IMPORTANT-READ CAREFULLY: BY ACCESSING OR USING THE SERVICE, YOU (THE INDIVIDUAL OR LEGAL ENTITY ACCESSING THE HOSTED SERVICE) AGREE TO BE BOUND BY THESE TERMS OF SERVICE ("AGREEMENT"). IF YOU DO NOT AGREE TO THIS AGREEMENT, YOU MUST NOT USE OR ACCESS THE SERVICE, AND YOU MUST NOTIFY THE VENDOR FROM WHICH YOU ACQUIRED ACCESS TO THE SERVICE WITHIN THIRTY (30) DAYS AND REQUEST A REFUND OF THE SUBSCRIPTION FEE, IF ANY, THAT YOU PAID FOR THE SERVICE.
EVALUATION ACCESS. If You are accessing or using the Hosted Service for evaluation purposes, Your use of the Hosted Service is only permitted for evaluation purposes and for the period limited by the Login Credentials. Notwithstanding any other provision in this Agreement, an evaluation of the Hosted Service is provided "AS-IS" without indemnification, support or warranty of any kind, expressed or implied.
1.1 "Affiliate" means, with respect to a party, an entity that is directly or indirectly controlled by or is under common control with such party, where "control" means an ownership, voting or similar interest representing fifty percent (50%) or more of the total interests then outstanding of the relevant entity (but only as long as such person or entity meets these requirements).
1.2 "Customer Data" means any and all files, information, data or other content that You upload to the Hosted Service in connection with Your use of the Hosted Service. It does not include information that VMware collects for relationship management purposes, such as contact, billing, customer relationship management, service delivery, performance measuring, and compliance monitoring.
1.3 "Documentation" means that documentation that is generally provided to You by VMware for the Hosted Service, as revised by VMware from time to time, and which may include service descriptions and access instructions regarding the Hosted Service.
1.4 "Hosted Service" means the VMware hosted offering listed in VMware's commercial price list to which You acquire rights to access and use under an Order.
1.5 "Hosted Service Subscription" means Your right to access and use the Hosted Service as specified in the Documentation for such Hosted Service Subscription during the applicable Hosted Service Subscription Term.
1.6 "Hosted Service Subscription Fee" means the fee, if any, for each Hosted Service Subscription as specified in the Order.
1.7 "Hosted Service Subscription Term" means the time period of Your access to the Hosted Service as specified in the Order.
1.8 "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.
1.9 "Login Credentials" mean any passwords, authentication keys or security credentials that are provided by VMware to You to enable Your access to the Hosted Service.
1.10 "Order" means (a) 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 Agreement and is accepted by VMware as set forth in Section 4 or (b) an online purchase of the Hosted Service placed via an online store authorized by VMware.
1.11 "Taxes" means any sales, use, gross receipts, business and occupation, and other taxes (other than taxes on VMware's income), export and import fees, customs duties and similar charges applicable to the transactions contemplated by this Agreement that are imposed by any government or other authority.
1.12 "Third Party Agent" means a third party delivering information technology services to You pursuant to a written contract with You.
1.13 "VMware" means VMware, Inc., a Delaware corporation, if You are purchasing Hosted Service Subscriptions 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. ACCESS TO THE SERVICE.
2.1 Provision of Hosted Service. VMware will provide the Hosted Service to You for the type of Hosted Service Subscription specified in the Order during each applicable Hosted Service Subscription Term in accordance with the terms of this Agreement. VMware shall continuously improve and evolve its software products and services offerings and collect and analyze usage patterns, user feedback and other information. Subject to any limitation set forth in Section 12, VMware may change, discontinue, or terminate the Hosted Service or change or remove features or functionality of the Hosted Service in its sole discretion at any time. VMware will notify You of any material change to or termination of the Hosted Service and provide You with a refund of the Hosted Service Subscription Fee pro-rated for the remainder of the Hosted Service Subscription Term.
2.2 Access to Hosted Service. You may access and use the Hosted Service solely for Your own benefit and in accordance with the terms and conditions of this Agreement, the Documentation and any usage restrictions designated in the Order. To the extent that You are given Login Credentials, You shall require that all authorized users keep Login Credentials strictly confidential and not share such information with any unauthorized person. You are responsible for authorizing and controlling access to the Hosted Service, maintaining the confidentiality of Login Credentials, and for any use that occurs under such Login Credentials.
