VMware

VMware EDUCATION AND TRAINING SERVICES TERMS AND CONDITIONS

These Terms and Conditions will govern the Education and Training Services purchased under the applicable Statement of Work (“SOW”). The specific business details and description of the work to be performed will be set forth in each Education and Training Services SOW executed by both Parties.

  1. Education and Training Services.

    (a)

    Education and Training Services (the “Services”). VMware will provide the following Services as Customer requests: (1) instructor-led classroom and onsite training, (2) self-paced training and digital learning subscription services (3) instructor services.

  2. Course Materials.

    (a)

    Intellectual Property.

    (b)

    Grant of Copyright Rights in the Course Materials. Subject to Customer’s payment of the applicable amounts due under the applicable SOW and to Customer’s compliance with the SOW, Customer will own all copyright to the portion of the Course Materials consisting solely of written reports, analyses, and other working papers (other than VMware Retained Materials), prepared and delivered by VMware to Customer under the applicable SOW, provided that Customer will exercise its rights for Customer’s internal business operations only and will not resell or distribute the Course Materials to any third party.

    (c)

    Grant of License Rights in the Course Materials. For VMware Retained Materials and the portion of the Course Materials that consists of scripts, code, templates, and all other materials developed by VMware in connection with the Education and Training Services, VMware grants Customer a non-exclusive, non-transferrable, irrevocable (except in case of breach of this Agreement or the applicable SOW) perpetual license, without the right to sublicense, to use and copy, for Customer’s internal business operations only (the “Course Materials License”). The Course Materials License does not apply to (i) Customer Materials, and (ii) any other products or items licensed, or otherwise provided, under a separate agreement. “VMware Retained Materials” means (i) materials (other than products) developed or obtained by or for VMware independently of the Consulting Services, and (ii) subsets or modules of the Deliverables that by themselves provide generic technical information not unique to Customer’s business.

    (d)

    Customer Materials. Any Customer Materials used by VMware in connection with an applicable SOW remain Customer property. Pursuant to Customer’s intellectual property rights in the Customer Materials, Customer grants VMware a non-exclusive, non-transferrable right to use the Customer Materials solely for the benefit of Customer in the performance of Education and Training Services pursuant to the applicable SOW. Customer warrants that it has the necessary rights to provide the Customer Materials to VMware so that VMware can access, use and modify them as necessary for VMware’s performance of the Education and Training Services. “Customer Materials” means any materials or technology provided to VMware by Customer in connection with the Education and Training Services.

    (e)

    Reservation of other Intellectual Property Rights.. Each Party reserves for itself all other Intellectual Property Rights that it has not expressly granted to the other. All rights to VMware Retained Materials remain VMware’s sole property. VMware will not be limited in developing, using or marketing services or products that are similar to the Deliverables (other than those portions of the Deliverables where ownership of the copyright has been granted to Customer) or the Consulting Services, or, subject to VMware’s confidentiality obligations to Customer, in using the Deliverables or performing similar Consulting Services for any other projects or parties. General License Grant. Upon payment in full, VMware grants the Customer a non-exclusive, non-transferrable, perpetual license, with no right to sublicense, to use the course materials solely for the Customer’s internal business operations.

    (f)

    Use of Course Materials. For onsite training and for classroom & live online training, VMware will deliver the lecture and the lab guides for courses in an eBook format and not as printed materials. Customer agrees that VMware may limit printing of the eBooks to a specified number of copies. In order to use eBooks effectively, each work station must be configured by Customer with either one 23” monitor or two 17” monitors, one of which may be a slave monitor. Alternatively, Customer can allow each trainee to use personal work stations or tablets (iPads or Android OS) as needed.

    (g)

    Access to eBooks. Where applicable, VMware will deliver to Customer a list of eBook redemption codes assigned to each trainee scheduled to attend the training, along with instructions on how to configure their devices and download their eBooks. For onsite training, the Customer will be required to provide the VMware onsite coordinator listed in the order form detailing each trainee’s name, email address, company name, and physical ship-to address at least five days prior to the scheduled start of the training. If there is any substitution of a trainee, then a new spreadsheet with that trainee’s information (and an email detailing which student is being replaced) must be sent to the VMware onsite coordinator as soon as possible before the class starts. The replaced trainees will have their eBook licenses de-activated and the new trainees will receive new redemption codes. The new trainees will not be able to attend the training before they have installed their eBooks. Customer acknowledges that the eBook license is assigned to an individual trainee and cannot be re-assigned to anyone else.

