Dell XC640, XC940, XC740xd, 6420 User Manual

NUTANIX LICENSE AND SERVICES AGREEMENT

Thank you for choosing to work with Nutanix. We look forward to a long and mutually beneficial relationship with your organization. This Agreement is entered into between Nutanix, Inc., Nutanix Netherlands B.V. and, as applicable, their affiliates (“Us”, “We” or “Our”) and your organization (“You or “Your”) and is effective as of the date signed or accepted by You. This Agreement will allow You to license on-premise software, procure internet-based software-as-a-service, as well as support and other professional services any time at Your convenience. It applies if Your contract: (a) indirectly through an authorised Nutanix partner; or (b) directly with Us, regardless of whether We or a Nutanix partner charges You for the products and services or not.

1. DEFINITIONS

The following capitalized terms have the following meaning(s):

1.1“Affiliates” means any corporation or other business entity which controls, is controlled by or is under common control by You through the ownership of more than fifty percent (50%) of the outstanding voting stock of the controlled corporation or more than fifty percent (50%) of the equity interests of a non-corporate entity. If You are a public sector entity, an Affiliate is an organization over which You are required to exercise administrative control by applicable laws or regulations.

1.2“Cloud Services” means Our branded offerings made available to You via the internet from equipment owned or operated by or for Us.

1.3“Documentation” means Our operating manuals, user instructions, technical literature and functional materials describing the features and functions of the Software and Cloud Services made available to You by Us.

1.4“Entitlement” means Our record of the SKUs, types, quantities and other use metrics of Your purchases from Us. An Entitlement for: (a) Software, Support Services and Professional Services is provided by Us to You in an order acknowledgement or similar document and (b) Cloud Services is made available in the Nutanix Billing Center.

1.5“Nutanix Billing Center” means the online console made available by Us detailing Cloud Services purchased by You

1.6“Nutanix Partner” means a distributor, reseller or other channel sales participating entity that has been approved by Us and is authorized to provide products or services to You.

1.7“Professional Services” means consulting, implementation and training related to the Software and Cloud Services.

1.8“Software” means: (a) Our Nutanix-branded software specified in the Entitlement; (b) Updates and Upgrades; and (c) tools and utilities related to Cloud Services.

1.9“SOW” means a statement of work issued by Us that describes the Professional Services.

1.10“Support Services” means Our branded offerings described at https://www.nutanix.com/support-services/product-support/product- support-programs/, as may be updated from time to time.

1.11“Updates” and “Upgrades” means minor and major releases of the Software provided as part of the Support Services.

2.CONTRACT APPROVAL

By clicking the “ACCEPT” button when downloading or installing the Software or by copying, accessing or using the Software, Documentation, Cloud Services, or Support Services and Professional Services, as applicable; or by issuing a purchase order that references this Agreement, You agree that this Agreement governs Your use of the Software and Documentation, receipt of the Cloud Services, Support Services and Professional Services.

3. ENTITLEMENT

We shall generate an Entitlement for: (a) Software, Support Services and Professional Services on booking the applicable purchase order placed by a Nutanix Partner or You with Us, as applicable; and (b) Cloud Services on booking a purchase order as specified in 3(a) or receipt of an online order via the Nutanix Billing Center.

4. SOFTWARE LICENSE AND USE

4.1License Grant. You are granted a personal, non-exclusive, non-transferable, worldwide, limited and revocable license to install and use the Software specified in the Entitlement for Your internal business purposes only. You may use the Documentation in support of Your use of the Software. The Software licenses are either (i) node-locked to specific hardware and granted for the life of that hardware, or (ii) independent of hardware and granted for a specific term.

4.2Delivery. Delivery of Software occurs when We make an enabling key available to You or when We otherwise make the Software available to You for download and use.

4.3Acceptable Use. Without Our prior written consent, You agree not to: (a) use the Software or Documentation in breach of the Entitlement or this Agreement; (b) transfer, resell or otherwise use Software or Documentation in a service bureau, commercial hosting service or any similar capacity (unless explicitly permitted in the Entitlement); (c) publish the results of any Software benchmark tests or competitive analysis; (d) attempt to gain access to the source code or other proprietary portions of the Software; (e) transfer or use any node-locked Software to hardware other than that on which it was originally installed or use it with grey-market hardware; (f) modify, adapt or create a derivative work of the Software or Documentation; or (g) remove, conceal or alter any product identification, copyright or other proprietary notices in the Software or Documentation.

