These Evaluation Terms and Conditions apply to the loan of the Loaned Equipment by NetApp Inc., NetApp B.V. or any of their affiliates (“NetApp”) to a customer who wishes to evaluate the Loaned Equipment with a view to purchasing products and services from NetApp (“Customer”). NetApp and Customer may each be referred to as a “Party” or collectively, as the “Parties.” These Evaluation Terms and Conditions and Loan Details together form the “Agreement”.
1. Scope.1.1A Where Customer is designated as “End Customer” in the Loan Details then, subject to the terms and conditions set forth in the Agreement, Customer is entitled to use the hardware and software (“Loaned Equipment”) during the Loan Period solely at the Place of Use (as set out in the Loan Details) and for the Purpose only.
1.1B Where Customer is designated as “Partner” in the Loan Details, then subject to the terms and conditions set forth in the Agreement, Customer is entitled to permit the use of the hardware and software (“Loaned Equipment”) to a prospective customer of the Customer (such “customer” being the “End User”) during the Loan Period in accordance with the Purpose and provided always that the Customer ensures the End Users’ use of Loaned Equipment is and remains compliant with the terms and conditions in the Agreement. The Customer shall remain liable to NetApp for the End Users’ acts and omissions. Customer shall notify NetApp in writing of the identity of the End User.
1.2 The Parties agree that the Loaned Equipment will not be used by the Customer for its production data or in its production environment without obtaining the prior written consent of NetApp.
1.3 Customer acknowledges and accepts that any enabling licensing key supplied with the Loaned Equipment may expire or time-out upon expiry or termination of the Agreement.
2. Definitions.2.1. “Confidential Information” means: All information, whether written, oral or in any other tangible or intangible medium disclosed by or on behalf of the Disclosing Party to the Receiving Party for purposes arising out of or in connection with the Agreement, that (i) in the case of information in tangible form, is marked “confidential” or “proprietary” or words with similar import at the time of disclosure; (ii) in the case of any information disclosed orally, visually or any other intangible form is designated "confidential" or “proprietary” at the time of disclosure, and if disclosed orally, is summarized in reasonable detail in a writing delivered to the Receiving Party within thirty (30) days of disclosure; or (iii) by its nature or the circumstances surrounding disclosure, should reasonably be considered confidential or proprietary; and will include any reproduction of such information in any form or medium, or any part of such information. Confidential Information will not include any information that: (a) is already known to the Receiving Party without restrictions at the time of disclosure; (b) is or becomes known to the general public through no act or omission of the Receiving Party in breach of the Agreement; (c) is disclosed to the Receiving Party by a third party who is not, to the knowledge of the Receiving Party, in breach of an obligation of confidentiality; or (d) is independently developed by employees and/or contractors of the Receiving Party who did not have access to and without use of the Confidential Information.
2.2 “Delivery” means the place and time at which Loaned Equipment is deemed delivered to Customer under the applicable shipping term specified in the Loan Details.
2.3 “Loan Details” means the information sent by NetApp to Customer by email titled “Evaluation Confirmation Email” (together with the electronic link for these Evaluation Terms and Conditions) including without limitation an equipment list, test plan, the commencement and end of the Loan Period and shipping details, as applicable.
2.4 “Loan Period” means the period commencing on the date of delivery of the Loaned Equipment to the Customer and ending on the end date specified in the Loan Details.
2.5 “Purpose” means the tests, evaluation criteria and milestones set out in the Loan Details.
2.6 “Shipping Address” means the shipping address detailed in the Loan Details.
3. Term and Termination.3.1 The Agreement will become effective from the earlier of: (i) Customer’s electronic acceptance of this Agreement or (ii) Customer’s accepting delivery, keeping or using the Loaned Equipment (“Effective Date”) and, unless terminated earlier pursuant to Section 3.3 below, shall continue until the earlier of: (a) the date Customer returns Loaned Equipment to NetApp; (b) the Transaction pursuant to Section 7.2 below becoming effective.
3.2 Upon Customer’s request, NetApp may, at its sole discretion, agree to extend the Loan Period. Requests for extension must be made by Customer to NetApp for approval at least seven (7) days’ prior to the end of the Loan Period. An extension of the Loan Period pursuant to the foregoing may be made in the following ways: (i). NetApp providing Customer with a written notice (by email from EvalConfirmation@netapp.com and containing substantially the following: “Effective as of date of this Notice, the Loan Period as referred to in the Loan Details of the Agreement (with agreement number [ ]), shall be extended and the Loan Period end date shall be [ ].” ; or (ii) An amendment to the Agreement signed by the authorised signatory of each Party.
