1. GOODS AND SERVICES. Seller shall provide those goods, services, and results of services (the “Products”) as specified in a mutually executed Statement of Work (“SOW”) issued under this Agreement or in a Nutanix purchase order (“PO”) issued in lieu of or in conjunction with a SOW. These Purchasing Terms and Conditions (the “Agreement”) set forth the terms and conditions that apply to all purchases of Products by Nutanix from Seller and becomes the complete agreement with respect to the PO and applicable SOW upon Seller’s acknowledgement or commencement of performance. “Nutanix” means Nutanix, Inc. or any other Nutanix entity identified on the PO, wherever located. “Seller” means the entity identified on the face of the PO as “Seller” and its subsidiaries and affiliates. Nutanix rejects any terms and conditions contained in any acknowledgment, invoice, or other communications of Seller that are inconsistent with the terms and conditions of this Agreement. Any changes to this Agreement or the Order Documents must be in writing and signed by both parties. SOWs and POs are collectively referred to herein as the “Order Documents”. Seller shall ensure that each of its employees, contractors, subcontractors, agents, and any other third party engaged by Seller or acting on Seller’s behalf (individually and collectively, (“Personnel”)) complies with the terms of this Agreement and Seller shall be fully responsible for all acts, omissions, and breaches by its Personnel.
2. SHIPMENT AND DELIVERY; DESTRUCTION OF PRODUCTS. PO Seller shall promptly notify Nutanix in writing if Seller’s performance is delayed or likely to be delayed. Such notice shall not constitute a waiver by Nutanix of any of Seller’s obligations hereunder. Title and risk of loss transfers from Seller to Nutanix at the delivery destination upon Nutanix’s actual receiptand acceptance of the Products. In the event Seller fails to deliver the Products within the time specified, Nutanix may, at its option decline to accept the Products and cancel the Order Documents without liability. Seller shall, in marking the Products, comply with the requirements of the customs authorities of the country of receipt. Nutanix’s return shipment to Seller of any of the following Products shall be at Seller’s own risk and expense, including, without limitation, transportation and insurance charges.
3. INSPECTION; INVOICES; PAYMENT; AUDIT. Nutanix shall have thirty (30) days after receipt of Products and before payment to inspect them for conformity to the Order Documents and accept or reject. If Products are rejected, risk of loss shall pass to Seller upon Nutanix's delivery to the common carrier. Unless otherwise specified in the Order Documents, Seller shall invoice Nutanix upon delivery of the Products by submitting invoices via email to firstname.lastname@example.org. Invoices must contain the following information: applicable PO number, description of item, quantities, unit prices, extended totals, shipping information, shipto city and state, taxes, and any other information reasonably required by Nutanix. Applicable taxes and other charges such as shipping costs, duties, customs, tariffs, and government-imposed surcharges shall be stated separately on Seller's invoice. The payment of all undisputed fees shall be due within forty-five (45) days after Nutanix’s receipt of an invoice from Seller in the correct form and manner. Seller agrees to invoice Nutanix no later than one hundred twenty (120) days after delivery of the Products. Nutanix shall not be obligated to make payment against any invoices submitted after such period. Payment of an invoice shall not constitute acceptance, and is subject to adjustment for errors, shortages, or other failure of Seller to meet the requirements of this Agreement and applicable Order Documents. All duties and taxes assessable upon the Products prior to receipt by Nutanix of Products conforming to the Order Documents shall be borne by Seller. Nutanix shall only reimburse Seller for reasonable expenses (at cost and without mark-up) as specified in the applicable Order Documents which are pre-approved in writing by Nutanix and comply with the Nutanix Travel and Expense Policy. Seller shall maintain in reasonable detail accurate records relating to the Agreement. For a period of one year after the date of each Order Documents: (i) Nutanix and its agents may audit Seller’s relevant records to confirm compliance with the Agreement, and (ii) Seller will promptly notify Nutanix and provide Nutanix with reasonably requested information if a government authority audits Seller’s business related to the Products.
