NUTANIX LICENSE AND SERVICES AGREEMENT

Nutanix is referred to in this Agreement as “Us”, “We” or “Our” and Your organization is referred to as “You or “Your”. This Nutanix License and Services Agreement (“Agreement”) governs Your use of any Products (as defined below) and becomes effective when You (a) issue a purchase order for the Products; (b) execute or accept this Agreement, or (c) access, download, install, or use the Software or Cloud Services.  This Agreement is entered into between You and Nutanix Inc., located at 1740 Technology Dr. Ste. 150, San Jose, CA 95110, United States, if You are contracting in the Americas, or Nutanix Netherlands B.V., located at Mercuriusplein 1, 2132 HA Hoofddorp, The Netherlands, if You are contracting anywhere else in the world or both if applicable.  You represent and warrant that You have the authority to enter into this Agreement on behalf of Your organization.

1.             Definitions.

1.1.          “Affiliates” means any corporation or other business entity which controls, is controlled by or is under common control through the ownership of more than fifty percent (50%) of the outstanding voting stock of the controlled corporation or more than fifty percent (50%) of the equity interest of a non-corporate entity. If You are a public sector entity, an Affiliate is an organization over which You exercise administrative control by applicable laws, regulations or governmental decree.

1.2.         “Certified Hardware” means computer equipment that has been approved by Us as interoperable with Our Software or Cloud Services.  A list of that hardware can be found at https://www.nutanix.com/products/hardware-platforms. Other hardware may be submitted for  Our certification.

1.3.         “Cloud Services” means Our internet-based or hosted offerings. 

1.4.        “Documentation” means the information provided by Nutanix about Our Products found in the documentation section of the Portal (https://portal.nutanix.com/page/documents/list?type=software).

1.5.         “Delivery” means the date on which We make the license key for the Software available to You or when We make the Software or Cloud Services available to You for use.

1.6.        “Entitlement” means Our record of the SKUs, types, quantities or other metrics for Our Products.  We will supply You with a copy of each Entitlement and make it available in the Portal.

1.7.         “Error” means any reproducible failure of the Software or Cloud Services to substantially perform any material function as set forth in the Documentation.

1.8.        “FlexCredits” means the pre-paid credits which can be redeemed for Professional Services.

1.9.        “Partner” means any entity that is authorized by Us to distribute, resell, act as a Service Provider or  provide Our Products to You.

1.10.      “Portal” means Our website that You can access for Support Services, management of Entitlements, and download of Software etc. which can be found at https://portal.nutanix.com.

1.11.        "Previews" means products provided for evaluation, product improvement, demonstration, test or trial purposes, (e.g., alpha, beta, pre-release versions), Previews also include products that are provided free of charge ("No-Charge Products").

1.12.       “Products” means Our Software, Previews, Cloud Services, Support Services, Professional Services and applicable Documentation. 

1.13.       “Professional Services” means consulting, implementation, optimization, training, or certification services related to the Software and Cloud Services.

1.14.      "Service Levels” means Our commitments applicable to the Cloud Services which can be found at https://www.nutanix.com/support-services/product-support/policies. 

1.15.       “Service Provider” means a Nutanix Partner who has entered into an agreement with Nutanix to supply a service and\or software solution which employs the Software or Cloud Services. 

1.16.       “Software” means the Nutanix-branded: a) computer programs specified in the Entitlement, b) Updates and Upgrades provided as part of Support Services, and c) APIs, libraries, utilities, tools, add-ons, license keys and other executables related to the Software or Cloud Services.

1.17.       “SOW” means a document issued by Us that describes the Professional Services.

1.18.      “Subscription Term” means the duration of Your subscription to the Software, Support Services and/or Cloud Services as specified in the Entitlement.

1.19.       “Support Guide” means the Nutanix Worldwide Support Program Guide which can be found at https://www.nutanix.com/content/dam/nutanix/resources/support/nutanix-support-guide.pdf.

1.20.     “Support Policies” means Our Software End of Life (EOL) Policy, Our Versioning & Compatibility Matrix, Our Extended Support Policy, Our Third Party Hardware and Software Policy and Our Return Material Authorization Policy, which can be found at https://www.nutanix.com/support-services/product-support/policies.

1.21.       “Support Services” means Our Software support and maintenance offerings more fully described in the Support Guide.

1.22.      “Update” means either a Minor Release, Maintenance Release or Patch Release as defined in the Support Guide.

1.23.      “Upgrade” means a Major Release as defined in the Support Guide.

1.24.     “Usage Capacity” means the maximum permitted usage of the i) Software based on licensing metrics such as the number of raw CPU cores, raw total flash drive capacity in tebibytes, cores managed, used tebibytes, named users or concurrent users, VMs or VM packs, per node or configured node, percentage of cloud spend, vCPU of each managed database server, per cluster or per vCPU, GB RAM and DR characteristic, per edge instance, or any other applicable licensing metrics; or ii) Cloud Services based on certain metrics, as specified in the Entitlement and described in the applicable Documentation. 

