LICENSE.txt

1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
29
30
31
32
33
34
35
36
37
38
39
40
41
42
43
44
45
46
47
48
49
50
51
52
53
54
55
56
57
58
59
60
61
62
63
64
65
66
67
68
69
70
71
72
73
74
75
76
77
78
79
80
81
82
83
84
85
86
87
88
89
90
91
92
93
94
95
96
97
98
99
100
101
102
103
104
105
106
107
108
109
110
111
112
113
114
115
116
117
118
119
120
121
122
123
124
125
126
127
128
129
130
131
132
133
134
135
136
137
138
139
140
141
142
143
144
145
146
147
148
149
150
151
152
153
154
155
156
157
158
159
160
161
162
163
164
165
166
167
168
169
170
171
172
173
174
175
176
177
178
179
180
181
182
183
184
185
186
187
188
189
190
191
192
193
194
195
196
197
198
199
200
201
202
203
204
205
206
207
208
209
210
211
212
213
214
215
216
217
218
219
220
221
222
223
224
225
226
227
228
229
230
231
232
233
234
235
236
237
238
239
240
241
242
243
244
245
246
247
248
249
250
251
252
253
254
255
256
257
258
259
260
261
262
263
264
265
266
267
268
269
270
271
272
273
274
# SOFTWARE LICENSE AGREEMENT IMPORTANT -- READ CAREFULLY
 
READ THIS LICENSE AGREEMENT (THE "<ins>AGREEMENT</ins>") BEFORE DOWNLOADING, INSTALLING,
COPYING, CONFIGURING, ACCESSING, DEPLOYING AND/OR USING THE NUTANIX SOFTWARE
OR THE DOCUMENTATION (EACH AS DEFINED BELOW). BY DOWNLOADING, INSTALLING, COPYING,
CONFIGURING, ACCESSING, DEPLOYING, USING AND/OR OTHERWISE USING ALL OR ANY PART OF THE
NUTANIX SOFTWARE OR THE DOCUMENTATION, OR BY CLICKING ON AN "ACCEPT" BUTTON, YOU AGREE
TO THE TERMS AND CONDITIONS OF THIS AGREEMENT. YOU FURTHER AGREE THAT YOU ARE BOUND BY
AND ARE A PARTY TO THIS AGREEMENT, AND, IF YOU ARE ACCEPTING THESE TERMS ON BEHALF OF
ANOTHER PERSON OR A COMPANY OR OTHER LEGAL ENTITY, YOU REPRESENT AND WARRANT THAT YOU
HAVE FULL AUTHORITY TO BIND THAT PERSON, COMPANY, OR LEGAL ENTITY TO THESE TERMS.
 
 
YOUR USE OF THE NUTANIX SOFTWARE AND DOCUMENTATION IS EXPRESSLY CONDITIONED
ON YOUR ACCEPTANCE OF THE TERMS AND CONDITIONS OF THIS AGREEMENT. IF YOU DO NOT AGREE
TO THE TERMS AND CONDITIONS OF THIS AGREEMENT, DO NOT DOWNLOAD, INSTALL, COPY,
CONFIGURE, ACCESS, DEPLOY, CLICK ON AN "ACCEPT" BUTTON AND/OR OTHERWISE USE THE NUTANIX
SOFTWARE OR DOCUMENTATION.
 
This Agreement is between you, on behalf of the company, partnership or business entity
that you represent ("<ins>Licensee</ins>") and Nutanix, Inc. a Delaware corporation,
with offices located at 1740 Technology Drive, Suite 150, San Jose, CA 95110, USA
("<ins>Nutanix</ins>") (each of Licensee and Nutanix a "<ins>Party</ins>" and together
the "<ins>Parties</ins>"), and is effective as of the date on which Licensee accepts
the terms of this Agreement ("<ins>Effective Date</ins>").
 
In consideration of the terms and conditions of this Agreement, the Parties agree as
follows:
 
1. DEFINITIONS
       
      In addition to the capitalized terms set forth above, the following capitalized
      terms shall have the following definitions:
 
      1.1 "<ins>Documentation</ins>" means any manuals, instructions and other
      documentation pertaining to the Nutanix Software that Nutanix may deliver or
      make available to Licensee.
       
