Evergreen//One Terms Of Use

These Evergreen//One Terms of Use (“Terms”), formerly referred to as the Pure as-a-Service Terms of Use or Subscription Services Addendum, apply to the provision of a subscription service whereby Pure-owned products and services are provided to the End User on a consumption basis pursuant to these Terms (collectively “Evergreen//One”). For the sake of clarity, these terms apply to any subscriptions to “Pure as-a-Service” or “Evergreen Storage Service” or “ES2”.

1.  EVERGREEN//ONE PRODUCT GUIDE. The Evergreen//One Product Guide describes the subscription types, service duration, and service level obligations for the Evergreen//One subscription described in the applicable quote.

2.  CLOUD BLOCK STORE OR SUBSCRIPTIONS ON PUBLIC CLOUD. Terms governing usage or purchase of Cloud Block Store or an Evergreen//One subscription, on or from a public cloud, are set forth in the Public Cloud Terms. These Cloud Terms apply only if purchasing a public cloud subscription or using any portion of the Evergreen//One subscription in a public cloud.  End Users may request that their Cloud Block Store subscriptions be transitioned to a Block //Performance Evergreen//One subscription delivered with Service Infrastructure in the End User’s data centre, provided that the minimum Reserve Commitment being moved is 50 TiB.

3.  ACCESS AND USE. Subject to these Terms and the applicable quote, Pure grants to End User, and any third party that End User authorizes to perform services involving Evergreen//One solely for End User’s benefit, a nontransferable, nonexclusive, revocable right to: (a) access and use Evergreen//One, and (b) download, install, and use, in executable object code format only, any Pure plug-in or software Pure deems necessary to for End User to utilize Evergreen//One.

4.  QUOTES. Quotes may include, but not be limited to the following details: (a) the applicable Service Term; (b) Reserve Commitment and Install Locations; and (c) any other use limitations associated with the Service Infrastructure.  Any Pure-approved modifications to these Terms shall be set forth in writing and agreed upon between either Pure and End User or the applicable reseller.

5.  LOVE YOUR EVERGREEN//ONE SUBSCRIPTION GUARANTEE. Except for Evergreen//One subscriptions purchased through a Public Cloud Provider, the first Evergreen//One subscription purchased by End User comes with a 30-day “money back” guarantee, under which End User may be eligible to receive a full refund for the applicable Evergreen//One subscription, provided (a) End User must have performed a good-faith installation of the hardware and enabled the Pure1® phone home feature, and (b) End User must have notified Pure within 30 days of receipt of the hardware to elect for a refund, and must (i) cease use of Evergreen//One, and (ii) if applicable, return the Service Infrastructure within 10 days of such notice, in like new condition (other than normal wear and tear). Pure will pay the shipping costs for returns in accordance with Pure’s reasonable instructions. Refunds will be processed within 30 days following the later of (1) End User’s final use of Evergreen//One; or (2) Pure’s receipt of the returned Service Infrastructure. Pure reserves the right to charge reasonable refurbishing fees for damage to the Service Infrastructure while under End User’s control. If End User has conducted an evaluation of Evergreen//One, then End User has had an opportunity to evaluate Evergreen//One and is not eligible for this guarantee.

6.   SERVICE TERM.

6.1  Subscription Start Date. Unless otherwise set forth in the quote, the Service Term for all subscriptions commence as follows: (a) twenty-eight (28) days following Pure’s acceptance of the order, as identified in Pure1; or (b) upon Pure’s acceptance of the order for any renewal or modification of a subscription, as identified in Pure1.

6.2  Renewal. Subscriptions automatically renew, and End User is invoiced for a 12-month renewal, unless End User provides Pure and its authorized reseller written notice of its intent not to renew the subscription at least 60 days prior to the expiration of the then-current Service Term.

6.3  Post-Service Term Usage. Provided all Workloads have been removed from all Service Infrastructure, following the Post Term Grace Period, End User shall pay a daily rate for each day that the Service Infrastructure is not returned following the expiration or termination of an applicable Service Term equivalent to 100% utilization of the services (e.g., 100% utilization of all Reserve and On-Demand capacity deployed) at the On-Demand Rate. Notwithstanding anything to the contrary herein, End User is not entitled to the Post Term Grace Period and  shall pay a daily rate equivalent to 100% utilization of the services (e.g., 100% utilization of all Reserve and On-Demand capacity deployed) at the On-Demand Rate for any Service Infrastructure that remains in End User’s possession following the expiration or termination, if any Workloads remain on the Service Infrastructure.

