IMPORTANT � PLEASE READ CAREFULLY

 

EMC Velocity² Technology & ISV Base Program

EMC Corporation (�EMC�), with a principal place of business at 176 South Street, Hopkinton, MA 01748, and the organization on whose behalf this EMC Velocity² Technology & ISV Program Base Agreement (the �Agreement�) has been acknowledged and agreed (the �Partner�) enter into this Agreement as of the date on which Partner indicates its acceptance of the Agreement (the �Effective Date�) by clicking on the button below that is marked �I Accept�. This Agreement sets forth the general terms and conditions under which EMC and the Partner shall operate under the Velocity Technology & ISV Program (the �Program�).  If Partner is approved by EMC as a member of the Program then Partner shall receive all benefits set forth in the current Program data sheet, currently available on EMC�s website � www.emc.com.

NOW, THEREFORE, in consideration of the premises and obligations contained herein, it is agreed as follows:

1.0    DEFINITIONS

1.1     �Confidential Information� shall mean any and all information or materials provided by one party to the other which are in tangible form and labeled �confidential� or the like, or, if disclosed orally, are identified as being confidential at the time of disclosure and are followed up within 30 days with an identifying record in a tangible form that is appropriately labeled and which identifies for the subject matter disclosed a short description thereof, the date of such disclosure and what persons were present for the Partner and EMC during the disclosure (e.g. an email from the person who gave the oral disclosure to an EMC person present during such disclosure), but shall not include information or materials that (i) were, on the Effective Date of this Agreement, generally known to the public; or (ii) become generally known to the public after the Effective Date other than as a result of the act or omission of the receiving party; or (iii) were rightfully known to the receiving party prior to that party receiving same from the disclosing party; or (iv) are or were disclosed by the disclosing party to a third party generally without restriction on disclosure; or (v) the receiving party lawfully received from a third party without that third party�s breach of agreement or obligation of trust; or (vi) are independently developed by the receiving party.

1.2     �Logo(s)� shall mean the EMC Velocity² Technology & ISV Program Logo and any other logo which EMC may license to Partner for use hereunder.

1.3     �Territory� shall mean worldwide.

2.0    SMI-S, VSS and VDS Developer Kits

2.1     Entitlement � This entitlement is subject to the �Access� requirements specified in Section 2.3. The Program entitles participant to access and use EMC�s Software Developer Kits (hereinafter �SDK�s�) to allow Partners to develop to, (i) EMC�s �SMI-S Interface� in order for Partner to enable their application(s) to interoperate with EMC�s Symmetrix and CLARiiON storage platforms in conjunction with the SNIA �Storage Management Initiative�, (ii) EMC�s VDS and VSS interface to enable their application(s) to interoperate with EMC�s Symmetrix and CLARiiON storage platforms in conjunction with Microsoft�s VSS and VDS interfaces.

2.2     Rights � Partner acknowledges that their downloading and or use of EMC�s SDK�s and any related materials is subject to the terms of this Agreement. Partner agrees that they will not represent that they or their products are exclusive, certified, official, approved, authorized, franchised or chosen by EMC.  Partner agrees that that their participation under the Program is at their own risk and expense.  Partner agrees that they will use the EMC SDK�s only in conjunction with the terms and conditions of this Agreement and that Partner will not provide EMC�s SDK�s to any party, for any reason, on a standalone or individual use basis.

2.3     Access � Partner�s access to EMC�s SDK�s shall be subject to all of the following: (i) approval of your participation in the Program; (ii) your agreement to the terms and conditions of this Agreement; (iii) your agreement to any subsequent license terms and conditions that may apply.

3.0    CONFIDENTIALITY

3.1     Confidential Information - The receiving party shall protect the other�s Confidential Information by means of the same standard of care as used by the receiving party to protect its own information of a similar nature and importance, and no less than reasonable care. The receiving party shall not make the other's Confidential Information available to any third party and shall use the Confidential Information only to fulfill its obligations or to exercise its rights hereunder and, except as set forth in sub-section 3.4 above, shall dis­close Confidential Information only to those persons in its organization who have a need to know such Confidential In­formation in the performance of their duties in connection with this Agreement and who are bound by a written agree­ment to protect the confidentiality of such Confidential In­formation. Each party will promptly report to the disclosing party any actual or suspected breach of the terms hereof.

