Keystone Staas Terms

Keystone StaaS And Xaas With Netapp Keystone Terms

Keystone Staas Terms

These Keystone StaaS Terms and XaaS with NetApp Keystone (“Keystone StaaS Terms”), together with the General Terms, set forth the terms and conditions under which NetApp will provide Keystone StaaS Services to Customer, whether acquired directly from NetApp or from a NetApp Partner or, where applicable, a NetApp Cloud Provider.

Scope of StaaS Services.
1. Scope. NetApp will perform the StaaS Services in accordance with the applicable NetApp quotation and corresponding Order, the Service Description, and these Keystone StaaS Terms.
Ownership; Right to Use.
1. Right to Use StaaS Products. The StaaS Services provide End User with the right to use StaaS Products, and do not transfer any ownership or title, or grant any license to End User. NetApp retains sole and exclusive title to the StaaS Products and all of their components. The StaaS Services are provided to End User for End User’s use for internal business purposes and are not for resale or redistribution. The StaaS Products may include software that is openly and freely licensed under the terms of a public license designated by a third party. Nothing in these Keystone StaaS Terms grants End User rights that supersede those contained in an applicable license for the open source software.
2. Risk of Loss. Save where such loss or damage is caused by NetApp, End User is solely responsible for any loss or damage to the StaaS Products from the date of delivery to the date of return to NetApp or other final disposition of the StaaS Products as provided in Section 7.3 and the applicable NetApp quotation or Order. No such loss or damage will relieve End User of any of its obligations under these Keystone StaaS Terms or the applicable NetApp quotation or Order.
3. Selection of StaaS Products. StaaS Products are selected by NetApp, activated and made available solely to support NetApp’s delivery of the StaaS Services.
4. Location and Use of StaaS Services. End User may only use StaaS Services on the StaaS Products provided by NetApp in connection with the applicable NetApp quotation or Order at the End User Site. StaaS Products may be physically located on or accessible at premises that End User either owns or controls. Unless otherwise expressly permitted in a Service Description or the applicable NetApp quotation or Order, End User will not, nor will End User permit any third party to, combine, use or otherwise incorporate (whether physically or logically) the StaaS Services or the StaaS Products with any hardware storage products or services (which may include, but are not limited to, any NetApp hardware storage products or services supplied by NetApp under a separate NetApp quotation or Order, or agreement).
5. No Custom Development. StaaS Services are of a scalable, repeatable nature and, as such, the same or similar services have been and will continue to be provided to other End Users. No custom development activity will be performed as StaaS Services.
6. Activation. Once activated by NetApp, the Subscription Term commences and the StaaS Services are available for End User use.
Performance Service Levels; Warranty and Disclaimer.
1. Performance Service Levels. NetApp will provide the StaaS Services in accordance with the Service Levels described in the Service Description.
2. Warranty. NetApp warrants that StaaS Services will be performed in a professional and workerlike manner consistent with generally accepted industry practices.
3. Disclaimer. EXCEPT AS EXPRESSLY SET FORTH HEREIN, NETAPP MAKES NO REPRESENTATIONS OR WARRANTIES OF ANY KIND, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE REGARDING THE STAAS SERVICES. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAWS, NETAPP SPECIFICALLY DISCLAIMS THE IMPLIED WARRANTIES OF MERCHANTABILITY, SATISFACTORY QUALITY, TITLE, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT, AND ANY WARRANTIES ARISING OUT OF ANY COURSE OF DEALING.
4. Feedback. By providing Feedback, End User agrees to NetApp’s Privacy Policy, and warrants, without restriction, it has the right to provide such Feedback to NetApp for NetApp’s use. NetApp will be the exclusive owner of such Feedback and can use it without restriction. Feedback is proprietary and considered NetApp Confidential Information.
Direct Keystone StaaS Transactions with End Users Only.
1. Direct Transactions. This Section 4 applies only to Orders for StaaS Services that End User places directly with NetApp.
