﻿BETA AGREEMENT FOR VMWARE
CLOUD SERVICES AND SOFTWARE

Last updated: 19 December 2023
By downloading or using a Beta Offering, Customer agrees to be bound by the terms of this Agreement.

1.	BETA OFFERING.
1.1.	Applicable Terms. This VMware CloFud Services and Software Beta Agreement (this “Agreement”) and any applicable Third Party Terms govern Customer’s use of a Beta Offering.
1.2.	Generally. This Agreement governs (a) Customer’s access to and use of any Beta Offering, and (b) Customer’s participation in Feedback Sessions. Customer may use the Beta Offering only during the Beta Term and only for non-production activity. VMware provides the Beta Offering to Customer strictly “AS IS”, free of charge, and without any warranty or indemnification of any kind.
1.3.	Purpose.
1.3.1.	Customer Use. Customer may use the Beta Offering solely for purposes of internal testing and evaluation, and to provide feedback to VMware.
1.3.2.	Partner Use. Partner may use the Beta Offering for purposes of internal testing and evaluation, internal development to create interoperability between the Beta Offering and Partner’s products or services, and to provide feedback to VMware.
1.4.	Other VMware Service Offerings or Software. While using a Beta Offering, Customer may receive access to additional VMware content, services, or software, which may be subject to separate terms. If so, those separate terms will prevail over this Agreement as to Customer’s access to and use of that data, content, service offerings, software or applications.
1.5.	Third Party Content. As part of Customer’s access to or use of a Beta Offering, Customer may receive access to Third Party Content, which may be subject to separate terms. If so, those separate terms will prevail over this Agreement as to Customer’s use of the Third Party Content. Third Party Content is available “AS IS”, without indemnification, support, warranty, or condition of any kind. Customer is responsible for reviewing, accepting, and complying with any third party terms applicable to the Third Party Content. Those terms will be available to Customer through a notification within the Beta Offering or in the Third Party Terms. VMware will not provide any support for Third Party Content. VMware reserves the right to suspend or terminate any Third Party Content at any time.
1.6.	Support Services. VMware has no obligation to provide any maintenance, technical support, or any other support for a Beta Offering.
1.7.	Publicity. Customer must use reasonable efforts to participate in marketing and publicity activities related to a Beta Offering, as VMware may request from time to time.
2.	BETA SOFTWARE. This section applies if Customer is using Beta Software. If a Beta Cloud Service includes an entitlement to Beta Software, that Beta Software is subject to this section.
2.1.	License Grant. VMware grants Customer a non-exclusive, non-transferable license to deploy and use the Beta Software and the Documentation during the Beta Term. Licenses granted to Customer are for use of object code only.
2.2.	Copies Permitted. Customer may copy Beta Software for archival or backup purposes. All titles, trademarks, copyright, and restrictive rights notices must be reproduced on any copies.
2.3.	License Restrictions. Customer must not, and must not allow any third party to: (a) make the Beta Software available in any form to any third parties; (b) transfer or sublicense the Beta Software or Documentation to any third party (including any of Customer’s Affiliate), except as expressly permitted in section 12.1 (Transfer and Assignment); (c) modify, translate, enhance, or create derivative works from the Beta Software; (d) reverse engineer, decompile, or otherwise attempt to derive source code from the Beta Software, except to the extent permitted by applicable law; or (e) remove any copyright or other proprietary notices.
3.	BETA CLOUD SERVICES. This section applies if Customer is using a Beta Cloud Service.
3.1.	Acceptable Use.  Customer must not use the Beta Cloud Service: (a) in a way prohibited by law or that would cause a violation of law; (b) to violate the rights of others; (c) to try to gain unauthorized access to, test the vulnerability of, or disrupt any service, device, data, account, or network; (d) to distribute spam or malware; (e) in a way that could cause harm or impair anyone’s use of the service; (f) in a way intended to work around technical limitations, recurring fees calculation, or usage limits of the service; or (g) for High Risk Activities.  Customer must not upload any content that: (a) may create a risk of harm to any person or property; (b) may constitute or contribute to a crime or a tort; (c) is illegal, unlawful, harmful, pornographic, defamatory, infringing, or invasive of personal privacy or publicity rights; (d) Customer does not have a right to upload; (e) is subject to HIPAA; (f) requires an export license or is restricted under applicable export control laws; (g) is required to be classified or listed on the United States Munitions list or similar list published for the jurisdiction in which the applicable data center is located; (h) contains ITAR-related data; or (i) is otherwise prohibited by this Agreement.