3.2     Publicity � Except as set forth below, Partner and EMC shall not, and shall not authorize, assist or permit another party to originate or produce, any written publicity, news release, marketing collateral or other publication or public announcement, relating to this Agreement, without the prior written approval of the other party, which approval shall not be unreasonably withheld. The terms of this Agreement but not its existence, are considered EMC Confidential Information. EMC may use Partner�s name and logo in any list of EMC Velocity² Technology & ISV Program members without prior approval, providing EMC complies with Partner's then current logo guidelines as provided by Partner.

4.0    TERM AND TERMINATION

4.1     Term And Termination For Convenience - This Agreement commences on its Effective Date and, unless otherwise terminated in accordance herewith, ends when a party terminates such for its convenience by providing the other with written notice, which notice shall become effective ten (10) business days after receipt thereof.

4.2     Termination Due To Transfer Of Control - EMC shall, in its sole discretion, have the right to terminate the Agreement and/or any related licenses by written notice to Partner, with such termination to be effective immediately, if Partner merges, is acquired or otherwise undergoes a change of control, or attempts to assign any of its rights or delegate any of its obligations under this Agreement without EMC�s prior written consent, and any such assignment or delegation in violation of the foregoing shall be void. Partner shall promptly notify EMC in the event Partner so merges, is acquired or otherwise undergoes a change in control.

4.3     Termination For Default - Upon occurrence of any of the following acts or events, Partner shall be in default and breach of this Agreement, and EMC shall, in addition to any other remedies, which may be available to EMC under this Agreement, in law or equity, in its sole discretion, have the right to terminate this Agreement and any or all related license(s) granted to Partner by written notice thereto, with such termination to be effective immediately:

          A.  Partner fails to perform any of its material covenants, obligations or responsibilities under this Agreement; or

          B.   Partner makes intentional and/or malicious misrepresentations about EMC, EMC storage systems, EMC software, or this Agreement.

4.4     Obligations on Termination - Except as expressly continued in writing by EMC, all rights and licenses granted to Partner under this Agreement shall terminate upon termination of this Agreement. Upon receiving notice of termination of this Agreement, Partner shall within ten (10) business days after receiving such notice of termination:

       A. Cease making use of any printed material, trademark, trade name or logo identified with EMC as pertains to this Agreement.

4.5     Survival - Sections 1.0, 3.0, 4.0, 5.0, 6.0, 7.0 and 8.0 of this Agreement shall survive the termination or expiration of this Agreement.

5.0    WARRANTIES

5.1     No Warranties - EMC MAKES NO EXPRESS WARRANTIES, WRITTEN OR ORAL, AND ALL OTHER WARRANTIES ARE SPECIFICALLY EXCLUDED, INCLUDING BUT NOT LIMITED TO THE IMPLIED WARRANTY OF MERCHANTABILITY, FITNESS FOR PARTICULAR PURPOSE, OR NONINFRINGEMENT, AND ANY WARRANTY ARISING BY STATUTE, OPERATION OF LAW, COURSE OF DEALING OR PERFORMANCE OR USAGE OF TRADE.

6.0    LIMITATIONS OF LIABILITY AND INDEMNITIES

6.1     Limits of Liability � EMC�S TOTAL LIABILITY AND PARTNER�S SOLE AND EXCLU­SIVE REMEDY FOR ANY CLAIM OF ANY TYPE WHATSOEVER, REGARDLESS OF FORM, ARISING OUT OF OR IN CONNECTION WITH ANY ITEMS OR SERVICES PROVIDED HEREUNDER, SHALL BE LIM­ITED TO PROVEN DIRECT DAMAGES CAUSED BY EMC�S SOLE NEGLIGENCE IN AN AMOUNT NOT TO EXCEED US$10,000 FOR (i) DAMAGE TO REAL OR TANGIBLE PERSONAL PROPERTY, OR (ii) DAMAGE OF ANY OTHER TYPE NOT OTHERWISE EXCLUDED HEREUNDER. EXCEPT FOR CLAIMS ARISING OUT OF A PARTY�S BREACH OF ITS OBLIGATIONS UN­DER SUB-SECTION 3.0 NEITHER PARTY SHALL HAVE LIABILITY TO THE OTHER FOR ANY SPECIAL, CONSEQUENTIAL, EXEMPLARY, INCIDENTAL OR INDIRECT DAMAGES (INCLUDING, BUT NOT LIMITED TO, LOSS OF PROFITS, REVENUES, DATA AND/OR USE) ARISING OUT OF OR IN CONNECTION HEREWITH. EVEN IF ADVISED OF THE POSSIBILITY THEREOF. PARTNER SHALL NOT BRING ANY CLAIM ARISING UNDER THIS AGREEMENT MORE THAN EIGHTEEN (18) MONTHS AFTER SUCH CLAIM HAS ACCRUED.

