{"id":42614,"date":"2015-09-17T11:25:58","date_gmt":"2015-09-17T16:25:58","guid":{"rendered":"https:\/\/content.findlaw-admin.com\/ability-legal\/contracts\/uncategorized\/oem-distribution-and-license-agreement-network-appliance-inc.html"},"modified":"2015-09-17T11:25:58","modified_gmt":"2015-09-17T16:25:58","slug":"oem-distribution-and-license-agreement-network-appliance-inc","status":"publish","type":"corporate_contracts","link":"https:\/\/corporate.findlaw.com\/contracts\/operations\/oem-distribution-and-license-agreement-network-appliance-inc.html","title":{"rendered":"OEM Distribution And License Agreement &#8211; Network Appliance Inc. and Dell Products LP"},"content":{"rendered":"<pre>OEM DISTRIBUTION AND LICENSE AGREEMENT\n\n\n     This OEM Distribution and License Agreement (\"Agreement\") is entered into\nas of October 27, 1998 (\"Effective Date\") by and between Network Appliance,\nInc., with a principal place of business at 2770 San Tomas Expressway, Santa\nClara, CA 95051 (\"NetApp\"), and Dell Products L.P., a Texas limited partnership\nwith a principal place of business at One Dell Way, Round Rock, Texas 78682\n(\"Dell\").\n\n     WHEREAS, NetApp manufactures certain filers (as defined below);\n\n     WHEREAS, Dell manufactures, integrates, markets and distributes computer\nsystems, components and peripherals, including data storage systems and file\nserver systems;\n\n     WHEREAS, the parties wish to form a strategic alliance whereby Dell will\nhave the following rights on the terms and under the conditions set forth in\nthis Agreement: (i) to purchase and distribute on an OEM basis certain NetApp\nfiler products (pursuant to which OEM arrangement Dell would add to NetApp's\nfiler products an exterior casing of Dell's design, Dell brand markings, disk\ndrives (mass storage), memory (other than base memory) and NIC cards; (ii) to\nhave NetApp port NetApp's filer operating system and related software for\noperation on Dell manufactured platforms and to distribute such Dell platforms\nwith such ported NetApp's filer operating system and related software; and (iii)\nto manufacture filer products based on NetApp's hardware designs and\nincorporating existing (i.e., non-ported) NetApp filer operating system and\nrelated software.\n\n     WHEREAS, the parties intend that NetApp's NetCache product will be made\navailable to Dell under similar terms and conditions to this Agreement, provided\nthat all exclusivity provisions under Attachment D, Section b shall not apply to\nNetCache.\n\n     NOW, THEREFORE, in consideration of the foregoing and of the terms and\nconditions set forth below, the parties agree as follows:\n\n     1.   Definitions.\n\n          a.   \"days\" means calendar days unless specifically set forth as\nbusiness days.\n\n          b.   \"End User\" means the ultimate end user customer of products sold\nunder or distributed pursuant to this Agreement.\n\n          c.   \"Filer\" or \"filer\" means a Network Attached Storage file server\nappliance that runs NetApp's proprietary or third party operating system,\nsoftware, hardware, and firmware; for the avoidance of doubt, a file server\nbased on NT, Unix or NetWare (or successor technologies) is not a filer.\n\n          d.   \"Licensed Materials\" means the NetApp proprietary Filer hardware\ndesign (\"Licensed Hardware Materials\"); the NetApp proprietary Filer operating\nsystem and related software or firmware listed in Attachment B-1 as ported by\nNetApp to operate on Dell\n\n\n1\n\n   2\n\n\nmanufactured platforms pursuant to Section 5.a and licensed to Dell\npursuant to the license in Section 5.b (\"Licensed Ported Software Materials\");\nand the NetApp proprietary operating system and related software or firmware\nlisted in Attachment B as used in the Licensed Hardware Materials (which\nsoftware is not ported as described above) (\"Licensed Non-Ported Software\nMaterials\").\n\n          e.   \"Licensed Ported Products\" means Dell products incorporating the\nLicensed Ported Software Materials.\n\n          f.   \"Licensed Manufactured Products\" means Dell products\nincorporating the Licensed Non-Ported Software Materials and Licensed Hardware\nMaterials.\n\n          g.   \"Licensed Products\" means Licensed Ported Products and\/or\nLicensed Manufactured Products.\n\n          h.   \"Network Attached Storage\" or \"NAS\" means a \"higher-level\"\nspecial purpose \/ single focus storage device utilizing hard disk drives,\nrunning a special purpose real-time operating system (not NT-, NetWare-, Unix-\nor successor technology-based) that connects directly to a LAN and\/or WAN\nIP-based communication network and supports remote file system access protocols\nto provide access to data (e.g., CIFS, NFS). A key design point is that a NAS\ndevice is not designated to support general purpose computing applications.\n\n          i.   \"NFS Software\" means the NetApp Software that enables serving\nfiles via the NFS (Network File System) protocol.\n\n          j.   \"OEM Products\" means the RAID Filer hardware products, including\nthe object code version of the OEM Software, listed in Attachment A.\n\n          k.   \"OEM Software\" means NetApp proprietary Filer operating system\nand related software or firmware used in the OEM Products.\n\n          l.   \"Quarter\" means Dell's fiscal quarter.\n\n          m.   \"RAID\" means Redundant Array of Independent Disk data protection\nand storage technology.\n\n          n.   \"RAID Filer\" has the meaning specified in Section 3.\n\n          o.   \"Software\" means the Licensed Ported Software Materials, the\nLicensed Non-Ported Software Materials, and\/or the OEM Software, as applicable.\n\n         2. OEM Terms.\n\n          a.   Appointment and License. Subject to all the terms and conditions\nof this Agreement, (i) NetApp hereby appoints Dell for the term of this\nAgreement as a nonexclusive (except as provided in Attachment D Section b),\nworldwide distributor of the OEM Products directly to End Users and through\nDell's affiliated systems integrators, distributors, value added\n\n\n2\n\n   3\n\n\nresellers and resellers, and (ii) as part of such appointment, NetApp hereby\ngrants Dell a nonexclusive, worldwide, nontransferable license to market and\ndistribute the OEM Software only in object code form and for use only with the\nOEM Products for use by End Users. Packaging specifications for OEM Products are\ncontained in Attachment E. Except as provided in Section 14 (Escrow), neither\nDell nor any of its End Users is\/are entitled to receive any source code, source\ninformation or documentation, or similar materials relating to the OEM Products.\nThe licensed and related rights granted in this Agreement are non-exclusive,\nsubject to Attachment D, Section b.\n\n          NetApp has the right, upon six (6) months prior written notice to\nDell, to make significant changes or modifications to, or to discontinue, any\nOEM Products and\/or any portion of the Licensed Materials; provided, however,\nthat the parties may exercise their rights under the engineering change order\nprovisions in Attachment A-2. Additionally, NetApp agrees to continue to sell or\nlicense the discontinued OEM Product and\/or portion of the Licensed Materials to\nDell under this Agreement for a period of not less than ninety (90) days\nfollowing such discontinuance.\n\n          b.   End User Documentation. NetApp agrees to provide Dell with\nNetApp's standard or localized end user documentation for the OEM Products and\nthe Licensed Materials (\"Documentation\") in mutually agreeable electronic form.\nSubject to all the terms and conditions of this Agreement, NetApp hereby grants\nDell a nonexclusive, worldwide, nontransferable license to reproduce, modify and\ncreate derivative works of the Documentation (or to have third parties do so on\nDell's behalf) and to market and distribute to End Users such derivative works\nof the Documentation solely with the OEM Products or Licensed Products. Dell may\nreproduce and distribute the Documentation in hard copy or softcopy form as well\nas in electronic form. Dell will provide to NetApp copies of all Documentation\nderivative works created by or for Dell. The parties agree to discuss the\nsharing of costs for Documentation localization on a case-by-case basis.\n\n          c.   