HYPERCONVERGED
TEST DRIVE

NUTANIX TEST DRIVE TERMS OF SERVICE

IMPORTANT – READ CAREFULLY

READ THIS NUTANIX TEST DRIVE TERMS OF SERVICE (THE “AGREEMENT”) BEFORE USING OR ACCESSING THE 2-HOUR TRIAL VERSION OF NUTANIX TEST DRIVE.  BY USING OR ACCESSING THE 2-HOUR TRIAL VERSION OF NUTANIX TEST DRIVE 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 2-HOUR TRIAL VERSION OF NUTANIX TEST DRIVE 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 ACCESS, DEPLOY, OR OTHERWISE USE THE SERVICE OR CLICK ON AN “ACCEPT” BUTTON.

THIS IS A 2-HOUR TRIAL ONLY.  AFTER THE END OF THE 2-HOUR TRIAL PERIOD, THE SERVICE WILL RESET, AND ALL DATA OR CUSTOMER CONTENT THAT HAS BEEN TRANSMITTED TO, LOADED INTO OR GENERATED BY THE SERVICE WILL BE ERASED IN ITS ENTIRETY, AND NO DATA OF ANY TYPE WILL BE SAVED, PRESERVED OR RETAINED.  NUTANIX TAKES NO RESPONSIBILITY FOR ANY DATA OR CUSTOMER CONTENT (DEFINED BELOW) THAT IS LOST EITHER DURING OR UPON THE COMPLETION OF THE TRIAL PERIOD, AND YOU MUST NOT USE THE SERVICE TO RUN ANY PRODUCTION DATA.  NO SUPPORT WILL BE PROVIDED TO YOU IN CONNECTION WITH YOUR USE OF THE SERVICE.

This Agreement is between You, either in your individual capacity or, if you are accessing, deploying and/or otherwise using the Service in your capacity as a representative of a company, partnership or business entity, on behalf of the company, partnership or business entity that You represent (“You” or “Your”) and Nutanix, Inc. a Delaware corporation, with offices located at 1740 Technology Drive, Suite 150, San Jose, CA 95110, USA (“Nutanix”).

“Service” means the hosted services maintained by Nutanix and provided to You to allow You to run an instance of the Software through an online portal.

“Software” means a specific and unique instance of Nutanix’s Community Edition software product that is made available to You as a service or a part thereof.  

“Trial Period” means a 2-hour period, which begins from when Nutanix is first able to launch the Service for Your access after Your complete the registration for the Service.

“Documentation” means any on-line read me, help files, or other explanatory materials related to the Service.

1.              Use of the Service.

1.1           Right to Access the Service.  Subject to Your compliance with the terms of this Agreement, Nutanix grants You a limited, revocable, non-exclusive, non-sublicensable, non-transferable right to access and use the Service during the Trial Period for internal business purposes and non-production use only (the foregoing right, “Permitted Use”), which does not include the provision of services for the benefit of third parties.  Your right to access and use the Service during the Trial Period is non-transferable and non-exclusive.  You agree that You provided accurate and complete information when You registered for access to the Service.  Use of the Service outside the scope of the Permitted Use is unauthorized and shall constitute a material breach of this Agreement and shall give rise to an immediate termination of this Agreement. You must use Your best efforts to prevent and protect the contents of the Service, Software and Documentation from unauthorized disclosure or use.  

1.2           Limitations on Use:  You must not use the Service, Software or Documentation except as permitted by this Agreement.  You must not:

(a) alter, decompile, disassemble, modify, unbundle or create any derivative works of the Software, the underlying source code, or the Documentation in any way, including without limitation customization, translation or localization;

(b) port, emulate the functionality, reverse compile, reverse assemble, reverse engineer, create derivative works, or otherwise reduce to human readable form or attempt to separate any of the components of the Software or derive the source code for the Software;

(c) copy, redistribute, encumber, sell, rent, lease, license, sublicense, or otherwise transfer rights to the Service, Software or Documentation, or use the Service or Software for the benefit of any third party or on a hosted basis;

(d) remove or alter any trademark, logo, copyright or other proprietary notices, legends, symbols or labels in the Service, Software or Documentation or any product in which the Service or Software is embedded;

(e) block, disable or otherwise affect any features that constitute an integral part of the Service, Software, including without limitation any security features designed to enforce the terms of this Agreement;

(f) disclose the results of testing, benchmarking or other performance or evaluation information (including screenshots) related to the Service, Software or the product to any third party without the prior written consent of Nutanix; or

(g) access or use the Service, Software or Documentation for any competitive purposes (e.g. to gain competitive intelligence; to design or build a competitive product or service, or a product providing features, functions or graphics similar to those used or provided by Nutanix; to copy any features, functions or graphics; or to monitor availability, performance or functionality for competitive purposes).

