IMPORTANT � PLEASE READ CAREFULLY

 

This EMC Velocity2 Technology & ISV Program CAS Specialty Agreement (the �Agreement�) is a legal agreement between  EMC Corporation (�EMC�) and the company identified in the EMC Velocity2Technology & ISV Program Membership form (the �Developer�) regarding membership in the EMC Velocity2 Technology & ISV Program CAS Specialty and use of the EMC Centera Development Kit.  By clicking on the �I Accept� button set forth below you are representing to EMC that you are authorized to bind the Developer and are agreeing on behalf of the Developer that the terms of this Agreement shall govern the relationship of the parties with regard to the Velocity2 Technology & ISV Program CAS Specialty and the EMC Centera Development  Kit.  EMC reserves the right to limit acceptance to the Program.   Developer is not a member of the Program until EMC sends Developer such notice of acceptance to the Program. Such notice will be sent to the eMail address and contact provided by the Developer in the Program application.  If Developer is approved by EMC as a member of the Program then Developer shall receive all benefits set forth in the current Program data sheet, currently available on EMC�s website � http://www.emc.com/ .

 

EMC Velocity2 Technology & ISV Program CAS Specialty Agreement

 

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 CAS Specialty Agreement (the �Agreement�) has been acknowledged and agreed (the �Developer�) enter into this Agreement as of the date on which Developer 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 Developer agree that Developer is authorized by EMC to develop and include programmatic or command line calls to one or more EMC Products in certain Developer Products distributed by Developer. The specific details shall be set forth on a document identified as the �Initiative Schedule� which is attached to and made a part hereof as Schedule A.

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 Developer 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     �Customer� shall mean an end user of the Developer Product that has signed an agreement, which meets the requirements set forth in sub-section 3.4 below, with Developer and is properly authorized and/or licensed to access and make use thereof.

1.3     �Developer Product� shall mean, depending upon the context in which it is used, Developer�s actual or potential software program and related documentation as identified and more fully described in the Initiative Schedule, or the above after it has been changed to contain the Developer Interface Module and/or any other modification resulting from the Initiative.

1.4     �Developer Interface Module� shall mean the software developed by Developer using the Development Kit to enable the Developer Product to invoke the EMC Product by means of programmatic or command line calls.

1.5     �Development Kit� shall mean the EMC materials identified as such on the Initiative Schedule (including the applicable Dynamic Link Libraries) designed to facilitate development of programmatic or command line calls to the Dynamic Link Libraries.

1.6     �Dynamic Link Libraries� shall mean that collection of executable functions or data contained in the Development Kit and used by the Developer Product to provide the applicable functionality.              

1.7     �EMC Interface Definition� shall mean that portion of the Development Kit that consists of code for header files, interface specifications and/or samples or examples of code for calls which correctly invoke the Dynamic Link Libraries provided in the Development Kit.

1.8     �EMC Product� shall mean that member of the Centera family of storage devices, on which the Dynamic Link Libraries operate.

1.9     �Initiative� shall mean the effort to pair the Developer Product and the Development Kit described in the Initiative Schedule.

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

1.11   �Territory� shall mean worldwide.

2.0    INITIATIVE PROCESS

2.1     Commencement Of Initiative � Within ten (10) business days after the Effective Date, or promptly after first becoming available, whichever occurs later, EMC shall make available electronically one (1) copy thereof to Developer.

2.2     Problem Reports - Developer shall promptly notify EMC Centera Engineering Technical Support using the Centera Problem Report Form located on the EMC Velocity2 Technology & ISV Program portal accessible from the EMC URL https://powerlink.emc.com/ of any problems associated with the Development Kit and shall, on EMC's request, provide a report detailing Developer�s progress with regard thereto.

2.3     Developer Comments And Suggestions - Developer may provide to EMC reasonable suggestions, comments and other technical information regarding the Development Kit ("Feedback"). If Developer provides such Feedback, Developer grants to EMC a worldwide, non-exclusive, perpetual, irrevocable, royalty-free, fully paid up license to make, use, copy, modify, distribute any Feedback (including derivative rights thereto) as part of any product, technology, or service offered by EMC.

