Scope. This Agreement applies to all Ipsunflez
software (“Software”), services sold as standalone
products (“Standalone Services”) and service components
of Software (“Service Components”) sold to small and
medium business (“SMB”) and large enterprises
(“Enterprise”). Standalone Se rvices and Service
Components are collectively referred to as “Services”.
This Agreement shall also apply to Ipsunflez Encryption for Email
(“TMEE”) for personal use. The term “Software”
as used herein shall include TMEE. Prof essional or expert service
offerings are governed by other agreements.
2. Binding
Contract. This Ipsunflez License Agreement (“Agreement”
) is a binding contract between Ipsunflez or a licensed
affiliate/affiliate licensor (“Ipsunflez”) and the legal
entity that will be using Ipsunflez Software or Services on a paid
or trial use basis. An agent of this entity (“Representative”)
must accept this Agreement on behalf of the entity before the
Software or Services may be used. Entities whose Representative has
validly accepted this Agreement are referred to as “You.”
Please print this Agreement and save a copy electronically.
NOTE
: SECTION 19 OF THIS AGREEMENT LIMITS IPSUNFLEZ'S LIABILITY.
SECTIONS 8, 15, 16 AND 17 LIMIT OUR WARRANTY OBLIGATIONS AND YOUR
REMEDIES. SECTION 10 SETS FORTH IMPORTANT CONDITIONS OF USE FOR
SOFTWARE AND SERVICES. ATTACHED PRIVACY AND SECURITY STATEMENT
DESCRIBES THE INFORMATION YOU CAUSE TO BE SENT TO Ipsunflez WHEN YOU
USE THE SOFTWARE. PLEASE READ THESE SECTIONS CAREFULLY BEFORE
ACCEPTING THE AGREEMENT.
3. Reserved.
4.
Agreement Rejection . IF ANY ENTITY DOES NOT AGREE WITH ANY
TERM OF THIS AGREEMENT AND HAS PAID FEES BEFORE RECEIVING NOTICE OF
THIS AGREEMENT, IT MAY CONTACT ITS SUPPLIER WITHIN 30 DAYS OF
RECEIPT OF THE ORDER CONFIRMATION FOR A REFUND.
5. Applicable
Agreement. When installing the Software or initiating a Se
rvice, You may be prompted to accept the same or another version of,
or a third party, end user license agreement, however, the terms of
this “Ipsunflez License Agreement” shall take precedence
notwithstanding the terms c ontained in any other end user license
agreement You may have been prompted to accept.. Updates will
replace previously licensed parts of the Software or Services. Some
Major and Minor Product Updates may also require You to accept
additional or different license terms as a condition of use.
Otherwise, this Agreement and Ipsunflez’s written
specifications regarding Maintenance and licensed number of
Computers, Virtual Machines or Users, as applicable, will supersede
any prior or contemporaneous written or oral agreements,
representations or understandings. Modifications to this Agreement
must be agreed to in writing by Ipsunflez.
6. Applicable
Terms and Definitions . Paid Use Licenses: If You are
Paid User, Sections 1 through 7 and 9 through 29 apply to You.
Trial Use Licenses: If You are a “trial user”
Sections 1 through 8, 10, 13, 14, 18, 19, 21 through 26, 28 and 29
of this Agreement apply to You.
“Computer”
means personal computers, workstations, handheld personal
computers, cellular or mobile telephone or other digital electronic
devices.
“Content Security Updates” are new
versions of the Software’s content security component(s) also
known as pattern files or definitions.
“Documentation”
means the technical documentation and operating instructions
made available to You of the Software and/or Services, including
printed updates, “Rea d Me” files and release notes
available on-line.
“License Instrument”
means one or more of the following applicable documents which
further defines Your license rights to the Software and/or Services:
purchase order, order confirmation, license certificate or similar
license document issued by Ipsunflez, or a written agreement between
You and Ipsunflez, that accompanies, precedes or follows this
Agreement.
“Major Product Updates” are
subsequent versions of the Software that contain new features or
functionality.
“Minor Product Updates”
are subsequent versions of the Software that contain bug fixes or
minor enhancements and are typically designated by a change in the
version number to the right of the decimal point.
