This End User License Agreement ("EULA") is a CONTRACT between you (either an individual or a single entity)("Licensee" or "you") and VMware, Inc. ("VMware"), which covers your use of the VMware VMmark that accompanies this EULA and related software components, which may include associated media, printed materials, and "online" or electronic documentation. All such software and materials are referred to herein as the "Software." If you do not agree to the terms of this EULA, then do not install or use the Software. By explicitly accepting this EULA, however, or by installing, copying, downloading, accessing, or otherwise using the Software, you are acknowledging and agreeing to be bound by the following terms.
(a) "Software" shall mean the version of VMware's software including any VMware Tools and Updates thereto, in object and source form, (excluding any Open Source Software provided with such software), and the media and Documentation provided by VMware to Licensee and for which Licensee is granted a use license pursuant to this EULA.
(b) "Documentation" shall mean the printed or online written reference material furnished to Licensee in conjunction with the Software, including, without limitation, instructions, run and reporting rules, testing and benchmarking guidelines, and end user guides.
(c) "Intellectual Property Rights" shall mean all intellectual property rights, including, without limitation, patent, copyright, trademark, and trade secret.
(d) "Open Source Software" means various open source software components provided with the Software that are licensed to you under the terms of the applicable license agreements included with such open source software components or other materials for the Software.
(e) "Updates" shall mean a modification, error correction, bug fix, new release, or other update to or for the Software.
(f) "VMware Tools" means a suite of utilities and drivers that may enhance the performance and functionality of your Guest Operating System. VMware Tools may include some or all of the following, depending on your Guest Operating System: an SVGA driver, a mouse driver, the VMware Tools control panel and support for features such as shared folders, drag and drop in Windows guests, shrinking virtual disks, time synchronization with the host, VMware Tools scripts, and connection and disconnection of devices while the virtual machine is running.
2. GRANT AND USE RIGHTS FOR SOFTWARE
(a) Limited License. Subject to the terms and conditions of this EULA, VMware grants to Licensee a non-exclusive, non-transferable license (without the right to sublicense) (i) to use the Software in accordance with the Documentation solely for purposes of conducting performance testing and benchmarking studies, (ii) to use the Documentation provided with the Software in support of Licensee's authorized use of the Software, and (iii) to copy Software for archival or backup purposes, provided that all titles and trademarks, copyright, and restricted rights notices are reproduced on such copies.
(b) Restrictions. Licensee shall not copy or use the Software (including the Documentation) or disseminate Confidential Information, as defined below, to any third party except as expressly permitted in this EULA. Licensee will not, and will not permit any third party to, sublicense, rent, copy, modify, create derivative works of, translate, reverse engineer, decompile, disassemble, or otherwise reduce to human perceivable form any portion of the Software or accompanying Documentation. In no event shall Licensee use the Software for Licensee's product development or any other commercial purpose. Only you and/or authorized third parties may publish or publicly disseminate the results of your performance testing and benchmark studies, provided that such performance testing and benchmarking studies conform to the VMmark run and reporting rules and the testing and benchmarking guidelines.
(c) Ownership. VMware shall own and retain all right, title and interest in and to the Intellectual Property Rights in the Software and any derivative works thereof, subject only to the limited license expressly set forth in Section 2(a) hereof. Licensee does not acquire any other rights, express or implied, in the Software. ALL RIGHTS NOT EXPRESSLY GRANTED HEREUNDER ARE RESERVED TO VMWARE.
(d) No Support Services. VMware is under no obligation to support the Software in any way or to provide any Updates to Licensee. In the event VMware, in its sole discretion, supplies any Update to Licensee, such Update shall be deemed Software hereunder and shall be subject to the terms and conditions of this EULA.
(e) Third-Party Software. Licensee acknowledges that Licensee is responsible for obtaining any licenses necessary to operate any third-party software, including guest operating systems.
(f) Open Source Software. The terms and conditions of this EULA shall not apply to any Open Source Software accompanying the Software. Any such Open Source Software is provided under the terms of the open source license agreement or copyright notice accompanying such Open Source Software or in the open_source_licenses file accompanying the Software.
3. TERM AND TERMINATION. VMware may terminate this EULA immediately and without notice if you fail to comply with any term of this EULA. In the event of termination of this EULA, you must immediately cease using and will return to VMware or at VMware's request, destroy all copies of the Software and Documentation and all other tangible items in your possession or control that are proprietary to or contain Confidential Information. From time to time, VMware may change the terms of this EULA. VMware will notify you of such change. Your continued use of the Software will indicate your agreement to the change. The rights and obligations of the parties set forth in Sections 2(b) 2(c), 2(d), 2(e), 2(f), 2(g), 3, 4, 5, 6 and 7 shall survive termination of this EULA for any reason.
