IN CONNECTION WITH THE PRODUCTS. IN NO EVENT WILL QUANTUM BE LIABLE FOR SPECIAL, INDIRECT, INCIDENTAL OR CONSEQUENTIAL DAMAGES OR ANY DAMAGES WHATSOEVER RESULTING FROM THE LOSS OF USE, DATA, OR PROFITS, RERUN TIME, INACCURATE INPUT OR WORK DELAYS, OR ANY PERSONAL OR PROPERTY DAMAGE ARISING OUT OF OR IN CONNECTION WITH THIS LICENSE OR THE USE, PERFORMANCE OR NON-PERFORMANCE OF THE PRODUCTS, WHETHER IN ACTION, IN CONTRACT, OR TORT INCLUDING NEGLIGENCE, EVEN IF QUANTUM KNEW, SHOULD HAVE KNOWN OR HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. QUANTUM'S LIABILITY FOR DAMAGES HEREUNDER WILL IN NO EVENT EXCEED THE AMOUNT OF FEES PAID BY LICENSEE UNDER THIS LICENSE. THIS DISCLAIMER OF LIABILITY WILL NOT BE AFFECTED IF ANY REMEDY PROVIDED HEREIN FAILS OF ITS ESSENTIAL PURPOSE AND SHALL APPLY TO THE MAXIMUM EXTENT PERMITTED BY LAW. BECAUSE SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF LIABILITY FOR CONSEQUENTIAL OR INCIDENTAL DAMAGES, THE FOREGOING LIMITATION MAY NOT APPLY TO LICENSEE.
7. General:
   1. Non-Waiver. The failure by Quantum at any time to enforce any of the provisions of this License or any right or remedy available hereunder or at law or in equity, or to exercise any option herein provided, shall not constitute a waiver of such provision, right, remedy or option or in any way affect the validity of this License. The waiver of any default by Quantum shall not be deemed a continuing waiver, but shall apply solely to the instance to which such waiver is directed.
   2. Audit Rights and Remedies. Licensee grants to Quantum or its independent accountants the right to examine Licensee's relevant books, records, accounts and Systems during Licensee's normal business hours to verify compliance with this License. In the event such audit or other information discloses that Licensee's use is beyond the scope or otherwise in violation of this License, Licensee shall promptly pay to Quantum the appropriate fee for the unlicensed use, plus accrued interest and shall reimburse Quantum for the cost of such audit. Such payment shall be in addition to and without limitation of any rights or remedies which Quantum may have hereunder, at law, or in equity, arising out of or related to any other breach by Licensee of its obligations hereunder, nor shall it relieve Licensee of otherwise complying with this License.
   3. No Assignment or Modification. This License is not transferable or assignable. None of the Software or Documentation may be sublicensed, assigned, or transferred to any other party without Quantum's prior written consent. Any effort contradictory with this is null and void. This License can only be modified by a written agreement executed by the parties.
   4. Governing Law and Venue. This License shall be governed by and construed in accordance with the laws of the State of California, United States of America, as if performed wholly within the state and without giving effect to the principles of conflict of law. All disputes shall be resolved by a court of competent jurisdiction in the State of California.
   5. Entirety. This Agreement constitutes the entire agreement between the parties concerning the subject matter hereof. No amendment of this Agreement shall be binding on the parties unless mutually agreed to and executed in writing by each of the parties. No amendment to this Agreement shall be effective until the Parties mutually agree in the form of a written instrument. Headings used herein are for convenience only, are not part of this Agreement, and shall not be used in construing it.
   6. Legal Expenses. In any action to enforce this Agreement, the prevailing party shall be entitled to seek recovery of all court costs and reasonable attorneys' fees incurred, including such costs and attorneys' fees incurred in enforcing and collecting any judgment.
   7. Severability. If any provision of this Agreement is held to be invalid by a court of competent jurisdiction, then the remaining provisions hall nevertheless remain in full force and effect. The parties further agree to negotiate in good faith a valid and enforceable provision that most nearly affects the parties' intent and to be bound by the mutually agreed substitute provision.
   8. Language. The original of this Agreement is in English and Licensee waives any right to have it written in any other language. Section headings are for convenience only.