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VMWARE END USER LICENSE AGREEMENT

Last updated: 03 May 2021

THE TERMS OF THIS END USER LICENSE AGREEMENT (“EULA”) GOVERN YOUR USE OF THE SOFTWARE, REGARDLESS OF ANY

for a period of thirty (30) days (unless we specify otherwise), and you may not use the Software with production data. Notwithstanding any other

provision in this EULA, an Evaluation License of the Software is provided “AS IS” without indemnification, support or warranty of any kind, express

or implied.

1. LICENSE GRANT.

1.1. General License Grant. We grant you a non-exclusive, non-transferable (except as set forth in Section 12.1 (Transfers; Assignment))

license to deploy the Software within the Territory and to use the Software and the Documentation during the term of the license, solely

for your internal business operations, and subject to the provisions of the Product Guide. Unless otherwise set forth in the Order, licenses

granted to you will be for use of object code only and will commence on Delivery.

1.2. Users and Third-Party Agents. Under the License granted to you in Section 1.1 (General License Grant), you may permit your Users to

use the Software, and you may permit Third-Party Agents to deploy and use the Software on your behalf for the sole purpose of delivering

parameters of the study prior to publication and distribution. Please contact us at benchmark@vmware.com to request review and

approval.

1.5. Services for Affiliates. You may use the Software to deliver IT services to your Affiliates, provided that those Affiliates may not directly

use the Software.

1.6. Open Source Software. Open Source Software is licensed to you under the OSS’s own applicable license terms, which can be found in

either the open_source_licenses.txt file accompanying the Software, the Documentation, or as applicable the corresponding Source Files

(as defined below) for the OSS available at www.vmware.com/download/open_source.html. These OSS license terms are consistent with

the license granted in Section 1 (License Grant) and may contain additional rights benefiting you. The OSS license terms take precedence

over this EULA to the extent that this EULA imposes greater restrictions on you than the applicable OSS license terms. To the extent the

license for any Open Source Software requires us to make available to you the corresponding source code and/or modifications (the

application services provider, service bureau, hosted IT services, or similar capacity for third parties, except as specified in Section 1.5

(Services for Affiliates); (b) disclose to any third party the results of any benchmarking testing or comparative or competitive analyses of

the Software done by you or on your behalf, except as specified in Section 1.4 (Benchmarking); (c) make available the Software in any

form to any third parties, except as specified in Section 1.2 (Users and Third-Party Agents); (d) transfer or sublicense the Software or

Documentation to an Affiliate or any third party, except as expressly permitted in Section 12.1 (Transfers; Assignment); (e) use the

Software in conflict with the terms and restrictions of the Software’s licensing model and other requirements specified in the Product Guide

and/or the applicable Order; (f) except to the extent permitted by applicable mandatory law, modify, translate, enhance, or create derivative

works from the Software, or reverse engineer, decompile, or otherwise attempt to derive source code from the Software, except as

specified in Section 2.2 (Decompilation); (g) remove any copyright or other proprietary notices on or in any copies of the Software; or (h)

violate or circumvent any technological restrictions within the Software or specified in this EULA, such as via software or services.

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2.3. Ownership. The Software and Documentation (including all copies and portions), all improvements, enhancements, modifications and

derivative works of the Software or Documentation, and all Intellectual Property Rights in the Software and Documentation, are and will

remain the sole and exclusive property of VMware and its licensors. Your rights to deploy and use the Software and Documentation are

limited to those expressly granted in this EULA and any applicable Order. No other rights are implied with respect to the Software,

Software or Documentation except as expressly authorized by this EULA or the applicable Order. We reserve all rights not expressly

granted to you. We do not transfer any ownership rights in any Software or Documentation.

2.4. Guest Operating Systems. Some 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 third-party software.

3. ORDER. Your Order is subject to this EULA. No Orders are binding on us until we accept them. Orders for Software are deemed accepted

upon Delivery of the Software included in the Order. Purchase orders issued to us do not have to be signed by you to be valid and

third-party auditor and you must, without prejudice to our other rights, address any non-compliance identified by the audit by paying

additional fees. You must reimburse us 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.

