﻿FUSION-IO END-USER LICENSE AGREEMENT (9.19.11)

IMPORTANT – PLEASE READ CAREFULLY BEFORE INSTALLING OR USING THIS SOFTWARE PRODUCT:  This end-user license agreement (“EULA”) is a legal agreement between you (either an individual or the entity you represent) (“you”) and Fusion-io, Inc. (“Fusion-io”) that governs your use of the software product, user guide, and related documentation (collectively, the “Software”).

RIGHTS IN THE SOFTWARE ARE OFFERED ONLY ON THE CONDITION THAT YOU AGREE TO ALL TERMS AND CONDITIONS OF THIS EULA. BY INSTALLING, COPYING, DOWNLOADING, OR OTHERWISE USING THE SOFTWARE, YOU AGREE TO BE BOUND BY THIS EULA. IF YOU DO NOT ACCEPT THIS EULA, DO NOT INSTALL, DOWNLOAD, OR OTHERWISE USE THE SOFTWARE.

1.	License to the Software.  Subject to the restrictions set forth in this EULA, Fusion-io grants you a non sub-licensable, nontransferable, nonexclusive, limited license during the term of this EULA to: (a) use one copy of the Software in connection with the Fusion-io hardware product that corresponds with the Software; and (b) make a single copy of the Software for backup or archival purposes only, as long as the copy contains all of the original proprietary notices.

2.	Restrictions on Use.  You may not modify the Software or disable any licensing or control feature of the Software.  You may not rent, lease, sublicense, sell, assign, loan, or otherwise transfer the Software or any of your rights and obligations under this EULA.  You may not remove or destroy any copyright notices or other proprietary markings from the Software.  Except to the extent expressly permitted by applicable law, you may not alter, modify, adapt, reverse-engineer, disassemble, or decompile the Software, merge the Software into another program, or create derivative works based on the Software.  You may not modify, alter, or change the configuration parameters of the Software to deviate from Fusion-io’s published configuration parameter settings.  You may not use the Software to develop any product having the same primary function as the Software.  Additional restrictions on use may appear in the user documentation.

3.	Third Party Software.   The Software may contain or be distributed with third party software covered by an open source software license (“Open Source Software”) or other third party software (“Third Party Software”), which may be covered by a different license.  If Open Source Software is included, the terms and conditions of this license do not apply to the Open Source Software.  If Third Party Software is included, the terms and conditions of this license may not apply to Third Party Software.  Information concerning the inclusion of Open Source Software and Third Party Software, if any, and the notices, license terms, and disclaimers applicable to that software are generally contained in a corresponding license file identified with file names such as “notice,” “license,” “license.txt,” “readme,” “readme.txt,” or “copying”; you should contact Fusion-io support if you cannot find any Open Source Software or Third Party Software license.  If the Open Source Software licenses include a license that provides for the availability of source code (e.g., the GNU General Public License) and the corresponding source code is not included with the Software, check Fusion-io’s product support pages to learn how to obtain such source code.

4.	Reservation of Rights.  The license granted to you in Section 1 is not a transfer or sale of Fusion-io’s or its suppliers’ ownership rights in or to the Software.  Except for the license granted in Section 1, Fusion-io and its suppliers retain all right, title, and interest (including all intellectual property rights) in and to the Software.  The Software is protected by applicable intellectual property laws, including United States patent and copyright laws and international property laws and treaties.  Fusion-io and its suppliers reserve all rights not expressly granted to you in this EULA.

5.	Limited Warranty and Disclaimer.  Fusion-io warrants that, for a period of 90 days from the date the Software is first installed, when used with a recommended hardware configuration, the Software will perform in substantial conformance with the documentation supplied with the Software.  EXCEPT AS SET FORTH IN THE FOREGOING LIMITED WARRANTY, FUSION‑IO AND ITS SUPPLIERS DISCLAIM ALL WARRANTIES AND REPRESENTATIONS, WHETHER EXPRESS, IMPLIED, OR OTHERWISE, INCLUDING BUT NOT LIMITED TO ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, QUALITY, ACCURACY, TITLE, QUIET ENJOYMENT, AND NON-INFRINGEMENT. FUSION‑IO DOES NOT WARRANT THAT THE SOFTWARE IS ERROR-FREE OR THAT THE SOFTWARE WILL OPERATE WITHOUT INTERRUPTION.  THE SOFTWARE IS NOT DESIGNED, INTENDED OR LICENSED FOR USE IN HAZARDOUS ENVIRONMENTS REQUIRING FAIL-SAFE CONTROLS, INCLUDING WITHOUT LIMITATION, THE DESIGN, CONSTRUCTION, MAINTENANCE OR OPERATION OF NUCLEAR FACILITIES, AIRCRAFT NAVIGATION OR COMMUNICATION SYSTEMS, AIR TRAFFIC CONTROL, AND LIFE SUPPORT OR WEAPONS SYSTEMS.  FUSION‑IO SPECIFICALLY DISCLAIMS ANY EXPRESS OR IMPLIED WARRANTY OF FITNESS FOR SUCH PURPOSES.

6.	Upgrades.  To use Software provided by Fusion-io as an upgrade, update, or supplement (collectively “Upgrade”), you must first be licensed for the original Software identified by Fusion-io as eligible for the Upgrade. To the extent the Upgrade supersedes the original Software, you may no longer use such Software. This EULA applies to each Upgrade unless Fusion-io provides other terms with the Upgrade. In case of a conflict between this EULA and such other terms, the other terms will prevail.

