NetApp-KeyBank_MPA_20081124_v_20081112

Key KeyBank Contract #08-0703 MASTER PURCHASE AGREEMENT This Agreement is made effective as of November 20, 2008 (“Effective Date”) by and between NETAPP, INC., a Delaware corporation located at 495 East Java Drive, Sunnyvale, California 94089 (“NetApp”) and KEYBANK NATIONAL ASSOCIATION, a national banking association organized and existing under the laws of the United States of America located at 127 Public Square, Cleveland, Ohio 44114 (“Key”). 1. SCOPE. 1.1 Generally. This Agreement states the terms and conditions under which NetApp will sell to Key the Products and Services, and will license to Key the Software ordered by Key from NetApp. Purchase and Sale by Affiliates. For the purposes of this Agreement the term “Key” will include its Affiliates and the term “NetApp” include its Affiliates. It is the intention of the parties: (i) that each party’s Affiliates buying or selling Products under this Agreement shall be bound by the terms and conditions of this Agreement; (ii) that the Affiliates be entitled to enforce this Agreement as if it is Customer, or NetApp, as the case may be; (iii) the Affiliates are third party beneficiaries to this Agreement. Key will reference this Agreement on each Purchase Order. Upon request, Key will confirm to NetApp in writing the Affiliate status of a particular entity. Key will be jointly and severally liable for of its Affiliate’s performance of its obligations under this Agreement. 1.2 2. DEFINITIONS. The following definitions will apply to this Agreement. 2.1 “Affiliate” means any entity, directly, or indirectly through one or more intermediaries, that controls, is controlled by, or is under common control with a party hereunder, but only for so long as such relationship exists. For the purposes of this definition, “control” means ownership of more than fifty percent (50%) (or such lesser percent as may be the maximum that may be owned by foreign interests pursuant to the applicable laws of the country of incorporation) of (a) the shares of stock entitled to vote for directors in the case of a corporation; or (b) the equity or interests in profits in the case of a business entity other than a corporation. “Confidential Information” will be defined in Section 14 of this Agreement “Documentation” means the accompanying user information NetApp provides with its purchased Hardware and licensed Software, including but not limited to user manuals, administrator guides, specifications documents, warranty terms, end user license agreement and similar product information downloaded from NetApp’s NOW Website. “Hardware” means a NetApp storage server system or network cache system or other related storage products made available by NetApp for purchase by Key pursuant to this Agreement, including its components and spare parts, but excluding any software and firmware. “NetApp Equipment” means Software licenses and Hardware purchased by Key from NetApp or a NetApp authorized reseller. “NOW Website” means http://now.netapp.com/). the 1 2.2 2.3 2.4 2.5 2.6 “NetApp on the Web” website (URL: NetApp, Inc. Confidential Master Purchase Agreement Ver. 1.9 11/12/08 Key 2.7 KeyBank Contract #08-0703 “Product” means the NetApp Equipment listed on NetApp’s then-current price lists, and associated Documentation, and Third-Party Branded Products. “Professional Services” means technical consulting services that are not within the scope of Support Services. “Purchase Order” means a written, faxed or electronic order, in accordance with the form attached hereto, submitted by Key for the purchase of Products or Services. “Services” means Support Services and Professional Services provided by NetApp or NetApp’s authorized service provider. All Services must be performed by NetApp in the United States. “Software” means the machine executable, in object code only, version of NetApp computer programs, and updates, upgrades or permitted copies thereof, licensed by Key under this Agreement. “Statement of Work” or “SOW” means a document signed by the parties pursuant to an Purchase Order which details the Professional Services to be provided, including but not limited to scope, detailed descriptions, deliverables, milestones/deadlines, specifications and acceptance criteria, as applicable. For purposes of this Agreement, “SOW” also means a service brief, which is a NetApp pre-printed service order signed by the Key which details basic Professional Services to be provided, such as installation, integration and deployment of the Products. “Support Services” means support services under warranty and any maintenance and technical support package purchased by Key from NetApp. “Third-Party Branded Products” means hardware or software which is available for purchase or license from NetApp that are manufactured, developed or made available by other companies and are distributed by NetApp for use in conjunction with NetApp Equipment. 2.8 2.9 2.10 2.11 2.12 2.13 2.14 3. TERM. The term of this Agreement will be for one (1) year from the Effective Date (“Initial Term”), unless terminated earlier under Section 15. The Initial Term will be automatically extended for additional one (1) year term(s), unless terminated by either party upon thirty (30) days prior written notice. PRICING. 4.1 Prices. Prices will be quoted based on NetApp’s then-current and applicable U.S. price list for delivery within the United States. Each Purchase Order will be signed by both Parties and will reference and be governed by the terms of this Agreement. NetApp may change the prices set forth on its price lists and may add or remove Products or Services from its price lists solely at its discretion at any time. A Purchase Order received prior to the effective date of a price change will be invoiced at the price specified on the original Purchase Order. Fees for Professional Services. A SOW will state the fees to be paid to NetApp for Professional Services rendered and any related payment schedules. Both parties will sign each SOW, and both signatures are required for an effective SOW. No changes in fees or payment schedules will be effective unless a Change Order is completed in accordance with Section 8.2. In addition to the foregoing, if specified in a SOW, Key will pay NetApp its travel expenses (as detailed in attached Schedule 1 “Reimbursable Travel 2 4. 4.2 NetApp, Inc. Confidential Master Purchase Agreement Ver. 1.9 11/12/08 Key KeyBank Contract #08-0703 Expenses), as reasonably incurred by NetApp during the performance of the Professional Services. 4.3 4.4 Intentionally omitted. Payment Terms. Key will make full payment, without set-off, within thirty (30) days of Key’s receipt of NetApp’s invoice, unless otherwise specified in a SOW. If Key disputes an invoice in good faith, it will pay the undisputed portion, if any, within thirty (30) days of receipt, and shall not be obligated to pay the disputed portion until the parties have agreed on the amount to be paid by Key. For the avoidance of doubt, in the event of Key’s good faith dispute of an invoice or portion thereof by Key, Key’s failure to pay such disputed invoice or portion thereof and NetApp’s failure to perform Services related to the non-payment of an invoice as provided in this Section 4.4 will not constitute a breach of this Agreement. Remedies for Non-Payment. No payment by Key of a lesser amount than the amount of an invoice will be deemed as acceptance of payment in full, nor will any endorsement or statement on any check or letter accompanying any check or payment be deemed an accord and satisfaction, and NetApp may accept such check or payment without prejudice to NetApp’s right to recover the balance of any amount due or pursue any other remedy provided for in these terms and conditions or by law or equity. Each shipment of Products hereunder will be considered a separate transaction. If Key fails to make payment in accordance with the payment terms of Section 4.4, then, in addition to any other available remedies, NetApp may decline to make further deliveries to Key. 4.5 5. ORDERING PROCEDURE; DELIVERY. 