PROPRIETARY END USER LICENSE AGREEMENT
This End User License Agreement (this "Agreement") is entered into between Untangle, Inc. ("Untangle") and the person or entity ("you" or "Licensee") that purchases, receives, installs, or subscribes to the Software Product(s) (as defined below) accompanying this Agreement. If you do not agree to the terms and conditions of this Agreement, Untangle is unwilling to license the Software Product to you. Untangle reserves the right to refuse to sell subscriptions, or allow usage of, any Software Products to any customer at its sole discretion.
1. Definitions. The following capitalized terms have the meanings ascribed to them below.
1.1 "Beta Software" means any Subscription Software Product that is designated by Untangle as being in "beta" or pre-release status.
1.2 "Documentation" means the documentation for a particular Subscription Software Product.
1.3 “Effective Date” means the date on which you activate your Subscription and thereby make this Agreement binding between you and Untangle.
1.4 "Subscription Software Product(s)" means a specific software-as-a-service software module that Licensee may access via a designated Untangle portal and pursuant to a Subscription (as defined below).
1.5 “Subscription” means the fee you pay to access a Subscription Software Product. The amount of your Subscription fee will depend on the Subscription Software Product to which you have subscribed and on the type of Subscription you desire.
1.6 "Non-Subscription Software Product(s)" means the software modules that Licensee may access via a designated Untangle portal that do not require subscriptions. These software modules are made available under an open-source license agreement (as defined in Section 3.5) and do not require paying a subscription fee to Untangle.
1.7 "Update" means any of the following software that Untangle may release from time to time in its sole discretion: (a) any virus signature update, new threat profiles, or any other similar updates to the data libraries contained within certain Subscription Software Products; and (b) any patch, bug fix, error-correction, or other new release of the Subscription Software Products, excluding any major new releases for which Untangle charges an additional subscription fee.
1.8 “Website” means the Untangle website located at www.untangle.com.
2. License Grant for Subscription Software Products and Non-Subscription Software Products
2.1 License Grant for Subscription Software Products. Subject to the terms and conditions of this Agreement and as of the Effective Date, Untangle grants to Licensee a nonexclusive, non- transferable license to access, use, perform, and display the Subscription Software Product(s) identified in your Subscription and in compliance with the terms of your Subscription.
2.2. License Grant for Non-Subscription Software Products. Untangle licenses the Untangle components of the Non-Subscription Software Product(s) under version 2 of the GNU General Public License (GPL).
Certain third-party software components distributed with the Non-Subscription Software Product(s) are licensed under other free or open source license terms.. Many of the Untangle components are also licensed with the GNU Classpath exception, which allows linking of independent non-GPL modules with the Untangle software. The GNU Classpath exception applies to source files in which Untangle has placed a notice stating the exception. See the source code files for more details.
3. License Restrictions and Intellectual Property
3.1 General Restrictions. Notwithstanding anything to the contrary in this Agreement, Licensee shall not (a) copy any part of the Software Products or the Documentation except to the extent expressly permitted under Section 2 (License Grant to Subscription Software Products) above; (b) reverse engineer, reverse compile, disassemble, or attempt to derive the source code of any portion of the Subscription Software Products, or allow any person to do or attempt to do any of the foregoing; (c) attempt to circumvent any license key, disabling code, or license management mechanism in the Subscription Software Products; (d) distribute, rent, lease, assign, or otherwise transfer any interest in the Software Products or Documentation; (e) disclose benchmarks or other comparisons of the Subscription Software Products without Untangle's prior written consent; (f) modify, adapt, enhance, or create derivative works of the Subscription Software Products or Documentation; (g) use the Subscription Software Products for service-bureau use, or otherwise for the benefit of third parties; or (h) otherwise exceed the scope of the express licenses granted herein. Licensee may not remove from the Software Products, or alter, any of the trademarks, trade names, logos, patent or copyright notices or markings, or add any other notices or markings to the Software Products. LICENSEE UNDERSTANDS, ACKNOWLEDGES, AND AGREES THAT IF UNTANGLE BECOMES AWARE OF ANY BREACH, ATTEMPTED BREACH, OR SUSPECTED BREACH BY YOU OF ANY OF THE FOREGOING CONDITIONS, UNTANGLE SHALL HAVE, AMONG OTHER REMEDIES AVAILABLE UNDER LAW AND AT EQUITY, SOLE DISCRETION TO SUSPEND OR TERMINATE YOUR ACCESS TO THE SUBSCRIPTION SOFTWARE PRODUCTS AND TO SUSPEND OR CANCEL YOUR SUBSCRIPTION AT ANY TIME AND WITHOUT ADVANCE NOTICE TO YOU.
3.2 Beta Software. From time to time, Untangle may make Beta Software available to Licensee as a Subscription Software Product for access and use in accordance with the licenses granted above in Section 2 (License Grant for Subscription Software Products), subject to the terms and conditions in this section. Untangle may terminate any license to Beta Software immediately without prior notice and may disable Licensee's access to the Beta Software. To the extent that Licensee provides any comments, feedback, or other input with respect to the Beta Software, Licensee grants to Untangle a worldwide, perpetual, irrevocable, transferable, royalty-free right to use and exploit such feedback for its business purposes, including for purposes of improving Untangle's current and future products. Untangle reserves the right not to release a commercial version of the Beta Software, or, if it chooses to proceed with a commercial release, to incorporate features, specifications, capabilities, functions, license terms, pricing, or other characteristics that differ from the Beta Software. Licensee agrees and acknowledges that Beta Software is not for production use and may contain errors adversely affecting its proper operation. Unless and until Untangle notifies Licensee to the contrary, Licensee agrees not to share or disclose to any third party any non-public information regarding the Beta Software or its features, bugs, performance, or operation.
