END USER LICENSE AGREEMENT
BACKGROUND. This End User
License Agreement (“Agreement”) is between Pivotal Software, Inc. (or
based on Licensee’s location (i) the local Pivotal sales subsidiary, if
Licensee is located in a country outside the United States in which Pivotal has
a local sales subsidiary; or (ii) Pivotal Software International
(subject to Section 12 Country Specific Terms (International)), if Licensee is
located in a country outside the United States in which Pivotal does not have a
local sales subsidiary) in each case, “Pivotal” and Licensee.
Agreement governs Licensee's procurement and use of all Software and Support
Services ordered by Licensee directly from Pivotal or its Distributor. Pivotal
shall provide the Software and Support Services as described in each Quote or
Order referencing this Agreement. Unless otherwise set forth in a separate
signed agreement between Pivotal or its Distributor and Licensee, by
downloading, installing, or using the Software. Licensee agrees to these terms.
EVALUATION SOFTWARE AND BETA COMPONENTS. If Licensee
licenses Evaluation Software, Beta Components, or both, then such Evaluation
Software and Beta Components are licensed by Pivotal to Licensee on a
non-exclusive, non-transferable basis, without any right to sublicense, up to
the maximum licensed capacity during the Evaluation Period, in the Territory,
subject to the Guide, only for Licensee’s internal business operations in a
non-production environment. Notwithstanding any other provision in this
Agreement, Evaluation Software and Beta Components are provided “AS-IS” without
indemnification, support, or warranty of any kind, expressed or implied. All such
licenses expire at the end of the Evaluation Period.
GRANT AND USE RIGHTS FOR SOFTWARE.
License Grant. The Software is licensed, not sold.
Nothing in this Agreement shall be construed to mean that Pivotal has sold or
otherwise transferred ownership of the Software. Pivotal grants Licensee a
non-exclusive, non-transferable license, without any right to sublicense, to
use the Software, Documentation and related Support Services, up to the maximum
licensed capacity during the period identified in the Quote, in the Territory,
subject to the Guide, only for Licensee’s internal business operations. Should
Licensee exceed the Software’s licensed capacity, Licensee will promptly
procure additional Software license rights at a mutually agreed price. Third
Party Agents may access the Software on Licensee’s behalf during the
Subscription Period solely for Licensee’s internal business operations.
Licensee may make one unmodified backup copy of the Software solely for
archival purposes. If Licensee upgrades or exchanges the Software from a
previous validly licensed version, Licensee must cease using all prior versions
of the Software and certify cessation of use to Pivotal. Licensee is
responsible for obtaining any software, hardware, or other technology required
to operate the Software and complying with any corresponding terms and
License Restrictions. Licensee must not, and must not
allow any third party to: (a) use the Software in an application
services provider, service bureau, or similar capacity; (b) disclose
to any third party the results of any benchmark testing or comparative or
competitive analyses of the Software without Pivotal’s prior written approval; (c) make
the Software available for access or use to any third party except as otherwise
expressly permitted by Pivotal; (d) transfer or sublicense the
Software or Documentation (other than to an Affiliate, subject to Pivotal’s
prior written approval); (e) use the Software in conflict with the
Guide, Quote or Order; (f) modify, translate, enhance, or create
derivative works from the Software, or reverse assemble or disassemble, reverse
engineer, decompile, or otherwise attempt to derive source code from Software
except as permitted by applicable mandatory law or third party license; (g) remove
any copyright or other proprietary notices on or in the Software; or (h) violate
or circumvent any technological restrictions within the Software or as
otherwise specified in this Agreement.
