VMWARE END USER LICENSE AGREEMENT
THE TERMS OF THIS END USER LICENSE AGREEMENT (“EULA”) GOVERN YOUR USE OFTHE SOFTWARE, REGARDLESS OF ANY TERMS THAT MAY APPEAR DURING THEINSTALLATION OF THE SOFTWARE.
BY DOWNLOADING, DEPLOYING, OR USING THE SOFTWARE, YOU AGREE TO BE BOUND BYTHE TERMS OF THIS EULA. IF YOU DO NOT AGREE TO THE TERMS OF THIS EULA, YOU MUSTNOT DOWNLOAD, DEPLOY, OR USE THE SOFTWARE, AND YOU MUST DELETE OR RETURN THEUNUSED SOFTWARE TO US OR THE VMWARE CHANNEL PARTNER FROM WHICH YOUACQUIRED IT WITHIN THIRTY (30) DAYS OF ITS ACQUISITION AND REQUEST A REFUND OF THELICENSE FEE, IF ANY, THAT YOU PAID FOR THE SOFTWARE.
EVALUATION LICENSE.
If you license the Software for evaluation purposes (an “Evaluation License”), youruse of the Software is only permitted for a period of thirty (30) days (unless we specify otherwise), and you maynot use the Software with production data. Notwithstanding any other provision in this EULA, an EvaluationLicense of the Software is provided “AS IS” without indemnifi cation, support or warranty of any kind, expressor implied.
1. LICENSE GRANT.
1.1. General License Grant.
We grant you a non-exclusive, non-transferable (except as set forth in Section12.1 (Transfers; Assignment)) license to deploy the Software within the Territory and to use the Software and theDocumentation during the term of the license, solely for your internal business operations, and subject to theprovisions of the Product Guide. Unless otherwise set forth in the Order, licenses granted to you will be for useof object code only and will commence on Delivery.
1.2. Users and Third-Party Agents.
Under the License granted to you in Section 1.1 (General License Grant),you may permit your Users to use the Software, and you may permit Third-Party Agents to deploy and use theSoftware on your behalf for the sole purpose of delivering services to you. You will be responsible for yourUsers’ and Third-Party Agents’ compliance with this EULA, and any breach of this EULA by a User or Third-Party Agent will be deemed to be a breach by you.
1.3. Copying Permitted.
You may copy the Software and Documentation as necessary to deploy and use thenumber of copies licensed, but otherwise for archival purposes only.
1.4. Benchmarking.
You may use the Software to conduct internal performance testing and benchmarkingstudies. You may only publish or distribute the results of the studies to third parties if we have reviewed andapproved of the methodology, assumptions, and other
parameters of the study prior to publication anddistribution. Please contact us at
benchmark@vmware.com
to request review and approval.
1.5. Services for Affi liates.
You may use the Software to deliver IT services to your Affi liates, provided thatthose Affi liates may not directly use the Software.
1.6. Open Source Software.
Open Source Software is licensed to you under the OSS’s own applicable licenseterms, which can be found in either the open_source_licenses.txt fi le accompanying the Software, theDocumentation, or as applicable the corresponding Source Files (as defi ned below) for the OSS available at
www.vmware.com/download/open_source.html
. These OSS license terms are consistent with the license grantedin Section 1 (License Grant) and may contain additional rights benefi ting you. The OSS license terms takeprecedence over this EULA to the extent that this EULA imposes greater restrictions on you than the applicableOSS license terms. To the extent the license for any Open Source Software requires us to make available to youthe corresponding source code and/or modifi cations
(the “Source Files”)
, you may obtain a copy of theapplicable Source Files from our website at
www.vmware.com/download/open_source.html
or by sending awritten request, with your 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: GeneralCounsel. This offer to obtain a copy of the Source Files is valid for three years from the date you acquired theSoftware.
2. RESTRICTIONS; OWNERSHIP.
2.1. License Restrictions.
Without our prior written consent, you must not, and must not allow any third partyto: (a) use the Software in an application services provider, service bureau, hosted IT services, or similar capacityfor third parties, except as specifi ed in Section 1.5 (Services for Affi liates); (b) disclose to any third party theresults of any benchmarking testing or comparative or competitive analyses of the Software done by you or onyour behalf, except as specifi ed in Section 1.4 (Benchmarking); (c) make available the Software in any
form toany third parties, except as specifi ed in Section 1.2 (Users and Third-Party Agents); (d) transfer or sublicense theSoftware or Documentation to an Affi liate or any third party, except as expressly permitted in Section 12.1(Transfers; Assignment); (e) use the Software in confl ict with the terms and restrictions of the Software’slicensing model and other requirements specifi ed in the Product Guide and/or the applicable Order; (f) except tothe extent permitted by applicable mandatory law, modify, translate, enhance, or create derivative works from theSoftware, or reverse engineer, decompile, or otherwise attempt to derive source code from the Software, exceptas specifi ed in Section 2.2 (Decompilation); (g) remove any copyright or other proprietary notices on or in anycopies of the Software; or (h) violate or circumvent any technological restrictions within the Software orspecifi ed in this EULA, such as via software or services.
