1. EVALUATION LICENSE. If Licensee is licensing Software as Evaluation Software and/or as Beta Components, then such use is solely for use in a non-production environment for the Evaluation Period. Notwithstanding any other provision in this EULA, Evaluation Software and Beta Components are provided “AS-IS” without indemnification, support, or warranty of any kind, expressed or implied. All such licenses expire at the earlier of the end of the Evaluation Period or upon return of the Evaluation Software.
2. LICENSE GRANT
2.1. License Grant. Pivotal grants Licensee a non-exclusive, non-transferable license, without rights to sublicense, to use Software and Documentation, and related Support Services, up to the maximum licensed capacity during the period identified in the Quote, in the Territory, and subject to the Guide, for internal business operations only. Should Licensee exceed the licensed capacity, it will promptly procure additional license rights at a mutually agreed price. Third Party Agents may access Software on Licensee’s behalf during the applicable period solely for Licensee’s internal business operations. Licensee may make 1 unmodified backup copy of Software solely for archival purposes. If Licensee upgrades or exchanges Software from a previous validly licensed version, Licensee must cease using all prior Software versions and certify same to Pivotal. Licensee is responsible for obtaining any software, hardware or other technology required to operate Software and complying with any corresponding terms and conditions.
2.2. License Restrictions. Licensee must not, and must not allow any third party to: (a) use Software in an application services provider, service bureau, or similar capacity; (b) disclose to any third party the results of any benchmark testing or comparative or competitive analyses of Software without Pivotal’s prior written approval; (c) except as otherwise expressly permitted by Pivotal, make Software available for access or use to any third party; (d) transfer or sublicense Software or Documentation (other than to an Affiliate, subject to Pivotal’s prior written approval); (e) use Software in conflict with the Guide, Quote and/or Order; (f) except as permitted by applicable mandatory law or third party license, modify, translate, enhance, or create derivative works from Software, or reverse assemble or disassemble, reverse engineer, decompile (subject to Section 2.5), or otherwise attempt to derive source code from Software; (g) remove any copyright or other proprietary notices on or in Software; or (h) violate or circumvent any technological restrictions within Software or as otherwise specified in this EULA.
2.3. Open Source Software. OSS is licensed to Licensee under the applicable OSS license terms (a) located in the open_source_licenses.txt file included in or along with Software, Evaluation Software, or the corresponding source files available at http://www.pivotal.io/open-source or http://network.pivotal.io, and/or (b) available by sending a written request, with Licensee’s name and address, to: Pivotal Software, Inc., Open Source Files Request, Attn: General Counsel, 3495 Deer Creek Road, Palo Alto, CA 94304. This offer to obtain a copy of the licenses/source files is valid for 3 years from the date Licensee first acquired access to Software. Licensee is responsible for complying with all applicable OSS terms and conditions, which shall take precedence over this EULA, solely with respect to such OSS.
2.4. Subscription License. If a Quote or Order indicates a Subscription License, then the terms in this Section 2.4 shall also apply. At least 60 days before expiration of the Subscription Period, Pivotal will notify Licensee of its option to renew for 1 additional year at the same annual rate in the Quote or Order. Licensee’s Subscription License shall automatically renew at the end of the Subscription Period for 1 additional year at the same annual rate stated in the Quote or Order if Licensee does not notify Pivotal at least 30 days before expiration of the Subscription Period of Licensee’s intent not to renew. Upon such notification, Licensee agrees to cease using Software at the expiration of the Subscription Period and will certify cessation of use to Pivotal.
2.5. Decompilation. If applicable laws in the Territory grant an express right to decompile Software to render it interoperable with other software, Licensee may decompile Software, but must first request Pivotal to do so, providing all requested information to allow Pivotal to assess the request. Pivotal may, in its discretion, provide such interoperability information, impose reasonable conditions, including a reasonable fee, on such use of Software, or offer to provide alternatives to protect Pivotal’s proprietary rights therein.
