PRE-RELEASE END USER LICENSE AGREEMENT
This Pre-Release End User License Agreement (“Pre-Release EULA”) is an agreement to license Pre-Release Software between Licensee and Pivotal Software, Inc. (“Pivotal”). Unless otherwise set forth in a signed agreement between Pivotal and Licensee, by downloading, installing or using Pre-Release Software, Licensee is agreeing to these terms.
1. DEFINITIONS
Affiliate means a legal entity that is controlled by, controls, or is under common control of Pivotal or Licensee, with “control” meaning more than 50% of the voting power or ownership interests then outstanding of that entity.
Confidential Information means the terms of this Pre-Release EULA, the Pre-Release Software, all information regarding the Pre-Release Software (including any trade secrets, know-how, inventions, techniques, processes, and algorithms embodied in the Pre-Release Software), Documentation, Updates, Pivotal products, product roadmaps, any other technical, business, financial and product plans, forecasts and strategies, and all other information of any nature whatsoever provided by Pivotal to Licensee under this Pre-Release EULA, whether disclosed orally, in writing, or by examination or inspection, other than information that Licensee can demonstrate (i) was already known to Licensee, other than under an obligation of confidentiality, at the time of disclosure; (ii) was generally available in the public domain at the time of disclosure to Licensee; (iii) became generally available in the public domain after disclosure other than through any act or omission of Licensee; (iv) was subsequently lawfully disclosed to Licensee by a third party without any obligation of confidentiality; or (v) was independently developed by Licensee without use of or reference to any information or materials disclosed by Pivotal or its suppliers.
Documentation means documentation Pivotal provides to Licensee with Pre-Release Software, as revised by Pivotal from time to time.
Intellectual Property Rights shall mean all intellectual property rights, including, without limitation, patent, copyright, trademark, and trade secret, recognized in any jurisdiction worldwide, whether perfected or not, and any similar and other proprietary rights.
Licensee means the person or the entity obtaining Pre-Release Software, and its permitted successors and assigns.
Open Source Software or OSS means software components licensed under a license approved by the Open Source Initiative or similar open source or freeware license and included in, embedded in, utilized by, provided or distributed with Pre-Release Software.
Pre-Release Software means any “pre-release” versions (e.g. alphas, betas, or release candidates) of software, media and Documentation provided by Pivotal to Licensee, in object code form only, and for which Pivotal grants Licensee a use license pursuant to this Pre-Release EULA.
Updates shall mean a modification, error correction, bug fix, new release, or other update to or for Pre-Release Software.
2. LICENSE GRANT, USE AND OWNERSHIP
2.1 Limited License. Subject to the terms and conditions of this Pre-Release EULA, Pivotal grants to Licensee a non-exclusive, revocable (at any time and for any reason, at Pivotal’s sole discretion), royalty-free, non-transferable, non-assignable license (without the right to sublicense): (i) to use Pre-Release Software in accordance with the Documentation solely for purposes of (A) internal testing, non-production use, and evaluation to determine whether or not to license generally available commercial versions of Pre-Release Software if such versions ever become available, and (B) internal development to create integration between Pre-Release Software and Licensee's products; (ii) to use Documentation provided with Pre-Release Software in support of Licensee's authorized use of Pre-Release Software; and (iii) to copy Pre-Release Software for Licensee's archival or backup purposes, provided that all titles and trademarks, copyright, and restricted rights notices are reproduced on such copies.
2.2 Evaluation Feedback. The purpose of this limited license is the testing and evaluation of Pre-Release Software and/or development by Licensee of Licensee's products that interoperate with Pre-Release Software. Licensee shall provide feedback to Pivotal concerning the functionality and performance of Pre-Release Software, including, without limitation, identifying potential errors and improvements (collectively the “Feedback”). Pivotal may use Feedback, without restriction in any manner now known or in the future conceived, to improve or enhance its products and Licensee hereby grants to Pivotal 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 Feedback and other information Licensee provides, and (ii) to make, use, sell, offer to sell, import and export any product or service that incorporates Feedback and other information Licensee provides to Pivotal under this Pre-Release EULA.