OSS. OSS is licensed to Licensee under the applicable OSS license terms
located in the open_source_licenses.txt file included in or along with the
Software, the Evaluation Software, or the corresponding source files available
at https://network.pivotal.io/open-source. The applicable OSS license terms are
also 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 and source files is valid for three years from
the date Licensee first acquired access to the Software. OSS terms and
conditions shall take precedence over this Agreement solely with respect to
Subscription License. All Subscription Licenses are subject
to a non-cancelable and non-refundable fee. If a Quote or Order
indicates a Subscription License, then the terms in this Section 2.4
(Subscription License) shall also apply. At least 60 days before expiration of
the Subscription Period, Pivotal (or Distributor, if applicable) will notify
Licensee of its option to renew the Subscription License at the end of the
Subscription Period for one additional year at the same annual rate stated in
the Quote or Order, plus 5%. If Licensee does not notify Pivotal (or
Distributor, if applicable) at least thirty days before expiration of the
Subscription Period of Licensee’s intent to renew, the Subscription License
shall expire at the end of the Subscription Period. Licensee agrees to cease
using the Software at the expiration of the Subscription Period and any renewal
period and will certify cessation of use to Pivotal.
Decompilation. If applicable laws in the Territory grant an
express right to decompile the Software to render it interoperable with other
software, Licensee may decompile the Software, but must first request Pivotal
to do so. Licensee must provide all requested information to allow Pivotal to
assess the request. Pivotal may, in its discretion, provide such
interoperability information, impose reasonable conditions, including a
reasonable fee, on such use of the Software, or offer to provide alternatives
to protect Pivotal’s proprietary rights.
ORDERS. Licensee’s Order is subject to this Agreement and shall reference
the applicable Quote. No Orders are binding until accepted by Pivotal (or
Distributor, if applicable). Orders for Software are deemed accepted upon
Pivotal’s (or Distributor’s, if applicable) delivery of Software included in
such Order. Orders issued to Pivotal do not have to be signed to be valid and
enforceable. Licensee shall pay in full in accordance with Pivotal’s invoice
(or Distributor’s invoice, if applicable).
Software Warranty. Pivotal warrants to Licensee that
the Software will, for the Warranty Period, substantially conform to the
applicable Documentation, provided the Software: (a) has been
properly installed and used in accordance with the Documentation; and (b) has
not been modified by persons other than Pivotal. For any breach of this
warranty, Pivotal will, at its option and expense, and as Licensee’s exclusive
remedy, either replace the Software or correct any reproducible error in the
Software reported to Pivotal by Licensee in writing during the Warranty Period.
If Pivotal determines that it is unable to replace the Software or correct the
error, Pivotal will refund to Licensee (or Distributor, if applicable) the
amount paid by Licensee (or Distributor, if applicable) for the Software, and
the license will terminate.
Warranty Exclusions. EXCEPT AS SET FORTH IN SECTION 4.1,
AND TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, PIVOTAL AND ITS
DISTRIBUTORS PROVIDE THE SOFTWARE AND THE SUPPORT SERVICES WITHOUT ANY
WARRANTIES OF ANY KIND, EXPRESS, IMPLIED, STATUTORY, OR IN ANY OTHER PROVISION
OF THIS AGREEMENT OR COMMUNICATION WITH LICENSEE, AND PIVOTAL AND ITS
DISTRIBUTORS SPECIFICALLY DISCLAIM ANY IMPLIED WARRANTIES OR CONDITIONS OF
MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT, TITLE, AND
ANY WARRANTIES ARISING FROM COURSE OF DEALING OR COURSE OF PERFORMANCE
REGARDING OR RELATING TO THE SOFTWARE, THE SUPPORT SERVICES, THE DOCUMENTATION,
OR ANY MATERIALS FURNISHED OR PROVIDED TO LICENSEE UNDER THIS AGREEMENT.
PIVOTAL AND ITS DISTRIBUTORS DO NOT WARRANT THAT THE SOFTWARE WILL OPERATE
UNINTERRUPTED, OR THAT IT WILL BE FREE FROM DEFECTS OR THAT THE SOFTWARE WILL
MEET (OR IS DESIGNED TO MEET) LICENSEE’S BUSINESS REQUIREMENTS.