4. REPRESENTATIONS AND WARRANTIES. Each Party represents and warrants that: (A) it has full power and authority to enter into and fulfill its obligations under the Agreement, and to grant the rights and licenses it grants the other in the Agreement; and (B) its compliance with the Agreement will not violate any agreements it has with any third party. Seller represents and warrants that: (A) Seller’s performance under the Agreement will be of professional quality and performed with the degree of skill and care that is required by current and sound professional procedures; (B) the Products will comply with the specifications set forth in the Order Documents; (C) Products will be new, unused, and not refurbished at the time of delivery, and will be safe for normal use and substantially free from defects in design, materials, and workmanship (C) it will to the extent it is contractually permitted to do so, provide to Nutanix the benefits of manufacturers’ or suppliers’ warranties and guarantees for material or equipment incorporated into the Products, and will perform its responsibilities so that such warranties or guarantees remain in full effect; and (D) Seller will comply with, and will cooperate with all requests of Nutanix needed to comply with, all applicable laws, rule, regulations, accords, treaties, or other legal obligations whether local, state, federal, or foreign (collectively, “Legal Requirements”). Seller shall make spare parts available to Nutanix three (3) years from the date of shipment at Seller's then current price, less applicable discounts. If Nutanix identifies a warranty problem with the Products during the warranty period, Nutanix will promptly notify Seller of such problems and will return the Products to Seller, at Seller's expense. As soon as reasonably possible, but no less than within thirty(30) days of receipt of the returned Products, Seller shall, at Nutanix's option, either repair or replace such Products, or refund Nutanix for all amounts paid for any defective or non-conforming Products.
5. INDEPENDENT CONTRACTOR AND PERSONNEL. Seller is an independent contractor for all purposes, without express or implied authority to bind Nutanix by contract or otherwise. Seller shall be responsible for all costs and expenses incident to performing its obligations under this Agreement and shall provide Seller's own supplies and equipment. Seller shall ensure that its Personnel observe Nutanix’s work rules, policies and procedures while on Nutanix premises, including without limit those related to integrity, confidentiality, security, personal data and health and safety. If Seller’s Personnel will be accessing Nutanix systems,Seller shall comply with the terms and conditions of the Nutanix Acceptable Use Policy.
6. PRICES AND TAXES. Unless otherwise specified: (A) the prices for the Products shown on the Order Documents are the total maximum amounts owed by Nutanix for the Products, (B) the prices include, without limitation, all costs associated with customs clearance and compliance, shipping, packing, handling, and in-transit insurance charges, and (C) the prices shown on the Order Documents do not include all applicable federal, state, and local taxes. Any license fees shall be included in the price. Except as otherwise required by applicable law, Nutanix shall be solely responsible for the payment of all taxes, including any interest and penalties, in connection with this Agreement, including but not limited to any sales, use, excise, value-added taxes (“VAT”), consumption, and other taxes and duties assessed on the Products. All Products under this Agreement are deemed taxable unless Nutanix provides Seller with a tax exemption certification acceptable to all relevant taxing authorities prior to delivery.
7. INSURANCE. Seller shall solely be responsible for maintaining and requiring Seller’s agents and subcontractors to maintain the following insurance coverage: (A) commercial general liability insurance (including contractual liability coverage) on an occurrence basis for bodily injury, death, “broad form” property damage, and personal injury, with coverage limits of not less than One Million Dollars ($1,000,000) per occurrence and Two Million dollars ($2,000,000) general aggregate for bodily injury and property damage; (B) auto liability insurance covering all owned, non-owned and hired vehicles, with coverage limits of not less than One Million Dollars ($1,000,000) per occurrence for bodily injury and property damage; (C) worker’s compensation insurance as required by lawin the state where the services will be performed, including employer’s liability coverage for injury, disease and death, with coverage limits of not less than One Million Dollars ($1,000,000) per accident and employee; (D) umbrella liability insurance on an occurrence form, for limits of not less than Three Million Dollars ($3,000,000) per occurrence and in the aggregate; (E) professional liability (Errors & Omissions) on an occurrence or claims-made form, for limits of not less than Two Million Dollars ($2,000,000) annual aggregate; and (F) health, unemployment compensation, disability, and other insurance, which shall be maintained by Seller with such adequate coverage as is required by law or as in the common practice in Seller’s and Seller’s subcontractor’s trades or businesses, whichever affords greater coverage. Insurance carriers shall be rated A-1 or better by A.M. Best Company, approved by Nutanix, and licensed to do business in every State where work is being performed. Nutanix, Inc. is to be added as an additional insured on the Commercial General Liability policy. Seller’s Commercial General Liability policy shall be considered primary without right of contribution of any insurance carried by Nutanix insurance policies. Policies shall contain a Severability of Interests clause. Policies shall provide thirty (30) days written notice prior to cancellation, non renewal, or alternation of the coverage either by Seller or the applicable insurer, except in the event of non-payment, which shall require at least ten (10) days’ notice. Such cancellation or alteration will not relieve Seller of its continuing obligation to maintain insurance coverage in accordance with this Agreement. In no event shall the foregoing coverage limits affect or limit in any manner Seller’s contractual liability under this Agreement. Seller shall be solely responsible for ensuring that its subcontractors maintain insurance coverage at levels no less than those required of Seller under this Agreement. All of Seller's activities under this Agreement shall be at Seller's own risk, and Seller's employees and agents shall not be entitled to any benefits under the policies of insurance maintained by Nutanix. Seller shall, upon request, promptly furnish to Nutanix certificates of insurance as well as copies of any endorsements thereto evidencing Nutanix being added as an additional insured.
