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PLEASE READ THIS AGREEMENT CAREFULLY BEFORE USING THIS PRODUCT. BY DOWNLOADING, INSTALLING OR USING THIS PRODUCT, YOU ACCEPT AND AGREE TO THE TERMS AND CONDITIONS OF THIS AGREEMENT. FOR ORDERS PLACED OUTSIDE THE UNITED STATES OF AMERICA, PLEASE GO TOTO VIEW THE APPLICABLE VERSION OF THIS AGREEMENT FOR YOUR REGION. IF YOU DO NOT AGREE TO THE TERMS AND CONDITIONS OF THIS AGREEMENT OR THE APPLICABLE VERSION OF THIS AGREEMENT FOR YOUR REGION, DO NOT DOWNLOAD, INSTALL OR USE THIS PRODUCT. IF YOU HAVE A SIGNED AGREEMENT WITH PROVIDER THAT IS SPECIFICALLY REFERENCED IN AN ORDER THAT IS EXECUTED BETWEEN YOU AND PROVIDER, THEN THAT SIGNED AGREEMENT WILL SUPERSEDE THIS AGREEMENT.
This Software Transaction Agreement (theAgreement) is made between you, the Customer (Customer or You) and the Provider, as defined below.
(a)Affiliatemeans any legal entity controlling, controlled by, or under common control with a party to this Agreement, for so long as such control relationship exists.
(b)Appliancemeans a computer hardware product upon which the Software is pre-installed and delivered.
(c)Documentationmeans the user manuals and documentation that Provider makes available for the Software, and all copies of the foregoing.
(d)eStoremeans Providers online Software ordering system located at
(e)License Typemeans the model by which the Software is licensed (e.g., by server, by mailbox, by managed user) as indicated in the applicable Order.
(f)Maintenance Servicesmeans Providers maintenance and support offering for the Products as identified in theMaintenance ServicesSection below.
(g) An Order is either (i) an ordering document signed by Customer and Provider (Signed Order), (ii) an order placed through the eStore, or (iii) a Customer purchase order (PO) submitted to Provider. All Orders are governed solely and exclusively by this Agreement and any additional or varying terms stated on (a) a Signed Order or (b) a Provider quotation referenced on a PO that states that it is governed exclusively by such quotation (Governing Quotation). Each Order shall be Customers irrevocable commitment to purchase and pay for the Products and/or Maintenance Services stated in the Order and each Order placed with Provider shall be subject to approval by Provider in writing or by performance.
(h)Partnermeans a reseller or distributor that is under contract with Provider or another Partner and is authorized via such contract to resell the Products and/or Maintenance Services.
(i)Product Guidemeans the document located at contains the Product Terms.
(j)Product Termsmeans the terms associated with each License Type and any other terms associated with an individual Product. The Product Terms for Products in a Signed Order or a Governing Quotation shall be as stated in the Signed Order or Governing Quotation. If no Product Terms are stated in the Signed Order or Governing Quotation, if the Order is placed with a PO only, if the Order is placed through the eStore, or if the Products are purchased from a Partner, then the Product Terms for such Products shall be as stated in the Product Guide as of the date of the Order or purchase.
(k)Providermeans Quest Software Inc., with its principal place of business located at 4 Polaris Way, Aliso Viejo, CA 92656. If an Order is placed through and approved by an Affiliate of Provider, then that Affiliate shall be the Provider under this Agreement. If the Provider is renamed, then the renamed entity shall become the Provider under this Agreement.
(l)Productsmeans the Software and Appliance(s) provided to Customer under this Agreement.
(m)Softwaremeans the object code version of the software that is provided or made available to Customer pursuant to an Order as well as any corrections, enhancements, and upgrades to such software that are made available to Customer pursuant to this Agreement, and all copies of the foregoing. Software includes On-Premise Software and SaaS Software (as defined in theSoftware LicenseSection), along with software that is delivered on an Appliance.
