1. DEFINITIONS. The following capitalized terms shall have the meanings set forth below. Other terms may be defined elsewhere in this EULA.
"Confidential Information" means the Software, the Subscription Service, and also includes (but is not limited to) information related to past, present or future research, development or business affairs, any proprietary products, materials or methodologies, or any other information that provides the disclosing Party with a competitive advantage.
"Content" means information or materials, in any form or format, as further described in Section 6 below.
"Documentation" means the user manuals and product specifications provided by SonicWALL, either in hard copy, electronically, or on its website, relating to the SonicWALL Comprehensive Anti-Spam Service.
"Effective Date" means the date Licensee clicks on the "Proceed" button or downloads, installs, or otherwise uses the SonicWALL Comprehensive Anti-Spam Service.
"Equipment" means any equipment or ancillary services needed to enable Licensee to connect to, access or otherwise use the SonicWALL Comprehensive Anti-Spam Service, including but not limited to, modems, hardware, server, software, operating system, networking, web servers, and long distance and local telephone service.
"Extension Term" means each one (1) year or three (3) year period (depending on the Extension Term purchased following the Initial Term.
"High-Risk Activities" means activities conducted in a hazardous environment or requiring fail-safe performance, such as the operation of nuclear facilities, aircraft navigation or communication systems, air traffic control, weapons systems, life-support machines, or any other application in which the failure of the SonicWALL Comprehensive Anti-Spam Service could lead to death, bodily injury, or damage to tangible property or the environment.
"Initial Term" means the either the one (1) year period or three (3) year period (depending on the Term purchased), commencing on the Effective Date.
"License Fee" means the license fee paid by Licensee to use the Comprehensive Anti-Spam Service.
"Party" means Licensee or SonicWALL individually; and "Parties" means Licensee and SonicWALL collectively.
"Remote Server" means the outside server contacted by the SonicWALL Comprehensive Anti-Spam Service.
"Software" means a machine executable copy of the object code of the SonicWALL Comprehensive Anti-Spam Service licensed by SonicWALL to Licensee under this EULA. All updates, upgrades, major releases, feature releases, ands bug fix releases provided hereunder or through the Comprehensive Anti-Spam Service or through separate Support (if offered) shall be considered Software and will be subject to this EULA.
"Support" means the support services relating to the SonicWALL Comprehensive Anti-Spam Service and all purchased Subscription Services, provided by SonicWALL in accordance with SonicWALL’s then-current Support Services Agreement, available at http://www.sonicwall.com/us/support/7077.html or a successor site, and is incorporated herein by reference. "Support Fee" means the applicable fee paid by Licensee to obtain Support from SonicWALL during the applicable twelve (12) month Term.
"Term" means either the Initial Term or any Extension Term.
2. LICENSE GRANTED. Subject to the terms of this EULA, SonicWALL hereby grants Licensee a perpetual (except subject to termination as stated in the "Termination" provision below), non-exclusive, non-sublicensable license to (i) install the SonicWALL Comprehensive Anti-Spam Service on the SonicWALL device for which Licensee has paid the License Fee; (ii) use the SonicWALL Comprehensive Anti-Spam Service for the number of users and domain names for which Licensee has paid the applicable License Fee; (iii) use and make a reasonable number of copies of the Documentation solely for Licensee’s internal use in conjunction with the SonicWALL Comprehensive Anti-Spam Service and (if applicable) the Subscription Service. If the Software is labeled as an upgrade, update, or similar modification or revision, Licensee must be properly licensed to use the product being upgraded or updated in order to use the Software. The Comprehensive Anti-Spam Service is to be used solely for Licensee’s internal business purposes and in accordance with the Documentation.
