Skip to content

HTTPS clone URL

Subversion checkout URL

You can clone with
or
.
Download ZIP
tree: e2d8d4e24b
Fetching contributors…

Cannot retrieve contributors at this time

76 lines (38 sloc) 21.441 kB
VMWARE, INC.
SOFTWARE BETA TEST AGREEMENT
Note: BY CLICKING "I AGREE," ACCESSING, DOWNLOADING, INSTALLING, UPLOADING, COPYING OR USING THE BETA SOFTWARE, YOU CONCLUDE THIS MASTER SOFTWARE BETA TEST AGREEMENT ("AGREEMENT") IN A LEGALLY BINDING MANNER WITH VMWARE, INC., 3401 HILLVIEW AVENUE, PALO ALTO, CA 94304, USA ("VMware"). IF YOU HAVE SPECIFIED IN CONNECTION WITH THE REGISTRATION PROCESS FOR THIS SOFTWARE BETA TEST PROGRAM THAT YOU ARE ACTING ON BEHALF OF A COMPANY OR OTHER ORGANIZATION, YOU REPRESENT THAT YOU ARE AUTHORIZED TO LEGALLY BIND SUCH ORGANIZATION, YOU CONCLUDE THE AGREEMENT ON BEHALF OF SUCH ORGANIZATION, AND YOU PERSONALLY AGREE NOT TO ACT CONTRARY, OR ALLOW OTHERS TO ACT CONTRARY TO THIS AGREEMENT. IN THE FOLLOWING, THE TERMS "YOU" AND "LICENSEE" SHALL REFER, JOINTLY AND SEVERALLY, TO YOU INDIVIDUALLY AND ANY ORGANIZATION ON WHOSE BEHALF YOU ACT.
If you do not agree to the terms of this MASTER Software Beta Test Agreement, then do *not* CLICK "I AGREE,", access, download, install, upload, copy or use the Beta Software.
1. DEFINITIONS.
(a) "Beta Software" shall mean the beta version of VMware's software and the media and Documentation provided by VMware to Licensee and for which Licensee is granted a use license pursuant to this Agreement. The Beta Software will be provided in object form only.
(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, recognized in any jurisdiction worldwide, whether perfected or not, and any similar and other proprietary rights.
(d) "Open Source Software" means code that is provided with the Beta Software and identified as open source code or otherwise as being subject to open source license terms.
(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, revocable (at any time and for any reason, at VMware's sole discretion), royalty-free, non-transferable, personal, non-assignable license (without the right to sublicense) (i) to use the Beta Software in accordance with the Documentation and solely for purposes of software development and testing, (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 and development by Licensee of Licensee products that communicate with the Software. 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 (but not exceeding the duration of any applicable intellectual property rights and if perpetuity is not possible under the applicable laws then the maximum term possible subject to automatic renewals for further maximum terms unless renewal is expressly objected to in writing), irrevocable, royalty-free, worldwide right and license to use, reproduce, disclose, sublicense, distribute, modify, and otherwise exploit such feedback and information without restriction in any manner now known or in the future conceived.
(c) Restrictions. Licensee shall not copy or use the Beta Software (including the Documentation) or disseminate Confidential Information to any party and entities including but not limited to its partners, affiliates and subsidiaries except as expressly permitted in this Agreement. Except to the extent that any applicable mandatory laws prevent VMware restraining Licensee from doing so 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, including, but not limited to sales or marketing activities except as expressly set forth in this Agreement. 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. Licensee will provide VMware 2 weeks prior written notice and any information reasonably requested by VMware before exercising rights Licensee believes to have under applicable law outside or in violation of this Agreement.
(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. To the extent that third-party software is included with the Software, Licensee agrees that such third-party software shall only be used for the limited purpose of and in conjunction with the Software.
(g) Open Source Software. Except Sections 5 through 7, 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. Licensee acknowledges that Licensee is responsible for complying with the terms of such Open Source Software licenses.
(h) Bundled VMware Software. Other VMware software may be bundled with this Beta Software ("Bundled Software"). Such Bundled Software shall be governed by the terms and conditions of this Agreement. Licensee shall only use the Bundled Software in conjunction with the Beta Software and may not use the Bundled Software on a standalone basis.
