TERMS OF SERVICE

VMware vCloud® Air™ (UK Data Centers)

Last updated: August 21, 2014

VMware vCloud Air is an infrastructure as a service offering. By accessing any service offered through vCloud Air (the " Service Offering") you agree to be bound by these terms of service between you and VMware (" Agreement"). If you do not agree to this Agreement, you must not access the Service Offering. An individual accepting this Agreement on behalf of an organization represents and warrants having legal authority to bind that organization. " You" means the entity accepting this Agreement. " VMware", " we", or " us" means VMware, Inc., a Delaware corporation, to the extent that you are purchasing the Service Offering in the United States, and VMware International Limited, a company organized and existing under the laws of Ireland, to the extent that you are purchasing the Service Offering outside the United States. Capitalized terms used in this Agreement are defined throughout this Agreement and in Section 15.

 

EVALUATION PROGRAM USE.  When you access the Service Offering under a VMware evaluation program, you may use the Service Offering only for non-production computing activity. Notwithstanding any other provision in this Agreement, we provide the Service Offering under a VMware evaluation program strictly on an ”AS-IS” basis without indemnification or support of any kind. We make no representations and exclude all express and implied warranties, conditions and other terms in respect of any evaluation program access to the fullest extent permitted by applicable law. Other than for death or personal injury caused by our negligence, we will have no liability of any kind to you in respect of the Service Offering for sums that exceed USD 500. Upon termination of the evaluation, you will no longer have access to the Service Offering and Your Content.


1.  The Service Offering.


1.1  Generally.  This Agreement governs your access and use of the Service Offering.  We may deliver the Service Offering to you with the assistance of our affiliates, licensors and providers.  Service Level Agreements may apply to the Service Offering.  You will comply with all laws, rules and regulations applicable to your use of the Service Offering, and with the Third Party Terms, the Service Description, and the Support Policy. 

 

1.2  Access to the Service Offering.  You may access and use the Service Offering solely for your own benefit and only in accordance with this Agreement.  To access the Service Offering, you must register for the Service Offering and set up an authorized account with Login Credentials.  You may monitor and manage your Service Offering account via the My VMware Portal available at www.vmware.com/accounts and through the Service Offering Portal available at http://vcloud.vmware.com/UK.  You must keep confidential your Login Credentials.  If you set up an authorized account for an organization, you will require that all authorized users of that account (including anyone providing services to you) keep confidential their Login Credentials. You will keep your registration information accurate, complete and current as long as you use the Service Offering.  You are responsible for any use that occurs under your Login Credentials, including any activities by you, or your employees, contractors or agents.  If you believe an unauthorized user has gained access to your Login Credentials, you will notify us as soon as possible.  Neither we nor our affiliates are responsible for any unauthorized access to or use of your account.

 

1.3  Verifying; Cooperation.  We reserve the right to verify your compliance with this Agreement.  If we verify, you will provide information or other materials reasonably requested by us.  We monitor the overall performance and stability of the infrastructure of the Service Offering. You may not block or interfere with that monitoring.  In the event that we reasonably believe a problem with the Service Offering may be attributable to your use or Your Content, you will cooperate with us to identify the source of that problem.  

 

1.4  Additional Terms; Third Party Content.  As part of your use of the Service Offering, you may receive access to additional data, content, software or applications subject to separate terms. If so, those separate terms will prevail over this Agreement as to your use of those data, content, software or applications. Third Party Content is available “AS-IS”, without indemnification or support, and we disclaim all express and implied warranties, conditions and other terms (including as to merchantability, satisfactory quality, fitness for a particular purpose, and non-infringement). You are responsible for reviewing, accepting, and complying with any third party terms of use or other restrictions applicable to the Third Party Content.  Those terms will be available to you through a notification within the Service or the Third Party Terms. It is your responsibility to check the Third Party Terms available at https://www.vmware.com/files/uk/pdf/support/vmware-vcloud-air-third-party-terms.pdf, which we may modify from time to time, for any terms or restrictions applicable to your use of Third Party Content.  We may provide billing and related services associated with the Third Party Content. We will not provide any support for the Third Party Content unless otherwise noted in the Third Party Terms.  We reserve the right to suspend or terminate the Third Party Content at any time, but we will use commercially reasonable efforts to provide reasonable notice of that suspension or termination. Except as permitted under Sections 6 and 7, we will only suspend or terminate Third Party Content during an ongoing Subscription Term if the Third Party Content is no longer available to VMware and will provide a pro-rata refund of any pre-payments (if any) made for the Third Party Content.