End User License Terms. Software portions of OEM Products and\nLicensed Products may be distributed only by Dell to End Users, each of which\nhas agreed to be bound by an agreement in electronic or printed format\nsubstantially in the form, and shall be subject to the terms and conditions set\nforth in NetApp's End User Software License Agreement substantially in the form\nof Attachment C (\"End User License\") as well as any additional terms of such\nrelationship; provided that any such additional terms shall be consistent in all\nmaterial respects with Attachment C.\n\n          d.   Restrictions. Copies of Software are licensed for distribution\nonly and not sold. Except as expressly authorized in this Agreement, Dell shall\nnot: (i) disassemble, decompile or otherwise attempt to reverse engineer any\nportion or component of the OEM Products or the Licensed Materials or otherwise\nattempt to derive or obtain any source code, structure, algorithms, process,\ntechnique, technology, know how or ideas underlying or contained in the OEM\nProducts or the Licensed Materials, (ii) rent, lease or otherwise provide\ntemporary access to the OEM Products or the Licensed Materials or portion or\ncomponents thereof, (iii)\n\n\n3\n\n   4\n\ncopy, alter, use, modify or create derivative works of any portion or component\nof the OEM Products or Licensed Materials, or (iv) allow, assist or permit\nothers to do any of the foregoing.\n\n          e.   Packaging; Product Quality and Testing. NetApp shall supply OEM\nProducts and Licensed Materials (as applicable) to Dell in accordance with the\npackaging requirements, quality assurance standards and testing procedures\nspecified in Attachment E.\n\n          f.   Additional OEM Products and\/or Licensed Products. NetApp shall\nmake available to Dell, under this Agreement, all future NetApp products\nconsistent with the spirit of this Agreement for products which are extensions,\nadditional models, enhancements, upgrades and\/or replacements to Filer and\nNetCache products and\/or options. All upgrades, new versions and maintenance\nreleases of the Software will be provided to Dell when commercially released.\n\n         3.       Limited Exclusivity.\n\nDell agrees, subject to Attachment D, and for so long as Section b of Attachment\nD remains in effect, to purchase or license all of its requirements of Filers\nthat include RAID capability integrated into the Filers (\"RAID Filer\") solely\nfrom NetApp.\n\n         4.       Purchase Orders; Forecasts; Changes.\n\n          a.   Orders and Supply. During the term of this Agreement, subject to\nthe other terms and conditions of, this Agreement, NetApp shall supply OEM\nProducts ordered by Dell pursuant to the order and purchase terms and conditions\nspecified in Attachment A-1.\n\n          b.   Future Revolver Supply Arrangements. The parties shall work\ntogether as the relationship progresses to establish revolver and hubbing\narrangements for each Dell regional manufacturing facility as warranted by\nDell's volume needs for OEM Products. Additionally, specific order acceleration,\nrescheduling, and cancellation terms are as described in Attachment A-1. NetApp\nagrees that until the revolver and hubbing arrangements are implemented it shall\nutilize air freight, as requested by Dell (at Dell's expense) to deliver OEM\nProducts to Dell's regional manufacturing facilities.\n\n         5.       Porting; License Terms; Additional Development; Manufacturing \n                  License.\n\n          a.   Porting to Dell Platforms. NetApp and Dell agree to collaborate\nto identify appropriate Dell manufactured platforms to which agreed upon NetApp\nproprietary Filer operating system and related software and firmware specified\nin Attachment B is intended to be ported to the extent necessary to make them\ncompatible with and operable on the Dell manufactured hardware platforms. Dell\nand NetApp shall use reasonable efforts to prepare and finalize an engineering\nrelease plan and negotiate in good faith a mutually agreed upon, written\nstatement of work which details the terms, scope, specifications, development\nmilestones, timeline, acceptance criteria, optimized performance criteria,\nre-work requirements if acceptance and performance criteria are not met,\ndevelopment fees and other relevant terms for such porting and related\ndevelopment work to be performed by NetApp to create the Licensed Ported\nSoftware Materials. NetApp will dedicate sufficient personnel and other\ndevelopment resources\n\n4\n\n   5\n\n\n\nto timely achieve the agreed-upon development milestones, and such personnel and\nresources will be committed on a first priority basis to such porting and\nrelated development activities. NetApp will provide to Dell at least bi-weekly\nengineering reports in an agreed format showing progress toward development\nmilestones.\n\n          b.   License to Dell With Respect to Licensed Ported Products. [*] In\nno event will Dell allow any third party to use or modify or have access to any\nLicensed Ported Software Materials, except as same are incorporated into\nLicensed Products, except in connection with third party contractors who may do\nso in order to support or manufacture the Licensed Products for Dell, subject to\nSection 15. Licensed Ported Software Materials are licensed hereunder solely\nwithin the scope of the above license. Neither Dell (except as provided in\nSection 14 (Escrow)) nor any of its End Users is\/are entitled to receive any\nsource code, source code documentation or similar materials relating to the\nLicensed Ported Software Materials. All End Users will receive Licensed Ported\nSoftware Materials subject to all of the terms and conditions of the End User\nLicense.\n\n          c.   Additional NetApp Development. NetApp agrees to allow Dell to\nfund engineering projects at NetApp for specific Dell needs with respect to\nimprovements and enhancements to OEM Products and Licensed Materials, [*]. On a\nproject-by-project basis, both parties must agree in advance to separate written\nstatements of work as to the specifications and scope of such development and to\nthe ownership of, or exclusive or nonexclusive rights to (as appropriate), the\nresulting work product and related intellectual property rights; provided,\nhowever, that in each case in which projects are funded by Dell but NetApp\nretains intellectual property rights, Dell shall (unless NetApp reasonably\nobjects) obtain marketing rights to such resulting work product that are\nexclusive for a mutually agreed upon time period sufficient to give Dell a\nmeaningful competitive advantage. NetApp and Dell agree to share product\nroadmaps on a regular basis and NetApp agrees to consider Dell's suggestions for\nadditions to NetApp's product line.\n\n          d.   Manufacturing License to Dell With Respect to Licensed\nManufactured Products. Subject to all the terms and conditions of this\nAgreement, Dell shall have the right and NetApp hereby grants to Dell a [*]\nlicense: (i) to reproduce, market and distribute (in object code form) the\nLicensed Non-Ported Software Materials as incorporated into the Licensed\nManufactured Products, and (ii) to use the Licensed Hardware Materials in the\ndesign, manufacture, marketing, distribution and support of Licensed\nManufactured Products (including use of contractors to manufacture and\/or\nsupport). In no event will Dell allow any third party to use or modify or have\naccess to any Licensed Hardware Materials or Licensed Non-Ported Software\nMaterials, except as same are incorporated into Licensed Products, except in\nconnection with third party contractors who may do so in order to manufacture\nand\/or support the Licensed Products for Dell subject to Section 15. Licensed\nHardware Materials and Licensed Non-Ported Software Materials are licensed\nhereunder solely\n\n*Confidential treatment requested \n for redacted portion.\n\n\n5\n\n   6\n\nwithin the scope of the above license. Neither Dell (except as provided in\nSection 14 (Escrow)) nor any of its End Users is\/are entitled to receive any\nsource code, source code documentation or similar materials relating to the\nLicensed Non-Ported Software Materials. All End Users will receive Licensed\nNon-Ported Software Materials subject to all of the terms and conditions of the\nEnd User License.\n\n         6.       Prices; Payment Terms.\n\n          a.   Prices for OEM Products. NetApp agrees to sell OEM Products,\nrelated options and software, protocols, software subscriptions and upgrades at\nthe prices and discounts specified in Attachment A-1, Section f.\n\n          b.   Cost Reduction Assistance. Dell agrees to exercise commercially\nreasonable efforts to assist NetApp in lowering its commodity costs for OEM\nProducts as provided in Attachment A-1, Section g.