For: GFI FaxMaker®; GFI Archiver™; GFI MailEssentials®; GFI WebMonitor®; GFI LanGuard®;
GFI EventsManager®; GFI EndPointSecurity®; GFI OneGuard™ and GFI OneConnect™
PLEASE CAREFULLY REVIEW THE FOLLOWING TERMS AND CONDITIONS OF THIS END USER LICENSE AGREEMENT ("EULA”). THIS EULA IS A LEGALLY BINDING CONTRACT BETWEEN YOU AND GFI.
BY CLICKING ‘I AGREE’ OR DOWNLOADING, OR OTHERWISE USING THE SOFTWARE, YOU ARE CONSENTING TO ALL OF THE TERMS AND CONDITIONS SET OUT IN THIS EULA. IF YOU DO NOT AGREE TO A TERMS OF THIS EULA, IMMEDIATELY RETURN, DELETE OR DESTROY ANY AND ALL COPIES OF THE SOFTWARE YOU MAY HAVE.
This EULA is a legal agreement between you, and if you are located (i) in the USA, South America, Canada – GFI USA, Inc. or (ii) in the European Union or elsewhere other than the USA, South America, or Canada – GFI Software Development Ltd (hereinafter “GFI”) for this GFI product, which includes Software and any associated media, printed materials, and “online” or electronic documentation (collectively “Product”). The term “Product” shall also mean, where appropriate, third-party proprietary software bundled with GFI proprietary software and made available to you subject to this EULA. Future releases of the Product may contain amendments to this EULA.
1. DEFINITIONS. When used, these terms will have the following meanings: “Add-On”- when additional copies of the same Product are licensed; “Computer” – Windows workstation, Windows home workstation or Windows server, or as agreed or as otherwise set out in any applicable Documentation, non – Windows equivalent; “Hardware” – GFI branded computer related hardware; “IP Address” – a number assigned to each Computer or device which is active on the network; “Lines” – the fax lines available for usage by GFI FaxMaker to send/receive faxes; “Mailbox” – a Mailbox is defined by Product, for GFI MailEssentials: Mailbox is defined as the number of active directory Users or email addresses being protected, for GFI Archiver: Mailbox is defined by active directory Users for whom email archiving is enabled; “Main Product”– a particular Product that is licensed for the first time with or without a license key or TPM (as defined below); “Node” – servers, workstations, mobile devices or other network end points such as firewalls, routers, switches, phone systems, etc. that have one or more IP Addresses; “Seat” – an individual or an IP Address that accesses the internet; “Unit” – each Product has a unit (s) by which it is licensed as set out in Section 4 (“License Units”). The term “Unit” is used generically when referring generally as a Product licensing measure; “User” – is a person authorized to access and use the Products or Hardware; “Windows Server” – machines running any compatible version of the Windows operating systems as set out in Product’s applicable technical specification documentation, which may be amended from time to time and “Service” is defined as a particular feature within the Product such as a patch management or anti-virus.
2. TERM AND TERMINATION. The term of this EULA shall continue for the license term set forth in your ordering document unless terminated as provided herein. Without prejudice to any other rights, GFI may terminate, in part or in whole, without notice, this EULA if you do not abide by its terms. In which case of termination or expiration of this EULA, you must cease all use of the Product, destroy all copies (including any components) of the Product, or, at GFI’s request, return such copies to GFI. Provisions which by their nature are intended to survive termination shall survive any termination or expiration of this EULA, including but not limited to, Sections 12 (“Confidentiality”), 13 (“Intellectual Property Rights”), 19 (“Limitation of Liability”) and 20 (“Indemnification”).
3. LICENSE GRANT.
On-Premise. GFI Product is licensed and not sold. GFI grants you, from date of first use for the duration of the license you have purchased, or otherwise as set out in the applicable Product documentation or unless terminated in accordance with the terms herein, the following nonexclusive, and nontransferable license rights only if you comply with all of the terms of this EULA. You may install, use, access, display and run one (1) copy of the Product on one or more Units, as long as you use the Product on no more than the maximum number of Units for which you have acquired a valid license. You may make one (1) additional copy of the Product for backup or archival purposes. Depending upon the type of Product license obtained from GFI, a license key or other technological protection measure may automatically limit your use or the functionality of the Product. This EULA covers any updates, new releases or enhancement(s) of the Product or Support services, which GFI may make available to you from time to time.
