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EXHIBIT 10.6
FIBRE CHANNEL DRIVER SOFTWARE LICENSE
This License Agreement ("License") between Emulex Corporation
("Emulex"), with offices at 0000 Xxxxxx Xxxxxxxxx, Xxxxx Xxxx, XX 00000, and Box
Hill Systems Corp., ("Licensee"), with offices at 000 Xxxxx Xxxxxx, Xxx Xxxx, XX
00000, shall govern the use by Licensee of certain software to be provided by
Emulex for use with Emulex Fibre Channel chipset and or/host adapter products
purchased by Licensee.
1. DEFINITIONS:
1.1 "OBJECT CODE." Computer programs assembled or compiled in
magnetic or electronic binary form which are readable and
usable by machines, but not generally readable by humans
without reverse-assembly, reverse-compiling, or
reverse-engineering.
1.2 "SOURCE CODE." Computer programs written in higher-level
programing languages sometimes accompanied by English language
comments. Source Code is intelligible to trained programmers
and may be translated to Object Code for operation on hardware
through the process of compiling.
1.3 "OPERATING ENVIRONMENT." A computer operating system and
hardware platform for which an Emulex Driver is designed to
operate.
1.4 "PROTOCOL." The definition of specific Fibre Channel
capabilities within an Emulex Driver that allow network or
storage interoperability.
1.5 "EMULEX DRIVERS." One or more computer programs which controls
the operation of the Emulex Fibre Channel chipset and/or host
adapter. Each Operating Environment and each Protocol will have
a different driver. This software is loaded on a host computer
by a customer.
1.6 "DOCUMENTATION." Printed material relating to the Emulex
Driver, including descriptions and instructions for its use.
1.7 "DERIVATIVE WORK." A work that is based upon one or more
pre-existing works, such as a revision, modification,
translation (including compilation or recapitulation by
company), abridgment, condensation, expansion, or any other
form in which such a pre-existing work may be recast,
transformed, or adapted, and that, if prepared without
authorization by the owner of the pre-existing work, would
constitute a copyright infringement.
1.8 "EFFECTIVE DATE." The date that Licensee executes this
Agreement.
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2. TERM:
The term of this Agreement shall continue until Licensee ceases using
the Emulex Drivers, or until terminated in accordance with Section 10
hereof, at which time all copies of the Emulex Drivers in the
possession of Licensee shall be either returned to Emulex or destroyed
by Licensee.
3. EMULEX OBLIGATIONS:
3.1 DELIVERY OF LICENSED SOFTWARE. At no charge to Licensee, Emulex
shall deliver to Buyer one (1) copy of the Source Code and (1)
copy of the Object Code for the Emulex Drivers to be used by
Licensee upon a mutually agreeable schedule after the Effective
Date of this Agreement. The Emulex Drivers shall function in
accordance with their specifications.
3.2 UPDATES. At no charge to Licensee, Emulex shall provide
Licensee with software updates and any other changes that
Emulex may develop for the Emulex Drivers, provided hereunder,
for a period of two (2) years following delivery of the code
hereunder.
4. LICENSEE'S OBLIGATIONS:
4.1 DERIVATIVE WORK. Licensee agrees that Emulex Drivers are being
made available as an example and template. Licensee
acknowledges that it may, at Licensee's sole option, use the
Emulex Drivers to create, test and document a Derivative Work
for use with Licensee's computers when interfacing with and
Emulex Fibre Channel chipset and/or host adapter.
4.2 ASSUMPTION OF LIABILITY. Licensee assumes all responsibility
and liabilities in connection with the distribution of the
Derivative Work of the Emulex Drivers.
4.3 COPYRIGHT NOTICE. Licensee agrees to maintain intact and not
modify or delete Emulex's copyright notice which is contained
in each copy of the Emulex Drivers. Licensee shall place its
own copyright notice on all copies of the Derivative Works of
the Emulex Drivers created Licensee, which shall be interpreted
to include protection of the underlying copyrights of Emulex.
5. GRANT AND ACCEPTANCE OF LICENSE:
5.1 LIMITED LICENSE. Emulex hereby grants Licensee the irrevocable
personal, nontransferable, nonexclusive, royalty free, right
and license to:
a. Use and modify the Object and Source Code and related
Documentation for the Emulex Drivers and to prepare
Derivative Works thereof, for the
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limited purpose of ensuring compatibility and
interoperability with Licensee's products. Licensee
may not sublicense, distribute or otherwise disclose
the Source Code for the Emulex Drivers to third
parties. Licensee may not use the Emulex Drivers, or
Derivative Works thereof, for any purpose other than
to control the operation of Emulex Host Adapters or
Fibre Channel Chipsets; and
b. Distribute and sublicense copies of Derivative Works
of the Emulex Drivers, in Object Code only, for use
with Emulex Fibre Channel chipset and as part of
Licensee's products.
6. RESTRICTIONS:
6.1 USE OF SOFTWARE. License shall not reproduce, duplicate, copy
or otherwise disclose, distribute or disseminate the Emulex
Drivers or Derivative Works thereof in any form except to the
extent allowed under this Agreement.
