nutanix

NUTANIX SUPPORT AGREEMENT

IMPORTANT — READ CAREFULLY

YOU MUST READ THIS SUPPORT AGREEMENT (THE “AGREEMENT”) BEFORE USING NUTANIX SUPPORT.  BY REGISTERING FOR, USING OR RECEIVING ANY OF NUTANIX’S SUPPORT SERVICES (“SUPPORT” AS FURTHER DESCRIBED IN SECTION 2 BELOW) YOU (A) REPRESENT THAT YOU HAVE THE LEGAL CAPACITY AND AUTHORITY TO BIND YOURSELF AND/OR THE PERSON OR ENTITY FOR WHOM YOU ARE ENTERING INTO THIS AGREEMENT; (B) REPRESENT THAT YOU HAVE READ AND UNDERSTAND THIS AGREEMENT; (C) REPRESENT AND WARRANT THAT THE INFORMATION THAT YOU HAVE PROVIDED OR WILL PROVIDE TO NUTANIX IS OR WILL BE CORRECT AND COMPLETE IN ALL RESPECTS, THAT NUTANIX MAY RELY UPON THE INFORMATION THAT YOU PROVIDE AND THAT ANY INCORRECT OR INCOMPLETE INFORMATION THAT YOU PROVIDE TO NUTANIX MAY RESULT IN NUTANIX WITHHOLDING, SUSPENDING OR TERMINATING THE SUPPORT AND/OR TERMINATING THIS AGREEMENT WITH NO ADDITIONAL LIABILITY TO NUTANIX; AND (D) AGREE TO BE BOUND BY THIS AGREEMENT.  THIS AGREEMENT APPLIES TO SUPPORT PURCHASED BY YOU FOR THE PRODUCT(S) THAT YOU OR THE ENTITY THAT YOU REPRESENT OBTAINED EITHER DIRECTLY FROM NUTANIX, INC. OR NUTANIX NETHERLANDS, B.V. (COLLECTIVELY THESE ARE REFERRED TO AS “NUTANIX”) OR FROM AN AUTHORIZED NUTANIX DISTRIBUTOR OR RESELLER (“PARTNER” AS FURTHER DEFINED BELOW).

This Agreement is between You, on behalf of the company, partnership or business entity that You represent (“You” or “Your”) and either (a) Nutanix, Inc. a Delaware corporation, with offices located at 1740 Technology Drive, Suite 150, San Jose, CA 95110, USA if the Support was purchased in the Americas; or (b) Nutanix Netherlands, B.V. incorporated and registered in The Netherlands with its registered office at Scorpius 100, 2132 LR Hoofddorp, The Netherlands, if the Support was purchased in any other country  ((a) and (b) are referred to herein as “Nutanix”).  Nutanix and You are each a “party” under this Agreement and collectively are referred to as “parties”.

  1. Definitions.
    1. Documentation” means any on-line read me, help files, manuals or other explanatory materials describing the features, functionalities and the specifications of the Product(s) as provided by Nutanix.
    2. Error” means any reproducible failure of the Software to perform any material function as set forth in the Documentation.
    3. Hardware” means the Nutanix branded hardware, including its components and spare parts that are provided directly or indirectly to You by Nutanix.
    4. Partner” means a third party that is authorized to resell Product(s) and Support to You.
    5. Product(s)” means (i) a device consisting of the Hardware and Software, or (ii) the Hardware if it is sold separately by Nutanix or (iii) the Software if it has been licensed separately by Nutanix.
    6. Software” means any Nutanix branded software, library, utility, tool or other computer or program code, in object (binary) or source-code form provided, directly or indirectly to You by Nutanix made by or on Your
      behalf, including without limitation firmware. The term “Software” also includes all Software releases and any Updates, Upgrades or other new features, functionality or enhancements to the Software.
    7. Support Guide” means the Nutanix Worldwide Support Program Guide (located at http://go.nutanix.com/rs/nutanix/images/nutanix-support-guide.pdf)
      which may be updated from time to time by Nutanix.
    8. Support Term” means the term of Support You have purchased (e.g.: one year, three years), set forth in the software and support Entitlement (as defined in the End User License Agreement which applies to Your Products)
      document provided to You by Partner or Nutanix.
    9. Update” means either a Minor Release, a Maintenance Release or a Patch Release as those terms are defined in the Support Guide.