Cloud Services. GFI Product is licensed and not sold. GFI grants you, from date of first use for the duration of the license you have purchased, or otherwise as set out in the applicable Product documentation or unless terminated in accordance with the terms herein, the following software as a service, nonexclusive, and nontransferable license rights only if you comply with all of the terms of this EULA. You may access and operate the Product and use its documentation as hosted by GFI solely to perform those functions described in the Product documentation. Depending upon the type of Product license obtained from GFI, a license key or other technological protection measure may automatically limit your use or the functionality of the Product. This EULA covers any updates, new releases or enhancement(s) of the Product or Support services, which GFI may make available to you from time to time.
4. LICENSE UNITS. The Unit by which the Product is evaluated or licensed varies by Product type.
- GFI FaxMaker is licensed by User;
- GFI FaxMaker Server is licensed for use with one (1) GFI FaxMaker Server and four (4) Lines – additional GFI FaxMaker Servers and/or Lines can be licensed. Each GFI FaxMaker Server license constitutes an active directory domain license, i.e., the Product will only “see” the active directory Users that are within the same active directory domain where the GFI FaxMaker Server has been installed.
- GFI Archiver, and GFI MailEssentials are licensed by Mailbox;
- GFI WebMonitor is licensed by Seat;
- GFI LanGuard and GFI EventsManager are licensed by Node (Windows® or non – Windows Server or Computer);
- GFI OneGuard is licensed by Service per Seat;
- GFI OneConnect is a cloud service and is licensed by Service per Mailbox; and
- GFI EndPointSecurity is licensed by Computer.
5. RESTRICTIONS. Except as otherwise expressly provided under this EULA, you shall have no right and you shall not permit any third party to: (i) transfer, assign or sublicense the limited license rights granted to you in this EULA to any other person, or entity, or use the Product on any equipment other than an authorised Unit, and you acknowledge that any attempted transfer, assignment, sublicense or unauthorised use shall be void; (ii) make error corrections to or otherwise modify or adapt the Product or decompile, decrypt, disassemble, reverse engineer or attempt to reconstruct or discover any source code or underlying ideas, algorithms, file formats or programming or interoperability interfaces of Product or of any files contained or generated using Product by any means whatsoever or otherwise reduce the Product to human-readable form, except to the minimum extent expressly permitted under applicable law notwithstanding this restriction; (iii) use or permit the Product to be used to perform services for third parties, whether on a service bureau or time sharing basis or otherwise, without the express written authorization of GFI; (iv) circumvent or provide the method or means to circumvent any TPM (as defined below) in the Product; or (v) use the Product in any manner not expressly authorised herein.
6. PRODUCT EVALUATIONS AND FREEWARE. If available, you may evaluate the Product, which may have reduced functionality, for up to thirty (30) days, at no cost. You may evaluate the Product only to determine whether to license the Product. You may only evaluate a Product once. At the end of the evaluation period, you must either license the Product or cease all use of such Product. YOUR USE OF THE PRODUCT DURING AN EVALUATION PERIOD OR FOR ANY PRODUCT THAT IS OFFERED AS FREEWARE SHALL BE WITHOUT WARRANTY OF ANY KIND AND IS PROVIDED “AS IS”. GFI has no duty to provide Support to you during your use of the Product or any evaluation period. Any Product available as freeware or for evaluation purposes must not be used for commercial purposes or in high–risk situations.
7. BETA TESTING. BETA VERSIONS OF PRODUCT OR HARDWARE MAY BE PROVIDED TO YOU WITHOUT WARRANTY OF ANY KIND, “AS IS” AND SUBJECT TO THE CONFIDENTIALITY CONDITIONS ABOVE. Such provision is done so only for the purpose of assisting GFI with testing functionality or compatibility and on the express condition that you provide GFI with truthful, accurate and complete feedback, comments, analysis in whatever format you may wish, or are directed by, to provide such to GFI (“Contribution”). You expressly acknowledge that your participation in any beta testing is undertaken by you on a volunteer basis and that you shall have no right in the beta Product or Hardware or Contribution, whether in original form (as provided to you) or in respect of any derivative work (whether or not based upon, in whole or in part, any participation or feedback you may make). Notwithstanding the foregoing, you agree to grant to GFI a royalty – free, perpetual, transferable license to commercially use and sublicense in GFI’s sole discretion, any and all Contribution.