(a)General.Subject to the terms of this Agreement, Provider grants to Customer, and Customer accepts from Provider, a non-exclusive, non-transferable (except as otherwise set forth herein) and non-sublicensable license to access and use the quantities of each item of Software purchased from Provider or a Partner within the parameters of the Product Terms associated with the applicable Software and License Type (theLicense). Except for MSP Licenses (as defined below), Customer shall only use the Software to support the internal business operations of itself and its worldwide Affiliates.
(b)On-Premise Software.If Software is delivered to Customer for Customers installation and use on its own equipment (On-Premise Software), the License shall be perpetual (unless otherwise stated on the Order) and shall also include the right to (i) make a reasonable number of additional copies of the On-Premise Software to be used solely for non-productive archival or passive disaster recovery purposes, provided such copies are kept in a secure location and are not used for production purposes unless the primary copy of the On-Premise Software is not being used for production purposes, and (ii) make and use copies of the Documentation as reasonably necessary to support Customers authorized users in their use of the On-Premise Software. Each License for On-Premise Software shall only be installed by Customer in the country in which the On-Premise Software is initially delivered to Customer.
(c)Software as a Service.If an Order provides Customer with a right to access and use Software installed on equipment operated by Provider or its suppliers (SaaS Software), (i) the License for such SaaS Software shall be granted for the duration of the term stated in the Order (theSaaS Term), as such SaaS Term may be extended by automatic or agreed upon renewals, and (ii) the terms set forth in theSaaS ProvisionsSection of this Agreement shall apply to all access to and use of such Software. If any item of Software to be installed on Customers equipment is provided in connection with SaaS Software, the License duration for such Software shall be for the corresponding SaaS Term, and Customer shall promptly install any updates to such Software as may be provided by Provider.
(d)MSP License.If an Order indicates that Software is to be used by Customer as a managed service provider, Customer shall be granted a License to use such Software and the associated Documentation to provide Management Services (anMSP License).Management Servicesinclude, without limitation, application, operating system, and database implementation, performance tuning, and maintenance services provided by Customer to its customers (each, aClient). Each MSP License is governed by the terms of this Agreement and the MSP terms in the Product Guide.
If an Order for an MSP License expressly permits Customer to install copies of the Software on its Clients equipment or to provide its Clients access to the Software, then Customer shall ensure that (i) each Client only uses the Software and Documentation as part of the Management Services provided to it by Customer, (ii) such use is subject to the restrictions and limitations contained in this Agreement, including, but not limited to those in theExportSection of this Agreement, and the applicable Order, and (iii) each Client cooperates with Provider during any compliance review that may be conducted by Provider or its designated agent. At the conclusion of any Management Services engagement with a Client, Customer shall promptly remove any Software installed on its Clients computer equipment or require the Client to do the same. Customer agrees that it shall be jointly and severally liable to Provider for the acts and omissions of its Clients in connection with their use of the Software and Documentation and shall, at its expense, defend Provider against any action, suit, or claim brought against Provider by a Client in connection with or related to Customers Management Services and pay any final judgments or settlements as well as Providers expenses in connection with such action, suit, or claim.
(e)Evaluation License.If an Order indicates that Software is to be used by Customer for evaluation purposes, or if Software is otherwise obtained from Provider for evaluation purposes, Customer shall be granted a License to use such Software and the associated Documentation solely for Customers own non-production, internal evaluation purposes (anEvaluation License). Each Evaluation License shall be granted for an evaluation period of up to thirty (30) days from the date of delivery of the On-Premise Software or from the date that access is granted to the SaaS Software, plus any extensions granted by Provider in writing (theEvaluation Period). There is no fee for an Evaluation License during the Evaluation Period, however, Customer is responsible for any applicable shipping charges or taxes which may be incurred, and any fees which may be associated with usage beyond the scope permitted herein. Customer will only be granted one Evaluation License per release of any item of Software. Notwithstanding anything otherwise set forth in this Agreement, Customer understands and agrees that Evaluation Licenses are provided AS IS and that Provider does not provide warranties or Maintenance Services for Evaluation Licenses.
