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EULA Update 

We need to use VMware General Terms for RC/GA.
We are keeping the file name as EULA.txt only but
updating the content.

Change-Id: Ia84c2536420330b0b9d0ff6c64259ccee22e3e0a
Signed-off-by: Tapas Kundu <tkundu@vmware.com>
Reviewed-on: http://photon-jenkins.eng.vmware.com:8082/20082
This commit is contained in:
Tapas Kundu 2023-03-23 15:59:13 +05:30
parent e5e6720f97
commit baeaa7b8a7
1 changed files with 109 additions and 88 deletions
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EULA.txt
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VMWARE, INC.
BETA LICENSE AGREEMENT
Note: BY CLICKING "I AGREE," ACCESSING, DOWNLOADING, INSTALLING, UPLOADING, COPYING OR USING THE BETA SOFTWARE, YOU CONCLUDE AND AGREE TO THIS BETA LICENSE AGREEMENT ("AGREEMENT") IN A LEGALLY BINDING MANNER WITH VMWARE, INC., 3401 HILLVIEW AVENUE, PALO ALTO, CA 94304, USA ("VMware"). IF YOU HAVE SPECIFIED IN CONNECTION WITH THE REGISTRATION PROCESS FOR THIS SOFTWARE BETA TEST PROGRAM THAT YOU ARE ACTING ON BEHALF OF A COMPANY OR OTHER ORGANIZATION, YOU REPRESENT THAT YOU ARE AUTHORIZED TO LEGALLY BIND SUCH ORGANIZATION AND THAT YOU CONCLUDE THE AGREEMENT ON BEHALF OF SUCH ORGANIZATION. IN THE FOLLOWING, THE TERMS "YOU" AND "LICENSEE" SHALL REFER, JOINTLY AND SEVERALLY, TO YOU INDIVIDUALLY AND ANY ORGANIZATION ON WHOSE BEHALF YOU ACT.
If you do not agree to the terms of this beta license Agreement, then do *not* click "I AGREE," access, download, install, upload, copy or use the Beta Software.
1. DEFINITIONS.
(a) "Beta Software" shall mean the beta version of VMware's software and the media and Documentation provided by VMware to Licensee and for which Licensee is granted a use license pursuant to this Agreement. The Beta Software will be provided in object form only.
(b) "Documentation" shall mean the printed or online written reference material furnished to Licensee in conjunction with the Beta Software, including, without limitation, instructions, beta testing guidelines, and end user guides.
(c) "Intellectual Property Rights" shall mean all intellectual property rights, including, without limitation, patent, copyright, trademark, and trade secret, recognized in any jurisdiction worldwide, whether perfected or not, and any similar and other proprietary rights.
(d) "Open Source Software" means code that is provided with the Beta Software and identified as open source code or otherwise as being subject to open source license terms.
(e) "Updates" shall mean a modification, error correction, bug fix, new release, or other update to or for the Beta Software.
2. LICENSE GRANT, USE AND OWNERSHIP.
(a) Limited License. Subject to the terms and conditions of this Agreement, VMware grants to Licensee a non-exclusive, revocable (at any time and for any reason, at VMware's sole discretion), royalty-free, non-transferable, non-assignable license (without the right to sublicense):
(i) to use the Beta Software in accordance with the Documentation solely for purposes of (A) internal testing and evaluation to determine whether or not to license generally available commercial versions of the Beta Software if such versions ever become available, and (B) internal development to create interoperability between the Beta Software and Licensee products,
(ii) to use the Documentation provided with the Beta Software in support of Licensee's authorized use of the Beta Software, and
(iii) to copy Beta Software for Licensee's archival or backup purposes, provided that all titles and trademarks, copyright, and restricted rights notices are reproduced on such copies.
(b) Evaluation Feedback. The purpose of this limited license is the testing and evaluation of the Beta Software and Documentation and development by Licensee of Licensee products that interoperate with the Beta Software. In furtherance of this purpose, Licensee shall provide feedback to VMware concerning the functionality and performance of the Beta Software from time to time as reasonably requested by VMware, including, without limitation, identifying potential errors and improvements (collectively the "Feedback"). Licensee will provide Feedback in a manner that is mutually agreeable to the parties. VMware may use Feedback, without restriction in any manner now known or in the future conceived, to improve or enhance its products and, accordingly, and you hereby grant to VMware a non-exclusive, perpetual, irrevocable, royalty-free, transferable, worldwide right and license, with the right to sublicense (i) to use, reproduce, disclose, distribute, modify, prepare derivative works of and otherwise exploit the Feedback and other information you provide to VMware under this Agreement, and (ii) to make, use, sell, offer to sell, import and export any product or service that incorporates the Feedback and other information you provide to VMware under this Agreement.
(c) Restrictions. Licensee shall not disclose, provide, or disseminate in any manner the Beta Software (including the Documentation) or Confidential Information to any third party, including but not limited to its partners, affiliates or subsidiaries. Except to the extent contrary to any applicable laws, Licensee will not, and will not permit any third party to, sublicense, rent, copy, modify, create derivative works of, translate, reverse engineer, decompile, disassemble, or otherwise reduce to human perceivable form any portion of the Beta Software or accompanying Documentation. Without limiting the generality of the foregoing, Licensee shall not use the Beta Software for Licensee's product development or any other commercial purpose, including, but not limited to sales or marketing activities, except as expressly permitted in this Agreement. The Beta Software and all performance data and test results, including without limitation, benchmark test results (collectively "Performance Data"), relating to the Beta Software are the Confidential Information of VMware, and will be treated in accordance with the terms of Section 4 of this Agreement. Accordingly, Licensee shall not publish or disclose to any third party any Performance Data relating to the Beta Software.
