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|
VMWARE END USER LICENSE AGREEMENT
PLEASE NOTE THAT THE TERMS OF THIS END USER LICENSE AGREEMENT SHALL GOVERN
YOUR USE OF THE SOFTWARE, REGARDLESS OF ANY TERMS THAT MAY APPEAR DURING THE
INSTALLATION OF THE SOFTWARE.
IMPORTANT-READ CAREFULLY: BY DOWNLOADING, INSTALLING, OR USING THE SOFTWARE,
YOU (THE INDIVIDUAL OR LEGAL ENTITY) AGREE TO BE BOUND BY THE TERMS OF THIS
END USER LICENSE AGREEMENT ("EULA"). IF YOU DO NOT AGREE TO THE TERMS OF THIS
EULA, YOU MUST NOT DOWNLOAD, INSTALL, OR USE THE SOFTWARE, AND YOU MUST DELETE
OR RETURN THE UNUSED SOFTWARE TO THE VENDOR FROM WHICH YOU ACQUIRED IT WITHIN
THIRTY (30) DAYS AND REQUEST A REFUND OF THE LICENSE FEE, IF ANY, THAT YOU
PAID FOR THE SOFTWARE.
EVALUATION LICENSE. If You are licensing the Software for evaluation
purposes, Your use of the Software is only permitted in a non-production
environment and for the period limited by the License Key. Notwithstanding
any other provision in this EULA, an Evaluation License of the Software is
provided "AS-IS" without indemnification, support or warranty of any kind,
expressed or implied.
1. DEFINITIONS.
1.1 "Affiliate" means, with respect to a party, an entity that is directly or
indirectly controlled by or is under common control with such party,
where "control" means an ownership, voting or similar interest representing
fifty percent (50%) or more of the total interests then outstanding of the
relevant entity (but only as long as such person or entity meets these
requirements).
1.2 "Documentation" means that documentation that is generally provided to
You by VMware with the Software, as revised by VMware from time to time, and
which may include end user manuals, operation instructions, installation
guides, release notes, and on-line help files regarding the use of the
Software.
1.3 "Guest Operating Systems" means instances of third-party operating
systems licensed by You, installed in a Virtual Machine and run using the
Software.
1.4 "Intellectual Property Rights" means all worldwide intellectual
property rights, including without limitation, copyrights, trademarks, service
marks, trade secrets, know how, inventions, patents, patent applications,
moral rights and all other proprietary rights, whether registered or
unregistered.
1.5 "License" means a license granted under Section 2.1.
1.6 "License Key" means a serial number that enables You to activate and
use the Software.
1.7 "License Term" means the duration of a License as specified in the
Order.
1.8 "License Type" means the type of License applicable to the Software,
as more fully described in the Order.
1.9 "Open Source Software" or "OSS" means software components that are
licensed under a license approved by the Open Source Initiative ("OSI") or
similar open source or freeware license and are embedded in the delivered
Software.
1.10 "Order" means a purchase order, enterprise license agreement, or other
ordering document issued by You to VMware or a VMware authorized reseller that
references and incorporates this EULA and is accepted by VMware as set forth
in Section 4.
1.11 "Product Guide" means the current version of the VMware Product Guide at
the time of Your Order, copies of which are found at
www.vmware.com/download/eula.
1.12 "Services Terms" means VMware's then-current Support and Subscription
Contract Terms and Conditions, copies of which are found at
www.vmware.com/files/pdf/support/support_terms_conditions.pdf.
1.13 "Software" means the VMware Tools and the VMware computer programs
listed on VMware's commercial price list to which You acquire a license under
an Order, together with any software code relating to the foregoing that is
provided to You pursuant to a support and subscription service contract and
that is not subject to a separate license agreement.
1.14 "Territory" means the country or countries in which You have been
invoiced; provided, however, that if You have been invoiced within any of the
European Economic Area member states, You may deploy the corresponding
Software throughout the European Economic Area.
1.15 "Third Party Agent" means a third party delivering information technology
services to You pursuant to a written contract with You.
1.16 "Virtual Machine" means a software container that can run its own
operating system and execute applications like a physical machine.
1.17 "VMware" means VMware, Inc., a Delaware corporation, if You are
purchasing Licenses or services for use in the United States and VMware
International Limited, a company organized and existing under the laws of
Ireland, for all other purchases.
