TECHNOLOGY LICENSE AGREEMENT
Exhibit 10.52
*** Text Omitted and Filed Separately
Pursuant to a Confidential Treatment Request
under 17 C.F.R. §§ 200.80(b)(4) and 240.24b-2(b)(1
Pursuant to a Confidential Treatment Request
under 17 C.F.R. §§ 200.80(b)(4) and 240.24b-2(b)(1
THIS TECHNOLOGY LICENSE AGREEMENT (the “License Agreement”) is made and entered into on the
date on which the last signature of the Parties hereto occurs hereon (the “Effective Date”) by and
between Dot Hill Systems Corp., a Delaware corporation (“Dot Hill”) having its principal place of
business located at 0000 Xxxxxxx Xxxxxx, Xxxxx 000, Xxxxxxxx, Xxxxxxxxxx 00000 and Network
Appliance, Inc., a Delaware corporation (“NetApp”), having its principal place of business located
at 000 Xxxx Xxxx Xxxxx, Xxxxxxxxx, Xxxxxxxxxx 00000. Dot Hill and NetApp may individually be
referred to as a “Party” and collectively as the “Parties” in this License Agreement.
BACKGROUND:
WHEREAS, NetApp and Dot Hill previously entered into a Development and Supply Contract
(defined below);
WHEREAS, Dot Hill and NetApp are interested in establishing separate terms and conditions for
the permitted use by NetApp and each NetApp DCM (defined below) of certain Dot Hill Technology
(defined below) that is delivered by Dot Hill to NetApp for the intended development, manufacture,
sale, distribution and delivery of NetApp products, as more fully set forth below; and
WHEREAS, Dot Hill and NetApp desire that this License Agreement will supersede and
replace in their entirety those provisions in the Development and Supply Contract which pertain to,
among other things, license rights granted by Dot Hill for use of Dot Hill Technology and rights,
duties and/or obligations for the establishment and maintenance of an escrow therefore, as more
fully set forth below.
NOW, THEREFORE, in consideration of the terms and conditions herein and for other
good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, Dot
Hill and NetApp hereby agree to the following:
LICENSE AGREEMENT:
1. Definitions. For purposes of the construction and interpretation of this License Agreement, the
following terms shall have the following meanings:
1.1 “Affiliate” means any entity that controls, is controlled by, or under common control with
a party, where control means the direct or indirect beneficial ownership or control of more than
fifty percent (50%) of the outstanding voting interests of such entity (but only for so long as
such entity meets these requirements).
1.2 “Confidential Information” of a Party means all business, technical and financial
information, data, know-how, ideas and customer lists and any and all other information and
material, tangible or intangible, that is owned, used obtained or
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maintained by such Party which provides such Party an advantage over competitors who do not know or
use it and derives to such Party economic value (actual or potential) from not being generally
known to the public or to other entities who can obtain economic or other value from its disclosure
and use. For the avoidance of doubt, (i) Dot Hill Technology that is licensed by Dot Hill under
this License Agreement shall be deemed to be Confidential Information belonging to Dot Hill and
(ii) the provisions of this License Agreement (including royalty amounts in this License Agreement)
shall be deemed to Confidential Information of both Parties.
1.3 “Development and Supply Contract” means collectively that certain Development and OEM
Supply Agreement dated July 26, 2005, together with its First Amendment thereto dated August 3,
2006 and its Second Amendment thereto, which have been executed by the authorized representatives
of Dot Hill and NetApp.
1.4 “Dot Hill Competitor” means Xyratex, Ltd., LSI Corporation, Infortrend Technology, Inc.
and/or any of their respective Affiliates and/or successors-in-interest.
1.5 “Dot Hill IPR” means all rights worldwide in and to any Dot Hill Patents, copyrights,
trade secrets and semiconductor topography rights (including semiconductor mask work rights) that
Dot Hill has the right to license without the payment of any royalties or other fees to any third
parties and that are not otherwise available to NetApp without a license from Dot Hill, but in all
cases excluding rights in trademarks, service marks, trade names, service names, and Internet
domain names and other similar designations.
1.6 “Dot Hill Patents” means patents, patent applications, design patents and registrations,
and utility models, along with any reissues, re-examinations, continuations, continuations-in-part,
divisions and renewals thereof, which Dot Hill has the right to license as of the Effective Date
without the required payment of any royalties or other fees to any third party and that are not
otherwise available to NetApp without a license from Dot Hill.
1.7 “Dot Hill Technology” means those items of Technology that Dot Hill has the right to
license without the payment of royalties or other fees to third parties and that are not otherwise
available to NetApp without a license from Dot Hill and which are used on the Effective Date by Dot
Hill to develop, manufacture, assemble, test and support the Products. These items of Technology
are identified in Exhibit A, List of Dot Hill Technology, to this License Agreement, which
items may be updated upon mutual written agreement of the authorized representatives of Dot Hill
(which for Dot Hill shall be the President or Senior Vice President of Engineering) and NetApp
(which for NetApp shall be a Vice President of Engineering) provided, however, that all of the
following conditions are met: (i) any such item that is to be added or updated must have been in
existence as of the Effective Date (for the avoidance of doubt, these additions and updates of
Technology may include, but not be limited to, undocumented processes or procedures that are being
used to perform the manufacture of Products
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on the Effective Date); (ii) any such item to be added or updated is necessary to manufacture the
Products listed on Exhibit B to the Development and Supply Contract, as such Exhibit
B exists on the Effective Date; (iii) Dot Hill is not required to pay royalties to any third
party for any item to be added or updated; and (iv) in the Parties’ reasonable opinion, each such
item had either been erroneously or incorrectly omitted from, insufficiently documented, or
erroneously or incorrectly included on Exhibit A, List of Technology, to this License
Agreement. If such authorized representatives of Dot Hill and NetApp agree to update Exhibit
A, List of Dot Hill Technology, for any such item, then Dot Hill will prepare an update thereto
that addresses such item of Technology and upon NetApp’s written acceptance of such update proposed
by Dot Hill, it will become a part of Exhibit A, List of Dot Hill Technology. Any consent
to be provided to a modification or update made to Exhibit A by Dot Hill shall not be
unreasonably withheld. Dot Hill Technology will also include items of Technology that Dot Hill may
supply after the Effective Date to NetApp under the Development and Supply Contract to the extent
necessary to resolve a bug or defect found in Products; however, Dot Hill Technology does not and
shall not include any derivatives, enhancements and/or major modifications to the Products
developed by or for Dot Hill after the Effective Date or any items created after the Effective Date
for which Dot Hill may derive independent economic value, separate and/or apart from the Products.
1.8 “Effective Date” shall have the meaning ascribed to such term in the introductory
paragraph of this License Agreement.
1.9 “[...***...] Period” means the [...***...] period beginning on [...***...] and ending on [...***...].
