Dell Latitude 5280 VMware Horizon Client for Windows Embedded Operating System - Page 41

And Any Warranty Arising By Statute, Operation Of Law, Course Of Dealing Or Performance, Or Usage

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3.4 Guest Operating Systems. Certain Software allows Guest Operating Systems and application programs to run on a computer system. You acknowledge that You are responsible for obtaining and complying with any licenses necessary to operate any such third-party software. 4. ORDER. Your Order is subject to this EULA. No Orders are binding on VMware until accepted by VMware. Orders for Software are deemed to be accepted upon VMware's delivery of the Software included in such Order. Orders issued to VMware do not have to be signed to be valid and enforceable. 5. RECORDS AND AUDIT. During the License Term for Software and for two (2) years after its expiration or termination, You will maintain accurate records of Your use of the Software sufficient to show compliance with the terms of this EULA. During this period, VMware will have the right to audit Your use of the Software to confirm compliance with the terms of this EULA. That audit is subject to reasonable notice by VMware and will not unreasonably interfere with Your business activities. VMware may conduct no more than one (1) audit in any twelve (12) month period, and only during normal business hours. You will reasonably cooperate with VMware and any third party auditor and will, without prejudice to other rights of VMware, address any non-compliance identified by the audit by promptly paying additional fees. You will promptly reimburse VMware for all reasonable costs of the audit if the audit reveals either underpayment of more than five (5%) percent of the Software fees payable by You for the period audited, or that You have materially failed to maintain accurate records of Software use. 6. SUPPORT AND SUBSCRIPTION SERVICES. Except as expressly specified in the Product Guide, VMware does not provide any support or subscription services for the Software under this EULA. You have no rights to any updates, upgrades or extensions or enhancements to the Software developed by VMware unless you separately purchase VMware support or subscription services. These support or subscription services are subject to the Support Services Terms. 7. WARRANTIES. 7.1 Software Warranty, Duration and Remedy. VMware warrants to You that the Software will, for a period of ninety (90) days following notice of availability for electronic download or delivery ("Warranty Period"), substantially conform to the applicable Documentation, provided that the Software: (a) has been properly installed and used at all times in accordance with the applicable Documentation; and (b) has not been modified or added to by persons other than VMware or its authorized representative. VMware will, at its own expense and as its sole obligation and Your exclusive remedy for any breach of this warranty, either replace that Software or correct any reproducible error in that Software reported to VMware by You in writing during the Warranty Period. If VMware determines that it is unable to correct the error or replace the Software, VMware will refund to You the amount paid by You for that Software, in which case the License for that Software will terminate. 7.2 Software Disclaimer of Warranty. OTHER THAN THE WARRANTY ABOVE, AND TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, VMWARE AND ITS SUPPLIERS MAKE NO OTHER EXPRESS WARRANTIES UNDER THIS EULA, AND DISCLAIM ALL IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE AND NON-INFRINGEMENT, AND ANY WARRANTY ARISING BY STATUTE, OPERATION OF LAW, COURSE OF DEALING OR PERFORMANCE, OR USAGE OF TRADE. VMWARE AND ITS LICENSORS DO NOT WARRANT THAT THE SOFTWARE WILL OPERATE UNINTERRUPTED OR THAT IT WILL BE FREE FROM DEFECTS OR THAT IT WILL MEET YOUR REQUIREMENTS. 8. INTELLECTUAL PROPERTY INDEMNIFICATION. 8.1 Defense and Indemnification. Subject to the remainder of this Section 8 (Intellectual Property Indemnification), VMware shall defend You against any third party claim that the Software infringes any patent, trademark or copyright of such third party, or misappropriates a trade secret (but only to the extent that the misappropriation is not a result of Your actions) under the laws of: (a) the United States and Canada; (b) the European Economic Area; (c) Australia; (d) New Zealand; (e) Japan; or (f) the People's Republic of China, to the extent that such countries are part of the Territory for the License ("Infringement Claim") and indemnify You from the resulting costs and damages finally awarded against You to such third party by a court of competent jurisdiction or agreed to in settlement. The foregoing obligations are applicable only if You: (i) promptly notify VMware in writing of the Infringement Claim; (ii) allow VMware sole control over the defense for the claim and any settlement negotiations; and (iii) reasonably cooperate in response to VMware requests for assistance. You may not settle or compromise any Infringement Claim without the prior written consent of VMware. 