1.18 "VMware Tools" means the suite of utilities and drivers, Licensed by
VMware under the "VMware Tools" name, that can be installed in a Guest
Operating System to enhance the performance and functionality of a Guest
Operating System when running in a Virtual Machine.
2. LICENSE GRANT.
2.1 Scope of License. Subject to the terms and conditions of this EULA,
VMware grants You, during the License Term, a non-exclusive, non-transferable
License to use the Software, in executable code form only, within the
Territory, for Your internal operations in accordance with (a) the
Documentation; (b) the License Type for which You have paid the applicable
fees; (c) other applicable limitations set forth in the Order. The License to
the Software is limited to the quantities specified in each applicable Order.
2.2 Third Party Use. Under the License granted to You in Section 2.1
above, You may permit Your Third Party Agents to access, use and/or operate
the Software on Your behalf for the sole purpose of delivering services to
You, provided that You will be fully responsible for Your Third Party Agents'
compliance with terms and conditions of this EULA and any breach of this EULA
by a Third Party Agent shall be deemed to be a breach by You.
2.3 Permitted Copies. You may make one copy of the Software for archival
purposes only. The copy shall: (a) be kept within Your possession or control;
(b) include all titles, trademarks, and copyright and restricted rights
notices in the original; and (c) be subject to this EULA. You may not
otherwise copy the Software without VMware's prior written consent.
2.4 Benchmarking. You may use the Software to conduct internal
performance testing and benchmarking studies. You may only publish or
otherwise distribute the results of such studies to third parties as follows:
(a) if with respect to VMware's Workstation or Fusion products, only if You
provide a copy of Your study to benchmark@vmware.com prior to distribution;
(b) if with respect to any other Software, only if VMware has reviewed and
approved of the methodology, assumptions and other parameters of the study
(please contact VMware at benchmark@vmware.com to request such review and
approval) prior to such publication and distribution.
2.5 VMware Tools. You may distribute the VMware Tools (whether or not as
part of the Virtual Machine You create with the Software) to third parties
solely when installed in a Guest Operating System to enhance its performance
and functionality when running in a Virtual Machine, provided that You will be
fully responsible for such third parties' compliance with the terms and
conditions of this EULA, and any breach of this EULA by any such third party
shall be deemed to be a breach of this EULA by You.
2.6 Open Source Software. Notwithstanding anything herein to the
contrary, Open Source Software is licensed to You under such OSS's own
applicable license terms, which can be found in the open_source_licenses.txt
file, the Documentation or as applicable, the corresponding source files for
the Software available at http://www.vmware.com/download/open_source.html.
These OSS license terms are consistent with the license granted in Section 2,
and may contain additional rights benefiting You. The OSS license terms shall
take precedence over this EULA to the extent that this EULA imposes greater
restrictions on You than the applicable OSS license terms.
3. RESTRICTIONS; OWNERSHIP.
3.1 Restrictions. You acknowledge that the Software and the structure,
organization and source code of the Software constitute valuable trade secrets
of VMware. Accordingly, except as expressly permitted in Section 2 or as
otherwise authorized by VMware in writing, You will not and will not permit
any third party to: (a) sell, lease, license, distribute, sublicense or
otherwise transfer in whole or in part the Software or Documentation to any
third party; (b) decompile, disassemble, reverse engineer, or otherwise
attempt to derive source code from the Software, in whole or in part; (c) copy
the Software, except for archival purposes, as set out in Section 2.3; (d)
create, develop, license, install, use, or deploy any software or services to
circumvent, enable, modify or provide access, permissions or rights which
violate the technical restrictions of the Software as described in this EULA;
(e) translate, modify or create derivative works based upon the Software; (f)
permit any use of or access to the Software by any third party; (g) remove any
product identification, proprietary, copyright or other notices contained in
the Software; or (h) operate the Software on behalf of or for the benefit of
any third party, including the operation of any service that is accessed by a
third party, except that, for the purposes of this Section 3.1 (h), You may
use the Software to deliver hosted services to Your Affiliates.
3.2 Decompilation. Notwithstanding the foregoing, decompiling the
Software is permitted to the extent the laws of the Territory give You the
express right to do so to obtain information necessary to render the Software
interoperable with other software; provided, however, You must first request
such information from VMware (at info@vmware.com), provide all reasonably
requested information to allow VMware to assess Your claim, and VMware may, in
its discretion, either provide such interoperability information to You,
impose reasonable conditions, including a reasonable fee, on such use of the
Software, or offer to provide alternatives to ensure that VMware's proprietary
rights in the Software are protected and to reduce any adverse impact on
VMware's proprietary rights.
