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SERVICE DESCRIPTION

NEXCESS PRIVATE CLOUD ON NUTANIX

1. Definitions. In this Service Description:

  • “Data Reduction” means the compression, deduplication and erasure coding functions performed by the platform to reduce the physical storage consumed by Customer’s data.
  • “Environment” means the virtualized compute, storage and networking resources provisioned by Nexcess for Customer under the Sales Order.
  • “Host” means a physical server forming part of the cluster on which the Environment runs.
  • “Live Migration” means the movement of a running virtual machine from one Host to another without shutting that virtual machine down.
  • “Managed Virtual Machine” means a virtual machine identified in the Sales Order as managed by Nexcess. A virtual machine that is not a Managed Virtual Machine is Customer’s responsibility under Section 3.
  • “Management Interface” means the Nutanix management interface, and the scope within it that Nexcess grants to Customer.
  • “Nexcess Portal” means the customer portal operated by Nexcess for account administration and support.
  • “Recovery Point” means a point-in-time copy of a virtual machine taken on the platform and retained on the same platform as that virtual machine.
  • “Sales Order” means the sales order or other ordering document under which Customer purchases the Private Cloud Service, together with any rate card, schedule or statement of work attached to or referenced by it.
  • “Thin Provisioning” means the allocation of storage to a virtual machine on the basis that physical storage capacity is consumed only as data is written.

SERVICE SCOPE AND FEATURES

2. Description. Capitalized terms used in this Section have the meanings given in Section 1. In conjunction with Customer’s purchase of Nexcess Services, Customer may also purchase the Nexcess Private Cloud on Nutanix service (the “Private Cloud Service”). The Private Cloud Service provides Customer with managed virtualized compute, storage and networking resources, operated by Nexcess, within an environment provisioned for Customer and made available through the Nexcess Portal and the Management Interface. The Private Cloud Service is delivered by Nexcess using Nutanix Cloud Infrastructure and the Nutanix AHV hypervisor, which Nexcess licenses from Nutanix, Inc. (“Nutanix”) as a service provider. 

Customer contracts solely with Nexcess and has no contractual relationship with Nutanix in respect of the Private Cloud Service. The Private Cloud Service includes the following features, in each case as further limited by this Service Description:

  1. Managed Platform. Nexcess owns or leases, and exclusively operates and maintains, the physical infrastructure, the Hosts and the cluster those Hosts form, the storage layer, and the platform management and control planes. Customer has no operational responsibility for, and under Section 5 no access to, these layers.
  2. Virtual Machines. Customer may create, resize, clone, power on and off, access the console of, and delete virtual machines within the resources set out in the Sales Order, and may create templates and deploy virtual machines from them.
  3. Recovery Points. Customer may take a Recovery Point of a virtual machine within its Environment, and may restore that virtual machine from a Recovery Point, either in place or as a new virtual machine. Recovery Points are a short-term rollback mechanism and are not a backup, as further set out in Section 9.
  4. Operating Systems. Nexcess deploys the operating system from a Nexcess provided template, applies operating system patches, monitors the operating system, and responds to alerts generated at that layer, in each case for Managed Virtual Machines only.
  5. Networking. Nexcess provides, configures and manages the networking of the Environment. Where provided as part of Customer’s Environment, this includes virtual private clouds and subnets, public and private IP address provisioning, firewall provisioning and rule configuration, load balancing, network segmentation and security policy, connectivity troubleshooting, bandwidth monitoring, and DNS where Customer uses Nexcess name servers. Nexcess is responsible for each of these functions. Customer is responsible for a networking function only where Nexcess has expressly granted Customer administrative access to it, and then only in respect of Customer’s own use of that access. Access is otherwise as set out in Section 5.
  6. Storage. Nexcess configures and manages the storage containers and storage policy from which the Environment draws, including encryption of data at rest. The capacity available to Customer, and the limits of what Nexcess represents about it, are set out in Section 7.
  7. Platform Maintenance. Nexcess applies patches and version upgrades to the platform software, including the Nutanix operating system, the hypervisor and the Management Interface, in accordance with Section 6.
  8. Monitoring. Nexcess monitors the platform and infrastructure layer, including the health and capacity of the Hosts, the cluster and the storage layer, and responds to alerts generated at that layer. Nexcess does not monitor Customer’s applications or software Customer installs.
  9. Support. Nexcess provides technical support in respect of the Private Cloud Service, and the service levels set out in Section 8, through the support channels identified in the Agreement.
  10. Migration. Nexcess migrates the workloads identified in the Sales Order onto the Private Cloud Service at the commencement of the Private Cloud Service, as further set out in Section 12.

