SMOOTHWALL – SOFTWARE LICENCE
This licence agreement (Software Licence) is a legal agreement between you (either as an individual or, if applicable, the entity on behalf of which you enter into this Software Licence) (Licensee or you) and Smoothwall Inc, 1435 West Morehead Street, Suite 125, Charlotte, NC 28208, is a North Carolina Corporation (ID Number: 1053114). (Licensor or we or us) for any of the Software (as defined below) , 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 SOFTWARE LICENCE AND OUR US TERMS AND CONDITIONS (the US Terms) (AND ANY ASSOCIATED DOCUMENTATION REFERRED TO IN THIS SOFTWARE LICENCE AND/OR THE US TERMS) WHICH WILL BIND YOU AND YOUR EMPLOYEES:
- INDICATING YOUR ACCEPTANCE OF THIS SOFTWARE LICENCE;
- DOWNLOADING THE SOFTWARE;
- PLACING AN ORDER FOR THE SOFTWARE;
- INSTALLING THE SOFTWARE; OR
- USING THE SOFTWARE
IF YOU DO NOT AGREE TO THE TERMS OF THIS SOFTWARE LICENCE, WE ARE UNWILLING TO LICENSE THE SOFTWARE TO YOU AND YOU MUST IMMEDIATELY DISCONTINUE ALL USE.
PURSUANT TO CLAUSE 2.1 OF THE US TERMS, THIS SOFTWARE LICENCE IS INCORPORATED INTO, AND FORMS PART OF, THE AGREEMENT (AS DEFINED IN CLAUSE 1.1 OF THE US TERMS) BETWEEN US AND YOU.
NOTE THAT THE PROVISIONS FOR SUPPORT SERVICES ARE INCORPORATED BY REFERENCE IN CLAUSE 5. THESE SUPPORT PROVISIONS CAN BE FOUND AT THE FOLLOWING URL: us.smoothwall.com/legal
All Proprietary Rights (as defined in Clause 1.1 of the US Terms) 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 a license from us.
If the terms of this Software Licence conflict with the express terms of any other agreement in writing between you and us, then the document that takes precedence shall be determined in accordance with Clause 1.2(g) of the US Terms (or where such document is not listed in Clause 1.2(g) of the US Terms, the terms of this Software Licence shall take priority) .
The term “Software” shall include, without limitation, any and all software, computer programs, digital files, documentation, images and other media content, metadata, and the audiovisual content in any screen displays in the user interface owned by us. It shall also include any maintenance releases, updates, modifications or patches to which you are entitled.
The Software may contain (i) Open Source Software and (ii) Third Party Software (both as defined in Clause 1.1 of the US Terms) which we have incorporated into the Software under licence such as the General Public Licence (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 licence
1.1 In consideration of your agreement to the terms of this Software Licence and your payment of any applicable sums due (as notified by us to you in the Quotation (as defined in Clause 1.1 of the US Terms), whether such sums are stated as due to the Licensor or to its agents or resellers or otherwise) for use of the Software (Licence Fee), we grant you a non-exclusive, non-transferable licence to use (including use by your employees provided they are made aware of and comply with the terms of this Software Licence) the Software and the Documentation in accordance with the terms of this Software Licence.
1.2 This Software Licence shall remain in full force and effect until terminated by either party in accordance with the terms of the Agreement.
1.3 Provided any applicable Licence Fee is paid you may, either:
(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 licences we have issued to you, provided you comply with any specific terms applying to those licenses; or
(c) where neither of sub-clauses 1.3(a) and 1.3(b) apply, install and use the Software for your private or internal business purposes only, either:
(i) on any Hardware (as defined in Clause 1.1 of the US Terms) 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; and
(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.
1.4 You may not use the Software other than as specified in Clause 1.3 without our prior written consent, and you acknowledge that additional fees may be payable on any extension of your use of the Software approved by us.
1.5 We will provide you with all maintenance releases (being releases of the Software that correct faults, add to functionality or otherwise non-materially amend or upgrade the Software) generally made available to our customers provided the Licence Fee (or any part or installment of it) is not overdue and you are not otherwise in breach of the Agreement.
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 Software Licence 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 or the Documentation by any person authorized by you.
3. Licensee’s obligations
3.1 If you are an individual entering into this Software Licence on behalf of an entity, you confirm that you are duly authorized to accept the Software Licence on behalf of the entity and to bind the entity to the terms of this Software Licence. The terms “you” and “Licensee” as used in this Software Licence shall include both you as an individual and the entity on whose behalf you enter into this Software Licence unless the context requires otherwise.
3.2 You confirm you have full power to enter into the Software Licence and perform your obligations under the Software Licence 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 Software Licence or as permitted by Applicable Law, 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, decompile, 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 the 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 Software Licence;
(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 Software Licence within 180 days following receipt of such version or release (failure to do so will not invalidate this Software Licence but may restrict the ability of the Licensor to provide technical support for the Software);
(h) to include the copyright notice of the Licensor (as notified to you by us from time-to-time) 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; and
(l) not to remove any copyright, trademark or watermark from any part of the Software or Documentation or disable any features enabling us to monitor payment of Software Licence Fees or compliance with this Software Licence.
