USE AGREEMENT
Dated: 27 August 2021
This Use Agreement governs your use of VMware software components (the “Software”) in the Azure Spring Apps Enterprise (the “Service”), for which you are  entitled to use from your purchase of Azure Spring Apps Enterprise from Microsoft. 
For purposes of this Agreement, “VMware”, “we”, or “us” means VMware, Inc., a Delaware corporation, if the billing address for your Order is in the United States, or VMware International Unlimited Company, a company organized and existing under the laws of Ireland, if the billing address for your Order is outside the United States. "You" means you individually or legal entity that you represent. If you are entering into the Agreement for an entity, you represent that you have the authority to bind that entity.
1.	RIGHT TO USE.  Subject to your payment of the applicable fees, we grant you a right to use the Software in accordance with this Agreement, and the applicable Microsoft Agreement, during the term of your the Service subscription, and solely in connection with your use of the Service. You acknowledge that Microsoft is the licensee of the Software pursuant to a separate agreement between VMware and Microsoft, that VMware is not responsible for the operation of the Service, and that your use of the Software in connection with Service is limited to the rights in this Agreement. 
2.	SUPPORT.  Support for the Service will be provided by Microsoft, pursuant to your [Microsoft Azure service] agreement with Microsoft. Support for the  VMware Spring Runtime will be provided by VMware provided pursuant to our then-current support services policies, copies of which are posted at www.vmware.com/support/policies. 
3.	ACCOUNT, OPERATIONS, AND USAGE DATA.  We collect (either directly or from Microsoft) your contact information and information about your purchase to manage your VMware account and fulfill your purchase. We also process information necessary to provide support, and (b) Software configuration, performance, and usage data for the purposes of improving VMware products and services and user experience, and other analytics purposes. To the extent any of that data includes information which identifies an individual, we will process that information in accordance with VMware’s Products & Services Privacy Notice available at https://www.vmware.com/help/privacy.html.
4.	OWNERSHIP.  The Software, all improvements, enhancements, modifications and derivative works of the Software, and all Intellectual Property Rights in the Software, are the sole and exclusive property of VMware and its licensors. Your rights to use the Software are limited to those expressly granted in this Agreement. No other rights are implied with respect to the Software, or any related intellectual property rights. You may not reverse engineer, decompile, or disassemble the Software, except to the extent that such activity is expressly permitted by applicable law. You are not authorized to use (and must not permit any third party to use) the Software except as expressly authorized by this Agreement. We reserve all rights not expressly granted to you. We do not transfer any ownership rights in any Software.
5.	OPEN SOURCE SOFTWARE. The Software may use open source software, which is made available under the applicable open source licenses, found here. You can obtain a copy of these licenses and any source code (and modifications) that we are required to make available under these licenses (“Source Files”) here or by sending a written request, with your name and address, to: VMware, Inc., Attention: General Counsel, 3401 Hillview Avenue, Palo Alto, CA 94304, United States of America. All requests must clearly specify: “Open Source Files Request”. This offer to obtain a copy of the Source Files is valid for three years from the date you last used that open source software or interacted with the open source software when using the Service.
5.	INTELLECTUAL PROPERTY INDEMNIFICATION.
5.1	Defense and Indemnification. Subject to the remainder of this Section 5, we will defend you against any claim (“Infringement Claim”) by a third party that the Software infringes any patent, trademark or copyright of that third party, or misappropriates a trade secret (but only to the extent that the misappropriation is not a result of your actions) under the laws of: (a) the United States; (b) Canada; (c) the European Economic Area; (d) the United Kingdom; (e) Australia; (f) New Zealand; (g) Japan; or (h) the People’s Republic of China. We will also indemnify you from all fines, damages, and costs finally awarded against you by a court of competent jurisdiction or a government agency, or agreed to in a settlement, with regard to any Infringement Claim. These obligations are applicable only if you: (i) provide us with notice of the Infringement Claim within a reasonable period after learning of the claim (provided that any delay in providing the notice will relieve us of our indemnification obligations only to the extent that the delay prejudices us); (ii) allow us sole control over the defense and settlement of the Infringement Claim; and (iii) reasonably cooperate in response to our requests for assistance with regard to the Infringement Claim. We will not, without your prior written consent, which may not be unreasonably withheld, conditioned, or delayed, enter into any settlement of any Infringement Claim that obligates you to admit any liability or to pay any unreimbursed amounts to the claimant. You may not settle or compromise any Infringement Claim without our prior written consent.
5.2	Remedies. If the Software becomes, or in our opinion is likely to become, the subject of an Infringement Claim, we will, at our option and expense: (a) procure the rights necessary for your continued use of the Software; or (b) modify or replace the Software to make it non-infringing; or (c) terminate your right to use the Software and discontinue the related Support, and refund any prepaid fees, prorated for the remaining portion of the then-current term of your subscription to the [Microsoft Azure service].
5.3	Exclusions. We will have no obligation under this Section 5 or otherwise with respect to any Infringement Claim based on: (a) your use of the Software for a purpose or in a manner for which the Software was not designed; (b) any claim that relates to open source software or freeware technology or any derivative or other adaptations thereof that is not embedded by us into the Software; or (c) any Software provided on a no charge, beta, or evaluation basis.
5.4	TO THE EXTENT PERMITTED BY APPLICABLE LAW, THIS SECTION 5 STATES YOUR SOLE AND EXCLUSIVE REMEDY AND OUR ENTIRE LIABILITY FOR ANY INFRINGEMENT CLAIMS. 