2.4        Limited Testing License To EMC - Developer hereby grants to EMC, and EMC hereby accepts a royalty-free, personal, worldwide, non-exclusive, and non-transferable right and license to make and use a reasonable number of copies of the Developer Product for testing, demonstration, support and other non-production purposes. Developer will provide EMC with the opportunity to test the Developer Product before it is made generally available. EMC, at its sole discretion, will determine whether to utilize this test opportunity. EMC is not responsible for any type of testing, certification or quality assurance for the Developer Product. Except to the extent stated otherwise in the preceding portion of this sub-section 2.4, the terms and conditions of Developer�s own license agreement, as modified by mutual agreement of Developer and EMC, shall govern EMC�s use of the Developer Product hereunder.

2.5        Development Support Services Provided by EMC � Engineering technical assistance and training are available to Developer in accordance with EMC�s Development Support Services as set forth at the then applicable EMC website, 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/.

3.0    LICENSE GRANTS, RESTRICTIONS, AND COSTS

3.1     License - EMC hereby grants to Developer, and Developer hereby accepts, a personal, royalty-free, non-exclusive and non-transferable right and license, during the term of this Agreement, to use the Development Kit only to: (i) develop the Developer Interface Module to invoke the EMC Product in connection with the Developer Product; (ii) test, demonstrate, install, support and maintain copies of the Developer Interface Module; (iii) reproduce a reasonable number of copies of such Development Kit to implement (i) and (ii) above; (iv) make one (1) copy of the Development Kit solely for archival and backup purposes; (v) to modify the EMC Interface Definition only as necessary to develop the Developer Interface Module in the Developer Product; and (vi) include copies of the modified or unmodified EMC Interface Definition and the unmodified Dynamic Link Libraries in, and reproduce for distribution with, the software code for the Developer Interface Module, but not in or with the documentation for the Developer Product. EMC hereby grants Developer the right to use EMC Confidential Information and the modified or unmodified EMC Interface Definition which was included in the Developer Interface Module by Developer in order to implement calls to the EMC Product. In addition, EMC reserves the right to make the EMC Product available for distribution by Developer under mutually acceptable terms and conditions.

3.2     No Reverse Engineering - Except as expressly authorized herein, Developer shall have no right to copy, modify, enhance, change or make derivative works of the Development Kit, or any portion thereof. Developer shall not reverse assemble, reverse compile, or reverse engineer any code included in the Development Kit. Developer shall not remove or obscure any copyright, trade secret or other proprietary rights notices affixed to the contents of the Development Kit, and shall reproduce all such notices on any copies of such contents made by or for Developer.

3.3     EMC Retains Title To Development Kit - Developer acknowledges that the Development Kit is EMC Confidential Information. No title or ownership of the Development Kit or any EMC Confidential Information is transferred to Developer. EMC retains all right, title and ownership in any copies or derivative works of any and all portions of the Development Kit. Developer shall own any Developer Interface Module copyrights, subject to EMC�s rights in the Development Kit and the unmodified EMC Interface Definition. Except as may be expressly provided herein, Developer is not granted any rights to patents, copyrights, trade secrets, trade names, trademarks (whether registered or unregistered) or any other rights or licenses with respect to the Development Kit or other EMC Confidential Information.

3.4     Customer Licenses - EMC hereby grants Developer the right to distribute and sublicense in object code form, directly or through its customary distribution channel(s) to its Customers within the Territory, any modified or unmodified EMC Interface Definition and any related EMC Confidential Information provided hereunder, but only to the extent such EMC Interface Definition or Confidential Information is included in the Developer Interface Module by Developer in order to implement calls to the EMC Product. Each such distribution or license to the Developer Interface Module must be granted only pursuant to written license terms (which may be incorporated into Developer�s own license agreement) under which each Customer agrees (i) to operate and use the Developer Interface Module for its own internal business purposes, in object code form only, without the right to further distribute, license or sublicense, (ii) not to reverse assemble, reverse compile, reverse engineer, translate or attempt to discover the source code for the Developer Interface Module in whole or in part, except as specifically permitted by law, and (iii) to require its employees and consultants, by a suitable agreement, to abide by these license restrictions. Developer may distribute (but only in object code form) through resellers which agree to be bound, and to require their customers to be bound, by all of these requirements. Developer shall not distribute or sublicense the EMC Interface Definition or EMC Confidential Information in any other form.

