KERIO TECHNOLOGIES, INC.
END USER LICENSE AGREEMENT
This is a legal and binding agreement between you (either an individual or a legal entity) and Kerio Technologies Inc., its affiliates, subsidiaries, or licensors (hereinafter, "Kerio") and governs the use of the Software (as defined below) including, without limitation all associated Documentation (as defined below). Please read this End User License Agreement ("Agreement") carefully before using any Kerio products, including all software, associated media, and documentation (printed, electronic or referred to on Kerio's various websites and collectively, "Documentation") provided to you with such products (individually and collectively, the "Software"). The term ‘Software’ currently includes: our email service ("Kerio Connect"); firewall product ("Kerio Control"); and voice over Internet Protocol service ("Kerio Operator"); and such products and accompanying services, the "Services."
If you purchased the Software from Kerio or an authorized reseller, your Quote (as defined below) will include the Software title(s) and the Services purchased. "Quote" means the written or electronic order document, form or invoice issued by or accepted by Kerio or its authorized representative that provides pricing for the Software.
Notwithstanding any affirmative acceptance of this Agreement made during the installation or registration of a particular Software, by acquiring a license to use and/or using the Software you (including your agents, representatives and/or end users) and any entity that you represent (collectively "you," "your" or related terms), are each agreeing to be bound by the terms of this Agreement and to be fully responsible for the use of the Software by any of your authorized users. If you do not agree to all the terms and conditions of this Agreement or if you are not authorized by the entity intended to use the Software to enter this Agreement on its behalf, do not use the Software and if you have previously licensed the Software, seek a refund immediately.
TERMS AND CONDITIONS
1. LICENSE GRANT
Subject to your compliance with all the terms and conditions of this Agreement and payment of all applicable license fees associated with any license granted to you herein (collectively, "Fees"), Kerio hereby grants you a limited, non-transferable, non-assignable, non-sublicensable, non-exclusive license to use the Software for the number of license units contracted for and in accordance with any Documentation ("License") for: (i) a period of thirty (30) days from the date of download (the "Trial Period"), in the case of free trial downloads offered on Kerio websites ("Trial Licenses"); (ii) a period of time for which you have a subscription to use the Software in accordance with the applicable Quote; (iii) the time period extended by Kerio in each case in the case of free version downloads offered on Kerio websites ("Free Licenses"); or (iv) for a period of thirty (30) days (or such time period as Kerio may, in its sole discretion, extend from time to time in writing) from the date of installation solely for internal, non-commercial evaluation and testing purposes, in the case of Kerio Partners (defined as distributors and resellers participating in Kerio's Partner Program) who have been provided "Not For Resale" versions ("NFR") of the Software. The Software may only be used on the hardware and software components, including client machines, servers, and internetworking devices within your internal computer network at your location. For clarity, in the case of Trial Licenses, if you do not pay the applicable Fees prior to the conclusion of any applicable Trial Period, your Trial License will expire immediately at the conclusion of the Trial Period and you will no longer have any right or license, express or implied, to further use the Software in any manner thereafter. In addition, all license Fees are non-refundable. Accordingly, please evaluate and test the Software carefully during the Trial Period.
2. LICENSE UNITS
The unit by which the Software is evaluated or licensed varies by product type:
Kerio Connect is licensed on a (a) per Server; (b) per User; or (c) per Instance basis.
Kerio Control is licensed as Software on a (a) per Server or (b) per User basis.
Kerio Operator is licensed as Software on a (a) per Server or (b) per User basis.
Kerio Cloud is licensed on a per Mailbox basis.
In addition to the licensing above, hardware appliances for Kerio Control and Kerio Operator are available for purchase. The hardware appliances are governed by the Hardware Sales Agreement located at https://www.gfi.com/legal/kerio-hardware-terms-and-conditions-of-sale (and any successor or related locations designated by Kerio), as it may be updated from time to time.
(i)"Instance" means a single installation of the Software running on an operating system. For clarity, if the Software has been loaded into memory multiple times, then the number of Software licenses required in such circumstances will directly correspond to the number of times the Software has been loaded;
(ii)"Mailbox" means the destination to which email messages are delivered for the intended recipient;
(iii)"Server" means the virtual or physical location that the Software is installed; and
(iv)"User" means a person authorized to access and use the Software.