CUSTOMER RESPONSIBILITIES

3. Customer Responsibilities. Customer is responsible for: (i) all software, applications, data, configuration and application-layer security within its virtual machines; (ii) all use of the Management Interface within its scope and all changes made there by its personnel, including any change that impairs the availability or performance of the Environment; (iii) any operating system, image, ISO, template, virtual machine or software not provided by Nexcess, and any virtual machine that is not a Managed Virtual Machine, including its security, patching, monitoring and fitness for purpose; (iv) determining that the resources ordered are sufficient for its workloads, monitoring its own consumption, and requesting additional resources before exhausting them; (v) requesting any disaster recovery operation from Nexcess under Section 11 and performing application-level validation following it; (vi) maintaining current contact information for personnel who receive notices and act on alerts, and reviewing and acting upon such notices and alerts; and (vii) ensuring that only authorized personnel have access to the Nexcess Portal, the Management Interface and any applicable application programming interface.

TECHNICAL AND OPERATIONAL REQUIREMENTS

4. Varieties. The Private Cloud Service is offered in two varieties, as specified in the Sales Order. Charges for each variety are set out in Section 16.

  1. Dedicated. A Nutanix cluster comprising Hosts allocated exclusively to Customer, with a minimum of three (3) Hosts. The raw physical capacity of the Hosts is not the capacity available to Customer. Available capacity is lower than raw capacity for reasons including, but not limited to, the resources consumed by the platform itself, the replication of storage across the cluster, and the capacity Nexcess retains in order to maintain availability if a Host is lost.
  2. Multi-Tenant. An Environment provisioned on infrastructure that Nexcess also uses to serve other customers, and separated from the environments of those customers by software configuration rather than by physically separate hardware. Nexcess does not represent that the Multi-Tenant variety provides physical separation of compute or storage from other customers. Virtual CPU resources purchased by Customer are an allocation entitlement and not a reservation of dedicated physical capacity. Customer requiring physical separation, reserved capacity or isolation from the workloads of other customers must purchase the Dedicated variety.

    The Private Cloud Service is provided only with respect to the resources, Hosts, virtual machines and options identified in the Sales Order. Provisioning is performed by Nexcess personnel and is not automated. Any provisioning, onboarding or change order interval communicated by Nexcess is a target only and is not a commitment under Section 8. Customer may request additional resources at any time, and Nexcess may decline such a request where capacity is not available or where the request cannot be accommodated on the existing infrastructure.

5. Access. Customer’s access is limited to the Nexcess Portal and the scope Nexcess grants Customer within the Management Interface, in which Customer may administer its virtual machines and their Recovery Points and, to the extent Nexcess enables it, its own users. All other functions of the platform are administered exclusively by Nexcess and are, at Nexcess’ election, either not visible to Customer or visible on a read-only basis, including storage containers and storage policy, virtual networking, virtual private clouds and subnets, resource quotas and ceilings, roles, authorization policies and identity integration, and data protection and disaster recovery. Customer shall not seek or attempt to obtain access to the per-cluster management interface, the provider control plane, the Hosts, the hypervisor command line, the storage layer, the physical infrastructure, or the environment of any other customer. Any attempt by Customer to obtain access contrary to this Section is a material breach of the Agreement. Nexcess may suspend Customer’s access to the Private Cloud Service immediately on becoming aware of such an attempt, without prejudice to any right of termination available to Nexcess under the Agreement. The functions available to Customer within the Management Interface are determined by Nexcess and may change as the platform, and Nexcess’ configuration of it, develop, provided that Nexcess does not thereby materially reduce the functionality of the Private Cloud Service during the then-current term.

6. Maintenance. Nexcess performs maintenance and version upgrades of the platform, and provides advance notice of planned maintenance through the notification channels identified in the Agreement. Maintenance requiring a change to the Environment is scheduled by agreement, subject to the availability of the Nexcess teams involved. Platform upgrades are performed one Host at a time, and virtual machines are moved off each Host by Live Migration before that Host is taken out of service. Certain configurations cannot be moved by Live Migration, including virtual machines using device passthrough and virtual machines that Customer or Nexcess has pinned to a specific Host; such virtual machines are shut down and restarted following the upgrade. Nexcess may perform emergency maintenance without advance notice where required to preserve the security, integrity or availability of the platform, and will notify Customer as soon as reasonably practicable.