8. SUPPORT. If you have a valid Product support contract with GFI and are current with payments, GFI will provide you with the support services described in this paragraph (“Support”) on a local office hours basis. In GFI’s sole determination, Support shall consist of: (i) telephone or electronic support to you in order to help you locate and, on your own, correct problems with the Product and/or (ii) supplying extensions, enhancements and other changes that GFI may make to the Product and which is made publicly available, without additional charge, to other licensees of the Product that are enrolled in Support. Upon mutual prior written agreement by both parties, GFI may, but shall not be required to supply code corrections to you to correct Product malfunctions in order to bring such Product into substantial conformity with the published operating specifications for the most current version of the Product, unless your unauthorized modifications hamper such corrections or cause the malfunction. Failure to renew your Support subscription may result in your loss of right to receive Product feature or Content updates, or will result in the automatic deactivation, or termination of the Product license.
9. CLOUD SERVICES AVAILABILITY. With respect to cloud services, GFI will use reasonable efforts to achieve GFI’s availability goals described in GFI’s ‘Service Level Agreement for Cloud Services’ located at www.gfi.com/pages/service-level-agreement-for-cloud-services (and any successor or related locations designated by GFI).
10. CUSTOMER RESPONSIBILITIES.
HTTPS SCANNING. When HTTPS scanning is enabled in GFI WebMonitor, HTTPS traffic will be decrypted and its contents inspected. GFI will not be liable and it is solely your responsibility to: (i) ensure that enabling HTTPS scanning in GFI WebMonitor does not infringe any compliance, privacy or other legislation or regulations in the jurisdiction in which you use it, and (ii) exclude sites from HTTPS scanning if necessary for compliance with any laws or regulations.
CLOUD SERVICES. If you obtained cloud services from GFI, you are fully responsible for the contents of your transmissions through the Product. GFI simply acts as a passive conduit for you to send and receive information of your own choosing. However, GFI reserves the right to take any action with respect to the Product that GFI deems necessary or appropriate in its sole discretion, if GFI believes you or your information may create liability for GFI, compromise or disrupt the Product for you or other customers, or cause GFI to lose (in whole or in part) the Product of GFI's ISPs or other suppliers. Your use of the Product is subject to all applicable local, state, national and international laws and regulations (including without limitation those governing account collection, export control, consumer protection, unfair competition, anti-discrimination, securities or false advertising). You agree: (1) to comply with all laws regarding the transmission of technical data exported from any country through the Product; (2) not to use the Product for any illegal purpose; (3) not to interfere with or disrupt networks connected to the Product; (4) to comply with all regulations, policies and procedures of networks connected to the Product; (5) not to use the Product to infringe any third party's copyright, patent, trademark, trade secret or other proprietary rights or rights of publicity or privacy; (6) not to use the Product or related software to knowingly transmit misleading or inaccurate caller identification information for any reason, including doing so with the intent to defraud, cause harm, or wrongfully obtain anything of value; and (7) not to transmit or upload through the Product any unlawful, harassing, libelous, abusive, threatening, harmful, vulgar, obscene or otherwise objectionable material of any kind or nature. You further agree not to transmit or upload any material that encourages conduct that could constitute a criminal offense, give rise to civil liability or otherwise violate any applicable local, state, national or international law or regulation. The Product make use of the Internet for you to send and receive information of your own choosing. As a result, your conduct is subject to Internet regulations, policies and procedures. You agree not to use or reference the Product for chain letters, junk fax or junk mail, spamming or any activity making use of distribution lists to any person who has not given specific permission to be included in such a process or on such list. You further agree not to attempt to gain unauthorized access to other computer systems. You shall not interfere with another customer's use and enjoyment of the Product. You are entirely responsible for maintaining the confidentiality of your account information. You must (a) obtain and pay for all equipment and third-party product (e.g., Internet access and email service) required for you to access and use the Product; (b) maintain the security of your PIN/password and other confidential information relating to your Product account; (c) immediately notify GFI of any unauthorized use of your account or any other breach of security known to you; and (d) be responsible for all charges resulting from use of the Product, including unauthorized use prior to your notifying GFI of such use and taking steps to prevent its further occurrence.