    10. Upgrade” means a Major Release as that term is defined in the Support Guide.
  2. Scope of Support.
    1. During the Support Term for which Support fees have been timely paid, Nutanix shall:
      1. provide Support in accordance with the Support Guide and in accordance with Nutanix Support Policies found at support.nutanix.com;
      2. answer questions from You regarding the operation of the Products primarily via Nutanix’s support portal and secondarily via telephone and e-mail, according to the procedures set forth in the Support Guide;
      3. provide You with any generally available Updates and Upgrades;
      4. use commercially reasonable efforts to correct any Errors reported by You and confirmed by Nutanix in accordance with the priority level assigned to the Error by Nutanix in its reasonable discretion.  Nutanix may address Errors through the provision of Updates or Upgrades;
      5. repair or replace Hardware components that fail due to manufacturing defects in materials and workmanship as further described in Section 3, “Hardware Support”, below; and
      6. Nutanix may provide on‐site technical support, and if so provided, Nutanix will be responsible for Nutanix’s own travel and related expenses incurred in providing the on‐site Support. If Nutanix determines that the issue reported was not an Error or otherwise caused by Product(s) and if the on‐site support was requested by You, then Nutanix may charge You through Partner for Nutanix’s then‐current daily time and materials rate plus reasonable travel and lodging expenses for the on‐site Support.
    2. Nutanix will use commercially reasonable efforts to respond to each reported problem, as set forth in Section 2.1. Such response may take the form of Updates or Upgrades, procedural solutions, correction of Documentation errors, Hardware replacement, or other remedial measures as Nutanix may determine, in its sole discretion, to be appropriate. Nutanix will respond to reported problems within the timeframes specified in the Support Guide depending on the level of Support purchased by You. Support does not include Hardware or Software installation or training. Only Products that are properly registered, validly licensed, and unaltered are eligible for Support
    3. The Support Term commences upon Product shipment and is non-cancelable and non-transferable.
  3. Hardware Support.
    1. If Nutanix determines that replacement parts are required for Support, and Support for Hardware is included in the Support purchased by You, then Nutanix will deliver the replacement parts to You, at no charge, as described in the Support Guide.
    2. Replacement parts may be new or refurbished, at Nutanix’s option.
    3. All defective parts must be returned following Nutanix’s return material authorization (“RMA”) policy set forth at http://www.nutanix.com/support/support-faqs/#rma-policy. However, if You have purchased the Nutanix non-return disk option, all defective parts except the relevant disk must be returned following the Nutanix RMA policy. If You do not follow Nutanix’s RMA policy, Nutanix may invoice You through its Partners the full cost of the replacement part(s).
    4. All Products that are returned become Nutanix property.
  4. Software Maintenance. Nutanix will provide You with any generally available Updates and Upgrades as set forth in Section 2.1(c) above.  Nutanix has no obligation to develop Upgrades. Nutanix does not guarantee that Upgrades will be compatible with the Hardware You purchased.
  5. Exclusions.
    1. Nutanix will have no Support obligations for any conditions attributable to:
      1. negligence or misuse or abuse of the Products;
      2. use of the Products other than in accordance with Nutanix’s official specifications as found in the Documentation;
      3. modifications, alterations or repairs to the Products made by a party other than Nutanix or a party authorized by Nutanix;
      4. installation, operation or maintenance of the Product(s) not in accordance with instructions supplied by Nutanix, including but not limited to, installation, operation or maintenance of the Software on devices (including their specific configurations) that are not included on Nutanix’s hardware compatibility list;
      5. the Product(s) being subjected to abnormal physical or electrical stress, abnormal environmental conditions, misuse, negligence, accident or any failure by You or a third party to comply with environmental and storage requirements for the Product(s) specified by Nutanix, including, without limitation, temperature and/or humidity ranges;
      6. requests to provide Support for Software that is no longer supported as outlined in Nutanix’s end of life policies found at http://www.nutanix.com/support/support-faqs/#end-of-life-policy-software; or
      7. use of the Product(s) with any non‐Nutanix apparatus, data or programs outside the typical, recommended or reasonably anticipated use of the Product(s).
  6. Your Requirements.
    1. Nutanix’s Support obligations are conditioned upon You meeting the following obligations:
      1. timely payment of all applicable Support fees and relevant Product royalties and/or Product fees;
      2. designation of a limited number of authorized persons trained by Nutanix (“Technical Personnel”). Such Technical Personnel are the preferred contacts for the receipt of Support from Nutanix. The number of persons permitted to be Technical Personnel is outlined in the Support Guide;
      3. registration of all Products with Nutanix and providing notice to Nutanix of all sites where the Product(s) are located and site moves for such Product(s);
      4. providing Nutanix reasonable access to Your site and/or network and personnel as Nutanix reasonably requests to assist Nutanix in performing the Support;
      5. installation of Updates as reasonably directed by Nutanix;
      6. installation of recommended replacement parts in the Products as reasonably directed by Nutanix;
      7. refraining from arbitrarily changing Product settings or configurations reasonably recommended by Nutanix;
      8. expeditiously providing notice to Nutanix of any Error;
      9. ensuring that proper licenses have been obtained for all Software and adhering to all licensing terms and conditions; and
      10. making available to Nutanix any of Your systems’ performance data, information and other materials reasonably required by Nutanix solely to provide Support (“Your Materials”), the accuracy of which is Your responsibility.
