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Software License

SOFTWARE LICENSE

This license agreement (License) is a legal agreement between you (either as an individual or, if applicable, the entity on behalf of which you enter into this License)  (Licensee or you) and Smoothwall Limited of Avalon, 1 Savannah Way, Leeds Valley Park, Leeds, LS10 1BA, United Kingdom registered in England and Wales with company number 04298247 (Licensor or we) for any of our software products (Software), plus any printed materials and online or electronic documentation (Documentation) which is offered in conjunction with the Software.

BY PROCEEDING TO DO ANY OF THE FOLLOWING ACTS YOU AGREE TO THE TERMS OF THIS AGREEMENT WHICH WILL BIND YOU AND YOUR EMPLOYEES:

  1. INDICATING YOUR ACCEPTANCE OF THIS LICENSE;
  2. DOWNLOADING THE SOFTWARE;
  3. PLACING AN ORDER FOR THE SOFTWARE;
  4. INSTALLING THE SOFTWARE;
  5. USING THE SOFTWARE

YOU DO NOT AGREE TO THE TERMS OF THIS AGREEMENT, WE ARE UNWILLING TO LICENSE THE SOFTWARE TO YOU AND YOU MUST IMMEDIATELY DISCONTINUE ALL USE.

NOTE THAT THE PROVISIONS FOR SOFTWARE SUPPORT ARE INCORPORATED BY REFERENCE IN CLAUSE 5. THESE SUPPORT PROVISIONS CAN BE FOUND AT THE FOLLOWING URL: www.smoothwall.com/sla

All copyright, trademarks, trade names, patents and other intellectual property rights subsisting in or used in connection with the Software and Documentation are owned by us or our licensors. It is unlawful to load the Software onto a computing device of any form without our license.

If the terms of this License conflict with the express terms of any other agreement in writing between you and us which is signed by us, then the terms of that other agreement shall take priority to the extent there is a conflict.

The term Software shall include, without limitation, software, computer programs, digital files, documentation, images and other media content, metadata, and the audio visual content in any screen displays in the user interface. It shall also include any updates, modifications or patches to which you are entitled.

The Software may contain (i) Open Source software and (ii) Third Party software which we have incorporated into the Software under license such as the General Public License (GPL) and others. To the extent we are required to do so under those licenses, we will provide to you, on request, details of such Open Source software and Third Party Software and the scope of the relevant licenses.

1. Grant and scope of license

1.1          In consideration of your agreement to the terms of this License and your payment of any applicable sums due (whether to the Licensor or to its agents or resellers or otherwise) for use of the Software (License Fee), we grant you a non-exclusive, non-transferable license to use (including use by your employees provided they are made aware of and comply with the terms of this License) the Software and the Documentation in accordance with the terms of this License.

1.2          Provided any applicable License Fee is paid you may:

(a)       Install, access and/or use the Software for any purposes expressly agreed in writing between us; or

(b)       install, access and/or and use the Software (including on a network server or accessing the Software from a web based system or server (whether hosted or cloud-based) to the extent permitted and for the number of users (“Permitted Users”) permitted by user/computer/client licenses we have issued to you, provided you comply with any specific terms applying to those licenses; or

(c)       where neither of sub-clauses 1.2(a) and 1.2(b) apply, install and use the Software for your private or internal business purposes only, either:

(i)         on any hardware supplied by us for the purpose of running the Software provided you comply with any specific terms applying to the use of such hardware; or

(ii)         where no such hardware has been supplied, for a single user on one user computing device (such as a PC, laptop, smartphone or tablet device);

(d)       make a reasonable number of copies of the Software for back-up purposes;

(e)       use any Documentation in support of the licensed use of the Software and make copies of the Documentation as are reasonably necessary for its lawful use.

2. Sub-Licensing and Third Party Users

2.1          Except as expressly agreed in writing between us, you are not permitted to sub-license use of, nor to permit any other person to use, the Software or the Documentation.