    (h)

    Exceptions. Recipient's obligations under Section 3(b) with respect to any of Discloser's Confidential Information will terminate if Recipient can show by written records that this information: (i) was already rightfully known to Recipient at the time of disclosure by Discloser; (ii) was disclosed to Recipient by a third party who had the right to make the disclosure without any confidentiality restrictions; (iii) is, or through no fault of Recipient has become, generally available to the public; or (iv) was independently developed by Recipient without access to, or use of, Discloser's Confidential Information. In addition, Recipient will be allowed to disclose Discloser’s Confidential information to the extent that the disclosure is required by law or by order of a court or similar judicial or administrative body, provided that Recipient notifies (to the extent permitted by law) Discloser of that required disclosure promptly and in writing and cooperates with Discloser, at Discloser’s request and expense, in any lawful action to contest or limit the scope of that required disclosure.

    (i)

    Permitted Disclosure. Notwithstanding anything to the contrary, neither Party will disclose these Terms and Conditions and an applicable SOW to any third party, without a prior written consent of the other Party. Notwithstanding the foregoing each Party may disclose the Confidential Information without a prior written consent of the other Party: (i) as required by any court or other governmental body; (ii) as otherwise required by law; (iii) to legal counsel of the Parties (iv) in confidence, to their respective accountants, banks or financing sources and other professional advisors; (v) in connection with the enforcement of these Terms and Conditions and the rights under an applicable SOW; (vi) in confidence, in connection with an actual or proposed merger, acquisition, or similar transaction, or (vii) if compelled by law, in which case the Party compelled to make the disclosure will use its best efforts to give the other Party advance notice of the requirement.

  3. Confidentiality

    (a)

    Definition. “Confidential Information” means information or materials provided by one Party (“Discloser”) to the other Party (“Recipient”) which are in tangible form and labeled “confidential” or the like, or, information which a reasonable person knew or should have known to be confidential in the circumstances. The following information will be considered Confidential Information whether or not marked or identified as confidential: any personally identifiable information (such as names of Discloser’s customers), or the physical address of any equipment contained in any information collected about Discloser’s computing environment, Discloser’s business operations, pricing, discounts, source code, product roadmaps or strategic marketing plans.

    (b)

    Protection. Recipient may use Confidential Information of Discloser: (i) to exercise its rights and perform its obligations under these Terms and Conditions and an applicable SOW; or (ii) in connection with the Parties’ ongoing business relationship. Recipient will not use any Confidential Information of Discloser for any purpose not expressly permitted by these Terms and Conditions, and will disclose the Confidential information of Discloser only to Recipient’s employees or contractors who have a “need to know” that Confidential Information for purposes of an applicable SOW and who are under a duty of confidentiality no less restrictive than Recipient’s duty under these Terms and Conditions. Recipient will protect Discloser’s Confidential Information from unauthorized use, access, or disclosure in the same manner as Recipient protects its own confidential or proprietary information of a similar nature but with no less than reasonable care.

    (c)

    Exceptions. Recipient's obligations under Section 3(b) with respect to any of Discloser's Confidential Information will terminate if Recipient can show by written records that this information: (i) was already rightfully known to Recipient at the time of disclosure by Discloser; (ii) was disclosed to Recipient by a third party who had the right to make the disclosure without any confidentiality restrictions; (iii) is, or through no fault of Recipient has become, generally available to the public; or (iv) was independently developed by Recipient without access to, or use of, Discloser's Confidential Information. In addition, Recipient will be allowed to disclose Discloser’s Confidential information to the extent that the disclosure is required by law or by order of a court or similar judicial or administrative body, provided that Recipient notifies (to the extent permitted by law) Discloser of that required disclosure promptly and in writing and cooperates with Discloser, at Discloser’s request and expense, in any lawful action to contest or limit the scope of that required disclosure.

