NexentaStor Community Edition EULA

Nexenta Storage Appliance (NexentaStor) version 3.x

End User Evaluation License Agreement (EUELA)

=======================================================================

Last updated:  May 18, 2011

BY DOWNLOADING AND INSTALLING, COPYING OR OTHERWISE USING THE SOFTWARE, YOU AGREE TO BE BOUND BY THE TERMS OF THIS EUELA. IF YOU DO NOT AGREE TO THE TERMS OF THIS EUELA, YOU MAY NOT DOWNLOAD, INSTALL, COPY OR USE THE SOFTWARE.

1. DEFINITIONS

"Company" means Nexenta Systems, Inc.

"Product" means Nexenta Storage Appliance software (NexentaStor).

"Evaluation Product" means Product activated with Evaluation License Key.

"You" means the natural person or the entity that is agreeing to be bound by this EUELA, their employees and third party contractors that provide services to you.

"Open Source Software" means various open source software components licensed under the terms of applicable open source license agreements included in the materials relating to such software. Open Source Software is composed of individual software components, each of which has its own copyright and its own applicable license conditions.

"NexentaOS" means a complete GNU-based open source operating system available at http://www.nexenta.org

"Site" means Nexenta Systems, Inc. website: http://www.nexenta.com

2. TERMS AND CONDITIONS

2.1. Company grants You a non-exclusive, non-sublicensable, non-transferable license to use the Product on a single computer, subject to the terms and conditions of this EUELA and in accordance with the instructions, specifications and documentation provided with the Product (collectively, the "Documentation"). This license of Product may not be shared or used concurrently on different computers.

2.2. The Product may be activated with no-cost Evaluation License Key that can be obtained by registering the Product at http://www.nexenta.com/register-eval. You may use the Evaluation Product to evaluate the suitability of the Product for licensing on a for-fee basis.

2.3. NO TIME LIMITATION. The Evaluation Product is time unlimited. If after evaluation You wish to continue using the Evaluation Product, You may do so provided that You agree to the terms of this EUELA.

2.4. EIGHTEEN TERABYTES FREE. The Evaluation Product imposes a limit on the total USED storage space - total amount of appliance's storage occupied by data. This limit is: 18TB (eighteen terabytes). The Evaluation Product does not limit amount of free physical and/or virtual storage attached to the appliance.

2.5. Product Warranty Disclaimer. THE EVALUATION PRODUCT IS PROVIDED "AS IS" WITHOUT WARRANTY OF ANY KIND, WHETHER EXPRESS, IMPLIED, STATUTORY, OR OTHERWISE. Company BEARS NO LIABILITY FOR ANY DAMAGES RESULTING FROM USE (OR ATTEMPTED USE) OF THE PRODUCT.

2.6. You agree that You will NOT without the express written authorization of Company:

(a) copy, sell, sublicense, or otherwise transfer the Product to any third party;

(b) remove any titles, trademarks or trade names, copyright notices, legends, or other proprietary markings on the software in the Product;

(c)  except to the extent expressly permitted by applicable law, and to the extent that the Company is not permitted by that applicable law to exclude or limit the following rights, You will not decompile, disassemble, reverse engineer, or otherwise attempt to derive source code from the Product, in whole or in part.

2.7. NexentaOS software. The Product contains part of NexentaOS software, which in turn contains a variety of Open Source Software components. You can redistribute and/or modify the Open Source Software under the terms and conditions of the corresponding open source licenses. You may obtain a copy of the source code corresponding to the binaries for the Open Source Software from the NexentaOS home page at http://www.nexenta.org. You agree to comply with the applicable licenses and additional terms and notices of such Open Source Software components. Company makes no warranties or representations of any kind to You regarding Open Source Software components, or that the corresponding open source licenses may not change or be altered at any time.

2.8. SUPPORT AND SUBSCRIPTION SERVICES NOT INCLUDED. Company will not provide any support services under this EUELA. This EUELA does not give You any rights to any updates or upgrades to the Product or to any extensions or enhancements to the Product developed by Company at any time in the future. Company may offer support and subscription services separately, under the terms of a different License agreement.

2.9. Production Use.

The Product may only be used for development or evaluation purposes as described in this EUELA and may not be used in a production environment.

2.10. Company may update or discontinue the Product or revise the Documentation at any time without prior notice to You, and the Product and/or the Documentation may become unavailable to You even after an order is placed. All prices mentioned on the Company Site are subject to change without notice.

