SonicWall Capture Security Center (Hosted Offering)

These SonicWall Service Terms for Capture Security Center (these "Service Terms") are between SonicWall and the entity or person submitting an Order for the Capture Security Center Services ("Customer"). These terms apply only to SonicWall’s Capture Security Center hosted service offering and not for an offering that includes installation on an environment that you host and control.

SonicWall may modify these Services Terms at any time, but modifications are not effective for Orders that are in place prior to the modification until the Order renews or Customer adds new services to Customer’s account. See the Section 17.8 (Changes to Online Service Terms).

Please note that the Capture Security Center Services capture data about network connected devices, physical and virtual, and all traffic processed by those devices. See Section 3.4 (Security) below for additional information.

1. Definitions. The following terms, when capitalized, have the meanings stated below:

1.1 Affiliate means a legal entity that controls, is controlled by, or is under common control with the person referred to, for so long as such control exists.

1.2 Agent means a software agent provided by SonicWall for Customer’s installation on Customer’s network for the purpose of enabling Customer to use the Services;

1.3 Agreement means these Service Terms and the Order(s), collectively.

1.4 Customer Data means data, information and content that is: (i) transmitted to or from, or stored via the authorized use of the Services, (ii) created by Customer or its authorized users by means of the Services, or (iii) results from SonicWall’s processing of any of the foregoing, but excluding in each case de-identified or anonymous system usage data as described in Section 17.9.1 (“Customer Data”).

1.5 Documentation means the general release versions of user and administrative manuals and other documentation and technical policies for the Services, as updated from time to time by SonicWall.

1.6 Malware means viruses, spyware, adware, or other unauthorized code or information that is designed to interrupt the normal use of the Services or the Customer’s systems, or destroy or corrupt any data, or covertly transmit information.

1.7 MSP Agreement has the meaning given in Section 6 (Managed Services).

1.8 MSP Client has the meaning given in Section 6 (Managed Services).

1.9 Order means the Customer’s order for the Services that is submitted on forms prepared by SonicWall, and that is accepted by SonicWall or its Partner.

1.10 Outsourcer means a third party under contract with Customer to provide services to Customer in support of Customer’s internal business operations.

1.11 Partner means a reseller or distributor that is authorized by SonicWall to offer and sell the Services.

1.12 Personal Data has the meaning given in Section 16 (Personal Data).

1.13 Services means SonicWall making the Software available online through SonicWall’s hosted environment for Customer’s remote use as further described in an Order.

1.14 Software means (i) the SonicWall Capture Security Center software , (ii) the Agent, (iii) the Documentation, and (iv) updates and enhancements to either of the them made by SonicWall during the Term.

1.15 SonicWall means (i) for Customers located in the United States, SonicWall Inc., with its principal place of business located at 1033 McCarthy Blvd., Milpitas, CA 95035, USA and (ii) for Customers located outside the United States, SonicWall International Ltd. located at City Gate Park Mahon, Cork, Ireland.

1.16 Support means (i) assistance with the use or operation of the Services or Software provided on Customer’s request, and (ii) access to online Documentation as further described on SonicWall’s website and applicable Order that includes a defined set of Support commitments for a defined period.

1.17 SonicWall Technology means the Software, the Services environment, user and programming interfaces, reporting tools, and other software, information and materials that comprise the Services or that are used by SonicWall to provide the Services.

1.18 Term means the initial term and any renewal term, collectively.

1.19 Third Party Technology means software or other technology that Customer licenses directly from a third party for use with the Services.

2. Services and Support.

2.1 Services. The Services are provided during the Term pursuant to the terms and conditions, and subject to restrictions, stated in the Order and these Service Terms. The Services include those features described in Customer’s Order or that are part of the product set described in the Documentation and referenced in the Order. The Services include updates and enhancements that SonicWall releases during the Term as part of the Services product that Customer has purchased.

2.2 Support. SonicWall will provide Support in accordance with applicable support policies at www.sonicwall.com/support/support-services. Customer must provide SonicWall with all information that SonicWall reasonably requests in connection with Customer’s support request, including information needed to reproduce the error or other issue Customer experiences. If Customer purchases a Support offering that limits the number of individuals who may request Support on Customer’s behalf, Customer must identify Customer’s designated individuals in writing to SonicWall on request. Customer’s personnel who request Support must be reasonably proficient in the use of information technologies, and knowledgeable about Customer’s systems. SonicWall is not obligated to provide Support where the request is the result of any of the following (the “Support Exclusions”), but may do so, at its option: (i) use of the Services other than in accordance with the applicable terms of the Agreement, the Documentation or reasonable instructions provided by SonicWall, or (ii) excessive or repetitive requests for Support. SonicWall may charge additional fees for any work related to a Support Exclusion. Any SonicWall Support provided in connection with a Support Exclusion is provided AS IS. Support does not include planning, design, deployment or other professional or consulting services. SonicWall partners offer professional services as described on the SonicWall website (www.sonicwall.com/partners/partner-enabled-services) under separate legal terms.

3. Warranties and Remedies.

3.1 Services. SonicWall warrants that it will use commercially reasonable efforts to make the Services available to Customer 24 hours per day, 7 days per week, year-round, excluding unavailability due to reasonable maintenance. The Services will substantially conform to the applicable Documentation. Customer’s SOLE AND EXCLUSIVE REMEDY for SonicWall’s failure to meet the warranties stated in this Section is to require SonicWall to correct the failure, or if SonicWall does not correct the failure within a reasonable time, or correction is not commercially feasible, to terminate the Order and receive a refund of any pre-paid fees for unused Services. As a condition to the warranty remedy under this Section, Customer must give notice of the warranty failure within ten (10) days following the calendar month in which the breach occurs and must cooperate with SonicWall’s reasonable requests for information and assistance, including information necessary to reproduce the defect. The warranty does not apply to the extent a failure is due to a Support Exclusion as defined above.

