ENDIAN SERVICE AND LICENSE AGREEMENT
BY USING THE ENDIAN PRODUCT, YOU AGREE TO BE BOUND BY THE TERMS OF THIS
AGREEMENT. IF YOU DO NOT AGREE TO THE TERMS OF THIS AGREEMENT, YOU MAY NOT USE
THE ENDIAN PRODUCT NOR ANY OTHER SOFTWARE LICENSED UNDER THIS AGREEMENT, AND
YOU MAY RETURN THE UNUSED ENDIAN PRODUCT TO THE VENDOR FROM WHICH YOU ACQUIRED
IT WITHIN THIRTY (30) DAYS FOR A FULL REFUND.
Article 1 - Definitions
1.1 “You” shall mean the natural person or the entity that is agreeing to be
bound by this Agreement, their employees and third party contractors that
provide services to you. YOU SHALL BE LIABLE FOR ANY FAILURE BY SUCH
EMPLOYEES AND THIRD PARTY CONTRACTORS TO COMPLY WITH THE TERMS OF THIS
AGREEMENT.
1.2 “ENDIAN” Shall mean Endian S.p.A. (tax code IT02472130216), a
corporation organized under the laws of Italy, whose registered office is
at:
Endian S.p.A.
Via Pillhof 47
39057 Appiano sulla Strada del Vino (BZ)
Italy
1.3 “ENDIAN Product”: Shall mean the ENDIAN software or hardware/software
product(s) purchased by You through an authorized ENDIAN distributor or
reseller.
1.4 “Copyleft License”: Shall mean any software license which grants any
recipient of the software the right to copy, modify and redistribute
modified versions of the software, but provided that all copies and
modified versions are distributed under the same terms and conditions
provided in the Copyleft License itself.
1.5 “Copyleft Software”: Shall mean any software covered by any Copyleft
License and included in or provided with the ENDIAN Product.
1.6 “Copyleft Source Code”: Shall mean the source code corresponding to the
binaries for the Copyleft Software.
1.7 “Software”: Shall mean all software and/or firmware (including its
Graphical User Interface and any accompanying documentation) included in
(or otherwise provided to You with) the ENDIAN Product and any updates and
maintenance releases there to, with the exception of Copyleft Software.
1.8 “Hardware”: Shall mean the hardware part (where present) of the ENDIAN
Product, with exclusion of Software and of Copyleft Software.
1.9 “Business Use”: Shall mean use of the Software by business entities
(including professionals) which independently carry out the supply of goods
and services, whatever the purpose or results of such economic activities,
with express exclusion of private use by consumers.
1.10 "Users": Shall mean all users in the computer network which is protected
and/or managed through the ENDIAN Product, including without limitation
workstations, clients, servers and devices that communicate through the
ENDIAN Product to reach the Internet, as well as VPN connections from
remote VPN clients or from remote VPN gateways (each remote gateway counts
as one user).
1.11 “ENDIAN Network”: Shall mean ENDIAN's software and database facilities for
integrated Customer Relationship, Support and Service Management.
1.12 “Applicable Additional License Terms”: Shall mean any possible additional
license terms applicable to the specific ENDIAN Product purchased by You,
where enclosed with this Agreement.
Article 2 - License Grant
2.1 Whereas. ENDIAN provides network security services through ENDIAN Network
(hereinafter, “ENDIAN Services”), which You can access and use only through
ENDIAN Product. The license provided in this Article 2 is granted to You in
order to enable You to use ENDIAN Services.
2.2 License. Subject to the terms of this Agreement, to the Applicable
Additional License Terms, and to proper and ongoing payment of the
applicable service and maintenance fees, ENDIAN hereby grants You a
non-exclusive, non-transferable license, without rights to sublicense, to
use the Software only for Business Use.
2.3 Registration. You shall register Your ENDIAN Product with ENDIAN Network
within thirty days from its first boot. Should you fail to register within
such deadline, terminal remote access to ENDIAN Product and access to its
web management interface will be disabled. Furthermore security-relevant
signature databases will not be updated anymore and functionalities which
are not licensed under a Copyleft License may be turned off.
All other functionalities will not be compromised and still work as
configured even though it will not be possible to change their
configuration.
The above-mentioned limitations shall apply also in case You fail to renew
maintenance services within thirty days from their expiration.
2.4 License Limitations. You may not copy the Software except for a reasonable
number of machine-readable copies of the Software for backup or archival
purposes. You may not remove any titles, trademarks or trade names,
copyright notices, legends, or other proprietary markings on the Software.
You are not granted any rights to any trademarks or service marks of
ENDIAN. ENDIAN retains all rights not expressly granted to You.
