BOON STORAGE TECHNOLOGIES, INC.

SOFTWARE LICENSE AGREEMENT

NOTICE TO USER:

PLEASE READ THIS LICENSE AGREEMENT (“LICENSE AGREEMENT”) CAREFULLY BEFORE DOWNLOADING THE SOFTWARE. 

THIS LICENSE AGREEMENT IS A CONTRACT BETWEEN YOU (AS EITHER AN INDIVIDUAL OR A SINGLE ENTITY), AS “LICENSEE” AND BOON STORAGE TECHNOLOGIES, INC. (“BST”).  THIS LICENSE AGREEMENT COVERS YOUR USE OF THE “SOFTWARE” PRODUCT REFERRED TO BELOW.  BY PRESSING “ACCEPT,” OR BY OTHERWISE DOWNLOADING, ACCESSING OR OTHERWISE USING THE SOFTWARE YOU AGREE TO BE BOUND BY ALL THE TERMS AND CONDITIONS OF THIS LICENSE AGREEMENT.

IF YOU DO NOT AGREE TO THE TERMS OF THIS LICENSE AGREEMENT, DO NOT INSTALL OR USE THE SOFTWARE. 

1.       DEFINITIONS.

(a)       "Software" shall mean version 1.x of BST's software for Linux system, which is known as "SR5 Software RAID" (or any successor name to be designated by BST), including any and all upgrades, modified version or updates, and together with all related software components, associated media, printed materials, and "online" or electronic documentation.

(b)       "Documentation" shall mean the printed or online written reference material furnished to Licensee in conjunction with the Software, including, without limitation, instructions, testing guidelines, readme files and end user guides.

2. LICENSE GRANT, USE AND OWNERSHIP 

(a)      Limited License. Subject to the terms and conditions of this Agreement and the restrictions and limitations contained herein, BST hereby grants to Licensee a limited, non-exclusive, non-transferable license (without the right to sublicense) to use the Software in accordance with the Documentation solely for purposes of internal testing and evaluation and (ii) to use the Documentation provided with the Software in support of Licensee's authorized use of the Software. 

(b)      Restrictions; Limitations on Use. Licensee shall not copy or use the Software (including the Documentation) except as expressly permitted in this Agreement.  Without limiting the foregoing restriction, Licensee will not, and will not permit any third party to:  (i) sell, sublicense, rent, lease, grant a security interest in, or otherwise transfer rights to the Software or the accompanying Documentation; (ii) copy, modify, create derivative works of, translate, reverse engineer, decompile, disassemble, or otherwise reduce to human perceivable form any portion of the Software or accompanying Documentation; (iii) use the Software for Licensee's own product development or for any other commercial purpose; (iv) publish or disclose to any third party any performance data or test results, including without limitation, benchmark test results, relating to the Software (collectively "Performance Data"); or (v) copy Software except for archival or backup purposes, provided that all titles and trademarks, copyright, and restricted rights notices are reproduced on such copies.  

(c)      Evaluation Feedback. The purpose of this limited license is the testing and evaluation of the Software and Documentation. In furtherance of this purpose and in consideration of the license granted hereunder, Licensee shall have a continual duty and obligation to provide feedback to BST concerning the functionality and performance of the Software, including, without limitation, identifying potential errors and improvements. Such feedback will be provide in a manner provided by BST on its website for this purpose (e.g. an e-mail address).   Any feedback provided by Licensee and any other information License provides to BST with respect to the Software (collectively, “Feedback Information”) will be the property of BST.  Licensee agrees to assign, and hereby assigns, all right, title and interest worldwide in the Feedback Information and the related intellectual property rights to BST and agrees to assist BST, at BST’s expense, in perfecting and enforcing such rights.  Licensee agrees that there shall be no fee payable to Licensee for providing any Feedback Information and that the grant of the license to use the Software during the term hereof shall be the sole and exclusive compensation to the Licensee for performing the testing and evaluation services hereunder and for providing and assigning the Feedback Information. 

