These Portworx Products Terms of Use (“Portworx Terms”), apply to the provision of any Portworx branded products (collectively, the “Software”).

1.  TERM-BASED SOFTWARE LICENSE. End User may purchase a Term-Based Software License, whereby subject to End User’s compliance with the the Portworx Terms, Everpure grants End User and any third party that End User authorizes to perform services involving the Software solely for End User’s benefit, a non-transferable, non-sublicensable, non-exclusive license to use the Software during the Service Term, as set forth in the applicable order, in executable object code format only, solely for End User’s internal use, and solely for use in accordance with the Documentation.

2.  CONSUMPTION-BASED SOFTWARE LICENSE. End User may purchase a Consumption-Based Software License, whereby subject to End User’s compliance with the Portworx Terms, Everpure grants End User and any third party that End User authorizes to perform services involving the Software solely for End User’s benefit, a non-transferable, non-sublicensable, non-exclusive license to use or access the Software during the Service Term, subject to the Reserve Commitment and other use limitations described in these Portworx Terms, the applicable SKU, quote, or order, in executable object code format only, solely for End User’s internal use, and solely for use in accordance with the Documentation.

2.1  Consumption-Based Software License – Reserve Commitment. Consumption-Based Software Licenses include a Reserve Commitment. Each “Node” for purposes of calculating the Reserve Commitment equals 9,000 hours of usage of the Software, per year, on any individual End User node during the Service Term. For example: A Reserve Commitment of 10 Nodes with a 3-year Service Term means End User may consume up to 90,000 node hours during any of the three (3) years of the Service Term. End User may increase the Reserve Commitment at any time, however End User acknowledges and agrees that any portion of a Reserve Commitment that is not consumed or otherwise utilized by the end of any year during the Service Term, does not rollover into any subsequent year or Service Term. For example: if End User has a 10 Node Reserve Commitment, over a 3-year Service Term, and only uses 5 Nodes (45,000 node hours) during the Service Term, the remaining 5 unused Nodes (45,000 node hours) as part of the original 10 Node Reserve Commitment, are not rolled over into any subsequent Service Term. In addition, for the sake of clarity, and for illustration purposes only, if End User has a 10 Node Reserve Commitment, over a 3-year Service Term, and only uses 5 Nodes (45,000 node hours) in the first year of the Service Term, the 5 unused Nodes are not rolled over to the next year and are expired. End User acknowledges and agrees that unless terminated pursuant to Section 9 herein, it is not entitled to a cash rebate, refund, repayment or a credit for any portion of the Reserve Commitment that is not consumed or otherwise expired by the end of the Service Term.

2.2  Consumption-Based Software License – Reserve Commitment Invoicing. Reserve Commitments for Consumption-Based Software Licenses are billed at the Reserve Rate, in advance during the Service Term.

2.3  Consumption-Based Software License – On-Demand. End User may utilize Consumption-Based Software Licenses above and beyond the Reserve Commitment by paying Portworx or a Everpure authorized reseller for On-Demand usage at the On-Demand rate.

2.4  Consumption-Based Software License – On-Demand Invoicing. On-Demand utilization is billed at the On-Demand rate, calendar-quarterly in arrears during the Service Term.

2.5  Consumption-Based Software License – Metering Data Required. Everpure’s receipt of metering data is an integral component of delivering Consumption-Based Software Licenses. End User acknowledges and agrees that the rates charged for a Consumption-Based Software License is contingent upon Everpure’s receipt of metering data. Therefore, End User shall ensure that Everpure’s ability to receive metering data is enabled at all times. Notwithstanding any other rights or remedies available to Everpure, Everpure reserves the right to exercise any of the following remedies if the metering of data is not enabled at any time during the Service Term: (a) Everpure may request and End User shall promptly provide Everpure, a written report that includes reasonable detail of End User’s consumption usage including hourly usage; or (b) upon 15 days’ prior notice, Everpure may suspend or terminate End User’s Software license. End User acknowledges and agrees that the Software licenses may expire or be suspended as a result of End User’s failure to enable the metering data feature. Such expiration or suspension of the software license shall not constitute a breach by Everpure under these Portworx Terms.

3.  PAY AS-YOU-GO SOFTWARE LICENSE. End User may purchase a Pay-As-You-Go Software License, whereby subject to End User’s compliance these Portworx Terms, Everpure grants End User and any third party that End User authorizes to perform services involving the Software solely for End User’s benefit, a non-transferable, non-sublicensable, non-exclusive license to use or access the Software subject to the use limitations described in these Portworx Terms, the applicable SKU, or order in executable object code format only, solely for End User’s internal use, and solely for use in accordance with the Documentation.

