CUSTOMER SOFTWARE LICENSE
IMPORTANT: READ THIS LICENSE CAREFULLY
BEFORE INSTALLING OR USING SOFTWARE
THIS PRODUCT CONTAINS CERTAIN COMPUTER PROGRAMS AND OTHER PROPRIETARY MATERIAL, THE USE OF WHICH IS SUBJECT TO THIS END USER SOFTWARE LICENSE AGREEMENT. THIS LICENSE IS ENFORCEABLE EVEN IF YOU HAVE NOT GIVEN YOUR WRITTEN APPROVAL. INSTALLATION AND/OR USE OF THIS SOFTWARE INDICATES YOUR ACCEPTANCE OF THIS AGREEMENT IN ITS ENTIRETY. BY THE USE AND/OR INSTALLATION OF THIS PRODUCT, YOU ACCEPT ALL OF THE TERMS STATED HEREIN. IF YOU DO NOT AGREE WITH ALL THE TERMS, YOU MUST RETURN THE UNUSED PRODUCT (S), INCLUDING ALL MANUALS AND DOCUMENTATION, TO NETWORK APPLIANCE, INC. (“NETAPP”). IF THE FOREGOING IS RETURNED WITH PROOF OF PAYMENT TO NETAPP WITHIN FIFTEEN (15) DAYS OF FIRST ACQUISITION, THEN YOU WILL RECEIVE A FULL REFUND.
1. LICENSE
Network Appliance, Inc. (“NetApp”) grants Customer a nonexclusive, worldwide license to use the accompanying software as specified herein in object code form (“Software”) solely for Customer’s business use, together with the accompanying documentation. Customer shall only use the Software on NetApp’s products, and in the manner specified in the user documentation. Customer has no right to receive any source code or design documentation relating to the Software. This License is personal to Customer and Customer shall not assign, transfer or sublicense this license without NetApp’s prior written approval; any attempt to do so shall be void. This license is further restricted to the particular protocols and accompanying documentation purchased hereunder.
2. RESTRICTIONS
NetApp shall retain title to the Software and the accompanying documentation and all copies and any derivative works thereof. Customer shall not make any copies of the Software except as reasonably required for backup purposes. Customer shall not, nor shall Customer allow any third party to: (a) decompile, disassemble, decrypt, extract, or otherwise reverse engineer or attempt to reconstruct, or discover any source code or underlying ideas, algorithms, or file formats of, or used in, the Software by any means whatever; or (b) remove or conceal any product identification, copyright or other notices contained in or on the Software or accompanying documents; or (c) modify the Software, incorporate it into or with other software, or create a derivative work of any part of the Software. Customer must not publish or provide any results of benchmark tests run on the Software to a third party without NetApp’s prior written consent.
The Software is NetApp’s confidential property and contains trade secrets. It is protected by copyrights, one or more U.S. patents issued or pending, and other applicable law. Customer must take adequate steps to protect the Software from unauthorized disclosure or use.
Customer shall permit NetApp or its licensors to audit Customer’s records, systems and usage connected with the software at reasonable times during regular business hours upon reasonable notice.
For software licensed by NetApp from third parties, Customer shall use such software only to interoperate or communicate with extended client implementations or protocols and not on a personal computer. Customer is required to have a Windows Client Access License dedicated to each unique electronic device that accesses or uses any NetApp CIFS license. For purposes of this NetApp license, a Windows Client Access License means a Client Access License for Microsoft Windows .NET server operating system product that Customer has acquired for use with a Microsoft Windows server operating system product that is used on a per-seat basis.
3. TERMINATION OF LICENSE
This License is effective until terminated. The License will terminate automatically if:
I) Customer fails to cure any material breach of this Agreement within thirty (30) days after such breach first occurs (or immediately in the case of a breach of Section 2 herein).
ii) Customer becomes insolvent, files, or has filed against it a petition under applicable bankruptcy or insolvency laws which is not dismissed within ninety (90) days; proposes any dissolution, composition or financial reorganization with creditors; makes an assignment for the benefit of creditors; or if a receiver, trustee or similar agent is appointed or takes possession with respect to any property or business of the defaulting party. The termination of this Agreement shall not relieve Customer from its obligations to immediately pay NetApp any sums accrued hereunder prior to such termination.