 

1.5  Early Evaluation/Beta Features.  We may identify and make available on an early evaluation or beta basis certain features or functionality within the Service Offering.  You must use these features or functionality only for evaluation purposes and for the period that we specify.  We provide these features and functions “AS-IS,” without indemnification or support and disclaim all express and implied warranties, conditions and other terms (including as to merchantability, satisfactory quality, fitness for a particular purpose, and non-infringement).  Any early evaluation or beta features or functionality do not constitute an implied commitment to offer to you or anyone these features and functionality as part of the Service Offering on a generally available basis.

 

1.6  Open Source Software.  You may receive open source software when you use the Service Offering and any open source software distributed to you is made available under the applicable open source license, which can be found at: http://www.vmware.com/uk/download/open_source.html. You may obtain a copy of these licenses and any source code (and modifications) that we are required to make available under these licenses (the “Source Files”) at http://www.vmware.com/uk/download/open_source.html or by sending a written request, with your name and address to: VMware, Inc., 3401 Hillview Avenue, Palo Alto, CA 94304, United States of America. All written requests must clearly specify:  Open Source Files Request, Attention: General Counsel.  This offer to obtain a copy of the Source Files is valid for three years from the date you last received open source software as part of the Service Offering or last accessed the Service Offering.

 

2.  Your Content.

 

2.1  Your Content.  You are solely responsible for Your Content.  We access and use Your Content only as necessary to provide the Service Offering to you (which we may do with the assistance of affiliates, service providers and contractors), perform or enforce contractual obligations, or comply with applicable law.  For example, we may need to access or use Your Content (or provide it to one of our affiliates, service providers or contractors) to (a) prevent or address service or technical problems; (b) provide customer support; (c) detect, prevent or address fraud, technology or security issues; (d) protect against harm to the rights, property or safety of us, our customers or the public; or (e) respond to a subpoena, warrant, audit or agency action or other law enforcement request. 

 

2.2  Security.  Except as provided by Section 13.4, 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, and in transit to and from the Service Offering.  The Service Offering provides you with certain software and functionality to help you protect Your Content from unauthorized access. You will properly configure and use the Service Offering so that it is suitable for your use.  You will take and maintain appropriate security, protection and backup of Your Content, which might include the use of encryption technology to protect Your Content from unauthorized access. You are responsible for providing any necessary notices to your users and obtaining any legally-required consents from your users concerning their use of the Service Offering.  You are solely responsible for complying with any laws or regulations that might apply to Your Content.  You are responsible for any losses or other consequences arising from your failure to encrypt or back up Your Content.

 

 

2.3  Transfer of Data.  You consent that we will store Your Content in the country of the data center specified in your Order.  By uploading Your Content into the Service Offering, you may transfer and access Your Content from around the world, including to and from the jurisdiction in which your selected data center is located.  To the extent you provide Your Content in connection with customer support, you consent that we may handle Your Content in any country in which we or our agents maintain facilities. 

 

3.  Acceptable Use.

 

3.1  General Restrictions.  You will not, and will not permit any third party to, as solely determined by us: (a) use the Service Offering to violate or encourage the violation of the rights of others (including Intellectual Property Rights); (b) use the Service Offering to engage in, advertise or deliver pornographic, or illegal activities;  (c) circumvent or violate the restrictions of the Service Offering as described in this Agreement or Service Description; (d) reverse engineer, or otherwise attempt to derive source code from the Service Offering, unless we make the source code publicly available or if (and then only to the extent) such prohibition is not permitted under applicable law; (e) disable, interfere with, disrupt, or circumvent any aspect of the Service Offering, including the integrity or performance of the Service Offering, or third-party content or data provided through the Service; (f) access or use the Service Offering in a way intended to avoid recurring fees or exceeding usage limits; or (g) resell or sublicense the Service Offering.  You must ensure that your users comply with the terms of this Agreement, and you agree that if you become aware of any violation by one of your users, you will terminate that user’s access to Your Content immediately.  If we have reason to believe that you or your users have breached this Agreement, we or our designated agent may review your use of the Service Offering, including your account, Your Content, and records, to verify your compliance with this Agreement.

 

3.2  Content Restrictions.  You will take steps to ensure that your authorized users and third party users who access any service you provide with the Service Offering do not post content that: (a) may create a risk of harm, loss, physical or mental injury, emotional distress, death, disability, disfigurement, or physical or mental illness to anyone; (b) may create a risk of any other loss or damage to any person or property; (c) may constitute or contribute to a crime or tort; (d) contains any information or content that is illegal, unlawful, harmful, abusive, pornographic, 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; or (e) contains any information or content that you do not have a right to make available under any law or under contractual or fiduciary relationships.  You are solely responsible for any software, product or service that a third party licenses, sells or makes available to you that you install or use with the Service Offering.  Your use of that software, product or service is governed by separate terms between you and that third party.  We are not a party to and are not bound by any of those separate terms.   You represent and warrant that Your Content does not and will not violate any third-party rights, including any Intellectual Property Rights, and rights of publicity and privacy.  You will ensure that your use of the Service Offering complies at all times with your privacy policies and all applicable laws and regulations, including any encryption requirements.  You will not include in Your Content any Classified Information that is subject to the UK Government Protective Marking Scheme, or similar information as determined by any other laws or regulations.