1.10 “IOM” means an electronics input-output module which incorporates or makes use of any Dot
Hill Technology.
1.11 “Initial Purchase Period” means the period beginning on [...***...] and ending on [...***...].
1.12 “License Agreement” means the base terms and conditions of this agreement, together with
any exhibits which are attached hereto.
1.13 “NetApp DCM” means a third party which is authorized in writing by NetApp to manufacture
products for NetApp.
1.14 “Other Royalty-Bearing Component” means any [...***...]. The term “Other Royalty-Bearing
Component” also includes any [...***...].
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1.15 “PCM” means an electronics processor controller module which incorporates or makes use of
any Dot Hill Technology.
1.16 “Permitted Purposes” means the following: (i) the development of improvements to the
Products (the “Improvements”); (ii) the manufacture of Products and Improvements thereto solely for
integration into or as additions to NetApp systems, appliances and other products; (iii) the sale,
distribution, servicing and support of systems, appliances and other products containing the
Products or Improvements subject, however, to the prior written agreement of the Parties to a
royalty, if any, that applies thereto in accordance with Section 6.1 of this Agreement; and/or (iv)
[...***...].
1.17 “Product” means any Shasta, [...***...] product that (i) incorporates and/or makes use of
any Dot Hill Technology and (ii) is listed on Exhibit B (Product Price and Xxxx of
Materials Breakdown) of the Development and Supply Contract, as such exhibit may be updated from
time to time by the parties.
1.18 “Royalty Base” shall have the same meaning as is ascribed to such term in Section 4 of
Exhibit J, Rev. 1 of the Development and Supply Contract.
1.19 “Royalty-Bearing Items” means collectively [...***...] Products and Other Royalty-Bearing
Components.
1.20 “[...***...]” means any [...***...] containing Dot Hill Technology that is designed by or for
NetApp for [...***...]. Notwithstanding the foregoing, the term “[...***...]” shall not include any
[...***...] Products and/or Other Royalty-Bearing Components.
1.21 “[...***...] Product” means any [...***...] or any derivative products thereof, which
incorporate or make use of any Dot Hill Technology and is designed [...***...].
1.22 “[...***...] Period” means the [...***...] period beginning on [...***...] and ending on [...***...].
1.23 “Technology” means any and all technical information, know how, trade secrets, data,
plans, schematics, drawings, design hardcopy, computer-assisted design files, specifications,
vendor lists, board layouts, firmware, test scripts, quality standards, internal component test
design, tooling, tooling designs, test software and documentation, process flows, and process
setups and process instructions.
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1.24 “Time Commitment Period” means the period that commences on [...***...] and ends on [...***...].
1.25 “Trigger Event” shall have the same meaning as is ascribed to such term in the Section 5,
Definitions, of the Development and Supply Contract.
2. Term. The term of this License Agreement shall commence on the Effective Date and, unless
earlier terminated in accordance with its termination provisions, shall end on the date on which
the last to expire of the Dot Hill IPR can be enforced. Upon any termination of this License
Agreement in accordance with its termination provisions, the term of this License Agreement will
end on the effective date of such termination.
3. License Rights and Restrictions
(a) Ordinary Use. Subject to the terms and conditions of this License Agreement and the
Development and Supply Contract, including the fulfillment by NetApp of its obligations to pay on a
timely basis all amounts due under such agreements and to comply in all respects with the
requirements obligations in Exhibit J, Rev. 1 of the Development and Supply Contract, Dot
Hill hereby grants, on behalf of itself and its Affiliates, to NetApp a worldwide, perpetual,
non-transferable (except as permitted under Section 9 (“Assignment”), non-sublicensable,
nonexclusive right and license [...***...].
(b) Manufacturing and Other Rights. Subject to the terms and conditions of this License
Agreement and the Development and Supply Contract, including the fulfillment by NetApp of its
obligations to pay on a timely basis all amounts due under such agreements and to comply in all
respects with the requirements obligations in Exhibit J, Rev. 1 of the Development and
Supply Contract, Dot Hill hereby grants, on behalf of itself and its Affiliates, to NetApp:
(i) a worldwide, revocable in accordance with Section 3(c), non-transferable (except as
permitted under Section 9 (“Assignment”)), royalty-bearing during the Time Commitment Period to the
extent set forth in Section 6.1 (“Royalties”) and royalty-free thereafter, perpetual, nonexclusive
right and license, without the right to sublicense (except as set forth in Section 3(d)), [...***...]
to perform:
(A) during the Initial Purchase Period, Permitted Purposes for up to [...***...] of the total
number of units of [...***...] Products included in NetApp’s fiscal monthly revenue demand that are
to be purchased and sold by NetApp during each NetApp fiscal month within the Initial Purchase
Period,
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(B) during the [...***...] Period, all Permitted Purposes for up to [...***...] of the total
number of units of [...***...] Products included in NetApp’s fiscal monthly revenue demand that
are to be purchased and sold by NetApp during each NetApp fiscal month within the [...***...]
Period,
(C) during the [...***...] Period, Permitted Purposes for up to [...***...] of the total number of
units of [...***...] Products included in NetApp’s fiscal monthly revenue demand that are to be
purchased and sold by NetApp during each NetApp fiscal month within the [...***...] Period, and
(D) after the expiration of the Time Commitment Period, Permitted Purposes for [...***...]
Products;
(ii) a worldwide, revocable in accordance with Section 3(c), non-transferable (except as
permitted under Section 9 (“Assignment”)), royalty-bearing during the Time Commitment Period to the
extent set forth in Section 6.1 (“Royalties”) and royalty-free thereafter, perpetual, nonexclusive
right and license, without the right to sublicense (except as set forth in Section 3(d)) [...***...] to
perform Permitted Purposes for Other Royalty-Bearing Components; and
(iii) a worldwide, revocable in accordance with Section 3(c), non-transferable (except as
permitted under Section 9 (“Assignment”)), royalty-free, perpetual, nonexclusive right and license,
without the right to sublicense (except as set forth in Section 3(d)) [...***...]. For the avoidance of
doubt, no [...***...] shall be due to Dot Hill to perform Permitted Purposes for any [...***...].
(c) Certain Rights of Revocation. Each Party acknowledges and agrees that the license rights
granted to NetApp in Section 3(b) above may be revoked immediately by Dot Hill, upon written notice
to NetApp, in the event of the occurrence of any of the following events:
(i) if NetApp [...***...]; or
(ii) this License Agreement or the Development and Supply Contract is terminated according to
its terms due to a material breach by NetApp.