    2. You will be responsible for screening first-line technical inquiries and escalating to Nutanix only those issues that Technical Personnel have not been able to resolve.
    3. Nutanix will not be responsible for Your or any third party’s software, firmware, information, or memory data contained in, stored on, or integrated with any Products returned to Nutanix for repair. It is Your responsibility to backup all existing data, software, and programs, and, as appropriate, to erase all existing data.
  7. Intellectual Property.
    1. Subject to Your rights in Your Materials, Nutanix will exclusively own all rights, title and interest in and to the Software, any software programs or tools, utilities, technology, processes, inventions, devices, methodologies, specifications, Documentation, techniques and materials of any kind used or developed by Nutanix or Nutanix’s personnel in connection with performing Support (“Nutanix Materials”), including all worldwide patent rights (including patent applications and disclosures), copyrights, moral rights, trade secret rights, know‐how and any other intellectual property rights therein.
    2. All Software provided to You under this Agreement shall be licensed to You on the terms of the end user license agreement pursuant to which the Software was originally licensed to You. You will have no rights in the Nutanix Materials except as expressly agreed to in writing by Nutanix and You.
    3. Nothing in this Agreement will be deemed to restrict or limit Nutanix’s right to perform similar support services for any other party or to assign any employees or subcontractors to perform similar support services for any other party.
    4. You agree that it may be necessary for Nutanix to collect, process and use system performance data in order to perform Nutanix obligations to provide Support. You consent to these activities and to the transfer of the system performance data to Nutanix affiliated companies and service providers located throughout the world who are subject to confidentiality agreements with Nutanix.
  8. Reinstatement of Support. If You have not continuously purchased and complied with the terms and conditions of a Support Agreement, Your Products may not have the most recent Updates and Upgrades necessary for the performance and security of Your Products. You may request that Nutanix perform an inspection of Your Products, which may be subject to a separate fee from Nutanix, to certify that Your Products continue to operate within their official Product specifications. If Nutanix is able to certify that Your Products operate within their official Product specifications, You may reinstate Support if Nutanix then offers it in general commercial availability and upon payment to Nutanix as follows: (i) the pro rata Support fees that would have been payable at Nutanix’s then applicable annual rate of Support for the period the Products were not covered by Support; and (ii) the Support fees for the annual period commencing upon the reinstatement of Support. In addition, for any Products that have been off Support for more than ninety (90) days, You must pay twenty percent (20%) of the annual rate of Support for recertification services.
  9. Purchase Terms. Purchase of Support may be from a Partner.  You acknowledge that payment for the Support is subject to the agreement between the Partner and You.  You agree that this Agreement, shall apply to Your receipt and use of the Support, notwithstanding anything to the contrary in Your agreement with the Partner.  Nutanix shall not be liable for any representations, warranties, indemnities or damages made by Partner or any other third party beyond those set forth in this Agreement. You acknowledge that if Nutanix does not receive payment for the Support from its Partner, Nutanix shall have the right to suspend the Support until payment is received, without liability to You and You shall look solely to the Partner for any damages or liability associated with such suspension.
  10. Warranty and Liability.
    1. Limited Warranty. Nutanix warrants that the Support will be performed with reasonable care and skill and in a professional and workmanlike manner. Should You believe that Nutanix has breached the limited warranty described in this Section 10.1, You must provide Nutanix with a reasonably detailed written notice within thirty (30) days of occurrence of the nonconformance. Following such written notice of nonconformance, Nutanix will re-perform the Support to achieve commercially reasonable conformance with the above limited warranty. Re-performance of the Support shall be Your sole remedy, and Nutanix’s sole liability, for any non-compliance with the limited warranty set forth above.
