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END USER LICENSE AGREEMENT

 

IMPORTANT – READ CAREFULLY:  This End User License Agreement (“EULA”) is a legal agreement between You either as an individual or as an authorized representative of a business entity (hereafter referred to as “You” and/or “Your”), and NetApp, Inc. (“NetApp”).  NetApp is willing to license to You the NetApp software product accompanying this EULA, which includes, without limitation, computer software features, protocols, authorized updates and upgrades or other supplements to the software, images, music, text and/or animations incorporated into the software, media, printed materials, or online or electronic documentation, provided by NetApp or made available for download (collectively referred to as the “Software”).  Your download, installation and/or use of the Software constitutes acceptance of all of the terms stated herein.  If You do not agree with all of these terms, You must promptly return the Software to NetApp or the authorized reseller from which You obtained the Software.

 

1.         License Grant.  Subject to payment of the applicable fees and the limitations and restrictions set forth herein, NetApp and its licensors grant to You a non-exclusive, non-transferable, worldwide, limited license, without right of sublicense, to install and use the Software in object code form only on a host computer or storage controller for Your internal business use, in accordance with the terms contained within Your ordering documentation (Your “Software Entitlement”) or as specified in the user documentation accompanying the Software (the “Documentation”).  If the Software is licensed in a cluster, then You are licensed to use one (1) copy of the Software per cluster system.  Your license to the Software is further restricted to the particular protocols and Documentation licensed hereunder.  Use of the Software outside the scope of Your Software Entitlement or Documentation is unauthorized and shall constitute a material breach of this EULA and void the warranty and/or support obligations of which You may otherwise be entitled.

 

2.         License Restrictions.   For Software licensed to You for use on a storage controller or cluster, the license is for a specific controller or cluster identified by a unique serial number. If Software is licensed on a clustered system basis, then You shall not be permitted to decompile, split, breakup or reassign within a cluster any parts of such a cluster.  Subject to any express restrictions contained within Your Software Entitlement or Documentation, You shall not nor shall You 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 of any components used in the Software by any means whatever; (b) remove or conceal any product identification, copyright, proprietary, patent or other notices contained in or on the Software or Documentation; (c) use any “locked” or restricted feature, function, service, application, protocol, operation, or capability without first purchasing the applicable license(s) and/or obtaining a valid license enablement key from NetApp, even if such feature, function, service, application, protocol, operation or capability is technically achievable without a key; (d) sell, lease, rent, lend, sublicense, distribute or otherwise transfer in whole or in part the Software or the applicable license enablement key to another party or to a different storage controller or cluster; (e) modify the Software, incorporate it into or with other software, or create a derivative work of any part of the Software.  Your modification of the Software will breach this EULA, and such derivative work is and shall be owned entirely by NetApp or its licensors; You hereby assign and agree to assign to NetApp or the licensor of the Software all right, title and interest in and to said derivative work.  You agree to use Software which NetApp has embedded in the NetApp equipment (“Embedded Software”) solely as embedded in, and for execution on, NetApp equipment You originally purchased from NetApp or its authorized resellers. You acknowledge that the Software is not designed, licensed or intended for use in the design, construction, operation or maintenance of any nuclear facility, aircraft operation, air traffic control or life support system.  NetApp disclaims any express or implied warranty of fitness for such uses.

 

3.         Benchmark Results.  The results of any benchmark or comparison tests run on Software are considered to be the confidential information of NetApp. You may not publish or provide the results of any benchmark or comparison tests run on Software to any third party without the prior written consent of NetApp.

 

4.         Evaluation License.  The Software may be licensed to You for evaluation use, either through the activation of an evaluation Software license key or pursuant to Your corresponding order documentation (“Evaluation Software”).  If licensed to You for evaluation use, You have a non-exclusive, non-transferable, worldwide, limited license, without right of sublicense, to use the Evaluation Software and Evaluation Software license keys in a non-production environment, if applicable, for thirty (30) days from the date You receive the Evaluation Software or the evaluation period referenced within the order documentation.  Notwithstanding the foregoing, if You have licensed Single Mailbox Recovery (“SMBR”) Evaluation Software You are licensed to use the SMBR Evaluation Software for no more than sixty (60) days.  Your use of the Evaluation Software is authorized solely for the purpose of evaluating the suitability of the Evaluation Software for licensing on a for-fee basis.  The warranty offered below is not applicable to Evaluation Software licensed to You; the Evaluation Software is licensed to You “AS IS” without warranty of any kind, whether express, implied, statutory or otherwise.  NETAPP AND ITS LICENSORS BEAR NO LIABILITY FOR ANY DAMAGES RESULTING FROM USE (OR ATTEMPTED USE) OF THE EVALUATION SOFTWARE THROUGH AND AFTER EXPIRATION OF THE EVALUATION PERIOD.  NetApp has no duty to provide support of any kind to You with respect to Your use of the Evaluation Software.