2.6. Reserved Rights. Pivotal retains all right, title, and interest in and to Software and Documentation, all related intellectual property rights, and all rights not expressly granted to Licensee in this EULA.
3. ORDERS. Licensee’s Order is subject to this EULA. No Orders are binding until accepted by Pivotal. Orders for Software are deemed accepted upon Pivotal’s delivery of Software included in such Order. Orders issued to Pivotal do not have to be signed to be valid and enforceable. Licensee shall pay in full in accordance with Pivotal’s invoice. Orders for Subscription Licenses are non-cancelable and non-refundable.
4. WARRANTY/DISCLAIMER. Pivotal warrants to Licensee that Software will, for the Warranty Period, substantially conform to the applicable Documentation, provided such Software: (a) has been properly installed and used in accordance with the Documentation; and (b) has not been modified by persons other than Pivotal. For any breach of this warranty, Pivotal will, at its option and expense, and as Licensee’s exclusive remedy for any breach of this warranty, either replace that Software or correct any reproducible error in that Software reported to Pivotal by Licensee in writing during the Warranty Period. If Pivotal determines that it is unable to replace that Software or correct that error, Pivotal will refund to Licensee the amount paid by Licensee for that Software, and the license will terminate. OTHER THAN THE WARRANTY ABOVE, AND TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, PIVOTAL AND ITS DISTRIBUTORS MAKE NO OTHER WARRANTIES OF ANY KIND, AND DISCLAIM ALL IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE AND NON-INFRINGEMENT, AND ANY WARRANTY ARISING BY STATUTE, OPERATION OF LAW, COURSE OF DEALING OR PERFORMANCE, OR USAGE OF TRADE. PIVOTAL AND ITS DISTRIBUTORS DO NOT WARRANT THAT SOFTWARE WILL OPERATE UNINTERRUPTED, THAT IT WILL BE FREE FROM DEFECTS OR THAT IT WILL MEET LICENSEE’S REQUIREMENTS.
5.1. Defense and Indemnity. Subject to the remainder of this Section 5 and Section 6 of this EULA, Pivotal shall (a) defend Licensee against any Claim that Software infringes a copyright or patent enforceable in a Berne Convention signatory country; and (b) pay resulting costs and damages finally awarded against Licensee by a court of competent jurisdiction, or pay amounts stated in a written settlement negotiated and approved by Pivotal. The foregoing obligations apply only if Licensee (i) promptly notifies Pivotal in writing of such Claim; (ii) grants Pivotal sole control over defense and settlement; (iii) reasonably cooperates in response to Pivotal’s request for assistance; (iv) is not in material breach of this EULA; and (v) is current in payment of all applicable fees prior to a Claim.
5.2. Remedies. If the allegedly infringing Software is held to constitute an infringement, or in Pivotal’s opinion, Software is likely to become infringing and its use enjoined, Pivotal may, at its sole option and expense: (a) procure for Licensee the right to make continued use of the affected Software; (b) replace or modify the affected Software to make it non-infringing; or (c) notify Licensee to return the affected Software and, upon receipt, discontinue the related support services and, for Subscription Licenses, refund unused prepaid fees calculated based on each month remaining in the period identified in the Quote or Order.
5.3. Exclusions. Neither Pivotal nor any Distributor shall have any obligation under this Section 5 or otherwise with respect to any infringement Claim that arises out of or relates to: (a) combination, operation or use of Software with any other software, hardware, technology, data, or other materials, if the infringement would not have arisen but for such combination, operation or use; (b) use for a purpose or in a manner for which Software was not designed or use after Pivotal notifies Licensee to cease such use due to a possible or pending infringement Claim; (c) any modifications to Software made by any person other than Pivotal or its authorized representatives; (d) any modifications to Software made by Pivotal pursuant to instructions, designs, specifications, or any other information provided to Pivotal by or on behalf of Licensee; (e) use of any version of Software when an upgrade or a newer iteration of Software made available by Pivotal could have avoided the infringement; (f) any data or information which Licensee or a third party utilizes in connection with Software; or (g) any Open Source Software. THIS SECTION 5 STATES LICENSEE’S SOLE AND EXCLUSIVE REMEDY AND PIVOTAL’S ENTIRE LIABILITY FOR ANY INFRINGEMENT CLAIMS.
