“Documentation” means the then current documentation published by NetApp on https://www.netapp.com/ relating to the description, operation and use of the Software, including technical program and interface documentation, user manuals, operating instructions and release notes.
“NetApp Cloud Provider” means a third party authorized by NetApp to offer or enable the use of the Software as part of such provider’s cloud-based service.
“NetApp Partner” means an authorized NetApp distributor, reseller or other partner authorized to resell Software.
“Open Source Software” means third party software that is openly and freely licensed under the terms of a public license designated by the third party.
“Software” means NetApp-branded software in object code format including as applicable, operating system software, protocols, firmware, backup and recovery, disaster recovery, storage efficiency and management software.
SCOPE. This NetApp Software end user license agreement (“EULA”) is between you (“You” or “Your”), and NetApp, Inc. or the NetApp entity that owns or licenses the Software to You (“NetApp”). This EULA sets forth the terms under which NetApp licenses Software and Documentation to You. In the absence of a more specific written agreement that includes licensing terms that govern Your use of the Software, this EULA applies to Software and Documentation obtained by You directly from NetApp, indirectly from a NetApp Partner or a NetApp Cloud Provider 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 or NetApp Cloud Provider (for indirect transactions). This EULA does not entitle You to receive Software updates, upgrades, technical support or professional services, which must be purchased separately unless otherwise provided at NetApp’s discretion, which may include updates to address security vulnerabilities.
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 exclusively governs NetApp’s license to You and Your use of the Software and Documentation unless You have a separate applicable written agreement with NetApp. 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 means your entity and you are binding you entity to this EULA and 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. The Effective Date of this EULA (“Effective Date”) is the date which is the earlier of (a) Your initial access to or use of the Software or (b) the effective date of the first order referencing this EULA.
LICENSE GRANT. Subject to the terms and conditions of this EULA and any limitations prescribed by NetApp in an order or in the Documentation, 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 during the applicable license term for Your internal business purposes, in accordance with this EULA, your applicable scope of use, the Documentation and all applicable laws, and ii) use the Documentation in support of Your use of the Software. Your 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 is one of the following license types:
“Life-of-controller”: Controller-based licenses granted for the period during which Your controller is operable;
“Perpetual”: Standalone licenses granted in perpetuity;
“Term”: Controller-based licenses or Standalone licenses granted for a fixed period; or
“Capacity”: Controller-based licenses or Standalone licenses granted for a specified amount of storage capacity or usage, which may be measured as “raw” or “provisioned” storage capacity, number of hosts, or other measure of usage as prescribed by NetApp.
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. Certain license types may require the enablement and use of NetApp’s remote support diagnostics systems.
LICENSE RESTRICTIONS. You must comply with the EULA terms at all times when using the Software and Documentation. You will not, nor will You allow anyone else to:
use the Software in breach or excess of any limitations (e.g. the types, quantities, user limits, time limits, capacity limits) prescribed by NetApp and other usage attributes related to Your Software license;
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 law or as expressly permitted in Open Source Software licenses;
remove or conceal any Software identification, proprietary, intellectual property or other notices in the Software or Documentation;
use the Software or Documentation to perform services for third parties in a service bureau, managed services, commercial hosting services or similar environment, unless otherwise agreed to in writing by NetApp;
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, unless otherwise agreed in writing by NetApp;
install Controller-based licenses on or use them with third party hardware or any second-hand or grey market hardware not purchased by You from NetApp or a NetApp Partner;
modify, adapt or create a derivative work of the Software or Documentation;
publish or provide any Software benchmark or comparison test results; or
use the Software for any benchmarking or competitive purposes or activities, including but not limited to, developing similar or competing products or services.
Use of the Software outside of the scope of the terms set forth in the EULA constitutes a material breach of this EULA.
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.
WARRANTY & DISCLAIMER.