3.2.	Security Measures. Customer must: (a) take appropriate steps to protect Customer Content; (b) provide any necessary notices to and obtain any legally required consents from Customer’s Users; (c) notify VMware as soon as possible if Customer believes its account has been compromised; and (d) reasonably cooperate with VMware to resolve issues related to Customer’s use of the Beta Cloud Service. Customer is responsible for ensuring that the Beta Cloud Service is appropriate for Customer’s intended use. Customer is responsible for any use of the Beta Cloud Service that occurs under its Login Credentials.
4.	TERM.
4.1.	Term. The term of this Agreement, and Customer’s rights with respect to a Beta Offering, will be in effect throughout the Beta Term, unless those rights are terminated earlier as permitted under this Agreement.
4.2.	Termination. Either party may terminate this Agreement at any time for any reason by providing the other party written notice of termination. Termination will be effective immediately upon delivery of the notice. If Customer breaches its confidentiality obligations as set forth in Section 5 (“Confidential Information”) of this Agreement, then this Agreement and Customer’s rights with respect to the Beta Offering will automatically terminate without notice, and VMware may immediately revoke Customer’s access to the Beta Offering.
4.3.	Effect of Termination. Upon termination of this Agreement: (a) all entitlements to the Beta Offering immediately end; (b) Customer must stop using the Beta Offering, and uninstall and delete any copies the Beta Offering in its possession; and (c) each party must return or destroy any Confidential Information of the other party in its control (other than information that must be retained by law). Any provision of this Agreement that is intended by the parties to survive termination of this Agreement will survive.
5.	CONFIDENTIAL INFORMATION.
5.1.	Protection. Recipient must protect Discloser’s Confidential Information with at least the same care as it protects its own Confidential Information but not less than reasonable care. Recipient may not use Discloser’s Confidential Information except to exercise its rights and perform its obligations under this Agreement. Recipient may disclose Confidential Information only to Recipient’s Affiliates, employees and contractors who need to know the Confidential Information for purposes of this Agreement and who have a duty of confidentiality no less restrictive than this section 5 (Confidential Information).
5.2.	Exceptions. Recipient’s obligations under section 5.1 (Protection) do not apply if the information: (a) is rightfully known by Recipient at the time of disclosure without any obligation of confidentiality; (b) is lawfully disclosed to Recipient by a third party without confidentiality restrictions; (c) becomes  publicly available through no fault of Recipient; or (d) is independently developed by Recipient without access to or use of Discloser’s Confidential Information.
5.3.	Additional Confidentiality Restrictions for Highly Confidential Beta Offerings. For Highly Confidential Beta Offerings the following additional heightened confidentiality restrictions will apply:
5.3.1.	Customer must limit dissemination of Highly Confidential Beta Offerings to Customer’s information technology teams, Customer’s software/solutions development teams, and any teams designated by VMware. Customer must limit dissemination of Highly Confidential Beta Offerings to individuals on those teams who have a need to know the Highly Confidential Beta Offerings for purposes expressly authorized by this Agreement. Customer must not disseminate any Highly Confidential Beta Offerings to Customer’s sales or marketing organizations. Customer must assign an employee who will be primarily responsible for ensuring that Customer complies with the terms of this Agreement.
5.3.2.	Customer acknowledges that damages for improper disclosure of Highly Confidential Beta Offerings may be irreparable and that monetary damages would be inadequate to compensate VMware for any breach of this section 5.3. If VMware reasonably believes that Customer has disseminated Highly Confidential Beta Offerings to an unauthorized party, Customer will be immediately removed from VMware’s Beta program and will not be permitted to participate in any VMware Beta program in the future.
5.4.	Injunctive Relief. Nothing in this Agreement limits a party’s right to seek equitable relief for breach of this section 5 (Confidential Information).
6.	OWNERSHIP.
6.1.	Customer Content. Customer retains all Intellectual Property Rights in and to Customer Content.
6.2.	VMware IP. VMware retains all Intellectual Property Rights in and to the Beta Offering, including any improvements, enhancements, modifications, and derivative works. This includes any information that VMware collects in connection with any Beta Offering, such as usage patterns and other information to improve and evolve VMware’s software and services. Customer rights to use any Beta Offering are limited to those expressly granted in this Agreement.