2.5 Restrictions. You may not (i) sell, lease, license, sublicense, distribute
or otherwise transfer in whole or in part the Software to another party;
(ii) provide, disclose, divulge or make available to, or permit use of the
Software in whole or in part by, any third party without ENDIAN's prior
written consent; or (iii) modify or create derivative works based upon the
Software. Except to the extent expressly permitted by applicable law, and
to the extent that ENDIAN is not permitted by that applicable law to
exclude or limit the following rights, you may not decompile, disassemble,
reverse engineer, or otherwise attempt to derive source code from the
Software, in whole or in part. For the sake of clarity, these Restrictions
do not apply to any Copyleft Software or any part of the Endian Product
(but only those parts) which are under a copyright license that permit
otherwise.
2.6 Number of Users. You acknowledge and accept that the number of Users may be
monitored by ENDIAN through ENDIAN Network. If the number of Users exceed
the maximum possibly provided by the Applicable Additional License Terms,
ENDIAN may suspend any support and maintenance services by disabling access
to ENDIAN Network, with 30 days prior notice, unless You upgrade Your
license to the new number of Users within 30 days from receipt of ENDIAN's
notice. During the period of time from when the number of users has been
exceeded to when the deficiency has been cured, ENDIAN shall have no
responsibility for malfunctioning or lack of upgrades, unless in the event
that ENDIAN acted with malicious intent or gross negligence.
2.7 “Copyleft Software”. You can redistribute and/or modify the Copyleft
Software under the terms of the applicable Copyleft Licenses. For the sake
of clarity, nothing in this license shall have the effect to reduce or
deprive You of any of the rights or liberties granted by the relevant
Copyleft License. You may obtain a copy of the Copyleft Source Code by
downloading the source files from ENDIAN's Web site at
http://www.endian.com/en/community/download/, or by sending a request, with
your name and address, to ENDIAN at the address specified in section 1.2,
in which case ENDIAN will mail a copy of the Copyleft Source Code to you on
a CD or equivalent physical medium reserving the right to demand payment of
reasonable shipping and storage expenses before shipping the copy of the
Copyleft Source Code. This offer to obtain a copy of the Copyleft Source
Code is valid for three years from the date you acquired this Software
product.
Article 3 - Support and Maintenance
3.1 Support and Maintenance Services. Subject to proper and ongoing payment of
the applicable service and maintenance fees, ENDIAN will provide to You
support and maintenance services under the Service Level Agreement posted
on ENDIAN's Web site at http://www.endian.com/en/support/maintenance/ and
by accepting the terms of this Agreement you are accepting such Service
Level Agreement.
3.2 Supplemental Software. Any supplemental software or related materials that
ENDIAN provides to you as part of any support and maintenance services
(except for supplemental software covered by Copyleft Licenses) are to be
considered part of the Software and are subject to the terms and conditions
of this Agreement.
Article 4 - Term and Termination
4.1 Term. Except for evaluation and beta licenses, where the term is limited
according to the Applicable Additional License Terms, the term of the
license is for the duration of ENDIAN's copyright in the Software.
4.2 Termination. ENDIAN may terminate this Agreement immediately and without
notice if You fail to comply with any term of this Agreement.
4.3 Effect of Termination. In the event of termination, You must destroy all
copies of the Software, including all backup copies, and remove it from
all computers and terminals on which it is installed. The provisions of
this Agreement, except for the license granted in Section 2 (“License
Grant”) but including section 2.7 (“Copyleft Software”), shall survive
termination.
Article 5 - Limited Warranty and Limitation of Liability
5.1 Limited Warranty. ENDIAN warrants that Hardware, if any, is free of defects
in design, materials and workmanship that materially affect their
performance for a period of 1 year, provided that You may extend such
warranty period according to the terms posted on ENDIAN's Web site at
http://www.endian.com/en/company/legals-and-policies/. ENDIAN's sole
obligation shall be to repair or replace the defective Hardware at no
charge to You. ENDIAN may replace the defective Hardware (or any part
thereof) even with a different model or part, either new or reconditioned,
provided that the replacement hardware is substantially equivalent or
superior in all material respects to the defective Hardware. Such
obligation is exclusive of transport fees, installation costs and any
other costs which are not directly associated with the product. Hardware
repair or replacement shall be carried out according to the then-current
ENDIAN's Warranty and RMA Procedures, posted on ENDIAN's Web site at
http://www.endian.com/en/company/legals-and-policies/. Software and
Copyleft Software is licensed on a “AS IS” basis, without warranties or
conditions of any kind, either express or implied. ENDIAN shall be
responsible only for willful acts and gross negligence with respect to
damages caused by any ENDIAN Products. THE LIMITED WARRANTIES SET FORTH
ABOVE ARE IN LIEU OF ALL OTHER WARRANTIES, EXPRESS OR IMPLIED, BY STATUTE
OR OTHERWISE, ALL OF WHICH ARE HEREBY DISCLAIMED AND EXCLUDED BY ENDIAN,
INCLUDING WITHOUT LIMITATION ANY WARRANTY OF MERCHANTABILITY OR FITNESS
FOR A PARTICULAR PURPOSE OR USE AND ALL OBLIGATIONS OR LIABILITIES ON THE
PART OF ENDIAN FOR DAMAGES ARISING OUT OF OR IN CONNECTION WITH THE USE,
REPAIR OR PERFORMANCE OF THE PRODUCTS.
