These Evergreen//Flex Terms of Use apply to the provision of the Pure-branded, proprietary software, or services products purchased on a consumption-basis and delivered on Pure hardware owned by the End User, (collectively, “Evergreen//Flex”).
1. EVERGREEN//FLEX. Evergreen//Flex is a subscription service, subject to Pure’s Evergreen Storage Program Description at the //Forever level, whereby End User purchases a consumption-based license, for the duration of the Service Term and subject to a Reserve Commitment, to utilize Pure’s hardware operational software and capacity management services, delivered on Pure hardware, the title of which is transferred to End User pursuant to its order with the applicable reseller. The description of the Pure hardware, Reserve Commitment, and Service Term are set forth on the applicable quote.
2. ACCESS AND USE. Provided End User has an active Evergreen//Flex subscription, and subject to these Terms, Pure grants to End User, and any third party that End User authorizes to perform services involving Evergreen//Flex solely for End User’s benefit, a non transferable, nonexclusive, revocable right to, during the applicable Service Term and subject to any Reserve Commitments: (a) access and use Evergreen//Flex; and (b) download, install, and use, in executable object code format only, any Pure operational software that Pure delivers with the Pure hardware and Pure believes is necessary to use Evergreen//Flex.
3. RESTRICTIONS. End User shall not directly or indirectly (i) reproduce, modify, distribute, assign, disclose or make available any portion of the Pure software (and any related documentation) to any third party (except as otherwise authorized herein); (ii) swap, move, or change any hardware component of Evergreen//Flex with any other Pure-branded hardware, either from a separate purchase or separate Subscription, (iii) use any Pure software following the expiration or termination of a Service Term; (iv) rent, lease or sublicense Pure software unless authorized by Pure in writing; (v) reverse engineer, decompile, or disassemble any portion of any Pure software, or otherwise attempt to decrypt, extract or derive source code for, or any algorithms or data structures embodied within, any portion of the Pure software (except to the extent the foregoing restriction is expressly prohibited by applicable law); (vi) use the Pure software to develop a similar product or service; (vii) transfer or copy any Pure software, or use any Pure software on, any other product or device not provided by Pure as part of an Evergreen//Flex subscription, even if that product or device is Pure-branded, or purchased from Pure or a Pure authorized reseller; or (viii) publish or disclose to any third party any technical features, performance or benchmark tests, or comparative or competitive analyses relating to any Pure product, except for internal use by the End User or as may be authorized by Pure in writing. End User shall remain fully and primarily responsible to Pure for compliance with this Agreement if End User permits any third party to access Evergreen//Flex. Any future release, update, or other addition to functionality of the Pure software or Evergreen//Flex, made available by Pure to End User shall be subject to these Terms, unless Pure expressly states otherwise. End User shall preserve and shall not remove, obscure or alter any copyright labels required by law or other proprietary notices in any Pure software, hardware, Products or related documentation.
4. SERVICE TERM.
4.1 Evergreen//Flex Subscription Start Date. Unless otherwise set forth herein, the Service Term for Evergreen//Flex commence as follows: (a) 28 days following Pure’s acceptance of the order for Evergreen//Flex, as identified in Pure1®; or (b) upon Pure’s acceptance of the order for any renewal or modification of an Evergreen//Flex subscription, as identified in Pure1®.
4.2 Renewal. Evergreen//Flex subscriptions automatically renew, and End User shall pay for that 12-month renewal, unless End User provides Partner and Pure written notice of its intent not to renew their subscription at least 60 days prior to the expiration of the then-current Service Term.
4.3 Expiration. These Terms, and End User’s rights to use the Evergreen//Flex Subscription terminate upon expiration of the applicable Service Term.
4.4 Post-Service Term Usage. End User 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 hardware that remains in use following the expiration or termination, if any End User workloads remain on that hardware.
4.5 Termination for Convenience. End User may terminate an Evergreen//Flex 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. Upon termination, the End User may not use the deployed hardware without an active Evergreen//Flex Subscription.
