Data ONTAP (tm) SIMULATOR SOFTWARE LICENSE

IMPORTANT: READ THIS LICENSE CAREFULLY BEFORE INSTALLING OR USING SOFTWARE

THIS PRODUCT CONTAINS CERTAIN COMPUTER PROGRAMS AND OTHER PROPRIETARY MATERIAL, THE USE OF WHICH IS SUBJECT TO THIS END USER SOFTWARE LICENSE AGREEMENT. THIS LICENSE IS ENFORCEABLE EVEN IF YOU HAVE NOT GIVEN YOUR WRITTEN APPROVAL. INSTALLATION AND/OR USE OF THIS SOFTWARE INDICATES YOUR ACCEPTANCE OF THIS AGREEMENT IN ITS ENTIRETY. BY THE USE, DOWNLOADING, AND/OR INSTALLATION OF THIS PRODUCT, YOU ACCEPT ALL OF THE TERMS STATED HEREIN. IF YOU DO NOT AGREE WITH ALL THE TERMS, YOU MUST RETURN THE UNUSED PRODUCT (S), INCLUDING ALL MANUALS AND DOCUMENTATION, TO NETWORK APPLIANCE, INC. ("NETAPP"). IF THE FOREGOING IS RETURNED WITH PROOF OF PAYMENT TO NETAPP WITHIN FIFTEEN (15) DAYS OF FIRST ACQUISITION, THEN YOU WILL RECEIVE A FULL REFUND.

1. LICENSE
Network Appliance, Inc. ("NetApp") grants Licensee a nonexclusive, worldwide license to use the accompanying software as specified herein in object code form ("Software") solely for Licensee's use for training and testing purposes, or to demonstrate for evaluation purposes, together with the accompanying documentation. Licensee shall only use the Software in the manner specified in the user documentation and in this license. Licensee is expressly prohibited from using the software and documentation for any caching purpose, or for use in caching environments or for use as a caching simulator. Licensee has no right to receive any source code or design documentation relating to the Software. This license precludes use of the Data ONTAP simulator in any production environment or for production purposes, whether as a filer or a cache. This License is personal to Licensee and Licensee shall not assign, transfer or sublicense this license without NetApp's prior written approval; any attempt to do so shall be void. This license is further restricted to the particular protocols and accompanying documentation purchased or provided hereunder. Any protocol license shall be restricted to training licenses provided solely with documentation for the Data ONTAP filer simulator.

2. RESTRICTIONS
NetApp shall retain title to the Software and the accompanying documentation and all copies and any derivative works thereof. NetApp shall own all test results and feedback produced by Licensee. Licensee shall not make any copies of the Software except one copy solely for archival or backup purposes. Licensee shall not, nor shall Licensee allow any third party to: (a) decompile, disassemble, decrypt, extract, or otherwise reverse engineer or attempt to reconstruct, or discover any source code or underlying ideas, algorithms, or file formats of, or used in, the Software by any means whatever; or (b) remove or conceal any product identification, copyright or other notices contained in or on the Software or accompanying documents; or (c) modify the Software, incorporate it into or with other software, or create a derivative work of any part of the Software. Licensee must not perform any benchmarks, nor publish or provide any results of benchmark tests run on the Software to a third party without NetApp's prior written consent.

The Software is NetApp's confidential property and contains trade secrets. It is protected by copyrights, one or more U.S. patents issued or pending, and other applicable law. Licensee must take adequate steps to protect the Software from unauthorized disclosure or use.

3. TERMINATION OF LICENSE
This License is effective until terminated. The License will terminate automatically if:
i) Licensee fails to cure any material breach of this Agreement within thirty (30) days after such breach first occurs (or immediately in the case of a breach of Section 2 herein).

ii) Licensee becomes insolvent, files, or has filed against it a petition under applicable bankruptcy or insolvency laws which is not dismissed within ninety (90) days; proposes any dissolution, composition or financial reorganization with creditors; makes an assignment for the benefit of creditors; or if a receiver, trustee or similar agent is appointed or takes possession with respect to any property or business of the defaulting party. The termination of this Agreement shall not relieve Licensee from its obligations to immediately pay NetApp any sums accrued hereunder prior to such termination.

Upon termination, Licensee shall immediately cease all use of the Software, deinstall it, and return or destroy all copies of the Software and all portions thereof and the accompanying documentation and so certify to NetApp.

When Licensee installs upgraded Software, Licensee loses its license to use the previous version. Licensee must discontinue using the previous version immediately upon installing the upgrade.

Except for the Use License granted in Section 1, Licensee's obligations under this Agreement shall survive termination. Termination is not an exclusive remedy and all other remedies will be available whether or not the License is terminated.

4. LIMITED WARRANTY AND DISCLAIMER
Subject to the conditions and limitations on liability stated in this Agreement, THE SOFTWARE AND THE ACCOMPANYING DOCUMENTATION ARE OTHERWISE PROVIDED "AS IS" WITHOUT ANY WARRANTY INCLUDING, WITHOUT LIMITATION, WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR NONINFRINGEMENT. SOME JURISDICTIONS DO NOT ALLOW LIMITATIONS OF IMPLIED WARRANTIES; THESE LIMITATIONS MAY NOT APPLY TO LICENSEE. THE SOFTWARE AND DOCUMENTATION ARE PROVIDED WITHOUT ANY OBLIGATION OF SUPPORT OF ANY KIND BY NETAPP.

