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EXHIBIT 10.75
NOTE: Portions of this Exhibit are the subject of a Confidential Treatment
Request by the Registrant to the Securities and Exchange Commission. Such
portions have been redacted and are marked with a "[*]" in place of the redacted
language.
PATENT CROSS LICENSE AGREEMENT
BETWEEN
NETWORK APPLIANCE INC. AND INTEL CORPORATION
This Patent Cross License Agreement ("Agreement") is entered into as of October
1, 2000 ("Effective Date") by and between Network Appliance Inc., a California
corporation, having an office at 495 East Java Drive, Sunnyvale, California
94089, U.S.A. ("Network Appliance") and Intel Corporation, a Delaware
corporation, having an office at 2200 Mission College Blvd., Santa Clara,
California 95052, U.S.A. ("Intel").
IN CONSIDERATION OF THE MUTUAL COVENANTS AND PROMISES CONTAINED HEREIN, THE
PARTIES AGREE AS FOLLOWS:
1. DEFINITIONS
1.1. "Capture Period" shall mean any time on or prior to the seventh
anniversary of the Effective Date.
1.2. "Flash Memory Products" shall mean non-volatile Integrated Circuits
capable of storing data that are electrically programmable and
electrically erasable.
1.3. "Information System Product" shall mean any active circuit element,
apparatus, appliance, circuit assembly, computer, device, equipment,
firmware, housing, Integrated Circuit, instrumentality, material,
method, passive circuit element, process, service, software,
substrate or other means for calculating, classifying, combining,
computing, detecting, displaying, handling, hosting, imaging,
inputting, manifesting, measuring, modifying, networking,
originating, photographing, playing, printing, processing, providing,
receiving, recording, reproducing, retrieving, scanning, serving,
storing, switching, transmitting or utilizing data or other
information for business, scientific, control or other purposes,
including components and subsystems thereof or supplies therefore.
1.4. "Integrated Circuit" shall mean an integrated unit comprising (a) one
or more active and/or passive circuit elements associated on one or
more substrates, such unit forming, or contributing to the formation
of, a circuit for performing electrical functions (including, if
provided therewith, housing and/or supporting means) in combination
with (b) any and all firmware, microcode or drivers, if needed to
cause such circuit to perform substantially all of its intended
hardware functionality, whether or not such firmware, microcode or
drivers are shipped with such integrated unit or installed at a later
time.
1.5. "Intel Architecture Emulator" shall mean software that, through
emulation, simulation or any other process, allows a computer that
does not contain an Intel
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Compatible Processor (or a processor that is not an Intel Compatible
Processor) to execute binary code that is capable of being executed
on an Intel Compatible Processor.
1.6. "Intel Compatible Chipsets" shall mean one or more Integrated
Circuits that alone or together are capable of (i) electrically
interfacing directly (with or without buffering or pin reassignment)
with an Intel Processor to form the connection between an Intel
Processor and any other device including, without limitation,
Processors, input/output devices, and memory; or (ii) communicating
directly with any Intel Compatible Processor through an Intel
Interface.
1.7. "Intel Compatible Compiler" shall mean a compiler that generates
object code that can, with or without additional linkage processing,
be executed on any Intel Processor.
1.8. "Intel Compatible Processor" shall mean any Processor that (a) can
perform substantially the same functions as an Intel Processor by
compatibly executing or otherwise processing (i) a substantial
portion of the instruction set of an Intel Processor or (ii) object
code versions of applications or other software targeted to run on or
with an Intel Processor, in order to achieve substantially the same
result as an Intel Processor; or (b) is substantially compatible with
an Intel Processor Bus.
1.9. "Intel Interface" shall mean a proprietary bus or other data path
first introduced by Intel that (a) is capable of transmitting and/or
receiving information inside an Integrated Circuit or between two or
more Integrated Circuits, together with the set of protocols defining
the electrical, physical, timing and functional characteristics,
sequences and control procedures of such bus or data path; and (b)
Intel has not granted a license to or committed to grant a license to
through participation in a formal or informal Standard Industry Group
or other standard setting body; and (c) Intel has not publicly
disclosed with no obligation of confidentiality.
1.10. "Intel Licensed Products" shall mean any Intel product that
constitutes: (a) an Information System Product (b) software or (c)
any combination thereof, that are sold by Intel as Intel's own
product (subject to the limitations set forth in Section 3.4) and not
on behalf of another, provided that Intel Licensed Products shall not
include any Network Appliance Proprietary Products.(*)
*Confidential treatment requested for redacted portion.
