PIVOTAL SOFTWARE EVALUATION AGREEMENT

IMPORTANT: PLEASE READ THIS AGREEMENT CAREFULLY BEFORE INSTALLING OR USING THE EVALUATION SOFTWARE IN YOUR SERVICE OFFERING ACCOUNT. BY SIGNING THIS DOCUMENT OR OTHERWISE USING OR ACCESSING THE EVALUATION SOFTWARE, YOU ACCEPT AND AGREE TO BE BOUND BY THE TERMS AND CONDITIONS IN THIS EVALUATION END USER LICENSE AGREEMENT (EVALUATION AGREEMENT). PIVOTAL GRANTS YOU ACCESS TO THE EVALUATION SOFTWARE ONLY IF YOU ACCEPT THE TERMS AND CONDITIONS OF THIS EVALUATION AGREEMENT. IF YOU ARE ENTERING INTO THIS EVALUATION AGREEMENT ON BEHALF OF A COMPANY OR OTHER LEGAL ENTITY, YOU REPRESENT THAT YOU HAVE THE AUTHORITY TO BIND SUCH ENTITY TO THIS EVALUATION AGREEMENT, IN WHICH CASE THE TERMS YOU, OR YOUR SHALL REFER TO SUCH ENTITY. IF YOU DO NOT HAVE SUCH AUTHORITY, OR IF YOU DO NOT AGREE WITH THESE TERMS AND CONDITIONS, YOU MAY NOT ACCESS OR USE THE EVALUATION SOFTWARE.

This Evaluation Agreement is an agreement to license Evaluation Software between you (the individual and any entity for which you are acting, and your permitted successors and assigns) and Pivotal (meaning (a) Pivotal Software, Inc., if you are located in the United States; (b) the local Pivotal sales subsidiary, if you are located in a country outside the United States in which Pivotal has a local sales subsidiary; or (c) Pivotal Software International, if you are located in a country outside the United States in which Pivotal does not have a local sales subsidiary (in each case, referred to herein as "Pivotal").) In the event you have separately procured Evaluation Software from Pivotal (or its Distributor), you agree that notwithstanding any other signed or accepted licensing terms previously agreed to, these terms govern for purposes of deployment via the Service Offering.

  1. GRANT AND USE RIGHTS FOR EVALUATION SOFTWARE
    1. Evaluation License Grant. Subject to your compliance with this Evaluation Agreement and the Service Offering Terms, Pivotal grants you a non-exclusive, non-transferable, non-sublicensable, temporary and limited license to use Software and Documentation solely for non-production, internal, test and demonstration purposes in the quantities and in accordance with any licensing units described in the applicable Order, during the Evaluation Term, in the Territory, solely on the Service Offering as limited herein (including limitations of time and resources).
    2. License Restrictions. You must not, and must not allow any third party to: (a) use the Evaluation Software on any infrastructure other than the Service Offering; (b) use the Evaluation Software or the Service Offering to avoid incurring fees or exceeding any limitations agreed to in an Order; (c) use the Evaluation Software in an application services provider, service bureau, or similar capacity; (d) disclose to any third party the results of any benchmark testing or comparative or competitive analyses of the Evaluation Software without Pivotal's prior written approval; (e) except as otherwise expressly permitted by Pivotal, make the Evaluation Software available for access or use to any third party; (f) transfer or sublicense the Evaluation Software or Documentation (other than to an Affiliate, subject to Pivotal's prior written approval); (g) use the Evaluation Software in conflict with this Evaluation Agreement; (h) except as permitted by applicable mandatory law or third party license, copy, modify, translate, enhance, or create derivative works from the Evaluation Software, or reverse assemble or disassemble, reverse engineer, decompile or otherwise attempt to derive source code from the Evaluation Software; (i) remove any copyright or other proprietary notices on or in the Evaluation Software; or (j) violate or circumvent any technological restrictions within the Evaluation Software, the Service Offering, or as otherwise specified in this Evaluation Agreement.
