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purelicense — End User Agreement (EUA) between Pure Storage Inc. and end users of the company's products

END USER AGREEMENT (v03-05-2015)

Available online at: http://www.purestorage.com/agreements/Pure_enduser_agreement.pdf .

IMPORTANT: PLEASE READ THIS END USER AGREEMENT (“AGREEMENT”) BEFORE INSTALLING OR USING THE PURE STORAGE FLASHARRAY PRODUCT, INCLUDING THE HARDWARE AND SOFTWARE COMPONENTS THEREOF (“PRODUCT”). THIS AGREEMENT APPLIES TO THE PRODUCT THAT YOU OR THE ENTITY THAT YOU REPRESENT (“END USER”) OBTAINED EITHER DIRECTLY FROM PURE STORAGE, INC. (“PURE”) OR FROM AN AUTHORIZED PURE RESELLER. BY INSTALLING OR USING THE PRODUCT, YOU REPRESENT AND WARRANT THAT YOU HAVE THE AUTHORITY TO BIND END USER AND AGREE THAT END USER IS BOUND BY THIS AGREEMENT WITH PURE (UNLESS A SEPARATE WRITTEN AGREEMENT IS IN EFFECT THAT SPECIFICALLY GOVERNS THE SUBJECT MATTER HEREOF). IF END USER DOES NOT HAVE A SEPARATE WRITTEN AGREEMENT WITH PURE AND DOES NOT AGREE TO THIS AGREEMENT, THE END USER MAY, WITHIN 30 DAYS OF INITIAL RECEIPT OF THE PRODUCT, RETURN THE UNUSED PRODUCT FOR A REFUND.

1. GUARANTEE PROGRAM.

Unless End User has completed a free trial “proof of concept” for the Products, the first Product purchased by End User comes with a 30 day “money back” guarantee. End User may receive a full refund for the Products (and applicable support services) if it notifies Pure, or the applicable authorized Pure reseller, of its intent to elect for a refund within 30 days of receipt, provided that End User has performed a good-faith installation of the Product that allows the Product to “phone home” to Pure (share diagnostic and performance data with Pure). End User must return such Products within 10 days of such notice and in like new condition (other than normal wear and tear) in original packaging to receive a full refund, except as noted below. Pure will pay the shipping costs for returns shipped in accordance with Pure’s reasonable instructions. Pure reserves the right to charge refurbishing fees for Products that are returned damaged. Refunds will be processed within 30 days following Pure’s receipt of the returned Products.

2. SOFTWARE LICENSE.

2.1. Software License.

Subject to the terms and conditions of this Agreement, Pure grants to End User, and any contractors that End User authorizes to perform services involving the Product solely for End User’s benefit, a nontransferable (except as permitted in Section 11.5), nonexclusive, perpetual (subject to termination in accordance with the terms of this Agreement) license (without the right to sublicense) to use and execute the software provided with or incorporated in the Product (the “Software”), in executable object code format only, and solely to the extent necessary to operate the Product in accordance with the applicable Product documentation.

2.2. Termination of Software License.

The license in Section 2.1 and all of End User’s rights to use the Software will terminate immediately in the event that End User returns the Product to Pure in exchange for a refund or in the event that End User materially breaches any provision of this Agreement. Upon termination, Sections 2.2, 3, 4.2, 5.4, 7, 8, 9 and 11 will survive and End User shall promptly discontinue all use of the Software.

2.3. Limited Capacity License.

If the Products are subject to a specified capacity limit, End User is only authorized to use the Software at or below the limit paid for by End User. Pure or its reseller partner may invoice End User, and End User shall pay, for the additional capacity in the Product after End User’s usage exceeds the specified capacity limit three times in a 30 day period, even if usage subsequently falls below that limit. End User shall enable the Product’s phone home feature to allow Pure to monitor capacity usage. If End User disables or blocks the Product’s phone home feature, Pure shall have the right to invoice for the additional capacity. Pure reserves the right to inspect or otherwise verify compliance with this Section.