“Paid
Users” are those who have purchased a license to
Software and/or Services.(as such term is defined below).
“Service
Updates” are enhancements to the databases, heuristics
or underlying technology of the Services. Service Updates are
implemented without end user action.
“Trial Users”
are those who have not purchased a license to Software and/or
Services and are using the Software and/or Services for trial or
evaluation purposes.
“Use Level” means
the license use model (which may include, but not be limited to, by
Computer, console, operating system, hardware system, application,
CPU, key, User, server, Virtual Machines, machine tier limitations,
as applicable) by which Ipsunflez measures, prices and licenses the
right to use the Software and/or Services, in effect at the time an
order is placed for such Software or Services, as indicated in this
Agreement and the applicable License Instrument.
“Users”
are Your employees or independent consultants who use, or
have access to, a Computer (including a shared Computer) or other
device to perform work for You, which Computer or device is
connected directly or indirectly to the server(s) or other systems
on which the Software is installed or who benefit from the use of
the Software or is the person who actually uses any portion of the
Software.
“Virtual Machines” are
software implementations of a machine (i.e. a computer) that
executes programs like a physical machine. Virtual Machines includes
Managed Virtual Mach ines. “Managed Virtual M achine”
means Powered-On Virtual Machine. “Powered-On Virtual Machine”
means a virtual machine in an active power state and executing
computing instructions.
7. Ownership. The Software,
Services and Documentation are the property of Ipsunflez Enterprise
or its licensors, and are protected by copyright, trade secret and
U.S. or ot her patent laws, and international treaty provisions. By
accepting this Agreement, You acquire the limited rights to the
Software, Documentation and Services as set forth in Sections 8 and
9 below.
8. Trial Use License. Trial User: If
You are a trial user, You may use the Software or Services for
evaluation or testing purposes in a non-production environment for
thirty (30) days from the date You download the Software or initiate
the Service (the “Evaluation Period”). During the
Evaluation Period, You may be entitled to web or email based
technical support in the country where You are located and to Minor
Product Updates, Content Security Updates and Service Updates, if
applicable. These capitalized terms are defined in Section 6 above.
TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, THE
SOFTWARE, SERVICES AND RELATED DOCUMENTATION USED FOR TRIALOR
EVALUATION USE PURPOSES ARE PROVIDED TO YOU “AS IS”
WITHOUT WARRANTIES OF ANY KIND. You may not use without Ipsunflez’s
prior written consent the Software, Services and related
documentation (i) if You are a direct competitor of Ipsunflez or
(ii) for purposes of comparison with or benchmarking against third
party products or services (including publishing performance
information or comparisons), except and only to the extent that such
activity is expressly permitted by applicable local law
notwithstanding this limitation. Y our right to use the Software or
Services ends when the Evaluation Period ends, or if You violate any
term of this Agreement. Ipsunflez also reserves the right to
terminate any Trial Use License with or without cause with five (5)
days prior written notice. Upon termination, You must delete or
destroy all copies of the Software and Documentation and stop using
the Software or Service. Your obligations and rights under Sections
7, 14, 19, 21-26 and 28 will continue to apply after termination.
9. Paid Use License.
(A) For Software:
Subject to Your compliance with the terms and conditions of this
Agreement and payment of the applicable license fees, You (i) may
install and use the Software solely in support of Your intern al
business operations in the quantities and at the Use Levels
described in this Agreement and the applicable License Instrument
and (ii) have the right to make a reasonable number of copies of the
Soft ware for backup purposes. Use of Service Components is governed
by Section B below. Only 1 User of Ipsunflez Control Manager may
access and use that Software’s report generation functions at
the same time. Note that License fees are required for each Virtual
Machine that is connected directly or indirectly to the network
server(s) on which the Software is installed. If You have obtained
the Software on a subscription basis, Your rights to use the
Software shall end on the applicable end date as indicated on the
applicable License Instrument and You shall cease use of the
Software as of such applicable end date.
(B) For Service
Components: You may enable and use Service Components of the
Software solely in support of Your internal business operations in
the quantities and at the Use Levels described in this Agreement and
the applicable License Instrument during any Maintenance Term ( as
defined in Section 11 below) only.