11. CONTENT UPDATES; TECHNOLOGICAL PROTECTION MEASURES. Some Products require, for optimum use and GFI, in its sole discretion, may provide to you, in a number of formats (feeds, definition files etc.), content that is automatically, synchronized or updated from time to time with GFI’s servers or systems, which may relate to anti–virus, anti–spamming or anti phishing activities (“Content”). Such Content may be provided for a limited time, from time to time, or in accordance with an applicable and valid Support agreement. The Products may also contain technological protection measures, for instance a license key or code, that prevents unlimited copying, or limit time of use or functionality in accordance with the type of license that you purchase (“TPM”). You consent that the Product will automatically contact GFI to receive Content, in particular, but not limited to if and when any of the following events occur: (i) the Product is successfully installed by you; (ii) you fail to install the Product successfully; (iii) the Product has been successfully configured; (iv) there are changes to the Product’s license key or TPM; and/or (v) the Product is uninstalled. GFI has offices worldwide and you acknowledge and consent that any data collected may be sent to any GFI office or affiliate for processing, including locations outside of the USA and European Union.
12. CONFIDENTIALITY. The Product, in all formats existing, are a trade secret of and proprietary to GFI, its suppliers and / or licensors, including but not limited to, the specific internal code, design and structure of individual programs and software, the display and associated interface information. You shall maintain Product confidence and prevent disclosure of the same by using a reasonable degree of care. You shall not disclose the confidential aspects of the Product, or part thereof, to anyone for any purpose.
13. INTELLECTUAL PROPERTY RIGHTS. The Product and Hardware is protected by worldwide copyright, trademark, patent and other intellectual property laws and treaties and belong to GFI, its licensors and any applicable third party. You acknowledge that (i) rights in the Product are licensed (not sold) to you, and that you have no rights or title in, or to, the Product other than the right to use them in accordance with the terms of this EULA and (ii) Open Source and / or third-party software may be incorporated into the Product. GFI, its licensors and any applicable third parties, own all title, copyright, and other intellectual property rights in and to the Product and Hardware. GFI (on its own behalf and on behalf of third parties whose proprietary software is included with the Software) reserves all rights not specifically granted herein.
14. OPEN SOURCE. Part of the Product may incorporate and consist of third party open source software (“Open Source”), which you may use under the terms and conditions of the specific license under which the open source software is distributed. You agree that you will be bound by any and all such license agreements. Title to software remains with the applicable licensor(s). ANY OPEN SOURCE PROVIDED WITH OR CONTAINED IN THE PRODUCT IS PROVIDED “AS IS” AND WITHOUT ANY WARRANTY OF ANY KIND.
17. EXPORT CONTROLS. You agree that the Product or Hardware will not be used, shipped, transferred or exported into any country or to anyone: (i) which the EU or UN has embargoed goods; (ii) where the national legislation of the relevant EU Member State has embargoed goods; (iii) listed in any enacted Common Position on restrictive measures imposed by the EU; (iv) on the U.S. Treasury Department’s list of Specially Designated Nationals or the U.S. Commerce Department’s Table of Deny Orders; or (v) in any manner prohibited by the EU Common Foreign and Security Policy, the United States Export Administration Act, or any other export laws or regulations. By using the Product or Hardware, you represent that you are not located in, under the control of, or a national or resident of any such country or on any such list and you take full and sole responsibility for such use.
18. LIMITED WARRANTY.
Different countries have different consumer (someone who uses the Products or Hardware outside of their business or trade) laws and regulations depending upon your country of purchase or residence. These different statutory consumer laws may provide alternative remedies than that provided hereunder. The protection provided under this warranty is in addition to such statutory consumer laws and this warranty is not intended to limit or exclude your consumer statutory rights as it relates to non-conformity of a sales contract.