5. SUPPORT SERVICES. Support and subscription services for the Software (“Support Services”) are provided pursuant to the Support

Services Terms and are not subject to this EULA. You have no rights to any updates, upgrades or extensions or enhancements to the

Software unless you separately purchase Support Services or they are included with your purchase of a license to the Software as provided

in the Product Guide.

6. WARRANTIES.

6.1. Software Warranty: Duration and Remedy. We warrant that the Software will, for a period of ninety (90) days following notice of

6.2. Disclaimer of Warranty. OTHER THAN THE LIMITED WARRANTY IN SECTION 6.1, TO THE MAXIMUM EXTENT PERMITTED BY

LAW, WE, FOR OURSELVES AND ON BEHALF OF OUR SUPPLIERS, DISCLAIM ALL WARRANTIES WHETHER EXPRESS, IMPLIED,

OR STATUTORY, INCLUDING ANY WARRANTIES OF MERCHANTABILITY, SATISFACTORY QUALITY, FITNESS FOR A

PARTICULAR PURPOSE, TITLE, AND NON-INFRINGEMENT, AND ANY WARRANTY ARISING FROM COURSE OF DEALING OR

COURSE OF PERFORMANCE, RELATING TO THE SOFTWARE AND DOCUMENTATION. NEITHER WE NOR OUR SUPPLIERS

WARRANT THAT THE SOFTWARE WILL OPERATE UNINTERRUPTED, THAT IT WILL BE FREE FROM DEFECTS OR ERRORS, OR

THAT IT WILL MEET (OR IS DESIGNED TO MEET) YOUR BUSINESS REQUIREMENTS.

7. INTELLECTUAL PROPERTY INDEMNIFICATION.

7.1. Defense and Indemnification. Subject to the remainder of this Section 7, we will: (a) defend you against any Infringement Claim; and (b)

indemnify you from all fines, damages, and costs finally awarded against you by a court of competent jurisdiction or a government agency,

claimant. You may not settle or compromise any Infringement Claim without our prior written consent.

7.2. Remedies. If the Software becomes, or in our opinion is likely to become, the subject of an Infringement Claim, we will, at our option and

expense: (a) procure the rights necessary for you to keep using the Software; or (b) modify or replace the 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

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deletion of the affected Software, refund: (i) for a Perpetual License, the fees paid for the License to the affected Software, less straight-

line depreciation over a three (3) year useful life beginning on the date of Delivery of the Software and any unused, prepaid fees for

Term.

7.3. Exclusions. We will have no obligation under this Section 7 or otherwise with respect to any Infringement Claim based on: (a) combination

of the Software with non-VMware products or content; (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 version would have avoided the infringement; (d) any modification to the

Software other than those made by us or with our express written approval; (e) any claim that relates to open source software or freeware

technology or any derivative or other adaptations thereof that is not embedded by us into the Software; or (f) any Software provided on a

SYSTEM FAILURES, OR OTHER INTERRUPTIONS), LOSS OF REVENUE, LOSS OF GOODWILL, BUSINESS INTERRUPTION, OR

FOR ANY INDIRECT, SPECIAL, INCIDENTAL, OR CONSEQUENTIAL DAMAGES UNDER ANY THEORY OF LIABILITY, WHETHER

BASED IN CONTRACT, TORT, NEGLIGENCE, PRODUCT LIABILITY, OR OTHERWISE. THIS LIMITATION WILL APPLY

REGARDLESS OF WHETHER A PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF THOSE DAMAGES AND REGARDLESS OF

WHETHER ANY REMEDY FAILS OF ITS ESSENTIAL PURPOSE. BECAUSE SOME JURISDICTIONS DO NOT ALLOW THE

MAY NOT APPLY.

8.2. Cap on Monetary Liability. OUR LIABILITY FOR ANY CLAIM UNDER THIS EULA WILL NOT EXCEED THE GREATER OF THE

LICENSE FEES YOU PAID FOR THE SOFTWARE GIVING RISE TO THE CLAIM OR $5000.