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1.11. "Intel Processor" shall mean a Processor first developed by, for or
with substantial participation by Intel, or the design of which has
been purchased or otherwise acquired by Intel, including without
limitation the Intel 8086, 80186, 80286, 80386, 80486, Pentium(R),
Pentium Pro, Pentium(R) II, Pentium(R) III, StrongARM, Xscale,
Itanium(R) processor, 80860 and 80960 microprocessor families, and
the 8087, 80287, and 80387 math coprocessor families.
1.12. "Intel Processor Bus" shall mean an Intel Interface that is capable
of connecting one or more Intel Processors to each other, to an Intel
Compatible Chipset or to a main memory or cache.
1.13. "Intel Proprietary Product" shall mean Copied Intel Products, Intel
Compatible Processors, Intel Architecture Emulators, Intel Compatible
Compilers, Intel Compatible Chipsets, Intel Interfaces (including
Intel Processor Buses) and Flash Memory Products.
1.14. "Licensed Product" shall mean a Network Appliance Licensed Product or
an Intel Licensed Product as applicable.
1.15. "Network Appliance Caching Appliances" shall mean thin server caching
appliances having as their exclusive purpose the provision of proxy
caching storage management for data servers.
1.16. "Network Appliance Filers" shall mean file servers having as their
exclusive purpose the storing and retrieving of data files on a
computer network.
1.17. "Network Appliance Licensed Products" shall mean any Network
Appliance product that constitutes: (a) a Network Appliance Caching
Appliance, (b) a Network Appliance Filer, (c) software or (d) any
combination thereof, and that is sold by Network Appliance as Network
Appliance's own product (subject to the limitations set forth in
Section 3.4) and not on behalf of another, provided that Network
Appliance Licensed Products shall not include any Intel Proprietary
Products.
1.18. "Patents" shall mean all classes or types of patents other than
design patents (including, without limitation, originals, divisions,
continuations, continuations-in-part, extensions or reissues), and
applications for these classes or types of patent rights in all
countries of the world (collectively "Patent Rights") that, at any
time during the term of this Agreement, are owned or controlled by
the applicable party or any of its Subsidiaries or to which such
entities have the right to grant licenses, that have a first
effective filing date during the Capture Period and to the extent
that the applicable party or its Subsidiaries has the right to grant
licenses within and of the scope set forth herein and without the
requirement to pay consideration to any third party (other than
employees of the applicable party or its Subsidiaries) for the grant
of a license under this Agreement.
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1.19. "Processor" shall mean any Integrated Circuit or combination of
Integrated Circuits capable of processing digital data, such as a
microprocessor or coprocessor (including, without limitation, a math
coprocessor, graphics coprocessor, or digital signal processor).
1.20. "Subsidiary" shall mean any corporation, partnership, joint venture,
limited liability company or other entity, now or hereafter, in which
a party
(a) owns or controls (either directly or indirectly) or originally
contributed (either directly or indirectly) at least fifty
percent (50%) of the tangible and intangible assets of such
entity; and
(b) owns or controls (either directly or indirectly) either of the
following:
(1) if such entity has voting shares or other securities, more
than fifty percent (50%) of the outstanding shares or
securities entitled to vote for the election of directors or
similar managing authority and such entity is under no
obligation (contractual or otherwise) to directly or
indirectly distribute more than fifty percent (50%) of its
profits to a third party, or
(2) if such entity does not have voting shares or other
securities, more than fifty percent (50%) of the ownership
interest that represents the right to make decisions for
such entity and an interest sufficient to receive more than
fifty percent (50%) of the profits and/or losses of such
entity.
(c) An entity shall be deemed to be a Subsidiary under this Agreement
only so long as all requisite conditions of being a Subsidiary
are met.
2. MUTUAL RELEASES
2.1. Network Appliance. Network Appliance, on behalf of itself and its
Subsidiaries, hereby releases, acquits and forever discharges Intel,
its Subsidiaries that are Subsidiaries as of the Effective Date or
become Subsidiaries during the term of this Agreement, and its and
their distributors and customers, direct and indirect, from any and
all claims or liability for infringement (direct, induced, indirect or
contributory) of any Network Appliance Patents that arose prior to the
Effective Date of this Agreement, to the extent such infringement
would have been licensed under the license granted to Intel hereunder
if such license had been in existence at the time of such infringing
activity.