(C) For Standalone
Services : Ipsunflez will provide You with the Standa lone
Services solely in support of Your internal business operations for
the time period (“Subscription Term”), as stated on Your
License Instrument, via online access on an outsourced basis during
any Maintenance Term (as de fined in Section 11 below) subject to
the applicable service level agreement. You must initiate Services
to receive them, and You must initiate them promptly to receive
Services for the full Subscription or Maintenance Term. You agree to
provide Ipsunflez with all information required to activate and
perform the Standalone Services, including directory information
with a complete list of valid email addresses, and to notify
Ipsunflez of increases in the number of actual Users so that
Subscription fees can be adjusted accordingly.
(D) For
Documentation : You may make a reasonable number of copies of
the Documentation for internal training and use. All such copies
must include the same proprietary not ces as the original
Documentation provided by Ipsunflez.
10. License
Restrictions . Under this Agreement, You may not: (i) tran sfer
or sublicense the Software, Service or Documentation to another
person or entity; (ii) rent, lease, loan , auction, or resell the
Software, Service or Documentation; (iii) modify, adapt, translate,
or create derivative works of the Software, Service or
Documentation; (iv) reverse engineer, de-compile, or disassemble the
Software or Service, in whole or in part, or otherwise attempt to
reconstruct or discover the source or object code or underlying
ideas, algorithms, file formats, programming or interoperability
interfaces (or in any instance where the law permits any such
action, You agree to provide Ipsunflez with at least 90 days’
advance written notice of Your belief that such action is warranted
a nd permitted and provide Ipsunflez with an opportunity to evaluate
if the law’s requirements necessitate such action); (v) use
the Software or Services to provide services to third parties or
allow use or access to the Software or Services by any third party
other than contractors or consultants acting on Your behalf; (vi)
use the Software or Services other than as specifically described in
and in accordance with the accompanied Documentation, (vii) use the
Software or Services in a region other than the region for which the
Software or Services were authorized to be used or distributed by
Ipsunflez; or (viii) authorize others to do any of the
foregoing.
11. Maintenance/Renewal for Paid Use Licenses.
A paid use license to Software and/or Services entitles You to Minor
Product Updates, Content Security Updates and/or Service U pdates
(as defined below), as applicable, and web or e-mail based technical
support from Ipsunflez or an authorized reseller in the country
where the license to the Software or Services were purchased
(collectively “Maintenance”) for one (1) year from the
date or order confirmation, whichever is earlier (“Maintenance
Term”). To retain Maintenance rights, You must purchase annual
renewal Main tenance from Your supplier (or Ipsunflez) prior to
expiration of the Maintenance Term After the expiration of any
Maintenance Term , You have no right to Maintenance, unless You
purchase annual renewal Maintenance from Ipsunflez (or an authorized
reseller or dealer) at the then current fees. Ipsunflez reserves the
right to charge reinstatement fees in addition to overdue
Maintenance fees to reinstate Maintenance after the expiration of
the Maintenance Term. You shall have no right to reinstate
Maintenance if the period of lapse exceeds one (1) year. Ipsunflez
reserves the right to offer modified versions of its Software or
Services, including subsequent versions that contain new features or
functionality, as new products or services for additional
consideration. Minor Product Updates, Content Security Updates and
updates to the Software’s scan engine components must be
routinely installed from Ipsunflez’s Website for the Software
to operate effectively. Upon installation, Minor and Major Product
Updates become “Software” for the purposes of this
Agreement and Your use of the Minor and Major Product Updates are
subject to the terms and conditions of this Agreement and any
additional terms and conditions that accompany such Minor and Major
Product Updates.
12. Product Registration. In order
to receive Services, Updates and technical support, a Representative
must register with Ipsunflez and activate the Software and Services.
Registration enables us to contact You and to ensure that only
validly licensed entities receive Maintenance and other Serv ices.
Registration requires an entity name and address, a contact name, a
valid product serial number, and a valid email address for renewal
and other legal notices. Failure to register does not diminish Your
warranty rights, but Ipsunflez cannot provide access to Services,
Updates or technical support without registration.
13. Data
Protection Regulations. The use of certain Software and/or
Services may be subject to data protection laws or regulations in
various jurisdictions. You are responsible for determining how and
if You need to comply with those laws or regulations.
