This License Agreement (“License” and/or “Agreement”) defines the terms and conditions of the license between Quantum Corporation, a Delaware corporation with corporate headquarters located at 1650 Technology Drive, San Jose, CA 95110 (“Quantum”) and the Licensee (as defined below) for use of Quantum's LTFS Software and Documentation. Any Software or Documentation provided to Licensee by Quantum will be subject to the terms and conditions of this License, and by downloading, installing, or using the Software or Documentation; Licensee signifies its agreement with this License. If Licensee does not agree to all of the terms of this License, then Licensee must not download, install, or use the Software or Documentation.
a. “Documentation” means the published documentation accompanying the Software or available online at Quantum’s website, and any updates thereto, in any form or media provided.
b. “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 by a third party on behalf of the Licensee.
d. “Software” means machine-readable instructions and data (and copies thereof) including middleware and related updates and upgrades Licensee may be separately authorized to receive, licensed materials, user documentation, user manuals, and operating procedures for Quantum LTFS. “Ancillary Software” means all or any portion of Software provided under public, Open Source, or third party license terms.
e. “Specification” means technical information about Software products published in Quantum product manuals, user documentation, and technical data sheets in effect on the date Quantum delivers Software products to Licensee.
f. “Transaction Document(s)” means an accepted customer order (excluding pre-printed terms) and in relation to that order, valid Quantum quotations, license to use certificates or invoices.
g. “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. 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.
2. LICENSE TERMS AND RESTRICTIONS
a. Subject to the terms and conditions of this Agreement and the payment of any applicable license fee, Quantum grants Licensee a non-exclusive, non-transferable license to Use (as defined below) in object code form one copy of the Software on one device at a time for Licensee’s internal business purposes, unless otherwise indicated above or in applicable Transaction Document(s). “Use” means to install, store, load, execute and display the Software in accordance with the Specifications. Licensee’s Use of the Software is subject to these license terms and to the other restrictions specified by Quantum in any other tangible or electronic documentation delivered or otherwise made available to Licensee with or at the time of purchase of the Software, including license terms, warranty statements, Specifications, and “readme” or other informational files included in the Software itself. Such restrictions are hereby incorporated in this Agreement by reference. Some Software may require license keys or contain other technical protection measures. Licensee acknowledges that Quantum may monitor Licensee’s compliance with Use restrictions remotely or otherwise. If Quantum makes a license management program available which records and reports license usage information, Licensee agrees to appropriately install, configure and execute such license management program beginning no later than one hundred and eighty (180) days from the date it is made available to Licensee and continuing for the period that the Software is Used.
b. This Agreement confers no title or ownership and is not a sale of any rights in the Software. Third-party suppliers are intended beneficiaries under this Agreement and independently may protect their rights in the Software in the event of any infringement. All rights not expressly granted to Licensee are reserved solely to Quantum or its suppliers. Nothing herein should be construed as granting Licensee, by implication, estoppel or otherwise, a license relating to Software other than as expressly stated above in this section 2.
c. Unless otherwise permitted by Quantum, Licensee (a) may only make copies or adaptations of the Software for archival purposes or when copying or adaptation is an essential step in the authorized Use of the Software on a backup device, provided that copies and adaptations are used in no other manner and provided further that the Use on the backup device is discontinued when the original or replacement device becomes operable, and (b) may not copy the Software onto or otherwise Use or make it available on, to, or through any public or external distributed network.
d. To Use Software identified as an update or upgrade, Licensee must first be licensed for the original Software identified by Quantum as eligible for the update or upgrade. If the update or upgrade is intended to substantially replace the original Software, after updating or upgrading, Licensee may no longer Use the original Software that formed the basis for Licensee’s update or upgrade eligibility unless otherwise provided by Quantum in writing. Nothing in this Agreement grants Licensee any right to purchase or receive Software updates, upgrades, or support, and Quantum is under no obligation to make such support available to Licensee. Updates, upgrades, enhancements, or other Support may only be available under separate Quantum support agreements. Licensee may contact Quantum to learn more about any support offerings Quantum may make available. Quantum reserves the right to require additional licenses and fees for Software upgrades or other enhancements, or for Use of the Software on upgraded devices.
e. Licensee must reproduce all copyright notices that appear in or on the Software (including documentation) on all permitted copies or adaptations. Copies of documentation are limited to internal use.
