Reference Guide

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© Nutanix, Inc. NLSA 2018
14. CONFIDENTIALITY
14.1 General. “Confidential Information” means any information disclosed by one party to the other party in connection with this Agreement
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 (c) by its nature or the circumstances surrounding its disclosure or content should be considered
confidential or proprietary to a reasonable recipient. “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; (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; (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.
14.2 Treatment. Confidential Information shall remain the property of the disclosing party. 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; and (b) to disclose the other party’s
Confidential Information only to those employees 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. The receiving party
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. The receiving party 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, the receiving party gives the disclosing party prompt written notice thereof and the opportunity to
seek a protective order or other legal remedies.
14.3 Return or Destruction. Upon termination of this Agreement or the disclosing party’s written request, all Confidential Information
(including all copies thereof) of the disclosing party shall be returned or destroyed, unless the receiving party is required to retain such
information by law, and the receiving party shall certify its compliance with this Section 14.3.
15. DATA PROTECTION AND PRIVACY
15.1 We may collect and use data and other information pertaining to You and Your Users or related to You and Your Users’ use of the Cloud
Services for purposes of facilitating the Cloud Services, including securing, managing, measuring and improving the Cloud Services as well as
to enable Us to develop and market additional products and services and for other purposes specified in Our Privacy Statement. We collect
and use all such data and information in accordance with Our Privacy Statement, which You acknowledge.
15.2 To the extent that We process any personal data (as defined in the EU General Data Protection Regulation 2016/679 of the European
Parliament and the Council (“GDPR”) of Users (or any other individuals) on Your behalf and that personal data relates to Users or other
individuals subject to the territorial scope of the GDPR or any successor legislation, We and You agree to be bound by the provisions of the
Nutanix Data Processing Agreement, a copy of which is available upon request or may be found Our website.
15.3 You represent and warrant that: (a) You have obtained all necessary rights, consents, releases and permissions to submit all Your
Content to the Cloud Services and to grant the rights granted to Us in these Terms; and (b) Your submission and use of Your Content as
authorized in these Terms shall not violate any laws, any third-party intellectual property, privacy, publicity or other rights, or any of Your
or third-party policies or terms governing Customer Content.
16. COMPLIANCE WITH LAWS, EXPORT CONTROL AND U.S. GOVERNMENT
16.1 Compliance with Laws. We and You shall comply with all applicable laws and regulations anywhere in the world 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 or
those pertaining to use of any Cloud Services provided via this Agreement.
16.2 Export Control. The Software, Cloud Services, Support Services and Professional Services supplied under this Agreement are subject to
export controls under the laws and regulations of the United States and other countries as applicable. You agree to comply with such laws
and regulations, and in particular, represent and warrant that You: (a) are not, and are not acting on behalf of (i) any person who is a citizen,
national, or resident of, or who is controlled by the government of any country to which the United States has prohibited export transactions,
or (ii) any person or entity listed on the U.S. Treasury Department lists of Specially Designated Nationals, Foreign Sanctions Evaders, Sectoral
Sanctions Identifications, or Palestinian Legislative Council; or the U.S. Commerce Department Denied Persons List, Entity List, or Unverified
List; or the U.S. State Department Non-proliferation Sanctions, or Debarred List; and (b) shall not permit the Software, Cloud Services Support
Services or Professional Services to be used, directly or indirectly, for any purposes prohibited by law, including any prohibited development,
design, manufacture or production of missiles or nuclear, chemical or biological weapons. You agree that the Software may not be exported
or re-exported to Cuba, Iran, North Korea, Sudan, Syria, or the region of Crimea. You won’t resell, transfer, or re-export products to any
legally denied entity (including but not limited to Armenia, Azerbaijan, Belarus, Cambodia, China (PRC), Georgia, Iraq, Kazakhstan,
Kyrgyzstan, Laos, Libya, Macau, Moldova, Mongolian P.R., Russia, Tajikistan, Turkmenistan, Uzbekistan, Ukraine or Vietnam). You shall
provide Us with end user information upon request. You shall obtain all required authorizations, permits, or licenses to export, re-export or
import, as required pursuant to 18.3 U.S. Government. The Software and Documentation are deemed to be “commercial computer
software” and “commercial computer software documentation”, respectively, pursuant to DFARS Section 227.7202 and FAR Section
12.212(b), as applicable. Any use, modification, reproduction, release, performing, displaying or disclosing of Software and Documentation
by or for the U.S. Government shall be governed solely by the terms and conditions of this Agreement.
17. TERM AND TERMINATION
17.1 Term. This Agreement is effective until expiration or termination. The term of any Software license, Cloud Services, Support Services
or Professional Services FlexCredits is as specified in the Entitlement.
17.2 Termination or Suspension for Cause. 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. Use of the Software or Cloud Services outside the scope of this Agreement (including but not limited to
the Entitlement) is unauthorized and is a material breach that shall void the warranty and/or support obligations.
17.3 Consequences of Termination. Upon termination, all outstanding amounts payable shall become immediately due and Your rights to
use the Software, access the Cloud Services or receive the Support Services and Professional Services end immediately. You shall certify to
Us in writing that You have stopped using the Software and/or accessing the Cloud Services within five (5) days of termination and that You
have destroyed all copies of the Software.
17.4 Survival. Sections 4.3, 5.4,10.3, 12,13,14,16,18.2,18.4, and 18.6 shall survive the expiration or termination of this Agreement.