This Program Enrollment Agreement (“Agreement”) governs Partner’s participation in the Nutanix Partner Network Program, is by and between the Nutanix entity identified in the last paragraph below (“Nutanix”) and the business entity ("Partner”) identified on the form (“Application Form”) submitted by Partner online, before being presented with this Agreement, and is entered into as of the date that Nutanix authorizes Partner to join the Program (“Effective Date”).
Program Enrollment. This Agreement serves to enroll Partner in the Nutanix Partner Program that corresponds to the category of Partner (“Partner Type”) specified on the Application Form, and entitles Partner to the benefits specific to that Partner Type, subject to Partner’s compliance with certain criteria (“Requirements”). In some cases, Requirements are divided into more than one tier (“Program Tier”) and Partner’s entitlement to the benefits of that Program Tier are subject to Partner’s continued compliance with those particular Requirements. For each Partner Type and Program Tier, the corresponding benefits and Requirements together are considered the “Program.” Each Program is governed by a guide (“Program Guidelines”) defining its benefits, Requirements and then-current rules of engagement, all of which may be specific to Partner’s geographic region. Partner acknowledges being presented with Program Guidelines upon submission of the Application Form and represents that it has read and understood the Program Guidelines. Because Nutanix may update the Program Guidelines from time to time, it is Partner’s responsibility to review them regularly. Partner agrees to comply with the Requirements as they may be updated. Nutanix may review such compliance from time to time and may adjust Partner’s Program Tier as a result. Partner’s sole and exclusive remedy if it does not accept an update to the Requirements or adjustment to Program Tier shall be to terminate this Agreement within thirty days after such update or adjustment. During the term of this Agreement, Partner consents to receiving Program-related bulk email messages from Nutanix, and agrees that Nutanix may publish Partner’s name as a member of the Program.
Nutanix Materials. Participation in a Program entitles Partner to receive copies of certain Nutanix-created materials (“Nutanix Materials”) and to use those Nutanix Materials during the term of this Agreement, as specified in the Program Guidelines. Except as expressly stated herein, Nutanix and its licensors shall retain all right, title and interest in and to the Nutanix Materials, and no other license to them is granted or will be implied. Partner agrees not to remove or alter any proprietary notice on the Nutanix Materials, to notify Nutanix immediately of any infringing use of Nutanix Materials it may discover, and not to distribute directly or indirectly any infringing copy.
Trademarks. During the term of this Agreement, Partner shall have the worldwide, nonexclusive right to use the Nutanix trademarks set forth in the Program Guidelines (“Nutanix Trademarks”) in marketing, advertising and promotional materials solely for the purpose of publicizing its membership in the Program, provided that Partner complies with all trademark guidelines provided by Nutanix, and the usage is not misleading and does not indicate or imply Nutanix’s endorsement, testing or approval of any other product or service offered by Partner. Except as expressly stated herein, Nutanix retains all right, title and interest in and to the Nutanix Trademarks, and no other license to them is granted or will be implied. All use by Partner of Nutanix Trademarks (including any goodwill associated therewith) shall inure to the benefit of Nutanix.
Term and Termination. This Agreement will commence on the Effective Date and, provided Partner remains in compliance with the Requirements, continue in effect for one year, unless sooner terminated in accordance herewith. The Agreement will renew automatically for successive one-year terms unless either party gives written notice of intent to terminate at least thirty days prior to the expiration of the then-current term. Either party may terminate this Agreement for any reason, with or without cause, upon thirty days prior written notice to the other party. Nutanix may terminate this Agreement immediately on notice for Partner’s unauthorized use of any Nutanix intellectual property or confidential information. Notwithstanding any expiration or termination of this Agreement, this section and all sections following it shall remain in effect in accordance with their terms, as shall any obligation incurred prior to such termination or expiration. All other rights granted under this Agreement will cease upon expiration or termination. Neither party shall be responsible to the other for any costs or damages resulting from the termination of this Agreement.
NO WARRANTY OR LIABILITY. NUTANIX MAKES NO REPRESENTATIONS OR WARRANTIES OF ANY KIND WITH RESPECT TO THE PROGRAM, NUTANIX PRODUCTS OR SERVICES, OR ANY RELATED INFORMATION, AND DISCLAIMS ANY AND ALL IMPLIED WARRANTIES OR CONDITIONS OF MERCHANT ABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT. IN NO EVENT SHALL NUTANIX BE LIABLE TO PARTNER FOR ANY INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL, EXEMPLARY OR PUNITIVE DAMAGES, INCLUDING BUT NOT LIMITED TO DAMAGES FOR LOST DATA, LOST PROFITS OR COSTS OF PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES. IN NO EVENT SHALL NUTANIX’S AGGREGATE LIABILITY TO PARTNER ARISING OUT OF OR RELATED TO THIS AGREEMENT EXCEED THE AMOUNT ACTUALLY RECEIVED BY NUTANIX FROM PARTNER UNDER THIS AGREEMENT. THE FOREGOING LIMITATIONS SHALL APPLY NOTWITHSTANDING THE FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY STATED IN THIS AGREEMENT.