3. LICENSE RESTRICTIONS
You will have a limited right and license to use the Software solely for your internal business purposes, to perform the functions described in the Documentation. Except as expressly and clearly permitted under this Agreement or another agreement between you and Kerio, you expressly agree not to, directly or indirectly:
(i) modify, adapt or create derivative works of the Software or any portion thereof (except when modifying the GNU Lesser Public License library);
(ii) reverse engineer (except when debugging such modification as described in item (i) above), disassemble, decompile the Software (or any element thereof) or otherwise attempt to discover the source code or structure, sequence and organization of the Software or any element thereof or permit others to do so. Disassembling, decompiling, and reverse engineering include, without limitation: (a) converting the Software from a machine-readable form into a human-readable form; (b) disassembling or decompiling the Software by using any means or methods to translate machine-dependent or machine-independent object code into the original human-readable source code or any approximation thereof; (c) examining the machine-readable object code that controls the Software’s operation and creating the original source code or any approximation thereof by, for example, studying the Software’s behavior in response to a variety of inputs; or (d) performing any other activity related to the Software that could be construed to be reverse engineering, disassembling, or decompiling. To the extent any such activity may be permitted pursuant to written agreement, the results thereof will be deemed Confidential Information subject to the requirements of this Agreement. You may use Kerio’s Confidential Information solely in connection with the Software and pursuant to the terms of this Agreement;
(iii) use the Software in violation of any usage or licensing restrictions provided elsewhere in the Documentation (including, without limitation, use of Kerio Control's guest network feature by persons employed by or consulting to your organization to access your internal network resources);
(iv) use the Software in violation of any applicable law in your jurisdiction or other jurisdictions where you operate (such as, without limitation, laws restricting delivery of unsolicited or unauthorized mail, spam, or other forms of unsolicited messages);
(v) copy, rent, lease, loan, resell, transfer, sublicense or otherwise distribute or sell the Software (except where otherwise expressly agreed to by Kerio in writing); or(vi) remove, alter or obscure any Software identification, trademark, copyright, confidentiality, proprietary or other notices or legends contained on or within the Software (or any copy or portion thereof); or
(vi) violate any of the terms of the terms of service or acceptable use policies applicable to the Software, which terms and policies may be found at https://www.gfi.com/legal or https://www.gfi.com/legal/kerio-cloud-terms-service, (and any successor or related locations designated by Kerio) and which may be updated at any time by Kerio.
Additionally, any consultant, contractor, or agent hired to perform services for you may operate the Software on your behalf under these terms and conditions, provided that: (a) you remain responsible for ensuring that any such third party agrees to abide by and fully comply with the terms of this Agreement on the same basis as applicable to you; (b) such use is only in connection with your internal business purpose; (c) such use does not represent or constitute an increase in the scope of the License provided hereunder; and (d) you remain fully liable for any and all acts or omissions by such third parties related to this Agreement.
4. LICENSE REGISTRATION
You, and not the Kerio distributor or reseller, are required to register the Software (from the administration console in the Software or online at www.kerio.com) or the regional equivalent. The following data must be provided by you: name of your company/business, address, name of your point of contact ("POC"), POC email, and POC phone number.
5. INTELLECTUAL PROPERTY RIGHTS
The Software (including the Services) is protected under intellectual property laws in the United States and other countries protect the Software. Title, ownership rights, and intellectual property rights in and to the Software (including the Services), and any copies or elements thereof, will remain with Kerio and those third party technology suppliers who have provided Third Party Add-ons (as defined below) or other technology to the Software (including the Services) (these "Third Party Technology Suppliers" currently include, without limitations, Bitdefender, Sophos, zVelo, Microsoft and Digium). Except for the limited rights expressly granted to you under the License described herein all rights in the Software (including the Services) remain with Kerio and its Third Party Technology Suppliers. You further agree not to pursue or participate in a patent infringement cause of action against Kerio or its Third Party Technology Suppliers. Kerio reserves all rights in the Software and elements thereof not expressly granted to you in this Agreement.
You and Kerio’s trademarks, trade names, service marks, and logos, whether or not registered (“Marks”), are the sole and exclusive property of the respective owning party, which owns all right, title and interest therein. Kerio may: (i) use your name and/or logo within product literature, press release(s), social media, and other marketing materials; (ii) quote your statements in one or more press releases; and/or (iii) make such other use of your name and/or logo as may be agreed between the parties. Additionally, Kerio may include your name and/or logo within its list of customers for general promotional purposes. Kerio shall comply with your trademark use guidelines as such are communicated to the Kerio in writing and Kerio shall use your Marks in a manner which is consistent with industry practice. Neither party grants to the other any title, interest or other right in any Marks except as provided in this Section.
