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PivotalSDKLicenseAgreement-ver08192016.txt
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PivotalSDKLicenseAgreement-ver08192016.txt
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PIVOTAL SOFTWARE DEVELOPMENT KIT LICENSE AGREEMENT
This Pivotal Software Development Kit Agreement (“SDK EULA”) is an agreement to license a Software Development Kit between You (the individual or legal entity that is a Customer or active member of the Pivotal Partner Program, referred to herein as “You”) and Pivotal (meaning (i) Pivotal Software, Inc., if You are located in the United States; and (ii) the local Pivotal sales subsidiary, if You are located in a country outside the United States in which Pivotal has a local sales subsidiary; and (iii) Pivotal Software International (subject to Section 12 below), if You are located in a country outside the United States in which Pivotal does not have a local sales subsidiary (in each case, referred to herein as “Pivotal”). Unless otherwise set forth in a signed agreement between Pivotal (or its distributors) and You, by downloading, installing or using the SDK, You are agreeing to these terms.
1. DEFINITIONS
1. “Affiliate” means a legal entity that is controlled by, controls, or is under common control of Pivotal or You, with “control” meaning more than 50% of the voting power or ownership interests then outstanding of that entity.
2. “Confidential Information” means the terms of this SDK EULA, the SDK and all confidential and proprietary information of Pivotal or You, including without limitation, all business plans, product plans, financial information, software, designs, and technical, business and 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. Confidential Information does not include information that is (i) rightfully in the receiving party’s possession without prior obligation of confidentiality from the disclosing party; (ii) a matter of public knowledge (or becomes a matter of public knowledge other than through breach of confidentiality by the other party); (iii) rightfully furnished to the receiving party by a third party without confidentiality restriction; or (iv) independently developed by the receiving party without reference to the disclosing party's Confidential Information.
3. “Customer” means an end user of the Pivotal Products that is current on subscription software fees under an active Subscription License.
4. “Developer Software” means the software You create using the SDK solely for the purpose of communicating, interoperating or working exclusively with Pivotal Products.
5. “Distributable Code” means SDK code designated by Pivotal at https://network.pivotal.io or in an accompanying README file as being distributable by You as part of Developer Software.
6. “Modifiable Code” means SDK code designated by Pivotal at https://network.pivotal.io or in an accompanying README file as being modifiable by You as part of Developer Software.
7. “Open Source Software” or “OSS” means software components licensed under a license approved by the Open Source Initiative or similar open source or freeware license and included in, embedded in, utilized by, provided or distributed with the SDK.
8. “Partner” means a current member of either the Pivotal Ready Partner Program or the Pivotal Partner Program.
9. “Pivotal Network” means Pivotal’s online directory of Web-based, on-demand products and downloadable software products available at https://network.pivotal.io. Among other things, the Pivotal Network allows You to list, and allows end users to test drive, review and install, Developer Software.
10. “Pivotal Products” means Pivotal computer programs listed in the Pivotal Product Guide available at http://www.pivotal.io/product-guide.
11. “Pivotal’s Trademark Guidelines” means the current version of the guidelines for the use of the visual aspects and trademarks of Pivotal, the SDK and the Pivotal Products as set out at http://www.pivotal.io/trademark-guidelines and which may be amended by Pivotal from time to time.
12. “Quote” means a pricing quote issued either by Pivotal or by a reseller, distributor, system integrator, service provider, independent software vendor, value-added reseller, OEM or other partner authorized by Pivotal to license Pivotal Products to end users.
13. “Software Development Kit” or “SDK” means the software, materials, interface definitions, documentation, sample utility applications and sample code regarding programming interfaces to one or more Pivotal Products and intended to be used by You to create Developer Software.
14. “Subscription License” means (a) access to Pivotal Products subject to the licensing terms and restrictions set forth in the Pivotal Product Guide available at http://www.pivotal.io/product-guide; and (b) Support Services, which include any minor and major releases and upgrades introduced with respect to the Subscription License set forth in the applicable Quote on a “when and if available” basis, all during the Subscription Period.
15. “Subscription Period” means the period starting upon notification to Customer that Pivotal Products are available for download, and continues for the period specified in the applicable Quote.
16. “Territory” means the country or countries where such SDK is downloaded.
2. PURPOSE. The SDK may only be used by Partners and Customers to develop software that (a) interacts exclusively with Pivotal Products and (b) is either used internally or distributed via Pivotal Network. Any use of the SDK beyond this stated purpose is prohibited unless otherwise explicitly provided for herein or set forth in a separate signed agreement between Pivotal and You.