(d) Ownership. VMware shall own and retain all right, title and interest in and to the Intellectual Property Rights in the Beta Software and any derivative works thereof, subject only to the limited license expressly set forth in Section 2(a) hereof. Licensee does not acquire any other rights, express or implied, in the Beta Software. ALL RIGHTS NOT EXPRESSLY GRANTED HEREUNDER ARE RESERVED TO VMWARE.
(e) No Support Services. VMware is under no obligation to support the Beta Software in any manner or to provide any Updates to Licensee. In the event VMware, in its sole discretion, supplies any Update to Licensee, the Update shall be deemed Beta Software under this Agreement and shall be subject to the terms and conditions of this Agreement.
(f) Third-Party Software. The Beta Software may enable a computer to run multiple instances of third-party guest operating systems and application programs. Licensee acknowledges that Licensee is responsible for obtaining any licenses necessary to operate any third-party software, including guest operating systems and application programs.
(g) Open Source Software. Except for Sections 5, 6, and 7, the terms and conditions of this Agreement shall not apply to any Open Source Software accompanying the Beta Software. Any such Open Source Software is provided under the terms of the applicable open source license agreement or copyright notice accompanying such Open Source Software or included in the open source licenses file accompanying the Beta Software.
(h) Oracle Components. This Beta Software may contain components licensed to VMware by Oracle in which case Oracle requires that we notify Licensee of terms in this Section 2(h). Licensee acknowledges that Oracle owns the Java trademark and all Java-related trademarks, logos and icons including the Coffee cup and Duke ("Java Marks") and agree to (a) comply with the Java Trademark Guidelines at http://www.oracle.com/us/legal/third-partytrademarks/index.html; (b) not do anything harmful to or inconsistent with Oracle's rights in the Java Marks; and (c) assist Oracle in protecting those rights, including assigning to Oracle any rights acquired by the Licensee in any Java Mark. Enabling use of the Commercial Features of the Oracle components for any commercial or production purpose requires a separate license from Oracle. “Commercial Features” means those features identified in Table 1-1 (Commercial Features in Java SE Product Editions) of the Program Documentation accessible at http://www.oracle.com/technetwork/indexes/documentation/index.html.
3. TERM AND TERMINATION. Unless otherwise terminated as specified under this Agreement, Licensee's rights with respect to the Beta Software will terminate upon the earlier of (a) the initial commercial release by VMware of a generally available version of the Beta Software or (b) automatic expiration of the Beta Software based on the system date. Either party may terminate this Agreement at any time for any reason or no reason by providing the other party advance written notice thereof. Licensee agrees that this Agreement will automatically terminate without notice in the event Licensee discloses the Beta Software in breach of Section 4 (Confidentiality) below. Upon any expiration or termination of this Agreement, the rights and licenses granted to Licensee under this Agreement shall immediately terminate, and Licensee shall immediately cease using, and will destroy or render practically inaccessible the Beta Software, Documentation, and all other tangible items in Licensee's possession or control that contain Confidential Information. The rights and obligations of the parties set forth in Sections 2(b), 2(c), 2(d), 2(e), 2(f), 2(g), 3, 4, 5, 6, 7 and 8 survive termination or expiration of this Agreement for any reason.
4. CONFIDENTIALITY.
(a) "Confidential Information" shall mean the Beta Software, all information regarding the Beta Software (including any trade secrets, know-how, inventions, techniques, processes, and algorithms embodied in the Beta Software), Documentation, Performance Data, any Updates, VMware products, product roadmaps, and other technical, business, financial and product development plans, forecasts and strategies, and other information provided by VMware to Licensee under this Agreement, whether disclosed orally, in writing, or by examination or inspection, other than information that Licensee can demonstrate (i) was already known to Licensee, other than under an obligation of confidentiality, at the time of disclosure; (ii) was generally available in the public domain at the time of disclosure to Licensee; (iii) became generally available in the public domain after disclosure other than through any act or omission of Licensee; (iv) was subsequently lawfully disclosed to Licensee by a third party without any obligation of confidentiality; or (v) was independently developed by Licensee without use of or reference to any information or materials disclosed by VMware or its suppliers. If Licensee wishes to disclose to VMware any information under this Agreement that Licensee considers proprietary or confidential to Licensee ("Licensee Information"), then Licensee agrees such disclose will be governed by a separate non-disclosure agreement ("NDA") by and between the parties. If Licensee is required to disclose Confidential Information by applicable law or court order, Licensee shall notify VMware of the required disclosure promptly in writing and shall cooperate with VMware in any lawful action to contest or limit the scope of the required disclosure. Licensee shall not use any Confidential Information for any purpose other than as expressly authorized under this Agreement. In no event shall Licensee use the Beta Software or any Confidential Information to develop, manufacture, market, sell, or distribute any product or service, including any VMware products except as expressly set forth in this Agreement. Licensee shall not disclose any Confidential Information to any third party. Without limiting the foregoing, Licensee shall use at least the same degree of care that it uses to prevent the disclosure of its own confidential information of like importance, but in no event less than reasonable care, to prevent the disclosure of such Confidential Information.