(i) Data Collection and Privacy. You agree that VMware may collect, use, store and transmit technical and related information about your use of the Beta Software which may include internet protocol address, hardware identification, operating system, application software, peripheral hardware, and non-personally identifiable Beta Software usage statistics ("Collected Data") to facilitate the provisioning of updates, support, invoicing or online services to You. Collected Data is subject to VMware's Privacy Policy at http://www.vmware.com/help/privacy.html.
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 hereby terminates 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. To the extent that all of the provisions in this Section 3 which grant a party a right of unilateral termination or which automatically terminate this Agreement upon the occurrence of a certain event, all such provisions, if for any reason whatsoever the applicable law does not permit such termination, should be construed mutatis mutandis, meaning that the terminating party has the right to refuse to perform under the Agreement without having recourse to court.
4. CONFIDENTIALITY.
(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, including any VMware products. 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 BETA SOFTWARE IS PROVIDED WITHOUT CHARGE FOR LIMITED EVALUATION PURPOSES. ACCORDINGLY, TO THE FULLEST EXTENT PERMITTED BY LAW, BUT SUBJECT ALWAYS TO THIS SECTION 5, THE TOTAL LIABILITY OF VMWARE AND ITS SUPPLIERS ARISING OUT OF OR RELATED TO THIS AGREEMENT SHALL NOT EXCEED $100. TO THE FULLEST EXTENT PERMITTED BY LAW, BUT SUBJECT ALWAYS TO THIS SECTION 5, IN NO EVENT SHALL VMWARE OR ITS SUPPLIERS HAVE LIABILITY FOR ANY INDIRECT, INCIDENTAL, SPECIAL, OR CONSEQUENTIAL DAMAGES OR DAMAGES FOR LOSS OF BUSINESS PROFITS, BUSINESS INTERRUPTION, OR LOSS OF BUSINESS INFORMATION, HOWEVER CAUSED AND ON ANY THEORY OF LIABILITY (INCLUDING WITHOUT LIMITATION, TORT, STATUTE, CONTRACT OR OTHER), 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. THE PARTIES ACKNOWLEDGE THAT THE VARIOUS CONSIDERATIONS DUE TO VMWARE IN ACCORDANCE WITH THE TERMS OF THIS AGREEMENT WAS TAKEN INTO ACCOUNT IN DETERMINING THE LIMITATION OF LIABILITY SET FORTH IN THIS SECTION 5. LICENSEE ACKNOWLEDGES AND AGREES THIS LIMITATION IS AN ESSENTIAL ELEMENT OF THIS AGREEMENT AND THAT VMWARE WOULD NOT ENTER INTO THIS AGREEMENT WITHOUT THESE LIMITATIONS ON ITS LIABILITY.
In certain jurisdictions where certain warranties or conditions cannot be contractually excluded, restricted or modified or cannot be excluded, restricted or modified except to a limited extent, this Agreement shall be interpreted and enforced subject to these statutory provisions. If these statutory provisions apply, to the extent to which VMware is entitled to do so, VMware limits its liability in respect of any claim under those provisions to: (a) in the case of goods, at VMware's option: (i) the replacement of the goods or the supply of equivalent goods; (ii) the repair of the goods; (iii) the payment of the cost of replacing the goods or of acquiring equivalent goods; or (iv) the payment of the cost of having the goods repaired; and (b) in the case of services, at VMware's option: (i) the supplying of the services again; or (ii) the payment of the cost of having the services supplied again.
6. WARRANTY DISCLAIMER. IT IS UNDERSTOOD THAT THE BETA SOFTWARE, DOCUMENTATION, AND ANY UPDATES MAY CONTAIN ERRORS AND ARE PROVIDED FOR LIMITED EVALUATION ONLY. TO THE FULLEST EXTENT PERMITTED BY LAW, BUT SUBJECT ALWAYS TO SECTION 5, THE BETA SOFTWARE, THE DOCUMENTATION, AND ANY UPDATES ARE PROVIDED "AS IS" WITHOUT WARRANTY OF ANY KIND, WHETHER EXPRESS, IMPLIED, STATUTORY, OR OTHERWISE. TO THE FULLEST EXTENT PERMITTED BY LAW, BUT SUBJECT ALWAYS TO SECTION 5, 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 Licensee'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, Injunctive Relief and Legal Costs.
(aa) Choice of Law. This Agreement and any dispute arising out of or related to this Agreement or the Beta Software ("Dispute") will be governed by California law, without regard to its choice of law principles. For purposes of this Agreement, the parties acknowledge and agree that VMware is the proponent of this Agreement and of the transaction embodied herein.