3.2 Support. SonicWall warrants that it will provide Support in a professional manner using personnel who have appropriate education, experience, and skill. Customer’s SOLE AND EXCLUSIVE REMEDY for SonicWall’s failure to meet its Support warranty stated in this Section is to require SonicWall to correct or re-perform the deficient Support, or, if SonicWall fails to correct or re-perform the deficient Support, to terminate the Order and receive a refund of any pre-paid fees for unused services. As a condition to the warranty remedy under this Section, Customer must give notice of the warranty breach within ten (10) days following the calendar month in which the breach occurs and must cooperate with SonicWall’s reasonable requests for information and assistance. The warranty does not apply to Support Exclusions.

3.3 Malware. SonicWall warrants that it will use reasonable commercial efforts to deliver the Services free of Malware.

3.4 Security. SonicWall shall have and maintain, at its cost and expense, physical, organizational and technical measures and processes, security standards, guidelines, controls and procedures designed to meet the requirements of United Stated and European Union data protection laws. Customer is responsible for determining if the Services offered by SonicWall meet any and all regulatory requirements applicable to Customer and otherwise meet Customer’s business and security requirements. Customer acknowledges that the Services are designed to capture all of the information about the data flows transmitted to or through devices, as well as all of the configuration data about the devices, to the same extent as such information is available to the operator of the device.

3.5 Warranty Disclaimer. THE EXPRESS WARRANTIES AND REMEDIES SET FORTH IN THIS SECTION ARE THE ONLY WARRANTIES AND REMEDIES PROVIDED BY SONICWALL HEREUNDER. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, ALL OTHER WARRANTIES OR REMEDIES ARE EXCLUDED, WHETHER EXPRESS OR IMPLIED, ORAL OR WRITTEN, INCLUDING ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR ANY PARTICULAR PURPOSE, NON-INFRINGEMENT, SATISFACTORY QUALITY, AND ANY WARRANTIES ARISING FROM USAGE OF TRADE OR COURSE OF DEALING OR PERFORMANCE. SONICWALL DOES NOT WARRANT UNINTERRUPTED OR ERROR-FREE OPERATION OF THE SERVICES. SONICWALL DOES NOT WARRANT THAT THE SERVICES WILL ENABLE THE CUSTOMER TO DETECT ALL THREATS OR KEEP THE CUSTOMER’S NETWORK OR SYSTEMS FREE FROM ALL MALWARE AND SECURITY EVENTS.

3.6 Threat Update Services. The terms in this Section apply to the SonicWall’s provision of threat intelligence updates via the Services (the “Threat Update Services”). The Threat Update Services will not function unless Customer maintains a current subscription to the Services and complies with SonicWall’s enablement requests. On expiration of the initial term or any renewal term, the Threat Update Services will end unless Customer has renewed the Order and complied with any updated enablement instructions provided by SonicWall. SonicWall will use commercially reasonable efforts to make the Threat Update Services continuously available but does not warrant or represent that the Threat Update Services will be continuously available. SONICWALL DOES NOT WARRANT OR REPRESENT THAT THE THREAT UPDATE SERVICES WILL ENABLE CUSTOMER TO DETECT ALL THREATS OR KEEP THE CUSTOMER’S NETWORK OR SYSTEMS FREE FROM ALL MALWARE AND SECURITY BREACHES. The threat intelligence information provided as part of the Threat Update Services is SonicWall’s Confidential Information. As between SonicWall and Customer, the threat intelligence information is SonicWall’s proprietary information, and is licensed to Customer on the terms and conditions applicable to the Software.

4. License

4.1 General License Terms. The executable version of the Software is licensed to Customer on a non-exclusive basis solely for use as part of the Services, and subject to the terms, conditions and restrictions stated in this Section 4:

4.1.1 Use. The Software is licensed either for Customer’s internal use or for Customer’s use as a managed service provider. Licenses to use the Software as a managed service provider are subject to the additional terms and conditions of Section 6 (Managed Services) below;

4.1.2 License Term. The Software is licensed on a limited term basis for the Services period stated in the Order, or if no term is stated for one month. The license may be terminated or revoked as provided in Section 9 (Term and Termination);

4.1.3 Assignment. The license may not be transferred or assigned except as part of an assignment of the Agreement that is permitted by Section 17.3 (Assignment);

4.1.4 Sublicense. Customer may permit use of the Software by users authorized in accordance with Section 5.2 (Authorized Users), but may not otherwise sublicense the Software;

4.1.5 Copies. Customer may copy the Agent and Documentation as reasonably necessary for the use of the Services as permitted by the Agreement, but may not otherwise copy the Documentation or the Software. Customer must retain all SonicWall proprietary and restricted rights notices on each copy of the Documentation.