3.5     Costs �Each party shall be solely responsible for any costs it incurs in developing, marketing, supporting, maintaining or updating its own products. All fees due hereunder shall be paid in United States currency.

4.0    DEVELOPER OBLIGATIONS

4.1     EMC Prerequisites � Developer shall market the Developer Product for use with the EMC Product. De­veloper shall include in the documentation of the Developer Product an attribution recognizing the EMC Product, such attribution to also include a disclaimer for any EMC responsibility for the Developer Product. Devel­oper will specify the EMC Product and version numbers in the documentation of the Developer Product.

4.2     Copyright And Trademark Notices - Developer will acknowledge and credit EMC for the unique features/support found in the EMC Product by providing an appropriate copyright notice including EMC�s name. Any mention or reference by Developer to the EMC Product with a trademarked name shall be in accordance with EMC�s usage guidelines. Any EMC trademarks mentioned or referenced in materials of Developer shall be accompanied by an appropriate trademark notice identifying the marks as trademarks of EMC. This Agreement does not grant Developer any license or other right to use or display the EMC corporate logo or any other logo or design of EMC, except for the Logo(s) as set forth in Section 10.0 below.

4.3     Beta Test Sites - EMC has the right to nominate, at its discretion, up to three (3) applicants for participation in any Developer�s beta test program for each release of the Developer Product. Developer shall include these applicants, subject to Developer�s approval, which shall not be unreasonably withheld. Developer is solely responsible for the management of its beta test program. EMC shall have no responsibility for rollout, testing, certification or quality assurance or support for the Developer Product.

4.4     Development Kit Updates And Compatibility - From time to time, during the term of this Agreement, EMC may, at its sole discretion, provide updates to the Development Kit, or a beta version thereof. Any such beta version or update provided by EMC is considered to be a part of the Development Kit, and is covered by the license governing the original Development Kit. Within sixty (60) days after Developer�s receipt of notification from EMC that an update of the Development Kit and EMC Product are available for testing, Developer shall use good faith and commercially reasonable efforts to (i) investigate whether or not any issues arise with the Developer Product that will require an update to the Developer Product; and (ii) notify EMC of the results of such investigation; and (iii) reasonably coordinate and cooperate with EMC to identify and/or mitigate any adverse effects that may result from the interoperation of the Developer Product, the updates to the Development Kit and/or products provided by any third parties.

4.5     Developer Contact Updates � Whenever the name of the Developer Partnership/Alliance Contact, the Technical/Development Contact, or the Developer Support Center Contacts change, the Developer shall submit to EMC at mailto:emc_developers_program@emc.com the new contact name, title, business address, email address, phone number and other relevant information.

4.6     Availability and Status of Developer Product � Prior to making the Developer Product generally available, Developer shall submit to EMC at mailto:emc_developers_program@emc.com the following information: (i) date the Developer Product will become generally available; and (ii) final name and functional description of the Developer Product and the operating systems that are supported.  At least once per year, the Developer will submit an update on the status of the development activity or product availability status.

4.7     Future Versions of Developer Product - If Developer creates a new release of the Developer Product that uses Development Kit functionality not used in a prior release of the Developer Product, prior to making the Developer Product generally available Developer shall submit to EMC at mailto:emc_developers_program@emc.com the following information: (i) date the Developer Product will become generally available; and (ii) final name and functional description of the Developer Product and the operating systems that are supported and the operating systems that are supported.

 

5.0    COOPERATIVE MAINTENANCE AND CUSTOMER SUPPORT

5.1     Definitions - For purposes of this Section 5.0, the following definitions shall apply:

          A.  �Joint Customer� shall mean an entity that (i) is licensed to use the EMC Product and Developer Product and is using them in connection with each other; and (ii) has a valid warranty or maintenance contract with EMC for the EMC Product and with Developer for the Developer Product.