    (d)

    Permitted Disclosure. Notwithstanding anything to the contrary, neither Party will disclose these Terms and Conditions and an applicable SOW to any third party, without a prior written consent of the other Party. Notwithstanding the foregoing each Party may disclose the Confidential Information without a prior written consent of the other Party: (i) as required by any court or other governmental body; (ii) as otherwise required by law; (iii) to legal counsel of the Parties (iv) in confidence, to their respective accountants, banks or financing sources and other professional advisors; (v) in connection with the enforcement of these Terms and Conditions and the rights under an applicable SOW; (vi) in confidence, in connection with an actual or proposed merger, acquisition, or similar transaction, or (vii) if compelled by law, in which case the Party compelled to make the disclosure will use its best efforts to give the other Party advance notice of the requirement.

  4. Warranties and Limitation of Liability.

    (a)

    VMware Warranty. VMware warrants that the Services will be performed in a workmanlike manner in accordance with the standards of the industry. Customer must notify VMware of any alleged breach of this warranty within 10 days from the completion of the applicable Services. VMware’s entire liability and Customer’s sole remedy for VMware’s breach of this warranty will be for VMware to, at its option, (i) use reasonable efforts to correct that breach, or (ii) terminate an applicable SOW and refund the portion of any fees received that correspond to that breach.

    (b)

    Disclaimer of Warranties. THE EXPRESS WARRANTY SET FORTH IN SECTION 4(a) ABOVE IS IN LIEU OF ALL OTHER WARRANTIES, AND, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, VMWARE DISCLAIMS, ALL OTHER WARRANTIES, WHETHER EXPRESS, IMPLIED OR STATUTORY, INCLUDING ANY IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE, TITLE, NONINFRINGEMENT AND ANY WARRANTIES ARISING FROM COURSE OF DEALING OR COURSE OF PERFORMANCE REGARDING OR RELATING TO THE SERVICES, OR ANY OTHER MATERIALS FURNISHED OR PROVIDED TO CUSTOMER UNDER AN APPLICABLE SOW. VMWARE WILL NOT BE LIABLE FOR ANY THIRD-PARTY SERVICES OR PRODUCTS IDENTIFIED OR REFERRED TO CUSTOMER BY VMWARE. NO EMPLOYEE, AGENT, REPRESENTATIVE OR AFFILIATE OF VMWARE HAS THE AUTHORITY TO BIND VMWARE TO ANY REPRESENTATIONS OR WARRANTIES OUTSIDE OF THESE TERMS AND CONDITIONS.

    (c)

    Limitation of Liability.

     

    (1)

    Limitation on Direct Damages. VMware’s total liability and Customer’s sole and exclusive remedy for a claim of any nature arising out of these Terms and Conditions or an applicable SOW, regardless of whether the claim is based on contract, tort, strict liability, or otherwise, will be limited to proven direct damages caused by negligence of VMware in an amount not to exceed (i) US$1,000,000, for damage to real or tangible personal property; and (ii) the fees paid to VMware for the Services from which claim the claim arises, for damage of any type not identified in (i) above or otherwise excluded hereunder.

     

    (2)

    Disclaimer of Liability. To the maximum extent permitted by applicable law, neither Party will be liable for any indirect, incidental, special, punitive or consequential damages, or any loss of profits, business opportunity, revenue, goodwill or data, even if advised of the possibility of those damages.

     

    (3)

    Limitation of Liability Exclusions.  The limitations of liability in this Section 4(c) will not apply to (i) Customer’s violation of VMware’s or its licensors’ Intellectual Property Rights or Customer’s use of the course materials or eBooks in a manner not expressly authorized by these Terms and Conditions and an applicable SOW; (ii) either Party’s breach of confidentiality under these Terms and Conditions and an applicable SOW; (iii) Customer’s payment obligations under the applicable SOW; or (iv) any liability which may not be excluded by applicable law] [For EMEA/APAC] The limitations of liability in this Section 4(c) will not apply to: (i) Customer’s liability for violation of VMware’s or its licensors’ Intellectual Property Rights or use of the course materials or eBooks by Customer in a manner not expressly authorized by these Terms and Conditions and an applicable SOW; (ii) VMware’s indemnification obligations under these Terms and Conditions and an applicable SOW; (iii) either Party’s liability for breaches of confidentiality under these Terms and Conditions and an applicable SOW; (iv) Customer’s payment obligations; (v) either Party’s liability for death or personal injury caused by its negligence; (vi) either Party’s liability for any fraudulent pre-contractual misrepresentations made by one party on which the other party can be shown to have relied; or (vii) any liability which cannot be excluded by applicable law.

