NetApp Alliance Partner Program Agreement

This Alliance Partner Program Agreement ("Agreement") is entered into by the company identified in the NetApp Alliance Partner Program Application form ("Partner Program Participant" or "PPP"), and NetApp, Inc, with a principal place of business at 495 East Java Drive, Sunnyvale, California 94089 USA ("NetApp"), as of the date on which PPP indicates its acceptance of this Agreement (the "Effective Date") by clicking on the button below that is marked "I Accept".

  1. Introduction. The NetApp Alliance Partner Program ("Program") consists of this Agreement and the following attachment which is incorporated by reference herein: NetApp Alliance Partner Program Addendum ("Addendum") . The purpose and intent of this Agreement is to define the relationship and commitments between PPP and NetApp pursuant to the Program. The Program is designed to facilitate the creation and use of sales tools, support services, product training, and communications to organizations committed to the sale or recommendation and support of NetApp's products ("Product" or "Products"), as approved by NetApp. In the event of any conflict between versions of the Addendum accepted by PPP, the most recently executed Addendum shall control.
  2. Program Participation. Subject to the terms and conditions set forth in this Agreement, including the Addendum attached hereto, NetApp appoints PPP as a non-exclusive NetApp Alliance Partner Program Participant, with the rights and responsibilities specified in the attached Addendum.
  3. Program Benefits. During the term of this Agreement, PPP may promote itself as specified in the attached Addendum, and shall have the benefits that NetApp offers to such PPPs, as specified therein. This Agreement does not authorize the distribution or resale of Products. Any such distribution or resale by PPP shall be pursuant to a separate reseller or distributor agreement between PPP and NetApp or between PPP and an authorized NetApp distributor.
  4. Program Conditions and Requirements. PPP must at all time meet the conditions and requirements set forth in this Agreement and the attached Addendum. NetApp reserves the right, from time to time, to request information from PPP to confirm that PPP is fulfilling the conditions and requirements set forth in the attached Addendum. PPP agrees to reasonably cooperate with NetApp on all such inquiries, and to provide NetApp with all reasonably requested information relevant to the Program.
  5. Program Changes. NetApp reserves the right to modify or terminate the Program, including any condition, requirement or benefit. Any such changes or modification shall be effective upon written notice to PPP. NetApp will use commercially reasonable efforts to give PPP thirty (30) days notice of termination of the Program, or of any material change to the Program that would adversely affect PPP. Should PPP disagree with any change or modification, it may terminate this Agreement pursuant to Section 12 below.
  6. Software. Any not-for-resale or demonstration software ("Evaluation Software") provided by NetApp to PPP under the Program is to be used by PPP subject to the terms and conditions of the applicable end user license accompanying the Evaluation Software ("EULA"), and is solely for purposes of PPP's internal evaluation or for PPP's demonstration for customers. All such Evaluation Software and related materials in PPP's possession shall be destroyed or returned to NetApp at NetApp's written request upon termination of this Agreement. In the event of a conflict between the terms of this Agreement and the EULA, the terms of the EULA shall prevail for the Evaluation Software. Notwithstanding the foregoing, and except for evaluation period for SMBR Evaluation Software, the evaluation period is no more than ninety (90) days.

    If PPP desires to purchase systems solely for the purposes as stated in this section, NetApp shall offer such systems at discounted rates subject to the following terms and conditions: NetApp grants PPP a limited, personal, non-transferable license to use the software solely in the hardware configuration provided by NetApp for interoperability testing of hardware or software interfaces and other non-production use. PPP may not use software with other hardware configurations or for any "for profit", commercial or production purposes for a period of twelve (12) months following purchase. Production use of NetApp systems shall be subject to separate support and licensing agreements with NetApp.