7. Storage. All storage provided with the Private Cloud Service, whether in the Dedicated or the Multi-Tenant variety, is provided as part of the Environment and there is no separate storage service. Storage is allocated by Thin Provisioning, and accordingly provisioned capacity is not reserved capacity. Storage is replicated across the cluster for resilience and carries platform overhead, and in the Dedicated variety the considerations described in Section 4(a) also apply. For those reasons the capacity available to Customer is materially less than the raw capacity of the underlying hardware. Nexcess does not guarantee any particular amount of available capacity, which depends on factors including, but not limited to, the configuration of the Environment and how Customer provisions and consumes storage. The platform performs Data Reduction, the benefit of which depends entirely on the nature of Customer’s data. Nexcess makes no representation or commitment as to any Data Reduction ratio, or as to effective or usable capacity beyond the capacity stated in the Sales Order. All storage is encrypted at rest, applied at cluster level using the mechanism made available by the platform. Nexcess does not offer per-virtual-machine, per-customer or Customer-held encryption key separation for the Private Cloud Service.

SERVICE LEVELS AND SUPPORT

8. Service Levels. This Section states the only service level commitments applicable to the Private Cloud Service, and applies in place of, and not in addition to, any service level commitment stated elsewhere in the Agreement or published by Nexcess, including any service level agreement published on a Nexcess or Liquid Web website. Notwithstanding the foregoing, the following support response commitments apply under this Service Description.  Nexcess will provide an initial response to a support request received through a Nexcess support channel within sixty (60) minutes, and within thirty (30) minutes where Customer reports that the platform or the Environment is unavailable. While such a report remains open, Nexcess will provide a status update not less than every sixty (60) minutes. These commitments relate to initial response and status updates only. Nexcess makes no commitment as to time to resolve, and internal escalation, pickup and resolution intervals operated between Nexcess support tiers are internal measures and are not commitments to Customer. Nexcess determines the severity and priority at which a request is handled.

SERVICE-SPECIFIC TERMS AND RESTRICTIONS

9. Service Limitations. The following are outside the scope of the Private Cloud Service: management, patching or monitoring of the guest operating system of any virtual machine that is not a Managed Virtual Machine; creation or modification by Customer of virtual networks, virtual private clouds, subnets, storage containers or storage policy; Customer-initiated disaster recovery failover, failback or testing; development, coding, database administration, query optimization, application tuning and other work at the application layer; custom software installation and configuration, custom server builds, and support of third-party software; custom network design, including perimeter network architectures that separate public-facing systems from internal systems (commonly called a DMZ) and complex virtual private network designs; support of Customer-owned or colocated hardware; the content of any Customer-supplied image, ISO or template, Nexcess assisting with upload only; long-term retention of, or reliance upon, Recovery Points, which are a short-term rollback mechanism and are not a backup, an off-platform copy or an archival copy; security monitoring, threat detection, investigation, incident response, digital forensics, security operations center services, managed detection and response, breach determination or notification, and compliance certification or attestation of any kind; monitoring of, or response to, alerts generated by software Customer installs; and any resource, virtual machine, Host or option not identified in the Sales Order. Where Nexcess elects to assist Customer with a matter outside this scope, such assistance is provided on a commercially reasonable efforts basis, does not expand the scope of the Private Cloud Service, creates no obligation to provide comparable assistance again, and is chargeable under Section 16.

10. Licensing. Platform licensing required to deliver the Private Cloud Service, including the hypervisor, is provided by Nexcess and included in the Private Cloud Service. There is no customer-supplied hypervisor license path and no unmanaged variety of the Private Cloud Service. Operating system and database licensing, including Windows Server and SQL Server, is either supplied by Nexcess or, where expressly agreed in the Sales Order, supplied by Customer. Where Customer supplies its own license, Customer must provide evidence of it to Nexcess before the Environment is built, must hold all rights necessary to use that license in a hosted environment operated by Nexcess, and remains solely responsible for compliance, reporting, audit exposure and any resulting cost. Nexcess may decline to accept, or may withdraw acceptance of, Customer-supplied licensing where the applicable licensor program does not permit its use in a hosted environment.

11. Backup and Disaster Recovery. Backup and disaster recovery are not included in the Private Cloud Service. Where Customer purchases the Nexcess Disaster Recovery service, that service is governed by the Nexcess Disaster Recovery Service Supplement, together with the applicable Sales Order, and not by this Service Description. Where Customer purchases a Nexcess backup service, that service is likewise governed by the service supplement applicable to it and the applicable Sales Order. Customer acknowledges that, within the Private Cloud Service, the Management Interface does not provide Customer with the ability to configure a protection policy or recovery plan, or to initiate a failover, failback or disaster recovery test. Where such an operation is within the scope of a service Customer has purchased, Nexcess performs it at Customer’s request, at a time scheduled by Nexcess with Customer, and Nexcess may decline a request that is not within the scope of a service Customer has purchased.

