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. Permission to use test suites for in-house testing. Upon SNIA’s acceptance of this Agreement, Company is granted permission to use, for in-house testing under SNIA copyright and applicable open-source licenses, the currently available SNIA Swordfish™ CTP test suites and supporting documentation (collectively, the “Test Suites”) for the Program year and SNIA Swordfish™ version. Company may self-conduct the tests using the testing process specified in the test suite materials, and it may submit the results specified by the Program online for results verification. Program personnel will review and determine if the tested product conforms to Program requirements. Currently available Test Suites are defined as those test suites which are available per the direction of the SMI Conformance Committee; the Test Suites may comprise a combination of open source and private content. Company agrees that the Test Suites are the property of the SNIA, and may not be distributed to any third parties except for Company contractors that agree in writing to be bound by the terms of this Agreement. Company agrees that upon termination of this Agreement, Company and Company contractors will erase all copies of any private contents within the Test Suites and return or destroy all materials containing the Test Suites. No fee, other than the fees specified in Section 2, will be charged for the in-house use of the Test Suites. Company agrees that the right to use the Test Suites is for development of its products and for test development purposes only.
5. Public Statements of Conformance to Test Suites. Company may not make any public statements or issue any press release relating to its passing or failing the Program tests as a result of in-house testing unless and until a Notice of Conformance has been issued for such testing.
6. Conditions for Test Performed at SNIA Facilities. Company must: (a) be responsible for installation and maintenance of its equipment at SNIA facilities to the level that the equipment is usable by other lab members; (b) be responsible for configuring the equipment under test prior to testing; (c) provide technical support, either at SNIA’s facilities or “on-call” during conformance testing, to resolve any operational issues; (d) provide logistical and administrative support for equipment shipments and test scheduling; (e) follow the prescribed SNIA testing facilities’ processes to ensure all software and equipment installed at SNIA’s testing facility has intrusion and virus protections; (f) provide all equipment and cables necessary for conformance testing at the facility, (g) be responsible for shipping equipment from the facility upon completion of the Program test.
7. Notice of Conformance. A Notice of Conformance will be issued by the Program Administrator upon successful validation of test results under the Program. The Notice of Conformance will specify the name and version number of the specification, and the name of conforming product or conforming products listed in the Request for Conformance Testing form. A Notice of Conformance does not connote or confirm interoperability. Upon request by the company, a hardcopy Notice of Conformance may be postal mailed to the agreement contact hence why contact information is needed. A FAX copy can be provided upon request, and express mailing service is also available if Company provides its shipping vendor account/charging number. Upon issuance of the Notice of Conformance, Company may publicly disclose the test results.
8. SNIA web site listing. Conforming products information will be listed on the public Program Web site if so indicated by the requesting Company. Product listings will be removed from the Program Web site within 10 business days upon written request from the Company to the Program Administrator. Company may request to change a “do not list” election upon written request to the Program Administrator. A submission that has passed Conformance testing that was listed as “confidential” will not be listed by default unless a comment in the submission states the exact date at which it is acceptable to do so, or a written request is made to the Program Administrator.
9. Termination. SNIA reserves the right to terminate Company’s participation in the Program, for cause after thirty (30) calendar days’ written notice of material breach by Company without cure. Any disputes that arise regarding “Providers” or “Client” functionality and passing/failing program compliance tests that are established shall be resolved by the reasonable determination of the SMI Conformance Committee (“Committee”), provided, however, that the Committee may not resolve any matter against Company or its failure to pass any program compliance test without first giving the Company thirty calendar days to resolve the apparent problem or compliance test failure. Examples of “cause” include breach of the confidentiality terms, employee misbehavior, or breach of the terms and conditions of this Agreement. Company may terminate its participation in the Program without cause at any time. Upon termination by either party, Company agrees to erase all copies of the Test Suites and return or destroy all materials containing the Test Suites, and SNIA may remove Company’s listing from SNIA’s Swordfish™ CTP Web site.

10. Appeals Process. The Program will allow appeals for products that do not appear to qualify for Notice of Conformance. The following steps must be followed:

    1. Participate in a conference call with the Program technical staff for a detailed review of the test results. The Program Administrator will schedule this call at the request of Company.
    2. If the conference call does not resolve all questions about why the product did not achieve certification, SNIA, through the Program Administrator, will schedule a visit (at a mutually agreed time) for Company to view the results of the tests performed at the designated SNIA testing facility (for the case where companies have submitted results of In-house Testing, this step may not apply).
    3. If Company believes that there are grounds for appeal after completing steps 1 and 2, Company may submit a formal, written appeal request to the Program Administrator, complete with backup data to document any test results the vendor believes the Program should consider.
    4. Once a formal, written appeal has been submitted, the Committee will evaluate the appeal fairly and in a non-discriminatory manner. The Committee may request whatever additional information or tests from Company and/or the Program it deems necessary and advisable in order to resolve the issue on appeal. The Program Administrator will communicate the decision of the Committee to the Company. Company should be aware that while the Committee makes every effort to act on a timely basis, it may take several weeks before an appeals decision is reached.
    5. The deadline for filing an appeal is thirty (30) days following the notification of a failed test.

    SNIA will use reasonable care to maintain confidentiality of appeals.

11. Dispute Resolution. SNIA Board of Directors will have final and binding authority to resolve any disputes that arise regarding the Program or Program participation.
12. Retention of Risk. Company agrees that it assumes the full risk and responsibility of damage to or loss of its equipment while at, or in shipment to, the designated SNIA testing facility, regardless of the cause thereof.
13. Contact Information. Contact information regarding the Company must be completed and submitted as required by the Test Submission Form.
14. Changes to Program. SNIA reserves the right to amend, expand, curtail or terminate the Program, and SNIA reserves the right to amend this Agreement on 60 days prior written notice.
15. Additional Terms and Conditions. In addition to this Agreement, the “General Terms and Conditions Applicable to all Programs and Activities at the SNIA Innovation Labs” must be executed by Company, and such General Terms and Conditions are incorporated herein by reference.
16. Choice of law. This Agreement will be interpreted and enforced under the laws of the state of California without regard to California conflict of law provisions.

“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. 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.
3. 3. 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.
4. 4. 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.
5. 5. 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.
6. 6. 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.