2.3 Third Party Content. In connection with Your use of the Hosted Service, You may be provided with access to third party data, content, software or applications ("Third Party Content") under separate terms and conditions, including separate fees and charges. Any Third Party Content will be provided "as is" without any representations, warranties or indemnity.
2.4 Third Party Use. Under the access granted to You in Section 2.2 above, You may permit Your Third Party Agents to access, use and/or operate the Hosted Service 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 Agreement and any breach of this Agreement by a Third Party Agent shall be deemed to be a breach by You.
3. RESTRICTIONS; OWNERSHIP.
3.1 General Restrictions. You acknowledge that the Hosted Service and the structure, organization and source code of the Hosted Service constitute valuable trade secrets of VMware. Accordingly, except as otherwise authorized by VMware in writing, You will not and will not permit any third party to: (a) sell, lease, or provide access to, the Hosted Service to any third party, except as permitted in Section 2.4 above; (b) reverse engineer, or otherwise attempt to derive source code from the Hosted Service, in whole or in part; (c) circumvent, enable, modify or provide access, permissions or rights which violate the technical restrictions of the Hosted Service as described in this Agreement; (d) copy or modify the Hosted Service; (e) interfere with or disrupt the integrity or performance of the Hosted Service or third-party data contained therein; or (f) operate the Hosted Service on behalf of or for the benefit of any third party, including the operation of any service that is accessed by a third party, except that, for the purposes of this Section 3.1 (f), Your Affiliates may use the Hosted Service provided that such use is for such Affiliate's or Your benefit, such use doesn't exceed any usage restrictions in the Order, and You agree to be responsible for such Affiliate's use of the Hosted Service .
3.2 Customer Data.
3.2.1 Customer Data Requirements. As between You and VMware, You and Your authorized users shall retain all right, title and interest in and to the Customer Data and all Intellectual Property Rights therein. Nothing in the Agreement will confer on VMware any right of ownership or interest in the Customer Data or the Intellectual Property rights therein; provided, however, that you consent to VMware's use of Customer Data to provide, improve and manage the Hosted Service in accordance with this Agreement and applicable law. You are solely responsible for the Customer Data that Your authorized users upload, publish, display, link to or otherwise make available (hereinafter, "post") on the Hosted Service, and You agree that VMware is only acting as a passive conduit for the online distribution and publication of the Customer Data. VMware will not review, share, distribute, or reference any such Customer Data except as provided herein or as required by law. You agree to take steps to ensure that Your authorized users do not post Customer Data that: (i) may create a risk of harm, loss, physical or mental injury, emotional distress, death, disability, disfigurement, or physical or mental illness to an authorized user, or any other person or entity; (ii) may create a risk of any other loss or damage to any person or property; (iii) may constitute or contribute to a crime or tort; (iv) contains any information or content that is unlawful, harmful, abusive, racially or ethnically offensive, defamatory, infringing, invasive of personal privacy or publicity rights, harassing, humiliating to other people (publicly or otherwise), libelous, threatening, or otherwise objectionable; (v) contains any information or content that is illegal; or (vi) contains any information or content that You do not have a right to make available under any law or under contractual or fiduciary relationships. You represent and warrant that the Customer Data does not and will not violate third-party rights of any kind, including without limitation any Intellectual Property Rights, rights of publicity and privacy. You shall ensure that your use of the Hosted Service and all Customer Data is at all times compliant with your privacy policies and all applicable local, state, federal and international laws and regulations. VMware is not responsible for any public display or misuse of Customer Data, except in the case of gross negligence or intentional misconduct by VMware or its employees.
3.2.2 Protection of Customer Data. VMware shall maintain appropriate administrative, physical, and technical safeguards for protection of the security, confidentiality and integrity of Customer Data. VMware will not (a) modify Customer Data, (b) disclose Customer Data except as compelled by law in accordance with Section 10.3 or as expressly permitted in writing by You, or (c) access Customer Data except to provide the Hosted Services and prevent or address service or technical problems, or at Your request in connection with customer support matters.
3.2.3 Customer Content Storage. The Service is not an archiving service. Except as expressly set forth in this Agreement, VMware reserves the right to remove Customer Data from the Service at any time and VMware expressly disclaims any obligations with respect to the storage or transfer of Customer Data.
