License Agreement

KERIO TECHNOLOGIES, INC.

SOFTWARE END USER LICENSE AGREEMENT

Please read this Software End User License Agreement ("Agreement") carefully before using any Kerio Technologies Inc. ("Kerio") products licensed to You under this Agreement, including all software, hardware and associated media and documentation (printed, electronic or referred to on Kerio’s various websites and collectively, “Documentation”) provided to You with such products (individually and collectively, the "Software").  Such Software currently includes our email service (“Kerio Connect”), firewall product (“Kerio Control”) and voice over IP service (“Kerio Operator”).  

Notwithstanding any affirmative acceptance of this Agreement made during the installation or registration of a particular Software product, by acquiring a license to use and/or using the Software You, and any entity that You represent (collectively "You," “Your” or related terms), are each agreeing to be bound by the terms of this Agreement and to be fully responsible for the use of the Software by any of Your authorized users.  If You do not agree to all the terms and conditions of this Agreement or if You are not authorized by the entity intended to use the Software enter this Agreement on its behalf, do not use the Software and if You have previously licensed the Software, seek a refund immediately.

TERMS AND CONDITIONS

1. LICENSE GRANT

Subject to Your compliance with all the terms and conditions of this Agreement and payment of all applicable license fees associated with any license granted to You herein (collectively, “Fees”), 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 (“License”) 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 purchase of a perpetual license to use the Software; (iii) the time period extended by Kerio in each case in the case of free version downloads offered on Kerio websites ("Free Licenses"); or (iv) 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 Fees prior to the conclusion of any applicable Trial Period, Your Trial License will expire immediately at the conclusion of the Trial Period and you will no longer have any right or license, express or implied, to further use the Software in any manner thereafter.

2. LICENSE RESTRICTIONS

Except as expressly and clearly permitted under this Agreement or another appropriate agreement among You and Kerio (or an approved Kerio partner), You expressly agree not to, directly or indirectly:
(i) modify, adapt or create derivative works of 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;
(iii) use the Software in violation of any usage or licensing restrictions provided elsewhere in the Documentation (including, without limitation, use of Kerio Control’s guest network feature by persons employed by or consulting to Your organization to access Your internal network resources);
(iv) use the Software in violation of any applicable law in Your jurisdiction or other jurisdictions where you operate (such as, without limitation, laws restricting delivery of unsolicited or unauthorized mail, spam, or other forms of unsolicited messages); or
(v) copy, rent, lease, loan, resell, transfer, sublicense or otherwise distribute or sell the Software (except where otherwise expressly agreed to by Kerio in writing); or(vi) 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).

Additionally, any consultant, contractor, or agent hired to perform services for You may operate the Software on your behalf under these terms and conditions, provided that: (a) you remain responsible for ensuring that any such third party agrees to abide by and fully comply with the terms of this Agreement on the same basis as applicable to you; (b) such use is only in connection with your internal business purpose; (c) such use does not represent or constitute an increase in the scope of the License provided hereunder; and (d) You remain fully liable for any and all acts or omissions by such third parties related to this Agreement.

3. LICENSE REGISTRATION

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.

4. INTELLECTUAL PROPERTY RIGHTS

The Software is protected under intellectual property laws in the United States and other countries protect the Software.  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” currently include, without limitations, Sophos, zVelo, Microsoft and Digium).  Except for the limited rights granted to You under the License described herein all rights in the Software remain with Kerio and its Third party Technology Suppliers. You further agree not to pursue or participate in a patent infringement cause of action against Kerio or its Third Party Technology Suppliers.

5. COMPLIANCE MONITORING

You acknowledge that the Software includes features to enable Kerio or its agents to remotely monitor Software usage in violation of the 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 Agreement, 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 a valid court order and/or as required by law.

6. THIRD PARTY ADD-ONS AND SOURCE CODE.

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 provisions that apply to Add-Ons and shall be considered Exhibit A to this Agreement, incorporated into this Agreement by 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 Code contained in the Software and/or are otherwise downloaded by You is considered 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 of 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.

7. NO REFUNDS

All license Fees are non-refundable. Accordingly, please evaluate and test the Software carefully during the Trial Period.

8. SUPPORT AND SOFTWARE MAINTENANCE

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 license, may be obtained using the "update checker" feature provided or via download from the Kerio website. Software maintenance is available throughout the term of Your License for the Software. Free updates may be obtained in the same manner for Trial Licenses, Free Licenses or NFRs.  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, otherwise You hereby agree that Kerio may use any data and information it collects strictly for its internal purposes.  Kerio will protect and keep confidential such information, not use such information for reasons other those discussed in this Agreement, and not sell, distribute or pass on such information to any third party.