(b) Additional Confidentiality Restrictions for Highly Confidential Beta Software. For certain Beta Software designated by VMware in writing as highly confidential ("Highly Confidential Beta Software"), Licensee agrees that the following, additional confidentiality obligations and restrictions will apply:
(i) Licensee shall limit dissemination of Highly Confidential Beta Software and related information concerning product features, future technologies and roadmaps only to Information Technology teams and/or software/solutions development teams of Licensee approved in writing by VMware, and only to individuals on such teams on a need-to-know basis and solely for purposes expressly authorized under this Agreement. For clarity and without limiting the generality of the foregoing, Licensee shall not disseminate any Highly Confidential Beta Software to Licensee's sales and marketing field organizations. Licensee will assign an employee who will be primarily responsible for ensuring Licensee's full compliance with the terms described in this Section 4(b) herein.
(ii) Improper Disclosure of Highly Confidential Beta Software. Licensee acknowledges that damages due to Licensee's improper disclosure of Highly Confidential Beta Software or related information concerning product features, future technologies and roadmaps may be irreparable and that monetary damages would be inadequate to compensate VMware for any breach of this Agreement. In the event that VMware reasonably believes that Licensee has disseminated Highly Confidential Beta Software or related information concerning product features, future technologies and roadmaps to an unauthorized party, Licensee will be immediately removed from VMware's Beta Software program and will not be permitted to participate in any VMware Beta Software program in the future. Additionally, all rights and licenses granted to Licensee under this Agreement shall immediately terminate in accordance with Section 3 herein (Term and Termination), and (b) in addition to all other remedies available in law or otherwise, VMware is entitled to seek equitable relief, including injunction and preliminary injunction against the threatened breach of this Agreement or the continuation of any such breach.
5. LIMITATION OF LIABILITY. IT IS UNDERSTOOD THAT THE BETA SOFTWARE IS PROVIDED WITHOUT CHARGE FOR THE PURPOSES EXPRESSLY PERMITTED UNDER THIS AGREEMENT. ACCORDINGLY, TO THE FULLEST EXTENT PERMITTED BY LAW, BUT SUBJECT ALWAYS TO THIS SECTION 5, THE TOTAL LIABILITY OF VMWARE AND ITS LICENSORS ARISING OUT OF OR RELATED TO THIS AGREEMENT SHALL NOT EXCEED $1.00. TO THE FULLEST EXTENT PERMITTED BY LAW, IN NO EVENT SHALL VMWARE OR ITS LICENSORS HAVE LIABILITY FOR ANY INDIRECT, INCIDENTAL, SPECIAL, OR CONSEQUENTIAL DAMAGES OR DAMAGES FOR LOSS OF BUSINESS PROFITS, BUSINESS INTERRUPTION, OR LOSS OF BUSINESS INFORMATION, HOWEVER CAUSED AND ON ANY THEORY OF LIABILITY (INCLUDING WITHOUT LIMITATION, TORT, STATUTE, CONTRACT OR OTHER), EVEN IF VMWARE AND ITS LICENSORS HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THESE LIMITATIONS SHALL APPLY NOTWITHSTANDING ANY FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY. THE PARTIES ACKNOWLEDGE THAT THE VARIOUS CONSIDERATIONS DUE TO VMWARE IN ACCORDANCE WITH THE TERMS OF THIS AGREEMENT WERE TAKEN INTO ACCOUNT IN DETERMINING THE LIMITATION OF LIABILITY SET FORTH IN THIS SECTION 5. LICENSEE ACKNOWLEDGES AND AGREES THIS LIMITATION IS AN ESSENTIAL ELEMENT OF THIS AGREEMENT AND THAT VMWARE WOULD NOT ENTER INTO THIS AGREEMENT WITHOUT THESE LIMITATIONS ON ITS LIABILITY.
6. WARRANTY DISCLAIMER. IT IS UNDERSTOOD THAT THE BETA SOFTWARE, OPEN SOURCE SOFTWARE, DOCUMENTATION, AND ANY UPDATES MAY CONTAIN ERRORS AND ARE PROVIDED FOR THE PURPOSES EXPRESSLY PERMITTED UNDER THIS AGREEMENT. TO THE FULLEST EXTENT PERMITTED BY LAW, AND SUBJECT TO SECTION 5, THE BETA SOFTWARE, THE OPEN SOURCE SOFTWARE, THE DOCUMENTATION, AND ANY UPDATES ARE PROVIDED "AS IS" WITHOUT WARRANTY OF ANY KIND, WHETHER EXPRESS, IMPLIED, STATUTORY, OR OTHERWISE. TO THE FULLEST EXTENT PERMITTED BY LAW, AND SUBJECT TO SECTION 5, VMWARE AND ITS LICENSORS SPECIFICALLY DISCLAIM ALL IMPLIED WARRANTIES OF MERCHANTABILITY, NONINFRINGEMENT, AND FITNESS FOR A PARTICULAR PURPOSE. Licensee acknowledges that VMware has not publicly announced the availability of the Beta Software, that such Beta Software may contain features currently under development, that VMware has not promised or guaranteed to Licensee that such Beta Software will be announced or made available to anyone in the future, that VMware has no express or implied obligation to Licensee to announce or introduce the Beta Software, that VMware may not introduce a product similar to or compatible with the Beta Software, and that any version number (if any) referenced is subject to change and does not in any way represent VMware's commitment to release any product in the future. Accordingly, Licensee acknowledges that any research or development that it performs regarding the Beta Software or any product associated with the Beta Software is done entirely at Licensee's own risk. Specifically, the Beta Software may contain features, functionality or modules that may not be included in the generally available commercial version of the Beta Software, if released, or that will be marketed separately for additional fees.