3.2.4 Indemnification by Customer. You shall defend and indemnify VMware against any third party claim arising from or relating to: (a) Customer Data; (b) any infringement or misappropriation of any Intellectual Property Rights by You, Your customers or Your suppliers; (c) violation of law by You; or (d) Your use of the Hosted Service in violation of this Agreement, provided that VMware: (i) provides You with notice of such claim within a reasonable period of time after learning of the claim; and (ii) reasonably cooperates in response to Your requests for assistance. You may not settle or compromise any indemnified claim without the prior written consent of VMware.
3.3 Ownership. The Hosted Service 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 Hosted Service and Documentation shall be limited to those expressly granted in this Agreement and any applicable Order. No other rights with respect to the Hosted Service or any related Intellectual Property Rights are implied. The Customer Data, all copies and portions thereof, and all Intellectual Property Rights therein, are and shall remain Your and Your licensors' sole and exclusive property.
4.1 Orders. All Orders are subject to this Agreement. No Orders are binding on VMware until accepted by VMware. Orders for the Hosted Service (including any renewal of the Hosted Service) are deemed to be accepted upon VMware's issuance of an invoice for such Hosted Service. Orders issued to VMware do not have to be signed to be valid and enforceable. Notwithstanding the foregoing, if determined by VMware in its sole discretion, Orders for the Hosted Service may be placed via an online store authorized by VMware.
4.2 Purchases through Resellers. The terms of this Agreement related to delivery, pricing, payment or taxes shall not apply to any of Your purchases of the Hosted Service (including any renewal of the Hosted Service) through VMware authorized resellers, and You shall establish such terms independently with the authorized reseller.
4.3 Delivery of Login Credentials. If VMware desires to accept an Order for the Hosted Service, VMware shall deliver the corresponding Hosted Service to You by emailing the corresponding Login Credentials to You. The Hosted Service shall be deemed delivered and accepted upon VMware emailing the corresponding Login Credentials to You. Notwithstanding the foregoing, the Hosted Service will be delivered via the method specified in the online store, if purchased in an Order via an online store authorized by VMware.
4.4 Invoicing and Payment Terms. VMware will, upon making the Hosted Service available to You, invoice You for the fees set out in the applicable Order. You shall pay all fees, in the currency specified in the invoice, within thirty (30) days after the date of the invoice. If Your usage of the Hosted Service exceeds the amount for which You have paid, You will promptly pay to VMware any additional fees for all such additional usage by You. Except as expressly set forth in this Agreement, fees are non-refundable and amounts not paid when due shall incur a late fee equal to the lesser of one and one-half percent (1.5%) per month or the maximum amount allowed by applicable law. VMware may suspend the delivery of the Hosted Service while any payment is delinquent. Notwithstanding the foregoing, if You purchase the Hosted Service via an online store authorized by VMware, Your payment terms will be as specified at the time of purchase.
4.5 Taxes. Hosted Service Subscription Fees are exclusive of Taxes and You shall pay or reimburse VMware for all Taxes arising out of this Agreement or the transactions contemplated by this Agreement. If You are required to pay or withhold any Tax in respect of any payments due to VMware hereunder, You shall gross up payments actually made such that VMware shall receive sums due hereunder in full and free of any deduction for any such Tax. You hereby confirm that VMware can rely on the "ship to" name and address set forth in Order You place directly with VMware as being the place of supply for sales tax and income tax purposes. Where VMware is making a supply of services under Article 44 of VAT Directive 2006/112/EC, You confirm that VMware can rely on the "bill to" name and address as per the Order issued by You to VMware as being the place of supply for VAT purposes where You have established its business.
5. SUPPORT AND SUBSCRIPTION SERVICES. Subject to the terms of this Agreement, VMware shall provide support for the Hosted Service to You during the Hosted Service Subscription Term in accordance with the terms specified at https://www.vmware.com/support/policies/saas-support.html.