GFI SOFTWARE. GFI warrants that the media upon which any Software is distributed will be free from defects for a period of ninety (90) days from the date of original purchase by you of the Software. No warranty is provided to you after this period. Any supplements or updates to the Software, including without limitation, any (if any) service packs, patches or fixes provided to you after the expiration of the ninety-day limited warranty period are not covered by any warranty or condition, neither express, implied nor statutory and are provided ‘AS IS’. This warranty is personal to you and cannot be transferred.
GFI HARDWARE. Please refer to the applicable limited warranty, which was supplied to you at the time of original purchase of the Hardware. In the absence of any applicable Hardware limited warranty, these terms apply: GFI’s limited warranty covers Hardware as against defects in materials and workmanship under normal use for a period of one year from the date of purchase of the original Hardware purchase. This warranty is personal to you and cannot be transferred.
REMEDY. If Software media or a Hardware defect arises and you have a valid claim, GFI at its option may: (1) repair the defect at no cost to you, using new or refurbished parts that are equivalent to new in performance and reliability, or (2) exchange the Software media or Hardware with Software media or Hardware that is new or refurbished (that is equivalent to new in performance and reliability), which is at least functionally equivalent to the original Software Media or Hardware, or (3) refund the purchase price of the original Software media or Hardware subject to your provision of a valid receipt of purchase.
The warranties set out above do not apply to damage: (1) to consumable parts i.e. batteries, cosmetic, (2) caused by non GFI product, or (3) caused by your failure to follow GFI’s instructions whether such instructions are given to you orally or are contained in any GFI documentation, whether printed or online, (4) by non–normal use, fire, abuse or misuse, or use outside of the products’ permitted uses, or (5) by non–GFI service or repairs (except where GFI has instructed you to undertake a User Installation and you adhere to all of GFI’s instructions), or (6) where the Product’s or Hardware’s serial number or other unique identifier is removed or defaced.
You will receive the remedy elected by GFI without charge, except that you are responsible for any expenses you may incur (e.g. cost of shipping the Hardware or Software media to GFI, handling and re-stocking fees of 15%). This Limited Warranty is void if failure of the Software media or Hardware has resulted from accident, abuse, misapplication, abnormal use, a virus, or use after an upgrade was made available to you. Any replacement Hardware or Software will be warranted for the remainder of the original warranty period or thirty (30) days, whichever is longer.
EXCEPT AS PROVIDED ABOVE, THE PRODUCT AND HARDWARE IS PROVIDED TO THE USER “AS IS”. TO THE MAXIMUM EXTENT PERMITTED BY LAW THIS WARRANTY AND THE REMEDIES HEREIN ARE EXCLUSIVE AND IN LIEU OF ALL OTHER WARRANTIES AND REMEDIES, WHETHER ORAL, EXPRESS, IMPLIED OR STATUTORY INCLUDING WITHOUT LIMITATION, WARRANTIES OF FITNESS FOR A PARTICULAR PURPOSE, MERCHANTABILITY, WARRANTIES FOR LATENT OR HIDDEN DEFECTS. GFI DOES NOT WARRANT THAT THE SPECIFICATIONS OR FUNCTIONS CONTAINED IN THE PRODUCT AND HARDWARE WILL MEET YOUR REQUIREMENTS, OR THAT THE OPERATION OF THE PRODUCT OR HARDWARE WILL BE UNINTERRUPTED OR ERROR-FREE, OR THAT DEFECTS IN THE PRODUCT OR HARDWARE WILL BE CORRECTED. FURTHERMORE, GFI DOES NOT WARRANT OR MAKE ANY REPRESENTATIONS REGARDING THE USE OR THE RESULTS OF THE USE OF THE PRODUCT OR HARDWARE PROVIDED IN RESPECT OF ITS CORRECTNESS, ACCURACY, RELIABILITY, OR OTHERWISE. IF THIS EXCLUSION IS NOT PERMITTED BY LAW, GFI LIMITS ANY EXPRESS, STATUTORY OR IMPLIED WARRANTIES AS TO DURATION TO THE EXTENT OF THIS LIMITED WARRANTY AND THE REPAIR OR REPLACEMENT REMEDY AS DETERMINED BY GFI IN ITS SOLE DISCRETION. SOME STATES OR COUNTRIES DO NOT ALLOW SUCH LIMITATION AND THEREFORE THIS LIMITATION MAY NOT APPLY TO YOU.