          B.   �Case� shall mean an incident related to a failure or functional impairment of the EMC Product or Developer Product which is reported by a Joint Customer to either EMC or Developer.

          C.   �Case Remedy� shall mean the correction of a Case that may, for example, take the form of eliminating a defect, providing corrective maintenance or repair, providing a new software version, or demonstrating how to avoid the failure or functional impairment by taking reasonable effort, and may include an �error correction,� �patch,� �bug fix,� �workaround,� �spare part� or any other type of software, hardware, or documentation correction or modification.

5.2     Interfacing Between The Parties

          A.  Availability Of Support - Each party shall ensure that technical support is always available (i.e. 24 hours a day, 365 days a year) to the other party to implement the procedures described in this Section 5.0.

          B.   Primary Support Obligations - Each party shall be responsible for support and maintenance of its own products, and is not hereby authorized to support or maintain the products of the other party. However, upon being notified by the other party in accordance with the procedures in this Section 5.0 that its products require a Case Remedy, the notified party shall provide a timely Case Remedy to the Joint Customer. If providing a Case Remedy can be aided or facilitated by technical support from the other party, or if it is uncertain which product is the source or cause of the Case report, then the parties shall cooperate and work together for the benefit of each other and the Joint Customer to provide a Case Remedy in accordance with the procedures of sub-section 5.3 below.

5.3     Response Procedures

          A.  Initial Response - When either EMC or Developer receives a Case report from a Joint Customer, that party shall contact the Joint Customer in accordance with that party's customer support and/or maintenance arrangement.

          B.   Case Remedy - If a party receives a Case report (the �Notice Recipient�) from a Joint Customer and it is determined either immediately or after some investigation that a Case Remedy is required from the other party (the �Primary Responder�), then the Notice Recipient shall notify the Primary Responder�s appropriate Customer Support Center Technical Support Contact and shall at least provide the Required Customer Information identified in the Initiative Schedule. In response thereto, the Primary Responder shall deliver or implement a Case Remedy directly to the Joint Customer in a timely manner based on the Severity Level in the Initiative Schedule, and in accordance with its then existing support or maintenance contract with the Joint Customer. The Primary Responder may assign the Case a different Severity Level than received from the Notice Recipient. The Notice Recipient shall endeavor to continue to be available to provide information and/or assistance, as reasonably necessary or convenient, and may advise Joint Customer that the Primary Responder has been contacted. The Primary Responder shall keep the Notice Recipient informed about the status of the Case including when a Case Remedy is implemented.

          C.   Cooperative Efforts - If, after making reasonable but unsuccessful efforts to provide a Case Remedy, the initially contacted party believes that the cause of the Case report may be the other party's product, the party who initially received the Case report shall contact the Technical Support Contact of the other party and at least supply the applicable Required Customer Information. The parties shall then endeavor to share information related to the case and use reasonable cooperative efforts to determine and/or isolate the cause of the Case report. Then, the party in whose product the cause is isolated shall deliver or implement the Case Remedy directly to the Joint Customer based on the terms and conditions of the support contract between the Joint Customer and such party.

          D.  Resolution Of Joint Customer Cases - Each party shall endeavor to respond to and use reasonable efforts to provide Case Remedies in a timely manner in accordance with the Severity Level in the Initiative Schedule, and in accordance with that party's support or maintenance contract with such Joint Customer.

          E.   Closing A Case - The consent of a Joint Customer shall be required to close a Case. However, each party acknowledges that, despite a party's reasonable efforts, not all cases may have satisfactory Case Remedies.

          F.   Time Periods For Case Remedies - The parties agree that a Case Remedy can not be guaranteed within a predetermined period of time because the nature of a particular Case can not always be accurately predicted.

          G.   Customer Support Center Technical Support Contacts - Each party shall designate the names, direct dial telephone numbers, and email addresses of Customer Support Center Technical Support Contacts. These contacts may be changed at any time by verbal notice to the other party confirmed in writing.