6.2 SUBLICENSE OF DERIVATIVE WORKS. The Emulex Drivers or
Derivative Works thereof shall be sublicensed and distributed
by Licensee in Object Code only. Licensee shall require each
recipient of any Emulex Driver or Derivative Work thereof (the
"Licensee Driver") to be subject to the following sublicense
terms which shall be set forth in either a written agreement
signed by the recipient prior to receipt of the Licensee
Driver, or in a printed statement that accompanies the Licensee
Driver in a conspicuous and fully visible manner at the time of
receipt of the Licensee Driver.
a. The Recipient is granted a nonexclusive,
nontransferable license to use the Licensee Driver in
Object Code only;
b. The Recipient is permitted to make one archival copy
of the Licensee Driver; and
c. The Recipient may not otherwise copy, reverse compile
or reverse assemble all or any portion of the
Licensee Driver.
6.3 U.S. GOVERNMENT. Licensee will only provide the Licensee Driver
to the U.S. Government with RESTRICTED RIGHTS. Use, duplication
or disclosure by the U.S. Government is subject to the
restrictions as set forth in the Rights in Technical Data and
Computer Software clause at 48 C.F.R., paragraph 000-000-0000.
7. PROPRIETARY RIGHTS AND NON-DISCLOSURE:
Licensee agrees that Emulex owns all right, title and interest,
including, any and all worldwide copyrights, patents and trade secrets
in the Emulex Drivers. The Emulex
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Drivers contain trade secrets of Emulex and Licensee agrees that it
shall employ reasonable security precautions to maintain the
confidentiality of such trade secrets in the same manner as Licensee
protects its own proprietary information which it does not wish to
disclose.
8. WARRANTY:
Emulex makes no warranties whatsoever expressed or implied with respect
to the Emulex Drivers. Licensee agrees that the Emulex Drivers are
accepted and utilized "AS IS." Emulex DISCLAIMS ANY AND ALL PROMISES,
REPRESENTATIONS, AND WARRANTIES, EXCEPT AS EXPRESSLY SET FORTH IN THIS
AGREEMENT, WITH RESPECT TO THE EMULEX DRIVERS, ANY DATA, INFORMATION,
OR OTHER MATERIAL FURNISHED TO THE LICENSEE HEREUNDER, INCLUDING THEIR
CONDITION; CONFORMITY TO ANY REPRESENTATION OR DESCRIPTION; THE
EXISTENCE OF ANY LATENT OR PATENT DEFECTS; AND TITLE, MERCHANTABILITY,
OR FITNESS FOR A PARTICULAR PURPOSE OR USE.
9. LIMITATION OF LIABILITY:
Neither party shall have any liability to the other party, or any third
party, whether in contract, tort, negligence or products liability for
any claim, loss of use, business interruption , lost data, lost files,
or for any indirect, special, incidental or consequential damages of
any kind or nature whatsoever, even if the affected party has been
advised of the possibility of such damages occurring.
10. TERMINATION:
10.1 This Agreement may be terminated, at any time, by Licensee
giving written notice of termination to Emulex.
10.2 Should either party commit a material breach of any obligation
hereunder, the other party may, at its option, terminate this
agreement upon thirty (30) days' written notice to the other
party. Such notice shall state the default upon which
termination is based. Notwithstanding such notice, termination
shall not occur and the defaulting party shall not be liable
for any further remedy if such default is cured within such
thirty (30) day period. Termination shall not affect any
sublicense granted by Licensee or the rights of Licensee prior
to the effective date or termination.
11. MISCELLANEOUS:
11.1 RELATIONSHIP OF THE PARTIES. The parties are independent
contractors of one another. Nothing herein shall be deemed to
create any relationship of agency,
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partnership, or joint venture between the parties.
11.2 NO ASSIGNMENT. Licensee represents that it is acting on its own
behalf and is not acting as agent for or on behalf of any third
party, except any present affiliate or subsidiary of Licensee,
and further agrees that it may not assign its rights or
obligations under this agreement without prior written consent
of Emulex.
11.3 NOTICES. All notices and other communications required or
permitted to be given under this Agreement shall be in writing
and shall be considered effective when deposited in the U.S.
mail, postage prepaid, and addressed to the appropriate party
at the address noted above, unless by such notice a different
address shall have been designed in writing.
11.4 GOVERNING LAW. The laws of the state of California shall govern
the interpretation and enforcement of this Agreement.
11.5 DISCLAIMERS. Emulex is not entitled to any compensation from
Licensee under this Agreement or otherwise. Licensee has no
obligation to develop or market any Emulex products or any
derivative works of the Emulex Drives or the Emulex Drivers
themselves. Licensee makes no warranties or representations of
any form to Emulex.
EMULEX CORPORATION BOX HILL SYSTEMS CORPORATION
By: By:
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(Signature) (Signature)
Name: Name:
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(Please type of print) (Please type of print)
Title: Title:
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Date: Date:
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