 

3.3  Violations of Acceptable Use.  If you become aware that any of Your Content or your user’s use of Your Content violates Section 3.1 or 3.2, you will immediately suspend and remove the applicable part of Your Content or suspend the end user’s access.  If you fail to do so, we may ask you to do so. If you fail to comply with our request within twenty-four hours, we may suspend your account or disable access to Your Content until you comply with our request. 

 

3.4  Notification of Infringement Concerns.  If you believe that your copyrighted work has been copied and is accessible on our Service Offering in a way that constitutes copyright infringement, please send a notice to us as further detailed in Section 8 of the Community Terms of Use available at http://www.vmware.com/uk/community_terms.html.

 

4.  IP Ownership.

 

4.1  Ownership of Service Offering.  We and our licensors own and retain all right, title and interest in and to the Service Offering and any related VMware Software, including all improvements, enhancements, modifications and derivative works thereof, and all Intellectual Property Rights therein. This includes any information that we collect and analyze in connection with the Service Offering, such as usage patterns, user feedback and other information to improve and evolve our software products and services offerings. Your rights to use the Service Offering are limited to those expressly granted in this Agreement.  No other rights with respect to the Service Offering, any related VMware Software, or any related Intellectual Property Rights are implied.

 

4.2  Ownership of Your Content.  You and your authorized users retain all right, title and interest in and to Your Content and all Intellectual Property Rights therein.  Our rights to access and use Your Content are limited to those expressly granted in this Agreement.  No other rights with respect to Your Content or any related Intellectual Property Rights are implied.

 

4.3.  Feedback.  We will be free to use for any purpose any feedback (such as comments or suggestions) that you provide to us regarding the Service Offering.  You hereby grant to us a non-exclusive, perpetual, irrevocable, royalty-free, transferable, worldwide right and license, with the right to sublicense, to use, reproduce, perform, display, disclose, distribute, modify, prepare derivative works of and otherwise exploit the feedback without restriction in any manner now known or in the future conceived and to make, use, sell, offer to sell, import and export any product or service that incorporates the feedback.

 

5.  Order, Delivery, Payment, and Taxes.

 

5.1  Generally.  Sections 5.3 (Direct Orders), 5.4 (Delivery), 5.5 (Invoicing and Payment Terms) and 5.6 (Taxes) apply only to orders you place directly with, and the Service Offering you purchase directly from, VMware.  When ordering through, or purchasing the Service Offering from, a VMware authorized reseller, the authorized reseller might specify similar terms.

 

5.2  Orders.  All Orders issued to VMware are subject to the terms of this Agreement and are not binding until accepted by VMware.  We are not required to provide any Service Offering to you until you provide all information we require for processing your Order.

 

5.3  Direct Orders.  For orders placed directly with VMware, you must issue a purchase order to VMware for the initial Service Offering order, but a purchase order is not required for the monthly billings that occur after the initial Order billing.  For subsequent billings, all fees (including subscription renewals, metered usage components, and other add-ons) will be paid in accordance with this Agreement.  Your request to purchase a Service Offering will be deemed accepted when we authorize the purchased Service Offering for your Login Credentials.

 

5.4  Delivery.  When VMware accepts your Order for the Service Offering, we will deliver the corresponding Login Credentials to you by email to the address associated with your account.  If VMware ships a physical object in connection with an add-on feature of the Service Offering, shipping and delivery terms are Ex Works VMware’s regional fulfillment facility (INCOTERMS 2010).

 

5.5  Invoicing and Payment Terms.  You will pay all fees for use of the Service Offering in the amount and currency specified in your invoice, within 30 days after the date of the invoice, and regardless of your usage level during a billing period.  You will also be responsible for all additional fees for any subscription renewals and metered usage components consumed, and other subscriptions, features, products, services or add-ons that you purchase within the Service Offering.  You will be billed in advance for the monthly or prepaid charges due to the subscription services purchased.  Any metered usage components and any initial monthly fees will be billed in arrears.  The applicable fees for subscriptions (including renewals), features and other available products and services will be governed by the then-current applicable price list at the time that the initial, renewal or add-on order is submitted or as otherwise agreed. We may increase or add new fees for the Service Offering by notifying you at least 30 days in advance.  