8.2 Remedies. If the alleged infringing Software become, or in VMware's opinion be likely to become, the subject of an Infringement Claim, VMware will, at VMware's option and expense, do one of the following: (a) procure the rights necessary for You to make continued use of the affected Software; (b) replace or modify the affected Software to make it non-infringing; or (c) terminate the License to the affected Software and discontinue the related support services, and, upon Your certified deletion of the affected Software, refund: (i) the fees paid by You for the License to the affected Software, less straight-line depreciation over a three (3) year useful life beginning on the date such Software was delivered; and (ii) any pre-paid service fee attributable to related support services to be delivered after the date such service is stopped. Nothing in this Section 8.2 (Remedies) shall limit VMware's obligation under Section 8.1 (Defense and Indemnification) to defend and indemnify You, provided that You replace the allegedly infringing Software upon VMware's making alternate Software available to You and/or You discontinue using the allegedly infringing Software upon receiving VMware's notice terminating the affected License. 8.3 Exclusions. Notwithstanding the foregoing, VMware will have no obligation under this Section 8 (Intellectual Property Indemnification) or otherwise with respect to any claim based on: (a) a combination of Software with non-VMware products (other than non-VMware products that are listed on the Order and used in an unmodified form); (b) use for a purpose or in a manner for which the Software was not designed; (c) use of any older version of the Software when use of a newer VMware version would have avoided the infringement; (d) any modification to the Software made without VMware's express written approval; (e) any claim that relates to open source software or freeware technology or any derivatives or other adaptations thereof that is not embedded by VMware into Software listed on VMware's VMWARE END USER LICENSE AGREEMENT 41

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3.4 Guest Operating Systems. Certain Software allows Guest Operating Systems and application programs to run on a computer system.
You acknowledge that You are responsible for obtaining and complying with any licenses necessary to operate any such third-party
software.
4. ORDER. Your Order is subject to this EULA. No Orders are binding on VMware until accepted by VMware. Orders for Software are
deemed to be accepted upon VMware’s delivery of the Software included in such Order. Orders issued to VMware do not have to be
signed to be valid and enforceable.
5. RECORDS AND AUDIT. During the License Term for Software and for two (2) years after its expiration or termination, You will maintain
accurate records of Your use of the Software sufficient to show compliance with the terms of this EULA. During this period, VMware will
have the right to audit Your use of the Software to confirm compliance with the terms of this EULA. That audit is subject to reasonable
notice by VMware and will not unreasonably interfere with Your business activities. VMware may conduct no more than one (1) audit in
any twelve (12) month period, and only during normal business hours. You will reasonably cooperate with VMware and any third party
auditor and will, without prejudice to other rights of VMware, address any non-compliance identified by the audit by promptly paying
additional fees. You will promptly reimburse VMware for all reasonable costs of the audit if the audit reveals either underpayment of more
than five (5%) percent of the Software fees payable by You for the period audited, or that You have materially failed to maintain accurate
records of Software use.
6. SUPPORT AND SUBSCRIPTION SERVICES. Except as expressly specified in the Product Guide, VMware does not provide any support
or subscription services for the Software under this EULA. You have no rights to any updates, upgrades or extensions or enhancements to
the Software developed by VMware unless you separately purchase VMware support or subscription services. These support or
subscription services are subject to the Support Services Terms.