2.3 Restrictions. Licensee shall not disclose, provide, or disseminate in any manner Pre-Release Software or Confidential Information to any third party, including but not limited to its partners, affiliates or subsidiaries. Except to the extent contrary to any applicable laws, Licensee will not, and will not permit any third party to, sublicense, rent, copy, modify, create derivative works of, translate, reverse engineer, decompile, disassemble, or otherwise reduce to human perceivable form any portion of Pre-Release Software or Documentation. Without limiting the generality of the foregoing, Licensee shall not use Pre-Release Software or any Confidential Information in a production environment, for Licensee's product development or any other commercial purpose, including, but not limited to sales or marketing activities, except as expressly permitted in this Pre-Release EULA. Licensee must not, and must not disclose to any third party the results of any benchmark testing or comparative or competitive analyses of Pre-Release Software without Pivotal’s prior written approval.
2.4 Ownership. Pivotal and its respective licensors shall own and retain all right, title and interest in and to the Intellectual Property Rights in Pre-Release Software and any derivative works thereof, subject to the limited license expressly set forth in Section 2.1. Licensee does not acquire any other rights, express or implied, in Pre-Release Software. ALL RIGHTS NOT EXPRESSLY GRANTED HEREUNDER ARE RESERVED TO PIVOTAL.
2.5 No Support Services. Pivotal has no obligation to support Pre-Release Software in any manner or to provide any Updates to Licensee. In the event Pivotal, in its sole discretion, supplies any Updates to Licensee, the Updates shall be deemed Pre-Release Software under this Pre-Release EULA and shall be subject to the terms and conditions of this Pre-Release EULA. Updates shall not reset the Term (defined below) of this Pre-Release EULA.
2.6 Open Source Software. OSS is licensed to Licensee under the applicable OSS license terms (a) located in the open_source_licenses.txt file included in or along with Pre-Release Software, or the corresponding source files available at http://network.pivotal.io, and/or (b) available by sending a written request, with Licensee’s name and address, to: Pivotal Software, Inc., Open Source Files Request, Attn: General Counsel, 875 Howard Street, 5th Floor, San Francisco, CA 94103. This offer to obtain a copy of the licenses/source files is valid for 3 years from the date Licensee first acquired access to Pre-Release Software. Licensee is responsible for complying with all applicable OSS terms and conditions, which shall take precedence over this Pre-Release EULA, solely with respect to such OSS.
3. WARRANTY DISCLAIMER. IT IS UNDERSTOOD THAT PRE-RELEASE SOFTWARE, OSS, DOCUMENTATION, AND ANY UPDATES MAY CONTAIN ERRORS AND ARE PROVIDED FOR THE PURPOSES EXPRESSLY PERMITTED UNDER THIS PRE-RELEASE EULA. TO THE FULLEST EXTENT PERMITTED BY LAW, AND SUBJECT TO SECTION 4, PRE-RELEASE SOFTWARE, OSS, 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 4, PIVOTAL AND ITS LICENSORS SPECIFICALLY DISCLAIM ALL IMPLIED WARRANTIES OF MERCHANTABILITY, NONINFRINGEMENT, AND FITNESS FOR A PARTICULAR PURPOSE. Licensee acknowledges Pre-Release Software is subject to change and does not in any way represent Pivotal’s commitment, promise, or agreement to release and/or offer for sale a generally available version of such Pre-Release Software in the future. Accordingly, Licensee acknowledges that any research or development that Licensee performs regarding Pre-Release Software or any product associated with Pre-Release Software is done entirely at Licensee's own risk. Specifically, Pre-Release Software may contain features, functionality or modules that may not be included in the generally available commercial version of Pre-Release Software, if released, or that will be marketed separately for additional fees.