7. OTHER PROVISIONS.
(a) Governing Law, Injunctive Relief and Legal Costs.
(aa) Choice of Law. This Agreement and any dispute arising out of or related to this Agreement or the Beta Software ("Dispute") will be governed by California law, without regard to its choice of law principles. The United Nations Convention for the International Sale of Goods shall not apply.
(bb) Injunctive Relief. Either party may, at its sole discretion, seek preliminary judicial relief in any court of competent jurisdiction (including, but not limited to, preliminary injunctive relief). Also, the provisions of this Section 7(a) may be enforced by any court of competent jurisdiction.
(b) Export Regulations. The Beta Software is of United States origin and is provided subject to the U.S. Export Administration Regulations.  Diversion contrary to U.S. law is prohibited.  Without limiting the foregoing, you agree that (1) you are not, and are not acting on behalf of, any person who is a citizen, national, or resident of, or who is controlled by the government of, Cuba, Iran, North Korea, Sudan, or Syria, or any other country to which the United States has prohibited export transactions; (2) you are not, and are not acting on behalf of, any person or entity listed on the U.S. Treasury Department list of Specially Designated Nationals and Blocked Persons, or the U.S. Commerce Department Denied Persons List or Entity List; and (3) you will not use the Beta Software for, and will not permit the Beta Software to be used for, any purposes prohibited by law, including, without limitation, for any prohibited development, design, manufacture or production of missiles or nuclear, chemical or biological weapons. U.S. Export Control Classification Numbers (ECCN's) may be found at VMware help page: http://www.vmware.com/help/export-control.
(c) Modification. This is the entire agreement between the parties relating to the subject matter hereof and to the fullest extent permitted by law, all other terms, representations, negotiations, arrangements or understandings are rejected. This Agreement supersedes and replaces any other agreements, representations, negotiations, arrangements or understandings between the parties and Licensee hereby waives any form requirements that may be contained in previous agreements and agrees that this Agreement shall take precedent with respect to its subject matter. No party has entered into this Agreement relying on any representations made by or on behalf of the other, other than those expressly made in this Agreement. No waiver or modification of this Agreement shall be valid unless in writing signed by each party.
(d) Language of Contract. The parties have required that this Agreement and all documents relating thereto be drawn up in English. Les parties ont demandé que cette convention ainsi que tous les documents que s'y attachent soient rédigés en anglais.
(e) Severability. If any provision of this Agreement is held to be illegal, invalid or unenforceable, the provision will be enforced to the maximum extent permissible so as to effect the intent of the parties, and the remaining provisions of this Agreement will remain in full force and effect.
(f) Waivers. Any waiver of these terms must be in writing and signed by the waiving party to be effective.
(g) Data Collection and Privacy.
(i) Consent for Collection and Use of Technical Data. You agree that VMware may periodically collect, process and store technical and related information about your device, system, application, peripherals and your use of the Beta Software, including without limitation: internet protocol address, hardware identification, operating system, application software, peripheral hardware, number of active plugins and software development kits, the successful installation and launch of Beta Software, and  Beta Software usage statistics (collectively, "Technical Data").  VMware will use Technical Data for internal statistical and analytical purposes to facilitate support, invoicing or online services, the provisioning of updates, and the development of VMware products and services. VMware may transfer Technical Data to other companies in the VMware worldwide group of companies from time to time. 
(ii) Log Files. You acknowledge that correspondence and log files generated in conjunction with a request for support services may contain sensitive, confidential or personal information. You are solely responsible for taking the steps necessary to protect such data, including obfuscating the logs or otherwise guarding such information prior to sending it to VMware.
(h) Independent Parties. The parties are independent. Nothing in this Agreement shall be construed to create a partnership, joint venture, contractor, or agency relationship between the parties.
8. ASSIGNMENT. Licensee shall not and cannot assign this Agreement or any rights or obligations hereunder, directly or indirectly, by operation of law, merger, acquisition of stock or assets, or otherwise without the prior written consent of VMware. Any attempted assignment or transfer in violation of the foregoing will be null and void. Subject to the foregoing, this Agreement shall inure to the benefit of and be binding upon the parties and their respective successors and permitted assigns.
9. CONTACT INFORMATION. If you have any questions about this Agreement, please direct all correspondence to: VMware, Inc., 3401 Hillview Avenue, Palo Alto, CA 94304, United States of America. VMware is a trademark of VMware, Inc. and is registered in the U.S. and numerous other countries.
VMWARE GENERAL TERMS
Last updated:16 June 2022
By downloading or using an Offering, Customer agrees to be bound by the terms of the Agreement.
1. OFFERINGS.
1.1. Applicable Terms. The terms of the Order and these General Terms, including applicable Exhibits and Offering-specific Notes (collectively, the "Agreement") govern Customer's use of the Offerings. The following descending order of precedence applies: (a) the Order; (b) the General Terms; (c) the Exhibits; and (d) the Offering-specific Notes.
1.2. Users. Customer is responsible for its Users' compliance with the Agreement.
1.3. Restrictions. Customer may use the Offerings only for its internal use and for the benefit of its Affiliates. Affiliates may not use the Offerings. Customer may not resell or sublicense its rights to the Offerings. Customer may not use the Offerings in an application service provider, service bureau, hosted IT service, or similar capacity for third parties.
1.4. Benchmarking. Customer may use the Offerings to conduct internal performance testing and benchmarking studies. Customer may only publish or distribute study results with VMware's approval. Customer may submit requests to VMware by emailing benchmark@vmware.com.