IP Indemnity for Software. Subject to the remainder of this
Section 5 (IP Indemnity) and Section 6 (Limitation of Liability), Pivotal
shall: (a) defend Licensee against any Claim that the Software
infringes a copyright or patent enforceable in a Berne Convention signatory
country; and (b) pay resulting costs and damages finally awarded
against Licensee by a court of competent jurisdiction, or pay amounts stated in
a written settlement negotiated and approved by Pivotal.
Procedure and Remedies. The foregoing obligations apply only
if Licensee: (a) promptly notifies Pivotal in writing of such Claim; (b)
grants Pivotal sole control over the defense and settlement of such Claim; (c)
reasonably cooperates in response to Pivotal’s request for assistance; (d)
is not in material breach of this Agreement; and (e) is current in
payment of all applicable fees prior to the Claim. If the allegedly infringing
Software is held to constitute an infringement, or in Pivotal’s opinion, any
such Software is likely to become infringing and its use enjoined, Pivotal may,
at its sole option and expense: (i) procure for Licensee the right
to make continued use of the affected Software; (ii) replace or
modify the affected Software to make it non-infringing; or (iii) notify
Licensee to return the affected Software and, upon receipt, discontinue the
related Support Services (if applicable) and, for Subscription Licenses, refund
unused prepaid fees calculated based on each month remaining in the
IP Indemnity Exclusions. Neither Pivotal nor any Distributor
shall have any obligation under this Section 5 (IP Indemnity) or otherwise with
respect to any Claim that arises out of or relates to: (a) combination,
operation or use of the Software with any other software, hardware, technology,
data, or other materials; (b) use for a purpose or in a manner for
which the Software was not designed or use after Pivotal notifies Licensee to
cease such use due to a possible or pending Claim; (c) any
modifications to the Software made by any person other than Pivotal or its
authorized representatives; (d) any modifications to the Software
made by Pivotal pursuant to instructions, designs, specifications, or any other
information or materials provided to Pivotal by or on behalf of Licensee; (e) use
of any version of the Software when an upgrade or a newer iteration of the
Software made available by Pivotal could have avoided the infringement; (f)
any data or information which Licensee or a third party utilizes in connection
with the Software; or (g) any Open Source Software. THIS SECTION 5
STATES LICENSEE’S SOLE AND EXCLUSIVE REMEDY AND PIVOTAL’S ENTIRE LIABILITY FOR
ANY INFRINGEMENT CLAIMS.
LIMITATION OF LIABILITY. TO THE MAXIMUM EXTENT MANDATED BY
LAW, IN NO EVENT SHALL PIVOTAL OR ITS DISTRIBUTORS 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 OTHER INDIRECT, SPECIAL,
INCIDENTAL, OR CONSEQUENTIAL DAMAGES UNDER ANY THEORY OF LIABILITY, WHETHER
BASED IN CONTRACT, TORT, NEGLIGENCE, PRODUCT LIABILITY OR OTHERWISE. PIVOTAL’S
AND ITS DISTRIBUTORS’ LIABILITY UNDER THIS AGREEMENT SHALL NOT, IN ANY EVENT,
EXCEED THE LESSER OF (A) FEES LICENSEE PAID FOR THE SOFTWARE DURING THE
12 MONTHS PRECEDING THE DATE PIVOTAL RECEIVES WRITTEN NOTICE OF THE FIRST CLAIM
TO ARISE UNDER THIS AGREEMENT; OR (B) USD $1,000,000. THE FOREGOING
LIMITATIONS SHALL APPLY REGARDLESS OF WHETHER PIVOTAL OR ITS DISTRIBUTORS HAVE
BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES AND REGARDLESS OF WHETHER ANY
REMEDY FAILS OF ITS ESSENTIAL PURPOSE. LICENSEE MAY NOT BRING A CLAIM UNDER
THIS AGREEMENT MORE THAN 18 MONTHS AFTER (i) THE END OF THE SUBSCRIPTION
PERIOD, FOR SUBSCRIPTION LICENSES, AND (ii) THE CLAIM FIRST ARISES FOR
ALL OTHER CLAIMS.