1.25.      “Your Content” means any data, software, applications, content, platforms and services that You introduce into the Products.

2.            Software.

2.1.         License Grant.  We grant You a limited, non-exclusive, non-transferable, worldwide license to download, install and use the Software (in object code form only) and its Documentation for Your internal business purposes only.  The Software is licensed either: (a) independently of hardware nodes, portable between hardware nodes and for a fixed Subscription Term (a “Term Based License”); or (b) for use solely on the hardware node on which it was initially installed and supplied for the life of that hardware node (a “Life of Device License”), or as may be otherwise indicated in Your Entitlement. The licenses for the Software and its Documentation expire when the: (a)Subscription Term ends in the case of Term Based Licenses; or (b) the original hardware node is decommissioned in the case of Life of Device Licenses.  Both Term Based Licenses and Life of Device Licenses are subject to the Usage Capacity Limits. We grant You a license to use Previews for the purposes of evaluation or Our Product Improvement, for Your internal business purposes and within the Usage Capacity. Previews may only be used in non-production environments and not for commercial purposes or the processing of any production data. You acknowledge that Previews may never be generally released.  We also grant You a non-exclusive, non-transferable, non-sublicensable, terminable license to Use the No-Charge Products solely for Your internal purposes.

2.2.        License Restrictions.  You agree not to: (a) exceed the Usage Capacity or otherwise use the Software or its Documentation in breach of this Agreement; (b) transfer, resell, rent, lease, distribute, sublicense or use Software or its Documentation in a service bureau, commercial hosting service or any similar capacity unless as agreed with Nutanix in Your capacity as a Service Provider; (c) disclose the results of any Software benchmark tests or competitive analysis; (d) decompile, disassemble or reverse-engineer any Software, or determine or attempt to determine any source code, algorithms, methods or techniques embodied in the Software, except to the extent expressly required  by applicable law; (e) install or use the Software on (i) any hardware other than Certified Hardware and Nutanix authorized public cloud-based service  offerings; or (ii) grey-market hardware or components; (f) transfer or use any Life of Device Licenses on the hardware node other than that on which it was initially installed and supplied; (g) modify, adapt or create a derivative work of the Software or Documentation; (h) remove, conceal or alter any product identification, copyright or other proprietary notices in the Software or Documentation; (i) assist or encourage any third party to do any of the foregoing, or; (j) use the Products after the expiration of a Subscription Term. We may require, not more than once per year, that You certify to us in writing as to Your then current use\ deployment of Our Products and\or Services, and We reserve the right to conduct reasonable audits, with notice, and in a manner that won’t materially disrupt Your business.

3.            Support Services.

3.1.         General.  Depending on the Software or Cloud Services license type You purchase Support Services are either included in the subscription or available separately for a fee.  We will provide to You the level of Support Services specified in the Entitlement.  Unless otherwise specified in writing, the Support Services will be provided in the English language.

3.2.        Scope of Support Services. We shall: (a) provide You with access to the Portal; (b) provide telephone and web-based Support 24x7 in accordance with the Support Guide and the Support Policies; (c) respond to reported issues  accordance with the priority level ascribed to the Error; (d) address Errors in the form of Updates or Upgrades, workarounds, procedural solutions, correction of Documentation errors, or other remedial measures; and (e) provide You with access to the current versions of released Software, including bug fixes, patches and any generally available Updates and Upgrades.

3.3.        Out of Scope Support Services. Support Services exclude: (a) Software installation; (b) education, training, consulting and Professional Services; (c) integrations with third-party products, modifications or customizations; and (d) Software or Cloud Services that are end-of-life’d and no longer supported as outlined in Our Support Policies.

3.4.       Exclusions.  We shall have no obligation to provide Support Services for: (a) Software or Cloud Services that are not registered in the Portal and validly licensed; (b) any Errors which are attributable to third party products or modifications, alterations or repairs to the Software made by a party other than Us or a party authorized by Us; (c) any Errors which are attributable to the installation, operation or maintenance of the Software or Cloud Services on hardware other than Certified Hardware or not in accordance with the Documentation; or (d) Software which is installed on hardware which is not covered under a valid support contract or hardware that has grey market or second-hand parts installed.  We do not guarantee that Software will be compatible with the hardware You purchased except for Certified Hardware.

3.5.        Your Responsibilities. It is Your responsibility to: (a) register an account with Us at Our Portal, to keep Your account profile up to date and to designate a number of authorized persons who have completed the Nutanix NP certification class (“Technical Personnel”) which will be the preferred contacts for the receipt of Support Services from Us; (b) provide Us with access to Your systems, network and personnel and make available to Us data, information and other materials necessary to perform the Support Services; (c) install Updates as reasonably directed by Us, ensure that current licenses have been obtained for all Software and adhere to all licensing terms and conditions; (d) cooperate with Us to perform any maintenance activities related to the Cloud Services; (e) swiftly notify Us of any Error; and (f) screen first-line technical inquiries and escalate to Us only issues that Technical Personnel have not been able to resolve.