4.2 Restrictions

. Customer may not do any of the following:

1. except for the Agent, and except as reasonably necessary to use the Documentation as necessary for the permitted use of the Services, use the Software except on the SonicWall services environment;
2. use the SonicWall Technology in excess of the licensed quantities of users, hosts or other specifications for the Service purchased;
3. reverse engineer, decompile, disassemble, or attempt to discover or modify in any way the underlying source code or technology embodied by the executable version of the SonicWall Technology;
4. modify, translate, localize, adapt, create or prepare derivative works of the SonicWall Technology or any part of it;
5. publish any performance analysis or other “benchmarking” data without SonicWall’s prior written consent;
6. resell, distribute, rent, lease, or loan the Services except to the limited extent expressly permitted by Section 6 (Managed Services);
7. use the SonicWall Technology to create or enhance a competitive offering or for any other purpose that is competitive to SonicWall;
8. use the SonicWall Technology as part of any high-risk activity as described in Section 5.4 (High Risk Disclaimer);
9. use the SonicWall Technology to violate applicable laws;
10. use or configure the SonicWall Technology other than in accordance with the Documentation; or
11. enable the SonicWall Technology using any means other than the license keys or other enabling information provided by SonicWall or the Partner.

5. Customer Obligations

5.1 Acceptable Use, Responsibility for Use. Customer must use the Services in accordance with applicable law, including export laws, and in accordance with industry norms for acceptable use as reflected in the published acceptable use policies of then-current industry leading infrastructure services providers. Customer must use reasonable security precautions in connection with its use of the Services, such as Malware screening and requiring unique log ins for each individual user. Customer is responsible for the use of the Services by any user (human or automated) using a Customer login or other access credential, and for any use that results from Customer’s failure to use reasonable security precautions, even if such use is not authorized by Customer. Customer shall cooperate with SonicWall’s reasonable investigation of security issues.

5.2 Authorized Users. Customer authorizes SonicWall to act on the instructions of a user who authenticates using the account credentials Customer or its Outsourcer has established. Customer is solely responsible for maintaining the user permissions and authentication credentials for Customer’s account. Customer may not authorize anyone to use the administrative features of Customer’s Services account other than Customer’s and its Outsourcer’s personnel. Each user must have a separate log in.

5.3 Customer Data. SonicWall has no obligation to create backups or archives of Customer Data or to provide access to any backups or archives of Customer Data that SonicWall may create. Customer represents, warrants, and covenants to SonicWall that SonicWall’s use of the Customer Data as permitted by the Agreement does not infringe or misappropriate any third party intellectual property rights. SonicWall is not required to retain Customer Data following expiration or termination of the Services.

5.4 High-Risk Disclaimer. Customer understands and agrees that the Services are not fault-tolerant and are not designed or intended for use in any high-risk or hazardous environment, including without limitation, the operation of nuclear facilities, aircraft navigation, air traffic control, life support machines, weapons systems, or any other application where the failure or malfunction of the Services can reasonably be expected to result in death, personal injury, severe property damage or severe environmental harm (a “High-Risk Environment”). Accordingly, (i) Customer should not use the Services in connection with a High-Risk Environment, (ii) any use of the Services by Customer in a High-Risk environment is at Customer’s own risk, (iii) SonicWall, its affiliates and suppliers shall not be liable to Customer in any way for use of the Services in a High-Risk Environment, and (iv) SonicWall makes no warranties or assurances, express or implied, regarding use of the Software in a High-Risk Environment.

5.5 Audit. Customer shall maintain legible, accurate and complete books and records during the term of this Agreement and a period of five (5) years thereafter concerning this Agreement and the marketing, sale, distribution, licensing, delivery, and end-use of Services. At the end of this retention period, Customer shall appropriately dispose of all such records. Upon SonicWall’s request, Customer shall cooperate with and assist SonicWall with any audit, review, or investigation ("Audit") that relates to (a) this Agreement or Customer’s compliance with law; (b) Customer’s marketing, sale, distribution, licensing, or delivery of Services, whether sourced from SonicWall or a third-party; (c) any incentives, concessions, or other amounts paid or payable by SonicWall; or (d) any amounts due to SonicWall. In connection with an Audit, Customer will deliver all records, information, and documents reasonably requested by SonicWall. SonicWall has the right to conduct onsite Audits, and Customer will grant SonicWall and its employees and representatives reasonable access to information, records, personnel, and Customer’s clients (including client agreements to verify its compliance with this Agreement) and provide entry and access to Customer’s premises or other locations (during normal business hours) where such information and records are located. Failure by Customer to cooperate with an Audit or provide the information or records requested by SonicWall is a material breach of this Agreement. SonicWall will pay the costs of an Audit except where a discrepancy of five (5) percent or more is discovered in the information disclosed by Customer, in which case Customer agrees to be responsible for all reasonable costs.

6. Managed Service. If Customer has purchased an offering that is authorized for MSP use, Customer may use the Services to provide managed security services to its clients pursuant to a written subscription agreement signed by Customer and the Customer’s client (the “MSP Client”) that includes terms that: (i) restrict the MSP Client’s use of the Services to those Services purchased by the Customer, (ii) restricts the use of the Services to MSP Client’s internal business purposes; (iii) prohibits any assignment, transfer and sublicensing of the Services; (iii) protects SonicWall’s intellectual property and confidential information and protects SonicWall from liability and risk with terms at least as stringent as those terms applicable to Customer in these Service Terms, including the limitations of remedies and disclaimers in Section 3 (Warranties and Remedies), Section 4.1.6 (Restrictions), Section 5 (Customer Obligations), Section 10 (Suspension), Section 11 (Export), Section 12 (Third Party Technology), Section 14 (Limitations of Liability), Section 15 (Confidential Information), Section 16 (Personal Data), Section 17.8 (Changes to Online Terms), Section 17.9 (Ownership), and Section 17.4 (Restriction of Rights) (the “MSP Agreement”). In addition, the MSP Agreement must include a statement that the MSP Client has no recourse or claim whatsoever against SonicWall with respect to the Services, but shall look solely to the Customer. Customer shall interact with the MSP Client in regard to all Support issues and shall not refer the MSP Client to SonicWall for Support unless otherwise expressly agreed in advance in writing. On SonicWall’s request, Customer shall report the names and geographic locations of each MSP client and any other information that SonicWall may reasonably request in connection with the use authorized under this Section.

