These General Terms and Conditions along with the NLSA and the Datasheet describing the services to be performed set forth the terms and donditions under which Nutaix will provide professional services to our Customers.
2.1. Customer Responsibilities
The following responsibilities are the obligation of the Customer:
- The successful delivery of the Services and the conditions relating to Nutanix’s performance are dependent upon assumptions, which Nutanix has made in agreeing to perform the Services, as set forth herein.
- If any of the Customer’s responsibilities are not performed or the assumptions defined in theses General Terms and Conditions and the Datasheet (together “Datasheet”) are incorrect and it causes delays to the project schedule, varies the level of effort required, increases Nutanix’s resource costs, or otherwise impacts Nutanix’s performance of the Services, Nutanix will have no liability to Customer or any third party with respect to its ability to perform the Services resulting therefrom and Nutanix shall have the right to increase the fees for the engagement. Nutanix will document the change details and additional fees to implement the change in accordance with the agreed-upon change request process set out in section 2 of these General Terms and Conditions.
- Prior to the commencement of Services, Customer will indicate to Nutanix in writing a person to be the single point of contact (the “Customer Contact”). The Customer Contact will have the required authority to make project decisions and provide access to stakeholders, as necessary.
- The Customer Contact will have the authority to act for Customer in all aspects of the Services including bringing issues to the attention of the appropriate persons within Customer’s organization and resolving conflicting requirements.
- The Customer Contact will ensure that any communication between Customer and Nutanix, including any scope related questions or requests, are made through the Nutanix Contact in writing.
- Prior to the commencement of Services, Customer will provide technical points-of-contact “Technical Contact(s)”, who will have a working knowledge of the enterprise components to be considered during the Services. Nutanix may request that meetings be scheduled with Technical Contact(s). It is the Customer’s responsibility to ensure technical personnel are made available within a reasonable timeframe for requested meetings, document reviews, etc.
- Customer Contact, Technical Contact’s, and stakeholders attend the engagement kickoff meeting, as necessary.
- Customer Contact will distribute information internally to any missing Technical Contacts and stakeholders in a timely manner.
- During the performance of Services, Customer is responsible for promptly notifying Nutanix in writing of:
- Any changes Customer makes to its technical environment that may impact Nutanix’s delivery of the Services
- If Customer becomes aware that any of the assumptions set forth herein are incorrect
- Customer will maintain a backup of all data and programs on affected systems prior to Nutanix performing the Services and during the term of Services. Nutanix will have no liability for loss or recovery of data, programs, or loss of use of system(s) arising out of or in connection with the Services provided hereunder. The Customer Contact will obtain and provide project requirements, information, data, decisions, and approvals within a timely manner, as to not delay project delivery.
- Customer will restrict access to information not related to the Services, including, but not limited to, proprietary customer business/financial information and personally identifiable information (“PII”).
- Customer may be responsible for developing or providing documentation, materials, and assistance to Nutanix and agrees to do so in a timely manner. Nutanix shall not be responsible for any delays in completing its assigned tasks to the extent that they result from Customer’s failure to provide such documentation, materials, and assistance in a timely manner.
- The Customer Contact will ensure the Nutanix personnel has reasonable and safe access to the Work Location(s), a safe working environment, adequate office space, and parking as required. Customer will provide any personal protective gear required while Nutanix personnel is onsite.
- Customer will inform Nutanix of all access issues and security measures, and provide access to all necessary hardware and facilities, included but not limited to network access, remote access, and appropriate access credentials.
- Customer is responsible for providing all hardware, software, internet access, and facilities for the successful completion of the Services, including but not limited to 3rd party licensing, on active support for the 3rd party software, networking, facilities, and electrical power that meeting Nutanix’s requirements for the products and Services purchased.
- Customer must be active on Support for the relevant Nutanix software during the term of the Services. Support shall be provided by Nutanix in accordance with Support Terms available at https://www.nutanix.com/support-terms/.
2.2. Nutanix Responsibilities
Nutanix accepts the following responsibilities for the terms specified in the Datasheet:
- Provide appropriately skilled resources for this project;
- Perform the Services as defined in the Datasheet; and
- Provide a Nutanix Contact for the general project activities specified in the Datasheet.
The performance of Services hereunder assumes the following:
- After the Datasheet has been accepted by Customer and Flex Credits availability has been confirmed, a Nutanix Project Coordinator will contact Customer to begin Services scheduling. The Services commencement shall be agreed between the parties and the lead time for allocating the resources required for the provision of the Services may be between four and six weeks. Customer shall notify Nutanix that the Customer’s pre-engagement responsibilities have been satisfied prior to the commencement date.
- This Datasheet is subject to the terms of the Nutanix License and Services Agreement available at http://www.nutanix.com/eula (“NLSA”).
- The Services do not include the development of any intellectual property created solely and specifically for Customer. Should intellectual property be created, Nutanix retains all right, title, and interest in and to such intellectual property.
- In the event of termination or cancellation of the Services by the Customer for any reason prior to the services end date, all fees payable (but as yet not due to be paid) will immediately become due and payable.
- Except for payment obligations and obligations pertaining to non-disclosure, notwithstanding any contrary provision in the Datasheet, neither Party will be liable for any action taken, or any failure to take any action required to be taken, in the event and to the extent that the taking of such action or such failure arises out of causes beyond a party’s control, including, without limitation, war, civil commotion, act of God, strike or other stoppages (whether partial or total) of labor, epidemic, pandemic, any law, decree, regulation or order of any government or governmental body (including any court or tribunal).
2.3.1 Service Hours and Staffing
Nutanix provides Services between the hours of 8:00 AM and 5:00 PM local Customer time, Monday through Friday, excluding normally observed holidays. Services provided outside these times will be agreed upon in writing by both parties, in advance and may be subject to additional fees. Some or all Services may be delivered remotely, as appropriate.
2.3.2 Acceptance Criteria
Nutanix will inform Customer Contact in writing upon the completion of Services and/or milestones. Nutanix will provide Customer with a Milestone Completion Form (“MCF”) to indicate Customer’s acceptance of the Services. Customer shall either accept or reject the Services within five (5) business days of receipt of the MCF (“Acceptance Period”).
Customer must provide a detailed written notice of rejection specifying any non-conformance for the failure of the Services to meet the specifications set forth in the Datasheet within the Acceptance Period. Upon receipt of a rejection notice, Nutanix will respond promptly and make commercially reasonable efforts to resolving such deficiencies within a reasonable period of time.
Failure to provide written rejection of the Services within the Acceptance Period will result in an automatic deemed acceptance and the Services will be considered complete and closed.
3. Change Management
Customer may request a modification to the scope of Services upon written notice via a Change Request form. The Change Request Form is a document provided by the Nutanix Contact outlining the requested changes.
The Change Request form shall describe the requested modifications in sufficient detail. Customer will acknowledge within three (3) business days following the receipt of the completed Change Request form, which will provide an estimate of the cost and scope impact to complete the proposed modified Services.
Changes agreed pursuant to the Change Request will not be effective until mutually executed by both parties, and may result in additional fees or the consumption of additional FlexCredits.
4. Pre-Paid Fees for services
FlexCredits and pre-paid fees for Services are non-cancellable and non-refundable and Nutanix’s obligations to perform any Services in return for any FlexCredits and/or pre-paid fees shall expire twelve (12) months after receipt of the applicable purchase order. The Client has five (5) days upon delivery of the Services to sign a Milestone Acceptance Form (“MAF”) or notify Nutanix that the Services are otherwise not accepted. Absent such notification in the timeline stated in the preceding sentence, the Services shall be deemed accepted.