      1.2 "<ins>Intellectual Property Rights</ins>" means patents of any type, design
      rights, utility models or other similar invention rights, copyrights, mask work
      rights, trade secret or confidentiality rights, trademarks, trade names and service
      marks and any other intangible property rights, including applications and
      registrations for any of the foregoing, in any country, arising under statutory
      or common law or by contract and whether or not perfected, now existing or
      hereafter filed, issued, or acquired.
       
      1.3 "<ins>Nutanix Software</ins>" means any Nutanix’s proprietary
      software and any updates or upgrades supplied to Licensee under this
      Agreement.
       
      1.4 "<ins>Use</ins>" means to activate the processing capabilities of the Nutanix
      Software, load, execute, access, employ the Nutanix Software, or display
      information resulting from such capabilities, but not to copy or make copies of
      the Nutanix Software for any purpose except for internal use, storage or backups
      as permitted in Section 2.1.1 below.
 
 
2. LICENSE GRANT AND SERVICES
       
      2.1 <ins>Grant</ins>. Subject to this Section 2, and conditioned upon
      Licensee's compliance with all the terms and conditions of this Agreement, Nutanix
      grants to Licensee a non-exclusive, non-transferable, non-sublicensable,
      terminable (in accordance with Section 5 herein) license to Use the Nutanix
      Software solely for internal purposes on Licensee's own premises.
       
      2.2 <ins>Restrictions</ins>. The grant of licenses in Section 2.1 does not permit
      Licensee to, and Licensee agrees not to: (i) use the Nutanix Software or the
      Documentation for any use or purpose other than as explicitly permitted in this
      section, including but not limited to use to provide benchmarking or other services
      of any kind to third parties or to run any business operations; (ii) lease, loan,
      resell, sublicense, distribute, or transfer the Nutanix Software or the
      Documentation; (iii) copy or otherwise reproduce the Nutanix Software or the
      Documentation except as necessary to Use the Nutanix Software; (iv) modify the
      Nutanix Software or the Documentation; or, (v) disassemble, decompile or reverse
      engineer the Nutanix Software, or change or remove any proprietary rights notice
      on any of the foregoing or the Documentation.
       
      2.3 <ins>Use of Open Source Software</ins>. Portions of the Nutanix Software may
      constitute open source software (the "<ins>Open Source Software</ins>")
      that is distributed subject to one or more applicable open source software
      license(s) (the "<ins>Open Source Software License</ins>"). Licensee may use the
      Open Source Software in accordance with the applicable Open Source
      Software License and, to the extent any of the provisions of this Agreement are
      inconsistent with the applicable Open Source Software License, the Open Source
      Software License shall take precedence.
       
      2.4 <ins>Services</ins>. One or more employees or contractors of Nutanix may
      provide assistance to Licensee with respect to the Use of the Nutanix Software
      ("<ins>Services</ins>"). Such Services shall be provided at no charge solely as
      a courtesy to Licensee, and as set forth in Section 6.2 below, such Services
      shall be provided without warranty and Nutanix shall have no liability with
      respect to such Services.
       
      2.5 <ins>Other Nutanix Products</ins>. If you configure the Nutanix Software
      to connect with one or more other Nutanix products, your use of the Nutanix
      Software will also be governed by your applicable End User License Agreement
      ("EULA"). Any use of the Nutanix Software that violates your applicable EULA will
      also be a violation of this Agreement.
 
 
3. CONFIDENTIALITY AND ACCESS RESTRICTIONS
       
      “Confidential Information” means any information disclosed by Nutanix to Licensee
      pursuant to this Agreement that is marked “Confidential,” “Proprietary,” or in
      some similar manner and any information which Licensee knew or reasonably should
      have known to be confidential. Licensee shall treat as confidential all
      Confidential Information of Nutanix and shall not use such Confidential
      Information except to exercise Licensee's rights or perform Licensee's
      obligations under this Agreement. Licensee will protect Confidential Information
      from unauthorized use, access, or disclosure in the same manner as Licensee
      protect their own confidential or proprietary information of a similar nature
      but with no less than reasonable care. Licensee shall not disclose such
      Confidential Information to any third party during or after the term of this
      Agreement. This paragraph will not apply to any Confidential Information that:
      (a) was rightfully in Licensee's possession prior to receipt of such Confidential
      Information from Nutanix; (b) is or becomes a matter of public knowledge through
      no fault of Licensee; (c) is rightfully received from a third party without a
      duty of confidentiality; (d) is independently developed by Licensee without
      breach of any confidentiality obligations; (e) is disclosed by Licensee with
      Nutanix’s prior written approval; or (f) Licensee are required to disclose by
      applicable law or court order, provided that Licensee notifies Nutanix of such
      required disclosure promptly in writing and cooperate with Nutanix in any lawful
      action to contest or limit the scope of such required disclosure.
      Licensee acknowledge that breach of this Section 3 will cause
      irreparable damage to Nutanix for which monetary damages will be an inadequate
      remedy. Accordingly, Nutanix will be entitled to seek and obtain injunctive and
      any other relief (legal or equitable) to restrain any breach or anticipated
      breach of this Section 3.
       