7. WARRANTIES.
7.1 Software Warranty, Duration and Remedy. VMware warrants to You that the Software will, for a period of ninety (90) days following
notice of availability for electronic download or delivery (“Warranty Period”), substantially conform to the applicable Documentation,
provided that the Software: (a) has been properly installed and used at all times in accordance with the applicable Documentation; and (b)
has not been modified or added to by persons other than VMware or its authorized representative. VMware will, at its own expense and
as its sole obligation and Your exclusive remedy for any breach of this warranty, either replace that Software or correct any reproducible
error in that Software reported to VMware by You in writing during the Warranty Period. If VMware determines that it is unable to correct
the error or replace the Software, VMware will refund to You the amount paid by You for that Software, in which case the License for
that Software will terminate.
7.2 Software Disclaimer of Warranty. OTHER THAN THE WARRANTY ABOVE, AND TO THE MAXIMUM EXTENT PERMITTED BY
APPLICABLE LAW, VMWARE AND ITS SUPPLIERS MAKE NO OTHER EXPRESS WARRANTIES UNDER THIS EULA, AND DISCLAIM
ALL IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE AND NON-INFRINGEMENT,
AND ANY WARRANTY ARISING BY STATUTE, OPERATION OF LAW, COURSE OF DEALING OR PERFORMANCE, OR USAGE OF
TRADE. VMWARE AND ITS LICENSORS DO NOT WARRANT THAT THE SOFTWARE WILL OPERATE UNINTERRUPTED OR THAT IT
WILL BE FREE FROM DEFECTS OR THAT IT WILL MEET YOUR REQUIREMENTS.
8. INTELLECTUAL PROPERTY INDEMNIFICATION.
8.1 Defense and Indemnification. Subject to the remainder of this Section 8 (Intellectual Property Indemnification), VMware shall defend
You against any third party claim that the Software infringes any patent, trademark or copyright of such third party, or misappropriates a
trade secret (but only to the extent that the misappropriation is not a result of Your actions) under the laws of: (a) the United States and
Canada; (b) the European Economic Area; (c) Australia; (d) New Zealand; (e) Japan; or (f) the People’s Republic of China, to the extent
that such countries are part of the Territory for the License (“Infringement Claim”) and indemnify You from the resulting costs and
damages finally awarded against You to such third party by a court of competent jurisdiction or agreed to in settlement. The foregoing
obligations are applicable only if You: (i) promptly notify VMware in writing of the Infringement Claim; (ii) allow VMware sole control over
the defense for the claim and any settlement negotiations; and (iii) reasonably cooperate in response to VMware requests for assistance.
You may not settle or compromise any Infringement Claim without the prior written consent of VMware.
8.2 Remedies. If the alleged infringing Software become, or in VMware’s opinion be likely to become, the subject of an Infringement Claim,
VMware will, at VMware’s option and expense, do one of the following: (a) procure the rights necessary for You to make continued use of
the affected Software; (b) replace or modify the affected Software to make it non-infringing; or (c) terminate the License to the affected
Software and discontinue the related support services, and, upon Your certified deletion of the affected Software, refund: (i) the fees paid
by You for the License to the affected Software, less straight-line depreciation over a three (3) year useful life beginning on the date such
Software was delivered; and (ii) any pre-paid service fee attributable to related support services to be delivered after the date such
service is stopped. Nothing in this Section 8.2 (Remedies) shall limit VMware’s obligation under Section 8.1 (Defense and Indemnification)
to defend and indemnify You, provided that You replace the allegedly infringing Software upon VMware’s making alternate Software
available to You and/or You discontinue using the allegedly infringing Software upon receiving VMware’s notice terminating the affected
License.
8.3 Exclusions. Notwithstanding the foregoing, VMware will have no obligation under this Section 8 (Intellectual Property Indemnification)
or otherwise with respect to any claim based on: (a) a combination of Software with non-VMware products (other than non-VMware
products that are listed on the Order and used in an unmodified form); (b) use for a purpose or in a manner for which the Software was
not designed; (c) use of any older version of the Software when use of a newer VMware version would have avoided the infringement; (d)
any modification to the Software made without VMware’s express written approval; (e) any claim that relates to open source software or
freeware technology or any derivatives or other adaptations thereof that is not embedded by VMware into Software listed on VMware’s
VMWARE END USER LICENSE AGREEMENT
41