5.CLOUD SERVICES

5.1Access. If You procure Cloud Services, You receive a non-exclusive, non-transferable right to access and use the Cloud Services specified in the Entitlement. To the extent that the Cloud Services require You to download and install any Software, use of that Software shall be subject to the terms of this Agreement. Geographic limitations may apply to the Cloud Services, as specified in the Documentation.

5.2Credentials. Once We provide You with the means of creating credentials to access and use the Cloud Services, it is Your sole responsibility to provision and control the credentials of Your employees, agents, contractors and other users of the Cloud Services (“User(s)”). You agree to implement best practices with respect to such controls and notify Us immediately of any suspected or actual misuse or compromise of User credentials.

5.3.Content. The Cloud Services provide the ability to use, access, load, store, manage or monitor: (a) data belonging to You or third parties; and (b) third-party software, applications and computing environments services, content, data and websites provided in connection with the Cloud Services, including via the Nutanix Marketplace at https://portal.nutanix.com (collectively, “Your Content”). Use of Your Content is governed exclusively by separate agreements between You and those third parties providing Your Content. It is Your responsibility to secure and maintain all rights in Your Content necessary for Us to legally provide the Cloud Services.

5.4Acceptable Use. Without Our prior written consent, You shall not, and shall not enable anyone else to use the Cloud Services: (a) in breach of the Entitlement or this Agreement; or (b) as an application services provider, service bureau, commercial hosting service or similar capacity. You shall not use the Cloud Services to: (a) transmit or store any content that may pose threats or otherwise engage in any conduct that may disrupt the operation of the Cloud Services or interfere with any third-party; (b) manage specifically regulated data, including, but

not limited to data subject to the Health Insurance Portability and Accountability Act, Basel II, Graham Leach Bliley and Payment Card Industry regulations; (c) perform performance tests, benchmarking or any competitive analysis; (d) conduct any abusive, harassing, slanderous, fraudulent, illegal , obscene, defamatory, immoral, objectionable or harmful activity; or (e) violate any laws or third-party rights, including any intellectual property rights, personal data and privacy rights; or (f) conduct, directly or indirectly, any activities associated with cryptocurrency mining or similar endeavors. You shall not: (a) attempt to gain access to any Cloud Services You are not authorized to use, including any administrative portions of the Cloud Services; (b) circumvent any security features; or (c) use the Cloud Services in any way that poses security threats or otherwise introduces security or performance vulnerabilities into the Cloud Services.

5.5Suspension. We may suspend or terminate access to Cloud Services if: (a) You are in violation of this Agreement; (b) Your use poses a security threat or actual or potential violation of any law or this Agreement; (c) it is required by a court order, subpoena or other legal action, or; (d) We believe suspension is required to prevent harm to, or preserve availability of, the Cloud Services or Your Content. No fees will be refundable to You for suspension under this Section 5.5.

6.THIRD-PARTY AND OPEN SOURCE SOFTWARE. The Software and Cloud Services may contain copyrighted third-party software as well as open source software. The third-party licensors retain all intellectual property rights in the third-party software. You can use third-party software and open source software in support of Your use of the Software in accordance with the terms of this Agreement. Your right to use open source software shall be subject to the respective terms of the open source licenses, which are provided at https://www.nutanix.com/opensource. You may have the right to receive source code for certain open source software included or used in the Cloud Services for a period of three (3) years following Your use of those Cloud Services. You may exercise this right by following the directions provided at https://www.nutanix.com/opensource or by writing to Us as specified in Section 18.4 (Notices).

7.SUPPORT SERVICES.

7.1Term. Subject to Your payment of the applicable fees, We shall provide the Support Services specified in the Entitlement and in accordance with the Support Terms available at https://www.nutanix.com/support-terms/.

8.PROFESSIONAL SERVICES

8.1Scope. We shall deliver the Professional Services specified in the Entitlement and any SOW. We do not do any custom development work.

8.2Your Obligations. You shall provide Us with any equipment, software, information, timely decisions, direction and facilities necessary for Us to perform the Professional Services as specified in the SOW.

8.3License. You grant Us a non-exclusive, worldwide, royalty-free license to use Your intellectual property for the purpose of performing the Professional Services. You have a license to use any deliverables provided as part of the Professional Services on the terms specified in Section 4 above.