(g)Use by Third Parties.Customer may allow its services vendors and contractors (each, a Third Party User) to access and use the Software and Documentation provided to Customer hereunder solely for purposes of providing services to Customer , provided that Customer ensures that (i) the Third Party Users access to or use of the Software and Documentation is subject to the restrictions and limitations contained in this Agreement, including, but not limited to those in theExportSection, and the applicable Order(s), (ii) the Third Party User cooperates with Provider during any compliance review that may be conducted by Provider or its designated agent, and (iii) the Third Party Users promptly removes any Software installed on its computer equipment upon the completion of the Third Partys need to access or use the Software as permitted by this Section. Customer agrees that it shall be liable to Provider for those acts and omissions of its Third Party Users which, if done or not done by Customer, would be a breach of this Agreement or an Order.
Customer may not reverse engineer, decompile, disassemble, or attempt to discover or modify in any way the underlying source code of the Software, or any part thereof unless and to the extent (a) such restrictions are prohibited by applicable law and (b) Customer has requested interoperability information in writing from Provider and Provider has not provided such information in a timely manner. In addition, Customer may not (i) modify, translate, localize, adapt, rent, lease, loan, create or prepare derivative works of, or create a patent based on the Products, Documentation or any part thereof, (ii) resell, sublicense or distribute the Products or Documentation, (iii) provide, make available to, or permit use of the Products, in whole or in part, by any third party (except as expressly set forth herein), (iv) use the Products or Documentation to create or enhance a competitive offering or for any other purpose which is competitive to Provider, (v) remove Software that was delivered on an Appliance from the Appliance on which it was delivered and load such Software onto a different appliance without Providers prior written consent, or (vi) perform or fail to perform any other act which would result in a misappropriation or infringement of Providers intellectual property rights in the Products or Documentation. Each permitted copy of the Software and Documentation made by Customer hereunder must contain all titles, trademarks, copyrights and restricted rights notices as in the original. Customer understands and agrees that the Products may work in conjunction with third party products and Customer agrees to be responsible for ensuring that it is properly licensed to use such third party products. Notwithstanding anything otherwise set forth in this Agreement, the terms and restrictions set forth herein shall not prevent or restrict Customer from exercising additional or different rights to any open source software that may be contained in or provided with the Products in accordance with the applicable open source software licenses which shall be either included with the Products or made available to Customer upon request. Customer may not use any license keys or other license access devices not provided by Provider, including but not limited to pirate keys, to install or access the Software.
Customer understands and agrees that (i) the Products are protected by copyright and other intellectual property laws and treaties, (ii) Provider, its Affiliates and/or its licensors own the copyright, and other intellectual property rights in the Products, (iii) the Software is licensed, and not sold, (iv) this Agreement does not grant Customer any rights to Providers trademarks or service marks, and (v) Provider reserves any and all rights, implied or otherwise, which are not expressly granted to Customer in this Agreement.
Provider, its Affiliates and/or its licensors own the title to all Software. Title and risk of loss to an Appliance shall pass from Provider to Customer upon shipment (unless the Appliance is rented, leased or loaned to Customer). Delivery of Products shall be by electronic download or FOB Shipping Point.
Customer agrees to pay to Provider (or, if applicable, the Partner) the fees specified in each Order, including any applicable shipping fees. Customer will be invoiced promptly following delivery of the Products or prior to the commencement of any Renewal Maintenance Period and Customer shall make all payments due to Provider in full within thirty (30) days from the date of each invoice or such other period (if any) stated in a Signed Order. Provider reserves the right to charge Customer a late penalty of 1.5% per month (or the maximum rate permitted by law, whichever is the lesser) for any amounts payable to Provider by Customer that are not subject to a good faith dispute and that remain unpaid after the due date until such amount is paid.