2.2. Decompilation.
Notwithstanding Section 2.1, you may decompile the Software to the extent the laws ofthe Territory give you the express right to do so to obtain information necessary to render the Softwareinteroperable with other software; provided, however, (a) you must fi rst request that information from us, (b) youmust provide all reasonably requested information to allow us to assess your claim, and (c) we may, in ourdiscretion, provide that interoperability information to you, impose reasonable conditions (including a reasonablefee) on
that use of the Software, or offer to provide alternatives to reduce any potential adverse impact on ourproprietary rights in the Software.
2.3. Ownership.
The Software and Documentation (including all copies and portions), all improvements,enhancements, modifi cations and derivative works of the Software or Documentation, and all IntellectualProperty Rights in the Software and Documentation, are and will
remain the sole and exclusive property ofVMware and its licensors. Your rights to deploy and use the Software and Documentation are limited to thoseexpressly granted in this EULA and any applicable Order. No other rights are implied with respect to theSoftware, Documentation, or any related Intellectual Property Rights. You are not authorized to use (and mustnot permit any third party to use) the
Software or Documentation except as expressly authorized by this EULAor the applicable Order. We reserve all rights not expressly granted to you. We do not transfer any ownershiprights in any Software or Documentation.
2.4. Guest Operating Systems.
Some Software allows Guest Operating Systems and application programs torun on a computer system. You acknowledge that you are responsible for obtaining and complying with anylicenses necessary to operate any third-party software.
3. ORDER.
Your Order is subject to this EULA. No Orders are binding on us until we accept them. Orders forSoftware are deemed accepted upon Delivery of the Software included in the Order. Purchase orders issued to usdo not have to be signed by you to be valid and enforceable. All Orders are non-refundable and non-cancellableexcept as expressly provided in this EULA. Any refunds to which you are entitled under this EULA will beremitted to you or to the VMware channel partner from which you purchased your Software license.
4. RECORDS AND AUDIT.
You must maintain accurate records of your use of the Software suffi cient toshow compliance with the terms of this EULA. We have the right to audit those records and your use of theSoftware to confi rm compliance with the terms of this EULA. That
audit is subject to reasonable prior notice andwill not unreasonably interfere with your business activities. We may conduct no more than one (1) audit in anytwelve (12) month period, and only during normal business hours. You must reasonably cooperate with us and
any third-party auditor and you must, without prejudice to our other rights, address any non-complianceidentifi ed by the audit by paying
additional fees. You must reimburse us for all reasonable costs of the audit if theaudit reveals either underpayment of more than fi ve (5%) percent of the Software fees payable by you for theperiod audited, or that you have materially failed to maintain accurate records of Software use.
5. SUPPORT SERVICES.
Support and subscription services for the Software
(“Support Services”)
areprovided pursuant to the Support Services Terms and are not subject to this EULA. You have no rights to anyupdates, upgrades or extensions or enhancements to the Software unless you separately purchase SupportServices or they are included with your purchase of a license to the Software as provided in the Product Guide.
6. WARRANTIES.
6.1. Software Warranty: Duration and Remedy.
We warrant that the Software will, for a period of ninety(90) days following notice of availability for electronic download or delivery
(“Warranty Period”)
,substantially conform to the applicable Documentation, provided that the Software: (a) has been properlyinstalled and used at all times in accordance with the applicable Documentation; and (b) has not been modifi ed oradded to by persons other than us or our authorized representative. We will, at our own expense and as our soleobligation and your exclusive remedy for any breach of this warranty, either replace the Software or correct anyreproducible error in the Software reported by you in writing during the Warranty Period. If we determine thatwe are unable to correct the error or replace the Software, we will refund the fees paid for that Software, and theLicense for that Software will terminate.
6.2. Disclaimer of Warranty.
OTHER THAN THE LIMITED WARRANTY IN SECTION 6.1, TO THEMAXIMUM EXTENT PERMITTED BY LAW, WE, FOR OURSELVES AND ON BEHALF OF OURSUPPLIERS, DISCLAIM ALL WARRANTIES WHETHER EXPRESS, IMPLIED, OR STATUTORY,INCLUDING ANY WARRANTIES OF MERCHANTABILITY, SATISFACTORY QUALITY, FITNESS FORA PARTICULAR PURPOSE, TITLE, AND NON-INFRINGEMENT, AND ANY WARRANTY ARISINGFROM COURSE OF DEALING OR COURSE OF PERFORMANCE, RELATING TO THE SOFTWARE ANDDOCUMENTATION. NEITHER WE NOR OUR SUPPLIERS WARRANT THAT THE SOFTWARE WILLOPERATE UNINTERRUPTED, THAT IT WILL BE FREE FROM DEFECTS OR ERRORS, OR THAT ITWILL MEET (OR IS DESIGNED TO MEET) YOUR BUSINESS REQUIREMENTS.