    PPP agrees to turn on and maintain the auto support feature in all NetApp systems acquired under this Agreement for non-production purposes and to provide NetApp with periodic reports regarding the condition of said systems, including a report on all software that is enabled on such systems. NetApp reserves the right to audit the use of the NetApp systems during the twelve (12) period following purchase for compliance with these terms and reserves the right to collect all licensing or other fees for any hardware or software that enters into production, for-profit or commercial use within twelve (12) months of purchase by PPP.
  7. Development. If PPP chooses to enter into a development relationship with NetApp, the NetApp applicable software developer kits are available from the NTN website (NetApp Technology Network) and are subject to the terms and conditions accompanying the software developer kits at that website.
  8. Product Maintenance and Support. Product maintenance and support for Evaluation Software, if any, shall be set forth in an Addendum or may otherwise be purchased by PPP pursuant to NetApp's standard terms and conditions.
  9. Proprietary Rights.
    1. General. PPP will not remove, alter or obscure any copyright or other proprietary rights notices contained on any Product, Evaluation Software or materials provided by NetApp.
    2. Trademark Usage.
      1. Usage by PPP. Pursuant to the terms and conditions of this Agreement, NetApp grants PPP the non-exclusive terminable right and license to use the following trade names and trademarks: "NetApp", the NetApp logos for Products, the NetApp Alliance Partner Program, and the PPP designation and logo contained in the applicable Addendum (collectively, the "Marks"), during the term of this Agreement solely with respect to PPP's marketing of the Products. PPP agrees to abide by all NetApp trademark guidelines which are incorporated herein by reference and subject to modification by NetApp, at its sole discretion, upon written notice.
      2. Usage by NetApp. PPP grants to NetApp the non-exclusive terminable right and license to utilize PPP's trade names, trademarks, and logos during the term of this Agreement for the purpose of representing PPP as a participant of the Program. NetApp agrees to abide by all of the PPP's trademark and logo policies.
    3. Ownership. Neither party has paid any consideration for the use of the other party's trademarks, logos, copyrights, trade names or designations, and nothing contained in this Agreement shall grant either party any interest in any of them. PPP acknowledges that NetApp owns and retains all copyrights and other proprietary rights in all the Products. PPP agrees that it will not at any time during or after this Agreement assert or claim any interest in or do anything that may adversely affect the validity or enforceability of any Mark (including, without limitation, any act, or assistance to any act, which may infringe or lead to the infringement of any proprietary right in NetApp Products, trade names or trademarks). PPP agrees to use reasonable efforts to protect NetApp's proprietary rights and to reasonably cooperate without charge in NetApp's efforts to protect its proprietary rights. PPP agrees to promptly notify NetApp of any known or suspected breach of NetApp's proprietary rights.
  10. Confidentiality. In the course of this Agreement, either party may disclose to the other party trade secrets and confidential and proprietary information ("Confidential Information"), which shall include, but not be limited to software, documentation, customer information, pricing, data regarding business practices, intellectual property, technical information, ideas, documentation, know how, and processes. All Confidential Information shall remain the sole property of the disclosing party. Both parties agree that all Confidential Information of the other party will be held in confidence and will not be disclosed to any third party without the express written consent of the disclosing party. The provisions of this section shall not apply to any information or materials: (a) which become a matter of public knowledge through no fault of the receiving party; (b) which was in the possession of, or known by, the receiving party prior to its receipt from the disclosing party; (c) which are rightfully disclosed to the receiving party by another person not in violation of the proprietary or other rights of the disclosing party; (d) which are independently developed by the receiving party, or (e) is required to be disclosed by law, provided that the party required to make such disclosure shall be required to make reasonable efforts, consistent with applicable law, to limit the scope and nature of such required disclosure. Upon the disclosing party's request, all Confidential Information of that party will be returned or destroyed and the receiving party will provide certification of such destruction in writing. Both parties acknowledge that the above-described Confidential Information is claimed to be a valuable, special, and unique asset of the party disclosing the information and monetary damages may not be sufficient should there be any breach of this Agreement. Therefore, the disclosing party shall also be entitled to seek an injunction from a court of competent jurisdiction for the purpose of stopping or preventing any existing or anticipated breach of this Agreement, in addition to any other remedies at law. Should there be a dispute of this Agreement, the prevailing party shall be entitled to reasonable attorneys' fees and costs. The terms and conditions of this section shall survive the expiration and any termination of this Agreement.
