PREAMBLE

Welcome to NetApp Cloud Central. The following Cloud Data Service(s) Terms (“Terms”), with the exception of Cloud Volumes ONTAP set forth the terms and conditions that apply to Services and Software sold or otherwise made available to customers (“Customer”) through NetApp Cloud Central. Further Cloud Volumes ONTAP is governed by the End User License Agreement as set forth below.



CLOUD DATA SERVICE(S) TERMS

1.    DEFINITIONS
1.1.	Cloud Data Service. An as a service offering which a Customer purchases a subscription for a defined term either directly from NetApp, from a NetApp Partner, or through a NetApp Cloud Provider. 
1.2.	Cloud Data Service(s) Subscription. The specified period of continuous time during which Customer is entitled to access and use the Cloud Data Service(s).
1.3.	Customer Data. Data in an electronic form that is uploaded by or on behalf of Customer to the Cloud Data Service(s).
1.4.	Documentation. The technical documentation describing the features and functions of the Cloud Data Service(s).
1.5.	NetApp Cloud Provider. A third party authorized by NetApp to offer or enable the use of the Cloud Data Service(s) as part of such provider’s cloud-based service.
1.6.	Security Incident. A breach of security of the Cloud Data Service(s) leading to accidental or unlawful destruction, loss, alteration, unauthorized disclosure of, or access to, Customer Data in the possession or control of NetApp.
1.7.	Service Data. Data and data elements (excluding Customer Data) collected by a Cloud Data Service systems configuration which, as applicable, pertains to the Cloud Data Service environment, the usage and performance of the Cloud Data Service, and the components managed by the Cloud Data Service.

2.  CLOUD DATA SERVICES
2.1.	Scope of Cloud Data Service(s). NetApp agrees to provide the Cloud Data Service(s) purchased by Customer as set forth in the Documentation during the Cloud Data Service(s) Subscription. Customer may be required to download and install an agent, plug-in or similar software (“Software”) to use the Cloud Data Service. NetApp retains all right, title, and interest in and to the Cloud Data Service(s), including without limitation all software used to provide the Cloud Data Service(s), the Software, and logos and trademarks reproduced through the Cloud Service(s), and these Terms do not grant Customer any intellectual property rights in the Cloud Data Service(s) or any of its components. The Customer is authorized to use the Cloud Data Service(s) for its own internal use, including in support of service offerings Customer may provide its end customers (but, for clarity, not as a stand-alone product or service of Customer). NetApp grants Customer a limited, non-exclusive, non-sublicensable, non-transferable and revocable license to use the Software solely as required to use the Cloud Data Service during the Cloud Data Service(s) Subscription. The Cloud Data Service(s) and Software may include software that is openly and freely licensed under the terms of a public license designated by a third party (“Open Source Software”). Nothing in in these Terms grants Customers rights that supersede those delineated in an applicable license for the Open Source Software.
2.2.	Restrictions. Customer will not, nor will Customer allow any third party to, (a) modify the Cloud Data Service(s) or  Software without NetApp’s prior written approval; (b) publish or provide any benchmark or comparison test results that pertain to the Cloud Data Service(s); (c) reverse engineer, decompile or disassemble the Cloud Data Service(s) or  Software or otherwise reduce either to human-readable form except to the extent required for interoperability purposes under applicable laws or as expressly permitted in open-source licenses;  (d) modify, adapt, or create a derivative work of the Cloud Data Service(s), Software, or Documentation; (e) use the Cloud Data Service(s) or Software in excess of any limitations (e.g. user limits, time limits, capacity limits, free trials) prescribed by NetApp; or (f) remove, conceal, or modify any product identification, proprietary, intellectual property, or other notices in the Cloud Data Service(s), Software and Documentation.
2.3.	Service Data. As between the parties, NetApp retains all right, title and interest in and to Service Data. Without limiting the foregoing, NetApp may collect and use Service Data to provide and improve the Cloud Data Service(s) and NetApp’s other products and services.

3. ACCEPTANCE. If Customer electronically accepts these Terms, Customer agrees that these Terms exclusively govern NetApp’s delivery of the Cloud Data Service(s), unless Customer has a separate applicable written agreement with NetApp which specifically pertains to Cloud Data Service(s). If an individual is accepting these Terms on behalf of another person, company or other legal entity, whether as an employee, contractor, distributor, reseller, partner, agent or otherwise, that individual represents and warrants that it has the full authority to bind them. If Customer does not agree to these Terms do not subscribe or access the Cloud Data Service(s). 

