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 Software License Key. Notwithstanding any other provision in this EULA, an Evaluation License of the Software is provided "AS-IS" without support or warranty of any kind, expressed or implied.
1.1 "Documentation" means, collectively, the operation instructions, release notes, user manuals and/or help files for the Software in electronic or written form.
1.2 "Guest Operating Systems" means instances of third-party operating systems licensed separately by You and installed in a Virtual Machine.
1.3 "Software" means software products that are licensed to You under this EULA, including, but not limited to, any related components purchased or provided with the Software, Documentation, and any maintenance releases thereto.
1.4 "Software License Key" means a valid serial number issued to You to activate and use the Software.
1.5 "Open Source Software" means various software components including open source software, that may be part of the Software, each licensed to You under its own applicable license terms and conditions, 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.
1.6 "Virtual Machine" means a software container that can run its own operating system and execute applications like a physical machine.
2. GRANT AND USE RIGHTS FOR SOFTWARE
2.1 License Grant. The Software is licensed, not sold. Subject to the terms of this EULA, VMware grants You a non-exclusive, non-transferable license, without rights to sublicense, to use the Software in the country where You are invoiced in accordance with the Documentation and the VMware license model (per device, per processor, per server, per single user, per virtual machine, or any other VMware approved license model) specified in Section 8 of this EULA for which You have paid the applicable license fees. If You were invoiced in the European Union for the Software, You may use that Software in any of the European Union member states. For VMware Workstation and Fusion, You may use the Software without the invoice-country restriction. You may allow third party consultants or contractors to access and use the Software on Your behalf solely for Your internal business operations, provided, they are bound by an agreement with You protecting VMware’s intellectual property with terms no less stringent than this EULA and You ensure that such third party use of the Software complies with the terms of this EULA. You may make one backup, unmodified copy of the Software solely for archival purpose. If You upgrade or exchange the Software from a previous validly licensed version, You must cease use of the prior version of that Software. You agree to provide written certification of destruction of the previous version of the Software upon VMware’s request.
2.2 Restrictions. Except as expressly permitted by this EULA or by applicable law, You may not (i) sell, lease, assign, license, sublicense, distribute or otherwise transfer in whole or in part the Software; (ii) permit any use of or access to the Software by any third party;(iii) 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 2.2(iii), You may use the Software to deliver hosted services to Your affiliates that are directly or indirectly controlled by, or are under common control with You. "Control" in this Section 2.2(iii) means an ownership, voting or similar interest representing fifty percent (50%) or more of the total interests then outstanding of the relevant entity; (iv) decompile, disassemble, reverse engineer, or otherwise attempt to derive source code from the Software; (v) modify or create derivative works based upon the Software; or (vi) 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 in the Software. If You wish to exercise any rights to reverse engineer to ensure interoperability in accordance with applicable law, You must first provide VMware with written notice and all reasonably requested information to email@example.com within 30 days and permit VMware to assess your claim and, at VMware’s sole discretion, to make an offer to provide alternatives that reduce any adverse impact on VMware’s intellectual property or other rights.
2.3 VMware Tools. You may use or distribute the suite of utilities and drivers that may be part of the Software ("VMware Tools") to any third party provided that (i) You only distribute the VMware Tools as a whole in object code format, whether or not as part of the Virtual Machine You create with the Software; and (ii) You agree to indemnify, hold harmless, and defend VMware from and against any claims or lawsuits, including attorneys’ fees, that relate to your distribution of VMware Tools.
2.4 Benchmarking. You may use the Software to conduct internal performance testing and benchmarking studies, the results of which only You may publish or publicly disseminate, provided that VMware has reviewed and approved of the methodology, assumptions and other parameters of your testing and studies. Please contact VMware at firstname.lastname@example.org to request such review. For VMware Workstation and Fusion benchmarks, You may publish or publicly disseminate the results without VMware’s prior review and approval.
2.5 Third-party Software. You are responsible for separately obtaining and complying with any licenses necessary to operate third-party software, including but not limited to, Guest Operating Systems and application programs which the Software enables You to run.
