SONICWALL, Inc. (“SonicWALL”) STANDARD END USER PRODUCT AGREEMENT
PLEASE READ THIS AGREEMENT CAREFULLY BEFORE USING THE SONICWALL PRODUCT. BY INSTALLING OR USING THE SONICWALL PRODUCT, YOU (AS THE CUSTOMER, OR IF NOT THE CUSTOMER, AS A REPRESENTATIVE/AGENT AUTHORIZED TO BIND THE CUSTOMER) INDICATE ACCEPTANCE OF AND AGREE TO THE TERMS AND CONDITIONS OF THIS AGREEMENT FOR AND ON BEHALF OF THE CUSTOMER. IF YOU DO NOT AGREE TO THE TERMS AND CONDITIONS OF THIS AGREEMENT, THEN DO NOT USE THE PRODUCT AND RETURN IT TO THE PLACE OF PURCHASE WITH PROOF OF PURCHASE WITHIN THIRTY (30) DAYS OF PURCHASE FOR A REFUND. IF YOU DO PROCEED TO INSTALL OR USE THE SONICWALL PRODUCT, YOU WILL HAVE INDICATED ACCEPTANCE AND AGREEMENT WITH THE TERMS AND CONDITIONS HEREIN. NOTWITHSTANDING THE FOREGOING, THIS AGREEMENT SHALL NOT SUPERSEDE ANY OTHER SIGNED AGREEMENT BETWEEN YOU AND SONICWALL THAT EXPRESSLY GOVERNS USE OF THE SONICWALL PRODUCT. IN INSTANCES WHERE YOU PURCHASE THROUGH A RESELLER OR DISTRIBUTOR, FINAL PRICES AND TERMS AND CONDITIONS OF SALE, INCLUDING WITHOUT LIMITATION ANY TERMS REGARDING PAYMENT OR RETURNS, WILL BE AS AGREED BETWEEN YOU AND THE THIRD PARTY FROM WHICH YOU MAKE SUCH PURCHASES; HOWEVER, THE TERMS SET FORTH HEREIN REGARDING YOUR USE OF THE SOFTWARE REMAIN APPLICABLE.
"Product" means the SonicWALL labeled hardware and related documentation ("Hardware") and/or proprietary SonicWALL labeled software, firmware and related documentation ("Software") purchased by you (“Customer” or “you”) either directly from SonicWALL or a Reseller. “Services” means the Support Services described below and any other services provided with or for the Products directly by SonicWALL or its agents. “Reseller” shall mean those entities to which SonicWALL or SonicWALL’s authorized distributors distribute the Products for resale to end users. Except as otherwise agreed upon by the parties, this Agreement will also cover any updates and upgrades to the Products provided to Customer by SonicWALL directly or through a Reseller (except as may be otherwise indicated, such updates and upgrades shall be deemed Products).
1. LICENSE(S) AND RESTRICTIONS.
(a) Licenses. Subject to the terms and conditions of this Agreement, SonicWALL grants to Customer, and Customer accepts from SonicWALL, a nonexclusive, non-transferable (except as otherwise set forth herein) and non-sublicensable license (“License”) to:
(i) execute and use the Software on the Hardware with which the Software is provided (pre-installed) in accordance with the applicable Documentation; and,
(ii) for Software provided in standalone form (without Hardware), install, execute and use the Software on the Hardware or hardware device(s) on which it is intended to be used in accordance with the applicable Documentation and the License purchased. If Customer purchased multiple copies of standalone Software, Customer’s License to such standalone Software includes the right to install, use and execute up to the number of copies of Software Licenses purchased.
In addition, the License includes the right to (x) make a reasonable number of additional copies of the Software to be used solely for non-productive archival purposes, and (y) make and use copies of the end user documentation for Hardware and/or Software provided with the Products (“Documentation”) as reasonably necessary to support Customer’s authorized users in their use of the Products.