3.6.        Reinstatement of Support.  In the event that You wish to reinstate Support Services for Life of Device Licenses after a lapse period following expiration or termination of the original Support Services term, the applicable support fee for reinstated Support Services will be calculated as follows:  (i) the pro rata Support Services fees that would have been payable at Nutanix’s then applicable annual rate of Support Services for the lapsed Support Services period; and (ii) the Support Services fees for the future period commencing upon the reinstatement of Support Services. 

3.7.        Support Services for NX Branded Hardware.  If You purchase hardware Support Services for Your NX branded hardware, it will be governed by the Hardware Support Services Appendix attached to this Agreement as Appendix 1, including parts replacement for NX. 

4.           Professional Services. 

You have the option to purchase Professional Services which We will deliver in accordance with the terms of this Agreement and an SOW.  We do not do any custom development work.  You shall provide Us with any equipment, software, information, timely decisions, directions and facilities necessary for Us to perform the Professional Services. You grant Us a non-exclusive, worldwide, royalty-free license to use Your intellectual property solely for the purpose of performing the Professional Services.  We grant You a license to use any deliverables provided as part of the Professional Services on the terms specified in Section 2 above.  Any FlexCredits or prepaid Professional Services must be used within twelve (12) months from the purchase date, after which they will automatically expire and are non-refundable.

5.            Cloud Services. 

5.1.         General.  If You purchase Cloud Services, We will make the Cloud Services available to You during the Subscription Term in accordance with the terms of this Agreement, the applicable Entitlement and Documentation. 

5.2.        Service Levels.  The Service Levels will apply to the Cloud Services.  If We fail to meet these Service Levels, Your sole remedy will be the service credits specified in the Service Levels.

5.3.        Access Right and Right to Use. Subject to the terms of this Agreement, We grant You a limited, non-exclusive, non-transferable and revocable right to (a) access and use the Cloud Services and its Documentation for Your internal business purposes only in accordance with this Agreement and the Entitlement for the Usage Capacity and Subscription Term only; and (b) use any applicable Software made available to You in connection with the Cloud Services and in accordance with the Documentation on the terms specified in Section 2 above.

5.4.       Usage Restrictions.  Except as expressly permitted by this Agreement, You will not and have no rights to: (a) use the Cloud Services in excess of the Usage Capacity or otherwise in breach of the Entitlement or this Agreement, (b) use the Cloud Services, the APIs or the Software for service bureau or managed service purposes, or otherwise commercially exploit the Cloud Services unless (i) as agreed with Nutanix in Your capacity as a Service Provider; or (ii) as otherwise explicitly permitted in the Entitlement, (c) publicly communicate, transform, or sublicense the Cloud Services or otherwise assign any rights to the Cloud Services in whole or in part to any third party unless explicitly permitted in the Entitlement, (d) decompile, disassemble or reverse-engineer or determine or attempt to determine any source code, algorithms, methods or techniques embodied in the Cloud Services, the APIs or the Software, except to the extent expressly permitted by applicable law, (e) access or use disabled functions, (f) disclose the results of any Cloud Services benchmark tests or competitive analysis, (g) modify, adapt or create a derivative work based on the Cloud Services, (h) use the Cloud Services for any illegal or fraudulent purposes (i) circumvent any security features; (j) use the Cloud Services in any way that poses security threats or otherwise introduces security or performance vulnerabilities into the Cloud Services, or (k) assist or encourage any third party to do any of the foregoing.

5.5.        Security and Protection of Your Content. If the Cloud Services include the transmission and processing of Your Content by Us, then We will maintain administrative, physical and technical safeguards to protect the security, confidentiality and integrity of Your Content as specified in the Documentation. You are responsible for using and configuring the Cloud Services in such a manner that it will provide an appropriate level of security and protection from unauthorized access to Your Content.

5.6.        License to use Your Content.  By making Your Content available, You grant Us a worldwide, royalty free, non-exclusive license to use Your Content solely to provide the Cloud Services to You.

5.7.        Your Obligations. You are solely responsible for ensuring that the use of the Cloud Services and the use of Your Content by its users is in compliance with this Agreement and all applicable laws.  You represent and warrant that Your use of Your Content in connection with the Products will not violate any third-party rights or Your obligations to any third party. You are responsible for the lawfulness and accuracy of Your Content processed under or in connection with the Agreement. You represent and warrant that You have provided and will continue to provide all notices and obtain any necessary consents under applicable law for Us to lawfully process Your Content for the purposes contemplated by the Agreement. It is Your sole responsibility to provision and control the credentials of Your employees, agents, contractors and other users of the Product.

5.8.       Transmission of Your Content. If the applicable Cloud Services involves the transmission of Your Content, including to a third-party platform, then You are responsible for the transmission of and the security of Your Content to and from the Cloud Services. 