 
4. TERM AND TERMINATION
 
      4.1 <ins>Term</ins>. This Agreement and the licenses granted hereunder shall
      become effective as of the Effective Date and may be terminated by either party
      at any time upon written notice. In addition, this Agreement automatically
      terminates if Licensee or any of its employees or consultants fail to comply
      with the terms and conditions of this Agreement. Upon expiration or termination
      of this Agreement for any reason: (a) all licenses granted by Nutanix shall
      immediately terminate; (b) Licensee shall immediately discontinue use of the
      applicable Nutanix Software and the Documentation; (c) Licensee shall destroy
      all copies of the Nutanix Software and the Documentation in Licensee's
      possession, custody or control; and (d) if requested, Licensee shall certify to
      Nutanix in writing that such return or destruction has occurred.
       
      4.2 <ins>Survival</ins>. Sections 2.3, 3, 4.3, and 5-9 shall survive any
      expiration or termination of this Agreement.
 
 
5. OWNERSHIP
       
      As between Nutanix and Licensee, Nutanix and its licensors own all worldwide
      right, title and interest in the Nutanix Software and Documentation including
      all Intellectual Property Rights. The Nutanix Software and Documentation are
      Nutanix's valuable trade secrets and constitute Nutanix's Confidential
      Information. Except for the rights explicitly granted to Licensee in this
      Agreement, all right, title and interest in the Nutanix Software and
      Documentation are reserved and retained by Nutanix, its affiliates, and/or
      its licensors. Licensee does not acquire any intellectual property or other
      rights in the Nutanix Software or Documentation as a result of downloading,
      installing, accessing or using the Nutanix Software or Documentation except as
      specified in this Agreement.
 
 
6. WARRANTIES AND DISCLAIMERS
       
      6.1 <ins>Disclaimers by Nutanix</ins>. THE NUTANIX SOFTWARE, DOCUMENTATION,
      AND SERVICES ARE PROVIDED HEREUNDER "AS IS" WITHOUT WARRANTY OF ANY KIND.
      NUTANIX DISCLAIMS ALL WARRANTIES, EXPRESS AND IMPLIED WITH RESPECT
      TO THE FOREGOING, INCLUDING BUT NOT LIMITED TO ANY IMPLIED WARRANTIES OF
      MERCHANTABILITY, MERCHANTABLE QUALITY, FITNESS FOR A PARTICULAR PURPOSE, OR
      NON-INFRINGEMENT. NUTANIX SHALL HAVE NO LIABILITY FOR DAMAGES OF ANY KIND
      RESULTING FROM THE NUTANIX SOFTWARE, THE SERVICES, OR THE DOCUMENTATION, OR
      ANY USE THEREOF.
 
 
7. FEEDBACK
       
      During the course of this Agreement, Licensee may provide input or feedback
      regarding the Nutanix Software, the Documentation, or other products,
      services, business or technology plans of Nutanix (collectively
      "<ins>Feedback</ins>"). In order for Nutanix to utilize such Feedback, Licensee
      grants to Nutanix a non-exclusive, perpetual, irrevocable, worldwide,
      royalty-free license, with the right to sublicense, under all relevant
      Intellectual Property Rights of Licensee, to use for any purpose, publish,
      and disclose such Feedback and to display, perform, copy, make, have made, use,
      sell, and otherwise dispose of Nutanix's and its sublicensee's products or
      services embodying or based upon Feedback in any manner and via any media
      Nutanix chooses, without attribution or reference to the source of the
      Feedback. Nutanix shall be entitled to use Feedback for any purpose without
      restriction or remuneration of any kind with respect to Licensee and/or its
      representatives. Except for the foregoing license to use Feedback provided by
      Licensee at its sole discretion, Nutanix acquires no title or interest in any
      pre-existing or independently developed data, information, or Intellectual
      Property Rights of Licensee under this Agreement.
 
