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.
7. TERMINATION
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.
10. INDEMNITY
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.
14. MISCELLANEOUS
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. |