6. CONFIDENTIAL INFORMATION
In this Agreement, "Confidential Information" means all information disclosed by you to Kerio or by Kerio to you in connection with this Agreement and your subscription to use the Software, which is in tangible form and labeled "confidential" (or with a similar legend) or which a reasonable person would understand to be confidential given the nature of the information and circumstances of disclosure. All Confidential Information in tangible form will be marked as “Confidential” or the like or, if intangible (e.g., orally disclosed), will be designated as being confidential at the time of disclosure and will be confirmed as such in writing within thirty (30) days of the initial disclosure. Notwithstanding the foregoing, the following is deemed Kerio Confidential Information with or without such marking or written confirmation: (i) the Software and other related materials furnished by Kerio; (ii) the oral and visual information relating to the Software; and (iii) this Agreement. For clarity, the term ‘Confidential Information’ does not include any Personal Data. To the extent you disclose to Kerio any of your Confidential Information, Kerio will only use your Confidential Information to exercise its rights and perform its respective obligations under this Agreement, and will disclose such Confidential Information solely to those of its employees, representatives, agents and sub-contractors who have a need to know such Confidential Information for such purposes and who are bound to maintain the confidentiality of, and not misuse, such Confidential information. The provisions of this Section will supersede any non-disclosure agreement (if any) by and between you and Kerio entered prior to this Agreement that would purport to address the confidentiality of your Confidential Information and such agreement will have no further force or effect with respect to your Confidential Information.
Notwithstanding the foregoing, Confidential Information does not include information that (a) was already known to the receiving party at the time of disclosure by the disclosing party; (b) was or is obtained by the receiving party by a third party not known by the receiving party to be under an obligation of confidentiality with respect to such information; (c) is or becomes generally available to the public other than by violation of these Terms; or (d) was or is independently developed by the receiving party without use of the disclosing party's Confidential Information.
Nothing in this Agreement will be construed to convey any title or ownership rights to the Software or other Kerio Confidential Information or to any patent, copyright, trademark, or trade secret embodied therein, or to grant any other right, title, or ownership interest in Kerio Confidential Information to you. Nothing in this Agreement will be construed to convey any title or ownership rights to your Confidential Information or to any patent, copyright, trademark, or trade secret embodied therein, or to grant any other right, title, or ownership interest in your Confidential Information to Kerio. Neither party shall, in whole or in part, sell, lease, license, assign, transfer, or disclose the Confidential Information to any third party and shall not copy, reproduce, or distribute the Confidential Information except as expressly permitted in this Agreement. Each party shall take every reasonable precaution, but no less than those precautions used to protect its own Confidential Information, to prevent the theft, disclosure, and the unauthorized copying, reproduction, or distribution of the Confidential Information.
Each party agrees at all times to use all reasonable efforts, but in any case no less than the efforts that each party uses in the protection of its own Confidential Information of like value, to protect Confidential Information belonging to the other party. Each party agrees to restrict access to the other party’s Confidential Information only to those employees or Subcontractors who: (i) require access in the course of their assigned duties and responsibilities; and (ii) have agreed in writing to be bound by provisions no less restrictive than those set forth in this Section.
Each party acknowledges that any unauthorized disclosure or use of the Confidential Information would cause the other party imminent irreparable injury and that such party will be entitled to, in addition to any other remedies available at law or in equity, temporary, preliminary, and permanent injunctive relief in the event the other party does not fulfill its obligations under this Section 6.
Upon the written request of disclosing party, receiving party shall return or destroy (and certify such destruction in a signed writing) all Confidential Information of disclosing party, including all copies thereof and materials incorporating such Confidential Information, whether in physical or electronic form. Each party may retain a copy of the other party’s Confidential Information solely for archival purposes. To the extent that it is impracticable to return or destroy any Confidential Information, and with respect to any copies retained for archival purposes, receiving party shall continue to maintain the Confidential Information in accordance with this Agreement. The confidentiality obligations set forth in this Agreement will survive the termination of this Agreement and remain in full force and effect until such Confidential Information, through no act or omission of receiving party, ceases to be Confidential Information as defined hereunder.
7. PERSONAL DATA
In this Agreement, "Personal Data" means any information relating to an identified or identifiable natural person, whereby an identifiable natural person is one who can be identified, directly or indirectly, in particular by reference to an identification number or to one or more factors specific to his physical, physiological, mental, economic, cultural or social identity.