14.
Consent To Electronic Communications. Ipsunflez may send You
required legal notices and other communications about the Software
and Services, including Updates, upgrades, special offers and
pricing or other similar information, customer surveys or other
requests fo r feedback (“Communications”). Ipsunflez
will send Communications via in-product notices or email to
registered email addresses of named contacts, or will post
Communications on its Websites. By accepting this Agreement, You
consent to receive all Communications through these electronic means
only and acknowledge and demonstrate that You can access
Communications on Websites.
15. Paid Use License Warranty.
For paid use licenses, Ipsunflez warrants that: (i) for thirty (30)
days following Ipsunflez’s order, the program portion of the
Software will substantially conform with the applicable
Documentation, as updated from time to time, including “ReadMe”
files and release notes available online; and (ii) durin g the
Maintenance Term, it will carry out the Services in a professional
manner with reasonable skill and care (“Limited
Warranty”).
16. Customer Remedies . If the
Software or Services do not conform to the Limited Warranty above,
Ipsunflez’s entire liability and Your sole remedy shall be, at
Ipsunflez’s option, for Ipsunflez to: (a) use commercially
reasonable efforts to correct the error in the Software; (b) help
You work around or avoid the Software error; (c) refund You the cost
of the Software; (d) re-perform the Services; or (e) refund any
prepaid fees for Services after the date of breach of the Limited
Warranty; provided that You notify Ipsunflez of Your claim under the
Limited Warranty within the warranty period. THE LIMITED WARRANTY
DOES NOT APPLY TO (A) ANY ERROR CAUSED BY ACCIDENT, ABUSE,
ALTERATION, MISUSE, MISAPPLICATION OR ANY PROBLEM OR ERROR IN THE
OPERATING SYSTEM SOFTWARE WITH WHICH THE SOFTWARE IS DESIGNED TO
OPERATE OR (B) ANY PROBLEM OR ERROR RESULTING FROM THE USE OF THE
SOFTWARE WITH PROGRAMS THAT HAVE SIMILAR FUNCTIONS OR FEATURES OR
ARE INCOMPATIBLE WITH THE SOFTWARE. ANY REPLACEMENT SOFTWARE WILL BE
WARRANTED FOR THE REMAINDER OF THE ORIGINAL LIMITED WARRANTY PERIOD.
TO THE FULLEST EXTENT PERMI TTED BY APPLICABLE LAW, SUPPORT SOTWARE
TOOLS OR MATERIALS DOWNLOADED OR OBTAINED BY YOU PURSUANT TO THIS
AGREEMENT ARE PROVIDED “AS IS” WITHOUT WARRANTIES OF ANY
KIND.
17. No Other Warranties . GIVEN THE NATURE AND
VOLUME OF MALICIOUS AND UNWANTED ELECTRONIC CONTENT, NEITHER
IPSUNFLEZ NOR ITS RESELLERS OR SUPPLIERS WARRANT THAT EXCEPT FOR THE
EXPRESS LIMITED WARRANTIES IN SECTIONS 15 AND 16 AND TO THE EXTENT
PERMITTED BY APPLICABLE LAW, IPSUNFLEZ AND ITS RESELLERS AND
SUPPLIERS DISCLAIM ALL OTHER WARRANTIES WITH RESPECT TO THE SOFTWARE
AND SERVICES, EITHER EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED
TO IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR
PURPOSE, AND NON-INFRINGEMENT OF THIRD PARTY RIGHTS. ANY IMPLIED
WARRANTIES RELATING TO THE SOFTWARE THAT CANNOT BE EFFECTIVELY
DISCLAIMED SHALL BE LIMITED TO THIRTY (30) DAYS FROM THE DATE YOU
ACQUIRE THE SOFTWARE.
18. Back-Up . While using any Software or Service, You
must re gularly back-up Your data and computer system(s) on separate
media. You acknowledge that any failure to back-up data and systems
may cause You to lose data in the event of an error in the Software,
Service or Updates. Since only You, not Ipsunflez, can know the
value of Your computer systems and data, only You can implement
back-up plans and safeguards appropriate to Your needs in the event
that an error in the Software, Service or Updates causes computer
problems or data loss.