 

5.         Intellectual Property Rights.  The Software and Evaluation Software are licensed, not sold, to You.  The Software and Evaluation Software are protected by intellectual property and copyright laws and treaties worldwide, and may contain trade secrets of NetApp or its licensors, who have and maintain exclusive right, title and interest in and to the Software and Evaluation Software, and reserve and retain all rights not expressly granted to You herein.  No right, title or interest in or to any trademark, service mark, logo or trade name of NetApp or its licensors is granted under this EULA.  All title and intellectual property rights in and to software content which is not contained in the Software, but may be accessed or used through use of the Software, is the product belonging to the respective content owner and may be protected by patents, intellectual property and copyright laws and treaties worldwide.  This EULA grants You no rights to such content, but use of such content may be governed by the respective terms and conditions of use relating to such content.

 

6.         Audit.  You agree to give NetApp or its licensors and its independent accountants the right to examine Your books, records, systems and usage associated with the Software during regular business hours upon reasonable notice to verify compliance with this EULA.  If such audit discloses non-compliance with this EULA, You shall promptly pay to NetApp the appropriate license fees, plus the reasonable costs of conducting such audit.

 

7.         Termination.  This EULA is effective until terminated.  NetApp may terminate this EULA immediately and without notice if You fail to comply with any term of this EULA.  Termination of this EULA shall not relieve You from Your obligations to immediately pay NetApp, or any third party in connection with the financing of fees payable under this EULA, any sums owed hereunder or under any other agreement with NetApp or such third party.  Upon termination, all rights to use the Software will cease, and You shall promptly destroy the original and all copies of the Software and any license enablement keys in Your possession or under Your control.  Termination is not an exclusive remedy and all other remedies otherwise entitled by law shall remain.  Sections 2, 3, 4, 5, 7 through 12 shall survive termination of this EULA.

 

8.         Limited Warranty and Disclaimer.  NetApp warrants that the Software, in the form originally licensed or downloaded by You, and under normal use and conditions, will materially conform to then-current Documentation, and its media will be free from defects in workmanship, for a period of ninety (90) days from the earlier of Your receipt of the Software or the date of delivery of the Software to You.  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 and agents.  Maintenance and support, if any, are governed by a separate agreement.  NetApp does not provide support or maintenance services for software acquired from a party other than NetApp.  You must obtain support or maintenance services for third party software from the third party licensor or its third party representatives.  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 sole obligation and Your exclusive remedy under the limited warranties above shall be replacement of the Software provided that You return the Software to NetApp with a copy of Your receipt or other such acceptable proof of purchase.

 

EXCEPT FOR THE LIMITED WARRANTIES ABOVE, NETAPP AND ITS LICENSORS, DISTRIBUTORS AND RESELLERS MAKE NO OTHER EXPRESS OR IMPLIED WARRANTIES WITH REGARD TO THE SOFTWARE AND EVALUATION SOFTWARE.  NETAPP AND ITS LICENSORS’, DISTRIBUTORS’ AND RESELLERS’ LIABILITY WITH RESPECT TO THE SOFTWARE UNDER ANY WARRANTY, NEGLIGENCE, STRICT LIABILITY OR OTHER THEORY IS LIMITED EXCLUSIVELY TO SOFTWARE REPLACEMENT.  THE SOFTWARE, EVALUATION SOFTWARE AND THE ACCOMPANYING DOCUMENTATION ARE OTHERWISE PROVIDED "AS IS" WITHOUT ANY WARRANTY INCLUDING, WITHOUT LIMITATION, THE WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, ACCURACY, QUIET ENJOYMENT, CORRESPONDENCE TO DESCRIPTION, NONINFRINGEMENT, OR WARRANTY THAT THE SOFTWARE IS ERROR-FREE.  SOME JURISDICTIONS DO NOT ALLOW LIMITATIONS OF IMPLIED WARRANTIES; THESE LIMITATIONS MAY NOT APPLY TO YOU.