(b) License Limitations. Order acknowledgments, Documentation and/or the particular type of the Products/Licenses purchased by Customer may specify limits on Customer’s use of the Software, and which limits apply to the License(s) granted hereunder for such Software. Such limits may consist of limiting the number of copies of the Software, the term of the License, or the number or amount of nodes, storage space, sessions, calls, users, subscribers, clusters, devices, ports, bandwidth, throughput or other elements, and/or require the purchase of separate Licenses to use or obtain particular features, functionalities, services, applications or other items. Use of the Software shall be subject to all such limitations.
(c) For Customer’s Internal Business. Each License shall be used by Customer solely to manage its own internal business operations as well as the business operations of its Affiliates. Notwithstanding the foregoing, if Customer is in the regular business of providing firewall, VPN or security management for a fee to entities that are not its Affiliates (“MSP Customers”), Customer may use the Products for its MSP Customers provided that either (i) Customer, and not MSP Customers, maintain control and possession of the Products, and (ii) MSP Customers do not use the Software. If MSP Customers have possession and/or control of Products in whole or in part, this Agreement must be provided to MSP Customers and they must agree that their use of the Products is subject to the terms and conditions of this Agreement. Customer will not provide, make available to, or permit use of the Software in whole or in part by, any third party, including MSP Customers and contractors, without SonicWALL’s prior written consent, unless such use by the third party is solely on Customer’s behalf, is strictly in compliance with the terms and conditions of this Agreement, and Customer is liable for any breach of this Agreement by such third party. Customer agrees to indemnify and hold SonicWALL harmless from and against any claims by MSP Customers against SonicWALL relating to the Products and/or Customer’s services for MSP Customers. “Affiliate” means any legal entity controlled by a party to this Agreement, but only for so long as such control relationship exists.
(d) Evaluation/Beta License. If the Software is provided by SonicWALL or a Reseller at no charge for evaluation purposes or in beta form, then Section 1(a) above shall not apply to such Software and instead Customer is granted a non-production License to use such Software and the associated documentation solely for Customer’s own internal evaluation purposes for an evaluation period of up to thirty (30) days from the date of delivery of the Software, plus any extensions granted by SonicWALL in writing (the "Evaluation Period"). There is no fee for Customer’s use of the Software for nonproduction evaluation purposes during the Evaluation Period, however, Customer is responsible for any applicable shipping charges or taxes which may be incurred, and any fees which may be associated with usage beyond the scope permitted herein. Beta software licensed hereunder, as identified by SonicWALL, may include pre-release features and capabilities which may not be available in SonicWALL’s generally available commercial versions of the Software. SonicWALL retains the right during the term to modify, revise, or remove SonicWALL beta software from Customer's premises. Customer acknowledges that SonicWALL owns all modifications, derivative works, changes, expansions or improvements to beta software, as well as all reports, testing data or results, feedback, benchmarking or other analysis completed in whole or in part in conjunction with usage of beta software. NOTWITHSTANDING ANYTHING OTHERWISE SET FORTH IN THIS AGREEMENT, CUSTOMER UNDERSTANDS AND AGREES THAT EVALUATION AND BETA SOFTWARE IS PROVIDED “AS IS”, WHERE IS, WITH ALL FAULTS AND THAT SONICWALL DOES NOT PROVIDE A WARRANTY OR MAINTENANCE SERVICES FOR EVALUATION OR BETA LICENSES, AND SONICWALL BEARS NO LIABILITY FOR ANY DIRECT, INDIRECT, INCIDENTAL, PUNITIVE, SPECIAL OR CONSEQUENTIAL DAMAGES RESULTING FROM USE (OR ATTEMPTED USE) OF THE EVALUATION OR BETA SOFTWARE THROUGH AND AFTER THE EVALUATION PERIOD AND HAS NO DUTY TO PROVIDE SUPPORT TO CUSTOMER. ANY BETA SOFTWARE MAY CONTAIN DEFECTS AND A PRIMARY PURPOSE OF LICENSING THE BETA SOFTWARE IS TO OBTAIN FEEDBACK ON THE SOFTWARE’S PERFORMANCE AND THE IDENTIFICATION OF DEFECTS. CUSTOMER IS ADVISED TO SAFEGUARD IMPORTANT DATA, TO USE CAUTION AND NOT TO RELY IN ANY WAY ON THE CORRECT FUNCTIONING OR PERFORMANCE OF THE BETA SOFTWARE AND/OR ACCOMPANYING MATERIALS.