You must not cause, encourage or permit any third party to do any of the foregoing. 

If You believe that any of the foregoing restrictions are prohibited by local law, You agree to provide Nutanix with at least ninety (90) days advance written notice of Your belief and provide all reasonably requested information from Nutanix to evaluate Your claim.  Nutanix may, in its discretion, impose reasonable conditions, including a reasonable fee, on such use of the Service, or offer to provide alternatives to ensure that Nutanix’s proprietary rights in the Service are protected and to reduce any adverse impact on Nutanix’s proprietary rights.  

2.              Transmission of Customer Content. You are responsible for obtaining and maintaining all telecommunications, broadband and computer equipment and services needed to access and use the Services and for paying all charges related thereto.  The Trial Period will not be extended if, at any point during the Trial Period, you lose your connection to the Service.  You are the owner and/or controller of all of data, materials, information or other content that You transmit, or that is transmitted on Your behalf, to the Service, or stored or displayed within (“Customer Content”), and You are solely responsible for (a) the accuracy, quality and lawful use of Customer Content and the means by which Your acquired Customer Content, (b) taking steps to maintain appropriate security, protection, and backup of Customer Content, (d) not transmitting any Customer Content that infringes or violates any intellectual property rights, publicity or privacy rights of any third parties, laws or regulations and (c) the security of any Customer Content transmitted to and from the Service.  

3.              Proprietary Rights.  This Agreement confers no title or ownership and is not a sale of any rights in the Service or Software.  You acknowledge and agree that the Service and Software belong to Nutanix or its licensors.  You agree that You neither own nor hereby acquire any claim or right of ownership to the Service, Software and Documentation or to any related patents, copyrights, trademarks or other intellectual property, including all modifications and derivative works of any of the foregoing.  Nutanix and its licensors retain all right, title and interest both tangible and intangible in and to all copies of the Documentation and the Software at all times, regardless of the form or media in or on which the original or other copies may subsequently exist.  The Software and Documentation are protected by copyright and other intellectual property laws and by international treaties. Any and all other copies of the Software or Documentation made by You are in violation of this license.  All content accessed through the Service is the property of the applicable content owner and may be protected by applicable copyright law. This license gives You no rights to such content.  All trademarks used in connection with the Service, Software and Documentation are owned by Nutanix, its affiliates and/or its licensors and other suppliers, and no license to use any such trademarks is provided hereunder. 

4.              Feedback.  The purpose of this license is the internal testing and evaluation of the Software by you.  In furtherance of this purpose, you and/or the Service shall from time to time provide comments and feedback to Nutanix concerning the functionality and performance of the Software, including, without limitation, usability, bug reports, potential errors and improvements, test data, results, and analytics, and performance data and test results (collectively, “Feedback”).  You hereby assign to Nutanix all of your right, title and interest in and to any Feedback, including any intellectual property rights you may have in such Feedback, and in the event that any such assignment is found to be invalid, you hereby grant to Nutanix a worldwide, non-exclusive, perpetual, irrevocable, royalty-free, fully paid-up right and license (i) to use, reproduce, copy, disclose, sublicense, modify, make, have made, distribute, sell, offer for sale, display, perform, create derivative works of, permit unmodified binary distribution and otherwise exploit such Feedback (and any derivative works thereof) with any restriction, and (ii) to sublicense to third parties the foregoing rights, including the right to sublicense to further third parties.  All Feedback shall be deemed Confidential Information of Nutanix and shall be subject to the provisions of Section 11 below. 

5.              No Support Services.  Nutanix is under no obligation to support the Service in any way or to provide any modifications, error corrections, bug fixes, patches or other updates to or for the Software. 

6.              Roadmap.  Nutanix may disclose information related to its development and plans for future products, features or enhancements (“Roadmap”).  Roadmap information is subject to change at any time, without notice.  Nutanix provides no assurances, and assumes no responsibility, that future products, features or enhancements will be introduced.  You acknowledge that: a) you are not making a decision to use the Software based upon reliance of timeframes or specifics outlined in the Roadmap, and b) such decision would not be affected if Nutanix delays or never introduces the future products, features or enhancements.  

7.              Term and Termination. This Agreement and Your right to use the Service, Software and Documentation may be terminated by You at any time upon written notice.  This Agreement automatically terminates upon the completion of the Trial Period, or earlier if You or any of Your employees or consultants fail to comply with its terms and conditions. Upon expiration or termination of this Agreement for any reason: (a) all licenses granted by Nutanix shall immediately terminate; (b) You shall immediately discontinue use of the Service; (c) You shall destroy all copies of the Documentation in Your possession, custody or control; and (e) if requested, You shall certify to Nutanix in writing that such return or destruction has occurred.  The preamble as well as Sections 1.2, 3, 7, 8, 9, 10, 11, 12, 14, 15, and 16 shall survive any expiration or termination of this Agreement.