(d)       Ownership. BST shall own and retain all right, title and interest in and to the Intellectual Property Rights in the Software and Documentation and any derivative works thereof, subject only to the limited license expressly set forth in Section 2(a) hereof. Licensee does not acquire any other rights, express or implied, in the Software. ALL RIGHTS NOT EXPRESSLY GRANTED HEREUNDER ARE RESERVED TO BST. As used herein, "Intellectual Property Rights" shall mean all intellectual property rights, including, without limitation, patent, copyright, trademark, and trade secret.   

(e)       No Support Services. BST is under no obligation to support the Software in any way or to provide any updates or error corrections to Licensee. In the event that BST, in its sole discretion, supplies any update or modified version to Licensee, such update or modified version shall be deemed Software hereunder and shall be subject to the terms and conditions of this Agreement.

3. TERM AND TERMINATION. 

Licensee's rights with respect to the Software will terminate upon automatic expiration of the Software based on the system date. Either party may terminate this Agreement at any time for any reason or no reason by providing the other party advance written notice thereof. Upon any expiration or termination of this Agreement, the rights and licenses granted to Licensee under this Agreement shall immediately terminate, and Licensee shall immediately cease using, and will return to BST (or, at BST's request, destroy), the Software, Documentation, and all other tangible items in Licensee's possession or control that are proprietary to or contain Confidential Information. The rights and obligations of the parties set forth in Sections 2(b) 2(c), 2(d), 2(e), 2(f), 3, 4, 5, 6 and 7 shall survive termination or expiration of this Agreement for any reason.

4. CONFIDENTIALITY. 

"Confidential Information" shall mean all trade secrets, know-how, inventions, techniques, processes, algorithms, software programs, hardware, schematics, and software source documents relating to the Software, and other information provided by BST, whether disclosed orally, in writing, or by examination or inspection, other than information which Licensee can demonstrate (i) was already known to Licensee, other than under an obligation of confidentiality, at the time of disclosure; (ii) was generally available in the public domain at the time of disclosure to Licensee; (iii) became generally available in the public domain after disclosure other than through any act or omission of Licensee; (iv) was subsequently lawfully disclosed to Licensee by a third party without any obligation of confidentiality; or (v) was independently developed by Licensee without use of or reference to any information or materials disclosed by BST or its suppliers. Confidential Information shall include without limitation the Software, Documentation, Feedback Information Performance Data, and any updates. Licensee shall not use any Confidential Information for any purpose other than as expressly authorized under this Agreement. In no event shall Licensee use the Software or any Confidential Information to develop, manufacture, market, sell, or distribute any product or service. Licensee shall limit dissemination of Confidential Information to its employees who have a need to know such Confidential Information for purposes expressly authorized under this Agreement. In no event shall Licensee disclose any Confidential Information to any third party. Without limiting the foregoing, Licensee shall use at least the same degree of care that it uses to prevent the disclosure of its own confidential information of like importance, but in no event less than reasonable care, to prevent the disclosure of Confidential Information.

5. LIMITATION OF LIABILITY. 

IT IS UNDERSTOOD THAT THE SOFTWARE IS PROVIDED WITHOUT CHARGE FOR LIMITED EVALUATION PURPOSES. ACCORDINGLY, THE TOTAL LIABILITY OF BST AND ITS SUPPLIERS ARISING OUT OF OR RELATED TO THIS AGREEMENT SHALL NOT EXCEED IN THE AGGREGATE THE SUM OF THE FEES LICENSEE PAID FOR THIS LICENSE (IF ANY). TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT SHALL BST OR ITS SUPPLIERS HAVE LIABILITY FOR ANY INDIRECT, INCIDENTAL, SPECIAL, OR CONSEQUENTIAL DAMAGES (INCLUDING, WITHOUT LIMITATION, DAMAGES FOR LOSS OF BUSINESS PROFITS, BUSINESS INTERRUPTION, OR LOSS OF BUSINESS INFORMATION), HOWEVER CAUSED AND ON ANY THEORY OF LIABILITY, EVEN IF BST AND ITS SUPPLIERS HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THESE LIMITATIONS SHALL APPLY NOTWITHSTANDING ANY FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY.