2. Fees. An Order and/or the associated price quotation will state the Fees to be paid for StaaS Services made available for use. NetApp’s acknowledgment of an Order placed by End User will indicate End User’s acceptance of the stated Fees and associated Rates. No changes in Fees, Rates or the Committed Capacity will be effective absent mutual agreement except as expressly provided in the Service Description. The total Fees payable for Consumed Capacity for a billing period are determined for each billing period and will include Minimum Payments, additional usage-based consumption charges and/or fixed rate charges for any Burst Capacity.
Keystone StaaS Transactions Through Partners.
1. Distribution. These Keystone StaaS Terms also apply to End User’s use of StaaS Services which are offered by or through a Partner. Once NetApp accepts an Order placed by Partner for the benefit of End User, the StaaS Services will provide End User with the right to access and use NetApp’s StaaS Products. End User will pay Partner for the StaaS Services in amounts specified in a NetApp quotation or Order.
2. Partner Services. NetApp makes no warranties or representations, and shall have no responsibility or liability, with respect to any additional products and/or services offered by a Partner, in addition to or beyond the StaaS Services.
3. Amounts Due to Partner. Where a Partner resells StaaS Services to End User, Partner will use its own order form, including specifying amounts payable by End User. References to “Fees” in these Keystone StaaS Terms mean those amounts due and owing from End User to Partner under End User’s order to Partner for the StaaS Services.
Term; Termination.
1. Term. These Keystone StaaS Terms are effective as of the date End User first agrees to these Keystone StaaS Terms and will continue until the Subscription Term for each Order has expired or has been terminated. The Subscription Term of an Order is as specified in the particular NetApp quotation or Order.
2. Termination for Cause. NetApp may terminate the applicable Order or these Keystone StaaS Terms for cause if: (a) End User fails to pay any of the Fees or other amounts when due, and such failure continues for a period of 10 days after delivery of notice in respect of such late payment; (b) End User experiences any material change in control, where the term “control” means the power to direct the management and policies of End User, directly or indirectly, whether through the ownership of voting securities, by contract or otherwise; provided that a change of control shall not constitute cause for termination if the successor entity (i) is of equal or better credit quality, as determined in the sole discretion of NetApp, (ii) is not a competitor of NetApp, and (iii) agrees in writing to be bound by the terms and conditions of each and every Order and the provisions of these Keystone STaaS Terms.
3. Effects of Termination.
  1. End User Must Discontinue Use and Return Subscription Products. Upon termination or expiration of these Keystone StaaS Terms or any applicable Order for any reason, End User will: (i) promptly discontinue use of, and delete, all data uploaded on the StaaS Products by End User within the affected StaaS Services; and (ii) unless otherwise authorized by the applicable Service Description, return in accordance with the guidelines provided or otherwise make available to NetApp any StaaS Products provided by NetApp as part of the affected StaaS Services in the same condition as when originally delivered, ordinary wear and tear excepted. Except as provided in Section 7.3(b) below, End User is responsible for erasing, without destroying or damaging the storage media, all End User Information from the StaaS Products before they are returned to NetApp.
  2. End User Must Remove End User Data. End User must return the StaaS Products with all End User Information or proprietary and confidential information removed. End User acknowledges that any End User Information remaining on any StaaS Products returned to NetApp will be disposed of or destroyed by or on behalf of NetApp without any liability to NetApp, and NetApp disclaims all liability for the removal or for the protection of any such End User Information.
  3. End User’s Delay or Failure to Return StaaS Products. All End User use of the StaaS Services after the scheduled expiration or earlier termination of the Subscription Term is subject to Fees calculated and billed in accordance with this Section 7.3(d) until the return of all related StaaS Products to NetApp. Failure to return the StaaS Products within 15 calendar days following the expiration or termination of the Subscription Term in accordance with the guidelines provided to End User will entitle NetApp, in its sole discretion, to invoice End User for (i) the cost of the replacement for such StaaS Products, calculated in accordance with NetApp’s then current price list, or (ii) the Fees accruing (including a reasonable interest charge) until final return. For purposes of clause (ii) above, the Fees will not be less than the applicable Minimum Payment amounts payable immediately prior to the expiration or termination of the Subscription Term.