3.1  Pay As-You-Go Licenses – Monthly Minimum. Pay-As-You-Go Software Licenses are a month-to-month license to use the Software, subject to any applicable minimum monthly usage commitment of the Software as may be set forth at https://portworx.com/products/features/ (“Monthly Minimum”). End User shall pay the applicable Monthly Minimum to Everpure or its authorized reseller each month of a Pay-As-You-Go Software License until terminated pursuant to these Portworx Terms, irrespective of whether End User’s actual usage is below the Monthly Minimum. In addition, End User shall pay for any usage of the Software in excess of the Monthly Minimum. End User is responsible for payment of 50% of the Monthly Minimum if the Pay-As-You-Go Software License is purchased after the 15th of any calendar month, and any usage in excess of the Monthly Minimum. Following that first month, Pay-As-You-Go Software Licenses renew each month and End User is responsible for payment of the Monthly Minimum unless terminated pursuant these Portworx Terms.

3.2  Pay As-You-Go Licenses – Invoicing. Monthly Minimums are invoiced monthly in arrears.

3.3  Pay As-You-Go Licenses – Payment Terms. End User shall pay all invoices for Pay-As-You-Go Licenses issued by Everpure within 30 days from date of invoice. Everpure reserves the right to charge one and one-half percent (1 ½) per month on the unpaid balance or the maximum rate allowed by law, whichever is less for any amounts not paid when due. If an electronic payment method is required by Everpure, then End User authorizes Everpure to automatically charge the payment method provided to Everpure’s third party payment processor. If Everpure approves End User for credit terms (i.e. a monthly invoicing option), Everpure will invoice End User for the Monthly Minimum in arrears and End User shall pay the Monthly Minimum within 30 days after the end of the calendar month in which the Monthly Minimum applies.

3.2  Pay As-You-Go Licenses – Taxes. The fees and charges for any Pay As-You-Go Licenses purchased directly from Everpure are exclusive of any taxes, duties, or tariffs imposed or levied on the Software and any services that may be provided under these Portworx Terms. End User is responsible for, and will promptly pay in full, all taxes and duties of any kind including, but not limited to sales, use, and withholding taxes, except for taxes based on Everpure’s net income.

4.  ORDERS. All orders are subject to Everpure’s written acceptance. Except as set forth in these Portworx Terms, all orders are non-cancellable and non-refundable.

5.  PORTWORX ESSENTIALS AND PORTWORX CSI FOR FA/FB LICENSE.

5.1  Portworx CSI for FA/FB Software-Only License. End Users of Everpure FlashArray (“FA”) or FlashBlade (“FB”) Products may be granted a Portworx CSI for FA/FB Software license (“Portworx CSI”) whereby subject to End User’s compliance with these Portworx Terms, End User is granted a limited, non-exclusive, revocable, non-transferable, and non-sublicensable license to use the Portworx CSI software in executable object code format only, during the applicable Service Term, solely for End User’s internal use, and subject to the usage and support limitations set forth at https://www.everpuredata.com/products/kubernetes-data-management.html. End User agrees to only use the Portworx volumes residing in cloud drives in a non-production environment and for evaluation purposes only.

5.2  Portworx Essentials and Portworx CSI Software – Fees. Portworx Essentials and Portworx CSI are provided to End User free of charge up to the usage limits set forth at https://www.portworx.com/products/features/. Everpure reserves the right to change its pricing policies for the Software described in Section 5 at any time in its sole discretion by providing prior written notice to End User via email, or other means of communication. To the extent such pricing policy changes are adverse and material to End User, End User may terminate these Portworx Terms by providing written notice to Everpure. End User’s continued use of the Portworx Essentials and/or Portworx CSI software following the expiry of a period of 30 days from Everpure’s notification shall be deemed acceptance by End User of such changes.

5.3  Subscriptions on Public Cloud. Sections 1, 2, 4, 5 and 7 of the Public Cloud Terms govern the usage or purchase of any subscription under Sections 1-5 of these Portworx Terms, on or from a public cloud. These Cloud Terms apply only if purchasing a Cloud Subscription or using any portion of the subscription in a public cloud.

6.  PRODUCT DATA. Everpure may accumulate and aggregate certain anonymous statistical and related data in order to improve the performance and functionality of its software, to develop new products or software, or to analyze the usage of the Software. Everpure may use aggregated anonymous data for such purposes as Everpure, in its sole discretion, deems to be appropriate.