(e) Restrictions. Customer may not (i) modify, translate, localize, adapt, rent, lease, loan, create or prepare derivative works of, or create a patent based on the Software or any part thereof, (ii) make copies except as expressly authorized under this Agreement, (iii) copy the Software onto any public or distributed network, (iv) modify or resell the Software, use the Software in connection with the operation of any nuclear facilities, or use for purposes which are competitive to SonicWALL, or (v) except as expressly authorized in Section 2(c) above, operate the Software for use in any time-sharing, outsourcing, service bureau or application service provider type environment. Unless and except to the extent authorized in the applicable Documentation, Software provided with and/or as the Product, in part or whole, is licensed for use only in accordance with the Documentation as part of the Product, and Software components making up a Product may not be separated from, nor used on a separate or standalone basis from the Product. Each permitted copy of the Software and Documentation made by Customer hereunder must contain all titles, trademarks, copyrights and restricted rights notices as in the original. Customer understands and agrees that the Products may work in conjunction with third party products and Customer agrees to be responsible for ensuring that it is properly licensed to use such third party products. Any Software provided in object code form is licensed hereunder only in object code form. Except to the extent allowed by applicable law if located in the European Union, and then only with prior written notice to SonicWALL, Customer shall not disassemble, decompile or reverse engineer the Software in whole or in part or authorize others to do so. Customer agrees not to use the Software to perform comparisons or other "benchmarking" activities, either alone or in connection with any other software or service, without SonicWALL’s written permission; or publish any such performance information or comparisons.
(f) Third Party Software. There may be certain third party owned software provided along with, or incorporated within, the Products (“Third Party Software”). Except as set forth below, such Third Party Software shall be considered Software governed by the terms and conditions of this Agreement. However, some Products may contain other Third Party Software that is provided with a separate license agreement, in which case such Third Party Software will be governed exclusively by such separate license agreement ("Third Party License") and not this Agreement. Any such Third Party Software that is governed by a Third Party License, and not this Agreement, will be identified on the applicable Product page on SonicWALL’s website and/or in a file provided with the Product. Except as SonicWALL may otherwise inform Customer in writing, the Third Party License gives Customer at least the license rights granted above, and may provide additional license rights as to the Third Party Software, but only with respect to the particular Third Party Software to which the Third Party License applies. SUCH THIRD PARTY SOFTWARE UNDER A THIRD PARTY LICENSE IS PROVIDED WITHOUT ANY WARRANTY FROM SONICWALL AND ITS SUPPLIERS, INCLUDING BUT NOT LIMITED TO WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT. Notwithstanding the foregoing, SonicWALL shall honor its warranty, maintenance and support obligations in respect to the SonicWALL Products regardless of whether the warranty, maintenance or support issue is caused in whole or in part by the Third Party Software provided by SonicWALL with the Product.
(g) Updates/Upgrades. If Customer purchases or otherwise is eligible to receive a Software update or upgrade, you must be properly licensed to use the Product identified by SonicWALL as being eligible for the update/upgrade in order to install and use the Software update/upgrade. A Software update/ upgrade replaces and/or supplements the Software Product that formed the basis for your eligibility for the update/upgrade, and does not provide you an additional License (copy) of the Software to use separately from the Software Product to be updated/upgraded. You may use the resulting updated/upgraded Product only in accordance with the terms of this Agreement.
(h) Activation Keys May Expire. Certain Products, including Security Services that provide regular ongoing updates for Software (e.g., Security Service consisting of anti-virus signature updates), may come with an activation key or license key (a key that must be entered to activate the Product, “Activation Key”). If the Activation Key for a Product is not activated within five (5) years from the date of issuance by SonicWALL, such Activation Key(s) may expire and no longer activate the Product. Products that come with an expiring Activation Key will operate for the contracted term of the License (or purchased Security Service), so long as the Activation Key is activated within five (5) years from SonicWALL’s date of issuance.
SonicWALL and its licensors are the sole and exclusive owners of the Software, and all underlying intellectual property rights in the Hardware. All rights not expressly granted to Customer are reserved by SonicWALL and its licensors.