3. LICENSE RESTRICTIONS. Except as expressly permitted by this EULA, Licensee may not, any may not permit anyone else to: (i) copy, modify, or distribute (or otherwise make available to others) the SonicWALL Comprehensive Anti-Spam Service; (ii) reverse-engineer, disassemble, decompile or otherwise attempt to discover the source code or structure, sequence and organization of the Software (except to the extent this prohibition is invalid under local law); (iii) rent, lease, lend, or otherwise use the SonicWALL Comprehensive Anti-Spam Service or the Subscription Service on behalf of any third party; (iv) use the SonicWALL Comprehensive Anti-Spam Service to perform comparisons or other "benchmarking" activities, either alone or in connection with any other software or service, without SonicWALL’s written permission; or (v) publish any such performance information or comparisons. Licensee shall maintain and not remove or obscure any proprietary notices on the SonicWALL Comprehensive Anti-Spam Service or Documentation, and shall reproduce such notices exactly on all permitted copies of the Software or Documentation.
4. OWNERSHIP. As between the Parties, title and ownership of the intellectual property rights in and relating to the SonicWALL Comprehensive Anti-Spam Service and Documentation and any copies or portions thereof, and in and relating to the Subscription Service, shall remain in SonicWALL and its licensors (if any). SonicWALL may modify or discontinue offering the SonicWALL Comprehensive Anti-Spam Service at any time. The copyright laws of the United States and international copyright treaties protect the SonicWALL Comprehensive Anti-Spam Service and Documentation. The Software is licensed and not sold. This EULA gives Licensee only those rights expressly granted herein.
5. REPORTS AND AUDIT.
Usage Reports. At any time upon reasonable request by SonicWALL, Licensee will certify to SonicWALL in writing the total number of users and the total number of domain names for which the SonicWALL Comprehensive Anti-Spam Service is being used. If Licensee’s use of the SonicWALL Comprehensive Anti-Spam Service exceeds the levels authorized at that time, Licensee will promptly report such excess use to SonicWALL and pay all additional fees that would have been due for the period beginning when the excess use commenced to the then-current date, at the then-current manufacturer’s suggested retail price.
Audit. Licensee shall generate and maintain, for at least one (1) or four (4) years following the period to which the records relate, complete books and records regarding its compliance with this EULA, including payments of License Fees made to SonicWALL or a SonicWALL channel partner. Licensee agrees that SonicWALL may, at its discretion and expense upon at least ten (10) days’ prior notice to Licensee, during normal business hours, but not more than once every six (6) months, inspect and audit Licensee’s books and records pertaining to the payments made for the SonicWALL Comprehensive Anti-Spam Service and Licensee’s use of the SonicWALL Comprehensive Anti-Spam Service. If the audit reveals unauthorized usage or underpayment of five percent (5%) or more, Licensee will be required to reimburse SonicWALL for the reasonable cost of the audit.
6. PROHIBITED USES; CONTENT.
Prohibited Uses. Licensee shall not use the SonicWALL Comprehensive Anti-Spam Service: (i) to infringe, misappropriate, or otherwise violate the intellectual property rights or proprietary rights, or rights of publicity or privacy, of any third party; (ii) to violate any applicable law, statute, ordinance, or regulation; (iii) to disseminate Content that is harmful, threatening, abusive, harassing, tortuous, defamatory, vulgar, obscene, libelous, or otherwise objectionable; (iv) to disseminate any software viruses or any other computer code, files, or programs that may interrupt, destroy or limit the functionality of any computer software or hardware or telecommunications equipment; or (v) in violation of SonicWALL's standard policies then in effect. SonicWALL may take appropriate action to prohibit any use of the SonicWALL Comprehensive Anti-Spam Service or Subscription Service that it believes may be (or that is alleged to be) in violation of the foregoing.
Content. Licensee shall be solely responsible for all Content that Licensee uploads, posts, emails, transmits, or otherwise disseminates using, or in connection with, the SonicWALL Comprehensive Anti-Spam Service. Licensee acknowledges that Licensee’s accessing of Content using the SonicWALL Comprehensive Anti-Spam Service is solely at Licensee's own risk and that SonicWALL will not be liable for any damage to any person or entity resulting therefrom.