\n\n          c.   Favorable Pricing. NetApp shall provide to Dell favorable pricing\nfor OEM Products as provided in Attachement A-1, Section h.\n\n          d.   License Fees for Licensed Products.\n\nLicense fees in conjunction with the Licensed Products (\"License Fees\") shall be\npayable to NetApp in conjunction with the Licensed Products as set forth in\nAttachment B-1.\n\n          e.   Payments. Dell's payments to NetApp shall be made in U.S. dollars\nas follows:\n\n               (1)  For OEM Product orders with Dell's EMF (European\nManufacturing Facility), Dell will make one (1) monthly telegraphic payment to\nNetApp on the first working day after Dell's fiscal month close. This payment\nwill be for valid invoices received and dated during the fiscal month prior to\nthe month just closed. (Example: Payments for the fiscal month of August will be\nmade on the first working day in fiscal October.)\n\n               (2)  For OEM Product orders with Dell's APCC (Asia Pacific\nCustomer Center), AMF (American Manufacturing Facility), and all other\naffiliates, Dell will make telegraphic payment to NetApp forty-five (45)\ncalendar days after the date of a valid invoice from NetApp.\n\n               (3)  License Fees and Hardware License Fees with respect to\nLicensed Products shall be paid pursuant to Section 6(g) below.\n\nNo payment by Dell or receipt by NetApp of a lesser amount than the amount of\ninvoice shall be deemed to be other than on account of the earliest due amount,\nnor shall any endorsement or statement on any check or letter accompanying any\ncheck or payment be deemed an accord and satisfaction, and NetApp may accept\nsuch check or payment without prejudice to NetApp's right \n\n\n6\n\n   7\n\n\nto recover the balance of any amount due or pursue any other remedy provided for\nin these terms and conditions.\n\nShould Dell fail to pay within the specified time frame, then NetApp shall\nprovide written notice to Dell of such failure. If the failure to pay is not\ncured within fifteen (15) days of such notice, NetApp may stop shipments to Dell\nhereunder until payment is made or seek damages at law. Dell's receipt of\nNetApp's invoice is a condition precedent to any exercise by NetApp of its\nrights with respect to non-payment by Dell. Additionally, NetApp agrees that it\nshall not exercise such rights if failure to pay any uncontested obligation is\ndue to mistake or inadvertent error by Dell.\n\nEither party may, without liability to the other, deduct (from any amounts due\nto the other), any amounts owed to the first party or its affiliates by the\nother or any of the other's affiliates, and may without penalty to itself\nwithhold any payment to the extent that the amount that the other party owes any\nmoney to the first party or its affiliates but only with prior written approval\nof the other party. Each party will promptly notify the other in writing of its\nintention to exercise any rights pursuant to this Section.\n\n               f.   Taxes and Duties. Dell shall assume all responsibility for\nany and all tariffs, duties, value-added, withholding and all other taxes on\nshipments of OEM Products and its manufacture, use and distribution of Licensed\nProducts (except taxes based on the gross or net income of NetApp) or provide\nNetApp with a tax exemption certificate acceptable to the taxing authorities. On\norders for shipment outside the United States of America, all required import\nduties, licenses and fees shall be payable by Dell in addition to the stated\nprices. NetApp acknowledges and agrees that, notwithstanding the foregoing, Dell\nhas the right to withhold any applicable taxes based on the payment of royalties\nor license fees to NetApp from any License Fees due under this Agreement if\nrequired by any governmental authority. If NetApp is unable to use foreign tax\ncredits or other mechanisms to compensate for such withheld taxes, the parties\nagree to work together to find an appropriate solution.\n\n               g.   Reports; Payment of License Fees. Dell shall provide NetApp\nwith monthly written reports of actual sales of OEM Products and\/or Licensed\nProducts (and components thereof) within thirty (30) days after the end of each\nfiscal month. All License Fees with respect to sales of Licensed Products\nidentified in such report shall be paid by Dell check accompanying such report.\n\n               h.   Audit Rights. Each party shall maintain accurate and\ncomplete books and records relating to the parties' performance under this\nAgreement, and to keep such documentation for three (3) years. Either party will\nhave the right, no more than once per calendar year, to have an independent\npublic accountant, reasonably acceptable to the other party, examine the other\nparty's relevant books, records and accounts for the purpose of verifying such\nother party's compliance with this Agreement. Each audit will be conducted at\nthe audited party's place of business, or other place agreed to by NetApp and\nDell, during the audited party's normal business hours and with at least fifteen\n(15) business days prior written notice. The party requesting the audit will pay\nall fees and expenses of the auditor for the examination: provided\n\n7\n\n   8\n\n\nthat the audited party will bear any such expense if the review or audit shows a\ndiscrepancy in favor of the party requesting the audit of more than five percent\n(5%) for the period audited. All deficiencies shown by any such audit shall be\nimmediately paid.\n\n         7.       Ownership.\n\n          Notwithstanding anything else, NetApp (and its licensors or other\nsuppliers, as applicable) retains (i) all copyrights, patent rights, trade\nsecret rights as well as any and all other proprietary rights in or to the OEM\nProducts and Licensed Products, all Documentation and other related materials,\nand all copies and derivative works thereof (by whomever produced), (ii) all\nservice marks, trademarks, trade names or any other designations of NetApp, and\n(iii) all title to, and, except as expressly licensed herein, all rights to the\nSoftware components and portions of the OEM Products and Licensed Products.\n\n         8.       Covenants and Representations.\n\n          Except as, and only to the extent, expressly otherwise provided in\nthis Agreement, Dell covenants, represents, and agrees as of the Effective Date\nand likewise throughout the entire term of this Agreement:\n\n          a.   Dell shall use reasonable efforts to market the OEM Products and\nLicensed Products effectively and to ensure that all advertising and marketing\nmaterials generated by Dell relating to or reflecting upon the OEM Products and\nLicensed Products, Dell or NetApp are legal, proper and accurate in all material\nrespects.\n\n          b.   In its distribution efforts in connection with the OEM Products\nand Licensed Products and\/or products containing OEM Products or Licensed\nProducts, Dell shall be granted the right to use the then current trade names,\ntrade marks, service marks and similar designations, whether or not registered,\nused by NetApp in association with the OEM Products and Licensed Products\n(collectively, \"NetApp Marks\"), subject to and only during the term of this\nAgreement. In doing so, Dell shall not represent or imply that the parties are\nin any way related to or controlled by one another. All advertisements and\npromotional materials, packaging and any other material bearing a NetApp Mark\n(including actual OEM Products and Licensed Products) shall identify NetApp as\nthe owner of each NetApp Mark so used and that NetApp is the manufacturer and\/or\nlicensor of any such OEM Product or Licensed Product. Dell's use of NetApp Marks\nshall be subject to NetApp's prior written approval for each substantially new\nuse of a NetApp Mark; such approval shall not be unreasonably withheld. As\nprovided in Section 9.d below, NetApp shall provide guidelines and marketing\nmaterials for use of NetApp Marks. To the extent that Dell's use of a NetApp\nMark is in full compliance with NetApp's usage guidelines or is an accurate and\ncomplete use of product information materials provided by NetApp, NetApp will be\ndeemed to have approved such use. Except as and to the extent expressly stated\nthis Agreement, no other rights or interest to use any NetApp Mark, name or\n\n8\n\n   9\n\n\n\n\ndesignation is granted, implied or intended. Further, Dell agrees not to use or\ncontest, during or after the term of this Agreement, any NetApp Mark or other\ndesignation used by NetApp anywhere in the world (nor any name, mark or\ndesignation similar thereto). Dell acknowledges and agrees that all use of the\nNetApp Marks by Dell shall inure to the benefit of NetApp.