Participant agrees to comply with the following:

Company hereby applies to participate in the “SNIA Swordfish™ Conformance Test Program” (“Program”) with respect to testing SNIA Swordfish™ enabled products. This Application and Agreement (“Agreement”) will become a legally binding agreement upon acceptance by SNIA.

Company requests conformance testing under the Program for the products submitted by Company.

Basic Terms Used:

In-house Testing: Conformance testing that is performed by Company personnel (or company designated personnel) at Company’s designated facility.

Onsite Testing: Conformance testing that is performed by Company personnel (or company designated personnel) at a SNIA facility, including SNIA SM Lab or Innovation Labs.

Company agrees to comply with the following terms and conditions:

1. Conformance Testing Requirements. Company agrees that SNIA determines and oversees Program participation, fees, eligibility for participation, technical matters, test suites, product submissions, the issuance of Notices of Conformance, and all conformance testing requirements, interpretations and any other matters related to the Program.
2. Fees. The fees for the Program testing are stated on SNIA’s website. Fees are subject to change without notice and are non-refundable.
3. Confidentiality. Participants in the Program may be exposed to competitors’ equipment or information that is proprietary and sensitive.
   1. Company, Company employees, and Company contractors MUST NOT disclose any other company’s information submitted under the Program, which is provided in a tangible form and marked as “CONFIDENTIAL” or the like, including but not limited to interoperability problems or test results (“Confidential Information”), to third parties, press, or analysts without that other company’s prior written authorization.
   2. Company, Company employees, and Company contractors must not disclose to any other Company employees or contractors (except those employees or contractors that have signed an agreement containing nondisclosure provisions and have a “need to know”) any other Company’s Confidential Information.
   3. SNIA will use reasonable care to maintain the confidentiality of Confidential Information submitted under the Program, if the information is designated “CONFIDENTIAL” by the submitting party in writing when submitted. SNIA will use reasonable care to maintain the confidentiality of an unannounced Company product that is submitted for test, assuming that the product is designated in writing as “CONFIDENTIAL” by the Company. SNIA will use reasonable care not to disclose any information regarding the failure of Company products to pass the Program tests.
   4. SNIA will not be liable for disclosures by persons who are not its employees or paid independent contractors.
4. Fees. The fees for the Program testing are stated on SNIA’s website. Fees are subject to change without notice and are non-refundable.
5. Confidentiality. Participants in the Program may be exposed to competitors’ equipment or information that is proprietary and sensitive.
6. If the Participant provides Information to contractors, Participant agrees that those contractors will be under obligations of confidentiality with respect to the Information that are at least as restrictive as this Agreement.
7. Should a Participant send a contractor to an SM Lab event or activity, the contractor may not use the event or activity to promote their company or services at the event.
8. The confidentiality obligations of the Participant herein will not apply beyond one (1) year from the date Information is present in SM Lab, nor will such obligations apply to any Information which (a) is now or hereafter becomes generally known or available in the public domain through no fault of the Participant, (b) is knowingly furnished to others by its owner without restrictions on disclosure, (c) is received from a third party not under obligation to treat the Information as confidential, or (d) is independently developed by or already in the possession of Participant.
9. Participant authorizes the SNIA to publish on its public or private website, or to make available to prospective program participants, these details about any software or equipment it deploys in the SM Lab: Make, Model and version(s) of Program-relevant  API supported, e.g. SNIA Swordfish. Participant may request in writing that the Make and Model of unreleased software or equipment be kept confidential until such software or equipment is released.
10. Participant personnel may attend SM Lab plugfests. Specific test environments or other exclusive benefits may be created and offered during plugfests; the SM Lab will have no requirement to reenact these environments or benefits outside of the scheduled plugfest.
11. The SM Lab’s infrastructure is physically located within the SNIA Innovation Lab’s facility in Centennial, Colorado. Upon approval by the SMI Governing Board Participant may install devices and servers in the SM Lab, for purposes of Program-relevant interoperability testing. All storage networking devices in the SM Lab, deployed for the purposes of interoperability testing, must be accessible by Participants via a Program-relevant API. Participant must provide the SMI Program Manager with an inventory of the equipment it plans to install prior to shipping any equipment to the SM Lab and prior to removing equipment from the SM Lab. This documentation shall be provided through completion of the Equipment Installation Request Form or Equipment Disposition Form respectively. Participant equipment in the SNIA Innovation Labs that is not participating in an approved Program activity may be powered down, disconnected from networks, moved to storage, or the Participant may be assessed hosting fees.
12. Participants are responsible for ensuring their equipment in the SM Lab is maintained.
13. Participant’s equipment may remain in place at the SNIA Innovation Labs until the end of the SM Lab Program unless the Participant is terminated from the Program, or the Participant withdraws from the Program. In such instances, the Innovation Labs staff will remove the Participant’s equipment from the SM Lab. Participant is responsible for arranging for and covering all costs to have its equipment removed from the Innovation Labs. Except for scheduled upgrades or maintenance, or for unscheduled reasons such as equipment failures or support issues, Participant shall use all reasonable efforts to keep its equipment and providers available on a 24 x 7 basis for the duration of the Program.
14. Equipment vendor Participants are required to provide non-discriminatory access to their implementations. Non-discriminatory access means access to all functionality defined in the Program-specific API specification that has been implemented by the equipment vendor. Functionality over and above the functionality defined in the Program-specific API Specification can be made available at the discretion of the Participant.
15. All physical and virtual servers installed at the SNIA Innovation Labs must have appropriate antivirus programs and operating system critical patches installed and maintained at current levels. The Participant acknowledges and agrees that the SNIA Innovation Labs staff may audit SM Lab Program servers to ensure that OS patches and antivirus software updates are current. Participants who do not maintain antivirus software and OS patch levels current may have their servers disconnected from the network until the condition is corrected.
16. Participant is responsible for all shipping arrangements and shipping costs for equipment shipped between the Participant and the SNIA Innovation Labs.
17. Contractors employed by Participant are eligible to participate in the same manner as Participant’s staff provided that:
18. Participant submits to the SMI Program Manager, in writing, that the contractor is under contract with Participant, and that the contractor will adhere to all Program requirements while participating on behalf of Participant.
19. The contractor may not publicize any technical results of Program activities nor forward any web group content, or share SMI web group content, with anyone except as required to meet Participant’s obligations.
20. The contractor must sign-up for SMI groups using an official e-mail account under Participant’s e-mail domain, i.e., [email protected].
21. If the contractor is contracted by multiple Participating Companies, each communication (email, document posting, etc.) related to the SMI must identify which Participating Company the communication relates to.
22. Contractor may not represent Participant in any official SMI ballot.

