This Nutanix Multi-Cloud Expert Program Agreement (“Agreement”) is entered into as of the date of the last signature below (the “Effective Date”) by the undersigned parties to enable and facilitate Participant’s participation in the Nutanix Partner Elite program (“Purpose”). The signatory (“Participant”, “You”) agrees they are participating on an individual basis and not as a representative of their employer. The parties agree as follows:
1. Confidential Information. Either party (“Disclosing Party”) may disclose to the other party (“Receiving Party”) orally, in writing, or electronically, confidential information and material relating to the Purpose which has been marked or identified at the time of disclosure as confidential or proprietary, or by the nature of circumstances surrounding the disclosure, a reasonable person would deem the information to be confidential information (“Confidential Information”). Confidential Information includes, but is not limited to, this Agreement, trade secrets, know-how, product roadmap, source code, software, product and technology-related information, customer lists, financial information, sales, marketing and business plans. For the avoidance of doubt, any information received by the Participant in connection with the Purpose constitutes Confidential Information.
2. Exceptions. Notwithstanding the above, Receiving Party will not have liability to Disclosing Party with regard to any Confidential Information that the Receiving Party can demonstrate and document (a) was in the public domain through no improper conduct by Receiving Party; (b) was known to Receiving Party without restriction prior to its receipt from Disclosing Party; (c) was obtained by Receiving Party from a third party that had no obligation of confidentiality; (d) was publicly disclosed with the prior written approval of Disclosing Party; (e) was independently developed by or for Receiving Party without access to the Confidential Information; or (f) was permitted to disclose pursuant to the valid order or requirement of a court, administrative agency, or other governmental body; provided, however, that Receiving Party will provide prompt written notice of such court order or requirement to Disclosing Party to enable Disclosing Party to seek, at its sole cost and expense, a protective order or prevent or restrict such disclosure.
3. Receiving Party’s Obligations. Receiving Party will (a) use the same degree of care as the Receiving Party uses with its own Confidential Information, but no less than reasonable care, to protect Confidential Information and to prevent any unauthorized access, reproduction, disclosure, or use of any of the Confidential Information; (b) not use Confidential Information except for the Purpose; (c) not disclose or permit disclosure of or access to any Confidential Information of Disclosing Party to any third parties or to any of Receiving Party’s officers, directors, agents, contractors, employees, or other representatives (collectively, “Representatives”), except for those Representatives who have a need to know such Confidential Information and who are prohibited from disclosing the information by a contractual, legal or fiduciary obligation no less restrictive than this Agreement, provided that Receiving Party will remain liable for any breach of this Agreement by any of its Representatives; (d) immediately notify in writing Disclosing Party in the event of unauthorized use or disclosure of Confidential Information; and (f) not export or re-export any Confidential Information except in compliance with applicable export laws, including without limitation, laws of the United States.
4. Equitable Relief. The parties agree that unauthorized use of Confidential Information or other breach of this Agreement may cause irreparable harm for which remedies at law would be inadequate, and that a party is entitled to seek equitable relief, in addition to remedies at law. The parties hereby waive any requirement for the securing or posting of any bond or the showing of actual monetary damages in connection with such claim.
5. Ownership. All rights, title and interest in and to the Confidential Information will remain vested in the Disclosing Party. No rights are granted to the Receiving Party by license, express or implied, to any trademark, trade secret, copyright, invention, discovery, or to any patent covering the invention or discovery, or any other intellectual property right, nor does this Agreement grant Receiving Party any rights in or to the Disclosing Party’s Confidential information, except for the rights explicitly granted to the Receiving Party in this Agreement. All rights relating to the Confidential Information that are not expressly granted to Receiving Party are reserved and retained by the Disclosing Party.
6. Program Participation and Acceptable Use. Participant may apply to be included in the Nutanix Multi-Cloud Expert program (“Program”), but Participant’s acceptance into the program is at Nutanix’s sole discretion. Participant must comply with EMEA Multi-Cloud Experts Community Code of Coduct and EMEA Multi-Cloud Experts Community User Guidelines, which will be provided to Participant via link or email (“Community Policies”). Violations of the Community Policies may result in Participant no longer being included in the Program, determined on a case-by-case basis at Nutanix's sole discretion.
