END USER LICENSE AGREEMENT
1. Scope. This end user license agreement (“EULA”) is between you (“You” or “Your”) and NetApp, Inc. and (as applicable) its subsidiaries and affiliates (“NetApp”). This EULA sets forth the terms under which NetApp licenses the Software and Documentation to You.
In this EULA:
a) “Documentation” means technical documentation describing the features and functions of the associated
Software;
b) “NetApp Partner” means an authorized NetApp distributor, reseller or other channel partner; and
c) “Software” means NetApp software in object code format including (as applicable) operating systems, protocols,
backup and recovery, disaster recovery, storage efficiency and management software.
In the absence of a more specific written agreement, this EULA applies to Software and Documentation obtained by You
directly from NetApp, indirectly from a NetApp Partner, or made available to you by NetApp at no charge. The types,
quantities and other usage attributes related to Your Software licenses are specified in other documents associated with the
Software, including (as applicable) the Documentation, a NetApp quote or related document (for direct transactions), or
the corresponding documents from a NetApp Partner (for indirect transactions).
This EULA does not entitle You to receive Software updates, upgrades, technical support or professional services, which
must be purchased or provided separately.
2. Acceptance. By clicking the “I ACCEPT” button when downloading or installing the Software, or by copying,
accessing or using the Software or Documentation, You agree that this EULA will exclusively govern NetApp’s
license and Your use of the Software and Documentation unless You have a separate applicable written agreement
with NetApp governing the same. If You are accepting this EULA on behalf of another person, company or other
legal entity, whether as an employee, contractor, distributor, reseller, partner, agent or otherwise, You represent
and warrant that You have full authority to bind them. If You do not agree to the terms of this EULA, do not
download, install, copy, access, or use the Software or Documentation, or click the “I ACCEPT” button, and
promptly return the Software and Documentation to the party from whom it was obtained.
3. License Grant. NetApp grants to You a personal, non-exclusive, non-transferrable, worldwide, limited and revocable license, without the right to sublicense, to i) install and use the Software for Your internal business purposes only, and ii) use the Documentation in support of Your use of the Software.
The Software associated with Your license is either bundled with a specific storage controller identified by a unique serial
number (“Controller-based”), or is independent of a storage controller (“Standalone”), and Your license is one of the
following license types: a) “Life-of-controller”: Controller-based licenses granted for the period of time during which Your storage controller is operable; b) “Perpetual”: Standalone licenses granted in perpetuity;
c) “Term”: Controller-based licenses or Standalone licenses granted for a fixed period of time;
d) “Capacity”: Controller-based licenses or Standalone licenses granted for a specified amount of raw storage
capacity, number of hosts or other measure of usage; and e) “Subscription”: Controller-based licenses or Standalone licenses which may be purchased on a periodic basis.
Certain license types may require the installation and use of NetApp’s AutoSupportTM remote support diagnostics system.
Each storage controller deployed in a cluster or a high-availability pair or group must have the same Controller-based
license as the other storage controllers in that cluster, high-availability pair or group. Subject to NetApp’s separate written
agreement, and in the context of non-disruptive operations within a cluster, You may deploy storage controllers with
different Controller-based licenses and failover from one storage controller to another for the time required to remedy a
failure, provided that all storage controllers in the cluster have the same hardware and software support offerings in effect
at all times.
4. License Restrictions. You shall not, nor shall You allow any third party to:
a) reverse-engineer, decompile or disassemble the Software or otherwise reduce it to human-readable format except
to the extent required for interoperability purposes under applicable laws or as expressly permitted in opensource
licenses;
b) remove or conceal any product identification, proprietary, intellectual property or other notices in the Software or
Documentation;
c) use the Software or Documentation to perform services for third parties in a service bureau, managed services,
commercial hosting services or similar environment;
d) assign or otherwise transfer, in whole or in part, the Software or Documentation licenses to another party or
Controller-based licenses to a different storage controller;
e) install Controller-based licenses on or use them with third party hardware or any second-hand or grey market
NetApp hardware not purchased by You from NetApp or a NetApp Partner;
f) modify, adapt or create a derivative work of the Software or Documentation; and
g) publish or provide any Software benchmark or comparison test results.
5. Intellectual Property Rights. The Software and Documentation is licensed, not sold, to You. It is protected by
intellectual property laws and treaties worldwide, and contains trade secrets, in which NetApp and its licensors reserve and
retain all rights not expressly granted to You. No right, title or interest to any trademark, service mark, logo or trade name,
of NetApp or its licensors is granted to You.
6. Direct Warranty. NetApp warrants that for a period of ninety (90) days from the date of first delivery of the Software
to You or a NetApp Partner, whichever is the earlier, or such other minimum periods under applicable laws (the “Software
Warranty Period”), that i) the Software will materially conform to the then-current Documentation, and ii) the Software
media will be free from defects. NetApp does not warrant that Your use of the Software will be error-free or uninterrupted.
If a material defect arises in the Software during the Software Warranty Period and if the defect is reproducible and
verifiable, NetApp will, at its sole discretion and expense, repair or replace the defective Software or refund the amounts
actually received by NetApp for the Software. The Software warranty will be voided if You or any third parties misuse,
neglect, attempt to repair or modify (unless authorized by NetApp), or use the Software beyond the range of the intended
use. TO THE EXTENT PERMITTED BY APPLICABLE LAWS, THIS IS YOUR SOLE AND EXCLUSIVE
WARRANTY AND REMEDY. NETAPP SPECIFICALLY DISCLAIMS ALL IMPLIED WARRANTIES, INCLUDING
THOSE OF MERCHANTABILITY, ACCEPTABLE QUALITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT.