8.              NO WARRANTY.  YOU AGREE THAT THE SERVICE, SOFTWARE AND DOCUMENTATION ARE PROVIDED TO YOU ON AN “AS IS” BASIS, AND THAT NUTANIX AND ITS LICENSORS MAKE NO OTHER WARRANTIES AS TO THE SOFTWARE OR DOCUMENTATION, INCLUDING WITHOUT LIMITATION UNINTERRUPTED USE, ACCURACY, AND DATA LOSS.  NUTANIX AND ITS LICENSORS DISCLAIM ALL OTHER WARRANTIES, EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO THE IMPLIED WARRANTIES OF MERCHANTABILITY, NON-INFRINGEMENT AND FITNESS FOR A PARTICULAR PURPOSE (EVEN IF NUTANIX KNOWS OR SHOULD HAVE KNOW OF SUCH PURPOSE), RELATED TO THE SERVICE, SOFTWARE OR DOCUMENTATION, ITS USE OR ANY INABILITY TO USE IT, THE RESULTS OF ITS USE AND THIS AGREEMENT, AND ANY WARRANTIES ARISING BY STATUTE OPERATION OF LAW, COURSE OF DEALING OR PERFORMANCE, OR USAGE OF TRADE, OR THAT THE SERVICE OR SOFTWARE WILL BE COMPATIBLE OR WORK WITH ANY THIRD PARTY SOFTWARE OR HARDWARE OR ANY OTHER NUTANIX PRODUCTS.  NUTANIX AND ITS LICENSORS DO NOT WARRANT THAT THE SERVICE, SOFTWARE OR DOCUMENTATION OR ANY RESULTS OF USE THEREOF WILL BE FREE OF DEFECTS, ERRORS OR VIRUSES, RELIABLE OR ABLE TO OPERATE ON AN UNINTERRUPTED BASIS OR IN A PARTICULAR ENVIRONMENT, OR THAT ERRORS THEREIN, IF ANY, WILL BE CORRECTED.  YOU FURTHER ACKNOWLEDGE THAT THE SERVICE AND SOFTWARE ARE NOT INTENDED OR SUITABLE FOR USE IN SITUATIONS OR ENVIRONMENTS WHERE THE FAILURE OR TIME DELAYS OF, OR ERRORS OR INACCURANCIES IN THE CONTENT, DATA OR INFORMATION PROVIDED BY THE NUTANIX SOFTWARE COULD LEAD TO DEATH, PERSONAL INJURY, OR SEVERE PHYSICAL OR ENVIRONMENTAL DAMAGE.

9.              LIMITATION OF LIABILITY. TO THE FULLEST EXTENT PERMITTED BY LAW, NUTANIX AND ITS LICENSORS SHALL NOT BE LIABLE FOR ANY DAMAGES, WHETHER IN CONTRACT OR TORT (INCLUDING NEGLIGENCE) OR ANY OTHER LEGAL OR EQUITABLE THEORY, ARISING FROM THIS AGREEMENT, INCLUDING WITHOUT LIMITATION ANY INDIRECT, CONSEQUENTIAL, SPECIAL, EXEMPLARY, INCIDENTAL DAMAGES, EVEN IF NUTANIX HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES OR FOR ANY LOST REVENUES, GOODWILL OR PROFITS, BUSINESS INTERRUPTION, PROCUREMENT OF SUBSTITUTE HARDWARE, SOFTWARE OR SERVICES, LOST DATA, WORK STOPPAGE, RE-RUN TIME, INACCURATE OUTPUT, COMPUTER FAILURE OR MALFUNCTION.  YOU AGREE THAT YOU SHALL HAVE THE SOLE RESPONSIBILITY FOR PROTECTING YOUR DATA, BY PERIODIC BACKUP OR OTHERWISE.  NUTANIX SHALL NOT BE LIABLE FOR ANY CLAIM BROUGHT MORE THAN ONE YEAR AFTER THE CAUSE OF ACTION FOR SUCH CLAIM FIRST AROSE.  BECAUSE SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION OR LIABLITY FOR CONSEQUENTIAL OR INCIDENTAL DAMAGES, THE PRECEDING LIMITATIONS MAY NOT APPLY TO YOU IN WHICH CASE NUTANIX’S LIABILITY UNDER THIS AGREEMENT WILL NOT EXCEED $10.  