NetApp warrants that for a period of 90 days from the initial delivery of the Software or such other minimum period required under applicable law (the “Software Warranty Period”), (a) the Software will materially conform to the then-current Documentation; and (b) to the extent Software is delivered on media, the Software media will be free from physical defects. NetApp does not warrant that Your use of the Software will be error-free or uninterrupted. In the event of any material non-conformity in the Software during the Software Warranty Period that is reproducible and verifiable, NetApp will, at its sole discretion and at its own expense, (i) repair or replace the Software, or (ii) refund the amounts received by NetApp for the non-conforming Software. If NetApp repairs or replaces the Software, the warranty will continue to run from the date of initial delivery of Software, and not from Your receipt of the repair or replacement. This warranty does not cover software, other items, or any services provided by persons other than NetApp. TO THE EXTENT PERMITTED BY APPLICABLE LAW, THE FOREGOING WARRANTY IS YOUR SOLE AND EXCLUSIVE WARRANTY AND REMEDY. NETAPP MAKES NO OTHER WARRANTIES AND SPECIFICALLY DISCLAIMS ALL OTHER WARRANTIES, EXPRESS, IMPLIED OR STATUTORY, INCLUDING ANY IMPLIED WARRANTIES OF MERCHANTABILITY, ACCEPTABLE OR SATISFACTORY QUALITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT. NETAPP DOES NOT WARRANT AGAINST LOSS OR INACCURACY OF DATA OR THAT THE OPERATION OF THE SOFTWARE WILL BE UNINTERRUPTED OR ERROR FREE. YOU ARE RESPONSIBLE FOR ENSURING THAT YOU HAVE APPROPRIATE DATA BACK-UP, DATA RECOVERY AND DISASTER RECOVERY MEAURES IN PLACE. THE WARRANTY IN THIS SECTION 7 WILL NOT APPLY IF NETAPP MAKES THE SOFTWARE GENERALLY AVAILABLE AT NO COST.
The warranty set forth above will not apply and will become null and void if You materially breach any provision of this EULA, or if You or a third party provided access to the Software by You, whether or not in violation of this EULA:
installs or uses the Software on or in connection with any hardware or software not specified in the Documentation or expressly authorized by NetApp in writing;
modifies or damages the Software, or the media on which it is provided, including abnormal physical or electrical stress;
misuses the Software, including modifying, altering or exchanging the storage media on a storage controller associated with a Controller-based license, or any other use of the Software other than as specified in the Documentation or expressly authorized by NetApp in writing;
neglect or attempt to repair the Software unless expressly authorized by NetApp in writing; or
uses the Software beyond the range of intended use.
LIMITATION OF LIABILITY.
DISCLAIMER OF INDIRECT DAMAGES. TO THE MAXIMUM EXTENT PERMITTED UNDER APPLICABLE LAW, IN NO EVENT SHALL NETAPP OR ITS AFFILIATES, OR ANY OF ITS OR THEIR RESPECTIVE DIRECTORS, OFFICERS, SHAREHOLDERS, EMPLOYEES AND LICENSORS, BE LIABLE TO YOU OR ANY THIRD PARTY FOR ANY CONSEQUENTIAL, INCIDENTAL, SPECIAL, INDIRECT, PUNITIVE OR EXEMPLARY DAMAGES, INCLUDING WITHOUT LIMITATION, LOST PROFITS, LOSS OF USE, BUSINESS INTERRUPTIONS, REVENUE, GOODWILL, OR ANTICIPATED SAVINGS, LOSS OR CORRUPTION OF DATA OR COSTS OF PROCUREMENT OF SUBSTITUTE GOODS OF SERVICES, IN CONNECTION WITH OR ARISING OUT THIS EULA, WHETHER ALLEGED AS A BREACH OFCONTRACT OR TORTIOUS CONDUCT, INCLUDING NEGLIGENCE, OR OTHERWISE, AND WHETHER OR NOT NETAPP WAS ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
LIMITATION OF LIABILITY. TO THE MAXIMUM EXTENT PERMITTED UNDER APPLICABLE LAW, NETAPP’S AND ITS AFFILIATES’, INCLUDING ANY OF ITS OR THEIR RESPECTIVE DIRECTORS’, OFFICERS’, SHAREHOLDERS’, EMPLOYEES’ AND LICENSORS’ AGGREGATE AND CUMULATIVE LIABILITY ARISING FROM OR RELATING TO THIS EULA, UNDER ANY LEGAL OR EQUITABLE THEORY, INCLUDING BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), STATUTE, STRICT LIABILITY, OR OTHERWISE, IS LIMITED TO DIRECT DAMAGES IN AN AMOUNT NOT TO EXCEED THE AMOUNT PAID (OR OWED) BY YOU FOR THE SOFTWARE THAT GAVE RISE TO THE CLAIM, IN THE TWELVE (12) MONTHS PRECEDING THE CLAIM.
