Reference Guide

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© Nutanix, Inc. NLSA 2018
not limited to data subject to the Health Insurance Portability and Accountability Act, Basel II, Graham Leach Bliley and Payment Card
Industry regulations; (c) perform performance tests, benchmarking or any competitive analysis; (d) conduct any abusive, harassing,
slanderous, fraudulent, illegal , obscene, defamatory, immoral, objectionable or harmful activity; or (e) violate any laws or third-party rights,
including any intellectual property rights, personal data and privacy rights; or (f) conduct, directly or indirectly, any activities associated with
cryptocurrency mining or similar endeavors. You shall not: (a) attempt to gain access to any Cloud Services You are not authorized to use,
including any administrative portions of the Cloud Services; (b) circumvent any security features; or (c) use the Cloud Services in any way
that poses security threats or otherwise introduces security or performance vulnerabilities into the Cloud Services.
5.5 Suspension. We may suspend or terminate access to Cloud Services if: (a) You are in violation of this Agreement; (b) Your use poses a
security threat or actual or potential violation of any law or this Agreement; (c) it is required by a court order, subpoena or other legal action,
or; (d) We believe suspension is required to prevent harm to, or preserve availability of, the Cloud Services or Your Content. No fees will be
refundable to You for suspension under this Section 5.5.
6. THIRD-PARTY AND OPEN SOURCE SOFTWARE. The Software and Cloud Services may contain copyrighted third-party software as well as
open source software. The third-party licensors retain all intellectual property rights in the third-party software. You can use third-party
software and open source software in support of Your use of the Software in accordance with the terms of this Agreement. Your right to
use open source software shall be subject to the respective terms of the open source licenses, which are provided at
https://www.nutanix.com/opensource
. You may have the right to receive source code for certain open source software included or used
in the Cloud Services for a period of three (3) years following Your use of those Cloud Services. You may exercise this right by following the
directions provided at
https://www.nutanix.com/opensource or by writing to Us as specified in Section 18.4 (Notices).
7. SUPPORT SERVICES.
7.1 Term. Subject to Your payment of the applicable fees, We shall provide the Support Services specified in the Entitlement and in
accordance with the Support Terms available at https://www.nutanix.com/support-terms/
.
8. PROFESSIONAL SERVICES
8.1 Scope. We shall deliver the Professional Services specified in the Entitlement and any SOW. We do not do any custom development
work.
8.2 Your Obligations. You shall provide Us with any equipment, software, information, timely decisions, direction and facilities necessary for
Us to perform the Professional Services as specified in the SOW.
8.3 License. You grant Us a non-exclusive, worldwide, royalty-free license to use Your intellectual property for the purpose of performing
the Professional Services. You have a license to use any deliverables provided as part of the Professional Services on the terms specified in
Section 4 above.
9. WARRANTIES
9.1 Software. The initially-shipped version of the Software shall materially conform to the Documentation for a period of ninety (90) days
from the date of delivery (“Software Warranty Period”). The Software is not warranted to be totally error-free. In the event of a material
non-conformity in the Software that is reported to Us during the Software Warranty Period, and which is reproducible and verifiable, We
shall either promptly repair or replace the Software or refund the amounts received for the non-conforming Software, at Our reasonable
discretion. This warranty excludes defects resulting from accidents, abuse, unauthorized repair, modifications, misapplication, or use of the
Software in a manner that is materially inconsistent with the Documentation. We agree to screen the Software using commercially available
anti-virus software prior to delivery and We warrant, to the best of Our knowledge, at delivery the Software contains no known virus,
malware, spyware, trojan horse or other disabling code.
9.2 Cloud Services. We warrant that the Cloud Services shall materially comply with the Documentation under normal use and
circumstances.
The Cloud Services are not warranted to be totally error free. In the event of a material and verifiable breach of this
warranty We will refund to you that portion of any fees that You have pre-paid for services that were not rendered in accordance with this
warranty.
9.3 Support Services. We warrant that the Support Services shall be provided in a professional manner with reasonable care and skill. Your
sole remedy for breach of this warranty shall be reperformance of the Support Services at no additional cost provided that You notify Us of
any non-conformity within thirty (30) days of the provision of the non-conforming Support Services.
9.4 Professional Services. The Professional Services shall be provided in a professional manner with reasonable care and skill. Your sole
remedy for breach of this warranty shall be reperformance of the Professional Services at no additional cost, provided that You notify Us of
any non-conformity within thirty (30) days of the provision of the non-conforming Professional Services. A breach of one SOW shall not
amount to a breach under any other SOW.
9.5 LIMITATIONS AND EXCLUSIONS. TO THE EXTENT PERMITTED BY APPLICABLE LAWS, THE FOREGOING WARRANTIES ARE YOUR SOLE AND
EXCLUSIVE WARRANTIES AND REMEDIES. EXCEPT FOR THE WARRANTIES SPECIFICALLY DESCRIBED ABOVE, ALL PRODUCTS AND SERVICES
ARE PROVIDED “AS-IS” AND ALL OTHER WARRANTIES INCLUDING BUT NOT LIMITED TO THE IMPLIED WARRANTIES OF MERCHANTABILITY,
ACCEPTABLE QUALITY, TITLE, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT ARE EXPRESSLY DISCLAIMED.
9.6 Hardware Compatibility. Software shall only be compatible with hardware specified on the Nutanix Hardware Compatibility List available
at https://www.nutanix.com/products/hardware-platforms/
as may be amended from time to time.
10. PRICING, PAYMENTS AND TAXES (APPLICABLE TO DIRECT PURCHASES ONLY)
10.1 Pricing. We may change the prices specified in Our price list and add or remove items at any time. A purchase order received after the
effective date of a price change, but pursuant to a valid and unexpired quote shall be invoiced at the price stated on that quote.
10.2 Purchase Orders. You shall issue binding, non-contingent, written or electronic orders consistent with the corresponding price quote
for the purchase of Software, Cloud Services, Support Services and Professional Services, as applicable. Your purchase orders shall refer
exclusively to this Agreement. All purchase orders that You issue to Us shall be governed by this Agreement.
10.3 Payment Terms. You shall make full payment in the currency specified in the invoice not later than thirty (30) days from the date of
Our invoice. The rights to use the Software and Documentation, access the Cloud Services, receive the Support Services and Professional
Services are subject to payment in accordance with this Section 10. All fees are non-refundable, non-contingent and non-cancellable.
10.4 FlexCredits. You may use FlexCredits, as specified below, to purchase Professional Services. FlexCredits, identified by SKU FLEX-CST-CR
on Our price list, or such other SKU as We may determine from time to time, may only be used for packaged or custom Professional Services,
technical account manager or resident consultant resources, education offerings, including certifications or any additional services as We
may determine at Our discretion. Additional information on Professional Services against which FlexCredits may be utilised is available at:
(a) for consulting services https://www.nutanix.com/services/consulting-services/
; and (b) for education and certification
https://www.nutanix.com/services/education/. The cost of FlexCredits is as per the then current price list. FlexCredits expire twelve (12)
months from the purchase date, are non-refundable and can be applied to any Professional Services made available by Us at the time of