6.1  Usage Data. End User agrees that Everpure may, to the extent permitted by law, receive and use certain usage data collected in connection with the software licensed under these Portworx Terms, including cluster UUID, cluster ID, cluster capacity, number of nodes, number of pod hours, and node types. For Portworx Essentials and Portworx CSI, data collected also includes cluster usage information, environment information (including third-party cloud environments), and application usage information. Usage data under this Section is used by Everpure to provide End User with billing and usage information pursuant to these Portworx Terms, to improve Everpure product performance and functionality of its products and to develop new products. This data may also be used to evaluate and improve Everpure’s products, for product sales and marketing initiatives (without identifying End User). Such information may be shared with service providers, vendors or agents only for the purpose of performing Services on Everpure’s behalf.

6.2  Personal Data. End User agrees that access to the software may require its designated users to register on Portworx’s registration web page and PX-Central. Such registration requires the user’s full name, company name and email address. End User further agrees that Everpure may, to the extent permitted by applicable law, receive and use such data in order to respond to End User support requests, to contact End User regarding products and/or services, and to perform its obligations under these Portworx Terms.

7.  AUDIT. Everpure may, at its expense, but no more than once per year for on-site audits, audit End User’s use of the Software. Any such audit shall either be conducted by means of remote access from a Everpure location or on-site during regular business hours at End User’s facilities and shall not unreasonably interfere with End User’s business activities.

8.  TERMINATION AND RENEWALS.

8.1  Termination for Cause. Either party may terminate any Software license (Term-Based, Consumption-Based, or Pay As-You-Go) for cause, immediately upon written notice to the other party if (collectively, “For Cause”): (a) the other party materially breaches any of the terms of these Portworx Terms, and fails to cure that breach within 30 days of its receipt of written notice of that breach; or (b) a party becomes insolvent or makes an assignment of these Portworx Terms for the benefit of creditors or is the subject of a bankruptcy or similar proceeding. In addition, if End User materially breaches these Portworx Terms, or fails to pay any undisputed amounts when due, then upon 7 days’ notice, Everpure may suspend the applicable Software licenses until that breach is cured. Any suspension will not affect, or otherwise toll the Service Term or any amounts due for the period of the suspension.

8.2  Termination for Convenience. End User may terminate the Portworx Terms at any time by (a) providing Everpure 30 days’ prior written notice for any Term-Based, Consumption-Based, or Pay-As-You-Go Software licenses; and (b) paying for all utilization or consumption of the Software through the date of termination. Notwithstanding anything to the contrary, the termination for convenience right under this Section 8.2 and the refund rights under Section 8.3 do not apply to the Portworx Data Services or Portworx Backup-as-a-Service offerings.

8.3  Effect of Termination. End User will receive a pro-rata refund on any prepaid, unused and unexpired portion of: (a) the Service Term as of the date of termination, for all Term-Based Software Licenses; (b) the Reserve Commitment for all Consumption-Based Software Licenses (excluding the Portworx Data Services and Portworx Backup-as-as-Service offerings); or (c) the Monthly Minimum for all Pay-As-You-Go Software Licenses. Upon Everpure or its authorized reseller’s refund of the unused portion of the Reserve Commitment or Monthly Minimum (as applicable), End User is also relieved of any future Reserve Commitment or Monthly Minimum obligations thereunder. Notwithstanding anything to the contrary, all Reserve Commitments for Portworx Data Services and Portworx Back-up-as-a-Service are non-cancelable and non-refundable. End User shall cease using the Software and return or destroy all Everpure Confidential Information. Upon any such termination, any terms, which upon a plain-reading, are intended to survive, shall survive.

8.4  Renewals. Everpure may, at its option, charge the End User directly, or through its authorized reseller, a reactivation fee for re-activating any license or subscription described in these Portworx Terms, that has either lapsed, expired or is otherwise terminated.

8.5  End of Product Lifecycle Policy. All Portworx Products and services are subject to Portworx’s End-of-Product Lifecycle Overview, which sets forth Portworx’s Product Lifecycle Policy.

9.  DEFINITION.

9.1  On-Demand: any utilization of a subscription, above and beyond the Reserve Commitment.

9.2  On-Demand Rate: the rate applicable to On-Demand usage.

9.3  On-Demand Used: the total amount of the subscription consumed by End User above the Reserve Commitment.

9.4  Reserve Commitment: As applied to Portworx Products, End User’s usage of a Consumption-Based Software License based on the maximum number of units of measure (e.g. Nodes, Node hours, Pod hours, or GB per month) identified on the applicable order upon which the Software is deployed.

9.5  Reserve Rate: the amount charged for utilization of the Reserve Commitment.

9.6  Service Term: the term of the subscription, as set forth on the applicable quote or order.

10.  GENERAL TERMS. These Portworx Terms supplement the Everpure End User Agreement (or other written agreement covering the same subject matter executed by Everpure) for the applicable Software product purchased by End User. Everpure reserves the right to update these Portworx Terms from time to time, as noted by the “Last Updated” date below.