End user agreement for Kerio WinRoute Firewall
KERIO TECHNOLOGIES, INC.
SOFTWARE LICENSE AGREEMENT
PLEASE READ THIS SOFTWARE LICENSE AGREEMENT ("AGREEMENT") CAREFULLY BEFORE USING THE KERIO TECHNOLOGIES, INC. ("KERIO") MAIL SERVER, WINROUTE FIREWALL OR WEBSTAR PRODUCTS, INCLUDING ALL SOFTWARE AND DOCUMENTATION CONTAINED THEREIN (INDIVIDUALLY AND COLLECTIVELY, THE "SOFTWARE"). BY USING THE SOFTWARE, YOU AND THE ENTITY THAT YOU REPRESENT ("YOU") ARE EACH AGREEING TO BE BOUND BY THE TERMS OF THIS AGREEMENT WITH KERIO. IF YOU DO NOT AGREE TO ALL THE TERMS AND CONDITIONS OF THIS AGREEMENT, DO NOT USE THE SOFTWARE. NOTE THIS AGREEMENT CONTAINS WARRANTY AND LIABILITY LIMITATIONS AND COMPLIANCE MONITORING PROVISIONS.
YOU MAY RECEIVE THIS SOFTWARE ON TANGIBLE MEDIA OR BY ELECTRONIC DOWNLOAD (COLLECTIVELY, "DELIVERY").
IF YOU ARE OBTAINING THE SOFTWARE ON TANGIBLE MEDIA, THEN USING THE SOFTWARE OR BREAKING THE SEAL OF THE PACKAGING IN WHICH THE SOFTWARE IS CONTAINED CONSTITUTES YOUR ASSENT TO AND ACCEPTANCE OF THIS AGREEMENT AND THE ORDER CONFIRMATION AND/OR INVOICE PURSUANT TO WHICH KERIO OR ITS RESELLERS HAVE DELIVERED THIS SOFTWARE.
IF YOU DO NOT AGREE WITH ALL THE TERMS, YOU MUST RETURN THIS SOFTWARE (WITH THE ENVELOPE STILL SEALED) AND PROOF OF PAYMENT, TO THE PLACE YOU OBTAINED IT FOR A FULL REFUND WITHIN 30 DAYS OF FIRST ACQUIRING THIS SOFTWARE.
WRITTEN APPROVAL IS NOT A PREREQUISITE TO THE VALIDITY OR ENFORCEABILITY OF THIS AGREEMENT AND NO SOLICITATION OF ANY SUCH WRITTEN APPROVAL BY OR ON BEHALF OF KERIO OR ITS RESELLERS SHALL BE CONSTRUED AS AN INFERENCE TO THE CONTRARY.
IF YOU ARE FIRST ACCESSING THIS SOFTWARE BY INSTALLATION OR DOWNLOAD, BY CLICKING ON THE "ACCEPT" BUTTON, YOU ARE CONSENTING TO BE BOUND BY AND ARE BECOMING A PARTY TO THIS AGREEMENT. IF YOU DO NOT AGREE TO ALL OF THE TERMS OF THIS AGREEMENT, CLICK THE "CANCEL" BUTTON AND THE INSTALLATION PROCESS WILL NOT CONTINUE. PLEASE PRINT A COPY OF THIS AGREEMENT FOR YOUR FUTURE REFERENCE IF YOU DECIDE TO ACCEPT.
IF THESE TERMS ARE CONSIDERED AN OFFER, ACCEPTANCE IS EXPRESSLY LIMITED TO THESE TERMS TO THE EXCLUSION OF ALL OTHER TERMS.