2.2. Intel. Intel, on behalf of itself and its Subsidiaries, hereby
releases, acquits and forever discharges Network Appliance, its
Subsidiaries that are Subsidiaries as of the Effective Date or become
Subsidiaries during the term of this Agreement, and its and their
distributors and customers, direct and indirect, from any and all
claims or liability for infringement (direct, induced, indirect or
contributory) of
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any Intel Patents that arose prior to the Effective Date of this
Agreement, to the extent such infringement would have been licensed
under the license granted to Network Appliance hereunder if such
license had been in existence at the time of such infringing activity.
3. GRANT OF RIGHTS
3.1. Network Appliance License to Intel. Subject to the terms and
conditions of this Agreement, Network Appliance hereby grants to Intel
a non-exclusive, non-transferable, royalty-free, worldwide license,
without the right to sublicense, under Network Appliance's Patents to:
(a) make, use, sell (directly or indirectly), offer to sell, import
and otherwise dispose of all Intel Licensed Products; and
(b) make, have made, use and/or import any equipment and practice any
method or process for the manufacture, use and/or sale of Intel
Licensed Products; and
(c) have made (subject to the limitations set forth in Section 3.3)
Intel Licensed Products by another manufacturer for supply solely
to Intel for use, import, sale, offer for sale or disposition by
Intel pursuant to the license granted above in Section 3.1(a).
3.2. Intel License to Network Appliance. Subject to the terms and
conditions of this Agreement, Intel hereby grants to Network Appliance
a non-exclusive, non-transferable, royalty-free, worldwide license,
without the right to sublicense, under Intel's Patents to:
(a) make, use, sell (directly or indirectly), offer to sell, import
and otherwise dispose of all Network Appliance Licensed Products;
and
(b) make, have made, use and/or import any equipment and practice any
method or process for the manufacture, use and/or sale of all
Network Appliance Licensed Products; and
(c) have made (subject to the limitations set forth in Section 3.3)
Network Appliance Licensed Products by another manufacturer for
supply solely to Network Appliance for use, import, sale, offer
for sale or disposition by Network Appliance pursuant to the
license granted above in Section 3.2(a).
(d) The licenses granted to Network Appliance to make, use, sell,
offer for sale, import or otherwise dispose of Network Appliance
Licensed Products includes the right to assemble and combine
Integrated Circuits that are not Intel Proprietary Products into
such Network Appliance Licensed Products, but does not include
any license to make, have made, use, sell,
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offer to sell, import or otherwise dispose of Integrated Circuits
themselves, including those Integrated Circuits that are included
in Network Appliance Licensed Products (except as replacement
parts for such Network Appliance Licensed Products).
3.3. Have Made Rights.
(a) Each party's rights to have Licensed Products manufactured for it
by third parties under the licenses granted under Sections 3.1
and 3.2 above shall apply only when the designs, specifications
and working drawings for the manufacture of the Licensed Product
to be manufactured by such third party are furnished to the third
party manufacturer by the party licensed under this Agreement
("Licensed Party").
(b) The parties understand and acknowledge that a party's Licensed
Products may consist of software, and that software is often
distributed to end users by providing a single master copy of
such software to a distributor, replicator, VAR, OEM or other
agent and authorizing such agent to reproduce such software in
substantially identical form. Accordingly, the parties agree that
the licenses granted in this Section 3 are intended to apply to
the reproduction and subsequent distribution of such software
Licensed Products in substantially identical form by such
authorized agent.
(c) Upon written request of the party to this Agreement that grants
the relevant license to the Licensed Party ("Requesting Party"),
the Licensed Party shall, within 30 days of receiving such
request, inform the Requesting Party in writing whether, and if
so to what extent, any manufacturer identified by the Requesting
Party is manufacturing any Licensed Product for the Licensed
Party pursuant to the "have made" rights granted under this
Agreement.
3.4. Clarification Regarding Patent Laundering. The parties understand and
acknowledge that the licenses granted hereunder are intended to cover
only the products of the two parties to this Agreement, and are not
intended to cover manufacturing activities that either party may
undertake on behalf of third parties (patent laundering activities).
Similarly, the licenses provided under this Agreement are not intended
to cover services provided by the parties to the extent that such
services are provided to or on behalf of a third party using tangible
or intangible materials provided by or on behalf of the third party.