For Cause. Pivotal may terminate this Agreement effective
immediately upon written notice to Licensee if: (a) Licensee fails to
pay any portion of fees due under an applicable Quote or Order within ten days
after receiving notice that payment is past due; (b) Licensee suffers an
insolvency or analogous event; (c) Licensee commits a material breach of
this Agreement that is incapable of being cured; or (d) Licensee
breaches any other provision of this Agreement and does not cure the breach
within 30 days after receiving written notice of breach.
For Convenience. Pivotal may terminate this Agreement
for convenience upon three months written notice to the Licensee.
Effect of Termination. In the event of expiration of a
Subscription License or any termination of this Agreement, Licensee must remove
and destroy all copies of Software, including all backup copies, from the
server, virtual machine, and all computers and terminals on which the Software
(including copies) is installed or used and certify destruction of the Software.
All provisions of this Agreement will survive any termination or expiration if
by its nature and context it is intended to survive.
CONFIDENTIALITY. Each party shall: (a) use
the other party’s Confidential Information only for exercising rights and performing
obligations in connection with this Agreement; and (b) protect from
disclosure any Confidential Information disclosed by the other party for a
period commencing upon the disclosure date until three years later.
Notwithstanding the foregoing, either party may disclose Confidential
Information: (i) to an Affiliate to fulfill its obligations or
exercise its rights under this Agreement so long as such Affiliate agrees to
comply with these restrictions in writing; and (ii) if required by
law or regulatory authorities provided the receiving party has given the
disclosing party prompt notice before disclosure. Pivotal shall not be
responsible for unauthorized disclosure of Licensee’s data stored within
Software arising from a data security breach. Licensee is solely responsible
for all obligations to comply with laws applicable to Licensee’s Software use,
including without limitation any personal data processing. Pivotal may collect,
use, store and transmit technical and related information about Licensee’s
Software use, including server internet protocol addresses, hardware
identification, operating system, application software, peripheral hardware,
and Software usage statistics, to facilitate the provisioning of Support
Services. Licensee is responsible for obtaining all consents required to enable
Pivotal to exercise its confidentiality rights, in compliance with applicable
RECORDS/AUDIT. For the period set forth in the Quote or
Order, any renewals, and for three years after, Licensee shall maintain
accurate records regarding its compliance with this Agreement. Upon reasonable
notice and not more than once per year, Pivotal may audit Licensee’s Software
use to determine such compliance and payment of fees. Licensee will promptly
pay additional fees identified by the audit and reimburse Pivotal for all audit
costs if the audit discloses underpayment by more than 5% in the audited period
or that Licensee breached any Agreement term.
10. FEEDBACK AND
RESERVATION OF IP RIGHTS.