4. LIMITATION OF LIABILITY. IT IS UNDERSTOOD THAT PRE-RELEASE SOFTWARE IS PROVIDED WITHOUT CHARGE FOR THE PURPOSES EXPRESSLY PERMITTED UNDER THIS PRE-RELEASE EULA. ACCORDINGLY, TO THE FULLEST EXTENT PERMITTED BY LAW, BUT SUBJECT ALWAYS TO THIS SECTION 4, THE TOTAL LIABILITY OF PIVOTAL AND ITS LICENSORS ARISING OUT OF OR RELATED TO THIS PRE-RELEASE EULA SHALL NOT EXCEED $1.00. TO THE FULLEST EXTENT PERMITTED BY LAW, IN NO EVENT SHALL PIVOTAL 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 PIVOTAL 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 PIVOTAL IN ACCORDANCE WITH THE TERMS OF THIS PRE-RELEASE EULA WERE TAKEN INTO ACCOUNT IN DETERMINING THE LIMITATION OF LIABILITY SET FORTH IN THIS SECTION 4. LICENSEE ACKNOWLEDGES AND AGREES THIS LIMITATION IS AN ESSENTIAL ELEMENT OF THIS PRE-RELEASE EULA AND THAT PIVOTAL WOULD NOT ENTER INTO THIS PRE-RELEASE EULA WITHOUT THESE LIMITATIONS ON ITS LIABILITY.
5. TERM AND TERMINATION. Unless otherwise terminated as specified under this Pre-Release EULA, Licensee's rights with respect to Pre-Release Software will terminate upon the earlier of the initial commercial release by Pivotal of the generally available version of Pre-Release Software or (b) six months from Licensee's receipt of the Pre-Release Software (“Term”). Either party may terminate this Pre-Release EULA at any time for any reason or no reason by providing the other party advance written notice thereof. Pivotal reserves the right to unilaterally cease and abandon Pre-Release Software at any time without any obligation or liability whatsoever. Licensee agrees that this Pre-Release EULA will automatically terminate without notice in the event Licensee discloses Pre-Release Software in breach of Section 7 below. Upon any expiration or termination of this Pre-Release EULA, the rights and licenses granted to Licensee hereunder shall immediately terminate, and Licensee shall immediately cease using, and will destroy or render practically inaccessible, Pre-Release Software, Documentation, and all other items in Licensee's possession or control that contain Confidential Information. All provisions of this Pre-Release EULA will survive any termination or expiration if by its nature and context it is intended to survive.
6. TECHNICAL DATA. You agree that Pivotal may periodically collect, process and store technical and related information about your device, system, application, peripherals and your use of Pre-Release 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 Pre-Release Software, and Pre-Release Software usage statistics. Pivotal 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 Pivotal products and services. Pivotal may provide prospective customers or business partners with information related to the testing of Pre-Release Software but will not identify Licensee’s name without prior written permission from Licensee. Use and publication of test data is at the sole discretion and control of Pivotal. Licensee acknowledges that correspondence and log files generated in conjunction with a request for support services may contain sensitive, confidential or personal information. Licensee is 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 Pivotal.
7. CONFIDENTIALITY
7.1 Confidential Information. Licensee shall not disclose any Confidential Information to any third party and shall (a) use Confidential Information only for exercising rights and performing obligations in connection with this Pre-Release EULA; and (b) protect from disclosure any Confidential Information disclosed by Pivotal, using 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. Notwithstanding the foregoing, Licensee may disclose Confidential Information: (i) to an Affiliate if required to fulfill its obligations or exercise its rights under this Pre-Release EULA so long as such Affiliate agrees to comply with these restrictions in writing; and (ii) if required by law or regulatory authorities provided that if Licensee is required to disclose Confidential Information by applicable law or court order, Licensee shall notify Pivotal of the required disclosure promptly in writing and shall cooperate with Pivotal in any lawful action to contest or limit the scope of the required disclosure before disclosing any Confidential Information. Pivotal shall not be responsible for unauthorized disclosure of Licensee’s data stored within Pre-Release Software arising from a data security breach. Licensee is solely responsible for all obligations to comply with laws applicable to its Pre-Release Software use, including without limitation any personal data processing. Licensee is responsible for obtaining all consents required to enable Pivotal to exercise its confidentiality rights, in compliance with applicable law. If Licensee wishes to disclose to Pivotal any information under this Pre-Release EULA that Licensee considers proprietary or confidential to Licensee (“Licensee Information”), then Licensee agrees such disclosure will be governed by a separate non-disclosure agreement (“NDA”) by and between the parties.