7. PRIVACY STATEMENT. In the event SonicWALL has access to information of Licensee, such access shall be governed by SonicWALL's Privacy Statement, as it may be changed from time-to-time. SonicWALL’s current privacy statement is currently available at http://www.sonicwall.com/us/2955.html and is incorporated herein by reference. SonicWALL reserves the right at all times to disclose, without prior notification to Licensee, any information necessary to satisfy any applicable law, regulation, legal process, or governmental request concerning Licensee’s use of the SonicWALL Comprehensive Anti-Spam Service. In the event of any inconsistency between the Privacy Statement and this EULA, this EULA will prevail.
8. MAINTENANCE OF EQUIPMENT AND SECURITY OF LICENSEE’S ACCOUNT. Licensee shall be solely responsible for obtaining and maintaining the Equipment and for ensuring that such Equipment is compatible with the SonicWALL Comprehensive Anti-Spam Service and that it complies with all configurations set forth in the Documentation or SonicWALL's published policies then in effect. Licensee shall be solely responsible for maintaining the security of the Equipment, including, but not limited to, Licensee’s account concerning the SonicWALL Comprehensive Anti-Spam Service, passwords (including, but not limited to, administrative and other passwords) and files.
9. COMPREHENSIVE ANTI-SPAM SERVICE AND AVAILABILITY. SonicWALL shall use commercially reasonable efforts to provide the Comprehensive Anti-Spam Service. The Service may be temporarily unavailable for scheduled maintenance or for unscheduled emergency maintenance, either by SonicWALL or by third-party providers, or because of other causes beyond SonicWALL’s reasonable control. In conjunction with the Comprehensive Anti-Spam Service, SonicWALL reserves the right to allocate bandwidth when circumstances warrant.
10. INFORMATION EXCHANGE. The SonicWALL Comprehensive Anti-Spam Service contacts the Remote Server to upload and download information to conduct the Service. Licensee agrees to allow the SonicWALL Comprehensive Anti-Spam Service to communicate with the Remote Server for the purpose of such information exchange.
11. SUPPORT. SonicWALL shall provide Support only if Licensee has paid the applicable Support Fee for the current Term. SonicWALL’s obligation (if any) to provide Support for the previous sequential release of the SonicWALL Comprehensive Anti-Spam Service ends upon availability of a subsequent release of the SonicWALL Comprehensive Anti-Spam Service. In the event of any inconsistency between the Support Services Agreement and this EULA, this EULA will prevail.
12. LIMITED WARRANTY AND DISCLAIMERS.
Limited Warranty. SonicWALL makes no warranty or representation that the operation of the Software will be uninterrupted or error-free, or that all defects in the Software will be corrected.
Warranties Exclusive and Warranty Disclaimers. TO THE FULL EXTENT ALLOWED BY LAW, THE FOREGOING WARRANTY AND REMEDIES ARE EXCLUSIVE AND ARE IN LIEU OF ALL OTHER WARRANTIES, TERMS, OR CONDITIONS, EXPRESS OR IMPLIED, EITHER IN FACT OR BY OPERATION OF LAW, STATUTORY OR OTHERWISE, OR ARISING FROM THE COURSE OF DEALING BETWEEN THE PARTIES OR USAGE OF TRADE, INCLUDING WARRANTIES, TERMS, OR CONDITIONS OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, SATISFACTORY QUALITY, CORRESPONDENCE WITH DESCRIPTION, NON-INFRINGEMENT, AND ACCURACY OF INFORMATION GENERATED, ALL OF WHICH ARE EXPRESSLY DISCLAIMED. THESE WARRANTY DISCLAIMERS CONSTITUTE AN ESSENTIAL PART OF THIS EULA.
Consumer Rights. Some countries, states, or provinces do not allow the exclusion or limitation of implied warranties for certain products supplied to consumers, so the above limitations and exclusions may be limited in their application to Licensee. When the implied warranties are not allowed to be excluded in their entirety, they will be limited to the duration of the applicable written warranty. This warranty gives Licensee specific legal rights which may vary depending on local law.