8. INDEMNITY. Seller shall indemnify, defend and hold harmless Nutanix and its officers, directors, representatives, customers, and employees from any losses, fees, fines, liabilities, damages, demands, suits, causes of action, judgments, costs or expenses (including court costs and reasonable legal fees) arising from a third party claim (A) any personal injury, including death, or damage to property caused by or resulting from Seller’s acts or omissions, (B) any claims that the Products prepared or provided by or on behalf of the Seller hereunder infringe or misappropriate the intellectual property rights of any third party, (C) Seller’s breach of representations or warranties, negligence, willful misconduct, fraud, misrepresentation, or violation of law, or (D) any claims or determinations that a relationship other than that of independent contractor was established between Nutanix and Seller or any of Seller’s Personnel. The Seller shall not settle any such suit or claim without Nutanix's prior written consent if such settlement imposes a payment or other obligation on the Nutanix, requires Nutanix to admit fault or liability, or seeks to impose any limitation on Nutanix's business, other than to discontinue using the infringing or allegedly infringing item. Seller agrees to pay or reimburse all costs that may be incurred by Nutanix in enforcing this indemnity. Should the use of any Products by Nutanix, its distributors, subcontractors, or customers be enjoined, be threatened by injunction, or be the subject of any legal proceeding, Seller shall, at its sole cost and expense, either (a) substitute materially equivalent or better non-infringing Products; (b) modify the Products so that they no longer infringe but remain materially equivalent or better in functionality; (c) obtain for Nutanix, its distributors, subcontractors, or customers the right to continue using the Products; or (d) if none of the foregoing is possible, refund all amounts paid for the infringing Products.
9. CONFIDENTIALITY AND PERSONAL DATA. Seller and its Personnel will (1) keep confidential the terms of the Agreement and all non-public and proprietary Nutanix information and material which has been marked or identified 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”), and will only use such Confidential Information to provide Products under the Agreement, and will not disclose such Confidential Information except to the extent required by law after giving reasonable notice to Nutanix, if permitted by law; and (2) not use in providing Products to Nutanix any materials or documents of another party considered confidential or proprietary unless it has obtained written authorization from that party and Nutanix. Confidential Information includes, but is not limited to, this Agreement, Personal Data, trade secrets, know-how, product roadmap, source code, software, product and technology-related information, customer lists, financial information, sales, marketing, and business plans. Under this Agreement, Seller may obtain from Nutanix certain information relating to identified or identifiable individuals (“Personal Data”), and such Personal Data shall be considered Nutanix Confidential Information. Seller shall have no right, title or interest in Confidential Information obtained by it under this Agreement. In the event Seller has access to Personal Data, the Parties hereby agree and incorporate by reference the 2010/87/EU Model Clauses and the related Data Security Requirements as defined in Section 10, until the Parties execute a Data Processing Addendum (“DPA”), at which point the DPA shall control. If Seller provides Nutanix with any data relating to identified or identifiable individuals, Seller represents and warrants on an ongoing basis that: (1) it fairly and lawfully gathered the data (including, without limitation, names, email address, phone numbers, titles, or any indirectly ordirectly identifying data) being provided to Nutanix for marketing purposes (“List Data”); (2) it will disclose to Nutanix if Seller has not obtained consent from each individual whose personal information is included in the List Data to be provided to Nutanix to (a) share the List Data with Nutanix, or (b) allow Nutanix to use the List Data for its marketing purpose, (3) Seller has all the rights, permissions and authorizations necessary to provide the List Data to Nutanix, and (4) it complies with the 2010/87/EU Model Clauses if incorporated by reference and agrees to execute all documents required by Nutanix for compliance purposes. In the event of an investigation by a data protection regulator or similar authority regarding Personal Data, Seller shall provide Nutanix with reasonable assistance and support, including, where necessary, access to Seller’s premises to the extent needed to respond to such investigation. In the event that Seller is unable to comply with the obligations stated in this Agreement, Seller shall promptly notify Nutanix, engage a third party audit services provider at Seller’s cost to retrieve any needed information or complete any required compliance actions for Nutanix, and Nutanix may do one or more of the following: (i) suspend the transfer of Personal Data to Seller; (ii) require Seller to cease processing Personal Data; (iii) demand the return or destruction of Personal Data; or (iv) immediately terminate this Agreement or any applicable Order Documents. Upon termination of this Agreement or Order Documents for any reason, Seller shall promptly contact Nutanix for instructions regarding the return, destruction or other appropriate action with regard to Personal Data. This Section 9 supplements but does not replace any existing non-disclosure agreement by the Parties, which is hereby incorporated by reference.