5.9.        Acceptable Use. You shall not use the Cloud Services to: (a) transmit or store any content that may pose threats or otherwise engage in any conduct that may disrupt or damage the operation of the Cloud Services or interfere with any third-party; (b) manage specifically regulated data, including, but not limited to data subject to the Health Insurance Portability and Accountability Act, Basel II, Gramm Leach Bliley Act and Payment Card Industry regulations; (c) conduct any abusive, harassing, slanderous, fraudulent, illegal, or defamatory activity; (d) violate any laws or third-party rights, including any intellectual property rights, personal data and privacy rights; or (e) conduct, directly or indirectly, any activities associated with cryptocurrency mining or similar endeavors. We may temporarily suspend Your rights to access the Cloud Services if You use the Cloud Services outside the scope of this Section 5. 

6.            Proprietary Rights.

6.1.        Our Products.  We and Our licensors own all worldwide right, title and interest in the Products including all related copyrights, trademarks, service marks, patents, trade secrets, know-how, moral rights and all other proprietary rights, including registrations, applications, renewals and extensions of such rights existing anywhere in the world, whether registered or unregistered (“Intellectual Property Rights”).  The Products are Our valuable trade secrets and constitute Our Confidential Information.  Except for the rights explicitly granted to You in this Agreement, all right, title and interest in the Products are reserved and retained by Us, Our Affiliates, and/or Our licensors. You do not acquire any intellectual property or other rights in the Products as a result of downloading, installing, accessing or using the Products except as specified in this Agreement. 

6.2.        Your Content. You or Your licensors shall own all right, title and interest in and to all of Your Content and You shall have sole responsibility for the legality, reliability, integrity, accuracy and quality of all Your Content.

6.3.        Feedback. If You choose to give Us any ideas, suggestions, enhancement requests, recommendations or any other materials in connection with this Agreement or Our Products (collectively, “Feedback”), You grant Us a royalty-free, fully paid-up, worldwide, transferable, sub-licensable, irrevocable and perpetual license to implement, use, modify, and/or incorporate the Feedback into Our Products or otherwise commercially exploit it.

7.            Warranties and Disclaimer.

7.1.         Software Warranty. We warrant to You that for a period of ninety (90) days from the date of first Delivery of the Software (“Software Warranty Period”), the Software will perform the functions described in the Documentation when used in accordance with that Documentation.  The Software is not warranted to be Error free.  In the event of a breach of this warranty that is reported to Us during the Software Warranty Period, We shall at Our election either (i) repair or replace the Software so that it conforms to the warranty or (ii) terminate the license with respect to the non-conforming Software and refund the license fees paid by You for the non-conforming Software.  This warranty excludes defects resulting from accidents, abuse, unauthorized repair, modifications, misapplication, or use of the Software in a manner that is inconsistent with the Documentation.  We warrant, that at Delivery, the Software contains no known virus, malware, spyware, or trojan horse.

7.2.        Support Services Warranty.  We warrant to You that for the duration of the Support term, Support Services will be performed with industry standard care and skill and in a professional and workmanlike manner. Should You believe that Support Services have not been performed in accordance with this warranty, You must provide Us with a reasonably detailed written notice within thirty (30) days of occurrence of the nonconformance. We will re-perform any non-conforming Support Services.

7.3.        Professional Services Warranty. We warrant to You that Professional Services will be provided in a professional and workmanlike manner in accordance with good industry practice. Your sole and exclusive remedy for a breach of this warranty is reperformance of the Professional Services or at Our discretion a refund of the fees paid by You, provided that You notify Us of any non-conformity within thirty (30) days of the provision of the non-conforming Professional Services. 

7.4.       Cloud Services Warranty.  We warrant that the Cloud Services will perform substantially in accordance with the Documentation during the Subscription Term.  We do not warrant that the Cloud Services will be uninterrupted or Error free.  This warranty shall not apply to the extent of any non-conformance which is (i) caused by use of the Cloud Services contrary to the Documentation or Our instructions, or modification or alteration of the Cloud Services by any party other than Us or Our duly authorized contractors or agents; or (ii) due to Your Content. If the Cloud Services do not conform with this warranty, We will, at Our expense, use reasonable commercial endeavors to correct any such non-conformance promptly.  Subject to Section 7.2 above, if a correction of such non-conformance is impossible, then We will terminate the Cloud Services and refund any prepaid subscription fees for the affected Cloud Service covering the remainder of the applicable Subscription Term after the date You notified Us of any non-conformance.

