 

                         NETAPP, INC.
                     BETA TEST AGREEMENT
                             For
               "Storage Services Connector 2.0"

  

1.  LOAN.  NetApp will loan to you, at no charge, for beta test 
purposes only, the product Storage Services Connector 2.0 Product 
("Product") which is under development by NetApp ("Beta Test"). 
The parties acknowledge that the Product is experimental. You 
agree to the Beta Test requirements herein. All rights and title 
to the Product remain with NetApp.  You shall not mortgage, pledge 
or encumber the Product in any way.  You shall keep the Product in 
good condition and working order and ensure that all maintenance 
shall be performed by NetApp or its designated agents.

2.  LICENSE.  NetApp grants to you, for the term of this 
Agreement only, a personal, non-transferable, non-exclusive 
license to use the Product in object code form only and only for 
use in conjunction with NetApp equipment.  

3.  COPIES.   You may make one (1) copy of the Product licensed 
by NetApp for backup and archive purposes only.  All copies of the 
Product must be destroyed or returned to NetApp at the conclusion 
of the Beta Test period.

4.  PROTECTION AND SECURITY OF PRODUCT.  The Product is 
proprietary to NetApp.  You shall not make the Product available 
in any form to any person other than your employees who require 
such access in the performance of their jobs.  You shall take 
appropriate action to protect the confidentiality of the Product 
and to ensure that any person permitted access to the Product has 
signed a written non-disclosure agreement and does not provide the 
Product to others.  You shall not reverse-assemble, reverse-
compile, or otherwise reverse-engineer the Product.

5.  NO OBLIGATION.  You shall have no obligation or commitment 
with respect to the purchase of any Product(s) from NetApp.

6.  COOPERATION.  You shall use the Product and will cooperate 
with NetApp in the evaluations of the Product.  You will provide 
NetApp access to observe and test the Product at your site and to 
make such modifications, as NetApp may deem necessary or useful.  
NetApp shall be under no obligations to make any tests or 
modifications.  NetApp agrees to conduct activities in a manner 
that will not unreasonably interfere with your usual business 
activities.

7.   TEST RESULTS.  You will make available to NetApp feedback 
from your use of the Product including, but not limited to, test 
results, deficiencies, corrections, and suggested improvements.  
NetApp may use such feedback, in its sole discretion, and such 
right shall survive the expiration or termination of this 
Agreement.

8.  LOSS OR DAMAGE.  You shall keep the Product at its site and 
shall not make any changes or modifications to the Product without 
NetApp s written consent.  You shall notify NetApp of any loss or 
damage to the Product.  You shall be liable for any damage to the 
Product and shall pay NetApp for the value of any Product in the 
event it is destroyed, damaged or not properly maintained while in 
your custody. 

9.  RETURN OF PRODUCT.  You shall return the Product, upon the 
termination of this Agreement, in the same condition as when the 
Product was provided by NetApp, excluding ordinary wear and tear.  
You shall destroy all copies of the Product.  You shall pay all 
costs of shipping the Product to NetApp upon termination of this 
Agreement.  You shall be liable for any damages to the Product 
between the time the Product is delivered to you by NetApp and the 
time when it is received by NetApp from you.

10.  WARRANTY DISCLAIMER.  THE PRODUCT IS PROVIDED "AS IS" 
WITHOUT WARRANTY OR SUPPORT OF ANY KIND.  NETAPP MAKES NO 
WARRANTIES WITH RESPECT TO THE PRODUCT, EITHER EXPRESS OR IMPLIED, 
INCLUDING ANY IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR 
A PARTICULAR PURPOSE.  

11.  LIMITATION OF LIABILITY.  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.

12.  DEVELOPMENT.  Although NetApp's present intentions are to 
develop a commercial product from the Product, NetApp does not 
agree to release and/or offer for sale or license the Product, or 
any other product(s), at any time and is without any obligation or 
liability to provide product(s) to you.

13.  CONFIDENTIALITY.  You shall keep all information concerning 
the Product, including its existence, the Beta Test policies and 
procedures, and the terms of this Agreement "confidential," 
pursuant to the terms of the confidentiality terms herein.  

14.  OWNERSHIP.  All right, title and interest to any invention 
or derivative work relating to the Product or an improvement of 
the Product, conceived of, made in the course of, or as a result 
of your performance under this Agreement, shall be the exclusive 
property of NetApp.