5.1 Standard Order Procedure. When ordering Products and Services, Key will submit a Purchase Order to NetApp based upon a valid and current quotation by mail, fax or electronic submission referencing this Agreement and the relevant quotation. Each Purchase Order will itemize the Products and Services, quantity, appropriate “ship to” and “bill to” locations, and requested delivery date. Requested delivery dates must be no less than ten (10) business days after NetApp’s receipt of the Purchase Order. NetApp reserves the right to accept or reject a Purchase Order, and to propose a change to the delivery dates, if necessary. Change Orders, Cancellation and Rescheduling. Any and all Key changes (including any changes to the “ship-to” address) to submitted Purchase Orders must be in writing and are subject to approval by NetApp. Key may reschedule a requested delivery date one (1) time per Purchase Order. Key will be liable for any reasonable costs incurred by NetApp in connection with any cancellation, deletion or modification of a Purchase Order and made by Key within ten (10) days prior to any scheduled shipment date. NetApp’s costs may include the cost associated with the breakdown and refitting of the Products. Delivery, Title and Risk of Loss. (a) Delivery Within the United States. Unless otherwise expressly stated in NetApp’s duly authorized written acceptance of a Purchase Order, delivery of Hardware, and embedded Software shipped with the Hardware, and any ThirdParty Branded Products will be in accordance with EXW (Ex-Works, Incoterms 2000) NetApp’s facility. 5.2 5.3 (b) Software Delivery. Delivery of standalone Software will occur when the enabling key for such standalone Software is made available to Key. Key can download standalone Software from the NOW Website at any time. 3 NetApp, Inc. Confidential Master Purchase Agreement Ver. 1.9 11/12/08 Key (c) KeyBank Contract #08-0703 Risk of Loss. Risk of loss or damage, and title to Hardware, will pass to Key in accordance with Incoterms 2000 and the method of delivery as described above. 5.4 Taxes and Duties. Key bears all responsibility for taxes on shipments (except taxes based on NetApp’s net income) and will provide NetApp with a tax exemption and income tax withholding certificate or other documentation acceptable to the taxing authorities upon issuance of the first Purchase Order under this Agreement, and upon request from NetApp. If Key does not provide such documentation to NetApp, NetApp reserves the right to include such taxes in the invoice. Right of Return. Key will not return any Product to NetApp except under warranty or as a result at NetApp’s shipment error, and at NetApp’s sole discretion pursuant to Section 11 (Warranties). Product Changes. NetApp reserves the right to modify or discontinue any Product on its price list at any time. 5.5 5.6 6. SOFTWARE LICENSE. 6.1 License Grant. NetApp agrees to grant a nonexclusive, worldwide, personal, nontransferable, perpetual and irrevocable (unless terminated pursuant to Section 15) license to use the Software provided by NetApp hereunder in object code form, and its associated Documentation, solely for Key’s internal business use. Key will only use embedded Software on designated Hardware, and will not transfer such embedded Software to any other equipment. Key has no right to receive any source code or design documentation relating to the Software. Ownership. The terms of this Section 6 confer no title or ownership and are not a sale of any rights in the Software. NetApp will retain title to the Software and the accompanying Documentation and all copies and any derivative works thereof. All rights not expressly granted to Key are reserved solely to NetApp or its suppliers. License Restrictions. Key will not make any copies of the Software and/or Documentation except as reasonably required for backup purposes, archival, or disaster recovery purposes. Key will not, nor will Key allow any third party to: (a) alter, 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; (b) remove or conceal any product identification, copyright or other notices contained in or on the Software or accompanying Documentation; (c) modify the Software, incorporate it into or with other software, or create a derivative work of any part of the Software; (d) export the Software to any country where such export is prohibited by U.S. laws; (e) transfer or install the embedded Software to any equipment, other than the original Hardware which included such embedded Software; or (f) electronically transmit the Software from one computer to another or over a network or otherwise transfer the Software except as permitted by this Agreement. Proprietary Rights. The Software is NetApp’s confidential property and contains trade secrets. It is protected by the Copyright Act, one or more U.S. patents issued or pending, and other applicable law. Key will take adequate steps to protect the Software from unauthorized disclosure or use. Transferability of License. THIS LICENSE IS PERSONAL TO KEY. KEY WILL NOT ASSIGN, SUBLICENSE OR TRANSFER THE LICENSE OR THE AGREEMENT 4 6.2 6.3 6.4 6.5 NetApp, Inc. Confidential Master Purchase Agreement Ver. 1.9 11/12/08 Key KeyBank Contract #08-0703 WITHOUT NETAPP’S PRIOR WRITTEN APPROVAL; ANY ATTEMPT TO DO SO WILL BE VOID. 6.6 Additional terms. Key acknowledges and agrees additional product-specific terms may apply, depending upon the particular Software licensed by Key. 7. SUPPORT SERVICES. 7.1 Support Services Description. Key will be entitled to basic warranty services for the NetApp Equipment in accordance with NetApp’s warranty terms. Key may, in its sole discretion, purchase support service packages (“Support Offerings”) offered by NetApp for the NetApp Equipment and certain Third-Party Branded Products described at the website located at http://now.netapp.com/NOW/products/support/ applicable to the Support Services offerings purchased by Key. NetApp reserves the right to modify the Support Offerings at any time, and NetApp will notify Key in writing of any material modifications made to the Support Offerings purchased by Key. If NetApp changes its Support Offerings, Key will receive the same level of support for any Support Offerings it has purchased and paid for prior to the date of the announced changes. Notwithstanding anything to the contrary herein, NetApp will have no obligation to provide Support Services for technical issues or damages to the Products that arise from or relate to any of the following: (a) Mishandling, or unauthorized alteration, modification, or physical moving of the Products; willful or negligent acts or omissions; accidents; or force majeure events; Operation or use of the Products in an environment not in compliance with the conditions set forth in the NetApp Site Requirements Guide, located at www.now.netapp.com, or otherwise outside of normal operating conditions for similar electronic equipment; Configuration of the Products or operation or use of the Products in combination with third party hardware and/or software other than as specified in the applicable Documentation or as expressly authorized in writing by NetApp; or Use of products or components not provided by NetApp or a NetApp Authorized Reseller, and maintenance or related services performed by persons or entities not employed by NetApp or authorized by NetApp to provide such services. (b) (c) (d) 7.2 Support Services Responsibilities of Key. Key will reasonably cooperate with NetApp in the resolution of support issues at all times. NOW Website Access. Upon receipt of Products from NetApp, Key will be granted a unique login and password to the NOW Website. NetApp’s ability to provide effective Support Services to Key is conditioned upon Key’s registration of the Products on the NOW Site, creating a services profile on the NOW Site, and maintaining that profile to ensure it is accurate. Key must treat its login and password as confidential and may use that login and password solely for the purpose of using and maintaining its Products. NetApp reserves the right to rescind Key’s right to access the NOW Site in the event Key uses its login and password for purposes other than those set forth in this Section 7.3. Equipment Changes and Relocation. (a) Key will give NetApp thirty (30) days advance written notice in the event that Key intends to change the location of the Products or to change the configuration of the Products in a manner that impacts NetApp’s ability to provide Support Services. NetApp will provide Key with confirmation as to whether or not Key’s then current Support Offerings are available at Key’s requested new location or is applicable to Key’s requested new configuration within ten (10) days of receipt of 5 7.3 7.4 NetApp, Inc. Confidential Master Purchase Agreement Ver. 1.9 11/12/08 Key KeyBank Contract #08-0703 Key’s notification of the proposed change. If Key does not