\n\n          c.   Dell shall keep NetApp informed of, and communicate promptly to\nNetApp, any technical or support problems encountered with respect to the OEM\nProducts and Licensed Products (including, without limitation, the information\nto be provided to NetApp pursuant to Attachment F), as well as any resolutions\nproposed, attempted or achieved. Dell agrees that NetApp shall enjoy any and all\nright, title and interest in and to any such problem resolutions (which shall be\ndeemed Licensed Materials subject to the licenses to Dell herein), without the\npayment of any additional consideration therefor either to Dell, its End Users,\nemployees, agents or any other party (any right to which is hereby expressly\nwaived by Dell).\n\n          d.   Dell shall notify NetApp promptly as to any known or reasonably\nsuspected infringement of any Marks or of any copyrights, patent rights other\nproprietary rights relating to the OEM Products and Licensed Products. NetApp\nmay, in its sole discretion, decide to take or not to take whatever course of\naction it deems appropriate in connection therewith. If NetApp elects to protect\nor enforce such rights (whether identified by Dell or otherwise) by taking legal\naction, Dell agrees to provide reasonable cooperation at NetApp's request and\nexpense in connection with any such action. If NetApp initiates and prosecutes\nany legal cause of action related to such infringement, all legal expenses\n(including court costs and attorneys' fees) shall be for NetApp's account and\nNetApp shall be entitled to all amounts awarded by way of judgment, settlement\nor compromise.\n\n         9.       Marketing and Sales Cooperation; Product Promotion.\n\n          a.   In addition to standard worldwide sales\/marketing support\nobligations, Dell and NetApp agree to discuss and encourage cooperation between\nDell and NetApp enabling NetApp technology. See Attachment H for additional\nsales and marketing terms .\n\n          b.   At NetApp's expense, NetApp will train Dell's training personnel\non how to sell NetApp products. On terms to be agreed between the parties,\nNetApp will train Dell field personnel on how to sell NetApp products. The\nparties will jointly agree on the appropriate level and type of sales training\nand support from NetApp to assure success of the products. This support will\ninclude dedicated NetApp personnel to help Dell sell the products, at mutually\nagreeable levels and cost of support. Both companies will establish\ndecision-making processes which can expeditiously make decisions on specific\naccounts where further sales cooperation is desired by both parties. [*]. NetApp\nwill also make available, on mutually agreeable terms, additional training to\nother Dell sales personnel beyond just the Dell trainers.\n\n          c.   Dell agrees to provide visibility of the use of NetApp technology\nin the Dell Filer products in such areas as product collateral (print and\nonline), press releases and on NetApp software. Dell will consider including\nNetApp brand visibility in Dell advertising. In addition, \n\n*Confidential treatment requested \n for redacted portion.\n\n\n\n\n9\n\n   10\n\n\nDell shall exercise commercially reasonable efforts to use the term \"filer\" in\npublicly referring to the OEM Products or Licensed Products.\n\n          d.   NetApp shall provide usage guidelines for Dell's use of NetApp\nMarks pursuant to Section 8.b above. In addition, NetApp shall provide product\nfeature information, claims and other marketing materials for the OEM Products\nand Licensed Products, all of which will in all material respects be accurate\nand comply with all applicable legal requirements. Dell may rely on and use such\nproduct feature information, claims, and other materials provided by NetApp in\nconnection with Dell's marketing and distribution of the OEM Products and\nLicensed Products. For any modification of product feature materials or claims\nmaterials directly tied to NetApp technology which Dell desires to make, Dell\nwill confer with NetApp for feedback. Dell will ensure that its materials are\naccurate and fully consistent with the usage guidelines, product feature\ninformation, claims and other marketing materials for the OEM Products and\nLicensed Products which have been previously provided by or approved by NetApp,\nas updated from time to time by written notice to Dell.\n\n          e.   Dell shall keep, for five (5) years following the sales\ntransaction to Dell's customer, accurate customer and product information\nnecessary for technical support or to adequately administer a recall of any OEM\nProducts and\/or Licensed Products. NetApp shall keep, for five (5) years\nfollowing the supply or license of each OEM Product or Licensed Product to Dell,\naccurate product information necessary for technical support of such OEM Product\nor Licensed Product or to adequately administer a recall of any OEM Products\nand\/or Licensed Products.\n\n         10.      Support and Training Obligations.\n\n          Dell shall be responsible for providing Level I and Level II technical\nsupport to its End Users. Dell shall provide technical support, upgrades,\nmaintenance and other support services and assistance directly to its End Users.\nNetApp shall provide the necessary level of support for levels above Level II.\nDell and NetApp shall each identify one to three specific Level III contact\npersons for all requests from Dell for technical support by NetApp and all other\ncommunications between the parties with respect to technical support. Additional\nsupport terms and obligations and definitions of support levels are as specified\nin Attachment F.\n\n         11.      Warranties; Warranty Disclaimer.\n\n          a.   Hardware Products Warranty. For a period of one (1) year,\nbeginning on the date that Dell ships the OEM Product to the End User, NetApp\nwarrants that (i) the hardware portions of any OEM Product will operate in\naccordance with NetApp's published specifications and documentation for the\nproduct on the date it is shipped, (ii) all OEM Products will be made from\nentirely new parts; (iii) Dell will acquire good and marketable title to the OEM\nProducts and Licensed Hardware Materials and that all such products and\nmaterials will be free and clear of all liens, claims, encumbrances and other\nrestrictions; and (iv) NetApp has all the necessary rights and licenses to allow\nDell to distribute and resell OEM Products and Licensed Hardware Materials\nwithout restriction, additional charge or liability to any third party, provided\nthat Dell's sole remedy and NetApp's sole liability for breach of the warranties\nin clauses (iii) or (iv) \n\n10\n\n   11\n\nimmediately above shall be indemnification pursuant to Section 12 below.\nReplacement parts are warranted for ninety (90) days or for the remainder of the\nwarranty period in effect on the original product, whichever is greater.\n\n          b.   Limited Software Warranty. For a period of ninety (90) days from\nthe date that Software is shipped to the End User, NetApp warrants that (i) the\nSoftware will materially conform to NetApp's then-current documentation and\nspecifications for such Software; (ii) the media containing the Software (but\nnot the software itself) is free from physical defects; (iii) Dell will acquire\ngood and marketable title to the software and that all such software will be\nfree and clear of all liens, claims, encumbrances and other restrictions; and\n(iv) NetApp has all the necessary rights and licenses to allow Dell to\ndistribute and resell software without restriction or additional charge or\nliability to any third party; and provided, further, that in the case of breach\nDell's sole remedy and NetApp's sole liability for breach of the warranties in\nclauses (iii) or (iv) immediately above shall be indemnification pursuant to\nSection 12 below; and provided further that, except as provided in Section 5.a,\nin the case of breach of the warranty in clause (i), NetApp shall within ninety\n(90) days (unless a fewer number of days is required and practical, on a\nmutually agreeable case by case basis) of Dell's request supply Software that\nmaterially conforms to NetApp's then-current documentation and