6. 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, 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 EULA SHALL NOT, IN ANY EVENT, EXCEED THE LESSER OF (A) FEES LICENSEE PAID FOR SOFTWARE DURING THE 12 MONTHS PRECEDING THE DATE PIVOTAL RECEIVES WRITTEN NOTICE OF THE FIRST CLAIM TO ARISE UNDER THIS EULA; OR (B) USD $1,000,000. 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. LICENSEE MAY NOT BRING A CLAIM UNDER THIS EULA MORE THAN 18 MONTHS AFTER (i) THE END OF THE SUBSCRIPTION PERIOD, FOR SUBSCRIPTION LICENSES, AND (ii) THE CLAIM FIRST ARISES FOR PERPETUAL LICENSES.
7. TERMINATION. Pivotal may terminate this EULA effective immediately upon written notice to Licensee if: (a) Licensee fails to pay any portion of fees due under an applicable Quote and/or Order within 10 days after receiving notice that payment is past due; (b) Licensee suffers an insolvency or analogous event; (c) Licensee commits a material breach of this EULA that is incapable of being cured; or (d) Licensee breaches any other provision of this EULA and does not cure the breach within 30 days after receiving written notice of breach. If the EULA expires or terminates, Licensee must remove and destroy all copies of Software, including all backup copies, from the server, virtual machine, and all computers and terminals on which Software (including copies) is installed or used and certify destruction thereof. Pivotal may also terminate this EULA for convenience by giving 3 month’s written notice to Licensee. All provisions of this EULA will survive any termination or expiration if by its nature and context it is intended to survive.
8. CONFIDENTIALITY. Each party shall (a) use the other party’s Confidential Information only for exercising rights and performing obligations in connection with this EULA; and (b) protect from disclosure any Confidential Information disclosed by the other party 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 EULA so long as such Affiliate agrees to comply with these restrictions in writing; and (ii) if required by law or regulatory authorities provided the receiving party has given the disclosing party prompt notice before disclosure. Pivotal shall not be responsible for unauthorized disclosure of Licensee’s data stored within Software arising from a data security breach. Licensee is solely responsible for all obligations to comply with laws applicable to Licensee’s Software use, including without limitation any personal data processing. Pivotal may collect, use, store and transmit technical and related information about Licensee’s Software use, including server internet protocol address, hardware identification, operating system, application software, peripheral hardware, and Software usage statistics, to facilitate the provisioning of updates, support, invoicing, and online services. Licensee is responsible for obtaining all consents required to enable Pivotal to exercise its confidentiality rights, in compliance with applicable law.
9. RECORDS/AUDIT. For the period set forth in the Quote and/or Order, any renewals, and for 3 years thereafter, Licensee shall maintain accurate records regarding its compliance with this EULA. Upon reasonable notice (and no more than once per year), Pivotal may audit Licensee’s Software use to determine such compliance and payment of fees. Licensee will promptly pay additional fees identified by the audit and reimburse Pivotal for all audit costs if it discloses underpayment by more than 5% in the audited period, or that Licensee breached any EULA term.
