(Please read and accept this agreement to download the beta software)
NOTICE TO USER:
This Software Beta Test Agreement is a CONTRACT between you (either an individual or a single entity) and VMware, Inc. (VMware), which covers your use of the VMware beta software product that accompanies this Software Beta Test Agreement 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 "Beta Software." If you do not agree to the terms of this Software Beta Test Agreement, then do not install or use the Beta Software. By explicitly accepting this Software Beta Test Agreement, however, or by installing, copying, downloading, accessing, or otherwise using the Beta Software, you are acknowledging and agreeing to be bound by the following terms.
You certify that this beta test software will only be used for beta testing purposes, and will not be rented, leased, sold, sublicensed, assigned, or otherwise transferred. Further, you certify that you will not transfer or export any product, process, or service that is the direct product of the beta test software.
(a) " Beta Software" shall mean the beta version of VMware's software, in object form only, excluding any Open Source Software provided with the such software, and the media and Documentation provided by VMware to Licensee and for which Licensee is granted a use license pursuant to this Agreement.
(b) " Documentation" shall mean the printed or online written reference material furnished to Licensee in conjunction with the Beta Software, including, without limitation, instructions, beta testing 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 Beta 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 Beta Software.
(e) " Updates" shall mean a modification, error correction, bug fix, new release, or other update to or for the Beta Software.
2. LICENSE GRANT, USE AND OWNERSHIP
(a) Limited License. Subject to the terms and conditions of this Agreement, VMware grants to Licensee a non-exclusive, non-transferable license (without the right to sublicense) (i) to use the Beta Software in accordance with the Documentation solely for purposes of internal testing and evaluation, (ii) to use the Documentation provided with the Beta Software in support of Licensee's authorized use of the Beta Software, and (iii) to copy Beta Software for archival or backup purposes, provided that all titles and trademarks, copyright, and restricted rights notices are reproduced on such copies.
(b) Evaluation Feedback. The purpose of this limited license is the testing and evaluation of the Beta Software and Documentation. In furtherance of this purpose, Licensee shall provide feedback to VMware concerning the functionality and performance of the Beta Software from time to time as reasonably requested by VMware, including, without limitation, identifying potential errors and improvements. Such feedback will be in a manner convenient to Licensee and will be subject to reasonable availability of Licensee's personnel. Notwithstanding the foregoing, prior to Licensee disclosing to VMware any information in connection with this Agreement which Licensee considers proprietary or confidential, Licensee shall obtain VMware's prior written approval to disclose such information to VMware, and without such prior written approval from VMware, Licensee shall not disclose any such information to VMware. Feedback and other information which is provided by Licensee to VMware in connection with the Beta Software or this Agreement may be used by VMware to improve or enhance its products and, accordingly, VMware shall have a non-exclusive, perpetual, irrevocable, royalty-free, worldwide right and license to use, reproduce, disclose, sublicense, distribute, modify, and otherwise exploit such feedback and information without restriction.
(c) Restrictions. Licensee shall not copy or use the Beta Software (including the Documentation) or disseminate Confidential Information to any third party except as expressly permitted in this Agreement. 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 Beta Software or accompanying Documentation. In no event shall Licensee use the Beta Software for Licensee's product development or any other commercial purpose. The Beta Software and all performance data and test results, including without limitation, benchmark test results (collectively "Performance Data"), relating to the Beta Software are the Confidential Information of VMware, and will be treated in accordance with the terms of Section 4 of this Agreement. Accordingly, Licensee shall not publish or disclose to any third party any Performance Data relating to the Beta Software.
(d) Ownership. VMware shall own and retain all right, title and interest in and to the Intellectual Property Rights in the Beta 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 Beta Software. ALL RIGHTS NOT EXPRESSLY GRANTED HEREUNDER ARE RESERVED TO VMWARE.
(e) No Support Services. VMware is under no obligation to support the Beta 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 Beta Software hereunder and shall be subject to the terms and conditions of this Agreement.
(f) Third-Party Software. The Beta Software enables a computer to run multiple instances of third-party guest operating systems and application programs. Licensee acknowledges that Licensee is responsible for obtaining any licenses necessary to operate any such third-party software, including guest operating systems.
(g) Open Source Software. The terms and conditions of this Agreement shall not apply to any Open Source Software accompanying the Beta 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 Beta Software.
3. TERM AND TERMINATION
Unless otherwise terminated as specified under this Agreement, Licensee's rights with respect to the Beta Software will terminate upon the earlier of (a) the initial commercial release by VMware of a generally available version of the Beta Software or (b) automatic expiration of the Beta Software based on the system date. Either party may terminate this Agreement at any time for any reason or no reason by providing the other party advance written notice thereof. VMware shall immediately terminate this Agreement and any Licensee rights with respect to the Beta Software without notice in the event of improper disclosure of VMware's Beta Software as specified under Section 4 (Confidentiality) below. Upon any expiration or termination of this Agreement, the rights and licenses granted to Licensee under this Agreement shall immediately terminate, and Licensee shall immediately cease using, and will return to VMware (or, at VMware's request, destroy), the Beta Software, Documentation, and all other tangible items in Licensee's possession or control that are proprietary to or contain Confidential Information. The rights and obligations of the parties set forth in Sections 2(b) 2(c), 2(d), 2(e), 2(f), 3, 4, 5, 6 and 7 shall survive termination or expiration of this Agreement for any reason.
(a) " Confidential Information" shall mean all trade secrets, know-how, inventions, techniques, processes, algorithms, software programs, hardware, schematics, planned product features, functionality, performance and software source documents relating to the Beta 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 Beta Software, Documentation, Performance Data, 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 Agreement. In no event shall Licensee use the Beta 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.