3. PRODUCT RESTRICTIONS AND TITLE.

3.1. Restrictions.

End User will not directly or indirectly (i) reproduce, modify, distribute, rent, lease, sublicense, assign, disclose or make available any portion of the Software (or any related documentation) to any third party; (ii) reverse engineer, decompile, or disassemble any portion of the Software, or otherwise attempt to decrypt, extract or derive source code for, or any algorithms or data structures embodied within, any portion of the Software (except to the extent the foregoing restriction is expressly prohibited by applicable law); (iii) use the Product or Software to develop a similar product or service; (iv) transfer, copy or use the Software to or on any other product or device; or (v) publish or disclose to any third party any performance or benchmark tests or analyses relating to the Product or the Software, except for internal use by the End User or as may be authorized by Pure in writing. End User will remain fully and primarily responsible to Pure for compliance with this Agreement if End User permits any contractors of End User to access the Product. Any future release, update, or other addition to functionality of the Software made available by Pure to End User, shall be subject to the terms and conditions of this Agreement, unless Pure expressly states otherwise. End User shall preserve and shall not remove, obscure or alter any copyright or other proprietary notices in the Software, its documentation and all copies thereof.

3.2. Title to Software.

Pure and its suppliers shall exclusively retain all right, title and interest, including without limitation all patent, trademark, trade name and copyright, whether registered or not registered, in and to the Software and related documentation. Pure and its suppliers reserve all rights not expressly granted herein, and no license or other implied rights of any kind are granted or conveyed except for the limited license provided herein. In the event that items of software code provided with the Product are subject to “open source” or “free software” licenses, nothing herein limits End User’s rights under, or grants rights that supersede, the applicable license therefor.

3.3. Excluded Uses.

End User acknowledges that the Product is not designed or intended for use in life sustaining, nuclear or other applications in which failure of the Products could reasonably be expected to result in personal injury, loss of life or catastrophic property damage.

4. PRE-RELEASE SOFTWARE AND FEEDBACK.

4.1. Pre-Release Software.

Pure may make available to End User a beta or pre-release version of the Software (“Pre-Release Software”). End User acknowledges that the Pre-Release Software i) is not at the level of performance or compatibility of final, generally available Software; (ii) may not operate correctly; (iii) may be modified prior to being made generally available; and (iv) is not to be used in a production environment. End User agrees to notify Pure of any bugs or problems in the Pre-Release Software.

4.2. Feedback.

End User may provide feedback to Pure regarding the use, operation, performance, and functionality of the Products and Pre-Release Software, including identifying potential errors and improvements (collectively, “Feedback”). End User hereby grants to Pure a perpetual, irrevocable, worldwide, sublicenseable and royalty-free right to use the Feedback in any manner; provided that Feedback is anonymized and will not include End User’s Confidential Information.

4.3. References.

For the sole purpose of indicating End User as a user of the Products, Pure may use End User’s name and logo, subject to End User’s then-current trademark usage guidelines, in Pure’s marketing materials or communications presented alongside and in a manner similar to other Pure customer names and logos.

5. WARRANTY AND DISCLAIMER.

5.1. Limited Warranty.

Subject to Section 5.2, Pure warrants that the hardware in the Products will perform in substantial accordance with the corresponding Product documentation for three years from the date of shipment by Pure and that the Software will perform in substantial accordance with the corresponding Product documentation for 90 days from the date of shipment by Pure. The additional benefits under Maintenance and Support extend beyond the limited warranty.

5.2. Limited Warranty Process.

End User may contact Pure via email at or phone at +1 (866) 244-7121 for warranty service. End User must obtain a return material authorization number from Pure and return the Product in secure packaging, freight prepaid, as instructed by Pure. Under the hardware warranty, Pure, at its option, either (i) will repair or replace any defective Product with a new or refurbished Product or components of equal or greater functionality as the returned Product, or (ii) will refund the purchase price paid to Pure for such Product, reduced on a straight-line basis over a three-year life. Replacement Products or components will continue to be warranted for the remainder of the applicable warranty term. Repair, replacement or refund is the sole and exclusive remedy for breach of this warranty. Under the Software warranty, Pure will provide End User access to bug fixes and emergency patches. This warranty is extended to the original End User only and is not transferable. This warranty does not cover defects or damages resulting from: (a) use of Products other than in a normal and customary manner in accordance with Pure’s documentation; (b) physical or electronic abuse or misuse, accident, or neglect; or (c) alterations or repairs made to Products that are not authorized by Pure in writing. Pure will use reasonable efforts to destroy (but have no liability for any loss or inadvertent disclosure of) data stored or remaining on a Product returned to Pure. Under this Agreement, all returned Products and components become the property of Pure.