3.3 A Party may terminate the Agreement: (a) for convenience with fifteen (15) days’ written notice; or (b) if the other Party commits a material breach of this Agreement and, where such breach is capable of remedy, fails to remedy it within fifteen (15) days of receipt of a written notice requesting such breach to be remedied. Upon termination, and without prejudice to any other rights or remedies available to NetApp, Customer shall immediately terminate use of Loaned Equipment and comply with Section 7.1.
3.4 Upon termination or expiration of the Agreement, any rights and obligations hereunder which by their nature are intended to survive will remain in effect.
4. Title and Risk of Loss or Damage.4A Where Customer is designated as “End Customer” in the Loan Details, Customer is responsible for Loaned Equipment from the time of Delivery until such time Customer returns Loaned Equipment to NetApp or NetApp’s agent at the Shipping Address (“Risk Period”). Customer will reimburse NetApp for any loss or damage to Loaned Equipment sustained during the Risk Period, except for reasonable wear and tear. Loaned Equipment shall remain the property of NetApp and Customer shall keep Loaned Equipment free and clear of all liens and encumbrances.
4B Where Customer is designated as “Partner” in the Loan Details, Customer is responsible for Loaned Equipment from the time of Delivery until such time Customer returns Loaned Equipment to NetApp or NetApp’s agent at the Shipping Address (“Risk Period”). For the avoidance of doubt, Customer shall remain responsible to NetApp for Loaned Equipment which is in the possession of an End User. Customer will reimburse NetApp for any loss or damage to Loaned Equipment sustained during the Risk Period, except for reasonable wear and tear. Loaned Equipment shall remain the property of NetApp and Customer shall, and shall procure that End User shall, keep Loaned Equipment free and clear of all liens and encumbrances.
5. License.5.1 NetApp grants to Customer a personal, non-exclusive, limited and terminable license, (without the right to sublicense) to install and to use the loaned software ("Loaned Software") internally in machine-readable form on Loaned Equipment (or, if applicable, the identified evaluation system) for the duration of the Loan Period, solely for the Purpose. Title to all copies of Loaned Software remains with NetApp and/or its licensors. No license is granted for use of Loaned Software on equipment other than Loaned Equipment (or, if applicable, the identified evaluation system). Customer is prohibited from reproducing Loaned Software or from publishing any test-results. Customer will not modify, disassemble, decompile, decrypt, extract, or otherwise reverse-engineer Loaned Software, except to the extent any of the foregoing limitations are unenforceable under applicable law.
5.2 Loaned Software is confidential and proprietary information of NetApp and/or its licensors. Without limiting the generality of Section 9 below, Customer agrees to take adequate steps to protect Loaned Software from unauthorised disclosure or use.
6. Compliance with Export Control Legislation.Customer acknowledges that Loaned Equipment and any services supplied by NetApp pursuant to the Agreement are subject to export controls under the laws and regulations of the United States, and other countries as applicable, and that Loaned Equipment and Services may include export controlled technologies, including without limitation encryption technology. Export of Loaned Equipment by Customer is strictly prohibited. Without limiting the generality of the foregoing provision in this Section 6, neither NetApp nor Customer shall export, directly or indirectly, any information acquired under the Agreement or any products utilising any such information to any country for which the United States Government or any agency thereof at the time of export requires an export license or other governmental approval, without first obtaining such license or approval. Customer represents and warrants that it: (i) is not a party identified on any government export exclusion list, including but not limited to the U.S. Denied Persons, Entity, and Specially Designated Nationals Lists; and (ii) will not use Loaned Equipment and any services supplied by NetApp pursuant to the Agreement for any purposes prohibited by United States law, including but without limitation, the development, design, manufacture or production of nuclear, missile, chemical biological weaponry or other weapons of mass destruction.
7. Return of the Loaned Equipment.7.1 Customer shall return Loaned Equipment to NetApp or NetApp’s agent at the Shipping Address on the earlier of the expiry of the Loan Period or the termination of the Agreement.
7.2 If Customer does not comply with Section 7.1 and Loaned Equipment is not returned to NetApp within thirty (30) calendar days of the expiry of the Loan Period, NetApp, at its option, may charge Customer, and the Customer agrees to pay NetApp the then current list price of Loaned Equipment (including, if applicable, any licensing fees for NetApp’s software). Unless otherwise agreed in writing by the Parties, such transaction (the “Transaction”) shall be deemed governed by the relevant terms and conditions available at http://www.netapp.com/us/how-to-buy/stc.aspx.