Accordingly, by way of clarification, the following guidelines are
provided to aid the determination of whether a party's product is a
Licensed Product as defined herein or whether such product is
disqualified from being a Licensed Product because circumstances
surrounding the manufacture of the product suggest patent laundering.
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(a) Products of either party (including, without limitation,
Application Specific Integrated Circuits "ASICs") that otherwise
meet the definition of Licensed Product are disqualified as
Licensed Products if such products are manufactured on behalf of
a third party from designs received in a substantially completed
form from a third party for resale to or on behalf of that party.
(b) Products of either party (including, without limitation, ASICs)
that otherwise meet the definition of Licensed Product are not
disqualified as Licensed Products under the prohibition against
patent laundering set forth in this Section 3.4 if:
(1) the party selling such Licensed Product owns the design of
such product and is under no obligation that restricts the
sale of such Licensed Product; or
(2) the party selling such Licensed Product has an unrestricted,
royalty-free ownership or license right to the design of the
Licensed Product.
3.5. Licenses and Subsidiaries.
(a) Intention for Subsidiaries to be Bound.
(1) Except as expressly provided herein, the parties intend that
this Agreement shall extend to all of each party's
Subsidiaries. The parties agree that to the extent they are
not already bound, each party shall use reasonable and
diligent efforts to ensure that all such Subsidiaries are
bound by the terms of this Agreement.
(2) Each party agrees to take all steps that are reasonable and
in good faith under the circumstances to ensure that all
Patents directed to inventions that are made by its
employees and/or contractors either alone or in conjunction
with the employees and/or contractors of one or more of its
Subsidiaries are licensed under this Agreement. Each party
further agrees to take all steps that are reasonable and in
good faith under the circumstances to ensure that all
Patents directed to inventions that are made in substantial
part using funding provided directly or indirectly by that
party and/or its Subsidiaries are licensed under this
Agreement.
(3) Notwithstanding the foregoing, both parties understand and
intend that there are circumstances in which a party could
reasonably agree in good faith with a third party that the
party would not have rights to license and/or enforce
Patents directed to inventions developed in conjunction with
employees and or contractors of such third party. For
example, both parties understand that it could be reasonable
under the circumstances for a party to agree in good
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faith not to have rights to license and/or enforce Patents
directed to inventions that arise out of: (i) bona fide
joint development projects based in substantial part on the
pre-existing technology of an independent third party; or
(ii) bona fide joint development projects undertaken with
the significant assistance of the employees and/or
contractors of an independent third party.
(4) Either party to this Agreement shall have the right to
request a written confirmation or denial from the other
party to this Agreement that a specific Subsidiary is (or is
not) bound by this Agreement. A party receiving such a
request shall provide such written confirmation (including a
full explanation in support of such confirmation or denial)
within 30 days after the receipt of the request.
(b) In the event that neither a party nor any of its Subsidiaries has
the right to grant a license under any particular Patent Right of
the scope set forth herein, then the license granted herein under
such Patent shall be of the broadest scope which the licensing
party or any of its Subsidiaries has the right to grant.
(c) The parties represent, warrant and covenant that they shall not
participate in the creation of Subsidiaries where a primary
purpose of such creation is to extend the benefits of this
Agreement to a third party.
(d) The extension of license rights to a Subsidiary shall apply only
during the time period when such Subsidiary meets all
requirements of a Subsidiary. However, if a Subsidiary of a party
that holds any Patents that are licensed to the other party
hereunder ceases to meet all requirements of being a Subsidiary,
the licenses granted by such Subsidiary to the other party under
this Agreement shall continue for the life of such Patents even
after such entity ceases to meet all the requirements of being a
Subsidiary.
(e) Notwithstanding anything to the contrary contained herein, in the
event that either party or any of its Subsidiaries obtains rights
to any Patents that would be included within the Patents licensed
hereunder but for the fact that such a license would require the
party granting such license to make payments to a third party,
such Patents shall be included within the Network Appliance
Patents or the Intel Patents, as the case may be, if the party to
whom such would be licensed under this Agreement agrees in a
separate written agreement to be bound by, and protect such
grantor against, those payment obligations.
