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Terms of Service

IMPORTANT- READ CAREFULLY

THESE NUTANIX TERMS OF SERVICE (“TERMS OF SERVICE”) GOVERN THE USE OF THE NUTANIX BEAM SERVICES, RELATED SOFTWARE, WEBSITES, AND ANY OTHER PRODUCTS AND/OR SERVICES WE MAY OFFER FROM TIME TO TIME (COLLECTIVELY KNOWN AS THE “SERVICES”). THESE TERMS OF SERVICE ARE BETWEEN YOU OR THE ENTITY YOU REPRESENT (“CUSTOMER,” “YOU,” OR “YOUR(S)”) AND; (I) IF THE SERVICES ARE PURCHASED AND/OR ACCESSED FROM ANY LOCATION IN THE AMERICAS, NUTANIX, INC, LOCATED AT 1740 TECHNOLOGY DR., STE. 150, SAN JOSE, CA 95110; OR (II) IF THE SERVICES ARE PURCHASED OR ACCESSED FROM ANY LOCATION OUTSIDE OF THE AMERICAS, NUTANIX NETHERLANDS, B.V., LOCATED AT SCORPIUS 100, 2132 LR HOOFDDORP, THE NETHERLANDS;  (BOTH NUTANIX ENTITIES ARE COLLECTIVELY KNOWN AS “NUTANIX,” “OUR,” “US,” AND/OR “WE”).

YOU ACCEPT AND AGREE TO THESE TERMS OF SERVICE, EITHER BY: 1) CLICKING A BOX INDICATING ACCEPTANCE; 2) EXECUTING OR AGREEING TO AN ORDER FORM AND/OR ISSUING A PURCHASE ORDER THAT REFERENCES THESE TERMS OF SERVICE; OR 3) OTHERWISE ACCESSING OR USING THE SERVICES. IF YOU ARE ENTERING INTO THESE TERMS OF SERVICE ON BEHALF OF A COMPANY OR OTHER LEGAL ENTITY, YOU REPRESENT THAT YOU HAVE THE AUTHORITY TO BIND SUCH COMPANY OR ENTITY TO THESE TERMS OF SERVICE, IN WHICH CASE THE TERM "CUSTOMER," “YOU,” AND/OR “YOUR(S)” SHALL ALSO REFER TO SUCH COMPANY OR ENTITY. THESE TERMS OF SERVICE SUPERSEDE ALL PREVIOUS VERSIONS OF THE TERMS OF SERVICE THAT MAY HAVE BEEN POSTED AT THE APPLICABLE OR SUCCESSOR URL OR PROVIDED TO YOU. ADDITIONALLY, WE RESERVE THE RIGHT TO MODIFY THESE TERMS OF SERVICE WITHOUT NOTICE. YOUR CONTINUED USE OF THE SERVICES AFTER SUCH MODIFICATION SHALL CONSTITUTE YOUR BINDING ACCEPTANCE OF SUCH CHANGES. BY ACCESSING OR USING THE SERVICES, YOU FURTHER ACKNOWLEDGE AND AGREE THAT YOU HAVE READ, UNDERSTAND AND AGREE TO BE BOUND BY THE TERMS WITHIN THE NUTANIX PRIVACY STATEMENT FOUND AT: https://www.nutanix.com/privacy-policy/ (“Privacy Statement”).  IF YOU DO NOT AGREE TO, OR CANNOT COMPLY WITH THESE TERMS OF SERVICE, YOU MUST STOP USING THE SERVICES.

 

SERVICES

In accordance with these Terms of Service, Nutanix will make the Services available to You.  Your right to use or access the Services is limited to the subscription and/or level of usage you have purchased through the applicable ordering process as well as any applicable documentation provided here or at portal.nutanix.com.

The Services consist of an integrated operational platform for the purpose of providing You with operational and usage management as well as key metrics related to Your use of certain public cloud services. The Services include but are not limited to, those found at beam.nutanix.com or those provided as part of the Services such as backend services (e.g. web services) or functions that enable You to run comprehensive audits to get insights and metrics related to things such as disaster recovery, cloud security, performance and log search.

