Cisco IronPort Systems, LLC Software License Agreement
NOTICE TO ALL USERS: CAREFULLY READ THE FOLLOWING LEGAL AGREEMENT ("AGREEMENT") FOR THE LICENSE OF THE SOFTWARE (AS DEFINED BELOW). BY CLICKING THE ACCEPT BUTTON OR ENTERING "Y" WHEN PROMPTED, YOU (EITHER AN INDIVIDUAL OR A SINGLE ENTITY, COLLECTIVELY, THE "COMPANY") CONSENT TO BE BOUND BY AND BECOME A PARTY TO THE FOLLOWING AGREEMENT BETWEEN CISCO IRONPORT SYSTEMS, LLC, A DELAWARE CORPORATION ("IRONPORT") AND COMPANY (COLLECTIVELY, THE "PARTIES").BY CLICKING THE ACCEPT BUTTON OR ENTERING "Y" WHEN PROMPTED, YOU REPRESENT THAT (A) YOU ARE DULY AUTHORIZED TO REPRESENT YOUR COMPANY AND (B) YOU ACCEPT THE TERMS AND CONDITIONS OF THIS AGREEMENT ON BEHALF OF YOUR COMPANY, AND AS SUCH, AN AGREEMENT IS THEN FORMED.IF YOU OR THE COMPANY YOU REPRESENT (COLLECTIVELY, "COMPANY") DO NOT AGREE TO THE TERMS AND CONDITIONS OF THIS AGREEMENT, CLICK THE CANCEL BUTTON OR ENTER "N" WHEN PROMPTED AND PROMPTLY (BUT NO LATER THAT THIRTY (30) DAYS OF THE DELIVERY DATE, AS DEFINED BELOW) NOTIFY IRONPORT, OR THE RESELLER FROM WHOM YOU RECEIVED THE SOFTWARE, FOR A FULL REFUND OF THE PRICE PAID FOR THE SOFTWARE.
1.1 "Company Service" means the Company's email or internet services provided to End Users for the purposes of conducting Company's internal business and which are enabled via Company's products as described in the purchase agreement, evaluation agreement, beta or pre-release agreement, purchase order, sales quote or other similar agreement between the Company and IronPort or its reseller ("Agreement") and the applicable user interface and IronPort's standard system guide documentation that outlines the system architecture and its interfaces (collectively, the "License Documentation").
1.2 "End User" means the employee, contractor or other agent authorized by Company to access to the Internet or use email services via the Company Service.
1.3 "Service(s)" means (i) the provision of the Software functionality, including Updates and Upgrades, and (ii) the provision of support by IronPort or its reseller, as the case may be.
1.4 "Software" means: (i) IronPort's proprietary software licensed by IronPort to Company along with IronPort's hardware products; (ii) any software provided by IronPort's third-party licensors that is licensed to Company to be implemented for use with IronPort's hardware products; (iii) any other IronPort software module(s) licensed by IronPort to Company along with IronPort's hardware products; and (iv) any and all Updates and Upgrades thereto.
1.5 "Updates" means minor updates, error corrections and bug fixes that do not add significant new functions to the Software, and that are released by IronPort or its third party licensors.Updates are designated by an increase to the Software's release number to the right of the decimal point (e.g., Software 1.0 to Software 1.1).The term Updates specifically excludes Upgrades or new software versions marketed and licensed by IronPort or its third party licensors as a separate product.
1.6 "Upgrade(s)" means revisions to the Software, which add new enhancements to existing functionality, if and when it is released by IronPort or its third party licensors, in their sole discretion.Upgrades are designated by an increase in the Software's release number, located to the left of the decimal point (e.g., Software 1.x to Software 2.0).In no event shall Upgrades include any new versions of the Software marketed and licensed by IronPort or its third party licensors as a separate product.
2. LICENSE GRANTS AND CONSENT TO TERMS OF DATA COLLECTION
2.1 License of Software.By using the Software and the License Documentation, Company agrees to be bound by the terms of this Agreement, and so long as Company is in compliance with this Agreement, IronPort hereby grants to Company a non-exclusive, non-sublicensable, non-transferable, worldwide license during the Term to use the Software only on IronPort's hardware products, solely in connection with the provision of the Company Service to End Users.The duration and scope of this license(s) is further defined in the License Documentation.Except as expressly provided herein, no right, title or interest in any Software is granted to the Company by IronPort, IronPort's resellers or their respective licensors.This license and any Services are co-terminus.
2.2 Consent and License to Use Data.Subject to Section 8 hereof, and subject to the IronPort Privacy Statement at http://www.ironport.com/privacy.html, as the same may be amended from time to time by IronPort with notice to Company, Company hereby consents and grants to IronPort a license to collect and use the data from the Company as described in the License Documentation, as the same may be updated from time to time by IronPort ("Data").To the extent that reports or statistics are generated using the Data, they shall be disclosed only in the aggregate and no End User identifying information may be surmised from the Data, including without limitation, user names, phone numbers, unobfuscated file names, email addresses, physical addresses and file content. Notwithstanding the foregoing, Company may terminate IronPort's right to collect and use Data at any time upon prior written or electronic notification, provided that the Software or components of the Software may not be available to Company if such right is terminated.