     

    (4)

    Further Limitations. Customers may not bring a claim under these Terms and Conditions and an applicable SOW more than eighteen (18) months after the cause of action arises.

  5. Fees and Payment.

    (a)

    Payment. VMware will provide the applicable Services for the fees described in the SOW, plus applicable taxes and travel expenses in accordance with VMware’s travel and expense policy, if travel is necessary. Invoicing occurs upon the completion of the applicable Services, or approval of travel expenses, and must be paid by Customer within thirty (30) days of the date of invoice. If Customer uses pre-purchased VMware Consulting and Training Credits or Learning Credits (the “Credits”) as the means of payment, then upon the completion of the Services, or travel expenses, the Credits will be deducted from Customer’s balance. Customer is responsible for ensuring that its purchase order (“PO”) issued to VMware for the Services reflects the pricing set forth in the order form. In addition, VMware will invoice the Customer for any applicable materials and expense reimbursement. Once VMware fulfills its obligations under a PO from Customer, VMware will have no liability for any pricing in Customer’s PO that is inconsistent with the pricing set forth in the order form. Customer agrees that POs do not have to be signed by Customer to be valid and enforceable. All fees paid by Customer are non-refundable.

    (b)

    Taxes.  [For NASA] Fees are exclusive of Taxes and Customer will pay or reimburse VMware for all Taxes arising out of the applicable SOW. “Taxes” includes any sales, use and other taxes (other than taxes on VMware’s income), export and import fees, custom duties, value added taxes, and similar charges applicable to the Services as described in the SOW that are imposed by any government or other authority. If Customer is required under applicable law to pay its local taxing authority any withholding tax, charge or levy in respect of any payments due to VMware hereunder (“Withholding Tax"), Customer may deduct such Withholding Tax from applicable payments due to VMware provided that (a) Customer cooperates with VMware to minimize any such Withholding Tax, including obtaining treaty exemption certificates and filing for a tax ruling with the applicable taxing authority and (b) such withheld amounts shall be paid to the appropriate taxing authority by Customer, and Customer shall provide VMware with (i) copies of all official government issued receipts issued by the said taxing authority and all such other evidence as is reasonably necessary for VMware to establish that such taxes have been paid, and (ii) a schedule showing the invoice number and gross amounts to which such receipts relate (collectively, “Payment Documentation”). Such Payment Documentation must be provided to VMware by email to: ar@vmware.com within forty-five (45) days of the date Customer remits payment for each applicable VMware invoice. A failure to pay an invoice in full without submitting the Payment Documentation to VMware will cause interest to accrue on unpaid and undocumented amounts. Customer confirms that VMware can rely on the Customer address set forth in the applicable SOW as being the place of supply for tax purposes. [For EMEA/APAC] Fees are exclusive of Taxes and Customer will pay or reimburse VMware for all Taxes arising out of the applicable SOW. “Taxes” includes any sales, use and other taxes (other than taxes on VMware’s income), export and import fees, custom duties, value added taxes, and similar charges applicable to the Services as described in the SOW that are imposed by any government or other authority. If Customer is required under applicable law to pay its local taxing authority any withholding tax, charge or levy in respect of any payments due to VMware hereunder (“Withholding Tax"), Customer may deduct such Withholding Tax from applicable payments due to VMware provided that (a) Customer cooperates with VMware to minimize any such Withholding Tax, including obtaining treaty exemption certificates and filing for a tax ruling with the applicable taxing authority and (b) such withheld amounts shall be paid to the appropriate taxing authority by Customer, and Customer shall provide VMware with (i) copies of all official government issued receipts issued by the said taxing authority and all such other evidence as is reasonably necessary for VMware to establish that such taxes have been paid, and (ii) a schedule showing the invoice number and gross amounts to which such receipts relate (collectively, “Payment Documentation”). Such Payment Documentation must be provided to VMware by email to: ar@vmware.com within forty-five (45) days of the date Customer remits payment for each applicable VMware invoice. A failure to pay an invoice in full without submitting the Payment Documentation to VMware will cause interest to accrue on unpaid and undocumented amounts. Where VMware is making a supply of services under Article 44 of VSAT Directive 2006/112/EC, Customer confirms that VMware can rely on the “bill to” name and address as per the Order issued by Customer to VMware as being the place of supply for VAT purposes where Customer has established its business.