13. CONFIDENTIALITY.
General. Each Party may, in connection with this EULA, disclose its Confidential Information to the other Party. Confidential Information, if disclosed or provided in tangible form, shall be clearly and conspicuously identified as confidential or proprietary, and if orally or visually disclosed, shall be identified as confidential or proprietary at the time of disclosure. However, Confidential Information shall not lose its protection under this EULA if, due to oversight or other reasonable cause, the discloser fails to mark or identify such information as confidential at the time of its disclosure, if such identification is provided by the discloser within a reasonable time after the oversight is discovered; and the recipient shall not be liable for failing to treat such information as confidential prior to its identification as such unless the information should reasonably have been understood by the recipient to be confidential from the context or circumstances.
Obligation of Confidentiality. Each Party agrees that for the longer of the duration of this EULA or a period of three (3) years from receipt of Confidential Information from the discloser hereunder, the recipient shall protect the discloser’s Confidential Information with the same degree of care that it regularly uses to protect its own Confidential Information of a similar nature from unauthorized use or disclosure, but in no event less than a reasonable degree of care. Confidential Information may be provided or disclosed only to the recipient’s employees or contractors with a "need to know" and who are instructed to and agree in writing not to disclose the Confidential Information. Each Party and each of its employees or consultants to whom disclosure is made shall hold all Confidential Information in confidence, and shall not disclose such information to any third party or apply it to uses other than the recipient's performance of its obligations under this EULA.
Ownership of Confidential Information. All Confidential Information and any and all copies thereof shall remain the property of the discloser. Nothing herein shall be construed as granting or conferring any rights by license or otherwise in the Confidential Information except as expressly provided herein. The mingling of the Confidential Information with information of the recipient shall not affect the confidential nature or ownership of the same as stated hereunder. A recipient acquires hereunder only a limited right to use the Confidential Information solely for the purpose of performing its obligations under this EULA.
Return of Confidential Information. Upon the written request of the discloser, or upon the termination of this EULA, the recipient shall promptly return all copies of the Confidential Information, in whatever form or media, to the discloser or, at the direction of discloser, destroy the same, and delete all of the discloser’s Confidential Information from its computers; except that Licensee may not be required to return the Software while this EULA is in effect. However, it shall not be a violation of this deletion requirement for copies of Confidential Information other than Software to remain in computer back-up files that are not normally accessible. The recipient shall certify in writing to the discloser such return or destruction within ten (10) days thereafter.
Exceptions to Obligation of Confidentiality. This EULA shall impose no obligation of confidentiality upon a recipient with respect to any portion of the Confidential Information received hereunder which: (i) now or hereafter, through no act or failure to act on recipient's part, becomes generally known or available; (ii) is furnished to others by the discloser without restriction on disclosure; (iii) is lawfully known to the recipient without an obligation of confidentiality at the time recipient receives the same from the discloser, as evidenced by written records; (iv) the recipient receives from a third party, provided such information was not obtained by such third party from the discloser on a confidential basis; or (v) is independently developed by the recipient without use of the discloser's Confidential Information.
Nothing in this EULA shall prevent the recipient from disclosing Confidential Information to the extent the recipient is legally compelled to do so by any court or governmental investigative, judicial, or regulatory agency pursuant to proceedings over which such court or agency has jurisdiction; provided, however, that prior to any such disclosure, the recipient shall: (i) assert the confidential nature of the Confidential Information to the court or agency; (ii) immediately notify the discloser in writing of the court’s or agency’s order or request to disclose; and (iii) cooperate fully with the discloser, at the discloser’s expense, in protecting against any such disclosure and/or obtaining a protective order narrowing the scope of the compelled disclosure and protecting the confidentiality of the Confidential Information.