The fees stated in an Order may not include taxes. If Provider is required to pay sales, use, property, value-added or other taxes based on the Products or Maintenance Services provided under this Agreement or on Customers use of Products or Maintenance Services, then such taxes shall be billed to and paid by Customer. This Section does not apply to taxes based on Providers income.
This Agreement or the Licenses granted hereunder may be terminated (i) by mutual written agreement of Provider and Customer or (ii) by either party for a breach of this Agreement by the other party (or a Third Party User) that the breaching party fails to cure to the non-breaching partys reasonable satisfaction within thirty (30) days following its receipt of notice of the breach.
Upon termination of this Agreement or expiration or termination of a License for any reason, all rights granted to Customer for the applicable Software shall immediately cease and Customer shall immediately: (i) cease using the applicable Software and Documentation, (ii) remove all copies, installations, and instances of the applicable Software from all Customer computers and any other devices on which the Software was installed, and ensure that all applicable Third Party Users and Clients do the same, (iii) return the applicable Software to Provider together with all Documentation and other materials associated with the Software and all copies of any of the foregoing, or destroy such items, (iv) cease using the Maintenance Services associated with the applicable Software, (v) pay Provider or the applicable Partner all amounts due and payable up to the date of termination, and (vi) give Provider a written certification, within ten (10) days, that Customer, Third Party Users, and Clients, as applicable, have complied with all of the foregoing obligations.
Any provision of this Agreement that requires or contemplates execution after (i) termination of this Agreement, (ii) a termination or expiration of a License, or (iii) the expiration of a SaaS Term, is enforceable against the other party and their respective successors and assignees notwithstanding such termination or expiration, including, without limitation, theRestrictions,Payment,Taxes,Termination,Survival, Warranty Disclaimer,Infringement Indemnity,Limitation of Liability,Confidential Information,Compliance Verification, andGeneralSections of this Agreement. Termination of this Agreement or a License shall be without prejudice to any other remedies that the terminating party may have under law, subject to the limitations and exclusions set forth in this Agreement.
Customer acknowledges that the Products and Maintenance Services are subject to the export control laws, rules, regulations, restrictions and national security controls of the United States and other applicable foreign agencies (the
) and agrees to abide by the Export Controls. Customer hereby agrees to use the Products and Maintenance Services in accordance with the Export Controls, and shall not export, re-export, sell, lease or otherwise transfer the Products or any copy, portion or direct product of the foregoing in violation of the Export Controls. Customer is solely responsible for obtaining all necessary licenses or authorizations relating to the export, re-export, sale, lease or transfer of the Products and for ensuring compliance with the requirements of such licenses or authorizations. Customer hereby (i) represents that Customer is not an entity or person to which shipment of Products, or provision of Maintenance Services, is prohibited by the Export Controls; and (ii) agrees that it shall not export, re-export or otherwise transfer the Products to (a) any country subject to a United States trade embargo, (b) a national or resident of any country subject to a United States trade embargo, (c) any person or entity to which shipment of Products is prohibited by the Export Controls, or (d) anyone who is engaged in activities related to the design, development, production, or use of nuclear materials, nuclear facilities, nuclear weapons, missiles or chemical or biological weapons. Customer shall, at its expense, defend Provider and its Affiliates from any third party claim or action arising out of any inaccurate representation made by Customer regarding the existence of an export license, Customers failure to provide information to Provider to obtain an export license, or any allegation made against Provider due to Customers violation or alleged violation of the Export Controls (an
) and shall pay any judgments or settlements reached in connection with the Export Claim as well as Providers costs of responding to the Export Claim.
(a)Description.Except as otherwise stated in a Signed Order or Governing Quotation, or an amendment to this Agreement, during any Maintenance Period and for the applicable fees, Provider shall:
(i) Make available to Customer new versions and releases of the Software, including Software corrections, enhancements and upgrades, if and when Provider makes them generally available without charge as part of Maintenance Services.