7.2 Additional Restrictions for Highly Confidential Pre-Release Software. For certain Pre-Release Software designated by Pivotal in writing as highly confidential (“Highly Confidential Pre-Release Software”), Licensee agrees that the following additional confidentiality obligations and restrictions will apply. Licensee shall limit dissemination of Highly Confidential Pre-Release Software and related information concerning product features, future technologies and roadmaps only to internal information technology teams and/or software/solutions development teams of Licensee approved in writing by Pivotal, and only to individuals on such teams on a need-to-know basis and solely for purposes expressly authorized under this Pre-Release EULA. For clarity and without limiting the generality of the foregoing, Licensee shall not disseminate any Highly Confidential Pre-Release Software to Licensee's sales and marketing field organizations. Licensee will assign an employee who will be primarily responsible for ensuring Licensee’s full compliance with the terms described in this Section 7.2 herein.
7.3 Improper Disclosure of Highly Confidential Pre-Release Software. Licensee acknowledges that damages due to Licensee’s improper disclosure of Highly Confidential Pre-Release Software or related information concerning product features, future technologies and roadmaps may be irreparable and that monetary damages would be inadequate to compensate Pivotal for any breach of this Pre-Release EULA. In the event that Pivotal reasonably believes that Licensee has disseminated Highly Confidential Pre-Release Software or related information concerning product features, future technologies and roadmaps to an unauthorized party, Licensee will be immediately removed from Pivotal’s Pre-Release Software program and will not be permitted to access any Pivotal Pre-Release Software in the future. Additionally, all rights and licenses granted to Licensee under this Pre-Release EULA shall immediately terminate in accordance with Section 5 herein (Term and Termination), and in addition to all other remedies available in law or otherwise, Pivotal shall be entitled to seek equitable relief, including injunction and preliminary injunction against the threatened breach of this Pre-Release EULA or the continuation of any such breach.
8. GENERAL. This Pre-Release EULA is governed by California law. Each party hereby expressly consents to the personal jurisdiction of either the California courts or the United States District Courts located in the State of California and agrees that any action relating to or arising out of this Pre-Release EULA be instituted and prosecuted only in the Superior Court of the County of San Francisco or the United States District Court for the Northern District of California. The U.N. Convention on Contracts for the International Sale of Goods does not apply. Pre-Release Software is subject to U.S., European Union and other export and import laws and regulations. Both parties shall comply with all applicable laws and regulations and diversion contrary to such laws is expressly prohibited. Except to the extent expressly set forth to the contrary in this Pre-Release EULA, this Pre-Release EULA is not intended to confer upon any person other than the parties hereto any rights or remedies. The parties are independent contractors. This Pre-Release EULA is the complete statement of the parties’ agreement with regard to the subject matter hereof and may be modified only by written agreement. Licensee shall not assign or transfer any rights under this Pre-Release EULA or delegate any of its duties hereunder, by operation of law or otherwise, without Pivotal’s prior written consent, and any such action in violation of this provision, is null and void, and of no force, and a breach of this Pre-Release EULA. Pivotal may assign or transfer this Pre-Release EULA to any successors-in-interest to all or substantially all of the business or assets of Pivotal whether by merger, reorganization, asset sale or otherwise, or to any Affiliates of Pivotal, and this Pre-Release EULA shall inure to the benefit of and be binding upon the respective permitted successors and assigns. If any part of this Pre-Release EULA is held unenforceable, the validity of the remaining provisions shall not be affected.