10. SECURITY REQUIREMENTS. If Seller has access to, the ability to copy, or processes, any Nutanix Confidential Information or Seller assigns any of its Personnel to provide any Products at Nutanix’s offices or facilities (other than occasional visits for meetings with Nutanix that are not scheduled on a regular basis) or the offices or facilities of the customers of Nutanix, Seller shall comply with the following data security requirements attached herein (“Data Security Requirements”).
11. OWNERSHIP OF WORK PRODUCT. "Work Product" includes, without limitation, all designs, discoveries, creations, works,devices, masks, models, work in progress, Service deliverables, inventions, products, computer programs, procedures, improvements, developments, drawings, notes, documents, information and materials made, conceived, or developed by Seller, alone or with others, which result from or relate to the Products provided pursuant to Order Documents, and all copies thereof. Work Product shall at all times be and remain the sole and exclusive property of Nutanix. Seller hereby agrees to irrevocably assign and transfer to Nutanix and does hereby assign and transfer to Nutanix all of its worldwide right, title, and interest in and to the Work Product including all associated intellectual property rights. Seller agrees: (a) to disclose promptly in writing to Nutanix all Work Product in its possession; (b) to assist Nutanix, at Nutanix's expense, to secure, perfect, register, apply for, maintain, and defend for Nutanix's benefit all intellectual property rights, and all other proprietary rights or statutory protections in and to the Work Product in Nutanix's name as it deems appropriate; and (c) to otherwise treat all Work Product as Nutanix Confidential Information as described above. These obligations to disclose, assist, execute, and keep confidential survive the expiration or termination of this Agreement. All tools and equipment supplied by Nutanix to Seller shall remain the sole property of Nutanix.
12. ANTI-CORRUPTION. Seller agrees not to offer or give any person any gratuity, payment or other inducement with a view toward securing business from Nutanix or improperly influencing the terms, conditions or performance of this Agreement or any Order Documents. Seller shall ensure that Seller and Seller’s Personnel providing Products to Nutanix fully comply with all applicable anti-corruption and anti-bribery laws, and all rules and regulations promulgated thereunder, including the United States Foreign Corrupt Practices Act and the principles of the Organization for Economic Co-operation and Development Convention on Combating Bribery of Foreign Public Officials in International Business Transactions.
13. TERM AND TERMINATION; SURVIVAL OF OBLIGATIONS; SEVERABILITY. The term of this Agreement will begin on the Effective Date and will continue until terminated as specified herein. Nutanix may terminate any POs or this Agreement at anytime, with or without cause, by notifying Seller in writing. Nutanix shall pay Seller for the portion of the Products satisfactorily provided through the date of termination, less appropriate offsets, including any additional costs to be incurred by Nutanix incompleting the Products including reasonable cost of cover. Upon the expiration or termination of this Agreement for any reason Seller will promptly notify Nutanix of all Nutanix Confidential Information or any Work Product in Seller's possession and, at the expense of Seller and in accordance with Nutanix's instructions, will promptly deliver to Nutanix all such Nutanix Confidential Information and/or Work Product. Any obligations and duties that by their nature extend beyond the expiration or termination of this Agreement shall survive the expiration or termination of this Agreement.
14. LIMITATION OF LIABILITY. Under no circumstances is Nutanix liable for any lost revenues, lost profits, incidental, indirect, consequential, special or punitive damages in connection with this Agreement. Nutanix’s liability for direct damages shall be limited to the fees paid for the Products giving rise to the claim under the applicable Order Documents.