    3. Open Source Software. OSS is licensed to you under the applicable OSS license terms (a) located in the open_source_licenses.txt file included in or along with the Evaluation Software, or the corresponding source files available at network.pivotal.io/open-source, and/or (b) available by sending a written request, with your name and address, to: Pivotal Software, Inc., Open Source Files Request, Attn: General Counsel, 875 Howard Street, 5th Floor, San Francisco, CA 94103. This offer to obtain a copy of the licenses/source files is valid for three (3) years from the date you first acquired access to Evaluation Software. You are responsible for complying with all applicable OSS terms and conditions, which shall take precedence over this Evaluation Agreement, solely with respect to such OSS.
  1. OWNERSHIP OF EVALUATION SOFTWARE. Pivotal and its licensors own and retain all right, title and interest in and to the Evaluation Software, including all improvements, enhancements, modifications and derivative works thereof, all Intellectual Property Rights therein, and all rights not expressly granted to you in this Evaluation Agreement. This includes any information that we collect and analyze in connection with the Evaluation Software, such as usage patterns, user feedback and other information to improve and evolve our products and services offerings. Your rights to use the Evaluation Software are limited to those expressly granted in this Evaluation Agreement. No other rights with respect to the Software or any related Intellectual Property Rights are implied.
  1. YOUR CONTENT
    1. Access to your Content. You are solely responsible for your Content. The Evaluation Software may perform operations on, and distribute, your Content. You and your authorized Users retain all of your respective rights, title and interest in and to your Content. Our rights to access and use your Content are limited to those expressly granted in this Evaluation Agreement. You are responsible for installation, configuration and secure connectivity to the Evaluation Software and the Service Offering.
    2. Security. You are responsible for protecting the security of your Content, including any access you might provide to your Content by your employees, customers or other third parties. You will properly configure and use the Evaluation Software so that it is suitable for your use. You will take and maintain appropriate security, protection and backup for your Content, which may include the use of encryption technology to protect Content from unauthorized access. You will protect the privacy of any of your User's data (including by implementation of a privacy policy that complies with applicable law), provide any necessary notices to your Users, and obtain any legally-required consents from your Users concerning your use of the Evaluation Software. You are responsible for complying with any laws or regulations applicable to your Content and you understand that the Evaluation Software is not intended for data regulated by the Health Insurance Portability and Accountability Act ("HIPAA""). You are solely responsible for any consequences if your Content is inadvertently exposed or lost, whether or not you have encrypted, backed up or otherwise taken steps required by the relevant laws or regulations to protect your Content.
  1. ACCEPTABLE USE
    1. Content Restrictions. You will not, and you will take steps to ensure that your authorized Users do not, post Content that:
      1. may create a risk of harm, loss, physical or mental injury, emotional distress, death, disability, disfigurement, or physical or mental illness to an authorized User, or any other person or entity;
      2. may create a risk of any other loss or damage to any person or property, including viruses and similar elements;
      3. may constitute a violation of the Service Offering Terms;
      4. may constitute or contribute to a crime or tort;
      5. contains any information or content that is unlawful, harmful, abusive, racially or ethnically offensive, defamatory, infringing, invasive of personal privacy or publicity rights, harassing, humiliating to other people (publicly or otherwise), libelous, threatening, or otherwise objectionable;
      6. contains any information or content that is illegal, or in violation of applicable data privacy and protection laws, rules and regulations; or
      7. contains any information or content that you do not have a right to make available under any law or under contractual or fiduciary relationships.
    2. You represent and warrant that the Content does not and will not violate third-party rights of any kind, including without limitation any Intellectual Property Rights, and rights of publicity and privacy. You shall ensure that your use of the Evaluation Software complies at all times with your privacy policies and all applicable local, state, federal and international laws and regulations, including any encryption requirements.
    3. Violations of Acceptable Use. If you become aware that any of your Content or your User's use of your Content violates this Evaluation Agreement or the Service Offering Terms, you shall immediately suspend or remove the applicable Content and/or suspend the User's access. If you fail to do so, Pivotal may require you to do so. If you fail to comply with our request, Pivotal may suspend your account or disable the applicable Content until you comply with our request.
