Note to user: In this document, “You” means the licensee of the Software and “VMTurbo” means VMTurbo Corporation, the Licensor of the Software.
BEFORE YOU DOWNLOAD AND USE VMTURBO VIRTUAL APPLIANCE PRODUCTS AND ANY RELATED DOCUMENTATION, INCLUDING USER MANUALS (COLLECTIVELY THE “SOFTWARE”), PLEASE CAREFULLY REVIEW ALL TERMS AND CONDITIONS IN THIS END-USER LICENSE AGREEMENT (“AGREEMENT”) AND BE SURE YOU UNDERSTAND THEM. CHOOSING “I ACCEPT”, OR PROCEEDING WITH THE DOWNLOAD AND USING THE SOFTWARE IN ANY WAY INDICATES YOUR ACKNOWLEDGEMENT THAT YOU HAVE READ THIS LICENSE AGREEMENT, THAT YOU UNDERSTAND IT, AND THAT YOU AGREE TO BE LEGALLY BOUND BY ITS TERMS. IF YOU ARE ENTERING THIS AGREEMENT ON BEHALF OF A COMPANY OR OTHER ORGANIZATION, YOU ARE REPRESENTING AND WARRANTING THAT YOU ARE AUTHORIZED TO BIND SUCH COMPANY OR ORGANIZATION. IF YOU DO NOT AGREE TO ANY OF THE TERMS AND CONDITIONS LICENSE AGREEMENT YOU MUST NOT CHOOSE “I ACCEPT” OR DOWNLOAD THE SOFTWARE.
1. Title, Intellectual Property Rights.
The Software furnished under this Agreement is licensed, not sold or transferred, to You and is protected by the copyright, patent and trade secret laws of the United States and international treaties, and is subject to export control laws and regulations of the United States. VMTurbo shall have sole and exclusive ownership of all right, title, and interest in and to the Software.
2. Licenses, Payment, Audit Rights.
2.1 General License Grant.
Subject to all the terms and conditions set forth in this Agreement and solely during the term, VMTurbo hereby grants to You a non–exclusive, non–transferable, non-sublicensable right and license to use the VMTurbo Core version of the Software or such other version of the Software as identified in the confirmation of purchase documentation provided by VMTurbo to You (the “Ordering Document”). Unless you are using a Free Version or Trial Version (each as defined in Section 2.2), the term of the foregoing license shall be the term set forth in the Ordering Document, unless earlier terminated in accordance with Section 7.1. If you are using a Trial Version, the license term shall be thirty (30) days, unless earlier terminated in accordance with Section 7.1. If you are using a Free Version, the license to continue until terminated by VMTurbo, in its sole discretion.
2.2 Free and Trial Versions.
(a) You may download and use the VMTurbo Core version of the Software (the “Free Version”) free of charge.
(b) Additionally, You may, free of charge, download and use other versions of the Software to manage an unlimited number of ESX or vSphere hosts for on a trial basis (each, a “Trial Version”) for one (1) period of thirty (30) days (the “Trial Period”). If You are using a Trial Version, the Trial Period shall begin upon Software activation by You using the trial license key supplied by VMTurbo and shall terminate thirty (30) days later. Upon termination of the Trial Period, the Software will either (in VMTurbo’s sole discretion) (i) cease to function or (ii) it will continue to operate solely as the Free Version.
(c) If You are using only the Free Version or a Trial Version, (i) the license granted in Section 2.1 shall be subject to termination by VMTurbo at any time in its sole discretion, (ii) Sections 2.3, 2.4 and 4 of this Agreement shall not apply to You, and (iii) VMTurbo does not make available any support with respect to your use of the Free Version or any Trial Version.
(d) You may request to purchase a full license to the Software at any time by contacting sales@VMTurbo.com or by calling VMTurbo at 914-495-3500.
2.3 Usage limits.
Your use of the Software is limited to ESX or vSphere host servers with usage not to exceed the number of CPU sockets specified in the Ordering Document (whether such CPU is attached to the particular system board by ZIFF socket or “package” in the case of side–mounted CPUs).
2.4 Payment Terms.
All fees for Software are set forth in the Ordering Document, which is incorporated herein by reference. All payments shall be made to VMTurbo in U.S. Dollars and are due and payable to VMTurbo in full within thirty (30) days from the date of invoice or otherwise as set forth in the Ordering Document. All prices/fees are exclusive of any and all federal, state and local taxes, including sales, use, transaction, privilege, gross receipts, value-added, service or other similar taxes excluding taxes based on VMTurbo’s net income (the “Taxes”) that may be imposed or assessed on this Agreement or the support services. Any such Taxes are Your responsibility. If VMTurbo is audited and assessed any such Taxes, then in that event, You shall promptly reimburse VMTurbo for any such Taxes, including interest, late fees, or penalties (if any), which VMTurbo was required to pay to the taxing authority.
