Nutanix Hosted POC Addendum

This Nutanix Hosted POC Addendum (“Addendum”) is entered into between Nutanix and You becomes effective when you accept this Addendum, including by signature, clickthrough, or other acceptance mechanisms or access, download, install, or use the Hosted POC (the “Addendum Effective Date”) and adds and/or modifies terms of the Nutanix License and Services Agreement (“Agreement”) entered into between Nutanix and You. Any capitalized terms not defined herein shall have the meanings assigned to them in the Agreement.

  1. SERVICES. The “Hosted POC” is the Nutanix-hosted proof-of-concept lab environment, which is considered a Preview under the Agreement. The Hosted POC may not be used for commercial purposes or the processing of any production data.   You acknowledge that We may modify and improve the Hosted POC from time to time.
  2. ACCEPTABLE USE.  You will not, and will not enable anyone else to, use the Hosted POC: (a) in breach of the limitations prescribed by Us in this Addendum; (b) as an application services provider, service bureau, commercial hosting service or similar capacity; (c) to manage any regulated data, including, but not limited to personal data, or data subject to the Health Insurance Portability and Accountability Act (HIPAA), Basel II, Graham Leach Bliley Act and Payment Card Industry regulations, among others;  (d) to transmit or store any content that may pose threats, or otherwise engage in any conduct that may disrupt the operation of the Hosted POC or interfere with any third party; (e) for any abusive, harassing, slanderous, fraudulent, illegal , obscene, defamatory immoral, objectionable or harmful activity; (f) in violation of any laws or third party rights, including any Intellectual Property Rights, data and privacy rights; or (g) directly or indirectly use the Hosted POC for any activities associated with cryptocurrency mining or similar endeavors.  You will not: (v) disclose the results of any Hosted POC benchmark tests or competitive analysis; (x) attempt to gain access to any Hosted POC You are not authorized to use, including any administrative portions of the Hosted POC; (y) use the Hosted POC beyond the Evaluation Period; or (z) circumvent any security features or use the Hosted POC in any way that poses security threats or otherwise introduces security or performance vulnerabilities into the Hosted POC.
  3. CREDENTIALS.  Once We provide You with credentials or a means of creating credentials for accessing and using the Hosted POC, it is Your sole responsibility to control credentials of Your Users’ Hosted POC accounts.  You agree to implement best practices with respect to such controls and to notify Us immediately of any suspected or actual misuse or compromise of User credentials. You will also comply with any restrictions on sharing credentials that may accompany a purchase order or as otherwise may be conveyed to You by Us, including via email.
  4. CUSTOMER CONTENT.  The Hosted POC may provide the ability to use, access, load, store, manage or monitor Your Content.  You will secure and maintain all rights in Your Content necessary for Us to provide the Hosted POC to You without violating the rights of any third party or otherwise obligating Us to You or to any third party. 
  5. SUPPORT. Support will not be provided with the Hosted POC except at Our sole discretion. 
  6. TERM AND TERMINATION.  This Addendum is effective as of the Addendum Effective Date and expires on the date of expiration or termination of the Evaluation Period. Either party may terminate the Addendum at any time, and We may suspend or terminate Your access to and use of the Hosted POC at any time and for any reason at Our discretion.  No Fees will be refundable to You for suspension or termination by Us. You acknowledge that (i) any of Your Content not removed prior to such time will be irrevocably deleted, and (ii) We may retain any of Your Content required to comply with data retention policies and applicable laws.  
  7. DATA PROCESSING.  Notwithstanding anything to the contrary in the Addendum (including the DPA, where applicable), Nutanix may collect and use data pertaining to your use of the Hosted POC, for Our legitimate business purposes, such as account management, product improvements, security, and support. Nutanix may also use such data in anonymized and deidentified form for its own purposes, and such anonymized and deidentified data shall not be Confidential Information or Your Content under the Agreement. You acknowledge and agree that We may monitor use and activity in the Hosted POC, including Our direct access to Your Content and any accounts you may be using within the Hosted POC.
  8.  INDEMNIFICATION BY CUSTOMER.  You will defend, indemnify and hold Us harmless against any damages, settlements or costs (including reasonable attorneys' fees) arising out of Your Content or Your use of the Hosted POC, including infringement of any Intellectual Property Rights, violation of this Addendum or applicable law (the “Claim”) provided that We (a) promptly give You written notice of such Claim, (b) give You sole control of the defense and settlement of the Claim (provided that You may not settle any Claim without Our consent unless it unconditionally releases Us of all liability); and (c) provide to You all reasonable assistance.
  9. SHARED FILE TRANSFER SYSTEM. We may provide you with access to a shared file transfer system (e.g. an SFTP client) that may expose Your Content or other information you add to the file transfer system to other users of the system. Your use of the shared filed transfer system and submission of Your Content or other information to the shared file transfer system is at Your own risk and any such exposure or disclosure of Your Content to other users of the system shall not constitute a breach of Our confidentiality obligations under this Agreement.
  10. MISCELLANEOUS.  This Addendum together with the Agreement, including any documents referred to herein, constitute the entire agreement between the parties and supersede all previous agreements, oral or written, with respect to the subject matter of this Addendum. The following provisions will survive any termination or expiration of this Addendum:  Sections 1, 2, 4-10.  This Addendum may not be amended without Our prior written consent. You may not assign or delegate or otherwise transfer its licenses, rights or duties under this Addendum. Any unauthorized assignment shall be null and void and constitute a breach of this Addendum. The terms of this Addendum prevail over any conflicting terms in the Agreement. If any provision in this Addendum is found to be unenforceable by a court of competent jurisdiction, the remainder of this Addendum will remain in full force and effect.