The SM Lab and SNIA Innovation Labs reserve the right to schedule the maintenance of equipment and infrastructure devices from time to time. Such maintenance may impact Participant’s ability to access the SM Lab or certain devices.

Participation in the SM Lab does not grant or guarantee access or technical support to vendors’ management interfaces outside of the SM Lab. Please contact vendors individually to discuss their field distribution/access requirements.

Participants wishing to perform tests that are not Program-specific in nature, i.e., stress tests or data path-type interoperability tests, must receive written permission in advance from the Participant that owns the software or device that will be tested in addition to notifying the SM Lab Program Manager.

PROGRAM TERMINATION:

The SMI reserves the right to terminate Participating Company’s participation in the SM Lab, for cause after thirty (30) days written notice of material breach of this agreement by Participating Company without cure. Any disputes that arise regarding participation in the SM Lab or adherence to the guidelines set forth in this Agreement shall be resolved by the SMI Governing Board (“Board”), provided, however, that the Board may not resolve any matter against Participant without first giving Participant thirty (30) days to resolve the problem.

Participant may terminate this Agreement at any time, with or without cause. Notification must be made in writing and faxed or e-mailed to:

SMI Program Manager

SNIA Innovation Labs

5201 Great America Parkway

Suite 320

Santa Clara, CA 95054

E-mail: [email protected]

“Participating Company or Participating Organization,” hereafter referred to as “Participant” wishes to participate in the Programs and Activities offered by or through SNIA’s Innovation Labs (collectively, the “Programs”), which may be accessed remotely or physically at 12500 East Arapahoe Road, Suite C, Cage 54, Centennial, CO 80112 (the “Premises”), and SNIA wishes to allow Participant to participate in such Programs, which may require equipment or software to be installed at Premises.

Now, therefore, for good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties agree as follows:

1. Where applicable these General Terms and Conditions apply in conjunction with any SNIA Program Application and Agreement Form (“A&A”) or SNIA Master Agreement Form executed by Participant. In the event of a conflict between these General Terms and Conditions and an Application and Agreement Form or SNIA Master Agreement Form, these General Terms and Conditions govern.
2. Participant agrees that it assumes the full risk and responsibility of damage to or loss of its equipment while at, or in shipment to, the location of the Program, regardless of the cause thereof. Participant also agrees that it assumes the full risk and responsibility for all claims by its employees, other participants, or attendees for personal injury or property damage to the extent caused by the Participant’s acts, errors, omissions, or operation of Participant’s products, and Participant further agrees to defend, indemnify, and hold SNIA harmless from any and all such claims, provided SNIA provides prompt written notice of such claims to Participant. Participant may control the defense of SNIA with respect to any claims for which Participant has acknowledged the duty to indemnify.
3. Participant agrees that it will not access or use the hardware, software or microcode of any third party for the purposes of reverse-compiling, reverse-assembly, reverse-translating, copying, altering, downloading, distributing, corrupting, disabling, destroying, “hacking,” or interfering with any confidential or proprietary information of that third party to the extent such action violates a copyright, patent, or other proprietary right of that third party. Participant agrees not to access hardware or software to run unauthorized performance or benchmarking tests. In the event of termination or nonrenewal of this Agreement by either party, if the Participant has equipment or software installed on Premises in the Innovation Labs, the Participant shall, within a period of sixty (60) days, recover all its equipment and fully uninstall its software in a non-destructive and non-disruptive manner. SNIA shall cooperate fully in such recovery. The Participant shall be solely responsible for the cost and expenses of removing its equipment. Equipment left at the Premises of SNIA Innovation Labs longer than sixty (60) days is subject to disposal, with all disposal/destruction charges being billed to Participant.
4. BOTH PARTIES EXPRESSLY DISCLAIM ANY AND ALL WARRANTIES, EXPRESS OR IMPLIED, REGARDING THE PROGRAMS, SNIA Innovation Labs, OR PARTICIPANT’S PRODUCTS AND SERVICES, INCLUDING WITHOUT LIMITATION ANY WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NONINFRINGMENT.
5. EXCEPT AS OTHERWISE PROVIDED IN THESE GENERAL TERMS AND CONDITIONS, NEITHER PARTY WILL BE LIABLE TO THE OTHER PARTY FOR ANY INCIDENTAL, CONSEQUENTIAL, INDIRECT, OR SPECIAL DAMAGES, OR ANY DAMAGES RESULTING FROM THE COST OF PROCURING SUBSTITUTE GOODS OR SERVICES, LOST PROFITS, LOSS OF USE, OR LOSS OF DATA, WHETHER OR NOT THAT PARTY HAD ADVANCE NOTICE OF THE POSSIBILITY OF SUCH DAMAGES, HOWEVER CAUSED AND UNDER ANY THEORY OF LIABILITY.