5.4     Exchange Of Information

          A.  Product Information - Each party may, in its sole discretion, provide the other with product information which may be useful in providing Case Remedies to Joint Customers. The parties may exchange information about their respective products on a continuing basis to enable each party to better understand the interoperability of their products thereby enabling timely and efficient Case Remedies for Joint Customers. Such information may include, but is not limited to, technical tips, new releases, updates, bug fixes, new models, beta testing, and a history of support and maintenance information which may be helpful in diagnosing and correcting causes of Case reports related to the Product. However, neither party shall be obligated to provide its source code to the other.

          B.   On-Line Access - Each party may, in its sole discretion, make the above identified information available to the other party free of charge by providing the other party access to and/or passwords for the disclosing party�s on-line technical support. If such access is provided, it shall only be for purposes of performing in accordance with this Section 5.0. The receiving party shall not license, transfer, sell, lease, loan, distribute, disclose, or otherwise provide the receiving party's technical support database, or any portion thereof, to any third party, unless agreed to in writing in advance by the disclosing party.

          C.   Service Training - Each party may, at its sole discretion, provide service training to the other party free of charge to enable the trained party to diagnose and troubleshoot basic service issues.

          D.  Confidentiality - It is expected that certain information which the parties may exchange hereunder may be considered confidential or proprietary by the disclosing party and may be designated by the disclosing party as "Confidential Information" in accordance with Section 6.0 below. Each party recognizes the value and importance of the protection of the other's Confidential Information. All Confidential Information of one party disclosed to the other party shall remain solely the property of the disclosing party, and its confidentiality shall be maintained and protected by the other party in accordance with the terms of Section 6.0 below.

5.5     Proprietary Rights; Relationship Of Parties

          A.  Proprietary Rights - EMC retains all right, title, and interest in and to the EMC Product(s) and any and all EMC technical support databases, worldwide copyrights, patents, trademarks, trade secrets, know-how and other proprietary rights therein. Developer retains all right, title, and interest in and to the Developer Product and any and all Developer technical support databases, worldwide copyrights, patents, trademarks, trade secrets, know-how and other proprietary rights therein. No right to make, use, sell, offer to sell, repair, maintain, decompile, reverse engineer, or in any way modify the products of the other party is granted or created herein, nor is any license or right to use or otherwise enjoy the patents, copyrights, trademarks, trade secrets, or other intellectual property rights of the other party.

          B.   Relationship - Nothing herein shall be construed to place either party in the relationship of legal representative, partner, joint venturer, principal, or agent of the other, and neither party shall have the power to obligate or bind the other in any manner. Each party is solely responsible for its own employees, including terms of employment, wages, hours, required insurance, and daily direction and control. Each party shall assume and be responsible for its own costs and expenses which may be incurred in the performance of its obligations hereunder.

5.6     EMC Customer Support Center Contacts � The contact points for EMC are available at the EMC Global Service Alliance portal and accessible from the EMC URL � https://powerlink.emc.com/ using an access code provided by EMC.

5.7     Developer Customer Support Center Contacts � The contact points for Developer are set forth in the Initiative Schedule.

6.0    CONFIDENTIALITY

6.1     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.

6.2     Publicity � Except as set forth below, Developer 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 Developer�s name and logo in any list of EMC Velocity2 Technology & ISV Program members without prior approval, providing EMC complies with Developer's then current logo guidelines as provided by Developer.

7.0    TERM AND TERMINATION

7.1     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.

7.2     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 Developer, with such termination to be effective immediately, if Developer 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. Developer shall promptly notify EMC in the event Developer so merges, is acquired or otherwise undergoes a change in control.

