IMPORTANT – READ CAREFULLY: This license agreement (the “Agreement”) 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”) and governs the license to You of the Products set forth in Exhibit A of this Agreement. NetApp is willing to license to You the NetApp software product accompanying this Agreement, which may include, without limitation, computer software, software components such as development tools, test scripts, libraries, sample applications, server applications, and operating systems, associated media, printed materials, and “online” or electronic documentation (collectively, the "Product"). YOU AGREE TO BE BOUND BY THE TERMS OF THIS AGREEMENT BY INSTALLING, COPYING, OR OTHERWISE USING THE PRODUCT, EVEN IF YOU HAVE NOT GIVEN YOUR WRITTEN APPROVAL. 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 NETAPP, INC.
In addition, by installing, copying or otherwise using any updates you receive as part of the Product, you agree to be bound by the additional license terms that accompany any such updates. If you do not agree to the additional license terms that accompany such updates, you may not install, copy or use such updates.
1. License. NetApp grants You a nonexclusive, worldwide license to use the accompanying software as specified herein in source and object code form ("Software") and accompanying documentation solely for Your development use. You shall only use the Software on NetApp products, and in the manner specified in the user documentation. This license is further restricted to the particular protocols and accompanying documentation acquired hereunder. For each Product licensed, Your employees are authorized to use, copy, install and make derivative works thereof for the development of solutions that utilize NetApp technology in accordance with this Agreement. The Product may only be used for development purposes and is not to be used in a production environment.
Portions of the Product may be identified as pre-release or beta code. Such code may not be at the performance level and compatibility as code ready for general release. NetApp reserves the right to modify any such code prior to general release and the right to not put such code or any code in general release. Any license to pre-release or beta code expires upon the availability of general release of the pre-release code from NetApp.
No distribution or redistribution rights are granted by this license, except as specified in this paragraph. Notwithstanding the terms of this Agreement to the contrary, certain of the components of the Product may be redistributed by you to the extent required for the permitted operation of the derivative work created by you while using the Software hereunder. The specific components permitted for redistribution are limited to those which are compiled as part of the derivative work and distributed by you only in conjunction with or embedded with your product and not as a stand-alone product of the redistributed components. Other components such as printed materials, code samples, SNMP MIB files and "online" or electronic documentation, accompanying the particular embodiment of the Software may not be distributed or redistributed.
2. License Restrictions. NetApp shall retain title to the Software and the accompanying documentation and all copies thereof. You shall not make any copies of the Software except as reasonably required for backup and development purposes. 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 used in, the Software by any means whatever, except and only to the extent applicable law expressly permits such reverse engineering, decompilation or disassembly; 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, or incorporate it into or with other software; or (d) use the Software for competitive purposes against NetApp. You 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. You must take adequate steps to protect the Software from unauthorized disclosure or use. Any feedback or technical information you provide back to NetApp may be used by NetApp as it sees fit, provided you are not identified to third parties. You agree that all feedback, test results and benchmark results shall constitute confidential information of NetApp and shall be kept confidential by you and not disclosed to third parties without NetApp’s prior written permission.
3. Termination of License. This Agreement is effective until terminated. The Agreement will terminate automatically if:
i. You fail 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 Sections 1 or 2 herein);
ii. You become insolvent, file, or have filed against You a petition under applicable bankruptcy or insolvency laws which is not dismissed within ninety (90) days; You propose any dissolution, composition or financial reorganization with creditors; makes an assignment for the benefit of creditors; or a receiver, trustee or similar agent is appointed or takes possession with respect to Your property or business. The termination of this Agreement shall not relieve You from Your obligations to immediately pay NetApp any sums accrued hereunder prior to such termination;
iii. You are acquired by an enterprise storage vendor; or
iv. You a ttempt to transfer this license.
Upon termination, You shall immediately cease all use of the Software, deinstall it, and return to NetApp or destroy all copies of the Software and all portions thereof and the accompanying documentation and so certify to NetApp.
When You install upgrades to the Software, You lose Your license to use the previous version. You must discontinue using the previous version immediately upon installing the upgrade.
Termination is not an exclusive remedy and all other remedies will be available whether or not the Agreement is terminated. Sections 3 through 6 and 8 through 10 shall survive termination of this Agreement.
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 Your 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, THE WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR NONINFRINGEMENT. SOME JURISDICTIONS DO NOT ALLOW LIMITATIONS OF IMPLIED WARRANTIES; THESE LIMITATIONS MAY NOT APPLY TO YOU.
5. Limitation of Liability. NETAPP’S TOTAL LIABILITY FOR ANY DAMAGE OR CLAIM ARISING UNDER THIS AGREEMENT OR YOUR USE OF THE SOFTWARE OR THE ACCOMPANYING DOCUMENTATION IS FIVE DOLLARS (US$5.00). 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 Product is 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 Product in such an environment. Developer agrees that it will not use or license the hardware or software for such purposes.
6. U.S. Government and Export Regulations. If You are 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: NetApp, Inc., 495 East Java Drive, Sunnyvale, CA 94089. Except as expressly licensed hereunder, all rights are reserved.
7. Transferability of License. THIS AGREEMENT IS PERSONAL TO YOU. YOU 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. Compliance with Laws. 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 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.
9. Free and Open Source Licensed Software. Notwithstanding other statements in this Agreement, free, copyleft and open source software components (collectively, “Open Source Software” or “OSS”) are distributed in compliance with the particular licensing terms and conditions attributable to such OSS and are provided “AS IS” without any warranties or indemnities of any kind. Copyright notices and licensing terms and conditions applicable to such OSS inclusions are available for review with the Product documentation at http://communities.netapp.com/docs/DOC-2379, and are included on the media on which you received the Software, within a text file (i.e., “notice.txt”) included within the downloaded files and/or reproduced within the materials or documentation accompanying the Software.
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 law provisions. You agree that Your material breach of this Agreement 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 Products hereunder.
EXHIBIT A. NetApp, Inc. Products:
Manage ONTAP® Software Development Kit
VPolicy™—NetApp Virus Scanning Interface
FPolicy—NetApp File Notification Interface