NETAPP, INC. BETA TEST EULA

THIS SOFTWARE IS FOR BETA TESTING PURPOSES ONLY AND IS NOT 
TO BE INSTALLED IN A PRODUCTION ENVIRONMENT.

IMPORTANT - READ CAREFULLY: This Beta Test End User License Agreement (.EULA.) is a legal agreement between you (either an individual or a single entity) (hereafter .Company.) and NetApp, Inc. (.NetApp.) for the testing of the NetApp beta software in object code form accompanying this EULA which includes the software and associated documentation ("Software").  By installing, copying, or otherwise using the Software, Company agrees to be bound by the terms of this EULA.  If Company does not agree to such terms, Company is not permitted to install or use the Software and must promptly return the Software to NetApp.

1.	License Grant.  NetApp grants Company a limited, non-transferable, non-exclusive, royalty-free right to install and use the Software internally, in a non-production environment, solely for purposes of interoperability testing and evaluation for thirty (30) days from the date Company installs the Software (the .Beta Evaluation Period.).  

2.	Restrictions.  Company shall not nor allow any third party to (i) decompile, decrypt, reverse compile, reverse engineer the Software or attempt to discover or derive the composition or source code of the Software (ii) copy the Software or any documentation associated with the Software; (iii) distribute or redistribute, sublicense, rent, mortgage, pledge, lease, encumber, or bundle the Software and shall keep the Software at the designated site and not transmit the Software electronically or otherwise from one computer to another or over a network; (iv)  remove or conceal any product identification, copyright, patent or other notices contained in or on the Software; or (v) modify or create derivative works from the Software.  Any such modification will breach this EULA, and such derivative work will be owned entirely by NetApp.  Company hereby assigns and agrees to assign to NetApp all right, title and interest in and to said derivative work.  

3.	Confidentiality.  Company agrees to cooperate with NetApp in testing the Software and providing feedback, including, without limitation, audio, video, screen image recordings of Company individual participants (.Recordings.) to NetApp concerning the functionality and performance of the Software including, without limitation, identifying potential errors, improvements, modifications, bug fixes or enhancements (.Feedback.).  Company warrants and represents that Company will obtain prior informed consent from each of Company.s individual participants providing Recordings to the making and use of such Recordings, in accordance with the laws and regulations of the jurisdiction in which the participant resides.  NetApp reserves the right at any time to alter features, specifications, functions and other characteristics of the Software.  Company acknowledges that the terms of this EULA, the Software, the Feedback, the beta program and requirements, and NetApp.s product and marketing plans are proprietary and confidential information of NetApp (hereafter .Confidential Information.).  Company shall not make the Confidential Information available in any form to any person other than to Company.s employees or consultants with a need to know and who are under an obligation of confidentiality not to disclose such Confidential Information.  Company shall use the same degree of care to protect the confidentiality of such Confidential Information as Company uses to protect its own confidential information but in no event shall such degree of care be less than a reasonable degree of care.  As Feedback, Company will promptly notify NetApp of any error or problem in the Software.  Any Feedback made by Company regarding the Software shall be the sole property and Confidential Information of NetApp.  Company shall promptly notify NetApp of any unauthorized release of Confidential Information.

4.	Intellectual Property.  All intellectual property rights, including all right, title, and interest in and to the Software, the Feedback, and any invention, improvement, or derivative work relating to the Software that is conceived of, made in the course of, or as a result of Company.s participation in this beta evaluation are (i) proprietary and confidential to NetApp, and (ii) owned by NetApp or its licensors and licensed, not sold, to Company.  The Software is protected by intellectual property and copyright laws and treaties worldwide and may contain trade secrets of NetApp or its licensors.  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 any content which may be accessed through use of Software is property belonging to the respective content owner and may be protected by intellectual property laws and treaties worldwide.  Company acknowledges that this EULA only grants a limited license in the Software to Company as specified hereunder and no title or other rights to the intellectual property in the Software is transferred or granted to Company.  

5.	Warranty Disclaimer.  COMPANY ACKNOWLEDGES THAT (i) THE SOFTWARE IS STILL UNDER DEVELOPMENT, AND (ii) NETAPP IS UNDER NO OBLIGATION TO RELEASE A COMMERCIAL VERSION OF THE SOFTWARE OR OTHERWISE LICENSE TO COMPANY THE SOFTWARE OR ANY RESULTING PRODUCT(S).  THE SOFTWARE IS PROVIDED TO COMPANY .AS IS. WITHOUT WARRANTY OR SUPPORT OF ANY KIND.  NETAPP MAKES NO EXPRESS WARRANTIES AND DISCLAIMS ANY IMPLIED WARRANTIES, INCLUDING ANY WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR NON-INFRINGEMENT.  NETAPP SHALL NOT BE LIABLE FOR ANY PROPERTY DAMAGE, PERSONAL INJURY, LOSS OF PROFITS, LOSS OF DATA, INTERRUPTION OF BUSINESS, OR ANY DIRECT, SPECIAL, CONSEQUENTIAL OR INCIDENTAL DAMAGES, HOWEVER CAUSED, WHETHER FOR BREACH OF WARRANTY, CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY OR OTHERWISE.

