VMware Workbench and Plug-In Modules Beta End User License Agreement Notice: This License Agreement ("Agreement") is a CONTRACT between you (either an individual or a single entity) and VMware, Inc. (VMware). If you do not agree to the terms of this Agreement, then do not install or use beta versions of VMware Workbench and associated modules (collectively the `Beta Software'). By explicitly accepting this Agreement, however, or by installing, copying, downloading, accessing, or otherwise using the Beta Software, you are acknowledging and agreeing to be bound by the following terms. 1. DEFINITIONS. (a) `Beta Software" means beta versions of VMware's Workbench software and the applicable modules that interoperate with the Workbench software (such as plug-in modules and development kits), in object form only, (excluding any Open Source Software provided with such software) and the media and Documentation provided by VMware to you pursuant to this Agreement. (b) "Documentation" shall mean the printed or online reference material furnished to you in conjunction with the Beta Software, including, without limitation, instructions 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" or "OSS" means software components that are licensed under a license approved by the Open Source Initiative ("OSI") or similar open source or freeware license and are embedded in the delivered Beta Software. (e) "Update" shall mean a modification, error correction, bug fix, new release, or other update to or for the Beta Software. (f) "VMware Products" means the applicable VMware products that are referenced in the Documentation. 2. LICENSE GRANT, USE AND OWNERSHIP (a) Limited License. Subject to the terms and conditions of this Agreement, VMware grants to you a non-exclusive, non-transferable license (without the right to sublicense) (i) to use the Beta Software in accordance with the Documentation solely for purposes of (A) internal testing and evaluation to determine whether or not to license generally available commercial versions of the Beta Software if such versions ever become available, and (B) internal development to create interoperability between the Beta Software and License e products, (ii) to use the Documentation provided with the Beta Software in support of your authorized use of the Beta Software, and (iii) to copy Beta Software as reasonably necessary for archival or backup purposes, provided that all titles and trademarks, copyright, and restricted rights notices are reproduced on such copies. (b) For clarity, some of the modules (in whole or in part) that interoperate with the Beta Software may be designated as "distributable code" and/or "modifiable code" at http://developercenter.vmware.com/kits-redistribution-info/. For clarity, in no event shall the Workbench portion itself of the Beta Software be distributable or modifiable. You may use and merge all or portions of the "distributable code" pursuant to the license grant described in this Section 2. Any merged portion of any "distributable code" is subject to this Agreement. Additionally, you may modify or create derivative works of all or portions of the "modifiable code' pursuant to the license grant described in this Section 2 You are permitted to re-distribute the Beta Software's `distributable code" and the modified or derivative works of the Beta Software's `modifiable code" only as part of your beta release of your products that (a) interoperate with the Beta Software; and (b) for non-commercial or commercial use limited to the beta release of such products; provided that you shall only distribute such code subject to a license agreement that protects VMware's and its licensors' interests consistent with the terms contained in this Agreement. (c) Evaluation Feedback. The purpose of this limited license is the testing and evaluation of the Beta Software and Documentation and development by you of your products that interoperate with the Beta Software. In furtherance of this purpose, you agree to 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 (collectively the `Feedback'). You will provide Feedback in a manner that is mutually agreeable to the parties. VMware may use Feedback, without restriction in any manner now known or in the future conceived, to improve or enhance its products and, accordingly, and you hereby grant to VMware a non-exclusive, perpetual, irrevocable, royalty-free, transferable, worldwide right and license, with the right to sublicense (i) to use, reproduce, disclose, distribute, modify, prepare derivative works of and otherwise exploit the Feedback and other information you provide to VMware under this Agreement, and (ii) to make, use, sell, offer to sell, import and export any product or service that incorporates the Feedback and other information you provide to VMware under this Agreement. Restrictions. (d) Restrictions. You agree that you will not (1) use the Beta Software to create, design or develop anything other than your Software; (2) modify, create derivative works of, reverse engineer, reverse compile, or disassemble the Beta Software; (3) distribute, sell, lease, rent, lend, or sublicense any part of the Beta Software to any third party except as expressly permitted in Section 2; or (4) use the Beta Software in any manner to (a) circumvent any technical restrictions of VMware Products or violate any additional licensing terms applicable to VMware Products that VMware provides through product documentation, email notification, on the VMware website, or in the terms of license agreements; (b) disable, remove, over-ride or modify the display of any VMware Product license agreements that the VMware Products present to the end customers; or (c) upload or otherwise transmit any material containing Beta Software viruses or other computer