1.5. Evaluations. Evaluations are for 30 days (unless VMware specifies otherwise in writing). Customer may not have access to data in the Evaluation after it ends. Evaluations are provided "AS IS" without indemnification, support, service level commitment, or warranty of any kind, express or implied.
2. ORDERS AND PAYMENTS.
2.1. Orders. Orders are binding when VMware accepts them, which is deemed to occur on Delivery.
2.2. Purchase Orders. Purchase orders do not have to be signed to be valid. Terms contained in any purchase order or other business form do not apply.
2.3. No Refunds. All Orders are non-refundable and non-cancellable except as expressly provided in the Agreement.
2.4. Overages. Customer must pay all fees for use of the Offerings, including amounts for add-on features and fees incurred based on usage. VMware may bill Customer directly for metered or overage fees, even if Customer originally purchased the Offerings through a VMware authorized reseller.
2.5. Direct Orders. This section 2.5 (Direct Orders) applies only to Orders placed directly with VMware. If Customer purchases entitlements to the Offerings through a VMware authorized reseller, different terms regarding invoicing, payment, and taxes may apply.
2.5.1. Payments. Except as listed in an Order, fees for the Offerings will be governed by the applicable price list at the time of invoicing. Customer must pay all undisputed fees and approved expenses within 30 days from the date of invoice. After 30 days, interest will accrue at the lesser of 1.5% per month or the highest lawful rate.
2.5.2. Disputes. To dispute any fees in good faith, Customer must notify VMware in writing of the reasons for the dispute before the payment due date. The parties must negotiate in good faith to resolve the dispute as soon as reasonably practicable. VMware will not suspend or terminate Customer's access to any Offering because of any unpaid, disputed fees while Customer and VMware are negotiating to resolve the dispute.
2.5.3. Taxes. Fees are exclusive of Taxes. Customer must pay or reimburse VMware for all Taxes. If Customer is required to withhold any Tax, Customer must gross up its payments so that VMware receives all sums due in full. If Customer's address is outside of the United States, VMware will treat the Customer's "bill to" address as the place of supply for VAT purposes.
3. TERM.
3.1. Term. The Agreement applies to the Offerings from the effective date of the Order until the expiration or termination of Customer's entitlement to the Offerings as set forth in this Agreement.
3.2. Temporary Suspension. In the event of a security risk to a Service or its users, VMware may suspend Customer's use of that Service.
3.3. Termination for Cause. Either party may terminate the Agreement (in whole or in part) or Customer's entitlement to an Offering under the Agreement effective immediately upon written notice if the other party: (a) materially breaches any provision of the Agreement and fails to cure within 30 days after receiving written notice; or (b) becomes insolvent or subject to any form of bankruptcy proceeding.
3.4. Effect of Termination. Upon termination of the Agreement or part of it: (a) all entitlements to the applicable Offerings immediately end; (b) Customer must stop using, and destroy any copies of, those Offerings; and (c) each party must return or destroy any Confidential Information of the other party in its control (other than information that must be retained by law). Any provision that is intended by the parties to survive termination of the Agreement will survive.
4. CONFIDENTIAL INFORMATION.
4.1. Protection. Recipient must protect Discloser's Confidential Information with at least the same care as it protects its own Confidential Information but not less than reasonable care. Recipient may not use Discloser's Confidential Information except to exercise its rights and perform its obligations under the Agreement. Recipient may disclose Confidential Information only to Recipient's Affiliates, employees and contractors who need to know the Confidential Information for purposes of the Agreement and who have a duty of confidentiality no less restrictive than this section 4 (Confidential Information).
4.2. Exceptions. Recipient's obligations under section 4.1 (Protection) do not apply if the information: (a) is rightfully known by Recipient at the time of disclosure without any obligation of confidentiality; (b) is lawfully disclosed to Recipient by a third party without confidentiality restrictions; (c) becomes publicly available through no fault of Recipient; or (d) is independently developed by Recipient without access to or use of Discloser's Confidential Information.
4.3. Injunctive Relief. Nothing in the Agreement limits a party's right to seek equitable relief for breach of this section 4 (Confidential Information).
5. OWNERSHIP.
5.1. Customer Content. Customer retains all Intellectual Property Rights in and to Customer Content.
5.2. VMware IP. VMware retains all Intellectual Property Rights in and to the Offerings, including any improvements, enhancements, modifications, and derivative works. If Customer provides any feedback about the Offerings, VMware may use that feedback without restriction.
5.3. Reservation of Rights. Except as expressly stated in the Agreement, the Agreement does not grant either party any rights, implied or otherwise, to the other party's content or intellectual property.
6. LIMITED WARRANTIES.
6.1. Software and Cloud Services. VMware warrants that Software and Cloud Services will substantially conform with the Documentation: (a) for Software, for 90 days following Delivery; or (b) for Cloud Services, for the Subscription Term. Customer must properly install and use the Offerings without modification and in accordance with the Documentation. Customer must notify VMware of an alleged breach of this warranty within the applicable warranty period. As Customer's sole remedy for a breach of this warranty, VMware must either: (1) correct any reproducible error in the Software or Cloud Service; or (2) terminate the Software or Cloud Service and refund applicable license fees (for Software) or unused, prepaid fees (for Cloud Services).
6.2. Professional Services and Support Services. VMware warrants that Professional Services and Support Services will be performed in a professional manner following industry standards. Customer must notify VMware within 30 days of an alleged breach of this warranty. As Customer's sole remedy for a breach of this warranty, VMware must either: (a) rectify the breach; or (b) terminate the applicable Service and refund any unused, prepaid fees for that Service.