19. Limitation of Liability;
Consequential Damages .
(A) SUBJECT TO SECTION
19(B) BELOW AND TO THE EX TENT PERMITTED BY APPLICABLE LAW, IN NO
EVENT SHALL IPSUNFLEZ OR ITS SUPPLIERS BE LIABLE TO YOU (i) FOR ANY
LOSSES WHICH WERE NOT REASONABLY FORSEEABLE AT THE TIME OF ENTERING
INTO THIS AGREEMENT OR (ii) FOR ANY CONSEQUENTIAL, SPECIAL,
INCIDENTAL OR INDIRECT DAMAGES OF ANY KIND OR FOR LOST OR CORRUPTED
DATA OR MEMORY, SYSTEM CRASH, DISK /SYSTEM DAMAGE, LOST PROFITS OR
SAVINGS, OR LOSS OF BUSINESS, ARISING OUT OF OR RELATED TO THIS
AGREEMENT OR THE SOFTWARE, SERVICES OR MAINTENANCE. THESE
LIMITATIONS APPLY EVEN IF IPSUNFLEZ HAS BEEN ADVISED OF THE
POSSIBILITY OF SUCH DAMAGES AND REGARDLESS OF THE FORM OF ACTION,
WHETHER FOR BREACH OF CONTRACT, NEGLIGENCE, STRICT PRODUCT LIABILITY
OR ANY OTHER CAUSE OF ACTION OR THEORY OF LIABILITY.
(B)
SECTION 19(A) DOES NOT SEEK TO LIMIT OR EXCLUDE THE LIABILITY OF
IPSUNFLEZ OR ITS SUPPLIERS IN THE EVENT OF DEATH OR PERSONAL INJURY
CAUSED BY ITS NEGLIGENCE OR FOR FRAUD OR FOR ANY OTHER LIABILITY FOR
WHICH IT IS NOT PERMITTED BY LAW TO EXCLUDE.
(C) SUBJECT
TO SECTIONS 19(A) AND 19(B) ABOVE, IN NO EVENT WILL THE AGGREGATE
LIABILITY OF IPSUNFLEZ OR ITS SUPPLIERS FOR ANY CLAIM, WHETHER FOR
BREACH OF CONTRACT, NEGLIGENCE, STRICT PRODUCT LIABILITY OR ANY
OTHER CAUSE OF ACTION OR THEORY OF LIABILITY, EXCEED THE LICENSE FEE
PAID OR P AYABLE BY YOU OR THE AMOUNT PAID BY YOU TO IPSUNFLEZ, ITS
RESELLERS OR ITS SUPPLIERS FOR ONE YEAR OF SERVICE. YOU AGREE TO THE
ALLOCATION OF LIABILITY SET FORTH IN THIS SECTION AND ACKNOWLEDGE
THAT WITHOUT YOUR AGREEMENT TO THESE LIMITATIONS, THE FEES C HARGED
FOR THE LICENSE, SERVICE AND MAINTENANCE WOULD BE HIGHER OR IN THE
CASE OF SOFTWARE FOR EVALUATION, IPSUNFLEZ WOULD NOT BE ABLE TO
OFFER YOU THE RIGHT TO EVALUATE THE SOFTWARE AT NO CHARGE.
20.
Audit . In accordance with applicable agency security
requirements and upon reasonable notice and during regular business
hours, Ipsunflez shall have the right to audit Your use of the
Software or Service. If the audit reveals unlicensed Computers,
Virtual Machines or Users, You agree to work with Contractor to
“true up” Your account.
21.
Confidentiality/Nondisclosure. During the term of this
Agreement or any Evaluation Period, You may be exposed to certain
information not generally known to the public that Ipsunflez
considers and treats as confidential and proprietary (“Confidential
Information”), and information that, due to its character or
nature, a reasonable person in a like position and under like
circumstances would treat as secret and confidential. During the
term of this Agreement and at all times after its termination and
subject to the Freedom of Information Ac t, 5 U.S.C. 552,, You agree
(i) to hold the Confidential Information in confidence; (ii) not to
disclose Confidentia l Information to any third parties, except for
employees and independent contractors who have a “need to
know” and who have signed agreements containing disclosure and
use restrictions no less stringent than those in this Section; and
(iii) not to use Confidential Information for any purpose except as
required to perform under this Agreement.