(f) Notwithstanding Section 3.6(d), if a Subsidiary of a party
becomes a Former Subsidiary, the other party ("Other Party")
agrees that it shall enter into good faith negotiations intended
to result in a patent cross license with the Former Subsidiary,
provided that:
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(1) within 180 days of the date the Former Subsidiary ceases to
meet all requirements set forth in the definition of
Subsidiary, the Former Subsidiary notifies the Other Party
in writing of its intention to exercise its rights under
this Section 3.5(f);
(2) the Former Subsidiary does not first initiate a lawsuit or
other proceeding alleging patent infringement against the
Other Party;
(3) the Former Subsidiary agrees to grant a license at least as
broad as the license set forth in this Agreement to the
Other Party, and;
(4) the scope of the license the Other Party agrees to grant is
sufficiently broad to encompass the anticipated business
operations of the Former Subsidiary at the time the former
Subsidiary ceases to meet all requirements of the definition
of Subsidiary.
(5) For purposes of this Section 3.5(f), "Former Subsidiary"
shall mean a Subsidiary that agreed to be bound by the terms
and conditions of this Agreement and thereafter ceased to
meet all requirements of the definition of Subsidiary set
forth herein, so long as, on the date upon which the Former
Subsidiary ceased to meet the definition of Subsidiary, the
Former Subsidiary has all of the following:
i. a line of marketable products;
ii. patents or other intellectual property relating to the
line of marketable products; and
iii. tangible assets of at least 25,000,000 USD.
3.6. Waiver of Indirect Infringement Liability.
(a) For purposes of this Section 3.6, "Indirect Infringement" means a
claim for infringement where the accused infringer is not
directly infringing the subject patent rights(s), but is in some
manner contributing to a third party's direct infringement of the
subject patent rights(s) by, for example, supplying parts or
instructions to the third party that as a result of such parts or
instructions enable such third party to infringe directly the
subject patent rights(s). Indirect Infringement includes without
limitation contributory infringement and inducing infringement.
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(b) Each party agrees that during the term of this agreement, it will
not assert a claim of Indirect Infringement against the other
party ("Licensed Party") where such a claim would be based in any
part or in any way upon (a) any activity for which the Licensed
Party is licensed under this Agreement, or (b) the Licensed Party
providing instructions regarding or sample designs related to its
Licensed Products. The parties agree that the foregoing sentence
does not and shall not in any way limit their respective rights
to assert direct or indirect claims of infringement against third
parties.
3.7. [*]
3.8. No Other Rights. No other rights are granted hereunder, by
implication, estoppel, statute or otherwise, except as expressly
provided herein. Specifically, (i) except as expressly provided in
Section 3, nothing in the licenses granted hereunder or otherwise
contained in this Agreement shall expressly or by implication,
estoppel or otherwise give either party any right to license the other
party's Patents to others, and (ii) no license or immunity is granted
by either party hereto directly or by implication, estoppel or
otherwise to any third parties acquiring items from either party for
the combination of Licensed Products with other items or for the use
of such combination.
4. [*]
4.1. [*]
5. EFFECTIVE DATE, TERM AND TERMINATION FOR CAUSE
5.1. Term. This Agreement and the rights and licenses granted hereunder
shall become effective on the Effective Date, and shall continue in
effect until terminated by a party pursuant to Section 5.2, or until
the end of the Capture Period, whichever is earlier. The Capture
Period shall be automatically renewed for successive seven (7) year
periods at the expiration of the then in effect Capture Period unless
either party notifies the other to the contrary not more than one
hundred eighty (180) days and not less than ninety (90) days prior to
such expiration. For purposes of clarification, no payment shall be
required from Network Appliance for any renewal period.
5.2. Termination for Cause.
(a) Subject to the survival of provisions specified in Section 5.3, a
party may terminate the other party's rights and licenses
hereunder upon notice if the other party hereto commits a
material breach of this Agreement and does not correct such
breach within sixty (60) days after receiving written notice
complaining thereof. In the event of such termination, the rights
and licenses granted to the defaulting party shall terminate, but
the rights and licenses granted to the party not in default shall
survive such
* Confidential treatment requested for redacted portion.
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termination of this Agreement subject to its continued compliance
with the terms and conditions of this Agreement.