You agree that Kerio and the service providers it uses to assist in providing the Software to you will have the right to access your Personal Data and to use, modify, reproduce, distribute, display and disclose your Personal Data solely to the extent necessary to provide the Software, including, without limitation, in response to your support requests. Any third party service providers that Kerio utilizes will only be given access to your Personal Data as is reasonably necessary to provide the Software and will be subject to confidentiality obligations.
8. COMPLIANCE MONITORING
You acknowledge that the Software includes features to enable Kerio or its agents to remotely monitor Software usage in violation of the License and you hereby grant Kerio, its resellers, and agents the right to monitor your usage to ensure compliance. To the extent that Kerio reviews and/or collects any personal information in regards to pursuing the enforcement of this Agreement, Kerio will (i) protect and keep confidential such information; (ii) not use such information for reasons other those related to License enforcement; and (iii) not sell, distribute or pass on such information to any third party, except as necessary pursuant to a valid court order and/or as required by law.
9. THIRD PARTY ADD-ONS AND SOURCE CODE
Kerio offers third-party software components in the Software or as optional add-ons to the Software for additional license Fees (collectively "Third Party Add-Ons"). Because these Third Party Add-Ons are distributed to Kerio from various third-parties and redistributed by Kerio to you, you may be required to comply with additional provisions of such third-party licenses. The Third Party Add-Ons page (https://www.gfi.com/legal/kerio-license-agreement/addons and any successor or related locations designated by Kerio) will link you to the provisions that apply to Third Party Add-Ons and will be considered Exhibit B to this Agreement, incorporated into this Agreement by reference. Accordingly, any Third Party Add-Ons that may be licensed by you will become part of Software and subject to this Agreement and the applicable terms contained in Exhibit B. In the event of a conflict between the terms and conditions of any license provided in Exhibit B and the terms and conditions provided in this Agreement, the terms and conditions of any license in Exhibit B will control. Notwithstanding the foregoing, Kerio, in its sole discretion, reserves the right to substitute, modify, eliminate or otherwise change Third Party Add-Ons at any time during the term of this Agreement.
Kerio utilizes various third party source codes (the "Source Codes") in the Software which are offered to the general public free of charge by their developers. Such Source Codes are protected under the applicable version of the GNU General Public License ("GPL"), which also governs their usage. Accordingly, you, as the purchaser of Software containing the Source Codes, are required to comply with any relevant GPL provisions (such provisions are provided in the source archive of the Software, but can also be obtained in the acknowledgments file via the control box's web administration title screen. Additionally, with respect to Software which contains such Source Codes, Kerio is obligated under the GPL to provide you free access thereto. In light of the foregoing, the Source Codes page (http://download.kerio.com/archive/opensource and any successor or related locations designated by Kerio) will provide downloadable versions of the Source Codes contained in such Software. The GPL license provisions that apply to such Software will be considered Exhibit C to this Agreement and are incorporated into this Agreement by this reference. As such, any Source Code contained in the Software and/or are otherwise downloaded by you is considered part of the Software and are subject to this Agreement and the applicable terms contained in Exhibit C. In the event of a conflict between the terms and conditions of any license provided in Exhibit C and the terms and conditions of this Agreement, the terms and conditions of any license in Exhibit C will control. Notwithstanding the foregoing, Kerio, in its sole discretion, reserves the right to substitute, modify, eliminate or otherwise change its products' Source Codes at any time during the term of this Agreement.
10. SUPPORT AND SOFTWARE MAINTENANCE
Support may be obtained with an active subscription via the Kerio website at https://support.gfi.com (and any successor or related locations designated by Kerio) or your regional equivalent. Current Kerio support policies apply.
Software maintenance, which encompasses receiving "Updates" to the current version of the Software you license, may be obtained using the "update checker" feature provided or via download from the Kerio website. Software maintenance is available throughout the term of your License for the Software. Free updates may be obtained in the same manner for Trial Licenses, Free Licenses or NFRs. In an effort to improve the Software and develop such Updates, the Software contains features that allow Kerio to remotely and automatically identify, track and analyze certain aspects of use and performance of Software and/or the systems on which it is installed, as well as the operator and operating environment (including problems and issues that arise in connection therewith). You may disable this Update feature of the Software at any time, otherwise you hereby agree that Kerio may use any data and information it collects strictly for its internal purposes. Kerio will protect and keep confidential such information, not use such information for reasons other those discussed in this Agreement, and not sell, distribute or pass on such information to any third party.