(b) Additional Confidentiality Restrictions for Highly Confidential Beta Software. For certain Beta Software designated by VMware as highly confidential ("Highly Confidential Beta Software") and listed in Exhibit A, additional heightened confidentiality restrictions designated below will apply and Licensee will be required to separately sign Exhibit A, in addition to accepting the terms of this Agreement, to execute this Agreement. If no Highly Confidential Beta Software has been designated by VMware to be listed in Exhibit A, this section shall not apply and Licensee will not be required to separately sign Exhibit A to execute this Agreement.
(i) Licensee shall limit dissemination of Highly Confidential Beta Software and related information concerning product features, future technologies and roadmaps only to Information Technology teams and/or software development teams of Licensee designated by VMware and shall not include Licensee's sales and marketing field organizations and third parties without the express written consent of VMware. Notwithstanding the foregoing, Licensee shall limit dissemination of such Confidential Information to such employees who have a need to know such Confidential Information for purposes expressly authorized under this Agreement. Licensee will assign an employee who will be primarily responsible ("Primary Contact") for ensuring that the terms of this Agreement are complied with.
(ii) Improper Disclosure of Highly Confidential Beta Software. Licensee acknowledges that damages for improper disclosure of Highly Confidential Beta Software and/or related information under this Section may be irreparable and that monetary damages would be inadequate to compensate VMware for any breach of this Agreement. In the event that VMware reasonably believes that Licensee has disseminated certain of such Highly Confidential Beta Software and/or related information to an unauthorized party, Licensee will be immediately removed from VMware's Beta Software program and will not be permitted to participate in any VMware Beta Software program in the future. Additionally, all rights and licenses granted to Licensee under this Agreement shall immediately terminate in accordance with Section 3 herein (Term and Termination), and (b) in addition to all other remedies available in law or otherwise, VMware is entitled to seek equitable relief, including injunction and preliminary injunction against the threatened breach of this Agreement or the continuation of any such breach.
5. LIMITATION OF LIABILITY
IT IS UNDERSTOOD THAT THE BETA SOFTWARE IS PROVIDED WITHOUT CHARGE FOR LIMITED EVALUATION PURPOSES. ACCORDINGLY, THE TOTAL LIABILITY OF VMWARE AND ITS SUPPLIERS ARISING OUT OF OR RELATED TO THIS AGREEMENT SHALL NOT EXCEED $100. 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 NOTWITHSTANDING ANY FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY.
6. WARRANTY DISCLAIMER
IT IS UNDERSTOOD THAT THE BETA SOFTWARE, DOCUMENTATION, AND ANY UPDATES MAY CONTAIN ERRORS AND ARE PROVIDED FOR LIMITED EVALUATION ONLY. THE BETA 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. Licensee acknowledges that VMware has not publicly announced the availability of the Beta Software, that VMware has not promised or guaranteed to Licensee that such Beta Software will be announced or made available to anyone in the future, that VMware has no express or implied obligation to Licensee to announce or introduce the Beta Software, and that VMware may not introduce a product similar or compatible with the Beta Software. Accordingly, Licensee acknowledges that any research or development that it performs regarding the Beta Software or any product associated with the Beta Software is done entirely at Recipient's own risk. Specifically, the Beta Software may contain features, functionality or modules that will not be included in the production version of the Beta Software, if released, or that will be marketed separately for additional fees.
7. OTHER PROVISIONS
(a) Governing Law. This Agreement, 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 Agreement 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 Agreement 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 agreement between the parties relating to the subject matter hereof and all other terms are rejected. No waiver or modification of this Agreement 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 Agreement is held by a court of competent jurisdiction to be contrary to law the remaining provisions of this Agreement shall remain in full force and effect.
8. CONTACT INFORMATION
If you have any questions about this Software Beta Test Agreement, or if you want to contact VMware for any reason, please direct all correspondence to: VMware, Inc., 3401 Hillview Ave, Palo Alto, CA 94304, United States of America or email us.
VMware® is a trademark and/or registered trademark of VMware, Inc. in the United States and/or various jurisdictions.
ADDENDUM TO LICENSE AGREEMENT
The Software contains third party products, including, but not limited to the Microsoft WinPE Development Tool and Microsoft Windows Preinstallation Environment, Version 2005 ("Products"), collectively referred to as "Software". In addition to the license agreement provided in conjunction with the Software, You hereby agree to the following additional license terms and restrictions pertaining to your use of the Software:
(i) The Software containing the Products is limited for use as a boot, diagnostic, disaster recovery, setup, restoration, emergency services, installation, test and/or configuration utilities program, and not for use as a general purpose operating system or as a substitute for a fully functional version of any operating system product; (ii) the Products are provided "as is"; (iii) the Software containing the Products contains a security feature that will cause the computer system to reboot without prior notification to the end-user after 24 hours of continuous use; and (iv) all customer support issues pertaining to the Software will be handled solely by VMware.
(ii) You shall not reverse engineer, decompile, or disassemble the Products, except to the extent expressly permitted by applicable law.
(iii) Limited Warranty. VMWARE, MICROSOFT AND ALL MICROSOFT AFFILIATES SPECIFICALLY DISCLAIM ANY AND ALL LIABILITY RELATED TO THE SOFTWARE OR THE PRODUCTS. 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, MICROSOFT AND ALL MICROSOFT AFFILIATES HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES AND REGARDLESS OF WHETHER ANY REMEDY FAILS OF ITS ESSENTIAL PURPOSE.
Do you agree to be bound by the terms of this agreement?