provide NetApp prior notice of such changes, NetApp will not be obligated to support the Products, at the changed location, or with the unauthorized configuration until such time as Key provides NetApp with the notices. (b) If the equipment used by Key for the operation of standalone Software becomes inoperable for any reason, including malfunction, network inaccessibility, preventive maintenance or installation of engineering changes, then the standalone Software license granted for the equipment or the site where the equipment is located may be transferred to such backup equipment or location as Key selects until the original equipment is restored to operable status and processing on the backup equipment is completed. Key may relocate equipment used by Key for the operation of standalone Software from the installation site specified in a Purchase Order, and Key will have the right to use the standalone Software on said equipment at the new location. Key may substitute other equipment for the equipment used by Key for operation of the standalone Software, provided that the equipment meets the product specifications for operation with the standalone Software. Key will incur no additional charges from NetApp for exercise of its rights under this Section 7.4. Key's rights under this Section 7.4 will include the right to relocate the standalone Software to an Affiliate. (c) (d) (e) 8. PROFESSIONAL SERVICES. 8.1 Statements of Work. NetApp will perform Professional Services for Key in support of certain specific projects (each a “Project”) as further described in a Statement of Work. A SOW will be executed prior to the commencement of any Professional Services. Each SOW will set forth, at a minimum, a description of the Professional Services to be completed, the duration of each Project, and the applicable fees for the performance of the Professional Services. Key agrees to submit a Purchase Order for each Project. Change Orders. Changes to the Professional Services specified in a SOW will not be effective unless a change request form has been executed by authorized representatives of both parties (“Change Order”). If fees are owed to NetApp under a Change Order, a Purchase Order covering the additional or modified Professional Services will be required. No Unique Services. Key understands and agrees that the Professional Services are of a scalable, repeatable nature and, as such, the same or similar Professional Services have been and will continue to be provided to other NetApp Keys. Therefore, notwithstanding any other provision herein or in any SOW, the Professional Services hereunder are not contemplated to include any services that are unique to Key or development activity of any kind (“Unique Services”). Should Key desire for NetApp to provide any such Unique Services, then such Unique Services will be governed by a separate written agreement executed by and between the parties. In no event will a SOW constitute such a separate written agreement. No Superuser Access. Notwithstanding any other provision herein or in the SOW, in no event will Key grant to NetApp or any NetApp authorized representative, root or “superuser” access at a server or network level (“Superuser Access”), and NetApp will have no responsibility or liability for loss or damage that results from or is related thereto. In the event Key desires NetApp to perform configuration or administration services requiring Superuser Access, such services must be set forth and agreed to in writing by way of a Change Order in accordance with Section8.2. 6 8.2 8.3 8.4 NetApp, Inc. Confidential Master Purchase Agreement Ver. 1.9 11/12/08 Key 8.5 KeyBank Contract #08-0703 Third Party Licenses. Except where expressly stated otherwise in writing by NetApp, Key will be solely responsible for obtaining, and represents and warrants that it will obtain, all third party licenses necessary for NetApp to perform the Professional Services. Compliance with Immigration Laws. Each party agrees, except as otherwise agreed to by the other party in writing, that it will be responsible for complying with the Immigration Reform and Control Act of 1986, as same may be amended from time to time, and all regulations promulgated thereunder. Background Investigations. NetApp will conduct, at its own expense, a reference check (which will include verification of education and employment history), a technical evaluation, and a criminal background check which shall consist of a criminal records search (county search, felony and misdemeanor for 7 years), employment gap verification (social security number search), OFAC, Political Exposed Person List, FBI Most Wanted, Interpol List, and the Federal Regulator Enforcement Action Search. No individual will be permitted to perform any Services on-site at Key’s locations pursuant to this Agreement unless NetApp has successfully completed the reference check and verified that such individual does not have a criminal record. All references and criminal background checks must be filed in NetApp’s offices. Right to Change Service Personnel. 8.6 8.7 8.8 9. Intellectual Property. 9.1 “Intellectual Property” or “IP” means materials, information, discoveries, inventions, technical information, procedures, processes, software, firmware, scripts, technology, intellectual property and/or know-how, including any modifications thereof or thereto created by or for a party in connection the Professional Services. “Pre-Existing IP” means IP owned or otherwise licensed by a party prior to this Agreement. Notwithstanding anything to the contrary hereunder, each party will retain all right, title and interest in and to its PreExisting IP. All deliverables to be provided pursuant to a SOW will be identified in the relevant SOW (the “Deliverables”). All Deliverables and IP used, generated, created, developed or reduced to practice, including any modifications thereof or thereto, by or for NetApp in connection with or related to the Professional Services (collectively “Professional Service Materials”), and all intellectual property rights therein will be and remain the sole and exclusive property of NetApp. In no event will Professional Services Materials be deemed to include Key PreExisting IP or Key Confidential Information (collectively, “Key Materials”). Key hereby grants NetApp a non-exclusive, worldwide, royalty-free, fully paid-up license to use Key Materials, for the sole purpose of performing or producing the Professional Services Materials. NetApp will have no right to use the Key Materials for any other purpose and agrees that it will not use Key Materials except as authorized in this Section 9.3. Upon receipt of full payment of all monies due and owing pursuant to a SOW, NetApp hereby grants to Key a limited, non-exclusive, non-transferable, terminable license, with no right to sublicense, to use the Professional Services Materials solely for Key’s internal business operations to the extent necessary for Key to receive the benefit of the Deliverables as set forth in the relevant SOW. Key will not distribute the Deliverables to any third parties, and will otherwise treat the Professional Services Material as NetApp Confidential Information pursuant to Section 14. In the event the Professional Services require NetApp to operate any computer systems or software owned or licensed by Key, Key will obtain any and all consents from third parties 7 9.2 9.3 9.4 9.5 NetApp, Inc. Confidential Master Purchase Agreement Ver. 1.9 11/12/08 Key KeyBank Contract #08-0703 required for NetApp to do so, and will notify NetApp promptly of any failure on Key’s part to obtain any such consents prior to performance of Professional Services by NetApp. 10. Insurance. NetApp will obtain at its cost and/or maintain the following insurance coverage for so long as NetApp is providing Support Services and/or Professional Services to Key pursuant to this Agreement: 10.1 10.2 Workers’ Compensation and Employer’s Liability Insurance. Commercial General Liability Insurance with a minimum combined single limit of $1,000,000 for bodily injury and property damage and $2,000,000 General Aggregate for bodily injury and property damage liability. Comprehensive Automobile Liability Insurance with a minimum combined single limit of $1,000,000 for bodily injury and property damage. Coverage will apply to non-owned and hired vehicles. NetApp will provide Key with a Certificate of Insurance within thirty (30) days from the date of the first fully executed SOW, and will provide Key written notification of any cancellation or termination of the above policies during the term of this Agreement and any SOW. 10.3 10.4 11. WARRANTIES. 