14. LIMITATION OF LIABILITY.
No Non-Direct Damages and Other Exclusions. NEITHER SONICWALL NOR SONICWALL’S LICENSORS (IF ANY) NOR ITS CHANNEL PARTNERS SHALL BE LIABLE FOR ANY INACCURACY OF THE JUNK EMAIL BLOCKING PROCESS INCLUDING THE LOSS OF WANTED EMAIL MESSAGES. TO THE FULL EXTENT ALLOWED BY LAW SONICWALL AND ITS LICENSORS (IF ANY) AND CHANNEL PARTNERS WILL NOT BE LIABLE TO LICENSEE OR ANY THIRD PARTY, WHETHER BASED IN CONTRACT, TORT (INCLUDING NEGLIGENCE), OR ANY OTHER LEGAL THEORY, FOR INCIDENTAL, CONSEQUENTIAL, INDIRECT, SPECIAL OR PUNITIVE DAMAGES OF ANY KIND, OR FOR LOSS OF REVENUE OR PROFITS, LOSS OF BUSINESS, LOSS OF INFORMATION OR DATA, INTERRUPTED COMMUNICATIONS, OR ANY DAMAGES THAT ARE NOT DIRECT, ARISING OUT OF OR IN CONNECTION WITH THIS EULA OR THE PERFORMANCE OR BREACH HEREOF, EVEN IF SONICWALL HAS BEEN ADVISED OF THE POSSIBILITY THEREOF.
Dollar Cap. THE MAXIMUM LIABILITY OF SONICWALL AND ITS LICENSORS (IF ANY) AND ITS CHANNEL PARTNERS FOR DAMAGES HEREUNDER (IF ANY) ARISING OUT OF OR IN CONNECTION WITH THIS EULA SHALL NOT EXCEED $100,000.
Validity. THESE DISCLAIMERS AND LIMITATIONS OF LIABILITY WILL NOT BE AFFECTED IF ANY REMEDY PROVIDED HEREIN FAILS OF ITS ESSENTIAL PURPOSE.
Consumer Rights. Some countries, states, or provinces do not allow the exclusion or limitation of incidental or consequential damages for certain products supplied to consumers, or the limitation of liability for personal injury, so the above limitations and exclusions may be limited in their application to Licensee.
15. TERM AND TERMINATION.
Term. This EULA commences on the Effective Date and shall remain in effect until such time as the Initial or Renewal Term expires (depending on which is purchased) unless terminated by either Party as provided below.
Termination. SonicWALL reserves the right to terminate this EULA five (5) years after the Software Key is issued to Licensee. Licensee may terminate this EULA at any time by ceasing use of the SonicWALL Comprehensive Anti-Spam Service and destroying the Software and Documentation, together with all copies and merged portions in any form. Either Party may terminate this EULA at any time upon written notice if the other Party: (i) is in material breach of its obligations hereunder and fails to cure such breach within thirty (30) days following written notice of such breach, (ii) becomes insolvent or ceases doing business; or (iii) files or has filed against it a petition under bankruptcy or insolvency law which remains undismissed after ninety (90) days, makes an assignment for the benefit of its creditors or takes any similar action under applicable bankruptcy or insolvency law.
Obligations Upon Termination. Upon termination of this EULA for any reason, Licensee shall discontinue use of the Comprehensive Anti-Spam Service. The terminating Party shall not be liable to the other Party for any damages on account of termination in accordance with this section. Termination shall not affect the terminating Party’s claim for damages arising out of the breach which led to such termination.
Survival. The following sections will survive termination of this EULA: 1 "Definitions", 3 "License Restrictions", 4 "Ownership", 5 "Reports and Audit", 7 "Privacy Statement", 12 "Limited Warranty and Disclaimers", 13 "Confidentiality", 14 "Limitation of Liability", Section 15 subsections entitled "Obligations Upon Termination" and "Survival", 16 "United States Government Rights", 17 "Export Restrictions", 18 "High-Risk Activities", and 19 "Miscellaneous".
16. UNITED STATES GOVERNMENT RIGHTS. For purposes of this EULA, "commercial computer software" means software developed or regularly used for nongovernmental purposes which (i) has been sold, leased, or licensed to the public, (ii) has been offered for sale, lease or license to the public; (iii) has not been offered, sold, leased, or licensed to the public but will be available for commercial sale, lease, or license in time to satisfy the delivery requirements of this EULA; or (iv) satisfied a criterion expressed in (i), (ii), or (iii) of this clause and would require only minor modification to meet the requirements of this EULA. If acquired by or on behalf of a civilian agency, the U.S. Government acquires this commercial computer software and/or commercial computer software documentation and other technical data subject to the terms of this EULA as specified in 48 C.F.R. 12.212 (Computer Software) and 12.211 (Technical Data) of the Federal Acquisition Regulation ("FAR") and its successors. If acquired by or on behalf of any agency within the Department of Defense ("DOD"), the U.S. Government acquires this commercial computer software and/or commercial computer software documentation subject to the terms of this EULA as specified in 48 C.F.R. 227.7202-3 of the DOD FAR Supplement ("DFARS") and its successors. This U.S. Government Rights clause is in lieu of, and supersedes, any other FAR, DFARS, or other clause or provision that addresses Government rights in computer software or technical data under this EULA.