7.3 Customer shall be responsible for erasing (without destroying or damaging the disks contained in the Loaned Equipment) all data from Loaned Equipment before it is returned to NetApp. Customer acknowledges that any data remaining on any Loaned Equipment returned to NetApp may be disposed of or destroyed by or on behalf of NetApp without any liability on NetApp.
8. Disclaimer of Warranties & Limitation of Liability.8.1 Loaned Equipment and Loaned Software are provided on an “as is” basis. All express or implied terms, conditions, representations, and warranties, including without limitation any implied warranty of merchantability, satisfactory quality, fitness for a particular purpose, or non-infringement, are disclaimed and excluded to the fullest extent permissible by law.
8.2 Since the purpose of the Agreement is solely to allow Customer to evaluate Loaned Equipment, the Customer agrees that, to the fullest extent permissible by law, in no event will NetApp be liable under the Agreement for any direct, special, indirect, incidental, or consequential damages including but not limited to data loss or downtime costs related to the Agreement or the use of Loaned Equipment and/or Loaned Software, even if NetApp has been advised of or otherwise has reason to know of the possibility of such damages. Further, liability for such damage will be excluded, even if the exclusive remedies provided for in the Agreement fail of their essential purpose. For clarity, the foregoing limitations and exclusions in this Section 8.2 shall not apply to NetApp’s non-compliance with Section 9 below.
9. Confidentiality.Each Party and/or its affiliates (collectively, the “Disclosing Party”) may, pursuant to the Agreement, disclose Confidential Information to the other Party and/or its affiliates (collectively, the “Receiving Party”). Confidential Information will remain the property of the Disclosing Party. The Receiving Party will not provide access to the Confidential Information to anyone other than those of its employees, contractors, and legal advisors who have a need to know, who have confidentiality obligations no less restrictive than those set forth herein, and who have been informed of the confidential nature of such information. Each Party will have the right to use the other's Confidential Information solely for the purpose of fulfilling its obligations under the Agreement. Neither Party will copy, duplicate, reverse engineer, reverse compile or attempt to derive the composition or underlying information of any Confidential Information. The Receiving Party will protect the Confidential Information from unauthorized use, access, or disclosure in the same manner as it protects its own proprietary information of a similar nature, and in any event with at least a reasonable degree of care. Each Party’s obligations regarding the other Party’s Confidential Information will expire three (3) years from the date of disclosure thereof, except for source code, for which such obligation will survive indefinitely. The Receiving Party may disclose the Confidential Information of the Disclosing Party to the extent that such disclosure is required by law or by the order of a court or similar judicial or administrative body (“Legal Order Disclosure”), provided that, if legally permissible, the Receiving Party promptly notifies the Disclosing Party in writing of such request for disclosure and cooperates with the Disclosing Party, upon the Disclosing Party’s reasonable request and at the Disclosing Party’s cost, to contest or limit the scope of any such required disclosure. Any Legal Order Disclosure will be restricted to the minimal disclosure required by law. Upon the Disclosing Party’s request, the Receiving Party will, at the Disclosing Party’s option, promptly return or destroy all Confidential Information (including all copies thereof) of the Disclosing Party, unless the Receiving Party is required to retain such information by law, and the Receiving Party will provide written certification of such Party’s compliance with this Section 9.
10. General.10.1 The Agreement is the Parties entire agreement relating to its subject matter. It supersedes all prior or contemporaneous oral or written communications, proposals, conditions, representations and warranties and prevails over any conflicting or additional terms of any quote, order, acknowledgement, or other communication between the Parties relating to its subject matter.
10.2 Neither Party may assign or otherwise transfer any of its rights or obligations under the Agreement, without the prior written consent of the other Party.
10.3 The construction, performance and validity of the Agreement shall be governed by and construed in accordance with the laws of (a) the State of California, United States, excluding its conflicts of law provisions, if Customer is located in the United States or in a country in which NetApp has no local sales subsidiary, or (b) the country in which Customer is located if NetApp has a local sales subsidiary in that country. Accordingly, any proceedings brought by the Customer in respect of any claim or matter arising under the Agreement shall be brought in the most appropriate courts but nothing in this Section 10.3 shall limit the right of NetApp, and/or its licensors to take proceedings against the Customer to protect its intellectual property rights in any other court of competent jurisdiction.
