Reference Guide

INTERRUPTION, PROCUREMENT OF SUBSTITUTE HARDWARE,

SOFTWARE OR SERVICES, LOST DATA, WORK STOPPAGE, RE-RUN

TIME, INACCURATE OUTPUT, COMPUTER FAILURE OR

MALFUNCTION. YOU AGREE THAT YOU SHALL HAVE THE SOLE

RESPONSIBILITY FOR PROTECTING YOUR DATA, BY PERIODIC

BACKUP OR OTHERWISE. IN ANY CASE, NUTANIX’S SOLE LIABILITY

AND YOUR EXCLUSIVE REMEDY UNDER ANY PROVISION OF THIS

AGREEMENT SHALL BE THE REPLACEMENT OF THE SOFTWARE

FOUND TO BE DEFECTIVE, WITH THE EXCEPTION OF DEATH OR

PERSONAL INJURY CAUSED BY THE NEGLIGENCE OF NUTANIX TO

THE EXTENT APPLICABLE LAW PROHIBITS THE LIMITATION OF

DAMAGES IN SUCH CASES. NUTANIX SHALL NOT BE LIABLE FOR

ANY CLAIM BROUGHT MORE THAN ONE YEAR AFTER THE CAUSE

OF ACTION FOR SUCH CLAIM FIRST AROSE. BECAUSE SOME

JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION

OR LIABLITY FOR CONSEQUENTIAL OR INCIDENTAL DAMAGES,

THE PRECEDING LIMITATIONS MAY NOT APPLY TO YOU IN WHICH

CASE NUTANIX’S LIABILITY UNDER THIS AGREEMENT WILL NOT

EXCEED THE AMOUNT OF THE LICENSE FEES YOU PAID FOR THE

SOFTWARE GIVING RISE TO THE CLAIM.

Infringement

. Subject to the remainder of this section, Nutanix shall defend

or settle, at its own expense, any third-party action against You to the extent

based upon a claim that the Software infringes any copyright or trademark or

misappropriates any trade secret, and will pay such damages or costs as are

finally awarded against You attributable to such claim, provided that You (i)

notify Nutanix promptly in writing of any such action, (ii) give Nutanix sole

control of the defense and/or settlement of such action (iii) give Nutanix all

reasonable information and assistance, and (iv) are not in material breach of

this Agreement. Should the Software become, or in the opinion of Nutanix be

likely to become, the subject of such an infringement claim, Nutanix may

replace or modify, in whole or in part, the Software to make it non-infringing.

Nutanix assumes no liability hereunder for: (a) any method or process in

which the Software may be used; (b) its compliance with Your specifically

requested specifications; (c) use of software other than a current unaltered

release of the Software or use of any older version of the Software when the

use of a newer release of the Software made available to You would have

avoided the infringement; (d) the combination, operation or use of the

Software with non-Nutanix products or services; or (e) use of the Software in a