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Also, upon written notice to NetApp, Dot Hill may revoke immediately the sublicense rights granted
by NetApp to a sublicensee of NetApp in the event that: (1) such sublicensee improperly uses Dot
Hill Technology beyond the scope of the sublicense rights described in Section 3(d) (and further
described in Section 3(b) above) and (2) any such improper use remains uncured for a period of
[...***...] after written notice thereof. Any revocation made by Dot Hill of any NetApp rights in
Section 3(b) as a result of any of the events described in Subsection 3(c)(i) and/or 3(c)(ii) above
shall result in the revocation of all related sublicense rights granted by NetApp.
(d) Sublicense Rights
(i) Scope of Rights. Subject to the provisions in this Section 3(d) and NetApp’s compliance
with the other terms and conditions of this License Agreement and the Development and Supply
Contract, the rights granted in Section 3(b) may be sublicensed by NetApp solely to NetApp DCMs to
make, within the scope of the applicable rights granted in Section 3(b), [...***...] Products,
Other Royalty-Bearing Components and/or [...***...] for sale to (1) NetApp and (2) NetApp’s Affiliates.
(ii) Limit on Manufacture of [...***...] Products. NetApp acknowledges and agrees that the
maximum total aggregate amount of units of [...***...] Products that may be manufactured and sold
based on the exercise of the rights in Section 3(b)(i) (including all sublicense rights therefor),
during each NetApp fiscal month occurring within the Time Commitment Period is limited solely to
those units covered within the aggregate percentages expressed in [...***...] for that month,
determined regardless of whether such [...***...] Products are made by NetApp and/or one or more
NetApp DCMs. For the avoidance of doubt, it is hereby acknowledged that with respect to NetApp’s
permitted exercise of the license rights set forth in Section 3(b)(i) (including all sublicense
rights therefor), it will not matter what geographies or regions such [...***...] Products may be
shipped or delivered into by NetApp or how many NetApp DCMs may be used by NetApp to manufacture
for NetApp such [...***...] Products.
(iii) Other Responsibilities. Prior to the granting by NetApp of any such sublicense rights
to NetApp DCMs or NetApp’s Affiliates, NetApp shall obtain the written agreement of NetApp DCMs or
NetApp’s Affiliates, as applicable, to hold in confidence all Dot Hill Technology that NetApp may
provide and, in the case of a grant of any sublicense rights to any NetApp DCMs, for such NetApp
DCMs to use such Dot Hill Technology solely in a manner fully and entirely consistent with the
rights granted in Section 3(b) and solely to make Products for sale to NetApp or NetApp’s
Affiliates.
(iv) Exclusions. Notwithstanding anything to the contrary, no rights, licenses, approvals or
permissions are granted under this License Agreement or given by Dot Hill to NetApp or any NetApp
DCM to permit it to license, sublicense, provide, distribute or disclose during the Time Commitment
Period any Dot Hill Technology to
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any Dot Hill Competitor for the purpose of producing any [...***...]. However, in the event that
NetApp considers purchasing [...***...].
(e) License Restrictions. NetApp acknowledges and agrees that (i) the Dot Hill Technology is
confidential to Dot Hill and (ii) NetApp shall not disclose to any third party, other than NetApp
DCMs or third parties authorized in writing by Dot Hill, any Dot Hill Technology. NetApp shall
not, nor shall NetApp knowingly allow any third party, to: (1) use any Dot Hill Technology, except
as expressly permitted by the license rights granted under this License Agreement, or (2) reverse
engineer, decompile, disassemble, or attempt to reduce to source code form any object code included
in the Dot Hill Technology, except solely to the extent permitted under applicable law to achieve
interoperability with hardware or software to be used therewith.
(f) No Other Rights Granted. Except as expressly set forth above in this Section 3, no right
or license shall be deemed to be or have been granted, either directly or by implication, estoppel,
exhaustion, doctrine of law, equity or otherwise, under any patent, trade secret, copyright or
other intellectual property rights or to any Dot Hill Technology which Dot Hill may own or
otherwise possess.
4. Ownership Rights. The terms and conditions within Section 11.5, Intellectual Property Ownership
Rights, of the Development and Supply Contract relating to Dot Hill’s ownership rights in Dot Hill
IPR and Dot Hill Technology shall apply to Dot Hill IPR and Dot Hill Technology licensed under this
License Agreement.
5. Use of Manufacturing Lines. If a Trigger Event occurs and a Dot Hill DCM becomes a NetApp DCM
to make Products to supply to NetApp, then any manufacture or production of such Products may, at
NetApp’s option, [...***...] provided, however, that:
(i) such right may be exercised only with the prior written consent of Dot Hill, which consent
will not be unreasonably withheld, and only (a) if NetApp has not already established with a NetApp
DCM its own manufacturing lines to make or produce Products and (b) for a period of [...***...]
following the date of such Trigger Event ([...***...]); and
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(ii) with respect to such right, NetApp shall be entitled to receive [...***...] that NetApp would
have been [...***...] under the Development and Supply Contract, based on the application of the
[...***...] of Exhibit F, Rev. 2 thereto and determined as if NetApp had elected to purchase
such Products directly from Dot Hill, instead of from another source.
Notwithstanding anything to the contrary, NetApp acknowledges and agrees that, unless a Trigger
Event occurs, NetApp shall have no right to [...***...].
6. Royalties; Statements; Payments; Taxes; Interest; Other Reports
6.1 Royalties. In partial consideration of the rights, licenses and other privileges which
are granted by Dot Hill to NetApp in this License Agreement, NetApp hereby agrees to pay to Dot
Hill, at the times and in the manner set forth in Section 6.2 below, the amounts set forth below.
(a) Certain Royalty-Bearing Products. For the license rights granted in this Agreement,
royalties shall be imposed on the products described below in accordance with the classification
scheme set forth below: [...***...]
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[...***...]
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[...***...].
(b) Royalties for Units of [...***...] Products. For each unit of a [...***...] Product in
the Royalty Base that is sold, distributed or otherwise made available to any third party by
NetApp, a NetApp DCM or any of their respective Affiliates during any NetApp fiscal month occurring
within the [...***...], NetApp shall pay a royalty to Dot Hill in an amount equal to [...***...] for such
unit, according to the same or similar Product containing the same configuration included on
Exhibit B of the Development and Supply Contract. Solely for the purpose of the
interpretation and construction of this Section 6.1(b), the term [...***...]. For this royalty
calculation, [...***...]. NetApp shall inform Dot Hill in writing of when each [...***...] for each
[...***...] Product is anticipated to occur, [...***...] prior to each such anticipated [...***...].