    (c)

    Late Payments. All amounts not paid when due will incur a late charge equal to the lesser of one and one-half percent (1.5%) per month, or, the maximum amount allowed by applicable law. VMware may suspend performance of the Services while any payment is delinquent.

    (d)

    Currency. All charges and fees provided for in the applicable SOW will be in the currency specified in the applicable SOW.

    (e)

    Canceling/Rescheduling Services before Commencement. A minimum of fifteen (15) business days’ written notice is required for rescheduling or canceling the Services prior to the commencement. Only incurred expenses (e.g., airfare) will be owed and invoiced if that notice is given. The entire payment and incurred expenses are owed if an applicable SOW is canceled with less than that notice.

  6. Term and Termination.

    (a)

    Term. These Terms and Conditions takes effect on the Effective Date and will continue until terminated by the Parties or until any incomplete SOW(s) in existence on the termination date is completed, whichever is later.

    (b)

    Termination for Convenience. Either Party will have the right to terminate these Terms and Conditions at any time, without cause, by providing the other with a written notice, which termination will become effective upon the later of (i) thirty (30) days after receipt of the notice by the other Party or (ii) completion and payment for the Services set forth in any SOW(s) effective on the date of receipt of the termination notice. In addition, Customer may terminate any SOW thirty (30) days after VMware’s receipt of Customer’s written notice.

    (c)

    Other Termination. Either party may terminate these Terms and Conditions or an SOW if one of the following events occurs:

     

    (1)

    Termination For Breach. Notwithstanding Sections 6(c)(3) and 6(c)(6), either Party may terminate these Terms and Conditions or an applicable SOW immediately upon written notice if: (i) the other Party breaches any provision under these Terms and Conditions or an applicable SOW, which is not cured within thirty (30) days after giving written notice of that breach to the other Party; or (ii) the other Party commits a material breach of these Terms and Conditions or an applicable SOW that cannot be cured.

     

    (2)

    Non-payment. Notwithstanding Section 6(c)(1) above, Customer’s failure to pay an invoice when due will be sufficient cause for VMware’s termination of these Terms and Conditions and any SOW if Customer does not cure within ten (10) days of receipt of written notice of nonpayment from VMware. Further, VMware may, commencing on the date that notice is provided to Customer, suspend performance under the SOW for the duration of any period during which Customer is delinquent in making payment to VMware under any invoice.

     

    (3)

    Confidentiality Breach. Either Party may terminate these Terms and Conditions or an applicable SOW immediately upon issuance of a written notice to the other Party in the event of the other Party’s breach of its confidentiality duties under these Terms and Conditions.

    (d)

    Effect of Termination. Any provision will survive any termination or expiration if by its nature and context it is intended to survive, including provisions relation to payment of outstanding fees, confidentiality, warranties and limitation of liability. Customer will be responsible for payment to VMware for all Services rendered and expenses incurred prior to the effective termination date. In the event of termination under Section 6(c), VMware expressly disclaims liability for any resultant damages, delays, or any claims of Customer and disclaims any warranties made in these Terms and Conditions or an applicable SOW for the Services which have not been delivered as of the termination date.

  7. Miscellaneous.

    (a)

    Insurance. VMware will, for the term of an these Terms and Conditions and an applicable SOW, carry general and professional liability, automobile, and workers compensation insurance, for claims for personal injury (including death) or damage to tangible or real property, which may arise or result from VMware’s performance under the applicable SOW. VMware will provide Customer with its then-current Memorandum of Insurance upon reasonable request.

    (b)

    Assignment. Customer will not assign these Terms and Conditions, SOW or PO, or any right or obligation herein or delegate any performance without VMware’s prior written consent, which consent will not be unreasonably withheld. Any other attempted assignment or transfer by Customer will be void.