6. DISCLAIMER.TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, VMWARE AND ITS LICENSORS DISCLAIM ALL WARRANTIES, WHETHER EXPRESS, IMPLIED, OR STATUTORY, INCLUDING ANY IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE, TITLE, NON-INFRINGEMENT AND ANY WARRANTIES ARISING FROM COURSE OF DEALING OR COURSE OF PERFORMANCE) REGARDING OR RELATING TO THE HOSTED SERVICE, THE DOCUMENTATION, OR ANY MATERIALS OR SERVICES FURNISHED OR PROVIDED TO YOU UNDER THIS AGREEMENT. VMWARE AND ITS LICENSORS DO NOT WARRANT THAT THE HOSTED SERVICE WILL OPERATE UNINTERRUPTED OR THAT IT WILL BE FREE FROM DEFECTS OR THAT THE SERVICE WILL MEET (OR IS DESIGNED TO MEET) YOUR BUSINESS REQUIREMENTS.
7. INTELLECTUAL PROPERTY INDEMNIFICATION.
7.1 Defense and Indemnification. Subject to the remainder of this Section 7, VMware shall defend You against any third party claim that the Hosted Service infringes any patent, trademark or copyright of such third party, or misappropriates a trade secret (but only to the extent that such 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) China, to the extent that such countries are part of Your places of use of the Hosted Service ("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; provided that You: (i) provide VMware with notice of such Infringement Claim within a reasonable period of time after learning of the claim; (ii) allow VMware sole control over the defense thereof and related settlement negotiation; 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.
7.2 Remedies. Should the Hosted Service become, or in VMware's opinion be likely to become, the subject of an Infringement Claim, VMware will, at VMware's option and expense either: (a) procure the rights necessary for You to make continued use of the affected Hosted Service in accordance with this Agreement; (b) modify the affected Hosted Service to make it non-infringing; or (c) terminate Your Hosted Service Subscription to the affected Hosted Service and refund the Hosted Service Subscription Fees paid by You for the affected Hosted Service, pro-rated for the remainder of the Hosted Service Subscription Term.
7.3 Exclusions. Notwithstanding the foregoing, VMware will have no obligation under this Section 7 or otherwise with respect to any claim based on: (a) a combination of the Hosted Service with non-VMware products (other than non-VMware products that are listed on the Order and used in an unmodified form); (b) use of the Hosted Service for a purpose or in a manner not specified in the Documentation; (c) any modification to the Hosted Service made without VMware's express written approval; (d) any claim that relates to Linux or Android open source software, even when it has been embedded into the Hosted Service; or (e) any Hosted Service provided on a no charge, beta or evaluation basis. THIS SECTION 7 STATES YOUR SOLE AND EXCLUSIVE REMEDY AND VMWARE'S ENTIRE LIABILITY FOR ANY INFRINGEMENT CLAIMS OR ACTIONS.
8. LIMITATION OF LIABILITY.
8.1 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 OTHER 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 AGREEMENT WILL NOT, IN ANY EVENT, REGARDLESS OF WHETHER THE CLAIM IS BASED IN CONTRACT, TORT, STRICT LIABILITY, OR OTHERWISE, EXCEED THE SUBSCRIPTION FEES YOU PAID FOR THE HOSTED SERVICE IN THE PRIOR TWELVE (12) MONTHS, IF ANY. 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.
8.2 Further Limitations. VMware's licensors shall have no liability of any kind under this Agreement and VMware's liability with respect to any third party software or third party content provided with the Hosted Service shall be subject to Section 8.1. You may not bring a claim under this Agreement more than eighteen (18) months after the cause of action arises.
9.1 Term of Agreement. This Agreement will terminate in its entirety upon the termination of the Hosted Service Subscription Term, unless terminated earlier under this Section 9.
9.2 Termination for Breach. VMware may terminate this Agreement in its entirety effective immediately upon written notice to You if: (a) You breach any provision in Section 3; (b) 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; (c) You breach any other provision of this Agreement and don't not cure the breach within thirty (30) days after receiving written notice thereof from VMware; or (d) You commit a material breach that is not capable of being cured.
9.3 Termination for Insolvency. VMware may terminate this Agreement in its entirety 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.
9.4 Effect of Termination. If VMware terminates this Agreement under this Section 9: (a) all rights to the Hosted Service granted to You under this Agreement will immediately cease to exist; and (b) You must promptly discontinue all access or use of the Hosted Service, 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. Sections 1 (Definitions), 3 (Restrictions; Ownership), 6 (Disclaimer), 8 (Limitation of Liability), 9 (Termination), 10 (Confidential Information) and 11 (Miscellaneous) will any survive termination of this Agreement.