(c) Royalties for Other Items. Each of the Parties acknowledge and agree that, as of the
Effective Date, royalty rates have not been agreed by the Parties for any products or items not
otherwise listed on Exhibit B of the Development and Supply Agreement (including
derivatives that have similar configurations, along with Other [...***...]). Upon request by a Party,
a royalty rate shall be negotiated in good faith by the Parties for such products or items which
may be based on factors including but not limited to the remaining time in the [...***...], amount of
IP utilized, attainment to business plan, competitive dynamics and other relevant factors. NetApp
shall inform Dot Hill in writing of when each [...***...] for each product is anticipated to occur,
[...***...] prior to each such anticipated [...***...]. Notwithstanding anything to the contrary, unless
and until the Parties negotiate and establish a royalty for each of such products through their
authorized representatives, NetApp shall not have any right to sell, distribute, service or support
any systems, appliances and/or other products which contain any products or improvements that
contain or make use of any Dot Hill Technology.
(d) Reconciliation for Units of [...***...] Products. For the avoidance of doubt, it is
hereby acknowledged and understood that during the [...***...] Period and the [...***...] Period
royalties will be required to be paid under Section 6.1(a) for units of [...***...]
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[...***...]. The following schedule reconciles the percentages contained in the license rights in
Section 3(b)(i) of this License Agreement with the percentages contained in the Royalty Base for
[...***...] Products for which royalties are due from NetApp:
| Percentage | Percentage | |||||||
| in License | of Royalty- | Royalty | ||||||
| Description | Period of Time | Rights | free Units | Base | ||||
Initial Purchase Period |
[...***...] | [...***...] | [...***...] | [...***...] | ||||
[...***...] Period |
[...***...] | [...***...] | [...***...] | [...***...] | ||||
[...***...] Period |
[...***...] | [...***...] | [...***...] | [...***...] |
6.2 Statements. NetApp shall submit to Dot Hill, [...***...], a complete and accurate
statement of account, in such form and containing such information as may be mutually agreed by the
parties at any time and from time to time. Notwithstanding anything to the contrary, such
information to be submitted by NetApp shall, at a minimum, include the following: (i) the total
units of each of the Royalty-Bearing Items, by product or part number, sold, distributed or
otherwise made available to any third party by the aggregate of NetApp, a NetApp DCM or any of
their respective Affiliates (for the avoidance of doubt NetApp may provide the aggregate data by
each product or part number for all such units regardless of whether they are sold, distributed or
otherwise made available by NetApp, a NetApp DCM or any of their respective Affiliates); (ii) the
identity of the NetApp DCM’s which manufacture each of the Royalty-Bearing Items; and (iii) a
calculation of the total amount due and payable to Dot Hill under this License Agreement by each
product or part number for the relevant NetApp fiscal month reporting period. Each statement shall
be in writing and certified by NetApp and sent by NetApp to a Dot Hill-designated address. Dot
Hill shall submit an invoice to NetApp for the amount payable based on such statement of account
[...***...] its receipt of such statement from NetApp. The amounts due to Dot Hill under this License
Agreement shall be due and payable to Dot Hill [...***...] (the “Payment Term”) occurring during the
period commencing on the Effective Date and ending on March 31, 2011. Notwithstanding the
foregoing, if NetApp has submitted to Dot Hill [...***...] a complete and accurate statement of account
containing proper information for such NetApp [...***...], but Dot Hill has not issued an invoice to
NetApp based on such statement within [...***...] after Dot Hill’s receipt of such statement from
NetApp, then there will be a day-for-day delay in the Payment Term for the amount due from NetApp
that is based on such statement which will be
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equal to the number of days that such invoice had been issued late by Dot Hill, i.e., the number of
days beyond [...***...] for which such invoice was issued late by Dot Hill.
6.3 Payments. All payments of amounts due and payable to Dot Hill under this License
Agreement shall be made: (i) via electronic transfer in accordance with instructions which will be
supplied by Dot Hill to NetApp, (ii) in United States dollars, and (iii) except as permitted in
Section 6.4 below, without any set-off or deduction of any kind or nature, notwithstanding any
claim which NetApp may assert against Dot Hill. The receipt or acceptance by Dot Hill of any
statements or of any payments in respect of any amounts due and payable to Dot Hill under this
License Agreement shall not preclude Dot Hill from questioning the correctness of such amounts at
any future time. NetApp will notify Dot Hill promptly in writing in the event that NetApp
discovers any inconsistencies, mistakes or errors which have been made in the statements submitted
or payments made, and provide to Dot Hill at such time all relevant information with regard thereto
in order to permit correction of such inconsistencies, mistakes or errors. NetApp will make
appropriate payment to Dot Hill therefor within [...***...] of NetApp’s provision of written notice
thereof to Dot Hill.
6.4 Taxes. All payments made by NetApp under this License Agreement shall be made free and
clear of and without deduction or withholding for or on account of any taxes unless such deduction
or withholding is required by applicable law, in which case NetApp shall (a) withhold the legally
required amount from payment, (b) remit such amount to the applicable taxing authority, and (c)
within [...***...] of payment, deliver to Dot Hill original documentation or a certified copy
evidencing such payment of tax. In the event that NetApp does not provide evidence of payment of
withholding taxes in accordance with the preceding sentence, NetApp shall be liable to and shall
reimburse Dot Hill for the tax withheld from payment to Dot Hill. In determining the amount of tax
to withhold, NetApp shall give due regard to all applicable international laws, including income
tax treaties and/or protocols.
6.5 Interest. All undisputed amounts payable by NetApp to Dot Hill which are paid more than
[...***...] after their applicable due date shall bear interest in an amount equal to [...***...], computed
from the original date due until such overdue amounts are paid.
6.6 Planning Reports. NetApp shall provide to Dot Hill, prior to the end of each NetApp
fiscal quarter occurring within the period beginning on the Effective Date and ending on March 31,
2011, with a non-binding report setting forth a description and quantities of each of the
Royalty-Bearing Items that NetApp and NetApp DCMs expect to sell, distribute or otherwise make
available to third parties during each NetApp fiscal month in the upcoming NetApp fiscal quarter,
together with a calculation of royalties anticipated to become due to Dot Hill under this License
Agreement for each of such Royalty-Bearing Items. Dot Hill acknowledges that the planning reports
provided to it by NetApp under this License Agreement may contain Confidential Information of
NetApp
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and, therefore, such reports will be subject to the confidentiality provisions in Section 8 of
this License Agreement.
6.7 Other Information. At least [...***...] prior to first customer shipment of any new NetApp
product that incorporates or any makes use of Dot Hill Technology in each such product, NetApp
shall disclose in writing to Dot Hill: (i) details of the major elements of Dot Hill Technology
incorporated or used in each such new NetApp product and (ii) the names, addresses and contact
information of all third parties that have used Dot Hill Technology to make or develop each such
new NetApp product.