1. LICENSE GRANT
Subject to Your compliance with all the terms and conditions of this Agreement, Kerio hereby grants You a limited, non- transferable, non-assignable, non-sublicensable, non-exclusive license to use the Software only in accordance with any documentation that accompanies it and only (i) for thirty (30) days (or such time period as Kerio may, in its sole discretion, extend from time to time in writing)(the "Trial Period") from the initial date of Delivery solely for internal, non-commercial evaluation and testing purposes, and (ii) provided that Kerio receives payment in full of the applicable license fee(s) specified by Kerio at the time of Delivery of the Software, for use of the Software solely for the number of usage instances that correspond to the number of registration keys issued by Kerio (each a "License Key") and only during the term of this Agreement. For clarity, if You do not pay the applicable license fees prior to the conclusion of the Trial Period, you have no right or license, express or implied, to use the Software in any manner. If You pay the applicable license fees prior to the conclusion of the Trial Period, You may make a reasonable number of copies of the Software for each License Key provided solely for back-up purposes.
2. LICENSE RESTRICTIONS
Except as expressly and unambiguously authorized in this Agreement, You shall not, nor shall You permit anyone else to, directly or indirectly:
(i) copy, modify, or distribute the Software or any portion thereof;
(ii) reverse engineer, disassemble, decompile or otherwise attempt to discover the source code or structure, sequence and organization of the Software or any portion thereof (except to the extent reverse engineering restrictions are expressly prohibited by applicable local law, and then only to the extent so prohibited or controlled);
(iii) rent, lease, or use the Software or any portion thereof for timesharing or service bureau purposes, or
(iv) remove, alter or obscure any Software identification, trademark, copyright, confidentiality, proprietary or other notices or legends contained on or within the Software (or any copy or portion thereof).
Title, ownership rights, and intellectual property rights in and to the Software, and any copies or portions thereof, shall remain with Kerio and its licensors. You understand that Kerio may modify or discontinue offering the Software at any time. The Software is protected by intellectual property rights of the United States and other countries. This Agreement does not give You any rights not expressly granted herein.
3. COMPLIANCE MONITORING
YOU ACKNOWLEDGE THAT THE SOFTWARE INCLUDES FEATURES TO RESTRICT USE AFTER THE APPLICABLE TRIAL PERIOD AND/OR ENABLE KERIO OR ITS AGENTS TO REMOTELY MONITOR FOR INCONSISTENT USE WITH THIS LICENSE, INCLUDING, WITHOUT LIMITATION, DUPLICATIVE USE OF LICENSE KEY(S) ("COMPLIANCE"). YOU HEREBY GRANT KERIO, ITS RESELLERS, AND AGENTS THE RIGHT TO MONITOR YOUR USAGE TO ENSURE COMPLIANCE WITH THE LICENSES GRANTED HEREUNDER.
4. THIRD PARTY ADD-ONS.
Kerio offers third-party software components to add-on to the Software for additional license fees ("Add-Ons"). Because these Add-Ons are distributed by Kerio from various third-parties and redistributed by Kerio to You, You may be required to comply with additional provisions of such third-party licenses. The Add-Ons page will link You to the license provisions that apply to Add-Ons and shall be considered Exhibit A to this Agreement and incorporated into this Agreement by this reference. Any Add-Ons that may be licensed by You shall become part of Software and subject to this Agreement and the applicable terms contained in Exhibit A. In the event of a conflict between Exhibit A and this Agreement, this Agreement shall control. Notwithstanding the foregoing, Kerio, in its sole discretion, reserves the right to substitute, modify, eliminate or otherwise change Add-Ons at any time during the term of this Agreement.
5. NO REFUNDS
Please evaluate and test the Software carefully during the Trial Period. All license fees are non-refundable.
6. SUPPORT AND UPDATES
No support or maintenance is provided to You under this Agreement. If Kerio, in its sole discretion, decides to make any such support or maintenance available to You, it will be in accordance with the Kerio's then-current support and maintenance terms and conditions, and subject to Your payment of the applicable fees specified at http://www.kerio.com/support. You acknowledge that the Software contains features that allow Kerio to remotely and automatically identify, track and analyze certain aspects of use and performance of Software and/or the systems on which it is installed, as well as the operator and operating environment (including problems and issues that arise in connection therewith)("Updates"). You may disable this Updates feature of the Software at any time, but if you do not, then you hereby consent that Kerio may use any data and information it collects for its internal purposes.
