OEM Distribution and License Agreement - Network Appliance Inc. and Dell Products LP
OEM DISTRIBUTION AND LICENSE AGREEMENT
This OEM Distribution and License Agreement ("Agreement") is entered into
as of October 27, 1998 ("Effective Date") by and between Network Appliance,
Inc., with a principal place of business at 2770 San Tomas Expressway, Santa
Clara, CA 95051 ("NetApp"), and Dell Products L.P., a Texas limited partnership
with a principal place of business at One Dell Way, Round Rock, Texas 78682
("Dell").
WHEREAS, NetApp manufactures certain filers (as defined below);
WHEREAS, Dell manufactures, integrates, markets and distributes computer
systems, components and peripherals, including data storage systems and file
server systems;
WHEREAS, the parties wish to form a strategic alliance whereby Dell will
have the following rights on the terms and under the conditions set forth in
this Agreement: (i) to purchase and distribute on an OEM basis certain NetApp
filer products (pursuant to which OEM arrangement Dell would add to NetApp's
filer products an exterior casing of Dell's design, Dell brand markings, disk
drives (mass storage), memory (other than base memory) and NIC cards; (ii) to
have NetApp port NetApp's filer operating system and related software for
operation on Dell manufactured platforms and to distribute such Dell platforms
with such ported NetApp's filer operating system and related software; and (iii)
to manufacture filer products based on NetApp's hardware designs and
incorporating existing (i.e., non-ported) NetApp filer operating system and
related software.
WHEREAS, the parties intend that NetApp's NetCache product will be made
available to Dell under similar terms and conditions to this Agreement, provided
that all exclusivity provisions under Attachment D, Section b shall not apply to
NetCache.
NOW, THEREFORE, in consideration of the foregoing and of the terms and
conditions set forth below, the parties agree as follows:
1. Definitions.
a. "days" means calendar days unless specifically set forth as
business days.
b. "End User" means the ultimate end user customer of products sold
under or distributed pursuant to this Agreement.
c. "Filer" or "filer" means a Network Attached Storage file server
appliance that runs NetApp's proprietary or third party operating system,
software, hardware, and firmware; for the avoidance of doubt, a file server
based on NT, Unix or NetWare (or successor technologies) is not a filer.
d. "Licensed Materials" means the NetApp proprietary Filer hardware
design ("Licensed Hardware Materials"); the NetApp proprietary Filer operating
system and related software or firmware listed in Attachment B-1 as ported by
NetApp to operate on Dell
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manufactured platforms pursuant to Section 5.a and licensed to Dell
pursuant to the license in Section 5.b ("Licensed Ported Software Materials");
and the NetApp proprietary operating system and related software or firmware
listed in Attachment B as used in the Licensed Hardware Materials (which
software is not ported as described above) ("Licensed Non-Ported Software
Materials").
e. "Licensed Ported Products" means Dell products incorporating the
Licensed Ported Software Materials.
f. "Licensed Manufactured Products" means Dell products
incorporating the Licensed Non-Ported Software Materials and Licensed Hardware
Materials.
g. "Licensed Products" means Licensed Ported Products and/or
Licensed Manufactured Products.
h. "Network Attached Storage" or "NAS" means a "higher-level"
special purpose / single focus storage device utilizing hard disk drives,
running a special purpose real-time operating system (not NT-, NetWare-, Unix-
or successor technology-based) that connects directly to a LAN and/or WAN
IP-based communication network and supports remote file system access protocols
to provide access to data (e.g., CIFS, NFS). A key design point is that a NAS
device is not designated to support general purpose computing applications.
i. "NFS Software" means the NetApp Software that enables serving
files via the NFS (Network File System) protocol.
j. "OEM Products" means the RAID Filer hardware products, including
the object code version of the OEM Software, listed in Attachment A.
k. "OEM Software" means NetApp proprietary Filer operating system
and related software or firmware used in the OEM Products.
l. "Quarter" means Dell's fiscal quarter.
m. "RAID" means Redundant Array of Independent Disk data protection
and storage technology.
n. "RAID Filer" has the meaning specified in Section 3.
o. "Software" means the Licensed Ported Software Materials, the
Licensed Non-Ported Software Materials, and/or the OEM Software, as applicable.
2. OEM Terms.
a. Appointment and License. Subject to all the terms and conditions
of this Agreement, (i) NetApp hereby appoints Dell for the term of this
Agreement as a nonexclusive (except as provided in Attachment D Section b),
worldwide distributor of the OEM Products directly to End Users and through
Dell's affiliated systems integrators, distributors, value added
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resellers and resellers, and (ii) as part of such appointment, NetApp hereby
grants Dell a nonexclusive, worldwide, nontransferable license to market and
distribute the OEM Software only in object code form and for use only with the
OEM Products for use by End Users. Packaging specifications for OEM Products are
contained in Attachment E. Except as provided in Section 14 (Escrow), neither
Dell nor any of its End Users is/are entitled to receive any source code, source
information or documentation, or similar materials relating to the OEM Products.
The licensed and related rights granted in this Agreement are non-exclusive,
subject to Attachment D, Section b.
NetApp has the right, upon six (6) months prior written notice to
Dell, to make significant changes or modifications to, or to discontinue, any
OEM Products and/or any portion of the Licensed Materials; provided, however,
that the parties may exercise their rights under the engineering change order
provisions in Attachment A-2. Additionally, NetApp agrees to continue to sell or
license the discontinued OEM Product and/or portion of the Licensed Materials to
Dell under this Agreement for a period of not less than ninety (90) days
following such discontinuance.
b. End User Documentation. NetApp agrees to provide Dell with
NetApp's standard or localized end user documentation for the OEM Products and
the Licensed Materials ("Documentation") in mutually agreeable electronic form.