8.3. Exclusions. THE LIMITATION OF LIABILITY IN SECTIONS 8.1 AND 8.2 WILL NOT APPLY TO (i) OUR INDEMNIFICATION

8.4. Further Limitations. Our suppliers have no liability of any kind under this EULA. You may not bring a claim directly against any of them

under this EULA. Our liability with respect to any third-party software embedded in the Software is subject to this Section 8. You may not

bring a claim under this EULA more than eighteen (18) months after the cause of action arises.

provision of this EULA in a manner that cannot be cured; or (d) you terminate or suspend your business.

in writing your inability to pay your debts as they mature, make an assignment for the benefit of creditors, become subject to control of a

trustee, receiver or similar authority, or become subject to any bankruptcy or insolvency proceeding.

9.4. Effect of Termination. Upon termination of this EULA: (a) all Licenses to the Software granted to you under this EULA will immediately

end; (b) you must stop all use of the Software and return to us or certify destruction of the Software and License Keys (including copies),

and (c) you must return or, if we request, destroy, any of our or our suppliers’ Confidential Information in your possession or under your

control (other than information that must be retained pursuant to law). Any provision that, by its nature and context is intended to survive

termination or expiration of the EULA, will survive, including Sections 1.6 (Open Source Software), 2 (Restrictions; Ownership), 4 (Records

and Audit), 6.2 (Software Disclaimer of Warranty), 8 (Limitation of Liability), 9 (Termination), 10 (Confidential Information), 12 (General),

13 (Definitions), and 14 (Terms Applicable to U.S. Federal End Users). Except as otherwise expressly provided in this EULA or as required

by applicable law or regulation, termination of this EULA will not entitle you to any refunds, credits, or exchanges.

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in writing and cooperates with the Discloser, at the Discloser’s request and expense, in any lawful action to contest or limit the scope of

compliance with the terms of this EULA, invoicing, and providing Support Services, and (b) Software configuration, performance, and

usage data for the purposes of improving VMware products and services and user experience, and other analytics purposes as set forth

of the services.

Department.

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EULA and (c) the Order. This EULA supersedes any conflicting or additional terms and conditions of any purchase order,

acknowledgement or confirmation, or other document issued by you for or regarding the Software.

proposals, commitments, understandings and agreements, whether written or oral, between the parties regarding its subject matter. This

EULA may be amended only in a writing signed by authorized representatives of both parties.

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13.21. “User” means an employee, contractor, or Third-Party Agent that you have authorized to use the Software as permitted under this EULA.

“(a) use the Software in an application services provider, service bureau, hosted IT services, or similar capacity for third parties;”

14.5. Replace Section 3 (“Order”) with the following:

“Your Order is subject to this EULA. No Orders are binding on us until we accept them, and all Orders must expressly incorporate this

EULA. Orders for Software are deemed accepted upon Delivery of the Software included in the Order. Purchase orders issued to us do

not have to be signed by you to be valid and enforceable unless required by applicable law. All Orders are non-refundable and non-

cancellable except as expressly provided in this EULA. Any refunds to which you are entitled under this EULA will be remitted to you or

to the VMware channel partner from which you purchased your Software license.”

14.6. Replace Section 4 (“Records and Audit”) with the following:

“You must maintain accurate records of your use of the Software sufficient to show compliance with the terms of this EULA. We have the

right to audit those records and your use of the Software, at our own expense, to confirm compliance with the terms of this EULA. That

information, as that term is defined in the National Industrial Security Program Operating Manual (NISPOM), then the audit will be

conducted by auditor(s) possessing a personal security clearance as defined in the NISPOM (“PCL”) at the appropriate level. In those

cases, VMware and any third-party auditor will disclose Classified Information only to person(s) who both possess a PCL and have a need

to know.”