6. WARRANTY DISCLAIMER. 

LICENSEE ACKNOWLEDGES THAT THE SOFTWARE IS PROVIDED FOR LIMITED EVALUATION ONLY, AND THE THAT SOFTWARE, DOCUMENTATION, AND ANY UPDATES MAY CONTAIN ERRORS, BUGS, OMISSIONS AND DEFICIENCIES OF VARIOUS KINDS, WHICH MAY NOT OR CANNOT BE CORRECTED BY BST, AND WHICH COULD CAUSE SYSTEM FAILURE, DATA LOSS OR CORRUPTION WHEN THE SOFTWARE IS INSTALLED OR USED. LICENSEE ACCEPTS AND FULLY ASSUMES THE RISK OF ANY OF THE FOREGOING OCCURRENCES. 

THE SOFTWARE, THE DOCUMENTATION, AND ANY UPDATES ARE PROVIDED "AS IS" WITHOUT WARRANTY OF ANY KIND, WHETHER EXPRESS, IMPLIED, STATUTORY, OR OTHERWISE.  BST AND ITS SUPPLIERS SPECIFICALLY DISCLAIM ALL IMPLIED WARRANTIES OF MERCHANTABILITY, NONINFRINGEMENT, AND FITNESS FOR A PARTICULAR PURPOSE. 

Licensee acknowledges that any research or development that it performs regarding the Software or any product associated with the Software is done entirely at Licensee's own risk.   LICENSEE WILL HOLD BST HARMLESS FROM ANY CLAIMS BASED ON LICENSEE’S INSTALLATION OR USE OF THE SOFTWARE FOR ANY PURPOSES. 

7. OTHER PROVISIONS 

(a)      Governing Law. This Agreement, and all disputes arising out of or related thereto, shall be governed by and construed under the laws of the State of California without reference to conflict of laws principles. All such disputes shall be subject to the exclusive jurisdiction of the state and federal courts located in Orange County, California, and the parties agree and submit to the personal and exclusive jurisdiction and venue of these courts.  

(b)      Assignment. Licensee shall not assign this Agreement or any rights or obligations hereunder, directly or indirectly, whether by operation of law, merger, acquisition of stock or assets, or otherwise, without the prior written consent of BST. Subject to the foregoing, this Agreement shall inure to the benefit of and be binding upon the parties and their respective successors and permitted assigns. 

(c)      Export Regulations. Licensee understands that BST is subject to regulation by the U.S. government and its agencies, which prohibit export or diversion of certain technical products and information to certain countries and individuals. Licensee warrants that it will comply in all respects with all export and re-export restrictions applicable to the technology and documentation provided hereunder.  

(d)      U.S. Government End-Users.  The Software and Documentation are each a "commercial item," as that term is defined in 48 C.F.R. 2.101 (Oct. 1995), consisting of "commercial computer software" and "commercial computer software documentation," (as applicable) as such terms are used in 48 C.F.R. 12.212 (Sept. 1995). Consistent with 48 C.F.R. 12.212 and 48 C.F.R. 227.7202-1 through 227.7202-4 (June 1995), all U.S. Government End Users acquire the Software and Documentation with only those rights set forth herein. 

(e)      Modification. This is the entire agreement between the parties relating to the subject matter hereof and all other terms are rejected. No waiver or modification of this Agreement shall be valid unless in writing signed by each party. The waiver of a breach of any term hereof shall in no way be construed as a waiver of any term or other breach hereof. If any provision of this Agreement is held by a court of competent jurisdiction to be contrary to law the remaining provisions of this Agreement shall remain in full force and effect.  

(f)    Severability. If any provision of this Agreement is held to be unenforceable, this Agreement will remain in effect with the provision omitted, unless omission of the provision would frustrate the intent of the parties, in which case this Agreement will immediately terminate.