6.4   Expiration. These Terms, and End User’s rights to use Evergreen//One terminate upon expiration of the applicable Service Term.

6.5  Termination for Convenience. End User may terminate a subscription for any reason and at any time, provided that End User: (a) provides Pure 60 days’ prior written notice and (b) pays in full all Reserve Commitments outstanding from the date of termination through the end of the Service Term.

6.6  Termination for Cause. These Terms, and End User’s rights to use Evergreen//One, terminate immediately if: (a) End User fails to make timely payments for the subscription to Pure or its authorized reseller; (b) voluntary or involuntary proceedings by or against End User are instituted in bankruptcy under any insolvency law, or a receiver or custodian is appointed for the End User, or proceedings are instituted by or against the End User for corporate reorganization or the dissolution of the End User, or if End User makes an assignment for the benefit of creditors; or (c) a party materially breaches any provision of these Terms or the Agreement and fails to cure such breach within 30 days from the date of such party’s written notice to the other party. End User is only obligated to pay for Evergreen//One utilization through the date of termination if the subscription is terminated for cause pursuant to Pure’s uncured material breach as set forth in Section 6.6(c).

6.7  Effect of Termination. Upon any termination or expiration of a subscription, End User shall promptly: (a) discontinue use of Evergreen//One; (b) pay all amounts due for Evergreen//One for the duration of the Service Term, unless terminated for cause pursuant to Section 6.6(c); and (c) return all Service Infrastructure to Pure, otherwise Pure reserves the right to enter End User’s premises, or the premises where the Service Infrastructure is located, to access and retrieve that Service Infrastructure. Notwithstanding anything to the contrary herein, any amounts prepaid through the date of termination are final and non-refundable.

6.8  U.S. Federal and State Government End Users. US Government End Users may terminate a subscription, upon no less than 30 day’s prior written notice to Pure if the US Government End User terminates or suspends performance of its contract or applicable task order with the Pure authorized reseller for failing or refusing to fund or to secure appropriations to fulfill or fund its obligations under its contract with the Pure authorized reseller.  Upon expiration or termination of a subscription, the US Government End User shall: (i) immediately discontinue use of Evergreen//One; and (ii) promptly return the applicable Service Infrastructure to Pure. Pure reserves the right to enter the US Government End User’s premises, escorted by the US Government End User’s personnel (as applicable), to access and retrieve the Service Infrastructure. Notwithstanding anything to the contrary, any amounts paid to Pure for Evergreen//One for periods prior to the termination date are final and non-refundable if the subscription is terminated pursuant to this Section.

7.   INCREASES TO RESERVE COMMITMENTS.  Reserve Commitments may be increased by the End User at any time during the applicable Service Term.  However, End User acknowledges and agrees that Reserve Commitments shall not be reduced or canceled at any time during a Service Term.

8.   SERVICE INFRASTRUCTURE.

8.1  Management. Sizing of Service Infrastructure is based on the Workload and subject to Pure’s reasonable discretion. Pure may expand, modify, substitute, replace, or remove any component of Service Infrastructure deployed to provide Evergreen//One to meet the Workload based on data reduction efficiencies Pure sees with similar end users across its install base. Pure ships Service Infrastructure following confirmation of the datacenter’s readiness, as determined by completion of Pure’s pre-site survey. All shipments are at Pure’s sole cost and expense. The Service Infrastructure must not be moved without Pure’s written consent, which shall not be unreasonably withheld. Any move performed without Pure’s consent shall incur additional charges. Notwithstanding anything to the contrary in these Terms, End User is responsible for ensuring Pure’s access to the datacenter for all services Pure reasonably requires to perform on the Service Infrastructure in order to continue providing Evergreen//One.

8.2  End User Responsibilities. End User is responsible for any and all damage or loss, except for normal wear and tear, to any Service Infrastructure, from the moment of receipt by End User until returned to Pure. End User shall promptly reimburse Pure for any and all costs to replace or repair any Service Infrastructure that is damaged or lost.