code, files or programs designed to interrupt, destroy, or limit the functionality of any software or hardware. In no event shall you use the Beta Software for your product development or any other commercial purpose except as expressly set forth in this Agreement. The Beta Software and all test results, including without limitation, certification test results (collectively "Certification Results"), 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, you shall not publish or disclose to any third party any Certification Results without VMware's specific written permission. The restrictions in this Section 2 shall not apply if and to the extent they contradict mandatory local law (including, but not limited to, law implementing the EC Software Directive). (c) 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. You do not acquire any other rights, express or implied, in the Beta Software. You may not remove, delete or modify any copyright or other proprietary statements in the Beta Software. ALL RIGHTS NOT EXPRESSLY GRANTED HEREUNDER ARE RESERVED TO VMWARE. (d) No Support Services. VMware is under no obligation to support the Beta Software in any way or to provide any Updates to you. In the event VMware, in its sole discretion, supplies any Update to you, such Update shall be deemed Beta Software hereunder and shall be subject to the terms and conditions of this Agreement. (e) Third-Party Software. The Software enables a computer to run multiple instances of third-party guest operating systems and application programs. You acknowledge that you are responsible for obtaining any licenses necessary to operate any such third-party software, including guest operating systems. (f) 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 Beta Software available at http://developercenter.vmware.com/kits-open-source/. These OSS license terms are consistent with the license granted in Section 2, and may contain additional rights benefiting you. The OSS license terms shall take precedence over this Agreement to the extent that this Agreement imposes greater restrictions on you than the applicable OSS license terms. 3. TERM AND TERMINATION. VMware may terminate this Agreement immediately and without notice if you fail to comply with any term of this Agreement. In the event of termination of this Agreement, you must immediately cease using and will return to VMware or at VMware's request, destroy all copies of the Beta Software and Documentation and all other tangible items in your possession or control that are proprietary to VMware or contain Confidential Information. From time to time, VMware may change the terms of this Agreement. VMware will notify you of such change. Your continued use of the Beta Software will indicate your agreement to the change. 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, 7, 8 and 9 shall survive termination of this Agreement for any reason. 4. CONFIDENTIALITY. (a) "Confidential Information" shall mean the Beta Software, all information regarding the Beta Software (including any trade secrets, know-how, inventions, techniques, processes, and algorithms embodied in the Beta Software), Documentation, Performance Data, any Updates, VMware products, product roadmaps, and other technical, business, financial and product development plans, forecasts and strategies, and other information provided by VMware to you under this Agreement, whether disclosed orally, in writing, or by examination or inspection, other than information that you can demonstrate (i) was already known to you, 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 you (iii) became generally available in the public domain after disclosure other than through any act or omission of you (iv) was subsequently lawfully disclosed to you by a third party without any obligation of confidentiality; or (v) was independently developed by you without use of or reference to any information or materials disclosed by VMware or its suppliers. If you wish to disclose to VMware any information under this Agreement that you consider proprietary or confidential to you (`Licensee Information'), then you agree such disclose will be governed by a separate non-disclosure agreement (`NDA') by and between the parties. If you are required to disclose Confidential Information by applicable law or court order, you shall notify VMware of the required disclosure promptly in writing and shall cooperate with VMware in any lawful action to contest or limit the scope of the required disclosure. You shall not use any Confidential Information for any purpose other than as expressly authorized under this Agreement. In no event shall you use the Beta Software or any Confidential Information to develop, manufacture, market, sell, or distribute any product or service, including any VMware products except as expressly set forth in this Agreement. You shall not disclose any Confidential Information to any third party. Without limiting the foregoing, you 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 THE PURPOSES EXPRESSLY PERMITTED UNDER THIS AGREEMENT. ACCORDINGLY, TO THE FULLEST EXTENT PERMITTED BY LAW, BUT SUBJECT ALWAYS TO THIS SECTION 5, THE TOTAL LIABILITY OF VMWARE AND ITS LICENSORS ARISING OUT OF OR RELATED TO THIS AGREEMENT SHALL NOT EXCEED $1.00. TO THE FULLEST EXTENT PERMITTED BY LAW, IN NO EVENT SHALL VMWARE OR ITS LICENSORS 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 LICENSORS 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 WERE TAKEN INTO ACCOUNT IN DETERMINING THE LIMITATION OF LIABILITY SET FORTH IN THIS SECTION 5. YOU ACKNOWLEDGE 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. 