specifications\nfor such Software and in the case of breach of the warranty in clause (ii)\nNetApp shall, within ninety (90) days (unless a fewer number of days is required\nand practical, on a mutually agreeable case by case basis) of Dell's request,\nfurnish replacement media containing the Software that is free from physical\ndefects. Notwithstanding the foregoing, for a period of five (5) years after the\ndelivery to Dell of Software previously accepted by Dell, NetApp shall develop\ncorrections, patches or work-arounds (\"Bug Fixes\") to material errors in\nperformance or operation of such Software (each a \"Bug\") within the \"applicable\nBug fix period\" following (x) the discovery of the Bug by NetApp, or (y) the\nreporting of the Bug by Dell or End Users to NetApp. Initial response time shall\nbe as per Attachment F. The \"applicable Bug fix period\" shall mean one (1)\nbusiness day in the case of a Priority 1 Bug, seven (7) business days in the\ncase of a Priority 2 Bug and an appropriate number of business days as\ndetermined on a case by case basis for other Bugs (as Priority 1 and 2 Bugs are\ndefined in Attachment F). NetApp shall provide such Bug Fixes at no cost to\nDell; provided, however, that Dell shall be charged separately by NetApp (on a\nmutually agreed upon time and materials basis) for Bug Fixes for Licensed Ported\nSoftware Materials necessitated by an error in or a deficiency in scope of the\noriginal specifications for such Licensed Ported Software Materials provided by\nDell (a \"Dell Bug\"); provided, further, however, that NetApp agrees to notify\nDell and correct the Dell Bug at no additional charge as requested by Dell if\nNetApp has knowledge of (or should reasonably have knowledge of) a Dell Bug\nduring the development of the applicable Licensed Ported Software Materials, to\navoid such Dell Bug from occurring. Software upgrades and enhancement\/update\nsubscriptions must be purchased separately after the 90 day warranty period.\n\n         c.  Year 2000 Compliance.\n\n               (1)  NetApp warrants that the current latest version of the\nSoftware (starting December 1, 1998) is Year 2000 Compliant. For purposes of\nthis Agreement, \"Year 2000 Compliant\" shall mean that the Software will (i)\naccurately address, present, produce, store\n\n\n11\n\n   12\n\n\nand calculate data involving dates beginning with January 1, 2000 and will not\nproduce abnormally ending or incorrect results involving such dates as used in\nany forward or regression date based function; and (ii) provide that all \"date\"\nrelated functionalities and data fields include the indication of century and\nmillennium, and will perform calculations which involve a four-digit year field.\nNotwithstanding the foregoing, Dell acknowledges and agrees that (i) the\nSoftware does not identify or remedy Year 2000 problems in third party operating\nsystems or other applications not supplied by NetApp and (ii) the Software\noperates with the date information it receives; thus, if incorrect date\ninformation is provided by the user, the operating system or from any other\nexternal product or other source, this information will be used by the Software\nas received. The foregoing Year 2000 Compliant warranty of NetApp shall not\napply to Year 2000 problems caused by such external sources. Dell's sole remedy\nand NetApp's entire liability for breach of the foregoing warranty shall be\nrepair or replacement of the Software such that it meets the foregoing warranty\nwithin ninety (90) days (unless a fewer number of days is required and\npractical, on a mutually agreeable case by case basis) of Dell's request;\nprovided that notwithstanding any other provision hereof as to any applicable\nSoftware product the foregoing warranty shall last until and expire upon the\nfifth anniversary of the date of receipt of such Software product.\n\n                    (2)  NetApp shall reasonably cooperate and provide Dell with\ninformation regarding NetApp's plans and efforts to make its internal systems\nable to handle the transition to the year 2000 and NetApp shall not unreasonably\nrefuse to participate in Dell's Year 2000 business partner program. Dell will\nprovide a copy of the Year 2000 business partner program to NetApp prior to\nexecution of this Agreement.\n\n               d.   Warranty Returns. Dell will handle and be responsible for\nall warranty returns from its direct and indirect End Users. OEM Products\nobtained from NetApp which do not comply with the warranty and may (whether or\nnot previously shipped to an End User) be returned (by Dell only--not any End\nUser directly) to NetApp during the applicable warranty period for credit to\nDell (when received by NetApp), provided that NetApp shall bear all costs\nassociated with freight and insurance to NetApp's designated location.\nConditions governing epidemic hardware failure are as specified in Attachment E.\nNetApp will provide each Dell manufacturing location and Dell's designated\nservice provider with pre-approved return material authorization (\"RMA\") numbers\nin rolling blocks of one hundred (100) to be used in returning non-conforming\nproducts to NetApp. Dell or Dell's designated service provider will notify\nNetApp when they have twenty-five (25) pre-approved RMA numbers remaining and\nNetApp shall promptly provide another block of one hundred (100) pre-approved\nRMA numbers. NetApp agrees to segregate and separately report line and field\nreturns by Dell manufacturing location. NetApp agrees to provide failure\nanalysis to the component level as defined in Attachment F.\n\n               e.   Out of Warranty Returns. Dell will also handle and be\nresponsible for all out of warranty returns from its direct and indirect End\nUsers. OEM Products obtained from NetApp as to which the warranty has expired\nmay be returned (by Dell only--not any End User directly) to NetApp for repair\nor replacement as requested by Dell, at Dell's sole cost and expense (including\nall costs associated with freight and insurance to NetApp's designated\nlocation), on a \n\n12\n\n   13\n\n\nmutually agreed reasonable time and materials basis. NetApp agrees to provide\ncurrent, out-of-warranty repair cost information and will notify Dell of any\nmodifications thereto.\n\n               f.   Limited Rights to Return Product. Except as provided in this\nAgreement, Dell shall have no right to return any OEM Product or Licensed\nProduct.\n\n               g.   Software Maintenance and Upgrade Options. For a period of\nninety (90) days from the date that Dell ships a Software product to an End\nUser, NetApp will provide to Dell without charge for delivery to such End User\nupgrades and support services in accordance with NetApp's standard support terms\nand conditions.\n\n               h.   Exclusive Warranties. THE FOREGOING WARRANTIES AND REMEDIES\nARE EXCLUSIVE AND ARE IN LIEU OF ALL OTHER WARRANTIES, EXPRESS OR IMPLIED,\nEITHER IN FACT OR BY OPERATION OF LAW, STATUTORY OR OTHERWISE INCLUDING\nWARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND\nNON-INFRINGEMENT OF THIRD PARTY RIGHTS TO THE FULLEST EXTENT PERMITTED BY LAW.\nNETAPP NEITHER ASSUMES NOR AUTHORIZES ANY OTHER PERSON TO ASSUME FOR IT ANY\nOTHER LIABILITY IN CONNECTION WITH THE SALE, INSTALLATION, MAINTENANCE OR USE OR\nTHE RESULTS OF THE USE OF THE OEM PRODUCTS AND\/OR LICENSED PRODUCTS,\nDOCUMENTATION NOR ANY OTHER ITEMS OR MATERIALS PROVIDED HEREUNDER IN TERMS OF\nCORRECTNESS, COMPLETENESS, ACCURACY, RELIABILITY, OR OTHERWISE, AND NETAPP MAKES\nNO WARRANTY WHATSOEVER OF ANY NONSTANDARD PRODUCTS SUPPLIED BY IT HEREUNDER.\n(Neither OEM Products hardware nor Software shall be deemed \"nonstandard\nproducts\" for the purposes of this paragraph.)\n\nNETAPP SHALL NOT BE LIABLE UNDER THIS WARRANTY IF THE ALLEGED DEFECT IN THE\nPRODUCT DOES NOT EXIST OR WAS CAUSED BY DELL'S OR ANY THIRD PERSON'S (FOR WHOM\nNETAPP IS NOT RESPONSIBLE AS PROVIDED HEREIN) MISUSE, NEGLECT, IMPROPER\nINSTALLATION OR TESTING, UNAUTHORIZED ATTEMPTS TO REPAIR, OR ANY OTHER CAUSE\nBEYOND THE RANGE OF THE INTENDED USE, OR BY ACCIDENT, FIRE, LIGHTNING OR OTHER\nHAZARD.\n\nThe OEM Products and Licensed Products are not designed or intended for use in\non-line control of aircraft, air traffic, aircraft navigation or aircraft\ncommunications, or in the design, construction, operation or maintenance of any\nnuclear facility, or in the operation or maintenance of any direct life support\nsystem. NetApp disclaims any express or implied warranty of fitness for such\nuses. Dell agrees that it will not use, market or expressly authorize licensees\nto use the hardware or software for such purposes.