Manage ONTAP™ SOFTWARE DEVELOPER'S KIT (SDK) SOFTWARE LICENSE

IMPORTANT: READ THIS LICENSE CAREFULLY BEFORE INSTALLING OR USING SOFTWARE

The Products identified in Exhibit A, and any related computer software, associated media, printed materials, and “online” or electronic documentation are subject to the following license. YOU AGREE TO BE BOUND BY THE TERMS OF THIS LICENSE 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 NETWORK APPLIANCE, INC. (“NETAPP”).

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. Products consist of components, which may include development toolkits, operating systems, protocols, specifications, product documentation, sample applications, server applications, other applications, development and developer tools, tests, test scripts, libraries, platforms, server products, and the like. This license defines your rights to the components and Products under the Manage ONTAP Software Developers Kit (SDK).

1. LICENSE

Network Appliance, Inc. (“NetApp”) grants Developer a nonexclusive, worldwide license to use the accompanying software as specified herein in source and object code form (“Software”) solely for Developer’s development use, together with the accompanying documentation. Developer shall only use the Software on NetApp’s products, and in the manner specified in the user documentation. This license is further restricted to the particular protocols and accompanying documentation purchased hereunder. For each Product licensed, licensee’s employees are authorized to use, copy, install and make derivative works thereof for the development of solutions that utilize Network Appliance technology and in accordance with this license. 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. Products are provided AS IS without warranties of any kind, except as otherwise provided in this Agreement. Network Appliance 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 code expires upon the availability of general release of the pre-release code from Network Appliance.

No distribution or re-distribution rights are granted by this license, except as specified in this paragraph. Notwithstanding the terms of this License to the contrary, certain of the components of the SOFTWARE 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. RESTRICTIONS

NetApp shall retain title to the Software and the accompanying documentation and all copies thereof. Developer shall not make any copies of the Software except as reasonably required for backup and development purposes. Developer shall not, nor shall Developer 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. Developer 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. Developer must take adequate steps to protect the Software from unauthorized disclosure or use.
Any feedback or technical information you provide back to Network Appliance may be used by Network Appliance 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 Network Appliance and shall be kept confidential by you and not disclosed to third parties without Network Appliance’s prior written permission.

3. TERMINATION OF LICENSE

This License is effective until terminated. The License will terminate automatically if:

I) Developer fails 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 Section 2 herein).

ii) Developer becomes insolvent, files, or has filed against it a petition under applicable bankruptcy or insolvency laws which is not dismissed within ninety (90) days; proposes any dissolution, composition or financial reorganization with creditors; makes an assignment for the benefit of creditors; or if a receiver, trustee or similar agent is appointed or takes possession with respect to any property or business of the defaulting party. The termination of this Agreement shall not relieve Developer from its obligations to immediately pay NetApp any sums accrued hereunder prior to such termination.

iii) Developer is acquired by an enterprise storage vendor.

iv) Developer attempts to transfer this license.

Upon termination, Developer shall immediately cease all use of the Software, deinstall it, and return or destroy all copies of the Software and all portions thereof and the accompanying documentation and so certify to NetApp.

When Developer installs upgraded Software, Developer loses its license to use the previous version. Developer must discontinue using the previous version immediately upon installing the upgrade.

Except for the Use License granted in Section 1, Developer’s obligations under this Agreement shall survive termination. Termination is not an exclusive remedy and all other remedies will be available whether or not the License is terminated.

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 Developer’s 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, WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR NONINFRINGEMENT. SOME JURISDICTIONS DO NOT ALLOW LIMITATIONS OF IMPLIED WARRANTIES; THESE LIMITATIONS MAY NOT APPLY TO DEVELOPER.

5. LIMITATIONS OF LIABILITY

DEVELOPER NETAPP’S TOTAL LIABILITY FOR ANY DAMAGE OR CLAIM ARISING FROM LICENSING OR USE OF THE SOFTWARE OR THE ACCOMPANYING DOCUMENTATION IS $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 hardware and software are 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 hardware or software 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 Developer is 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: Network Appliance, Inc., 495 East Java Drive, Sunnyvale, CA 94089. Except as expressly licensed hereunder, all rights are reserved.
NetApp’s Software is subject to U.S. export control laws and may be subject to export or import regulations in other countries. Developer must comply with all applicable regulations and obtain licenses to export, re-export, or import the Software.
Both parties, at all times, must comply with all applicable laws, ordinances, statutes, rules, and regulations.

7. TRANSFERABILITY OF LICENSE

THIS LICENSE IS PERSONAL TO DEVELOPER. DEVELOPER 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. PATENT, COPYRIGHT AND PROPRIETARY RIGHTS INDEMNITY.

NetApp shall, at its expense, defend and indemnify Developer for damages and reasonable costs incurred in any suit or claim brought against Developer alleging that the Products sold pursuant to this Agreement infringe any U.S. patent, copyright, trade secret or similar right provided that NetApp is promptly notified, rendered reasonable assistance by Developer as required, and permitted to direct the defense or settlement negotiations. NetApp shall have no liability for any infringing combinations arising from the integration of NetApp’s Products together with other products provided by Developer or any third party.

Should the use of Product by Developer be enjoined, or in the event NetApp wishes to minimize its potential liability hereunder, NetApp may, at its option, either: (i) substitute a fully equivalent non-infringing unit t; (ii) modify the infringing item so that it no longer infringes but remains functionally equivalent; (iii) obtain for Developer, at NetApp’s expense, the right to continue use of such item. ; or (iv) take back such infringing item or items.

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. 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 laws provisions. Developer agrees that a material breach of this Agreement by it 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 Software hereunder.

EXHIBIT A. Network Appliance Inc. Products subject to this License

ONTAPI – Network Appliance Manage ONTAPI Application Interface
Manage ONTAP Developers Web Portal
VPOLICY – Network Appliance Virus Scanning Interface
FPOLICY – Network Appliance File Notification Interface