6. WARRANTY DISCLAIMER. IT IS UNDERSTOOD THAT THE BETA SOFTWARE, OPEN SOURCE SOFTWARE, DOCUMENTATION, AND ANY UPDATES MAY CONTAIN ERRORS AND ARE PROVIDED FOR THE PURPOSES EXPRESSLY PERMITTED UNDER THIS AGREEMENT. TO THE FULLEST EXTENT PERMITTED BY LAW, AND SUBJECT TO SECTION 5, THE BETA SOFTWARE, THE OPEN SOURCE 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, AND SUBJECT TO SECTION 5, VMWARE AND ITS LICENSORS SPECIFICALLY DISCLAIM ALL IMPLIED WARRANTIES OF MERCHANTABILITY, NONINFRINGEMENT, AND FITNESS FOR A PARTICULAR PURPOSE. You acknowledges that VMware has not publicly announced the availability of the Beta Software, that such Beta Software may contain features currently under development, that VMware has not promised or guaranteed to you that such Beta Software will be announced or made available to anyone in the future, that VMware has no express or implied obligation to you to announce or introduce the Beta Software, that VMware may not introduce a product similar to or compatible with the Beta Software, and that any version number (if any) referenced is subject to change and does not in any way represent VMware's commitment to release any product in the future. Accordingly, you acknowledge that any research or development that it performs regarding the Beta Software or any product associated with the Beta Software is done entirely at your own risk. Specifically, the Beta Software may contain features, functionality or modules that may not be included in the generally available commercial version of the Beta Software, if released, or that will be marketed separately for additional fees. 8. DATA PRIVACY. (a) Consent for Collection and Use of Technical Data. You agree that VMware may periodically collect, process and store technical and related information about your device, system, application, peripherals and your use of the Beta Software, including without limitation: internet protocol address, hardware identification, operating system, application software, peripheral hardware, number of active plugins and development kits, the successful installation and launch of Beta Software, and Beta Software usage statistics (collectively, "Technical Data"). VMware will use Technical Data for internal statistical and analytical purposes to facilitate support, invoicing or online services, the provisioning of updates, and the development of VMware products and services. VMware may transfer Technical Data to other companies in the VMware worldwide group of companies from time to time. (b) Log Files. You acknowledge that correspondence and log files generated in conjunction with a request for support services may contain sensitive, confidential or personal information. You are solely responsible for taking the steps necessary to protect such data, including obfuscating the logs or otherwise guarding such information prior to sending it to VMware. 9. 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. The United Nations Convention for the International Sale of Goods shall not apply. (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. (b) Export Regulations . The Beta 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 Beta Software for, and will not permit the Beta 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. U.S. Export Control Classification Numbers (ECCN's) may be found at VMware help page: http://www.vmware.com/help/export-control. (c) 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 you hereby waive 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. (d) Language of Contract . The parties have required that this Agreement and all documents relating thereto be drawn up in English. Les parties ont demand que cette convention ainsi que tous les documents que s'y attachent soient rdigs en anglais. (e) 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. (f) Waivers . Any waiver of these terms must be in writing and signed by the waiving party to be effective. (g) Data Collection and Privacy . c0 (i) Consent for Collection and Use of Technical Data . You agree that VMware may periodically collect, process and store technical and related information about your device, system, application, peripherals and your use of the Beta Software, including without limitation: internet protocol address, hardware identification, operating system, application software, peripheral hardware, number of active plugins and software development kits, the successful installation and launch of Beta Software, and Beta Software usage statistics (collectively, `Technical Data'). VMware will use Technical Data for internal statistical and analytical purposes to facilitate support, invoicing or online services, the provisioning of updates, and the development of VMware products and services. VMware may transfer Technical Data to other companies in the VMware worldwide group of companies from time to time. (ii) Log Files . You acknowledge that correspondence and log files generated in conjunction with a request for support services may contain sensitive, confidential or personal information. You are solely responsible for taking the steps necessary to protect such data, including obfuscating the logs or otherwise guarding such information prior to sending it to VMware. (h) Independent Parties . The parties are independent. Nothing in this Agreement shall be construed to create a partnership, joint venture, contractor, or agency relationship between the parties. 10. 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 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 shall inure to the benefit of and be binding upon the parties and their respective successors and permitted assigns. 11. CONTACT INFORMATION . If you have any questions about this Agreement, please direct all correspondence to: VMware, Inc., 3401 Hillview Avenue, Palo Alto, CA 94304, United States of America. VMware is a trademark of VMware, Inc. and is registered in the U.S. and numerous other countries.