STONESOFT ® END USER LICENSE AGREEMENT 11-2009
This End User License Agreement (the “Agreement”) is an agreement between you, both the individual using Stonesoft products and any legal entity on whose behalf such individual is acting (“End User”) and Stonesoft Corporation, a corporation organized under the laws of Finland (“ Stonesoft”) with its principal place of business at Itälahdenkatu 22 A, Helsinki FI-00210, Finland.
PLEASE READ CAREFULLY THE TERMS OF THIS AGREEMENT PRIOR TO YOUR FIRST USE OF STONESOFT PRODUCTS. THE USE OF ANY STONESOFT PRODUCT IS SUBJECT TO THE TERMS AND CONDITIONS OF THIS AGREEMENT.
Definitions
“Channel Partner” means distributors and resellers authorized to sell the Stonesoft Products.
“Error” means any failure of the licensed Software to conform in any material respects to its written specifications.
“Hardware” means the Stonesoft hardware on which the Software operates.
“License File” means the file, which enables the Product to operate. This file is generated by End User from Stonesoft’s Website at www.stonesoft.com, by using the Proof of License, which is provided to End User along with the Product.
“Order Confirmation” means the order confirmation sent to the End User or the Channel Partner confirming the terms and conditions of the delivery of Stonesoft Products and specifies the Product specific limitations.
“Product” means all Stonesoft product(s), consisting of Software, any tools, documentation, Data or associated materials that may accompany such delivery and, if applicable, Hardware. The right to use Products may be limited
“Proof of License” means the code provided by Stonesoft to End User for the License File creation.
“Software” means the object code copy of the Stonesoft software solutions and all third party software that Stonesoft may license from third parties and license to the End User as part of the Software, as well as all related manuals and other documentation and any future upgrades provided by Stonesoft or its Channel Partner under this Agreement or any related maintenance agreement. Specifically excluded from this definition, are all software components licensed under the terms of the GNU General Public License or the GNU Lesser General Public License, as published by the Free Software Foundation (for example, software components relating to the Linux operating system kernel). Such components are distributed to End User solely under the terms of those respective licenses, copies of which End User has received along with the Software.
1. grant of License
1.1 End User is granted either
Subject to the payment of the purchase price of Product a nonexclusive, nontransferable, license for End User´s own internal use of the Software. Possible Product specific limitations to the license referred above are defined in Order Confirmation and License File. If Hardware is delivered, End User is entitled to use the Software only on the Hardware on which it was pre-installed and only in accordance with the relevant end user documentation provided by Stonesoft or its Channel Partner. Permanent License;
Or
Subject to the payment of the periodical price of Product; a nonexclusive, nontransferable, license for End User´s own internal use of the Software. The Periodical license is valid from the creation of the license until the end of the agreed period. Possible Product specific limitations to the license referred above are defined in Order Confirmation and License File. This license shall expire automatically and the ability to access and use Product will terminate at the end of the agreed period. Periodical License.
1.2 End User may make a reasonable number of back-up copies of the Software and any future upgrades. End User will reproduce all confidentiality and proprietary notices on each of these copies. End User may not (or permit others to) otherwise copy, reproduce, transfer, assign, sub-license, distribute, translate, modify, adapt, decompile, decipher, disassemble or reverse engineer the Software except to the extent expressly authorized by law.
1.3 Should End User purchase only Software to be used together with other hardware than specified in this Agreement, End User may use Software only for the number of IP addresses (actual number of IP addresses on the trusted side of the firewall calculated without any technology changing or hiding the IP address information) specified in the specific purchase order and related Order Confirmation.
1.4 Evaluation License
1.4.1 The evaluation license is valid for a period of thirty (30) days from the creation of the Evaluation License (“Evaluation Period”), and is designed to allow End User to evaluate the Product during such period. End User may use the evaluation licenses only for the purposes of internal evaluation and testing and not in a production environment.
1.4.2 At the end of the Evaluation Period, End User may purchase a license which, will allow End User to use the Product after the Evaluation Period. Otherwise End User’s rights under this Agreement shall terminate and End User shall promptly return to Stonesoft the Products or destroy all copies of the Product, and so certify to Stonesoft. The evaluation license shall expire automatically at the end of the Evaluation Period and in the event of any breach of these terms by End User.