7. INTELLECTUAL PROPERTY INDEMNIFICATION.
7.1. Defense and Indemnifi cation.
Subject to the remainder of this Section 7, we will: (a) defend you againstany Infringement Claim; and (b) indemnify you from all fi nes, damages, and costs fi nally awarded against youby a court of competent jurisdiction or a government agency, or agreed to in a settlement, with regard to anyInfringement Claim. These obligations are applicable only if you: (i) provide us with notice of the InfringementClaim within a reasonable period after learning of the claim (provided that any delay in providing the notice willrelieve us of our indemnifi cation obligations only to the extent that the delay prejudices us); (ii) allow us solecontrol over the defense and settlement of the Infringement Claim; and (iii) reasonably cooperate in response toour requests for assistance with regard to the Infringement Claim. We will not, without your prior writtenconsent, which may not be unreasonably withheld, conditioned, or delayed,
enter into any settlement of anyInfringement Claim that obligates you to admit any liability or to pay any unreimbursed amounts to the claimant.You may not settle or compromise any Infringement Claim without our prior written consent.
7.2. Remedies.
If the Software becomes, or in our opinion is likely to become, the subject of an InfringementClaim, we will, at our option and
expense: (a) procure the rights necessary for you to keep using the Software; or(b) modify or replace the Software to make it noninfringing; or (c) terminate the License to the affected Softwareand discontinue the related Support Services, and, upon your certifi ed deletion of the affected Software, refund:(i) for a Perpetual License, the fees paid for the License to the affected Software, less straight-line depreciationover a three (3) year useful life beginning on the date of Delivery of the Software and any unused, prepaid feesfor Support Services, or (ii) for Subscription Software, any prepaid fees, prorated for the remaining portion of thethen-current Subscription Term.
7.3. Exclusions.
We will have no obligation under this Section 7 or otherwise with respect to any InfringementClaim based on: (a) combination of the Software with non-VMware products or content; (b) use for a purpose orin a manner for which the Software was not designed; (c) use of any older version of the Software when use of anewer version would have avoided the infringement; (d) any modifi cation to the Software other than those madeby us or with our express written approval; (e) any claim that relates to open source software or freewaretechnology or any derivative or other adaptations thereof that is not embedded by us into the Software; or (f) anySoftware provided on a no charge, beta, or evaluation basis.
7.4. TO THE EXTENT PERMITTED BY APPLICABLE LAW, THIS SECTION 7 STATES YOUR SOLEAND EXCLUSIVE REMEDY AND OUR ENTIRE LIABILITY FOR ANY INFRINGEMENT CLAIMS.
8. LIMITATION OF LIABILITY.
8.1. Disclaimer.
TO THE MAXIMUM EXTENT PERMITTED BY LAW, IN NO EVENT WILL WE BELIABLE FOR ANY LOST PROFITS OR BUSINESS OPPORTUNITIES, LOSS OF USE, LOSS OFCONTENT OR DATA FOR ANY REASON (INCLUDING POWER OUTAGES, SYSTEM FAILURES, OROTHER INTERRUPTIONS), LOSS OF REVENUE, LOSS OF GOODWILL, BUSINESS INTERRUPTION,OR FOR ANY INDIRECT, SPECIAL, INCIDENTAL, OR CONSEQUENTIAL DAMAGES UNDER ANYTHEORY OF LIABILITY, WHETHER BASED IN CONTRACT, TORT, NEGLIGENCE, PRODUCTLIABILITY, OR OTHERWISE. THIS LIMITATION WILL APPLY REGARDLESS OF WHETHER A PARTYHAS BEEN ADVISED OF THE POSSIBILITY OF THOSE DAMAGES AND REGARDLESS OFWHETHER ANY REMEDY FAILS OF ITS ESSENTIAL PURPOSE. BECAUSE SOME JURISDICTIONSDO NOT ALLOW THE EXCLUSION OR LIMITATION OF LIABILITY FOR CONSEQUENTIAL ORINCIDENTAL DAMAGES, THE FOREGOING LIMITATION MAY NOT APPLY.
8.2. Cap on Monetary Liability.
OUR LIABILITY FOR ANY CLAIM UNDER THIS EULA WILL NOTEXCEED THE GREATER OF THE LICENSE FEES YOU PAID FOR THE SOFTWARE GIVING RISE TOTHE CLAIM OR $5000.