15.  TERM AND EXPIRATION.  This Agreement shall commence on the 
date of delivery of the Product, and shall expire seventy (70) 
days thereafter, or on a later date mutually agreed upon in 
writing by the parties.

16.  GENERAL  

16.1  Controlling Law.  This Agreement is governed by the laws of 
the State of California, excluding its conflict of laws 
provisions.

16.2  Non-assignment.  You shall not sublicense, assign or 
otherwise transfer any rights, duties or obligations under this 
Agreement without the prior written consent of NetApp.

16.3  Entire Agreement.  This Agreement contains the entire 
agreement between the parties with respect to the Beta Test and 
subject matter set forth herein.  This Agreement may not be 
modified or changed in any manner except in writing by authorized 
representatives of both parties.  

Beta Testing Procedures:

1. Prior to start of the Beta Test, a pre-installation call will 
be scheduled to review installation logistics. 

2. The Product will be delivered or a download version available 
at the start of the early access program.

3. The beta testing process requires that the "Storage Services 
Connector 2.0" be installed and tested at the beginning of the 
Beta Test.

4. Change autosupport configuration to the engineering alias:

a. For problems with testing, send email to: xdl-ssc-beta-
program@netapp.com


b. During the Beta Test, at least one (1) conference call will be 
arranged to discuss testing progress and results. This call will 
be arranged through the Network Appliance point of contact.

c. At the completion of the Beta Test, please send an email 
summary describing how the feature was tested, any and all results 
and feedback to:


Confidentiality Terms for the Agreement

NetApp is considering disclosing confidential or proprietary 
information to you for the purpose of beta testing the Product as 
identified in the Beta Test Agreement.

You agree as follows:

1.  "Confidential Information" herein means (1) any information 
disclosed by NetApp that is marked "confidential" or "proprietary" 
in the manner provided by this Agreement, (2) information 
disclosed orally or visually that is designated "confidential" or 
"proprietary" at the time of disclosure, and that NetApp 
summarizes in reasonable detail in a writing delivered to the 
other party within 30 days, and (3) any information whether or not 
marked "confidential" which is specifically designated as such by 
NetApp.
  
2.  This  applies to all Confidential Information disclosed in 
connection with the Beta Test Agreement, beginning on the 
Effective Date stated herein.   Confidential Information may only 
be used for the purpose identified in the Agreement.

3.  Confidential Information will remain the property of the 
NetApp.  You agrees that for a period of three (3) years from the 
date of disclosure, or indefinitely for source code, NetApp's 
Confidential Information will be disclosed or disseminated only to 
your employees and consultants who have a need to know and who are 
under a similar written obligation limiting the use and disclosure 
of NetApp's Confidential Information to the same extent provided 
in this Agreement.  You will NOT copy, duplicate, reverse 
engineer, reverse compile or attempt to derive the composition or 
underlying information of any Confidential Information.
  
4.  This Agreement shall not apply to such information that you 
can document:

(a) is in or enters the public domain through no fault of          
    yours; 
(b) is disclosed to you by a third party without an 
    obligation of confidentiality; 
(c) is independently developed by you;
(d) is already known to you at the time of disclosure under 
    this Agreement;  
(e) is required to be disclosed pursuant to any judicial or 
    administrative proceeding, provided that you immediately 
    after receiving notice of such action notifies NetApp of 
    such action to give NetApp the opportunity to seek any 
    other legal remedies to maintain such information in 
    confidence;
(f) is disclosed with the prior written consent of NetApp.
  
5.  If requested by NetApp, you will promptly return all 
Proprietary Information and any and all copies.

6.  You shall use the same degree of care to protect the 
confidentiality of all information it receives from NetApp, as you 
would use to protect its own Confidential Information.  However, 
in no event shall such degree of care less than a reasonable 
degree of care.  You will promptly notify NetApp of any 
unauthorized release of Proprietary Information.  You further 
understand that this Agreement does not obligate NetApp to 
disclose any information or negotiate or enter into any other 
agreement or relationship.

7.  You acknowledge and agree that due to the unique nature of 
the Confidential Information, any breach of this Agreement would 
cause irreparable harm to NetApp and that NetApp shall therefore 
be entitled to equitable relief in addition to all other remedies 
available at law.

NetApp Beta Test Agreement
Rev 3
08/20/08