9.WARRANTIES

9.1Software. The initially-shipped version of the Software shall materially conform to the Documentation for a period of ninety (90) days from the date of delivery (“Software Warranty Period”). The Software is not warranted to be totally error-free. In the event of a material non-conformity in the Software that is reported to Us during the Software Warranty Period, and which is reproducible and verifiable, We shall either promptly repair or replace the Software or refund the amounts received for the non-conforming Software, at Our reasonable discretion. This warranty excludes defects resulting from accidents, abuse, unauthorized repair, modifications, misapplication, or use of the Software in a manner that is materially inconsistent with the Documentation. We agree to screen the Software using commercially available anti-virus software prior to delivery and We warrant, to the best of Our knowledge, at delivery the Software contains no known virus, malware, spyware, trojan horse or other disabling code.

9.2Cloud Services. We warrant that the Cloud Services shall materially comply with the Documentation under normal use and circumstances. The Cloud Services are not warranted to be totally error free. In the event of a material and verifiable breach of this warranty We will refund to you that portion of any fees that You have pre-paid for services that were not rendered in accordance with this warranty.

9.3Support Services. We warrant that the Support Services shall be provided in a professional manner with reasonable care and skill. Your sole remedy for breach of this warranty shall be reperformance of the Support Services at no additional cost provided that You notify Us of any non-conformity within thirty (30) days of the provision of the non-conforming Support Services.

9.4Professional Services. The Professional Services shall be provided in a professional manner with reasonable care and skill. Your sole remedy for breach of this warranty shall be reperformance of the Professional Services at no additional cost, provided that You notify Us of any non-conformity within thirty (30) days of the provision of the non-conforming Professional Services. A breach of one SOW shall not amount to a breach under any other SOW.

9.5LIMITATIONS AND EXCLUSIONS. TO THE EXTENT PERMITTED BY APPLICABLE LAWS, THE FOREGOING WARRANTIES ARE YOUR SOLE AND EXCLUSIVE WARRANTIES AND REMEDIES. EXCEPT FOR THE WARRANTIES SPECIFICALLY DESCRIBED ABOVE, ALL PRODUCTS AND SERVICES ARE PROVIDED “AS-IS” AND ALL OTHER WARRANTIES INCLUDING BUT NOT LIMITED TO THE IMPLIED WARRANTIES OF MERCHANTABILITY, ACCEPTABLE QUALITY, TITLE, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT ARE EXPRESSLY DISCLAIMED.

9.6Hardware Compatibility. Software shall only be compatible with hardware specified on the Nutanix Hardware Compatibility List available at https://www.nutanix.com/products/hardware-platforms/ as may be amended from time to time.

10.PRICING, PAYMENTS AND TAXES (APPLICABLE TO DIRECT PURCHASES ONLY)

10.1Pricing. We may change the prices specified in Our price list and add or remove items at any time. A purchase order received after the effective date of a price change, but pursuant to a valid and unexpired quote shall be invoiced at the price stated on that quote.

10.2Purchase Orders. You shall issue binding, non-contingent, written or electronic orders consistent with the corresponding price quote for the purchase of Software, Cloud Services, Support Services and Professional Services, as applicable. Your purchase orders shall refer exclusively to this Agreement. All purchase orders that You issue to Us shall be governed by this Agreement.

10.3Payment Terms. You shall make full payment in the currency specified in the invoice not later than thirty (30) days from the date of Our invoice. The rights to use the Software and Documentation, access the Cloud Services, receive the Support Services and Professional Services are subject to payment in accordance with this Section 10. All fees are non-refundable, non-contingent and non-cancellable.

10.4FlexCredits. You may use FlexCredits, as specified below, to purchase Professional Services. FlexCredits, identified by SKU FLEX-CST-CR on Our price list, or such other SKU as We may determine from time to time, may only be used for packaged or custom Professional Services, technical account manager or resident consultant resources, education offerings, including certifications or any additional services as We may determine at Our discretion. Additional information on Professional Services against which FlexCredits may be utilised is available at:

(a)for consulting services https://www.nutanix.com/services/consulting-services/; and (b) for education and certification https://www.nutanix.com/services/education/. The cost of FlexCredits is as per the then current price list. FlexCredits expire twelve (12) months from the purchase date, are non-refundable and can be applied to any Professional Services made available by Us at the time of

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