2.5 Audit Rights and Routines.
VMTurbo may, at any time, require assurances of compliance with the terms of this Agreement, including an annual usage certification. VMTurbo may audit Your use of the Software by all or some of the following measures: (a) the Software may at any time (with or without notice to You) run an automatic audit routine embedded in the Software that reports to VMTurbo the number of hosts, servers, sockets and virtual machines being monitored by the Software; and/or (b) upon reasonable notice, either by on–site review or otherwise specified. Regardless of method, VMTurbo will maintain any information gathered in confidence, using reasonable efforts to prevent unauthorized access to it. VMTurbo will not use any such information except to verify Your compliance with this Agreement, to modify or improve the Software or to offer You additional software or services. VMTurbo will furnish You a copy of its audit report upon Your written request. If the audit reveals that You have used the Software beyond the scope of Your license, You shall be in material breach of this Agreement. You will cure such material breach by ordering any additional licenses or upgrades required to be in compliance, and paying such additional license fees as necessary to cure the breach in accordance with VMTurbo’s then current Price List. If You fail to do so within thirty (30) days, VMTurbo may terminate this Agreement and all licenses and uses immediately.
3. Restrictions.
You may use the Software only in accordance with this Agreement. You may make one (1) copy of the Software for back–up or archival purposes only (the “Archival Copy”). YOU MAY NOT OR ALLOW ANY THIRD PARTY TO: (a) copy the Software, except as provided above, (b) reverse engineer, disassemble, decompile, translate or adapt the Software, (c) modify, translate, distribute or prepare derivative works based on the Software, or any part thereof; (d) remove any proprietary notices, labels, or marks on the Software; (e) publish, display, disclose, distribute, rent, loan, lease, sublicense, transfer or make available all or any portion of the Software to any other person or entity or (f) remove or alter any copyright or other proprietary notices on the Software. Distribution of this Software via the Internet, wide area networks (WANs), bulletin board systems or any other means of distribution of any kind is expressly prohibited unless a duly authorized representative of VMTurbo consents in advance of and in writing to such distribution.
4. Maintenance and Support.
Maintenance and support shall be provided only if selected on the Ordering Document according to the options specified therein and payment is made therefore. Further, VMTurbo will provide support for the Free Version only if You are also licensing a paid version of the Software. Subject to Your payment of the appropriate maintenance and support fee, the following terms will apply:
- (a) You will be entitled to download from the VMTurbo website on a when and if available basis (1) interim and new releases of the Software and (2) corrections, patches, or bypasses for errors (“bug fixes”) as released by VMTurbo to the extent and on the same schedule as made generally available to other similar licensees of the Software at no additional charge. All interim releases and bug fixes shall be considered a part of the Software and subject to the terms and conditions of this Agreement.
- (b) Such maintenance services will include fax support and telephone support Monday through Friday between the hours of ___ and ___ Eastern Time, excluding standard holidays, and will respond in a timely manner (considering the severity of the issue) upon receipt of Your first call.
- (c) You understand and agree that VMTurbo cannot be responsible for maintaining the Software if the Software is used or operated in a manner or in an environment not consistent with its intended purpose or the Documentation or is modified or repaired in any manner by anyone other than VMTurbo. Furthermore, You understand and agree that VMTurbo has no obligation to maintain, support or correct any Software used in a configuration not authorized by this Agreement.
- (d) If VMTurbo, in its sole discretion, releases a revision of the Software within the maintenance period covered by the applicable Ordering Document, after 60 days from shipment of the new release to the You, VMTurbo’s obligations under this Agreement shall apply to the “new” release, and VMTurbo shall have no further obligations under this Agreement with respect to any prior versions of the Software.
- (e) If You encounter a problem with the Software, You agree to advise VMTurbo of the precise nature of the suspected error, malfunction or defect, either in writing or by telephone. You will provide VMTurbo with whatever listings, printouts, screen copies (if available) or additional data or on-site support which VMTurbo may request as necessary or helpful to reproduce the environment in which such licensed Software operated and the suspected error. If VMTurbo determines that there was no malfunction or defect in the licensed Software, You shall pay for all time and materials spent by VMTurbo attempting to determine and correct the reported problem at VMTurbo’s then-current rates. You will be billed separately for shipping, documentation and media required to provide program corrections.