To access the Services, you must register for an account by providing an active email address, creating a password, and providing Nutanix with other information We may request.  You agree to provide Nutanix with accurate, complete, and current information during this registration process and that You are fully responsible for all activities that occur under Your registered user name and password, including Your agreement to take efforts to ensure that your password remains confidential and secure.

You may specify one or more administrators (each an “Administrator”) to manage Your account(s). Administrators have the ability to access, monitor, use, export and disclose all data in accordance with applicable local laws. You and Your Administrator remain responsible for: (i) the selection of Administrator(s); (ii) maintaining the confidentiality of passwords and Administrator accounts; (iii) managing access to Administrator accounts; and (iv) ensuring that each Administrator’s use of the Services complies with these Terms of Service. Nutanix shall not be held liable for any actions on the part of Customer’s Administrator(s).

If You become aware of any unauthorized use of Your account, You agree to notify us at beam-support@nutanix.com or by submitting a support request at beam-support@nutanix.com.  You agree to provide Us with any reasonable additional information We may need in order to confirm Your identity and help to secure Your account.

The Services include three levels of Customer controlled troubleshooting (“Policy Based Solutions”). When Policy Based Solutions are enabled by You and a problem is detected with the Services, You have the following options to proactively implement one of the following Policy Based Solutions:

  1. A policy based action that will fix the problem directly and enable an automated notification to You when the problem is fixed.
  2. A pop-up notification that contains step-by-step instructions on best practices You may follow to fix the problem.
  3. A link to a documentation page, knowledge-base, or external site where the information related to fixing your problem may be available to You.

 

FEES AND PAYMENT

By subscribing to the Services and providing payment account information, You agree to these payment terms and conditions. Fees are non-refundable except as required by law or as explicitly set forth herein. You will pay all applicable fees when due, and, if such fees are being paid via credit card or other electronic means, You authorize Nutanix to charge such fees using Your selected payment method. Your accounts may auto-renew and require recurring payments. Fees will be charged on an annual or monthly basis based on Your subscription. Nutanix may automatically charge You for such renewal on or after the renewal date associated with Your account unless You or Nutanix has agreed otherwise or either party has effectively terminated the Services. You must cancel the Services prior to the renewal date in order to avoid billing of the next period’s fee. If You choose to cancel the Services, You may use the Services until the end of the current applicable Services period, but will not be issued a refund for the most recently (or any previously) charged fees. You can cancel Services anytime online by going into the Your account settings prior to the renewal date of the applicable Services period.

Nutanix may revise fee rates and/or the billable amount for the Services from time to time and will provide You with reasonable advance notice of any changes in fees prior to the renewal of the applicable Services period. You are responsible for providing complete and accurate billing information to Nutanix. Nutanix may suspend or terminate Your use of the Services if fees become past due. You are responsible for all taxes (excluding taxes on Nutanix’s net income) and Nutanix will charge tax when required to do so by law.

If You require the use of a purchase order or purchase order number, You; (a) must provide the purchase order number at the time of purchase; and (b) agree that any terms and conditions of such purchase order that conflict with these Terms of Service will not apply and are null and void.

 

NUTANIX OBLIGATIONS AND LICENSE TO THE SERVICES

Nutanix gives you a limited, worldwide, non-exclusive, non-sublicensable, non-transferable, revocable license to access and use the Services including the software, design, text, materials, visuals, graphic materials, and names, logos, trademarks, service marks, and/or any other proprietary marks provided to you (by Nutanix); (a) for the purpose of using the Services as described in this Terms of Service; (b)  in compliance with the Nutanix Privacy Statement found at: https://www.nutanix.com/privacy-policy/ ; (c) and in accordance with any other restriction described on the applicable ordering document.

