NetApp Software and SDK Download License

The following software may include computer code, development tools, computer programs, related or included documentation and/or collateral materials ("Software") belonging to NetApp, Inc. or its affiliates (collectively, "NetApp") and/or third parties. By downloading, installing, or using the Software, you (as an individual and/or on behalf of the company by which you are employed) ("You," "Your," and/or "Licensee") agree to be bound by the terms of this NetApp NTN Download License Agreement ("License"), which includes any other applicable licenses provided with the Software.

1. SOFTWARE LICENSE GRANT. Subject to the terms and conditions set forth herein, NetApp grants Licensee a limited, terminable, revocable, nonexclusive, license, with no right of sublicense, to use the Software, in object code form only, in the manner specified in the relevant user documentation. Licensee has no right to receive any source code or design documentation relating to the Software. This License is personal to Licensee and Licensee shall not assign, transfer or sublicense Software without NetApp's prior written approval; any attempt to do so shall be void.

2. SOFTWARE DEVELOPMENT KIT LICENSE GRANTS. This Software may include the NetApp Manageability Software Development Kit (SDK) or the Manage ONTAP Software Development Kit (SDK), for which the following license terms apply:
2.1 NetApp Manageability SDK. If You have acquired the NetApp Manageability SDK, subject to the terms and conditions of this License, NetApp grants You a license to internally use the documentation which may include the "Getting Started Guide," FAQs, API documentation, and trouble-shooting guidelines (collectively, the NM SDK Documentation") solely for the purpose of researching, designing, developing and testing a software application product (the "Licensee Application") for use with NetApp products.
2.2 Manage ONTAP SDK. If You have acquired the Manage ONTAP SDK, subject to the terms and conditions of the License, NetApp grants You a license to:
(i) Internally use the documentation which may include the "Getting Started Guide," FAQs, API documentation, and trouble-shooting guidelines (collectively, the Manage ONTAP Documentation") solely for the purpose of researching, designing, developing and testing a Licensee Application for use with NetApp products;
(ii) Use, reproduce and distribute the Language Libraries in object code only as incorporated into the Licensee Application; provided, however, that You (A) reproduce and include the copyright notice that appears in the Language Libraries as provided by NetApp, and (B) distribute the Licensee Application incorporating the Language Libraries pursuant to terms no less restrictive than those set forth herein. You shall not modify the Language Libraries; and
(iii) Use, reproduce, modify and create derivatives of the Sample Code which may include utilities (the "Sample Derivatives") and reproduce and distribute the Sample Derivatives in object code or source code form as incorporated in the Licensee Application; provided, however, that You (A) reproduce and include the copyright notice that appears in the Sample Code as provided by NetApp, and (B) distribute the Licensee Application incorporating the Sample Derivatives pursuant to terms no less restrictive than those set forth herein. NetApp will not provide technical support, phone support, or updates to You for the Sample Code licensed under this License. If NetApp, at its sole option, supplies updates to You, the updates will be considered part of the Sample Code, and subject to the terms of this License.
You shall not combine the Language Libraries or the Sample Derivatives into a Licensee Application such that the Language Libraries or Sample Derivatives would be licensed under a license that requires the Language Libraries or Sample Derivatives to be (a) disclosed or distributed in source code form, (b) licensed for the purpose of making derivative works, or (c) redistributable at no charge.
2.3 Third Party Software. Notwithstanding other statements in this License, third party software including free, copyleft and open source software components (collectively referred to as "Third Party Software") 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 Manageability SDK documentation at http://communities.netapp.com/docs/DOC-1152 and with the Manage ONTAP SDK documentation at http://communities.netapp.com/docs/DOC-1110, and are included in a pdf file (i.e., "NOTICE.PDF") included within the downloaded files.

3. RESTRICTIONS. NetApp shall retain all right, title and interest in and to the Software and the accompanying documentation, the Net Manageability SDK, NM SDK Documentation, Manage ONTAP SDK and Manage ONTAP SDK Documentation and all copies thereof (hereafter referred to collectively as the "NetApp Software"). Licensee shall not make any copies of the NetApp Software except as reasonably required for backup purposes. Licensee shall not, nor shall Licensee 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 NetApp Software by any means whatever; or (b) remove or conceal any product identification, copyright or other notices contained in or on the NetApp Software; (c) publish or provide any results of benchmark tests run on the NetApp Software to a third party without NetApp's prior written consent; or (d) modify the NetApp Software or cause it to be modified, incorporate it into or with other software, display, reproduce, publish, sell, offer for sale or create a derivative work of any part of the NetApp Software except as expressly permitted in this License. Any such modification of the NetApp Software will breach this License, and such derivative work is and shall be owned entirely by NetApp; You hereby assign and agree to assign to NetApp all right, title and interest in and to said derivative work. NetApp, and any relevant third parties, reserve the right to revise, including bug fixes and/or patches, upgrade or otherwise change or modify the NetApp Software ("Upgrade") at anytime. Licensee shall implement each Upgrade as it is made generally available by NetApp and is prohibited and shall immediately cease use of any version of the NetApp Software not incorporating such Upgrade. The NetApp Software is protected by copyrights, one or more U.S. patents issued or pending, and other applicable laws. Licensee agrees to take all adequate steps to protect the NetApp Software from unauthorized disclosure or use.