Subject to all the terms and conditions of this Agreement, NetApp hereby grants
Dell a nonexclusive, worldwide, nontransferable license to reproduce, modify and
create derivative works of the Documentation (or to have third parties do so on
Dell's behalf) and to market and distribute to End Users such derivative works
of the Documentation solely with the OEM Products or Licensed Products. Dell may
reproduce and distribute the Documentation in hard copy or softcopy form as well
as in electronic form. Dell will provide to NetApp copies of all Documentation
derivative works created by or for Dell. The parties agree to discuss the
sharing of costs for Documentation localization on a case-by-case basis.
c. End User License Terms. Software portions of OEM Products and
Licensed Products may be distributed only by Dell to End Users, each of which
has agreed to be bound by an agreement in electronic or printed format
substantially in the form, and shall be subject to the terms and conditions set
forth in NetApp's End User Software License Agreement substantially in the form
of Attachment C ("End User License") as well as any additional terms of such
relationship; provided that any such additional terms shall be consistent in all
material respects with Attachment C.
d. Restrictions. Copies of Software are licensed for distribution
only and not sold. Except as expressly authorized in this Agreement, Dell shall
not: (i) disassemble, decompile or otherwise attempt to reverse engineer any
portion or component of the OEM Products or the Licensed Materials or otherwise
attempt to derive or obtain any source code, structure, algorithms, process,
technique, technology, know how or ideas underlying or contained in the OEM
Products or the Licensed Materials, (ii) rent, lease or otherwise provide
temporary access to the OEM Products or the Licensed Materials or portion or
components thereof, (iii)
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copy, alter, use, modify or create derivative works of any portion or component
of the OEM Products or Licensed Materials, or (iv) allow, assist or permit
others to do any of the foregoing.
e. Packaging; Product Quality and Testing. NetApp shall supply OEM
Products and Licensed Materials (as applicable) to Dell in accordance with the
packaging requirements, quality assurance standards and testing procedures
specified in Attachment E.
f. Additional OEM Products and/or Licensed Products. NetApp shall
make available to Dell, under this Agreement, all future NetApp products
consistent with the spirit of this Agreement for products which are extensions,
additional models, enhancements, upgrades and/or replacements to Filer and
NetCache products and/or options. All upgrades, new versions and maintenance
releases of the Software will be provided to Dell when commercially released.
3. Limited Exclusivity.
Dell agrees, subject to Attachment D, and for so long as Section b of Attachment
D remains in effect, to purchase or license all of its requirements of Filers
that include RAID capability integrated into the Filers ("RAID Filer") solely
from NetApp.
4. Purchase Orders; Forecasts; Changes.
a. Orders and Supply. During the term of this Agreement, subject to
the other terms and conditions of, this Agreement, NetApp shall supply OEM
Products ordered by Dell pursuant to the order and purchase terms and conditions
specified in Attachment A-1.
b. Future Revolver Supply Arrangements. The parties shall work
together as the relationship progresses to establish revolver and hubbing
arrangements for each Dell regional manufacturing facility as warranted by
Dell's volume needs for OEM Products. Additionally, specific order acceleration,
rescheduling, and cancellation terms are as described in Attachment A-1. NetApp
agrees that until the revolver and hubbing arrangements are implemented it shall
utilize air freight, as requested by Dell (at Dell's expense) to deliver OEM
Products to Dell's regional manufacturing facilities.
5. Porting; License Terms; Additional Development; Manufacturing
License.
a. Porting to Dell Platforms. NetApp and Dell agree to collaborate
to identify appropriate Dell manufactured platforms to which agreed upon NetApp
proprietary Filer operating system and related software and firmware specified
in Attachment B is intended to be ported to the extent necessary to make them
compatible with and operable on the Dell manufactured hardware platforms. Dell
and NetApp shall use reasonable efforts to prepare and finalize an engineering
release plan and negotiate in good faith a mutually agreed upon, written
statement of work which details the terms, scope, specifications, development
milestones, timeline, acceptance criteria, optimized performance criteria,
re-work requirements if acceptance and performance criteria are not met,
development fees and other relevant terms for such porting and related
development work to be performed by NetApp to create the Licensed Ported
Software Materials. NetApp will dedicate sufficient personnel and other
development resources
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to timely achieve the agreed-upon development milestones, and such personnel and
resources will be committed on a first priority basis to such porting and
related development activities. NetApp will provide to Dell at least bi-weekly
engineering reports in an agreed format showing progress toward development
milestones.
b. License to Dell With Respect to Licensed Ported Products. [*] In
no event will Dell allow any third party to use or modify or have access to any
Licensed Ported Software Materials, except as same are incorporated into
Licensed Products, except in connection with third party contractors who may do
so in order to support or manufacture the Licensed Products for Dell, subject to
Section 15. Licensed Ported Software Materials are licensed hereunder solely
within the scope of the above license. Neither Dell (except as provided in
Section 14 (Escrow)) nor any of its End Users is/are entitled to receive any
source code, source code documentation or similar materials relating to the
Licensed Ported Software Materials. All End Users will receive Licensed Ported
Software Materials subject to all of the terms and conditions of the End User
License.
c. Additional NetApp Development. NetApp agrees to allow Dell to
fund engineering projects at NetApp for specific Dell needs with respect to
improvements and enhancements to OEM Products and Licensed Materials, [*]. On a
project-by-project basis, both parties must agree in advance to separate written
statements of work as to the specifications and scope of such development and to
the ownership of, or exclusive or nonexclusive rights to (as appropriate), the
resulting work product and related intellectual property rights; provided,
however, that in each case in which projects are funded by Dell but NetApp
retains intellectual property rights, Dell shall (unless NetApp reasonably
objects) obtain marketing rights to such resulting work product that are
exclusive for a mutually agreed upon time period sufficient to give Dell a
meaningful competitive advantage. NetApp and Dell agree to share product
roadmaps on a regular basis and NetApp agrees to consider Dell's suggestions for
additions to NetApp's product line.
d. Manufacturing License to Dell With Respect to Licensed
Manufactured Products. Subject to all the terms and conditions of this
Agreement, Dell shall have the right and NetApp hereby grants to Dell a [*]
license: (i) to reproduce, market and distribute (in object code form) the
Licensed Non-Ported Software Materials as incorporated into the Licensed
Manufactured Products, and (ii) to use the Licensed Hardware Materials in the
design, manufacture, marketing, distribution and support of Licensed
Manufactured Products (including use of contractors to manufacture and/or
support). In no event will Dell allow any third party to use or modify or have
access to any Licensed Hardware Materials or Licensed Non-Ported Software
Materials, except as same are incorporated into Licensed Products, except in
connection with third party contractors who may do so in order to manufacture
and/or support the Licensed Products for Dell subject to Section 15. Licensed
Hardware Materials and Licensed Non-Ported Software Materials are licensed
hereunder solely
*Confidential treatment requested
for redacted portion.
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within the scope of the above license. Neither Dell (except as provided in
Section 14 (Escrow)) nor any of its End Users is/are entitled to receive any
source code, source code documentation or similar materials relating to the
Licensed Non-Ported Software Materials. All End Users will receive Licensed
Non-Ported Software Materials subject to all of the terms and conditions of the
End User License.
6. Prices; Payment Terms.
a. Prices for OEM Products. NetApp agrees to sell OEM Products,
related options and software, protocols, software subscriptions and upgrades at
the prices and discounts specified in Attachment A-1, Section f.
b. Cost Reduction Assistance. Dell agrees to exercise commercially
reasonable efforts to assist NetApp in lowering its commodity costs for OEM
Products as provided in Attachment A-1, Section g.
c. Favorable Pricing. NetApp shall provide to Dell favorable pricing
for OEM Products as provided in Attachement A-1, Section h.
d. License Fees for Licensed Products.
