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.
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: email@example.com.
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.