- (f) VMTURBO DOES NOT GUARANTEE THAT ITS SUPPORT EFFORTS WILL BE SUCCESSFUL, NOR DOES VMTURBO REPRESENT OR WARRANT THAT ANY ERRORS, MALFUNCTIONS OR DEFECTS IN ANY VERSION OF THE SOFTWARE CAN OR WILL BE CORRECTED.
- (g) Maintenance and support may be renewed annually at the price quoted for this order which may be increased for changes in the consumer price index. As part of VMTurbo’s support offerings, You may elect to transmit certain data about You (“Your Data”) to VMTurbo for support purposes. If You elect to transmit Your Data to VMTurbo, VMTurbo will use commercially reasonable efforts to maintain the confidentiality of Your Data and will use Your Data only for purposes of providing support to You, modifying or improving the Software or offering You additional software or services.
5. Warranty Disclaimer.
YOU EXPRESSLY ACKNOWLEDGE AND AGREE THAT ANY USE BY YOU OF THE SOFTWARE IS AT YOUR OWN RISK. THE SOFTWARE IS PROVIDED “AS IS” AND WITHOUT WARRANTY OF ANY KIND. VMTURBO EXPRESSLY DISCLAIMS, TO THE MAXIMUM EXTENT ALLOWED BY APPLICABLE LAW, ALL OTHER WARRANTIES OF ANY KIND, BOTH EXPRESS AND IMPLIED, INCLUDING, BUT NOT LIMITED TO, IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, NON–INFRINGEMENT AND QUIET ENJOYMENT. VMTURBO DOES NOT WARRANT THAT THE FUNCTIONS CONTAINED IN THE SOFTWARE WILL MEET ANY REQUIREMENTS OR NEEDS YOU MAY HAVE, OR THAT THE OPERATION OF THE SOFTWARE WILL BE UNINTERRUPTED OR ERROR–FREE, OR THAT ANY DEFECTS OR ERRORS IN THE SOFTWARE CAN OR WILL BE CORRECTED. YOU ASSUME THE ENTIRE RISK AS TO THE RESULTS AND PERFORMANCE OF THE SOFTWARE.
6. Limited Liability.
6.1
YOU AGREE THAT UNDER NO CIRCUMSTANCES, INCLUDING NEGLIGENCE OR OTHERWISE, SHALL VMTURBO, ITS LICENSORS OR AFFILIATES, OR ANY OF THEIR DIRECTORS, OFFICERS, EMPLOYEES SHAREHOLDERS, REPRESENTATIVES OR AGENTS, OR THEIR RESPECTIVE SUCCESSORS, ASSIGNS, HEIRS, OR ESTATES, BE LIABLE TO YOU FOR ANY, INDIRECT, INCIDENTAL, SPECIAL OR CONSEQUENTIAL DAMAGES (INCLUDING, BUT NOT LIMITED TO, PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES, LOSS OF USE, LOSS OF BUSINESS, LOSS OF PROFITS, BUSINESS INTERRUPTION, LOST DATA, LOSS OF BUSINESS INFORMATION, HARM TO REPUTATION, AND THE LIKE), OR ENHANCED, EXEMPLARY OR PUNITIVE DAMAGES, ARISING IN ANY WAY OUT OF OR CONNECTED WITH ANY SUBJECT MATTER OF THIS AGREEMENT, INCLUDING WITHOUT LIMITATION, DAMAGE TO PROPERTY, EVEN IF VMTURBO OR ANY VMTURBO AUTHORIZED REPRESENTATIVE HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES OR LOSS.
6.2
YOU FURTHER AGREE THAT IN NO EVENT WILL THE TOTAL AGGREGATE LIABILITY OF VMTURBO AND ITS DIRECTORS, OFFICERS, EMPLOYEES SHAREHOLDERS, REPRESENTATIVES OR AGENTS, OR THEIR RESPECTIVE SUCCESSORS, ASSIGNS, HEIRS, OR ESTATES FOR ANY CLAIMS, LOSSES, OR DAMAGES ARISING UNDER THIS AGREEMENT AND SERVICES PERFORMED HEREUNDER, WHETHER IN CONTRACT OR TORT, INCLUDING NEGLIGENCE AND STRICT LIABILITY, EXCEED THE TOTAL AMOUNT PAID BY YOU TO VMTURBO DURING THE PRECEDING TWELVE (12) MONTH PERIOD.