(bb) Injunctive Relief. Either party may, at its sole discretion, seek preliminary judicial relief in any court of competent jurisdiction (including, but not limited to, preliminary injunctive relief). Also, the provisions of this Section 7 (a) may be enforced by any court of competent jurisdiction.
(cc) Legal Costs. If it is necessary for either party to retain the services of an attorney or attorneys to enforce the terms of this Agreement or to file an action to enforce any of the terms, conditions or rights contained herein, or to defend any action, then the prevailing party in any such action will be entitled to recover from the other party its reasonable fees for attorneys and expert witnesses, plus such court costs and expenses as may be fixed by any court of competent jurisdiction.
(b) Assignment. Licensee shall not and cannot assign this Agreement or any rights or obligations hereunder, directly or indirectly, by operation of law, merger, acquisition of stock or assets, or otherwise. Any assignment shall be null and void. 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. The Software is of United States origin and is provided subject to the U.S. Export Administration Regulations. Diversion contrary to U.S. law is prohibited. Without limiting the foregoing, you agree that (1) you are not, and are not acting on behalf of, any person who is a citizen, national, or resident of, or who is controlled by the government of, Cuba, Iran, North Korea, Sudan, or Syria, or any other country to which the United States has prohibited export transactions; (2) you are not, and are not acting on behalf of, any person or entity listed on the U.S. Treasury Department list of Specially Designated Nationals and Blocked Persons, or the U.S. Commerce Department Denied Persons List or Entity List; and (3) you will not use the Software for, and will not permit the Software to be used for, any purposes prohibited by law, including, without limitation, for any prohibited development, design, manufacture or production of missiles or nuclear, chemical or biological weapons.
(d) Modification. This is the entire agreement between the parties relating to the subject matter hereof and to the fullest extent permitted by law, all other terms, representations, negotiations, arrangements or understandings are rejected. This Agreement supersedes and replaces any other agreements, representations, negotiations, arrangements or understandings between the parties and Licensee hereby waives any form requirements that may be contained in previous agreements and agrees that this Agreement shall take precedent with respect to its subject matter. No party has entered into this Agreement relying on any representations made by or on behalf of the other, other than those expressly made in this Agreement. No waiver or modification of this Agreement shall be valid unless in writing signed by each party.
(e) Language of Contract. The parties have required that this Agreement and all documents relating thereto be drawn up in English. Les parties ont demandé que cette convention ainsi que tous les documents que s'y attachent soient rédigés en anglais.
(f) Severability. In the event any of the terms and conditions hereof shall contradict with any mandatory or restrictive provisions of the applicable laws at any time and thereby becomes invalid or unenforceable, such invalidity or unenforceability shall not affect the validity and enforceability of the other terms and conditions of this Agreement, which shall thereafter be construed in all respects as if such invalid or unenforceable provisions were omitted, provided that no party is, as a result thereof, deprived of the enjoyment of its substantial benefits under this Agreement.
(g) Waivers. The waivers, express or implied, by any of the parties to this Agreement of any right hereunder or of any failure to perform, or of any breach by any other party or parties shall not constitute or be deemed as a waiver of such provision(s) granting such right or requiring such performance, or of the right of such party to thereafter enforce each and every such provision, or to enforce any other right hereunder. Any specific right or remedy contained in this Agreement shall not be exclusive but shall be cumulative upon all allowable under applicable law.
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 Avenue, Palo Alto, CA 94304, United States of America or email info@vmware.com. VMware is a trademark of VMware, Inc.
Jump to Line
Something went wrong with that request. Please try again.