Please read this Software End User License Agreement ("Agreement") carefully before using Kerio Technologies, Inc. ("Kerio") products, including all software, and associated media and documentation (printed, electronic or referred to on Kerio’s various websites) which may be provided to You, the customer and end user, with such products (individually and collectively, the "Software"). Notwithstanding any affirmative acceptance of this Agreement made during the purchase and/or installation of a particular Kerio product, You and any entity that you represent (collectively "You") are each agreeing to be bound by the terms of this Agreement with Kerio if You use the Software. If You do not agree to all the terms and conditions of this Agreement, do not use the Software.
Subject to Your compliance with all the terms and conditions of this Agreement, Kerio hereby grants You a limited, non-transferable, non-assignable, non-sublicensable, non-exclusive license to use the Software for the number of users contracted for and in accordance with any documentation that accompanies it for: (i) a period of thirty (30) days from the date of download (the "Trial Period"), in the case of free trial downloads offered on Kerio websites ("Trial Licenses"); (ii) a perpetual period in the case of new purchases of the Software, provided that Kerio receives payment in full of the applicable license fee(s); and (iii) for a period of thirty (30) days (or such time period as Kerio may, in its sole discretion, extend from time to time in writing) from the date of installation solely for internal, non-commercial evaluation and testing purposes, in the case of Kerio Partners (defined as distributors and resellers participating in Kerio’s Partner Program) who have been provided "Not For Resale" versions ("NFR") of the Software. For clarity in the case of Trial Licenses, if You do not pay the applicable license fees prior to the conclusion of any applicable Trial Period, you have no right or license, express or implied, to further use the Software in any manner thereafter.
Except as expressly and unambiguously authorized in this Agreement, neither You, nor (i) any of the users of the Software within Your organization, nor (ii) any of Your service subscribers (in the case of a Software-as-a-service (SaaS) subscription user) if You are a SaaS provider, shall directly or indirectly: (i) modify the Software or any portion thereof (except when modifying the GNU Lesser Public License library); (ii) reverse engineer (except when debugging such modification as described in item (i) above), disassemble, decompile the Software (or any element thereof) or otherwise attempt to discover the source code or structure, sequence and organization of the Software or any element thereof (except to the extent reverse engineering restrictions are expressly prohibited by applicable local law, and then only to the extent so prohibited or controlled); (iii) provide the Software as a service or rent or lease the Software (unless otherwise agreed to in writing); (iv) distribute or sell the Software; or (v) remove, alter or obscure any Software identification, trademark, copyright, confidentiality, proprietary or other notices or legends contained on or within the Software (or any copy or portion thereof).
You, and not the Kerio distributor or reseller, are required to register the Software (from the administration console in the Software or online at www.kerio.com) or the regional equivalent. The following data must be provided by You: name of Your company/business, address, name of your point of contact ("POC"), POC email, and POC phone number.
The Software is protected by intellectual property rights granted under the laws of the United States and other countries. Title, ownership rights, and intellectual property rights in and to the Software, and any copies or elements thereof, shall remain with Kerio and those third party technology suppliers who have provided Add-ons (as defined below) or other technology to the Software (these “Third Party Technology Suppliers” include but not limited to Sophos, zVelo, Microsoft and Digium). More specifically, the granting of this License to You does not grant You nor any of the users of the Software within Your organization any intellectual property rights related of the Software or any elements thereof. This Agreement does not give You any rights not expressly granted herein.
You agree not to pursue or participate in a patent infringement cause of action against Kerio or Sophos, zVelo, Microsoft (to include its subsidiaries, or any protocol licensee of Microsoft or its subsidiaries), Digium, or any other Third Party Technology Supplier.
You acknowledge that the Software includes features to enable Kerio or its agents to remotely monitor for inconsistent use with this license and You hereby grant Kerio, its resellers, and agents the right to monitor Your usage to ensure compliance. To the extent that Kerio reviews and/or collects any personal information in regards to pursuing the enforcement of this license as discussed above, Kerio will (i) protect and keep confidential such information; (ii) not use such information for reasons other those related to license enforcement; and (iii) not sell, distribute or pass on such information to any third party, except as necessary pursuant to subpara (ii) hereof (i.e., for use by private, third party enforcement or collections agencies), and/or as required by law.
Kerio offers third-party software components in the Software or as optional add-ons to the Software for additional license fees (collectively "Add-Ons"). Because these Add-Ons are distributed to Kerio from various third-parties and redistributed by Kerio to You, You may be required to comply with additional provisions of such third-party licenses. The Add-Ons page [ http://www.kerio.com/license-agreement/addons ] will link You to the license provisions that apply to Add-Ons and shall be considered Exhibit A to this Agreement and are incorporated into this Agreement by this reference. Accordingly, any Add-Ons that may be licensed by You shall become part of Software and subject to this Agreement and the applicable terms contained in Exhibit A. In the event of a conflict between the terms and conditions of any license provided in Exhibit A and the terms and conditions provided in this Agreement, the terms and conditions of any license in Exhibit A shall control. Notwithstanding the foregoing, Kerio, in its sole discretion, reserves the right to substitute, modify, eliminate or otherwise change Add-Ons at any time during the term of this Agreement.
