END USER LICENSE AND SERVICE AGREEMENT
YOU (”CUSTOMER”) MAY ACCEPT THIS END USER LICENSE AND SERVICE AGREEMENT (”AGREEMENT”) BY CLICKING THE ”ACCEPT AND DOWNLOAD” OR SIMILAR BUTTON INDICATING YOUR ACCEPTANCE. YOU ALSO MAY ACCEPT THIS AGREEMENT BY PHYSICALLY EXECUTING A QUOTE, ORDER FORM OR SIMILAR ORDERING DOCUMENT THAT REFERENCES THIS AGREEMENT. BY IN ANY WAY INSTALLING, COPYING OR OTHERWISE USING THE SOFTWARE OR ANY PART THEREOF, CUSTOMER ALSO ACCEPTS AND AGREES TO BE BOUND BY THE TERMS OF THIS AGREEMENT. BY ACCEPTANCE, YOU AGREE TO THE TERMS AND CONDITIONS BELOW. IF YOU ARE ACCEPTING ON BEHALF OF A COMPANY OR OTHER LEGAL ENTITY, YOU REPRESENT THAT YOU HAVE THE AUTHORITY TO BIND SUCH ENTITY AND ITS AFFILIATES, IN WHICH CASE "YOU" OR "YOUR" SHALL REFER TO SUCH ENTITY AND ITS AFFILIATES. IF YOU DO NOT HAVE SUCH AUTHORITY, OR IF YOU DO NOT AGREE TO ALL OF THE TERMS AND CONDITIONS OF THIS AGREEMENT, YOU MUST NOT ACCEPT THIS AGREEMENT OR USE THE SOFTWARE.
This Agreement is eﬀective on the date of your acceptance. Reference to "we", "our" and "us" in its related variations shall mean AlertSec Inc. (”AlertSec”) or its aﬃliates and licensors, as applicable. You are accepting this Agreement on behalf of yourself, your organization and any entity that you represent. You further agree that you have the authority to bind that organization to this Agreement and that you are an authorized user on behalf such organization.
This Agreement sets forth the terms and conditions under which AlertSec is licensing the Software (defined below) and providing certain related services as described below (the “Service”) to Customer. "Software" means the Check Point products as well as AlertSec Deployment & Web Management products delivered to Customer in object code only, including all related documentation, and, if applicable, any update, revision, translation, adaptation, modification, derivation or copy of the foregoing, on the following terms and conditions. The Software is not sold; it is licensed solely as set forth in and subject to this Agreement. The Check Point Software is and remains the property of Check Point Software Technologies Ltd (“Check Point”) and is protected by copyright laws and international copyright treaties. Check Point has granted AlertSec the right to sub-license the Check Point Software as set forth herein, and to base the Service on the Check Point Software.
1.1 The Service includes (in each case in accordance with AlertSec’s standard policies in effect from time to time): (i) web management of the Service; (ii) reasonable commercial efforts to correct errors in the Service; (iii) new releases and upgrades of the Software delivered in the Service, when and as available; and (iv) access to the helpdesk by telephone and email. The helpdesk will support Customer with issues related to the usage of the Service by answering questions, by using reasonable commercial efforts to provide work-around solutions and software patches for substantial problems where the Software is not performing materially in accordance with its specifications. The helpdesk will also provide password reset support over telephone for the Software. AlertSec’s helpdesk current contact details can be found at www.alertsec.com.
1.2 AlertSec shall carry out the support undertakings set out in this Agreement with care and otherwise in a professional manner, and shall maintain an organization and preparedness with suitably qualified and competent personnel. AlertSec’s undertakings and specified fees do not cover; (i) faults caused as a result of alterations or internal adjustment of the Software by Customer not in accordance with AlertSec’s instructions; (ii) faults arising as a result of a use of the Software in a manner other than that described in the user documentation or negligence on the part of Customer, his staff or a third party, or as a result of other circumstances beyond the control of AlertSec.