\n\n         12.      Patent, Copyright and Proprietary Rights Indemnity\n\n               a.   NetApp shall, at its expense, defend and indemnify Dell and\nold Dell officers, directors, agents and employees harmless for damages and\nreasonable expenses\n\n13\n\n   14\n\n(including attorneys' fees) related to any suits or claims by a third party\nbrought against Dell alleging that the OEM Products or Licensed Materials sold\nor licensed pursuant to this Agreement or included into any Licensed Products\ninfringe any patent, copyright, trademark, trade secret or similar right\nprovided that NetApp is promptly notified, rendered reasonable assistance by\nDell as required, and permitted to direct the defense or settlement\nnegotiations. The foregoing obligation of NetApp does not apply with respect to\nany OEM Product or Licensed Materials or portions or components thereof which is\nor was: (i) made in whole or in part in accordance with Dell's specifications or\ninstructions and such Dell specifications are the source of the alleged\ninfringement, (ii) that are modified outside of the specifications or by any\nunauthorized party (including Dell and any End User) (in either case other than\nwith NetApp's prior written consent), if the alleged infringement relates to\nsuch modification, (iii) combined with other products, processes or materials\nwhere the alleged infringement relates to such combination, provided that the\nalleged infringement claim could not be made but for such combination, (iv)\nwhere Dell continues allegedly infringing activity after being notified in\nwriting by NetApp thereof or after receiving a modification delivered at\nNetApp's expense that would have avoided the alleged infringement, or (v) where\nDell's use of the OEM Product or Licensed Materials is not in accordance with\nthis Agreement as well as any applicable Documentation. Dell will indemnify and\nhold NetApp and its officers, directors, agents and employees harmless from all\ndamages, settlements, attorneys' fees and expenses related to a claim of\ninfringement or misappropriation which is determined by a ruling of any court of\ncompetent jurisdiction or by a mutually-agreed arbitrator, or by mutual\nagreement of Dell and NetApp, to have been principally caused by Dell's conduct.\nNetApp shall have no liability for any infringing combinations arising from the\nintegration of NetApp's OEM Products or Licensed Materials together with other\nproducts provided by Dell or any third party, provided that the alleged\ninfringement claim could not be made but for such combination.\n\n               b.   Should the use of OEM Products or Licensed Materials by Dell\nbe enjoined, or in the event NetApp wishes to minimize its potential liability\nhereunder, NetApp may, at its option, either: (i) substitute a fully\nfunctionally equivalent non-infringing unit of the OEM Product or Licensed\nMaterials; (ii) modify the infringing item so that it no longer infringes but\nremains fully functionally equivalent; (iii) obtain for Dell, at NetApp's\nexpense, the right to continue use of such item; or (iv) if none of the\nforegoing is feasible, NetApp may take back such infringing item or items and\nrefund to Dell the purchase price paid therefor, less amortized depreciation on\na five (5) year straight line basis. The foregoing in this Section 12 shall be\nNetApp's sole liability and Dell's sole remedy for infringement or\nmisappropriation of third party intellectual property or proprietary rights.\n\n         13.      Limitation of Liability.\n\n               IN   NO EVENT, WHETHER BASED IN CONTRACT OR TORT (INCLUDING\nNEGLIGENCE) SHALL EITHER PARTY BE LIABLE FOR INCIDENTAL, CONSEQUENTIAL,\nINDIRECT, SPECIAL OR PUNITIVE DAMAGES OF ANY KIND, OR FOR LOSS OF REVENUE, LOSS\nOF BUSINESS, LOST PROFITS (EXCEPT, IN THE CASE OF VIOLATION OF SECTIONS 2.d OR\n15, TO THE EXTENT LOST PROFITS CONSTITUTE THE MEASURE OF DAMAGES UNDER FEDERAL\nPATENT OR COPYRIGHT LAWS OR APPLICABLE TRADE SECRET STATUTES) OR LOST OR\nINACCURATE DATA, OR COST \n\n14\n\n   15\n\n\nOF COVER, PROCUREMENT OF SUBSTITUTE PRODUCTS, TECHNOLOGY OR SERVICES OR OTHER\nFINANCIAL LOSS ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT OR THE SALE,\nINSTALLATION, MAINTENANCE, USE, PERFORMANCE, FAILURE OR INTERRUPTION OF ITS\nPRODUCTS. THIS DISCLAIMER OF LIABILITY FOR DAMAGES WILL NOT BE AFFECTED IF ANY\nREMEDY PROVIDED HEREUNDER SHALL FAIL OF ITS ESSENTIAL PURPOSE.\n\n         14.      Technology Information Escrow.\n\n               During the term of this Agreement, NetApp shall within 30 days of\nthe Effective Date of this Agreement and thereafter within 30 days of any\nmaterial change in source code deliver all applicable source code and source\ndocumentation for the Software and hardware designs, specifications and other\ninformation relative to the manufacture of the OEM Products and Licensed\nProducts and related Documentation and, to the extent it does not violate\nNetApp's existing agreements with its suppliers, a costed Bill of Materials for\nthe OEM Products and the Licensed Products (if any) (\"Source Materials\") and any\nupdates thereof to an independent third party to be held in escrow at Dell's\nexpense. Dell shall be entitled to the release of the Source Materials only if\nNetApp (i) dissolves, ceases to do business, makes an assignment for the benefit\nof creditors, seeks protection under any bankruptcy, receivership or comparable\nproceeding, or if any such proceeding is instituted against NetApp (and not\ndismissed within ninety (90) days), (ii) is in material default of its support\nobligations hereunder or its obligations to supply the OEM Products or Licensed\nProducts to Dell, or (iii) [*]. Subject to the terms and conditions of this\nAgreement (including without limitation License Fees and payment obligations),\nDell shall have and NetApp hereby grants to Dell, a limited nonexclusive,\nnontransferable, nonsublicensable license to the Source Materials only to allow\nDell to maintain, correct errors, support its End Users and continue exercising\nthe licenses under Sections 2 and 5 above solely for the purpose of maintaining\nand continuing its then current product line and for all future products which\nare natural extensions, additional models, enhancements, upgrades, and\/or\nreplacements to Filer and NetCache products (but not to otherwise modify or\ncreate derivative works of the Software); provided that Dell shall exercise this\nlicense to the Source Materials and shall be entitled to release thereof only in\nthe event of a Release Condition. The term of the limited license shall be for\nthirty (30) months following the first release of Source Materials. Such escrow\nwill be subject to the terms and conditions of the Technology Escrow Agreement\nexecuted by the parties and attached hereto as Attachment G. [*]\n\n        15.  Confidentiality. \n\n                    a.   Each party (the \"Receiving Party\")\nagrees that to the extent the other party (the \"Disclosing Party\") previously\ndisclosed or currently or subsequently discloses to the \n\n\n*Confidential treatment requested \n for redacted portion.\n\n\n\n15\n\n   16\n\nReceiving Party, or the Receiving Party learns from the Disclosing Party,\ninformation relating to the Disclosing Party's products, the properties,\ncomposition or structure thereof or the manufacture or processing thereof or\nmachines therefor or as to sensitive aspects of the Disclosing Party's business\n(including, without limitation, computer programs, algorithms, names and\nexpertise of employees and consultants, know-how, formulae, processes, ideas,\ninventions (whether patentable or not), schematics and other technical,\nbusiness, financial, customer and product development plans, forecasts,\nstrategies and information), such information shall be deemed the confidential\nproperty of the Disclosing Party (\"Proprietary Information\"). The Receiving\nParty recognizes and acknowledges that the Disclosing Party's Proprietary\nInformation (and the confidential nature thereof) is critical to the Disclosing\nParty's business and that the Disclosing Party would not enter into this\nAgreement without assurance that its Proprietary Information and the value\nthereof will be protected as provided in this Section 15 and elsewhere in this\nAgreement.\n\n\n               b.   