4.6 Termination for Cause. These Terms, and End User’s rights to use Evergreen//Flex, terminate immediately if: (a) End User fails to make timely payments for the Evergreen//Flex subscription to Pure or Partner; (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//Flex 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 4.6(c). Upon termination, the End User may not use the deployed hardware without an active Evergreen//Flex Subscription.
4.7 Effect of Termination. Upon any termination or expiration of a Subscription: (a) End User’s rights to access and use any Pure software delivered with Evergreen//Flex cease; and (b) End User shall promptly: (i) discontinue use of Evergreen//Flex; (ii) discontinue use of any software delivered as part of Evergreen//Flex; and (iii) pay all amounts due for Evergreen//Flex for the duration of the Service Term, unless Terminated for Cause pursuant to Section 4. Notwithstanding anything to the contrary herein: (a), any amounts prepaid through the date of termination are final and non-refundable; and (b) . End User may not utilize the hardware or any component thereof, without an active subscription. Any use in violation of the foregoing is a material breach of this Agreement and Pure is entitled to appropriate equitable relief in addition to whatever other remedies Pure might have at law. Upon termination, the End User may not use the deployed hardware without an active Evergreen//Flex Subscription.
4.8 U.S. Federal and State Government End Users. End Users that are part of a United States federal, state, or municipal government or agency (a “US Government End User”) 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 Partner for failing or refusing to fund or to secure appropriations to fulfill or fund its obligations under its contract with the Partner. Upon expiration or termination of a subscription, the US Government End User shall immediately discontinue use of the hardware covered under the subscription. Notwithstanding anything to the contrary, any amounts paid to Pure for Evergreen//Flex for periods prior to the termination date are final and non-refundable if the Subscription is terminated pursuant to this Section.
5. RESERVE COMMITMENTS, SUPPORT, AND TRANSMISSION OF PURE1® DATA.
5.1 Reserve Commitment. A Reserve Commitment may be increased by the End User (either on its own or by adding additional Systems) 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.
5.2 Support. Subscriptions are delivered with 365 X 24 X 7 support, with 4-hour response times, as described in Pure’s Customer Support Guide.
5.3 Transmission of Pure1® Data Required. Pure’s “phone home” feature, known as Pure1®, is an integral component of Pure’s delivery of Evergreen//Flex, by providing telemetry data to Pure and subscription management tools in Pure1® for End User (“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, except as otherwise set forth in the applicable Quote, and 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 Partner for the period of time Pure1® is disabled; or (b) upon 15 days’ prior written notice, suspend or terminate the subscription.
6. FEE STRUCTURE, INVOICING CADENCE, DARK SITES, AND NON-RETURNABLE DRIVES.
6.1 Reserve Commitment Charges. Reserve Commitments are a fixed charge, billed in advance per each piece of Pure hardware described herein at the corresponding Reserve Rate on either a monthly, quarterly, or annual basis.
6.2 On-Demand Charges. On-Demand usage is a variable charge, billed in arrears on a calendar quarterly basis, based on End User’s average daily usage of the subscription in excess of the Reserve Commitment per each piece of Pure hardware described herein, at the corresponding On-Demand Rate.
6.3 Pre-Reduced or Encrypted (“PRE”) Data. For FlashArray//X and //XL Evergreen//Flex Subscriptions, End User does not incur additional fees for PRE Data, provided the Site-level data reduction ratio is a minimum of 2:1 or higher as reported in Pure1®. End User is required to upgrade, at an additional charge, the Subscription to a PRE Subscription if the Site-level 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”). End User is required to upgrade to a PRE Subscription if the Site-level data reduction ratio remains below 2:1 following the PRE Grace Period. PRE Subscription tiers are priced higher than their SDR counterparts, with the final price determined between End User and Pure or Partner, as applicable.
6.4 Pure1® Connectivity Charges. A variable charge billed in arrears on a calendar quarterly or monthly basis at the On-Demand Rate for failure to connect Pure1®, as described in Section 5(D) of these Terms.