You agree that Nutanix may revoke your license to the Services at any time in its sole discretion.  Additionally, Nutanix may modify, delete, add new features, update any portion of the Services or Policy Based Solutions at any time. Nutanix may interrupt or suspend any portion of the Services with or without prior notice to you.

 

CUSTOMER OBLIGATIONS

You agree that you are responsible for all activities conducted under any user logins and for obtaining and maintaining any equipment or ancillary services needed to connect to, access or otherwise use the Services.

You agree that is it your responsibility alone to take appropriate measure to isolate and backup your own systems, including computer programs, data and files, and take any other actions that may be necessary to protect your own systems and data. You acknowledge that your data may be altered or damaged in the course of providing the Services

You represent and warrant that you will use the Services solely for Your internal business purposes and shall not; (a) resell, sublicense, lease, time-share or otherwise make the Services available to any third party; (b) send or store infringing or unlawful material, texts, files or other content using the Services; or (c) attempt to gain unauthorized access to, or disrupt the integrity or performance of the Services or any data contained therein; (d) modify, copy, or create derivative works based on the Services; (e) post, upload and/or propagate any virus, worms, trojan horses, or other programming routine intended to damage any system or data; (f) access the Services for the purpose of building a competitive product or service, reverse engineer or copy any features or user interface of the Services; (g) use the Services, or permit the Services to be used, for the purposes of product evaluation, benchmarking or other comparative analysis intended for publication; or (h) permit access to the Services by a direct competitor of Nutanix.

You agree to protect the proprietary rights of Nutanix and all others having rights in the Services during and after the term of the Services and to comply with all reasonable written requests made by Nutanix or its suppliers and licensors of the content or otherwise to protect the contractual, statutory, and/or common law rights in the Services.  To use the Services, you must be at least 13 years of age and competent to agree to these Terms.  The Services are controlled and operated in the United States of America. Nutanix makes no representations that the Services are appropriate for use in other locations.  If You access or use the Services from other locations, you represent and warrant that you will comply with local law and You do so at Your own risk and liability.

 

THIRD PARTY PRODUCTS, WEBSITES, AND SERVICES

The Services may include (1) information and content provided by third parties; and/or (2) links to third-party websites or resources. Nutanix makes no representations or warranties with respect to such third-party websites or resources and is not responsible for the availability of such external sites or resources. Nutanix does not endorse and is not responsible or liable for; (a) any content, advertising, products, or other materials on or available from such sites or resources, (b) any errors or omissions in these websites or resources; or (c) any information handling practices or other business practices of the operators of such sites or resources. You further acknowledge and agree that Nutanix is not responsible or liable, directly or indirectly, for any damage or loss caused or alleged to be caused by or in connection with use of or reliance on any linked websites or resources. Your interactions with such third parties will be governed by the third parties’ own terms of service and privacy policies, and any other similar terms.

You acknowledge that the third party products and services may include the trademarks, service marks, or other intellectual property of such third party.  You agree to comply with the terms and rights reserved in such intellectual property of such third party and Nutanix shall have no obligation or liability to You or that third party for the use of such intellectual property that may reside within the Services.

YOU EXPRESSLY WAIVE ANY AND ALL CLAIMS AND CAUSES OF ACTION WITH RESPECT TO ANY CLAIMS THAT MAY ARISE OR DAMAGES CAUSED FROM ACCESS AND/OR USE OF SUCH THIRD PARTY WEBSITES, RESOURCES, PRODUCTS AND/OR SERVICES.

 

INTELLECTUAL PROPERTY

Except for the limited license granted by Nutanix for the use of the Services, Nutanix retains all Intellectual Property Rights and you acquire no right or interest in any such intellectual property by virtue of these Terms of Service or use of the Services.