3.3 Ownership. The Software and Documentation, all copies and portions
thereof, and all improvements, enhancements, modifications and derivative
works thereof, and all Intellectual Property Rights therein, are and shall
remain the sole and exclusive property of VMware and its licensors. Your
rights to use the Software and Documentation shall be limited to those
expressly granted in this EULA and any applicable Order. No other rights with
respect to the Software or any related Intellectual Property Rights are
implied. You are not authorized to use (and shall not permit any third party
to use) the Software, Documentation or any portion thereof except as expressly
authorized by this EULA or the applicable Order.
3.4 Guest Operating Systems. Certain Software allows Guest Operating
Systems and application programs to run on a computer system. You acknowledge
that You are responsible for obtaining and complying with any licenses
necessary to operate any such third-party software.
4. ORDER. Your Order is subject to this EULA. No Orders are binding on
VMware until accepted by VMware. Orders for Software are deemed to be
accepted upon VMware's delivery of the Software included in such Order. Orders
issued to VMware do not have to be signed to be valid and enforceable.
5. AUDIT RIGHTS.
5.1 Records. You will, during the License Term for any Software licenses
acquired under this EULA (and for a period of two (2) years from the
expiration of the applicable License Term), maintain accurate records of your
use of the Software sufficient to demonstrate Your compliance with the terms
of this EULA and all Orders.
5.2 Audit Rights. During the period in which the You are obligated to
maintain such records, VMware, or its third party auditor, may, upon
reasonable notice to You, audit such records to verify that You have (a) used
the Software solely in the manner authorized herein; (b) paid all applicable
license fees; and (c) otherwise complied with the terms of this EULA and all
Orders. VMware may conduct no more than one (1) audit in any twelve (12) month
period. Audits will be conducted during normal business hours and VMware will
use commercially reasonable efforts to minimize the disruption of Your normal
business activities. VMware, and any third-party auditor, shall not have
physical access to Your computing devices in connection with any such audit,
without Your prior written consent. You will reasonably cooperate with VMware
and/or its third-party auditor and will promptly pay directly to VMware any
underpayments revealed by such audit. You will promptly reimburse VMware for
all reasonable costs and expenses incurred by VMware for such audit if: (i)
such audit reveals an underpayment by You of more than five percent (5%) of
the fees payable by You to VMware for the period audited, or (ii) such audit
reveals You have materially failed to maintain accurate records of Your use of
the Software.
6. SUPPORT AND SUBSCRIPTION SERVICES. Except as expressly specified in
the Product Guide, VMware does not provide any support or subscription
services for the Software under this EULA. You have no rights to any updates,
upgrades or extensions or enhancements to the Software developed by VMware
unless you separately purchase VMware support or subscription services. These
support or subscription services are subject to the Services Terms.
7. WARRANTIES.
7.1 Software Warranty. VMware warrants to You that the Software will, for a
period of ninety (90) days following delivery ("Warranty Period"),
substantially conform to the applicable Documentation, provided that the
Software (a) has been properly installed and used at all times and in
accordance with the applicable Documentation; and (b) has not been modified
or added to by persons other than VMware or its authorized representative.
VMware will, at its own expense and as its sole obligation and Your exclusive
remedy for any breach of the foregoing warranty, either replace the applicable
Software or correct any reproducible error in the Software reported to VMware
by You in writing during the Warranty Period. If VMware determines that it is
unable to correct the error or replace the Software, VMware will refund to You
all License fees actually paid by You, in which case the License for the
applicable Software and Your right to use such Software will terminate.
7.2 Disclaimer of Warranties. THE EXPRESS WARRANTY IN SECTION 7.1 ABOVE IS IN
LIEU OF AND, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, VMWARE AND ITS
LICENSORS DISCLAIM, ALL OTHER WARRANTIES, WHETHER EXPRESS, IMPLIED, OR
STATUTORY, INCLUDING ANY IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR
A PARTICULAR PURPOSE, TITLE, NON-INFRINGEMENT AND ANY WARRANTIES ARISING FROM
COURSE OF DEALING OR COURSE OF PERFORMANCE) REGARDING OR RELATING TO THE
SOFTWARE, THE DOCUMENTATION, OR ANY MATERIALS FURNISHED OR PROVIDED TO YOU
UNDER THIS EULA. VMWARE AND ITS LICENSORS DO NOT WARRANT THAT THE SOFTWARE
WILL OPERATE UNINTERRUPTED OR THAT IT WILL BE FREE FROM DEFECTS OR THAT THE
SOFTWARE WILL MEET (OR IS DESIGNED TO MEET) YOUR BUSINESS REQUIREMENTS.