5. LIMITATIONS OF LIABILITY
NETAPP'S TOTAL LIABILITY FOR ANY DAMAGE OR CLAIM ARISING FROM LICENSING OR USE OF THE SOFTWARE OR THE ACCOMPANYING DOCUMENTATION IS LICENSEE'S TOTAL PURCHASE PRICE FOR THE SOFTWARE. NETAPP IS NOT LIABLE FOR ANY INCIDENTAL, EXEMPLARY, SPECIAL OR CONSEQUENTIAL DAMAGES; LOST OR CORRUPTED DATA, LOSS OF PROFITS, SAVINGS, OR REVENUES; OR FOR ANY OCCURRENCE BEYOND ITS CONTROL. WARNING: The hardware and software are not designed or intended for use in on-line control of equipment in hazardous environments such as the operation of nuclear facilities, 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 and shall not be liable for any costs, liabilities or damages resulting from the use of the hardware or software in such an environment. Licensee agrees that it will not use or license the hardware or software for such purposes.

6. U.S. GOVERNMENT AND EXPORT REGULATIONS
If Licensee is acquiring the Software and accompanying documentation on behalf of the U.S. Government, special provisions apply. If the Software is supplied to the Department of Defense ("DOD"), the Software is subject to "Restricted Rights," as that term is defined in the DOD Supplement to the Federal Acquisition Regulations ("DFAR") in paragraph 252.227-7013(c)(1). If the Software is supplied to any unit or agency of the United States Government other than DOD, the Government's rights in the Software will be defined in paragraph 52.227-19(c)(1) or (2) of the Federal Acquisition Regulations ("FAR"), as applicable. Use, duplication, reproduction or disclosure by the Government is subject to such restrictions or successor provisions. Contractor/Manufacturer is: Network Appliance, Inc., 495 East Java Drive, Sunnyvale, CA 94089. Except as expressly licensed hereunder, all rights are reserved. NetApp's Software is subject to U.S. export control laws and may be subject to export or import regulations in other countries. Licensee must comply with all applicable regulations and obtain licenses to export, re-export, or import the Software. Both parties, at all times, must comply with all applicable laws, ordinances, statutes, rules, and regulations.

7. TRANSFERABILITY OF LICENSE
THIS LICENSE IS PERSONAL TO LICENSEE. LICENSEE SHALL NOT ASSIGN, SUBLICENSE OR TRANSFER THE LICENSE OR THE AGREEMENT WITHOUT NETAPP'S PRIOR WRITTEN APPROVAL; ANY ATTEMPT TO DO SO SHALL BE VOID.

8. PATENT, COPYRIGHT AND PROPRIETARY RIGHTS INDEMNITY.
NetApp shall, at its expense, defend and indemnify Licensee for damages and reasonable costs incurred in any suit or claim brought against Licensee alleging that the Products sold pursuant to this Agreement infringe any U.S. patent, copyright, trade secret or similar right provided that NetApp is promptly notified, rendered reasonable assistance by Licensee as required, and permitted to direct the defense or settlement negotiations. NetApp shall have no liability for any infringing combinations arising from the integration of NetApp's Products together with other products provided by Licensee or any third party.
Should the use of Product by Licensee be enjoined, or in the event NetApp wishes to minimize its potential liability hereunder, NetApp may, at its option, either: (i) substitute a fully equivalent non-infringing unit; (ii) modify the infringing item so that it no longer infringes but remains functionally equivalent; (iii) obtain for Licensee, at NetApp's expense, the right to continue use of such item; or (iv) take back such infringing item or items and refund to Licensee the purchase price paid therefor, less depreciation amortized on a straight line basis.

9. COMPLIANCE WITH LAWS.
Each party shall comply all applicable federal, state, local and foreign laws and ordinances including, but not limited to all export laws, restrictions and regulations of the Department of Commerce or other United States or foreign agency or authority, the Occupational Safety and Health Act of 1970 (29 U.S.C. Sections 651, 678), the Fair Labor Standards Act of 1938 (29 U.S.C. Sections 201-219), the Work Hours and Safety Act of 1962 (40 U.S.C. Sections 327, 333), the Equal Employment Opportunity (42 U.S.C. Sections 2000e, et seq.) and federal regulations governing affirmative action programs.

10. GENERAL
Any notice, report, approval or consent required or permitted by this Agreement shall be in writing. If any provision of this Agreement shall be adjudged by any court of competent jurisdiction to be unenforceable or invalid, that provision shall be limited or eliminated to the minimum extent necessary so that the obligations of the parties shall remain in full force and effect and enforceable. This Agreement shall be deemed to have been made in, and shall be construed pursuant to, the laws of the State of California and the United States excluding their conflicts of laws provisions. Licensee agrees that a material breach of this Agreement by it would cause irreparable injury to NetApp for which monetary damages would not be an adequate remedy and that NetApp shall be entitled to equitable relief in addition to any remedies it may have hereunder or at law. Any amendments or waivers shall be effective only if made in writing by non-preprinted agreements clearly understood by both parties to be an amendment or waiver and signed by an authorized representative of each party . This Agreement is the final and complete Agreement between the parties relating to the license of the Software hereunder. 






Network Appliance, Inc.				
Data ONTAP Simulator License
Rev. 020827