7. Books and Records. NetApp and its Affiliates shall keep complete and accurate books of account
and records relating to the subject matter of this License Agreement, including all transactions
relating to the rights and licenses granted and amounts due and payable to Dot Hill under this
License Agreement. Without limiting the generality of the foregoing, NetApp and its Affiliates
shall make available to Dot Hill, without restriction, reports and information necessary for Dot
Hill to verify the transactions relating to the rights and licenses granted and all amounts due and
payable to Dot Hill under this License Agreement hereunder, including all information necessary to
verify the statements required to be delivered by NetApp pursuant to Section 6 of this License
Agreement. During the period beginning on the Effective Date and ending on March 31, 2011, and for
a period of [...***...] thereafter, Dot Hill and/or its duly authorized agents shall have the right,
upon [...***...] prior written notice to NetApp and at Dot Hill’s expense, to examine and/or audit said
books of account and records at NetApp’s and NetApp’s Affiliates’ place of business to determine
the accuracy and completeness of the statements and payments provided by NetApp under this License
Agreement. If, however, any such examination or audit discloses that NetApp owes any amounts to
Dot Hill in excess of [...***...] of the amounts previously paid to Dot Hill, then NetApp shall
immediately pay such deficiency, plus interest thereon in the amount provided for in Section 6.5,
together with all reasonable costs for such examination and collection thereof which have been
incurred by Dot Hill.
8. Confidentiality
8.1 General Obligations. In connection with a Party’s activities under this License
Agreement, each Party may be supplying or disclosing to the other Party, in confidence, certain
Confidential Information. All Confidential Information which is owned by a disclosing Party shall
be and remain the sole and exclusive property of the disclosing Party. Each Party agrees to (i)
maintain all of the Confidential Information of the disclosing Party in the strictest of confidence
and (ii) except as expressly permitted in Section 8.2 of this License Agreement, not disclose or
permit or aid in the disclosure of any portion of the disclosing Party’s Confidential Information.
Each Party shall not, except to perform its obligations or exercise its rights in a manner
permitted under this License Agreement, use the Confidential Information for any purpose
whatsoever.
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8.2 Disclosure of Dot Hill Technology
(i) Written Confidentiality Agreements. Prior to NetApp’s provision of any Dot Hill
Technology to any NetApp DCM or other third party, NetApp shall enter into a written
confidentiality agreement that requires such NetApp DCM or other third party to treat such Dot Hill
Technology as Confidential Information of Dot Hill and in a manner consistent with the sublicense
rights granted in Section 3(d) (and within the proper scope of the permitted rights described in
Section 3(b)), the confidentiality obligations of NetApp is Section 8.1 above.
(ii) Limited Scope of Disclosure. NetApp shall not disclose any Dot Hill Technology to any
third party without obtaining the prior written approval of an authorized representative of Dot
Hill, unless: (i) such disclosure is made for the purpose of: (a) enabling a third party to work
with a NetApp DCM to have such NetApp DCM make Products for sale to NetApp, or (b) permitting a
third party to develop for NetApp enhancements to or derivative Products; and (ii) such third party
has a strict need to know such Dot Hill Technology in order to perform its obligations associated
with or related to such purpose. This obligation shall not prevent or restrict NetApp’s right to
use or disclose the Dot Hill Technology in a manner that is consistent with the (1) license rights
granted by Dot Hill and related license restrictions in Section 3 of this License Agreement and (2)
confidentiality and other obligations in Section 8 of this License Agreement. Notwithstanding
anything to the contrary, NetApp shall have no right to provide, distribute or disclose during the
Time Commitment Period any Dot Hill Technology to any Dot Hill Competitor for the purpose of
producing [...***...], without first obtaining a separate written approval from an authorized
representative of Dot Hill to do so, and no approval or permission shall be deemed to have been
given by Dot Hill under or by virtue of this Section 8.2(ii) to permit NetApp to do so.
(iii) Communication of Information. Upon request by Dot Hill, NetApp will: (i) provide Dot
Hill with redacted copies of all existing confidentiality agreements then in effect with all such
third parties that cover the use of such Confidential Information, including any redacted
confidentiality agreements with any NetApp DCMs; and (ii) reasonably cooperate with Dot Hill in
actions undertaken by Dot Hill to enforce the provisions of any existing confidentiality agreements
which cover Confidential Information of Dot Hill. NetApp may redact any confidentiality agreement
to be provided to Dot Hill under this Section 8.2(iii) for the purpose of protecting the
confidential information of third-party suppliers, current and future unannounced NetApp products,
confidential NetApp product roadmaps, and confidential supply chain information. For the avoidance
of doubt, this ability of NetApp to redact information shall not provide to NetApp any right to
redact information which details the specific Confidential Information of Dot Hill disclosed to
such recipients.
The parties acknowledge that, prior to the Effective Date, Dot Hill has made a written request to
NetApp for it to: (a) disclose the names, addresses and contact information
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of all third parties which have received any RFQ Information and/or DH Engineering Information, as
such terms are defined in the Development and Supply Contract; (b) provide Dot Hill with copies of
all existing confidentiality agreements then in effect with all such third parties that cover the
use of such RFQ information and/or DH Engineering Information; and (c) inform Dot Hill of any
suspected or know misuse of any such RFQ Information and/or DH Engineering Information by any such
third parties. NetApp hereby agrees to provide each of these items to Dot Hill on or about October
5, 2007.
Also, after the Effective Date NetApp will notify Dot Hill immediately in writing of: (1) any
suspected or known misuse of any Confidential Information of Dot Hill by NetApp or any third
parties and/or (2) any breach or violation by NetApp or any of its Affiliates of Section 8 of this
Agreement. Such notice will occur immediately after any information of such suspected or known
misuse is brought to NetApp’s attention and will include all known details thereof.
8.3 Exceptions to Confidentiality Obligations. The confidentiality obligations in Sections
8.1 and 8.2 shall not apply in respect of any information to the extent to which it:
(i) is in the public domain at the time of the disclosing Party’s communication to the
receiving Party;
(ii) enters the public domain through no fault of the receiving Party after the time of the
disclosing Party’s communication thereof to the receiving Party;
(iii) was rightfully communicated by a third party to the receiving Party free of any
obligation of confidence;
(iv) is independently developed by a Party without access to and use of the other Party’s
Confidential Information;
(v) is required to be disclosed by law, regulation, governmental authority, national stock
exchange or national listing system rule or regulation;
(vi) is required to be disclosed by a court order provided, however, that if the receiving
Party seeks disclosure of such information, it shall provide the disclosing Party with written
notice thereof and the opportunity to seek a protective order or seek confidential treatment of any
such information be to disclosed, if applicable, and, provided further, that such Party only
discloses what is required to be disclosed;
(vii) pertains to the terms and provisions of this License Agreement and is disclosed in
confidence to a Party’s accountants, bankers, and financial and/or legal advisors who are under a
duty to maintain such information in confidence; and/or
(viii) is necessary to enforce the terms of this License Agreement.