8. INTELLECTUAL PROPERTY INDEMNIFICATION.
8.1 Defense and Indemnification. Subject to the remainder of this Section 8,
VMware shall defend You against any third party claim that the Software
infringes any patent, trademark or copyright of such third party, or
misappropriates a trade secret (but only to the extent that such
misappropriation is not a result of Your actions) under the laws of: (a) the
United States and Canada; (b) the European Economic Area; (c) Australia; (d)
New Zealand; (e) Japan; or (f) the People's Republic of China, to the extent
that such countries are part of the Territory for the License ("Infringement
Claim") and indemnify You from the resulting costs and damages finally awarded
against You to such third party by a court of competent jurisdiction or agreed
to in settlement; provided that You: (i) promptly provide VMware with notice
of such Infringement Claim; (ii) allow VMware sole control over the defense
thereof and related settlement negotiation; and (iii) reasonably cooperate in
response to VMware requests for assistance. You may not settle or compromise
any Infringement Claim without the prior written consent of VMware.
8.2 Remedies. Should the Software become, or in VMware's opinion be likely to
become, the subject of an Infringement Claim, VMware will, at VMware's option
and expense either: (a) procure the rights necessary for You to make
continued use of the affected Software in accordance with this EULA; (b)
replace or modify the affected Software to make it non-infringing; or (c)
terminate the License to the affected Software and discontinue the related
support services, and, upon Your certified deletion of the affected Software,
refund: (i) the fees paid by You for the License to the affected Software,
less straight-line depreciation over a three (3) year useful life beginning on
the date such Software was delivered; and (ii) any pre-paid service fee
attributable to related support services to be delivered after the date such
service is stopped. Nothing in this Section 8.2 shall limit VMware's
obligation under Section 8.1 to defend and indemnify You, provided that You
replace the allegedly infringing Software upon VMware's making alternate
Software available to You and/or You discontinue using the allegedly
infringing Software upon receiving VMware's notice terminating the affected
License.
8.3 Exclusions. Notwithstanding the foregoing, VMware will have no obligation
under this Section 8 or otherwise with respect to any claim based on: (a) a
combination of Software with non-VMware products (other than non-VMware
products that are listed on the Order and used in an unmodified form); (b) use
for a purpose or in a manner for which the Software was not designed; (c) use
of any older version of the Software when use of a newer VMware revision would
have avoided the infringement; (d) any modification to the Software made
without VMware's express written approval; (e) any claim that relates to open
source software or freeware technology or any derivatives or other adaptations
thereof that is not embedded by VMware into Software listed on VMware's
commercial price list; (f) any claim that relates to Linux or Android open
source software, even when it has been embedded into or distributed with the
Software or (g) any Software provided on a no charge, beta or evaluation
basis. THIS SECTION 8 STATES YOUR SOLE AND EXCLUSIVE REMEDY AND VMWARE'S
ENTIRE LIABILITY FOR ANY INFRINGEMENT CLAIMS OR ACTIONS.
9. LIMITATION OF LIABILITY.
9.1 Limitation of Liability. TO THE MAXIMUM EXTENT MANDATED BY LAW, IN NO
EVENT WILL VMWARE AND ITS LICENSORS BE LIABLE FOR ANY LOST PROFITS OR BUSINESS
OPPORTUNITIES, LOSS OF USE, LOSS OF REVENUE, LOSS OF GOODWILL, BUSINESS
INTERRUPTION, LOSS OF DATA, OR ANY OTHER INDIRECT, SPECIAL, INCIDENTAL, OR
CONSEQUENTIAL DAMAGES UNDER ANY THEORY OF LIABILITY, WHETHER BASED IN
CONTRACT, TORT, NEGLIGENCE, PRODUCT LIABILITY, OR OTHERWISE. BECAUSE SOME
JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF LIABILITY FOR
CONSEQUENTIAL OR INCIDENTAL DAMAGES, THE PRECEDING LIMITATION MAY NOT APPLY TO
YOU. VMWARE'S AND ITS LICENSORS' LIABILITY UNDER THIS EULA WILL NOT, IN ANY
EVENT, REGARDLESS OF WHETHER THE CLAIM IS BASED IN CONTRACT, TORT, STRICT
LIABILITY, OR OTHERWISE, EXCEED THE LICENSE FEES YOU PAID FOR THE SOFTWARE, IF
ANY. THE FOREGOING LIMITATIONS SHALL APPLY REGARDLESS OF WHETHER VMWARE OR ITS
LICENSORS HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES AND REGARDLESS
OF WHETHER ANY REMEDY FAILS OF ITS ESSENTIAL PURPOSE.