7.	Consent to Use of Data.  Fusion-io may collect technical information relating to your use of the Software and Fusion-io products. You grant Fusion-io and its contractors a perpetual, irrevocable right to use and disclose non-identifiable information relating to your use of the Software and Fusion-io products, as long as any disclosed information does not include a key or other mechanism that would enable the information to be re-identified.

8.	Audit.  You agree that Fusion-io may audit your use of the Software for compliance with these terms at any time, upon reasonable notice.  If such an audit reveals any use of the Software by you other than in full compliance with the terms of this EULA, you will reimburse Fusion-io for all reasonable expenses related to such audit in addition to any other liabilities you may incur as a result of such non-compliance.

9.	Termination.  This EULA will be effective upon installation of the Software and will terminate upon the earlier of:  (a) your failure to comply with any term of this EULA; or (b) your return, destruction, or deletion of all instances and copies of the Software in your possession.  Upon termination of this EULA, at Fusion-io’s request, you will certify in writing to Fusion-io that all instances and copies of the Software, or any portion thereof, have either been returned to Fusion-io or otherwise destroyed or deleted from any of your computers or storage devices.  Fusion-io’s rights and your obligations will survive the termination of this EULA.

10.	 Limitation of Liability.  Notwithstanding any damages that you might incur, the entire liability of Fusion-io and its suppliers under this EULA and your exclusive remedy under this EULA will be limited to the greater of the amount actually paid by you for the Software or U.S. $50.00. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT WILL FUSION-IO OR ITS SUPPLIERS BE LIABLE FOR ANY SPECIAL, INCIDENTAL, INDIRECT, OR CONSEQUENTIAL DAMAGES (INCLUDING DAMAGES FOR LOST PROFITS, LOST DATA, BUSINESS INTERRUPTION, PERSONAL INJURY, OR LOSS OF PRIVACY) RELATED IN ANY WAY TO THE USE OF OR INABILITY TO USE THE SOFTWARE, EVEN IF FUSION-IO OR ANY SUPPLIER HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES AND EVEN IF THE ABOVE REMEDY FAILS OF ITS ESSENTIAL PURPOSE. Some states or other jurisdictions do not allow the exclusion or limitation of incidental or consequential damages, so the above limitation or exclusion may not apply to you.

11.	U.S. Government Restricted Rights.  If the Software is licensed for use by the United States or for use in the performance of a United States government prime contract or subcontract, you agree that the Software is delivered as:  (a) “commercial computer software” as defined in DFARS 252.227-7013, Rights in Technical Data - Noncommercial Items (Oct 1988), DFARS 252.227-7014 Rights in Noncommercial Computer Software and Noncommercial Computer Software Documentation (Jun 1995), and DFARS 252.211-7015 Technical Data Commercial Items (May 1991); (b) as a “commercial item” as defined in FAR 2.101; or (c) as “restricted computer software” as defined in FAR 52.227-19, Commercial Computer Software—Restricted Rights (Jun 1987); whichever is applicable.  The use, duplication, and disclosure of the Software by the Department of Defense shall be subject to the terms and conditions set forth in the accompanying license agreement as provided in DFARS 227.7202 (Oct 1998).  All other use, duplication and disclosure of the Software and Documentation by the United States shall be subject to the terms and conditions set forth in the accompanying license agreement and the restrictions contained in subsection (c) of FAR 52.227-19, Commercial Computer Software—Restricted Rights (Jun 1987), or FAR 52.227-14, Rights in Data -- General Alternative III (Jun 1987).  Contractor/licensor is Fusion-io, Inc. 2855 E. Cottonwood Parkway, Suite 100, Salt Lake City, UT 84121.

12.	Governing Law.  This EULA is governed by the laws of the State of Utah without giving effect to principles of conflict of laws.  You hereby consent to the exclusive jurisdiction and venue of the state and federal courts sitting in Salt Lake County, Utah to resolve any disputes arising under this EULA.  In each case this EULA will be construed and enforced without regard to the United Nations Convention on the International Sale of Goods.

13.	Customer Reference.  You hereby grant Fusion-io the right to use your trade name or your corporate logo or both in connection with Fusion-io’s promotional materials and website solely to identify you as a customer of Fusion-io.

14.	Export Laws.  You will comply with all laws, rules, and regulations (a) applicable to the export or import of the Software, or (b) restricting the use of the Software, including any restrictions on nuclear, chemical, or biological weapons proliferation.

15.	No Waiver; Authorized Representatives.  The failure or delay of Fusion-io to exercise any of its rights under this EULA or upon any breach of this EULA will not be or be deemed a waiver of those rights or of the breach.  No Fusion-io dealer, agent, or employee is authorized to make any amendment to this EULA unless such amendment is in writing and signed by a duly authorized representative of Fusion-io.

16.	Entire Agreement.  This EULA contains the complete agreement between the parties with respect to the subject matter hereof, and supersedes all prior or contemporaneous communications, agreements, and understandings relating to the Software, whether oral or written.  You agree that any varying or additional terms contained in any purchase order or other written notification or document issued by you in relation to the Software licensed under this EULA will be of no effect.  If any provision of this EULA is held by a court of competent jurisdiction to be contrary to law, that provision will be enforced to the maximum extent permissible, and the remaining provisions of this EULA will remain in full force and effect.

All questions concerning this EULA should be directed to: Fusion-io, Inc., 2855 E. Cottonwood Parkway, Suite 100, Salt Lake City, UT 84121; Attention: Legal Department.