11.1 Hardware Warranty. NetApp warrants to Key, for three (3) years from the date of Key’s receipt, unless otherwise noted in specific Documentation, that the Hardware sold by NetApp will operate in accordance with NetApp’s published Documentation in effect on the date the Hardware is shipped or NetApp will repair or replace the Hardware, or refund the purchase price paid by Key, at NetApp’s sole discretion. Replacement parts will be warranted for the remainder of the warranty period in effect on the original Hardware, unless otherwise mandated by applicable law. Software Warranty. (a) NetApp warrants to Key, for a period of ninety (90) days from the date of Key’s receipt of the enabling key for the Software, and if no enabling is required, then on the date of receipt of the Software, that (a) the Software will materially conform to NetApp’s published Documentation in effect on the date Key receives the Software; and (b) the media containing the Software (but not the Software itself) will be free from physical defects. NetApp further warrants that upon shipment by NetApp, or upon initiation by NetApp of an electronic transmission, or upon initiation of download by Customer from the NOW Website, NetApp does not provide Software that contains Viruses. The term "Viruses" means codes, programs, commands, or computer instructions that are designed to damage, impair, self-replicate, or self-reproduce for a malicious purpose. NetApp’s liability with respect to the Software or the Software’s performance under any warranty, negligence, strict liability or other theory will be limited exclusively to repairing or replacing the Software or refunding the purchase price paid for the Software, at NetApp’s option. This warranty covers only problems that are reproducible and verifiable and does not cover software, other items, or any services provided by any persons other than NetApp or a NetApp authorized service provider. Software will not be covered under this warranty if it has been 8 11.2 (b) (c) NetApp, Inc. Confidential Master Purchase Agreement Ver. 1.9 11/12/08 Key KeyBank Contract #08-0703 abused, misused, damaged in transport or after delivery to Key, modified, or subjected to unauthorized use or installation, as determined by NetApp. 11.3 Support Services Warranty. NetApp warrants that, for the duration of the pertinent Support Offerings period, the Support Services purchased by Key will be performed by NetApp or its authorized service providers, solely in the United States, in a professional, workmanlike manner in accordance with industry standards. NetApp agrees that all of the terms and conditions contained herein will be binding upon NetApp’s authorized service providers. Professional Services Warranty. NetApp warrants to Key that, for the period of time required to perform the Professional Services, Professional Services performed under this Agreement will be performed, solely in the United States, in a professional, workmanlike manner in accordance with industry standards. Warranty Exclusions. Any warranties provided herein do not apply to, nor do NetApp prices include, the maintenance of, repair or diagnosis of damage, malfunctions or product failures caused by the conditions or events set forth in Section 7.1. The warranty for any Hardware will become void if a Hardware component is installed as an add-on and or replacement part on the original Hardware and such component part has not been approved by NetApp. EXCLUSIVE WARRANTIES. (a) THE FOREGOING WARRANTIES AND REMEDIES ARE EXCLUSIVE AND ARE IN LIEU OF ALL OTHER WARRANTIES, EXPRESS OR IMPLIED, EITHER IN FACT OR BY OPERATION OF LAW, STATUTORY OR OTHERWISE INCLUDING WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE OR NON-INFRINGEMENT. SOME JURISDICTIONS DO NOT ALLOW LIMITATIONS OF IMPLIED WARRANTIES, IN WHICH CASE THIS SECTION 11.5(A) WILL NOT APPLY. NETAPP NEITHER ASSUMES NOR AUTHORIZES ANY OTHER PERSON TO ASSUME FOR IT ANY OTHER OR GREATER LIABILITY IN CONNECTION WITH THE SALE, INSTALLATION, SERVICING, MAINTENANCE OR USE OF NETAPP EQUIPMENT, AND NETAPP MAKES NO WARRANTY WHATSOEVER WITH RESPECT TO ANY THIRD-PARTY BRANDED PRODUCTS SUPPLIED BY IT HEREUNDER. NETAPP WILL NOT BE LIABLE UNDER THIS WARRANTY IF ITS TESTING AND EXAMINATION DISCLOSES THAT THE ALLEGED DEFECT IN THE NETAPP EQUIPMENT DOES NOT EXIST OR WAS CAUSED BY KEY’S OR ANY UNAUTHORIZED THIRD PERSON’S MISUSE, NEGLECT, IMPROPER INSTALLATION OR TESTING, ATTEMPTS TO REPAIR, OR ANY OTHER CAUSE BEYOND THE RANGE OF THE INTENDED USE, OR BY ACCIDENT, FIRE, LIGHTNING OR OTHER HAZARD OR EVENT OF FORCE MAJEURE. 11.4 11.5 11.6 (b) (c) 11.7 Third-Party Branded Products. NetApp will not be deemed to provide any warranty with respect to Third-Party Branded Products, and will not be responsible for fulfillment of any warranty provided by others with respect to Third-Party Branded Products, unless otherwise specified in a Purchase Order. Key agrees to look to the manufacturer of any Third-Party Branded Products it purchases hereunder with respect to warranty, service and other post-purchase issues, unless otherwise specified in a Purchase Order. Hazardous Environments. The NetApp Equipment is not designed or intended for use in online control of aircraft, air traffic, aircraft navigation or aircraft communications, or in 9 11.8 NetApp, Inc. Confidential Master Purchase Agreement Ver. 1.9 11/12/08 Key KeyBank Contract #08-0703 the design, construction, operation or maintenance of any nuclear facility, or in the operation or in maintenance of any direct life support system, or in other hazardous environments or life threatening operations. NetApp disclaims any express or implied warranty of fitness for such uses and will not be liable for any costs, liabilities or damages resulting from the use of the NetApp Equipment in such environments or operations. Key agrees that it will not use or license the NetApp Equipment for such purposes. 11.9 Resale. Key represents and warrants that it is the end-user of the Products purchased or licensed hereunder and will only use the Products for internal business use, and that the Products are not being acquired by Key for the purpose of resale or distribution. 12. LIMITATION OF LIABILITY. 12.1 Neither party will require waivers or releases of any personal rights from representatives of the other party in connection with visits to its premises and both parties agree that no such releases or waivers will be pleaded by them or by third persons in any action or proceeding. NOTWITHSTANDING ANY OTHER PROVISION HEREIN, IN NO EVENT, WHETHER BASED IN CONTRACT OR TORT (INCLUDING NEGLIGENCE) WILL EITHER PARTY OR EACH OF ITS SUBSIDIARIES, AFFILIATES, DIRECTORS, EMPLOYEES, REPRESENTATIVES, OR AGENTS BE LIABLE FOR INCIDENTAL, CONSEQUENTIAL, INDIRECT, SPECIAL OR PUNITIVE DAMAGES OF ANY KIND, OR FOR LOSS OF REVENUE, PROFITS, SAVINGS, LOSS OF BUSINESS OR OTHER FINANCIAL LOSS, OR LOST OR CORRUPTED DATA ARISING OUT OF OR IN CONNECTION WITH THE SALE, INSTALLATION, SERVICING, MAINTENANCE, USE, PERFORMANCE, FAILURE OR INTERRUPTION OF THE PRODUCTS. EACH PARTY’S MAXIMUM LIABILITY FOR DAMAGES ARISING UNDER THIS AGREEMENT OR FROM THE PURCHASE, LICENSE OR USE OF THE PRODUCTS OR SERVICES WILL NOT EXCEED THE PURCHASE PRICE OF PRODUCTS OR SERVICES PURCHASED DURING THE TWELVE (12) MONTH PERIOD PRIOR TO THE TIME THE CLAIM AROSE OR $500,000, WHICHEVER IS GREATER, EXCEPT THAT THE LIMITATIONS OF LIABILITY OF THIS SECTION 12.3 DO NOT APPLY TO LIABILITY ARISING FROM (A) NETAPP’S INTELLECTUAL PROPERTY INDEMNITY OBLIGATIONS PURSUANT TO SECTION 13.2, OR (B) EITHER PARTY’S BREACH OF THE CONFIDENTIALITY, PRIVACY AND/OR SECURITY PROGRAM OBLIGATIONS UNDER THIS AGREEMENT. 12.2 12.3 13. INDEMNITY. 