12. Migration. Migration of Customer’s workloads onto the Private Cloud Service at the commencement of the Private Cloud Service is included, in respect of the workloads identified in the Sales Order. Any further migration, any workload not so identified, and any migration requested after the initial migration is complete, is provided as professional services scoped in a new or amended Sales Order and charged under Section 16. Migrations are performed by Nexcess personnel using tooling Nexcess determines and Customer acknowledges that it has no self-service migration capability. Customer acknowledges that cutover requires a final data synchronization and a power-off of the source workload and is therefore not a zero-downtime operation; that Customer’s IP addresses may not be retained in the new Environment and may require reconfiguration after cutover and that migration timelines depend on source platform access, source data volume and the availability of third-party components outside Nexcess’ control and are targets only. Customer is responsible for acceptance testing after cutover and for maintaining the source environment until it has accepted the migrated workload. Nexcess is not responsible for any loss arising from Customer’s decommissioning of a source environment prior to acceptance of the migration.

13. Third-Party Platform; Vendor Support; Telemetry. The Private Cloud Service is delivered using software and platform components licensed by Nexcess from Nutanix and other third parties. Customer holds no license, support entitlement, warranty or other right directly against any Nutanix or any other vendor in respect of the Private Cloud Service. Nexcess is the sole route to vendor support; Customer shall not contact Nutanix directly in relation to the Private Cloud Service, and only Nexcess may open a support case with Nutanix. Nexcess’ ability to resolve a defect in the platform is dependent on the vendor, and Nexcess is not liable for delay or failure attributable to such vendor. Customer acknowledges that the platform transmits operational and diagnostic data concerning the infrastructure to the vendor for support and product purposes, that Nexcess enables that transmission as part of operating the platform, and that Nexcess does not control the vendor’s handling of it. Nexcess has sole discretion to select, use, add, replace or discontinue any vendor or third-party component used to deliver the Private Cloud Service. No such action requires Customer’s agreement, and Nexcess is not required to give Customer prior notice of it. Nexcess may modify, substitute or discontinue any third-party component and may migrate the Environment to a successor platform, control plane or tooling, subject to the provision in Section 5.

14. Disclaimer; Limitation of Liability. In addition to any disclaimer or limitation set out elsewhere in the Agreement, including in this Service Description, Nexcess does not make any warranty, representation or guarantee that the Private Cloud Service or the platform is or will be free of defects or interruptions, will meet Customer’s performance requirements, or will prevent, eliminate the risk of, or eliminate damage or service interruption arising from hardware failure, data loss, intrusion, malicious attack, unauthorized access, ransomware, or harmful or destructive software or programming routines. Customer acknowledges that platform features that operate automatically, including Live Migration, high availability and workload placement, operate subject to available cluster resources and to configuration, and are not a guarantee of availability of any individual virtual machine. Nexcess is not responsible for any service degradation, performance issue, data loss or security incident resulting from Customer’s act or omission, any change made by Customer within the Management Interface, Customer’s failure to order sufficient resources, Customer’s failure to purchase backup or disaster recovery, Customer’s reliance on Recovery Points in place of backup, the state of any virtual machine that is not a Managed Virtual Machine, or Customer’s failure to act upon a notice or alert. Customer shall defend, indemnify and hold harmless Nexcess against any and all demands, causes of action, fines, , penalties, claims, losses, liabilities, damages, costs and expenses (including reasonable attorney’s fees) arising out of or in connection with (i) any operating system, database or other software licensing supplied by Customer under Section 10, including any claim brought by a licensor; (ii) any virtual machine that is not a Managed Virtual Machine, and any data, software or configuration Customer places within the Environment; (iii) any change made by Customer within the Management Interface, (iv) any violation of this Agreement, (v) Customer’s negligence or willful acts or omissions, (vi) claims by a third party arising out of or related to Customer’s use or misuse of any Management Interface. Neither party nor any of its affiliates, employees, contractors, or suppliers, shall be liable to the other party or any third party for any incidental, consequential, special, indirect, or punitive damages, lost profits, lost revenues, and loss of business opportunity that the other party may incur or experience in connection with this Agreement, however caused and under whatever theory of liability (including, without limitation, strict liability and negligence), even if such party has been advised of the possibility of such damages. In no event shall Nexcess be liable for any damages related to any third party product or service. Nexcess shall not be liable to Customer for any claims or damages resulting from or caused by (a) Customer’s fault, negligence or breach of this Agreement; (b) claims against Customer by any other party; (c) any act or omission of any other party; (d) equipment or services furnished by a third party;  Notwithstanding any other provision of the Agreement, Nexcess’ aggregate liability for all causes of action, claims and damages in connection with the Private Cloud Service is limited to the fees and charges paid by Customer to Nexcess for the Private Cloud Service during the six (6) month period before the date on which the claim arose.