5.2 Excluded Claims. ENDIAN shall have no obligation under any warranty in the
event that:
5.2.1 repair or replacement of any ENDIAN Product shall have been required by
normal wear and tear or necessitated in whole or in part by events
attributable to force majeure or the negligence of any party other than
ENDIAN;
5.2.2 the ENDIAN Product has been modified in any manner without prior written
consent of ENDIAN, except for the configuration available and intended to
be made through the interfaces of the ENDIAN Product;
5.2.3 the ENDIAN Product has not been maintained or used in accordance with
ENDIAN’s applicable operating and/or maintenance manuals;
5.2.4 damages or defects result from improper handling and/or non-usage of the
original packing and the applicable packing instruction.
5.3 Modifications to ENDIAN Products. Without first obtaining the written
approval from ENDIAN, You shall not make (nor allow any other third party
to make) any modifications to any ENDIAN Products or any parts of Products,
other than installing ENDIAN's official Software/Firmware updates.
Notwithstanding the foregoing provision, any modification rights, which are
granted by Copyleft Licenses of Copyleft Software, may be always exercised
by any recipient of such software, but in such case ENDIAN shall not have
any warranty or support obligations with respect to such modified ENDIAN
Products and all fees for already purchased support and maintenance
services shall remain due.
5.4 Cryptographic Software Notice. Some Copyleft Software may include
cryptographic software. The country in which You currently reside may have
restrictions on the import, possession, use, and/or re-export to another
country, of cryptographic software. BEFORE using any cryptographic
software, please check your country's laws, regulations and policies
concerning the import, possession, or use, and re-export of encryption
software, to see if this is permitted.
5.5 Data Retention, Anti-Terrorism, You acknowledge that use of ENDIAN
Products, first and foremost when used to provide services to the public
and/or third parties, may be subject to legal restrictions provided by
Data Retention Laws, Anti-Terrorism Acts and similar laws, statutes or
regulations applicable in Your country. Such restrictions may significantly
vary depending on the context of use and other circumstances. It is your
sole responsibility to use and configure ENDIAN Products in order to comply
with such laws, statutes or regulations. Any legal texts and/or disclaimers
possibly displayed or otherwise provided by and/or included in ENDIAN
Products are exemplary texts provided on a courtesy basis, without
warranties or conditions of any kind, either express or implied, and it is
your sole responsibility to modify such texts or substitute them with other
appropriate texts depending on the context of use and on the laws and
regulations applicable in Your country.
Article 6 - General Provisions
6.1 Entire Agreement. This Agreement sets forth ENDIAN's entire liability and
your exclusive remedy with respect to the ENDIAN Product and supersedes the
terms of any purchase orders and any other communications or advertising
with respect to the Software. You acknowledge that this Agreement is a
complete statement of the agreement between you and ENDIAN with respect to
the ENDIAN Product, and that there are no other prior or contemporaneous
understandings, promises, representations, or descriptions with respect to
the ENDIAN Product.
6.2 Waiver and Modification. No failure of either party to exercise or enforce
any of its rights under this Agreement will act as a waiver of those
rights. This Agreement may only be modified, or any rights under it waived,
by a written document executed by the party against which it is asserted.
6.3 Severability. If any provision of this Agreement is found void or
unenforceable, it will be enforced to the maximum extent permissible, and
the legality and enforceability of the other provisions of this Agreement
will not be affected.
6.4 Governing Law and Jurisdiction. This Agreement and any legal matters that
may arise out of or in connection with this Agreement shall be subject to,
and construed exclusively in accordance with the laws of the Republic of
Austria, except for its of laws provisions (“Internationales Privatrecht”)
and without application of the Convention on the International Sales of
Goods (“Wiener Kaufrechtsübereinkommen”). The courts of Bolzano, Italy,
shall have exclusive jurisdiction. In addition, ENDIAN shall have the sole
option to commence proceedings in the Court where You have a place of
business.
Endian End User License Agreement (EULA)
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