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In connection with any proposed filing of this License Agreement with the Securities and Exchange
Commission or other regulatory body, the Parties will work in good faith to request promptly, and
in a manner consistent with a Party’s then-existing filing obligations therewith, confidential
treatment for sections of this License Agreement that qualify for such confidential treatment.
9. No Assignment. Neither Party shall assign any of its rights nor delegate any of its obligations
under this License Agreement to any other party, whether by operation of law or otherwise, without
first obtaining the prior written consent of the other Party. Notwithstanding the foregoing, a
Party hereto may assign this License Agreement, upon written notice to the other party, to a
successor-in-interest to all or a majority of its outstanding voting securities or to a purchaser
of all or substantially all of its assets provided, however, that: (1) any such assignment of this
License Agreement to such successor-in-interest or purchaser, as the case may be, is made on a
simultaneous basis with an assignment to such same successor-in-interest or purchaser, as the case
may be, of the Development and Supply Contract, (2) such successor-in-interest or purchaser, as the
case may be, agrees in writing to abide in all respects with the assigning Party’s existing and
future duties and obligations under both this License Agreement and the Development and Supply
Contract, and (3) in the case of a situation involving a potential or actual successor-in-interest
to all or a majority of its outstanding voting securities of NetApp or a potential or actual
purchaser of all or substantially all of its assets of NetApp, any such successor-in-interest or
purchaser, as the case may be, is not a Dot Hill Competitor. Any attempted assignment or
delegation in violation of the foregoing shall be null, void and ineffective from inception. The
rights and obligations of this License Agreement shall inure to and be binding upon each Party’s
respective permitted successors-in-interest and assigns.
10. TERMINATION RIGHTS. A Party will have the right to terminate this License Agreement in the
event the other Party materially breaches any material provision of this License Agreement or the
Development and Supply Contract, and fails to correct such breach within [...***...] after receiving
written notice thereof. Any such notice shall specify with particularity such breach and the fact
that the License Agreement may be terminated if such breach remains uncured. If this notice has
been sent and the breach in such written notice remains uncured, then this License Agreement can be
terminated by the Party that provided such written notice through its submission of a separate
written letter of termination to the other Party, which termination will become effective on the
date specified in such separate written letter of termination. Upon any termination of this
License Agreement in accordance with and subject to the provisions of this Section 10, all of the
rights and licenses granted by Dot Hill in this License Agreement shall immediately terminate.
Termination of this License Agreement for any reason shall not affect the rights and obligations of
the parties accrued through, up to and/or prior to the effective date of such termination.
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11. Governing Laws; Escalation; Arbitration
11.1 Governing Laws. This License Agreement shall be governed by the laws of the State of
California, determined without regard to any conflict of laws provisions that would result in the
application of the laws of a different state.
11.2 Escalation. The Parties agree that any material dispute between the Parties relating to
this License Agreement will be escalated to a panel of two (2) senior executives, one each from Dot
Hill and NetApp. Either Party may initiate this proceeding by notifying the other Party pursuant
to the notice provisions of this License Agreement. Within [...***...] from the date of receipt of the
notice, the Parties’ executives shall confer (via telephone or in person) in an effort to resolve
such dispute. In the event the executives are unable to resolve such dispute within [...***...] after
the submission to them, then, upon the written request of a Party, such dispute may be settled by
means of arbitration as provided below. Each Party’s executives shall be identified by written
notice to the other Party, and may be changed at any time by written notice pursuant to the notice
provisions of this License Agreement.
11.3 Arbitration. Any dispute between the Parties named in this License Agreement that is not
resolved by escalation shall be settled by arbitration under the then-current rules of the Judicial
Arbitration and Mediation Services (“JAMS”), including the right of either Party to conduct
discovery in accordance with the laws of the State of California. The site for any arbitration
proceeding shall be Santa Xxxxx County, California. The Parties shall agree and select a single
arbitrator. The arbitrator so chosen shall be knowledgeable in the field of computer hardware and
software, and in the field of commercial law. The decisions of the arbitrator shall be deemed
final, without appeal provided, however, that each Party may seek judicial resolution of any issue
involving such Party’s Intellectual Property Rights or Technology and such judicial resolution
shall take precedence over any decision of the arbitrators. All questions of law shall be decided
in accordance with the laws of the State of California. In the event that one Party breaches any of
its obligations under this License Agreement, in addition to all other remedies provided in this
License Agreement, the prevailing Party shall be entitled to all costs and expenses of enforcement
reasonably incurred as a result of said breach, including arbitration costs, court costs and
reasonable attorney’s fees.
12. Intellectual Property Indemnification
12.1 Indemnification Obligations. Subject to the terms, conditions and limitations set forth
in this License Agreement, Dot Hill shall indemnify, defend (or at its option settle) and hold
harmless NetApp and NetApp DCMs (each a “NetApp Indemnified Party”) from and against any third
party claim, suit or proceeding brought against a NetApp Indemnified Party to the extent such
claim, suit or proceeding is based upon an allegation of misappropriation of any trade secret, or
infringement of any patent or copyright, with respect to the permitted use of Dot Hill Technology
in accordance with the license rights granted in this License Agreement, by such NetApp Indemnified
Party.
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12.2 Conditions to Indemnification Obligations. Dot Hill’s indemnification obligations in
Section 12.1 are conditioned upon all of the following: (i) immediately after its receipt thereof,
the NetApp Indemnified Party shall inform Dot Hill in writing of any claim, suit or proceeding that
is covered by Dot Hill’s indemnification obligations in Section 12.1 above; (ii) each NetApp
Indemnified Party must give Dot Hill sole and complete authority to defend and/or settle each such
claim, suit or proceeding; and (iii) each NetApp Indemnified Party shall give Dot Hill full and
proper information and assistance, at Dot Hill’s expense, to permit Dot Hill to evaluate, defend
and/or settle each such claim, suit or proceeding. Dot Hill shall not be liable for any costs or
expenses which are incurred without its written authorization. Each NetApp Indemnified Party shall
not enter into any settlement of any claim, suit or proceeding covered by Dot Hill’s
indemnification obligations in Section 12.1 above and which entails any obligation on the part of
Dot Hill, without obtaining the prior written consent of Dot Hill.
12.3 Certain Remedies. Following notice of any actual or threatened claim, suit or proceeding
that is covered by Dot Hill’s indemnification obligations in Section 12.1 above, Dot Hill may, at
its sole option and discretion: (i) procure for any NetApp Indemnified Party the right to continue
to use Dot Hill Technology in accordance with the license rights that are granted in this License
Agreement, or (ii) provide a workaround to a NetApp Indemnified Party that will resolve such claim,
suit or proceeding provided that such workaround does not adversely affect the form, fit, function,
operation or reliability of the Product that is made with the use of such Dot Hill Technology.