 

2.2          Where we have agreed in writing with you that you can permit other users to make use of the Software (whether by way of sub-license or otherwise), you undertake to ensure all such users agree to be bound by terms equivalent to the terms contained in this License in advance of any use of the Software by those users.

2.3          You agree to indemnify us against all liabilities, costs, expenses, damages or losses suffered or incurred by us arising out of or in connection with the use of the Software by any person authorized by you.

3. Licensee’s obligations

3.1          If you are an individual entering into this License on behalf of an entity, you confirm that you are duly authorized to accept the License on behalf of the entity and to bind the entity to the terms of this License. The terms “you” and “Licensee” as used in this License shall include both you as an individual and the entity on whose behalf you enter into this License, unless the context requires otherwise.

3.2          You confirm you have full power to enter into the License and perform your obligations under the License and that the performance of your obligations will not contravene any obligations you have to third parties.

3.3          Except as expressly set out in this License or as permitted by any local law, or as agreed between us in writing, you undertake:

(a)       not to copy the Software or Documentation except where such copying is incidental to normal use of the Software or where it is necessary for the purpose of back-up or operational security;

(b)       not to rent, lease, loan, translate, merge, adapt, vary or modify the Software or Documentation;

(c)       not to make alterations to, or modifications of, the whole or any part of the Software nor permit the Software or any part of it to be combined with, or become incorporated in, any other programs;

(d)       not to disassemble, de-compile, reverse engineer or create derivative works based on the whole or any part of the Software nor attempt to do any such things except to the extent that such actions are essential for the purpose of achieving inter-operability of the Software with another software program, and provided that the information obtained by you during such activities:

(i)         is used only for the purpose of achieving inter-operability of the Software with another software program;

(ii)        is not disclosed or communicated without the Licensor’s prior written consent to any third party to whom it is not necessary to disclose or communicate it; and

(iii)       is not used to create any software which is substantially similar to the Software;

(e)       to keep all copies of the Software secure and to maintain accurate and up-to-date records of the number and locations of all copies of the Software;

(f)       to supervise and control use of the Software and ensure that the Software is used by your employees, Permitted Users and representatives in accordance with the terms of this License;

(g)       to replace the current version of the Software with any updated or upgraded version or new release provided by the Licensor under the terms of this License within 180 days following receipt of such version or release (failure to do so will not invalidate this License but may restrict the ability of the Licensor to provide technical support for the Software);

(h)       to include the copyright notice of the Licensor on all entire and partial copies of the Software in any form;

(i)        to use the Software only on hardware and in software environments which are within any system requirements set out in the Documentation or otherwise specified by us for the Software;

(j)       not to install the Software on any system in which data or information is held, the loss or corruption of which would cause harm to you;

(k)       not to provide, or otherwise make available, the Software in any form, in whole or in part (including, program listings, object and source program listings, object code and source code) to any person other than your employees and Permitted Users without prior written consent from the Licensor;

(l)         not to remove any copyright, trade mark or watermark from any part of the Software or Documentation or disable any features enabling us to monitor payment of License Fees or compliance with the License.

3.4          You must permit the Licensor and its representatives, at all reasonable times and on reasonable advance notice, to inspect and have access to any premises, and to the computer equipment located there, at which the Software or the Documentation is being kept or used, and any records kept pursuant to this License, for the purpose of ensuring that you are complying with the terms of this License.

3.5          You must pay all License Fees due to us (or to the suppliers of our Software) in full by the dates such payments fall due. You consent to us monitoring remotely whether or not License Fees have been paid in respect of the Software. This monitoring may be by way of issuing a license key, remote activation mechanism or otherwise. The Software may initiate communication between the hardware on which it is installed and our remote servers for the purpose of monitoring the correct payment of License Fees, checking account status, and auto-activation of the Software. The Licensee consents to this communication and to the transfer of data for the purposes stated. Where License Fees have not been correctly paid in relation to the Software, we reserve the right to de-activate the Software without notice.