8.3. Exclusions.
THE LIMITATION OF LIABILITY IN SECTIONS 8.1 AND 8.2 WILL NOT APPLY TO (i)OUR INDEMNIFICATION OBLIGATIONS UNDER SECTION 7 OF THIS EULA OR (ii) ANY LIABILITYWHICH MAY NOT BE EXCLUDED BY LAW.
8.4. Further Limitations.
Our suppliers have no liability of any kind under this EULA. You may not bring aclaim directly against any of them under this EULA. Our liability with respect to any third-party softwareembedded in the Software is subject to this Section 8. You may not bring a claim under this EULA more thaneighteen (18) months after the cause of action arises.
9. TERMINATION.
9.1. EULA Term.
The term of this EULA begins on Delivery of the Software and continues until this EULA isterminated in accordance with this Section 9.
9.3. Termination for Cause.
We may terminate this EULA effective immediately upon written notice to youif: (a) any payment due under this
EULA is not received within ten (10) days after receiving our written noticethat payment is past due; (b) you materially breach any other provision of this EULA and fail to cure withinthirty (30) days after receipt of our written notice of the breach; (c) you materially breach any provision of thisEULA in a manner that cannot be cured; or (d) you terminate or suspend your business.
9.3. Termination for Insolvency.
We may terminate this EULA effective immediately upon written notice toyou if you become insolvent, admit in writing your inability to pay your debts as they mature, make anassignment for the benefi t of creditors, become subject to control of a trustee, receiver or similar authority, orbecome subject to any bankruptcy or insolvency proceeding.
9.4. Effect of Termination.
Upon termination of this EULA: (a) all Licenses to the Software granted to youunder this EULA will immediately
end; (b) you must stop all use of the Software and return to us or certifydestruction of the Software and License Keys (including copies), and (c) you must return or, if we request,destroy, any of our or our suppliers’ Confi dential Information in your possession or under your control (otherthan information that must be retained pursuant to law). Any provision that, by its nature and context is intendedto survive termination or expiration of the EULA, will survive, including Sections 1.6 (Open Source Software), 2(Restrictions; Ownership), 4 (Records and Audit), 6.2 (Software Disclaimer of Warranty), 8 (Limitation ofLiability), 9 (Termination), 10 (Confi dential Information), 12 (General), 13 (Defi nitions), and 14 (TermsApplicable to U.S. Federal End Users). Except as otherwise expressly provided in this EULA or as required byapplicable law or regulation, termination of this EULA will not entitle you to any refunds, credits, or exchanges.
10. CONFIDENTIAL INFORMATION.
10.1. Protection.
Either party may use Confi dential Information of the other party disclosed to it in connectionwith this EULA to exercise its rights and perform its obligations under this EULA or as otherwise permitted bythis EULA. The Recipient will disclose the Discloser’s Confi dential Information only to the Recipient’semployees or contractors who have a need to know the Confi dential Information for purposes of this EULA andwho are under a duty of confi dentiality no less restrictive than as specifi ed in this Section 10. Recipient willprotect the Discloser’s Confi dential Information from unauthorized use, access, or disclosure in the same manneras the Recipient protects its own confi dential or proprietary information of a similar nature but with no less thanreasonable care.
10.2. Exceptions.
The Recipient’s obligations under Section 10.1 with respect to any of the Discloser’sConfi dential Information will terminate if the Recipient can demonstrate that the information: (a) was alreadyrightfully known to the Recipient at the time of disclosure by the Discloser without any obligation ofconfi dentiality; (b) was disclosed to the Recipient by a third party who had the right to make that disclosurewithout any confi dentiality restrictions; (c) is, or through no fault of the Recipient has become, generallyavailable to the public; or (d) was independently developed by Recipient without access to or use of Discloser’sConfi dential Information. In addition, the Recipient will be allowed to disclose Confi dential Information to theextent that disclosure is required by law or by order of a court or similar judicial
or administrative body ofcompetent jurisdiction, provided that the Recipient notifi es the Discloser of the required disclosure promptly andin writing and cooperates with the Discloser, at the Discloser’s request and expense, in any lawful action tocontest or limit the scope of the required disclosure.
10.3. Injunctive Relief.
Nothing in this EULA limits either party’s ability to seek equitable relief.
11. ACCOUNT, OPERATIONS AND USAGE DATA.
We collect your contact information and informationabout your purchase to manage your account and fulfi ll your Orders. We also process (a) information necessaryto facilitate the delivery of the Software, including verifying compliance with the terms of this EULA, invoicing,and providing Support Services, and (b) Software confi guration, performance, and usage data for the purposes ofimproving VMware products and services and user experience, and other analytics purposes as set forth in theProduct Guide. To the extent any of that data includes information which identifi es an individual, we will processthat information in accordance with VMware’s Products & Services Privacy Notice available at
https://www.vmware.com/help/privacy.html
.