7. Evaluation, Proof of Concept. If SonicWall authorizes Customer to use the Services on an evaluation, “proof of concept,” or similar basis (with or without charge) (“Evaluation Services”), the following additional terms, conditions and restrictions apply unless otherwise expressly agreed in writing: (i) the Evaluation Services term is ninety (90) days and may be terminated by SonicWall prior to expiration at any time on written notice, with or without cause; (ii) the Evaluation Services may not be used in production, and may not be used to process or store production data or Personal Data; (iii) the Evaluation Services are provided AS IS, and AS AVAILABLE; (v) unless otherwise agreed, SonicWall has no obligation to provide Support for the Evaluation Services and any support that is provided is provided AS IS and AS AVAILABLE. Customer’s continued use of the Services beyond the authorized Evaluation term constitutes a purchase of a production subscription for the Services, and SonicWall will invoice Customer for the Services at its then-current list price.

8. Fees, Payments, Taxes

8.1 Fees. Fees are stated in the Order. Unless otherwise stated in the Order, SonicWall may invoice fees in advance. Customer may not use the Services in excess of the licenses and systems specifications limits stated or referenced in the Documentation or an Order. If Customer exceeds any limits or licenses, SonicWall may charge Customer at its then-current list price for usage at the higher level. Customer may not undermine SonicWall’s technical means of enforcing compliance with the specifications. Unless otherwise stated in the Agreement, fees are invoiced and must be paid in United States Dollars. Fees are non-refundable.

8.2 Payment. If Customer purchases SonicWall Services from a Partner, the fees and payment terms are stated in Customer’s agreement with the Partner. If Customer purchases SonicWall Services directly from SonicWall, the payment terms in this Section apply. SonicWall may invoice the Customer fees on or after the date the Customer submits an Order, or for renewals in advance of the renewal date. Unless otherwise agreed, fees are due thirty (30) days from invoice date. SonicWall may charge Customer interest on overdue amounts at the lesser of 1.5% per month or the maximum rate permitted by law, whichever is less, and may recover from Customer its reasonable expenses of collection, including court costs and attorney fees. In addition, if any payment for the Services is more than ten (10) days past due and has not been cured within ten (10) days of SonicWall’s notice of the overdue payment, SonicWall may suspend all or any part of Customer’s Services. SonicWall may charge Customer a reasonable fee to reinstate its Services after a suspension. If Customer reasonably disputes an invoiced amount SonicWall will not charge interest on the disputed amount, suspend the Services, or pursue collection efforts for up to thirty (30) days following the due date provided that Customer: (i) gives SonicWall a written notice describing the dispute in reasonable detail before the due date, (ii) pays when due any undisputed amounts, and (iii) cooperates in good faith to resolve the dispute.

8.3 Taxes. Fees are stated exclusive of any sales, value added, use, excise, goods and services, import/export duties and levies, and like transactions taxes (“Sales Tax”). Customer must pay Sales Tax that SonicWall is required to collect unless Customer has provided reasonably satisfactory evidence of a tax exemption in advance of invoicing. Customer may not withhold any taxes from fee payments, except for withholding (or similar) taxes that Customer is legally required to withhold under laws applicable to Customer. If Customer withholds any taxes, it shall promptly provide documentation of the withholding as reasonably requested by SonicWall, including documentation necessary to support SonicWall’s claim for any foreign tax withholding credit. SonicWall may, at its option, require the Customer to pay an additional fee equivalent to any withheld amounts.

9. Term and Termination.

9.1 Term. The initial term of each Order is stated in the Order. The term begins when SonicWall has provided the Customer with access information for the use of the Services. The Order expires at the expiration of the initial term unless Customer places an Order for a renewal.

9.2 Termination for Breach. Either party may terminate an Order or may terminate this Agreement and all Orders if the other party is in material breach of this Agreement or the Order, provided that if the breach is curable, the terminating party has first given the other party written notice describing the breach in reasonable detail and an opportunity to cure the breach of at least thirty (30) days. In addition, if Customer has materially breached this Agreement or an Order more than once during any twelve (12) month period, SonicWall may terminate all Orders and the Agreement without allowing an . opportunity to cure.

9.3 Early Termination Other than for Breach. Customer may terminate an Order for convenience at any time on thirty (30) days advance written notice, provided that, unless otherwise stated in the Order, Customer remains responsible for the fees for the remaining part of the then current term and any other committed fees stated in the Order. SonicWall may terminate an Order for convenience at any time prior to beginning the Services. A party may terminate this Agreement and any or all Orders without liability for such termination as follows: (i) by SonicWall in the event of a claim covered by Section 13.1 (SonicWall IP Infringement Indemnification); (ii) by either party if the other enters into compulsory or voluntary liquidation, or ceases for any reason to carry on business, or takes or suffers any similar action that the other party reasonably believes will materially impair its performance under the Agreement (including payment of fees).

