END USER LICENSE AGREEMENT
NOTICE TO USER:
THIS IS A CONTRACT. AT THE END, YOU WILL BE ASKED TO ACCEPT THIS AGREEMENT AND CONTINUE TO INSTALL OR, IF YOU DO NOT WISH TO ACCEPT THIS AGREEMENT, TO DECLINE THIS AGREEMENT, IN WHICH CASE YOU WILL NOT BE ABLE TO USE, INSTALL OR OPERATE THE PRODUCT, AS DEFINED BELOW. BY INSTALLING THIS SOFTWARE YOU ACCEPT ALL THE TERMS AND CONDITIONS OF THIS AGREEMENT.
This Electronic End User License Agreement (the “Agreement”) is a legal agreement between you (either an individual or an entity), the licensee, and UserGate Limited (OOO UserGate) (collectively, the “Company”), regarding the software and service titled UserGate (“UserGate”) that you about to download, downloaded, purchased with applicable hardware appliances, or otherwise obtained through other resources or media such as DVD, flash drives, or through a network in object code form or other related services, including without limitation a) all of the contents of the files, disk(s), DVDs or other media, including without limitation certain third-party software, if any, licensed to the Company for purposes of sublicensing to sublicensees and end users(the “Components”), with which this Agreement is provided (collectively, the “Software”), b) all successor upgrades, revisions, patches, enhancements, fixes modifications, copies, additions or maintenance releases of the Software, if any, licensed to you by the Company (collectively, the “Updates”), and c) related user documentation and explanatory materials or files provided in written, “online” or electronic form (the “Documentation” and together with the Software, Components and Updates, the “Product”). You are subject to the terms and conditions of this End User License Agreement whether you access or obtain the Product directly from the Company, or through any other source. For purposes hereof, “you” means the individual person installing, using or Operating the Product on his or her own behalf; or, if the Product is being downloaded or installed on behalf of an organization, such as an employer, “you” means the organization for which the Product is downloaded or installed and it is represented hereby that such organization has authorized the person accepting this agreement to do so on its behalf. For purposes hereof the term “organization,” without limitation, includes any partnership, limited liability company, corporation, association, joint stock company, trust, joint venture, labor organization, unincorporated organization, or governmental authority.
By accessing, downloading, storing, loading, installing, executing, displaying, copying the Product into the memory of a computer or otherwise benefiting from using the functionality of the Product in accordance with the Documentation (“Operating”), you agree to be bound by the terms of this Agreement. If you do not agree to the terms and conditions of this Agreement, the Company is unwilling to license the Product to you. In such event, you may not Operate or use the Product in any way.
BEFORE YOU PUT A CHECKMARK by the statement “I agree with the above terms and conditions” and CLICK ON THE “NEXT” BUTTON, CAREFULLY READ THE TERMS AND CONDITIONS OF THIS AGREEMENT. YOUR CLICK OF THE “I AGREE” CHECKBOX IS A SYMBOL OF YOUR SIGNATURE AND BY CLICKING ON THE “I AGREE” BUTTON, YOU ARE CONSENTING TO BE BOUND BY AND ARE BECOMING A PARTY TO THIS AGREEMENT AND AGREE THAT THIS AGREEMENT IS ENFORCEABLE LIKE ANY WRITTEN NEGOTIATED AGREEMENT SIGNED BY YOU. IF YOU DO NOT AGREE TO ALL OF THE TERMS OF THIS AGREEMENT, CLICK THE “EXIT” BUTTON AND THE SOFTWARE WILL NOT BE INSTALLED ON YOUR COMPUTER. This Product will not install on your computer unless or until you accept the terms of this Agreement. You may also receive a copy of this Agreement by contacting the Company at: www.usergate.com/contact
For the purposes of this Agreement, “Company Site” shall mean the Internet website maintained by or on behalf of Company from which the Software is available for download pursuant to a license from Company. The Company Site is currently located at www.usergate.com
1. Proprietary Rights and Non-Disclosure.
1.1. Ownership Rights. You agree that the Product and the authorship, systems, ideas, methods of operation, documentation and other information contained in the Product, are proprietary intellectual properties and/or the valuable trade secrets of the Company or its suppliers and/or licensors and are protected by civil and criminal law, and by the law of copyright, trade secret, trademark and patent of Russian Federation, other countries and international treaties. You may use trademarks only insofar as to identify printed output produced by the Product in accordance with accepted trademark practice, including identification of trademark owner’s name. Such use of any trademark does not give you any rights of ownership in that trademark. The Company and/or its suppliers own and retain all right, title, and interest in and to the Product, including without limitations any error corrections, enhancements, Updates or other modifications to the Software, whether made by the Company or any third party, and all copyrights, patents, trade secret rights, trademarks, and other intellectual property rights therein. Your possession, installation or use of the Product does not transfer to you any title to the intellectual property in the Product, and you will not acquire any rights to the Product except as expressly set forth in this Agreement. All copies of the Product made hereunder must contain the same proprietary notices that appear on and in the Product. Except as stated herein, this Agreement does not grant you any intellectual property rights in the Product and you acknowledge that the License, as further defined herein, granted under this Agreement only provides you with a right of limited use under the terms and conditions of this Agreement.