License fees in conjunction with the Licensed Products ("License Fees") shall be
payable to NetApp in conjunction with the Licensed Products as set forth in
Attachment B-1.
e. Payments. Dell's payments to NetApp shall be made in U.S. dollars
as follows:
(1) For OEM Product orders with Dell's EMF (European
Manufacturing Facility), Dell will make one (1) monthly telegraphic payment to
NetApp on the first working day after Dell's fiscal month close. This payment
will be for valid invoices received and dated during the fiscal month prior to
the month just closed. (Example: Payments for the fiscal month of August will be
made on the first working day in fiscal October.)
(2) For OEM Product orders with Dell's APCC (Asia Pacific
Customer Center), AMF (American Manufacturing Facility), and all other
affiliates, Dell will make telegraphic payment to NetApp forty-five (45)
calendar days after the date of a valid invoice from NetApp.
(3) License Fees and Hardware License Fees with respect to
Licensed Products shall be paid pursuant to Section 6(g) below.
No payment by Dell or receipt by NetApp of a lesser amount than the amount of
invoice shall be deemed to be other than on account of the earliest due amount,
nor shall any endorsement or statement on any check or letter accompanying any
check or payment be deemed an accord and satisfaction, and NetApp may accept
such check or payment without prejudice to NetApp's right
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to recover the balance of any amount due or pursue any other remedy provided for
in these terms and conditions.
Should Dell fail to pay within the specified time frame, then NetApp shall
provide written notice to Dell of such failure. If the failure to pay is not
cured within fifteen (15) days of such notice, NetApp may stop shipments to Dell
hereunder until payment is made or seek damages at law. Dell's receipt of
NetApp's invoice is a condition precedent to any exercise by NetApp of its
rights with respect to non-payment by Dell. Additionally, NetApp agrees that it
shall not exercise such rights if failure to pay any uncontested obligation is
due to mistake or inadvertent error by Dell.
Either party may, without liability to the other, deduct (from any amounts due
to the other), any amounts owed to the first party or its affiliates by the
other or any of the other's affiliates, and may without penalty to itself
withhold any payment to the extent that the amount that the other party owes any
money to the first party or its affiliates but only with prior written approval
of the other party. Each party will promptly notify the other in writing of its
intention to exercise any rights pursuant to this Section.
f. Taxes and Duties. Dell shall assume all responsibility for
any and all tariffs, duties, value-added, withholding and all other taxes on
shipments of OEM Products and its manufacture, use and distribution of Licensed
Products (except taxes based on the gross or net income of NetApp) or provide
NetApp with a tax exemption certificate acceptable to the taxing authorities. On
orders for shipment outside the United States of America, all required import
duties, licenses and fees shall be payable by Dell in addition to the stated
prices. NetApp acknowledges and agrees that, notwithstanding the foregoing, Dell
has the right to withhold any applicable taxes based on the payment of royalties
or license fees to NetApp from any License Fees due under this Agreement if
required by any governmental authority. If NetApp is unable to use foreign tax
credits or other mechanisms to compensate for such withheld taxes, the parties
agree to work together to find an appropriate solution.
g. Reports; Payment of License Fees. Dell shall provide NetApp
with monthly written reports of actual sales of OEM Products and/or Licensed
Products (and components thereof) within thirty (30) days after the end of each
fiscal month. All License Fees with respect to sales of Licensed Products
identified in such report shall be paid by Dell check accompanying such report.
h. Audit Rights. Each party shall maintain accurate and
complete books and records relating to the parties' performance under this
Agreement, and to keep such documentation for three (3) years. Either party will
have the right, no more than once per calendar year, to have an independent
public accountant, reasonably acceptable to the other party, examine the other
party's relevant books, records and accounts for the purpose of verifying such
other party's compliance with this Agreement. Each audit will be conducted at
the audited party's place of business, or other place agreed to by NetApp and
Dell, during the audited party's normal business hours and with at least fifteen
(15) business days prior written notice. The party requesting the audit will pay
all fees and expenses of the auditor for the examination: provided
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that the audited party will bear any such expense if the review or audit shows a
discrepancy in favor of the party requesting the audit of more than five percent
(5%) for the period audited. All deficiencies shown by any such audit shall be
immediately paid.
7. Ownership.
Notwithstanding anything else, NetApp (and its licensors or other
suppliers, as applicable) retains (i) all copyrights, patent rights, trade
secret rights as well as any and all other proprietary rights in or to the OEM
Products and Licensed Products, all Documentation and other related materials,
and all copies and derivative works thereof (by whomever produced), (ii) all
service marks, trademarks, trade names or any other designations of NetApp, and
(iii) all title to, and, except as expressly licensed herein, all rights to the
Software components and portions of the OEM Products and Licensed Products.
8. Covenants and Representations.
Except as, and only to the extent, expressly otherwise provided in
this Agreement, Dell covenants, represents, and agrees as of the Effective Date
and likewise throughout the entire term of this Agreement:
a. Dell shall use reasonable efforts to market the OEM Products and
Licensed Products effectively and to ensure that all advertising and marketing
materials generated by Dell relating to or reflecting upon the OEM Products and
Licensed Products, Dell or NetApp are legal, proper and accurate in all material
respects.
b. In its distribution efforts in connection with the OEM Products
and Licensed Products and/or products containing OEM Products or Licensed
Products, Dell shall be granted the right to use the then current trade names,
trade marks, service marks and similar designations, whether or not registered,
used by NetApp in association with the OEM Products and Licensed Products
(collectively, "NetApp Marks"), subject to and only during the term of this
Agreement. In doing so, Dell shall not represent or imply that the parties are
in any way related to or controlled by one another. All advertisements and
promotional materials, packaging and any other material bearing a NetApp Mark
(including actual OEM Products and Licensed Products) shall identify NetApp as
the owner of each NetApp Mark so used and that NetApp is the manufacturer and/or
licensor of any such OEM Product or Licensed Product. Dell's use of NetApp Marks
shall be subject to NetApp's prior written approval for each substantially new
use of a NetApp Mark; such approval shall not be unreasonably withheld. As
provided in Section 9.d below, NetApp shall provide guidelines and marketing
materials for use of NetApp Marks. To the extent that Dell's use of a NetApp
Mark is in full compliance with NetApp's usage guidelines or is an accurate and
complete use of product information materials provided by NetApp, NetApp will be
deemed to have approved such use. Except as and to the extent expressly stated
this Agreement, no other rights or interest to use any NetApp Mark, name or
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designation is granted, implied or intended. Further, Dell agrees not to use or
contest, during or after the term of this Agreement, any NetApp Mark or other
designation used by NetApp anywhere in the world (nor any name, mark or
designation similar thereto). Dell acknowledges and agrees that all use of the
NetApp Marks by Dell shall inure to the benefit of NetApp.