 

5.6  Taxes.  Service Offering fees are exclusive of taxes, and you shall pay or reimburse for all taxes arising out of transactions contemplated by this Agreement.  If you are required to pay or withhold any tax for payments due under this Agreement, you shall gross your payments to us so we receive sums due in full and free of any deductions.  You will provide documentation to us showing that taxes have been paid to the relevant taxing authority.  “Taxes” means any sales, VAT, use, gross receipts, business and occupation, and other taxes (other than taxes on our income), export and import fees, customs duties and similar charges imposed by any government or other authority.  You hereby confirm that we can rely on the name and address you provide to us when you agree to 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.

 

6.  Temporary Suspension.

 

6.1  Generally.  Upon prior written notice to you, we may suspend your use of the Service Offering if we reasonably determine:  (a) payment for the Service Offering is not received within 30 days from the date on which payment is due; (b) you or your use of the Service Offering is in breach of this Agreement; (c) you fail to address our request to take action as specified in Section 3.3; (d) your use of the Service Offering poses a security risk to the Service Offering or other users of the Service Offering; or (e) suspension is required pursuant to our receipt of a subpoena, court order or other request by a law enforcement agency. 

 

6.2  Effect of Suspension.  You will remain responsible for all fees incurred before or during the suspension. You will not be entitled to any service credits under the Service Level Agreement that you might have otherwise accrued during the period of suspension.

 

7.  Term and Termination.

 

7.1  Term of Agreement.  This Agreement will be in effect through the Subscription Term, plus any renewals, unless terminated earlier as permitted under this Agreement or the Service Description.  Upon the completion of the Subscription Term, the subscription will automatically renew as specified in the Service Description, unless terminated as permitted under the Service Description.

 

7.2  Termination for Cause.  We may terminate this Agreement effective immediately by sending you an email notice if: (a) you breach any provision in Sections 3.1 or 3.2; (b) you do not resolve the underlying cause resulting in the suspension of your account pursuant to Section 6.1 (other than suspension due to a subpoena, court order or other request by a law enforcement agency) within 10 days after your account is suspended; or (c) you commit a material breach that cannot be cured. 

 

7.3  Termination for Insolvency.  We may terminate this Agreement effective immediately upon sending you an email notice if you: (a) terminate or suspend your business; (b) become insolvent, admit in writing your inability to pay your debts as they mature or are deemed unable to pay your debts within the meaning of section 123 of the Insolvency Act 1986, make an assignment for the benefit of creditors; (c) become subject to control of a trustee, receiver or similar authority or any bankruptcy or insolvency proceeding or (d) suffer or undergo any similar or analogous suspension or proceeding in any jurisdiction.

 

7.4  Effect of Termination.  Upon the termination of this Agreement for any reason: (a) all rights granted to you under this Agreement, including your ability to access any of Your Content stored in the Service Offering, will immediately terminate; and (b) you must promptly discontinue all use of the Service Offering and delete or destroy any of our Confidential Information.  Sections 1.6 (Open Source Software), 3 (Acceptable Use), 4 (IP Ownership), 5 (Order, Delivery, Payment and Taxes), 7 (Term and Termination), 9 (Disclaimer), 11 (Limitation of Liability), 12 (Confidential Information), 13 (Data Protection), 14 (General), and 15 (Definitions), will survive the termination of this Agreement.  Termination of the Service Offering (except to the extent that the termination is permitted under Section 14.3 of this Agreement or Section 3.6 of the Service Description) 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 Subscription Term after termination, as well as all usage and other fees incurred up to the termination date.

 

8.  Support and Subscription Services.  When applicable, and subject to the terms of this Agreement, we will provide to you support for the Service Offering in accordance with the terms specified in the Support Policy.  We will not provide support to any end users of Your Content.

 

9.  DISCLAIMER.  TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, WE AND OUR LICENSORS AND SERVICE PROVIDERS DISCLAIM ALL WARRANTIES, CONDITIONS, AND OTHER TERMS, WHETHER EXPRESS, IMPLIED, OR STATUTORY, INCLUDING ANY IMPLIED WARRANTIES OF MERCHANTABILITY, SATISFACTORY QUALITY AND FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT AND ANY WARRANTIES ARISING FROM COURSE OF DEALING OR COURSE OF PERFORMANCE, REGARDING OR RELATING TO THE SERVICE OFFERING, THE DOCUMENTATION, OR ANY MATERIALS OR SERVICES FURNISHED OR PROVIDED TO YOU UNDER THIS AGREEMENT. WE AND OUR LICENSORS AND SERVICE PROVIDERS DO NOT WARRANT OR GIVE ANY CONDITION OR TERM THAT THE SERVICE OFFERING WILL BE UNINTERRUPTED OR FREE FROM DEFECTS, OR THAT THE SERVICE WILL MEET (OR IS DESIGNED TO MEET) YOUR BUSINESS REQUIREMENTS.