This Agreement is effective until terminated in accordance with this Section. This Agreement will terminate automatically without notice from Kerio if (i) you fail to comply with any term(s) or conditions hereunder, including failure to make full payment of applicable license Fees within fifteen (15) days of the due date; (ii) you file a petition for bankruptcy or insolvency, have an involuntary petition filed against you, commenced an action providing for relief under bankruptcy laws, file for the appointment of a receiver, or adjudicated a bankrupt concern; or (iii) at the end of any applicable Trial Period where applicable Fees have not been paid.
This Agreement may be terminated by you by giving prior written notice to Kerio if Kerio fails to perform any material obligation required of it hereunder, and such failure is not cured within thirty (30) days from Kerio’s receipt of your notice to cure such non-performance of material obligation. Such notice will describe, in detail, Kerio’s alleged non-performance and will describe, in detail, the steps you believe Kerio must take to remedy such alleged non-performance.
Notwithstanding termination of this Agreement for any reason, any provision herein that by its intended effect reasonably should survive termination will remain effective post termination as needed to affect such provision. Upon the termination of this Agreement for any reason, the License granted hereunder will terminate and you agree to cease all use of the Software and to destroy all copies of the Software and related information. Termination of this Agreement will not limit either party from pursuing other remedies available to it, including injunctive relief, nor will such termination relieve your obligation to pay all fees that have accrued or are otherwise owed by you under this Agreement.
12. DISCLAIMER OF WARRANTIES
THE SOFTWARE IS PROVIDED "AS IS", WITH ALL FAULTS AND WITHOUT WARRANTY OF ANY KIND, AND KERIO, ITS REPRESENTATIVES, ITS DISTRIBUTORS AND RESELLERS AND ITS THIRD PARTY TECHNOLOGY SUPPLIERS (COLLECTIVELY REFERRED TO AS "KERIO" FOR THE PURPOSES OF THESE SECTIONS 12, 13 AND 14) HEREBY DISCLAIM ALL WARRANTIES AND CONDITIONS WITH RESPECT TO THE SOFTWARE, EITHER EXPRESS, IMPLIED OR STATUTORY, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES AND CONDITIONS OF MERCHANTABILITY, SATISFACTORY QUALITY, OR FITNESS FOR A PARTICULAR PURPOSE, ACCURACY, ENJOYMENT, OR NON-INFRINGEMENT. IN ENTERING THIS AGREEMENT YOU EXPRESSLY ACKNOWLEDGE AND AGREE THAT USE OF THE SOFTWARE IS AT YOUR SOLE RISK AND THAT YOU UNDERSTAND THAT NO GUARANTEE OR REPRESENTATION IS MADE BY KERIO WITH REGARD TO THE SATISFACTORY QUALITY, PERFORMANCE, ACCURACY, FITNESS FOR A PARTICULAR PURPOSE, OR ENJOYMENT WITH REGARD TO YOUR USE OF THE SOFTWARE.
KERIO AND ITS THIRD PARTY TECHNOLOGY SUPPLIERS DO NOT WARRANT (I) AGAINST INTERFERENCE WITH YOUR ENJOYMENT OF THE SOFTWARE; (II) THAT THE FUNCTIONS CONTAINED IN THE SOFTWARE WILL MEET YOUR REQUIREMENTS, (III) THAT THE OPERATION OF THE SOFTWARE WILL BE UNINTERRUPTED OR ERROR-FREE, OR (IV) THAT DEFECTS IN THE SOFTWARE WILL BE CORRECTED. NO ORAL OR WRITTEN INFORMATION OR ADVICE GIVEN BY KERIO WILL CREATE A WARRANTY. SHOULD THE SOFTWARE PROVE DEFECTIVE, YOU (AND NOT KERIO NOR ITS THIRD PARTY TECHNOLOGY SUPPLIERS) ASSUME THE ENTIRE COST OF ALL NECESSARY SERVICING, REPAIR OR CORRECTION TO THE EXTENT THAT THE SUPPORT PROVIDED BY KERIO DOES NOT RESULT IN THE REPAIR OF SUCH DEFECT. IN ENTERING THIS AGREEMENT YOU UNDERSTAND THAT THIS DISCLAIMER OF WARRANTY CONSTITUTES AN ESSENTIAL PART OF THIS AGREEMENT. YOU ACKNOWLEDGE THAT THERE ARE RISKS INHERENT IN INTERNET CONNECTIVITY THAT COULD RESULT IN THE LOSS OF YOUR PRIVACY, DATA, CONFIDENTIAL INFORMATION, AND PROPERTY.