1.2. Source Code. You acknowledge that the source code for the Product is proprietary to the Company or its suppliers and/or licensors and constitutes trade secrets of the Company or its suppliers and/or licensors. You agree not to modify, adapt, translate, reverse engineer, decompile, disassemble or otherwise attempt to discover the source code of the Product in any way. For purposes hereof “Source Code” shall mean the human-readable form of the computer programming code and related system documentation including all comments and any procedural code such as job control language.
1.3. Confidential Information. You agree that, unless otherwise specifically provided herein the Product, including the specific design and structure of individual programs and the Product, constitute confidential proprietary information of the Company or its suppliers and/or licensors. You agree not to transfer, copy, disclose, provide or otherwise make available such confidential information in any form to any third party. For purposes hereof, “License Key” shall mean a file or a unique sequence of digit and/or symbols provided to you by the Company confirming the purchase of the license from the Company, which may carry the information about the License, i.e. its type, the user name and the number of licenses purchased, and enabling the full functionality of the Product in accordance with the License granted under this Agreement. You agree to implement reasonable security measures to protect such confidential information provided however, that you may make and distribute unlimited copies of the Software in object code only, including copies for commercial distribution, as long as each copy that you make and distribute contains this Agreement subject to end user’s acceptance before the first use, the Remote Administrator Software installer, and the same copyright and other proprietary notices pertaining to this Software that appear in the Software. If you download the Software from the Internet or similar on-line source, you must include the copyright notices resident on the Software with any on-line distribution and on any media you distribute that includes the Software.
1.4. No Modification. You agree not to modify or alter the Product in any way. You may not remove or alter any copyright notices or other proprietary notices on any copies of the Product.
1.5. Telemetry Data. For purposes hereof, “Telemetry Data” means quantitative and qualitative data, error logs and tables about your devices, hosts, services, and related pages accessed by users. Subject to the Company Privacy Statement (https://www.usergate.com/privacy-policy), you hereby consent and grant to the Company a license to collect and use Telemetry Data generated by your use of the Software. The Company may share Telemetry Data with third parties to assist the Company to improve your user experience, the Software and other Company products and services. The Telemetry Data collected by the Company is intended to be non Personal Information. You may terminate the Company’s right to collect Telemetry Data at any time by using appropriate command as advised by the Software documentation.
2. Grant of License.
2.1. License. The Company grants you one non-exclusive and non-transferable license to store, load, install, execute, and display (to “Use”) the Software on a one computer, server or other electronic, network and virtual devices for which the software was designed (each a “Licensee Server”) pursuant to the terms and conditions of this Agreement (“License”). “Using” the Software includes accessing the Company Internet Security Service (“Service”) which means the hosted web filtering, web security and other services offered by the Company or its suppliers and/or licensors, to include all the components thereof, such as the Anti Malware Database, Anti Spam Database, Database of Attack Signatures, URL Database, Content Filtering Morphology Dictionaries, Real Time Updates, Authentication Services, Logging Services, Local Cache implementations, and other functions and services, and access to which is provided to Licensee, You hereby agree and accept such License as follows:
a). Trial Version. If you have received, downloaded and/or installed a trial version of the Product and are hereby granted an evaluation license for the Software and you may Use the Product only for evaluation purposes and only during the single applicable evaluation period of thirty (30) days, unless otherwise indicated, from the date of the initial installation. Any Use of the Product for other purposes or beyond the applicable evaluation period is strictly prohibited, provided however that, subject to the restrictions contained herein, you may copy and distribute a trial version of the Software without any modifications whatsoever to any third party subject to this Agreement.
2.2. Multiple Environment Product; Multiple Language Product; Dual Media Product; Multiple Copies; Bundles. If you use different versions of the Product or different language editions of the Product, if you receive the Product on multiple media, if you otherwise receive multiple copies of the Product, or if you received the Product bundled with other software, the total permitted number of your Licensee Servers on which all versions of the Product are installed shall correspond to the number of licenses you have obtained from the Company. You may not rent, lease, sublicense, lend or transfer any versions or copies of the Product regardless of whether you use the Product or not.