10. CONFIDENTIAL INFORMATION.
10.1 Definition. "Confidential Information" means information or materials provided by one party ("Discloser") to the other party ("Recipient") which are in tangible form and labeled "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) Login Credentials; (b) information regarding VMware pricing, product roadmaps or strategic marketing plans; and (c) non-public materials relating to the Hosted Service.
10.2 Protection. Recipient may use Confidential Information of Discloser; (a) to exercise its rights and perform its obligations under this Agreement; 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 Agreement, 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 Agreement 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.
10.3 Exceptions. Recipient's obligations under Section 10.2 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.
11.1 Assignment. This Agreement and any Orders, and any of Your rights or obligations thereunder, may not be assigned, subcontracted or transferred by You, in whole or in part, whether voluntary, by operation of contract, law or otherwise, without the prior written consent of VMware. Any attempted assignment or transfer in violation of the foregoing will be null and void. Subject to the foregoing, this Agreement will be binding upon and will inure to the benefit of the parties and their respective successors and assigns.
11.2 Notices. Any notice delivered by VMware to You under this Agreement will be delivered via mail, email or fax.
11.3 Waiver. The waiver of a breach of any provision of this Agreement shall not constitute a waiver of any other provision or any subsequent breach.
11.4 Severability. If any provision of this Agreement is held to be illegal, invalid or unenforceable, the provision will be enforced to the maximum extent permissible so as to effect the intent of the parties, and the remaining provisions of this Agreement will remain in full force and effect.
11.5 Compliance with Laws; Export Control; Government Regulations. Each party shall comply with all laws applicable to the actions contemplated by this Agreement. You acknowledge that the Hosted Service 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 Hosted Service 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. All VMware products, services (including but not limited to pre-packaged professional services offerings and Hosted Services) and publications are commercial in nature. The software, Hosted Services, publications and software documentation are "Commercial Items," as that term is defined in 48 C.F.R.§2.101, consisting of "Commercial Computer Software" and "Commercial Computer Software Documentation," as such terms are defined in 48 C.F.R. §252.227-7014(a)(1) and 48 C.F.R. §252.227-7014(a)(5), and used in 48 C.F.R. §12.211, 48 C.F.R. §12.212 and 48 C.F.R. §227.7202, as applicable. Pursuant to 48 C.F.R. §12.211, 48 C.F.R. §12.212, 48 C.F.R.§252.227-7015, 48 C.F.R. §227.7202 through 227.7202-4, 48 C.F.R. §52.227-19 and other relevant sections of the Code of Federal Regulations, as applicable, VMware's publications, commercial computer software, Hosted Services and commercial computer software documentation are distributed and licensed to United States Government end users with only those rights as granted to all other end users, according to the terms and conditions contained in the license agreements and terms of service that accompany the products and software documentation and the terms and conditions herein.
11.6 Construction. The headings of sections of this Agreement are for convenience and are not to be used in interpreting this Agreement. As used in this Agreement, the word 'including' means "including but not limited to."
11.7 Governing Law. This Agreement is governed by the laws of the State of California, United States of America, unless mandated by other law. The United Nations Convention for the International Sale of Goods shall not apply.
11.8 Third Party Rights. Other than as expressly set out in this Agreement, this Agreement 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 Agreement may enforce any of its terms or rely on any exclusion or limitation contained in it.
11.9 Order of Precedence. In the event of conflict or inconsistency among this Agreement and the Order, the following order of precedence shall apply: (a) this Agreement and (b) the Order. The terms of this Agreement shall supersede and control over any conflicting or additional terms and conditions of any Order, acknowledgement or confirmation or other document issued by You, unless the parties execute a written agreement expressly indicating: (i) that such Order shall modify this Agreement; or (ii) that the terms of such Order shall supersede and control in the event of any inconsistency.
11.10 Entire Agreement. This Agreement, including accepted Orders and any amendments hereto, contains the entire agreement of the parties with respect to the subject matter of this Agreement and supersedes all previous or contemporaneous communications, representations, proposals, commitments, understandings and agreements, whether written or oral, between the parties regarding the subject matter hereof. This Agreement may be amended only in writing signed by authorized representatives of both parties.
11.11 Contact Information. Please direct legal notices or other correspondence to VMware, Inc., 3401 Hillview Avenue, Palo Alto, California 94304, United States of America. If You have any questions concerning this Agreement, please send an email to [email protected].
