END-USER LICENSE AGREEMENT
1. Scope. This end user license agreement (“EULA”) is between you (“You” or “Your”) and NGX Teknoloji A.Åž. and (as applicable) its subsidiaries and affiliates (“NGX Storage”). This EULA sets forth the terms under which NGX Storage licenses the Software and Documentation to You. In this EULA:
a) “Documentation” means technical documentation describing the features and functions of the associated Software;
b) “NGX Storage Partner” means an authorized NGX Storage distributor, reseller or other channel partner; and
c) “Software” means NGX Storage software in object code format including (as applicable) operating systems, protocols, backup and recovery, disaster recovery, storage efficiency and management software. In the absence of a more specific written agreement, this EULA applies to Software and Documentation obtained by You directly from NGX Storage, indirectly from a NGX Storage Partner, or made available to you by NGX Storage at no charge. The types, quantities and other usage attributes related to Your Software licenses are specified in other documents associated with the Software, including (as applicable) the Documentation, a NGX Storage quote or related document (for direct transactions), or the corresponding
documents from a NGX Storage Partner (for indirect transactions). This EULA does not entitle You to
receive Software updates, upgrades, technical support or professional services, which must be purchased or provided separately.
2. Acceptance. By clicking the “I ACCEPT” button when downloading or installing the Software, or by copying, accessing or using the Software or Documentation, You agree that this EULA will exclusively govern NGX Storage’s license and Your use of the Software and Documentation unless You have a separate applicable written agreement with NGX Storage governing the same. If You are accepting this EULA on behalf of another person, company or other legal entity, whether as an employee, contractor, distributor, reseller, partner, agent or otherwise, You represent and warrant that You have full authority to bind them. If You do not agree to the terms of this EULA, do not download, install, copy, access, or use the Software or
Documentation, or click the “I ACCEPT” button, and promptly return the Software and Documentation to the party from whom it was obtained.
3. License Grant. NGX Storage grants to You a personal, non-exclusive, non-transferrable, worldwide, limited and revocable license, without the right to sublicense, to
i) install and use the Software for Your internal business purposes only, and
ii) use the Documentation in support of Your use of the Software. The Software associated with Your license is either bundled with a specific storage controller identified by a unique serial number (“Controller-based”), or is independent of a storage controller (“Standalone”), and Your license is one of the following license types:
a) “Life-of-controller”: Controller-based licenses granted for the period of time during which Your storage controller is operable;
b) “Perpetual”: Standalone licenses granted in perpetuity;
c) “Term”: Controller-based licenses or Standalone licenses granted for a fixed period of time;
d) “Capacity”: Controller-based licenses or Standalone licenses granted for a specified amount of raw storage capacity, number of hosts or other measure of usage; and
e) “Subscription”: Controller-based licenses or Standalone licenses which may be purchased on a periodic basis. Certain license types may require the installation and use of NGX Storage’s remote support diagnostics system. Each storage controller deployed in a cluster or a high-availability pair or group must have the same Controller-based license as the other storage controllers in that cluster, high-availability pair or group. Subject to NGX Storage’s separate written agreement, and in the context of non-disruptive operations within a cluster, You may deploy storage controllers with different Controller-based licenses and failover from one
storage controller to another for the time required to remedy a failure, provided that all storage controllers in the cluster have the same hardware and software support offerings in effect at all times.
4. License Restrictions. You shall not, nor shall You allow any third party to:
a) reverse-engineer, decompile or disassemble the Software or otherwise reduce it to human-readable format except to the extent required for interoperability purposes under applicable laws or as expressly permitted in opensource licenses;
b) remove or conceal any product identification, proprietary, intellectual property or other notices in the Software or Documentation;
c) use the Software or Documentation to perform services for third parties in a service bureau, managed services, commercial hosting services or similar environment;
d) assign or otherwise transfer, in whole or in part, the Software or Documentation licenses to another party or Controller-based licenses to a different storage controller;
e) install Controller-based licenses on or use them with third party hardware or any second-hand or grey market NGX Storage hardware not purchased by You from NGX Storage or a NGX Storage Partner;
f) modify, adapt or create a derivative work of the Software or Documentation; and
g) publish or provide any Software benchmark or comparison test results.
5. Intellectual Property Rights. The Software and Documentation is licensed, not sold, to You. It is protected by intellectual property laws and treaties worldwide, and contains trade secrets, in which NGX Storage and its licensors reserve and retain all rights not expressly granted to You. No right, title or interest to any trademark, service mark, logo or trade name, of NGX Storage or its licensors is granted to You.
6. Direct Warranty. NGX Storage warrants that for a period of ninety (90) days from the date of first delivery of the Software to You or a NGX Storage Partner, whichever is the earlier, or such other minimum periods under applicable laws (the “Software Warranty Period”), that
i) the Software will materially conform to the then-current Documentation, and
ii) the Software media will be free from defects. NGX Storage does not warrant that Your use of the Software will be error-free or uninterrupted. If a material defect arises in the Software during the Software Warranty Period and if the defect is reproducible and verifiable, NGX Storage will, at its sole discretion and expense, repair or replace the defective Software or refund the amounts actually received by NGX Storage for the Software. The Software warranty will be voided if You or any third parties misuse, neglect, attempt to repair or modify (unless authorized by NGX Storage), or use the Software beyond the range of the intended use. TO THE EXTENT PERMITTED BY APPLICABLE LAWS, THIS IS YOUR SOLE AND EXCLUSIVE
WARRANTY AND REMEDY. NGX Storage SPECIFICALLY DISCLAIMS ALL IMPLIED WARRANTIES, INCLUDING THOSE OF MERCHANTABILITY, ACCEPTABLE QUALITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT.