  1. SUPPORT SERVICES. Pivotal does not provide support services in connection with the Evaluation Software.
  1. PAYMENT AND TAXES
    1. Terms. You shall pay to the Service Offering service provider all fees and Taxes in the amount, currency and through the process specified at the time you obtain a license to the Evaluation Software or as described in the Service Offering for access to the Evaluation Software and the Service Offering in accordance with the Service Offering Terms and Order. Pivotal is not required to provide any Evaluation Software to you until you provide all information Pivotal requires for processing your request. Pivotal may suspend use or terminate access to the Evaluation Software while any payment is delinquent.
    2. Refund. Fees you pay are nonrefundable, and in no event will Pivotal be liable for any refund of fees for access to the Service Offering (which are solely at the Service Offering service provider's discretion).
    3. Taxes. Fees are exclusive of indirect taxes, and you shall pay or reimburse your Service Offering service provider (on behalf of Pivotal) for all fees and taxes arising out of transactions contemplated by this Evaluation Agreement. You may not withhold any portion of payments due under this Evaluation Agreement. You hereby confirm that Pivotal can rely on the name and address you provide to use when you sign up for the Service Offering or in connection with your payment method as being the place of supply for sales tax and income tax purposes or as being the place of supply for VAT purposes where you have established your business.
  1. TERM AND TERMINATION; SUSPENSION
    1. Term. This Evaluation Agreement and your access to the Evaluation Software will commence when you click an I Accept button or check box presented with these terms or, if earlier, when you use any of the Evaluation Software (the "Effective Date"), and will be effective through the Evaluation Term, unless terminated earlier as permitted under this Section 7.
    2. Termination for Convenience. This Evaluation Agreement and any Order(s) may be terminated effective immediately by Pivotal or You for any or no reason and at any time by providing notice of termination to the other party.
    3. Survival. All provisions of this Evaluation Agreement will survive any termination or expiration if by its nature and context it is intended to survive. Termination of the Evaluation Agreement will not entitle you to any refunds, credits, or exchanges, and you will be liable for all monthly billing fees for the remainder of the Evaluation Term after termination, as well as all usage and other fees incurred up to the termination date.
    4. Suspension
      1. General. Pivotal may temporarily suspend your use of the Evaluation Software if Pivotal determines in its sole discretion:
        1. you or your use of the Evaluation Software is in breach of this Evaluation Agreement or the Service Offering Terms, including but not limited to any violation of the acceptable use requirements in Section 4;
        2. your use of the Evaluation Software poses a security risk to the Evaluation Software, the Service Offering or others using the Evaluation Software or the Service Offering, or interferes with, disrupts, damages, or accesses in an unauthorized manner the servers, networks, or other properties or services of any other party including without limitation Pivotal, the Service Offering service provider, or any mobile communications carrier; or
        3. suspension is required pursuant to our receipt of a subpoena, court order or other request by a law enforcement agency.
    5. Effect of Termination or Suspension. Upon the termination or suspension of this Evaluation Agreement for any reason: (a) all rights and licenses granted to you under this Evaluation Agreement, including your ability to access any of your Content, will immediately terminate; and (b) you must promptly discontinue all access or use of the Evaluation Software and delete or destroy any of our Confidential Information, including by removing the Evaluation Software from your Service Offering account.
    6. Suspension or Termination by Service Provider. The Service Offering Terms may allow the Service Offering service provider to suspend and terminate your Service Offering, in which case your Evaluation Software use and access rights under this Evaluation Agreement will also terminate.
  1. USE OF SERVICE OFFERING You will comply with the Service Offering Terms and are responsible for your Users and all use of the Evaluation Software and the Service Offering, and Pivotal is not responsible for any aspect of the Service Offering.