    2. DISCLAIMER OF OTHER WARRANTIES. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW AND EXCEPT AS EXPRESSLY SET FORTH IN SECTION 10.1 ABOVE, ALL SUPPORT IS PROVIDED “AS IS” AND NUTANIX HEREBY DISCLAIMS ALL OTHER WARRANTIES, EITHER EXPRESS, IMPLIED, STATUTORY, OR OTHERWISE AND SPECIFICALLY DISCLAIMS ALL IMPLIED WARRANTIES OF MERCHANTABILITY, SATISFACTORY QUALITY, NON-INFRINGEMENT AND FITNESS FOR A PARTICULAR PURPOSE. NO REPRESENTATION OR WARRANTY IS GIVEN THAT ERRORS (AS DEFINED HEREIN) OR FAULTS IN THE HARDWARE WILL BE FIXED OR FIXED WITHIN A SPECIFIED PERIOD OF TIME.
    3. EXCLUSION OF CERTAIN LOSSES. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT SHALL NUTANIX BE LIABLE FOR ANY SPECIAL, INDIRECT, INCIDENTAL, PUNITIVE OR CONSEQUENTIAL LOSSES OR DAMAGES WHATSEVER, OR FOR ANY LOSS OF GOODWILL, LOST PROFITS, LOSS OF BUSINESS OR LOST OPPORTUNITIES IN ANY WAY RELATING TO THIS AGREEMENT, EVEN IF NUTANIX HAS BEEN NOTIFIED OF, OR REASONABLY COULD HAVE FORESEEN, THE POSSIBILITY OR LIKELIHOOD OF SUCH DAMAGES OCCURRING, AND REGARDLESS OF WHETHER SUCH LIABILITY IS BASED ON CONTRACT, TORT, NEGLIGENCE, STRICT LIABILITY OR OTHERWISE.
    4. LIMITATION OF LIABILITY. IN NO EVENT SHALL THE AGGREGATE LIABILITY OF NUTANIX EXCEED THE FEES PAID BY YOU FOR SUPPORT IN THE 12 MONTHS PRECEEDING THE DATE OF THE CLAIM. FOR PURPOSES OF THIS SECTION, A “CLAIM” SHALL MEAN, COLLECTIVELY, ALL CAUSES OF ACTION, DAMAGES, CLAIMS OR DISPUTES OR SIMILAR REQUESTS FOR COMPENSATION THAT ARE RELATED TO OR ARISE FROM THIS AGREEMENT AND FROM A PARTICULAR EVENT, ACT, OMISSION, FAILURE OR ROOT CAUSE.
  11. Relationship of the Parties. Nutanix is performing Support as an independent contractor, and not as an employee, agent, joint venturer or partner of You, and neither of the parties has the authority to bind the other by contract or otherwise. Nutanix acknowledges and agrees that Nutanix personnel are not eligible for or entitled to receive any compensation, benefits or other incidents of employment that You make available to Your employees. Nutanix is solely responsible for all taxes, expenses, withholdings, and other similar statutory obligations arising out of the relationship between Nutanix and Nutanix personnel and the performance of Support by Nutanix personnel.
  12. English. All Support will be provided in the English language unless agreed otherwise. The parties confirm that they have requested that this Agreement and all related documents be drafted in English at the express wishes of the parties. Les parties ont exigé que le présent contrat et Nutanix les documents connexes soient rédigés en anglais selon la volonté expresse des parties.
  13. Miscellaneous. This Agreement, including any other documents referenced herein, constitutes the entire agreement between the parties and supersedes all previous agreements, oral or written, with respect to the subject matter of this Agreement.  In the event of any conflict between the terms of this Agreement and any of the documents, (including but not limited to the Support Guide) referenced herein, the terms of this Agreement shall control. This Agreement may not be amended without the prior written consent of both parties.  You may not assign this Agreement, or any portion thereof, without Nutanix’s prior written consent.  Nutanix may freely assign this Agreement in whole or in part. Nutanix may have subcontractors perform its obligations under this Agreement.  Nutanix will not be liable for performance delays or for nonperformance, due to causes beyond its reasonable control.  In utilizing the Support, you will comply with United States law and the laws of the jurisdiction in which Support is obtained.  To the extent permitted by applicable law, if this Agreement is with Nutanix, Inc., this Agreement is governed by and construed in accordance with the substantive laws of the State of California, U.S.A.  and You expressly and irrevocably agree and submit to the exclusive jurisdiction of the federal and state courts located in Santa Clara County, California, U.S.A. If the Agreement is with Nutanix Netherlands, B.V., this Agreement is governed by and construed in accordance with the laws of England and You expressly and irrevocably agree and submit to the exclusive jurisdiction of the English courts. This Agreement will not be governed by the conflict of laws roles of any jurisdiction or the U.N. Convention on Contracts for the International Sale of Goods, the application of which is expressly excluded.