12.4 Limitation of Liability. Notwithstanding the foregoing, Dot Hill shall not assume any
liabilities or obligations for any claim(s) of misappropriation or infringement covering: (i) any
items of technology not delivered by Dot Hill; (ii) any items of technology not developed by Dot
Hill or Dot Hill’s licensors; (iii) any combination of Dot Hill Technology with any technology,
hardware, software and/or firmware not supplied by Dot Hill, provided that the combination is the
object of such claim; (iv) any features or functions in Dot Hill Technology developed at the
direction of NetApp based on specific written input that is given by NetApp through a formal change
control process or through a written approved change to the specifications for Products; and/or (v)
any modifications made to Dot Hill Technology after its delivery by Dot Hill, provided that such
claim extends only to such modifications, as opposed to any underlying unmodified Dot Hill
Technology that has been provided by Dot Hill. The limitation in Subsection 12.4(iii) above shall,
however, not apply to that portion of the combination that contains Dot Hill Technology.
12.5 Exclusive Remedy. THE FOREGOING IS THE ENTIRE EXCLUSIVE OBLIGATION OF DOT HILL, AND THE
SOLE AND EXCLUSIVE REMEDY OF EACH INDEMNIFIED PARTY, FOR ANY ACTUAL OR THREATENED MISAPPROPRIATION
OR INFRINGEMENT CLAIMS, SUITS AND/OR PROCEEDINGS MADE AGAINST A NETAPP INDEMNIFIED PARTY WITH
RESPECT TO DOT HILL TECHNOLOGY.
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13. Limited Liability. EXCEPT FOR ANY FAILURE TO COMPLY WITH THE LICENSE OR OWNERSHIP RIGHTS OR
CONFIDENTIALITY PROVISIONS IN THIS LICENSE AGREEMENT, IN NO EVENT SHALL EITHER PARTY BE LIABLE FOR
ANY SPECIAL, CONSEQUENTIAL, INDIRECT, EXEMPLARY OR INCIDENTAL DAMAGES HOWEVER CAUSED, AND WHETHER
FOR BREACH OF WARRANTY, BREACH OF CONTRACT, REPUDIATION OF CONTRACT, TERMINATION, NEGLIGENCE OR
OTHERWISE, EVEN IF A PARTY SHALL HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THIS
LIMITATION SHALL, HOWEVER, NOT APPLY TO ANY ROYALTIES THAT ARE OR BECOME DUE AND PAYABLE HEREUNDER.
THE PARTIES ACKNOWLEDGE AND AGREE THAT THE AMOUNTS PAYABLE UNDER THIS LICENSE AGREEMENT HAVE BEEN
ESTABLISHED BASED UPON THESE LIABILITY LIMITATIONS, AND AGREE THAT THESE LIMITATIONS SHALL APPLY
NOTWITHSTANDING THE FAILURE OF ANY ESSENTIAL PURPOSE OF ANY LIMITED REMEDY. EXCEPT FOR ANY FAILURE
TO COMPLY WITH THE CONFIDENTIALITY PROVISIONS IN THIS LICENSE AGREEMENT, DOT HILL’S MAXIMUM
LIABILITY UNDER THIS LICENSE AGREEMENT, HOWEVER ARISING, SHALL IN NO EVENT EXCEED [...***...]. IN NO
EVENT SHALL THIS LICENSE AGREEMENT BE CONSTRUED SO AS TO REDUCE ANY OF THE PROPRIETARY RIGHTS OF
DOT HILL.
14. Disclaimer of Warranties. DOT HILL HEREBY DISCLAIMS ALL WARRANTIES, WHETHER EXPRESS, IMPLIED,
STATUTORY OR OTHERWISE, WITH RESPECT TO ALL ITEMS LICENSED UNDER THIS LICENSE AGREEMENT. ALL SUCH
ITEMS ARE PROVIDED “AS IS” BASIS AND WITHOUT ANY WARRANTIES. ANY USE OF SUCH ITEMS IS AT THE
RECIPIENT’S RISK. DOT HILL ALSO DISCLAIMS THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A
PARTICULAR PURPOSE AND NON-INFRINGEMENT OF THIRD PARTY RIGHTS WITH RESPECT TO ALL OF THE ITEMS
PROVIDED UNDER THIS LICENSE AGREEMENT.
15. Severability and Waiver
15.1 Severability. If any provision of this License Agreement shall be found to be invalid,
illegal or unenforceable, then, the Parties will negotiate a replacement for such provision which
will be consistent with the original intent of the Parties, but will be valid, legal and
enforceable in all respects. If this is not possible, then notwithstanding the same, this License
Agreement shall remain in full force and effect, and such provision shall be deemed stricken to the
extent if the provisions of this License Agreement can be maintained in a manner consistent with
the Parties’ original intent and purpose of this License Agreement.
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15.2 Waiver. Any and all waivers of any of the provisions contained within this License
Agreement must be in writing and signed by an authorized representative of the Party to whom such
waiver is sought. The failure of either Party to enforce, at any time or for any period, any
provision of this License Agreement shall not be deemed or construed to be a waiver of the
provision or of the right to require subsequent enforcement of that or any other provision.
16. Compliance with Laws and Regulations
16.1 Export Controls. Export of technical data, Confidential Information, software and
products is subject to compliance with the United States Export Administration Act of 1979 and the
Export Administration Amendment Act of 1985, and the Export Administration Regulations adopted and
administered by the United States Department of Commerce (collectively, the “Export Controls”). To
the extent required under such Export Controls, NetApp agrees to obtain and to inform third parties
of the obligation to obtain a validated or general license, as the case may be prior to any such
export and to identify to Dot Hill, as appropriate, their names and locations.
16.1.1 NetApp understands its obligations to report all matters relating to any potential
violation of the United States Foreign Corrupt Practices Act encountered in any performance under
this License Agreement to the other, according to the notice provisions of this License Agreement.
16.1.2 NetApp understands that deliveries of technical data, Confidential Information,
software and products to Sudan, Syria, Cuba, Iran and North Korea may be prohibited or
substantially restricted and that this prohibition or restriction may change from time to time, as
reflected at xxxx://xxx.xxxxxxx.xxx/xxxx.
16.1.3 NetApp understands that deliveries of technical data, Confidential Information,
software and products to certain organizations may be prohibited or substantially restricted and
that this prohibition or restriction may change from time to time, as reflected at
xxxx://xxx.xxx.xxx/xxx (See part 744).
16.1.4 NetApp understands that deliveries of technical data, Confidential Information,
software and products to certain organizations or individuals listed in the Table of Denial Orders
(“TDO”) may be prohibited or substantially restricted and that this prohibition or restriction may
change from time to time, as reflected at xxxx://xxx.xxx.xxx.xxx/XXX/0_xxxxxx.xxx).