5.3. No Warranty or Support for Pre-Release Software.

Pure provides Pre-Release Software for evaluation only on an “AS IS” basis (without warranty), for use at End User’s own risk. Maintenance and Support (as defined below) are not available for Pre-Release Software. Pure will, at its discretion, use reasonable efforts to resolve problems identified in Pre-Release Software.

5.4. Disclaimer.

EXCEPT FOR THE EXPRESS WARRANTY IN SECTION 5.1, PURE DISCLAIMS ALL OTHER WARRANTIES, EXPRESS, IMPLIED OR STATUTORY, INCLUDING ANY IMPLIED WARRANTIES OF MERCHANTIBILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE AND NON-INFRINGEMENT. PURE DOES NOT WARRANT AGAINST LOSS OR INACCURACY OF DATA OR THAT THE OPERATION OF THE PRODUCT WILL BE UNINTERRUPTED OR ERROR FREE. EXCEPT AS EXPRESSLY STATED IN SECTION 5.1, PURE PROVIDES THE PRODUCTS (INCLUDING ANY SOFTWARE) ON AN “AS IS” BASIS.

6. MAINTENANCE AND SUPPORT.

Pure or its designated support partners (“Support Partners”) will provide the generally available Product maintenance (“Maintenance”) and technical support (“Support”) services set forth in Exhibit A, during the term for which End User has purchased Maintenance and Support. Maintenance and Support are provided without any additional warranties, express or implied.

7. INDEMNIFICATION.

Pure will defend at its own expense any action against End User brought by a third party to the extent that the action is based upon a claim that the Product directly infringes any copyrights or U.S. patents or misappropriates any trade secrets, and Pure will pay those costs and damages finally awarded against End User in any such action that are specifically attributable to such claim or those costs and damages agreed to in a monetary settlement of such action. If End User’s use of the Product is, or in Pure’s opinion is likely to become, enjoined as a result of an infringement claim, Pure will, at its option and expense, either (i) procure the right to continue exercising the rights licensed herein; (ii) replace or modify the Product so that it becomes non-infringing and remains functionally equivalent; or (iii) if, despite its commercially reasonable efforts, Pure is unable to do either (i) or (ii), accept return of the Product, terminate the rights licensed herein, and pay to End User a prorated refund of money paid to Pure for the purchase of such Product, reduced on a straight-line basis over a three-year life. Notwithstanding the foregoing, Pure will have no obligation with respect to any infringement claim based upon (a) any use of the Product that is not in accordance with this Agreement or the corresponding Product documentation; (b) any use of the Product in combination with other products, equipment, software, or data not supplied by Pure if such infringement would not have arisen but for such combination; (c) the use of any release of the Software other than the current and immediately preceding Major Release (as defined below); or (d) any modification of the Product by any person other than Pure where such infringement would not have occurred absent such modification. This Section 7 states Pure’s entire liability, and End User’s sole and exclusive remedy, for infringement claims and actions. The foregoing obligations are conditioned on End User notifying Pure promptly in writing of such action, giving Pure sole control of the defense thereof and any related settlement negotiations, and cooperating and, at Pure’s reasonable request and expense, assisting in such defense.

8. LIMITATION OF LIABILITY.

OTHER THAN PURE’S INDEMNIFICATION OBLIGATIONS UNDER SECTION 7, TO THE MAXIMUM EXTENT PERMITTED BY LAW, PURE’S AGGREGATE LIABILITY UNDER OR RELATING TO THIS AGREEMENT SHALL NOT EXCEED THE AMOUNT PAID BY END USER FOR THE PRODUCTS THAT GAVE RISE TO SUCH CLAIM. IN NO EVENT WILL PURE BE LIABLE FOR ANY SPECIAL, CONSEQUENTIAL, EXEMPLARY, INCIDENTAL, OR INDIRECT DAMAGES, INCLUDING LOST PROFITS, IN CONNECTION WITH THE USE OF THE PRODUCT OR IN CONNECTION WITH ANY OTHER CLAIM ARISING FROM THIS AGREEMENT, EVEN IF PURE HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.