13.1 General Indemnity. Each party, (the “Indemnifying Party”) will defend the other party and its directors, officers, and employees (collectively, the “Indemnitees”), from and against any and all third party claims, and indemnify the Indemnitees against losses, damages, suits, fees, judgments, costs and expenses (including attorneys’ fees) which have been finally awarded by a court of competent jurisdiction or pursuant to a settlement agreement (collectively referred to as “Damages”), that the Indemnitees may suffer or incur and arising out of or in connection with any personal injury (including death) or damage to property resulting from the Indemnifying Party’s or its agents’ acts or omissions (each, a “Claim”). The Indemnitees will give prompt notice of any Claim to the Indemnifying Party, and the Indemnifying Party will defend the Indemnitees at the Indemnitees’ request. The Indemnifying Party may settle, at its sole expense, any Claim for which the Indemnifying Party is responsible under this Section 13.1 provided that such settlement will not limit, unduly interfere, or otherwise adversely affect the rights granted herein, the Indemnifying Party’s obligations under this Agreement, or impose any additional liability on the Indemnitees. The Indemnitees reserve the right to employ 10 NetApp, Inc. Confidential Master Purchase Agreement Ver. 1.9 11/12/08 Key KeyBank Contract #08-0703 counsel at its own expense and participate in the defense and/or settlement of any Claim. The foregoing indemnification obligation will not apply to Claims, if and only to the extent, such Claims are finally adjudicated to have been solely and proximately caused by the gross negligence or willful misconduct of the Indemnitees 13.2 IP Indemnity. NetApp will defend Key and its directors, officers, and employees (collectively, the “Key Indemnitees”), from and against any and all unaffiliated third party claims, and indemnify the Key Indemnitees against Damages in connection with any allegation that the NetApp Equipment or Services infringe the third party’s United States patents, copyrights or trademarks, as of the date the NetApp Equipment is delivered to Key the Services are performed (each, an “IP Claim”). The Customer Indemnitees will give prompt notice of any Claim to NetApp, and NetApp will defend the Customer Indemnitees at their request. NetApp may settle, at its sole expense, any IP Claim for which NetApp is responsible under this Section 13.2. The Customer Indemnitees reserve the right to employ counsel at its own expense and participate in the defense and/or settlement of any IP Claim. If any NetApp Equipment furnished under a Purchase Order becomes involved in any claim or action described above, or is held to constitute a violation, infringement or misappropriation of a third party's intellectual property rights and the use thereof is enjoined, then NetApp will, at NetApp's expense and option: (a) (b) procure for Key the right to continue using said NetApp Equipment; modify such NetApp Equipment so that its use by Key is lawful (provided that such modification does not adversely affect Key's intended use of the NetApp Equipment); replace such NetApp Equipment, at no charge to Key, with equally suitable, compatible and functionally equivalent programs that lawfully may be used by Key; or take back the NetApp Equipment and refund the purchase price and/or license fee of the affected NetApp Equipment as provided in this Section 13.3(d). Such refund of the purchase price and/or license fee paid for the affected NetApp Equipment will be depreciated or amortized by an equal monthly amount over the remaining lifetime of the Product, as mutually agreed upon, but not longer than a period of sixty (60) months for Hardware and twenty-four (24) months for Software. In addition, Key’s obligations for the payment of any recurring fees for Support Services for the affected NetApp Equipment will automatically terminate, and if prepaid, will be refunded by a pro-ration to the end of the then current service year, based on the number of full months remaining in such period. 13.3 (c) (d) 13.4 Limitations. NetApp will have no liability for any IP Claim or related Damages resulting from (a) unauthorized modification or use of the NetApp Equipment or Services when the IP Claim or Damages would not have occurred but for such modification or use; (b) combination, operation, or use of the NetApp Equipment or Services with any products or services not provided by NetApp when the Claim or related Damages would not have occurred but for such combination, operation or use; or (c) Key’s failure to install an upgrade or new version available from NetApp when the IP Claim or related Damages would not have occurred but for such failure. Key will reimburse NetApp for any costs or damages that result from these actions. Product Coverage. Section 13.2 will apply only to NetApp Equipment purchased or licensed under this Agreement. NetApp will not be deemed to provide any 11 13.5 NetApp, Inc. Confidential Master Purchase Agreement Ver. 1.9 11/12/08 Key KeyBank Contract #08-0703 indemnification with respect to Third Party-Branded Products and Key will look solely to the manufacturer of such products with respect to intellectual property claims. Descriptions of manufacturer indemnifications applicable to Third Party-Branded Products are available upon request. 13.6 Remedies. This Section 13 sets out NetApp’s entire obligation and Key’s sole and exclusive remedy regarding any and all intellectual property claims. The provisions of this Section 13 shall survive the expiration or termination of this Agreement and the pertinent Purchase Order. 14. CONFIDENTIALITY. 14.1 During the course of this Agreement, either party may receive or have access to confidential information of the other. “Confidential Information” will include any information that is clearly identified in writing at the time of disclosure, whether written, verbal, graphic, electronic or any other form, as confidential, as well as any information that, based on the circumstances under which it was disclosed, a reasonable person would believe it to be confidential. Confidential Information will include, but not be limited to, software programs, formulas, methods, know-how, processes, designs, technical data, new products, procedures, formula, business logic, presentation or strategy, developmental work, distribution and marketing requirements/plans, current and future product plans and specifications, design information, product architechture, product strategies, benchmarking and test results, financial information, and any customer information. The terms "Disclosing Party" and "Recipient" include each party's corporate affiliates that disclose or receive Confidential Information. The rights and obligations of the parties will therefore also inure to such Affiliates and may be directly enforced by or against such Affiliates. The Recipient acknowledges the economic value of the Disclosing Party's Confidential Information. The Recipient will: (a) use the Confidential Information only in connection with the Recipient's performance of its obligations or exercise of its rights under this Agreement and a Purchase Order; (b) restrict disclosure of the Confidential Information to employees of the Recipient and its Affiliates with a "need to know" and not disclose it to any other person or entity without the prior written consent of the Disclosing Party; (c) advise those employees who access the Confidential Information of their obligations with respect thereto; and (d) copy the Confidential Information only as necessary for those employees who are entitled to receive it, and ensure that all confidentiality notices are reproduced in full on such copies. The obligations will not apply to any Confidential Information which the Recipient can demonstrate: (a) is or becomes available to the public through no breach of this Agreement or a Purchase Order; (b) was previously known by the Recipient without any obligation to hold it in confidence; (c) is received from a third party free to disclose such information without restriction; (d) is independently developed by the Recipient without the use of Confidential Information of the Disclosing Party; (e) is approved for release by written authorization of the Disclosing Party, but only to the extent of such authorization; (f) is required by law or regulation to be disclosed, but only to the extent and for the purposes of such required disclosure; or (g) is disclosed in response to a valid order of a court or other governmental body of the United States or any political subdivisions thereof, but only to the extent of and for the purposes of such order, and only if the Recipient first notifies the Disclosing Party of the order and permits the Disclosing Party to seek an appropriate protective order. If the Recipient fails to abide by its obligations under this Section 14, the Disclosing Party will be entitled to seek immediate injunctive relief, in addition to any other rights and remedies available to it at law or in equity. The provisions of this Section 14 will survive the expiration or termination of this Agreement. 