4. TERMINATION OF LICENSE. This License is effective until terminated. This License will terminate automatically if You breach any material provision of this License. Upon termination, Licensee shall immediately cease all use of the NetApp Software, de-install it, and return or destroy all copies of the NetApp Software and all portions thereof and the accompanying documentation and where requested by NetApp, so certify in writing to NetApp. Termination is not an exclusive remedy and all other remedies at law or in equity will be available to NetApp whether or not the License is terminated. Sections 3, 4, 5, 6, 8, 9 and 10 will survive termination of this License.

5. WARRANTY DISCLAIMER. THIS NETAPP SOFTWARE IS PROVIDED BY NETAPP "AS IS" AND WITHOUT WARRANTY OF ANY KIND. ANY EXPRESS OR IMPLIED WARRANTIES, INCLUDING BUT NOT LIMITED TO, IMPLIED WARRANTIES OF MERCHANTABILITY, NON-INFRINGEMENT, AND FITNESS FOR A PARTICULAR PURPOSE, ARE DISCLAIMED. IN NO EVENT SHALL NETAPP BE LIABLE FOR ANY DIRECT, INDIRECT, INCIDENTAL, SPECIAL, EXEMPLARY, CONSEQUENTIAL OR OTHER DAMAGES. SOME JURISDICTIONS DO NOT ALLOW LIMITATIONS OF IMPLIED WARRANTIES; THESE LIMITATIONS MAY NOT APPLY.

6. LIMITATIONS OF LIABILITY & DAMAGES. NETAPP SHALL NOT BE LIABLE FOR LOSS OR INTERRUPTION OF BUSINESS, LOSS OF REVENUE OR PROFITS, OR LOSS OR CORRUPTION OF DATA, HOWEVER CAUSED AND ON ANY THEORY OF LIABILITY. SUCH THEORIES OF LIABILITY INCLUDE CONTRACT OR TORT (INCLUDING, WITHOUT LIMITATION, NEGLIGENCE) OR OTHERWISE, ARISING OUT OF OR IN CONNECTION WITH THE DOWNLOAD, INSTALLATION, USE, OPERATION, OR MAINTENACE OF THE NETAPP SOFTWARE, EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGE OR LOSS. SOME JURISDICTIONS DO NOT ALLOW LIMITATIONS OF IMPLIED WARRANTIES; THESE LIMITATIONS MAY NOT APPLY TO YOU. NETAPP'S TOTAL LIABILITY FOR ANY DAMAGE OR CLAIM ARISING FROM LICENSING OR USE OF THE NETAPP SOFTWARE OR THE ACCOMPANYING DOCUMENTATION IS YOUR TOTAL PURCHASE PRICE FOR THE NETAPP SOFTWARE OR TEN DOLLARS (US$10.00), WHICHEVER IS GREATER. IN NO EVENT SHALL NETAPP BE LIABLE FOR ANY DIRECT, INDIRECT, 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 NetApp Software 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 NetApp Software in such an environment. Licensee agrees that it will not use or license the NetApp Software for such purposes.

7. U.S. GOVERNMENT AND EXPORT REGULATIONS; COMPLIANCE WITH LAWS. If Licensee is acquiring the NetApp Software and accompanying documentation on behalf of the U.S. Government, special provisions apply. If the NetApp Software is supplied to the Department of Defense ("DOD"), the NetApp 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 NetApp Software is supplied to any unit or agency of the United States Government other than DOD, the Government's rights in the NetApp 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. The NetApp Software is subject to U.S. export control laws and may be subject to export or import regulations in other countries. Licensee must comply with all applicable regulations and obtain licenses to export, re-export, or import the NetApp Software. Each party must at all times, comply with all applicable laws, ordinances, statutes, rules, and regulations.

8. LICENSEE INDEMNITY. Licensee shall defend, indemnify and hold NetApp and its directors, employees subsidiaries, affiliates, successors and assigns harmless from and against all claims, damages, losses, costs and expenses, including attorneys' fees, arising from any third party claims asserted against NetApp and its employees, subsidiaries, affiliates, successors and assigns, that are based in whole or in part on any of the following: (a) Licensee's use or misuse of the NetApp Software in violation of this License; (b) use of the NetApp Software in combination with any other software not provided hereunder; (c) Licensee's breach of this License; or (d) a claim based upon an actual or alleged infringement of an intellectual property right of a third party arising from or related to the Licensee Application.

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. GOVERNING LAW. This License shall be construed in accordance with and all disputes hereunder shall be governed by the laws of the State of California, excepting its conflicts of law rules. All disputes arising out of this License shall be subject to the exclusive jurisdiction and venue of the Superior Court of the State of California of Santa Clara County and the Federal District Court of the Northern District of California, United States of America, and the parties consent to the personal and exclusive jurisdiction and venue of such courts. The United Nations Convention on Contracts for the International Sales of Goods is specifically disclaimed.

11. SEVERABILITY. If any provision of this License is held to be unenforceable, this License will remain in effect with the provision omitted, unless omission would frustrate the intent of the parties, in which case this License will immediately terminate.

12. INTEGRATION. This License is the entire agreement between You and NetApp relating to its subject matter. It supersedes all prior or contemporaneous oral or written communications, proposals, representations and warranties and prevails over any conflicting or additional terms of any quote, order, acknowledgment, or other communication between the parties relating to its subject matter during the term of this License. No modification of this License will be binding, unless in writing and signed by an authorized representative of each party.
Copyright (c) 2005-2009 NetApp, Inc. All Rights Reserved.
NTN Download License v08-26-09