2.3. Subscription. Upon your (i) payment for the License of the Product, pursuant to the applicable price list, purchase order or product packaging for the Product, and (ii) registration of the Product, if applicable, Company will provide you with Subscription services for the Software (the “Subscription Services”) for a period of one (1) year from the date when you download or install the Product, provided however, that you may extend the Subscription Services, as applicable and as available, by signing up for applicable annual subscription and paying an appropriate fee as per applicable terms and conditions set forth on the Licensor’s web site at www.usergate.com.
2.4. Updates. During the Term of your Subscription, you may download Updates to the Product when and as the Company publishes them on Company Website or through other online services. Notwithstanding any provision to the contrary herein, nothing in this Agreement shall be construed as to grant you any rights or licenses with regard to the New Releases of the Product or to entitle you to any New Release. This Agreement does not obligate the Company to provide any Updates. Notwithstanding the foregoing, any Updates that you may receive become part of the Product and the terms of this Agreement apply to them (unless this Agreement is superseded by a further Agreement accompanying such Update or modified version of to the Product).
2.5. Term and Termination. The term of this Agreement (“Term”) shall begin when you download or install the Product (whichever is earlier) and shall continue, unless otherwise terminated pursuant hereto, for the term of Subscription. The Company may terminate this Agreement by offering you a superseding Agreement for the Product or any replacement or modified version of or upgrade or New Release of the Product and conditioning your continued use of the Product or such replacement, modified or upgraded version or New Release on your acceptance of such superseding Agreement. This Agreement may be also terminated by the Company immediately and without notice if you fail to comply with any of your obligation or conditions of this Agreement. Without prejudice to any other rights, this Agreement will terminate automatically if you fail to comply with any of the limitations or other requirements described herein. Upon any termination or expiration of this Agreement, you must immediately cease use of the Product and destroy all copies of the Product.
2.6. No Rights Upon Termination. Upon termination of this Agreement you will no longer be authorized to Operate or use the Product in any way
2.7. Material Terms and Conditions. You specifically agree that each of the terms and conditions of this Section 2 are material and that failure of you to comply with these terms and conditions shall constitute sufficient cause for Company to immediately terminate this Agreement and the License granted under this Agreement. The presence of this Section 2.6 shall not be relevant in determining the materiality of any other provision or breach of this Agreement by either party hereto.
2.8. During the term of the Agreement (the "Term"), and subject to Licensee’s payment of the fees as provided hereunder, the Company agrees to provide the Service to Licensee in accordance with the terms of Licensee Subscription. In connection with Licensee Subscription, the Company will use reasonable commercial efforts to:
a). Provide access to the Company Service on a commercially reasonable basis, twenty-four hours per day, seven days per week, 365 days per year;
b). maintain network security as reasonably necessary to monitor and protect against unauthorized third-party access to Company Service;
c). maintain, on a commercially reasonable basis, sufficient access or bandwidth capacity to the Company Service during the Term as necessary to meet bandwidth requirements to enable the Company Service to initiate service and, at least once daily, be updated by Subscription Customers;
3.1. No Transfers. Under no circumstances you shall sell, loan, rent, lease, loan, license, sublicense, publish, display, distribute, or otherwise transfer to a third party the Product, any copy or use thereof, in whole or in part, without Company's prior written consent, provided that if such non-waivable right is specifically granted to you under applicable law in your jurisdiction you may transfer your rights under this Agreement permanently to another person or entity, provided that a) you also transfer this Agreement, the Product, all accompanying printed materials, and all other software or hardware bundled or pre-installed with the Product, including all copies, Updates and prior versions, to such person or entity; b) retain no copies, including backups and copies stored on a Licensee Server; and c) the receiving party accepts the terms and conditions of this Agreement and any other terms and conditions upon which you legally purchased a license to the Product. Notwithstanding the foregoing, you may not transfer education, pre-release, or “not for resale” copies of the Product. In no case you may permit third parties to benefit from the use or functionality of the Product via a timesharing, service bureau or other arrangement, except to the extent such use is specified in the application price list, purchase order or product packaging for the Product.