7.5.        Disclaimer. UNLESS CONTRARY TO APPLICABLE LAW, THE WARRANTIES IN THIS SECTION 7 ARE YOUR SOLE AND EXCLUSIVE WARRANTY AND REMEDY.  EXCEPT FOR THE WARRANTIES SPECIFICALLY DESCRIBED ABOVE, ALL PRODUCTS ARE PROVIDED “AS-IS” AND ALL OTHER WARRANTIES INCLUDING BUT NOT LIMITED TO THE IMPLIED WARRANTIES OF MERCHANTABILITY, AND FITNESS FOR A PARTICULAR PURPOSE ARE EXPRESSLY DISCLAIMED. PREVIEWS ARE PROVIDED “AS IS”, WITHOUT WARRANTIES OR INDEMNITIES AND WE DISCLAIM ALL LIABILITIES RELATED TO PREVIEWS.

8.           Indemnification. 

8.1.        Indemnification by Us. We will (a) defend and indemnify You against any third-party claim alleging that the Products infringe a third-party copyright, patent, trademark or trade secret; and (b) pay any  fees, fines, liens, judgment, damages, costs inclusive of reasonable legal fees and losses finally awarded against You by a court of competent jurisdiction as a result of the claim. We may settle any claim at Our discretion, provided that no such settlement will require You to admit wrongdoing or pay any amounts.

8.2.       Exclusion.  We have no obligation to indemnify You and accept no responsibility or liability for any third party infringement claims arising out of: (a) any use of the Products in a manner that is not permitted under this Agreement or the applicable Documentation; (b) any modification of the Products by anyone other than Us, except a third party acting on Our behalf; (c) the combination or use of the Products, as applicable, with any other product, service, software, data, content or method; (d) Your continued use of Products that are no longer supported by Us; or (e) any failure by You to implement Updates or Upgrades provided under Support Services (“Excluded Claims”). 

8.3.       Indemnification Claims.  If an infringement claim is made or appears likely to be made, We may, at Our own expense and discretion, do any of the following: (a) modify the Products so that it is no longer infringing without substantially limiting its functionality; (b) obtain a license for You to continue to use the Products; or (c) terminate this Agreement and refund the fees paid for the infringing Products.  For Term Based Licenses, associated Support Services or Cloud Services, the refund will be calculated on a straightline amortization basis over the subscription term.  For Life of Device Licenses and associated Support Services, the refund will be calculated on a straightline amortization basis over five (5) years.  For Professional Services, the refund will be the total fees for those services.

8.4.       Indemnification by You. You will defend and indemnify Us against any claim brought against Us by a third party arising out of or relating to any Excluded Claim or Your Content including any third-party claim alleging that any of Your Content infringes or misappropriates that third-party intellectual property or violates Your obligations to any third party and You agree to pay any settlement amount, or the damages and losses, fees, fines, liens or expenses incurred and\or finally awarded against Us by a court of competent jurisdiction as a result of the claim.

8.5.       Process.  Each party’s defense and indemnity obligations in this Section 8 will apply only if the party seeking defense or indemnity: (a) gives the other party prompt written notice of the claim; (b) permits the other party to control the defense and settlement of the claim; and (c) reasonably cooperates with the other party in the defense and settlement of the claim. In no event will a party agree to any settlement of any claim that involves any admission of wrongdoing or acceptance of a material obligation by the other party without the prior written consent of the other party.

8.6.       Entire liability and remedies.  The remedies in this Section 8 represent Our entire liability and obligation and Your sole and exclusive remedy with respect to third-party intellectual property rights infringement claims related to the Products. 

9.            Limitation of Liability.

9.1.        Liability Exclusions. Regardless of the basis of the claim or theory of liability, neither You nor We will be liable for: (a) any special, indirect, incidental, consequential, or punitive damages, (b) damages arising from the loss of use, loss or corruption of data, lost profits, lost revenue, business interruption or cost of procuring substitute Products, or (c) unavailability of the Cloud Services.

9.2.        Damages Cap. Neither Your nor Our aggregate liability shall exceed the greater of five hundred thousand United States dollars (US$500,000) or the amount received by Us for the applicable Products in the twelve (12) months prior to the event giving rise to this liability. 

9.3.        Exceptions.  Sections 9.1 and 9.2 do not apply to usage in excess of an Entitlement, a breach of Our intellectual property rights or restrictions on the use of Our Products as detailed in this Agreement, an indemnification claim under Section 8, in case of gross negligence, willful misconduct, fraud, personal injury, or to any liability pursuant to any applicable legislation that does not permit a party to limit or exclude any liability. 

10.          Confidential Information.

10.1.      Confidential Information. “Confidential Information” means any non-public information disclosed by one party to the other party in connection with this Agreement and any information that is marked “confidential” or “proprietary” at the time of disclosure; if disclosed orally or visually, is designated “confidential” or “proprietary” at the time of disclosure or would be deemed to be confidential or proprietary to a reasonable recipient. Previews are Confidential Information. Confidential Information includes copies of such information, but excludes information that: (a) is or becomes a part of the public domain through no action or omission of the receiving party (“Recipient”); (b) was in the receiving party’s lawful possession prior to the disclosure and had not been obtained by the receiving party from the disclosing party (“Discloser”); (c) is lawfully disclosed to the receiving party by a third-party without restriction on the disclosure; or (d) is independently developed by the receiving party without reference to Confidential Information. Subject to applicable law, Our Confidential Information includes, but is not limited to, this Agreement, Our Products, trade secrets, know-how, product roadmap, source code, software, product and technology-related information, customer lists, financial information, sales, pricing information, marketing and business plans.