1.4.3 In case the evaluation license is used beyond the Evaluation Period without a prior written approval by Stonesoft, End User shall be deemed to have acquired a license and will be liable for paying the then-current purchase price of the Product in question.
1.4.4 All evaluation licenses are granted on an “as-is” basis and Stonesoft makes no warranties of design, merchantability, fitness for a particular purpose or otherwise for such license and in no event shall Stonesoft be liable for any direct, special, indirect, incidental or consequential damages related the use of the Products during the Evaluation Period, even if Stonesoft has been advised of or otherwise has reason to know of the possibility of such damages.
1.5 License to Data: End User acknowledges that End User’s use of the Software will provide End User access to certain URL data (the “Data”) and a hosted URL categorization service (the “ Service”) and End User’s use of the Data and Service is subject to the same license terms as apply to the Software, with the additional restrictions that End User may not:
a) license, sublicense, sell, resell, transfer, assign, distribute or otherwise commercially exploit or make the Data available to any third party;
b) modify or make derivative works based upon the Data;
c) create Internet "links" to the Data or Service or "frame" or "mirror" the Data or Service on any other server or wireless or Internet-based device;
d) utilize the Data or Service in order to:
i. build a competitive product or service;
ii. build a product using similar ideas, features, functions or graphics;
iii. copy any ideas, features, functions or graphics.
2. SOFTWARE MAINTENANCE AND SUPPORT
2.1 Stonesoft provides support and maintenance service and future upgrades for the Software only under a separate Support and Maintenance agreement for so long as these services are generally available.
2.2 Software is sold either as a part of Stonesoft appliance or a software solution to be used in any compatible third party hardware. Stonesoft does not guarantee that the capacity of the appliance or the third party hardware will support all future features of the software or that all new upgrades will be compatible with the appliance or the third party hardware. However, Stonesoft will support licensed Software either in the form of making new upgrades compatible with Stonesoft appliance or providing support to the previous upgrade, until the end of the agreed support and maintenance period.
3. INTELLECTUAL PROPERTY RIGHTS
3.1 Title to the Software and the Data and all patents, copyrights, trade secrets and other proprietary rights in or related thereto are and will remain the exclusive property of Stonesoft and its licensors and subcontractors, whether or not specifically recognized or perfected under the laws of the country where the Software is used or located. End User will not take any action that jeopardizes such proprietary rights or acquire any right in the Software, except the limited license specified in this Agreement. Stonesoft and its licensors will own all rights in any copy, translation, modification, adaptation or derivation of the Software and Data, including any improvement or development thereof.
4. TERM AND TERMINATION
4.1 This Agreement is effective until terminated. Stonesoft may terminate this Agreement with immediate effect at any time upon End User’s breach of any of the provisions hereof. Upon termination of this Agreement, End User agrees to cease all use of the Software and to return to Stonesoft or destroy each copy of the Software and Data and all documentation and related materials in End User’s possession, and so certify to Stonesoft. Except for the license granted herein and as expressly provided herein, the terms of this Agreement shall survive termination.
5. INDEMNIFICATION
5.1 If notified promptly in writing of any action (and provided that Stonesoft has been promptly notified of all prior claims relating to such action) brought against End User based on a claim that the unaltered Software supplied under this Agreement infringes a patent copyright or trade mark, Stonesoft shall defend such action at its expense and pay any costs or damages finally awarded in such action which are attributable to such claim, provided that Stonesoft shall have sole control of the defense of any such action and all negotiations for its settlement or compromise.
5.2 If a final injunction is obtained against End User’s use of the Software by reason of infringement of a patent, copyright or trade mark, or if in Stonesoft’s opinion any of the Software covered by this Agreement is likely to become the subject of a successful claim of infringement of a patent, copyright or trade mark, Stonesoft shall, at its option and expense, either procure for End User the right to continue using such Software or replace or modify the same so that it becomes non-infringing while maintaining equivalent functionality or, at Stonesoft’s election, terminate this Agreement and provide End User a prorated refund (depreciated on a straight-line 3 year basis) for the Product and accept its return.
Notwithstanding the foregoing, Stonesoft or its suppliers shall not have any liability to End User under this Section if the infringement or claim is based upon (a) the use of the Software in combination with other equipment or software which is not furnished by Stonesoft (if such claim would have been avoided were it not for such combination), (b) Software which has been modified or altered by End User or (c) intellectual property rights owned End User or any of their respective affiliates. No cost or expenses shall be incurred for the account of Stonesoft without the prior written consent of Stonesoft.
