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VMware Virtual Disk Developer Kit Agreement


VMware, Inc. ("VMware") provides this Virtual Disk Developer Kit ("VDDK") to you subject to the following terms and conditions.  If you disagree with any of the following terms, then do not use this VDDK.

1.	This VDDK contains a variety of materials, including but not limited to, interface definitions, documentation, and sample code regarding programming interfaces to one or more VMware products as referenced in such materials ("VMware Software").  This VDDK is intended to serve as a guide for writing programs to interact with the VMware Software.

2.	Subject to the restrictions below, you may download and make a reasonable number of copies of the VDDK contents for your personal use solely for the purpose of creating software that communicates with VMware Software ("Developer Software").

3.	Restrictions:  You may not (1) use the VDDK to design or develop anything other than Developer Software; (2) make any more copies of the VDDK than are reasonably necessary for the authorized  internal use and backup and archival purposes; (3) modify, create derivative works of, reverse engineer, reverse compile, or disassemble the VDDK, except that you may modify and create derivative works of the sample code in connection with Developer Software; (4) distribute, sell, lease, rent, lend, or sublicense any part of the VDDK to any third party except as designated herein and as necessary to distribute Developer Software; (5) use the VDDK to (a) design or develop software or service to circumvent,
enable, modify or provide access, permissions or rights which would violate the technical restrictions of VMware Products, any additional licensing terms provided by VMware via product documentation, email notification and/or policy change on VMware website, and/or the terms of the End User License Agreements of VMware products; (b) disable, remove, over-ride or modify the display of any VMware product End User License Agreements to the end customers; and (c) to upload or otherwise transmit any material containing software viruses or other computer code, files or programs designed to intenupt, destroy, or limit the functionality of any software or hardware.

The restrictions in this Section 3 shall not apply if and to the extent they contradict mandatory local law (including, but not limited to, law implementing the EC Software Directive) provided that, before you exercise any rights that you believe to be entitled to based on mandatory law, you provide VMware with 30 days prior written notice at SDK_Legal@vmware.com  and provide all reasonably requested information to allow VMware to assess your claim and, at VMware's sole discretion, to provide alternatives that reduce any adverse impact on VMware's intellectual property or other rights.

Distribution Requirements.   You agree to complete the questionnaire attached herein as Exhibit A and submit it to VMware for Developer Software that contains any part of the VDDK prior to the distribution of your Developer Software.  If you want to distribute a different Developer Software (not a later release or version of the same Developer Software for which you have submitted an Exhibit A) that contained any part of the VDDK, an amendment to this Agreement is required.  Failure to do so is a breach of this VDDK Agreement and may result in the immediate termination of the VDDK Agreement.

4.	Indemnification.  You agree to defend, indemnify and hold harmless VMware, and any of its  directors, officers, employees, affiliates or agents, from and against any and all claims, losses, damages, liabilities and other expenses (including reasonable attorneys' fees), related to or arising from your use of
the VDDK, modification of the VDDK, distribution of the VDDK binary codes, your Developer Software or breach of this VDDK Agreement.

5.	VMware retains ownership of the VDDK, including without limitation all copyrights and other intellectual prope1ty rights therein.  You may not represent that the programs you develop using the VDDK are certified or otherwise endorsed by VMware.  You may not use the VMware name or any other trademarks or service marks of VMware in connection with programs that you develop using the VDDK.

6.	Any open source software in the VDDK is provided under the terms of the open source license agreement or copyright notice accompanying such open source software in the VDDK.

7.	VMware may provide you with limited support services for the VDDK and you agree to cooperate with VMware to resolve any issues with your Developer Software including the use of the latest available
version of the VDDK.  VMware is not obligated to provide any maintenance, technical or other support to end users of the Developer Software in connection with the VDDK. You agree to provide such maintenance, technical or other support to end users of your Developer Software.  If you have purchased support and/or subscription services for a VMware product, such support and/or subscription services
shall not apply to the VDDK or your use of the VDDK.

8.	Term, Termination and Changes: This Agreement shall continue as long as you are in compliance with the terms specified herein or until otherwise terminated.  You or VMware may terminate this Agreement for any reason at any time.  You agree, upon termination, to destroy all copies of the VDDK within your possession  or control and cease all distribution of Developer Software which contains any  part of the VDDK, unless otherwise agreed to by VMware in writing. The Limitations of Warranties, Liability and Indemnification section set out in this Agreement shall survive any termination or expiration of this Agreement.

9.	Limitations of Warranties and Liability:   THE VDDK IS PROVIDED "AS IS" WITHOUT ANY WARRANTIES OF ANY KIND.    TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, VMWARE DISCLAIMS  ANY IMPLIED WARRANTIES,  INCLUDING, WITHOUT LIMITATION, ANY IMPLIED WARRANTIES  OF MERCHANTABILITY,  FITNESS FOR A PARTICULAR  PURPOSE AND NON-INFRINGEMENT  OF INTELLECTUAL  PROPERTY RIGHTS.

TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT WILL VMWARE BE LIABLE FOR ANY LOST PROFITS OR BUSINESS OPPORTUNITIES, LOSS OF USE, BUSINESS INTERRUPTION,  LOSS OF DATA, OR ANY OTHER INDIRECT, SPECIAL, INCIDENTAL,  OR CONSEQUENTIAL  DAMAGES ARISING OUT OF THE VDDK OR YOUR USE OF THE VDDK, 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 INCIDENT AL DAMAGES, THE PRECEDING  LIMITATION MAY NOT APPLY TO YOU.

VMWARE'S LIABILITY ARISING OUT OF THE VDDK PROVIDED HEREUNDER WILL NOT, IN ANY EVENT, EXCEED US$5.00.

THE FOREGOING LIMITATIONS  SHALL APPLY TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE  LAW, REGARDLESS  OF WHETHER VMWARE HAS BEEN ADVISED  OF THE POSSIBILITY  OF SUCH DAMAGES AND REGARDLESS  OF WHETHER ANY REMEDY FAILS OF ITS ESSENTIAL PURPOSE.
 
10.	These terms are governed by the laws of the State of California and the United States of America without regard to conflict of laws principles. You may not assign any part of this Agreement without the prior written consent of VMware.  Any attempted assignment without consent shall be void. These terms constitute the entire agreement between you and VMware with respect to the VDDK, and supersede all prior written or oral communications, understandings and agreements. Any modification  or waiver of these terms must be in writing to be effective. If any provision of these terms is found to be invalid or unenforceable, the remaining terms will continue to be valid and enforceable to the fullest extent permitted by law.