3. TERMINATION OF LICENSE(S).
All licenses to the Software hereunder shall terminate if Customer fails to comply with any of the provisions of this Agreement and does not remedy such breach within thirty (30) days after receiving written notice from SonicWALL. Customer agrees upon termination to immediately cease using the Software and to destroy all copies of the Software which may have been provided or created hereunder.
4. SUPPORT SERVICES.
SonicWALL’s current Support Service offerings (“Support Services”) and the terms and conditions applicable to such Support Services are set forth in SonicWALL’s Support Services Terms located http://www.sonicwall.com/us/support/Services.html and are incorporated herein by reference. Support Services may require an additional fee. Unless otherwise agreed to in writing, SonicWALL’s Support Services are subject to SonicWALL’s Support Services Terms which are in effect at the time the Support Services are purchased by Customer, and these terms and conditions will be incorporated herein by reference at that time. SonicWALL reserves the right to change the Support Services Terms from time to time by posting such changes on its website, which shall apply to any Support Services purchased on or after the date of such posting.
5. SONICWALL WARRANTY.
(a) Warranty. SonicWALL warrants to Customer (original purchaser Customer only) that for the applicable warranty period (“Warranty Period”) the Hardware will be free from any material defects in materials or workmanship and the Software, if any, will substantially conform to the Documentation applicable to the Software and the License purchased (“Limited Warranty”). Except as may indicated otherwise in writing by SonicWALL, the Warranty Period for Hardware is one year from the date of registration of the Hardware Product (or if sooner, seven days after initial delivery of the Hardware Product to Customer), and the applicable warranty period for Software is ninety days from the date of registration of the Software Product (or if sooner, seven days after initial delivery/download) of the Software Product to/by Customer. SonicWALL does not warrant that use of the Product(s) will be uninterrupted or error free nor that SonicWALL will correct all errors. The Limited Warranty shall not apply to any non-conformance (i) that SonicWALL cannot recreate after exercising commercially reasonable efforts to attempt to do so; (ii) caused by misuse of the Product or by using the Product in a manner that is inconsistent with this Agreement or the Documentation; (iii) arising from the modification of the Products by anyone other than SonicWALL; or (iv) caused by any problem or error in third party software or hardware not provided by SonicWALL with the Product regardless of whether or not the SonicWALL Product is designed to operate with such third party software or hardware. SonicWALL's sole obligation and Customer's sole and exclusive remedy under any express or implied warranties hereunder shall be for SonicWALL to use commercially reasonable efforts to provide error corrections and/or, if applicable, repair or replace parts in accordance with SonicWALL’s Support Services Terms. Customer shall have no rights or remedies under this Limited Warranty unless SonicWALL receives Customer’s detailed written warranty claim within the applicable warranty period.
(b) Disclaimer. EXCEPT FOR THE EXPRESS WARRANTIES SET FORTH ABOVE, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW SONICWALL HEREBY DISCLAIMS ON BEHALF OF ITSELF, ITS SUPPLIERS, DISTRIBUTORS AND RESELLERS ALL WARRANTIES, EXPRESS, STATUTORY AND IMPLIED, APPLICABLE TO THE PRODUCTS, SERVICES AND/OR THE SUBJECT MATTER OF THIS AGREEMENT, INCLUDING, BUT NOT LIMITED TO, ANY WARRANTY OF MERCHANTABILITY, NON-INFRINGEMENT OR FITNESS FOR A PARTICULAR PURPOSE.