12 14.2 14.3 NetApp, Inc. Confidential Master Purchase Agreement Ver. 1.9 11/12/08 Key 14.4 KeyBank Contract #08-0703 All Key Confidential Information, including, but not limited to, information of Key’s customers, will be stored, maintained, accessed from, and utilized only in the United States. Key will not disclose, furnish, transfer or otherwise make available the Software or any portion thereof to any third party or duplicate any portion of the Software, except as provided by law, in this Agreement or with the prior written consent of NetApp. Key may disclose and otherwise make available the Software to any Affiliate or other third party that provides services to Key in connection with Key's use, provided that Key first obtain the agreement of such party that it shall be subject to the nondisclosure provisions of this Agreement. Each party will ensure that all transmissions of Confidential Information via any wireless technology, email or other internet protocols will be secure and encrypted. The Recipient may store Confidential Information of the Disclosing Party on its internal servers and desktop computers, provided that Recipient has employed a firewall for such systems. Furthermore, Recipient’s applicable firewall rules will be based on the principle of least access needed, such that only necessary traffic flows to Recipient’s backend servers, and any unnecessary traffic will be blocked. 14.5 14.6 15. TERMINATION. 15.1 Termination for Cause. Either party will have the right to terminate this Agreement, and any and all licenses granted hereunder, for cause, if the other party: (a) breaches any material term or condition of this Agreement, including, without limitation remitting payments when due (whether payable to NetApp, or to any third party in connection with the financing of hardware and/or fees payable for software licenses and/or services), and does not remedy the breach within thirty (30) days after the receipt of written notice of such default given by the non-defaulting party; or (b) 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. Termination for Breach of License. NetApp may terminate a Software license immediately in the case of a breach of Section 6.3 (License Restrictions). Termination for Breach of OFAC. Key may terminate this Agreement immediately in the event NetApp, it Affiliates, or any of their directors, officers or employees (a) is or becomes subject to the prohibitions contained in Executive Order No. 13224 on Terrorist Financing, effective September 24, 2001; or (b) is named on the most current list of “Specially Designated Nationals and Blocked Persons” published by the Office of Foreign Asset Control (“OFAC”) as its official website or any replacement website or other replacement official publication of such list. If at any time during the term of this Agreement, NetApp determines that any directors, officers or employees of NetApp or NetApp’s Affiliates is named on the OFAC list, NetApp will, to the extent NetApp is legally required to its notify third parties of such information, notify Key thereof, and Key will have the immediate right to terminate this Agreement, without further obligation or penalty, if such individual continues to be employed by NetApp or its Affiliates. Termination of a SOW. (a) Key may terminate a SOW for convenience, upon thirty (30) days prior written notice. 13 15.2 15.3 15.4 NetApp, Inc. Confidential Master Purchase Agreement Ver. 1.9 11/12/08 Key (b) KeyBank Contract #08-0703 NetApp or Key will have the right to terminate a SOW if the other party: (i) fails to perform any material term or condition herein, including remitting payments when due, and does not remedy the failure within thirty (30) days after the receipt of written notice of such default given by the nondefaulting party; or 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. Such a termination will not relieve either party from its obligations to pay the other any sums accrued hereunder prior to such termination. (ii) 15.5 Rights on Termination. (a) The termination of this Agreement, or any licenses provided hereunder, will not relieve Key from its payment obligations with respect to any sums accrued hereunder prior to such termination. Key’s obligations under this Agreement will survive any such termination. All sums accrued hereunder prior to the termination of this Agreement will become due and payable in accordance with Section 4.4. Upon termination of a Software license pursuant to this Section 15, Key will (i) immediately cease all use of and de-install the Software,and (ii) return or destroy all copies of the Software and (iii) certify in writing (including via email or other electronic means) to NetApp that Key has performed its obligations under this Section 15.3(b). Termination of the license will not be deemed an exclusive remedy for breach of this Agreement. Termination of this Agreement will not terminate prepaid Support Offerings purchased by Key prior to termination unless Key specifically notifies NetApp that it is terminating such Support Offerings. The Support Offerings will continue for the duration of the term purchased (i.e., Support Services with a three (3) year term will continue for three (3) years even if the Agreement has terminated before the expiration of such three (3) year term). If Key terminates this Agreement, Key may request and NetApp may agree to complete any Professional Services in progress as of the date of termination, and Key will fully pay NetApp for such completed and accepted Professional Services. In the event of termination for convenience by Key, the amounts due by Key for the Professional Services will include all time, materials, costs and expenses incurred by NetApp under a valid SOW. If Key fails to make payment in accordance with the payment terms of the Agreement, then NetApp will, in addition to any other available remedies, have the right to decline to render further Professional Services to Key. Each party will certify to the other party within thirty (30) days of termination that it has destroyed all Confidential Information of the other party, and all copies thereof. (b) (c) (d) (e) 16. COMPLIANCE WITH LAW; EXPORT. 16.1 Compliance with Law. Each party will comply with all applicable federal, state, local and foreign laws, and regulations, including, but not limited to all export laws, restrictions 14 NetApp, Inc. Confidential Master Purchase Agreement Ver. 1.9 11/12/08 Key KeyBank Contract #08-0703 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 U.S. Federal regulations governing affirmative action programs. 16.2 Export. Key acknowledges that the Products, Services and technology supplied by NetApp under this Agreement are subject to export controls under the laws and regulations of the United States, and other countries as applicable, and that the Products, Services and technology may include encryption. Key agrees to comply with such laws and regulations, including, but not limited to those governing use, export, re-export (to embargoed countries and entities), and transfer of the Products and NetApp-supplied technology. Key will obtain all required export authorizations, permits, or licenses. Key agrees to maintain full, true, and accurate records of exports, re-exports, and transfers of the Products and technology, purchased/licensed and deployed or distributed for a minimum of five (5) years from date of shipment. Key will be deemed the principle party of interest (importer of record). Key will indemnify, defend and hold NetApp harmless against any claims for costs, damages, expenses (including attorneys’ fees) or liability arising out of or in connection with any breach of this Section 16.2. Privacy. (a) Each party will comply with all federal and state laws, and rules and regulations of regulatory agencies, protecting the Confidential Information and privacy rights of the other party, its customers and consumers, including, without limitation, Title V of the federal Gramm-Leach-Bliley Act and the federal Economic Espionage Act (18 U.S.C. Section 1831 et seq). For the avoidance of doubt, the parties acknowledge and agree that NetApp does not handle or process any personal information, including, without limitation, Key’s employees, customers, agents or business parties, and will not require access to any personal information in connection with the Services hereunder. For the purposes of this Section 16.3, “personal information” means any one or more of