7.0    USE OF LOGO(S)

7.1     Grant Of Logo License � Subject to and expressly conditioned upon compliance with the terms and conditions of this Agreement and prior written approval by at least one EMC business unit, EMC grants Partner a personal, nonexclusive, nontransferable, royalty-free, personal right and license to use the EMC Velocity² Technology & ISV Program logo solely for the purpose of promoting that Partner is a participant in the Program. Partner may obtain business unit written approval for license rights to the logo through successful completion of a project such as, but not limited to, the following: (i) publication of an EMC business unit approved technical document (including but not limited to a white paper, proof of concept, or best practice), (ii) submission of a public joint reference customer.  Under no circumstances will anything in this Agreement be construed as granting, by implication, estoppel or otherwise, any right to use any other EMC logo or trademark or any license to any EMC technology or proprietary right.

7.2     Ownership Of Logo(s) � Partner acknowledges the ownership of EMC of each and every Logo(s), and the fact that use of the Logo(s) not in accordance with this Agreement may cause damage to EMC�s reputation, the strength of the Logo(s) or other irreparable harm. Partner shall do nothing inconsistent with such ownership, and agrees that all use thereof by Partner shall inure to the benefit of EMC. Nothing in this Agreement gives Partner any right, title or interest in any such Logo(s) other than the right to use the Logo(s) in accordance with the terms of this Agreement. Partner shall not challenge or assist others to challenge EMC�s ownership or use of the Logo(s); attempt to register any Logo; use or attempt to register any trademark that is similar to any Logo; alter, add to, or delete component parts from any Logo; or incorporate any Logo or any portion thereof into Partner�s product names, service names, company names, domain names, or any other similar designations. Partner�s use of any Logo inures to the sole benefit of EMC. If, at any time, Partner acquires any rights in, or trademark registrations or applications for the Logo, or any of the Logo related trademarks, by operation of law or otherwise, Partner shall immediately and at no expense to EMC assign such rights, registration or applications to EMC, along with any and all associated goodwill.

7.3     Quality Standards And Review - Partner shall use the Logo(s) only in the form and manner as prescribed by EMC and in compliance with the Logo usage guidelines and/or graphic standards, if any, to be provided to Partner by EMC or made available at the EMC Velocity² Technology & ISV Program web site, which website, as of the Effective Date, is at the EMC Velocity² Technology & ISV Program portal and accessible from the EMC URL � https://powerlink.emc.com. Partner shall provide EMC with representative samples of all Partner materials displaying the Logo upon EMC�s request. If EMC determines that Partner is using the Logo in a manner that is or may be damaging to EMC�s interests or reputation, or that Partner�s materials are not in compliance with EMC�s guidelines for Logo use, Partner shall promptly make all changes required by EMC to bring Partner�s use into compliance.

7.4     Reservation Of Right To Amend � EMC reserves the right to modify or replace the Logo(s) or the related usage guide­lines for the Logo(s), and to specify one or more countries or jurisdictions where the Logo(s) may not be used. Upon written notice from EMC, Partner shall promptly cease using all non-complying materials and make all changes necessary to bring Partner�s materials into compliance with any new or modified Logo(s) and any new or modified usage guidelines. Upon written notice from EMC, Partner shall to cease all use of the Logo(s) in any country or jurisdiction where EMC has determined that use or continued use of the Logo(s) may subject EMC or any other party to legal liability or may jeopardize EMC�s rights in the Logo(s).