 
8. PULSE DIAGNOSTIC DATA
       
      Licensee elects and authorizes Nutanix to electronically collect, and consents
      to the collection and use by Nutanix of, Pulse diagnostic data, including
      system alerts via email, which such data shall be considered Feedback under
      the terms of this Agreement.
 
 
9. GENERAL
       
      9.1 <ins>Severability</ins>. In the event any one or more of the provisions
      contained in this Agreement shall be held to be invalid or unenforceable in any
      respect, such invalidity or unenforceability shall not affect the other
      provisions of this Agreement, and this Agreement shall be construed as if
      such invalid or unenforceable provision had never been contained herein.
       
      9.2 <ins>Waiver</ins>. No waiver shall be effective unless in writing signed
      by the Party to be charged with the waiver. If either Party should waive any
      breach of any provision of this Agreement, it shall not thereby be deemed to
      have waived any preceding or succeeding breach of the same or any other
      provision hereof.
       
      9.3 <ins>Governing Law</ins>. This Agreement shall be governed by and
      construed under the laws of the state of California without regard to or
      application of its choice of law rules or principles. In the event of any
      conflicts between foreign law, rules, and regulations, and United States of
      America law, rules, and regulations, United States of America law, rules, and
      regulations shall prevail and govern. The United Nations Convention on
      Contracts for the International Sale of Goods shall not apply to this
      Agreement. The Uniform Computer Information Transactions Act as enacted
      shall not apply.
       
      9.4 <ins>Compliance with Laws; Export Control</ins>. Each Party shall comply
      with all laws applicable to the actions contemplated by this Agreement. Licensee
      acknowledges that the Nutanix Software are of United States origin, and are
      subject to the U.S. Export Administration Regulations, and may be subject to
      the export control laws of the applicable territory, and that diversion
      contrary to applicable export control laws is prohibited. Licensee represents
      and warrants that (1) Licensee is not, and is not acting on behalf of, (a)
      any person who is a citizen, national, or resident of, or who is controlled
      by the government of any country to which the United States has prohibited
      export transactions; or (b) any person or entity listed on the U.S. Treasury
      Department lists of Specially Designated Nationals, Foreign Sanctions Evaders,
      Sectoral Sanctions Identifications, or Palestinian Legislative Council; or the
      U.S. Commerce Department Denied Persons List, Entity List, or Unverified List;
      or the U.S. State Department Nonproliferation Sanctions, or Debarred List;
      and (2) Licensee will not permit the Nutanix Software, directly, or indirectly,
      to be used for any purposes prohibited by law, including any prohibited
      development, design, manufacture or production of missiles or nuclear,
      chemical or biological weapons. Licensee agrees that the Nutanix Software may
      not be exported/re-exported to Cuba, Iran, North Korea, Sudan and Syria.
       
      9.5 <ins>Miscellaneous</ins>. If any part of this Agreement is held invalid
      or unenforceable, that part shall be construed to reflect the Parties' original
      intent, and the remaining portions remain in full force and effect.
      The controlling language of this Agreement is English. If Licensee has
      received a translation into another language, it has been provided for
      Licensee's convenience only. A waiver by either Party of any term or condition
      of this Agreement or any breach thereof, in any one instance, shall not waive
      such term or condition or any subsequent breach thereof. Licensee may not assign,
      delegate any performance, or otherwise transfer by operation of law or otherwise
      this Agreement or any rights or obligations herein. Licensee agrees not to
      copy, sell, give or assign the Nutanix Software, the Documentation, or any
      part thereof to a third party. Nutanix may assign this Agreement to any person
      or entity at its sole discretion. This Agreement shall be binding upon and
      shall inure to the benefit of the Parties, their successors and permitted
      assigns. This Agreement constitutes the entire and sole agreement between
      Licensee and Nutanix with respect to the Nutanix Software and the
      Documentation and supersedes all prior and contemporaneous agreements
      relating to the Nutanix Software and the Documentation, whether oral or
      written (including any inconsistent terms contained in a purchase order). If
      Licensee is found to have breached Section 2 or Section 3 of this Agreement,
      then Nutanix shall be awarded attorney fees, costs and expenses. This
      Agreement may be amended only in writing signed by authorized representatives
      of both Parties and specifically referring to this provision. This Agreement
      will be interpreted without being construed for or against either Party. The
      words "includes" and "including" and the abbreviation "e.g." will be deemed
      to be followed by the words "without limitation".