the following: a person birth date, social security number, personal mobile or home telephone number, driver’s license or state ID number, bank account number, credit/debit card account number, access code or pin number, password, identification number, security code or any information that may reasonably be considered personal, the use and disclosure of which is specifically regulated or could be reasonably used to perpetrate fraud. The parties contemplate that NetApp will not, in the course of performing the Services, access, handle or process personal information of Key customers or consumers. The parties further acknowledges and agrees that Key is subject to the regulations promulgated by the Office of the Comptroller of the Currency, and in particular, the Interagency Guidelines Establishing Standards for Safeguarding Customer Information and Rescission of Year 2000 Standards for Safety and Soundness which applies to Key and to its service providers who may have access to Key’s “Customer Information” (as defined in Appendix B to 12 CFR §30). In the event that NetApp has access to Customer Information in connection with its provision of the Services to Key pursuant to the terms of the Agreement, NetApp will treat Customer Information as Key’s Confidential Information and will use reasonable efforts to (i) ensure the security and confidentiality of Customer Information; (ii) protect against any anticipated threats or hazards to the security or integrity to Customer Information; and (iii) protect against unauthorized access to or use of Customer Information that could result in substantial harm or inconvenience to any “Customer” (as defined in 12 CFR § 15 16.3 (b) NetApp, Inc. Confidential Master Purchase Agreement Ver. 1.9 11/12/08 Key KeyBank Contract #08-0703 40.3 (h)). NetApp will ensure that it does not retain Customer Information unless otherwise mandated under this Agreement or by applicable law, and will dispose of all such Customer Information as soon as practically reasonable following the completion of its Services to Key hereunder. (c) Unauthorized Access. In the event NetApp knows or reasonably believes that there has been any unauthorized acquisition of or access to data by NetApp’s employee or authorized Service provider in the course of performing the Services that compromises the security, confidentiality, or integrity of “personal information” of Key, its employees, customers or agents (“Unauthorized Access”), NetApp shall take the following actions: (i) immediately notify Key of such Unauthorized Access; (ii) identify to Key at no cost to Key what specific data, by customer and/or account number has or may have been accessed; (iii) monitor any affected accounts for any unusual activity (if appropriate; (iv) take measures to contain and control the incident to prevent further Unauthorized Access; (v) remedy the circumstances that permitted such Unauthorized Access to occur; (vi) cooperate with Key as necessary to facilitate Key’s compliance with any applicable federal or state law regarding Unauthorized Access of personal information; (vii) reimburse Key for any reasonable out of pocket costs associated with remedying the Unauthorized Access, including but not limited to credit monitoring, notification mailings, and credit restoration, to the extent that such acquisition occurred at NetApp’s facilities, through NetApp’s system(s) or computer(s) (via theft, hacking or other intrusion), or through any other medium owned or operated by NetApp, it’s employees, agents, subcontractors or Affiliates; and (viii) In the event NetApp ever receives or has access to Key’s Confidential Information, including but not limited to Customer Information, NetApp will take appropriate measures to properly dispose of such customer information whether such information is in paper, electronic or other form. Destruction Policy and Standards. Each party will have in place a records retention policy to address the retention practices and routine destruction policy for the information possessed by each party relating to it and to its customer (whether in electronic, paper or other form). These destruction measures should, at a minimum include: (i) pulverizing or shredding of papers containing Confidential Information of the other party so that the information cannot practicably be read or reconstructed; ensuring the destruction or erasure of electronic media containing Confidential Information of the other party so that the information cannot practicably be read or reconstructed; and/or ensuring that any third party who performs the activities described in (a) and (b) on behalf of a party above does so in a manner consistent with this Section 16.3(d). (d) (ii) (iii) (e) This Section 16.3 is intended only to describe how to properly dispose of Confidential Information, including Customer Information. 16 NetApp, Inc. Confidential Master Purchase Agreement Ver. 1.9 11/12/08 Key 16.4 KeyBank Contract #08-0703 OCC Oversight. NetApp understands and acknowledges that the services performed under this Agreement may be subject to examination by the Office of the Comptroller of the Currency (“OCC”) and agrees to use its commercially reasonable efforts to cooperate with any examination or inquiry by the OCC or other regulatory body or agency. NetApp further acknowledges that pursuant to OCC Bulletin 2001-47 (November 1, 2001), Key is required to engage in ongoing management and oversight of its business relationship with NetApp,. 17. U.S. GOVERNMENT ACQUISITION. Key is not a governmental agency or entity and the Software hereunder is not being procured on behalf of the US government. If Key was the United States Government, or if the Software and accompanying Documentation is being procured on behalf of the United States Government, special provisions apply. Software is a Commercial-OffThe-Shelf (“COTS”) product developed at private expense; no portion of the Software has been developed with U.S. Government, State or other public-sector funds; the Software contains trade secrets and confidential commercial or financial information exempt from disclosure by 5 U.S.C. Section 552(B) (3) and (4) (Freedom Of Information Act) and 18 U.S.C. Section 1905 (Trade Secrets Act); and the ownership of the Software and any reproductions will remain with NetApp. The Software is provided to U.S. Government Agencies other than the U.S. Department of Defense (“DOD”) with RESTRICTED RIGHTS and all supporting Documentation is provided with LIMITED RIGHTS. Use, duplication, or disclosure by the U.S. Government is subject to the restrictions as set forth in the Commercial Computer Software - Restricted Rights clause at FAR 52.227-19(b)(2). In the event the sale is to a DOD agency, the Government's rights in the Software, supporting Documentation, and technical data are governed by the restrictions in the Technical Data Commercial Items clause at DFARS 252.227-7015 and the Commercial Computer Software and Commercial Computer Software Documentation clause at DFARS 2277202. Contractor/Manufacturer is: NetApp, Inc., 495 East Java Drive, Sunnyvale, CA 94089. Except as expressly licensed hereunder, all rights are reserved. GENERAL PROVISIONS. 18.1 Force Majeure. Neither party will be liable to the other for any alleged loss or damages resulting from the delivery or warranty of the Products, or performance of Services being delayed by acts of Key, acts of civil or military authority, governmental priorities, fire, floods, earthquakes, epidemics, quarantine, energy crises, strikes, labor trouble, terrorism, war, riots, accidents, shortages, delays in transportation, or any other causes beyond the reasonable control of NetApp. This provision, Force Majeure, will not apply to payments due hereunder for accepted Products or Professional Services actually performed. In the event of any such delay or inability by NetApp to perform its obligations, NetApp will promptly notify Key of such delay and will attempt to minimize potential damages to the Key, and the Key will be entitled to take commercially reasonable measures to avoid or minimize the adverse effects of the inability of NetApp to perform its obligations, including immediate termination of the affected SOW or Products purchase. Data and Recovery. Key acknowledges and agrees that NetApp will not be responsible or held liable for any Key internal processes, procedures, or requirements, including without limitations, data back-up, data recovery, and disaster recovery measures to insure the protection, loss, confidentiality, or security of Key data or information. Nothing in this Section 18.2 impacts or impairs NetApp’s confidential obligations under Section 14. Notice. Any notice required or permitted to be given under this Agreement will be given in writing and delivered in person or by express courier, or e-mail followed by confirmation by airmail, addressed to the address first stated in this Agreement or at such other address as will be given by either one to the other in writing. All notices will be 17 18. 