Confidential Information. During the term of the Agreement, Partner may receive certain information from Nutanix that is designed as confidential, or should be recognized as confidential given the nature of the information or the circumstances surrounding its disclosure (“Confidential Information”). Confidential Information includes, but is not limited to: Customer Information (as defined below), product road maps and any other information about future Nutanix products or services, Nutanix instructor materials and notes, and the terms and conditions of this Agreement. Partner agrees not to disclose any Confidential Information to any third party, or otherwise use the Confidential Information, except as explicitly authorized by Nutanix. Further, Partner agrees to use any Customer Information (defined as a name, address, telephone number, email address or any other information identifiable to an actual or potential Nutanix customer or group of customers) in accordance with all applicable laws and solely for contacting customers about the purchase of Nutanix products and services, and to retain such Customer Information for only so long as is necessary to accomplish this purpose, in no case beyond expiration or termination of this Agreement. The provisions of this section do not apply to information that: was rightfully in Partner’s possession before receiving it from Nutanix, became a matter of public knowledge through no fault of Partner, was rightfully received from a third party without a duty of confidentiality, or was independently developed by Partner without breach of any confidentiality obligations. Partner’s duty to protect Confidential Information in accordance with this section shall continue for three years after the date of its disclosure, except that Customer Information shall remain confidential indefinitely. If applicable law or court order requires disclosure of Customer Information other than as permitted herein, Partner shall notify Nutanix in writing in advance of such disclosure, and provide Nutanix with copies of any related information so that Nutanix may take appropriate action to protect such Customer Information. All Confidential Information remains the property of Nutanix, and no right to the Confidential Information is granted hereby other than as expressly stated herein. Partner agrees to return all Confidential Information and any copies thereof to Nutanix immediately upon Nutanix’s written request.
General Provisions. Partner agrees to defend, indemnify and hold Nutanix harmless from and against any loss, cost, fine, liability, claim or damage of any type, including attorneys' fees, of Nutanix arising out of any third party claim, suit, or proceeding brought against Nutanix based on: (a) any negligent act or omission by, or willful misconduct of Partner, its employees or agents, (b) any omission or inaccuracy in Partner’s advertisements or promotional materials that relate to the Nutanix Products, (c) any representation made by Partner relating to the Program or the Nutanix Products, or (d) Partner’s performance of services related to the Program or the Nutanix Products. The parties hereto are acting as independent contractors. Neither party will be deemed to be an employee, agent, partner, franchisee or legal representative of the other for any purpose and neither will have any authority to create any obligation or responsibility on behalf of the other. Any notice required or permitted under the terms of this Agreement or required by law must be in writing sent to the attention of Legal Counsel at the appropriate address as set forth in this General Provision and must be delivered by prepaid first class registered mail or by reputable overnight courier service. Notices will be deemed given at the earlier of the time of receipt or five business days after being sent. Appropriate addresses shall be: for Nutanix, the address set forth in the last paragraph of this Agreement; and for Partner, Partner’s business address as initially identified in the Application Form or subsequently updated by proper notice. This Agreement will be governed by the laws set forth in the last paragraph of this Agreement, without regard to conflict of law principles. All disputes arising out of this Agreement will be subject to the exclusive jurisdiction of the courts set forth in the last paragraph of this Agreement, and each party hereby consents to the personal jurisdiction thereof, provided that Nutanix may seek injunctive relief to protect its Confidential Information in any court of law or equity of competent jurisdiction. This Agreement may not be assigned in whole or part by Partner, whether voluntarily or by operation of law, without the prior written consent of Nutanix. Nutanix may freely assign this Agreement. Subject to the foregoing, this Agreement will be binding upon and will inure to the benefit of the parties and their respective successors and assigns. Any assignment in violation of the foregoing will be null and void. Any waiver of the provisions of this Agreement must be in writing to be effective. If any provision in this Agreement is found to be invalid or unenforceable to any extent, the remaining terms of this Agreement will continue to be valid and enforceable to the fullest extent permitted by law. This Agreement (including any document incorporated herein by reference) con tains the entire agreement of the parties with respect to the subject matter hereof and supersedes all previous oral and written communications between the parties with respect to such subject matter. This Agreement may not be amended, except by a writing signed by both parties.
|Partner Domicile||Nutanix Entity||Notice Address||Governing Law||Venue|
|The Americas (North
America and South
|Nutanix, Inc.||1740 Technology
Drive, Suite 150,
San Jose, California
|California||State and Federal
Courts located in
the Northern District
|Any country outside
of The Americas
|Scorpius 100, 2132
|England||Courts of England|