17. EXPORT RESTRICTIONS. Licensee agrees not to export, either directly or indirectly, the Software, SonicWALL Comprehensive Anti-Spam Service, Documentation, or any technical data received from SonicWALL or any system incorporating such items (collectively "Technical Data") without first obtaining any required license or other approval from the U.S. Department of Commerce or any other agency or department of the United States Government. If Licensee exports any Technical Data from the United States or re-exports any Technical Data from a foreign destination, Licensee shall ensure that the export/re-export or import of the Technical Data is in compliance with all laws, regulations, orders or other restrictions of the United States and the applicable foreign government.
18. HIGH-RISK ACTIVITIES. The SonicWALL Comprehensive Anti-Spam Service is not fault-tolerant and is not designed or intended for use in High Risk Activities. SonicWALL will not be liable for any damages resulting from use in High Risk Activities.
19. MISCELLANEOUS.
Entire Agreement and Amendment. This EULA is intended as the complete, final and exclusive statement of the terms of the agreement between the Parties and supersedes all prior understandings, writings, proposals, representations or communications, oral or written, relating to the subject matter hereof. Except where unilateral modification by SonicWALL is specifically authorized herein, this EULA may not be modified except in a writing executed by an authorized representative of each Party.
Force Majeure. Neither Party shall be liable to the other Party for the failure to perform any of its obligations hereunder resulting from acts of the other Party, acts of civil or military authority, governmental priorities, earthquake, fire, flood, epidemic, quarantine, energy interruptions, strike, labor trouble, war, riot, accident, shortage, delay in transportation, or any other causes beyond the reasonable control of the Party whose performance is delayed.
Notices. Notices shall be given in writing to the Licensee contact and address provided for the mysonicwall.com account, and to SonicWALL at the address stated immediately below, or to such other address as shall be given by either Party to the other in writing. Any notice involving non-performance, termination, or renewal shall be personally delivered or be sent by recognized overnight courier or by certified mail, return receipt requested. All other notices may additionally be sent by fax or email with an automatic confirmation of transmission by the transmitting machine. All notices shall be deemed to have been given and received on the earlier of actual delivery (except that faxes and emails sent on a non-business day (according to the recipient’s business calendar) will be deemed received on the next business day) or three (3) days from the date of postmark.
To SonicWALL:
Attn: Legal Department
SonicWALL, Inc.
2001 Logic Drive
San Jose, California 95124-3452
Fax: 408/752-7952
Severability. If any provision of this EULA is held to be invalid, illegal, or unenforceable for any reason, such provision shall be modified only to the extent necessary to make it enforceable, and the validity, legality and enforceability of any of the remaining provisions shall not in any way be affected or impaired thereby.
Waiver. Failure of either Party to enforce compliance with any provision of this EULA shall not constitute a waiver of such provision unless accompanied by a clear written statement that such provision is waived. A waiver of any default hereunder or of any of the terms and conditions of this EULA shall not be deemed to be a continuing waiver or a waiver of any other default or of any other term or condition, but shall apply solely to the instance to which such waiver is directed.
Governing Law and Venue. This EULA shall be construed in accordance with, and all disputes hereunder shall be governed by, the laws of the State of California without reference to conflict of law principles. The Superior Court of Santa Clara County and/or the United States District Court for the Northern District of California shall have exclusive jurisdiction and venue over all controversies in connection herewith.
Choice of Language. (Applies if Licensee is located in a non-English speaking country) The original of this EULA is in English and Licensee waives any right to have it written in any other language.