  4. Obligation to Pay. Termination will not relieve End User from its payment obligations with respect to any sums accrued prior to termination, which will become immediately due and payable; nor will it entitle End User to any refund unless otherwise set forth in these Keystone StaaS Terms. If NetApp terminates an Order for cause under Section 7.2, End User will promptly pay to NetApp the additional sums, as liquidated damages and not as a penalty, of: (i) the Fees that are to become due for the remaining Subscription Term; (ii) NetApp’s reasonable costs of deinstallation and repossession of the StaaS Products; and (iii) any costs associated with any damage or loss of any StaaS Products that occurred while in End User’s possession.
4. Surviving Provisions. Any sections of these Keystone StaaS Terms which, upon a plain reading, are intended to survive termination or expiration of these Keystone StaaS Terms, will survive such termination or expiration.
End User Responsibilities.
1. Ongoing Cooperation. End User will, at all times from the date the StaaS Products are delivered to the date such StaaS Products are returned to NetApp: (a) cooperate with NetApp to enable the installation, documentation, and utilization, of StaaS Products, including providing such access and authorization as is reasonably necessary to complete the installation, (b) promptly notify NetApp if the StaaS Products or any part of them are lost, stolen, destroyed or damaged beyond repair, or are the subject of action by a valid act by a governmental authority having the effect of restricting or preventing End User’s use of same; (c) ensure that the StaaS Products do not suffer any loss or damage caused, whether directly or indirectly, by End User or any party acting by or through End User; and (d) promptly notify NetApp in writing of any proposed changes to any of the StaaS Products, or of changes caused by planned or unplanned events impacting End User’s environment (such as space, power, network, and security) that may impact the StaaS Products (e.g., maintenance, and upgrades).
2. Inspection. NetApp may inspect the StaaS Products at any time during End User’s regular business hours, with reasonable prior notice, subject to End User’s reasonable security procedures.
3. Monitoring Tool Enabled. End User will at all times during the Subscription Term (including any holdover period) keep the Monitoring Tool fully operational, without disabling, blocking, modifying or otherwise interfering with its functionality or its ability to communicate with NetApp.
4. Additional Restrictions. In addition to restrictions set forth in the Purchase Terms, End User will not, nor will End User permit any third party to: (a) relocate any of the StaaS Products from the End User Site(s) without the prior written consent of NetApp, which consent will not be unreasonably withheld; (b) reconfigure, modify, add to or impair any portion of StaaS Products, whether with third party products or otherwise, except as expressly permitted in the Order or as mutually agreed in writing by the Parties; (c) use the StaaS Services in breach or excess of any limitations prescribed by NetApp in these Keystone StaaS Terms, NetApp quotation, or the associated Order or related documentation; (d) use StaaS Services for any benchmarking or competitive purposes or activities, including but not limited to, developing similar or competing products or services or publishing or providing any benchmark or comparison test results; (e) reverse-engineer or disassemble the StaaS Products or the StaaS Services; (f) use the StaaS Services and related 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; (g) assign or otherwise transfer, in whole or in part, any of End User’s rights to use the StaaS Services, the StaaS Products, or the related documentation to another party, unless otherwise agreed to in writing by NetApp; (h) use the StaaS Services or StaaS Products (i) in violation of laws or regulations, (ii) to violate the rights of others, (iii) to try to gain unauthorized access to or interrupt any service, device, data, account or network, or (iv) in high-risk, hazardous environments requiring fail-safe performance, including without limitation in the operation of nuclear facilities, aircraft navigation or control systems, air traffic control, or weapons systems, or any other application in which the failure of the StaaS Services or StaaS Products could lead to severe physical or environmental damages.