15. Acceptance. Nexcess shall not be bound to provide the Private Cloud Service, and shall not provision the Environment, until the applicable Sales Order and this Agreement have been mutually accepted. Customer shall not access or use the Private Cloud Service prior to the Service Start Date set forth in the Sales Order.

16. Fees and Charges. All fees and charges for the Private Cloud Service are set out in this Section and in the Sales Order. Customer shall pay to Nexcess all fees and charges incurred on Customer’s account in full, as set forth in the Agreement and the Sales Order, without set-off, withholding or deduction by Customer.

  1. Charging basis. The Dedicated variety is charged as a monthly recurring charge (“MRC”) per Host. The Multi-Tenant variety is charged as an MRC on metered virtual CPU, memory and storage. Rates for each are set out in the Sales Order.
  2. Separately charged items. The following are charged in addition to the charges under paragraph (a), at the rates set out in the Sales Order: operating system and database licensing supplied by Nexcess; backup and disaster recovery services; additional IP addresses; firewall and virtual private network options; migration and other professional services chargeable under Section 12; and assistance with matters outside the scope of the Private Cloud Service under Section 9.
  3. Rate changes. Fees for the Private Cloud Service are fixed for the duration of the then-current term and are subject to adjustment only at renewal. Nexcess shall provide notice to Customer of rate changes applicable at renewal, and the new rates shall be effective on the date set forth in the notice.
  4. Increases in consumption. Where Customer’s consumption of a metered resource increases during a billing cycle, the additional consumption is charged as set out in the Sales Order.
  5. Invoicing. Invoicing, payment terms and currency are governed by the Agreement.

17. Term; Termination. The term of the Private Cloud Service is as set out in the Sales Order and renews as provided there.

  1. Termination for convenience. Customer may terminate the Private Cloud Service for convenience with effect from the end of the then-current term by giving Nexcess not less than thirty (30) days’ prior written notice. Customer may terminate the Private Cloud Service for convenience during the then-current term by giving such notice, provided that termination during the then-current term does not relieve Customer of any minimum term or revenue commitment set out in the Sales Order, which becomes immediately due and payable on the effective date of termination. Nexcess may terminate the Private Cloud Service for convenience with effect from the end of the then-current term by giving Customer not less than thirty (30) days’ prior written notice. Nexcess will acknowledge a request to cancel the Private Cloud Service within five (5) business days of receipt.
  2. Consequences of termination. Upon termination of the Private Cloud Service: (i) Customer’s right to use and access the Private Cloud Service, the Management Interface and the Environment will terminate; (ii) Customer will immediately pay all outstanding fees due to Nexcess through the effective date of termination; and (iii) Nexcess will decommission the Environment and destroy Customer data on it. Nexcess does not retain Customer data following termination of the Private Cloud Service, and does not provide a certificate of media destruction. Customer is solely responsible for extracting or migrating its data, virtual machine images and configuration prior to the effective date of termination, and Nexcess has no obligation to retain, restore or reproduce Customer data after the effective date of termination.
  3. Effect on the Sales Order and other Services. Termination of the Private Cloud Service terminates the Sales Order to the extent it relates to the Private Cloud Service. Where the Sales Order also provides for other Services, it continues in effect in respect of those other Services. A notice of termination or non-renewal of the Private Cloud Service is not a notice of termination or non-renewal of such other Services, except as expressly agreed in writing by the Parties.
  4. Termination by Nexcess. Nexcess may terminate the Private Cloud Service on notice to Customer where Customer commits a material breach of the Agreement that is not cured within thirty (30) days after Nexcess gives notice of the breach. Nexcess may terminate the Private Cloud Service immediately, and without a cure period, where Customer breaches Section 5, where Customer’s use of the Private Cloud Service threatens the security, integrity or availability of the platform or of another customer’s environment, or where any amount payable by Customer is more than thirty (30) days overdue. Termination under this paragraph does not relieve Customer of any accrued but unpaid fees, which becomes immediately due and payable.

18. Interpretation. This Service Description is incorporated into and forms part of the Agreement. Capitalized terms used but not defined in this Service Description have the meaning given in the Agreement. In the event of any conflict, the Sales Order controls over this Service Description, and this Service Description controls over the Agreement solely with respect to the Private Cloud Service. Any product manual, knowledge base article, marketing material or other statement published by Nexcess in respect of the Private Cloud Service is provided for information only, does not form part of the Agreement, and creates no warranty or commitment.