22.
Assignability/Severability . You may not assign this
Agreement or any right under this Agreement to any party, including
any affiliate, without written approval from Ipsunflez. Any
purported assignment by You shall be null and void. Ipsunflez may
assign this Agreement, in whole or part , and delegate its
obligations to qualified third parties or Ipsunflez affiliates
and/or subsidiaries, provided that no delegation of its obligations
shall relieve Ipsunflez of its obligations under this Agreement. You
agree that if a court or other competent tribunal in any
jurisdiction finds any provision of this Agreement invalid, such
finding shall not affect any other provisions of the Agreement,
which shall remain in full force and effect.
23. Export
Control . The Software is subject to export controls u nder the
U.S. Export Administration Regulations. You shall not export or
re-export it to entities within, or resident s or citizens of,
embargoed countries or countries subject to applicable trade
sanctions, nor to prohibited or denied persons or entities without
proper government licenses. As of the date above, countries
embargoed by the U.S. include Cuba, Iran, North Korea, Sudan and
Syria. You are responsible for any violation of the US export
control laws related to the Software. By accepting this Agreement, Y
ou confirm that You are not a resident or citizen of any country
currently embargoed by the U.S. and that You are not otherwise
prohibited from receiving the Software.
24. Compliance
with Import Regulations. Without prejudice to the generality of
Section 23 above, the Software may also be subject in certain
jurisdictions to import laws or regulations including but not
limited to those relating to encryption use. You are responsible for
determining how and if You need to comply with any such applicable
laws or regulations.
25. U.S. Government Restricted
Rights. If You are an agency or unit of the United States
Government, then You acknowledge that the Software, (i) was
developed at private expense, (ii) is commercial in nature, (iii) is
"Restricted Computer Software" as that term is defined in
Clause 52.22 7-19 of the Federal Acquisition Regulations (FAR) and
is "Commercial Computer Software " as that term is defined
in Subpart 227.7202 of the Department of Defense Federal Acquisition
Regulation Supplement (DFARS). The Government agrees that (i) if the
Software is supplied to the Department of Defense (DoD), the
Software is classified as "Commercial Computer Software"
and the Government is acquiring only "restricted rights"
in the Software and its Documentation as that term is defined in
Clause 227.7202 of the DFARS, and (ii) if the Software is supplied
to any unit or agency of the United States Government other than
DoD, the Government's rights in the Software and its Documentation
will be as defined in Clause 52.227- 19(c)(1) or (c)(2) of the FAR.
26. Force Majeure. Neither party will be liable to
the other party for any alleged or actual loss or damages resulting
from delays or failures in performance caused by acts of the other
party, acts of civil or military authority, governmental priorities,
earthquake, fire, flood, epidemic, quarantine, energy crisis,
strike, labor trouble, war, riot, terrorism, accident , shortage,
delay in transportation, or any other cause beyond the reasonable
control of the party whose performance is so delayed. Any party
whose obligations have been suspended under the terms of this
Section shall resume the performance of those obligations as soon as
reasonably possible.
27. Termination . This Agreement
is effective until terminated. Y ou may terminate it at any time by
notifying Ipsunflez in writing. Upon such termination, You must
destroy all copies of the Software. Sections 7, 15-19 and 21-28
survive the termination of this Agreement.
28. Ipsunflez
Licensing Entity.
29. Websites/Questions.
Ipsunflez Websites may be accessed via www.ipsunflez.org. Direct
questions about this Agreement to: legalnotice@ipsunflez.org.
30.
Inspection/Acceptance. Items delivered shall be considered
accepted upon delivery. The Government reserves the right to inspect
or test any supplies or services that have been delivered. The
Govern ment may require repair or replacement of nonconforming
supplies or re-performance of nonconforming services at no increase
in contract price. If repair/replacement or re- performance will not
correct the defects or is not possible, the Government may seek an
equitable price reduction or adequate consideration for acceptance
of nonconforming supplies or services. The Government must exercise
its post- acceptance rights-
(1) Within the warranty period; and
(2) Before any substantial change occurs in the condition of the
item, unless the change is due to the defect in the item.