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 Software Licence, for the purpose of ensuring that you are complying with the terms of this Software Licence.
3.5 You must pay all Licence 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 Licence 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 Licence 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 Licence 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.
4. Proprietary Rights, Hacking and Misuse
4.1 You acknowledge that all Proprietary Rights in the Software and the Documentation throughout the world belong to the Licensor (or to our licensors ), 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 Software Licence.
4.2 The integrity of the Software may be protected by technical protection measures (TPM) so that the Proprietary Rights, 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 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 Software Licence. 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 Software Licence, or another misuse of the PSM is identified, we have the right to terminate this Software Licence 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 Software Licence 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.
Unless otherwise agreed in a separate Support Agreement (as defined in the US Terms), 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 Support Agreement 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.
6.1 The Licensor warrants that for a period of 30 days from the date of your installation of the Software in accordance with the terms of this Software Licence or, if earlier, the date from which you are permitted to first use the Software as a result of payment of the Licence Fee (Warranty Period) 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 US intellectual property rights of a third party;
provided that the Software is properly used on 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 Software Licence. We do not warrant that the use of the Software will be uninterrupted or error-free.
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 Software Licence, 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. The remedies available in this Clause 6.4 shall be the sole and exclusive remedies available to you in the event of a defect or fault in the Software in consequence of which it fails to perform substantially in accordance with the Documentation.
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.
6.7 You acknowledge that any Third Party Software and Open Source Software contained in the Software is provided “as is” and expressly subject to the disclaimer in Clause 6.8.
6.8 Except as specifically set out in this Clause 6, we disclaim and exclude all other conditions, warranties, representations or other terms implied or incorporated into this Software Licence or any collateral contract, whether by statute, common law or otherwise, including but not limited to the warranties of description, design, satisfactory quality, fitness for a particular purpose, or the use of reasonable skill and care. Any such condition, warranty, representation or other term concerning the supply of the Software and Documentation or connected services is hereby excluded to the fullest extent permitted by Applicable Law.
7. Licensor’s liability
7.1 Nothing in this Software Licence shall limit or exclude the liability of either party for death or personal injury caused by the negligence of a party, its employees, contractors or agents, fraud, fraudulent misrepresentation, breach of the obligations implied by section 12 of the Sales of Goods Act 1979 or section 2 of the Supply of the Goods and Services Act 1982 or any other liability which cannot be excluded by law.
7.2 Except as expressly set out in Clause 7.1, the Licensor shall not in any circumstances have any liability for any losses or damages which may be suffered by you (or any person claiming under or through you), whether the same are suffered directly or indirectly or are immediate or consequential, and whether the same arise in contract, tort (including negligence) or otherwise howsoever, which fall within any of the following categories:
(a) special damage, even though we were aware of the circumstances in which such special damage could arise;
(b) loss of profits;
(c) loss of anticipated savings;
(d) loss of business opportunity;
(e) loss of goodwill; or
(f) loss of, or damage to (including corruption of corruption of data).
7.3 For the avoidance of doubt, the total liability of Smoothwall shall be as set out in clause 17.1(b) of the US Terms.
7.4 Any and all dates provided by us for the delivery of the Software shall be treated as approximate only. We shall not, in any circumstances, be liable for any loss or damage arising from any delay in delivery beyond such approximate dates.
8. Termination, Amendment and Consequences of Termination
8.1 This Software Licence shall terminate immediately on the expiry or termination of the Agreement between you and us established pursuant to the US Terms.
8.2 We may, without prejudice to our other rights or remedies, terminate this Software Licence immediately by notice to you, if you dispute the ownership or validity of the Software or the Documentation or any of our Proprietary Rights contained in the Software or the Documentation.
8.3 We may amend the terms of this Software Licence at any time without notice to you; for the current applicable version, you are referred to www.smoothwall.com.
8.4 Upon termination for any reason:
(a) all rights granted to you under this Software Licence shall cease;
(b) you must cease all activities authorized by this Software Licence; and
(c) you must immediately pay to the Licensor any sums due under this Software Licence.
9. Transfer of rights and obligations
9.1 This Software Licence 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 Software Licence or any of your rights or obligations arising under the Software Licence, at any time during the term of the Software Licence.
10. Entire agreement
10.1 This Software Licence 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.
10.2 No vendor, distributor, reseller, dealer, retailer, salesperson, or other person is authorized by the Licensor to modify this Software Licence 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 Software Licence.
10.3 Each party acknowledges that, in entering into this Software Licence (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 Software Licence or not) other than as expressly set out in this Software Licence or those documents.
10.4 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 Software Licence.
10.5 Nothing in this clause shall limit or exclude any liability for fraud.
11. 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.
12. Law and jurisdiction
This Software License, its subject matter or its formation (including non-contractual disputes or claims) shall be governed by and construed in accordance with the state of North Carolina, United States, and submitted to the non-exclusive jurisdiction of the North Carolina courts.