f. Notwithstanding anything to the contrary herein, if the Transaction Document(s) identifies that the Software may be utilized on another Designated System(s) (as defined below), Licensee’s license to Use the Software may be transferred to another Designated System(s). A “Designated System” means a computer system owned, controlled, or operated by or solely on behalf of Licensee and may be further identified by Quantum by the combination of a unique number and a specific system type. Such license will terminate in the event of a change in either the system number or system type, an unauthorized relocation, or if the Designated System ceases to be within Licensee’s possession or control.
h. Software is not specifically designed, manufactured, or intended for use as parts, components, or assemblies for the planning, construction, maintenance, or direct operation of a nuclear facility. Licensee is solely liable if Software is Used for these applications and will indemnify and hold Quantum harmless from all loss, damage, expense, or liability in connection with such Use.
i Licensee will not modify, reverse engineer, disassemble, decrypt, decompile, or make derivative works of the Software. Where Licensee has other rights mandated under statute, Licensee will provide Quantum with reasonably detailed information regarding any intended modifications, reverse engineering, disassembly, decryption, or decompilation and the purposes therefore.
j. Extending the Use of Software to any person or entity other than Licensee as a function of providing services, (i.e.; making the Software available through a commercial timesharing or service bureau) must be authorized in writing by Quantum prior to such Use and may require additional licenses and fees. Licensee may not distribute, resell, or sublicense the Software.
k. Notwithstanding anything in this Agreement to the contrary, all or any portion of the Software which constitutes Ancillary Software is licensed to Licensee subject to the terms and conditions of the software license agreement accompanying such Ancillary Software, whether in the form of a separate agreement, shrink wrap license or electronic license terms accepted at time of download. Use of the Ancillary Software by Licensee shall be governed entirely by the terms and conditions of such license and, with respect to Quantum, by the limitations and disclaimers of sections 3 and 5 hereof. Quantum has identified any Ancillary Software by either noting the Ancillary Software provider's ownership within each Ancillary Software program file and/or by providing information in the "ancillary.txt” or “readme” file that is provided as part of the installation of the Software. The Ancillary Software licenses are also set forth in the "ancillary.txt" or “readme” file. By accepting the terms and conditions of this Agreement, Licensee is also accepting the terms and conditions of each Ancillary Software license in the ancillary.txt or “readme” file. If the Software includes Ancillary Software licensed under the GNU General Public License and/or under the GNU Lesser General Pubic License ("GPL Software"), a complete machine-readable copy of the GPL Software Source Code ("GPL Source Code") is either: (i) included with the Software that is delivered to Licensee; or (ii) upon Licensee’s written request, Quantum will provide to Licensee, for a fee covering the cost of distribution, a complete machine-readable copy of the GPL Source Code, by mail, or (iii) if Licensee obtained the Software by downloading it from a Quantum website and neither of the preceding options are available, Licensee may download the GPL Source Code from the same website. Information about how to make a written request for GPL Source Code may be found in the ancillary.txt file or, if an address is not listed in that file, at the following website: http://www.Quantum.com.
l. 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. Licensee agrees to indemnify Quantum for any and all losses suffered as a result of Licensee’s failure to comply with Open Source Software licenses.
3. WARRANTY DISCLAIMER
TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, QUANTUM AND ITS SUPPLIERS PROVIDE THE SOFTWARE “AS IS” AND WITH ALL FAULTS, AND HEREBY DISCLAIM ALL INDEMNITIES, WARRANTIES AND CONDITIONS, EITHER EXPRESS, IMPLIED, WHETHER BY STATUE, COMMON LAW, CUSTOM OR OTHERWISE, INCLUDING, BUT NOT LIMITED TO, WARRANTIES OF TITLE AND NON-INFRINGEMENT, ANY IMPLIED WARRANTIES, DUTIES OR CONDITIONS OF MERCHANTABILITY, OF FITNESS FOR A PARTICULAR PURPOSE, AND OF LACK OF VIRUSES. Quantum does not warrant that the operation of Software will be uninterrupted or error free or that the Software will meet Licensee’s requirements. Some states/jurisdictions do not allow exclusion of implied warranties or limitations on the duration of implied warranties, so the above disclaimer may not apply to Licensee in its entirety.