9.2 Further Limitations. VMware's licensors shall have no liability of any
kind under this EULA and VMware's liability with respect to any third party
software embedded in the Software shall be subject to Section 9.1. You may
not bring a claim under this EULA more than eighteen (18) months after the
cause of action arises.
10. TERMINATION.
10.1 License Term. This EULA will terminate in its entirety upon the
termination of the License Term, unless terminated earlier under this Section
10.
10.2 Termination for Breach. VMware may terminate this EULA in its entirety
effective immediately upon written notice to You if: (a) You breach any
provision in Section 3 and do not cure the breach within ten (10) days after
receiving written notice thereof from VMware; (b) You fail to pay any portion
of the fees under an applicable Order within ten (10) days after receiving
written notice from VMware that payment is past due; (c) You breach any other
provision of this EULA and don't not cure the breach within thirty (30) days
after receiving written notice thereof from VMware; or (d) You commit a
material breach that is not capable of being cured.
10.3 Termination for Insolvency. VMware may terminate this EULA in its
entirety effective immediately upon written notice to You if You: (a)
terminate or suspend your business; (b) become insolvent, admit in writing
Your inability to pay Your debts as they mature, make an assignment for the
benefit of creditors; or become subject to control of a trustee, receiver or
similar authority; or (c) become subject to any bankruptcy or insolvency
proceeding.
10.4 Effect of Termination. If VMware terminates this EULA under this
Section 10: (a) all Licensed rights to all Software granted to You under this
EULA will immediately cease to exist; and (b) You must promptly discontinue
all use of all Software, and (destroy all copies of the Software and all
License Key(s)) and return, or if requested by VMware, destroy, any related
VMware Confidential Information in Your possession or control and certify in
writing to VMware that You have fully complied with these requirements.
Sections 1 (Definitions), 2.6 (Open Source Software), 3 (Restrictions;
Ownership), 5.1 (Records), 5.2 (Audit Rights), 7.2 (Disclaimer of Warranties),
9 (Limitation of Liability), 10 (Termination), 11 (Confidential Information)
and 12 (General) will any survive termination of this EULA.
11. CONFIDENTIAL INFORMATION.
11.1 Definition. "Confidential Information" means information or materials
provided by one party ("Discloser") to the other party ("Recipient") which are
in tangible form and labeled "confidential" or the like, or, information which
a reasonable person knew or should have known to be confidential. The
following information shall be considered Confidential Information whether or
not marked or identified as such: (a) License Keys; (b) information regarding
VMware's pricing, product roadmaps or strategic marketing plans; and (c) non-
public materials relating to the Software.
11.2 Protection. Recipient may use Confidential Information of Discloser; (a)
to exercise its rights and perform its obligations under this EULA; or (b) in
connection with the parties' ongoing business relationship. Recipient will
not use any Confidential Information of Discloser for any purpose not
expressly permitted by the EULA, and will disclose the Confidential
Information of Discloser only to the employees or contractors of Recipient who
have a need to know such Confidential Information for purposes of the EULA and
who are under a duty of confidentiality no less restrictive than Recipient's
duty hereunder. Recipient will protect Confidential Information from
unauthorized use, access, or disclosure in the same manner as Recipient
protects its own confidential or proprietary information of a similar nature
but with no less than reasonable care.