10.2.     Treatment. Confidential Information shall remain the property of the Discloser.  Each party shall have the right to use the other’s Confidential Information solely for the purpose of fulfilling its obligations under this Agreement.  Each party agrees: (a) to hold the other party’s Confidential Information in confidence for a period of three (3) years from the date of disclosure, except confidentiality obligations will continue indefinitely regarding Confidential Information considered as trade secrets under applicable law to the extent such Confidential Information remains a trade secret; and (b) to disclose the other party’s Confidential Information only to those employees, Partners, or agents or the Affiliates’ employees, Partners, or agents on a need to know basis provided that they are required to protect such Confidential Information against unauthorized disclosure under terms no less restrictive than those specified herein.  Recipient shall protect the Confidential Information from unauthorized use, access or disclosure in the same manner as it protects its own confidential or proprietary information of a similar nature, and in any event with at least a reasonable degree of care.  Recipient may disclose the other party’s Confidential Information to the extent that such disclosure is required pursuant to a judicial or administrative proceeding, provided that, prior to such disclosure, Recipient gives Discloser prompt written notice thereof and the opportunity to seek a protective order or other legal remedies.

10.3.     Return or Destruction. Upon termination of this Agreement or Discloser’s written request, all Confidential Information (including all copies thereof) of Discloser shall be returned or destroyed and provide written certification of this destruction, unless Recipient is required to retain such information by law, and the receiving party shall certify its compliance with this Section 10.3.

10.4.     Injunctive Relief.  Recipient agrees that, due to the unique nature of the Confidential Information, the unauthorized disclosure or use of the Confidential Information may cause irreparable harm to the disclosing party, the extent of which will be difficult to ascertain and for which there will be no adequate remedy at law. Accordingly, Recipient agrees that Discloser, in addition to any other available remedies, will have the right to an immediate injunction and other equitable relief enjoining any breach or threatened breach of this Section 10, without the necessity of posting any security. Recipient will notify Discloser in writing upon the receiving party becoming aware of any unauthorized use or disclosure of Confidential Information.

11.           Data Processing.

11.1.        Usage Data.  Notwithstanding anything to the contrary in this Agreement or DPA, Nutanix collects and uses data pertaining to the use of the Products, support and/or operation of the Products (“Usage Data”), for Our legitimate business purposes, such as billing, account management, security and support.  We may also collect and use Usage Data to develop and improve Our Products, and to sell and market Our Products to You. You may opt out of such collection in Your Product settings, except for those Products that require the collection of Usage Data to operate in accordance with Our Documentation.

11.2.       Data Privacy. We will process any personal data provided to Us in accordance with Applicable Privacy Law (as defined in the Data Processing Addendum https://www.nutanix.com/legal/data-processing-addendum (“DPA”)) and our data privacy statement which can be found at https://www.nutanix.com/legal/privacy-statement.

12.          Compliance.

12.1.       Compliance with Documentation.  You agree that You will comply with all instructions and requirements in any Product specification sheets, user guides, security best practices and policies, and other documentation that We provide or make available to You in connection with the use of the Products.

12.2.      Compliance with Laws; Anti-Corruption.  We and You shall comply with all applicable laws and regulations including but not limited to those relating to anti-corruption or anti-bribery e.g., the U.S. Foreign Corrupt Practices Act, as amended, the U.K. Bribery Act and legislation implementing the OECD Convention on Combating Bribery of Foreign Public Officials in International Business Transactions.

12.3.      Export Control. The Products are subject to export restriction in the U.S. and other jurisdictions. You shall fully comply with all applicable export laws and regulations that apply to the download, installation and use of the Products in Your jurisdiction. You represent and warrant that You are not subject to sanctions or otherwise designated on any list of prohibited or restricted parties, or owned or controlled by such a party, including but not limited to the lists maintained by the United Nations Security Council, the U.S. Government (e.g., the U.S. Department of Treasury’s Specially Designated Nationals list and Foreign Sanctions Evaders list, and the U.S. Department of Commerce’s Entity List), the European Union or its member states, or other applicable government authority.

12.4.     US Government Restrictions. You acknowledge that the Products were developed entirely at private expense and no part of the Products were first produced in the context of a government contract. The Products are provided to the U.S. Government as “commercial items,” “commercial computer software,” “commercial computer software documentation,” and “technical data” with the same rights and restrictions generally applicable to the Products. If You are using the Products on behalf of the U.S. Government and these terms fail to meet the U.S. Government’s needs or are inconsistent in any respect with federal law, You will immediately discontinue Your use of the Products. The terms “commercial item” “commercial computer software,” “commercial computer software documentation,” and “technical data” are defined in the Federal Acquisition Regulation and the Defense Federal Acquisition Regulation Supplement.