12. Hosted Service-Specific Terms And Conditions. In addition to the above sections, the Hosted Service is subject to the following terms and conditions. In the event of any conflict between the Hosted Service-specific terms and conditions and Sections 1-11 of this Agreement, the Hosted Service-specific terms and conditions shall control.
Socialcast Dedicated Cloud
"Content" means the audio and visual information, documents, software, products and services contained in or made available to You in the course of using the Hosted Service.
"Named User" means a designated user who can access or use the Hosted Service.
"Private Group" means a portion of the Hosted Service that can be accessed only after receipt and acceptance of an invitation from You or a Named User.
"External Contributor" means an individual who is not a "Named User" but is authorized by You to access and post information to one or more Private Groups but is otherwise prohibited from accessing or using the Hosted Service.
"Hosted Service" means the VMware hosted offering listed in VMware's commercial price list to which You acquire rights to access and use under an Order. The Hosted Service, includes, but is not limited to, Content.
"Freemium Offering" means the Hosted Service made available by VMware on a no-charge basis for up to a total of fifty (50) Named Users and External Contributors.
"Named User" means a designated user who can access or use the Hosted Service.
Subject to the terms and conditions of this Agreement and payment of all fees specified in the applicable Order(s), VMware grants to You, during the Hosted Service Subscription Term, a right to: (i) access and use the Hosted Service by the total number and type of Named Users set forth in the applicable Order and (ii) permit External Contributors to access and use Private Groups.
If You have a total of fifty (50) or fewer Named Users and External Contributors, VMware grants to You a right to access and use the Freemium Offering by the Named Users and External Contributors until either You or VMware terminate such right by providing written notice of termination to the other.
You, not VMware, are solely responsible for the accuracy, quality, integrity, legality, reliability, appropriateness, and intellectual property ownership or right to use of all Customer Data, and VMware shall not be responsible or liable for the deletion, correction, destruction, damage, loss or failure to store any Customer Data. Upon the expiration of the Hosted Service Subscription Term, this Agreement will automatically renew, at VMware's then current fees, for successive terms. The length of each renewal term shall be one (1) year, unless otherwise specified in the associated renewal Order. Each renewal term shall be considered a new Hosted Service Subscription Term. Either VMware or You may terminate this Agreement, without cause, or reduce the number of licenses, effective only upon the expiration of the then current Hosted Subscription Term, by notifying the other in writing at least thirty (30) days prior to the expiration of the then current Hosted Service Subscription Term. In the event this Agreement is terminated (other than by reason of Your breach), VMware will make available to You, within 30 days of termination of the Agreement, a file of any Customer Data stored by VMware, if You so request at the time of such termination. VMware does not have any obligation to retain Customer Data, and may delete Customer Data, more than thirty (30) days after any termination of this Agreement.
VMware reserves the right to withhold, remove and/or discard Customer Data, without notice, upon any breach of this Agreement by You. Upon termination of Your access to the Hosted Service or this Agreement for cause, Your right to access or use Customer Data immediately ceases, and VMware shall have no obligation to maintain or to make available or provide to You any Customer Data. VMware shall have the right, but not the obligation, to monitor Customer Data, including chat rooms and forums, and Your use of the Hosted Service to determine compliance with this Agreement and any operating rules established by VMware, to provide support to You and to satisfy any law, regulation or authorized government request. VMware shall have the right in its sole discretion to edit, refuse to post or remove any material submitted to or posted using the Hosted Service. Without limiting the foregoing, VMware shall have the right to remove any material that VMware in its sole discretion, finds to be in violation of the provisions of this Agreement.
VMware may collect certain data and information as a result of Your access or use of the Hosted Service. VMware may share personal information of Yours and the Named Users with its service providers and suppliers to the extent needed to deliver or provide information on products or services or otherwise support Your business needs relating to the Hosted Service. Third party service providers and suppliers receiving any such personal information are expected to apply the same level of privacy protection as VMware. They are required to keep confidential the personal information received from VMware and may not use it for any purpose other than those set forth above.
VMware may reference You as a customer of VMware, which may include a copy of Your corporate logo, unless You provide prior written notice to VMware prohibiting such reference.
Notwithstanding any other provision in this Agreement, the Freemium Offering is provided "AS-IS" without indemnification, support or warranty of any kind, expressed or implied.