4. LIMITATION OF LIABILITY AND REMEDIES
Notwithstanding any damages that Licensee might incur, and except for damages for bodily injury (including death), the entire aggregate liability of Quantum and any of its suppliers relating to the Software or this Agreement, and Licensee’s exclusive remedy for all of the foregoing, shall be limited to U.S. $50,000.00. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT SHALL QUANTUM OR ITS SUPPLIERS BE LIABLE FOR ANY SPECIAL, INCIDENTAL, INDIRECT, OR CONSEQUENTIAL DAMAGES WHATSOEVER INCLUDING, BUT NOT LIMITED TO, DAMAGES FOR LOSS OF PROFITS OR REVENUES, BUSINESS INTERRUPTION, DOWNTIME COSTS, FAILURE TO REALIZE EXPECTED SAVINGS, LOSS, DISCLOSURE, UNAVAILABILITY OF OR DAMAGE TO DATA, SOFTWARE RESTORATION, OR LOSS OF PRIVACY ARISING OUT OF OR IN ANY WAY RELATED TO THE USE OF OR INABILITY TO USE THE SOFTWARE, OR OTHERWISE IN CONNECTION WITH ANY PROVISION OF THIS AGREEMENT, EVEN IF QUANTUM OR ANY SUPPLIER HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES AND EVEN IF THE REMEDY FAILS OF ITS ESSENTIAL PURPOSE. Some states/jurisdictions do not allow the exclusion or limitation of incidental or consequential damages, so the above limitation or exclusion may not apply to Licensee.
This Agreement is effective unless terminated or rejected. Notwithstanding the foregoing, this Agreement will also terminate upon conditions set forth elsewhere in this Agreement or if Licensee fails to comply with any term or condition hereof. Immediately upon termination Licensee will destroy the Software and all copies of the Software or return them to Quantum. Licensee may retain one copy of the Software subsequent to termination solely for archival purposes only. At Quantum’s request, Licensee will certify in writing to Quantum that Licensee has complied with these requirements. The Warranty, Limitation of Liability, Termination, and General Sections this Agreement will survive termination of this Agreement.
a. Licensee may not assign, sublicense, delegate or otherwise transfer (“Assign”) all or any part of this Agreement without prior written consent from Quantum, payment to Quantum of any applicable fees, and compliance with Quantum's Software license transfer policies and any applicable third party license terms. Any such attempted Assignment will be null and void. Where an authorized Assignment occurs in accordance with this section, Licensee’s rights under this Agreement will terminate, and Licensee will immediately deliver the Software and all copies to the Assignee. The Assignee must agree in writing to the terms of this Agreement, and the transferee thereafter will be considered “Licensee” for purposes of this Agreement. Licensee may transfer firmware only upon transfer of the associated hardware.
b. If the Software is licensed for use in the performance of a U.S. Government prime contract or subcontract, Licensee agrees that, consistent with FAR 12.211 and 12.212, commercial computer Software, computer Software documentation and technical data for commercial items are licensed under Quantum’s standard commercial license.
c. To the extent Licensee exports, re-exports, or imports Software, technology, or technical data licensed or provided hereunder, Licensee assumes sole responsibility for complying with applicable laws and regulations and for obtaining required export and import authorizations. Quantum may suspend performance if Licensee is in violation of any applicable laws or regulations.
d. Licensee agrees that Quantum may audit Licensee’s compliance with this Agreement. Any such audit would be at Quantum’s expense, require reasonable notice, and would be performed during normal business hours. If an audit reveals underpayments then Licensee will immediately pay Quantum such underpayments together with the costs reasonably incurred by Quantum in connection with the audit and seeking compliance with this section.
e. This Agreement is governed by the laws of the State of California, U.S.A., excluding rules as to choice and conflict of law. Licensee and Quantum agree that the United Nations Convention on Contracts for the International Sale of Goods will not apply to this Agreement.
f. Subject to the other terms and conditions of this Agreement, this Agreement is the entire agreement between Quantum and Licensee regarding Licensee’s Use of the Software, and supersedes and replaces any previous communications, representations, or agreements, or Licensee’s additional or inconsistent terms, whether oral or written. In the event any provision of this Agreement is held invalid or unenforceable the remainder of the Agreement will remain enforceable and unaffected thereby.
g. Quantum’s failure to exercise or delay in exercising any of its rights under this Agreement will not constitute or be deemed a waiver or forfeiture of those rights.