7. Preview Software. To the extent that Nutanix provides Participant with any Nutanix Software as a part of the Program, the Nutanix Software shall only be used for the Purpose and in accordance with the Nutanix License and Services Agreement (“NLSA”) located at https://www.nutanix.com/legal/eula, which may be updated from time to time. The NLSA is incorporated herein by reference. Any early access, beta, prerelease, or other non-generally available Nutanix Software provided by Nutanix for the Purpose shall be considered a "Preview" under the NLSA, and all Preview terms shall apply. In the event of any conflict between the NLSA and this Agreement, the NLSA shall govern. "Nutanix Software" means any Nutanix software supplied to Participant under this Agreement.
8. Feedback; No Compensation. If Participant chooses to give Nutanix any ideas, suggestions, enhancement requests, recommendations, or any other materials in connection with this Agreement (collectively, “Feedback”), Participant grants Nutanix a royalty free, fully paid-up, worldwide, transferable, sub-licensable, irrevocable and perpetual license to implement, use, modify, and/or incorporate the Feedback into Nutanix products or otherwise commercially exploit such Feedback. Participant's involvement in the program is on a volunteer basis and Participant will not receive compensation from Nutanix for any element(s) of the Program and is not an employee of Nutanix for any purpose whatsoever. Any free gifts or Program benefits (e.g. swag or conference tickets) are provided at Nutanix's discretion, and are not redeemable or exchangeable for cash.
9. Privacy. In connection with Participant’s involvement in the Program, Nutanix may publish Participant's personal data in any media or marketing (such as to announce Participant’s acceptance to the Program). You consent to the collection, use, and disclosure of any personal data collected under this Agreement and your participation in the Program by Nutanix and its third party service providers in accordance with its data privacy statement, which can be found at https://www.nutanix.com/legal/privacy-statement. As part of your participation in the Program, Nutanix may send you communications including newsletters with Program content. You may opt out or unsubscribe at any time.
10. Warranty Disclaimer. All Confidential Information is provided on an “as is” basis, and Disclosing Party disclaims all representations, conditions and warranties, express or implied, including fitness for a particular purpose, merchantability and non-infringement. Disclosing Party may disclose information related to its development and plans for future products, features or enhancements (“Roadmap Information”). Roadmap Information is subject to change at any time, without notice. Disclosing Party provides no assurances, and assumes no responsibility that future products, features or enhancements will be introduced in the timeframe presented or at all. Receiving Party acknowledges that: (a) any purchasing decisions are not being made based upon reliance on timeframes or other details outlined in the Roadmap Information, and (b) purchasing decisions would not be affected if Disclosing Party never introduces the future products, features or enhancements included in the Roadmap Information. Disclosing Party reserves the right at any time not to release a commercial version of such potential future products or, if released, to alter prices, features, licensing terms, or other characteristics of the commercial release.
11. Term. Either party may terminate this Agreement with or without cause upon thirty (30) days prior written notice to the other party. All sections of this Agreement relating to the rights and obligations of the parties concerning Confidential Information disclosed during the term of the Agreement will survive any such termination. Notwithstanding any termination of this Agreement, the Receiving Party’s obligations to protect Confidential Information will continue for three (3) years from the date of disclosure by Disclosing Party and 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.
12. Independent Contractors. The parties are independent contractors, and nothing contained in this Agreement will be construed to constitute the parties as partners, joint venturers, co-owners, participants in a joint or common undertaking or as employee or employer of the other party for any purpose whatsoever. Nothing in this Agreement will prohibit or restrict either party’s right to possess, develop, use, or market products or services, alone or with others, similar to or competitive with those disclosed in the Confidential Information, in compliance with this Agreement. Neither party has an obligation to enter into any other agreement with the other party.
13. Assignment. Participant may not assign any of its rights or delegate any of its obligations under this Agreement without the prior written consent of Nutanix. Any purported assignment or delegation in violation of this section 13 shall be null and void.
14. General. Without prior written approval of the other party, neither party will make any public announcement or disclose the subject matter of this Agreement. This Agreement may be signed and executed in counterparts, each of which will constitute an original, and all of which will constitute one agreement. The parties will comply with all applicable laws and regulations. This Agreement constitutes the entire agreement between the parties with respect to disclosure of Confidential Information and supersedes all prior and contemporaneous negotiations, discussions and understandings of the parties, written or oral. If a court of competent jurisdiction holds that any provision of this Agreement is unenforceable, the remaining portions of this Agreement will remain in full force and effect. No waiver or modification of this Agreement will be valid unless in writing and signed by authorized representatives of the parties. This Agreement will be governed by the laws of the State of California, without regard to its choice of law provisions. Each of the parties hereto consents to the exclusive jurisdiction and venue of the state and federal courts of Santa Clara County, California.