6.	Limitation of Liabilities.  IN NO EVENT SHALL NETAPP OR ITS LICENSORS BE LIABLE FOR ANY PROPERTY DAMAGE, PERSONAL INJURY, LOSS OF PROFITS OR DATA, INTERRUPTION OF BUSINESS, OR FOR ANY DIRECT, CONSEQUENTIAL, SPECIAL, INCIDENTAL OR INDIRECT DAMAGES OR COSTS (INCLUDING ATTORNEYS. FEES) OF ANY KIND, ARISING OUT OF OR RELATED TO THE USE OF THE SOFTWARE, HOWEVER CAUSED, WHETHER FOR BREACH OF WARRANTY, CONTRACT, IN TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, OR OTHERWISE, EVEN IF NETAPP HAS BEEN ADVISED OF OR HAS REASON TO KNOW OF THE POSSIBILITY OF SUCH DAMAGES.  FURTHER, LIABILITY FOR SUCH DAMAGE WILL BE EXCLUDED, EVEN IF THE EXCLUSIVE REMEDIES PROVIDED FOR IN THIS EULA FAIL OF THEIR ESSENTIAL PURPOSE.  IT IS UNDERSTOOD THAT THE SOFTWARE IS LICENSED TO COMPANY WITHOUT CHARGE.  THEREFORE THE TOTAL LIABILITY OF NETAPP AND ITS LICENSORS WITH RESPECT TO ANY CLAIM ARISING OUT OF THIS AGREEMENT SHALL NOT EXCEED ONE HUNDRED DOLLARS (US$ 100.00).  SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF CERTAIN DAMAGES, AND ONLY IN SUCH EVENT, THOSE EXCLUSIONS OR LIMITATIONS MAY NOT APPLY TO COMPANY.  THE FOREGOING SETS FORTH NETAPP.S (INCLUDING ITS LICENSORS.) ENTIRE LIABILITY AND COMPANY.S ENTIRE REMEDY UNDER THIS EULA.

7.	Compliance with Laws.   Each party shall comply with all applicable federal, state, local, and foreign laws and regulations, including but not limited to export laws and regulations.  Company will not export, directly or indirectly, the Software and/or any information acquired or derived under this EULA to any country for which the United States Government or any agency thereof at the time of export requires an export license or other governmental approval without first obtaining such license or approval.   

8.	Termination.  This EULA will be in full force and effect during the Beta Evaluation Period.  Either party may terminate this EULA by written notice to the other party.  Upon expiration of the Beta Evaluation Period or the termination of this EULA Company shall immediately return to NetApp or certify the destruction of the Software and all other Confidential Information.  The provisions of Sections 2 through 12 shall survive the expiration of the Beta Evaluation Period or termination of this EULA.

9.	Governing Law.  This EULA will be construed in accordance with and governed by the laws of the State of California, excluding its conflicts of law provisions.  Company acknowledges that any breach of this EULA would cause irreparable harm to NetApp for which monetary damages would not be an adequate remedy and that NetApp is entitled to equitable relief in addition to any other remedies it may have.  With the exception of such equitable relief, the parties hereby consent 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.  The United Nations Convention on Contracts for the International Sale of Goods is specifically disclaimed.

10.	Non-Assignment.  Company shall not sublicense, assign, or otherwise transfer any rights, duties or obligations under this EULA.  Any attempt to do so will be void.

11.	Severability.  In the event any provision is determined invalid by a court of competent jurisdiction, the remaining provisions of this EULA shall remain in full force and effect. 

12.	U.S. Government Rights.  The Software is Commercial-Off-the-Shelf (.COTS.) beta software developed at private expense; no portion of the Software has been developed with U.S. Government funds; the Software contain trade secrets and confidential information 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 subparagraph .C. of the Commercial Computer Software . Restricted Rights clause at FAR 52.227-19.  If there is a sale 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 DFARS 227-7202.  Contractor/manufacturer in such event is: NetApp, Inc., 495 East Java Drive, Sunnyvale, CA 94089.

NetApp Beta Test EULA v7Oct2010	