19. LIMITATION OF LIABILITY.
IN NO EVENT SHALL GFI (AND ITS AFFILIATES, SUBSIDIARIES, LICENSORS, SUPPLIERS AND AGENTS) BE LIABLE FOR LOSS OR CORRUPTION OF DATA, ANY SPECIAL, INCIDENTAL, INDIRECT, OR CONSEQUENTIAL DAMAGES WHATSOEVER (NOT LIMITED TO, DAMAGES FOR LOSS OF PROFITS OR CONFIDENTIAL OR OTHER INFORMATION, FOR BUSINESS INTERRUPTION, FOR PERSONAL INJURY, FOR LOSS OF PRIVACY, FOR FAILURE TO MEET ANY DUTY INCLUDING OF GOOD FAITH OR OF REASONABLE CARE, FOR NEGLIGENCE, AND FOR ANY OTHER PECUNIARY OR OTHER LOSS WHATSOEVER) ARISING OUT OF OR IN ANY WAY RELATED TO THE USE OF OR INABILITY TO USE THE PRODUCT OR HARDWARE, THE PROVISION OF OR FAILURE TO PROVIDE SUPPORT SERVICES, OR OTHERWISE UNDER OR IN CONNECTION WITH ANY PROVISION OF THIS EULA. GFI EXCLUDES ANY LIABILITY FOR FAILURE TO REPAIR ANY PRODUCT.
NOTWITHSTANDING THE FOREGOING, THE MAXIMUM LIABILITY THAT GFI (AND ITS AFFILIATES, SUBSIDIARIES, LICENSORS, SUPPLIERS OR AGENTS) SHALL INCUR HEREUNDER SHALL BE LIMITED TO THE ACTUAL PRICE PAID BY YOU FOR THE PRODUCT OR HARDWARE IN THE 12-MONTH PERIOD IMMEDIATELY PRECEDING THE FILING OF SUCH CLAIM.
THE LIABILITIES LIMITED BY THIS SECTION 19 APPLY: (i) TO LIABILITY FOR NEGLIGENCE; (ii) REGARDLESS OF THE FORM OF ACTION, WHETHER IN CONTRACT, TORT, STRICT LIABILITY, OR OTHERWISE; (iii) EVEN IF GFI (ITS AFFILIATES, SUBSIDIARIES, LICENSORS, SUPPLIERS OR AGENTS) IS ADVISED IN ADVANCE OF THE POSSIBILITY OF THE DAMAGES IN QUESTION AND EVEN IF SUCH DAMAGES WERE FORESEEABLE; (iv) ATTORNEYS FEES AND COSTS, AND (v) EVEN IF YOUR REMEDIES FAIL OF THEIR ESSENTIAL PURPOSE. IF APPLICABLE LAW LIMITS THE APPLICATION OF THIS SECTION 19, GFI’S (AND ITS AFFILIATES, SUBSIDIARIES, LICENSORS, SUPPLIERS AND AGENTS) LIABILITY WILL BE LIMITED TO THE MAXIMUM EXTENT PERMISSIBLE.
20. INDEMNIFICATION. You agree to indemnify, defend, and hold GFI, its licensors, parent, subsidiary, or affiliate organizations, officers, agents and employees, harmless from any claim, loss, demand, or damage, including reasonable attorneys' fees, asserted by any third party due to or arising out of your breach of any provision of this EULA, your negligent or wrongful acts, and/or your violation of any applicable laws.