3. CONFIDENTIALITY.Each Party agrees to hold in confidence all Confidential Information of the other Party to the same extent that it protects its own similar Confidential Information (and in no event using less than a reasonable degree of care) and to use such Confidential Information only as permitted under this Agreement.For purposes of this Agreement "Confidential Information" means information of a party marked "Confidential" or information reasonably considered by the disclosing Party to be of a proprietary or confidential nature; provided that the Data, the Software, information disclosed in design reviews and any pre-production releases of the Software provided by IronPort is expressly designated Confidential Information whether or not marked as such.
4. PROPRIETARY RIGHTS; OWNERSHIP.Title to and ownership of the Software and other materials and all associated Intellectual Property Rights (as defined below) related to the foregoing provided by IronPort or its reseller to Company will remain the exclusive property of IronPort and/or its superior licensors.Company and its employees and agents will not remove or alter any trademarks, or other proprietary notices, legends, symbols, or labels appearing on or in copies of the Software or other materials delivered to Company by IronPort or its reseller.Company will not modify, transfer, resell for profit, distribute, copy, enhance, adapt, translate, decompile, reverse engineer, disassemble, or otherwise determine, or attempt to derive source code for any Software or any internal data files generated by the Software or to create any derivative works based on the Software or the License Documentation, and agrees not to permit or authorize anyone else to do so.Unless otherwise agreed in writing, any programs, inventions, concepts, documentation, specifications or other written or graphical materials and media created or developed by IronPort or its superior licensors during the course of its performance of this Agreement, or any related consulting or professional service agreements, including all copyrights, database rights, patents, trade secrets, trademark, moral rights, or other intellectual property rights ("Intellectual Property Right(s)") associated with the performance of such work shall belong exclusively to IronPort or its superior licensors and shall, in no way be considered a work made for hire for Company within the meaning of Title 17 of the United States Code (Copyright Act of 1976).
5. LIMITED WARRANTY AND WARRANTY DISCLAIMERS
5.1 Limited Warranty.IronPort warrants to Company that the Software, when properly installed and properly used, will substantially conform to the specifications in the License Documentation for a period of ninety (90) days from the delivery date or the period set forth in the License Documentation, whichever is longer ("Warranty Period").FOR ANY BREACH OF THE WARRANTY CONTAINED IN THIS SECTION, COMPANY'S EXCLUSIVE REMEDY AND IRONPORT'S ENTIRE LIABILITY, WILL BE PROMPT CORRECTION OF ANY ERROR OR NONCONFORMITY, PROVIDED THAT THE NONCONFORMITY HAS BEEN REPORTED TO IRONPORT AND/OR ITS RESELLER BY COMPANY WITHIN THE WARRANTY PERIOD.THIS WARRANTY IS MADE SOLELY TO COMPANY AND IS NOT TRANSFERABLE TO ANY END USER OR OTHER THIRD PARTY.IronPort shall have no liability for breach of warranty under this Section or otherwise for breach of this Agreement if such breach arises directly or indirectly out of or in connection with the following: (i) any unauthorized, improper, incomplete or inadequate maintenance or calibration of the Software by Company or any third party; (ii) any third party hardware software, services or system(s); (iii) any unauthorized modification or alteration of the Software or Services; (iv) any unauthorized or improper use or operation of the Software or Company's failure to comply with any applicable environmental specification; or (v) a failure to install and/or use Updates, Upgrades, fixes or revisions provided by IronPort or its resellers from time to time.
5.2 WARRANTY DISCLAIMER.THE EXPRESS WARRANTIES SET FORTH IN SECTION 5.1 OF THIS AGREEMENT CONSTITUTE THE ONLY PERFORMANCE WARRANTIES WITH RESPECT TO THE SOFTWARE OR SERVICES.TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IRONPORT LICENSES THE SOFTWARE AND SERVICES HEREUNDER ON AN "AS IS" BASIS.EXCEPT AS SPECIFICALLY SET FORTH HEREIN, IRONPORT AND ITS SUPERIOR LICENSORS MAKE NO REPRESENTATIONS OR WARRANTIES OF ANY KIND, WHETHER EXPRESS, IMPLIED, OR STATUTORY (EITHER IN FACT OR BY OPERATION OF LAW), AND EXPRESSLY DISCLAIM ALL OTHER WARRANTIES, INCLUDING WITHOUT LIMITATION, THE IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE.NEITHER IRONPORT NOR ITS THIRD PARTY LICENSORS WARRANT THAT THE SOFTWARE OR SERVICES (1) IS FREE FROM DEFECTS, ERRORS OR BUGS, (2) THAT OPERATION OF THE SOFTWARE WILL BE UNINTERRUPTED, OR (3) THAT ANY RESULTS OR INFORMATION THAT IS OR MAY BE DERIVED FROM THE USE OF THE SOFTWARE WILL BE ACCURATE, COMPLETE, RELIABLE AND/OR SECURE.