9. CONFIDENTIALITY.

“Confidential Information” means any non-public information relating to, or derived from, the Products, including Feedback, technical features and benchmark or performance results. End User shall not use or disclose any Confidential Information except as expressly authorized in this Agreement and shall protect the Confidential Information using the same degree of care that it uses with respect to its own confidential information, but in no event with safeguards less than a reasonably prudent business would exercise under similar circumstances.

10. PRODUCT DIAGNOSTIC REPORTING.

End User acknowledges that the Product will store certain diagnostic information about the routine operations of the Product (including, without limitation, its performance, data reduction ratios, configuration data, and hardware faults) and will periodically transmit this diagnostic information to Pure. No actual user data of End User is accessed, transmitted or provided to Pure as part of this process, and no interruption of service is required to gather such detailed diagnostics. End User will control Pure’s physical access to the Product. End User agrees that Pure has a perpetual, irrevocable, sublicenseable, and royalty-free right to use this diagnostic information in any manner (provided that information does not identify End User as the source of such information). The collection and transmission of such information to Pure is necessary to facilitate the provision of Maintenance and Support.

11. GENERAL PROVISIONS.

11.1. Governing Law and Venue.

This Agreement will be governed and interpreted by and under the laws of the State of California, without giving effect to any conflicts of laws principles. Each party hereby expressly consents to the personal jurisdiction and venue in the state and federal courts in Santa Clara County, California for any lawsuit filed there arising from or related to this Agreement. The U.N. Convention on Contracts for the International Sale of Goods shall not apply to this Agreement.

11.2. Notices.

Except as specifically stated, all notices or other communications required or permitted under this Agreement shall be in writing and shall be delivered by personal delivery, certified overnight delivery such as Federal Express, or registered mail (return receipt requested) and shall be deemed given upon personal delivery or upon confirmation of receipt.

11.3. Severability; Waiver.

If any provision of this Agreement is, for any reason, held to be invalid or unenforceable, the other provisions of this Agreement will remain enforceable and the invalid or unenforceable provision will be deemed modified so that it is valid and enforceable to the maximum extent permitted by law. Any waiver or failure to enforce any provision of this Agreement on one occasion will not be deemed a waiver of any other provision or of such provision on any other occasion.

11.4. Export.

The Product, its Software and related technology are subject to U.S. export control laws and may be subject to export or import regulations in other countries. End User agrees not to export, reexport, or transfer, directly or indirectly, any technical data acquired from Pure, or any products incorporating such data, in violation of applicable export laws or regulations.

11.5. No Assignment.

This Agreement, and End User’s rights and obligations herein, may not be assigned by End User without Pure’s prior written consent, which consent will not be unreasonably withheld, and any attempted assignment in violation of the foregoing will be null and void.

11.6. U.S. Government End Users.

The Product, its software and related documentation, are “commercial items” as defined in 48 CFR 2.101 and their use is subject to the policies set forth in 48 CFR 12.211, 48 CFR 12.212 and 48 CFR 227.7202, as applicable.

11.7. Force Majeure.

Neither party shall be liable hereunder by reason of any failure or delay in the performance of its obligations under this Agreement on account of strikes, shortages, riots, insurrection, fires, flood, storm, explosions, acts of God, war, governmental action, labor conditions, earthquakes, material shortages or any other cause that is beyond the reasonable control of the party.

11.8. Entire Agreement; Modification.

This Agreement constitutes the entire agreement between the End User and Pure and supersedes in its entirety any and all oral or written agreements previously existing between End User and Pure with respect to the subject matter hereof. Any varying or additional terms relating to the subject matter hereof in any purchase order or other written document will be of no effect. This Agreement may only be amended in a writing signed by duly authorized representatives of the parties.

Exhibit A. Maintenance and Support Terms and Conditions

1. SCOPE OF COVERAGE

During the term for which End User has paid for Maintenance and Support, Pure or its Support Partners will provide Product Maintenance and Support as described herein. An “Error” means any reproducible defect in the Product that causes it not to perform substantially in accordance with the corresponding Product documentation.