EXCLUSIONS. NOTHING IN THIS EULA IS INTENDED TO EXCLUDE OR LIMIT EITHER PARTY’S LIABILITY FOR DEATH OR PERSONAL INJURY CAUSED BY NEGLIGENCE, OR FOR FRAUD OR WILLFUL MISCONDUCT. NOTHING IN THIS SECTION 8 WILL LIMIT THE FEES OWED BY YOU UNDER THIS EULA FOR SOFTWARE OR FOR EXCEEDING THE SCOPE OF THE LICENSE GRANTED IN THIS EULA. THIS EXCLUSION IS INDEPENDENT OF ANY REMEDY SET FORTH IN THIS EULA.
AUDIT. Upon reasonable notice, You grant NetApp and its independent accountants the right to examine Your Software use annually to verify compliance with this EULA. If the audit discloses over-usage or any other material non-compliance, then a) You will promptly pay to NetApp or to a NetApp Partner, as designated by NetApp, any additional fees that NetApp or a NetApp Partner notifies You are owed, and the reasonable costs of conducting the audit; and b) NetApp may conduct subsequent audits, upon reasonable notice, as NetApp reasonably determines is necessary to verify compliance with this EULA.
TERMINATION. This EULA is effective as of the Effective Date and will continue until termination. NetApp may terminate the EULA immediately on written notice for: (a) Your material breach of the EULA, if such breach is not cured (or curable) within 30 days from date of such notice; or (b) You file or have filed against You, a petition for voluntary or involuntary bankruptcy or pursuant to any other insolvency law, make or seek to make a general assignment for the benefit of creditors, or apply for, or consent to, the appointment of a trustee, receiver, or custodian for a substantial part of Your property. Any failure to remit payments in relation to the Software and Documentation when due, whether payable to NetApp or a NetApp Partner, constitutes a material breach of this EULA. Upon expiration or termination of this EULA, the license granted to You will end (unless such license is perpetual and You remain in compliance with the terms of this EULA which will survive termination or expiration) and You will promptly cease using and will return or destroy (at NetApp’s request) all copies of the Software and Documentation, including any license enablement keys. Termination will not: (a) relieve You from any payment obligations with respect to any sums accrued prior to termination which will become immediately due and payable or (b) entitle You to any refund. Upon such termination, any terms, which upon a plain reading, are intended to survive termination or expiration of this EULA, shall survive expiration or termination of this EULA.
EXPORT. You acknowledge that the Software and Documentation are subject to export controls under the laws and regulations of the United States, the European Union and other countries (as applicable), and that Software and Documentation may include technology controlled under export and import regulations, including encryption technology. You agree to comply with such laws and regulations and to provide NetApp destination end use and end user information. Software and Documentation and access to related technology and intellectual property (collectively, “Materials”) are intended for Your own use. You will not resell, export, re-export, divert or transfer Materials to Prohibited Persons or into Restricted Countries. “Prohibited Persons” means sanctioned individuals and entities, including without limitation persons on the U.S. Denied Persons, Entity and Specially Designated Nationals Lists. “Restricted Countries” means countries and regions subject to embargoes or trade sanctions programs, including without limitation Cuba, Iran, North Korea, Syria, Russia, Belarus, The Crimean, Luhansk and Donetsk regions of Ukraine, and the Kherson and Zaporizhzhia oblasts of Ukraine. You will not use the Materials for any purposes prohibited by United States or other applicable laws, including but without limitation, the development, design, manufacture or production of nuclear, missile, chemical biological weaponry or other weapons of mass destruction. You are responsible for obtaining all required authorizations, permits, and licenses to import, export, re-export or transfer Materials. You agree to obligate, by contract or other similar assurances, the parties to whom You re-export or otherwise transfer the Software and Documentation to comply with all obligations set forth in this Section.
U.S. GOVERNMENT CUSTOMERS. This Section applies to You only if You are a U.S. Government customer. The Software and Documentation are “commercially available off the shelf” items as defined in FAR 2.101, and their use is subject to the policies, as applicable, set forth in FAR part 12, specifically but not limited to FAR subpart 12.211 and 12.212, as well as DFARS subpart 212.2, specifically but not limited to 212.211 and 212.212. You will not be subject to applicable audit costs specified in this EULA. Disputes will be subject to resolution pursuant to the Contract Disputes Act of 1978. Nothing contained in this Section is meant to derogate the rights of the U.S. Department of Justice as identified in 28 U.S.C. §516. Contract Disputes Act of 1978. All other provisions of this EULA remain in effect as written.