9.   WORKLOAD MANAGEMENT. End User is responsible for balancing its usage of multiple Systems for a given site (“Site”) subscription. Therefore, End User must balance usage across all Systems at a given Site prior to Pure providing any additional capacity. For clarity, Pure may not ship additional capacity to any Site unless: (a) End User has maximized usage across all Systems within the Site subscription; and (b) consumption of Evergreen//One has exceeded 80% of Effective Usable capacity of the Service Infrastructure of all Systems at any given Site. Notwithstanding anything to the contrary herein, (a) shipment of additional Service Infrastructure is subject to the payment of all current and outstanding invoices for Evergreen//One; and (b) Pure may require End User increase the Reserve Commitment if the End User’s daily usage (as measured by Pure1) exceeds 1.3x the then-current Reserve Commitment.

10.  SUPPORT. Evergreen//One subscriptions are delivered with 365 X 24 x 7 support, with 4-hour response times, as described in Pure’s Customer Support Guide.

11.  FEE STRUCTURE AND INVOICING CADENCE.

11.1  Reserve Commitment Charges. Reserve Commitments are a fixed charge, billed in advance per Site at the corresponding Reserve Rate on either a monthly, quarterly, or annual basis.

11.2  On-Demand Charges. On-Demand usage is a variable charge, billed in arrears on a calendar quarterly basis unless otherwise agreed in writing, based on End User’s average daily Effective Usable consumption of the subscription in excess of the Reserve Commitment per Site, at the corresponding On-Demand Rate.

11.3  Pre-Reduced or Encrypted (PRE) Data. For SDR subscriptions, End User does not incur additional fees for PRE Data, provided the Site data reduction ratio is a minimum of 2:1 or higher as reported in Pure1, as further described in this Section 11.3. End User is required to upgrade, at an additional charge, the SDR subscription to a PRE subscription if the Site data reduction ratio falls, and remains below 2:1 for a period of 6 months or longer, as reported in Pure1 (the “PRE-Grace Period”) and in Pure’s reasonable assessment, additional Service Infrastructure is required to allow End User to consume Evergreen//One. PRE subscription tiers are priced higher than their SDR counterparts, with the final price determined between End User and Pure or Pure’s authorized reseller, as applicable. For the sake of clarity, and to avoid confusion, End User acknowledges and agrees that Pure is under no obligation to ship additional capacity or allow any expansion of the Service Infrastructure or subscription, if the Site data reduction ratio is below 2:1 beyond the PRE-Grace Period, as reported in Pure1, unless End User upgrades the SDR subscription to the applicable PRE subscription.

11.4  Pure1 Connectivity Charges. End User will be charged a fee equivalent to 100% of all Effective Usable capacity deployed at the On-Demand Rate, invoiced in arrears on a calendar quarterly or monthly basis for failure to connect Pure1, as described in Section 12 of these Terms.

12.  TRANSMISSION OF PURE1 DATA REQUIRED. Pure1 is an integral component of Pure’s delivery of Evergreen//One that provides Pure1 Data. End User acknowledges and agrees that the rates charged for all subscriptions, and for End User to comply with these Terms, Pure must receive Pure1 Data. Therefore, to the extent within End User’s reasonable control, End User shall ensure that Pure1 Data transmission to Pure is not disabled. Pure reserves the right, upon prior notice, to exercise any of the following remedies if Pure1 is disabled in excess of 4 consecutive days in any 30-day period during the Service Term: (a) demand payment of the Pure1 Connectivity Charge to Pure or Pure’s authorized reseller for the period of time Pure1 is disabled; or (b) upon 15 days’ prior written notice, suspend or terminate the subscription.

13.  TITLE. Pure and its suppliers exclusively retain all right, title, and interest in all Service Infrastructure, the embedded software, and all intellectual property rights therein, including without limitation all patent, trademark, trade secret, know- how, trade name and copyright, whether registered or not registered. Pure and its suppliers reserve all rights not expressly granted herein, and no licence or other implied rights of any kind are granted or conveyed except for the limited right to access and use Evergreen//One, as described herein. Evergreen//One remains Pure’s sole and exclusive personal property, and End User shall not encumber, sell, or otherwise dispose of the Evergreen//One without having received prior written authorization from Pure.