6. LIMITATION OF LIABILITY.
The Products are not designed, manufactured, authorized or warranted to be suitable for use in any system where a failure of such system could result in a situation that threatens the safety of human life, including without limitation any such medical, life support, aviation or nuclear applications. Any such use and subsequent liabilities that may arise from such use are totally the responsibility of Customer, and all liability of SonicWALL, whether in contract, tort (including without limitation negligence) or otherwise in relation to the same is excluded. Customer shall be responsible for mirroring its data, for backing it up frequently and regularly, and for taking all reasonable precautions to prevent data loss or corruption. SonicWALL shall not be responsible for any system downtime, loss or corruption of data or loss of production. NOTWITHSTANDING ANYTHING ELSE IN THIS AGREEMENT OR OTHERWISE, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT SHALL SONICWALL, ITS SUPPLIERS, DISTRIBUTORS OR RESELLERS BE LIABLE FOR ANY INDIRECT, INCIDENTAL, SPECIAL, PUNITIVE OR CONSEQUENTIAL DAMAGES, LOST OR CORRUPTED DATA, LOST PROFITS OR SAVINGS, LOSS OF BUSINESS, REPUTATION, GOODWILL OR OTHER ECONOMIC LOSS OR COSTS OF PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES, ARISING OUT OF OR RELATED TO THIS AGREEMENT, THE PRODUCTS OR THE SERVICES, WHETHER OR NOT BASED ON TORT, CONTRACT, STRICT LIABILITY OR ANY OTHER LEGAL THEORY AND WHETHER OR NOT SONICWALL HAS BEEN ADVISED OR KNEW OF THE POSSIBILITY OF SUCH DAMAGES. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, SONICWALL'S MAXIMUM LIABILITY TO CUSTOMER ARISING FROM OR RELATING TO THIS AGREEMENT SHALL BE LIMITED TO THE AMOUNTS RECEIVED BY SONICWALL FOR THE PRODUCTS AND THE SERVICES PURCHASED BY CUSTOMER, PROVIDED THAT WHERE ANY CLAIM AGAINST SONICWALL RELATES TO PARTICULAR PRODUCTS AND/OR SERVICES, SONICWALL'S MAXIMUM LIABILITY SHALL BE LIMITED TO THE AGGREGATE AMOUNT RECEIVED BY SONICWALL IN RESPECT OF THE PRODUCTS AND/OR SERVICES PURCHASED BY CUSTOMER AFFECTED BY THE MATTER GIVING RISE TO THE CLAIM. (FOR MAINTENANCE SERVICES OR A PRODUCT SUBJECT TO RECURRING FEES, THE LIABILITY SHALL NOT EXCEED THE AMOUNT RECEIVED BY SONICWALL FOR SUCH MAINTENANCE SERVICE OR PRODUCT PURCHASED BY CUSTOMER DURING THE TWELVE (12) MONTHS PRECEDING THE CLAIM).
CUSTOMER EXPRESSLY AGREES TO THE ALLOCATION OF LIABILITY SET FORTH IN THIS SECTION, AND ACKNOWLEDGES THAT WITHOUT ITS AGREEMENT TO THESE LIMITATIONS, THE PRICES CHARGED FOR THE PRODUCTS AND SERVICES WOULD BE HIGHER.
7. GOVERNMENT RESTRICTIONS.
Customer agrees that the Products provided under this Agreement, which may include technology and encryption, are subject to the customs and export control laws and regulations of the United States, may be rendered or performed either in the U.S., in countries outside the U.S., or outside of the borders of the country in which Customer or Customer’s system is located, and may also be subject to the customs and export laws and regulations of the country in which the Products are rendered or received. Customer agrees to abide by those laws and regulations. Customer agrees that it will not export or re-export the Products without SonicWALL's prior written consent, and then only in compliance with all requirements of applicable law, including but not limited to U.S. export control regulations. Customer has the responsibility to obtain any required licenses to export, re-export or import the Products. Customer shall defend, indemnify and hold SonicWALL and its suppliers harmless from any claims arising out of Customer’s violation of any export control laws relating to any exporting of the Products. By accepting this Agreement and receiving the Products, Customer confirms that it and its employees and agents who may access the Products are not listed on any governmental export exclusion lists and will not export or re-export the Products to any country embargoed by the U.S. or to any specially denied national (SDN) or denied entity identified by the U.S. Applicable export restrictions and exclusions are available at the official web site of the U.S. Department of Commerce Bureau of Industry and Security (www.bis.doc.gov). For purchase by U.S. governmental entities, the technical data and computer software in the Products are commercial technical data and commercial computer software as subject to FAR Sections 12.211, 12.212, 27.405-3 and DFARS Section 227.7202. The rights to use the Products and the underlying commercial technical data and computer software is limited to those rights customarily provided to the public purchasers as set forth in this Agreement. The Software and accompanying Documentation are deemed to be "commercial computer software" and "commercial computer software documentation," respectively, pursuant to DFAR Section 227.7202 and FAR Section 12.212, as applicable. Any use, modification, reproduction, release, performance, display or disclosure of the Software and accompanying Documentation by the United States Government shall be governed solely by the terms of this Agreement and shall be prohibited except to the extent expressly permitted by the terms of this Agreement.