12. GENERAL.
12.1. Transfers; Assignment.
Except to the extent transfer may not legally be restricted or as permitted by ourtransfer and assignment policies and in all cases following the process set forth at
www.vmware.com/support/policies/licensingpolicies.html
, you must not assign this EULA, any Order, or anyright or obligation pursuant to this EULA, or delegate any performance under this EULA, without our priorwritten consent, which consent will not be unreasonably withheld, conditioned, or delayed. Any other attemptedassignment or transfer by you will be void. We may use our Affi liates or other suppliers to provide services to
you, provided that we remain responsible to you for the performance of the services.
12.2. Notices.
Any notice by us to you under this EULA will be given: (a) by email to the email addressassociated with your account, if you have subscribed to this method of receiving notices; or (b) by posting in theVMware customer portal. You must direct legal notices or other correspondence to VMware, Inc., 3401 HillviewAvenue, Palo Alto, California 94304, United States of America, Attention: Legal Department.
12.3. Waiver.
Waiver of a breach of any provision of this EULA will not constitute a waiver of any laterbreach of that provision, or waiver of a breach of any other provision.
12.4. Severability.
If any part of this EULA is held to be invalid or unenforceable, all remaining provisionswill remain in force to the extent feasible to effectuate the intent of the parties.
12.5. Compliance with Laws.
Each party must comply with all laws applicable to the actions contemplated bythis EULA.
12.6. Export Control; Government Regulations.
You acknowledge that the Software is provided subject tothe U.S. Export Administration Regulations, may be subject to the export control laws of the applicable territory,and that diversion contrary to applicable export control laws is prohibited. You represent that (1) you are not, andare not acting on behalf of, (a) any person who is a citizen, national, or resident of, or who is controlled by thegovernment of any country to which the United States has prohibited export transactions; or (b) any person orentity listed on the U.S. Treasury Department list of Specially Designated Nationals and Blocked Persons, or theU.S. Commerce Department Denied Persons List or Entity List; and (2) you will not permit the Software to beused for, any purposes prohibited by law, including, any prohibited development, design, manufacture orproduction of missiles or nuclear, chemical or biological weapons. The Software and Documentation are deemedto be “commercial computer software” and “commercial computer software documentation”,
respectively,pursuant to Defense Federal Acquisition Regulation Supplement
(“DFARS”)
Section 227.7202 and FederalAcquisition Regulation
(“FAR”)
Section 12.212(b), as applicable. Any use, modifi cation, reproduction, release,performing, displaying or disclosing of the Software and Documentation by or for the U.S. Federal Governmentshall be governed solely by the terms and conditions of this
EULA.
12.7. Defi nition. Construction.
The headings of sections of this EULA are for convenience and are not to beused in interpreting this EULA. As used in
this EULA, the word “including” means “including but not limitedto”.
12.8. Language.
This EULA is in English, and the English language version governs any confl ict with atranslation into any other language.
12.9. Governing Law.
If your billing address is in the United States, this EULA is governed by the laws of theState of California and the federal laws of the United States. If your billing address is outside the United States,this EULA is governed by the laws of Ireland. Confl ict of law rules are expressly disclaimed. The U.N.Convention on Contracts for the International Sale of Goods does not apply.
12.10. Third-Party Rights.
Other than as expressly provided in this EULA, this EULA does not create anyrights for any person who is not a party to it, and only persons who are parties to this EULA may enforce any ofits terms or rely on any exclusion or limitation contained in it.
12.11. Order of Precedence.
In the event of confl ict or inconsistency among the Product Guide, this EULAand the Order, the following descending order of precedence applies unless otherwise set forth in an enterpriselicense agreement: (a) the Product Guide, (b) this EULA and (c) the Order. This EULA supersedes anyconfl icting or additional terms and conditions of any purchase order, acknowledgement or confi rmation, or otherdocument issued by you for or regarding the Software.
12.12. Entire Agreement.
This EULA, together with all accepted Orders and the Product Guide, contains the
entire agreement of the parties with respect to the subject matter of this EULA and supersedes all previous orcontemporaneous communications, representations,
proposals, commitments, understandings and agreements,whether written or oral, between the parties regarding its subject matter. This EULA may be amended only in awriting signed by authorized representatives of both parties.
13. DEFINITIONS.
13.1. “Affi liate”
means, with respect to a party at a given time, an entity that is directly or indirectly controlledby, is under common control with, or controls that party, where “control” means an ownership, voting, or similarinterest representing fi fty percent (50%) or more of the total interests outstanding of that entity.
13.2. “Confi dential Information”
means information or materials provided by one party
(“Discloser”)
to theother party
(“Recipient”)
which is in tangible form and labelled “confi dential” or the like, or information whicha reasonable person knew or should have known to be confi dential. The following information is considered ourConfi dential Information whether or not marked or identifi ed as such: (a) License Keys; (b) informationregarding our pricing, product roadmaps or strategic marketing plans; and (c) non-public materials relating to theSoftware.