6.3. Disclaimer of Warranties. Except for the limited warranties in this section 6 (Limited Warranties), to the maximum extent permitted by law, VMware, for itself and on behalf of its suppliers, disclaims all warranties and conditions whether express, implied, or statutory, including any warranties of merchantability, satisfactory quality, fitness for a particular purpose, title, non-infringement, and any warranty arising from course of dealing or course of performance, relating to the Offerings. Neither VMware nor its suppliers warrant that the Offerings will operate uninterrupted, that Offerings will be free from defects or errors, or that the Offerings will meet (or are designed to meet) Customer's requirements.
7. INDEMNIFICATION.
7.1. Defense and Indemnification. Subject to the remainder of this section 7 (Indemnification), VMware will: (a) defend Customer against any Infringement Claim; and (b) indemnify Customer from amounts finally awarded against Customer by a court of competent jurisdiction or a government agency, or agreed to in a settlement, for the Infringement Claim.
7.2. Requirements. Customer must provide VMware with prompt notice of any Infringement Claim and reasonably cooperate with VMware's requests for assistance. VMware will have sole control of the defense and settlement of the Infringement Claim.
7.3. Exclusions. VMware has no obligation under this section 7 (Indemnification) with respect to an Infringement Claim based on: (a) combination of Indemnified Materials with non-VMware materials; (b) use of an older version of Indemnified Materials when use of a newer version would have avoided the infringement; (c) any modification to Indemnified Materials other than those made by VMware; (d) any Deliverable provided by VMware in accordance with Customer's specifications; (e) any claim relating to open source software or freeware technology that is not embedded by VMware into the Offerings; or (f) any Indemnified Material provided on a no-charge, beta, or evaluation basis.
7.4. Remedies. If Indemnified Materials become, or in VMware's reasonable opinion are likely to become, the subject of an Infringement Claim, VMware must, at its option and expense, either: (a) procure the necessary rights for Customer to keep using the Indemnified Materials; or (b) modify or replace the Indemnified Materials to make them non-infringing. If those remedies are not commercially feasible, VMware may terminate Customer's entitlement to the Indemnified Materials and refund any applicable:
(1) prepaid fees for Cloud Services or Subscription Software, prorated for the remaining portion of the then-current Subscription Term;
(2) fees paid for Perpetual Licenses or Deliverables, less straight-line depreciation over a three-year useful life; and
(3) unused, prepaid fees for discontinued Support Services.
7.5. Sole Remedy. This section 7 (Indemnification) states Customer's sole remedy and VMware's entire liability for Infringement Claims.
8. LIMITATION OF LIABILITY.
8.1. Disclaimer. To the maximum extent permitted by law, neither party will be liable for lost profits or business opportunities, loss of use, loss of data, loss of goodwill, business interruption, or any indirect, special, incidental, or consequential damages under any theory of liability. This limitation will apply regardless of whether a party has been advised of the possibility of those damages and regardless of whether any remedy fails of its essential purpose.
8.2. Cap on Monetary Liability. Each party's aggregate liability under this Agreement will not exceed amounts paid or payable by Customer for the Offering giving rise to the claim in the 12 months prior to the event giving rise to the claim, except for Perpetual Licenses, where each party's aggregate liability will not exceed the license fees paid for the Software giving rise to the claim. VMware's aggregate liability for an Evaluation will not exceed $5,000 USD.
8.3. Exclusions. The limitations of liability in sections 8.1 (Disclaimer) and 8.2 (Cap on Monetary Liability) will not apply to: (a) VMware's indemnification obligations under section 7 (Indemnification); (b) either party's infringement of the other party's Intellectual Property Rights; (c) Customer's violation of section 2 of the Cloud Services Exhibit (Acceptable Use); or (d) any liability that may not be limited by law.
8.4. Further Limitations.VMware's liability for any third-party software embedded into the Software or Cloud Services is subject to this section 8 (Limitation of Liability). VMware's suppliers have no liability under the Agreement, and Customer may not bring claims directly against them. VMware has no liability with respect to any Third-Party Content.
9. DATA USE AND PRIVACY.
9.1. Personal Data. If VMware acts as a processor of Personal Data, VMware will process Personal Data in accordance with the Data Processing Addendum.
9.2. Account, Operations, and Usage Data. VMware collects Customer contact and purchase information to manage Customer's account and to fulfill Orders. VMware also processes: (a) information necessary to facilitate delivery and operation of the Offerings, verify compliance with the terms of the Agreement, invoice, and provide Support Services; and (b) configuration, performance, and usage data to improve VMware products and services, and other analytics purposes as detailed in the Offering-specific Notes. To the extent any of that data includes information that identifies an individual, VMware will process that information in accordance with VMware's Products & Services Privacy Notice available at www.vmware.com/help/privacy.html.
9.3. Support Requests and Professional Services. Customer is responsible for taking steps necessary to protect any sensitive information or Personal Data that it provides to VMware while receiving Support Services or Professional Services. Those steps may include obfuscating or removing such information or working with VMware at the time of submission to limit disclosure.