(a) Governing Law and Venue. This Agreement shall be governed by and construed in accordance with the laws of the State of California, without giving effect to any conflict of laws principles that would require the application of laws of a different state. The parties agree that neither the United Nations Convention on Contracts for the International Sale of Goods, nor the Uniform Computer Information Transaction Act (UCITA) shall apply to this Agreement, regardless of the states in which the parties do business or are incorporated. Any action seeking enforcement of this Agreement or any provision hereof shall be brought exclusively in the state or federal courts located in the County of Santa Clara, State of California, United States of America. Each party hereby agrees to submit to the jurisdiction of such courts. Notwithstanding the foregoing, SonicWALL is entitled to seek immediate injunctive relief in any jurisdiction in the event of any alleged breach of Section 1 and/or to otherwise protect its intellectual property.
(b) Assignment. Except as otherwise set forth herein, Customer shall not, in whole or part, assign or transfer any part of this Agreement or any rights hereunder without the prior written consent of SonicWALL. Any attempted transfer or assignment by Customer that is not permitted by this Agreement shall be null and void. Any transfer/assignment of a License that is permitted hereunder shall require the assignment/transfer of all copies of the applicable Software along with a copy of this Agreement, the assignee must agree to all terms and conditions of this Agreement as a condition of the assignment/transfer, and the License(s) held by the transferor Customer shall terminate upon any such transfer/assignment.
(c) Severability. If any provision of this Agreement shall be held by a court of competent jurisdiction to be contrary to law, such provision will be enforced to the maximum extent permissible and the remaining provisions of this Agreement will remain in full force and effect.
(e) Notices. All notices provided hereunder shall be in writing, delivered personally, or sent by internationally recognized express courier service (e.g., Federal Express), addressed to the legal department of the respective party or to such other address as may be specified in writing by either of the parties to the other in accordance with this Section.
(f) Disclosure of Customer Status. SonicWALL may include Customer in its listing of customers and, upon written consent by Customer, announce Customer's selection of SonicWALL in its marketing communications.
(g) Waiver. Performance of any obligation required by a party hereunder may be waived only by a written waiver signed by an authorized representative of the other party, which waiver shall be effective only with respect to the specific obligation described therein. Any waiver or failure to enforce any provision of this Agreement on one occasion will not be deemed a waiver of any other provision or of such provision on any other occasion.
(h) Force Majeure. Each party will be excused from performance for any period during which, and to the extent that, it is prevented from performing any obligation or service as a result of causes beyond its reasonable control, and without its fault or negligence, including without limitation, acts of God, strikes, lockouts, riots, acts of war, epidemics, communication line failures, and power failures.
(i) Audit. Customer shall maintain accurate records to verify compliance with this Agreement. Upon request by SonicWALL, Customer shall furnish (a copy of) such records to SonicWALL and certify its compliance with this Agreement.
(j) Headings. Headings in this Agreement are for convenience only and do not affect the meaning or interpretation of this Agreement. This Agreement will not be construed either in favor of or against one party or the other, but rather in accordance with its fair meaning. When the term “including” is used in this Agreement it will be construed in each case to mean “including, but not limited to.”
(k) Entire Agreement. This Agreement is intended by the parties as a final expression of their agreement with respect to the subject matter hereof and may not be contradicted by evidence of any prior or contemporaneous agreement unless such agreement is signed by both parties. In the absence of such an agreement, this Agreement shall constitute the complete and exclusive statement of the terms and conditions and no extrinsic evidence whatsoever may be introduced in any judicial proceeding that may involve the Agreement. This Agreement represents the complete agreement and understanding of the parties with respect to the subject matter herein. This Agreement may be modified only through a written instrument signed by both parties.