6.3
THE LIMITATIONS SET FORTH IN THIS SECTION SHALL NOT APPLY TO THE EXTENT THAT ANY LIMITATION IS VOID OR PROHIBITED BY LAW.
7. Termination.
7.1 Termination of License.
VMTurbo may immediately terminate this Agreement if You have failed to pay the applicable license fee in a timely manner or if You have otherwise breached the terms of this Agreement, including, but not limited to, those contained in Sections 2.3 and 3 or if VMTurbo determines that the Software or use thereof may result in infringement or violation of third party rights or claims thereof. You may terminate this Agreement at any time by ceasing all use of the Software. VMTurbo may terminate your use of the Free Version or any Trial Version at any time for any reason.
7.2 Your Obligations upon Termination.
Upon termination of this Agreement, You shall (1) immediately cease use of the Software and (2) return to VMTurbo or destroy all whole or partial copies of the Software with a certificate signed by Your duly authorized representative stating that You have returned or destroyed the original and all full and partial copies of the Software. This obligation requires permanent removal of the Software from all media and storage, regardless of form, including but not limited to computers.
7.3 Survival.
In addition to those provisions that by their nature are intended to survive any termination or expiration of this Agreement or any license granted hereunder, Sections 1, 2.5, 3, 5, 6, 7.2, 7.3, 8, 9, and 10, shall specifically survive such termination or expiration.
8. Confidentiality.
The Software contains confidential and proprietary trade secrets of VMTurbo, and You may use the Software only pursuant to the license set forth herein. In addition, You shall not disclose the Software, or any part thereof, to any third party, and shall hold the Software in strictest confidence and to take all reasonable precautions consistent with generally accepted industry standards to safeguard the confidentiality thereof.
9. Indemnification.
You shall indemnify, defend, and hold harmless VMTurbo and its affiliates, and their directors, officers, employees, shareholders, representatives and agents, and all of their respective successors, assigns, heirs, and estates, from and against any third party claims threatened or instituted against them arising out of any breach of this Agreement or other wrongful action or inaction by You in connection with the Software.
10. General.
10.1 No Agency.
No agency, partnership, joint venture or other joint relation is created by this Agreement. You are not authorized to obligate VMTurbo or act in the name of VMTurbo in any way.
10.2 Entire Agreement.
This Agreement is the complete and exclusive statement of the parties’ agreement concerning the subject matter of this Agreement, including, but not limited to the terms and conditions governing the licensing of the Software, and supersedes all proposals or prior agreements, oral or written, and all other communications between the parties relating to the subject matter hereof including, without limitation, any standard or pre-printed terms included in any purchase order, confirmation or other form you may submit to VMTurbo.
10.3 Modification.
This Agreement may not be modified or amended except by a writing signed by authorized representatives of both parties. It is agreed that no use of trade or other regular practice or method of dealing between the parties hereto shall be used to modify, interpret, supplement, or alter in any manner the terms of this Agreement. The terms of this Agreement will supersede and be superior to any conflicting or contrary terms included in any Ordering Document or other submittal made by You.
10.4 Waiver.
A waiver by either party of its rights hereunder shall not be binding unless contained in a writing signed by an authorized representative of the party waiving its rights. The non–enforcement or waiver of any provision shall not constitute a waiver of such provision on any other occasions unless expressly so agreed in writing.
10.5 Severability.
If a court of competent jurisdiction deems any provision of this Agreement invalid, it shall be deemed omitted from this Agreement. If any provision is deemed unenforceable by a court of competent jurisdiction, such provision shall be valid to the extent permitted by law.
10.6 Assignment. This Agreement and the rights granted under it may not be assigned or transferred by You without the written consent of VMTurbo. Any attempt to do so is void and of no force or effect. This Agreement shall be binding on the parties respective successors, permitted assigns, and heirs and estates (if applicable).
10.7 Notices.
All notices shall be in writing and shall be sent to the parties at the addresses provided at the commencement of this Agreement (or to such other address as either party may specify in writing) by (i) first class mail, certified or registered, return receipt requested, postage prepaid, (ii) overnight courier service, (iii) messenger, or (iv) confirmed facsimile transmission.
