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LICENSE.txt
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LICENSE.txt
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This License Agreement (“Agreement”) is entered into between you (as an individual and/or on behalf of the company by which you are employed) (“You”, “Your” or “Licensee”) and NetApp, Inc., located at 1395 Crossman Avenue, Sunnyvale, California 94089 (“NetApp”), and provides the terms under which NetApp licenses the Software and Documentation to You.
By accessing, downloading, installing or using the Software, You agree to be bound by the terms of the License. If You do not agree to all of the terms, do not access, download or use this Software or Documentation (as applicable).
1. DEFINITIONS
1.1. “Documentation” means technical documentation describing the features and functions of the Software.
1.2. “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.
1.3. “NetApp Partner” means an authorized NetApp distributor, reseller or other channel partner.
1.4. “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.
1.5. “Software” means software which may include computer code, development tools, documentation and/or collateral materials.
2. LICENSE GRANT. Subject to the terms and conditions set forth herein, NetApp grants You a limited, revocable, nonexclusive, nontransferable license, with no right of sublicense, to use the Software in the manner specified in the relevant user Documentation. This License is personal to You and You shall not assign, transfer or sublicense the Software without NetApp's prior written approval; any attempt to do so shall be void. NetApp and its licensors, as applicable, are under no obligation to support the Software or to provide You with updates. If NetApp, at its sole option, supplies updates to You, the updates will be considered part of the Software, and subject to the terms of this License.
3. LICENSE RESTRICTIONS. You must comply with the Agreement terms at all times when using the Software and Documentation. You will not, nor will You allow anyone else to:
a) remove or conceal any product identification, proprietary, intellectual property or other notices in the Software or Documentation;
b) assign or otherwise transfer, in whole or in part, the Software or Documentation licenses to another party, unless otherwise agreed in writing with NetApp; or
c) modify, adapt or create a derivative work of the Software or Documentation.
4. INTELLECTUAL PROPERTY RIGHTS. The Software and Documentation is licensed, not sold, to You. It is protected by intellectual property laws and treaties worldwide, in which NetApp and its licensors, as applicable, 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.
5. WARRANTY. THE SOFTWARE IS PROVIDED BY NETAPP "AS IS" AND WITHOUT WARRANTY OF ANY KIND. ANY EXPRESS OR IMPLIED WARRANTIES, INCLUDING BUT NOT LIMITED TO, IMPLIED WARRANTIES OF MERCHANTABILITY, NON-INFRINGEMENT, AND FITNESS FOR A PARTICULAR PURPOSE, ARE DISCLAIMED. IN NO EVENT SHALL NETAPP BE LIABLE FOR ANY DIRECT, INDIRECT, INCIDENTAL, SPECIAL, EXEMPLARY, CONSEQUENTIAL OR OTHER DAMAGES.
6. LIMITATION OF LIABILITY. IN NO EVENT AND UNDER NO LEGAL THEORY, WHETHER IN TORT (INCLUDING NEGLIGENCE), CONTRACT, OR OTHERWISE, UNLESS REQUIRED BY APPLICABLE LAW (SUCH AS DELIBERATE AND GROSSLY NEGLIGENT ACTS) OR AGREED TO IN WRITING, SHALL NETAPP BE LIABLE TO YOU FOR DAMAGES, INCLUDING ANY DIRECT, INDIRECT, SPECIAL, INCIDENTAL, OR CONSEQUENTIAL DAMAGES OF ANY CHARACTER ARISING AS A RESULT OF THIS LICENSE OR OUT OF THE USE OR INABILITY TO USE THE NETAPP SOFTWARE (INCLUDING BUT NOT LIMITED TO DAMAGES FOR LOSS OF GOODWILL, WORK STOPPAGE, COMPUTER FAILURE OR MALFUNCTION, OR ANY AND ALL OTHER COMMERCIAL DAMAGES OR LOSSES), EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
7. TERMINATION. This Agreement is effective until expiration or termination. You may terminate the Agreement at any time on written notice to NetApp. NetApp may terminate this Agreement at any time. This License will terminate automatically if You breach any material provision of this Agreement. Upon termination, Licensee shall immediately cease all use of the Software, de-install it, and return or destroy all copies of the Software and all portions thereof and the accompanying Documentation and, where requested by NetApp, shall certify so in writing to NetApp Termination is not an exclusive remedy and all other remedies at law or in equity will be available to NetApp whether or not the Agreement is terminated. Sections 1,3,4,5,6,7,8,9 and 10 will survive termination of this Agreement.
8. U.S. FEDERAL GOVERNMENT END USERS. This Section 8 applies to You only if You are a U.S. Federal Government end user. The Software and Documentation is “commercial” computer software and documentation and is licensed to You in accordance with the rights articulated in applicable U.S. government acquisition regulations (e.g. FAR, DFARs) pertaining to commercial computer software and documentation. Any dispute between You and NetApp will be subject to resolution pursuant to the Contract Disputes Act of 1978. Nothing contained in this Agreement is meant to derogate the rights of the U.S. Department of Justice as identified in 28 U.S.C. §516. All other provisions of this Agreement remain in effect as written.
9. GOVERNING LAW AND ENFORCEMENT RIGHTS.
This Agreement shall be construed in accordance with and all disputes hereunder shall be governed by the laws of the State of California, excepting its conflicts of law rules. All disputes arising out of this Agreement shall be subject to the exclusive jurisdiction and venue of the Superior Court of the State of California of Santa Clara County and the Federal District Court of the Northern District of California, United States of America, and You consent to the personal and exclusive jurisdiction and venue of such courts. The United Nations Convention on Contracts for the International Sales of Goods is specifically disclaimed. To the extent that Software may include or be distributed with Open Source Software, the terms of the applicable license for the Open Source Software supersede the terms set forth in this Agreement.
10. GENERAL. NetApp does not waive any of its rights under this Agreement by failing to or delaying the exercise of its rights or partially exercising its rights at any time. To the extent that any Section of this Agreement, or part thereof, is determined to be invalid or unenforceable, the remainder of this Agreement will remain in full force and effect. This Agreement may not be changed except by a written amendment executed by an authorized representative of each party. This Agreement 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.