 

10.  Indemnification.

 

10.1  Indemnification by Customer.  You will defend and indemnify us against any third party claim arising from or relating to: (a) Your Content; (b) any infringement or misappropriation of any Intellectual Property Rights by you, your customers, your end users or your suppliers; (c) violation of law by you; (d) your use of the Service Offering (including any activities under your account and any use by your employees, personnel or end users) in violation of this Agreement, or (e) your use of any Third Party Content.  We will (a) provide you with notice of the claim within a reasonable period of time after learning of the claim; and (b) reasonably cooperate in response to your requests for assistance.  You may not settle or compromise any indemnified claim without our prior written consent.

 

10.2  Defense and Indemnification. Subject to the remainder of this Section 10, we will defend you against an Infringement Claim and indemnify you from the resulting costs and damages finally awarded against you to that third party by a court of competent jurisdiction or agreed to in settlement.  You will (a) provide us with notice of any Infringement Claim within a reasonable period of time after learning of it; (b) allow us sole control over the claim’s defense and settlement; and (c) reasonably cooperate in response to our requests for assistance.  You may not settle or compromise any Infringement Claim without our prior written consent.

 

10.3  Remedies.  If the Service Offering becomes, or in our opinion is likely to become, the subject of an Infringement Claim, we will at our option and expense either:  (a) procure the rights necessary for you to keep using the Service Offering; (b) modify or replace the Service Offering to make it non-infringing; or (c) terminate this Agreement and refund any pre-paid fees for the Service Offering pro-rated for its remaining Subscription Term.

 

10.4  Exclusions.  We will have no obligation under this Section 10 or otherwise with respect to any claim based on:  (a) a combination of VMware Software with non-VMware products or content, including Your Content; (b) use of the Service Offering for a purpose or in a manner not specified in this Agreement or the Service Description; (c) any modification to the Service Offering made without our express written approval; (d) any claim that relates to Linux or Android open source software, even when it has been embedded into or used to provide the Service Offering; or (e) any Service Offering provided on a no charge basis.  This section 10 states your sole and exclusive remedy for any infringement claims or any assertions, actions or rulings arising out of or related to any infringement claims.

 

11.  Limitation of Liability.

 

11.1  Generally.  TO THE MAXIMUM EXTENT PERMITTED BY LAW, IN NO EVENT WILL WE OR OUR LICENSORS OR SERVICE PROVIDERS BE LIABLE FOR ANY LOST PROFITS OR BUSINESS OPPORTUNITIES, LOSS OF USE OF SERVICES, SOFTWARE OR SYSTEMS WHICH ARE NOT PART OF THE SERVICE OFFERING, LOSS OF REVENUE, LOSS OF GOODWILL, BUSINESS INTERRUPTION, LOSS OF DATA, OR ANY INDIRECT, SPECIAL, INCIDENTAL, OR CONSEQUENTIAL LOSSES IN CONNECTION WITH THIS AGREEMENT UNDER ANY THEORY OF LIABILITY, WHETHER BASED IN CONTRACT, TORT, NEGLIGENCE, PRODUCT LIABILITY, OR OTHERWISE.  IN ADDITION, OUR AND OUR LICENSORS’ AND SERVICE PROVIDERS’ LIABILITY IN CONNECTION WITH THIS AGREEMENT WILL NOT, IN ANY EVENT, REGARDLESS OF WHETHER THE CLAIM IS BASED IN CONTRACT, TORT, STRICT LIABILITY, OR OTHERWISE, EXCEED: (I) FOR EVENTS GIVING RISE TO YOUR CLAIM DURING THE FIRST TWELVE (12) MONTHS OF THIS AGREEMENT, THE GREATER OF (A) THE AGGREGATE FEES PAID OR PAYABLE TO US FOR YOUR ACCESS TO AND USE OF THE SERVICE OFFERING FOR THE PERIOD FROM THE DATE OF THIS AGREEMENT TO THE DATE OF THE EVENT GIVING RISE TO YOUR CLAIM, OR (B) THE SUM OF USD 5,000; (II) FOR EVENTS GIVING RISE TO YOUR CLAIM AFTER THE FIRST TWELVE (12) MONTH OF THE AGREEMENT, THE AGGREGATE FEES PAID OR PAYABLE TO US FOR YOUR ACCESS TO AND USE OF THE SERVICE OFFERING IN THE TWELVE (12) MONTHS PRIOR TO THE EVENT GIVING RISE TO YOUR CLAIM, IN ANY CASE REGARDLESS OF WHETHER WE OR OUR LICENSORS OR SERVICE PROVIDERS HAVE BEEN ADVISED OF THE POSSIBILITY OF THOSE DAMAGES.  THE LIMITATIONS OF LIABILITY IN THIS SECTION 11.1 ARE SUBJECT TO SECTION 11.3 AND FURTHER WILL NOT APPLY TO VMWARE’S INDEMNIFICATION OBLIGATIONS UNDER THE AGREEMENT. 