3.6          You consent to the collection of hardware, configuration and usage information (excluding personal information) by the Software and the transfer to us of this information automatically by communication between the hardware on which the Software is installed and our remote servers. You also consent to us storing and using this information, and sharing it with our business partners.  In addition, you agree to the terms of our Privacy Policy, as amended from time to time, which is available on www.smoothwall.com and the current version of which can be sent to you on request.

4. Intellectual property rights, Hacking and Misuse

4.1          You acknowledge that all intellectual property rights in the Software and the Documentation throughout the world belong to the Licensor (or to licensors to the Licensor), that rights in the Software are licensed (not sold) to you, and that you have no rights in, or to, the Software or the Documentation other than the right to use them in accordance with the terms of this License.

4.2           The integrity of the Software may be protected by technical protection measures (“TPM”) so that the intellectual property rights, including copyright, in the Software of the Licensor are not misappropriated.  You must not attempt in any way to remove or circumvent any such TPM, nor to apply, manufacture for sale, hire, import, distribute, sell, nor let, offer, advertise or expose for sale or hire, nor have in your possession for private or commercial purposes, any means whose sole intended purpose is to facilitate the unauthorized removal or circumvention of such TPM.

4.3          We reserve the right to require you to utilize an id, key, code, PIN, password, activation means or similar personal security measure (“PSM”) to download or use the Software. Any such PSM is personal to you and it is your responsibility to keep your PSM safe. You must not share your PSM with anyone except your employees or Permitted Users to the extent they require knowledge of the PSM for use of the Software within the scope of this License. We will not be liable for any loss suffered by misuse of your PSM by any person.

4.4          If a PSM allocated to you is shared outside the terms of this License, or another misuse of the PSM is identified, we have the right to terminate this License without notice. You shall be responsible for ensuring that any employee of yours or any Permitted User, who has access to your PSM, agrees to comply with the terms of this License and agrees not to make use of that PSM once they leave your employment or cease to be a Permitted User.

4.5          Any use of the Software or of a PSM to access data, information, user areas, or any other material to which the user concerned does not have legitimate rights of access is strictly prohibited. You must not attempt to gain unauthorized access to our websites, our servers or any server, computer or database connected to our website.

4.6          You must not misuse the Software, our websites or servers by knowingly introducing viruses, trojans, worms, logic bombs or other material which is malicious or technologically harmful. You must not attack our website via a denial-of-service attack or a distributed denial-of service attack.

5. Support

Unless otherwise agreed in writing, the Licensor only offers support to the extent set out on the Licensor’s website www.smoothwall.com, including the levels provided in and subject to the provisions of the Service Level Agreement (SLA) contained on that website. We reserve the right to withdraw this support at any time and make no representations that the support will be continuously available.

6. Warranty

6.1          The Licensor warrants that for a period of 30 days (Warranty Period) from the date of your installation of the Software (or, if earlier, the date from which you are permitted to first use the Software as a result of payment of a License Fee) the Software will:

(a)       perform substantially in accordance with the functions described in the Documentation; and

(b)       not infringe when used in the United Kingdom the UK intellectual property rights of a third party;

provided that the Software is properly used on the hardware and with the operating system for which it was designed as referred to in the accompanying documentation or on www.smoothwall.com.

6.2          You acknowledge that the Software has not been developed to meet your individual requirements and that it is therefore your responsibility to ensure that the facilities and functions of the Software as described in the Documentation meet your requirements.

6.3          You acknowledge that the Software may not be free of bugs or errors and you agree that the existence of any minor errors shall not constitute a breach of this License.