14.  DARK SITES AND NON-RETURNABLE FAULTY DRIVES. 

14.1  Dark Sites. End User may be subject to Government or corporate security policies (collectively, “Dark Site Security Policies”) such that connectivity to Pure1 is not possible. End User may purchase the PAAS-DARK-SITEMETERING SKU, such that in lieu of being connected to Pure1, End User personnel shall provide telemetry logs (the “Logs”) on a monthly basis identifying the following information regarding End User’s daily usage: (a) average collected totals for daily amount consumed; (b) effective data reduction ratio for each day, (c) System utilization information to assess if there is need for more capacity and (d) any other information reasonably requested by Pure. If End User fails to provide the Logs, then Pure may exercise any of the following options: (i) demand payment equivalent to 100% utilization of the subscription by End User for any and all periods that Pure1 is not enabled in excess of four days during any 30-day period; or (ii) suspension or termination of the subscription, provided that Pure notify  End User prior to any such suspension or termination.

14.2  Non-Returnable Faulty Drives. End User may be unable to return faulty SSDs. Therefore, End User may purchase the PAAS-FAULTY-DRV-RETN SKU, permitting the End User to retain any faulty SSDs that Pure replaces. End User acknowledges and agrees that if End User fails to remove any information or data stored on any returned Service Infrastructure: (a) Pure is not liable to End User; and (b) Pure has the right to destroy that information or data.

15.  DEFINITIONS. 

15.1  Downtime Credit: credit earned on a per System basis, applied to the subscription invoice for the affected System.

15.2  Effective Usable: measure of data that may be written by a host to an Evergreen//One subscription Site, and any incremental unique snapshot data thereof.

15.3  Effective Used: measure of data written by a host to an Evergreen//One subscription volume, and any incremental unique snapshot data thereof.

15.4  Environment: all Systems, at all Sites, deployed to provide a subscription.

15.5  Evergreen//One Subscription Maintenance: any update, expansion, removal, substitution, or other changes to the Service Infrastructure that do not arise as a direct result of any incident or outage of Evergreen One.

15.6  Install Location: a location where a System is deployed to provide the subscription.

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

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

15.9  On-Demand Used: the total amount of the subscription consumed above the Reserve Commitment.

15.10  Pre-Reduced or Encrypted Data (“PRE Data”): data stored or written to any non- \\UFFO or \\Block Capacity Evergreen One subscription that have been pre-encrypted, pre-deduped, or pre-compressed upfront, or any Workloads, the majority of which, result in data reduction of less than 2:1, as determined by Pure1.

15.11  Post Term Grace Period: a 30-day period granted to an End User who has removed all Workloads from Service Infrastructure at the expiration of the applicable Service Term.

15.12  Pure1 Data:  telemetry data to Pure and subscription management tools in Pure1 for End User.

15.13  Pure System at Fault: the outage was caused by Pure, in Pure’s reasonable opinion.

15.14  Reserve Commitment: As applied to Evergreen//One, the minimum usage commitment of Effective Usable capacity of the applicable Pure subscription, set and managed at the Site level.

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

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

15.17  SDR: standard data reduction service tiers of \\Block Performance, \\Premium, or \\Ultra.

15.18  Service Infrastructure: Pure-owned hardware components utilized by Pure, and installed at the Install Locations identified in the applicable quote, to deliver Evergreen//One.

15.19  Site: all Systems deployed at a single Install Location, or a public cloud, serving as an independent endpoint for capacity management and monitoring. There may be multiple Sites at the same Install Location.

15.20  Total Minutes of the Month: the aggregate minutes across all Systems within the Environment, measured on a monthly basis.

15.21  Unplanned Downtime: the period of time when use or access to the subscription is not available to the host or application, for reasons neither planned nor anticipated by Pure.

15.22  U.S. Government End User(s): end Users that are part of a United States federal, state, or municipal government or agency.

15.23  Workload(s): end User’s identified workload requirements, as reported by End User to Pure.

16.  General Terms. These Terms supplement the Pure End User Agreement (or other written agreement covering the same subject matter executed by Pure) for the applicable subscription purchased by End User. Capitalized terms not specifically defined in these Terms have the same meaning as in the End User Agreement. Pure reserves the right to update these Terms from time to time, as noted by the “Last Updated” date below.

 

Last Updated August 17, 2022

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