3. LICENSE
1. License Grant. Subject to the restrictions below, You may download and make a reasonable number of copies of the SDK to create Developer Software.
1. Distributable Code. You may use and merge all or portions of the Distributable Code with your Developer Software. Any merged portion of any "distributable code" is subject to this SDK EULA.
2. Modifiable Code. You may modify or create derivative works of all or portions of the Modifiable Code.
3. Redistribution of Distributable Code and Modifiable Code. You are permitted to distribute (i) the Distributable Code and (ii) the modified or derivative works of the Modifiable Code, solely as part of Your Developer Software for non-commercial or commercial use, provided that You shall only distribute such code subject to a license agreement that protects Pivotal and its licensors’ interests consistent with the terms contained in this SDK EULA. All redistributions must be via the Pivotal Network and a separate agreement may be required to list Your Developer Software.
1. License Restrictions. You agree that you will not (i) use the SDK to create, design or develop anything other than Developer Software; (ii) make any more copies of the SDK than are reasonably necessary for the authorized use and backup and archival purposes; (iii) modify, create derivative works of, reverse engineer, reverse compile, or disassemble the SDK except as expressly permitted in Section 3.1; (iv) distribute, sell, lease, rent, lend, or sublicense any part of the SDK to any third party except as expressly permitted in Section 3.1; (v) use the SDK in any manner to circumvent any technical restrictions of Pivotal Products or violate any additional licensing terms applicable to Pivotal Products that Pivotal provides through product documentation, email notification, on the Pivotal website or in the terms of Pivotal’s End User License Agreements; (vi) disable, remove, override or modify the display of any Pivotal Product End User License Agreement that the Pivotal Products present to end users; (vii) use, link, distribute, combine or integrate any portion of the SDK with any OSS governed by license terms that require that the SDK or the Pivotal Products to be: (a) disclosed or distributed in source code form; (b) reproduced or redistributed at no or minimal charge; (c) permitted to be reverse engineered; or (d) used only for non-commercial purposes, or (viii) upload or otherwise transmit any material containing software viruses or other computer code, files or programs designed to interrupt, destroy, or limit the functionality of any software or hardware.
2. Open Source Software. OSS components provided with the SDK are licensed to You under the terms of the applicable license agreements included with such open source software components. The open source software licenses can be found in the open_source_licenses.txt file, other materials accompanying the SDK, the documentation, the corresponding source files, at http://www.pivotal.io/open-source, or available by sending a written request, with Your name and address, to: Pivotal Software, Inc., Open Source Files Request, Attn: General Counsel, 3495 Deer Creek Road, Palo Alto, CA 94903. This offer to obtain a copy of the licenses/source files is valid for 3 years from the date You first acquired access to the SDK.
3. Decompilation. If applicable laws in the Territory grant an express right to decompile software to render it interoperable with other software, You may decompile the SDK, but must first request Pivotal to do so, providing 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 SDK, or offer to provide alternatives to protect Pivotal’s proprietary rights therein.
4. Feedback. You agree that any feedback or suggestions (“Feedback”) given hereunder is voluntary. If Feedback is provided, You grant to Pivotal a nonexclusive, irrevocable, worldwide, royalty-free license with rights to sublicense under Your intellectual property rights, to freely use, disclose, reproduce, license or otherwise distribute the Feedback relating to the Pivotal Products, the SDK, or any other products and services, without any obligations or restrictions of any kind, including intellectual property rights.
5. Reserved Rights. Pivotal retains all right, title, and interest in and to the SDK and Documentation, all related intellectual property rights, and all rights not expressly granted to You in this SDK EULA.
4. TRADEMARKS
1. No Trademark License. You may not use Pivotal’s name, trademarks or service marks in connection with Developer Software in a way that suggests Developer Software is certified or endorsed by Pivotal.
2. Trademark Guidelines. You must comply with Pivotal’s Trademark Guidelines when naming, marketing and otherwise distributing Developer Software. Upon termination of this SDK EULA, exit from either of Pivotal’s partner programs so as to lose Your status as a Partner, expiration or termination of an active software subscription or upon any violation of Pivotal’s Trademark Guidelines, all trademark usage rights shall immediately terminate and any goodwill accruing from such use of the trademark and/or logo shall inure to the benefit of Pivotal.
5. NO SDK SUPPORT. Although Pivotal may elect, in its sole discretion, to provide limited support for Your use of the SDK, You are not entitled under this SDK EULA to receive any Pivotal support or subscription services for the SDK or any other services from Pivotal. Separately purchased support and/or subscription services for a Pivotal Product will similarly provide no support for the SDK.