18.2 18.3 NetApp, Inc. Confidential Master Purchase Agreement Ver. 1.9 11/12/08 Key KeyBank Contract #08-0703 deemed to have been given and received on the earlier of actual delivery or three (3) days from the date of postmark. All notices will be directed to: NetApp: NetApp, Inc. Attn: Legal Department 495 East Java Drive Sunnyvale, CA 94089 Phone: (408) 822-6000 Website: www.netapp.com KeyBank: KeyBank National Association th 2025 Ontario, 7 Floor Cleveland, Ohio 44115 Attention: Contract Administration Mail Code OH-01-00-0705 Phone: Website: www.key.com 18.4 Survival. The sections of this Agreement which by their essential purpose will survive any expiration or termination, will survive such expiration or termination. Waiver. A waiver by either party of any default, or of any of the terms and conditions of this Agreement, will not be deemed to be a waiver of any other default or of any other term or condition. Either party’s exercise of any right or remedy provided in this Agreement will be without prejudice to its right to exercise any other right or remedy. Severability. In the event any provision of this Agreement will be adjudged by any court of competent jurisdiction to be unenforceable or invalid, that provision will be limited or eliminated to the minimum extent necessary so that the obligations of the parties will remain in full force and effect and enforceable and the rights of the parties will not in any way be affected or impaired thereby. Assignment. THIS AGREEMENT AND THE LICENSES GRANTED HEREUNDER ARE PERSONAL TO KEY. KEY WILL NOT ASSIGN, SUBLICENSE OR TRANSFER ANY OF THE SOFTWARE LICENSES OR THIS AGREEMENT WITHOUT NETAPP’S PRIOR WRITTEN APPROVAL AND ANY ATTEMPT TO DO SO WILL BE VOID. Except as provided in this Section 18.7, Key may not assign any rights or delegate any obligations under this Agreement without the prior written consent of NetApp. Except with respect to the rights to the Software licenses and the associated Support Services thereof, Key may assign this Agreement without NetApp’s consent: (a) to an Affiliate, or (b) in connection with a merger, acquisition, consolidation or corporate reorganization (whether or not the party is the surviving entity), provided that Key provides notice to NetApp of any such authorized assignment. If an assignment is made under (b) above to a NetApp Competitor, NetApp may terminate this Agreement upon thirty (30) days' prior written notice to Key. For purposes of this Agreement, a "NetApp Competitor" means an entity that sells products and/or services associated with storage systems utilized for data management solutions, data protection, and/or data retrieval. Any assignment or attempted assignment contrary to this Section 18.7 will be a material breach of this Agreement and null and void. This Agreement will be binding upon the successors, legal representatives and permitted assigns of the parties. 18.5 18.6 18.7 NetApp, Inc. Confidential Master Purchase Agreement Ver. 1.9 11/12/08 18 Key 18.8 KeyBank Contract #08-0703 Independent Contractors. Both parties are acting solely as independent contractors and not as an agent of the other party. Consultants and independent contractors furnished by the respective parties will be solely the employees or agents of such parties, respectively, and will be under the sole and exclusive direction and control of such parties. They will not be considered employees of the other party for any purpose. Publicity. No advertising, publicity releases, or similar public information concerning this Agreement, the Products, or the Services to be performed hereunder will be published or caused to be published by either party without the prior written consent of the other party. Governing Law; Venue. This Agreement will be construed in accordance with and all disputes hereunder will be governed by the laws of the State of New York, USA, excepting its conflicts of law rules. The parties agree to disclaim the UN Convention on Contracts for the International Sale of Goods. Entire Agreement. These terms and conditions constitute the final and complete agreement between the parties, supersede any and all other agreements between the parties relating to the subject matter hereof, and will govern all Product sales, Services transactions in lieu of any Purchase Order or other document submitted by Key, except as expressly set forth herein. Any amendments or waiver hereto will 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. In the event of any inconsistency between the terms of this Agreement and any Statement of Work or Purchase Order, the terms of this Agreement will control, except with respect to delivery and payment terms, acceptance procedures, and scope of Software license. Right to Subcontract Professional and/or Support Services. NetApp and Key hereby acknowledge and agree that NetApp can subcontract certain portions or all of the Services it is performing under this Agreement. NetApp agrees that it will be responsible for its subcontractors and their performance under this Agreement unless such performance is solely at the direction of Key. Audit Rights. Key, through its accountants, auditors, representatives (collectively, "Audit Teams”) will have the right during the term of this Agreement, at any time upon two (2) weeks prior notice, but no more than once per annum, and during NetApp’s normal business hours, to examine hard copies of NetApp’s list prices, relating to the services performed together with payments made by Licensee under this Agreement. NetApp will use its commercially reasonable efforts to cooperate, and shall cause its personnel to use its commercially reasonable effort to cooperate with Key as Key may request or direct in connection with any audit, inquiry or investigation pursuant to this Section 18.13. NetApp will not be responsible for the costs or expenses of any such examinations, audits, tests or investigations by Key or the Audit Teams unless such examination, audit, test or investigation discloses any fraud or willful misconduct, in which event NetApp will reimburse Licensee for the reasonable cost of such examination, audit, test or investigation. To the extent that any examination, audit or investigation discloses any shortfall or discrepancy which results in monies being owed to a party or its Affiliates, the owing party will promptly make restitution of such amount. Non-Solicitation. Key will not solicit the services of any NetApp employee, or any employee of a NetApp contracted partner who may have performed Professional Services in connection with a SOW, for a term of one (1) year after the completion or termination of the then most recent SOW, unless prior approval is obtained from NetApp in writing. As a remedy for breach of this provision, Key will pay NetApp an amount equal to twenty percent (20%) of the solicited individual’s base salary. This Section 18.14 will not apply to nor prohibit either party from posting job openings on its web site or otherwise advertising job openings through industry or mass-media publications, recruitment web sites, or generally 19 18.9 18.10 18.11 18.12 18.13 18.14 NetApp, Inc. Confidential Master Purchase Agreement Ver. 1.9 11/12/08 Key KeyBank Contract #08-0703 advertised job fairs, or from responding to and hiring individuals who initiate contact with such party concerning job opportunities. The parties have caused this Agreement to be executed by their duly authorized representatives. NETAPP, INC. NetApp, Inc. 495 East Java Drive Sunnyvale, CA 94089 Phone: (408) 822-6000 Website: www.netapp.com By: Name: Title: Date: KEYBANK NATIONAL ASSOCIATION KeyBank National Association 127 Public Square Cleveland, Ohio 44114 Phone: (716) 838-7200 Website: www.key.com By: Name: Title: Date: NETAPP BV NetApp B.V. Boeing Avenue 300 1119 PZ Schiphol-Rijk, The Netherlands Phone: +31-20-503-9600 Website: www.netapp.com By: Name: Title: Date: NetApp, Inc. Confidential Master Purchase Agreement Ver. 1.9 11/12/08 20