7. Limitation of Liability. Regardless of the basis of the claim (e.g. contract, tort or statute), the total liability of NGX Storage and its licensors, under or in connection with this EULA, shall not exceed the amounts actually received by NGX Storage for the Software or the minimum amounts permitted by applicable laws, if greater. NGX Storage and its licensors are not liable for:
a) any indirect, consequential, incidental, exemplary or special damages;
b) loss or corruption of data;
c) loss of revenues, profits, goodwill or anticipated savings;
d) procurement of substitute goods and/or services;
e) interruption to business; and
f) Your failure to adhere to applicable regulations pertaining to non-rewriteable and non-erasable TURKISH Government regulations. The limitations and exclusions above shall not apply to liability for death or personal injury caused by negligence, gross negligence, willful misconduct, fraud or any other liability that cannot be excluded under applicable laws.
8. Audit. Upon reasonable notice, You grant NGX Storage and its independent accountants the right to
examine Your Software usage to verify compliance with this EULA. If the audit discloses over-usage or any other material non-compliance, You will promptly pay to NGX Storage or to a NGX Storage Partner, as designated by NGX Storage, any additional fees notified to you and the reasonable costs of conducting the audit.
9. Termination. This EULA is effective until expiration or termination. You may terminate the EULA at any time on written notice to NGX Storage. NGX Storage may terminate the EULA immediately on written
notice for material breach of the EULA. Any failure to remit payments in relation to the Software and Documentation when due, whether payable to NGX Storage or a NGX Storage Partner, shall constitute a material breach of this EULA. Upon expiration or termination of this EULA, You will promptly return or destroy all copies of the Software and Documentation, including any license enablement keys. Sections 1, 4, 5, 6, 8, 10, 11, 12, 13 and 14 shall survive expiration or termination of this EULA.
10. Software Copyright Information And Notices. Software copyright information and other related details
are included as part of notices in the Documentation or other documentation published by NGX Storage (e.g. NOTICES.TXT or NOTICES. PDF).
11. Export Controls. You acknowledge that the Software and Documentation supplied by NGX Storage under this EULA is subject to export controls under the laws and regulations of the Republic of Turkey, the European Union and other countries as applicable, and the Software may include export controlled technologies, including without limitation encryption technology. You agree to comply with such laws and
regulations and, in particular, represent and warrant that You:
a) shall not, unless authorized by Republic of Turkey export licenses or other government authorizations, directly or indirectly export or re-export the Software and Documentation to or use the Software and Documentation in countries subject to Republic of Turkey embargoes or trade sanctions programs;
b) are not a party, nor will You export or re-export to a party, identified on any government export exclusion lists, including but not limited to the Republic of Turkey Persons, Entity, and Specially Designated Nationals Lists; and
c) will not use the Software and Documentation for any purposes prohibited by Republic of Turkey law, including but without limitation, the development, design, manufacture or production of nuclear, missile, chemical biological weaponry or other weapons of mass destruction. You agree to provide NGX Storage end use and end user information upon NGX Storage’s request. You shall obtain all required authorizations, permits, or licenses to export, re-export or import, as required. You agree to obligate, by contract or other similar assurances, the parties to whom You re-export or otherwise transfer the Software to comply with all obligations set forth in this Section 11.
12. Data Privacy. You have sole responsibility for the personal data you choose to manage and/or store using the Software and agree to comply with all applicable data privacy laws. NGX Storage is only responsible for personal data it explicitly requests in order to provide services in support of the Software. In such cases,
NGX Storage agrees to protect personal data from unauthorized access and use, and from accidental loss or destruction in accordance with applicable data privacy laws.
13. General. This EULA will be construed pursuant to the laws of i) the Republic of Turkey, excluding its conflicts of law provisions, if You are located in the Republic of Turkey or in a country in which NGX
Storage has no local sales subsidiary, or ii) the country in which You are located if NGX Storage has a local sales subsidiary in that country. NGX Storage reserves the right to control all aspects of any lawsuit or claim that arises from Your use of the Software or Documentation. If required by NGX Storage’s agreement with a third party licensor, NGX Storage’s licensor will be a direct and intended third party beneficiary of this
EULA and may enforce it directly against You. NGX Storage does not waive any of its rights under this
EULA by failing to or delaying the exercise of its rights or partially exercising its rights at any time. To the extent that any Section of this EULA, or part thereof, is determined to be invalid or unenforceable, the remainder of this EULA shall remain in full force and effect. This EULA may not be changed except by a written amendment executed by an authorized representative of each party. In the event of a dispute between the English and non-English version of the EULA (where translated for local requirements), the English version of this EULA shall govern, to the extent permitted by applicable laws. This EULA represents the
entire agreement and understanding between NGX Storage and You with respect to the Software and Documentation. It supersedes any previous communications, representations or agreements between NGX Storage and You and prevails over any conflicting or additional terms in any quote, purchase order, acknowledgment, or similar communication between the parties.