2. SERVICES.

Subject to the terms of this Agreement, Pure or its Support Partners will provide the following services:

2.1 Hardware Maintenance.

Pure or its Support Partners will use commercially reasonable efforts to correct any Errors in the Product’s hardware. Hardware Maintenance may include on-site installation of field replaceable units (FRUs) by certified personnel or providing End User with customer replaceable units (CRUs) for End User’s own installation. Pure reserves the right to repair or replace the entire Product or a component thereof with a new or refurbished part of equal or greater functionality. End User will be allowed, for an additional charge, to retain drives installed in the Products that are required to be returned to Pure.

2.2 Software Support.

Pure or its Support Partners will use commercially reasonable efforts to correct any Errors in the Software. Software Support may include bug fixes, emergency patches, workarounds and new software releases. In order to receive Support for a given Major Release, the Product must be updated to the most recent or two preceding Minor Releases applicable to that Major Release. As used herein, a “Major Release” is any version of the Software that is denoted by a change in the version number to the left of the first decimal (i.e., #.1.2). A “Minor Release” is any version of the Software denoted by a change in the version number to the right of the first decimal and left of the second decimal (i.e., 1.#.2). Major Releases and Minor Releases are collectively referred to as “Releases.” Pure will provide Support for the current Major Release and for the immediately preceding Major Release, in each case with its most recent and two preceding Minor Releases, in accordance with the corresponding Support documentation, unless Pure elects to support additional Releases. End User will only have access to generally available Releases compatible with such Product.

3. SERVICE LEVELS.

Pure or its Support Partners will provide web portal, email and telephone support to up to five designated contacts at End User. Maintenance and Support (including service levels, severity levels and support options) are further described in the corresponding Pure Storage Customer Support Guide. If the location of the Products has changed and Pure has not received and acknowledged such change in writing, Pure will use commercially reasonable efforts to meet the applicable service levels if the Product is located in a current service area. End User will cooperate with Pure to the extent reasonably necessary to facilitate the provision of Maintenance and Support.

4. SERVICE LIMITATIONS.

Maintenance and Support does not include, nor will Pure be obligated to provide, services required as a result of: (i) any modification, reconfiguration or maintenance of the Product not performed in accordance with Pure’s instructions; (ii) any use of the Product in a configuration or on a system that does not meet Pure’s minimum standards for such Product, as set forth in the applicable documentation; or (iii) any errors or defects in third party software or hardware.

5. FOREVER FLASH™.

Where Pure offers Pure-branded Maintenance and Support and as long as End User has maintained eligible Maintenance and Support since the initial Product purchase (and for not less than three years), Pure offers the following program:

5.1 Free Every Three.

If End User purchases three additional years of eligible Maintenance and Support for the entire Product, Pure will, at the beginning of the three year renewal, upgrade the controllers for the applicable Product to the then-current controllers that most closely match, in Pure’s reasonable discretion, such Product’s existing controllers. As a condition to the controller upgrades, End User must return the existing controllers to Pure and must take receipt of the upgraded controllers within 90 days from notice (via electronic means to End User’s designated contact) that a controller upgrade is available, and return the existing controllers to Pure within 45 days from receipt of the upgraded controllers. End User may receive upgraded controllers not more than once every three years with respect to a given Product; and

5.2 Flat & Fair.

Pure will not increase the renewal rate offered to an authorized Pure reseller for eligible Maintenance and Support above the rate for the initial Maintenance and Support for the applicable Product purchased by End User (after applying the same Maintenance and Support term and applicable pre-renewal in-rack configuration for the applicable Product), provided that such Maintenance and Support remains generally available for the applicable Product at the time of renewal. Rates are in U.S. dollars. Notwithstanding the foregoing, Pure may upon notice increase the renewal rate by the lesser of (i) price inflation as measured by the Producer Price Index over the period since the last renewal, or (ii) five percent (5%). This Section 5.2 imposes no obligation to renew Maintenance and Support.

5.3 Program Modifications.

Pure may modify the program under Section 5 from time to time. If Pure makes substantive modifications that have a negative impact on End User, an existing Product will be governed by the terms in effect immediately prior to such modification until the later of: (i) the date the End User next receives upgraded controllers under Section 5.1, or (ii) the expiration of the original or last renewal Maintenance and Support term, with respect to the applicable Product, after which the modified program terms will apply to such Product. Pure may terminate the program under Section 5 with respect to future Product purchases.

Author

Pure Storage Inc.