6.4          If, within 7 days of the conclusion of the Warranty Period, you notify the Licensor in writing of any defect or fault in the Software in consequence of which it fails to perform substantially in accordance with the Documentation, and such defect or fault does not result from you having amended the Software or used it in contravention of the terms of this License, the Licensor will, at its sole option, repair or replace the Software, provided that you make available all information that may be necessary to assist the Licensor in resolving the defect or fault, including sufficient information to enable the Licensor to recreate the defect or fault.

6.5          Where you access the Software via the internet from our websites or servers (either for download or use), we give no warranty that such access will always be available and will not be interrupted. We will not be liable if for any reason our website or servers are unavailable at any time or for any period.

6.6          While the Licensor makes reasonable efforts to ensure that the Software remains compatible with the environment within which it operates, you acknowledge that the Licensor is not responsible for changes in that environment, and the Licensor gives no warranty that the Software will always be compatible with such environment.

7. Licensor’s liability

7.1          Nothing in this License shall limit or exclude the liability of either party for death or personal injury resulting from negligence, fraud, fraudulent misrepresentation.

7.2          The Licensor’s liability for losses suffered by you arising out of or in connection with this agreement (including any liability for the acts or omissions of its employees, Permitted Users, agents and subcontractors), whether arising in contract, tort (including negligence), misrepresentation or otherwise, shall exclude, even if such losses result from the Licensor’s deliberate personal repudiatory breach of this agreement:

(a)       loss of income;

(b)       loss of business profits or contracts;

(c)       business interruption;

(d)       loss of the use of money or anticipated savings;

(e)       loss of information;

(f)       loss of opportunity, goodwill or reputation;

(g)       loss of, damage to or corruption of data; or

(h)        any indirect or consequential loss or damage of any kind howsoever arising and whether caused by tort (including negligence), breach of contract or otherwise.

7.3          The Licensor’s maximum aggregate liability under or in connection with this License, or any collateral contract, whether in contract, tort (including negligence) or otherwise, shall be limited to a sum equal to all sums paid by you by way of Software License Fees in the 12 months prior to liability arising.

7.4          This License sets out the full extent of the Licensor’s obligations and liabilities in respect of the supply of the Software and Documentation.  In particular, there are no conditions, warranties, representations or other terms, express or implied, that are binding on the Licensor except as specifically stated in this License.  Any condition, warranty, representation or other term concerning the supply of the Software and Documentation or connected services which might otherwise be implied into, or incorporated in, this License, or any collateral contract, whether by statute, common law or otherwise, is hereby excluded to the fullest extent permitted by law.

8. Termination

8.1          The Licensor may terminate this License immediately by written notice to you if:

(a)       you commit a material or persistent breach of this License which you fail to remedy (if remediable) within 14 days after the service on you of written notice requiring you to do so; or

(b)       a petition for a bankruptcy order to be made against you (where you are an individual) has been presented to the court; or

(c)       the Licensee (where it is a company) becomes insolvent or unable to pay its debts (within the meaning of section 123 of the Insolvency Act 1986), enters into liquidation, whether voluntary or compulsory (other than for reasons of bona fide amalgamation or reconstruction), passes a resolution for its winding-up, has a receiver or administrator manager, trustee, liquidator or similar officer appointed over the whole or any part of its assets, makes any composition or arrangement with its creditors or takes or suffers any similar action in consequence of its debt.

8.2          We may amend the terms of this License at any time; for the current applicable version, you are referred to www.smoothwall.com.

8.3          Upon termination for any reason:

(a)       all rights granted to you under this License shall cease;

(b)       you must cease all activities authorized by this License;

(c)       you must immediately pay to the Licensor any sums due to the Licensor under this License; and

(d)       you must immediately cease all use of the Software.

9. Transfer of rights and obligations

9.1          This License is binding on you and us and on our respective successors and assigns.

9.2          You may not transfer, assign, charge or otherwise dispose of this License, or any of your rights or obligations arising under it, without our prior written consent.

9.3          The Licensor may transfer, assign, charge, sub-contract or otherwise dispose of this License, or any of its rights or obligations arising under it, at any time during the term of the License.