13. LIMITATION OF LIABILITY
TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, UNDER NO CIRCUMSTANCES AND UNDER NO LEGAL THEORY (WHETHER IN CONTRACT, TORT, NEGLIGENCE OR OTHERWISE) WILL KERIO, OR ITS AFFILIATES, OFFICERS, DIRECTORS, EMPLOYEES, AGENTS, SUPPLIERS OR LICENSORS BE LIABLE TO YOU OR ANY THIRD PARTY FOR ANY INDIRECT, INCIDENTAL, SPECIAL, EXEMPLARY, CONSEQUENTIAL, PUNITIVE OR SIMILAR DAMAGES OF ANY KIND AND HOWEVER CAUSED, INCLUDING BUT NOT LIMITED TO, ATTORNEY’S FEES AND COSTS, LOST PROFITS, LOST SALES OR BUSINESS, LOST DATA, BUSINESS INTERRUPTION, GOODWILL ARISING HEREUNDER, OR ANY OTHER LOSS INCURRED BY YOU IN CONNECTION WITH THE LICENSE GRANTED HEREIN OR YOUR PERMITTED USE OF THE SOFTWARE.
TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, UNDER NO CIRCUMSTANCES WILL KERIO, OR ITS AFFILIATES, OFFICERS, DIRECTORS, EMPLOYEES, AGENTS, SUPPLIERS OR LICENSORS BE LIABLE UNDER ANY THEORY OF LIABILITY, WHETHER IN AN EQUITABLE, LEGAL, OR COMMON LAW ACTION ARISING HEREUNDER FOR CONTRACT, STRICT LIABILITY, INDEMNITY, TORT (INCLUDING NEGLIGENCE), ATTORNEYS FEES AND COSTS, OR OTHERWISE FOR DAMAGES WHICH, IN THE AGGREGATE EXCEEDS THE AMOUNTS PAID BY YOU FOR THE SOFTWARE WHICH GAVE RISE TO SUCH DAMAGES DURING THE TWELVE MONTH PERIOD IMMEDIATELY PRECEDING THE FILING OF SUCH CLAIM. FURTHERMORE, IN NO EVENT WITH RESPECT TO THE SOFTWARE OR ANY SUBJECT MATTER OF THIS AGREEMENT WILL ANY THIRD PARTY TECHNOLOGY SUPPLIER BE HELD LIABLE FOR ANY DAMAGES WHATSOEVER.
THE FOREGOING LIMITATIONS APPLY EVEN IF NOTIFIED OF THE POSSIBILITY OF SUCH DAMAGE, AND NOTWITHSTANDING THE FAILURE OF ESSENTIAL PURPOSE OF ANY REMEDY.
The above warranty disclaimers and limitations on liability will not apply in jurisdictions where such disclaimers and/or limitations are not permitted, but only to the extent such disclaimers are prohibited.
Kerio Indemnity. Kerio will defend at its expense any cause of action brought against you, to the extent that such cause of action is based on a claim that the Software, as delivered or hosted by Kerio to you, infringes a United States patent, copyright, or trade secret of a third party. Kerio will pay those costs and damages finally awarded against you pursuant to any such claim or paid in settlement of any such claim if such settlement was approved in advance by Kerio. You may retain its own counsel at your own expense.
No Liability. Kerio will have no liability for any claim of infringement based on: (i) Software which has been modified by parties other than Kerio where the infringement claim would not have occurred in the absence of such modification; (ii) your use of the Software in conjunction with data where use with such data gave rise to the infringement claim; or (iii) your use of the Software outside the permitted scope of this Agreement.
Remedies. Should the Software become, or in Kerio’s opinion is likely to become, the subject of a claim of infringement, Kerio may, at its option, (i) obtain the right for you to continue using the Software, (ii) replace or modify the Software so it is no longer infringing or reduces the likelihood that it will be determined to be infringing, or (iii) if neither of the foregoing options is commercially reasonable, terminate the access and use of the Software. Upon such termination, you shall cease accessing the Software and Kerio will refund to you, as your sole remedy for such license termination, the subscription fees paid by you for the terminated license for the past twelve (12) months. THIS SECTION 14 STATES THE ENTIRE LIABILITY OF KERIO WITH RESPECT TO ANY CLAIM OF INFRINGEMENT REGARDING THE SOFTWARE.