c. Dell shall keep NetApp informed of, and communicate promptly to
NetApp, any technical or support problems encountered with respect to the OEM
Products and Licensed Products (including, without limitation, the information
to be provided to NetApp pursuant to Attachment F), as well as any resolutions
proposed, attempted or achieved. Dell agrees that NetApp shall enjoy any and all
right, title and interest in and to any such problem resolutions (which shall be
deemed Licensed Materials subject to the licenses to Dell herein), without the
payment of any additional consideration therefor either to Dell, its End Users,
employees, agents or any other party (any right to which is hereby expressly
waived by Dell).
d. Dell shall notify NetApp promptly as to any known or reasonably
suspected infringement of any Marks or of any copyrights, patent rights other
proprietary rights relating to the OEM Products and Licensed Products. NetApp
may, in its sole discretion, decide to take or not to take whatever course of
action it deems appropriate in connection therewith. If NetApp elects to protect
or enforce such rights (whether identified by Dell or otherwise) by taking legal
action, Dell agrees to provide reasonable cooperation at NetApp's request and
expense in connection with any such action. If NetApp initiates and prosecutes
any legal cause of action related to such infringement, all legal expenses
(including court costs and attorneys' fees) shall be for NetApp's account and
NetApp shall be entitled to all amounts awarded by way of judgment, settlement
or compromise.
9. Marketing and Sales Cooperation; Product Promotion.
a. In addition to standard worldwide sales/marketing support
obligations, Dell and NetApp agree to discuss and encourage cooperation between
Dell and NetApp enabling NetApp technology. See Attachment H for additional
sales and marketing terms .
b. At NetApp's expense, NetApp will train Dell's training personnel
on how to sell NetApp products. On terms to be agreed between the parties,
NetApp will train Dell field personnel on how to sell NetApp products. The
parties will jointly agree on the appropriate level and type of sales training
and support from NetApp to assure success of the products. This support will
include dedicated NetApp personnel to help Dell sell the products, at mutually
agreeable levels and cost of support. Both companies will establish
decision-making processes which can expeditiously make decisions on specific
accounts where further sales cooperation is desired by both parties. [*]. NetApp
will also make available, on mutually agreeable terms, additional training to
other Dell sales personnel beyond just the Dell trainers.
c. Dell agrees to provide visibility of the use of NetApp technology
in the Dell Filer products in such areas as product collateral (print and
online), press releases and on NetApp software. Dell will consider including
NetApp brand visibility in Dell advertising. In addition,
*Confidential treatment requested
for redacted portion.
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Dell shall exercise commercially reasonable efforts to use the term "filer" in
publicly referring to the OEM Products or Licensed Products.
d. NetApp shall provide usage guidelines for Dell's use of NetApp
Marks pursuant to Section 8.b above. In addition, NetApp shall provide product
feature information, claims and other marketing materials for the OEM Products
and Licensed Products, all of which will in all material respects be accurate
and comply with all applicable legal requirements. Dell may rely on and use such
product feature information, claims, and other materials provided by NetApp in
connection with Dell's marketing and distribution of the OEM Products and
Licensed Products. For any modification of product feature materials or claims
materials directly tied to NetApp technology which Dell desires to make, Dell
will confer with NetApp for feedback. Dell will ensure that its materials are
accurate and fully consistent with the usage guidelines, product feature
information, claims and other marketing materials for the OEM Products and
Licensed Products which have been previously provided by or approved by NetApp,
as updated from time to time by written notice to Dell.
e. Dell shall keep, for five (5) years following the sales
transaction to Dell's customer, accurate customer and product information
necessary for technical support or to adequately administer a recall of any OEM
Products and/or Licensed Products. NetApp shall keep, for five (5) years
following the supply or license of each OEM Product or Licensed Product to Dell,
accurate product information necessary for technical support of such OEM Product
or Licensed Product or to adequately administer a recall of any OEM Products
and/or Licensed Products.
10. Support and Training Obligations.
Dell shall be responsible for providing Level I and Level II technical
support to its End Users. Dell shall provide technical support, upgrades,
maintenance and other support services and assistance directly to its End Users.
NetApp shall provide the necessary level of support for levels above Level II.
Dell and NetApp shall each identify one to three specific Level III contact
persons for all requests from Dell for technical support by NetApp and all other
communications between the parties with respect to technical support. Additional
support terms and obligations and definitions of support levels are as specified
in Attachment F.
11. Warranties; Warranty Disclaimer.
a. Hardware Products Warranty. For a period of one (1) year,
beginning on the date that Dell ships the OEM Product to the End User, NetApp
warrants that (i) the hardware portions of any OEM Product will operate in
accordance with NetApp's published specifications and documentation for the
product on the date it is shipped, (ii) all OEM Products will be made from
entirely new parts; (iii) Dell will acquire good and marketable title to the OEM
Products and Licensed Hardware Materials and that all such products and
materials will be free and clear of all liens, claims, encumbrances and other
restrictions; and (iv) NetApp has all the necessary rights and licenses to allow
Dell to distribute and resell OEM Products and Licensed Hardware Materials
without restriction, additional charge or liability to any third party, provided
that Dell's sole remedy and NetApp's sole liability for breach of the warranties
in clauses (iii) or (iv)
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immediately above shall be indemnification pursuant to Section 12 below.
Replacement parts are warranted for ninety (90) days or for the remainder of the
warranty period in effect on the original product, whichever is greater.