10.1. Feedback. The parties
agree that any feedback or suggestions (“Feedback”) (if any) given is
voluntary. Each party is free to use, disclose, reproduce, license or otherwise
distribute the Feedback relating to its own products and services, without any
obligations or restrictions of any kind, including intellectual property
Reservation of IP Rights. Except as expressly stated, nothing
in this Agreement shall be construed to: (a) directly or indirectly
grant to a receiving party any title or license to or ownership of a providing
party’s intellectual property rights in the Software, Support Services, or
materials furnished by such providing party; or (b) preclude such
providing party from: (i) independently developing, marketing,
acquiring, using, licensing, modifying or otherwise freely exploiting products
or services that are similar to or related to the Software or materials
provided under this Agreement; (ii) restricting the assignment of
persons performing Support Services; or (iii) using and employing their
general skills, know-how, and expertise, and to use, disclose, and employ any
generalized ideas, concepts, know-how, methods, techniques, or skills gained or
learned during the course of any assignment, so long as that party complies
with confidentiality obligations in this Agreement. Pivotal is not being
engaged to perform any investigation of third party intellectual property
rights including any searches of patents, copyrights, or trademarks related to
AND TRADE COMPLIANCE. The Software and any technology delivered in connection with
them pursuant to this Agreement may be subject to governmental restrictions on
exports from the USA, restrictions on exports from other countries in which
such Software and technology may be provided or located, disclosures of
technology to foreign persons, exports from abroad of derivative products, and
the importation or use of such technology included with them outside of the USA
(collectively, "Export Laws"). Diversion contrary to Export
Laws is expressly prohibited. Licensee shall, at its sole expense, comply with
all Export Laws including without limitation all licensing, authorization,
documentation and reporting requirements and Pivotal export policies made
available to Licensee by Pivotal. Licensee represents that it is not a
Restricted Party, which shall be deemed to include any person or entity: (a)
located in or a national of Cuba, Iran, North Korea, Sudan, Syria, Crimea, or
any other countries that may, from time to time, become sanctioned or with
which U.S. persons are generally prohibited from engaging in financial
transactions; (b) on any restricted party or entity list maintained by any U.S.
government agency; or (c) any person or entity involved in an activity
restricted by any U.S. government agency. Certain information or technology may
be subject to the International Traffic in Arms Regulations and shall only be
exported, transferred or released to foreign nationals inside or outside the
United States in compliance with such regulations.
GENERAL. This Agreement is governed and interpreted by
California law. Any lawsuit arising directly or indirectly out of this
Agreement shall be litigated in the Superior Court of San Francisco, California
or, if original jurisdiction can be established, in 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. Software and Support
Services are subject to United States, 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.
This Agreement confers no rights or remedies on any third party, other than the
parties to this Agreement and their respective successors and permitted
assigns. Pivotal reserves all rights not expressly granted to Licensee in this
Agreement. The parties are independent contractors. This Agreement and its
attachments contain the entire understanding between the parties and may be
amended only by a written document signed by both parties. Licensee shall not
assign or transfer any rights under this Agreement or delegate any of its
duties under this Agreement without Pivotal’s prior written consent, and any
such action in violation of this provision, is null and void, of no force, and
a breach of this Agreement. Pivotal may assign or transfer this Agreement 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 Agreement shall inure to the benefit
of and be binding upon the respective permitted successors and assigns. Pivotal
may use Pivotal Affiliates or other sufficiently qualified subcontractors to
provide Support Services, provided that Pivotal remains responsible for their
performance. If any part of this Agreement, an Order, or a Quote is held
unenforceable, the validity of the remaining provisions shall not be affected.
In the event of conflict or inconsistency among the Guide, this Agreement and
the Order or Quote, the following order of precedence shall apply: (a)
the Guide, (b) this Agreement and (c) the Order. All terms of any
Licensee purchase order or similar document provided by Licensee, except those
confirming the business terms set forth in the applicable Pivotal Quote, shall
be null and void and of no legal force or effect, even if Pivotal does not
expressly reject such terms when accepting a purchase order or similar document
provided by Licensee.
COUNTRY SPECIFIC TERMS (INTERNATIONAL). The terms in
this Section 12 (Country Specific Terms (International)) only apply when
Pivotal means Pivotal Software International. For the avoidance of doubt the
terms of this Section 12 (Country Specific Terms (International)) shall replace
the terms in the Agreement as specifically stated and all other terms of the
Agreement shall remain unchanged.