Your Indemnity. You agree to defend, indemnify, and hold Kerio and its officers, directors, employees, consultants, and agents, and Third Party Technology Suppliers harmless from and against any and all damages, costs, liabilities, expenses (including, without limitation, reasonable attorneys’ fees), and settlement amounts incurred in connection with any claim arising from or relating to your: (i) breach of any of your obligations set forth herein; (ii) your gross negligence or willful misconduct; (iii) actual or alleged use of the Software in violation of this Agreement or applicable law by you; (iv) any actual or alleged infringement or misappropriation of third party intellectual property rights arising from data provided to Kerio by you or otherwise inputted into the Software, whether by the you, or an authorized user or otherwise including your Work Product (as defined below); and/or (v) any violation by you, of any terms, conditions, agreements or policies of any Third Party Technology Suppliers. . Your “Work Product” means that data and those forms developed or acquired by you for internal business purposes independent from Kerio or the Software.
Indemnification Procedures. Each indemnifying party’s obligations as set forth in this Section are subject to the other party: (i) giving the indemnifying party prompt written notice of any such claim or the possibility thereof; (ii) giving the indemnifying party sole control over the defense and settlement of any such claim; and (iii) providing full cooperation in good faith in the defense of any such claim.
15. GOVERNMENT USE
If you are part of an agency, department, or other entity of the United States Government ("Government"), your rights to the Software are expressly restricted by this Agreement. Use of the Software by or for the United States Government is conditioned upon the United States Government agreeing that the Software is subject to “Restricted Rights” as provided under the provisions set forth in FAR 52.227-19. More specifically, under §48 C.F.R. (Federal Acquisitions Regulations System), the Software falls within the definition of a "commercial item," "commercial computer software" and "commercial computer software documentation." Under the statute, rights to commercial computer software and associated documentation purchased by the Government may be restricted by a license agreement. Accordingly, your rights to the Software are solely governed by this Agreement, and the restrictions identified herein are permissible under U.S. law and do apply.
16. HIGH RISK USE
You acknowledge that the Software is not specifically designed (i) for use in direct connection with any high risk or strict liability activity (such as air travel, space travel, fire fighting, police operations, vehicle operations, power plant operations or power generation applications, transport management systems, military operations, rescue operations, hospital and medical operations or the like); or (ii) to comply with laws that require certain data protection measures to be applied to the processing of certain protected data, such as personally identifiable information. Therefore, you expressly agree that any use that constitutes such high risk use and/or involves such protected data will be done at your own risk and with full knowledge and understanding of the design limitations noted in this Section 16.
17. EXPORT CONTROLS
The Software, its related technology, and your use of the Software and its related technology are subject to U.S. export control and sanctions laws and regulations, including, but not limited to, the Export Administration Regulations, 15 C.F.R. Parts 730-774 (the “EAR”), and sanctions imposed or administered by the Department of the Treasury, Office of Foreign Assets Control (“OFAC”), and the Department of State and may be subject to export or import regulations in other countries. You warrant and certify that: (i) you are not a citizen, national, permanent resident of, or incorporated or organized to do business in, and are not under the control of the governments of Cuba, Iran, North Korea, Sudan or Syria, or any country to which the United States embargoes goods; (ii) you are eligible under U.S. law to receive exports of the Software, in that it is not included on any list of sanctioned or ineligible parties maintained by the U.S. government, including, but not limited to, OFAC’s lists of Specially Designated Nationals and Blocked Persons (“SDN List”), U.S. Department of Commerce’s Table of Denial Orders, the Entity List, or the Unverified List; (iii) you will not sell, export, re-export, transfer, use, or enable the use of the Software, its related technology, or any other items that may be provided by Kerio, directly or indirectly: (a) to or for end-use in or by the countries listed in (i) above or any citizens, nationals or permanent residents of such countries; (b) to or for end-use by any person or entity determined by any U.S. government agency to be ineligible to receive exports, including but not limited to persons and entities designated on the lists described in (ii) above; and (c) to or for end-uses prohibited by U.S. export or sanctions laws and regulations, including, but not limited to, activities involving the proliferation of chemical, biological or nuclear weapons, weapons of mass destruction or the missiles capable of delivering such weapons and their related technology.
18. DISPUTE RESOLUTION
(i) Where there is a dispute, controversy, or claim arising under, out of or relating to this Agreement, the aggrieved party shall notify the other party in writing of the nature of such dispute with as much detail as possible about the alleged deficient performance of the other party. A representative from senior management of each of the parties shall meet in person or communicate by telephone within five (5) business days of the date of the written notification in order to reach an agreement about the nature of the alleged deficiency and the corrective action to be taken by the respective parties.