7.3     Obligations On Termination Under Sub-Section 7.1 Or 7.2 - Upon giving or receiving notice of termination under sub-section 7.1 or 7.2, Developer shall, within ten (10) business days, pay to EMC all amounts owed to EMC, if any, and cease making use of any printed material, trademark, trade name or logo identified with EMC, as pertains to this Agreement, except in connection with existing copies of the Developer Product. The termination of this Agreement pursuant to sub-section 7.1 or 7.2 shall not terminate Developer�s license to use existing versions of the Developer Product, and Developer shall retain a non-exclusive, worldwide license to use the then-current version of the Development Kit internally (in object code form only) for a continued maintenance period of two (2) years for the sole purpose of maintaining existing versions of the Developer Product so long as there has not been a breach of the licenses with EMC. On expiration of the continued maintenance period or at the time the notice of termination is received if the Developer has not made the Developer Product that uses the Development Kit technology generally available to customers, Developer will immediately discontinue use of the Development Kit, and within ten (10) days thereafter, shall return or destroy such Development Kit, all copies and modifications of Development Kit contents (including EMC Interface Definition) made by Developer, including any copies of EMC Interface Definition and/or Dynamic Link Libraries embedded in or used in connection with the Developer Interface Module and/or Developer Product, and any related materials in its possession, and certify in writing to EMC that all such have been returned to EMC or destroyed and that no further use of the Development Kit or any copies, modifications or other derivative works or portions thereof is being made by Developer.

7.4     Termination For Default - Upon occurrence of any of the following acts or events, Developer 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 Developer by written notice thereto, with such termination to be effective immediately:

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

          B.   Developer makes intentional and/or malicious misrepresentations about EMC, the Developer Product, the Development Kit, the EMC Product, EMC storage systems, EMC software, or this Agreement.

7.5     Obligations On Termination Under Sub-Section 7.4 - Except as expressly continued in writing by EMC, all rights and licenses granted to Developer under this Agreement shall terminate upon termination of this Agreement under sub-section 7.4. Upon receiving notice of termination of this Agreement under sub-section 7.4, Developer shall within ten (10) business days after receiving such notice of termination:

          A.  Develop a new version of the Developer Product which eliminates from the Developer Product all EMC Information and modified or unmodified EMC Interface Definition, including but not limited to all calls to EMC Product, and replace all copies of the Developer Product in its possession;

          B.   Cease making use of any printed material, trademark, trade name or logo identified with EMC as pertains to this Agreement or Initiative Schedule; and

          C.   Return or destroy the Development Kit, all copies and modifications of the contents thereof (including EMC Interface Definition) made by Developer, including any copies of EMC Interface Definition embedded in the Developer Product, and any related materials in its possession, and certify in writing to EMC that all such have been returned to EMC or destroyed and that not further use of the Development Kit or any copies, modifications or other derivative works of any and all portions of the Development Kit is being made by Developer.

7.6     Survival - Sections 1.0, 3.2, 3.3, 3.4, 3.5, 4, 6.0, 7.0, 8.0, 9.0, and 11.0 of this Agreement shall survive the termination or expiration of this Agreement.

8.0    WARRANTIES

8.1     Conformance With Specifications - EMC warrants that the software in the Development Kit will perform substantially in accordance with the applicable EMC written specifications and documentation, for a ninety (90) day period from delivery to Developer, under normal use (the �Warranty�). The Warranty extends only to Developer and is contingent upon proper use thereof in accordance with the applicable EMC documentation.

8.2     Remedy � EMC�s sole obligation and Developer�s sole remedy for breach of the Warranty shall be that EMC will either repair or replace, at EMC�s option, software included in the Development Kit that is not performing substantially in accordance with its written specifications. EMC will use good faith and commercially reasonable efforts to accomplish the repair or replacement under the Warranty after notification from Developer of the defect, but if EMC is unable to do so after a reasonable period of time, Developer shall discontinue all use of and return to EMC, and EMC shall accept the return of, such Development Kit and all copies or portions thereof, and neither party shall thereafter have further recourse or obligation under the Warranty. EMC makes no warranty that all deviations from the Warranty can be corrected or eliminated.

8.3     No Other Warranties - EXCEPT AS EXPRESSLY STATED IN SECTION 8.0, THE DEVELOPMENT KIT IS PROVIDED �AS IS�, EMC MAKES NO OTHER EXPRESS WARRANTIES, WRITTEN OR ORAL, AND ALL OTHER WARRANTIES ARE SPECIFICALLY EXCLUDED, INCLUDING BUT NOT LIMITED TO THE IMPLIED WARRANTY OF MERCHANTABILITY, FIT-NESS FOR PARTICULAR PURPOSE, OR NONIN-FRINGEMENT, AND ANY WARRANTY ARISING BY STATUTE, OPERATION OF LAW, COURSE OF DEAL-ING OR PERFORMANCE OR USAGE OF TRADE.