b. Limited Software Warranty. For a period of ninety (90) days from
the date that Software is shipped to the End User, NetApp warrants that (i) the
Software will materially conform to NetApp's then-current documentation and
specifications for such Software; (ii) the media containing the Software (but
not the software itself) is free from physical defects; (iii) Dell will acquire
good and marketable title to the software and that all such software will be
free and clear of all liens, claims, encumbrances and other restrictions; and
(iv) NetApp has all the necessary rights and licenses to allow Dell to
distribute and resell software without restriction or additional charge or
liability to any third party; and provided, further, that in the case of breach
Dell's sole remedy and NetApp's sole liability for breach of the warranties in
clauses (iii) or (iv) immediately above shall be indemnification pursuant to
Section 12 below; and provided further that, except as provided in Section 5.a,
in the case of breach of the warranty in clause (i), NetApp shall within ninety
(90) days (unless a fewer number of days is required and practical, on a
mutually agreeable case by case basis) of Dell's request supply Software that
materially conforms to NetApp's then-current documentation and specifications
for such Software and in the case of breach of the warranty in clause (ii)
NetApp shall, within ninety (90) days (unless a fewer number of days is required
and practical, on a mutually agreeable case by case basis) of Dell's request,
furnish replacement media containing the Software that is free from physical
defects. Notwithstanding the foregoing, for a period of five (5) years after the
delivery to Dell of Software previously accepted by Dell, NetApp shall develop
corrections, patches or work-arounds ("Bug Fixes") to material errors in
performance or operation of such Software (each a "Bug") within the "applicable
Bug fix period" following (x) the discovery of the Bug by NetApp, or (y) the
reporting of the Bug by Dell or End Users to NetApp. Initial response time shall
be as per Attachment F. The "applicable Bug fix period" shall mean one (1)
business day in the case of a Priority 1 Bug, seven (7) business days in the
case of a Priority 2 Bug and an appropriate number of business days as
determined on a case by case basis for other Bugs (as Priority 1 and 2 Bugs are
defined in Attachment F). NetApp shall provide such Bug Fixes at no cost to
Dell; provided, however, that Dell shall be charged separately by NetApp (on a
mutually agreed upon time and materials basis) for Bug Fixes for Licensed Ported
Software Materials necessitated by an error in or a deficiency in scope of the
original specifications for such Licensed Ported Software Materials provided by
Dell (a "Dell Bug"); provided, further, however, that NetApp agrees to notify
Dell and correct the Dell Bug at no additional charge as requested by Dell if
NetApp has knowledge of (or should reasonably have knowledge of) a Dell Bug
during the development of the applicable Licensed Ported Software Materials, to
avoid such Dell Bug from occurring. Software upgrades and enhancement/update
subscriptions must be purchased separately after the 90 day warranty period.
c. Year 2000 Compliance.
(1) NetApp warrants that the current latest version of the
Software (starting December 1, 1998) is Year 2000 Compliant. For purposes of
this Agreement, "Year 2000 Compliant" shall mean that the Software will (i)
accurately address, present, produce, store
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and calculate data involving dates beginning with January 1, 2000 and will not
produce abnormally ending or incorrect results involving such dates as used in
any forward or regression date based function; and (ii) provide that all "date"
related functionalities and data fields include the indication of century and
millennium, and will perform calculations which involve a four-digit year field.
Notwithstanding the foregoing, Dell acknowledges and agrees that (i) the
Software does not identify or remedy Year 2000 problems in third party operating
systems or other applications not supplied by NetApp and (ii) the Software
operates with the date information it receives; thus, if incorrect date
information is provided by the user, the operating system or from any other
external product or other source, this information will be used by the Software
as received. The foregoing Year 2000 Compliant warranty of NetApp shall not
apply to Year 2000 problems caused by such external sources. Dell's sole remedy
and NetApp's entire liability for breach of the foregoing warranty shall be
repair or replacement of the Software such that it meets the foregoing warranty
within ninety (90) days (unless a fewer number of days is required and
practical, on a mutually agreeable case by case basis) of Dell's request;
provided that notwithstanding any other provision hereof as to any applicable
Software product the foregoing warranty shall last until and expire upon the
fifth anniversary of the date of receipt of such Software product.
(2) NetApp shall reasonably cooperate and provide Dell with
information regarding NetApp's plans and efforts to make its internal systems
able to handle the transition to the year 2000 and NetApp shall not unreasonably
refuse to participate in Dell's Year 2000 business partner program. Dell will
provide a copy of the Year 2000 business partner program to NetApp prior to
execution of this Agreement.
d. Warranty Returns. Dell will handle and be responsible for
all warranty returns from its direct and indirect End Users. OEM Products
obtained from NetApp which do not comply with the warranty and may (whether or
not previously shipped to an End User) be returned (by Dell only--not any End
User directly) to NetApp during the applicable warranty period for credit to
Dell (when received by NetApp), provided that NetApp shall bear all costs
associated with freight and insurance to NetApp's designated location.
Conditions governing epidemic hardware failure are as specified in Attachment E.
NetApp will provide each Dell manufacturing location and Dell's designated
service provider with pre-approved return material authorization ("RMA") numbers
in rolling blocks of one hundred (100) to be used in returning non-conforming
products to NetApp. Dell or Dell's designated service provider will notify
NetApp when they have twenty-five (25) pre-approved RMA numbers remaining and
NetApp shall promptly provide another block of one hundred (100) pre-approved
RMA numbers. NetApp agrees to segregate and separately report line and field
returns by Dell manufacturing location. NetApp agrees to provide failure
analysis to the component level as defined in Attachment F.
e. Out of Warranty Returns. Dell will also handle and be
responsible for all out of warranty returns from its direct and indirect End
Users. OEM Products obtained from NetApp as to which the warranty has expired
may be returned (by Dell only--not any End User directly) to NetApp for repair
or replacement as requested by Dell, at Dell's sole cost and expense (including
all costs associated with freight and insurance to NetApp's designated
location), on a
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mutually agreed reasonable time and materials basis. NetApp agrees to provide
current, out-of-warranty repair cost information and will notify Dell of any
modifications thereto.
f. Limited Rights to Return Product. Except as provided in this
Agreement, Dell shall have no right to return any OEM Product or Licensed
Product.
g. Software Maintenance and Upgrade Options. For a period of
ninety (90) days from the date that Dell ships a Software product to an End
User, NetApp will provide to Dell without charge for delivery to such End User
upgrades and support services in accordance with NetApp's standard support terms
and conditions.
h. Exclusive Warranties. THE FOREGOING WARRANTIES AND REMEDIES
ARE EXCLUSIVE AND ARE IN LIEU OF ALL OTHER WARRANTIES, EXPRESS OR IMPLIED,
EITHER IN FACT OR BY OPERATION OF LAW, STATUTORY OR OTHERWISE INCLUDING
WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND
NON-INFRINGEMENT OF THIRD PARTY RIGHTS TO THE FULLEST EXTENT PERMITTED BY LAW.
NETAPP NEITHER ASSUMES NOR AUTHORIZES ANY OTHER PERSON TO ASSUME FOR IT ANY
OTHER LIABILITY IN CONNECTION WITH THE SALE, INSTALLATION, MAINTENANCE OR USE OR
THE RESULTS OF THE USE OF THE OEM PRODUCTS AND/OR LICENSED PRODUCTS,
DOCUMENTATION NOR ANY OTHER ITEMS OR MATERIALS PROVIDED HEREUNDER IN TERMS OF
CORRECTNESS, COMPLETENESS, ACCURACY, RELIABILITY, OR OTHERWISE, AND NETAPP MAKES
NO WARRANTY WHATSOEVER OF ANY NONSTANDARD PRODUCTS SUPPLIED BY IT HEREUNDER.