6.3.	Feedback.  As consideration for access to and use of a Beta Offering, Customer must, from time to time, provide feedback to VMware concerning (a) information that VMware may disclose in Feedback Sessions, and (b) the functionality and performance of the Beta Offering. VMware may use feedback regarding the Beta Offering that Customer provides to VMware, through any means, to improve or enhance VMware products, in VMware’s sole discretion. Customer hereby grants VMware a non-exclusive, perpetual, irrevocable, royalty-free, worldwide right and license, with the right to sublicense, to use, reproduce, disclose, distribute, display, perform, modify, prepare derivative works of, and otherwise exploit Customer’s feedback without restriction in any manner now known or in the future conceived, and to make, have made, use, sell, offer to sell, import and export any product or service that incorporates Customer’s feedback, and Customer will have no claim on any resulting Intellectual Property Rights.
6.4.	Reservation of Rights. Except as expressly stated in this Agreement, this Agreement does not grant either party any rights, implied or otherwise, to the other party’s content or intellectual property.
7.	WARRANTIES DISCLAIMER.
7.1.	To the maximum extent permitted by law, VMware, for itself and on behalf of its suppliers, disclaims all warranties and conditions, whether express, implied, or statutory, including any warranties of merchantability, satisfactory quality, fitness for a particular purpose, title, non-infringement, and any warranty arising from course of dealing or course of performance, relating to the Beta Offering. Neither VMware nor its suppliers warrant that the Beta Offering will operate uninterrupted, that Beta Offering will be free from defects or errors, or that the Beta Offering will meet (or are designed to meet) Customer’s requirements.
7.2.	Customer acknowledges that: (a) any Beta Offering may contain features currently under development, (b) VMware has not promised or guaranteed to Customer that any Beta Offering will be announced or made available to anyone in the future, (c) VMware has no express or implied obligation to Customer to announce or introduce any Beta Offering, (d) VMware may elect not to introduce a product similar to or compatible with any Beta Offering, and (e) any version number (if any) referenced is subject to change and does not in any way represent VMware’s commitment to release any product or service in the future. Specifically, any Beta Offering may contain features, functionality or modules that may not be included in generally available commercial versions of VMware Software or Beta Cloud Services, or that may be marketed separately for additional fees. Customer acknowledges that any research or development that Customer performs associated with any Beta Offering is at Customer’s own expense and risk.
8.	INDEMNIFICATION.
Customer will defend and indemnify VMware against any third party claim arising from or relating to: (a) Customer Content; (b) any infringement or misappropriation of any Intellectual Property Rights by Customer or Customer’s Users in connection with Customer’s use of a Beta Offering; (c) Customer’s use of any Beta Offering in violation of this Agreement, or (d) Customer’s use of any Third Party Content. VMware will (i) provide Customer with notice of any third party claim within a reasonable period of time after learning of the claim; and (ii) cooperate in response to Customer requests for assistance. Customer may not settle or compromise any indemnified claim without VMware’s prior written consent.
9.	LIMITATION OF LIABILITY.
9.1.	Disclaimer. To the maximum extent permitted by law, VMware will not be liable for any lost profits or business opportunities, loss of use, loss of data, loss of goodwill, business interruption, or any indirect, special, incidental, or consequential damages under any theory of liability. 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.
9.2.	Cap on Monetary Liability. VMware’s aggregate liability under this Agreement will not exceed $5,000 USD.
9.3.	Further Limitations. VMware’s liability for any third-party software embedded into the Beta Software or Beta Cloud Service is subject to this section 9 (Limitation of Liability). VMware’s suppliers have no liability under this Agreement, and Customer may not bring claims directly against them. VMware has no liability with respect to any Third-Party Content.
10.	DATA USE AND PRIVACY.
10.1.	Personal Data. No Beta Offering is intended to be used with any data of a commercial or sensitive nature. Customer must not submit any personal data to any Customer Content, including (a) personal data within the meaning of that term given in the Regulation 2016/679 (the EU General Data Protection Regulation) or (b) protected health information within the meaning of the United States Health Insurance Portability and Accountability Act.
10.2.	Customer Content. Customer is responsible for any losses or other consequences arising from Customer failure to encrypt or to back up Customer Content, including any loss of or damage to any data. VMware has no obligation to store Customer Content for any period of time or migrate Customer Content from a Beta Offering to any generally available VMware Offerings that may be made available in the future.
10.3.	Account, Operations and Usage Data. VMware collects Customer contact and Beta Offering usage information to manage Customer’s account.VMware also processes: (a) verify compliance with the terms of the Agreement and (b) configuration, performance, and usage data to improve VMware products and services. To the extent any of that data includes information that identifies an individual, VMware will process that information in accordance with VMware’s Products & Services Privacy Notice available at www.vmware.com/help/privacy.html.