13.3. “Delivery”
means either delivery of the physical media (if applicable) or the date you are notifi ed ofavailability for electronic download.
13.4. “Documentation”
means that documentation that we generally provide with the Software, as revised byus from time to time, and which may include end user manuals, operation instructions, installation guides,release notes, and on-line help fi les regarding the use of the Software.
13.5. “Guest Operating Systems”
means instances of third-party operating systems licensed by you, installedin a Virtual Machine, and run using the Software.
13.6. “Infringement Claim”
means any claim by a third party that the Software infringes any patent,trademark or copyright of that third party, or misappropriates a trade secret (but only to the extent that themisappropriation is not a result of your actions) under the laws of: (a) the United States; (b) Canada; (c) theEuropean Economic Area; (d) the United Kingdom; (e) Australia; (f) New Zealand; (g) Japan; or (h) the People’sRepublic of China, to the extent that those countries are part of the Territory for the License.
13.7. “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 allother proprietary rights, whether registered or unregistered.
13.8. “License”
means a license granted under Section 1.1 (General License Grant).
13.9. “License Key”
means a serial number that enables you to activate the Software.
13.10. “License Term”
means the duration of a License as specifi ed in the Order.
13.11. “Open Source Software" or “OSS”
means software components embedded in the Software andprovided under separate license terms, which can be found either in the open_source_licenses.txt fi le (or similarfi le) provided within the Software or at
www.vmware.com/download/open_source.html
.
13.12. “Order”
means a purchase order, enterprise license agreement, or other ordering document forSoftware governed by this EULA, issued by you to us or to your VMware channel partner and is accepted by usas set forth in Section 3 (Order).
13.13. “Perpetual License”
means a License to the Software with a perpetual term.
13.14. “Product Guide”
means the current version of the VMware Product Guide at the time of your Order,which can be found through links at
www.vmware.com/download/eula
.
13.15. “Support Services Terms”
means our then-current support policies, copies of which are posted at
www.vmware.com/support/policies
.
13.16. “Software”
means the VMware computer programs listed on our commercial price list to which youacquire a license under an Order, together with any related software code we provide pursuant to a support andsubscription service contract and that is not subject to a separate license agreement.
13.17. “Subscription Software”
means Software that is licensed for a specifi c term
(“Subscription Term”)
.
13.18. “Territory”
means the country or countries in which you have been invoiced, except as otherwiseprovided in the Product Guide. If the Territory for your Software includes any European Economic Area memberstates or the United Kingdom, you may deploy that Software throughout the European Economic Area and theUnited Kingdom.
13.19. “Third-Party Agent”
means a third party delivering information technology services to you pursuantto a contract with you.
13.20. “U.S. Federal End User”
means any of the following agencies or establishments of the U.S. FederalGovernment: (a) executive departments as defi ned by 5 U.S.C. 101, (b) military departments as defi ned by 5U.S.C. 102, (c) government corporations as defi ned by 5 U.S.C. 103, (d) independent establishments as defi nedby 5 U.S.C. 104, and (e) any establishment in the legislative or judicial branch of the U.S. Federal Government(except the Senate, the House of Representatives, the Architect of the Capitol, and any activities under theArchitect’s direction).
13.21. “User”
means an employee, contractor, or Third-Party Agent that you have authorized to use theSoftware as permitted under this EULA.
13.22. “Virtual Machine”
means a software container that can run its own operating system and executeapplications like a physical machine.
13.23. "VMware”, “We”, or “Us"
means VMware, Inc., a Delaware corporation, if the billing address foryour Order is in the United States, or VMware International Unlimited Company, a company organized andexisting under the laws of Ireland, if the billing address for your Order is outside the United States.
13.24. "You"
means you individually or the legal entity that you represent. If you are entering into the EULAfor an entity, you represent that you have the authority to bind that entity.
14. "TERMS APPLICABLE TO U.S. FEDERAL END USERS
If you are a U.S. Federal End User, thefollowing terms and conditions supersede or modify the referenced provisions of this EULA.
14.1.
Replace the second paragraph of the preamble with the following:
“BY PURCHASING THE SOFTWARE UNDER A CONTRACT OR ORDER THAT INCORPORATES THISEULA, YOU (THE U.S.
FEDERAL END USER) AGREE TO BE BOUND BY THE TERMS OF THISEULA.”
14.2.
Replace the fi rst sentence of Section 1.1 (“General License Grant”) with the following:
“We grant you a non-exclusive, non-transferable (except as set forth in Section 12.1 (Transfers; Assignment)),commercial item license to deploy the Software within the Territory and to use the Software and theDocumentation during the term of the license, solely for your internal business operations, and subject to the
provisions of the Product Guide.”
14.3.