(Neither OEM Products hardware nor Software shall be deemed "nonstandard
products" for the purposes of this paragraph.)
NETAPP SHALL NOT BE LIABLE UNDER THIS WARRANTY IF THE ALLEGED DEFECT IN THE
PRODUCT DOES NOT EXIST OR WAS CAUSED BY DELL'S OR ANY THIRD PERSON'S (FOR WHOM
NETAPP IS NOT RESPONSIBLE AS PROVIDED HEREIN) MISUSE, NEGLECT, IMPROPER
INSTALLATION OR TESTING, UNAUTHORIZED ATTEMPTS TO REPAIR, OR ANY OTHER CAUSE
BEYOND THE RANGE OF THE INTENDED USE, OR BY ACCIDENT, FIRE, LIGHTNING OR OTHER
HAZARD.
The OEM Products and Licensed Products are not designed or intended for use in
on-line control of aircraft, air traffic, aircraft navigation or aircraft
communications, or in the design, construction, operation or maintenance of any
nuclear facility, or in the operation or maintenance of any direct life support
system. NetApp disclaims any express or implied warranty of fitness for such
uses. Dell agrees that it will not use, market or expressly authorize licensees
to use the hardware or software for such purposes.
12. Patent, Copyright and Proprietary Rights Indemnity
a. NetApp shall, at its expense, defend and indemnify Dell and
old Dell officers, directors, agents and employees harmless for damages and
reasonable expenses
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(including attorneys' fees) related to any suits or claims by a third party
brought against Dell alleging that the OEM Products or Licensed Materials sold
or licensed pursuant to this Agreement or included into any Licensed Products
infringe any patent, copyright, trademark, trade secret or similar right
provided that NetApp is promptly notified, rendered reasonable assistance by
Dell as required, and permitted to direct the defense or settlement
negotiations. The foregoing obligation of NetApp does not apply with respect to
any OEM Product or Licensed Materials or portions or components thereof which is
or was: (i) made in whole or in part in accordance with Dell's specifications or
instructions and such Dell specifications are the source of the alleged
infringement, (ii) that are modified outside of the specifications or by any
unauthorized party (including Dell and any End User) (in either case other than
with NetApp's prior written consent), if the alleged infringement relates to
such modification, (iii) combined with other products, processes or materials
where the alleged infringement relates to such combination, provided that the
alleged infringement claim could not be made but for such combination, (iv)
where Dell continues allegedly infringing activity after being notified in
writing by NetApp thereof or after receiving a modification delivered at
NetApp's expense that would have avoided the alleged infringement, or (v) where
Dell's use of the OEM Product or Licensed Materials is not in accordance with
this Agreement as well as any applicable Documentation. Dell will indemnify and
hold NetApp and its officers, directors, agents and employees harmless from all
damages, settlements, attorneys' fees and expenses related to a claim of
infringement or misappropriation which is determined by a ruling of any court of
competent jurisdiction or by a mutually-agreed arbitrator, or by mutual
agreement of Dell and NetApp, to have been principally caused by Dell's conduct.
NetApp shall have no liability for any infringing combinations arising from the
integration of NetApp's OEM Products or Licensed Materials together with other
products provided by Dell or any third party, provided that the alleged
infringement claim could not be made but for such combination.
b. Should the use of OEM Products or Licensed Materials by Dell
be enjoined, or in the event NetApp wishes to minimize its potential liability
hereunder, NetApp may, at its option, either: (i) substitute a fully
functionally equivalent non-infringing unit of the OEM Product or Licensed
Materials; (ii) modify the infringing item so that it no longer infringes but
remains fully functionally equivalent; (iii) obtain for Dell, at NetApp's
expense, the right to continue use of such item; or (iv) if none of the
foregoing is feasible, NetApp may take back such infringing item or items and
refund to Dell the purchase price paid therefor, less amortized depreciation on
a five (5) year straight line basis. The foregoing in this Section 12 shall be
NetApp's sole liability and Dell's sole remedy for infringement or
misappropriation of third party intellectual property or proprietary rights.
13. Limitation of Liability.
IN NO EVENT, WHETHER BASED IN CONTRACT OR TORT (INCLUDING
NEGLIGENCE) SHALL EITHER PARTY BE LIABLE FOR INCIDENTAL, CONSEQUENTIAL,
INDIRECT, SPECIAL OR PUNITIVE DAMAGES OF ANY KIND, OR FOR LOSS OF REVENUE, LOSS
OF BUSINESS, LOST PROFITS (EXCEPT, IN THE CASE OF VIOLATION OF SECTIONS 2.d OR
15, TO THE EXTENT LOST PROFITS CONSTITUTE THE MEASURE OF DAMAGES UNDER FEDERAL
PATENT OR COPYRIGHT LAWS OR APPLICABLE TRADE SECRET STATUTES) OR LOST OR
INACCURATE DATA, OR COST
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OF COVER, PROCUREMENT OF SUBSTITUTE PRODUCTS, TECHNOLOGY OR SERVICES OR OTHER
FINANCIAL LOSS ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT OR THE SALE,
INSTALLATION, MAINTENANCE, USE, PERFORMANCE, FAILURE OR INTERRUPTION OF ITS
PRODUCTS. THIS DISCLAIMER OF LIABILITY FOR DAMAGES WILL NOT BE AFFECTED IF ANY
REMEDY PROVIDED HEREUNDER SHALL FAIL OF ITS ESSENTIAL PURPOSE.
14. Technology Information Escrow.
During the term of this Agreement, NetApp shall within 30 days of
the Effective Date of this Agreement and thereafter within 30 days of any
material change in source code deliver all applicable source code and source
documentation for the Software and hardware designs, specifications and other
information relative to the manufacture of the OEM Products and Licensed
Products and related Documentation and, to the extent it does not violate
NetApp's existing agreements with its suppliers, a costed Bill of Materials for
the OEM Products and the Licensed Products (if any) ("Source Materials") and any
updates thereof to an independent third party to be held in escrow at Dell's
expense. Dell shall be entitled to the release of the Source Materials only if
NetApp (i) dissolves, ceases to do business, makes an assignment for the benefit
of creditors, seeks protection under any bankruptcy, receivership or comparable
proceeding, or if any such proceeding is instituted against NetApp (and not
dismissed within ninety (90) days), (ii) is in material default of its support
obligations hereunder or its obligations to supply the OEM Products or Licensed
Products to Dell, or (iii) [*]. Subject to the terms and conditions of this
Agreement (including without limitation License Fees and payment obligations),
Dell shall have and NetApp hereby grants to Dell, a limited nonexclusive,
nontransferable, nonsublicensable license to the Source Materials only to allow
Dell to maintain, correct errors, support its End Users and continue exercising
the licenses under Sections 2 and 5 above solely for the purpose of maintaining
and continuing its then current product line and for all future products which
are natural extensions, additional models, enhancements, upgrades, and/or
replacements to Filer and NetCache products (but not to otherwise modify or
create derivative works of the Software); provided that Dell shall exercise this
license to the Source Materials and shall be entitled to release thereof only in
the event of a Release Condition. The term of the limited license shall be for
thirty (30) months following the first release of Source Materials. Such escrow
will be subject to the terms and conditions of the Technology Escrow Agreement
executed by the parties and attached hereto as Attachment G. [*]
15. Confidentiality.
a. Each party (the "Receiving Party")
agrees that to the extent the other party (the "Disclosing Party") previously
disclosed or currently or subsequently discloses to the
*Confidential treatment requested
for redacted portion.