4. CONFIDENTIALITY. "Confidential Information" shall mean all trade secrets, know-how, inventions, techniques, processes, algorithms, software programs, hardware, schematics, planned product features, functionality, methodology, performance and software source documents relating to the Software, and other information provided by VMware, whether disclosed orally, in writing, or by examination or inspection, other than information which Licensee can demonstrate (i) was already known to Licensee, other than under an obligation of confidentiality, at the time of disclosure; (ii) was generally available in the public domain at the time of disclosure to Licensee; (iii) became generally available in the public domain after disclosure other than through any act or omission of Licensee; (iv) was subsequently lawfully disclosed to Licensee by a third party without any obligation of confidentiality; or (v) was independently developed by Licensee without use of or reference to any information or materials disclosed by VMware or its suppliers. Confidential Information shall include without limitation the Software, Documentation, any Updates, information relating to VMware products, product roadmaps, and other technical, business, financial and product development plans, forecasts and strategies. Licensee shall not use any Confidential Information for any purpose other than as expressly authorized under this EULA. In no event shall Licensee use the Software or any Confidential Information to develop, manufacture, market, sell, or distribute any product or service. In no event shall Licensee disclose any Confidential Information to any third party. Without limiting the foregoing, Licensee shall use at least the same degree of care that it uses to prevent the disclosure of its own confidential information of like importance, but in no event less than reasonable care, to prevent the disclosure of such Confidential Information.
5. LIMITATION OF LIABILITY. IT IS UNDERSTOOD THAT THE SOFTWARE IS PROVIDED WITHOUT CHARGE FOR LIMITED PURPOSES. ACCORDINGLY, THE TOTAL LIABILITY OF VMWARE AND ITS SUPPLIERS ARISING OUT OF OR RELATED TO THIS EULA SHALL NOT EXCEED THE LICENSE FEES, IF ANY, PAID BY YOU FOR THE SOFTWARE LICENSED TO YOU UNDER THIS EULA. IN NO EVENT SHALL VMWARE OR ITS SUPPLIERS HAVE LIABILITY FOR ANY INDIRECT, INCIDENTAL, SPECIAL, OR CONSEQUENTIAL DAMAGES (INCLUDING, WITHOUT LIMITATION, DAMAGES FOR LOSS OF BUSINESS PROFITS, BUSINESS INTERRUPTION, OR LOSS OF BUSINESS INFORMATION), HOWEVER CAUSED AND ON ANY THEORY OF LIABILITY, EVEN IF VMWARE AND ITS SUPPLIERS HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THESE LIMITATIONS SHALL APPLY NOT¬WITH¬STANDING ANY FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY.
6. WARRANTY DISCLAIMER. IT IS UNDERSTOOD THAT THE SOFTWARE, DOCUMENTATION, AND ANY UPDATES MAY CONTAIN ERRORS AND ARE PROVIDED FOR LIMITED PURPOSES ONLY. THE SOFTWARE, THE DOCUMENTATION, AND ANY UPDATES ARE PROVIDED "AS IS" WITHOUT WARRANTY OF ANY KIND, WHETHER EXPRESS, IMPLIED, STATUTORY, OR OTHERWISE. VMWARE AND ITS SUPPLIERS SPECIFICALLY DISCLAIM ALL IMPLIED WARRANTIES OF MERCHANTABILITY, NONINFRINGEMENT, AND FITNESS FOR A PARTICULAR PURPOSE. THE FOREGOING LIMITATIONS SHALL APPLY TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, 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. OTHER PROVISIONS
(a) Governing Law. This EULA, and all disputes arising out of or related thereto, shall be governed by and construed under the laws of the State of California without reference to conflict of laws principles. All such disputes shall be subject to the exclusive jurisdiction of the state and federal courts located in Santa Clara County, California, and the parties agree and submit to the personal and exclusive jurisdiction and venue of these courts.
(b) Assignment. Licensee shall not assign this EULA or any rights or obligations hereunder, directly or indirectly, by operation of law, merger, acquisition of stock or assets, or otherwise, without the prior written consent of VMware. Subject to the foregoing, this EULA shall inure to the benefit of and be binding upon the parties and their respective successors and permitted assigns.
(c) Export Regulations. Licensee understands that VMware is subject to regulation by the U.S. government and its agencies, which prohibit export or diversion of certain technical products and information to certain countries and individuals. Licensee warrants that it will comply in all respects with all export and re-export restrictions applicable to the technology and documentation provided hereunder.
(d) Modification. This is the entire EULA between the parties relating to the subject matter hereof and all other terms are rejected. No waiver or modification of this EULA shall be valid unless in writing signed by each party. The waiver of a breach of any term hereof shall in no way be construed as a waiver of any term or other breach hereof. If any provision of this EULA is held by a court of competent jurisdiction to be contrary to law the remaining provisions of this EULA shall remain in full force and effect.
8. CONTACT INFORMATION. If you have any questions about this EULA, or if you want to contact VMware for any reason, please direct all correspondence to: VMware, Inc., 3401 Hillview Avenue, Palo Alto, CA 94304, United States of America or email email@example.com.
VMware is a trademark of VMware, Inc.