 

11.2  Further Limitations.  Our licensors and service providers will have no liability of any kind under this Agreement.  You may not bring a claim under this Agreement more than eighteen (18) months after the cause of action arises.

 

11.3  Exceptions.  Nothing in this Agreement shall limit or exclude any party's liability for death or personal injury, for fraudulent misrepresentation or for any other liability which may not be limited or excluded by applicable law.

 

12.  Confidential Information.

 

12.1  Protection.  A party may use Confidential Information of the other party solely to exercise its rights and perform its obligations under this Agreement or as otherwise permitted under this Agreement.  Each party will disclose the Confidential Information of the other party only to the employees, service providers or contractors of the recipient party who have a need to know the Confidential Information for purposes of this Agreement and who are under a duty of confidentiality no less restrictive than each party’s duty hereunder.  Each party will use reasonable care to protect the confidentiality of the other party’s Confidential Information. 

 

12.2  Exceptions.  The recipient’s obligations under Section 12.1 with respect to any Confidential Information will terminate if the recipient can show by written records that the information:  (a) was already known to the recipient at the time of disclosure by the other party; (b) was disclosed to the recipient by a third party who had the right to make the disclosure without any confidentiality restrictions; (c) is, or through no fault of the recipient has become, generally available to the public; or (d) was independently developed by the recipient without access to, or use of, discloser’s Confidential Information.  The recipient may disclose Confidential Information to the extent the disclosure is required by law or regulation or the listing rules of any stock exchange.  The recipient will provide the other party notice, when practicable, and will take reasonable steps to contest and limit the scope of any required disclosure.  Breach of this Section 12 by the recipient party may cause the disclosing party substantial harm for which monetary damages are an insufficient remedy.  Accordingly, each party agrees that the other party may apply for injunctive relief in respect of any threatened or actual breach of this Section.

 

13.  Personal Data Protection

 

13.1  Data We Process.  To provide the Service Offering to you, we may process personal data contained in Your Content ("Content Data") for the purposes described in Section 2.1 of this Agreement or otherwise in accordance with your lawful instructions.  You acknowledge that you are the controller of the Content Data and that we will process the Content Data only as a processor on your behalf. 

 

13.2  Your Compliance.  You will comply with all applicable privacy and data protection laws with respect to your processing of Content Data.  You will also comply with all data processing registration or notification requirements to which you are subject under applicable law, and you will ensure that you have obtained (or will obtain) all necessary consents and rights necessary to disclose Content Data to us for processing in accordance with this Agreement.

 

13.3  Purpose Limitation.  We will: (i) process Content Data only for the purposes described in Section 2.1 of this Agreement or in accordance with your lawful instructions; and (ii) not divulge any Content Data to any person, except to the extent necessary for the proper performance of or otherwise in accordance with this Agreement or your lawful instructions. 

 

13.4  Security of Content Data.  We will implement appropriate technical and organizational measures to protect our VMware Infrastructure.  Without prejudice to your security responsibilities under Section 2.2, these measures will help to protect Content Data against accidental or unlawful destruction or accidental loss, alteration, unauthorized disclosure or access, and against all other unlawful forms of processing (a "Data Breach").  In this Section 13.4, "VMware Infrastructure" means: (a) the physical facilities; and (b) those servers and networking equipment over which we have administrator access or control; in each case to the extent used to provide the Service Offering.

 

13.5  Third Party Audit.  We will comply with the information security requirements specified in ISO 27001 and the Statement on Standards for Attestation Engagements No. 16 Type II or equivalent industry-standard information security controls throughout the term of this Agreement.  Our compliance with these standards will be audited on a regular basis by qualified and independent third party auditors and we will provide upon request summaries of our certifications against these standards.

 

13.6  Subprocessing.  You authorize us to subcontract processing of Content Data under this Agreement to a third party provided that: (i) we will ensure any subcontractor we appoint will protect the Content Data to a standard which is substantially equivalent to the standard that is set forth in this Agreement; and (ii) we will be responsible for the acts, errors and omissions of any subcontractor we appoint to process the Content Data.

 

13.7  Cooperation.  During the term of this Agreement, we will provide all assistance reasonably required by you (at your expense) to enable you to address any request or complaint received by you from (i) any living individual whose Content Data is processed by us on your behalf or (ii) any applicable data protection authority.