7.5     Infringement � If Partner becomes aware of any unauthorized or inappropriate use of the Logo(s) by any third party, Partner shall promptly bring such use to EMC�s attention. EMC shall have the sole right and discretion to initiate infringement, unfair competition or similar proceedings involving the Logo(s).

7.6     Termination Of License � Partner�s license to use the Logo(s) shall terminate immediately upon the termination or expiration of this Agreement. Prior to the termination or expiration of this Agreement, EMC may terminate Partner�s license to use the Logo upon thirty (30) days written notice to Partner in the event of (i) EMC�s decision to terminate the Logo program; or (ii) any breach of any obligation of Partner under this Section 10.0 which breach is not fully cured to EMC�s satisfaction.

7.7     Effect Of License Termination � Upon termination of Partner�s license to use the Logo(s), Partner shall immediately discontinue all use of the Logo; remove the Logo from all Partner web sites and all Partner materials in electronic form; and destroy all Partner literature, stationery, and other materials in tangible form that are in Partner�s custody or under Partner�s control that display the Logo.

7.8     Equitable Relief � Partner agrees that Partner�s misuse of the Logo(s) or breach of its obligations under this Section 7.0 may cause damage to EMC�s reputation, dam­age to the strength of the Logo(s), or other irreparable harm for which money damages may be an insufficient remedy. Accordingly, in addition to any other remedies available to EMC, EMC shall be entitled to equitable relief for Partner�s Logo misuse or breach, including injunctive relief.

7.9     Additional Logo License Grants � If EMC has previously granted, or subsequently grants, Partner a license to use the EMC Velocity² Technology & ISV Program Logo pursuant to any other agreements between the parties, it is expressly agreed that such grants shall be null and void and the sole terms and conditions governing the license to use the EMC Velocity² Technology & ISV Program Logo are set forth in this Agreement unless otherwise specifically agreed in writing between the parties in a document signed after the Effective Date hereof.

8.0    GENERAL

8.1     Entire Agreement - The terms contained herein constitute the entire agreement between the parties with respect to the subject matter hereof and shall supersede all prior communications and agreements, either oral or written.

8.2     Similar Products - Nothing contained herein shall be construed as preventing either party from developing, acquiring, marketing, selling, supporting or maintaining products similar to or competitive with those offered by the other party, or from entering into agreements with competitors of the other party, provided that in so doing, such party does not breach its obligations under Section 3.0.

8.3     Equitable Relief - EMC may, without limiting its other rights and remedies, be entitled to equitable relief, including but not limited to injunctive relief.

8.4     Compliance With Laws And Governing Law � Each party shall comply with all applicable export laws, orders and regulations and obtain all necessary governmental permits, licenses and clearances. This Agreement shall be governed by the laws of the Commonwealth of Massachusetts, excluding its conflict of law rules.

8.5     Notices � Except for quotes, purchase orders, acknowledg­ments, invoices and other usual and routine communica­tions, all other notices or writings required or permitted hereunder, including but not limited to notices of default or breach, shall be signed by an authorized representative of the sender, sent to the other�s address as first set forth above, and, in the case of (i) EMC, addressed to EMC General Counsel, 176 South Street, Hopkinton, MA 01748, Attn: Notice under Velocity Technology & ISV Program, and (ii) Partner, addressed to the attention of the President with copies to the then current Business/Marketing manager... The address and contacts for either party may be changed by written notice to the other. Such notices shall be deemed to have been received (i) when hand delivered to such individuals by a representa­tive of the sender; (ii) three (3) days after having been sent postage prepaid, by registered or certified first class mail, return receipt requested; (iii) when sent by electronic transmission, with written confirmation by the method of transmission; or (iv) one (1) day after deposit with an overnight carrier, with written verification of delivery.

8.6     No Waiver - No modification or amendment hereto, nor any waiver of any rights herein, shall be effective unless assented to in writing by the party to be charged. The waiver of any breach or default shall not constitute a waiver of (i) any other right or remedy hereunder, or (ii) any subsequent breach or default.

8.7     Independent Contractors - The parties shall act as independent contractors for all purposes hereunder.

8.8     Separability - If any provision hereof shall be held illegal or unenforceable, such provision shall be deemed separable from, and shall in no way affect or impair the validity or enforceability of, the remaining provisions.