“Intellectual Property Rights” shall mean copyright rights (including, without limitation, the exclusive right to use, make recordings of, reproduce, modify, adapt, edit, enhance, maintain, support, market, sell, rent, sell for rental, sublicense, distribute copies, publicly and privately display and publicly and privately perform, exploit, exhibit, the copyrighted work and to prepare derivative works), copyright registrations and applications, trademark rights that are pending registration, registered and unregistered (including, without limitation, trade names, trademarks, service marks and trade dress that are registered, unregistered and or pending registration) trademark and service mark registrations and applications, patent rights (including without limitation the exclusive right to make, use and sell), patent registrations and applications, mask-work rights, trade secrets, moral rights, author’s rights, right of publicity, contract and licensing rights, rights in packaging, goodwill and other intellectual property rights, as may exist now and/or hereafter come into existence, and all renewals and extensions thereof, regardless of whether any of such rights arise under the laws of any state, country or jurisdiction.

When you use, upload, submit, store, send or receive content to or through our Services or through a support issue submission, you give Nutanix (and those we work with) a worldwide license to use, host, store, reproduce, modify, create derivative works (such as those resulting from translations, adaptations or other changes we make so that your content works better with our Services), communicate, publish, publicly perform, publicly display, commercialize anonymous data, provide data intelligence services and distribute such content in its anonymous form. The rights you grant in this license are for the unlimited purpose of operating, publishing, promoting, and improving our Services, distributing data intelligence to others, and to develop new features and/or enhancements to the Services.

 

MODIFICATIONS, UPDATES

Modification of Services. Nutanix reserves the right to modify, update or discontinue, temporarily or permanently, the Services (or any part thereof), with or without notice. You agree that Nutanix shall not be liable to you or any third party for any modification, suspension or discontinuance of the Services.

 

COMPLIANCE WITH LAWS

You agree to comply with all laws, rules, and regulations applicable to these Terms of Service including any laws and regulations related to United States Export controls. If We pay any fine or penalty resulting from your violation of such laws, rules or regulations, you shall indemnify Nutanix for such fine or penalty, including any costs related to legal fees or administration.

You represent and warrant that You are not located in a country that is subject to a U.S. Government embargo, and/or that You are not listed on any U.S. Government list of prohibited or restricted parties or countries. You acknowledge that the Services are designed with capabilities to access the Services without regard to geographic location and to transfer or otherwise move Your data and applications between the Services and other locations. You are solely responsible for the authorization and management of user accounts for this purpose, as well as export control and geographic transfer of any Nutanix data, software, code, specifications, and/or applications.

 

DATA TRANSFERS

The following definitions apply to this section: (a) "controller," "processor," "data subject," and "processing" (and "process") shall have the meanings given to them in Applicable Data Protection Law; (b) "Applicable Data Protection Law" means any and all applicable privacy and data protection laws and regulations applicable to the Personal Data in question, including, where applicable, EU Data Protection Law (in each case, as such law(s) may be amended, superseded or replaced from time to time); (c) "EU Data Protection Law" means: (i) the EU General Data Protection Regulation (Regulation 2016/679) ("GDPR"); (ii) the EU e-Privacy Directive (Directive 2002/58/EC); (iii) any national data protection laws made under or pursuant to clause (i) or (ii); and (d) "Personal Data" means any information relating to an identified or identifiable natural person to the extent that such information is protected as personal data under Applicable Data Protection Law.

Where the Applicable Data Protection Law in the European Economic Area ("EEA"), United Kingdom and/or Switzerland (for the purposes of these Terms of Service, collectively referred to as the "EU'), applies to the Personal Data ("EU Personal Data"), neither You or Nutanix shall process any EU Personal Data (nor permit any EU Personal Data to be processed) in a territory outside of the EU unless the party processing such data has taken the measures necessary to ensure the transfer is in compliance with Applicable Data Protection Law. To the extent You transfer EU Personal Data to Nutanix and Nutanix is located in a territory outside the EU that does not provide adequate protection for Personal Data (as determined by Applicable Data Protection Law),  Nutanix agrees to abide by and process such EU Personal Data in accordance with the Standard Contractual Clauses for Controllers as approved by the European Commission and available at http://eur-lex.europa.eu/legal-content/EN/TXT/?uri=CELEX%3A32004D0915 (as amended, superseded or updated from time to time) ("Model Clauses"), which are incorporated by this reference and form an integral part of these Terms of Service. Nutanix agrees that it is a "data importer" and You are the "data exporter" under the Model Clauses (notwithstanding that Nutanix may be an entity located outside of the EEA). For clarity, upon certification to the EU-U.S. and/or Swiss-U.S. Privacy Shield Framework(s) (https://www.privacyshield.gov ) such certification will replace the Model Clauses referenced herein.