9.4. Required Disclosures. VMware may disclose Customer Content or Confidential Information if VMware is required by law or by order of a judicial or administrative body of competent jurisdiction (a "Demand"). Unless legally prohibited from doing so, VMware must provide Customer with notice and a copy of the Demand. If the Demand relates to Cloud Services, VMware must (i) inform the relevant authority that VMware is a service provider acting on Customer's behalf and all requests for access to Customer Content should be directed in writing to the contact Customer identifies (or if no contact is timely provided, to Customer's legal department) and (ii) only provide access to Customer Content with Customer's authorization. If Customer requests and at Customer's expense, VMware must take reasonable steps to contest the Demand. If VMware is legally prohibited from notifying Customer of the Demand, VMware must evaluate the validity of the Demand, and, if VMware does not believe the Demand is legal, VMware must challenge the Demand. VMware must limit the scope of any disclosure to the minimum information required to comply with the Demand.
10. OPEN SOURCE SOFTWARE. Open source software is licensed to Customer under the open source software's own applicable license terms, which can be found in either the open source_licenses.txt file accompanying the Offerings, the Documentation, or at www.vmware.com/download/open_source.html. These license terms are consistent with the license granted in the Agreement and may contain additional rights benefiting Customer. The open source license terms take precedence over the Agreement to the extent that the Agreement imposes greater restrictions on Customer than the applicable open source license terms. To the extent the license for any open source software requires VMware to make the corresponding source code and/or modifications (the "Source Files") available to Customer, Customer may obtain a copy of the applicable Source Files at www.vmware.com/download/open_source.html or by sending a written request, with name and address, to: VMware, Inc., 3401 Hillview Avenue, Palo Alto, CA 94304, United States of America. All requests should clearly specify: Open Source Files Request, Attention: General Counsel. This offer to obtain a copy of the Source Files is valid for three years from the date Customer acquires its entitlement to the Offering.
11. MISCELLANEOUS.
11.1. Transfer and Assignment. Customer may not assign the Agreement or any Order without VMware's consent. Once validly assigned, the Agreement will bind and inure to the benefit of the parties and their respective successors and assigns.
11.2. Notice. All notices must be in writing. Notices to Customer will be given: (a) by email to the email address associated with Customer's account, if Customer has subscribed to email notices; or (b) by posting in the VMware customer portal. Legal notices to VMware will be given to VMware, Inc., 3401 Hillview Avenue, Palo Alto, California 94304, United States of America, Attention: Legal Department.
11.3. Waiver. Waiver of a breach of the Agreement will not constitute a waiver of any later breach.
11.4. Severability. If any part of the Agreement is held to be invalid or unenforceable, all remaining provisions will remain in force to the extent feasible to effectuate the intent of the parties.
11.5. Insurance. VMware will carry insurance for the term of the Agreement. VMware's Memorandum of Insurance may be viewed at www.vmware.com/agreements.
11.6. Compliance with Laws. Each party must comply with all applicable laws.
11.7. Export Control. The Offerings are subject to the U.S. Export Administration Regulations (including "deemed export" and "deemed re-export" regulations), and may be subject to the export control laws of other countries. Customer represents and warrants that: (a) Customer and any User, are not, and are not acting on behalf of: (1) any person who is a citizen, national, or resident of, or who is controlled by, the government of any country to which the United States has prohibited export transactions; or (2) any person or entity listed on the U.S. Treasury Department list of Specially Designated Nationals and Blocked Persons, or the U.S. Commerce Department Denied Persons List or Entity List, or any similar applicable designated persons list; (b) Customer, and any User, will not permit the Offerings to be used for any purposes prohibited by law, including any prohibited development, design, manufacture, or production of missiles or nuclear, chemical, or biological weapons; and (c) Customer, and any User, are not subject, either directly or indirectly, to any order issued by any agency of the United States government revoking or denying, in whole or in part, Customer's United States export privileges. Customer must notify VMware promptly if Customer or any User becomes subject to any order of that type.
11.8. Governing Law. The Agreement is governed by the laws of the State of California and U.S. federal laws, if the billing address for Customer's Order is in the United States, and by the laws of Ireland if the billing address for Customer's Order is outside the United States. Conflict of law rules are expressly disclaimed. The United Nations Convention on Contracts for the International Sale of Goods does not apply.
11.9. U.S. Public Sector End User. If Customer is a U.S. Public Sector End User, the U.S. Public Sector Exhibit available at www.vmware.com/agreements supersedes or modifies the referenced provisions of the Agreement.
11.10. Third Party Rights. Other than as expressly stated, the Agreement does not create any rights for any person who is not a party to it. Only persons who are parties to the Agreement may enforce or rely on any of its terms.
11.11. Force Majeure. Except for Customer's payment obligations, neither party will be liable for any delay or failure to perform due to any cause beyond the party's reasonable control, including labor disputes, industrial disturbances, systemic utility failures, acts of nature, pandemics, embargoes, riots, government orders, acts of terrorism, or war.
11.12. No Agency. Nothing in the Agreement is intended to constitute a fiduciary relationship, agency, joint venture, partnership, or trust between the parties. No party has authority to bind the other party.
11.13. Translation. This non-English version of these General Terms is provided only as a courtesy, and Customer's use of the Offerings is governed by the English version of these General Terms, published at www.vmware.com/agreements.
11.14. Counterparts. The Agreement may be signed electronically or in counterparts, in which case each signed copy will be deemed an original as though both signatures appeared on the same document.
11.15. Entire Agreement. The Agreement contains the entire agreement of the parties and supersedes all previous or contemporaneous communications, representations, proposals, commitments, understandings, and agreements, whether written or oral, between the parties regarding its subject matter. The Agreement may be amended only in writing and signed by both parties.