2.7 Audit Rights. During the term of this EULA and for two (2) years after termination or expiration of the EULA or support and subscription services for the applicable Software has expired, You agree to maintain accurate records as to your installation and use of the Software, sufficient to provide evidence of compliance with the terms of this EULA. VMware, or an independent third party designated by VMware, may audit, upon written notice to You, your books, records, and computing devices to determine your compliance with this EULA and your payment of the applicable license and support services fees, if any, for the Software. VMware may conduct no more than one (1) audit in any twelve (12) month period. In the event that any such audit reveals an underpayment by You of more than five percent (5%) of the license amounts due to VMware in the period being audited, or that You have breached any term of the EULA, then, in addition to paying to VMware any underpayments for Software licenses and Support and Subscription ("SnS") fees and any other remedies VMware may have, You will promptly pay to VMware the audit costs incurred by VMware.
3. TITLE. VMware retains all right, title, and interest in and to the Software, the Software License Key(s) and all related intellectual property rights. VMware retains all rights not expressly granted to You in this EULA.
4. SUPPORT AND SUBSCRIPTION SERVICES. Except as expressly specified in Section 8 of this EULA, 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 VMware’s then-current Support and Subscription Contract Terms and Conditions.
5. TERMINATION. VMware may terminate this EULA immediately upon notice if You fail to comply with any term of this EULA. In the event of termination, You must remove and destroy all copies of the Software and Software License Key(s), including all backup copies, from the server and all computers and terminals You own, possess or control and on which the Software is installed. Any obligations to pay fees incurred prior to termination and Sections 1, 2, 3, 6, and 7 of this EULA shall survive termination for any reason.
6. LIMITED WARRANTY AND LIMITATION OF LIABILITY
6.1 Limited Warranty. VMware warrants that (i) the physical media, if any, on which the Software is delivered will be free of defects in materials and workmanship; and (ii) that the Software will substantially conform to the functional description set forth in the standard Documentation accompanying the Software for a period of 90 days after the date of delivery of the Software License Key to You ("Warranty Period"). If the physical media is defective and is returned to VMware within the Warranty Period, your exclusive remedy will be VMware’s option to repair or replace the defective physical media.. To return the defective physical media, send an email to email@example.com to request a return authorization number. If during the Warranty Period the Software does not substantially conform to the functional description set forth in the Documentation, your exclusive remedy will be that VMware shall, at its sole option, correct the defects in the Software or refund the license fees You paid, if any, for the Software provided that (i) the Software has been properly installed and used at all times and in accordance with the Documentation; (ii) no modification, deletion or addition has been made to the Software by persons other than VMware or its authorized representative; and (iii) VMware receives written notice of the non-conformity within the Warranty Period. EXCEPT FOR THE PRECEDING EXPRESS LIMITED WARRANTY, TO THE MAXIMUM EXTENT MANDATED BY LAW, VMWARE AND ITS LICENSORS PROVIDE THE SOFTWARE WITHOUT ANY WARRANTIES OF ANY KIND, EXPRESS, IMPLIED, STATUTORY, OR IN ANY OTHER PROVISION OF THIS EULA OR COMMUNICATION WITH YOU, AND VMWARE AND ITS LICENSORS SPECIFICALLY DISCLAIM ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT.
6.2 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, 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, 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.
7.1 Entire Agreement. This EULA represents the entire agreement between the parties with respect to the Software, and supersedes any prior or contemporaneous oral or written agreements concerning the subject matter contained herein.
7.2 Headings. Headings under this EULA are intended only for convenience and shall not affect the interpretation of this EULA.
7.3 Waiver and Modification. No failure of either party to exercise or enforce any of its rights under this EULA will act as a waiver of those rights. This EULA may only be modified, or any rights under it waived, by a written agreement executed by the party against which it is asserted.
7.4 Severability. If any provision of this EULA is found illegal or unenforceable, it will be enforced to the maximum extent permissible, and the legality and enforceability of the other provisions of this EULA will not be affected.
7.5 Export Controls. The Software is of United States origin and is provided subject to the U.S. Export Administration Regulations. Diversion contrary to U.S. law is prohibited. Without limiting the foregoing, you agree that (1) you are not, and are not acting on behalf of, any person who is a citizen, national, or resident of, or who is controlled by the government of, Cuba, Iran, North Korea, Sudan, or Syria, or any other country to which the United States has prohibited export transactions; (2) you are not, and are not acting on behalf of, any person or entity listed on the U.S. Treasury Department list of Specially Designated Nationals and Blocked Persons, or the U.S. Commerce Department Denied Persons List or Entity List; and (3) you will not use the Software for, and will not permit the Software to be used for, any purposes prohibited by law, including, without limitation, for any prohibited development, design, manufacture or production of missiles or nuclear, chemical or biological weapons.
