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.
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