10.           Infringement.  Subject to the remainder of this section, Nutanix shall defend or settle, at its own expense, any third-party action against You to the extent based upon a claim that the Software infringes any copyright or trademark or misappropriates any trade secret, and will pay such damages or costs as are finally awarded against You attributable to such claim, provided that You (i) notify Nutanix promptly in writing of any such action, (ii) give Nutanix sole control of the defense and/or settlement of such action (iii) give Nutanix all reasonable information and assistance, and (iv) are not in material breach of this Agreement.  Should the Software become, or in the opinion of Nutanix be likely to become, the subject of such an infringement claim, Nutanix may replace or modify, in whole or in part, the Software to make it non-infringing. Nutanix assumes no liability hereunder for: (a) any method or process in which the Service or Software may be used; (b) the combination, operation or use of the Service or Software with non-Nutanix products or services; or (c) Your use of the Service or Software in a manner other than the Permitted Use. You shall indemnify and hold harmless Nutanix and its officers, directors, employees, agents, successors and assigns against any damages, losses, and expenses (including reasonable attorneys’ fees) arising from any third-party action to the extent based upon a claim that the Service or Software infringes any copyright or trademark or misappropriates any trade secret due to any of the foregoing factors, and shall give Nutanix all reasonable information and assistance regarding such claim.

THIS SECTION SETS FORTH NUTANIX’S ENTIRE LIABILITY AND OBLIGATION AND YOUR SOLE REMEDY FOR ANY CLAIMS OR ACTIONS OF INFRINGEMENT OF ANY INTELLECTUAL PROPERTY RIGHTS.

11.           Confidentiality. "Confidential Information" shall mean the Software and Documentation and all other information disclosed to You that Nutanix characterizes as confidential at the time of its disclosure either 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 this Agreement, 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 Agreement.

12.           Injunctive Relief. You acknowledge and agree that Your breach or threatened breach of this Agreement shall cause Nutanix irreparable damage for which recovery of money damages would be inadequate and that Nutanix therefore may obtain timely injunctive relief to protect its rights under this Agreement in addition to any and all other remedies available at law or in equity.

13.           Export Controls. Each Party shall comply with all laws applicable to the actions contemplated by this Agreement.  You acknowledge that the Software is of United States origin, and is 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.  You represent that (1) You are not, and are 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) You will not permit the Service or 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.  The Software and Documentation are deemed to be “commercial computer software” and “commercial computer software documentation”, respectively, pursuant to DFARS Section 227.7202 and FAR Section 12.212(b), as applicable.  Any use, modification, reproduction, release, performing, displaying or disclosing of Software and Documentation by or for the U.S. Government shall be governed solely by the terms and conditions of this Agreement.  You agree that the Software may not be exported/re-exported to Cuba, Iran, North Korea, Sudan and Syria.  Furthermore, You agree not to resell, transfer, or re-export products without prior authorization from Nutanix or the U.S. government to any military entity of:  Albania, Armenia, Azerbaijan, Belarus, Cambodia, China (PRC), Georgia, Iraq, Kazakhstan, Kyrgyzstan, Laos, Macau, Moldova, Mongolian P.R., Russia, Tajikistan, Turkmenistan, Uzbekistan, Ukraine, Vietnam.

14.           Governing Law.  To the extent permitted by applicable law, 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.  This Agreement will not be governed by the conflict of laws rules of any jurisdiction or the U.N. Convention on Contracts for the International Sale of Goods, the application of which is expressly excluded.

15.           Miscellaneous. 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 You have received a translation into another language, it has been provided for Your 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. You may not assign, delegate any performance, or otherwise transfer by operation of law or otherwise this Agreement or any rights or obligations herein. You agree not to copy, sell, give or assign the Service, Software or any part thereof to a third party.  Nutanix may assign this Agreement to any person or entity at its sole discretion. You represent and warrant that the performance of any activities contemplated by this Agreement do not and shall not conflict with any other agreement or obligation to which You are a party or by which You are bound.  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 You and Nutanix with respect to the Service, Software and Documentation and supersedes all prior and contemporaneous agreements relating to the Service, Software and Documentation, whether oral or written (including any inconsistent terms contained in a purchase order).  If You are found to have breached Section 1.2 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”.

User Outside the U.S.  If You are using the Service, Software or Documentation outside the U.S., then the following shall apply:  (a) You confirm that this Agreement and all related documentation is and will be in the English language; (b) You are responsible for complying with any local laws in Your jurisdiction which might impact Your right to import, export or use the Service, Software and Documentation, and You represent that You have complied with any regulations or registration procedures required by applicable law to make this license enforceable.  Close