(ii) Any dispute, controversy, or claim arising under, out of, or relating to this Agreement and any subsequent amendments of this Agreement, including its formation, validity, binding effect, interpretation, performance, breach, or termination, as well as non-contractual claims, and any claims with respect to the validity of this mediation agreement (hereinafter the “Dispute”), will be submitted to mediation in accordance with the then-current WIPO Mediation Rules. The language to be used in the mediation will be English.
(iii) Notwithstanding anything contained hereunder, you agree and acknowledge that no dispute resolution or litigation will be pursued by you for any breach of this Agreement until and unless Kerio has had an opportunity to cure any alleged breach. You agree to provide Kerio with a detailed description of any alleged failure and a description of the steps that you understand must be taken by Kerio to resolve the failure. Kerio will have sixty (60) days from Kerio’s receipt of your notice to complete the cure.
(iv) The parties agree that it will not be inconsistent with their duty to mediate to seek injunctive or other interim relief from a competent court. The parties, in addition to all other available remedies, will each have the right to initiate an action in any court of competent jurisdiction in order to request injunctive or other interim relief with respect to a violation of intellectual property rights or confidentiality obligations. The choice of venue does not prevent a party from seeking injunctive or any interim relief in any appropriate jurisdiction.
19. SERVICE LEVEL AGREEMENT
With respect to Kerio’s Software as a Service offerings, Kerio will use reasonable efforts to achieve Kerio’s availability goals described in Kerio’s ‘Cloud Service Level Agreement’ located at https://www.gfi.com/legal/kerio-cloud-sla (and any successor or related locations designated by Kerio).
(i) This Agreement, including other agreements referred to in the Third Party Add-Ons and Source Codes sections herein, the policies referenced herein, the applicable Quote, and if applicable the GFI Prime Program Terms and Conditions, constitute the entire agreement between the parties thereto with respect to the use of the Software licensed hereunder, and supersedes all prior or current agreements, whether verbal or in writing, regarding such subject matter.
(ii) Kerio may amend this Agreement from time to time as it deems necessary in the course of business, and in entering this Agreement and using the Software you expressly agree to such amendments. The Third Party Technology Suppliers are third party beneficiaries of this Agreement.
(iii) If any provision of this Agreement is determined to be unenforceable for any reason by a court or similar competent entity, such provision will be reformed only to the extent necessary to make it enforceable. The failure of Kerio to act with respect to a breach of this Agreement by you or others does not constitute a waiver and will not limit Kerio's rights with respect to such breach or any subsequent breaches.
(iv) Kerio expressly reserves the right to assign this Agreement and to delegate any of its obligations hereunder. You may not assign, delegate or otherwise transfer (whether by operation of law or otherwise) this Agreement or any of your rights or obligations hereunder without the prior written consent of Kerio.
(v) This Agreement will be governed by the laws of the State of Texas, United States without regard to conflict of laws principles. You hereby expressly agree to submit to the exclusive personal jurisdiction of the federal and state courts of the State of Texas, Travis County, in connection with any dispute relating to this Agreement, access to or use of the Software by you (including use by your agents or end users). The United Nations Convention on Contracts for the International Sale of Goods (1980) and the Uniform Computer Information Transactions Act (UCITA) are hereby excluded in their entirety from application to this Agreement.
(vi) Any translation of this Agreement is done for local requirements and in the event of a dispute between the English and any non-English versions, the English version of this Agreement will govern.
(vii) Kerio will not be liable to you for any delay or failure of Kerio to perform its obligations hereunder if such delay or failure arises from any cause or causes beyond the reasonable control of Kerio. Such causes will include, but are not limited to, acts of God, floods, fires, loss of electricity or other utilities, or delays by you in providing required resources or support or performing any other requirements hereunder.
(viii) Headings are for reference purposes only, have no substantive effect, and will not enter into the interpretation hereof.
(ix) Kerio is an independent contractor and nothing in this Agreement will be deemed to make Kerio an agent, employee, partner, or joint venturer of you. Neither party will have any authority to bind, commit, or otherwise obligate the other party in any manner whatsoever.
(x) Both parties agree to comply with all applicable laws, regulations, and ordinances relating to such party’s performance under this Agreement.
(xi) The provisions set forth in Sections 5, 6, 7, 11, 13, 14 and 21 of this Agreement will survive termination or expiration of this Agreement and any applicable license hereunder.
(xii) Kerio will have the right to use third parties, including, but not limited to, employees of Kerio’s affiliates and subsidiaries (“Subcontractors”) in performance of its obligations and services hereunder and, for purposes of this Agreement, all references to Kerio or its employees will be deemed to include such Subcontractors.
Last Updated: August 7, 2019