VMWARE END USER LICENSE AGREEMENT FOR PHOTON OS IMPORTANT-READ CAREFULLY: BY DOWNLOADING, INSTALLING, OR USING THE PROGRAM, YOU (THE INDIVIDUAL OR LEGAL ENTITY) AGREE TO BE BOUND BY THE TERMS OF THIS END USER LICENSE AGREEMENT (EULA). IF YOU DO NOT AGREE TO THE TERMS OF THIS EULA, YOU MUST NOT DOWNLOAD, INSTALL, OR USE THE PROGRAM, AND YOU MUST DELETE OR RETURN THE UNUSED PROGRAM TO THE VENDOR FROM WHICH YOU ACQUIRED IT WITHIN THIRTY (30) DAYS. 1. DEFINITIONS. 1.1 Documentation means that documentation that is generally provided to You by VMware with the Program, as revised by VMware from time to time, and which may include end user manuals, operation instructions, installation guides, release notes, and on-line help files regarding the use of the Program. 1.2 GPL v2 means the GNU General Public License version 2 the terms of which are available at http://www.gnu.org/licenses/old-licenses/gpl-2.0.en.html. 1.3 Intellectual Property Rights means all worldwide intellectual property rights, including without limitation, copyrights, trademarks, service marks, trade secrets, know how, inventions, patents, patent applications, moral rights and all other proprietary rights, whether registered or unregistered. 1.4 Open Source Software or OSS means software components embedded in the Program and provided under separate license terms, which can be found either in the open_source_licenses.txt file (or similar file) provided with the Program or at the Photon OS source repository at https://github.com/vmware/photon. 1.5 Program means the computer programs included in the object code version of Photon OS. 1.6 VMware means VMware, Inc., a Delaware corporation, if You are purchasing services for use in the United States and VMware International Limited, a company organized and existing under the laws of Ireland, for all other purchases. 2. LICENSE GRANT. 2.1 General License Grant. VMware grants to You a license to use the Program pursuant to the terms of the GPL v2. 2.2 Open Source Software. Notwithstanding anything herein to the contrary, Open Source Software is licensed to You under such OSSs own applicable license terms, which can be found in the open_source_licenses.txt file, or the corresponding source files for the Program available at https://github.com/vmware/photon. To the extent the license for any Open Source Software requires VMware to make available to You the corresponding source code and/or modifications (the "Source Files"), You may obtain a copy of the applicable Source Files from the Photon OS source repository at https://github.com/vmware/photon 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 requests should 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 acquired this Program. 2.3 Copying of Documentation Permitted. You may copy the Documentation as necessary to install, run and use the Program, but otherwise for archival purposes only. 2.4 Restrictions. You are not authorized to redistribute modified versions of the Program with VMware trademarks and logos. 2.5 Intellectual Property in Trademarks and Documentation. Notwithstanding the terms applicable to the Program, VMware and its licensors retain all ownership in VMware trademarks and the Documentation, including all modifications, enhancements and derivative works thereof, and all Intellectual Property Rights therein. Your rights to use the Documentation and VMware trademarks are limited to those expressly granted in this EULA, and no other rights are implied. 3. SUPPORT AND SUBSCRIPTION SERVICES. VMware does not provide any support or subscription services for the Program under this EULA. 4. DATA PRIVACY. You agree that VMware may process technical and related information about Your use of the Program which may include internet protocol address, hardware identification, operating system, application software, peripheral hardware, and non-personally identifiable Program usage statistics to facilitate the provisioning of online services and may transfer such information to other companies in the VMware worldwide group of companies from time to time. To the extent that this information constitutes personal data, VMware shall be the controller of such personal data. To the extent that it acts as a controller, each party shall comply at all times with its obligations under applicable data protection legislation. 5. WARRANTY DISCLAIMER & LIMITATION OF LIABILITY 5.1 Limitation of Liability. IN ADDITION TO ANY AND ALL LIMITATION OF LIABILITY IN THE GPL V2, IN RESPECT TO THE DOCUMENTATION AND OTHERWISE, TO THE MAXIMUM EXTENT MANDATED BY LAW, IN NO EVENT WILL VMWARE AND ITS LICENSORS BE LIABLE FOR ANY LOST PROFITS OR BUSINESS OPPORTUNITIES, LOSS OF USE, LOSS OF REVENUE, LOSS OF GOODWILL, BUSINESS INTERRUPTION, LOSS OF DATA, OR ANY INDIRECT, SPECIAL, INCIDENTAL, OR CONSEQUENTIAL DAMAGES UNDER ANY THEORY OF LIABILITY, WHETHER BASED IN CONTRACT, TORT, NEGLIGENCE, PRODUCT LIABILITY, OR OTHERWISE. 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. VMWARES AND ITS LICENSORS LIABILITY UNDER THIS EULA WILL NOT, IN ANY EVENT, REGARDLESS OF WHETHER THE CLAIM IS BASED IN CONTRACT, TORT, STRICT LIABILITY, OR OTHERWISE, EXCEED USD$100. THE FOREGOING LIMITATIONS SHALL APPLY REGARDLESS OF WHETHER VMWARE OR ITS LICENSORS HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES AND REGARDLESS OF WHETHER ANY REMEDY FAILS OF ITS ESSENTIAL PURPOSE. 5.2 Further Limitations. VMwares licensors shall have no liability of any kind under this EULA and VMwares liability with respect to any third party software embedded in the Program shall be subject to Section5.1 (Limitation of Liability). You may not bring a claim under this EULA more than eighteen (18) months after the cause of action arises. 5.3 Documentation Warranty Disclaimer: TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, VMWARE AND ITS LICENSORS MAKE NO EXPRESS WARRANTIES UNDER THIS EULA IN RESPECT TO THE DOCUMENTATION OR OTHERWISE, AND DISCLAIM ALL IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE AND NON-INFRINGEMENT, AND ANY WARRANTY ARISING BY STATUTE, OPERATION OF LAW, COURSE OF DEALING OR PERFORMANCE, OR USAGE OF TRADE. VMWARE AND ITS LICENSORS DO NOT WARRANT THAT THE DOCUMENTATION WILL BE FREE FROM DEFECTS OR THAT IT WILL MEET YOUR REQUIREMENTS. 6. COMPLIANCE WITH LAWS; EXPORT CONTROL; GOVERNMENT REGULATIONS. Each party shall comply with all laws applicable to the actions contemplated by this EULA. You acknowledge that the Program is of United States origin, is provided subject to the U.S. Export Administration Regulations, may be subject to the export control laws of the applicable territory, and that diversion contrary to applicable export control laws is prohibited. You represent that (1) you are not, and are not acting on behalf of, (a) 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; or (b) 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 (2) you will not permit the Program 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. The Program and Documentation are deemed to be commercial computer software and commercial computer software documentation, respectively, pursuant to DFARS Section 227.7202 and FAR Section 12.212(b), as applicable. Any use, modification, reproduction, release, performing, displaying or disclosing of the Program and Documentation by or for the U.S. Government shall be governed solely by the terms and conditions of this EULA. 11 12 12.5 12.6 7. GOVERNING LAW. This EULA is governed by the laws of the State of California, United States of America (excluding its conflict of law rules), and the federal laws of the United States. To the extent permitted by law, the state and federal courts located in Santa Clara County, California will be the exclusive jurisdiction for disputes arising out of or in connection with this EULA. The U.N. Convention on Contracts for the International Sale of Goods does not apply. Photon OS 1.0 GA EULA_2016May19