10. GENERAL. This EULA is governed by California law. Each Party 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 agrees that any action relating to or arising out of this EULA 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. Software and Support Services are subject to U.S., European Union and other export and import laws and regulations. Both parties 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 EULA, this EULA is not intended to confer upon any person other than the parties hereto any rights or remedies. The parties are independent contractors. This EULA is the complete statement of the parties’ agreement with regard to the subject matter hereof and may be modified only by written agreement. Licensee shall not assign or transfer any rights under this EULA or delegate any of its 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 EULA. Pivotal may assign or transfer this EULA 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 Affiliates of Pivotal, and this EULA shall inure to the benefit of and be binding upon the respective permitted successors and assigns. Pivotal may use Pivotal Affiliates or other sufficiently qualified subcontractors to provide Support Services, provided that Pivotal remains responsible for performance thereof. If any part of this EULA, an Order, or a Quote is held unenforceable, the validity of the remaining provisions shall not be affected. In the event of conflict or inconsistency among the Guide, this EULA and the Order, the following order of precedence shall apply: (a) the Guide, (b) this EULA and (c) the Order.
11. COUNTRY SPECIFIC TERMS [INTERNATIONAL]. The terms in this Section 11 apply only when Pivotal means Pivotal Software International and for the avoidance of doubt these terms below shall replace the terms in the EULA above as specifically stated and all other terms shall remain unchanged:
11.1. Section 4 (WARRANTY/DISCLAIMER). The last sentence of Section 4 shall be deleted and replaced with: EXCEPT AS EXPRESSLY STATED IN THE APPLICABLE WARRANTY SET FORTH IN THIS EULA, PIVOTAL (INCLUDING ITS SUPPLIERS) MAKES NO OTHER EXPRESS OR IMPLIED WARRANTIES, WRITTEN OR ORAL. INSOFAR AS PERMITTED UNDER APPLICABLE LAW, ALL OTHER WARRANTIES ARE SPECIFICALLY EXCLUDED, INCLUDING WARRANTIES ARISING BY STATUTE, COURSE OF DEALING OR USAGE OF TRADE.
11.2. Section 6 (LIMITATION OF LIABILITY). The entire Section is deleted and replaced with:
LIMITATION OF LIABILITY.
A. In case of death or personal injury caused by Pivotal’s negligence, in case of Pivotal’s willful misconduct, fraud or gross negligence, and where a limitation of liability is not permissible under applicable mandatory law, Pivotal shall be liable according to statutory law.
B. Subject always to subsection 6.A, the liability of Pivotal (including its suppliers) to the Licensee under or in connection with a Licensee’s Order, whether arising from negligent error or omission, breach of contract, or otherwise shall not exceed the lesser of (i) fees Licensee paid for the specific service (calculated on an annual basis, when applicable) or Software during the 12 months preceding Pivotal’s notice of such claim; or (ii) one million euros (€1,000,000).
C. In no event shall Pivotal (including its suppliers) be liable to Licensee however that liability arises, for the following losses, whether direct, consequential, special, incidental, punitive or indirect: (i) loss of actual or anticipated revenue or profits, loss of use, loss of actual or anticipated savings, loss of or breach of contracts, loss of goodwill or reputation, loss of business opportunity, loss of business, wasted management time, cost of substitute services or facilities, loss of use of any software or data; and/or (ii) indirect, consequential, exemplary or incidental or special loss or damage; and/or (iii) damages, costs and/or expenses due to third party claims; and/or (iv) loss or damage due to the Licensee’s failure to comply with obligations under this EULA, failure to do back-ups of data or any other matter under the control of the Licensee and in each case whether or not any such losses were direct, foreseen, foreseeable, known or otherwise, and whether or not that party was aware of the circumstances in which such losses could arise. For the purposes of this Section 6, the term “loss” shall include a partial loss, as well as a complete or total loss.
D. The parties expressly agree that should any limitation or provision contained in this Section 6 be held to be invalid under any applicable statute or rule of law, it shall to that extent be deemed omitted, but if any party thereby becomes liable for loss or damage which would otherwise have been excluded such liability shall be subject to the other limitations and provisions set out in this Section 6.
E. The parties expressly agree that any order for specific performance made in connection with this EULA in respect of Pivotal shall be subject to the financial limitations set out in sub-section 6.B.