9.4 Survival. The provisions terms of the Agreement that by their nature are intended to survive expiration or termination of the Agreement shall survive, including Section 13 (Indemnification), Section 14 (Limitation of Liability) and Section 15 (Confidentiality). Termination of this Agreement or a license shall be without prejudice to any other remedies that the terminating party or a Partner may have under law, subject to the limitations and exclusions set forth in this Agreement.

9.5 Return of Customer’s Content. Customer is responsible for exporting Customer’s Content from the Services prior to expiration or termination of the Agreement.

9.6 Obligations on Termination. On expiration or earlier termination of the Agreement Customer shall stop using the Services and shall uninstall and destroy any Agents in its possession or control, and each party shall return or destroy the other party’s Confidential Information.

10. Suspension. SonicWall may suspend Customer’s use of the Services (i) if required by law enforcement or legal process, (ii) in the event of an imminent security risk to SonicWall or its other customers, or (iii) if continued use would subject SonicWall to a risk of significant liability. SonicWall shall make commercially reasonable efforts under the circumstances to provide prior notice to Customer of any suspension.

11. Export. Customer acknowledges that the SonicWall Technology is subject to the export control laws, rules, regulations, restrictions and national security controls of the United States and other applicable foreign agencies (the "Export Controls"). Customer shall not export, re-export or otherwise transfer the SonicWall Technology or any part of it in violation of the Export Controls. Customer is solely responsible for obtaining all necessary licenses or authorizations relating to the export, re-export, or transfer of the SonicWall Technology in accordance with Export Controls and for ensuring compliance with the requirements of such licenses or authorizations. Customer (i) represents that Customer and, if applicable, each of Managed Services Clients and the authorized users is not an entity or person to which the provision of the SonicWall Technology is prohibited by the Export Controls; and (ii) agrees that it shall not export, re-export or otherwise transfer the SonicWall Technology to (a) any country subject to a United States trade embargo, (b) a national or resident of any country subject to a United States trade embargo, (c) any person or entity to which the provision of the SonicWall Technology or the Services is prohibited by the Export Controls, or (d) anyone who is engaged in activities related to the design, development, production, or use of nuclear materials, nuclear facilities, nuclear weapons, missiles or chemical or biological weapons.

12. Third Party Technology. The Services may include integration features designed to enable the exchange of information between the Services and Third Party Technologies. The integration features may be unavailable or may not work properly if a third party’s API is unavailable or if a third party modifies its API or services in a way that impacts the integration feature. SonicWall will use commercially reasonable efforts to modify its integration features to maintain compatibility with service provider’s APIs and services, but may discontinue an integration feature without liability to Customer if there is a change in the service that creates an unreasonable cost or operational burden to SonicWall. Customer’s obligations under the Agreement, for fees and otherwise, are not conditioned on the continued availability of any integration features. SonicWall does not endorse or recommend any Third Party Technology. Integration features are provided solely for Customer’s convenience. Customer is responsible for deciding if any Third Party Technology meet its needs and acknowledges that SonicWall has no liability whatsoever in connection with Customer’s use of the Third Party Technology.

13. Indemnification.

13.1 SonicWall IP Infringement Indemnification. SonicWall shall defend Customer from any claim, suit, action, or proceeding brought against Customer by a third party asserting that Customer’s use of the Services as permitted by the Agreement directly infringes or misappropriates any patent, copyright, trademark, or trade secret enforceable in the United States or a European Union, (a “Claim”), and shall pay any judgments finally awarded against Customer as a result of the Claim. In the alternative, SonicWall may settle a Claim at its expense, provided the settlement fully resolves the liability of Customer and does not require Customer to make any admission of liability or culpability. SonicWall’s obligations under this Section are conditioned on Customer (i) giving prompt written notice of the Claim to SonicWall, (ii) permitting SonicWall to retain sole control of the investigation, defense or settlement of the Claim, and (iii) providing SonicWall with cooperation and assistance as SonicWall may reasonably request in connection with the Claim. SonicWall shall have no obligation under this Section with respect to any Claim (a) resulting from a modification of the SonicWall Technology other than by SonicWall, (b) to the extent based on Customer’s use of the SonicWall Technology or Services after SonicWall has provided an updated version of the SonicWall Technology or Services that is free from the Claim, or (c) to the extent the Claim arises from or is based on the combination of the SonicWall Technology or Services with other products, services, or data not supplied by SonicWall if the infringement would not have occurred but for such combination. In the event of a Claim, SonicWall may, at its option, either (1) obtain for Customer the right to continue using the Services free from the infringement claim, or (2) replace or modify the Services so that they are free from the Claim provided the replacement or modification is functionally equivalent or better than the Services that are the subject of the Claim. In the event SonicWall is not able to do either on commercially reasonable terms, SonicWall may terminate the Services and refund any pre-paid license fees for unused periods. This Section states SonicWall’s entire liability and Customer’s SOLE AND EXCLUSIVE REMEDY with respect to a claim of intellectual property infringement or misappropriation.

13.2 Customer Indemnification. Customer shall indemnify and hold harmless SonicWall and its officers, directors, employees, personnel, representatives and agents from and against any and all losses, damages, claims, expenses and costs (including reasonable attorney fees) arising from Customer’s breach of the Agreement, or other acts or omissions. SonicWall shall have the right to defend any third party claim covered by Customer’s obligations under this Agreement and Customer shall reimburse SonicWall for its reasonable costs of defense (including reasonable fees) as incurred.