5. Certified Services. Where End User is a NetApp Partner implementing the StaaS Services in a Service Provider Offering, End User may deliver value-added services for Keystone StaaS solutions provided that:
  1. End User has attained and continues to maintain the appropriate Services Certified track as governed by and defined in such Program Guide; and
  2. End User shall indemnify NetApp and its directors, employees, subsidiaries, and affiliates for all claims, damages, losses, fines, costs, and expenses, including attorneys' fees (collectively, “Damages”), arising from any third-party claims asserted against NetApp, its employees, subsidiaries, and/or affiliates that are based in whole or in part on any End User service or Service Provider Offering.
6. U.S. Public Sector Restrictions and Regulations. End User will not act as a reseller - either in the capacity of a prime contractor or a subcontractor - of Products or Services to a customer of End User that is either a U.S. federal government entity, a U.S. state or local government entity, or a U.S. public educational institution, unless NetApp has given End User express written approval to do so. In such event the US Federal Government (FED) Supplemental Terms | NetApp and/or State Local Government and Higher Education Sled Supplemental Terms | NetApp Terms and Conditions, as applicable, shall also apply to End User.
Limitation of Liability.
1. Liability Cap. NetApp’s cumulative liability under these Keystone StaaS Terms is limited to direct damages in an amount not to exceed the greater of: (a) the total of the Fees received by NetApp under Orders subject to these Keystone StaaS Reseller Terms for the twelve (12) months immediately preceding the most recent event giving rise to the claim(s), or (b) one million dollars (USD 1,000,000). This limitation is cumulative and not per incident.
2. Exclusions. Except as otherwise expressly provided in the purchase terms, neither party shall be liable for any consequential, incidental, punitive, special, exemplary or indirect damages (including lost profits or savings), even if such party was advised of the possibility of the occurrence of such damages.
3. Direct Damages. The parties acknowledge and agree that any amounts payable pursuant to Sections 7.3(d) and 7.3(e) or Damages incurred as a result of any failure to comply with Section 6.3(b) of these Keystone StaaS Terms shall be deemed direct damages for purposes of this Section 9.
Intellectual Property Rights.
1. General. NetApp and its licensors reserve and retain all rights, title, and interest (including any IP rights therein) in and to the StaaS Services and StaaS Products not expressly granted to End User.
2. IP Claims. The IP Claims section in the General Terms applies to these Keystone Terms and StaaS Services are included as Covered Products.
General.
1. Order of Precedence. Notwithstanding any provision of the General Terms or any other document or agreement, in the event of a conflict between the terms set forth in such General Terms, any related supplemental services terms, these Keystone StaaS Terms, NetApp quotation or an Order, the following order of precedence will apply:
  1. the applicable Order for StaaS Services (excluding any pre-printed terms on an End User purchase order or similar document) if any;
  2. the relevant Service Description;
  3. these Keystone StaaS Terms; and
  4. the General Terms (together with any supplemental terms).
2. Affiliates. NetApp and End User agree that, from time to time, an Affiliate of a party may execute an Order under these Keystone StaaS Terms as "End User," and such Order will incorporate all of the terms and conditions contained herein and bind such Affiliate hereto, subject to any changes or supplemental terms reasonably required to comply with local laws, regulations and/or relevant industry practices. It is agreed that, unless expressly agreed in writing, the party executing these Keystone StaaS Terms as End User shall: (a) without notice or demand from NetApp, be jointly and severally liable with such Affiliate for all of the terms and conditions of any Order executed by it, including, without limitation, all terms and conditions negotiated by such Affiliate with respect thereto and the prompt payment of Fees thereunder, and (b) hold NetApp and any assignee harmless from and against any and all liability, losses, damages and expenses which NetApp may incur by reason of any failure to so perform.
Definitions.
Capitalized terms not specifically defined these Keystone StaaS Terms have the same meaning as otherwise set forth in the General Terms. The following definitions apply to NetApp quotations and Orders entered into pursuance to the Keystone StaaS Terms.