This Agreement is effective until terminated in accordance with this Section. You may terminate this Agreement at anytime by destroying all copies of the Software and all License Keys. This Agreement will terminate automatically without notice from Kerio if You fail to comply with any term(s) or conditions hereunder. Any termination of this Agreement shall terminate the licenses granted hereunder. Upon the termination of this Agreement for any reason, You shall cease all use of the Software and License Keys and destroy all copies, full or partial, of the Software and License Keys, and provide Kerio written certification confirming such actions. Sections 2-14 shall survive any termination or expiration of this Agreement.
8. DISCLAIMER OF WARRANTIES
YOU EXPRESSLY ACKNOWLEDGE AND AGREE THAT USE OF THE SOFTWARE IS AT YOUR SOLE RISK AND THAT THE ENTIRE RISK AS TO SATISFACTORY QUALITY, PERFORMANCE, ACCURACY AND EFFORT IS WITH YOU.
THE SOFTWARE IS PROVIDED "AS IS", WITH ALL FAULTS AND WITHOUT WARRANTY OF ANY KIND, AND KERIO AND ITS LICENSORS AND RESELLERS (COLLECTIVELY REFERRED TO AS "KERIO" FOR THE PURPOSES OF SECTIONS 8 AND 9) HEREBY DISCLAIM ALL WARRANTIES AND CONDITIONS WITH RESPECT TO THE SOFTWARE, EITHER EXPRESS, IMPLIED OR STATUTORY, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES AND CONDITIONS OF MERCHANTABILITY, SATISFACTORY QUALITY, OR FITNESS FOR A PARTICULAR PURPOSE, ACCURACY, QUIET ENJOYMENT, AND NON-INFRINGEMENT.
KERIO DOES NOT WARRANT AGAINST INTERFERENCE WITH YOUR ENJOYMENT OF THE SOFTWARE, THAT THE FUNCTIONS CONTAINED IN THE SOFTWARE WILL MEET YOUR REQUIREMENTS, THAT THE OPERATION OF THE SOFTWARE WILL BE UNINTERRUPTED OR ERROR-FREE, OR THAT DEFECTS IN THE SOFTWARE WILL BE CORRECTED. NO ORAL OR WRITTEN INFORMATION OR ADVICE GIVEN BY KERIO OR A KERIO REPRESENTATIVE SHALL CREATE A WARRANTY. SHOULD THE SOFTWARE PROVE DEFECTIVE, YOU (AND NOT KERIO OR ANY KERIO REPRESENTATIVE) ASSUME THE ENTIRE COST OF ALL NECESSARY SERVICING, REPAIR OR CORRECTION.
SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF IMPLIED WARRANTIES OR LIMITATIONS ON APPLICABLE STATUTORY RIGHTS OF A CONSUMER, SO THE ABOVE EXCLUSION AND LIMITATIONS MAY NOT APPLY TO YOU. THIS DISCLAIMER OF WARRANTY CONSTITUTES AN ESSENTIAL PART OF THIS AGREEMENT.
9. LIMITATION OF LIABILITY
TO THE EXTENT NOT PROHIBITED BY LAW, IN NO EVENT SHALL KERIO BE LIABLE WITH RESPECT TO THE SOFTWARE OR ANY SUBJECT MATTER OF THIS AGREEMENT UNDER CONTRACT, TORT, STRICT LIABILITY, NEGLIGENCE OR ANY OTHER LEGAL THEORY FOR (I) ANY INCIDENTAL, SPECIAL, INDIRECT OR CONSEQUENTIAL DAMAGES, LOST PROFITS, LOSS OF DATA, BUSINESS INTERRUPTION, HOWEVER CAUSED, EVEN IF KERIO HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, OR (II) ANY AMOUNT IN EXCESS, IN THE AGGREGATE, OF THE AMOUNTS PAID BY YOU FOR THE SOFTWARE. THE FOREGOING LIMITATIONS WILL APPLY EVEN IF THE ABOVE STATED REMEDY FAILS OF ITS ESSENTIAL PURPOSE. SOME JURISDICTIONS DO NOT ALLOW THE LIMITATION OF LIABILITY FOR PERSONAL INJURY, OR OF INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THIS LIMITATION MAY NOT APPLY TO YOU.