9. TERMINATION

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, including failure to make full payment of applicable license Fees; or (ii) at the end of any applicable Trial Period where applicable 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. Notwithstanding termination of this Agreement for any reason, any provision herein that by its intended effect reasonably should survive termination shall remain effective post termination as needed to affect such provision.  Upon the termination of this Agreement for any reason, the License granted hereunder shall terminate and You agree to cease all use of the Software and to destroy all copies of the Software and related information.

10. DISCLAIMER OF WARRANTIES

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, 11 and 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, enjoyment, or non-infringement.  In entering this Agreement You expressly acknowledge and agree that use of the Software is at your sole risk and that You understand that no guarantee or representation is made by Kerio with regard to the satisfactory quality, performance, accuracy, fitness for a particular purpose, or enjoyment with regard to Your use of the Software.

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 does not result in the repair of such defect.  In entering this Agreement You understand that this disclaimer of warranty constitutes an essential part of this Agreement.

11. LIMITATION OF LIABILITY

Under no circumstances and under no legal theory (whether in contract, tort, negligence or otherwise) will Kerio, or its affiliates, officers, directors, employees, agents, suppliers or licensors be liable to You or any third party for any indirect, incidental, special, exemplary, consequential, punitive or similar damages, including lost profits, lost sales or business, lost data, business interruption, or any other loss incurred by You in connection with the License granted herein or Your permitted use of the Software, regardless of whether You have been advised of the possibility of or could have foreseen such damages.

Notwithstanding anything to the contrary in this Agreement, Kerio’s aggregate liability to You or any third party arising under this Agreement or otherwise in connection with any License to and/or use of the Software, shall not exceed the amounts paid by You for the Software.  Furthermore, in no event with respect to the Software or any subject matter of this Agreement shall any Third Party Technology Supplier be held liable for any damages whatsoever.  If a Third Party Technology Supplier is found to be liable, Kerio shall fully indemnify such Third Party Technology Supplier.

The above warranty disclaimers and limitations on liability shall not apply in jurisdictions where such disclaimers and/or limitations are not permitted, but only to the extent such disclaimers are prohibited. 

12. INDEMNITY FOR SOFTWARE USAGE

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.

13. GOVERNMENT USE

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 a 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.

14. HIGH RISK USE

You acknowledge that the Software is not specifically designed (i) for use in direct connection with any high risk or strict liability activity (such as 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); or (ii) to comply with laws that require certain data protection measures to be applied to the processing of certain protected data, such as personally identifiable information.  Therefore, You expressly agree that any use that constitutes such high risk use and/or involves such protected data shall be done at Your own risk and with full knowledge and understanding of the design limitations noted in this Section 14.

15. EXPORT CONTROLS

The Software licensed to You herein may be subject to U.S. export control and economic sanctions laws.  You agree to comply with all such laws and regulations as they relate to access to and use of the Software and such other components by You, Your agents and/or end users. You shall not access or use the Software if You are located in any jurisdiction in which the provision of the Software is prohibited under U.S. or other applicable laws or regulations (a “Prohibited Jurisdiction”) and You shall not provide access to the Software to any government, entity or individual located in any Prohibited Jurisdiction.  You represent, warrant and covenant that (i) You are not named on any U.S. government list of persons or entities prohibited from receiving U.S. exports, or transacting with any U.S. person, (ii) You are not a national of, or a company registered in, any Prohibited Jurisdiction, (iii) You shall not permit Your agents or end users to access or use the Software in violation of any U.S. or other applicable export embargoes, prohibitions or restrictions, and (iv) You shall comply with all applicable laws regarding the transmission of technical data exported from the U.S. and the country in which You, Your agents and end users are located.16. MISCELLANEOUS

16. MISCELLANEOUS

(i) This Agreement, including other agreements referred to in the Third Party Add-Ons and Source Codes sections herein, 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.
(ii) Kerio may amend this Agreement from time to time as it deems necessary in the course of business, and in entering this Agreement and using the Software You expressly agree to such amendments.  Third Party Technology Suppliers are third party beneficiaries of this Agreement.
(iii) 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.  
(iv) 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.
(v) This Agreement shall be governed by the laws of the State of California, United States without regard to conflict of laws principles.  You hereby expressly agree to submit to the exclusive personal jurisdiction of the federal and state courts of the State of California, Santa Clara County, for the purpose of resolving any dispute relating to this Agreement, access to or use of the Software by You, Your agents or end users.
(vi) 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.

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