21. ENTIRE AGREEMENT. This EULA (as may be amended from time to time) and your ordering document are the entire agreement between you and GFI relating to the Product and the Support services (if any) and they supersede all prior or contemporaneous oral or written communications, proposals and representations with respect to the Product or Support services. To the extent the terms of any terms of sale, policies or programs conflict with the terms of this EULA, the terms of this EULA shall prevail and control. In addition, the terms set out in this EULA shall prevail and control over any and all additional or conflicting terms or provisions contained in any document of yours, whether set out in a purchase order or alternative license, and any and all such additional or conflicting terms shall be void and shall have no effect. If this License is translated into a language other than English and there are conflicts between the translations, the English version shall prevail and control. For clarity, purchase orders are to be used solely for your accounting purposes and any terms and conditions contained therein shall be deemed null and void with respect to the parties’ relationship and this EULA.
22. GOVERNING LAW. (i) If you purchased the Product or Hardware in or are habitually resident of in the USA, South America, Canada, this EULA shall be governed by, subject to and construed in accordance with the laws of the State of Texas, excluding its conflict of laws provisions and the parties unconditionally and irrevocably consent to the exclusive jurisdiction of the courts located in Austin, Texas, USA; or (ii) if you purchased the Product or Hardware in or are habitually resident elsewhere, this EULA shall be governed by, and construed in accordance with, the laws of England and Wales and the parties unconditionally and irrevocably consent to the exclusive jurisdiction of the courts located in England, and the parties waive any objection with respect thereto, for the purpose of any action, suit or proceeding arising out of or relating to this EULA or the transactions contemplated hereby.
23. PUBLICITY. You agree that GFI may refer to the name of your corporation as a customer of GFI, both internally and in externally published media; any additional disclosure by GFI with respect to you or your company shall be subject to your prior written consent.
24. U.S. GOVERNMENT RIGHTS. If you are obtaining Software on behalf of any part of the United States Government, the Software and any documentation shall be deemed "commercial Software" and "commercial computer Software documentation," respectively, pursuant to DFAR Section 227.7202 and FAR 12.212 and 52.227-19, as applicable. Any use, modification, reproduction, release, performance, display or disclosure of the Software shall be governed solely by the terms of this EULA shall be prohibited except to the extent expressly permitted by the terms of this EULA.
25. MISCELLANEOUS. The delay or failure of either party to exercise any right provided in the Agreement shall not be deemed a waiver. This EULA: (i) may not be assigned by you. Any purported assignment will be null and void; (ii) may not be amended by you, but GFI may amend the EULA from time to time and shall post any amended EULA on its website at www.gfi.com; (iii) and the remedies of the parties are cumulative and will not exclude any other remedies to which the party may be lawfully entitled, (iv) constitutes the entire understanding between the parties with respect to the subject matter of this EULA and supersedes all written and oral prior agreements, negotiations and discussions between the parties relating to it; (v) if in part (or part of any provision) is found illegal, invalid or unenforceable, that provision shall apply with the minimum modification necessary to make it legal, valid and enforceable; and (vi) is for the sole benefit of GFI and you and nothing herein, express or implied, is intended to or shall confer upon any other person or entity any legal or equitable right, benefit or remedy of any nature whatsoever under or by reason of this EULA. All notices must be in writing and shall be mailed by registered or certified mail (effective on the third day following the date of mailing). All notices to GFI must be addressed to GFI Legal Department c/o: General Counsel 401 Congress Avenue, Suite 2650 Austin, TX 78701, USA. You may not assign, pledge or otherwise transfer this agreement, nor any rights or obligations hereunder in whole or in part to any entity. Paragraph headings are for convenience and shall have no effect or interpretation. GFI shall not be liable for any delay or failure of GFI to perform its obligations hereunder if such delay or failure arises from any cause or causes beyond the reasonable control of GFI. Such causes shall 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.
GFI PRIME PROGRAM TERMS AND CONDITIONS
The “GFI Prime Program” is a membership program which rewards customers for their continued business and loyalty. Conditions for eligibility of rewards and retention of such rewards apply, governed by the details set forth below. For clarity, the licenses granted by GFI under the GFI Prime Program are governed by the same conditions as set forth in applicable EULA, as modified by the GFI Prime Program terms and conditions. GFI reserves the right to modify or terminate the GFI Prime Program at any time.