13.          Term and Termination. 

13.1.       Term. This Agreement will remain effective until terminated in accordance with this Section 13.

13.2.      Subscription Renewal.  Your subscription for the Software, Support Services and Cloud Services will automatically renew for a term equal to the previous Subscription Term, or such other term agreed by the parties in writing. You may cancel the automatic renewal by providing Us with ninety (90) days written notice prior to the end of Your Subscription Term. Unless You have provided notice of cancellation, You agree to raise a valid purchase order prior to the commencement of the renewal Subscription Term and We or Our Partner will be entitled to invoice You for the applicable fees.  If You fail to renew Your subscription for the Software, Support Services and Cloud Services in a timely manner, backdated fees will be due for the continued use of the same, calculated from the end of preceding Subscription Term in addition to any fees due for future periods.

13.3.      Termination. Either party has the right to suspend or terminate this Agreement upon written notice to the other party if the other party: (a) is in default of any material obligation and the default has not been cured within thirty (30) days of receipt of written notice specifying the default; or (b) becomes insolvent, makes a general assignment for the benefit of creditors, suffers or permits the appointment of a receiver for its business or assets, becomes subject to any proceeding under any bankruptcy or insolvency law domestic or foreign, or has been liquidated. 

13.4.     Effect of Termination or Expiration of Entitlement.  Upon any termination of this Agreement or the expiration of any Entitlement issued hereunder, the rights and licenses granted to You will automatically terminate, and You agree to immediately cease using the Products, return or destroy all copies of the Products, Documentation and other Confidential Information in Your possession and certify to Us in writing completion of the return or destruction. Nutanix reserves the right to limit access to some functionality in the event of an uncured material breach of this agreement.  Upon termination, except as otherwise stated in this Agreement, We will have no obligation to refund any fees or other amount received from You during the Term and You shall be required to pay immediately all outstanding amounts. All Product fees and fees paid or owed to Us or expenses incurred by Us are non-cancellable, non-contingent and non-refundable. This provision is merged and incorporated into and shall take precedence over any other conflicting term or provision in any other previously executed agreement.

13.5.      Return of Your Content.  If the applicable Cloud Services involves the transmission of Your Content, then You may retrieve and remove Your Content in accordance with the Documentation.  We shall have no obligation to provide access to Your Content thirty (30) days following the Subscription Term or termination date.

13.6.      Previews Term and Expiration. Unless otherwise specified in the Entitlement, Previews, except for No-Charge Products, may be used for a period not exceeding thirty (30) days from Delivery or access being granted (“Evaluation Period”). You agree to uninstall, delete and cease using such Previews at the end of the Evaluation Period. No-Charge Products may be used in accordance with this Section 13.

14.         Authorized Partners. 

The terms of the agreement between You and a Partner for the procurement of the Products applies solely between You and that Partner. 

15.          Governing Law and Jurisdiction. 

15.1.       Governing Law and Jurisdiction. This Agreement and any dispute or claim arising out of or in connection with it or its subject matter or formation shall be governed and construed in accordance with the laws and under the exclusive jurisdiction of the competent courts as follows:

15.2 Exclusion. The United Nations Convention on Contracts for the International Sale of Goods shall not apply to this Agreement.

16.             General.

16.1.          Affiliates and Contractors. You may permit Your Affiliates and/or any contractor acting on Your behalf to use the Products within the Usage Capacity as specified in the Entitlement provided that they comply with the terms of this Agreement. You will be jointly and severally liable for any breach of this Agreement by any of the foregoing users. We may permit Our Affiliates to exercise Our rights or perform Our obligations under this Agreement, in which case We will remain responsible for their compliance with this Agreement.  

16.2.         Assignment. You may assign this Agreement or any rights that We have given You under it  with Our written consent, which We won’t unreasonably withhold. Any purported assignment in violation of this section shall be null and void.

16.3.         Third-Party and Open source Software. The Products may contain components of copyrighted third-party software or open source software. Third party and open source software that is delivered as part of the Software is included in the warranty, support and indemnification provisions applicable to the Software provided it is not removed or used separately from the Software.  Your internal use of open source software included in the Products without modification and in compliance with this Agreement will not result in the imposition of “copyleft” obligations with respect to Your intellectual property.

16.4.        No Third-Party Beneficiaries.  This Agreement does not confer any rights on any person or party other than the parties to this Agreement except as set forth in Section 1.3., 2, 3, and 9. 

16.5.         Relationship of the Parties. We perform Support Services as an independent contractor, and not as an employee, agent, joint venturer or partner of You, and neither You or We have the authority to bind the other by contract or otherwise.

16.6.        Waiver.  Failure to enforce any provision of this Agreement will not constitute a waiver. Any waiver must be in writing and signed by the waiving party.