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Receiving Party, or the Receiving Party learns from the Disclosing Party,
information relating to the Disclosing Party's products, the properties,
composition or structure thereof or the manufacture or processing thereof or
machines therefor or as to sensitive aspects of the Disclosing Party's business
(including, without limitation, computer programs, algorithms, names and
expertise of employees and consultants, know-how, formulae, processes, ideas,
inventions (whether patentable or not), schematics and other technical,
business, financial, customer and product development plans, forecasts,
strategies and information), such information shall be deemed the confidential
property of the Disclosing Party ("Proprietary Information"). The Receiving
Party recognizes and acknowledges that the Disclosing Party's Proprietary
Information (and the confidential nature thereof) is critical to the Disclosing
Party's business and that the Disclosing Party would not enter into this
Agreement without assurance that its Proprietary Information and the value
thereof will be protected as provided in this Section 15 and elsewhere in this
Agreement.
b. The Receiving Party agrees (i) to hold the Disclosing
Party's Proprietary Information in confidence as a fiduciary and to take all
reasonable precautions to protect such Proprietary Information (including,
without limitation, similar precautions to those which the Receiving Party
employs with respect to its confidential materials of similar nature or value),
(ii) not to divulge any Proprietary Information or any derivative thereof to any
third person except under nondisclosure agreement on a need to know basis, and
(iii) not to use such Proprietary Information at any time during or following
the term of this Agreement, except as contemplated by this Agreement. Any
employee or agent given access to Proprietary Information must have a legitimate
"need to know" and shall agree to similar binding obligations with respect
thereto and execute a written agreement to that effect. Without granting any
right or license, the Disclosing Party agrees that the foregoing clauses (i),
(ii) and (iii) shall not apply (A) with respect to material is in the public
domain (through no improper action or inaction by the Receiving Party or any of
its agents or employees); (B) with respect to material that can be shown to have
been independently developed by the Receiving Party without use of any
Proprietary Information by persons who have not had access to such Proprietary
Information; (C) with respect to material received from a third party without
breach of any nondisclosure obligation; and (D) material as to which the
Disclosing Party authorizes to be disclosed to others without confidentiality
restrictions. The Receiving Party may disclose material required to be disclosed
by law or court order (provided that the Disclosing Party is given an
opportunity to restrict the scope of required disclosure). The Receiving Party
must promptly notify the Disclosing Party of any information it believes comes
within the circumstance set forth in the immediately preceding sentence and will
bear the burden of proving the existence of any such circumstance by clear and
convincing evidence. The Receiving Party's obligations under this Section shall
terminate five (5) years after the effective date of any termination or
expiration of this Agreement. Immediately upon termination of this Agreement or
upon the Disclosing Party's request, the Receiving Party will turn over to the
Disclosing Party all Proprietary Information as well as all documents or media
containing any Proprietary Information as well as all copies, extracts or
derivatives thereof.
c. The Receiving Party acknowledges and agrees that due to
the unique nature of the Proprietary Information, there can be no adequate
remedy at law for any material breach of its obligations under Sections 2.d or
15 hereof and that any such breach may result in irreparable
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harm to the Disclosing Party. Therefore, upon any such breach, the Disclosing
Party shall be entitled to appropriate equitable relief in addition to its other
remedies and to be indemnified and held harmless by the Receiving Party from any
damage, expense, loss or harm, including, without limitation, lost profits and
attorneys' fees, in connection with any breach or enforcement of the Receiving
Party's obligations hereunder or the unauthorized use or release of any such
Proprietary Information for which the Receiving Party is directly or indirectly
responsible. The Receiving Party will notify the Disclosing Party in writing
immediately upon the occurrence of any such unauthorized release or other
breach. Any breach of this Section will constitute a material breach of this
Agreement and give rise to the Disclosing Party's immediate right to terminate
this Agreement.
16. Relationship of the Parties.
The parties hereto expressly understand and agree that the parties
are independent contractors in the performance of each and every part of this
Agreement, are each solely responsible for its respective employees and agents
as well as related labor costs and expenses.
17. Assignment.
Neither party may assign or transfer, in whole or in part, this
Agreement nor any of its rights and obligations hereunder (including any
assignment by merger or operation of law) without the prior written consent of
the other party; which consent shall not be unreasonably withheld (provided,
however, that no consent shall be required if NetApp is assigning to a party not
listed on the Exclusivity List in Attachment D; except such written consent is
required if NetApp is assigning to any party as specifically identified in
Attachment D, Section d).
18. Term and Termination.
a. Unless terminated earlier as provided herein, this Agreement
shall remain in full force and effect from the Effective Date for an initial
term of five (5) years and shall be automatically renewed for additional one (1)
year terms unless terminated by either party on sixty (60) days' prior written
notice prior to the end of the initial term or any renewal term. Each party
understands that at the end of the term of this Agreement or upon earlier
termination hereof, neither it nor any of its agents shall have any right
whatsoever in connection with the subject matter of this Agreement, regardless
of any undocumented continuation of the relationship with the other party, nor
be entitled to any compensation in connection with such termination. To the
extent legally permissible, any such rights or possible claims are hereby
expressly waived.
b. This Agreement may be terminated by a party for cause immediately
by proper written notice to the other party, upon the occurrence of any of the
following events:
i. The other ceases to do business;
ii. The other shall fail to secure or renew in a timely manner
any license, permit or authorization is required in order to conduct its
business
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activities as contemplated by this Agreement, or if such license,
permit or authorization is revoked or suspended and not reinstated within sixty
(60) days;
iii. The other breaches any material obligation under this
Agreement and fails to cure such breach within thirty (30) days from receipt of
proper written notice describing such breach (provided that no cure period will
be permitted where cure is not possible);
iv. The other becomes insolvent or seeks protection under any
bankruptcy, receivership, trust deed, creditors arrangement, composition or
comparable proceeding, or if any such proceeding is instituted against the other
(and not dismissed within ninety (90) days).