(ii) Respond to communications from Customer that report Software failures not previously reported to Provider by Customer. Nothing in the foregoing shall operate to limit or restrict follow up communication by Customer regarding Software failures.
(iii) Respond to requests from Customers technical coordinators for assistance with the operational/technical aspects of the Software unrelated to a Software failure. Provider shall have the right to limit such responses if Provider reasonably determines that the volume of such non-error related requests for assistance is excessive or overly repetitive in nature.
(iv) Provide access to Providers software support web site atSupport Site).
(v) For Customers that have purchased a License to use Software in the Privileged Account family of products (PA Software) and have purchased Maintenance Services for the PA Software continuously since the purchase of such License, provide thePrivileged AccountAppliance Replacement Program(as described in the Product Guide) for the Appliance on which the PA Software is delivered (thePA Appliance).
(vi) For Customers that have purchased a License to use Software in the SonicWALL family of products (SNWL Software) and have purchased Maintenance Services for the SNWL Software continuously since the purchase of such License, provide theSonicWALLAppliance Replacement Program(as described in the Product Guide) for the Appliance on which the SNWL Software is delivered (theSNWL Appliance).
Maintenance Services are available during regional business support hours (Business Hours) as indicated on the Support Site, unless Customer has purchased 24×7 Support. The list of Software for which 24×7 Support is available and/or required is listed in the Global Support Guide on the Support Site.
The Maintenance Services for Software that Provider has obtained through an acquisition or merger may, for a period of time following the effective date of the acquisition or merger, be governed by terms other than those in this Section. The applicable different terms, if any, shall be stated on the Support Site.
(b)Maintenance Period.For On-Premise Software, the first period for which Customer is entitled to receive Maintenance Services begins on the date of the initial delivery of the Software following an Order and ends twelve (12) months thereafter unless otherwise set forth below or in the applicable Signed Order or Governing Quotation (theInitial Maintenance Period). Following the Initial Maintenance Period, Maintenance Services for On-Premise Software shall automatically renew for additional terms of twelve (12) months (each, aRenewal Maintenance Period) at the prices stated on the Maintenance renewal Quotation unless the renewal has been cancelled by either party giving written notice, by email or otherwise, to the other at least sixty (60) days prior to the first day of the applicable Renewal Maintenance Period. For purposes of this Agreement, the Initial Maintenance Period and each Renewal Maintenance Period shall be considered aMaintenancePeriod.For the avoidance of doubt, this Agreement shall apply to each Renewal Maintenance Period. Cancellation of Maintenance Services for perpetual Licenses for On-Premise Software will not terminate Customers rights to continue to use the On-Premise Software. Maintenance fees shall be due in advance of each Renewal Maintenance Period and shall be subject to the payment requirements set forth in this Agreement. The procedure for reinstating Maintenance Services for On-Premise Software after it has lapsed is posted at
For SaaS Software, the Maintenance Period is equal to the duration of the applicable SaaS Term. For non-perpetual Licenses for On-Premises Software or for non-perpetual MSP Licenses, the Maintenance Period is equal to the duration of the License.
Maintenance Services for the SNWL Software and SNWL Appliances (collectively,SNWL Maintenance) are optional and only provided if purchased separately. If purchased, the Initial Maintenance Period for SNWL Maintenance begins on the date that SNWL Maintenance is initiated in Customers MySonicWall account (as such account may be renamed by Provider in its sole discretion).