15. FORCE MAJEURE; ASSIGNMENT; NOTICES. Neither Party will be liable for failure or delay in performance to the extent caused by circumstances beyond its reasonable control. Nutanix may assign this Agreement. Seller may not assign this Agreement or Seller’s rights hereunder without Nutanix’s prior written consent, which shall not be unreasonably withheld. Subject to the foregoing, this Agreement shall be binding upon and insure to the benefit of the Parties hereto and their respective successors and permitted assigns. All notices required or permitted by this Agreement must be in English and sent in a writing addressed to the authorized representative(s) of the other Party. If no Seller authorized representative is designated in the applicable POs or this Agreement, then Seller’s Legal Department shall be deemed its authorized representative and any notices to Seller shall be addressed to Seller’s Legal Department at Seller’s principal place of business set forth on first page of this Agreement. Unless otherwise specified in this Agreement, notice will be deemed given (i) when delivered personally; (ii) one day after having been sent by commercial overnight carrier specifying next-day delivery with written verification of receipt; and (iv) three days after having been sent by first class or certified mail postage prepaid. A copy of any notice sent to Nutanix must also be sent simultaneously to Nutanix's Legal Department at Nutanix, Inc., 1740 Technology Drive, Suite 150, San Jose, CA 95110.
16. NONEXCLUSIVE AGREEMENT; NO CONSTRUCTION AGAINST THE DRAFTER. This is not an exclusive agreement. Nothing in this Agreement shall be deemed or interpreted as guaranteeing a certain volume of purchasing by Nutanix from the Seller. Nutanix reserves the right to engage others to provide Products the same as or similar to Seller's without notice or liability to Seller.
17. COMPLIANCE WITH LAWS; EXPORT; HAZARDOUS MATERIALS
Seller and Seller’s Personnel will comply with Nutanix’s Supplier Code of Conduct and all applicable international, national, federal, state and local laws, regulations and rules governing the Seller, Products and Work Product. Seller will defend and hold Nutanix harmless from any expense or damage resulting from its violation or alleged violation of any such law or regulation in the performance of this Agreement. Seller shall not export or re-export any software, personal computer system, part, technical data orsub elements under the POs (“Technical Data”), directly or indirectly in violation of export control laws or regulations of the United States or other countries including the United States Department of Commence Denial and Probation Orders and sanctions administered by the Office of Foreign Assets Control, and, furthermore, shall not distribute Technical Data to any country, firm or person listed on such Orders or sanctions. Technical Data is prohibited for export or re-export to any destinations prohibited by applicable rules, regulations, and export and import laws without first obtaining a license (including, but not limited to Cuba, NorthKorea, Iran, Syria and Sudan or to any country subject to relevant trade sanctions). Seller is responsible for maintaining internal procedures to comply with relevant export laws and agrees that such compliance shall be at its own expense and legal direction. Seller shall obtain and maintain in effect all licenses, permits and authorizations required for the performance of its obligations hereunder and shall provide Nutanix with all applicable information to enable Nutanix’s compliance with relevant laws and regulations, including, but not limited to, applicable U.S. Export Control Classification Numbers and other information as Nutanix may reasonably request. Seller warrants that all Products shall be free of hazardous materials and agrees to supply to Nutanix material safety data sheets, certificates of compliance and all other documents and information reasonably required by Nutanix to comply with laws applicable to the Products. Seller shall provide updates when changes are made to these documents or at any time upon Nutanix’s request.
18. PUBLICITY; COUNTERPARTS; DELEGATION AND SUBCONTRACTING. Seller and its Personnel shall not use Nutanix's trademarks, service marks, trade names, logo, or other commercial or product designations for any purpose, or make any public statement whatsoever (including, without limitation, press releases, media statements, case studies or the like) regarding the existence of this Agreement or the Parties' relationship without obtaining prior express written consent from Nutanix’s Public Relations department on a case by case basis. Any approval or consent given by Nutanix under this Agreement for any continued use may be revoked by Nutanix at any time by giving Seller written notice of such revocation. Seller may not delegate or subcontract any of its obligations under the Agreement without Nutanix’s written consent. Seller shall remain liable for all subcontracted obligations and all acts or omissions of its subcontractors.
19. APPLICABLE LAW AND EQUITABLE RELIEF. This Agreement shall be governed by and construed exclusively in accordance with the laws of California without regard to principles of conflicts of law. The Parties consent to exclusive jurisdiction and venue in the courts of Santa Clara County, California. The Parties expressly agree that the provisions of the United Nations Convention on Contracts for the International Sale of Goods shall not apply to this Agreement or to their relationship. Notwithstanding anything to the contrary, either Party may seek injunctive relief to protect its Confidential Information or intellectual property at any time and in any court of law or equity of competent jurisdiction.
20. NO WAIVER; SUBJECT HEADINGS; ENTIRE AGREEMENT. Neither the failure nor the delay of either party to enforce any provision of the Agreement shall constitute a waiver of such provision. This Agreement supersedes any other prior and contemporaneous understandings and agreements between the parties. In the event of any conflict between the terms of this Agreement and the terms of any Order Documents issued hereunder, the terms of this Agreement shall govern.