(b) A party hereto may terminate this Agreement upon sixty (60) days
written notice of termination to the other party given at any
time upon or after:
(1) the filing by the other party of a petition in bankruptcy or
insolvency;
(2) any adjudication that the other party is bankrupt or
insolvent;
(3) the filing by the other party of any petition or answer
seeking reorganization, readjustment or arrangement of its
business under any law relating to bankruptcy or insolvency;
(4) the appointment of a receiver for all or substantially all
of the property of the other party;
(5) the making by the other party of any assignment for the
benefit of creditors;
(6) the institution of any proceedings for the liquidation or
winding up of the other party's business or for the
termination of its corporate charter;
(7) the other party undergoes a Change of Control. For purposes
of this Section 5.2(b)(7), "Change of Control" shall mean a
transaction or a series of related transactions in which (i)
one or more related parties who did not previously own more
than a fifty percent (50%) interest in a party to this
Agreement obtain more than a fifty percent (50%) interest in
such party, and, in the reasonable business judgment of the
other party to this Agreement, such change in ownership will
have a material effect on the other party's business, or
(ii) a party acquires, by merger, acquisition of assets or
otherwise, all or any portion of another legal entity such
that either the assets or market value of such party after
the close of such transaction are greater than one and one
third (1 1/3) of the assets or market value of such party
prior to such transaction.
(c) In the event of termination pursuant to Sections 5.2(a) and
5.2(b), the rights and licenses granted to the terminated party
shall terminate, but the rights and licenses granted to the other
shall survive such termination of this Agreement subject to its
continued compliance with the terms and conditions of this
Agreement.
(d) If Network Appliance commits a material breach, all payments
remaining under Section 4 shall become immediately due and
payable at a discount rate of 8% per annum.
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5.3. Survival. The provisions of Sections 1, 2, 4, 5.3, 6 and 7 will
survive any termination or expiration of this Agreement.
6. DISCLAIMER
6.1. Nothing contained in this Agreement shall be construed as:
(a) a warranty or representation by either of the parties to this
Agreement as to the validity, enforceability or scope of any
class or type of Patent Right; or
(b) a warranty or representation that any manufacture, sale, lease,
use or other disposition of Licensed Products hereunder will be
free from infringement of any patent rights or other intellectual
property rights of either party or any third party.
(c) an agreement to bring or prosecute actions or suits against third
parties for infringement or conferring any right to bring or
prosecute actions or suits against third parties for
infringement; or
(d) conferring any right to use in advertising, publicity, or
otherwise, any trademark, trade name or names, or any
contraction, abbreviation or simulation thereof, of either party;
or
(e) conferring by implication, estoppel or otherwise, upon any party
licensed hereunder, any license or other right under any Patent
Rights, copyright, maskwork, trade secret, trademark other
intellectual property right except the licenses and rights
expressly granted hereunder; or
(f) an obligation to furnish any technical information or know-how.
6.2. NO IMPLIED WARRANTIES. EACH PARTY HEREBY DISCLAIMS ANY IMPLIED
WARRANTIES WITH RESPECT TO THE PATENTS LICENSED HEREUNDER, INCLUDING
WITHOUT LIMITATION, THE WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A
PARTICULAR PURPOSE.
7. MISCELLANEOUS PROVISIONS
7.1. Authority. Each of the parties hereto represents and warrants that it
has the right to grant the other the licenses granted hereunder.
7.2. No Assignment. This Agreement is personal to the parties, and the
Agreement or any right or obligation hereunder is not assignable,
whether in conjunction with a change in ownership, merger,
acquisition, the sale or transfer of all, or substantially all or any
part of a party's business or assets or otherwise, either voluntarily,
by operation of law, or otherwise, without the prior written consent
of
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the other party, which consent may be withheld at the sole discretion
of such other party. Any such purported assignment or transfer shall
be deemed a breach of this Agreement and shall be null and void. This
Agreement shall be binding upon and inure to the benefit of the
parties and their permitted successors and assigns.
7.3. Notice. All notices required or permitted to be given hereunder shall
be in writing and shall be delivered by hand, or if dispatched by
prepaid air courier or by registered or certified airmail, postage
prepaid, addressed as follows:
If to Network Appliance: If to Intel:
----------------------- -----------
General Counsel General Counsel
Network Appliance Inc. Intel Corporation
495 East Java Drive 2200 Mission College Blvd.
Sunnyvale, CA 94089 Santa Clara, CA 95052
United States of America United States of America
Such notices shall be deemed to have been served when received by
addressee or, if delivery is not accomplished by reason of some fault
of the addressee, when tendered for delivery. Either party may give
written notice of a change of address and, after notice of such change
has been received, any notice or request shall thereafter be given to
such party as above provided at such changed address.