EVALUATION OR PRE-RELEASE SOFTWARE. This Section applies to You only if You are acquiring generally available Software for the purposes of evaluation (“Evaluation Software”) or Software specifically identified by NetApp as alpha, beta, pre-release, demonstration or preview (“Pre-Release Software”). Unless otherwise agreed in writing by NetApp, Evaluation Software or Pre-Release Software may be used a) for a period not exceeding 90 days from the of initial delivery the Evaluation Software or Pre-Release Software (“Evaluation Period”) and b) up to the maximum amounts of storage capacity, number of hosts or other measure of usage as specified in the Documentation. Unless otherwise agreed in writing by NetApp, Evaluation Software or Pre-Release Software may only be used in non-production environments and not for commercial purposes. You agree to deinstall (or delete as applicable) the Evaluation Software or Pre-Release Software at the expiration of the Evaluation Period (and, where applicable, return or destroy the applicable license keys as requested by NetApp). For the avoidance of doubt, Software is considered in use when installed or deployed after expiration of the Evaluation Period, If You fail to do so within 30 days of the end of the Evaluation Period, You will pay fees to NetApp, calculated in accordance then current with the applicable then current NetApp price list. You agree to cooperate with NetApp in testing the Pre-Release Software and providing feedback, to NetApp, which NetApp can use without restriction, concerning the functionality and performance of the Pre-Release Software. (“Feedback”). You acknowledge that the Pre-Release Software and Feedback are proprietary and confidential information of NetApp (“Confidential Information”). You will not make the Confidential Information available in any form to any person other than to Your employees or consultants with a need to know and who are under an obligation of confidentiality not to disclose such Confidential Information. You will use the same degree of care to protect the confidentiality of such Confidential Information as You use to protect Your own confidential information. NOTWITHSTANDING ANYTHING TO THE CONTRARY IN SECTIONS 7 (WARRANTY) AND 8 (LIMITATION OF LIABILITY) ABOVE, EVALUATION SOFTWARE AND PRE-RELEASE SOFTWARE IS PROVIDED “AS IS” WITHOUT ANY WARRANTIES OR REPRESENTATIONS EXPRESS, IMPLIED, OR STATUTORY, INCLUDING, WITHOUT LIMITATION, WARRANTIES OF QUALITY, PERFORMANCE, MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT, AND NETAPP DISCLAIMS ANY AND ALL LIABILITIES TO THE MAXIMUM EXTENT PERMITTED BY LAW.
USAGE DATA. NetApp retains all right, title and interest in data generated or derived from the usage, configuration, deployment access, performance and operation of the Software including but not limited to configuration data, system architecture, product versions and Software performance data (“Usage Data”), excluding any of Your personal information contained therein. Without limiting the foregoing, NetApp may collect and use Usage Data to provide, support and improve the Software and NetApp’s other products and services and for other business purposes in support of the development, deployment, operation, support, provision and enhancement of the Software. All such data and information will be collected and used by NetApp in accordance with NetApp’s Privacy Policy at https://www.netapp.com/company/legal/privacy-policy/.
GOVERNING LAW AND ENFORCEMENT RIGHTS. This EULA the interpretation hereof, and any dispute arising hereunder will be governed by the laws of the state and/or country where NetApp entity that entered into the EULA is incorporated, excluding any relevant conflict of law provisions. The United Nations Convention on Contracts for the International Sale of Goods will not apply to this EULA. 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.
THIRD PARTY MATERIALS. To the extent that Software may include or be distributed with third party software components, including free, copyleft, and Open Source Software components, such components are distributed in compliance with their applicable license terms and may be provided with the Software or available for review with the Documentation at https://mysupport.netapp.com/, within a “NOTICE” file (e.g., NOTICE.PDF or NOTICE.TXT) or included within the downloaded files, and/or reproduced within the materials or Documentation accompanying the Software. With regard to such components, the terms of the applicable license for such components supersede the terms set forth in this EULA. You are bound by, and shall comply with, all such license terms.
GENERAL. 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. You may not assign or otherwise transfer any rights or delegate any obligations under this EULA without the prior written consent of NetApp. Any purported assignment by You without NetApp’s prior written consent will be null and void. To the extent that any Section of this EULA, or part thereof, is determined to be invalid or unenforceable, the remainder of this EULA will 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 conflict between the English and non-English version of the EULA (where translated for local requirements), the English version of this EULA will 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.