F. Licensee waives the right to bring any claim arising out of or in connection with this EULA more than twenty-four (24) months after the date of the cause of action giving rise to such claim.
G. LICENSEE OBLIGATIONS IN RESPECT OF PRESERVATION OF DATA. During the term of the EULA the Licensee shall:
11.3. Section 10 (GENERAL) The first two sentences of Section 10 shall be deleted and replaced with:This EULA is governed by the laws of the Republic of Ireland, excluding its conflict of law rules. Each party hereby expressly consents to the personal jurisdiction of the Dublin Courts and agrees that any action relating to or arising out of this EULA be instituted and prosecuted only in the Dublin Courts.
“Affiliate” means a legal entity controlled by, controls, or is under common control of Pivotal or Licensee, with “control” meaning more than 50% of the voting power or ownership interests then outstanding of that entity.
“Beta Component” means a Software component not yet generally available but included in Software.
“Claim(s)” means any third party claim, notice, demand, action, proceeding, litigation, investigation or judgment.
“Confidential Information” means the terms of this EULA, Software, and all confidential and proprietary information of Pivotal or Licensee, 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 (i) rightfully in the receiving party’s possession without prior obligation of confidentiality from the disclosing party; (ii) a matter of public knowledge (or becomes a matter of public knowledge other than through breach of confidentiality by the other party); (iii) rightfully furnished to the receiving party by a third party without confidentiality restriction; or (iv) independently developed by the receiving party without reference to the disclosing party's Confidential Information.
“Distributor” means a reseller, distributor, system integrator, service provider, independent software vendor, value-added reseller, OEM or other partner authorized by Pivotal to license Software to end users, and any third party duly authorized by a Distributor to license Software to end users.
“Documentation” means documentation provided to Licensee by Pivotal with Software, as revised by Pivotal from time to time.
“Evaluation Period” means 90 days starting from delivery of the Evaluation Software or Beta Components.
“Evaluation Software” means Software made available for the Evaluation Period at no charge, for Licensee’s evaluation purposes only (a) subject to a signed order; or (b) where Licensee has not signed a Quote.
“Guide” means the Pivotal Product Guide available at http://www.pivotal.io/product-guide, in effect on the date of the Quote and incorporated into this EULA.
“Licensee” means the person or the entity obtaining Software, and its permitted successors and assigns.
“Major Release” means a generally available release of Software that Pivotal designates with a change in the digit to the left of the first decimal point (e.g., 5.0 >> 6.0).
“Minor Release” means a generally available release of Software that Pivotal designated with a change in the digit to the right of the decimal point (e.g., 5.0 >> 5.1).
“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 Software.
“Order” means a purchase order or other ordering document either signed by the parties or issued by Licensee to Pivotal or a Distributor that references and incorporates this EULA and is accepted by Pivotal as set forth in Section 3.
“Perpetual License” means access to Software and Documentation subject to the licensing terms and restrictions set forth in the Guide on a perpetual basis.
“Quote” means a pricing quote issued by Pivotal or its Distributor.
“Software” means Pivotal computer programs listed in the Guide identified in a Quote, indicating a Perpetual License or Subscription License.
“Subscription License” means (a) access to Software and Documentation subject to the licensing terms and restrictions set forth in the Guide; and (b) Support Services, which include any Minor and Major Releases and upgrades introduced with respect to the Subscription License set forth in the Quote on a “when and if available” basis, all during the Subscription Period.
“Subscription Period” means the period starting upon notification to Licensee that Software is available for download, and continues for the period specified in the Quote.
“Support Services” means services described at: http://www.pivotal.io/support.
“Territory” means the country or countries in which Licensee has been invoiced.
“Third Party Agent” means Licensee’s employees or contractors delivering information technology services to Licensee pursuant to a written contract requiring compliance with this EULA.
“Warranty Period” means 90-days following the first notice of availability of Software for download.
Pivotal Software EULA February 9, 2016 version 13