10.8 Governing Law.
This Agreement shall be governed by and construed and enforced in accordance with the laws of the State of New York as it applies to a contract made and performed therein, without regard to its conflict of laws principles. In no event shall either the United Nations Convention on Contracts for the International Sale of Goods or any adopted version of the Uniform Computer Information Transactions Act (UCITA) apply to, or govern, this Agreement. In the event of any dispute arising under this Agreement, You irrevocably submit to the jurisdiction and venue of the state and federal courts located in New York having jurisdiction over VMTurbo’s offices. Any legal action brought under this Agreement shall be conducted in the English language. If the customer/licensee is located in France or Quebec, Canada, the following clause applies: The parties hereby confirm that they have requested that this Agreement be drafted in English. Les parties contractantes conferment qu’elles ont exige quele present contrat et tous les documents associes soient rediges en anglais.
10.9 Export Compliance.
This agreement is expressly made subject to any and all laws, regulations, orders, or other restrictions on the export from the United States of America of the Software or information about the Software that may be imposed from time to time by the government of the United States of America. You shall not export the Software, including documentation, or information about the Software, including documentation, unless in compliance with such laws, regulations, orders, or other restrictions. Without in any way limiting the foregoing, You hereby (1) assure VMTurbo that You shall adhere to the United States Export Administration laws and regulations and shall not export, re–export or release any software, source code, technical data, or products received from VMTurbo or the direct product of such software, source code or technical data to any proscribed country listed in the United States Export Administration laws and regulations unless properly authorized by the United States Government, and (2) agree that this assurance will be honored even after expiration of this Agreement. You acknowledge that You are familiar with United States Government export policy and regulations and undertake to be and remain in full compliance with such policy and regulations. You may not export or re–export this product in violation of any applicable laws or regulations including, without limitation, United States export regulations or the laws of the country in which You reside.
10.10 United States Government Rights.
If You are a United States Government end–user or are acquiring the Software and documentation on behalf of the United States Government, the following provisions apply: The software and documentation are “commercial items,” as that term is defined at 48 C.F.R. § 2.101, consisting of “commercial computer software” and “commercial computer software documentation,” as such terms are used in 48C.F.R. § 12.212 or 48 C.F.R. § 227.7202, as applicable. Consistent with 48 C.F.R. § 12.212 or 48 C.F.R. §§ 227.7202–1 through 227.7202–4, as applicable, the commercial computer software and commercial computer software documentation are being licensed to U.S. Government end–users (A) only as commercial items and (B) with only those rights as are granted to all other end–users pursuant to the terms and conditions set for the VMTurbo standard commercial agreement for this software. Unpublished rights reserved under the copyright laws of the United States.
10.11 Third Party Code.
Portions of the code included in or with the Software contain or are derived from third party code (“Third Party Software”), including without limitation, open source software. ALL USE OF THIRD PARTY SOFTWARE IS SUBJECT TO AND GOVERNED BY (AND LICENSEE AGREES TO AND WILL INDEMNIFY LICENSOR FOR NONCOMPLIANCE WITH) THE RESPECTIVE LICENSES FOR THE THIRD PARTY SOFTWARE AVAILABLE AT http://www.vmturbo.com/resources/end-user-license-agreement/third-party-licenses/, as it may change from time to time (such link also contains information and downloads that may be required by the licenses to such Third Party Software; it is Licensee’s responsibility to check such link for changes and additions).
10.12 Submissions.
Should You decide to transmit any materials or other information to VMTurbo (including, without limitation, ideas, concepts or techniques for new or improved services and products), whether as information, feedback, data, questions, comments, suggestions or the like, Unless otherwise agreed in writing by You and VMTurbo, You agree that such submissions are unrestricted and shall be deemed non–confidential and You automatically grant VMTurbo and its assigns a non–exclusive, royalty–free, worldwide, perpetual, irrevocable license, with the right to sublicense, to use, copy, transmit, distribute, create derivative works of, display and perform the same.
10.13 Injunctive Relief.
Without in any way limiting the applicability of any equitable or other relief that might be available for any breach of this Agreement, You acknowledge and agree that money damages would not be a sufficient remedy for breach of any provisions of this Agreement relating to confidentiality and restrictions relating to use of the Software, and that VMTurbo shall be entitled to equitable relief, including but not limited to immediate, temporary and permanent injunctive relief, and specific performance, as a remedy for any such breach, without having to post a bond or other security. Such remedies shall not be deemed to be the exclusive remedies for a breach of this Agreement, but shall be in addition to all other remedies available at law or equity.
10.14 Paragraph Headings.
Paragraph headings contained herein are for information purposes only and are of no independent legal force or effect.