14. Limitation of Liability.

14.1 EXCEPT FOR ANY BREACH OF CONFIDENTIALITY OR INDEMNIFICATION OBLIGATIONS, CUSTOMER’S BREACH OF LICENSE TERMS, AND A PARTY’S GROSS NEGLIGENCE, RECKLESSNESS OR INTENTIONAL MISCONDUCT, IN NO EVENT SHALL EITHER PARTY OR ITS AFFILIATES, LICENSORS OR SUPPLIERS BE LIABLE FOR any indirect, incidental, special or consequeNTIAL loss or damage of any kind or for loss of revenue, loss of actual or anticipated profits, loss of business, loss of contracts, loss of goodwill or reputation, loss of anticipated savings, loss of, damage to or corruption of data, howsoever arising, whether such loss or damage was foreseeable or in the contemplation of the parties and whether arising in or for breach of contract, tort (including negligence), breach of statutory duty, or otherwise.

14.2 EXCEPT FOR ANY BREACH OF CONFIDENTIALITY OR INDEMNIFICATION OBLIGATIONS, CUSTOMER’S BREACH OF LICENSE TERMS, A PARTY’S GROSS NEGLIGENCE, RECKLESSNESS OR INTENTIONAL MISCONDUCT, CUSTOMER’S FEE PAYMENT OBLIGATIONS AND RELATED LATE INTEREST AND COLLECTION COSTS, THE MAXIMUM AGGREGATE AND CUMULATIVE LIABILITY OF EITHER PARTY AND ITS AFFILIATES, LICENSORS AND SUPPLIERS for damages under OR RELATED TO THe agreement, THE Services, or any technology provided under or in connection with this agreement, whether arising in or for breach of contract, tort (including negligence), breach of statutory duty, or otherwise, shall be an amount equal to THE GREATER OF THE FEES PAID OR PAYABLE BY CUSTOMER FOR THE SERVICES THAT ARE THE SUBJECT OF THE CLAIM FOR THE TWELVE (12) MONTHS PRECEDING THE OCCURRENCE OF THE EVENTS GIVING RISE TO THE CLAIM OR FIVE HUNDRED DOLLARS ($500.00). THE PARTIES ACKNOWLEDGE THAT THESE LIMITATIONS OF LIABILITY ARE AGREED ALLOCATIONS OF RISK CONSTITUTING PART OF THE CONSIDERATION FOR SONICWALL PROVIDING SERVICES TO CUSTOMER, AND SUCH LIMITATIONS WILL APPLY NOTWITHSTANDING THE FAILURE OF THE ESSENTIAL PURPOSE OF ANY LIMITED REMEDY AND EVEN IF A PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH LIABILITIES OR FAILURES.

15. Confidential Information.

15.1 Definition. “Confidential Information” means information or materials disclosed by one party (the “Disclosing Party”) to the other party (the “Receiving Party”) that are not generally available to the public and which, due to their character and nature, a reasonable person under like circumstances would treat as confidential, including, without limitation, financial, marketing, and pricing information, trade secrets, know-how, proprietary tools, knowledge and methodologies, the Services, information or benchmark test results regarding the functionality and performance of the Software or Services, Documentation, any logins or other Services enabling information provided to Customer, and the terms and conditions of this Agreement. Confidential Information shall not include information or materials that (i) are generally known to the public, other than as a result of an unpermitted disclosure by the Receiving Party; (ii) were known to the Receiving Party without an obligation of confidentiality prior to receipt from the Disclosing Party; (iii) the Receiving Party lawfully received from a third party without that third party’s breach of agreement or obligation of trust; (iv) are or were independently developed by the Receiving Party without access to or use of the Disclosing Party’s Confidential Information as evidenced by the Receiving Party’s written business records.

15.2 Obligations. The Receiving Party shall not disclose the Disclosing Party’s Confidential Information to any third party except as permitted below or use the Disclosing Party’s Confidential Information except to perform its obligations or exercise its rights under the Agreement. SonicWall shall use those measures described in Section 3.4 (Security) to protect the Customer Data from unauthorized use or disclosure, and shall protect Customer’s other Confidential Information using reasonable care. Customer shall use reasonable care to protect SonicWall’s Confidential Information from unauthorized use or disclosure. Customer acknowledges that the Receiving Party shall promptly notify the Disclosing Party of any known unauthorized use or disclosure of the Disclosing Party’s Confidential Information and will cooperate with the Disclosing Party in any litigation brought by the Disclosing Party against third parties to protect its proprietary rights. For the avoidance of doubt, this Section shall apply to all disclosures of the parties’ Confidential Information as of the Effective Date, whether specifically arising from a party’s performance under this Agreement.

15.3 Permitted Disclosures. Notwithstanding the foregoing, the Receiving Party may disclose the Disclosing Party’s Confidential Information without the Disclosing Party’s prior written consent to any of its Affiliates, directors, officers, employees, consultants, contractors or representatives (collectively, the “Representatives”), but only to those Representatives that (i) have a “need to know” in order to carry out the purposes of this Agreement or to provide professional advice in connection with this Agreement, (ii) are legally bound to the Receiving Party to protect information such as the Confidential Information under terms at least as restrictive as those provided herein, and (iii) have been informed by the Receiving Party of the confidential nature of the Confidential Information. The Receiving Party shall be liable to the Disclosing Party for the acts or omissions of any Representatives to which it discloses Confidential Information which, if done by the Receiving Party, would be a breach of this Agreement.
In addition, it shall not be a breach of this Section for the Receiving Party to disclose the Disclosing Party’s Confidential Information as may be required by operation of law or legal process, provided that the Receiving Party provides prior notice of such disclosure to the Disclosing Party (unless such notice is prohibited by law).