If Customer is using the Software for evaluation, the License expires thirty (30) days after Customer receives it.
Upon termination, Customer shall immediately cease all use of the Software, deinstall it, and return or destroy all copies of the Software and all portions thereof and the accompanying documentation and so certify to NetApp.
When Customer installs upgraded Software, Customer loses its license to use the previous version. Customer must discontinue using the previous version immediately upon installing the upgrade.
Except for the Use License granted in Section 1, Customer’s obligations under this Agreement shall survive termination. Termination is not an exclusive remedy and all other remedies will be available whether or not the License is terminated.
4. LIMITED WARRANTY AND DISCLAIMER
Subject to the conditions and limitations on liability stated in this Agreement, NetApp warrants for a period of ninety (90) days from Customer’s receipt of the Software: (a) that the Software will materially conform to NetApp’s accompanying documentation for such Software; and (b) that the media containing the Software (but not the Software itself) is free from physical defects. This warranty covers only problems that are reproducible and verifiable and does not cover software, or other items or any services provided by any persons other than NetApp or its authorized resellers or other agents. Maintenance and support, if any, are governed by a separate agreement. Software, which has been abused, misused, damaged in transport, modified, or subjected to unauthorized use, or installation, as determined by NetApp, shall void this warranty.
NETAPP’S LIABILITY WITH RESPECT TO THE SOFTWARE OR THE SOFTWARE’S PERFORMANCE UNDER ANY WARRANTY, NEGLIGENCE, STRICT LIABILITY OR OTHER THEORY IS LIMITED EXCLUSIVELY TO SOFTWARE REPAIR OR REPLACEMENT, AT NETAPP’S OPTION. THE SOFTWARE AND THE ACCOMPANYING DOCUMENTATION ARE OTHERWISE PROVIDED "AS IS" WITHOUT ANY WARRANTY INCLUDING, WITHOUT LIMITATION, WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR NONINFRINGEMENT. SOME JURISDICTIONS DO NOT ALLOW LIMITATIONS OF IMPLIED WARRANTIES; THESE LIMITATIONS MAY NOT APPLY TO CUSTOMER.
5. LIMITATIONS OF LIABILITY
NETAPP’S TOTAL LIABILITY FOR ANY DAMAGE OR CLAIM ARISING FROM LICENSING OR USE OF THE SOFTWARE OR THE ACCOMPANYING DOCUMENTATION IS CUSTOMER’S TOTAL PURCHASE PRICE FOR THE SOFTWARE. NETAPP IS NOT LIABLE FOR ANY INCIDENTAL, EXEMPLARY, SPECIAL OR CONSEQUENTIAL DAMAGES; LOST OR CORRUPTED DATA, LOSS OF PROFITS, SAVINGS, OR REVENUES; OR FOR ANY OCCURRENCE BEYOND ITS CONTROL.
WARNING: The hardware and software are not designed or intended for use in on-line control of equipment in hazardous environments such as the operation of nuclear facilities, aircraft, air traffic, aircraft navigation or aircraft communications, or in the design, construction, operation or maintenance of any nuclear facility, or in the operation or maintenance of any direct life support system. NetApp disclaims any express or implied warranty of fitness for such uses and shall not be liable for any costs, liabilities or damages resulting from the use of the hardware or software in such an environment. Customer agrees that it will not use or license the hardware or software for such purposes.