The Receiving Party agrees (i) to hold the Disclosing\nParty's Proprietary Information in confidence as a fiduciary and to take all\nreasonable precautions to protect such Proprietary Information (including,\nwithout limitation, similar precautions to those which the Receiving Party\nemploys with respect to its confidential materials of similar nature or value),\n(ii) not to divulge any Proprietary Information or any derivative thereof to any\nthird person except under nondisclosure agreement on a need to know basis, and\n(iii) not to use such Proprietary Information at any time during or following\nthe term of this Agreement, except as contemplated by this Agreement. Any\nemployee or agent given access to Proprietary Information must have a legitimate\n\"need to know\" and shall agree to similar binding obligations with respect\nthereto and execute a written agreement to that effect. Without granting any\nright or license, the Disclosing Party agrees that the foregoing clauses (i),\n(ii) and (iii) shall not apply (A) with respect to material is in the public\ndomain (through no improper action or inaction by the Receiving Party or any of\nits agents or employees); (B) with respect to material that can be shown to have\nbeen independently developed by the Receiving Party without use of any\nProprietary Information by persons who have not had access to such Proprietary\nInformation; (C) with respect to material received from a third party without\nbreach of any nondisclosure obligation; and (D) material as to which the\nDisclosing Party authorizes to be disclosed to others without confidentiality\nrestrictions. The Receiving Party may disclose material required to be disclosed\nby law or court order (provided that the Disclosing Party is given an\nopportunity to restrict the scope of required disclosure). The Receiving Party\nmust promptly notify the Disclosing Party of any information it believes comes\nwithin the circumstance set forth in the immediately preceding sentence and will\nbear the burden of proving the existence of any such circumstance by clear and\nconvincing evidence. The Receiving Party's obligations under this Section shall\nterminate five (5) years after the effective date of any termination or\nexpiration of this Agreement. Immediately upon termination of this Agreement or\nupon the Disclosing Party's request, the Receiving Party will turn over to the\nDisclosing Party all Proprietary Information as well as all documents or media\ncontaining any Proprietary Information as well as all copies, extracts or\nderivatives thereof.\n\n               c.   The Receiving Party acknowledges and agrees that due to\nthe unique nature of the Proprietary Information, there can be no adequate\nremedy at law for any material breach of its obligations under Sections 2.d or\n15 hereof and that any such breach may result in irreparable \n\n\n16\n\n   17\n\n\nharm to the Disclosing Party. Therefore, upon any such breach, the Disclosing\nParty shall be entitled to appropriate equitable relief in addition to its other\nremedies and to be indemnified and held harmless by the Receiving Party from any\ndamage, expense, loss or harm, including, without limitation, lost profits and\nattorneys' fees, in connection with any breach or enforcement of the Receiving\nParty's obligations hereunder or the unauthorized use or release of any such\nProprietary Information for which the Receiving Party is directly or indirectly\nresponsible. The Receiving Party will notify the Disclosing Party in writing\nimmediately upon the occurrence of any such unauthorized release or other\nbreach. Any breach of this Section will constitute a material breach of this\nAgreement and give rise to the Disclosing Party's immediate right to terminate\nthis Agreement.\n\n         16. Relationship of the Parties.\n\n          The  parties hereto expressly understand and agree that the parties\nare independent contractors in the performance of each and every part of this\nAgreement, are each solely responsible for its respective employees and agents\nas well as related labor costs and expenses.\n\n         17.      Assignment.\n\n          Neither party may assign or transfer, in whole or in part, this\nAgreement nor any of its rights and obligations hereunder (including any\nassignment by merger or operation of law) without the prior written consent of\nthe other party; which consent shall not be unreasonably withheld (provided,\nhowever, that no consent shall be required if NetApp is assigning to a party not\nlisted on the Exclusivity List in Attachment D; except such written consent is\nrequired if NetApp is assigning to any party as specifically identified in\nAttachment D, Section d).\n\n         18.      Term and Termination.\n\n          a.   Unless terminated earlier as provided herein, this Agreement\nshall remain in full force and effect from the Effective Date for an initial\nterm of five (5) years and shall be automatically renewed for additional one (1)\nyear terms unless terminated by either party on sixty (60) days' prior written\nnotice prior to the end of the initial term or any renewal term. Each party\nunderstands that at the end of the term of this Agreement or upon earlier\ntermination hereof, neither it nor any of its agents shall have any right\nwhatsoever in connection with the subject matter of this Agreement, regardless\nof any undocumented continuation of the relationship with the other party, nor\nbe entitled to any compensation in connection with such termination. To the\nextent legally permissible, any such rights or possible claims are hereby\nexpressly waived.\n\n          b.   This Agreement may be terminated by a party for cause immediately\nby proper written notice to the other party, upon the occurrence of any of the\nfollowing events:\n\n               i.   The other ceases to do business;\n\n               ii.  The other shall fail to secure or renew in a timely manner\nany license, permit or authorization is required in order to conduct its\nbusiness \n\n\n\n17\n\n   18\n\nactivities as contemplated by this Agreement, or if such license,\npermit or authorization is revoked or suspended and not reinstated within sixty\n(60) days;\n\n               iii. The other breaches any material obligation under this\nAgreement and fails to cure such breach within thirty (30) days from receipt of\nproper written notice describing such breach (provided that no cure period will\nbe permitted where cure is not possible);\n\n               iv.  The other becomes insolvent or seeks protection under any\nbankruptcy, receivership, trust deed, creditors arrangement, composition or\ncomparable proceeding, or if any such proceeding is instituted against the other\n(and not dismissed within ninety (90) days).\n\n          c.   Each party understands that these termination rights hereunder\nare absolute, nonexclusive and independent of any other remedies which may be\navailable at law or in equity. Neither party shall incur any liability for\ndamage, loss or expenses incurred by the other incident to a party's termination\nof the Agreement in accordance with its terms. In addition to provisions which\nsurvive according to their terms, the following provisions shall survive\nexpiration or termination of this Agreement: Sections 2.b, 2.c, 2.d, 6.e, 6.f,\n6.g, 6.h, 7, 8.c (last sentence), 9.e, 11, 12, 13, and 15 through and including\n19; and Section 14 (except in the case of termination by NetApp, and except\nthat, post termination, no additional Source Materials need be deposited). In\naddition, post termination, End User Licenses shall remain in effect in\naccordance with their terms.\n\n          d.   Upon termination of this Agreement for any reason, to the extent\nNetApp deems it reasonably necessary or desirable, Dell hereby agrees at\nNetApp's expense to assign any and all such right, title and interest in or to\nany OEM Product or Licensed Product as well as any enhancements or improvements\nthereto, NetApp Marks or any other proprietary material of NetApp. Dell further\nagrees at such time and at NetApp's expense to undertake all action, which in\nNetApp's sole judgment is reasonably necessary, to protect, enforce and document\nNetApp's proprietary rights in connection with any subject matter of this\nAgreement, including, without limitation, to execute any proper instrument or\nundertake any reasonable legal action in such regard.\n\n          e.   Within thirty (30) days following the effective date of any\nexpiration or termination this Agreement due to Dell's breach, Dell shall submit\nto NetApp an accurate and complete list (\"Inventory\") of all OEM Products and\/or\nLicensed Products in Dell's inventory or otherwise directly or indirectly under\nDell's control.