c. Each party understands that these termination rights hereunder
are absolute, nonexclusive and independent of any other remedies which may be
available at law or in equity. Neither party shall incur any liability for
damage, loss or expenses incurred by the other incident to a party's termination
of the Agreement in accordance with its terms. In addition to provisions which
survive according to their terms, the following provisions shall survive
expiration or termination of this Agreement: Sections 2.b, 2.c, 2.d, 6.e, 6.f,
6.g, 6.h, 7, 8.c (last sentence), 9.e, 11, 12, 13, and 15 through and including
19; and Section 14 (except in the case of termination by NetApp, and except
that, post termination, no additional Source Materials need be deposited). In
addition, post termination, End User Licenses shall remain in effect in
accordance with their terms.
d. Upon termination of this Agreement for any reason, to the extent
NetApp deems it reasonably necessary or desirable, Dell hereby agrees at
NetApp's expense to assign any and all such right, title and interest in or to
any OEM Product or Licensed Product as well as any enhancements or improvements
thereto, NetApp Marks or any other proprietary material of NetApp. Dell further
agrees at such time and at NetApp's expense to undertake all action, which in
NetApp's sole judgment is reasonably necessary, to protect, enforce and document
NetApp's proprietary rights in connection with any subject matter of this
Agreement, including, without limitation, to execute any proper instrument or
undertake any reasonable legal action in such regard.
e. Within thirty (30) days following the effective date of any
expiration or termination this Agreement due to Dell's breach, Dell shall submit
to NetApp an accurate and complete list ("Inventory") of all OEM Products and/or
Licensed Products in Dell's inventory or otherwise directly or indirectly under
Dell's control.
19. General Provisions.
a. Except as otherwise expressly provided, this Agreement may be
amended and observance of any provision of this Agreement may be waived (either
generally or in any instance, retroactively or prospectively) only upon written
consent of the parties. Waivers and amendments shall be effective only if (i)
made by non-pre-printed documents, (ii) clearly
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understood by both parties to be an amendment or waiver, and (iii) express
reference to this Agreement is included therein.
b. The parties intend that this Agreement be controlling over and
supersede additional or different terms of any order, confirmation, invoice or
similar document, unless expressly agreed upon in writing by both parties.
c. This Agreement shall be governed by and construed under the laws
of California and the United States without regard to conflicts of laws
provisions thereof and without regard to the United Nations Convention on
Contracts for the International Sale of Goods. For any suits initiated by Dell,
the sole jurisdiction and venue for actions arising hereunder shall be the
California state and U.S. federal courts having within their jurisdiction the
location of NetApp's principal place of business. Both parties consent to the
jurisdiction of such courts and agree that process may be served upon them in
the manner provided herein for giving of notices or otherwise as allowed by
California, Texas or federal law. In any action or proceeding to enforce rights
under this Agreement, the prevailing party shall be entitled to recover costs
and attorneys' fees. For any suits initiated by NetApp, the sole jurisdiction
and venue for actions arising hereunder shall be the Texas state and U.S.
federal courts having within their jurisdiction the location of Dell's principal
place of business.
d. If Dell or its End Users or other customer is an agency or
instrumentality of the United States Government: Software is provided with
Restricted Rights under FARS and DFARS; the Software has been developed at
private expense; no portion of the Software has been developed with U.S.
Government funds; the Software is a trade secret and proprietary information of
NetApp; and the ownership of the Software and any reproductions shall remain
with NetApp. Use, duplication or disclosure by the U.S. Government is subject to
restrictions as set forth in subparagraph (c)(1)(ii) of the Rights in Technical
Data and Computer Software clause at DFARS 252.227-7013 or subparagraphs (c)(1)
and (2) of the Commercial Computer Software-Restricted Rights at 48 CFR
52.227-19, as applicable.
e. Each party shall in all material respects comply with all
applicable laws and regulations which apply to any aspect of its execution,
performance, non-performance and/or enforcement of this Agreement (and related
agreements), the OEM Products and Licensed Products, including, without
limitation, those applicable to product claims, labeling, approvals,
registrations and notifications pertaining to the OEM Products or Licensed
Products.
f. Dell (and, where applicable in connection with its obligations
under this Agreement, NetApp) shall comply with the U.S. Foreign Corrupt
Practices Act (regarding among other things, payments to government officials)
as well as all export laws, restrictions, national security controls and
regulations of the United States or other applicable foreign agency or
authority, and not to export or re-export, or allow the export or re-export of
any OEM Product, Licensed Product, proprietary material, technology or device or
any copy, portion or derivative thereof in violation of any such restrictions,
laws or regulations, or to any Group D:1 or E:2 country (or any national of such
country) specified in the then current Supplement No. 1 to Part 740, or, in
violation of the embargo provisions in Part 746, of the U.S. Export
Administration
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Regulations (or any successor regulations or supplement thereto),
except in compliance with and with all licenses and approvals required under
applicable export laws and regulations, including without limitation, those of
the U.S. Department of Commerce.
g. Headings and captions are for convenience only and are not to be
used in the interpretation of this Agreement.
h. Notices under this Agreement shall be sufficient only if
personally delivered, delivered by a major commercial rapid delivery courier
service with tracking capabilities or mailed by certified or registered mail,
return receipt requested to a party at its addresses first set forth herein or
as amended by notice pursuant to this subsection. If not received sooner, notice
by mail shall be deemed received five (5) days after deposit in the U.S. mails.
i. This Agreement (including all Attachments and Exhibits thereto)
supersedes all proposals, oral or written, all negotiations, memoranda of
understanding, letters of intent, conversations, or discussions between or among
parties relating to the subject matter of this Agreement and all past dealing or
industry custom. Each Attachment and Exhibit is incorporated herein as if set
forth in full in this agreement.
j. If any provision of this Agreement is held by a court of
competent jurisdiction to be illegal, invalid or unenforceable, that provision
shall be limited or eliminated to the minimum extent necessary so that this
Agreement shall otherwise remain in full force and effect and enforceable.
k. Force Majeure. Neither party will be liable for any delay in
performing or for failing to perform obligations resulting from acts of God;
inclement weather; fire; explosions; floods; or riots or civil disturbances.
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IN WITNESS WHEREOF, the parties have entered into this Agreement as
of the date first above written.
Network Appliance, Inc.
By: /s/ Daniel J. Warmenhoven
---------------------------
Name: Daniel J. Warmenhoven
---------------------------
Title: President & CEO
---------------------------
Dell Products, L.P.
By: /s/ Michael Lambert
---------------------------
Name: Michael Lambert
---------------------------
Title: Sr. V.P., Enterprise Systems Group
-----------------------------------