6. TERM AND TERMINATION
1. Term. This SDK EULA shall continue as long as (a) You are in compliance with the terms specified herein and (b) remain either a current (i) Customer, (ii) member of the Pivotal Partner Program or (iii) the Pivotal Ready Partner Program, or (c) until otherwise terminated.
2. Termination. You or Pivotal each may terminate this SDK EULA for any or no reason at any time. You agree, upon termination, to destroy all copies of the SDK within Your possession or control. All provisions of this SDK EULA will survive any termination or expiration if by its nature and context it is intended to survive.
7. CONFIDENTIALITY. Each party shall (a) use the other party’s Confidential Information only for exercising rights and performing obligations in connection with this SDK EULA; and (b) protect from disclosure any Confidential Information disclosed by the other party for a period commencing upon the disclosure date until 3 years thereafter. Notwithstanding the foregoing, either party may disclose Confidential Information: (i) to an Affiliate to fulfill its obligations or exercise its rights under this SDK EULA 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 Your data arising from a data security breach that is stored within Developer Software created using the SDK. You are solely responsible for all obligations to comply with laws applicable to Your use of the SDK, including without limitation any personal data processing. Pivotal may collect, use, store and transmit technical and related information about Your use of the SDK, including server internet protocol address, hardware identification, operating system, application software, peripheral hardware, and SDK usage statistics, to facilitate the provisioning of updates, support, invoicing, and online services. You are responsible for obtaining all consents required to enable Pivotal to exercise its confidentiality rights, in compliance with applicable law.
8. DISCLAIMER OF WARRANTY. THE SDK IS PROVIDED "AS IS" WITHOUT ANY WARRANTIES OF ANY KIND. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, PIVOTAL AND ITS DISTRIBUTORS MAKE NO OTHER WARRANTIES OF ANY KIND, AND DISCLAIM ALL IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE AND NON-INFRINGEMENT, AND ANY WARRANTY ARISING BY STATUTE, OPERATION OF LAW, COURSE OF DEALING OR PERFORMANCE, OR USAGE OF TRADE. PIVOTAL AND ITS DISTRIBUTORS DO NOT WARRANT THAT THE SDK WILL OPERATE UNINTERRUPTED, THAT IT WILL BE FREE FROM DEFECTS OR THAT IT WILL MEET YOUR REQUIREMENTS.
9. LIMITATION OF LIABILITY. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT WILL PIVOTAL OR ITS DISTRIBUTORS 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 SDK OR YOUR USE OF THE SDK, UNDER ANY THEORY OF LIABILITY, WHETHER BASED IN CONTRACT, TORT, NEGLIGENCE, PRODUCT LIABILITY, OR OTHERWISE. PIVOTAL’S AND ITS DISTRIBUTORS ‘ LIABILITY ARISING OUT OF THIS SDK EULA AND THE SDK PROVIDED HEREUNDER WILL NOT, IN ANY EVENT, EXCEED US$100.00. THE FOREGOING LIMITATIONS SHALL APPLY TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, REGARDLESS OF WHETHER PIVOTAL HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES AND REGARDLESS OF WHETHER ANY REMEDY FAILS OF ITS ESSENTIAL PURPOSE.
10. INDEMNIFICATION. You agree to defend, indemnify and hold harmless Pivotal, and any of its directors, officers, employees, affiliates and agents, from and against any and all claims, losses, damages, liabilities and other expenses (including reasonable attorneys' fees), arising from Your modification of the "modifiable code," the distribution or use of Your Developer Software by You or anyone else, and Your breach of this SDK EULA.
11. EXPORT CONTROL. You acknowledge that the SDK is of United States origin, is provided subject to the U.S. Export Administration Regulations, may be subject to the export control laws of the applicable territory, and that diversion contrary to applicable export control laws is prohibited. You represent, warrant and covenant that (1) You are not, and are not acting on behalf of, (i) 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 (ii) 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’s Denied Persons List or Entity List; and (2) You will not permit the SDK to be used for any purposes prohibited by law, including but not limited to any prohibited development, design, manufacture or production of missiles or nuclear, chemical or biological weapons.
12. DATA PRIVACY
1. Consent for Collection and Use of Technical Data. You agree that Pivotal may periodically collect, process and store technical and related information about Your device, system, application, peripherals and Your use of the SDK, including without limitation: internet protocol address, hardware identification, operating system, application software, peripheral hardware, number of active plugins and software development kits, the successful installation and launch of SDK, and SDK usage statistics (collectively, "Technical Data"). Pivotal will use Technical Data for internal statistical and analytical purposes to facilitate support, invoicing or online services, the provisioning of updates, and the development of Pivotal products and services. Pivotal may transfer Technical Data to other companies in the Pivotal worldwide group of companies from time to time.