3.2. Prohibitions. Except as otherwise specifically provided for in this Agreement, you may not use, copy, emulate, clone, rent, lease, sell, modify, decompile, disassemble, otherwise reverse engineer, or otherwise reduce any party of the Product to human readable form or transfer the licensed Product, or any subset of the licensed Product, nor permit any third party to do so, except to the extent the foregoing restriction is expressly prohibited by applicable law. Notwithstanding the foregoing sentence, decompiling the Software is permitted to the extent the laws of your jurisdiction give you the non-waivable right to do so to obtain information necessary to render the Software interoperable with other software; provided, however, that you must first request such information from the Company and the Company may, in its discretion, either provide such information to you (subject to confidentiality terms) or impose reasonable conditions, including a reasonable fee, on such use of the Software to ensure that the Company's and its suppliers and/or licensors proprietary rights in the Software are protected. You may not modify, or create derivative works based upon the Product in whole or in part. Any such unauthorized use shall result in immediate and automatic termination of this Agreement and the License granted hereunder and may result in criminal and/or civil prosecution. Neither Product’s binary code nor source may be used or reverse engineered to re-create the program algorithm, which is proprietary, without written permission of the Company. All rights not expressly granted here are reserved by Company and/or its suppliers and licensors, as applicable.
3.3. License Key File. You may not give give away, sell or otherwise transfer your registration License Key File or any copy thereof to a third party. Product’s Key Files may not be distributed, except as provided herein, outside of the area of legal control of the person or persons who purchased the original License, without written permission of the Company. Doing so will result in an infringement of copyright. The Company retains the right of claims for compensation in respect of damage which occurred by your giving away the License Key File or registration code contained therein. This claim shall also extend to all costs which the Company or its licensors incur in defending themselves.
3.4. Proprietary Notices and Copies. You may not remove any proprietary notices or labels on the Product. You may not copy the Product except as expressly permitted in Section 2 above.
3.5. No Transfer of Rights. Except as otherwise specifically provided herein, you may not transfer or assign any of the rights granted to you under this Agreement or any of your obligations pursuant hereto. If you sell the Licensee Server on which the Product is installed, you will ensure that all copies of the Product have been previously deleted.
3.6. Additional Protection Measures. Solely for the purpose of preventing unlicensed use of the Product, the Software may install on your computer technological measures that are designed to prevent unlicensed use, and the Company may use this technology to confirm that you have a licensed copy of the Product. The update of these technological measures may occur through the installation of the Updates. The Updates will not install or may fail to Operate if installed on unlicensed copies of the Product. If you are not using a licensed copy of the Product, you are not allowed to install the Updates. The Company will not collect any personally identifiable information from your computer during this process.
4. NO WARRANTY AND DISCLAIMER.
4.1. Limited Warranty. You acknowledge, accept and agree that no software is error-free and you are advised to back up the Licensee Server with the frequency and reliability suitable for you.
4.2. NO IMPLIED OR OTHER WARRANTIES. THE SOFTWARE IS PROVIDED "AS IS" AND THE RIGHTHOLDER MAKES NO REPRESENTATION AND GIVES NO WARRANTY AS TO ITS USE OR PERFORMANCE. EXCEPT FOR ANY WARRANTY, CONDITION, REPRESENTATION OR TERM THE EXTENT TO WHICH CANNOT BE EXCLUDED OR LIMITED BY APPLICABLE LAW. THE RIGHTHOLDER AND ITS PARTNERS MAKE NO WARRANTY, CONDITION, REPRESENTATION, OR TERM (EXPRESSED OR IMPLIED, WHETHER BY STATUTE, COMMON LAW, CUSTOM, USAGE OR OTHERWISE) AS TO ANY MATTER INCLUDING, WITHOUT LIMITATION, NON-INFRINGEMENT OF THIRD-PARTY RIGHTS, MERCHANTABILITY, SATISFACTORY QUALITY, INTEGRATION, OR APPLICABILITY FOR A PARTICULAR PURPOSE. YOU ASSUME ALL FAULTS, AND THE ENTIRE RISK AS TO PERFORMANCE AND RESPONSIBILITY FOR SELECTING THE SOFTWARE TO ACHIEVE YOUR INTENDED RESULTS, AND FOR THE INSTALLATION OF, USE OF, AND RESULTS OBTAINED FROM THE SOFTWARE. WITHOUT LIMITING THE FOREGOING PROVISIONS, THE RIGHTHOLDER MAKES NO REPRESENTATION AND GIVES NO WARRANTY THAT THE SOFTWARE WILL BE ERROR-FREE OR FREE FROM INTERRUPTIONS OR OTHER FAILURES OR THAT THE SOFTWARE WILL MEET ANY OR ALL OF YOUR REQUIREMENTS WHETHER OR NOT DISCLOSED TO THE RIGHTHOLDER.