16. Personal Data. “Personal Data” means any information about a natural person that is identified or identifiable to the natural person, either alone or in combination with other information that SonicWall processes for Customer via the Services or has access to as part of providing the Services and purchased under this Agreement. Personal Data is Customer’s “Confidential Information” covered by SonicWall’s commitments stated in Section 15 (Confidential Information). In addition to those commitments, SonicWall makes the following commitments: (i) SonicWall will not use, disclose or process the Personal Data except as permitted by the Agreement or Customer’s other written instructions, or as strictly necessary for its internal administrative purposes related to the provision of the Services, (ii) SonicWall will require sub-contractors who have access to the Personal Data to contractually agree to terms at least as protective of the Personal Data as those stated in this Agreement, and (iii) SonicWall will comply with applicable United Stated and European Union data privacy laws and regulations. In respect of any data breach involving Personal Data, SonicWall shall, without undue delay: (a) notify Customer of the data breach; and (b) provide Customer with details of the data breach. SonicWall shall have no liability, howsoever arising, whether in contract, tort (including negligence) or otherwise for any losses, costs, expenses or liabilities arising from or in connection with any processing in accordance with Customer’s processing instructions following notification to Customer. SonicWall shall be liable only for losses related to a data breach, howsoever arising, whether in contract, tort (including negligence) or otherwise, under or in connection with this Agreement (a) only to the extent caused by the processing of Personal Data under this Agreement and directly resulting from the SonicWall’s breach of this Section, and (b) in no circumstances to the extent that any data breach losses (or the circumstances giving rise to them) are contributed to or caused by any breach of this Agreement by Customer. If a party receives a compensation claim from a person relating to processing of Personal Data, it shall promptly provide the other party with notice and full details of such claim. The party with conduct of the action shall (a) make no admission of liability nor agree to any settlement or compromise of the relevant claim without the prior written consent of the other party (which shall not be unreasonably withheld or delayed), and (b) consult fully with the other party in relation to any such action, but the terms of any settlement or compromise of the claim will be exclusively the decision of the party that is responsible under this Section for paying the compensation. Customer represents and warrants to SonicWall that: (i) the Personal Data has been collected in accordance with applicable privacy law, including data subject notice and consent requirements as necessary for Customer to authorize SonicWall to process the Customer Data; (ii) the transfer of the Personal Data to SonicWall for the purpose of providing the Services is authorized under applicable law; (iii) Customer will comply with applicable law as to requests from data subjects in connection with the Personal Data; (iv) Customer shall disclose to SonicWall only that Personal Data that is necessary for SonicWall’s provision of the Services; and (v) Customer shall not ask SonicWall to take any action with respect to the Personal Data that Customer is not permitted to take directly.

17. General.

17.1 Pre-Release Technology. SonicWall may invite Customer to use test, beta, pilot, limited release, developer preview, non-production, evaluation, or other pre-release software or services (“Pre-Release Technology”). Pre-Release Technology is provided AS IS and AS AVAILABLE without any representation or warranty whatsoever. SonicWall is not required to provide support for Pre-Release Technology. Customer may not use Pre-Release Technology for production purposes unless it has written permission from SonicWall. SonicWall may discontinue Pre-Release Technology at any time in its sole discretion and delete all Customer Data associated with the Pre-Release Technology. SonicWall may never offer a general release version of the Pre-Release Technology, or if it does, there may not be an automatic update path from the Pre-Release version to the general release version. SonicWall has no liability for any harm or damage arising from Customer’s use of a Pre-Release Technology.

17.2 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. Any action seeking enforcement of this Agreement or any provision hereof shall be brought exclusively in the state or federal courts located in the Santa Clara County, California. Each party hereby agrees to submit to the jurisdiction of such courts. 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. TO THE EXTENT PERMITTED BY APPLICABLE LAW, EACH PARTY WAIVES THE RIGHT TO A TRIAL BY JURY WITH RESPECT TO ANY LITIGATION ARISING OUT OF THE SUBJECT MATTER OF THIS AGREEMENT.

17.3 Assignment. Customer shall not, in whole or part, assign or transfer any part of this Agreement, or any rights, interest or obligations hereunder, whether voluntarily, by contract, by operation of law or by merger (whether that party is the surviving or disappearing entity), stock or asset sale, consolidation, dissolution, through government action or order, or otherwise 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.

17.4 Order of Precedence. The provisions of these Service Terms control over any conflicting provision in an Order.

17.5 Changes to the Services. Customer agrees that Customer’s purchases are not contingent on the delivery of any future functionality or features, or dependent on any oral or written public comments made by SonicWall regarding future functionality or features. Customer acknowledge that SonicWall may modify or suspend any of its Software, Services offerings, or any other products, services or support at any time. If a modification or suspension materially and adversely affects Customer’s use of the Services, Customer may terminate the Agreement by giving written notice of the change no later than 30 days following the date of the change and receive a refund of any prepaid fees for unused Services as Customer’s SOLE AND EXCLUSIVE REMEDY.
17.6 General Representations. Each party represents that it has validly entered into this Agreement and has the legal power to do so.
17.7 Representation by Individual Submitting the Order. If an individual submits an Order on his or her own behalf (including as a sole proprietor), the individual represents and warrants to SonicWall that he or she is old enough to enter into contracts and otherwise has the legal capacity to enter into contracts under applicable law. If the individual submits the Order does on behalf of a company or other legal entity, the individual represents and warrants to SonicWall that he or she has the legal power and authority to bind that entity to the Order and these Service Terms.
17.8 Changes to Online Service Terms. SonicWall may amend these Services Terms at any time in its sole discretion. Any amendment will become effective as to Customer’s Order at the earlier of (i) any amended or new Order that modifies the Order terms applicable to the Services, or (ii) the first renewal of the Order that follows the publication of the amendment by at least thirty (30) days. If the amendment materially and adversely impacts Customer’s use of the Services, Customer may terminate the Agreement by giving written notice no later than thirty (30) days following the date the amendment is published and receive a refund of prepaid fees for unused services as Customer’s SOLE AND EXCLUSIVE REMEDY.