 

13.8  Data Breach.  Upon becoming aware of a Data Breach, we will promptly notify you and will regularly update you of developments relating to the Data Breach. 

 

13.9  Other Data We Process.  In addition to processing Content Data as a processor on your behalf, we may also collect and process Relationship Data and Usage Data.  We collect and process Relationship Data and Usage Data as an independent controller for the following purposes:

(1)  We use Relationship Data to provide the Service Offering to you, manage your account, send you notifications (including about the availability of our other products and services), bill you for purchased services, enforce compliance with this Agreement, provide support, and comply with our contractual obligations and applicable law.  We may share Relationship Data with our affiliates and third party service providers for these purposes or as otherwise required by applicable law. 

(2)  We use Usage Data to assist us in providing the Service Offering (including tracking and managing our infrastructure, network, storage, and software for billing, capacity planning, troubleshooting, and other forecasting and improvement purposes), and comply with our contractual obligations and applicable law.  We may share Usage Data with our affiliates and third party service providers for these purposes or as otherwise required by applicable law.

 

13.10  Deletion and Retrieval of Your Content.  Before the termination of this Agreement, you should retrieve a copy of Your Content and, if you wish, delete Your Content from the Service Offering.  Unless you delete Your Content, we will preserve it for a period of 30 days following that termination. After this period we will either delete it or restrict access to it such that it is not subject to further processing (except where and to the extent further processing is required by applicable law).  During this 30-day period, you will not have access to our Service Offering but, on written request, we can provide you with reasonable assistance (at your cost) to retrieve a copy of Your Content. Upon written request during or after this 30-day period, we will delete Your Content for you.  

 

13.11  Interpretation of this Section.  In this section, the expressions "controller", "processor", "personal data" and "process" will have the meanings given to them in EU Directive 95/46/EC.

 

14.  General.

 

14.1  Assignment.   You may not assign or otherwise transfer any of your rights and obligations under this Agreement, in whole or in part, by operation of law or otherwise, without our prior written consent.  Any attempted assignment or transfer without that consent will be void.  Subject to these limits, this Agreement will bind and inure to the benefit of the parties and their respective successors and assigns. 

 

14.2  Notices.  Any notice delivered by us to you under this Agreement will be delivered by email to the email address associated with your account or by posting on either the Service Offering Portal or the My VMware Portal, except as otherwise set forth in this Agreement.  Please direct legal notices or other correspondence to VMware, Inc., 3401 Hillview Avenue, Palo Alto, California 94304, United States of America, Attention:  Legal Department. 

 

14.3  Modifications.  We may change periodically the Service Offering, the terms of your access to the Service Offering, this Agreement, the Service Description, the Third Party Terms, the Service Level Agreement, or the Support Policy.  It is your responsibility to regularly check the Service Offering console and the My VMware portal for updates.  We will notify you of any material, detrimental change to this Agreement, the Service Description, the Service Level Agreement, or the Support Policy.  The modified Agreement, Service Description, Service Level Agreement, or Support Policy, as applicable, will become effective as of the date stated in that notification.  If we make a material, detrimental change to the Service Offering (other than the termination or modification of any beta feature or functionality), this Agreement, the Service Description, the Service Level Agreement, or the Support Policy, then you may terminate this Agreement within 30 days of the change to the Service Offering or within 30 days of the notification.  In that event, the termination will be effective as of the date we receive your notification, unless you state an effective date in your notification that is within 45 days after we receive your notification.  In the event of that termination, we will refund any prepaid fees, pro-rated for the remainder of your Subscription Term, and less any discounts that would then not be earned. Your continued use of the Service Offering after the effective date of any modification to the Agreement, the Service Description, the Third Party Terms, the Service Level Agreement, or the Support Policy will be deemed acceptance of the modified terms, as applicable. 

 

14.4  Waiver.  The waiver of a breach of any provision of this Agreement will not constitute a waiver of any other provision or any later breach. 

 

14.5  Severability.  If any provision of this Agreement is held to be 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 Agreement will remain in force.

 

14.6  Compliance with Laws; Export Control.  Each party will comply with all laws applicable to the actions contemplated by this Agreement. You acknowledge that the Service Offering is of United States origin, is provided subject to the U.S. Export Administration Regulations (including “deemed export” and “deemed re-export” regulations), and may be subject to the export control laws of the United Kingdom and other applicable territories. You represent and warrant that (a) you are not, and are not acting on behalf of, (1) 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; (2) 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; or (3) any person found on the UK Designated Persons list; (b) you will not permit the Service Offering 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; (c) Your Content will not be classified or listed on the United States Munitions list, contain defense articles, defense services or contain ITAR-related data; or technology related to the Munitions List found in the UK Strategic Export Controls List; (d) Your Content will not require an export license and is not restricted from export to, or from, any VMware global resource or personnel under applicable export control laws; and (e) you are not subject, either directly or indirectly, to any order issued by any agency of the United States government, revoking or denying, in whole or in part, your United States export privileges.  You will notify VMware immediately if you become subject to any such order.