Replace Section 1.5 (“Services for Affi liates”) with “Reserved”.
14.4.
Replace subsection (a) in the fi rst sentence of Section 2.1 (“License Restrictions”) with the following:
“(a) use the Software in an application services provider, service bureau, hosted IT services, or similar capacityfor third parties;”
14.5.
Replace Section 3 (“Order”) with the following:
“Your Order is subject to this EULA. No Orders are binding on us until we accept them, and all Orders mustexpressly incorporate this EULA. Orders for Software are deemed accepted upon Delivery of the Softwareincluded in the Order. Purchase orders issued to us do not have to be signed by you to be valid and enforceableunless required by applicable law. All Orders are non-refundable and non-cancellable except as expresslyprovided in this EULA. Any refunds to which you are entitled under this EULA will be remitted to you or
to theVMware channel partner from which you purchased your Software license.”
14.6.
Replace Section 4 (“Records and Audit”) with the following:
“You must maintain accurate records of your use of the Software suffi cient to show compliance with the terms ofthis EULA. We have the right to audit those records and your use of the Software, at our own expense, toconfi rm compliance with the terms of this EULA. That audit is subject to reasonable prior notice and will notunreasonably interfere with your business activities. We may conduct no more than one (1) audit in any twelve(12) month period, and only during normal business hours. Neither we nor any third-party auditor shall havephysical access to your computing devices in connection with any such audit without your prior written consent.You must reasonably cooperate with us and any third-party auditor. We reserve the right to seek recovery of anyunderpayments revealed by the audit in accordance with 41 U.S.C. chapter 71 (Contract Disputes) and FAR52.233-1 (Disputes) or other applicable agency supplement. No payment obligation shall arise on your behalfuntil the conclusion of the dispute process. If an audit necessitates access to classifi ed information, as that term isdefi ned in the National Industrial Security Program Operating Manual (NISPOM), then the audit will beconducted by auditor(s) possessing a personal security clearance as defi ned in the NISPOM (“PCL”) at theappropriate level. In those
cases, VMware and any third-party auditor will disclose Classifi ed Information onlyto person(s) who both possess a PCL and have a need to know.”
14.7.
Replace Section 7.1 (“Defense and Indemnifi cation”) with the following:
“Subject to the remainder of this Section 7 and 28 U.S.C. 516, we will (a) defend you against an InfringementClaim; and (b) indemnify you from costs and damages fi nally awarded against you by a court of competentjurisdiction or a government agency or agreed to in a settlement approved by us. These obligations are applicableonly if you: (i) provide us with notice of any Infringement Claim within a reasonable period after learning of theclaim (provided that any delay in providing the notice will relieve us of our indemnifi cation obligations only tothe extent that the delay prejudices us); (ii) allow us the opportunity to participate in the claim’s defense andsettlement as provided
in applicable laws, rules, or regulations; and (iii) reasonably cooperate in response to ourrequests for assistance with regard to the Infringement Claim. You must make every effort to permit us toparticipate fully in the defense or settlement of any Infringement Claim; however, we acknowledge that suchparticipation will be under the control of the U.S. Department of Justice."
14.8.
Replace Section 7.2 (“Remedies”) with the following:
“If the Software becomes, or in our opinion is likely to become, the subject of an Infringement Claim, we will, atour option and expense: (a) procure the rights necessary for you to keep using the Software; or (b) modify orreplace the Software to make it non-infringing. If we determine that the foregoing alternatives are not reasonablyavailable, then you agree to terminate the License to the affected Software and discontinue the related Support
Services upon our written request, and, upon your certifi ed deletion of the affected Software, we will refund: (i)for a Perpetual License, the fees paid for the License to the affected Software, less straight-line depreciation overa three (3) year useful life beginning on the date of Delivery of the Software and any unused, prepaid fees forSupport Services, or (ii) for Subscription Software, any prepaid fees, prorated for the remaining portion of thethen-current Subscription Term. Nothing in this Section 7.2 (Remedies) will limit our obligations under Section7.1 (Defense and Indemnifi cation), provided that you replace the allegedly infringing Software upon our makingalternate Software available to you, or that you discontinue using the allegedly infringing Software uponreceiving VMware’s written request to terminate the affected License. The foregoing is subject to the U.S.Federal Government’s right to require continued use of the Software pursuant to 28 U.S.C. 1498. In the event ofsuch continued use, you agree to notify us in writing and undertake at your expense the defense of anyInfringement Claim against you, and we shall have no further indemnifi cation obligation; however, we mayparticipate at our own expense in the defense of any Infringement Claim if the claim is against us.”
14.9.