Kerio utilizes various third party source codes (the "Source Codes") in the Software which are offered to the general public free of charge by their developers. Such Source Codes are protected under the applicable version of the GNU General Public License ("GPL"), which also governs their usage. Accordingly, You, as the purchaser of Software containing the Source Codes, are required to comply with any relevant GPL provisions (such provisions are provided in the source archive of the Software, but can also be obtained in the acknowledgments file via the control box’s web administration title screen. Additionally, with respect to Software which contains such Source Codes, Kerio is obligated under the GPL to provide You free access thereto. In light of the foregoing, the Source Codes page [ http://download.kerio.com/archive/opensource ] will provide downloadable versions of the Source Codes contained in such Software. The GPL license provisions that apply to such Software shall be considered Exhibit B to this Agreement and are incorporated into this Agreement by this reference. As such, any Source Codes contained in the Software and/or are otherwise downloaded by You are considered to be part of the Software and are subject to this Agreement and the applicable terms contained in Exhibit B. In the event of a conflict between the terms and conditions of any license provided in Exhibit B and the terms and conditions provided in this Agreement, the terms and conditions of any license in Exhibit B shall control. Notwithstanding the foregoing, Kerio, in its sole discretion, reserves the right to substitute, modify, eliminate or otherwise change its products’ Source Codes at any time during the term of this Agreement.
All license fees are non-refundable. Accordingly, please evaluate and test the Software carefully during the Trial Period.
Support may be obtained by all current product license holders via the Kerio website at http://www.kerio.com/support or your regional equivalent. Current Kerio support policies apply. No support (or information) will be provided by any Third Party Technology Supplier.
Software maintenance, which encompasses receiving "Updates" to the current version of the Software you possess, may be obtained using the "update checker" feature provided or via download from the Kerio website. Software maintenance is available during your first year as a licensee and during all periods thereafter in which You further subscribed for the Software. Free updates may be obtained in the same manner in the case of Trial License or NFR license holders. You agree that Kerio may modify or discontinue offering the Software at any time.
In an effort to improve the Software and develop such Updates, the Software contains features that allow Kerio to remotely and automatically identify, track and analyze certain aspects of use and performance of Software and/or the systems on which it is installed, as well as the operator and operating environment (including problems and issues that arise in connection therewith). You may disable this Update feature of the Software at any time, but if you do not, then You hereby consent that Kerio may use any data and information it collects for its internal purposes. As noted earlier, Kerio will (i) protect and keep confidential such information, (ii) not use such information for reasons other those discussed in this Agreement, and (iii) not sell, distribute or pass on such information to any third party.
This Agreement is effective until terminated in accordance with this Section. This Agreement will terminate automatically without notice from Kerio if (i) You fail to comply with any term(s) or conditions hereunder, to include making full payment of applicable license fees; or (ii) at the end of any applicable Trial Period where applicable license fees have not been paid. You may terminate this Agreement at any time by destroying all copies of the Software and all associated license-related documentation. Upon the termination of this Agreement for any reason, You agree to cease all use of the Software and to destroy all copies of the Software and the license-related information received. Any termination of this Agreement shall terminate the license granted hereunder. Sections 2, 4-16 of this Agreement shall survive any termination or expiration of this Agreement.
You expressly acknowledge and agree that use of the Software is at your sole risk and that the entire risk as to satisfactory quality, performance, accuracy and effort is with You.
The Software is provided "as is", with all faults and without warranty of any kind, and Kerio, its representatives, its distributors and resellers and its third party technology suppliers (collectively referred to as "Kerio" for the purposes of these Sections 10, 11and 12) hereby disclaim all warranties and conditions with respect to the Software, either express, implied or statutory, including, but not limited to, the implied warranties and conditions of merchantability, satisfactory quality, or fitness for a particular purpose, accuracy, quiet enjoyment, and non-infringement.
Kerio and its third party technology suppliers do not warrant (i) against interference with Your enjoyment of the Software; (ii) that the functions contained in the Software will meet Your requirements, (iii) that the operation of the Software will be uninterrupted or error-free, or (iv) that defects in the Software will be corrected. No oral or written information or advice given by Kerio shall create a warranty. Should the Software prove defective, You (and not Kerio nor its third party technology suppliers) assume the entire cost of all necessary servicing, repair or correction to the extent that the support provided by Kerio (See Section 8) does not result in the repair of such defect.
Some countries and/or jurisdictions do not allow the exclusion of implied warranties or limitations on applicable statutory rights of a consumer. So the above exclusion and limitations may not apply to you. This disclaimer of warranty constitutes an essential part of this Agreement.