You agree that Kerio shall have no liability whatsoever for any use You make of the Software. You agree to indemnify and hold harmless Kerio from any claims, damages, liabilities, costs and fees (including reasonable attorney fees) arising from Your use of the Software as well as from Your failure to comply with any term of this Agreement. Your indemnity shall survive any termination of this Agreement, for any reason.
11. GOVERNMENT USE
If You are part of an agency, department, or other entity of the United States Government ("Government"), the use, duplication, reproduction, release, modification, disclosure or transfer of the Software is restricted in accordance with the Federal Acquisition Regulations as applied to civilian agencies and the Defense Federal Acquisition Regulation Supplement as applied to military agencies. The Software is a "commercial item," "commercial computer software" and "commercial computer software documentation." In accordance with such provisions, any use of the Software by the Government shall be governed solely by the terms of this Agreement.
12. HIGH RISK USES
You acknowledge that the Software is not intended for use in connection with any high risk or strict liability activity (including, without limitation, air travel, space travel, fire fighting, police operations, power plant operation, military operations, rescue operations, hospital and medical operations or the like) and You agree not to use or allow the use of the Software or any portion thereof for, or in connection with, any such activity.
13. EXPORT CONTROLS
You shall comply with all export laws and restrictions and regulations of the Department of Commerce, the United States Department of Treasury Office of Foreign Assets Control, or other United States or foreign agency or authority, and You shall not export, or allow the export or re-export of the Software in violation of any such restrictions, laws or regulations. By installing or using the Software, You agree to the foregoing and represent and warrant that You are not located in, under the control of, or a national or resident of any restricted country.
This Agreement constitutes the complete agreement between the parties with respect to the use of the Software licensed hereunder and supersedes all prior or contemporaneous understandings regarding such subject matter. This Agreement may be amended only by a writing executed by a senior officer of Kerio.
If any provision of this Agreement is held to be unenforceable for any reason, such provision shall be reformed only to the extent necessary to make it enforceable. The failure of Kerio to act with respect to a breach of this Agreement by You or others does not constitute a waiver and shall not limit Kerio's rights with respect to such breach or any subsequent breaches. Kerio expressly reserves the right to assign this Agreement and to delegate any of its obligations hereunder. You may not assign, delegate or otherwise transfer (whether by operation of law or otherwise) this Agreement or any of Your rights or obligations hereunder without the prior written consent of Kerio.
Any dispute, controversy or claim arising out of or relating to this Agreement or to a breach thereof, including its interpretation, performance or termination, shall be finally resolved by arbitration. The arbitration shall be conducted in English and in accordance with the Arbitration Rules and Procedures of Judicial Arbitration and Mediation Services (JAMS), which shall administer such arbitration. The arbitration, including the rendering of the award, shall take place in San Francisco, California, USA. For the purposes of this arbitration, this Agreement shall be governed by and construed under California law as such law applies to agreements between California residents entered into and to be performed within California, USA. The decision of the arbitrators shall be binding upon the parties hereto, and the expense of the arbitration (including without limitation the award of attorneys' fees to the prevailing party) shall be paid as the arbitrators determine. The decision of the arbitrators shall be executory, and judgment thereon may be entered by any court of competent jurisdiction.
Notwithstanding anything contained in this Section, each party shall have the right to institute judicial proceedings against the other party or anyone acting by, through or under such other party in order to enforce the instituting party's rights hereunder through reformation of contract, specific performance, injunction or similar equitable relief.
Any translation of this Agreement is done for local requirements and in the event of a dispute between the English and any non- English versions, the English version of this Agreement shall govern.
IF I AM DOWNLOADING THE SOFTWARE, THEN I AM INDICATING THAT I HAVE READ, UNDERSTOOD AND AM AGREEING TO THE TERMS AND CONDITIONS OF THIS AGREEMENT.