 

WARRANTY DISCLAIMER

NUTANIX MAKES NO WARRANTIES OF ANY KIND, WHETHER IMPLIED, STATUTORY OR OTHERWISE, INCLUDING ANY WARRANTIES OF MERCHANTABILITY, NONINFRINGEMENT OR FITNESS FOR A PARTICULAR PURPOSE. NUTANIX DOES NOT WARRANT THAT THE   OPERATION   OF   THE SERVICES AND RESULTS OF THE SERVICES WILL BE UNINTERRUPTED OR ERROR- FREE.

NUTANIX DOES NOT ASSUME ANY LIABILITY WHATSOEVER WITH RESPECT TO ANY THIRD PARTY HARDWARE, FIRMWARE, SOFTWARE OR SERVICES. WE MAY OFFER NEW “BETA,” “EARLY ACCESS,” OR TRIAL/FREE SERVICES, FEATURES, OR TOOLS FOR YOU TO EXPERIMENT WITH AND THESE ARE PROVIDED WITHOUT ANY WARRANTY AND MAY BE MODIFIED OR DISCONTINUED AT ANY TIME AT OUR DISCRETION. YOU AGREE THAT YOU SHALL NOT RELY ON ANY OF THESE BETA, EARLY ACCESS, TRIAL/FREE SERVICES AND/OR FEATURES FOR ANY CURRENT OR FUTURE PURCHASING DECISION.

 

LIMITATION OF LIABILITY

IN NO EVENT SHALL NUTANIX BE LIABLE FOR ANY DIRECT, INDIRECT, INCIDENTAL, SPECIAL, PUNITIVE, OR CONSEQUENTIAL DAMAGES, OR ANY LOSS OF BUSINESS, OR GOODWILL, LOSS OF REVENUE, PROFITS, DATA, OR DATA USE. NO ACTION ARISING OUT OF THESE TERMS OF SERVICE, REGARDLESS OF THE FORM OF ACTION, MAY BE BROUGHT BY YOU MORE THAN ONE YEAR AFTER THE ACTION ACCRUED. IN NO EVENT WILL OUR LIABILITY FOR ANY CAUSE OF ACTION ARISING OUT OF OR RELATED TO THESE TERMS OF SERVICE WHETHER IN CONTRACT OR TORT OR BREACH OF WARRANTIES OR STRICT LIABILITY OR FAILURE OF ESSENTIAL PURPOSE OR OTHERWISE EXCEED THE AMOUNT OF TOTAL FEES ACTUALLY PAID BY YOU FOR THE SERVICES UNDER THESE TERMS OF SERVICE IN THE ONE (1) MONTH IMMEDIATELY PRECEDING THE INCIDENT GIVING RISE TO THE CLAIM OR EQUIVALENT AMOUNT, AS CALCULATED ON AN AMORTIZED BASIS.

 

INDEMNIFICATION

Nutanix shall defend, indemnify and hold You harmless against any damages, settlements or costs (including reasonable attorneys' fees) incurred in connection with claims, demands, suits, or proceedings  ("Claim(s)"), made or brought against You by an unaffiliated third party alleging that the use of the Services as contemplated hereunder  infringes  the  U.S. intellectual property  rights  of such  third  party,  provided  that You;  (a) promptly give written notice of the Claim to Nutanix; (b) give Nutanix sole control  of the defense and settlement of the Claim (provided that Nutanix may not settle any Claim without Your consent  unless  it  unconditionally releases You of all liability); and (c) provide to Nutanix all reasonable assistance requested by Nutanix, with out-of- pocket expenses for such assistance borne by Nutanix.