    (c)

    Governing Law.  [For NASA] These Terms and Conditions and the SOW(s) are governed by the laws of the State of California (excluding its conflict of law principles), and the federal laws of the United States. To the extent permitted by law, the state and federal courts located in Santa Clara County, California, will be the exclusive jurisdiction for disputes arising out of or in connection with these Terms and Conditions and a SOW. The UN Convention on Contracts for International Sale of Goods does not apply. [For EMEA/APAC] These Terms and Conditions and an applicable SOW are governed by the laws of England. The UN Convention on Contracts for the International Sale of Goods will not apply to these Terms and Conditions and an applicable SOW. The Parties hereby consent to the exclusive jurisdiction of English courts.]

    (d)

    Compliance with Laws; Export Control; Government Regulations. Each Party will comply with all laws applicable to the actions contemplated by these Terms and Conditions and an applicable SOW. All content, the Services and the technology included therein (collectively the “Materials”) provided under these Terms and Conditions and an applicable SOW are subject to governmental restrictions on (i) exports from the United States; (ii) exports from other countries in which the Materials may be produced or located; (iii) disclosure of technology to non-U.S. persons; (iv) exports from abroad of products derivative of the Materials; (v) the importation and/or use of the Materials outside of the United States or other countries (collectively, “Export Laws”). Customer must comply with all Export Laws. Diversion contrary to the United States law or other Exports Laws is expressly prohibited.

    (e)

    Waiver. Failure to enforce a provision of these Terms and Conditions or an applicable SOW will not constitute a waiver.

    (f)

    Reference. VMware will not use Customer’s name, logo, or project description in press releases or other marketing material without a prior written consent of Customer, and Customer agrees that the consent will not be unreasonably withheld. Customer agrees to allow VMware to use its name and industry in alphabetical customer listings of VMware’s customers generally, provided that no additional project information or other detail is used without Customer’s written consent.

    (g)

    Counterparts. Facsimile, scanned or electronic signatures on these Terms and Conditions and an applicable SOW will legally bind the Parties to the same extent as originals. These Terms and Conditions and an applicable SOW may be executed in multiple counterparts all of which taken together will constitute one single agreement between the Parties.

    (h)

    Notices. Unless otherwise set forth in an applicable SOW, any notice regarding these Terms and Conditions and an applicable SOW or required by law must be in writ¬ing and delivered to the other Party’s legal department at the address listed below via: (i) personal delivery confirmed in writing by the recipient; (ii) certified mail with return receipt requested; or (iii) recognized commercial courier offering confirmation of delivery. Notices will be deemed received upon the date of delivery shown by the corresponding confirmation. Either Party may change its address by notice to the other Party.

    All notices will be directed to Customer to the address set forth in these Terms and Conditions or an applicable SOW, and to VMware as follows: VMware, Inc., 3401 Hillview Ave., Palo Alto CA 94304, Attention: Legal Department.

    (i)

    Entire Agreement. These Terms and Conditions and an applicable SOW contain the entire agreement between the Parties with respect to the subject matter of these Terms and Conditions and supersedes all previous or contemporaneous communications, representations, proposals, commitments, understandings and agreements, whether oral or written, between the Parties. These Terms and Conditions and an applicable SOW may be amended only in writing signed by authorized representatives of both Parties. VMware rejects any additional or conflicting terms and conditions on any PO acknowledgement or other business form issued by Customer, unless expressly otherwise agreed to by the Parties in writing.

    (j)

    Security Clearance. Customer acknowledges that if any security resource is required for the Services pursuant to these Terms and Conditions, Customer will issue the appropriate security specifications and/or DD 254 to VMware.

    (k)

    VMware Personnel. When, in the performance of the onsite training services, VMware’s personnel are to be located at Customer’s site, VMware will furnish a complete list of all personnel to be located at the Customer’s site and will be responsible for all actions of its personnel. VMware agrees to comply with all regulations applicable at Customer’s site, and Customer reserves the right to bar employees, representatives or agents of VMware from Customer’s site for failure to observe such regulations.

    (i)

    Malicious Code. VMware specifically agrees that VMware will not introduce malicious software into Customer’s equipment, database(s), or network(s) in the course of providing the Services. In the event that VMware does introduce malicious software in the course of providing the Services, VMware will work with Customer to immediately remove the malicious software from all infected equipment, database(s) and network(s).