4. DATA
4.1.	Ownership of Customer Data. As between Customer and NetApp, Customer retains all right, title and interest in and to Customer Data. NetApp acquires no rights in Customer Data, other than the rights Customer grants to NetApp hereunder to provide the Cloud Data Service(s) to the Customer.
4.2	Use of Customer Data. NetApp will use Customer Data solely to provide the Cloud Data Service(s) and, if applicable, related support or as otherwise provided by written agreement of the parties.  
4.3.	Disclosure of Customer Data. NetApp will not disclose Customer Data outside of NetApp or its controlled subsidiaries and affiliates except to deliver the Cloud Data Service(s) or to the extent such disclosure is required by applicable law. NetApp will give Customer reasonable notice of a request of a governmental or regulatory body for Customer Data to allow Customer to seek a protective order or other legal remedies (except to the extent NetApp’s compliance with this Section would cause it to violate a court order or other legal requirement). 
4.4.	GDPR Compliance. Article 28(1) of the European Union General Data Protection Regulation (“GDPR”) requires an agreement between a controller and processor, and between a processor and sub processor, that processing of personal data be conducted in accordance with technical and organizational measures that meet the requirements of the GDPR and ensure the protection of the rights of data subjects. Additional terms and conditions applicable to NetApp acting in a role as a Data Processor are set forth at https://www.netapp.com/us/how-to-buy/index.aspx.

5. DATA SECURITY 
5.1.	Security. NetApp will implement reasonable technical and organizational safeguards designed to protect Customer Data against unauthorized loss, destruction, alteration, access, or disclosure. NetApp may modify such safeguards from time to time, provided that such modifications will not materially reduce the overall level of protection for Customer Data. 
5.2.	Security Incident. If NetApp discovers a Security Incident has occurred, NetApp will notify Customer promptly and without delay unless otherwise prohibited by law or otherwise instructed by a law enforcement or supervisory authority. In addition to providing such notification, NetApp will promptly take reasonable steps to mitigate the effects of the Security Incident and to minimize any damage resulting from the Security Incident. Customer must notify NetApp promptly about any possible misuse of its accounts or authentication credentials or any security incident related to the Cloud Data Service(s).

6. ACCEPTABLE USE POLICY. The Customer will not use the Cloud Data Service(s):

a)	In violation of laws or regulations; 
b)	to violate the rights of others; 
c)	to try to gain unauthorized access to or interrupt any service, device, data, account or network; 
d)	in a manner that could negatively impact the Cloud Data Service(s) or impair anyone else’s use of it; or 
e)	use in high-risk, hazardous environments requiring fail-safe performance, including without limitation in the operation of nuclear facilities, aircraft navigation or control systems, air traffic control, or weapons systems, or any other application in which the failure of the Cloud Data Service could lead to severe physical or environmental damages.

7. TRIAL SERVICES AND COMPLIMENTARY SERVICES. NetApp may, in its sole discretion offer a no cost, no obligation trial to the Cloud Data Services(s) ("Trial Service") to its customers. The Trial Service will commence on the initial date of the access or use of the Cloud Data Service(s) and will conclude at the end of the trial period delineated by NetApp, or sooner if (a) the Customer purchases a subscription to the applicable Cloud Data Service(s), or (b) if NetApp terminates Customer’s use of the Cloud Data Service(s) in accordance with these Terms. NetApp may, in its sole discretion, offer Cloud Data Services at no cost to Customers, up to certain limits as described in the Documentation (“Complimentary Services”). Customer acknowledges and agrees that these Terms are applicable and binding upon Customer to Trial Services or Complimentary Services. NOTWITHSTANDING SECTIONS 9 (SERVICE LEVEL AGREEMENT) AND SECTION 11.1 (IP CLAIMS), NETAPP WILL HAVE NO OBLIGATIONS TO DEFEND OR SETTLE IP CLAIMS OR HONOR AN APPLICABLE SERVICE LEVEL WITH RESPECT TO TRIAL SERVICES OR COMPLIMENTARY SERVICES.

8.  BETA SERVICE. From time to time NetApp may make available a Cloud Data Service (or a feature of a Cloud Data Service) that is identified by NetApp as alpha, beta, pre-release, demonstration or preview (a “Beta Service”). Unless otherwise agreed in writing by NetApp, a Beta Service may only be used in non-production environments and not for commercial purposes. Customers using a Be