10.4.	Log Files. Customer acknowledges that correspondence and log files generated in conjunction with a request for support services, if applicable, may contain sensitive, confidential or personal information. Customer is solely responsible for taking the steps necessary to protect such data, including obscuring the logs or otherwise guarding such information prior to sending it to VMware.
10.5.	Required Disclosures. VMware may disclose Customer Content or Confidential Information if VMware is required by law or by order of a judicial or administrative body of competent jurisdiction (a “Demand”). Unless legally prohibited from doing so, VMware must provide Customer with notice and a copy of the Demand. If the Demand relates to Beta Cloud Services, VMware must (i) inform the relevant authority that VMware is a service provider acting on Customer’s behalf and all requests for access to Customer Content should be directed in writing to the contact Customer identifies (or if no contact is timely provided, to Customer’s legal department) and (ii) only provide access to Customer Content with Customer’s authorization. If Customer requests and at Customer’s expense, VMware must take reasonable steps to contest the Demand. If VMware is legally prohibited from notifying Customer of the Demand, VMware must evaluate the validity of the Demand, and, if VMware does not believe the Demand is legal, VMware must challenge the Demand. VMware must limit the scope of any disclosure to the minimum information required to comply with the Demand.
10.6.	Performance Monitoring. VMware monitors the performance and stability of  Beta Offerings. Customer must not block or interfere with that monitoring. If VMware reasonably believes a problem with a Beta Offering may be attributable to Customer’s use of a Beta Offering or to Customer Content, Customer must cooperate with VMware to identify the source of and to resolve that problem.
11.	OPEN SOURCE SOFTWARE. Open source software is licensed to Customer under the open source software’s own applicable license terms, which can be found in the open source_licenses.txt file accompanying the Beta Offering or the Documentation. These license terms are consistent with the license granted in this Agreement and may contain additional rights benefiting Customer. The open source license terms take precedence over this Agreement to the extent that this Agreement imposes greater restrictions on Customer than the applicable open source license terms. To the extent the license for any open source software requires VMware to make the corresponding source code and/or modifications (the “Source Files”) available to Customer, Customer may obtain a copy of the applicable Source Files by sending a written request, with name and address, to: VMware, Inc., 3401 Hillview Avenue, Palo Alto, CA 94304, United States of America. All requests should clearly specify: Open Source Files Request, Attention: General Counsel. This offer to obtain a copy of the Source Files is valid for three years from the date Customer acquires its entitlement to the Beta Offering.
12.	MISCELLANEOUS.
12.1.	Transfer and Assignment. Customer may not assign this Agreement without VMware’s consent. Once validly assigned, this Agreement will bind and inure to the benefit of the parties and their respective successors and assigns.
12.2.	Notice. All notices must be in writing.  Notices to Customer may be given by email to the email address associated with Customer’s account. Legal notices to VMware will be given to VMware, Inc., 3401 Hillview Avenue, Palo Alto, California 94304, United States of America, Attention: Legal Department.
12.3.	Waiver. Waiver of a breach of this Agreement will not constitute a waiver of any later breach.
12.4.	Severability. If any part of this Agreement is held to be invalid or unenforceable, all remaining provisions will remain in force to the extent feasible to effectuate the intent of the parties.
12.5.	Compliance with Laws. Each party must comply with all applicable laws.
12.6.	Export Control. Beta Offerings are subject to the U.S. Export Administration Regulations (including “deemed export” and “deemed re-export” regulations), and may be subject to the export control laws of other countries. Customer represents and warrants that: (a) Customer and any User, are not, and are not acting on behalf of: (1) any person who is a citizen, national, or resident of, or who is controlled by, the government of any country to which the United States has prohibited export transactions; or (2) any person or entity listed on the U.S. Treasury Department list of Specially Designated Nationals and Blocked Persons, or the U.S. Commerce Department Denied Persons List or Entity List, or any similar applicable designated persons list; (b) Customer, and any User, will not permit the Beta Offerings to be used for any purposes prohibited by law, including any prohibited development, design, manufacture, or production of missiles or nuclear, chemical, or biological weapons; and (c) Customer, and any User, are not subject, either directly or indirectly, to any order issued by any agency of the United States government revoking or denying, in whole or in part, Customer’s United States export privileges. Customer must notify VMware promptly if Customer or any User becomes subject to any order of that type.