4.3. LIMITED LIABILITY; NO LIABILITY FOR CONSEQUENTIAL DAMAGES. YOU ASSUME THE ENTIRE COST OF ANY DAMAGE RESULTING FROM YOUR USE OF THE PRODUCT AND THE INFORMATION CONTAINED IN OR COMPILED BY THE PRODUCT, AND THE INTERACTION (OR FAILURE TO INTERACT PROPERLY) WITH ANY OTHER HARDWARE OR SOFTWARE WHETHER PROVIDED BY THE COMPANY OR A THIRD PARTY. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT WILL THE COMPANY OR ITS SUPPLIERS OR LICENSORS BE LIABLE FOR ANY DAMAGES WHATSOEVER (INCLUDING, WITHOUT LIMITATION, DAMAGES FOR LOSS OF BUSINESS PROFITS, BUSINESS INTERRUPTION, LOSS OF BUSINESS INFORMATION, LOSS OF GOODWILL, WORK STOPPAGE, HARDWARE OR SOFTWARE DISRUPTION IMPAIRMENT OR FAILURE, REPAIR COSTS, TIME VALUE OR OTHER PECUNIARY LOSS) ARISING OUT OF THE USE OR INABILITY TO USE THE PRODUCT, OR THE INCOMPATIBILITY OF THE PRODUCT WITH ANY HARDWARE SOFTWARE OR USAGE, EVEN IF SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. IN NO EVENT WILL COMPANY’S TOTAL LIABILITY TO YOU FOR ALL DAMAGES IN ANY ONE OR MORE CAUSE OF ACTION, WHETHER IN CONTRACT, TORT OR OTHERWISE EXCEED THE AMOUNT PAID BY YOU FOR THE PRODUCT. THIS LIMITATION OF LIABILITY SHALL NOT APPLY TO LIABILITY FOR DEATH OR PERSONAL INJURY TO THE EXTENT THAT APPLICABLE LAW PROHIBITS SUCH LIMITATION. FURTHERMORE, BECAUSE SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF LIABILITY FOR CONSEQUENTIAL OR INCIDENTAL DAMAGES, THE ABOVE LIMITATION MAY NOT APPLY TO YOU.
6.1. Governing Law; Jurisdiction and Venue. This Agreement shall be governed by and construed and enforced in accordance with the laws of Russian Federation without reference to conflicts of law rules and principles. This Agreement shall not be governed by the United Nations Convention on Contracts for the International Sale of Goods, the application of which is expressly disclaimed and excluded. You agree that this Agreement is to be performed in Russian Federation and that any action, dispute, controversy, or claim that may be instituted based on this Agreement, or arising out of or related to this Agreement or any alleged breach thereof, shall be prosecuted exclusively in the courts in Russian Federation, and you, to the extent permitted by applicable law, hereby waive the right to change venue to any other state, county, district or jurisdiction; provided, however, that the Company as claimant shall be entitled to initiate proceedings in any court of competent jurisdiction.
7.2. Period for Bringing Actions. No action, regardless of form, arising out of the transactions under this Agreement, may be brought by either party hereto more than one (1) year after the cause of action has occurred, or was discovered to have occurred, except that an action for infringement of intellectual property rights may be brought within the maximum applicable statutory period.
7.3. Entire Agreement; Severability; No Waiver. This Agreement is the entire agreement between you and Company and supersedes any other prior agreements, proposals, communications or advertising, oral or written, with respect to the Product or to subject matter of this Agreement provided that the Company and you may limit, modify or changes the applicability of the terms of this Agreement by a prior, contemporaneous or subsequent written agreement by referencing this Section 7.3 of the Agreement and expressly providing for such limitation, modification or changes. You acknowledge that you have read this Agreement, understand it and agree to be bound by its terms. If any provision of this Agreement is found by a court of competent jurisdiction to be invalid, void, or unenforceable for any reason, in whole or in part, such provision will be more narrowly construed so that it becomes legal and enforceable, and the entire Agreement will not fail on account thereof and the balance of the Agreement will continue in full force and effect to the fullest extent permitted by law. No waiver of any breach of any provisions of this Agreement will constitute a waiver of any prior, concurrent or subsequent breach and no waiver will be effective unless made in writing.
7.4. Contact Information. Should you have any questions concerning this Agreement, or if you desire to contact the Company for any reason, please contact our Customer Department at www.usergate.com/about-usergate.
Copyright © 2018 UserGate Limited (OOO UserGate) and its licensors. All rights reserved.
The Product, including the Software and any accompanying Documentation, are copyrighted and protected by copyright laws and international copyright treaties, as well as other intellectual property laws and treaties.