6. U.S. GOVERNMENT AND EXPORT REGULATIONS
If Customer is acquiring the Software and accompanying documentation on behalf of the U.S. Government, special provisions apply. If the Software is supplied to the Department of Defense (“DOD”), the Software is subject to “Restricted Rights,” as that term is defined in the DOD Supplement to the Federal Acquisition Regulations (“DFAR”) in paragraph 252.227-7013(c)(1). If the Software is supplied to any unit or agency of the United States Government other than DOD, the Government’s rights in the Software will be defined in paragraph 52.227-19(c)(1) or (2) of the Federal Acquisition Regulations (“FAR”), as applicable. Use, duplication, reproduction or disclosure by the Government is subject to such restrictions or successor provisions. Contractor/Manufacturer is: Network Appliance, Inc., 495 East Java Drive, Sunnyvale, CA 94089. Except as expressly licensed hereunder, all rights are reserved.
NetApp’s Software is subject to U.S. export control laws and may be subject to export or import regulations in other countries. Customer must comply with all applicable regulations and obtain licenses to export, re-export, or import the Software.
Both parties, at all times, must comply with all applicable laws, ordinances, statutes, rules, and regulations.
7. TRANSFERABILITY OF LICENSE
THIS LICENSE IS PERSONAL TO CUSTOMER. CUSTOMER SHALL NOT ASSIGN, SUBLICENSE OR TRANSFER THE LICENSE OR THE AGREEMENT WITHOUT NETAPP’S PRIOR WRITTEN APPROVAL; ANY ATTEMPT TO DO SO SHALL BE VOID.
8. Patent, Copyright and Proprietary Rights Indemnity.
NetApp shall, at its expense, defend and indemnify Customer for damages and reasonable costs incurred in any suit or claim brought against Customer alleging that the Products sold pursuant to this Agreement infringe any U.S. patent, copyright, trade secret or similar right provided that NetApp is promptly notified, rendered reasonable assistance by Customer as required, and permitted to direct the defense or settlement negotiations. NetApp shall have no liability for any infringing combinations arising from the integration of NetApp’s Products together with other products provided by Customer or any third party.
Should the use of Product by Customer be enjoined, or in the event NetApp wishes to minimize its potential liability hereunder, NetApp may, at its option, either: (i) substitute a fully equivalent non-infringing unit t; (ii) modify the infringing item so that it no longer infringes but remains functionally equivalent; (iii) obtain for Customer, at NetApp’s expense, the right to continue use of such item; or (iv) take back such infringing item or items and refund to Customer the purchase price paid therefor, less depreciation amortized on a straight line basis.
9. COMPLIANCE WITH LAWS.
Each party shall comply all applicable federal, state, local and foreign laws and ordinances including, but not limited to all export laws, restrictions and regulations of the Department of Commerce or other United States or foreign agency or authority, the Occupational Safety and Health Act of 1970 (29 U.S.C. Sections 651, 678), the Fair Labor Standards Act of 1938 (29 U.S.C. Sections 201-219), the Work Hours and Safety Act of 1962 (40 U.S.C. Sections 327, 333), the Equal Employment Opportunity (42 U.S.C. Sections 2000e, et seq.) and federal regulations governing affirmative action programs.
10. GENERAL
Any notice, report, approval or consent required or permitted by this Agreement shall be in writing. If any provision of this Agreement shall be adjudged by any court of competent jurisdiction to be unenforceable or invalid, that provision shall be limited or eliminated to the minimum extent necessary so that the obligations of the parties shall remain in full force and effect and enforceable. This Agreement shall be deemed to have been made in, and shall be construed pursuant to, the laws of the State of California and the United States excluding their conflicts of laws provisions. Customer agrees that a material breach of this Agreement by it would cause irreparable injury to NetApp for which monetary damages would not be an adequate remedy and that NetApp shall be entitled to equitable relief in addition to any remedies it may have hereunder or at law. Any amendments or waivers shall be effective only if made in writing by non-preprinted agreements clearly understood by both parties to be an amendment or waiver and signed by an authorized representative of each party . This Agreement is the final and complete Agreement between the parties relating to the license of the Software hereunder.