Replace the last sentence of Section 8.4 (“Further Limitations”) with the following:
“You may not bring a claim under this EULA more than eighteen (18) months after the cause of action arises orsuch longer period as is mandated by 41 U.S.C. chapter 71 (Contract Disputes). Nothing in this Section 8 willimpair the U.S. Federal Government’s right to recover for fraud or crimes arising out of this EULA as permittedunder any applicable federal fraud statute, including the False Claims Act (31 U.S.C. 3729-3733).”
14.10.
Add the following to the beginning of Section 9.2 (“Termination for Cause”):
“Subject to, and to the extent not prohibited by, 41 U.S.C. chapter 71 (Contract Disputes) and FAR 52.233-1(Disputes),”
14.11.
Replace Section 9.3 (“Termination for Insolvency”) with the following:
“
9.3. Termination by You.
You may terminate this EULA in accordance with FAR 52.212-4(l) or FAR 52.212-4(m), if applicable.”
14.12.
Replace Section 12.1 (“Transfers; Assignment”) with the following:
“Except to the extent transfer may not legally be restricted or as permitted by our transfer and assignmentpolicies and in all cases following the process set forth at
www.vmware.com/support/policies/licensingpolicies.html
, you must not assign this EULA, any Order, or anyright or obligation pursuant to this EULA, or delegate any performance under this EULA, without our priorwritten consent, which consent will not be unreasonably withheld, conditioned, or delayed. We may assign ourright to receive payment in accordance with the Assignment of Claims Act (31 U.S.C. 3727) and FAR 52.212-4(b), and we may assign this EULA to the extent not prohibited by the Anti-Assignment Act (41 U.S.C. 15).Subject to the requirements of FAR 42.12 (Novation and Change-of-Name Agreements), you shall recognize oursuccessor in interest following a transfer of our assets or a change in our name. Any other attempted assignmentor transfer by either party will be void. Subject to the foregoing, this EULA will be binding upon and will inureto the benefi t of the parties and their respective successors and assigns. We may use our affi liates or othersuppliers to provide services to you, provided that we remain responsible to you for the performance of theservices.”
14.13.
Replace Section 12.9 (“Governing Law”) with the following:
“This EULA is governed by the applicable federal laws of the United States. The U.N. Convention on Contractsfor the International Sale of Goods does not apply.”
14.14. Add the following to the end of Section 12.10 (“Third-Party Rights”):
“Notwithstanding the foregoing, for any Orders placed with a VMware channel partner, the VMware channel
partner may bring a claim to enforce the terms of this EULA at our request and on our behalf.”
14.15.
Replace Section 12.11 (“Order of Precedence”) with the following:
“12.11.
Product Guide
. The Product Guide is incorporated by reference in this EULA. To the extent that anyterms and conditions in this EULA or in the Product Guide are inconsistent with applicable federal law, theyshall be deemed deleted and unenforceable as applied to your Order. In the event of confl ict or inconsistencyamong the Product Guide and this EULA, the Product Guide shall take precedence unless otherwise provided inan enterprise license agreement. This EULA supersedes any confl icting or additional license terms contained inany purchase order, acknowledgement or onfi rmation, or other document issued by you for or regarding theSoftware.”
14.16.
Replace Section 12.12 (“Entire Agreement”) with the following:
“This EULA and the Product Guide contain the entire agreement of the parties with respect to the subject matterof this EULA and supersede all previous or contemporaneous communications, representations, proposals,commitments, understandings and agreements, whether written or oral, between the parties regarding its subjectmatter. This EULA may be amended only in writing signed by authorized representatives of both parties.”
14.17.
Replace Section 13.1 (“Affi liate”) with “Reserved.”
14.18.
Replace Section 13.12 (“Order”) with the following:
“
‘Order’
means a purchase order, enterprise license agreement, or other ordering document issued by you to usor to your VMware channel partner that references and incorporates this EULA and is accepted by us as set forthin Section 3 (Order).”
14.19.
Replace Section 13.15 (“Support Services Terms”) with the following:
“
‘Support Services Terms’
means our then-current support policies, copies of which are posted at
www.vmware.com/support/policies
, subject to FAR 52.212-4(u) and General Services Acquisition Manual(“GSAM”) 552.232-78 (Commercial Supplier Agreements—Unenforceable Clauses).”
14.20.
Replace Section 13.18 (“Territory”) with the following:
“
'Territory’
means the United States of America, including U.S. Federal Government Facilities located outsideof the United States of America, except as otherwise provided in the Product Guide. For purposes of this section,“U.S. Federal Government Facilities” means buildings that are both 100% owned and controlled by the U.S.Federal Government and includes land, bases, installations, vessels, craft, and ships that are both 100% ownedand controlled by the U.S. Federal Government. In the foregoing sentence, “owned” also includes leasedthroughout the entire term of the Order.”
14.21.
Replace Section 13.23 (“VMware,” “We,” or “Us”) with the following:
“‘VMware,’ ‘We,’ or ‘Us’
means VMware, Inc., a Delaware corporation.”