2. Log Files. You acknowledge that correspondence and log files generated in conjunction with a request for support services may contain sensitive, confidential or personal information. You are solely responsible for taking the steps necessary to protect such data, including obfuscating the logs or otherwise guarding such information prior to sending it to Pivotal.
13. GENERAL. This SDK EULA is governed by California law. Each Party hereby expressly consents to the personal jurisdiction of either the California courts or the United States District Courts located in the State of California and agrees that any action relating to or arising out of this SDK EULA be instituted and prosecuted only in the Superior Court of the County of San Francisco or 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. Except to the extent expressly set forth to the contrary in this SDK EULA, this SDK EULA is not intended to confer upon any person other than the parties hereto any rights or remedies. The parties are independent contractors. This SDK EULA is the complete statement of the parties’ agreement with regard to the subject matter hereof and may be modified only by written agreement. You shall not assign or transfer any rights under this SDK EULA or delegate any of its duties hereunder, by operation of law or otherwise, without Pivotal’s prior written consent, and any such action in violation of this provision is null and void, and of no force, and a breach of this SDK EULA. Pivotal may assign or transfer this SDK EULA 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 SDK EULA shall inure to the benefit of and be binding upon the respective permitted successors and assigns. If any part of this SDK EULA is held unenforceable, the validity of the remaining provisions shall not be affected.
14. COUNTRY SPECIFIC TERMS [INTERNATIONAL]. The terms in this Section 14 apply only when Pivotal means Pivotal Software International and for the avoidance of doubt these terms below shall replace the terms in the SDK EULA above as specifically stated and all other terms shall remain unchanged:
1. Section 8 (DISCLAIMER OF WARRANTY). The last sentence of Section 8 shall be deleted and replaced with:
EXCEPT AS EXPRESSLY STATED IN THE APPLICABLE WARRANTY SET FORTH IN THIS SDK EULA, 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.
2. Section 9 (LIMITATION OF LIABILITY). The entire Section is deleted and replaced with:
1. 9. LIMITATION OF LIABILITY.
1. 9.1. 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.
2. 9.2. Subject always to subsection 9.1, the liability of Pivotal (including its suppliers) to You under or in connection with the SDK, whether arising from negligent error or omission, breach of contract, or otherwise shall not exceed the lesser of (a) fees You paid under this Agreement for the specific service (calculated on an annual basis, when applicable) or software during the twelve (12) months preceding Pivotal’s notice of such claim; or (b) one million euros (€1,000,000).
3. 9.3.In no event shall Pivotal (including its suppliers) be liable to You however that liability arises, for the following losses, whether direct, consequential, special, incidental, punitive or indirect: (a) 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 (b) indirect, consequential, exemplary or incidental or special loss or damage; and/or (c) damages, costs and/or expenses due to third party claims; and/or (d) loss or damage due to Your failure to comply with obligations under this SDK EULA, failure to do back-ups of data or any other matter under the control of You 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 9, the term “loss” shall include a partial loss, as well as a complete or total loss.
4. 9.4.The parties expressly agree that should any limitation or provision contained in this Section 9 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 9.
5. 9.5.The parties expressly agree that any order for specific performance made in connection with this SDK EULA in respect of Pivotal shall be subject to the financial limitations set out in sub-section 9.2.
6. 9.6.You waive the right to bring any claim arising out of or in connection with this SDK EULA more than twenty-four (24) months after the date of the cause of action giving rise to such claim.
7. 9.7. OBLIGATIONS IN RESPECT OF PRESERVATION OF DATA. During the term of the SDK EULA, You shall:
1. (a) 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;
2. (b) 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;
3. (c) 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; and
4. (d) 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.
3. Section 13 (General) The first two sentences of Section 13 shall be deleted and replaced with:
1. This SDK EULA is governed by the laws of the Republic of Ireland, excluding its conflict of law rules. Each party hereby expressly consents to the personal jurisdiction of the Dublin Courts and agrees that any action relating to or arising out of this SDK EULA be instituted and prosecuted only in the Dublin Courts.
© 2016 PIVOTAL SOFTWARE, INC. All Rights Reserved. ver08192016
ALSO AVAILABLE @ https://network.pivotal.io/legal_documents/pivotal-sdk-eula