7. Limitation of Liability. Regardless of the basis of the claim (e.g. contract, tort or statute), the total liability of NetApp and its licensors, under or in connection with this EULA, shall not exceed the amounts actually received by NetApp for the Software or the minimum amounts permitted by applicable laws, if greater. NetApp and its licensors are not liable for:
a) any indirect, consequential, incidental, exemplary or special damages;
b) loss or corruption of data;
c) loss of revenues, profits, goodwill or anticipated savings;
d) procurement of substitute goods and/or services;
e) interruption to business; and
f) Your failure to adhere to applicable regulations pertaining to non-rewriteable and non-erasable US Government
regulations.
The limitations and exclusions above shall not apply to liability for death or personal injury caused by negligence, gross negligence, willful misconduct, fraud or any other liability that cannot be excluded under applicable laws.
8. Audit. Upon reasonable notice, You grant NetApp and its independent accountants the right to examine Your Software usage to verify compliance with this EULA. If the audit discloses over-usage or any other material non-compliance, You
will promptly pay to NetApp or to a NetApp Partner, as designated by NetApp, any additional fees notified to you and the
reasonable costs of conducting the audit.
9. Termination. This EULA is effective until expiration or termination. You may terminate the EULA at any time on
written notice to NetApp. NetApp may terminate the EULA immediately on written notice for material breach of the EULA. Any failure to remit payments in relation to the Software and Documentation when due, whether payable to NetApp or a NetApp Partner, shall constitute a material breach of this EULA. Upon expiration or termination of this
EULA, You will promptly return or destroy all copies of the Software and Documentation, including any license enablement keys. Sections 1, 4, 5, 6, 8, 10, 11, 12, 13 and 14 shall survive expiration or termination of this EULA.
10. Software Copyright Information And Notices. Software copyright information and other related details are included as part of notices in the Documentation or other documentation published by NetApp (e.g. NOTICES.TXT or NOTICES. PDF).
11. Export Controls. You acknowledge that the Software and Documentation supplied by NetApp under this EULA is
subject to export controls under the laws and regulations of the United States, the European Union and other countries as
applicable, and the Software may include export controlled technologies, including without limitation encryption
technology. You agree to comply with such laws and regulations and, in particular, represent and warrant that You:
a) shall not, unless authorized by U.S. export licenses or other government authorizations, directly or indirectly
export or re-export the Software and Documentation to or use the Software and Documentation in countries
subject to U.S. embargoes or trade sanctions programs;
b) are not a party, nor will You export or re-export to a party, identified on any government export exclusion lists,
including but not limited to the U.S. Denied Persons, Entity, and Specially Designated Nationals Lists; and
c) will not use the Software and Documentation for any purposes prohibited by U.S. law, including but without limitation, the development, design, manufacture or production of nuclear, missile, chemical biological weaponry or other weapons of mass destruction.
You agree to provide NetApp end use and end user information upon NetApp’s request. You shall obtain all required authorizations, permits, or licenses to export, re-export or import, as required. You agree to obligate, by contract or other
similar assurances, the parties to whom You re-export or otherwise transfer the Software to comply with all obligations set forth in this Section 11.
12. Data Privacy. You have sole responsibility for the personal data you choose to manage and/or store using the Software and agree to comply with all applicable data privacy laws. NetApp is only responsible for personal data it explicitly requests in order to provide services in support of the Software. In such cases, NetApp agrees to protect personal data from unauthorized access and use, and from accidental loss or destruction in accordance with applicable data
privacy laws.
13. U.S. Federal Government End Users. This Section 13 applies to You only if You are a U.S. Federal Government end user. The Software and Documentation is “commercial” computer software and documentation and is licensed to You in
accordance with the rights articulated in applicable U.S. government acquisition regulations (e.g. FAR, DFARs) pertaining
to commercial computer software and documentation. You shall not be subject to applicable audit costs specified in Section 8. Any dispute between You and NetApp will be subject to resolution pursuant to the Contract Disputes Act of
1978. Nothing contained in this EULA is meant to derogate the rights of the U.S. Department of Justice as identified in 28
U.S.C. §516. All other provisions of this EULA remain in effect as written.
14. General. This EULA will be construed pursuant to the laws of i) the State of California, United States, excluding its conflicts of law provisions, if You are located in the United States or in a country in which NetApp has no local salessubsidiary, or ii) the country in which You are located if NetApp has a local sales subsidiary in that country. NetApp
reserves the right to control all aspects of any lawsuit or claim that arises from Your use of the Software or Documentation.
If required by NetApp’s agreement with a third party licensor, NetApp’s licensor will be a direct and intended third party beneficiary of this EULA and may enforce it directly against You. NetApp does not waive any of its rights under this EULA by failing to or delaying the exercise of its rights or partially exercising its rights at any time. To the extent that any Section of this EULA, or part thereof, is determined to be invalid or unenforceable, the remainder of this EULA shall
remain in full force and effect. This EULA may not be changed except by a written amendment executed by an authorized representative of each party. In the event of a dispute between the English and non-English version of the EULA (where translated for local requirements), the English version of this EULA shall govern, to the extent permitted by applicable laws. This EULA represents the entire agreement and understanding between NetApp and You with respect to the
Software and Documentation. It supersedes any previous communications, representations or agreements between NetApp and You and prevails over any conflicting or additional terms in any quote, purchase order, acknowledgment, or similar communication between the parties.
Version: 17 November 2014
Part #: 215-07701_B0