Dell Latitude 5280 VMware Horizon Client for Windows Embedded Operating System - Page 42

Limitation of Liability. TO THE MAXIMUM EXTENT MANDATED BY LAW

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commercial price list; or (f) any Software provided on a no charge, beta or evaluation basis. THIS SECTION 8 (INTELLECTUAL PROPERTY INDEMNIFICATION) STATES YOUR SOLE AND EXCLUSIVE REMEDY AND VMWARE'S ENTIRE LIABILITY FOR ANY INFRINGEMENT CLAIMS OR ACTIONS. 9. LIMITATION OF LIABILITY. 9.1 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 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 EULA WILL NOT, IN ANY EVENT, REGARDLESS OF WHETHER THE CLAIM IS BASED IN CONTRACT, TORT, STRICT LIABILITY, OR OTHERWISE, EXCEED THE GREATER OF THE LICENSE FEES YOU PAID FOR THE SOFTWARE GIVING RISE TO THE CLAIM OR $5000. 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. 9.2 Further Limitations. VMware's licensors shall have no liability of any kind under this EULA and VMware's liability with respect to any third party software embedded in the Software shall be subject to Section 9.1 (Limitation of Liability). You may not bring a claim under this EULA more than eighteen (18) months after the cause of action arises. 10. TERMINATION. 10.1 EULA Term. The term of this EULA begins on the notice of availability for electronic download or delivery of the Software and continues until this EULA is terminated in accordance with this Section 10. 10.2 Termination for Breach. VMware may terminate this EULA effective immediately upon written notice to You if: (a) 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; or (b) You breach any other provision of this EULA and fail to cure within thirty (30) days after receipt of VMware's written notice thereof. 10.3 Termination for Insolvency. VMware may terminate this EULA 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. 10.4 Effect of Termination. Upon VMware's termination of this EULA: (a) all Licensed rights to all Software granted to You under this EULA will immediately cease; and (b) You must cease all use of all Software, and return or certify destruction of all Software and License Keys (including copies) to VMware, 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. Any provision will survive any termination or expiration if by its nature and context it is intended to survive, including Sections 1 (Definitions), 2.6 (Open Source Software), 3 (Restrictions; Ownership), 5 (Records and Audit), 7.2 (Software Disclaimer of Warranty), 9 (Limitation of Liability), 10 (Termination), 11 (Confidential Information) and 12 (General). 11. CONFIDENTIAL INFORMATION. 11.1 Definition. "Confidential Information" means information or materials provided by one party (" Discloser") to the other party ("Recipient") which are in tangible form and labelled "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) License Keys; (b) information regarding VMware's pricing, product roadmaps or strategic marketing plans; and (c) non-public materials relating to the Software. 11.2 Protection. Recipient may use Confidential Information of Discloser; (a) to exercise its rights and perform its obligations under this EULA; 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 EULA, 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 EULA 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. 11.3 Exceptions. Recipient's obligations under Section 11.2 (Protection) 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. 11.4 Data Privacy. You agree that VMware may process technical and related information about Your use of the Software which may include internet protocol address, hardware identification, operating system, application software, peripheral hardware, and non-personally 42 VMWARE END USER LICENSE AGREEMENT

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commercial price list; or (f) any Software provided on a no charge, beta or evaluation basis. THIS SECTION 8 (INTELLECTUAL
PROPERTY INDEMNIFICATION) STATES YOUR SOLE AND EXCLUSIVE REMEDY AND VMWARE’S ENTIRE LIABILITY FOR ANY
INFRINGEMENT CLAIMS OR ACTIONS.
9. LIMITATION OF LIABILITY.
9.1 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 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 EULA WILL NOT, IN ANY EVENT, REGARDLESS OF WHETHER THE CLAIM IS BASED IN CONTRACT, TORT, STRICT
LIABILITY, OR OTHERWISE, EXCEED THE GREATER OF THE LICENSE FEES YOU PAID FOR THE SOFTWARE GIVING RISE TO THE
CLAIM OR $5000. 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.
9.2 Further Limitations. VMware’s licensors shall have no liability of any kind under this EULA and VMware’s liability with respect to any
third party software embedded in the Software shall be subject to Section 9.1 (Limitation of Liability). You may not bring a claim under this
EULA more than eighteen (18) months after the cause of action arises.
10. TERMINATION.
10.1 EULA Term. The term of this EULA begins on the notice of availability for electronic download or delivery of the Software and
continues until this EULA is terminated in accordance with this Section 10.
10.2 Termination for Breach. VMware may terminate this EULA effective immediately upon written notice to You if: (a) 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; or
(b) You breach any other provision of this EULA and fail to cure within thirty (30) days after receipt of VMware’s written notice thereof.
10.3 Termination for Insolvency. VMware may terminate this EULA 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.
10.4 Effect of Termination. Upon VMware’s termination of this EULA: (a) all Licensed rights to all Software granted to You under this
EULA will immediately cease; and (b) You must cease all use of all Software, and return or certify destruction of all Software and License
Keys (including copies) to VMware, 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. Any provision will survive any
termination or expiration if by its nature and context it is intended to survive, including Sections 1 (Definitions), 2.6 (Open Source
Software), 3 (Restrictions; Ownership), 5 (Records and Audit), 7.2 (Software Disclaimer of Warranty), 9 (Limitation of Liability), 10
(Termination), 11 (Confidential Information) and 12 (General).
11. CONFIDENTIAL INFORMATION.
11.1 Definition. “Confidential Information” means information or materials provided by one party (“ Discloser”) to the other party
(“Recipient”) which are in tangible form and labelled “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) License Keys; (b) information regarding VMware’s pricing, product roadmaps or strategic marketing plans; and (c) non-public
materials relating to the Software.
11.2 Protection. Recipient may use Confidential Information of Discloser; (a) to exercise its rights and perform its obligations under this
EULA; 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 EULA, 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 EULA 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.
11.3 Exceptions. Recipient’s obligations under Section 11.2 (Protection) 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.
11.4 Data Privacy. You agree that VMware may process technical and related information about Your use of the Software which may
include internet protocol address, hardware identification, operating system, application software, peripheral hardware, and non-personally
42
VMWARE END USER LICENSE AGREEMENT