Nutanix may, at its sole option and expense: (i) procure for You the right to continue using the Services hereunder; (ii) replace or modify the Services to be non-infringing without material decrease in functionality; or (iii) if the foregoing options are not reasonably practicable, terminate the license for the infringing Services and refund to You the prepaid fees for the remainder of the Term or after the date of termination.

Excluded from Nutanix’s indemnification obligations are Claims arising out of the Your use of the Services: (i) in combination with any product, software, service or device not furnished by Nutanix or approved in writing by Nutanix; or (ii) other than in accordance with these Terms of Services.

The provisions of this Section set forth Nutanix’s sole and exclusive obligation, and Your sole and exclusive remedy, with respect to infringement or misappropriation of third party intellectual property rights of any kind.

You shall defend, indemnify and hold Nutanix harmless against any damages, settlements or costs (including reasonable attorneys' fees) incurred in connection with Claims made or brought against Nutanix by a third party alleging that; (i) Your data or Your use of the Services infringes the intellectual property rights of, or has otherwise harmed, such third party; or (ii) you have violated any terms within the Nutanix Privacy Statement or applicable law provided that Nutanix (a) promptly gives written notice of the Claim to You; (b) gives You sole control of  the  defense  and  settlement  of the Claim (provided that You may not settle any Claim without Nutanix’s consent unless it unconditionally releases Nutanix of all liability); and (c) provides to You all reasonable assistance requested by You, with out-of-pocket expenses for such assistance borne by You.

 

FREE TRIALS

We may offer a free trial of the Services from time to time as part of our Services evaluation process and to solicit feedback or information about the use of the Services.  Nutanix shall own any suggestions, enhancement requests, recommendations, or other feedback provided by You relating to the Services.  We may terminate or extend a free trial of the Services for any reason without notice to you.

 

TERMINATION

Unless otherwise agreed upon in the applicable ordering document, You may terminate these Terms of Service at any time for any reason by giving Us 30 days notice in writing and also by closing your account. Upon termination by You, the Services and/or Your account will no longer be available and accessible. Termination under this section shall not entitle You to a refund of any pre-paid fees and the termination of these Terms of Service and/or disablement of Your account shall not release you from the obligation to make payments of all amounts then or thereafter due and payable.  Nutanix may terminate the Services without notice for the non-payment of any fees due and payable for more than 30 days and shall be entitled to charge and invoice You for reasonable interest on any fees outstanding (such reasonable interest shall be the greater of; (i) 1.5% of the total fees owed; or (ii) the percentage allowable under applicable law).

We reserve the right to disable, suspend or terminate use of all or any portion of the Services at any time if your use of the Services is causing harm to Your Services or to the Services provided to other Nutanix customers.  We are not liable to you or to any third party for the deletion of data or any other result from the suspension or termination of the Services for any of the foregoing reasons.

All provisions related to intellectual property, payment, warranty, confidentiality, indemnity, governing law and limitation of liability shall survive termination of these Terms of Service.

 