Section 4 (LIMITED WARRANTY). Section 4.2
(Warranty Exclusions) shall be deleted and replaced with: 4.2 Warranty
Exclusions. EXCEPT AS EXPRESSLY STATED IN THE APPLICABLE WARRANTY SET FORTH
IN THIS AGREEMENT, PIVOTAL (INCLUDING ITS SUPPLIERS) MAKES NO OTHER EXPRESS OR
IMPLIED WARRANTIES, WRITTEN OR ORAL. INSOFAR AS PERMITTED UNDER APPLICABLE LAW,
ALL OTHER WARRANTIES ARE SPECIFICALLY EXCLUDED, INCLUDING WARRANTIES ARISING BY
STATUTE, COURSE OF DEALING, OR USAGE OF TRADE.
Section 6 (LIMITATION OF LIABILITY). Section 6
(Limitation of Liability) shall be deleted replaced with: 6. LIMITATION OF
In case of death or personal injury caused by Pivotal’s
negligence, in case of Pivotal’s willful misconduct, fraud, or gross
negligence, and where a limitation of liability is not permissible under
applicable mandatory law, Pivotal shall be liable according to statutory law.
Subject always to sub-section 6.A, the liability of Pivotal
(including its suppliers) to the Licensee under or in connection with a
Licensee’s Order, whether arising from negligent error or omission, breach of
contract, or otherwise shall not exceed the lesser of (i) fees Licensee
paid for the specific service (calculated on an annual basis, when applicable)
or Software during the 12 months preceding Pivotal’s notice of such claim; or (ii) EUR
In no event shall Pivotal (including its suppliers) be liable to
Licensee however that liability arises, for the following losses, whether
direct, consequential, special, incidental, punitive or indirect: (i) loss
of actual or anticipated revenue or profits, loss of use, loss of actual or
anticipated savings, loss of or breach of contracts, loss of goodwill or
reputation, loss of business opportunity, loss of business, wasted management
time, cost of substitute services or facilities, loss of use of any software or
data; and/or (ii) indirect, consequential, exemplary or incidental
or special loss or damage; and/or (iii) damages, costs and/or
expenses due to third party claims; and/or (iv) loss or damage due
to the Licensee’s failure to comply with obligations under this Agreement,
failure to do back-ups of data or any other matter under the control of the
Licensee and in each case whether or not any such losses were direct, foreseen,
foreseeable, known or otherwise, and whether or not that party was aware of the
circumstances in which such losses could arise. For the purposes of this
Section 6 (Limitation of Liability), the term “loss” shall include a partial
loss, as well as a complete or total loss.
The parties expressly agree that should any limitation or
provision contained in this Section 6 (Limitation of Liability) be held to be
invalid under any applicable statute or rule of law, it shall to that extent be
deemed omitted, but if any party thereby becomes liable for loss or damage
which would otherwise have been excluded such liability shall be subject to the
other limitations and provisions set out in this Section 6 (Limitation of
The parties expressly agree that any order for specific
performance made in connection with this Agreement in respect of Pivotal shall
be subject to the financial limitations set out in sub-section 6.B.
Licensee waives the right to bring any claim arising out of or in
connection with this Agreement more than twenty-four months after the date of
the cause of action giving rise to such claim.
LICENSEE OBLIGATIONS IN RESPECT OF PRESERVATION OF DATA. During the
term of the EULA the Licensee shall:
from a point in time prior to the point of failure, (i) make
full and/or incremental backups of data which allow recovery in an application
consistent form, and (ii) store such back-ups at an off-site
location sufficiently distant to avoid being impacted by the event(s) (e.g.
including but not limited to flood, fire, power loss, denial of access or air
crash) and affect the availability of data at the impacted site;
have adequate processes and procedures in place to restore data
back to a point in time and prior to point of failure, and in the event of real
or perceived data loss, provide the skills/backup and outage windows to restore
the data in question;
use anti-virus software, regularly install updates across all data
which is accessible across the network, and protect all storage arrays against
power surges and unplanned power outages with uninterruptible power supplies;
ensure that all operating system, firmware, system utility (e.g.
but not limited to, volume management, cluster management and backup) and patch
levels are kept to Pivotal recommended versions and that any proposed changes
thereto shall be communicated to Pivotal in a timely fashion.