16.1.5 NetApp understands that deliveries of technical data, Confidential Information,
software and products may be subject to certain required record keeping requirements, including
those recordkeeping requirements outlined at xxxx://xxx.xxx.xxx.xxx/XXX/Xxxxx0.xxx.
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16.1.6 NetApp understands its obligations to report all matters relating to any potential
violation of the United States Anti-Boycott Law encountered in any performance under this License
Agreement to the other, according to the notice provisions of this License Agreement.
16.2 Foreign Corrupt Practices Act. The Parties are subject to the laws and regulations of
the United States relating to the Foreign Corrupt Practices Act (“FCPA”). Neither Party shall pay
any money, gift or any other thing of value to any person for the purpose of influencing any
official governmental action or decision affecting this License Agreement or with the intention of
obtaining or maintaining any business related to this License Agreement, while knowing or having
reason to know that any portion of such money, gift or thing will, directly or indirectly, be
given, offered therefore to: (i) an employee, officer or other person acting in an official
capacity for any government or its instrumentalities to influence any such official governmental
action or decision; or (ii) any political party, party official or candidate for political office
to influence any such official governmental action or decision. Each Party shall maintain books,
records, and systems of accounting and control adequate to insure that assets and operations are
accounted for and that the business of each Party under this License Agreement is carried out
according to the directions of their respective executive officers.
16.3 Assurances and Compliance. Each Party shall provide the other with the assurances and
official documents that may be requested to verify, where applicable, its compliance with the
Export Controls, FCPA, etc. To the extent applicable to the activities to be conducted by a Party
under this License Agreement, actions by a Party which violate the Export Controls, FCPA, etc.
shall be deemed to be material breaches of this License Agreement and may result in civil or
criminal penalties.
16.4 Export Control Classification. If Dot Hill Technology is required to be classified for
export control classification purposes, then Dot Hill will work with NetApp to establish an
accurate export control classification number for the Dot Hill Technology that is provided by Dot
Hill to NetApp under this License Agreement.
17. Notices. Any notice given under this License Agreement by NetApp or Dot Hill shall be in
writing and sent by registered or certified, return receipt requested, mail to the business address
for Dot Hill or NetApp, respectively, that is set forth in the introductory paragraph to this
License Agreement or such other business address as Dot Hill or NetApp may later designate for
itself by written notice in accordance with the provisions of this Section 17. For NetApp, any
such notice shall be directed to the Vice President of Supply Chain Management and the General
Counsel of NetApp. For Dot Hill, any such notice shall be directed to the President & CEO, and the
Chief Financial Officer, of Dot Hill. Notice shall be deemed given three (3) business days after
being sent as prescribed above.
18. Effect of License Agreement on Development and Supply Contract. The terms and conditions in
this License Agreement shall supersede and replace in their entirety the provisions of Sections
11.1 (“NetApp License Rights and Restrictions”), 11.3 (“No Other Rights Granted”), 11.4 (“Future
Desired License Rights”), 11.6
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(“Use of Manufacturing Lines”), 11.7 (“License for Power Supplies”) and 13 (“Escrow”) of the
Development and Supply Contract. If there is a conflict or inconsistency between the provisions of
this License Agreement and those of the Development and Supply Contract, such conflicting or
inconsistent provisions contained in this License Agreement shall take precedence and prevail over
such conflicting or inconsistent provisions contained in the Development and Supply Contract.
19. Remedies. No right or remedy conferred upon either Party under this License Agreement shall be
exclusive of any other right or remedy that such Party may have at law, equity or otherwise and any
such right or remedy shall, to the extent permitted by law, be in addition to any other right or
remedy which a Party may have.
20. Survival. The provisions contained in Sections 1 (“Definitions”), 3(e) (“License
Restrictions”), 3(f) (“No Other Rights Granted”), 4 (“Ownership Rights”), 6 (“Royalties;
Statements; Payments; Taxes; Interest; Other Reports”), 7 (“Book and Records”), 8
(“Confidentiality”), 9 (“No Assignment”), 11 (“Governing Laws; Escalation; Arbitration”), 12
(“Intellectual Property Indemnification”), 13 (“Limited Liability”), 14 (“Disclaimer of
Warranties”), 15 (“Severability and Waiver”), 16 (“Compliance with Laws and Regulations”), 17
(“Notices”), 18 (“Effect of License Agreement on Development and Supply Contract”), 19
(“Remedies”), 20 (“Survival”), 21 (“Headings and Subheadings”), 22 (“Advice of Legal Counsel;
Construction”), 23 (“Counterparts; Facsimile Transmissions”) and 24 (“Entire Agreement”) of this
License Agreement shall survive its expiration or earlier termination.
21. Headings and Subheadings. Each Party acknowledges and agrees that heading and subheadings used
in this License Agreement have been inserted for the purpose of convenience in referring to its
provisions and, therefore, they shall not be used to interpret or construe any of the provisions of
this License Agreement.
22. Advice of Legal Counsel; Construction. Each Party acknowledges and represents that, in
preparing and negotiating this License Agreement, it has had the opportunity to seek advice with
respect to its rights and obligations under this License Agreement from legal counsel and that the
provisions of this License Agreement shall not be construed against either Party by virtue of its
drafting or preparation. As used herein, the word “including” shall not be deemed to be a word of
limitation, but instead shall be deemed to be followed by the words “without limitation.”
23. Counterparts; Facsimile Transmissions. This License Agreement may be executed in counterparts,
each of which shall be deemed an original and all of which together shall constitute a single
instrument. Each Party acknowledges and agrees that such executed counterparts may be delivered by
a Party to the other Party through the use of facsimile transmission or electronically through the
submission of pdf files.
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24. Entire Agreement. This License Agreement constitutes the entire agreement between the Parties
as to its subject matter and supersedes and replaces all prior
agreements, letters of intent and/or other communications, whether in written or verbal form,
between the Parties as to its subject matter. This License Agreement may be changed only in a
writing that is signed by authorized representatives of both Parties.
IN WITNESS WHEREOF, the Parties through their duly authorized representatives have
executed this License Agreement to become effective as of the last signature date which is set
forth below.
| DOT HILL SYSTEMS CORP. | NETWORK APPLIANCE, INC. | |||||||||
By:
|
/s/ Xxxx X. Xxxxxxxxxxx | By: | /s/ Xxxxxxx X. Xxxx | |||||||
Name:
|
Xxxx X. Xxxxxxxxxxx | Name: | Xxxxxxx X. Xxxx | |||||||
Title:
|
President & CEO | Title: | Vice President, Supply Chain Management | |||||||
Date: |
October 1, 2007 | |||||||||
| Date: | October 1, 2007 | |||||||||
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Exhibit A
List of Dot Hill Technology
[...***...]
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