9.0    LIMITATIONS OF LIABILITY AND INDEMNITIES

9.1     Limits Of Liability � EXCEPT AS OTHERWISE PROVIDED IN SECTION 8.0. ABOVE, EMC�S TOTAL LIABILITY AND DEVELOPER�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 6.1 OR DEVELOPER�S BREACH OF THE LICENSE GRANTED IN SECTION 3.0, NEITHER PARTY SHALL HAVE LIABILITY TO THE OTHER FOR ANY SPECIAL, CONSEQUENTIAL, EXEMPLARY, INCIDENTAL OR INDIRECT DAM-AGES (INCLUDING, BUT NOT LIMITED TO, LOSS OF PROFITS, REVENUES, DATA AND/OR USE) ARISING OUT OF OR IN CONNECTION HEREWITH OR THE USE OR PERFORMANCE OF THE DEVELOPMENT KIT OR DEVELOPER PRODUCT. EVEN IF ADVISED OF THE POSSIBILITY THEREOF. DEVEL-OPER SHALL NOT BRING ANY CLAIM ARISING UNDER THIS AGREEMENT MORE THAN EIGHTEEN (18) MONTHS AFTER SUCH CLAIM HAS ACCRUED.

9.2     Developer Indemnity - Developer shall indemnify, defend and hold EMC harmless from all losses, costs, liabilities and expenses incurred by EMC which arise out of any claim (except claims that unmodified the Development Kit or Logo(s) infringes the intellectual property of a third party) that arises out of Developer�s acts or omissions provided (i) EMC has notified Developer promptly in writing of any such claims; (ii) Developer shall have sole control of the de­fense of such claims and all negotiations for their settlement and compromise; and (iii) EMC shall reasonably cooperate with Developer in the defense or settlement of such claims.

10.0  USE OF LOGO(S)

10.1   Grant Of Logo License � Subject to and expressly conditioned upon compliance with the terms and conditions of this Agreement, EMC grants Developer 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 Developer is a participant in the EMC Velocity2 Technology & ISV Program, but not in connection with any specific EMC Product. 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.

10.2   Ownership Of Logo(s) � Developer 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. Developer shall do nothing inconsistent with such ownership, and agrees that all use thereof by Developer shall inure to the benefit of EMC. Nothing in this Agreement gives Developer 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. Developer 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 Developer�s product names, service names, company names, domain names, or any other similar designations. Developer�s use of any Logo inures to the sole benefit of EMC. If, at any time, Developer 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, Developer shall immediately and at no expense to EMC assign such rights, registration or applications to EMC, along with any and all associated goodwill.

10.3   Quality Standards And Review - Developer 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 Developer 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. Developer shall provide EMC with representative samples of all Developer materials displaying the Logo upon EMC�s request. If EMC determines that Developer is using the Logo in a manner that is or may be damaging to EMC�s interests or reputation, or that Developer�s materials are not in compliance with EMC�s guidelines for Logo use, Developer shall promptly make all changes required by EMC to bring Developer�s use into compliance.

10.4   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, Developer shall promptly cease using all non-complying materials and make all changes necessary to bring Developer�s materials into compliance with any new or modified Logo(s) and any new or modified usage guidelines. Upon written notice from EMC, Developer 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).

10.5   Infringement � If Developer becomes aware of any unauthorized or inappropriate use of the Logo(s) by any third party, Developer 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).

10.6   Termination Of License � Developer�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 Developer�s license to use the Logo upon thirty (30) days written notice to Developer in the event of (i) EMC�s decision to terminate the Logo program; or (ii) any breach of any obligation of Developer under this Section 10.0 which breach is not fully cured to EMC�s satisfaction.

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

10.8   Equitable Relief � Developer agrees that Developer�s misuse of the Logo(s) or breach of its obligations under this Section 10.0 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 Devel­oper�s Logo misuse or breach, including injunctive relief.