 

9.         Limitation of Liability.  THE TOTAL LIABILITY OF NETAPP, ITS DISTRIBUTORS, LICENSORS, AND RESELLERS FOR ANY DAMAGE OR CLAIM ARISING FROM USE OF THE SOFTWARE OR THE ACCOMPANYING DOCUMENTATION SHALL NOT EXCEED THE AMOUNT ACTUALLY PAID BY YOU FOR THE SOFTWARE OR US$100.00, WHICHEVER IS GREATER.  NETAPP AND ITS DISTRIBUTORS, LICENSORS, AND RESELLERS ARE NOT LIABLE FOR ANY INDIRECT, INCIDENTAL, EXEMPLARY, SPECIAL, OR CONSEQUENTIAL DAMAGES; LOST OR CORRUPTED DATA, LOSS OF PROFITS, SAVINGS, OR REVENUES; PROCUREMENT OF SUBSTITUTE GOODS, INTERRUPTION OF BUSINESS, OR FOR ANY OCCURRENCE BEYOND THEIR CONTROL, RELATED TO THE USE OF OR INABILITY TO USE THE SOFTWARE, THE PROVISION OF OR FAILURE TO PROVIDE SUPPORT OR OTHER SERVICES, INFORMATION, SOFTWARE, AND RELATED CONTENT THROUGH THE SOFTWARE OR OTHERWISE ARISING OUT OF THE USE OF THE SOFTWARE, OR OTHERWISE UNDER OR IN CONNECTION WITH ANY PROVISION OF THIS EULA.  IN NO EVENT SHALL NETAPP’S LICENSORS BE LIABLE FOR ANY DAMAGES OF ANY KIND INCLUDING DIRECT, INDIRECT, SPECIAL, INCIDENTAL OR CONSEQUENTIAL DAMAGES (WHICH SHALL INCLUDE WITHOUT LIMITATION, DAMAGES FOR LOSS OF BUSINESS OR PROFITS, BUSINESS INTERRUPTION, LOSS OF BUSINESS INFORMATION, OR OTHER PECUNIARY LOSS) WHETHER BASED ON CONTRACT, TORT OR OTHER LEGAL THEORY, ARISING OUT OF THE USE OF OR INABILITY TO USE THE SOFTWARE, EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.

 

10.        U.S. Government and Export Regulations.  The Software is a Commercial-Off-The-Shelf (“COTS”) product developed at private expense; no portion of the Software has been developed with U.S. Government, State or other public-sector funds; the Software contains trade secrets and confidential commercial or financial information exempt from disclosure by 5 U.S.C. Section 552(B) (3) and (4) (Freedom Of Information Act) and 18 U.S.C. Section 1905 (Trade Secrets Act); and the ownership of the Software and any reproductions shall remain with NetApp.  The Software is provided to U.S. Government Agencies other than the U.S. Department of Defense (“DOD”) with RESTRICTED RIGHTS and all supporting Documentation is provided with LIMITED RIGHTS.  Use, duplication, or disclosure by the U.S. Government is subject to the restrictions as set forth in the Commercial Computer Software - Restricted Rights clause at FAR 52.227-19(b)(2).  If the sale is to a DOD agency, the Government's rights in Software, supporting Documentation, and technical data are governed by the restrictions in the Technical Data Commercial Items clause at DFARS 252.227-7015 and the Commercial Computer Software and Commercial Computer Software Documentation clause at DFARS 227-7202.  Contractor/Manufacturer is: NetApp, Inc., 495 East Java Drive, Sunnyvale, CA 94089.  Except as expressly licensed hereunder, all rights are reserved.

The Software is subject to U.S. export control laws and may be subject to export or import regulations in other countries.  You agree to comply with all applicable regulations and obtain any applicable licenses or other authorizations to export, re-export, or import the Software.

 

11.        Third Party Software.  Notwithstanding other statements in this EULA, third party software including free, copyleft and open source software components (collectively referred to as “Third Party Software”), if any, are distributed in compliance with the particular licensing terms and conditions attributable to the Third Party Software.   NetApp provides the Third Party Software to You “AS IS” without any warranties or indemnities of any kind.  Copyright notices and licensing terms and conditions applicable to the Third Party Software are available for review with the Software documentation at http://now.netapp.com, and are included on the media on which You received the Software, within a “NOTICE” file (e.g., NOTICE.PDF or NOTICE.TXT) included within the downloaded files, and/or reproduced within the materials or Documentation accompanying the Software.