11.3 Exceptions. Recipient's obligations under Section 11.2 with respect to
any Confidential Information will terminate if Recipient can show by written
records that such information: (a) was already known to Recipient at the time
of disclosure by Discloser; (b) was disclosed to Recipient by a third party
who had the right to make such disclosure without any confidentiality
restrictions; (c) is, or through no fault of Recipient has become, generally
available to the public; or (d) was independently developed by Recipient
without access to, or use of, Discloser's Information. In addition, Recipient
will be allowed to disclose Confidential Information to the extent that such
disclosure is required by law or by the order of a court of similar judicial
or administrative body, provided that Recipient notifies Discloser of such
required disclosure promptly and in writing and cooperates with Discloser, at
Discloser's request and expense, in any lawful action to contest or limit the
scope of such required disclosure.
11.4 Data Privacy. You agree that VMware may process technical and related
information about Your use of the Software which may include internet protocol
address, hardware identification, operating system, application software,
peripheral hardware, and non-personally identifiable Software usage statistics
to facilitate the provisioning of updates, support, invoicing or online
services and may transfer such information to other companies in the VMware
worldwide group of companies from time to time. To the extent that this
information constitutes personal data, VMware shall be the controller of such
personal data. To the extent that it acts as a controller, each party shall
comply at all times with its obligations under the local legislation
applicable in the Territory for the protection of individuals with regard to
the processing of personal data. Collected data is subject to VMware's Privacy
Policy at http://www.vmware.com/help/privacy.html.
12. GENERAL.
12.1 Assignment. This EULA and any Orders, and any of Your rights or
obligations thereunder, may not be assigned, subcontracted or transferred by
You, in whole or in part, whether voluntary, by operation of contract, law 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 EULA will be binding upon and will inure to the
benefit of the parties and their respective successors and assigns.
12.2 Notices. Any notice delivered by VMware to You under this EULA will be
delivered via mail, email or fax.
12.3 Waiver. The waiver of a breach of any provision of this EULA shall
not constitute a waiver of any other provision or any subsequent breach.
12.4 Severability. If any provision of this EULA 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 EULA will remain in full force and effect.
12.5 Compliance with Laws; Export Control; Government Regulations. Each party
shall comply with all laws applicable to the actions contemplated by this
EULA. You acknowledge that the Software is of United States origin, is
provided subject to the 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, and are not acting on behalf of, (a) 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
(b) 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 (2) you will not permit the
Software 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. The Software and accompanying
documentation are deemed to be "commercial computer software" and "commercial
computer software documentation", respectively, pursuant to DFAR Section
227.7202 and FAR Section 12.212(b), as applicable. Any use, modification,
reproduction, release, performing, displaying or disclosing of the Software
and documentation by the U.S. Government shall be governed solely by the terms
and conditions of this EULA.
12.6 Construction. The headings of sections of this EULA are for convenience
and are not to be used in interpreting this EULA. As used in this EULA, the
word 'including' means "including but not limited to."
12.7 Governing Law. This EULA is governed by the laws of the State of
California, United States of America, unless mandated by other law. The
United Nations Convention for the International Sale of Goods shall not apply.
12.8 Third Party Rights. Other than as expressly set out in this EULA, this
EULA does not create any rights for any person who is not a party to it, and
no person who is not a party to this EULA may enforce any of its terms or rely
on any exclusion or limitation contained in it.
12.9 Product Guide. In addition to the above sections, Your use of the
Software is subject to the terms and conditions of the Product Guide, which is
incorporated herein by reference.
12.10 Order of Precedence. In the event of conflict or inconsistency among
the Product Guide, this EULA and the Order, the following order of precedence
shall apply: (a) the Product Guide, (b) this EULA and (c) the Order. With
respect to any inconsistency between this EULA and an Order, the terms of this
EULA shall supersede and control over any conflicting or additional terms and
conditions of any Order, acknowledgement or confirmation or other document
issued by You, unless the parties execute a written agreement expressly
indicating: (i) that such Order shall modify this EULA; or (ii) that the terms
of such Order shall supersede and control in the event of any inconsistency.
12.11 Entire Agreement. This EULA, including accepted Orders and any
amendments hereto, and the Product Guide contain the entire agreement of the
parties with respect to the subject matter of this EULA and supersede all
previous or contemporaneous communications, representations, proposals,
commitments, understandings and agreements, whether written or oral, between
the parties regarding the subject matter hereof. This EULA may be amended
only in writing signed by authorized representatives of both parties.
12.12 Contact Information. Please direct legal notices or other
correspondence to VMware, Inc., 3401 Hillview Avenue, Palo Alto, California
94304, United States of America. If You have any questions concerning this
EULA, please send an email to info@vmware.com.
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