6.5 Dark Sites. End User may be subject to Government or corporate security policies (collectively, the “Dark Site Security Policies”) such that connectivity to Pure1® is not possible. End User may purchase the EFX-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, and (c) 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 Evergreen//Flex (e.g., 100% utilization of the applicable hardware) 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 Evergreen//Flex Subscription, provided that Pure shall notify End User prior to any such suspension or termination.
6.6 Non-Returnable Faulty Drives. End User may be unable to return faulty SSDs. Therefore, End User may purchase the EFX-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.
6.7 Datapack Mobility Within Evergreen //Flex. End User may move any flash media, solid state drives, or any other storage drives (collectively, “Datapacks”) from one System under an Evergreen //Flex subscription to any other compatible-System also under an Evergreen //Flex subscription. Any such Datapack move may incur an increase to the Reserve Commitment or On-Demand charges, please contact your Pure Customer Success Manager for more details. For the sake of clarity, Datapack moves shall not lower any Reserve Commitments, or usage rates for any Evergreen //Flex subscription.
7. SERVICE LEVEL AGREEMENTS AND GUARANTEES.
PAID POWER & RACK - FOR NEW SUBSCRIPTIONS, AND QUALIFIED RENEWALS PURCHASED AFTER OCTOBER 10, 2023
Under Pure’s “Paid Power & Rack" program for Evergreen//Flex Forever, Pure will remit payment following the Service Commencement Date in the amount of what Pure calculates as the cost of End User’s Evergreen//Flex Pure hardware’s power and rack consumption within the End User’s data center over the term of the Evergreen//Flex subscription, not to exceed five (5) years. The amount of the Paid Power & Rack payment is determined by -
1. Rack units estimate, determined by Pure, of the Evergreen//Flex Pure hardware purchased, multiplied by a fixed unit cost based on best efforts estimate as determined by Pure, and
2. Nominal power consumption by the Evergreen//Flex Pure hardware purchased measured in Kilowatt-Hours, multiplied by the unit electricity costs for the initial Installation location(s) country, as published by the International Energy Agency (https://www.iea.org/).
The Paid Power & Rack program applies only to:
(i) Pure hardware with corresponding Evergreen//Flex Subscriptions with a minimum Reserve Commitment of (a) 200 TiB for FlashArray//X and FlashArray//XL; (b) 400 TiB for FlashBlade//S and FlashArray//C; (c) 500 TiB for FlashArray//E and (d) 1,500 TiB for FlashBlade//E;
(ii) net new contracts, and renewal of net new contracts; and
(iii) expansions which are accompanied by the purchase of new Evergreen//Flex Pure hardware, and renewals for the Evergreen//Flex Services.
The Paid Power & Rack program excludes existing contracts expansions or renewals.
End User must provide the payment instructions to Pure prior to the expiration date which is defined as the Service Commencement Date, in order to receive this payment. Any payments under the Paid Power & Rack program are ineligible to be converted to additional discounts.
NO DATA MIGRATIONS GUARANTEE - FOR NEW SUBSCRIPTIONS, AND QUALIFIED RENEWALS PURCHASED AFTER OCTOBER 10, 2023
Under the “No Data Migrations Guarantee”, Pure guarantees End User that if Pure determines that any Applicable Pure Products require an upgrade, Pure will non-disruptively upgrade the Applicable Pure Products, and that the upgrade will not require any data migration.
Eligibility of this guarantee requires that (i) the upgrade is performed by Pure or an authorized Pure partner; (ii) End User has a current Evergreen//Flex subscription and is not past due with any Evergreen//Flex subscription obligations (iii) Products to upgrade are in the same product model family and the new Product is at equal or higher model level within the same product model family (i.e. FlashArray//X50R2 to FlashArray//X50R4 or higher); (iv) all Products are utilizing the most recent Enterprise Readiness Release version of Purity, based on the Purity release guidelines; and (v) the upgrade is limited to a 1:1 (array:array) Product upgrade ratio. This Guarantee does not apply to any upgrade that involves consolidating multiple End User-owned Products into a single Product purchase.