 

12.        General.  You may not transfer Your rights under this EULA without NetApp’s prior written approval.  NetApp does not waive any of its rights under this EULA by delaying to exercise its rights, or exercising only part of its rights at any time.  Any notice, report, approval or consent required or permitted by this EULA shall be in writing.  If any provision of this EULA 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 EULA shall be deemed to have been made in, and shall be construed pursuant to, the laws of the State of California, United States, excluding its conflicts of law provisions.  The United Nations Convention on Contracts for the International Sales of Goods is specifically disclaimed.  You acknowledge that breach of this EULA would cause irreparable injury to NetApp for which monetary damages would not be an adequate remedy and You agree that NetApp shall be entitled to seek equitable relief in addition to any remedies it may have hereunder or at law. You acknowledge and agree that NetApp reserves the right to control all aspects of any lawsuit or claim that arises or results from Your use of the Software. 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 EULA is the final and complete agreement between the parties relating to the license of the Software hereunder and prevails over any conflicting or additional terms of any quote, order, acknowledgment, or similar communication between the parties.

 

            If you have entered into a purchase agreement or standard terms and conditions with NetApp or a NetApp subsidiary pursuant to which NetApp has agreed to indemnify You for third party claims of intellectual property infringement, NetApp agrees to extend this indemnity to a Software utility which you have acquired without having paid a license fee where the Software utility came bundled with or is used in conjunction with other Software You have licensed from NetApp for a fee.  The obligations and limitations of the indemnification for the Software utility are as specified in the applicable purchase agreement or standard terms and conditions governing Your license to the Software You acquired for a fee.  The indemnification for the Software utility is also conditioned upon You giving NetApp prompt notice of the claim, reasonable assistance and full authority to direct the defense and settlement of the claim.

 

SUPPLEMENTAL LICENSE TERMS

These Supplemental License Terms add to or modify the terms of the EULA set forth above.  Capitalized terms not defined in these Supplemental License Terms shall have the same meaning ascribed to them in Sections 1 through 12 of the EULA.  These Supplemental License Terms shall supersede any inconsistent or conflicting terms in Sections 1 through 12 of the EULA.

 

A.        If You have licensed the CIFS protocol Software the following terms apply:  You may install and use only one (1) copy of the Extended Server Implementation (ESI) and Domain Services Interaction Implementation only on the same server and for use as a file server as specified in the documentation accompanying the Software, and only (i) with respect to the ESI, to interoperate or communicate with native Microsoft Windows server operating system products that are functioning in a client capacity; and (ii) with respect to the DSII, to interoperate or communicate with the domain controller functionality in a Microsoft Windows server operating system product for purposes of obtaining services from the domain controller.  You may not install or use the ESI or DSII on a computer that is running any Windows client or server operating system.

 

B.         If You have licensed Operations Manager the following terms apply:  NetApp’s licensor shall be a direct and intended third party beneficiary of this EULA and may enforce it directly against You.

 

C.         If You have licensed SANscreen® Software the following terms apply:  SANscreen Software is licensed to You on a capacity basis.  SANscreen Limited Edition Software is licensed to You up to a certain “licensed capacity”; Your licensed capacity is set forth in Your Software Entitlement and Documentation.  Once you have reached the maximum licensed capacity, Your license to SANscreen Limited Edition Software expires.  To avoid expiration of Your license to the Software, You may bring Your license back into compliance by reducing the size of the managed capacity.  If You desire to acquire additional capacity for Your Software, You may purchase additional capacity from NetApp or its authorized distributors and resellers.  No technical support for the Software is provided by NetApp’s licensors.  NetApp’s licensors shall be a direct and intended third party beneficiary of this EULA.  The SANscreen Software contains copyrighted information of Sun Microsystems, Inc. and title is retained by Sun.  Use, duplication or disclosure by the United States government is subject to the restrictions set forth in the Rights in Technical Data and Computer Software clauses in DFARS 252.227-701(c)(1)(ii) and FAR 52.227-19(c)(2) as applicable.

 

D.        If You have licensed Single Mailbox Recovery Software (SMBR) the following terms apply: You may only use the SMBR Software with storage systems running Data ONTAP.

 

E.             If You have licensed SnapDrive® for Unix the following terms apply:  NetApp and its licensors grant to You a royalty-free, non-exclusive, non-transferable, worldwide, limited license, without right of sublicense, to install and use the SnapManager® for Virtual Infrastructure (“SMVI”) Software in object code form in accordance with the terms of Your Software Entitlement and Documentation provided, however, that Your use of the SMVI Software is solely for VMDK support for SnapDrive for Unix.  The aforesaid limited license does not entitle You to use the SMVI Software for VMware backup and restore functionality.