16.7.         Subcontractors.  We may use subcontractors for some Services, but We shall remain liable to You for all of Our obligations under this Agreement.  

16.8.        Force Majeure. We will not be liable for performance delays during the performance of Support Services or Professional Services or for nonperformance, due to causes beyond Our reasonable control. 

16.9.        Severability. If any provision in this Agreement is found to be unenforceable by a court of competent jurisdiction, the remainder of this Agreement will remain in full force and effect.

16.10.      Notices. Our notice address is: Nutanix, Inc., 1740 Technology Drive, Suite 150, San Jose, CA 95110, Attn:  Chief Legal Officer.

16.11.        Survival.  Sections 2.2, 5.4, 6, 8, 9, 10, 12, 15, 16 and 17.9 shall survive the expiration or termination of this Agreement.

16.12.       Entire Agreement.  This Agreement, together with any additional terms incorporated by reference, including the Entitlement and the Appendices hereto, constitute the complete and exclusive understanding and agreement between You and Us and supersedes any written or oral prior or contemporaneous agreements, communications and understandings.

16.13.       Modifications. This Agreement cannot be modified except by mutual written agreement or as required by law. Any other terms and conditions contained or referenced by either party in a quote, purchase order, acceptance, invoice or any similar document purporting to modify the terms and conditions contained in this Agreement are void and will have no effect unless otherwise expressly agreed to by You and Us.

Appendix 1: Hardware Support for NX Branded Hardware

1.             Scope of Hardware Support Services.  We will only provide Hardware Support Services for NX branded hardware (“Hardware”). If We determine that replacement parts are required for Hardware Support Services, then We will replace any failed part with a functional equivalent that will have equal or higher specifications. Replacement parts may be new or refurbished, at Our option. All defective parts must be returned following Nutanix’s return material authorization policy (“RMA Policy”)  which can be found at https://www.nutanix.com/support-services/product-support/policies and https://www.nutanix.com/legal/privacy-statement/data-privacy-policy.  If You have purchased a Nutanix non-return media option, all defective parts except the relevant media must be returned following the Nutanix RMA Policy. If You do not follow Nutanix’s RMA Policy, Nutanix may invoice You (directly or through Our Partners) for the full cost of the replacement part(s).  All returned parts become the property of Nutanix. 

2.            Reinstatement of Support. The terms and conditions in Section 3.6 of the Agreement (“Reinstatement of Support”) apply to reinstatement of Hardware Support.

3.            Exclusions.  We shall have no obligation to provide Support Services for Hardware (a) that has been mishandled, altered or damaged due to willful or negligent acts or omissions or force majeure, or operation of the Hardware other than as specified in the documentation accompanying the Hardware; (b) modified,  altered or repaired by a party other than Us or a party authorized by Us; (c) that was subjected to fire suppression discharge or a power failure; (d) that was subjected to abnormal physical or electrical stress, abnormal environmental conditions or environmental and storage conditions (including temperature and/or humidity ranges) which are not in accordance with the documentation accompanying the Hardware; or (e) that has installed Software which is subject to Nutanix’s Software End of Life Policies which can be found at https://www.nutanix.com/support-services/product-support/policies.

Appendix 2: Direct Purchase Terms

1.             Fees, Taxes & Duties. If You are or become a Service Provider, and\or, in the rare event that You procure Our Products directly from Us and do not use an order fulfillment channel Partner, other payment, delivery, pricing,  acceptance and related terms and conditions may apply and We will provide those to You if\when applicable. You are solely responsible for the payment of taxes, fees, withholding, duties and charges and all related penalties and interest that arise from utilization of or provision of the Software, Cloud Services, Support Services and Professional Services including any taxes that arise on the provision of products to Your Affiliates. Taxes include, without limitation, VAT, Service tax, GST, excise taxes, sales and transaction taxes or any other like taxes that are owed with respect to any order placed under this agreement. If You are tax-exempt, provide us with tax exemption certificates or other documentation acceptable to the taxing authorities not later than thirty (30) days from the date You give us an Order. If You don’t, We may include such taxes in the invoice and You are obligated to pay them. All payments pursuant to this Agreement shall be made without any withholding or deduction of any withholding tax or other tax or mandatory payment to government agencies. If You are legally required to make any such withholding or deduction from any payment due to us under this Agreement, the sum payable by You upon which such withholding or deduction is based shall be increased to the extent necessary to ensure that, after such withholding or deduction, We receive and retain, free from liability for such withholding or deduction, a net amount equal to the amount We would have received and retained in the absence of such required withholding or deduction. A valid Tax registration number is required for all Non-US orders.

2.            Conflicting Terms. The above terms prevail over any conflicting or additional terms referred to in any Purchase Order, quote or similar communication between You and Us.  Purchase Orders issued by You shall be deemed to incorporate these Terms except where You and We have expressly agreed in writing to variations thereto.

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