5.3 THE FOREGOING STATES THE ENTIRE LIABILITY OF STONESOFT WITH RESPECT TO INFRINGEMENT OF PATENTS, COPYRIGHTS OR TRADE MARKS BY THE SOFTWARE OR ANY PART THEREOF.
6. WARRANTIES AND WARRANTY DISCLAIMERS
6.1 Stonesoft represents and warrants to End User that (a) it has all necessary right, title interest and authority to enter into this Agreement and to grant End User the rights hereunder; and (b) the Software will substantially conform to its specifications.
6.2 Stonesoft provides support and maintenance services for the Products. Under the agreed support and maintenance period or at least a period of one year after the delivery date of the Product, (Hardware Warranty Period) Stonesoft warrants that the Hardware is free from material defects in design, materials, and workmanship and will function, under normal use and circumstances, materially in accordance with the documentation provided with the Hardware.
6.3 End User’s sole and exclusive remedy, and Stonesoft’s sole and exclusive liability for defective Hardware shall be, solely upon confirmation of a defect or failure of Hardware to perform as warranted, to replace the nonconforming Hardware. Replacement Hardware is warranted to be free of defects in material or workmanship for the remaining time of the Hardware Warranty Period of the original Hardware. All defective Hardware, which has been replaced, shall become the property of Stonesoft.
6.4 Stonesoft does not warrant that the Hardware will be locally certified for electrical compliance in any country outside of the where to buy list of countries at Stonesoft’s Website at www.stonesoft.com Any use or distribution of any Hardware outside of the countries listed at the Website, will void any warranty extended hereunder, express or implied, and End User agrees to indemnify and hold Stonesoft harmless from any liability arising out of such use or distribution of the Hardware.
6.5 This limited warranty is void if the defect has resulted from accident, abuse, or misapplication or any other use of the Products not consistent with the terms and conditions of this Agreement.
6.6 The Products are not designed, manufactured or intended for use in hazardous environments requiring fail-safe performance, such as in the operation of nuclear facilities, aircraft navigation or communication systems, air traffic control, weapons systems, direct life-support machines, or any other application in which the failure of the Product could lead directly to death, personal injury, or severe physical or property damage or environmental damage (collectively, “High Risk Activities”). Stonesoft and its Channel Partners expressly disclaim any express or implied warranty of fitness for High Risk Activities.
6.7 EXCEPT FOR THE LIMITED WARRANTIES SET FORTH IN THIS SECTION, THE PRODUCTS ARE PROVIDED ON AN “AS IS” BASIS WITHOUT WARRANTY OF ANY KIND, EITHER EXPRESSED OR IMPLIED. STONESOFT DOES NOT WARRANT THAT THE PRODUCTS WILL MEET END USER’S REQUIREMENTS OR THAT ITS OPERATION WILL BE UNINTERRUPTED OR ERROR FREE. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, STONESOFT DISCLAIMS ALL WARRANTIES, EITHER EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT. Some jurisdictions do not allow the exclusion of implied warranties or limitations on how long an implied warranty may last, so the above limitations may not apply to End User.
7. LIMITATION OF LIABILITY
7.1 Stonesoft´s entire liability and End User´s exclusive remedy, with respect to any defective Product or error in the Services, shall be at Stonesoft’s optionto either, (i) replace the Product; (ii) correct the Error through updates and/or upgrades; or (iii) if prompt correction of the Error or replacement of the Product is not reasonably feasible, refund either the part of the purchase price paid for the Product or the Services corresponding the Error or cancel the deal and refund the entire purchase price.
7.2 IN NO EVENT, WHETHER IN TORT, CONTRACT OR OTHERWISE, SHALL STONESOFT OR ITS SUPPLIERS BE LIABLE TOWARDS END USER OR ANY THIRD PARTY FOR ANY INDIRECT, SPECIAL, INCIDENTAL OR CONSEQUENTIAL DAMAGES, COSTS, LOSS OR EXPENSE, (INCLUDING BUT NOT LIMITED TO LOST PROFITS, LOSS OR INTERRUPTION OF USE, LOSS OF DATA, COST OF PROCUREMENT OF SUBSTITUTE GOODS OR TECHNOLOGY) ARISING OUT OF THE SUBJECT MATTER OF THIS AGREEMENT IRRESPECTIVE OF WHETHER STONESOFT HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. Some jurisdictions do not allow the exclusion or limitation of incidental or consequential damages, so the above limitation or exclusion may not apply to End User.
