SDK LICENSE AGREEMENT IMPORTANT -- READ CAREFULLY READ THIS SDK LICENSE AGREEMENT (THE "AGREEMENT") BEFORE DOWNLOADING, INSTALLING, COPYING, CONFIGURING, ACCESSING, DEPLOYING AND/OR USING THE SDK 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 SDK 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 SDK 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 SDK OR DOCUMENTATION.
This Agreement is between you, on behalf of the company, partnership or business entity that you represent ("Licensee") and Nutanix, Inc. a Delaware corporation, with offices located at 1740 Technology Drive, Suite 150, San Jose, CA 95110, USA ("Nutanix") (each of Licensee and Nutanix a "Party" and together the "Parties"), and is effective as of the date on which Licensee accepts the terms of this Agreement ("Effective Date"). In consideration of the terms and conditions of this Agreement, the Parties agree as follows: DEFINITIONS In addition to the capitalized terms set forth above, the following capitalized terms shall have the following definitions: 1.1 "Documentation" means any manuals, instructions and other documentation pertaining to the SDK that Nutanix may deliver or make available to Licensee.
1.2 "Intellectual Property Rights" means patents of any type, design rights, utility models or other similar invention rights, copyrights, derivative works, 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 “Licensee Software” means a software program developed by Licensee that utilizes or interacts with the SDK or any other Nutanix Products in any way.
1.4 "Nutanix Products" means any Nutanix proprietary software, internet-based or hosted offerings, and any updates or upgrades not provided under a software-specific license.
1.5 “SDK” means the software development kit provided by Nutanix under this Agreement.
LICENSE GRANT AND SERVICES Grant. 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 and make incidental copies of the SDK in object code form solely for development purposes in connection with Licensee’s use of Nutanix’s application programming interfaces (“APIs”) for the purpose of enabling interoperability of Licensee Software with Nutanix Products. Subject to this Section 2, Licensee may distribute the SDK in object code form as a component of Licensee Software, so long as distribution is necessary for interoperability of such Licensee Software with Nutanix Products and the Licensee is otherwise in compliance with this Agreement. Restrictions. Except as specified in this Agreement, Licensee shall not and agrees not to: (i) use the SDK 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 SDK or the Documentation; (iii) copy or otherwise reproduce the SDK or the Documentation; (iv) modify or create derivative works of the SDK or the Documentation; (v) disassemble, decompile or reverse engineer the SDK, or change or remove any proprietary rights notice on any of the foregoing or the Documentation; or, (vi) use the SDK in a manner that would subject the SDK to any other license terms, including licenses that require the SDK to be (a) disclosed or distributed in source code form, or (b) licensed for the purpose of making derivative works. Distribution Limitations. If Licensee distributes the SDK, Licensee will: (a) ensure that any third party use of the SDK will be subject only to the terms of this Agreement, (b) not alter this Agreement, and (c) include a copy of this Agreement with Licensee Software in place and in manner where Licensee provides such third party notices in Licensee Software generally. Use of Open Source Software. Portions of the SDK may constitute open source software (the "Open Source Software") that is distributed subject to one or more applicable open source software license(s) (the "Open Source Software License"). 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. Services. At Nutanix’s sole election, it may provide assistance to Licensee with respect to the use of the SDK ("Support Services"). Such Support Services shall be provided at no charge solely as a courtesy to Licensee, and as set forth in Section 6.1 below, such Support Services shall be provided without warranty and Nutanix shall have no liability with respect to such Support Services. Nutanix Products. If you configure the SDK to connect with Nutanix Products, the Nutanix Products shall be governed by the Nutanix License and Services Agreement (“NLSA”) located at https://www.nutanix.com/legal/eula, which may be updated from time to time. The NLSA is incorporated herein by reference. Any use of the SDK that violates the NLSA will also be a violation of this Agreement. 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 is required to disclose by applicable law or court order, provided that Licensee notifies Nutanix of such required disclosure promptly in writing and cooperates 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. TERM AND TERMINATION Term. 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 SDK and the Documentation; (c) Licensee shall destroy all copies of the SDK 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. Survival. Sections 2.3, 3, 4.2, and 5-9 shall survive any expiration or termination of this Agreement. OWNERSHIP As between Nutanix and Licensee, Nutanix and its licensors own all worldwide right, title and interest in the SDK and Documentation including all Intellectual Property Rights. The SDK 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 SDK 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 SDK or Documentation as a result of downloading, installing, accessing or using the SDK or Documentation except as specified in this Agreement. WARRANTY DISCLAIMERS AND INDEMNIFICATION Disclaimers by Nutanix. THE SDK, DOCUMENTATION, AND SUPPORT 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 ARISING FROM THE SUBJECT MATTER OF THIS AGREEMENT OR RESULTING FROM THE SDK, THE SUPPORT SERVICES, OR THE DOCUMENTATION, OR ANY USE THEREOF. Licensee Indemnity. Licensee shall defend, indemnify and hold Nutanix and its directors, employees subsidiaries, affiliates, successors and assigns harmless from and against all claims, damages, losses, costs and expenses, including attorneys' fees, arising from any third party claims asserted against Nutanix and its employees, subsidiaries, affiliates, successors and assigns, that are based in whole or in part on any of the following: (a) Licensee's distribution, use, or misuse of the SDK in violation of this Agreement; (b) Licensee’s use of the SDK in combination with any other software not provided hereunder; (c) Licensee’s breach of this Agreement; or (d) a claim based upon an actual or alleged infringement of an intellectual property right of a third party arising from or related to the Licensee Software. FEEDBACK During the course of this Agreement, Licensee may provide input or feedback regarding the SDK, the Documentation, or other products, services, business or technology plans of Nutanix (collectively "Feedback"). 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 exploit or dispose of such Feedback, including in connection with 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. USAGE DATA AND PRIVACY Notwithstanding anything to the contrary in the Agreement, Licensee agrees that Nutanix shall have the right to collect and process data pertaining to Licensee and its users and data related to their use of the SDK, Nutanix Products , and/or Support Services for Nutanix's legitimate business purposes, such as account management, security and support, as well as to develop, improve and market, products and services. Any such usage data shall be considered Feedback under the terms of this Agreement. Any personal data or personal information collected by Nutanix under this Agreement shall be processed by Nutanix in accordance with its data privacy statement, which can be found at https://www.nutanix.com/legal/privacy-statement. GENERAL Changes to the Agreement. We reserve the right, at our sole discretion, to amend this Agreement at any time and will update this Agreement in the event of any such amendments. Licensee’s continued use of the SDK constitutes agreement to our revisions of this Agreement. Severability. 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. Waiver. 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. Governing Law. 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. Each of the parties hereto consents to the exclusive jurisdiction and venue of the state and federal courts of Santa Clara County, California. 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. Compliance with Laws; Export Control. Each Party shall comply with all laws applicable to the actions contemplated by this Agreement. Licensee acknowledges that the SDK 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. 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 SDK, 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 SDK may not be exported/re-exported to Cuba, Iran, North Korea, Sudan and Syria. 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 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 SDK, the Documentation, or any part thereof to a third party, including by operation of law. 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 SDK and the Documentation and supersedes all prior and contemporaneous agreements relating to the SDK 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.