2.0 The free trial period lasts for one week (7 days), or as otherwise specified during the sign-up process for Customer’s Web Account. The free trial is intended to allow new Customers to try the Service.
2.1 At the end of the free trial period, AlertSec will charge the Customer for the Service unless the Customer cancels, through Customer’s Web Account, the free trial before the end of the free trial period. An email with Web Account log in details is sent to the Customer during sign-up. As a reminder that the free trial period is about to end, a second email is sent three (3) days prior to the end of the free trial period.
3.1 AlertSec will provide the Service described above provided that Customer has paid the applicable Service Fee. Customer will pay, and authorizes AlertSec to charge (using Customer’s selected payment method), for all applicable fees and taxes. Customer is responsible for providing complete and accurate billing and contact information to AlertSec. Customer chose at sign-up to pay monthly or annually for the Service. Customer is only bound during the chosen payment period. Service Fees are non-refundable.
4.1 AlertSec, on its own behalf and on behalf of Check Point as the owner of the Check Point Software, grants Customer a non-exclusive, non-transferable license to use the Software as delivered in the Service, and during the term set forth below.
4.2 The license is limited to the number of clients and modules of the Software to which Customer has subscribed and with respect to which it pays the requisite Service Fee. Customer will ensure that the number of clients and modules of the Software in use does not at any time constitute an excess use.
4.3 If the equipment on which the Software is originally deployed becomes damaged, Customer will have the right to replace the equipment and continue to exercise the licenses to which it has subscribed.
4.4 Customer acknowledges and accepts that all rights in the Software, whether express or implied, shall at all times remain vested in Check Point. Customer does not acquire any rights, express or implied, in the Software, other than those rights expressly granted to Customer in this Agreement.
4.5 Customer may not sub-license, rent out or lend the Software or otherwise permit anyone else to make use of or otherwise dispose of the Software either directly or indirectly, for payment or otherwise.
4.6 Customer shall not make or permit the making of any modifications, additions or enhancements to the Software, or cause or permit the Software to be combined with any other computer programs, or cause or permit the reverse engineering, disassembly or decompilation of the Software. Customer may not use or otherwise transfer the Software, either wholly or partly, otherwise than as specified in this Agreement.
4.7 Besides for the purpose of installation on clients, Customer may not copy the Software other than for the purposes of security backup, disaster recovery and such archiving as may be required by law.
4.8 Labeling or any details of an existing patent, copyright or copyright labeling in a program or on a medium on which the Software is made available to Customer shall be preserved by Customer and may not be removed, altered or modified.
5.1 ALERTSEC MAKES NO WARRANTIES HEREUNDER, WHETHER EXPRESS, IMPLIED OR STATUTORY, INCLUDING BUT NOT LIMITED TO THE IMPLIED WARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, OR NON-INFRINGEMENT; ANY WARRANTY THAT THE SERVICE WILL BE CONTINUOUSLY AVAILABLE OR THAT THE SOFTWARE WILL DETECT ALL VIRUSES OR MALWARE; OR ANY WARRANTY THAT THE INSTALLATION OF THE SOFTWARE AND USE OF THE SERVICE WILL NOT DAMAGE CUSTOMER’S EQUIPMENT ON WHICH IT IS INSTALLED.
5.2 A PARTY’S LIABILITY UNDER OR ARISING OUT OF THIS AGREEMENT, WHETHER ARISING IN CONTRACT, NEGLIGENCE, OR OTHERWISE SHALL NOT EXCEED THE AMOUNTS PAID BY CUSTOMER FOR THE SERVICE DURING THE TWELVE CALENDAR MONTHS BEFORE A CLAIM. CUSTOMER ACKNOWLEDGES AND CONFIRMS THE IMPORTANCE OF ESTABLISHING AND MAINTAINING BACKUP ROUTINES BOTH PRIOR TO INSTALLATION OF THE SOFTWARE ON EACH CLIENT AND IN THE NORMAL COURSE OF BUSINESS AND ALERTSEC SHALL NOT BE LIABLE FOR ANY LOSS ARISING OUT OF FAILURE TO APPLY SUCH ROUTINES. CUSTOMER ACKNOWLEDGES AND AGREES THAT IN SOME CIRCUMSTANCES USE OF THE SOFTWARE MAY PERMANENTLY DISABLE OR DAMAGE THE HARD DRIVE OR OTHER COMPONENTS OF THE EQUIPMENT ON WHICH IT IS INSTALLED, AND THAT ALERTSEC SHALL HAVE NO LIABILITY WITH RESPECT TO ANY SUCH DAMAGE.