Section 11 (GENERAL) The first two sentences of Section
11 (General) shall be deleted and replaced with: This Agreement is governed by
the laws of the Republic of Ireland, excluding its conflict of law rules. Each
party expressly consents to the personal jurisdiction of the Dublin Courts and
agrees that any lawsuit arising directly or indirectly out of this Agreement
shall be litigated in the Dublin Courts.
legal entity controlled by, controlling, or that 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.
Beta Component means a
Software component not yet generally available but included in the Software.
Claim means any
third party claim, notice, demand, action, proceeding, litigation,
investigation, or judgment. With respect to Software, such Claim must be
related to Licensee’s use of the Software during the Subscription Period or
Information means the terms of this Agreement, the Software, and all
confidential and proprietary information of Pivotal or Licensee, including
without limitation, all business plans, product plans, financial information,
software, designs, technical, business, or financial data of any nature
whatsoever, provided that such information is marked or designated in writing
as “confidential,” “proprietary,” or with a similar term or designation, or
information that would reasonably be regarded as being confidential by its
nature. Confidential Information excludes information that is: (a) rightfully
in the receiving party’s possession without prior obligation of confidentiality
from the disclosing party; (b) a matter of public knowledge (or
becomes a matter of public knowledge other than through a breach of
confidentiality by the other party); (c) rightfully furnished to
the receiving party by a third party without a confidentiality restriction; or
(d) independently developed by the receiving party without
reference to the disclosing party's Confidential Information.
Distributor means a
reseller, distributor, system integrator, service provider, independent
software vendor, value-added reseller or other partner authorized by Pivotal to
license Software to end users, or any third party duly authorized by a
Distributor to license Software to end users.
means documentation provided to Licensee by Pivotal with the
Software, as revised by Pivotal from time to time.
Evaluation Period means 90 days starting
from initial delivery of the Evaluation Software or Beta Components.
Software means Software made available for the Evaluation Period at no
charge, for Licensee’s evaluation purposes only, either subject to a signed
Order, or where Licensee has not signed a Quote.
Guide means the
Pivotal Product Guide available at: https://www.pivotal.io/product-guide, in
effect on the date of the Quote and incorporated into this Agreement.
Licensee means the
person or the entity, and its permitted successors and assigns, obtaining the Software.
Major Release means a generally available release of Software that
Pivotal designates with a change in the digit to the left of the first decimal
point (e.g., 5.0 >> 6.0).
Minor Release means a
generally available release of Software that Pivotal designated with a change
in the digit to the right of the decimal point (e.g., 5.0 >> 5.1).
Software or OSS means software components licensed and distributed
under a license approved by the Open Source Initiative or similar open source
or freeware license and included in, embedded in, utilized by, or provided or
distributed with the Software.
Order means a
purchase order or other ordering document either signed by the parties or
issued by Licensee to Pivotal or a Distributor that references and incorporates
this Agreement and is accepted by Pivotal as set forth in Section 3 (Orders).
License means access to Software and Documentation subject to the
licensing terms and restrictions in the Guide on a perpetual basis.
Quote means a pricing
quote issued by Pivotal or its Distributor.
Pivotal computer programs listed in the Guide and identified in a Quote,
indicating a Perpetual License or Subscription License.
License means a license during the Subscription Period to access: (a)
Software and Documentation set forth in the Quote subject to the Guide; and (b)
Support Services, which include any Major Releases, Minor Releases, or upgrades
on a “when and if available” basis.
Period means the period specified in the Quote or Order beginning upon
notification to Licensee that the Software is available for download.
Services means services described at: https://www.pivotal.io/support.
Territory means the
country or countries in which Licensee has been invoiced.
Agent means Licensee’s employees or contractors delivering information
technology services to Licensee pursuant to a written contract requiring
compliance with this Agreement.
Period means 90 days starting from the first notice of availability of
the Software for download.