1. Burst Capacity. The amount of Consumed Capacity that exceeds the Committed Capacity during a billing period, as detailed in the Service Description.
2. Capacity Report. A report generated by NetApp summarizing the Consumed Capacity for the applicable billing period, as detailed in the Service Description.
3. Committed Capacity. The amount of capacity that End User is minimally invoiced for during each billing period, as detailed in the Service Description.
4. Consumed Capacity. The amount of capacity used and metered to store End User data, as detailed in the Service Description.
5. End User. The end user of the StaaS Services. An End User may submit a direct Order for Keystone Services to NetApp, or a Partner may submit an Order to NetApp in connection with such End User’s order placed on Partner for StaaS Services together with additional services offered by Partner in connection with the Keystone Services and (if any).
6. End User Site. The specific physical location indicated in the Order or as otherwise permitted by NetApp, where the StaaS Products are installed and maintained, whether such location is owned by or under the control of End User or any third party. The End User Site may only be changed with express prior approval of NetApp.
7. Feedback. Comments, suggestions, or recommendations provided by End User relating to StaaS Products or Services or other product, service, or functionality provided by NetApp, including all intellectual property related thereto.
8. Fees. The applicable fees, including Minimum Payments, additional usage-based consumption charges and/or fixed rate charges for any Burst Capacity, calculated in the manner described in the Service Description.
9. General Terms. NetApp’s General Terms published and available at https://www.netapp.com/how-to-buy/sales-terms-and-conditions/ , or such other mutually agreed terms that govern NetApp’s transactions with End Users as may change from time to time.
10. Intellectual Property (IP) Rights. Patents of any type, design rights, utility models, or other similar invention rights, copyrights, mask work rights, trade secret, know-how or confidentiality rights, trademarks, trade names and service marks and any other intangible property rights, including applications and registrations for any of the foregoing, in any country, arising under statutory or common law or by contract and whether or not perfected, now existing or hereafter filed, issued, or acquired.
11. StaaS Products. All or any part or all of the Hardware and Software provided by NetApp as part of the StaaS Services, whether as part of the original configuration, or subsequently added in the ordinary course of NetApp’s performance of the StaaS Services.
12. Minimum Payment. The amount payable during the applicable billing period for Committed Capacities, Additional Keystone Services (if applicable), and NetApp’s Cloud Volumes ONTAP® software (if applicable).
13. Monitoring Tool. One or more of the required NetApp proprietary tools that monitors and transmits StaaS Service consumption data to enable reporting, invoicing, and StaaS Products’ capacity, health, performance, and support metrics to enable management and support of StaaS Products.
14. Order. A written or electronic order or confirmation provided to NetApp by the End User or Partner for the purchase of StaaS Services, in form and substance acceptable to NetApp.
15. Performance Service Level. One of the pre-defined storage performance levels identified in the applicable Service Description, based on IOPs, GBps, latency, and/or other characteristics.
16. Partner. A NetApp partner authorized to resell StaaS Services.
17. Rates. The rates specified in a NetApp quotation or Order to be applied when calculating the Fees.
18. Service Description. The description for the StaaS Services published and available at NetApp Keystone STaaS Offering | NetApp (as may be updated from time to time) that apply to End User’s use of the specific StaaS Service(s). Service Descriptions are provided for the benefit of End Users, and supersede the terms of any purchase, license, financing, or other agreement governing an End User’s acquisition of NetApp’s products or services, including any such terms that are made available by or through a Partner, except as expressly provided in these Keystone StaaS Terms.
19. Subscription Term. The period specified in the applicable NetApp quotation or Order, including any renewal, extension, or holdover period. Subscription Terms may be subject to autorenewal if specified in the NetApp quotation, Order, or applicable Service Description; provided that where End User is a U.S. federal government entity, the Subscription Term can only be extended in writing by the parties.