 

F.              If You have licensed SnapDrive® for Windows the following terms apply:  NetApp and its licensors grant to You a royalty-free, non-exclusive, non-transferable, worldwide, limited license, without right of sublicense, to install and use the SnapManager® for Virtual Infrastructure (“SMVI”) Software in object code form in accordance with the terms of Your Software Entitlement and Documentation provided, however, that Your use of the SMVI Software is solely for VMDK support for SnapDrive for Windows.  The aforesaid limited license does not entitle You to use the SMVI Software for VMware backup and restore functionality.

 

G.         If You have licensed SnapLock® Software the following terms apply: The Software has been designed to enable compliance with “non-rewriteable, non-erasable” governmental regulatory requirements.  However, NetApp disclaims and You accept all obligations and liability for compliance with applicable governmental regulatory requirements.  You are responsible for ensuring that your internal processes, applications and storage are in compliance with all applicable governmental regulatory requirements.  You acknowledge that You have been informed and understand that special requirements and limitations associated with the use of SnapLock software may be imposed to comply with governmental regulations and that SnapLock will disable certain features of Data ONTAP, including, but not limited to, SnapRestore®.  SnapLock will preserve records in non-rewriteable, non-erasable format when committed to SnapLock volumes.  Disk drives included in SnapLock volumes are designed not to be rewritten or erased, and are subject to limitations with respect to maintenance and recovery procedures.  NetApp shall not be required to rewrite or erase such disk drives included in SnapLock volumes.  In the course of administering SnapLock volumes, if data becomes inaccessible, unusable, or in need of recovery, due to either product service by any party or product failure resulting from Your act or omission, You shall be liable for replacement or additional disk drives for new SnapLock volumes to comply with non-rewriteable, non-erasable governmental regulatory requirements.  You shall indemnify, defend, release and hold harmless NetApp from any and all claims and liabilities arising out of Your loss of data, data corruption, need for disk drive replacement or additional disk drives due to reconstruction of SnapLock volumes for reasons of either product service by any party or product failures resulting from acts or omissions of You or failures other than those caused by bugs or errors in the SnapLock Software.  The terms of this paragraph shall survive termination of this EULA.

 

H.        If You have licensed SnapManager® for Oracle® and/or SnapManager® for SAP® the following terms apply:  If You have acquired a “host-based” license the Software is licensed to You to manage any database mounted to a single host.  If You have acquired a “system-based” license the Software is licensed to You to manage any database that stores its data on a System regardless of the host on which it is mounted.  If You have licensed SnapManager for Oracle or SnapManager for SAP the licensed unit of Software is one (1) license per active/passive HA pair and two (2) licenses per active/active HA pair.  You are licensed to use the Software for Your own business operations.  No technical support for the Software is provided by NetApp’s licensors.  NetApp’s licensors shall be a direct and intended third party beneficiary of this EULA.

 

I.          If You have acquired a “capacity-based” license and if you exceed the maximum capacity purchased, the Software may cease to operate normally and/or performance may be impaired; provided however that reducing Your usage to the purchased capacity level or purchasing additional capacity will return the Software to its normal operation. Any excess capacity usage above the purchased maximum shall entitle NetApp to invoice You for licensed capacity and maintenance and support amounts owed. You agree to use the Software solely for Your internal data center operations and to restrict any access to the Software, documentation, or other user information accompanying the Software only to those of your employees having a demonstrable need to have such access for your internal data processing operations.  Maintenance and support, if purchased, must be purchased for all Software licensed in your environment; and shall be provided in accordance with NetApp’s or its licensor’s standard policies. For the products containing Microsoft Windows Pre-Installation Environment (WinPE) software: (i) The license for the Software is limited to its use as a boot, diagnostic, disaster recovery, setup, restoration, emergency services, installation, test and/or configuration utilities program and not for use as a general purpose operating system or a fully functional version of any operating system product; (ii) the WinPE software is provided “as is”; and (iii) the Software, by virtue of the inclusion of WinPE, contain a security feature that will cause the computer system to reboot without prior notification to You after 24 hours of continuous use. CommVault shall be a direct and intended third party beneficiary of this EULA. The Software may contain certain software licensed by Microsoft. You acknowledge that You are not licensing Microsoft products under this EULA and that any copies of Microsoft software that You receive from NetApp as a result of licensing the Software do not entitle You to maintain on Your computer systems any more copies of Microsoft software than you may have previously licensed from Microsoft or other third parties.  Microsoft shall be an intended third party beneficiary of this EULA.