Reference Guide

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© Nutanix, Inc. NLSA 2018
redemption. Balances can be pooled toward a single redemption and may be purchased upfront. You don’t have to select in advance the
Professional Services against which FlexCredits are to be redeemed.
10.5 Taxes and Duties. You are solely responsible for the payment of taxes, fees, 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. 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.
10.6 Credit Cards. Cloud Services may also be purchased via a credit card through the Nutanix Billing Center in accordance with the terms
that You shall find there.
11. EARLY ACCESS, EVALUATION, TRIAL AND OTHER NO-CHARGE SERVICES.
11.1 Evaluation Software and Early Access Software. If You are acquiring generally available products for the purposes of evaluation
(“Evaluation Software”), or Software specifically identified as alpha, beta, pre-release, demonstration or preview (“Early Access Software”),
Evaluation Software and Early Access Software may be used for a period not exceeding 90 days from delivery or access being granted
(“Evaluation Period”) and up to the maximum amounts of usage as specified in the Entitlement and Documentation or as otherwise agreed
by Us in writing. Evaluation Software may only be used in non-production environments and not for commercial purposes or the processing
of any production data. You agree to uninstall, delete and cease using the Evaluation Software at the end of the Evaluation Period. You
agree to cooperate with Us in testing and providing feedback in relation to the Early Access Software. Any feedback provided shall be
deemed proprietary and confidential to Us and may be used by Us without restriction.
11.2 No-Charge Services. We may offer certain Cloud Services, or certain features or functions of Cloud Services, to You at no charge,
including some which are not generally available and are identified as alpha, beta, pre-release, demonstration or preview (“Early Access
Services”), as well as free or trial accounts to generally available Cloud Services for a designated period of time, quantity, or other use
metrics (“Trial Services” and, together with Early Access Services, “No-Charge Services”). This Agreement applies to No-Charge Services.
We can modify or discontinue No-Charge Services at any time. We are entitled to invoice You for fees calculated in accordance with Our
then current price list if You use the No-Charge Services beyond the permitted period of use or in excess of the permitted quantities or
metrics.
11.3 Early Access Services. You agree and acknowledge that Early Access Services are still under development, may be inoperable or
incomplete, and You are using the Early Access Services at Your own risk. You may not rely, or base purchasing decisions, on Early Access
Services becoming generally available. You agree to cooperate with Us in testing and providing feedback in relation to the Early Access
Services. Any feedback provided shall be deemed proprietary and confidential to Us and may be used by Us without restriction.
11.4 NOTWITHSTANDING ANYTHING TO THE CONTRARY IN THESE TERMS, EVALUATION SOFTWARE, EARLY ACCESS SOFTWARE, AND NO-
CHARGE SERVICES ARE PROVIDED “AS IS” WITHOUT ANY WARRANTIES OR REPRESENTATIONS EXPRESS, IMPLIED, OR STATUTORY,
INCLUDING, WITHOUT LIMITATION, MERCHANTABILITY, AVAILABILITY, ACCEPTABLE QUALITY, TITLE, FITNESS FOR A PARTICULAR PURPOSE
AND NON-INFRINGEMENT. WE DISCLAIM ALL LIABILITIES TO THE MAXIMUM EXTENT PERMITTED BY LAW. Section 12.2 (Indemnification)
and Section 9 (Warranties) of this Agreement do not apply to Your use of the Evaluation Software, Early Access Software, or No-Charge
Services.
12. INTELLECTUAL PROPERTY OWNERSHIP AND INDEMNIFICATION
12.1 Proprietary Rights. We and Our licensors retain all worldwide intellectual property rights, including 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”) in the Software
and all derivatives thereof and any Cloud Services We provide to You. Subject to any third-party claims or licenses, You retain ownership of
all of Your pre-existing Intellectual Property Rights.
12.2 Indemnification. If a third-party sues You claiming that the Software or Cloud Services infringes a valid third-party patent, copyright,
trademark or trade secret, We shall indemnify and defend You from: (a) any fees, fines and costs actually incurred; and (b) damages and
costs finally awarded by a court of competent jurisdiction in relation to that claim. Our obligation to indemnify is contingent on You giving
Us (a) prompt written notice of and all available information about any such claim; (b) control and direction of the defence and any
settlement of the claim, provided that such settlement does not require admission of wrongdoing or payment of damages by You; and (c)
reasonable cooperation in such defence. We shall not indemnify You and shall have no responsibility for third-party claims arising out of:
(a) any modification of the Software or Cloud Services; (b) any failure to implement Updates and Upgrades provided under Support Services;
(c) or the combination, operation, or use of the Software or Cloud Services with or damages based on the value of third-party programs,
data or documentation, to the extent that the claims would not have occurred but for such combination, operation or use; (d) any use of
the Software or Cloud Services that is not expressly permitted under this Agreement; (e) continued use of infringing Software or Cloud
Services after termination or after We give You modified or replacement non-infringing Software or Cloud Services, as specified below; or
(f) if the infringement comes from materials developed by Us in accordance Your instructions. If the Software or Cloud Services become the
subject of an third-party infringement claim, or if We think that this may happen in the future, We can at Our own expense and sole
reasonable discretion: (a) modify the Software or Cloud Services to be non-infringing without a material diminution in functionality; (b)
obtain for You a license to continue using the Software or Cloud Services; or (c) terminate this Agreement and refund a pro rata portion of
the fee paid for the applicable portion of the Software or Cloud Services. For Software, the refund shall be based on a straight-line
amortization over a five (5) year term beginning on the date of initial delivery of the Software. For Cloud Services, the refund shall be the
prepaid fees related to unexpired periods. The remedies in this Section 12.2 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 Software or Cloud Services.
13. LIABILITY LIMITS
13.1 Limitations. Regardless of the basis of the claim (e.g. contract, tort or statute), the total liability of Us and Our licensors or You shall not
exceed the amounts actually received by Us for the Software or Professional Services at issue or the pro-rata fees for the previous 12 months
of Cloud Services or Support Services immediately preceding the event that gave rise to the liability, or the minimum amounts permitted by
applicable laws, if greater.
13.2 Exclusions. We and Our licensors are not liable for any: (a) indirect, consequential, incidental, exemplary or special damages; (b) any
loss or corruption of data; or (c) interruption to Your business.
13.3 Exceptions. The limitations and exclusions Sections 13.1 and 13.2 above shall not apply to a breach of: (a) Our intellectual property
rights; (b) liability for an indemnified claim under Section 12.2; (c) death or bodily injury caused by negligence; or (d) any claim arising from
wilful misconduct or fraud.