To the extent not prohibited by law, in no event shall Kerio be liable with respect to the Software or any subject matter of this Agreement under contract, tort, strict liability, negligence or any other legal theory for (i) any incidental, special, indirect or consequential damages, lost profits, loss of data, business interruption, however caused, even if Kerio has been advised of the possibility of such damages; or (ii) any amount in excess, in the aggregate, of the amounts paid by You for the Software. Furthermore, to the extend prohibited by law, in no event with respect to the software or any subject matter of this agreement shall any third part technology supplier be held liable for any damages whatsoever. If however a third party technology supplier is found to be liable, Kerio shall fully indemnify such supplier.
Some countries and/or jurisdictions do not allow the limitation of liability for personal injury, or of incidental or consequential damages, so this limitation may not apply to you.
You agree that Kerio and its third party technology suppliers shall have no liability whatsoever for any use You make of the Software. You agree to indemnify and hold harmless Kerio and its third party technology suppliers from any claims, damages, liabilities, costs and fees (including reasonable attorney fees) arising from Your use of the Software as well as from Your failure to comply with any term of this Agreement. Your indemnity shall survive any termination of this Agreement, for any reason.
If You are part of an agency, department, or other entity of the United States Government ("Government"), your rights to the Software are expressly restricted by this Agreement. More specifically, under §48 C.F.R. (Federal Acquisitions Regulations System), the Software falls within the definition of a "commercial item," "commercial computer software" and "commercial computer software documentation." Under the statute, rights to commercial computer software and associated documentation purchased by the Government may be restricted by license agreement. Accordingly, your rights to the Software are solely governed by this Agreement, and the restrictions identified herein are permissible under U.S. law and do apply.
You acknowledge that the Software is not intended for use in direct connection with any high risk or strict liability activity (including, without limitation, air travel, space travel, fire fighting, police operations, vehicle operations, power plant operations or power generation applications, transport management systems, military operations, rescue operations, hospital and medical operations or the like) and You agree not to use or allow the use of the Software whereby such usage could directly cause or contribute to damage to property or injury to persons.
You agree to comply with all export laws and restrictions and regulations (i) of the United States Department of Commerce (see www.bis.doc.gov/licensing/exportingbasics.htm), the United States Department of Treasury Office of Foreign Assets Control, or other United States or agencies or authorities, and (ii) of the country or countries in which you reside, are doing business in, are exporting to or alike. Furthermore, You shall not export, or allow the export or re-export of the Software in violation of any such restrictions, laws or regulations. By installing or using the Software, You agree to comply with the above and represent and warrant that You are not located in, under the control of, nor a resident of any restricted country.
This Agreement, to include the terms and conditions of the end user license agreements ("EULA") and any other agreements referred to on the Third Party Add-Ons and Source Codes pages of this Agreement, constitutes the complete agreement between the parties with respect to the use of the Software licensed hereunder and supersedes all prior or current agreements, whether verbal or in writing, regarding such subject matter, with the exception of any agreement arrived at pursuant to Section 2(iii) hereof. This Agreement may be amended only in writing as executed by any corporate officer of Kerio. The Third Party Technology Suppliers are third party beneficiaries of this Agreement.
If any provision of this Agreement is held to be unenforceable for any reason, such provision shall be reformed only to the extent necessary to make it enforceable. The failure of Kerio to act with respect to a breach of this Agreement by You or others does not constitute a waiver and shall not limit Kerio's rights with respect to such breach or any subsequent breaches. Kerio expressly reserves the right to assign this Agreement and to delegate any of its obligations hereunder. You may not assign, delegate or otherwise transfer (whether by operation of law or otherwise) this Agreement or any of Your rights or obligations hereunder without the prior written consent of Kerio.
Any dispute, controversy or claim arising out of or relating to this Agreement or to a breach thereof, including its interpretation, performance or termination, shall be finally resolved by arbitration. The arbitration shall be conducted in English and in accordance with the Arbitration Rules and Procedures of Judicial Arbitration and Mediation Services (JAMS), which shall administer such arbitration. The arbitration, including the rendering of the award, shall take place in Santa Clara County, California, USA. For the purposes of this arbitration, this Agreement shall be governed by and construed under California law as such law applies to agreements between California residents entered into and to be performed within California, USA. The decision of the arbitrators shall be binding upon the parties hereto, and the expense of the arbitration (including without limitation the award of attorneys' fees to the prevailing party) shall be paid as the arbitrators determine. The decision of the arbitrators shall be executory, and judgment thereon may be entered by any court of competent jurisdiction.
Notwithstanding anything contained in this Section, each party shall have the right to institute judicial proceedings against the other party or anyone acting by, through or under such other party in order to enforce the instituting party's rights hereunder through reformation of contract, specific performance, injunction or similar equitable relief.
Any translation of this Agreement is done for local requirements and in the event of a dispute between the English and any non-English versions, the English version of this Agreement shall govern.