CONFIDENTIALITY

"Confidential Information" shall mean the Services, any technical specifications, related materials or documentation and all other information disclosed to You whether in writing or orally, except for information which You can demonstrate: (a) is previously rightfully known to You without restriction on disclosure; (b) is or becomes, from no act or failure to act on Your part, generally known in the relevant industry or public domain; (c) is disclosed to You by a third party as a matter of right and without restriction on disclosure; or (d) is independently developed by You without access to the Confidential Information. You shall use Your best efforts to preserve and protect the confidentiality of the Confidential Information at all times.  You shall not disclose, disseminate or otherwise publish or communicate Confidential Information to any person, firm, corporation or other third party without the prior written consent of Nutanix.  You shall not use any Confidential Information other than in the course of the activities permitted hereunder.  You shall notify Nutanix in writing immediately upon discovery of any unauthorized use or disclosure of Confidential Information or any other breach of these Terms of Service and will cooperate with Nutanix in every reasonable way to regain possession of Confidential Information and prevent any further unauthorized use. If You are legally compelled to disclose any of the Confidential Information, then, prior to such disclosure, You will (i) immediately notify Nutanix prior to such disclosure to allow Nutanix an opportunity to contest the disclosure, (ii) assert the privileged and confidential nature of the Confidential Information, and (iii) cooperate fully with Nutanix in protecting against any such disclosure and/or obtaining a protective order narrowing the scope of such disclosure and/or use of the Confidential Information. In the event such protection is not obtained, You shall disclose the Confidential Information only to the extent necessary to comply with the applicable legal requirements.  The foregoing obligations shall survive any termination or expiration of this these Terms of Service or other such successor terms or agreement as applicable to the Service.

Our Privacy Statement may be found at: https://www.nutanix.com/privacy-policy/ . By using our Services, you agree to the terms and conditions incorporated into this Privacy Statement.

 

MISCELLANEOUS

The parties are independent contractors and no partnership, franchise, joint venture, agency, fiduciary or employment relationship between the parties is created hereby. There are no third party beneficiaries to under these Terms of Service.

Notices shall be in writing, sent using a recognized private mail carrier or the United States Postal service and effective on proof of delivery.

Nutanix may, with prior written consent, include You or the entity you represent in its customer lists, marketing, or other public statements as may be agreed upon between You and Nutanix.

No amendment or waiver of any provision of these Terms of Service shall be effective unless in writing and signed by You and Nutanix. In the event of any conflict between these Terms of Service and any other applicable schedule, attachment or ordering document, these Terms of Service shall prevail unless expressly stated otherwise. Notwithstanding any language to the contrary therein, no terms stated in a purchase order or in any other order document shall be incorporated into these Terms of Service, and all such terms shall be void. These Terms of Service, which includes any documents and links referenced herein, represent the entire agreement of the parties, and supersedes all prior or contemporaneous agreements, proposals or representations, written or oral, concerning the subject matter herein.

No failure or delay in exercising any right hereunder shall constitute a waiver of such right. Except as otherwise provided under these Terms of Service, remedies provided herein are in addition to, and not exclusive of, any other remedies of a party at law or in equity. If any provision of these Terms of Service are held by a court of competent jurisdiction to be contrary to law, such provision shall be modified by the court and interpreted so as best to accomplish the objectives of the original provision to the fullest extent permitted by law, and the remaining provisions shall remain in effect.

Neither party shall be liable to the other for any delay or failure to perform hereunder (excluding payment obligations) due to a natural disaster, actions or decrees of governmental bodies or communications line failure which; (i) hinders, delays or prevents a party in performing any of its obligations; and (ii) is beyond the control of, and without the fault or negligence of, such party, and (iii) by the exercise of reasonable diligence such party is unable to prevent or provide against (“Force Majeure Event).

Neither party may assign any of its rights or obligations hereunder, whether by operation of law or otherwise, without the prior written consent of the other (not to be unreasonably withheld).  Notwithstanding the foregoing, Nutanix may assign these Terms of Service in their entirety, without Your consent, to its successor in interest in connection with a merger, reorganization, or sale of all or substantially all assets or equity. Any attempted assignment in breach of this Section shall be void. These Terms of Service shall bind and inure to the benefit of the parties, their respective successors and permitted assigns.

These Terms of Service shall be governed exclusively by the internal laws of the state of California, without regard to its conflicts of laws rules. The United Nations Convention on Contracts for the International Sale of Goods shall not apply. The parties hereby consent to the exclusive jurisdiction of the state and federal courts located in Santa Clara, County, California, for resolution of any disputes arising out of these Terms of Service.