“GFI Prime Qualifying Product(s)” are GFI FaxMaker, GFI FaxMaker Online, GFI Archiver, GFI MailEssentials Unified Protection Edition, GFI WebMonitor Unified Protection Edition, GFI LanGuard, GFI EventsManager, GFI EndPointSecurity, GFI OneGuard, and GFI OneConnect. Excludes sub-editions (GFI MailEssentials Anti-Spam, GFI MailEssentials EmailSecurity, GFI WebMonitor for ISA/TMG Web Filtering, GFI WebMonitor for ISA/TMG WebSecurity) -- only GFI MailEssentials/Webmonitor "Unified Protection” editions qualify.
“Kerio Qualifying Product(s)” are Kerio Connect, Kerio Control, Kerio Operator, Kerio Cloud.
“Prime Qualifying Product” are any GFI Prime Qualifying Products or Kerio Qualifying Products.
“GFI Prime Product(s)” are GFI Archiver, GFI WebMonitor, GFI EventsManager, and GFI Endpoint Security.
“Home Product(s)” means the GFI Prime Qualifying Product(s) or Kerio Qualifying Product(s) for which you have obtained a license.
In order to be eligible to participate in the GFI Prime Program, you must have:
- renewed a Prime Qualifying Product, at least twelve (12) months have passed from its original purchase, and have continued to pay for the applicable fees (the license has not lapsed); or
- been notified in writing by GFI that you are eligible to participate.
For clarity, “renewal” under this Section applies to both, term and perpetual licenses. In the case of perpetual licenses, renewal of the maintenance and support portion will be considered a “renewal.”
Once you become a GFI Prime Program member, you must continue to renew and pay the fees for your Home Product(s) in order to keep the Prime Product (as defined below) associated with it. For clarity, you must maintain active at least one (1) Home Product in order to continue to be a member of the GFI Prime Program.
3. GFI PRIME PROGRAM SUBSCRIPTION. As a member of the GFI Prime Program, you are entitled to either (i) a term subscription license or (ii) a perpetual license to one of the GFI Prime Products, but NOT including the Home Product(s) (each of such license that you obtain pursuant to this Section will be referred to as the “Prime Product”). You may obtain one Prime Product each time you renew a Home Product. GFI will also provide you any Prime Product updates GFI makes generally available to its paying customers.
4. LICENSE SCOPE. The license to the Prime Products will be governed at all times by the applicable EULA, as modified by these terms and conditions and will be restricted to your internal use only, the number of licensed Units for each Prime Product will be the same as the applicable Home Product. All restrictions of use and limitations set forth in the applicable EULA remain in full force and effect.
5. TERM AND TERMINATION. The “Term” of the license for each Prime Product will be the same term that is applicable to its corresponding Home Product. On termination or expiration of the GFI Prime Program, or your eligibility, or termination of a particular benefit provided from the GFI Prime Program membership: (i) the conditions as set in the termination Section of the applicable EULA will apply to the terminated licenses granted under the GFI Prime Program; and (ii) the licenses provided by GFI under the GFI Prime Program can be upgraded to fully ‘paid’ licenses with Support. Upgraded licenses are not bound by the GFI Prime Program terms and conditions, only the EULA conditions will apply.
6. SUPPORT. The right to use the Prime Product(s) does not include the right to obtain Support services from GFI; a separate Support contract is required in order to obtain Support services for such licenses. Please consult with your distributor for your Support options.
7. FEES. License fees for the Prime Products are waived during the Term. The licenses for the Prime Products are provided at no additional charge provided that you continue to be a member of the GFI Prime Program.
8. HOME PRODUCT(S) NOT INCLUDED. The Home Product(s) remain subject to your original license term, scope, and price. The scope of license granted to the Prime Product(s) under the GFI Prime Program does not extend to or in any way modify your license to your Home Product(s).
9. DELIVERY AND INSTALLATION NOT INCLUDED. Prime Products may require additional professional services with respect to installation and deployment. All costs of installation and deployment will be borne by you. Should you elect to hire GFI for any installation, deployment, customization, or other professional services, any such engagement will require the mutual execution of separate agreement.
Revised: October 5, 2017
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