2.11. Product Descriptions; Pricing; Errors. Company attempts to be as accurate as possible and eliminate errors in the Product and on the Site. However, Company does not warrant that the Product, its descriptions, photographs, pricing or other content of the Site is accurate, complete, reliable, stable, defect free, current, or error-free. In the event of an error, whether on the Site or otherwise, Company reserves the right to correct such error at any time, and Your sole remedy in the event of such error is stop using the Product.

3. TERMINATION

3.1. Termination. Company may terminate this EUELA immediately and without notice if You fail to comply with any term of this EUELA.

3.2. Effect of Termination. In the event of termination, You must destroy all copies of the Nexenta Storage Appliance software (the Product).

4. LIMITATION OF LIABILITY

4.1. Company PROVIDES THE PRODUCT WITHOUT ANY WARRANTIES OF ANY KIND, EXPRESS, IMPLIED, STATUTORY, OR IN ANY OTHER PROVISION OF THIS EUELA OR COMMUNICATION WITH You. Company SPECIFICALLY DISCLAIMS ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NON- INFRINGEMENT.

4.2. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT WILL Company BE LIABLE FOR ANY LOST PROFITS OR BUSINESS OPPORTUNITIES, LOSS OF USE, BUSINESS INTERRUPTION, LOSS OF DATA, OR ANY OTHER INDIRECT, SPECIAL, INCIDENTAL, OR CONSEQUENTIAL DAMAGES UNDER ANY THEORY OF LIABILITY, WHETHER BASED IN CONTRACT, TORT, NEGLIGENCE, PRODUCT LIABILITY, OR OTHERWISE.

5. GENERAL

5.1. Governing Law.  This License Agreement shall be governed, construed and enforced in accordance with the laws of the United States of America and of the State of California.

5.2. Entire Agreement. This Agreement constitutes the entire and only agreement between the parties for Product and all other prior negotiations, representations, agreements, and understandings are superseded hereby.  No agreements altering or supplementing the terms hereof may be made except by means of a written document signed by the duly authorized representatives of the parties.

5.3. Waiver and Modification. No failure of either party to exercise or enforce any of its rights under this EUELA will act as a waiver of those rights. This EUELA may only be modified, or any rights under it waived, by a written document executed by the party against which it is asserted.

5.4. Severability. If any provision of this EUELA is found illegal or unenforceable, it will be enforced to the maximum extent permissible, and the legality and enforceability of the other provisions of this EUELA will not be affected.

5.5. United States Government End Users. For any Software licensed directly or indirectly on behalf of a unit or agency of the United States Government, this paragraph applies. Company's proprietary software embodied in the Product: (a) was developed at private expense and is in all respects Company's proprietary information; (b) was not developed with government funds; (c) is Company's trade secret for all purposes of the Freedom of Information Act; (d) is a commercial item and thus, pursuant to Section 12.212 of the Federal Acquisition Regulations (FAR) and DFAR Supplement Section 227.7202, Government's use, duplication or disclosure of such software is subject to the restrictions set forth by the Company.

5.6. Foreign Corrupt Practices Act. You will comply with the requirements of the United States Foreign Corrupt Practices Act (the "FCPA") and will refrain from making, directly or indirectly, any payments to third parties which constitute a breach of the FCPA. You will notify Company immediately upon Your becoming aware that such a payment has been made. You will indemnify and hold harmless Company from any breach of this provision.

5.7. Export Restrictions. You may not export or re-export the Product except in compliance with the United States Export Administration Act and the related rules and regulations and similar non-U.S. government restrictions, if applicable. The Product and accompanying documentation are deemed to be "commercial computer software" and "commercial computer software documentation" respectively, pursuant to DFAR Section 227.7202 and FAR Section 12.212(b), as applicable.

5.8. All disputes arising out of or relating to this EUELA will be exclusively resolved in accordance with the Commercial Arbitration Rules of the American Arbitration Association (the "AAA Rules") under confidential binding arbitration held in Santa Clara County, California. To the fullest extent permitted by applicable law, no arbitration under this EUELA will be joined to an arbitration involving any other party subject to this EUELA, whether through class arbitration proceedings or otherwise. Any litigation relating to this EUELA shall be subject to the jurisdiction of the Federal Courts of the Northern District of California and the state courts of the State of California, with venue lying in Santa Clara County, California.

5.9. Title. Company retains all right, title, and interest in and to the Software and the Software License Key and in all related copyrights, trade secrets, patents, trademarks, and any other intellectual and industrial property and proprietary rights, including registrations, applications, renewals, and extensions of such rights.

5.10. Contact Information. If You have any questions about this Trial Agreement, or if You want to contact Company for any reason, please email support@nexenta.com.