7.4. No Rule of Strict Construction. Regardless of which party may have
drafted this Agreement, no rule of strict construction shall be
applied against either party. If any provision of this Agreement is
determined by a court to be unenforceable, the parties shall deem the
provision to be modified to the extent necessary to allow it to be
enforced to the extent permitted by law, or if it cannot be modified,
the provision will be severed and deleted from this Agreement, and the
remainder of the Agreement will continue in effect.
7.5. Taxes. Each party shall be responsible for the payment of its own tax
liability arising from this transaction.
7.6. Entire Agreement; Separate Transactions. This Agreement embodies the
entire understanding of the parties with respect to the subject matter
hereof, and merges all prior discussions between them, and neither of
the parties shall be bound by any conditions, definitions, warranties,
understandings, or representations with respect to the subject matter
hereof other than as expressly provided herein. No oral explanation or
oral information by either party hereto shall alter the meaning or
interpretation of this Agreement. The parties hereto are concurrently
entering into a separate transaction relating to different matters
reflected in an agreement entitled "Business Alliance Agreement
Between Network Appliance Inc. and Intel Corporation" having an
effective date , and hereby waive, and provide for the inapplicability
of, California Civil Code Section 1642 to the separate agreements
between the parties.
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7.7. Modification; Waiver. No modification or amendment to this Agreement,
nor any waiver of any rights, will be effective unless assented to in
writing by the party to be charged, and the waiver of any breach or
default will not constitute a waiver of any other right hereunder or
any subsequent breach or default.
7.8. Governing Law. This Agreement and matters connected with the
performance thereof shall be construed, interpreted, applied and
governed in all respects in accordance with the laws of the United
States of America and the State of California, without reference to
conflict of laws principles.
7.9. Jurisdiction. Intel and Network Appliance agree that all disputes and
litigation regarding this Agreement and matters connected with its
performance shall be subject to the exclusive jurisdiction of the
courts of the County of Santa Clara, California, or of the Federal
courts sitting therein.
7.10. Dispute Resolution. All disputes arising directly under the express
terms of this Agreement or the grounds for termination thereof shall
be resolved as follows: First, the senior management of both parties
shall meet to attempt to resolve such disputes. If the senior
management cannot resolve the disputes, either party may make a
written demand for formal dispute resolution. Within thirty (30) days
after such written demand, the parties agree to meet for one day with
an impartial mediator and consider dispute resolution alternatives
other than litigation. If an alternative method of dispute resolution
is not agreed upon within thirty (30) days after the one-day
mediation, either party may begin litigation proceedings.
7.11. Confidentiality of Terms. The parties hereto shall keep the terms of
this Agreement confidential and shall not now or hereafter divulge
these terms to any third party except:
(a) with the prior written consent of the other party; or
(b) to any governmental body having jurisdiction to call therefor; or
(c) subject to (d) below, as otherwise may be required by law or
legal process, including to legal and financial advisors in their
capacity of advising a party in such matters; or
(d) during the course of litigation so long as the disclosure of such
terms and conditions are restricted in the same manner as is the
confidential information of other litigating parties and so long
as (a) the restrictions are embodied in a court-entered
Protective Order and (b) the disclosing party informs the other
party in writing at least ten (10) days in advance of the
disclosure; or
(e) in confidence to legal counsel, accountants, banks and financing
sources and their advisors solely in connection with complying
with financial transactions.
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The parties shall cooperate in preparing and releasing an
announcement, if any, relating to this Agreement.
7.12. Compliance with Laws. Anything contained in this Agreement to
the contrary notwithstanding, the obligations of the parties
hereto and of the Subsidiaries of the parties shall be subject
to all laws, present and future, of any government having
jurisdiction over the parties hereto or the Subsidiaries of the
parties, and to orders, regulations, directions or requests of
any such government.
7.13. Force Majeure. The parties hereto shall be excused from any
failure to perform any obligation hereunder to the extent such
failure is caused by war, acts of public enemies, strikes or
other labor disturbances, fires, floods, acts of God, or any
causes of like or different kind beyond the control of the
parties.
WITNESS WHEREOF, the parties hereto have caused this Agreement to be duly
executed on the date below written.
INTEL CORPORATION NETWORK APPLIANCE INC.
By: /s/ P. S. OTELLINI By:/s/ DANIEL J. WARMENHOVEN
-------------------------- ------------------------------
P.S. Otellini Daniel J. Warmenhoven
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Printed Name Printed Name
EVP CEO
- ------------------------------ ---------------------------------
Title Title
12/11/00 11/29/00
- ------------------------------ ---------------------------------
Date Date
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