6. LIMITATION OF LIABILITY.TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT WILL EITHER PARTY BE LIABLE TO THE OTHER FOR ANY LOSS OF PROFITS, COSTS OF PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES, LOSS OF BUSINESS, LOSS OF USE OR DATA, INTERRUPTION OF BUSINESS, OR FOR INDIRECT, SPECIAL, INCIDENTAL OR CONSEQUENTIAL DAMAGES OF ANY KIND, EVEN IF SUCH PARTY RECEIVED ADVANCE NOTICE OF THE POSSIBILITY OF SUCH DAMAGES.IN NO EVENT SHALL THE LIABILITY OF EITHER PARTY ARISING UNDER ANY PROVISION OF THIS AGREEMENT, REGARDLESS OF WHETHER THE CLAIM FOR SUCH DAMAGES IS BASED IN CONTRACT, TORT, OR OTHER LEGAL THEORY, EXCEED THE TOTAL AMOUNT PAID FOR THE SOFTWARE OR SERVICES DURING THE TWELVE (12) MONTHS PRIOR TO THE EVENT GIVING RISE TO SUCH LIABILITY.
7. TERM AND TERMINATION.The term of this Agreement shall be as set forth in the License Documentation (the "Term").If IronPort defaults in the performance of any material provision of this Agreement or the License Documentation, then Company may terminate this Agreement upon thirty (30) days written notice if the default is not cured during such thirty (30) day period.If Company defaults in the performance of any material provision of this Agreement or the License Documentation, IronPort may terminate this Agreement upon thirty (30) days written notice if the default is not cured during such thirty (30) day notice and without a refund.This Agreement may be terminated by one Party immediately at any time, without notice, upon (i) the institution by or against the other Party of insolvency, receivership or bankruptcy proceedings or any other proceedings for the settlement of such Party's debts, (ii) such other Party making a general assignment for the benefit of creditors, or (iii) such other Party's dissolution.The license granted in Section 2 will immediately terminate upon this Agreement's termination or expiration.Within thirty (30) calendar days after termination or expiration of this Agreement, Company will deliver to IronPort or its reseller or destroy all copies of the Software and any other materials or documentation provided to Company by IronPort or its reseller under this Agreement.
8. U.S.GOVERNMENT RESTRICTED RIGHTS; EXPORT CONTROL.The Software and accompanying License Documentation are deemed to be "commercial computer software" and "commercial computer software documentation", respectively, pursuant to DFAR Section 227.7202 and FAR Section 12.212, as applicable.Any use, modification, reproduction, release, performance, display or disclosure of the Software and accompanying License Documentation by the United States Government shall be governed solely by the terms of this Agreement and shall be prohibited except to the extent expressly permitted by the terms of this Agreement.Company acknowledges that the Software and License Documentation must be exported in accordance with U.S.Export Administration Regulations and diversion contrary to U.S.laws is prohibited.Company represents that neither the United States Bureau of Export Administration nor any other federal agency has suspended, revoked or denied Company export privileges.Company represents that Company will not use or transfer the Software for end use relating to any nuclear, chemical or biological weapons, or missile technology unless authorized by the U.S.Government by regulation or specific license.Company acknowledges it is Company's ultimate responsibility to comply with any and all import and export restrictions, and other applicable laws, in the U.S.or elsewhere, and that IronPort or its reseller has no further responsibility after the initial sale to Company within the original country of sale.
9. MISCELLANEOUS. This Agreement is governed by the laws of the United States and the State of California, without reference to conflict of laws principles.The application of the United Nations Convention of Contracts for the International Sale of Goods is expressly excluded.Nothing contained herein shall be construed as creating any agency, partnership, or other form of joint enterprise between the parties.Neither party shall be liable hereunder by reason of any failure or delay in the performance of its obligations hereunder (except for the payment of money) on account of (i) any provision of any present or future law or regulation of the United States or any applicable law that applies to the subject hereof, and (ii) interruptions in the electrical supply, failure of the Internet, strikes, shortages, riots, insurrection, fires, flood, storm, explosions, acts of God, war, terrorism, governmental action, labor conditions, earthquakes, or any other cause which is beyond the reasonable control of such party.This Agreement and the License Documentation set forth all rights for the user of the Software and is the entire agreement between the parties and supersedes any other communications with respect to the Software and License Documentation.The terms and conditions of this Agreement will prevail, notwithstanding any variance with the License Documentation or any purchase order or other written instrument submitted by a party, whether formally rejected by the other party or not.This Agreement may not be modified except by a written addendum issued by a duly authorized representative of IronPort, except that IronPort may modify the IronPort Privacy Statement at any time, in its discretion, via notification to Company of such modification that will be posted at http://www.ironport.com/privacy.html.No provision hereof shall be deemed waived unless such waiver shall be in writing and signed by IronPort or a duly authorized representative of IronPort.If any provision of this Agreement is held invalid, the remainder of this Agreement shall continue in full force and effect.The parties confirm that it is their wish that this Agreement has been written in the English language only.
10. IRONPORT CONTACT INFORMATION. If Company wants to contact IronPort for any reason, please write to IronPort Systems, Inc., 950 Elm Avenue, San Bruno, California 94066, or call or fax us at tel: 650.989.6500 and fax: 650.989.6543.