5.3 IN NO EVENT WILL EITHER PARTY BE LIABLE FOR LOST PROFITS, LOSS OR CORRUPTION OF DATA OR INFORMATION, OR FOR ANY INCIDENTAL, CONSEQUENTIAL, OR SPECIAL DAMAGES, HOWEVER CAUSED AND ON ANY THEORY OF LIABILITY ARISING OUT OF OR RELATING TO THIS AGREEMENT, EVEN IF IT HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
5.4 THE LIMITATION OF LIABILITY SET OUT HEREIN SHALL NOT, HOWEVER, BE INTERPRETED TO EXCLUDE LIABILITY (I) FOR FAILURE TO PAY SERVICE FEES, (II) FOR BREACH OF ARTICLE 2 ABOVE, OR (III) FOR ANY DAMAGES THAT CANNOT BE LIMITED UNDER APPLICABLE LAW.
6.1 This Agreement shall continue for an initial period of 12 months. If neither party gives notice of termination 30 days before the end of this period, this Agreement will be renewed for a consecutive 12 month period with the same notice period. However, if Customer has subscribed on the Service on a monthly basis, then the term shall renew on a monthly basis unless terminated with thirty (30) calendar days’ prior email notice.
6.2 This Agreement will immediately terminate if (i) Customer materially breaches Article 2 of this Agreement; (ii) if Customer fail to pay the Service Fee in accordance with the agreed payment terms; or (iii) Customer goes into voluntary liquidation or enters into a voluntary arrangement with its creditors or Customer is the subject of any involuntary proceeding relating to insolvency such as receivership, administration, compulsory liquidation or otherwise cease to carry on business.
6.3 Discontinuation of the Service shall be deemed to have occurred in the event Customer provides AlertSec written notice of its intent to decline renewal of the Service. Following such written notice Customer will receive the Service throughout the term that has been paid for and no refunds will be issued.
6.4 Upon termination Customer must uninstall all copies of the Software delivered in the Service. If Customer fails to uninstall all copies, AlertSec has the right to force an uninstallation or lock the installation. To unlock an installation may require Customer to pay a reactivation fee.
7.1 Customer acknowledges that the Software contains cryptographic features and is subject to international, Federal, State or local laws governing import, export, distribution and use.
7.2 Customer is responsible for compliance with international and local country laws and regulations and shall not export, import or transmit the Software between countries for which an export license, import license or other governmental approval is required without first obtaining the prerequisite license or approval.
8.1 Customer may not assign, delegate or otherwise transfer this Agreement or any of its rights or obligations here under AlertSec’s prior written approval. Any assignment, delegation or transfer that violates the foregoing will be void. AlertSec may however freely transfer this Agreement.
8.2 This Agreement shall be construed and governed by the laws of the State of California, USA, without giving effect to any choice of law or conflict of law principles.
8.3 Any dispute, controversy or claim arising out of or in connection with this Agreement, or the breach, termination or invalidity thereof, shall be determined by the State and Federal Courts sitting in Santa Clara County, California, USA, and the parties hereby submit to the exclusive jurisdiction of the such courts for such purpose.
8.4 If any provision of this Agreement is unenforceable, such provision will be changed and interpreted to accomplish the objectives of such provision to the greatest extent possible under applicable law and the remaining provisions will continue in full force and effect.