14.7. Replace Section 7.1 (“Defense and Indemnification”) with the following:

“Subject to the remainder of this Section 7 and 28 U.S.C. 516, we will (a) defend you against an Infringement Claim; and (b) indemnify

you from costs and damages finally awarded against you by a court of competent jurisdiction or a government agency or agreed to in a

settlement approved by us. These obligations are applicable only if you: (i) provide us with notice of any Infringement Claim within a

reasonable period after learning of the claim (provided that any delay in providing the notice will relieve us of our indemnification obligations

only to the extent that the delay prejudices us); (ii) allow us the opportunity to participate in the claim’s defense and settlement as provided

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and discontinue the related Support Services upon our written request, and, upon your certified deletion of the affected Software, we will

refund: (i) for a Perpetual License, the fees paid for the License to the affected Software, less straight-line depreciation over a three (3)

year useful life beginning on the date of Delivery of the Software and any unused, prepaid fees for Support Services, or (ii) for Subscription

Software, any prepaid fees, prorated for the remaining portion of the then-current Subscription Term. Nothing in this Section 7.2

(Remedies) will limit our obligations under Section 7.1 (Defense and Indemnification), provided that you replace the allegedly infringing

receiving VMware’s written request to terminate the affected License. The foregoing is subject to the U.S. Federal Government’s right to

however, we may participate at our own expense in the defense of any Infringement Claim if the claim is against us.”

“You may not bring a claim under this EULA more than eighteen (18) months after the cause of action arises or such longer period as is

recover for fraud or crimes arising out of this EULA as permitted under any applicable federal fraud statute, including the False Claims Act

(31 U.S.C. 3729-3733).”

“Subject to, and to the extent not prohibited by, 41 U.S.C. chapter 71 (Contract Disputes) and FAR 52.233-1 (Disputes),”

14.11. Replace Section 9.3 (“Termination for Insolvency”) with the following:

“9.3. Termination by You. You may terminate this EULA in accordance with FAR 52.212-4(l) or FAR 52.212-4(m), if applicable.”

the process set forth at www.vmware.com/support/policies/licensingpolicies.html, you must not assign this EULA, any Order, or any right

or obligation pursuant to this EULA, or delegate any performance under this EULA, without our prior written consent, which consent will

not be unreasonably withheld, conditioned, or delayed. We may assign our right to receive payment in accordance with the Assignment

of Claims Act (31 U.S.C. 3727) and FAR 52.212-4(b), and we may assign this EULA to the extent not prohibited by the Anti-Assignment

Act (41 U.S.C. 15). Subject to the requirements of FAR 42.12 (Novation and Change-of-Name Agreements), you shall recognize our

of Goods does not apply.”

14.14. Add the following to the end of Section 12.10 (“Third-Party Rights”):

“Notwithstanding the foregoing, for any Orders placed with a VMware channel partner, the VMware channel partner may bring a claim to

enforce the terms of this EULA at our request and on our behalf.”

14.15. Replace Section 12.11 (“Order of Precedence”) with the following:

“12.11. Product Guide. The Product Guide is incorporated by reference in this EULA. To the extent that any terms and conditions in this

EULA or in the Product Guide are inconsistent with applicable federal law, they shall be deemed deleted and unenforceable as applied to

your Order. In the event of conflict or inconsistency among the Product Guide and this EULA, the Product Guide shall take precedence

unless otherwise provided in an enterprise license agreement. This EULA supersedes any conflicting or additional license terms contained

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14.19. Replace Section 13.15 (“Support Services Terms”) with the following:

subject to FAR 52.212-4(u) and General Services Acquisition Manual (“GSAM”) 552.232-78 (Commercial Supplier Agreements—

Unenforceable Clauses).”

14.20. Replace Section 13.18 (“Territory”) with the following:

America, except as otherwise provided in the Product Guide. For purposes of this section, “U.S. Federal Government Facilities” means

buildings that are both 100% owned and controlled by the U.S. Federal Government and includes land, bases, installations, vessels, craft,

and ships that are both 100% owned and controlled by the U.S. Federal Government. In the foregoing sentence, “owned” also includes

leased throughout the entire term of the Order.”