  1. INDEMNIFICATION. You agree to indemnify, defend, release, and hold Pivotal, its parents, subsidiaries, affiliates, officers, directors, agents, partners, employees and licensors harmless from any Claims, liabilities, demands, losses, damages, costs, expenses and fees (including reasonable attorneys' fees) that such parties may incur as a result of or arising from: (1) your (or anyone using your account, your computer or your instance of Evaluation Software) access to or use of the Evaluation Software or violation or breach of this Evaluation Agreement; (2) your Content; (3) any infringement or misappropriation of any Intellectual Property Rights by you, your customers or your suppliers; (4) violation of laws, rules, regulations, or breach of this Evaluation Agreement by you; or (5) your use of any third party content. Pivotal will (i) provide you with notice of such Claim within a reasonable period of time after learning of the Claim; and (ii) reasonably cooperate in response to your requests for assistance (subject to your reimbursement of Pivotal's costs and expenses). Pivotal reserves the right to assume the exclusive defense and control of any matter otherwise subject to indemnification by you and, in such case, you agree to cooperate with Pivotal's defense of such Claim, and in no event may you agree to any settlement affecting Pivotal without Pivotal's written consent.
  1. DISCLAIMER OF WARRANTY. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, PIVOTAL AND ITS DISTRIBUTORS PROVIDE THE EVALUATION SOFTWARE AS-IS WITHOUT ANY WARRANTIES OF ANY KIND, EXPRESS, IMPLIED, STATUTORY, OR IN ANY OTHER PROVISION OF THIS EVALUATION AGREEMENT OR COMMUNICATION WITH YOU, AND PIVOTAL AND ITS DISTRIBUTORS SPECIFICALLY DISCLAIM ANY IMPLIED WARRANTIES OR CONDITIONS OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT, TITLE, AND ANY WARRANTIES ARISING FROM COURSE OF DEALING OR COURSE OF PERFORMANCE REGARDING OR RELATING TO THE EVALUATION SOFTWARE, THE DOCUMENTATION, OR ANY MATERIALS FURNISHED OR PROVIDED TO YOU UNDER THIS EVALUATION AGREEMENT. PIVOTAL AND ITS DISTRIBUTORS DO NOT WARRANT THAT THE EVALUATION SOFTWARE WILL OPERATE UNINTERRUPTED, OR THAT IT WILL BE FREE FROM DEFECTS OR THAT THE EVALUATION SOFTWARE WILL MEET (OR IS DESIGNED TO MEET) YOUR BUSINESS REQUIREMENTS.
  1. LIMITATION OF LIABILITY. TO THE MAXIMUM EXTENT MANDATED BY LAW, IN NO EVENT SHALL PIVOTAL OR ITS DISTRIBUTORS BE LIABLE FOR ANY LOST PROFITS OR BUSINESS OPPORTUNITIES, LOSS OF USE, LOSS OF REVENUE, LOSS OF GOODWILL, BUSINESS INTERRUPTION, LOSS OF DATA, INABILITY TO USE THE EVALUATION SOFTWARE, INCLUDING AS A RESULT OF ANY TERMINATION/SUSPENSION/DISCONTINUATION/MODIFICATION OR SUSPENSION OF THIS EVALUATION AGREEMENT OR THE SERVICE OFFERING, OR ANY OTHER INDIRECT, SPECIAL, INCIDENTAL, OR CONSEQUENTIAL DAMAGES UNDER ANY THEORY OF LIABILITY, WHETHER BASED IN CONTRACT, TORT, NEGLIGENCE, PRODUCT LIABILITY OR OTHERWISE. PIVOTAL'S AND ITS DISTRIBUTORS' LIABILITY UNDER THIS EVALUATION AGREEMENT SHALL NOT, IN ANY EVENT, EXCEED USD $100. THE FOREGOING LIMITATIONS SHALL APPLY REGARDLESS OF WHETHER PIVOTAL OR ITS DISTRIBUTORS HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES AND REGARDLESS OF WHETHER ANY REMEDY FAILS OF ITS ESSENTIAL PURPOSE. YOU MAY NOT BRING A CLAIM UNDER THIS EVALUATION AGREEMENT MORE THAN EIGHTEEN (18) MONTHS AFTER (i) THE END OF THE EVALUATION TERM, OR (ii) THE DATE THE CLAIM FIRST ARISES, WHICHEVER IS EARLIEST.
