VMWARE, INC.

Notice to User:

Notice to User: This Technology Preview License Agreement is a CONTRACT between you (either an individual or a single entity) and VMware, Inc. (VMware), which covers your use of the VMware unreleased software that accompanies this Software Technology Preview License 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 "Technology Preview Software." If you do not agree to the terms of this Technology Preview License Agreement, then do not install or use the Technology Preview Software. By explicitly accepting this Technology Preview License Agreement, however, or by installing, copying, downloading, accessing, or otherwise using the Technology Preview Software, you are acknowledging and agreeing to be bound by the following terms.

 

1 DEFINITIONS

(a) “Technology Preview Software” shall mean the concept 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 Technology Preview Software, including, without limitation, instructions, 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 Technology Preview 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 Technology Preview Software. (e) “Updates” shall mean a modification, error correction, bug fix, new release, or other update to or for the Technology Preview 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)

1. to use the Technology Preview Software in accordance with the Documentation solely for purposes of internal testing and evaluation,
2. to use the Documentation provided with the Technology Preview Software in support of Licensee’s authorized use of the Technology Preview Software, and
3. to copy Technology Preview 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 Technology Preview Software and Documentation. In furtherance of this purpose, Licensee shall provide feedback, suggestions or ideas to VMware concerning the functionality and performance of the Technology Preview 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, suggestions, ideas and other information which is provided by Licensee to VMware in connection with the Technology Preview Software or this Agreement will become the property of VMware and 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, suggestions, ideas and information without restriction. No obligation is assumed or may be implied on the part of VMware by receipt or examination of the submission to use the feedback, suggestion or idea, compensate or otherwise enter into another agreement with Licensee. For avoidance of doubt, this section does not apply to any Open Source Software accompanying the Technology Preview Software.

(c) Restrictions. Licensee shall not copy or use the Technology Preview Software (including the Documentation) 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 Technology Preview Software or accompanying Documentation. In no event shall Licensee use the Technology Preview Software for Licensee’s product development or any other commercial purpose. The Technology Preview Software and all performance data and test results, including without limitation, benchmark test results (collectively “Performance Data”), relating to the Technology Preview 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 Technology Preview Software. (d) Ownership. VMware shall own and retain all right, title and interest in and to the Intellectual Property Rights in the Technology Preview 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 Technology Preview Software. ALL RIGHTS NOT EXPRESSLY GRANTED HEREUNDER ARE RESERVED TO VMWARE. (e) No Support Services. VMware is under no obligation to support the Technology Preview Software in any way or to provide any Updates to Licensee. In the event VMware, in its sole discretion, supplies any Update to Licensee via a designated website by VMware, such Update shall be deemed Technology Preview Software hereunder and shall be subject to the terms and conditions of this Agreement. (f) Third-Party Software. The Technology Preview 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 Technology Preview 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 Technology Preview Software.

 

3. TERM AND TERMINATION.

Licensee’s rights with respect to the Technology Preview Software will terminate upon the earlier of (a) automatic expiration of the Technology Preview Software based on the system date or (b) termination by VMware, in its sole discretion, of rights to Licensees with respect to the Technology Preview Software provided under this Agreement upon notice on the VMware website. Upon any expiration or termination of rights with respect to the Technology Preview Software under 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 Technology Preview 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.

4. CONFIDENTIALITY.

"Confidential Information" shall mean all trade secrets, know-how, inventions, techniques, processes, algorithms, software programs, hardware, schematics, and software source documents relating to the Technology Preview 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 Technology Preview Software, Documentation, Performance Data, and any Updates. 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 Technology Preview Software or any Confidential Information to develop, manufacture, market, sell, or distribute any product or service. Licensee shall limit dissemination of Confidential Information to its employees who have a need to know such Confidential Information for purposes expressly authorized under this Agreement. 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 Confidential Information.

5. LIMITATION OF LIABILITY

IT IS UNDERSTOOD THAT THE TECHNOLOGY PREVIEW 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 TECHNOLOGY PREVIEW SOFTWARE, DOCUMENTATION, AND ANY UPDATES MAY CONTAIN ERRORS AND ARE PROVIDED FOR LIMITED EVALUATION ONLY. THE TECHNOLOGY PREVIEW 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 Technology Preview Software, that VMware has not promised or guaranteed to Licensee that such Technology Preview 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 Technology Preview Software, and that VMware may not introduce a product similar or compatible with the Technology Preview Software. Accordingly, Licensee acknowledges that any research or development that it performs regarding the Technology Preview Software or any product associated with the Technology Preview Software is done entirely at Licensee’s own risk. Specifically, the Technology Preview Software may contain features, functionality or modules that will not be included in the production version of the Technology Preview 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 Technology Preview Test Agreement, 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 info@vmware.com.

VMware is a trademark of VMware, Inc.