  11. Conduct of Business. PPP shall conduct its business in a manner professionally and favorably representing NetApp and its Products. PPP shall reasonably cooperate with NetApp in resolving any customer complaints.
  12. Term and Termination. This Agreement shall become effective when accepted by NetApp as stated in the "Acceptance" provision below, and shall continue in effect for one (1) year from the Effective Date. This Agreement will automatically renew unless (a) a receiver is appointed for PPP or its property, (b) PPP becomes insolvent or unable to pay its debts as they mature, (c) PPP makes an assignment for the benefit of creditors, (d) PPP becomes the subject of any proceeding under any bankruptcy, insolvency or debtor's relief law or (e) PPP is acquired by a competitor of NetApp, or such competitor acquires a Controlling Interest in PPP. For purposes of this Agreement, "Controlling Interest" is defined as ownership of 5% or more of the assets or voting stock of PPP. This Agreement shall automatically terminate if PPP fails to pay the designated program fees in a timely manner.
    1. Notwithstanding the above, both parties acknowledge that neither party shall rely on this Agreement being extended or renewed. Furthermore, both parties shall have the right to terminate this Agreement at any time without cause by written notice. Each party shall use commercially reasonable efforts to give the other party thirty (30) days notice of termination of this Agreement.
    2. NEITHER PARTY WILL BE LIABLE FOR SEVERANCE PAYMENTS OR OTHER DAMAGES OR COSTS OF ANY NATURE ARISING FROM THE EXPIRATION OR TERMINATION OF THIS AGREEMENT IN ACCORDANCE WITH ITS TERMS.
  13. Relationship of Parties. PPP understands that notwithstanding the use of the term "partner", PPP shall remain an independent contractor and that this Program in no way creates a partnership, joint venture or alliance between PPP and NetApp or any joint liability. Neither party has, nor represents that it has, any power, right or authority to bind the other party, or to assume or create any obligation or responsibility, express or implied, on behalf of the other party or in the other party's name, except as expressly provided in this Agreement.
  14. Indemnification. PPP shall indemnify, hold harmless, and, upon NetApp's request, defend NetApp against any claims, liabilities, and expenses, including but not limited to court costs and attorney's fees, arising from the acts or omissions of PPP, its employees, and agents in connection with this Agreement.
  15. Limitation of Liability.
    1. NETAPP SHALL HAVE NO LIABILITY UNDER THIS AGREEMENT OR OTHERWISE FOR CONSEQUENTIAL, INCIDENTAL, SPECIAL, OR OTHER INDIRECT DAMAGES, OR FOR LOST PROFITS OR LOST DATA, EVEN IF NETAPP HAS KNOWLEDGE OF THE LIKELIHOOD OF SUCH DAMAGES. ANY LIABILITY OF NETAPP TO PPP HEREUNDER SHALL BE LIMITED TO THE GREATER OF THE AMOUNTS PAID BY PPP TO NETAPP UNDER THIS AGREEMENT OR $10,000 U.S.
    2. NETAPP DISCLAIMS ALL EXPRESS AND IMPLIED WARRANTIES WITH REGARD TO THE PROGRAM AND ALL PRODUCTS, INCLUDING THE WARRANTIES OF MERCHANTABILITY, SATISFACTORY QUALITY, NON-INFRINGEMENT AND FITNESS FOR A PARTICULAR PURPOSE.
  16. Laws. Each party shall comply with all applicable federal, state, local and foreign laws, and regulations, 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.
  17. General. Sections 6 through 10 and 12 through 18 shall survive termination of this Agreement. This Agreement supersedes all previous agreements and representations of or on behalf of the parties with respect to the subject matter of this Agreement. NetApp's or PPP's failure or delay in exercising any of its rights will not constitute a waiver of such rights unless expressly waived in writing. PPP may not assign this Agreement without NetApp's prior written approval. This Agreement shall be governed and interpreted in accordance with the laws of the State of California, except for the body of law pertaining to conflicts of law. If a court of law finds any provision of this Agreement unenforceable, the parties agree to replace the offending provision with an enforceable provision that most nearly achieves the intent and economic effect of the unenforceable provision. Any notice provided hereunder must be in writing and will be deemed given upon the earlier of actual receipt or ten (10) days after being sent by first-class mail, return receipt requested, to the appropriate address set forth below, as such address may be changed by written notice. This Agreement, including Program Addenda, constitute the entire agreement between the parties.
  18. ACCEPTANCE – PLEASE READ CAREFULLY. This NetApp Alliance Partner Program Agreement is a legal agreement between NetApp, Inc. and the Partner Program Participant ("PPP"). By signing below, you are representing that you are authorized to bind the PPP and are agreeing on behalf of the PPP that the terms and conditions herein shall govern this relationship. Acceptance into the NetApp Alliance Partner Program Agreement is at the sole discretion of NetApp and shall not be binding until the PPP receives from NetApp an acceptance notification sent via the e-mail address provided by the PPP in the NetApp Alliance Partner Program Application.

NetApp Alliance Partner Program v.01-25-10