To the extent Pure determines that Applicable Pure Products require a data migration in lieu of a non-disruptive upgrade, Pure will provide a Service Credit. The Service Credit will be based upon the Reserve Commitment Charges for any Applicable Pure Product requiring data migration in lieu of a non-disruptive upgrade for the number of months that End User has consumed its Evergreen//Flex subscription, not to exceed 12 months. Notwithstanding anything to the contrary herein, End Users are not entitled to remediation or any Service Credits if the End User chooses a non-Pure alternative for any migration needs for any Product upgrade.
ZERO DATA LOSS GUARANTEE - FOR NEW SUBSCRIPTIONS PURCHASED AFTER OCTOBER 10, 2023
Under “Zero Data Loss Guarantee,” for Evergreen//Flex Forever, Pure guarantees Zero Data Loss with the Evergreen//Flex Pure hardware except for the Excluded Products. In the event that, following an analysis performed by Pure, Pure determines that data loss occurred on any Evergreen//Flex Pure hardware, and was caused by a Pure System being at fault, Pure will first provide Data Recovery Services to help recover the lost data.
If, after performing Data Recovery Services, Pure determines that the data is unrecoverable, Pure will provide End User with a Service Credit based upon the Reserve Commitment Charges for the impacted System for the number of months that End User has consumed its Evergreen//Flex subscription, not to exceed 12 months.
The Zero Data Loss Guarantee is End User’s exclusive remedy, and Pure’s sole liability if any data loss occurs with an Evergreen//Flex subscription and is not a substitute for any requirement for End User to ensure End User is following industry standards around managing snapshots, backups, and data protection.
8. SERVICE CREDIT REQUIREMENTS. The commitments listed above are contingent upon the following: (a) End User submitting a Sev-One Ticket; (b) Pure determining “Pure System at Fault” in the Root Cause Analysis (“RCA”) for the underlying cause of missing the commitment; and (c) the RCA must not find that End User was a cause, in whole or in part, to any miss of the applicable Service Level Commitments described above. Except as otherwise expressly set forth in these Evergreen//Flex Terms of Use, the maximum cumulative Service Credit that End User may earn for any single License shall not exceed 10% of the highest Reserve Commitment Charges for any year during the applicable Service Term.
9. APPLICATION OF SERVICE CREDITS. Service Credits can only be applied: (a) if End User is utilizing the most recent Enterprise Readiness Release version of Purity, based on the Purity release guidelines; (b) to invoices for End User’s Evergreen//Flex subscription issued subsequent to when the credit was earned, and (c) to the affected Evergreen//Flex Pure hardware.
Service Credits shall not: (i) be applied to anything other than as described in these Evergreen//Flex Terms; (ii) be issued as cash or a cash rebate in lieu of a credit or (iii) be valid after the expiration of termination of the License.
10. CONVERSION TO EVERGREEN//ONE SUBSCRIPTION. Upon 30 days’ prior written notice, End User may request that Pure convert an Evergreen//Flex subscription to an Evergreen//One subscription. Any such conversion may require buybacks to the underlying hardware providing the Evergreen//Flex subscription, the pricing and terms of which shall be negotiated in good faith between End User and the authorized reseller.
11. DEFINITIONS.
11.1. Applicable Pure Product: except for any Excluded Products, all FlashArrays and FlashBlades six (6) months following General Availability.
11.2. Data Recovery Services: Pure will:
- Deploy personnel as reasonably required in Pure’s option, to recover any data that Pure has determined was lost due to a Pure System being at fault;
- Provide temporary use of Pure hardware to recover any lost data or otherwise ensure no further data loss;
- Reconfigure any replacement Evergreen//Flex Pure hardware; and
- Decommission and remove any replaced Evergreen//Flex Pure hardware.
The foregoing Data Recovery Services shall be performed for a maximum of four (4) weeks, based on five (5) day work weeks, with eight (8) hour workdays.
11.3. Excluded Products: all first-generation FlashBlades, Cloud Block Store, Professional Services, Support Services, and any Product deployed within a dark site.
12. 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.