12.7.	Governing Law. The Agreement is governed by the laws of the State of California and United States federal laws, if the address Customer provides when registering for the Beta Offering is in the United States, and by the laws of Ireland if the address Customer provides when registering for the Beta Offering is outside the United States. Conflict of law rules are expressly disclaimed. The United Nations Convention on Contracts for the International Sale of Goods does not apply.
12.8.	Third Party Rights. Other than as expressly stated, this Agreement does not create any rights for any person who is not a party to it. Only persons who are parties to this Agreement may enforce or rely on any of its terms.
12.9.	Force Majeure. Except for Customer’s payment obligations (if any), neither party will be liable for any delay or failure to perform due to any cause beyond the party’s reasonable control, including labor disputes, industrial disturbances, systemic utility failures, acts of nature, pandemics, embargoes, riots, government orders, acts of terrorism, or war.
12.10.	No Agency. Nothing in this Agreement is intended to constitute a fiduciary relationship, agency, joint venture, partnership, or trust between the parties. No party has authority to bind the other party.
12.11.	Counterparts. The Agreement may be signed electronically or in counterparts, in which case each signed copy will be deemed an original as though both signatures appeared on the same document.
12.12.	Entire Agreement. The Agreement contains the entire agreement of the parties and supersedes all previous or contemporaneous communications, representations, proposals, commitments, understandings, and agreements, whether written or oral, between the parties regarding its subject matter. The Agreement may be amended only in a writing signed by both parties.
13.	DEFINITIONS.
Affiliate means an entity that is directly or indirectly controlled by, is under common control with, or controls that party, where “control” means an ownership, voting, or similar interest representing more than 50% of the total interests outstanding of that entity at that time.
Beta Cloud Services means beta versions of cloud services that VMware, at its sole discretion, may invite Customer to access and use from time to time.
Beta Offerings means Beta Cloud Services or Beta Software.
Beta Software means beta versions of software provided by VMware, at its sole discretion, to Customer in object form only for use as part of a Beta Offering.
Beta Term means the time period during which Customer is entitled to access and use the Beta Offering.
Confidential Information means information or materials provided by a party (“Discloser”) to the other party (“Recipient”) in connection with Customer's use of a Beta Offering that: (a) is in tangible form and labelled “confidential” or similar; or (b) information which a reasonable person knew or should have known to be confidential. Confidential Information includes: (1) license keys; (2) VMware pricing, product roadmaps or strategic marketing plans; (3) non-public materials relating to the Offerings; and (4) Customer Login Credentials.
Customer means the entity that is participating in the Beta Program or using a Beta Offering. The term “Customer” includes Partner(s), as applicable.
Customer Content means content uploaded by Customer or any User into the Beta Offering or provided to VMware for support, but does not include Third-Party Content, account information, or Technical Data. For purposes of this definition, “content” means any data, including all text, sound, video, or image files, and software (including machine images).
Documentation means the product documentation describing the features, functionality, and use of the Beta Offering provided to Customer with the Beta Offering, including, without limitation, instructions, testing guidelines, and end user guides.
Feedback Sessions means meetings conducted by VMware in which Customer participates, whether in person or by telephone or via the Internet, including Customer summits, Customer roundtables, design workshops, and discussions.
High Risk Activities means workloads or applications relating to activities where failure could lead to personal injury, death, or environmental damage, including controlling aircraft or other modes of mass transportation, nuclear or chemical facilities, life support systems, implantable medical equipment, motor vehicles, weaponry systems, or any similar scenario.
Highly Confidential Beta Software means certain Beta Offerings and related information concerning product features, future technologies and roadmaps designated by VMware in correspondence to Customer or in any Documentation as highly confidential.
HIPAA means the United States Health Insurance Portability and Accountability Act of 1996, as amended and supplemented, and the regulations issued under that Act.
Intellectual Property Rights means all worldwide intellectual property rights, including copyrights, trademarks, service marks, trade secrets, patents, patent applications, and moral rights, whether registered or unregistered.
Partner means the VMware-authorized third party currently enrolled in a VMware partner program and participating in the VMware Beta Program.
Personal Data means any information relating to an identified or identifiable natural person contained within Customer Content.
Third Party Content means third party data, service, content, software, or applications, including open source software.
Third Party Terms means the then-current version of a Beta Offering’s third party terms document.
User means Customer’s employee or contractor who accesses Customer Content or uses a Beta Offering under Customer’s Login Credentials.
VMware means VMware LLC, a Delaware limited liability company, if the address Customer provides when registering for the Beta Offering is in the United States , or VMware International Unlimited Company, a company organized and existing under the laws of Ireland, if the address Customer provides when registering for the Beta Offering is outside of the United States.