\n\n         19.      General Provisions.\n\n          a.   Except as otherwise expressly provided, this Agreement may be\namended and observance of any provision of this Agreement may be waived (either\ngenerally or in any instance, retroactively or prospectively) only upon written\nconsent of the parties. Waivers and amendments shall be effective only if (i)\nmade by non-pre-printed documents, (ii) clearly \n\n\n\n18\n\n   19\n\n\n\nunderstood by both parties to be an amendment or waiver, and (iii) express\nreference to this Agreement is included therein.\n\n          b.   The parties intend that this Agreement be controlling over and\nsupersede additional or different terms of any order, confirmation, invoice or\nsimilar document, unless expressly agreed upon in writing by both parties.\n\n          c.   This Agreement shall be governed by and construed under the laws\nof California and the United States without regard to conflicts of laws\nprovisions thereof and without regard to the United Nations Convention on\nContracts for the International Sale of Goods. For any suits initiated by Dell,\nthe sole jurisdiction and venue for actions arising hereunder shall be the\nCalifornia state and U.S. federal courts having within their jurisdiction the\nlocation of NetApp's principal place of business. Both parties consent to the\njurisdiction of such courts and agree that process may be served upon them in\nthe manner provided herein for giving of notices or otherwise as allowed by\nCalifornia, Texas or federal law. In any action or proceeding to enforce rights\nunder this Agreement, the prevailing party shall be entitled to recover costs\nand attorneys' fees. For any suits initiated by NetApp, the sole jurisdiction\nand venue for actions arising hereunder shall be the Texas state and U.S.\nfederal courts having within their jurisdiction the location of Dell's principal\nplace of business.\n\n          d.   If Dell or its End Users or other customer is an agency or\ninstrumentality of the United States Government: Software is provided with\nRestricted Rights under FARS and DFARS; the Software has been developed at\nprivate expense; no portion of the Software has been developed with U.S.\nGovernment funds; the Software is a trade secret and proprietary information of\nNetApp; and the ownership of the Software and any reproductions shall remain\nwith NetApp. Use, duplication or disclosure by the U.S. Government is subject to\nrestrictions as set forth in subparagraph (c)(1)(ii) of the Rights in Technical\nData and Computer Software clause at DFARS 252.227-7013 or subparagraphs (c)(1)\nand (2) of the Commercial Computer Software-Restricted Rights at 48 CFR\n52.227-19, as applicable.\n\n          e.   Each party shall in all material respects comply with all\napplicable laws and regulations which apply to any aspect of its execution,\nperformance, non-performance and\/or enforcement of this Agreement (and related\nagreements), the OEM Products and Licensed Products, including, without\nlimitation, those applicable to product claims, labeling, approvals,\nregistrations and notifications pertaining to the OEM Products or Licensed\nProducts.\n\n          f.   Dell (and, where applicable in connection with its obligations\nunder this Agreement, NetApp) shall comply with the U.S. Foreign Corrupt\nPractices Act (regarding among other things, payments to government officials)\nas well as all export laws, restrictions, national security controls and\nregulations of the United States or other applicable foreign agency or\nauthority, and not to export or re-export, or allow the export or re-export of\nany OEM Product, Licensed Product, proprietary material, technology or device or\nany copy, portion or derivative thereof in violation of any such restrictions,\nlaws or regulations, or to any Group D:1 or E:2 country (or any national of such\ncountry) specified in the then current Supplement No. 1 to Part 740, or, in\nviolation of the embargo provisions in Part 746, of the U.S. Export\nAdministration \n\n\n19\n\n   20\n\n\n\nRegulations (or any successor regulations or supplement thereto),\nexcept in compliance with and with all licenses and approvals required under\napplicable export laws and regulations, including without limitation, those of\nthe U.S. Department of Commerce.\n\n          g.   Headings and captions are for convenience only and are not to be\nused in the interpretation of this Agreement.\n\n          h.   Notices under this Agreement shall be sufficient only if\npersonally delivered, delivered by a major commercial rapid delivery courier\nservice with tracking capabilities or mailed by certified or registered mail,\nreturn receipt requested to a party at its addresses first set forth herein or\nas amended by notice pursuant to this subsection. If not received sooner, notice\nby mail shall be deemed received five (5) days after deposit in the U.S. mails.\n\n          i.   This Agreement (including all Attachments and Exhibits thereto)\nsupersedes all proposals, oral or written, all negotiations, memoranda of\nunderstanding, letters of intent, conversations, or discussions between or among\nparties relating to the subject matter of this Agreement and all past dealing or\nindustry custom. Each Attachment and Exhibit is incorporated herein as if set\nforth in full in this agreement.\n\n          j.   If any provision of this Agreement is held by a court of\ncompetent jurisdiction to be illegal, invalid or unenforceable, that provision\nshall be limited or eliminated to the minimum extent necessary so that this\nAgreement shall otherwise remain in full force and effect and enforceable.\n\n          k.   Force Majeure. Neither party will be liable for any delay in\nperforming or for failing to perform obligations resulting from acts of God;\ninclement weather; fire; explosions; floods; or riots or civil disturbances.\n\n20\n\n   21\n\n\n\n\n\n\n\n\n          IN   WITNESS WHEREOF, the parties have entered into this Agreement as\nof the date first above written.\n\n                           Network Appliance, Inc.\n\n\n                           By:     \/s\/  Daniel J. Warmenhoven\n                                   ---------------------------\n                           Name:   Daniel J. Warmenhoven\n                                   ---------------------------\n                           Title:  President &amp; CEO\n                                   ---------------------------\n\n\n                           Dell Products, L.P.\n\n\n                           By:       \/s\/   Michael Lambert\n                                     ---------------------------\n                           Name:     Michael Lambert\n                                     ---------------------------\n                           Title:    Sr. V.P., Enterprise Systems Group\n                                     -----------------------------------\n\n\n<\/pre>\n","protected":false},"template":"","meta":{"_acf_changed":false,"_stopmodifiedupdate":true,"_modified_date":"","_cloudinary_featured_overwrite":false},"corporate_contracts_companies":[7289,8330],"corporate_contracts_industries":[9508],"corporate_contracts_types":[9613,9619],"class_list":["post-42614","corporate_contracts","type-corporate_contracts","status-publish","hentry","corporate_contracts_companies-dell-computer-corp","corporate_contracts_companies-network-appliance-inc","corporate_contracts_industries-technology__hardware","corporate_contracts_types-operations","corporate_contracts_types-operations__sales"],"acf":[],"_links":{"self":[{"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts\/42614","targetHints":{"allow":["GET"]}}],"collection":[{"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts"}],"about":[{"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/types\/corporate_contracts"}],"wp:attachment":[{"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/media?parent=42614"}],"wp:term":[{"taxonomy":"corporate_contracts_companies","embeddable":true,"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts_companies?post=42614"},{"taxonomy":"corporate_contracts_industries","embeddable":true,"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts_industries?post=42614"},{"taxonomy":"corporate_contracts_types","embeddable":true,"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts_types?post=42614"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}