10. Notices

All notices given by you to the Licensor must be given to Smoothwall Limited of Avalon, 1 Savannah Way, Leeds Valley Park, Leeds, LS10 1AB, United Kingdom. The Licensor may give notice to you at either the e-mail or postal address you provided to it or its representative when procuring the Software. Notice will be deemed received and properly served 24 hours after an e-mail is sent, or three days after the date of posting of any letter. In proving the service of any notice, it will be sufficient to prove, in the case of a letter, that such letter was properly addressed, stamped and placed in the post and, in the case of an e-mail that such e-mail was sent to the specified e-mail address of the addressee.

11. Events outside the Licensor’s control

11.1          We will not be liable or responsible for any failure to perform, or delay in performance of, any of our obligations under this License that is caused by events outside our reasonable control.

11.2          Our performance under this License is deemed to be suspended for the period that the event outside our reasonable control continues, and we will have an extension of time for performance for the duration of that period. We will use our reasonable endeavors to bring the event to a close or to find a solution by which our obligations under this License may be performed despite the event.

12. Waiver

12.1          If the Licensor fails, at any time during the term of this License, to insist on strict performance of any of your obligations under this License, or if the Licensor fails to exercise any of the rights or remedies to which it is entitled under this License, this shall not constitute a waiver of such rights or remedies and shall not relieve you from compliance with such obligations.

12.2          A waiver by the Licensor of any default shall not constitute a waiver of any subsequent default.

12.3          No waiver by the Licensor of any of these terms and conditions shall be effective unless it is expressly stated to be a waiver and is communicated to you in writing.

13. Severability

If any of the terms of this License are determined by any competent authority to be invalid, unlawful or unenforceable to any extent, such term, condition or provision will to that extent be severed from the remaining terms, conditions and provisions which will continue to be valid to the fullest extent permitted by law.

14. Entire agreement

14.1          This License and any document expressly referred to in it constitute the whole agreement between us and supersede any previous arrangement, understanding or agreement between us, relating to the licensing of the Software and Documentation.

14.2         No vendor, distributor, reseller, dealer, retailer, salesperson, or other person is authorized by the Licensor to modify this License or make any warranty, representation or promise that is different than, or in addition to, the warranties, representations, or promises expressly set out in writing in this License.

14.3          We each acknowledge that, in entering into this License (and the documents referred to in it), neither of us relies on any statement, representation, assurance or warranty (Representation) of any person (whether a party to this License or not) other than as expressly set out in this License or those documents.

14.4          Each of us agrees that the only rights and remedies available to us arising out of or in connection with a Representation shall be for breach of contract as provided in this License.

14.5          Nothing in this clause shall limit or exclude any liability for fraud.

15. Export Controls

The Software, Documentation any technical data you have acquired from us (or any products, incorporating Software, Documentation or any such data) may not be exported or transferred, either directly or indirectly, to any country which is prohibited by UK or US export laws and regulations or in breach of any Export Control Laws. Export Control Laws shall mean any applicable laws or regulations anywhere in the world, including United States export laws and regulations, for which the relevant government or any agency at the time of export requires an export license or other governmental approval.

16. Law and jurisdiction

This License, its subject matter or its formation (including non-contractual disputes or claims) shall be governed by and construed in accordance with English law and submitted to the non-exclusive jurisdiction of the English courts.

Smoothwall Ltd.

Avalon

1 Savannah Way

Leeds Valley Park

Leeds, LS10 1AB

United Kingdom

Tel:         +44 (0) 8701 999 500

Email:     [email protected]

www.smoothwall.com

Smoothwall Inc.

Woodfield Corporate Center, Suite 410

8008 Corporate Center Drive

Charlotte, NC 28226-4489

USA

Tel:         1-800-959-3760 (US & Canada)

 

NC Company ID Number: 1053114