OPEN VIRTUALIZATION FORMAT TOOL LICENSE AGREEMENT
Notice to User:
This Open Virtualization Format Tool ("OVF Tool") 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 software that accompanies this OVF Tool 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 "Software." If you do not agree to the terms of this OVF Tool License Agreement, then do not install or use the Software. By explicitly accepting this OVF Tool License Agreement, however, or by installing, copying, downloading, accessing, or otherwise using the Software, you are acknowledging and agreeing to be bound by the following terms.
(a) "Software" shall mean the VMware's OVF Tool, in object form only, excluding any Open Source Software provided with such software, and the media and Documentation provided by VMware to Licensee and for which Licensee is granted a use license pursuant to this Agreement.
(b) "Documentation" shall mean the printed or online written reference material furnished to Licensee in conjunction with the 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 Software that are licensed to you under the terms of the applicable license agreements included with such open source software components or other materials for the Software.
(e) "Updates" shall mean a modification, error correction, bug fix, new release, or other update to or for the Software.
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 Software in accordance with the Documentation solely for internal purposes to create, import, export and/or distribute virtual machines and virtual appliances in the Open Virtualization Format (ii) to use the Documentation provided with the Software in support of Licensee's authorized use of the Software, and (iii) to copy Software for archival or backup purposes, provided that all titles and trademarks, copyright, and restricted rights notices are reproduced on such copies.
(b) Evaluation Feedback. In the event that Licensee provides feedback, suggestions or ideas to VMware concerning the functionality and performance of the Software from time to time as reasonably requested by VMware, including, without limitation, identifying potential errors and improvements, such feedback, suggestions, ideas and other information in connection with the 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. 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. For avoidance of doubt, this section does not apply to any Open Source Software accompanying the Software.
(c) Restrictions. Licensee shall not copy or use the 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 Software or accompanying Documentation. In no event shall Licensee use the Software for Licensee's product development or any other commercial purpose. The Software and all performance data and test results, including without limitation, benchmark test results (collectively "Performance Data"), relating to the 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 Software.
(d) Ownership. VMware shall own and retain all right, title and interest in and to the Intellectual Property Rights in the Software and any derivative works thereof, subject only to the limited license expressly set forth in Section 2(a) hereof. Licensee does not acquire any other rights, express or implied, in the Software. ALL RIGHTS NOT EXPRESSLY GRANTED HEREUNDER ARE RESERVED TO VMWARE.
(e) No Support Services. VMware is under no obligation to support the Software in any way or to provide any Updates to Licensee. In the event VMware, in its sole discretion, supplies any Update to Licensee via a designated website by VMware, such Update shall be deemed Software hereunder and shall be subject to the terms and conditions of this Agreement.
(f) Open Source Software. The terms and conditions of this Agreement shall not apply to any Open Source Software accompanying the Software. Any such Open Source Software is provided under the terms of the open source license agreement or copyright notice accompanying such Open Source Software or in the open source licenses file accompanying the Software
3. TERM AND TERMINATION. This Agreement shall continue as long as you are in compliance with the terms specified herein or until otherwise terminated. You and or VMware each may terminate this Agreement for any reason at any time. Upon any expiration or termination of rights with respect to the 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 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 Software, and other information provided by VMware, whether disclosed orally, in writing, or by examination or inspection, other than information which Licensee can demonstrate (i) was already known to Licensee, other than under an obligation of confidentiality, at the time of disclosure; (ii) was generally available in the public domain at the time of disclosure to Licensee; (iii) became generally available in the public domain after disclosure other than through any act or omission of Licensee; (iv) was subsequently lawfully disclosed to Licensee by a third party without any obligation of confidentiality; or (v) was independently developed by Licensee without use of or reference to any information or materials disclosed by VMware or its suppliers. Confidential Information shall include without limitation the Software, Documentation, 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 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 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 SOFTWARE, DOCUMENTATION, AND ANY UPDATES MAY CONTAIN ERRORS AND ARE PROVIDED FOR LIMITED EVALUATION ONLY. THE SOFTWARE, THE DOCUMENTATION, AND ANY UPDATES ARE PROVIDED "AS IS" WITHOUT WARRANTY OF ANY KIND, WHETHER EXPRESS, IMPLIED, STATUTORY, OR OTHERWISE. VMWARE AND ITS SUPPLIERS SPECIFICALLY DISCLAIM ALL IMPLIED WARRANTIES OF MERCHANTABILITY, NONINFRINGEMENT, AND FITNESS FOR A PARTICULAR PURPOSE.
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. 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 Technology Preview 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 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 VMware OVF Tool License 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 firstname.lastname@example.org.