 

14.7  Force Majeure.  We will not be liable for any delay or failure to perform any obligations under this Agreement due to any cause beyond our reasonable control, including acts of God, labor disputes or other industrial disturbances, systemic electrical, telecommunications or other utility failures, earthquakes, storms or other elements of nature, blockages, embargoes, riots, acts or orders of government, acts of terrorism or war.

 

14.8  Construction.  The headings of sections of this Agreement are for convenience and are not for use in interpreting this Agreement. As used in this Agreement, the word ‘including’ means “including but not limited to.”

 

14.9  Governing Law and Forum.  This Agreement is governed by the laws of England, unless mandated by other law.  The United Nations Convention for the International Sale of Goods does not apply. You and we hereby consent to the exclusive jurisdiction of the English courts.

 

14.10  Third Party Rights.  Other than as expressly set out in this Agreement, this Agreement 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 Agreement may enforce any of its terms or rely on any exclusion or limitation contained in it.

 

14.11  Order of Precedence.  The terms of this Agreement will supersede and control over any conflicting or additional terms and conditions of any other purchasing related document issued by you, unless an Order specifically references this Agreement and states that the terms of the Order will control.

 

14.12  Entire Agreement.  This Agreement, as may be revised by us, is the entire agreement of the parties regarding its subject matter. This Agreement supersedes all prior or contemporaneous communications, representations, understandings and agreements, whether written or oral, between the parties regarding its subject matter. 

 

15.  Definitions.

 

15.1  “Confidential Information” means non-public technical, business or other information or materials disclosed or otherwise made available by one party that are in tangible form and labeled “confidential” or the like, or, information which is provided under circumstances reasonably indicating their confidentiality.  Our Confidential Information includes:  (1) Login Credentials; and (2) any information or materials relating to the Service Offering.

 

15.2  “Infringement Claim” means any third party claim that any VMware Software used to provide the Service Offering infringes any patent, trademark or copyright of the third party, or misappropriates a trade secret (but only to the extent that the 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 those countries are part of your places of use of the Service Offering.

 

15.3  “Intellectual Property Rights” means all worldwide intellectual property rights, including copyrights, trademarks, service marks, trade secrets, patents, patent applications, and moral rights, whether registered or unregistered.

 

15.4  “Login Credentials” mean any passwords, authentication keys or security credentials that enable your access to and management of the Service Offering.

 

15.5  “Order” means the internet order page, order document, purchase order, or purchase agreement issued to VMware that specifies your purchase of the Service Offering.

 

15.6  “Relationship Data” means personal information that we collect during the registration, activation and maintenance of your account. It may include names and contact details of your personnel involved in maintaining or using the Service Offering.  It does not include information collected through the publicly accessible portions of our webpages, which is subject to the Privacy Policy posted on those webpages.   

 

15.7  “Service Description” means the then-current Service Offering Service Description document available at https://www.vmware.com/files/uk/pdf/vcloud-air/vcloud-air-Service-Description.pdf, which contains technical and other information and which we may modify from time to time.

 

15.8  “Service Level Agreement” means the then-current Service Level Agreement document available at https://www.vmware.com/uk/support/vcloud-air/sla.html, which we may modify from time to time.

 

15.9  “Subscription Term” means the time period of your access to the Service Offering, as specified by your Order.

 

15.10  “Support Policy” means the then-current version of the Service Offering Support Policy document available at http://www.vmware.com/uk/support/services/iaas-production.html, which we may modify from time to time.

 

15.11  “Third Party Content” means third party data, service, content, software or applications, including open source software.

 

15.12  “Third Party Terms” means the then-current version of the Service Offering Third Party Terms document available at https://www.vmware.com/files/uk/pdf/support/vmware-vcloud-air-third-party-terms.pdf, which includes information about Third Party Content and which we may modify from time to time.

 

15.13  “Usage Data” means information regarding your consumption of the Service Offering, such as information on the amount of computing and storage resources purchased or consumed, user counts, and third party licenses consumed.  Usage Data may also include information related to the consumption of optional or third party or co-branded services provided to you through the Service Offering.

 

15.14  “VMware Software” means the software programs listed in our commercial price list.

 

15.15  “Your Content” means any and all applications, files, information, data or other content uploaded to or published or displayed through the Service Offering by you, your users, us (acting upon your instructions as part of a service), or any third party users who access any service you provide with the Service Offering.  It does not include Relationship Data or Usage Data.