12. DEFINITIONS.
Affiliate means an entity that is directly or indirectly controlled by, is under common control with, or controls that party, where "control" means an ownership, voting, or similar interest representing more than 50% of the total interests outstanding of that entity at that time.
Cloud Service means the VMware cloud service specified in Customer's Order.
Cloud Services Guide means the then-current VMware Cloud Services Guide, available at www.vmware.com/agreements.
Confidential Information means information or materials provided by a party ("Discloser") to the other party ("Recipient") that: (a) is in tangible form and labelled "confidential" or similar; or (b) information which a reasonable person knew or should have known to be confidential. Confidential Information includes: (1) license keys; (2) VMware pricing, product roadmaps or strategic marketing plans; (3) non-public materials relating to the Offerings; and (4) Customer Login Credentials.
Customer means the entity identified in the Order as "Customer".
Customer Content means content uploaded by Customer or any User into the Cloud Service or provided to VMware as a part of Support Services, but does not include Third-Party Content or account information. For purposes of this definition, "content" means any data, including all text, sound, video, or image files, and software (including machine images).
Data Processing Addendum means the then-current VMware Data Processing Addendum, available at www.vmware.com/agreements.
Deliverables means any reports, analyses, scripts, templates, code, or other work results delivered by VMware as specified in the applicable SOW for Professional Services.
Delivery means: (a) for Cloud Services, when VMware emails the Login Credentials to the email address associated with Customer's account; (b) for Software, when VMware notifies Customer of availability of Software for download; (c) for Support Services, upon VMware's issuance of an invoice for those Support Services; (d) for Professional Services, as specified in the applicable SOW; (e) for purchasing program credits, when VMware makes the fund balance available in the applicable portal; and (f) for shipping and delivery of physical objects, Ex Works VMware's regional fulfillment facility (INCOTERMS 2020(TM)).
Documentation means the product documentation describing the features, functionality, and use of the Offerings published and updated by VMware from time to time at docs.vmware.com.
Evaluation means an Offering (or part of an Offering) made available free of charge, for evaluation, trial, proof of concept, or similar purpose.
Exhibits means the exhibits to these General Terms (Software, Cloud Services, Professional Services, U.S. Federal, and VMware Entities) available at www.vmware.com/agreements.
Indemnified Materials means the Cloud Services, Software, and Deliverables.
Infringement Claim means any claim by a third party that the Indemnified Materials infringe any patent, trademark, or copyright of that third party, or misappropriate a trade secret (only to the extent that misappropriation is not a result of Customer's actions).
Intellectual Property Rights means all worldwide intellectual property rights, including copyrights, trademarks, service marks, trade secrets, know-how, inventions, patents, patent applications, moral rights, and all other proprietary rights, whether registered or unregistered.
Login Credentials means any passwords, authentication keys, or security credentials that enable Customer's access to and management of the Cloud Service.
Offering(s) means, collectively, Services or Software.
Offering-specific Notes means the applicable license notes or services notes found in the Product Guide, the Cloud Services Guide, and the Support Services Guide.
Order means an enterprise order, SOW, quote, or other ordering document for Offerings, issued by Customer to VMware or to Customer's VMware authorized reseller and accepted by VMware described in section 2 of these General Terms (Orders and Payments).
Perpetual License means a license to the Software with a perpetual term.
Personal Data is defined in the Data Processing Addendum.
Product Guide means VMware's then-current Product Guide available at www.vmware.com/agreements.
Professional Services means those services described in the applicable SOW.
Service Level Agreement means the then-current version of the applicable service level agreement for a Cloud Service, available at www.vmware.com/agreements.
Service(s) means Cloud Services, Support Services, or Professional Services.
Software means the VMware computer programs that Customer licenses under an Order, together with any related software code VMware provides as part of Support Services and that is not subject to a separate license agreement.
SOW means a written agreement between Customer and VMware containing project-specific details of the Professional Services or VMware online datasheet.
Subscription Software means Software that is licensed for a specific term.
Subscription Term means the period Customer is permitted to use a Cloud Service or Subscription Software, stated in the applicable Order. For any on-demand Cloud Services, Subscription Term means the period during which Customer uses the Cloud Service.
Support Services means VMware support and subscription services that are purchased under an Order or included with purchase of Subscription Software or Cloud Services.
Support Services Guide means VMware's then-current Support Services Guide, available at www.vmware.com/agreements.
Tax means any sales, consumption, VAT, GST, use, gross receipts, business and occupation, withholding, and other taxes (other than taxes on VMware income), export and import fees, customs duties, and similar fees imposed by any government or other authority.
Third-Party Agent means a third party delivering information technology services to Customer under a contract with Customer.
Third-Party Content means content provided by a third party that interoperates with a Cloud Service, but that is not part of the Cloud Service. Third-Party Content is optional and is subject to the third-party terms accompanying the Third-Party Content.
U.S. Public Sector End User means a U.S. Federal End User or a U.S. State or Local Government End User, as those terms are defined in the U.S. Public Sector Exhibit.
User means an employee, contractor, or Third-Party Agent that Customer authorizes to use the Offerings as permitted under the Agreement or under Customer's Login Credentials.
VMware means VMware, Inc., a Delaware corporation, if the billing address for the Order is in the United States, or VMware International Unlimited Company, a company organized and existing under the laws of Ireland, if the billing address for the Order is outside the United States, except if the billing address for the Order is in the United Kingdom, Australia, or New Zealand or the Pacific Islands, in which case VMware means the applicable entity identified in the VMware Entities Exhibit found at www.vmware.com/agreements.