10.9   Additional Logo License Grants � If EMC has previously granted, or subsequently grants, Developer 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.

11.0  GENERAL

11.1   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.

11.2   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 or providing Development Kits or other products to  competitors of the other party, provided that in so doing, such party does not breach its obligations under Section 6.1.

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

11.4   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.

11.5   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) Developer, addressed to the attention of the President with copies to the Developer�s 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.

11.6   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.

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

11.8   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.

Schedule A

Initiative Schedule

 

This Initiative Schedule is hereby attached to and incorporated into the EMC Velocity2 Technology & ISV Program CAS Specialty Agreement (the �Agreement�) between EMC Corporation and the Developer identified in the Agreement (the �Developer�) and is effective as of the Effective Date of the Agreement.

 

Part 1 - EMC Development Kit

The Development Kit consists of  the software and documentation associated with the following API:

Centera API: The Centera API Development Kit contains programming language interface routines for UNIX and Windows for performing functions such as Store, Retrieve, Delete, and Query for data objects resident on Centera storage systems. All applications must use this API to read, delete and write to Centera.  Applications can also use the API to set and read metadata such as retention period and other XML-based information uniquely associated with each data object.  The kit contains the server-resident application libraries in object code form, code samples, and all related documentation.

Part 2 � Developer Product

 

Developer Product Name: As specified in answer to Question 1 of the EMC Velocity2 Technology & ISV Program License Application Form.

 

Developer Product Overview: As specified in answer to Question 1 of the EMC Velocity2 Technology & ISV Program License Application Form.

 

Supported Operating Systems:  As specified in answer to Question 1 of the Centera License Application Form.

 

Benefits Of Integration To Customers, Developer, And EMC:  As specified in answer to Question 3 of the Centera License Application Form.

Part 3 � Developer Contact Information

Developer Technical/Development Contact (will receive updates to EMC Development Kit(s):  As specified in answer to Question 4 of the Centera License Application Form.

Developer Partnership/Alliance Contact (will receive updates to EMC terms and conditions):  As specified in answer to Question 4 of  the Centera License Application Form.

Developer Support Center Information and Contact Procedures:  As specified in answers to Questions 5 and 6 of the Centera License Application Form.

Part 4 � Obligations of the Parties - EMC Velocity2 Technology & ISV Program CAS Specialty

4.1   Membership Requirements and Benefits - Unless this Initiative Schedule is otherwise terminated in accordance with Section 7.0 of the Agreement, as of the Effective Date for this Agreement the Developer is a member the EMC Velocity2 Technology & ISV Program CAS Specialty.   The EMC Velocity2 Technology & ISV CAS Specialty offers a tiered model with four tiers (Associate, Advantage, Premier, and Signature) that reflects the degree of integration with EMC Centera and the success the Developer has achieved in generating Centera revenue. EMC may change the requirements and benefits associated with the four tiers from time to time.  The requirements and benefits are described in the EMC Velocity2 Technology & ISV Program CAS Specialty Data Sheet, a copy of which is available through the EMC Velocity2 Technology & ISV Program portal accessible by using the EMC URL https://powerlink.emc.com/.

4.2   Use of Logo and Announcement and Listing of Membership - After the Developer completes the integration with the Centera API and Centera Engineering approves the inclusion of the Developer Product on the Centera Integration Matrix, then

(i)    Developer may use the EMC Velocity2 Technology & ISV Program Logo only in the manner provided in this Agreement.

(ii)   Developer may announce its participation in the EMC Velocity2 Technology & ISV Program CAS Specialty and EMC shall support Partner in the preparation of such an announcement. Any and all such announcements shall be submitted to EMC for approval and shall only be made with EMC�s written consent. However, EMC shall have no obligation to make any public announcements of its own.

(iii)    Developer may list their membership in the EMC Velocity2 Technology & ISV Program CAS Specialty on Developer�s internet web site and provide hypertext link to EMC�s internet website. Any and all references to EMC and EMC Product(s) on Partner�s web site shall only be made with EMC�s written consent.