  1. CONFIDENTIALITY. You may (a) use Confidential Information only for exercising rights and performing obligations in connection with this Evaluation Agreement; and (b) protect from disclosure any Confidential Information disclosed by Pivotal for a period commencing upon the disclosure date until 3 years thereafter. Notwithstanding the foregoing, either party may disclose Confidential Information: (i) to an Affiliate to fulfill its obligations or exercise its rights under this Evaluation Agreement so long as such Affiliate agrees to comply with these restrictions in writing; and (ii) if required by law or regulatory authorities, provided that if you are required to disclose Confidential Information by applicable law, regulatory authorities or court order, you shall notify Pivotal of the required disclosure promptly in writing and shall cooperate with Pivotal in any lawful action to contest or limit the scope of the required disclosure before disclosing any Confidential Information. Pivotal shall not be responsible for unauthorized disclosure of your data stored within Evaluation Software arising from a data security breach. You are solely responsible for all obligations to comply with laws applicable to your access or use of Evaluation Software, including without limitation any personal data processing. Pivotal may collect, use, store and transmit technical and related information about your use of Evaluation Software, including server internet protocol address, hardware identification, operating system, application software, peripheral hardware, and Evaluation Software usage statistics, to facilitate the provisioning of updates, support, invoicing, and online services. You are responsible for obtaining all consents required to enable Pivotal to exercise its confidentiality rights, in compliance with applicable law.
  1. EXPORT AND TRADE COMPLIANCE. The Evaluation Software and any technology delivered in connection therewith may be subject to governmental restrictions on exports from the U.S., restrictions on exports from other countries in which such technology may be provided or located, disclosures of technology to foreign persons, exports from abroad of derivative products thereof, and the importation and/or use of such technology included therein outside of the United States (collectively, "Export Laws"). Diversion contrary to Export Laws is expressly prohibited. You shall, at your sole expense, comply with all Export Laws, including without limitation all licensing, authorization, documentation and reporting requirements and export policies made available to you by Pivotal. You represent that you are not a restricted party, which shall be deemed to include any person or entity: (a) located in or a national of Cuba, Iran, North Korea, Sudan, Syria, Crimea, or any other countries that may, from time to time, become subject to sanctions or with which U.S. persons are generally prohibited from engaging in financial transactions; (b) on any restricted party or entity list maintained by any U.S. governmental agency; or (c) any person or entity involved in an activity restricted by any U.S. government agency. Certain information or technology may be subject to the International Traffic in Arms Regulations and shall only be exported, transferred or released to foreign nationals inside or outside the United States in compliance with such regulations.
  1. GENERAL. This Evaluation Agreement is governed by California law. You hereby expressly consents to the personal jurisdiction of either the California courts or the United States District Courts located in the State of California and agree that any action relating to or arising out of this Evaluation Agreement must be instituted and prosecuted only in the Superior Court of the County of San Francisco or the United States District Court for the Northern District of California. The U.N. Convention on Contracts for the International Sale of Goods does not apply. You shall comply with all applicable laws and regulations and diversion contrary to such laws is expressly prohibited. Except to the extent expressly set forth to the contrary in this Evaluation Agreement, this Evaluation Agreement is not intended to confer upon any person other than the parties hereto any rights or remedies. The parties are independent contractors. In the event that Pivotal is prevented from performing or is unable to perform any of its obligations under this Evaluation Agreement due to any Act of God, fire, casualty, flood, earthquake, war, strike, lockout, epidemic, destruction of production facilities, riot, insurrection, material unavailability, unavailability or interruption of telecommunications equipment or networks, or any other cause beyond the reasonable control of Pivotal, Pivotal shall give written notice to you, Pivotal's performance shall be excused, and the time for the performance shall be extended for the period of delay or inability to perform due to such occurrences. This Evaluation Agreement is the complete statement of the parties' agreement with regard to the subject matter hereof and may be modified only by written agreement. You shall not assign or transfer any rights under this Evaluation Agreement or delegate any of your duties hereunder, by operation of law or otherwise, without Pivotal's prior written consent, and any such action in violation of this provision, is null and void, and of no force, and a breach of this Evaluation Agreement. Pivotal may assign or transfer this Evaluation Agreement to any successors-in-interest to all or substantially all of the business or assets of Pivotal whether by merger, reorganization, asset sale or otherwise, or to any Pivotal Affiliates, and this Evaluation Agreement shall inure to the benefit of and be binding upon the respective permitted successors and assigns. If any part of this Evaluation Agreement or an Order is held unenforceable, the validity of the remaining provisions shall not be affected. In the event of conflict or inconsistency among the Evaluation Agreement or the Order, the Evaluation Agreement shall control solely to the extent of the conflict or inconsistency.