17.9 Ownership, Reservation of Rights.

17.9.1 Customer Content. As between Customer and SonicWall, Customer owns and retains ownership and all rights in Customer Data. SonicWall may use Customer Data only for the purpose of providing the Services and exercising its legal rights and remedies in connection with the Agreement. For clarity, "Customer’s Data" does not include: (i) system generated data about Customer’s network or use of the Services ("System Data") provided that the System Data is not identifiable to Customer or any user, or (ii) any numerical or financial data about Customer’s users that is collected and maintained in aggregate anonymous form ("Anonymous Statistical Data"). Customer acknowledges that SonicWall owns and retains ownership rights in the System Data and Anonymous Statistical Data and may use, transfer, and commercially exploit the System Data and Anonymous Statistical Data for any purpose whatsoever.

17.9.2 SonicWall Technology. Customer understands and agrees that (i) the SonicWall Technology is protected by copyright and other intellectual property laws and treaties, (ii) SonicWall or its licensors own the copyright, and other intellectual property rights in the SonicWall Technology, and (iii) the SonicWall Technology is licensed, and not sold, and SonicWall or its licenses retains all right, title and interest in and to the SonicWall Technology

17.9.3 Reservation of Rights. Except for rights expressly granted in this Agreement, SonicWall retains all right, title and interest in and to the SonicWall Technology and all related intellectual property rights. No rights in intellectual property may arise by implication or estoppel.

17.9.4 Other. Customer hereby licenses to SonicWall any feedback or suggestions that Customer provides regarding the SonicWall Technology, Services or SonicWall’s other existing or proposed products or services on a perpetual, irrevocable, royalty free, worldwide, unconditional, fully sublicensable and transferable basis, including the right to make, have made, use, sell, offer to sell, import, copy, display, perform, modify, distribute in modified or unmodified form, and commercialize any intellectual property, without accounting to Customer. Customer agrees that Customer will not assert, or authorize, assist, or encourage any third party to assert, against SonicWall or any of its affiliates, vendors, business partners, or licensors, any patent infringement or other intellectual property infringement claim regarding the Service or any of SonicWall’s other products or services that Customer uses.

17.10 Severability. If any provision of this Agreement is held by a court of competent jurisdiction to be contrary to law, such provision will be enforced to the maximum extent permissible by law to effect the intent of the parties and the remaining provisions of this Agreement will remain in full force and effect. The parties have relied on the limitations and exclusions set forth in this Agreement in determining whether to enter into it.

17.11 Use by U.S. Government. The Software is a “commercial item” under FAR 12.201. Consistent with FAR section 12.212 and DFARS section 227.7202, any use, modification, reproduction, release, performance, display, disclosure or distribution of the Software or Documentation by the U.S. government is prohibited except as expressly permitted by the terms of this Agreement.

17.12 Notices. All notices provided hereunder shall be in writing and may be delivered by email, in the case of SonicWall to legal@sonicwall.com and in the case of Customer to the email address SonicWall has on file for Customer. All notices, requests, demands or communications shall be deemed effective upon delivery in accordance with this paragraph.

17.13 Publicity. SonicWall may include Customer in its listing of customers on its public web pages and other material unless Customer gives SonicWall written notice that it is not permitted to do. SonicWall may not otherwise use Customer’s name or logo in any publicity unless Customer has given its advance written consent.

17.14 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.

7.15 Injunctive Relief. Each party acknowledges and agrees that in the event of a material breach of this Agreement, including but not limited to a breach of the Software License, Restrictions or Confidential Information Sections of this Agreement, the non-breaching party shall be entitled to seek immediate injunctive relief, without limiting its other rights and remedies.

17.16 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. For added certainty, this Section shall not operate to change, delete, or modify any of the parties’ obligations under this Agreement (e.g., payment), but rather only to excuse a delay in the performance of such obligations.

7.17 Interpretations. 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.” The term “person” refers to any legal person, and may mean a natural person (individual), a legally created person (such as an entity, trustee, or executor), or an entity (such as a corporation, partnership, or limited liability company). The use of the words “partner” or “partnership” in this Agreement or otherwise refers only to a business relationship, and does not create or reflect any legal partnership, joint venture, or other fiduciary or other special relationship between the persons described as partners. The words “will” and “shall” are words of obligation, not expressions of intent or expectation. The word “personnel” means the employees or individual contractors under the direct supervision of the person referred to.

17.18 Legal Fees. If any legal action is brought to enforce any rights or obligations under this Agreement, the prevailing party shall be entitled to recover its reasonable attorneys’ fees, court costs and other collection expenses, in addition to any other relief it may be awarded.

17.19 Complete and Exclusive Agreement. The Agreement is the complete and exclusive agreement between the parties regarding its subject matter and supersedes and replaces in its entirety any prior or contemporaneous agreement or understanding written or oral.

 

Effective June 26, 2018