7.6 U.S. Government Restricted Rights. The Software and 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, performance, display, or disclosure of the Software by the U.S. Government shall be governed solely by the terms of this EULA.
7.7 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.
7.8 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 firstname.lastname@example.org.
8. SOFTWARE-SPECIFIC TERMS AND CONDITIONS. In addition to the above sections, the Software is subject to the following terms and conditions. In the event of any conflict between the Software-specific terms and conditions and sections 1-7 of the EULA, the Software-specific terms and conditions shall control.
vCenter Operations Manager
"Managed System" means a physical hardware system or a Virtual Machine being monitored by the Software.
"Network Device" means a hardware or software component that connects network segments and mediates data in a computer network being monitored by the Software.
"Storage Capacity" means up to one terabyte (1TB) of stored data being monitored by the Software.
You may use the Software for the up to the number of Managed System, Network Device, and/or Storage Capacity for which you have paid the applicable license fees.
VMware and its licensors retain all right, title, and interest in and to the Software, the Software License Key(s) and all related intellectual property rights.
You may not (a) remove or modify any program markings or any notice of VMware’s or its licensors’ proprietary rights; (b) assign this EULA or give the Software, Software access or an interest in the Software to any individual or entity except as provided under this EULA; or (c) disclose results of any Software benchmark tests without VMware’s prior written consent.
THE SOFTWARE MAY INCLUDE PROGRAMS LICENSED BY ORACLE CORPORATION ("ORACLE"). ANY ORACLE SOFTWARE ("ORACLE COMPONENTS") INCLUDED WITH THE SOFTWARE ARE PROVIDED "AS IS", WITHOUT WARRANTY OF ANY KIND. REGARDING THE ORACLE COMPONENTS, ORACLE AND VMWARE FURTHER DISCLAIM ALL WARRANTIES, EXPRESS AND IMPLIED, INCLUDING WITHOUT LIMITATION, ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE OR NONINFRINGEMENT.
IN NO EVENT SHALL ORACLE, VMWARE, OR VMWARE’S AFFILIATES HAVE ANY LIABILITY REGARDING THE ORACLE COMPONENTS PROVIDED UNDER THIS AGREEMENT, INCLUDING WITHOUT LIMITATION FOR ANY DIRECT, INDIRECT, INCIDENTAL, SPECIAL, PUNITIVE OR CONSEQENTIAL DAMAGES, OR DAMAGES FOR LOSS OF PROFITS, REVENUE, DATA OR DATA USE, INCURRED BY YOU OR ANY THIRD PARTY, WHETHER IN ACTION IN CONTRACT OR TORT OR OTHERWISE, EVEN IF ANY SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. ORACLE’S ENTIRE LIABILITY FOR DAMAGES UNDER THIS EULA SHALL IN NO EVENT EXCEED ONE THOUSAND DOLLARS (U.S. $1,000).
LIMITATION ON AND EXCLUSION OF REMEDIES AND DAMAGES. YOU CAN RECOVER FROM LICENSORS AND THEIR SUPPLIERS ONLY DIRECT DAMAGES UP TO U.S. $5.00. YOU CANNOT RECOVER ANY OTHER DAMAGES, INCLUDING CONSEQUENTIAL, LOST PROFITS, SPECIAL, INDIRECT OR INCIDENTAL DAMAGES.
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. THE FOREGOING SHALL APPLY TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, REGARDLESS OF WHETHER VMWARE, VMWARE’S AFFILIATES OR ORACLE HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES AND REGARDLESS OF WHETHER ANY REMEDY FAILS OF ITS ESSENTIAL PURPOSE.
The relationship between You and VMware is that of licensee and licensor. Neither party will represent that it has any authority to assume or create any obligation, express or implied, on behalf of the other party, nor to represent the other party as agent, employee, franchisee, or in any other capacity.
Do you agree to be bound by the terms of this EULA and affirm the following: