VMWARE END USER LICENSE AGREEMENT
PLEASE NOTE THAT THE TERMS OF THIS END USER LICENSE
AGREEMENT SHALL GOVERN YOUR USE OF THE SOFTWARE,
REGARDLESS OF ANY TERMS THAT MAY APPEAR DURING THE
INSTALLATION OF THE SOFTWARE.
IMPORTANT-READ CAREFULLY: BY DOWNLOADING, INSTALLING,
OR USING THE SOFTWARE, 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 SOFTWARE, AND YOU MUST DELETE OR RETURN THE
UNUSED SOFTWARE TO THE VENDOR FROM WHICH YOU
ACQUIRED IT WITHIN THIRTY (30) DAYS AND REQUEST A REFUND
OF THE LICENSE FEE, IF ANY, THAT YOU PAID FOR THE
SOFTWARE.
EVALUATION LICENSE. If You are licensing the Software for evaluation
purposes, Your use of the Software is only permitted in a non-production
environment and for the period limited by the License Key.
Notwithstanding any other provision in this EULA, an Evaluation License of
the Software is provided "AS-IS" without indemnification, support or
warranty of any kind, expressed or implied.
1. DEFINITIONS.
1.1 "Affiliate" means, with respect to a party at a given time, an entity
that then is directly or indirectly controlled by, is under common control
with, or controls that party, and here "control" means an ownership, voting
or similar interest representing fifty percent (50%) or more of the total
interests then outstanding of that entity.
1.2 "Documentation" means that documentation that is generally
provided to You by VMware with the Software, 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 Software.
1.3 "Guest Operating Systems" means instances of third-party
operating systems licensed by You, installed in a Virtual Machine and run
using the Software.
1.4 "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.
1.5 "License" means a license granted under Section 2.1 (General
License Grant).
1.6 "License Key" means a serial number that enables You to
activate and use the Software.
1.7 "License Term" means the duration of a License as specified in the
Order.
1.8 "License Type" means the type of License applicable to the
Software, as more fully described in the Order.
1.9 "Open Source Software" or "OSS" means software components
embedded in the Software and provided under separate license terms,
which can be found either in the open_source_licenses.txt file (or similar
file) provided within the Software or at
www.vmware.com/download/open_source.html.
1.10 "Order" means a purchase order, enterprise license agreement, or
other ordering document issued by You to VMware or a VMware
authorized reseller that references and incorporates this EULA and is
accepted by VMware as set forth in Section 4 (Order).
1.11 "Product Guide" means the current version of the VMware Product
Guide at the time of Your Order, copies of which are found at
www.vmware.com/download/eula.
1.12 "Support Services Terms" means VMware's then-current support
policies, copies of which are posted at www.vmware.com/support/policies.
1.13 "Software" means the VMware Tools and the VMware computer
programs listed on VMware's commercial price list to which You acquire a
license under an Order, together with any software code relating to the
foregoing that is provided to You pursuant to a support and subscription
service contract and that is not subject to a separate license agreement.
1.14 "Territory" means the country or countries in which You have been
invoiced; provided, however, that if You have been invoiced within any of
the European Economic Area member states, You may deploy the
corresponding Software throughout the European Economic Area.
1.15 "Third Party Agent" means a third party delivering information
technology services to You pursuant to a written contract with You.
1.16 "Virtual Machine" means a software container that can run its own
operating system and execute applications like a physical machine.
1.17 "VMware" means VMware, Inc., a Delaware corporation, if You are
purchasing Licenses or 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.
1.18 "VMware Tools" means the suite of utilities and drivers, Licensed
by VMware under the "VMware Tools" name, that can be installed in a
Guest Operating System to enhance the performance and functionality of
a Guest Operating System when running in a Virtual Machine.
2. LICENSE GRANT.
2.1 General License Grant. VMware grants to You a non-exclusive,
non-transferable (except as set forth in Section 12.1 (Transfers;
Assignment)) license to use the Software and the Documentation during
the period of the license and within the Territory, solely for Your internal
business operations, and subject to the provisions of the Product Guide.
Unless otherwise indicated in the Order, licenses granted to You will be
perpetual, will be for use of object code only, and will commence on either
delivery of the physical media or the date You are notified of availability for
electronic download.
2.2 Third Party Agents. Under the License granted to You in Section
2.1 (General License Grant) above, You may permit Your Third Party
Agents to access, use and/or operate the Software on Your behalf for the
sole purpose of delivering services to You, provided that You will be fully
responsible for Your Third Party Agents' compliance with terms and
conditions of this EULA and any breach of this EULA by a Third Party
Agent shall be deemed to be a breach by You.
2.3 Copying Permitted. You may copy the Software and
Documentation as necessary to install and run the quantity of copies
licensed, but otherwise for archival purposes only.
2.4 Benchmarking. You may use the Software to conduct internal
performance testing and benchmarking studies. You may only publish or
otherwise distribute the results of such studies to third parties as follows:
(a) if with respect to VMware's Workstation or Fusion products, only if You
provide a copy of Your study to benchmark@vmware.com prior to
distribution; (b) if with respect to any other Software, only if VMware has
reviewed and approved of the methodology, assumptions and other
parameters of the study (please contact VMware at
benchmark@vmware.com to request such review and approval) prior to
such publication and distribution.
2.5 VMware Tools. You may distribute the VMware Tools to third
parties solely when installed in a Guest Operating System within a Virtual
Machine. You are liable for compliance by those third parties with the
terms and conditions of this EULA.
2.6 Open Source Software. Notwithstanding anything herein to the
contrary, Open Source Software is licensed to You under such OSS's own
applicable license terms, which can be found in the
open_source_licenses.txt file, the Documentation or as applicable, the
corresponding source files for the Software available at
www.vmware.com/download/open_source.html. These OSS license terms
are consistent with the license granted in Section 2 (License Grant), and
may contain additional rights benefiting You. The OSS license terms shall
take precedence over this EULA to the extent that this EULA imposes
greater restrictions on You than the applicable OSS license terms. 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 VMware's website at
www.vmware.com/download/open_source.html 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 Software.
3. RESTRICTIONS; OWNERSHIP.
3.1 License Restrictions. Without VMware's prior written consent,
You must not, and must not allow any third party to: (a) use Software in an
application services provider, service bureau, or similar capacity for third
parties, except that You may use the Software to deliver hosted services
to Your Affiliates; (b) disclose to any third party the results of any
benchmarking testing or comparative or competitive analyses of VMware's
Software done by or on behalf of You, except as specified in Section 2.4
(Benchmarking); (c) make available Software in any form to anyone other
than Your employees or contractors reasonably acceptable to VMware
and require access to use Software on behalf of You in a matter permitted
by this EULA, except as specified in Section 2.2 (Third Party Agents); (d)
transfer or sublicense Software or Documentation to an Affiliate or any
third party, except as expressly permitted in Section 12.1 (Transfers;
Assignment); (e) use Software in conflict with the terms and restrictions of
the Software's licensing model and other requirements specified in
Product Guide and/or VMware quote; (f) except to the extent permitted by
applicable mandatory law, modify, translate, enhance, or create derivative
works from the Software, or reverse engineer, decompile, or otherwise
attempt to derive source code from the Software, except as specified in
Section 3.2 (Decompilation); (g) remove any copyright or other proprietary
notices on or in any copies of Software; or (h) violate or circumvent any
technological restrictions within the Software or specified in this EULA,
such as via software or services.
3.2 Decompilation. Notwithstanding the foregoing, decompiling the
Software is permitted to the extent the laws of the Territory give You the
express right to do so to obtain information necessary to render the
Software interoperable with other software; provided, however, You must
first request such information from VMware, provide all reasonably
requested information to allow VMware to assess Your claim, and VMware
may, in its discretion, either provide such interoperability information to
You, impose reasonable conditions, including a reasonable fee, on such
use of the Software, or offer to provide alternatives to ensure that
VMware's proprietary rights in the Software are protected and to reduce
any adverse impact on VMware's proprietary rights.
3.3 Ownership. The Software and Documentation, all copies and
portions thereof, and all improvements, enhancements, modifications and
derivative works thereof, and all Intellectual Property Rights therein, are
and shall remain the sole and exclusive property of VMware and its
licensors. Your rights to use the Software and Documentation shall be
limited to those expressly granted in this EULA and any applicable Order.
No other rights with respect to the Software or any related Intellectual
Property Rights are implied. You are not authorized to use (and shall not
permit any third party to use) the Software, Documentation or any portion
thereof except as expressly authorized by this EULA or the applicable
Order. VMware reserves all rights not expressly granted to You. VMware
does not transfer any ownership rights in any Software.
3.4 Guest Operating Systems. Certain Software allows Guest
Operating Systems and application programs to run on a computer
system. You acknowledge that You are responsible for obtaining and
complying with any licenses necessary to operate any such third-party
software.
4. ORDER. Your Order is subject to this EULA. No Orders are
binding on VMware until accepted by VMware. Orders for Software are
deemed to be accepted upon VMware's delivery of the Software included
in such Order. Orders issued to VMware do not have to be signed to be
valid and enforceable.
5. RECORDS AND AUDIT. During the License Term for Software
and for two (2) years after its expiration or termination, You will maintain
accurate records of Your use of the Software sufficient to show
compliance with the terms of this EULA. During this period, VMware will
have the right to audit Your use of the Software to confirm compliance with
the terms of this EULA. That audit is subject to reasonable notice by
VMware and will not unreasonably interfere with Your business activities.
VMware may conduct no more than one (1) audit in any twelve (12) month
period, and only during normal business hours. You will reasonably
cooperate with VMware and any third party auditor and will, without
prejudice to other rights of VMware, address any non-compliance
identified by the audit by promptly paying additional fees. You will promptly
reimburse VMware for all reasonable costs of the audit if the audit reveals
either underpayment of more than five (5%) percent of the Software fees
payable by You for the period audited, or that You have materially failed to
maintain accurate records of Software use.
6. SUPPORT AND SUBSCRIPTION SERVICES. Except as
expressly specified in the Product Guide, VMware does not provide any
support or subscription services for the Software under this EULA. You
have no rights to any updates, upgrades or extensions or enhancements
to the Software developed by VMware unless you separately purchase
VMware support or subscription services. These support or subscription
services are subject to the Support Services Terms.
7. WARRANTIES.
7.1 Software Warranty, Duration and Remedy. VMware warrants to
You that the Software will, for a period of ninety (90) days following notice
of availability for electronic download or delivery ("Warranty Period"),
substantially conform to the applicable Documentation, provided that the
Software: (a) has been properly installed and used at all times in
accordance with the applicable Documentation; and (b) has not been
modified or added to by persons other than VMware or its authorized
representative. VMware will, at its own expense and as its sole obligation
and Your exclusive remedy for any breach of this warranty, either replace
that Software or correct any reproducible error in that Software reported to
VMware by You in writing during the Warranty Period. If VMware
determines that it is unable to correct the error or replace the Software,
VMware will refund to You the amount paid by You for that Software, in
which case the License for that Software will terminate.
7.2 Software Disclaimer of Warranty. OTHER THAN THE
WARRANTY ABOVE, AND TO THE MAXIMUM EXTENT PERMITTED BY
APPLICABLE LAW, VMWARE AND ITS SUPPLIERS MAKE NO OTHER
EXPRESS WARRANTIES UNDER THIS EULA, 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 SOFTWARE
WILL OPERATE UNINTERRUPTED OR THAT IT WILL BE FREE FROM
DEFECTS OR THAT IT WILL MEET YOUR REQUIREMENTS.
8. INTELLECTUAL PROPERTY INDEMNIFICATION.
8.1 Defense and Indemnification. Subject to the remainder of this
Section 8 (Intellectual Property Indemnification), VMware shall defend You
against any third party claim that the Software infringes any patent,
trademark or copyright of such third party, or misappropriates a trade
secret (but only to the extent that the misappropriation is not a result of
Your actions) under the laws of: (a) the United States and Canada; (b) the
European Economic Area; (c) Australia; (d) New Zealand; (e) Japan; or (f)
the People's Republic of China, to the extent that such countries are part
of the Territory for the License ("Infringement Claim") and indemnify You
from the resulting costs and damages finally awarded against You to such
third party by a court of competent jurisdiction or agreed to in settlement.
The foregoing obligations are applicable only if You: (i) promptly notify
VMware in writing of the Infringement Claim; (ii) allow VMware sole control
over the defense for the claim and any settlement negotiations; and (iii)
reasonably cooperate in response to VMware requests for assistance.
You may not settle or compromise any Infringement Claim without the
prior written consent of VMware.
8.2 Remedies. If the alleged infringing Software become, or in
VMware's opinion be likely to become, the subject of an Infringement
Claim, VMware will, at VMware's option and expense, do one of the
following: (a) procure the rights necessary for You to make continued use
of the affected Software; (b) replace or modify the affected Software to
make it non-infringing; or (c) terminate the License to the affected
Software and discontinue the related support services, and, upon Your
certified deletion of the affected Software, refund: (i) the fees paid by You
for the License to the affected Software, less straight-line depreciation
over a three (3) year useful life beginning on the date such Software was
delivered; and (ii) any pre-paid service fee attributable to related support
services to be delivered after the date such service is stopped. Nothing in
this Section 8.2 (Remedies) shall limit VMware's obligation under Section
8.1 (Defense and Indemnification) to defend and indemnify You, provided
that You replace the allegedly infringing Software upon VMware's making
alternate Software available to You and/or You discontinue using the
allegedly infringing Software upon receiving VMware's notice terminating
the affected License.
8.3 Exclusions. Notwithstanding the foregoing, VMware will have no
obligation under this Section 8 (Intellectual Property Indemnification) or
otherwise with respect to any claim based on: (a) a combination of
Software with non-VMware products (other than non-VMware products
that are listed on the Order and used in an unmodified form); (b) use for a
purpose or in a manner for which the Software was not designed; (c) use
of any older version of the Software when use of a newer VMware version
would have avoided the infringement; (d) any modification to the Software
made without VMware's express written approval; (e) any claim that
relates to open source software or freeware technology or any derivatives
or other adaptations thereof that is not embedded by VMware into
Software listed on VMware's commercial price list; or (f) any Software
provided on a no charge, beta or evaluation basis. THIS SECTION 8
(INTELLECTUAL PROPERTY INDEMNIFICATION) STATES YOUR
SOLE AND EXCLUSIVE REMEDY AND VMWARE'S ENTIRE LIABILITY
FOR ANY INFRINGEMENT CLAIMS OR ACTIONS.
9. LIMITATION OF LIABILITY.
9.1 Limitation of Liability. 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.
VMWARE'S 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 THE GREATER OF THE LICENSE FEES YOU PAID FOR THE
SOFTWARE GIVING RISE TO THE CLAIM OR $5000. 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.
9.2 Further Limitations. VMware's licensors shall have no liability of
any kind under this EULA and VMware's liability with respect to any third
party software embedded in the Software shall be subject to Section 9.1
(Limitation of Liability). You may not bring a claim under this EULA more
than eighteen (18) months after the cause of action arises.
10. TERMINATION.
10.1 EULA Term. The term of this EULA begins on the notice of
availability for electronic download or delivery of the Software and
continues until this EULA is terminated in accordance with this Section 10.
10.2 Termination for Breach. VMware may terminate this EULA
effective immediately upon written notice to You if: (a) You fail to pay any
portion of the fees under an applicable Order within ten (10) days after
receiving written notice from VMware that payment is past due; or (b) You
breach any other provision of this EULA and fail to cure within thirty (30)
days after receipt of VMware's written notice thereof.
10.3 Termination for Insolvency. VMware may terminate this EULA
effective immediately upon written notice to You if You: (a) terminate or
suspend your business; (b) become insolvent, admit in writing Your
inability to pay Your debts as they mature, make an assignment for the
benefit of creditors; or become subject to control of a trustee, receiver or
similar authority; or (c) become subject to any bankruptcy or insolvency
proceeding.
10.4 Effect of Termination. Upon VMware's termination of this EULA:
(a) all Licensed rights to all Software granted to You under this EULA will
immediately cease; and (b) You must cease all use of all Software, and
return or certify destruction of all Software and License Keys (including
copies) to VMware, and return, or if requested by VMware, destroy, any
related VMware Confidential Information in Your possession or control and
certify in writing to VMware that You have fully complied with these
requirements. Any provision will survive any termination or expiration if by
its nature and context it is intended to survive, including Sections 1
(Definitions), 2.6 (Open Source Software), 3 (Restrictions; Ownership), 5
(Records and Audit), 7.2 (Software Disclaimer of Warranty), 9 (Limitation
of Liability), 10 (Termination), 11 (Confidential Information) and 12
(General).
11. CONFIDENTIAL INFORMATION.
11.1 Definition. "Confidential Information" means information or
materials provided by one party ("Discloser") to the other party
("Recipient") which are in tangible form and labelled "confidential" or the
like, or, information which a reasonable person knew or should have
known to be confidential. The following information shall be considered
Confidential Information whether or not marked or identified as such: (a)
License Keys; (b) information regarding VMware's pricing, product
roadmaps or strategic marketing plans; and (c) non-public materials
relating to the Software.
11.2 Protection. Recipient may use Confidential Information of
Discloser; (a) to exercise its rights and perform its obligations under this
EULA; or (b) in connection with the parties' ongoing business relationship.
Recipient will not use any Confidential Information of Discloser for any
purpose not expressly permitted by this EULA, and will disclose the
Confidential Information of Discloser only to the employees or contractors
of Recipient who have a need to know such Confidential Information for
purposes of this EULA and who are under a duty of confidentiality no less
restrictive than Recipient's duty hereunder. Recipient will protect
Confidential Information from unauthorized use, access, or disclosure in
the same manner as Recipient protects its own confidential or proprietary
information of a similar nature but with no less than reasonable care.
11.3 Exceptions. Recipient's obligations under Section 11.2 (Protection)
with respect to any Confidential Information will terminate if Recipient can
show by written records that such information: (a) was already known to
Recipient at the time of disclosure by Discloser; (b) was disclosed to
Recipient by a third party who had the right to make such disclosure
without any confidentiality restrictions; (c) is, or through no fault of
Recipient has become, generally available to the public; or (d) was
independently developed by Recipient without access to, or use of,
Discloser's Information. In addition, Recipient will be allowed to disclose
Confidential Information to the extent that such disclosure is required by
law or by the order of a court of similar judicial or administrative body,
provided that Recipient notifies Discloser of such required disclosure
promptly and in writing and cooperates with Discloser, at Discloser's
request and expense, in any lawful action to contest or limit the scope of
such required disclosure.
11.4 Data Privacy. You agree that VMware may process technical and
related information about Your use of the Software which may include
internet protocol address, hardware identification, operating system,
application software, peripheral hardware, and non-personally identifiable
Software usage statistics to facilitate the provisioning of updates, support,
invoicing or 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.
12. GENERAL.
12.1 Transfers; Assignment. Except to the extent transfer may not
legally be restricted or as permitted by VMware's transfer and assignment
policies, in all cases following the process set forth at
www.vmware.com/support/policies/licensingpolicies.html, You will not
assign this EULA, any Order, or any right or obligation herein or delegate
any performance without VMware's prior written consent, which consent
will not be unreasonably withheld. Any other attempted assignment or
transfer by You will be void. VMware may use its Affiliates or other
sufficiently qualified subcontractors to provide services to You, provided
that VMware remains responsible to You for the performance of the
services.
12.2 Notices. Any notice delivered by VMware to You under this EULA
will be delivered via mail, email or fax.
12.3 Waiver. Failure to enforce a provision of this EULA will not
constitute a waiver.
12.4 Severability. If any part of this EULA is held unenforceable, the
validity of all remaining parts will not be affected.
12.5 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 Software 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 Software 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 Software and accompanying 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 Software and documentation by or for the U.S. Government shall be
governed solely by the terms and conditions of this EULA.
12.6 Construction. The headings of sections of this EULA are for
convenience and are not to be used in interpreting this EULA. As used in
this EULA, the word 'including' means "including but not limited to".
12.7 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.
12.8 Third Party Rights. Other than as expressly set out in this EULA,
this EULA does not create any rights for any person who is not a party to
it, and no person who is not a party to this EULA may enforce any of its
terms or rely on any exclusion or limitation contained in it.
12.9 Order of Precedence. In the event of conflict or inconsistency
among the Product Guide, this EULA and the Order, the following order of
precedence shall apply: (a) the Product Guide, (b) this EULA and (c) the
Order. With respect to any inconsistency between this EULA and an
Order, the terms of this EULA shall supersede and control over any
conflicting or additional terms and conditions of any Order,
acknowledgement or confirmation or other document issued by You.
12.10 Entire Agreement. This EULA, including accepted Orders and any
amendments hereto, and the Product Guide contain the entire agreement
of the parties with respect to the subject matter of this EULA and
supersede all previous or contemporaneous communications,
representations, proposals, commitments, understandings and
agreements, whether written or oral, between the parties regarding the
subject matter hereof. This EULA may be amended only in writing signed
by authorized representatives of both parties.
12.11 Contact Information. Please direct legal notices or other
correspondence to VMware, Inc., 3401 Hillview Avenue, Palo Alto,
California 94304, United States of America, Attention: Legal Department.