6.	LIMITATION OF LIABILITY.
6.1	Disclaimer. TO THE MAXIMUM EXTENT PERMITTED BY LAW, IN NO EVENT WILL WE BE LIABLE FOR ANY LOST PROFITS OR BUSINESS OPPORTUNITIES, LOSS OF USE, LOSS OF CONTENT OR DATA FOR ANY REASON (INCLUDING POWER OUTAGES, SYSTEM FAILURES, OR OTHER INTERRUPTIONS), LOSS OF REVENUE, LOSS OF GOODWILL, BUSINESS INTERRUPTION, OR FOR ANY INDIRECT, SPECIAL, INCIDENTAL, OR CONSEQUENTIAL DAMAGES UNDER ANY THEORY OF LIABILITY, WHETHER BASED IN CONTRACT, TORT, NEGLIGENCE, PRODUCT LIABILITY, OR OTHERWISE. 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. BECAUSE SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF LIABILITY FOR CONSEQUENTIAL OR INCIDENTAL DAMAGES, THE FOREGOING LIMITATION MAY NOT APPLY. 
6.2	Cap on Monetary Liability. OUR LIABILITY FOR ANY CLAIM UNDER THIS AGREEMENT WILL NOT EXCEED THE GREATER OF THE LICENSE FEES MICROSOFT PAID TO US FOR YOUR RIGHT TO USE THE SOFTWARE OR $5000 USD (OR THE EQUIVALENT IN LOCAL CURRENCY).
6.3	Exclusions. THE LIMITATION OF LIABILITY IN SECTIONS 6.1 AND 6.2 WILL NOT APPLY TO (i) OUR INDEMNIFICATION OBLIGATIONS UNDER SECTION 5 OF THIS AGREEMENT OR (ii) ANY LIABILITY WHICH MAY NOT BE EXCLUDED BY LAW.
6.4	Further Limitations. Our suppliers have no liability of any kind under this Agreement. You may not bring a claim directly against any of them under this Agreement. Our liability with respect to any third-party software embedded in the Software is subject to this Section 5. You may not bring a claim under this Agreement more than eighteen (18) months after the cause of action arises.
7.	TERMINATION.
7.1	Termination for Cause. We may terminate this Agreement effective immediately upon written notice to you (a) if you breach any provision of this Agreement and fail to cure within thirty (30) days after receipt of our written notice of the breach; (b) you breach any provision of this Agreement in a manner that cannot be cured; or (c) your [Microsoft Azure] agreement is terminated.
7.2	Effect of Termination. Upon termination of this Agreement, all rights to use the Software granted to you under this Agreement will immediately end. Any provision that, by its nature and context is intended to survive termination or expiration of the Agreement, will survive. Except as otherwise expressly provided in this Agreement or as required by applicable law or regulation, termination of this Agreement will not entitle you to any refunds, credits, or exchanges.
8.	GENERAL.
8.1	Assignment.  You must not assign this Agreement or any right or obligation pursuant to this Agreement, or delegate any performance under this Agreement, without our prior written consent, which consent will not be unreasonably withheld, conditioned, or delayed. Any other attempted assignment or transfer by you will be void.
8.2	Notices. Any notice by us to you under this Agreement will be given: (a) by email to the email address associated with your account, if you have subscribed to this method of receiving notices; or (b) by posting in the VMware customer portal. You must direct legal notices or other correspondence to VMware, Inc., 3401 Hillview Avenue, Palo Alto, California 94304, United States of America, Attention: Legal Department.
8.3	Waiver. Waiver of a breach of any provision of this Agreement will not constitute a waiver of any later breach of that provision, or waiver of a breach of any other provision.
8.4	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.
8.5	Compliance with Laws. Each party must comply with all laws applicable to the actions contemplated by this Agreement.
8.6	Export Control; Government Regulations. You acknowledge that the Software 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 that (1) you are not, and are not acting on behalf of, (a) 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 (b) 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; and (2) you will not permit the Software 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. The Software and Documentation are deemed to be “commercial computer software” and “commercial computer software documentation”, respectively, pursuant to Defense Federal Acquisition Regulation Supplement (“DFARS”) Section 227.7202 and Federal Acquisition Regulation (“FAR”) Section 12.212(b), as applicable. Any use, modification, reproduction, release, performing, displaying, or disclosing of the Software and Documentation by or for the U.S. Federal Government shall be governed solely by the terms and conditions of this Agreement.
8.7	Construction. The headings of sections of this Agreement are for convenience and are not to be used in interpreting this Agreement. As used in this Agreement, the word “including” means “including but not limited to”.
8.8	Language.  This Agreement is in English, and the English language version governs any conflict with a translation into any other language.
8.9	Governing Law. If your billing address is in the United States, this Agreement is governed by the laws of the State of California and the federal laws of the United States. If your billing address is outside the United States, this Agreement is governed by the laws of Ireland. Conflict of law rules are expressly disclaimed. The U.N. Convention on Contracts for the International Sale of Goods does not apply.
8.10	Third-Party Rights. Other than as expressly provided in this Agreement, this Agreement does not create any rights for any person who is not a party to it, and only persons who are parties to this Agreement may enforce any of its terms or rely on any exclusion or limitation contained in it.
8.11	Entire Agreement. This Agreement contains the entire Agreement of the parties with respect to the subject matter of this Agreement, and supersedes all previous or contemporaneous communications, representations, proposals, commitments, understandings and Agreements, whether written or oral, between the parties regarding its subject matter. This Agreement may be amended only in a writing signed by authorized representatives of both parties.