  1. DEFINITIONS.
    1. "Affiliate" means a legal entity controlled by, controls, or is under common control of Pivotal or you, with control meaning more than fifty (50%) of the voting power or ownership interests then outstanding of that entity.
    2. "Claim(s)" means any third party claim, notice, demand, action, proceeding, litigation, investigation or judgment. With respect to Evaluation Software, such Claim must be related to your access to or use of the Evaluation Software during the Evaluation Term.
    3. "Confidential Information" means the terms of this Evaluation Agreement, Software, and all confidential and proprietary information of Pivotal or you, including without limitation, all business plans, product plans, financial information, software, designs, and technical, business and financial data of any nature whatsoever, provided that such information is marked or designated in writing as confidential, proprietary, or with a similar term or designation. Confidential Information does not include information that is (a) rightfully in the receiving party's possession without prior obligation of confidentiality from the disclosing party; (b) a matter of public knowledge (or becomes a matter of public knowledge other than through breach of confidentiality by the other party); (c)rightfully furnished to the receiving party by a third party without confidentiality restriction; or (d) independently developed by the receiving party without reference to the disclosing party's Confidential Information.
    4. "Content" means any and all applications, files, information, materials, data, software, or other content uploaded to, stored, published or displayed by You through the Evaluation Software.
    5. "Distributor" means a reseller, distributor, system integrator, service provider, independent software vendor, value-added reseller, OEM or other partner authorized by Pivotal to license Evaluation Software to end users, and any third party duly authorized by a Distributor to license Evaluation Software to end users.
    6. "Documentation" means documentation provided to you by Pivotal with Evaluation Software, as revised by Pivotal from time to time.
    7. "Evaluation License" means (a) access to Evaluation Software and Documentation subject to the licensing terms and restrictions set forth in this Evaluation Agreement, and the Order, all during the Evaluation Term.
    8. "Evaluation Term" means the period starting on the Effective Date and continues for a period of 90 days.
    9. "Evaluation Software" means Pivotal computer programs that you procure from the Service Offering or you upload to your Service Offering account pursuant to this Evaluation License.
    10. "Intellectual Property Rights" means all worldwide intellectual property rights, including, without limitation,patents, utility models, rights to inventions, copyright and related rights, trademarks and service marks, trade names and domain names, rights in get-up, goodwill and the right to sue for passing off or unfair competition, rights in designs, rights in computer software, database rights, rights to preserve the confidentiality of information (including know-how and trade secrets) and any other intellectual property rights, including all applications for (and rights to apply for and be granted), renewals or extensions of, and rights to claim priority from, such rights and all similar or equivalent rights or forms of protection which subsist or will subsist, now or in the future, in any part of the world.
    11. "Open Source Software" or "OSS" means software components licensed under a license approved by the Open Source Initiative or similar open source or freeware license and included in, embedded in, utilized by, provided or distributed with Evaluation Software.
    12. "Order" means the Service Offering ordering document (including a registration webpage) pursuant to which you obtain access to the Evaluation Software.
    13. "Service Offering" means the cloud computing infrastructure hosted by the web service provider where the Evaluation Software is provided to you.
    14. "Service Offering Terms" means any terms and conditions of your Order and subscription to the Service Offering, including any related website and service terms.
    15. "Taxes" means any sales, use, gross receipts, business and occupation, and other taxes (other than taxes on Pivotal's NET income), export and import fees, customs duties and similar charges imposed by any government or other authority.
    16. "Territory" means the country or countries in which you have been invoiced by the Service Provider.
    17. "User(s)"" means the individual and/or the entity that uses or accesses the Evaluation Software.