7.3 UNDER NO CIRCUMSTANCES AND UNDER NO LEGAL THEORY, WHETHER IN TORT, CONTRACT OR OTHERWISE, SHALL STONESOFT OR ITS SUPPLIERS BE LIABLE FOR DAMAGES IN EXCESS OF THE PURCHASE PRICE OF THE RELEVANT PRODUCT.
7.4 THESE LIMITATIONS OF LIABILITY AS SET FORTH IN THIS SECTION 7 WILL NOT APPLY TO STONESOFT’S INFRINGEMENT INDEMNIFICATION OBLIGATIONS HEREUNDER.
8. CONFIDENTIALITY
8.1 End User acknowledges and agrees that the Products incorporate confidential and proprietary information developed or acquired by Stonesoft including but is not limited to technical or non-technical data, formulas, patterns, compilations, devices, methods, techniques, drawings and processes related with the Software.
8.2 End User may use confidential information solely in accordance with this Agreement and will take all reasonable precautions necessary to safeguard the confidentiality of such information. End User will hold in confidence and not disclose, reproduce, distribute or transmit, directly or indirectly, in any form, by any means, or for any purpose the confidential information except to those of its employees, agents, consultants or subcontractors who require access for End User’s authorized use of the Products in accordance with the terms of this Agreement. End User will not allow the removal or defacement of any confidentiality or proprietary notice placed on the Products or the related material.
8.3 End User shall not be restricted under this section 8 (Confidentiality) regarding information that End User affirmatively establishes that (i) has or becomes generally available to the public other than as a result of an act or omission of End User or any of its employees, agents, subcontractors or consultants (ii) was in the possession of End User before receiving the information or material related with the Products (iii) is independently developed by End User, or (iv) is required to be disclosed by law, court order or other legal process, provided that End User shall first provide Stonesoft with prompt notice thereof.
9. EXPORT CONTROL
9.1 End User is specifically advised and acknowledges that exports of the Products may be subject to compliance with the export control laws and regulations. The Products shall not be exported or re-exported, directly or indirectly, (i) without export or re-export license and/or governmental approvals required by any applicable laws, or (ii) in violation of any applicable prohibition against the export or re-export of any part of the Products.
10. EQUITABLE RELIEF
10.1 End User acknowledges that (i) any use or threatened use of the Products in a manner inconsistent with this Agreement, or (ii) any other misuse of the confidential information of Stonesoft will cause immediate irreparable harm to Stonesoft for which there is no adequate remedy at law. Accordingly, End User agrees that Stonesoft shall be entitled to immediate and permanent injunctive relief from a court of competent jurisdiction in the event of any such breach or threatened breach by End User. The parties agree and stipulate that Stonesoft shall be entitled to such injunctive relief without posting a bond or other security; provided however that if the posting of a bond is a prerequisite to obtaining injunctive relief, then a bond in the amount of $1000 shall be sufficient. Nothing contained herein shall limit Stonesoft’s right to any remedies at law, including the recovery of damages from End User for breach of this Agreement.
11. GENERAL
11.1 Amendment. The terms of this Agreement may not be modified except by a written agreement issued by a duly authorized representative of Stonesoft.
11.2 Compliance with Local Laws. End User agrees to comply with all applicable local laws that apply to End User’s use of the Product, and End User agrees to fully indemnify Stonesoft against any failure of End User to so comply with such local laws.
11.3 Governing Law. This Agreement is governed by the laws of Finland, without giving effect to the conflict of law principles thereof. The application of the United Nations Convention of Contracts for the International Sale of Goods is expressly excluded. All disputes arising under or relating to this Agreement shall be resolved exclusively in the appropriate Finnish court sitting in Helsinki, Finland.
11.4 Entire Agreement. This Agreement sets forth all rights for the End User of the Products and is the entire agreement between the parties. These terms supersede any other communications with respect to the license of the Software or use of the Products. No provision hereof shall be deemed waived unless such waiver shall be in writing and signed by Stonesoft or a duly authorized representative of Stonesoft. If any provision of these terms is held invalid, the remainder of these terms shall continue in full force and effect.