(a)Software Warranties.Provider warrants that, during the applicable Warranty Period (as defined in subsection (c) below),
(i) the operation of the Software, as provided by Provider, will substantially conform to its Documentation (theOperational Warranty);
(ii) the Software, as provided by Provider, will not contain any viruses, worms, Trojan Horses, or other malicious or destructive code designed by Provider to allow unauthorized intrusion upon, disabling of, or erasure of the Software, except that the Software may contain a key limiting its use to the scope of the License granted, and license keys issued by Provider for temporary use are time-sensitive (theVirus Warranty);
(iii) the media provided by Provider, if any, on which the On-Premise Software is recorded will be free from material defects in materials and workmanship under normal use (theMedia Warranty); and
(iv) it will make commercially reasonable efforts to make the SaaS Software available twenty-four hours a day, seven days a week except for scheduled maintenance, the installation of updates, those factors that are beyond the reasonable control of Provider, Customers failure to meet any minimum system requirements communicated to Customer by Provider, and any breach of this Agreement by Customer that impacts the availability of the SaaS Software (theSaaS Availability Warranty).
(b)Appliance Warranties.Except for the PA Appliance and the SNWL Appliance, Appliances are warranted in accordance with the warranty document delivered with the Appliance and/or included on the hardware manufacturers website. For the PA Appliance and the SNWL Appliance, Provider warrants that, during the applicable Warranty Period, the PA Appliance and the SNWL Appliance will operate in a manner which allows the PA Software and the SNWL Software, respectively, to be used in substantial conformance with the Documentation (thePA Appliance Warrantyand SNWL Appliance Warranty, respectively).
(c)Warranty Periods. TheWarranty Periodfor each of the above warranties shall be as follows: (i) for the Operational Warranty as it applies to On-Premise Software, the Virus Warranty and the Media Warranty, thirty (30) days following the initial delivery of the Software pursuant to an Order; (ii) for the Operational Warranty as it applies to SaaS Software and the SaaS Availability Warranty, the duration of the SaaS Term; (iii) for the PA Appliance Warranty, one (1) year following the initial delivery of the PA Appliance following an Order; and (iv) for the SNWL Appliance Warranty, one (1) year following the date the SNWL Appliance is registered with Provider.
(d)Remedies. Any breach of the foregoing warranties must be reported by Customer to Provider during the applicable Warranty Period. Customers sole and exclusive remedy and Providers sole obligation for any such breach shall be as follows:
(i) For a breach of theOperational Warrantythat impacts the use of On-Premise Software, Provider shall correct or provide a workaround for reproducible errors in the Software that caused the breach within a reasonable time considering the severity of the error and its effect on Customer or, at Providers option, refund the license fees paid for the nonconforming Software upon return of such Software to Provider and termination of the related License(s) hereunder.
(ii) For a breach of theOperational Warrantythat impacts the use of SaaS Software, Provider shall correct or provide a workaround for reproducible errors in the Software that caused the breach and provide a credit or refund of the fees allocable to the period during which the Software was not operating in substantial conformance with the applicable Documentation.
(iii) For a breach of theVirus Warranty, Provider shall replace the Software with a copy that is in conformance with the Virus Warranty.
(iv) For a breach of theMedia Warranty, Provider shall, at its expense, replace the defective media.
(v) For a breach of theSaaS Availability Warranty, Provider shall provide a credit or refund of the fees allocable to the period during which the Software was not available for use.
(vi) For a breach of thePA Appliance Warranty or the SNWL Appliance Warranty, Provider shall fulfill its obligations under the applicable Appliance Replacement Program.
Additional Product-specific warranties and remedies may be stated in a Signed Order.
(e)Warranty Exclusions. The warranties set forth in this Section shall not apply to any non-conformance (i) that Provider cannot recreate after exercising commercially reasonable efforts to attempt to do so; (ii) caused by misuse of the applicable Product or by using the Product in a manner that is inconsistent with this Agreement or the Documentation; or (iii) arising from the modification of the Product by anyone other than Provider.
(f)Third Party Products. Certain Software may contain features designed to interoperate with third-party products. If the third-party product is no longer made available by the applicable provider, Provider may discontinue the related product feature. Provider shall notify Customer of any such discontinuation, however Customer will not be entitled to any refund, credit or other compensation as a result of the discontinuation.
(g)Warranty Disclaimer.THE EXPRESS WARRANTIES AND REMEDIES SET FORTH IN THIS SECTION OR IN A SIGN