3.3 Licensing Bands and Throughput Tiers. Untangle Subscription Software Products (and any accompanying services which are available, or may be made available) are licensed according to either licensing bands or total data throughput.
3.3.1 Licensing Bands refer to the number of unique devices on any given day. More explicitly, the licensing band refers to the number of unique IP addresses on any non-WAN (local) interface including VPN users seen from midnight to midnight the next day. If the number of unique IP addresses is below the upper bound of the Subscription band for that server, that license Subscription is fully compliant.
3.3.2 Licensing Throughput Tiers refer to the maximum amount of data that can pass through an Untangle Licensed Subscription Software Product at any given time. Subscription Software Products that are licensed by Throughout Tiers do not have any limits on how many unique devices are on the non-WAN (local) interfaces.
3.4 NFR Subscriptions. Untangle licenses certain Subscriptions to its authorized distribution partners under a Not For Resale (“NFR”) arrangement. As part of this arrangement, Untangle grants partner use of Untangle’s Subscription Software Products provided that (a) the Subscription Software Product is used exclusively by the partner for its internal operations and is not being resold in any form, or (b) the Software Software Products are being used by the partner for trials at its prospects and/or customer locations, so long as the trial does not extend beyond 30 days in any one location. Any usage outside of Sections 3.4(a)(b) must comply with the terms of Section 3.3 (Licensing Bands and Throughput Tiers) of this Agreement.
3.5 Open Source Software. Some software code incorporated into or distributed with some of Untangle’s downloadable Non-Subscription Software Products may be licensed by third parties under various "open-source" or "public-source" software licenses (such as the GNU General Public License, the GNU Lesser General Public License, the Apache License, the Berkeley Software Distribution License, and the Sun Public License) (collectively, the "Open Source Software"). Notwithstanding anything to the contrary in this Agreement, the Open Source Software is not licensed under Section 2 (License Grant for Subscription Software Products), and instead is separately licensed pursuant to the terms and conditions of their respective open-source software licenses, copies of which are either attached to this Agreement, reproduced in the appropriate readme file, or available on the Website. Licensee agrees to comply with the terms and conditions of such open-source software license agreements, if applicable to Licensee’s Subscription.
3.6 Additional Terms. The use of particular Subscription Software Products may be subject to additional or supplementary terms and conditions, which Licensee will be given the opportunity to review and accept prior to the activation of your Subscription. If Licensee elects to proceed with activating a Subscription to a Subscription Software Product to which supplementary terms and conditions apply, such additional or supplementary terms and conditions shall be incorporated by reference into this Agreement.
3.7 Ownership. The Subscription Software Products are licensed, not sold, and, as between Licensee and Untangle, Untangle shall retain all right, title, and ownership interests in and to the Subscription Software Products, including all intellectual property rights contained therein. There are no implied licenses under this Agreement, and all rights not expressed granted are reserved.
4. Updates. Subject to Licensee's payment of the applicable monthly Subscription fee in accordance with Section 5.2 (Subscription Fees), Untangle will make available all Updates to the Subscription Software Products to Licensee within a reasonable time after the general public release of such Updates. Licensee will be responsible for providing Internet connectivity to allow Licensee to access an Update, and Untangle shall not be responsible for any access errors or failures, which occur due to Licensee’s internet connectivity. For the avoidance of doubt, Untangle makes no representations as to the frequency of Updates, nor does it guarantee that any particular Update will be implemented or that any particular errors will be corrected. In addition, this Agreement creates no obligation for Untangle to provide any telephone, email, or other technical support for the Subscription Software Products; rather, the parties may enter into a separate support agreement governing the provision of such support by Untangle.
5. Fees and Payments
5.1 Subscription Fees. Upon the execution of this Agreement and before accessing any Subscription Software Product, Licensee will pay the applicable Subscription fees required for any Subscription Software Product. Additional information may be available on the Subscriptions page of the Website.
5.2 Payment Authorization. Licensee agrees to make the foregoing payments (including any applicable taxes) via a valid credit card, Paypal or other authorized payment method, and authorizes Untangle to automatically charge such amounts against the credit card, Paypal or other applicable payment information furnished by Licensee to Untangle via Untangle’s billing system. Licensee agrees to provide Untangle with a valid credit card and accurate, complete, and updated information required by the payment information interface on the Website. Licensee authorizes Untangle to automatically charge the applicable fees at the beginning of each month (or at such other billing interval as Licensee may select using the account setup function on the Subscriptions page of the Website), until Licensee elects to terminate the Subscription to one or more Subscription Software Products in accordance with the terms of each individual Subscription. All payments are non-refundable unless otherwise allowed by Untangle’s current published warranty and refund policies. Untangle may suspend the license to any Subscription Software Products and its provision of related Updates, if any, if Licensee fails to provide a valid means of payment for any of the amounts due hereunder.
7. Right to Disable. Licensee understands, acknowledges, and agrees that Untangle shall have the right, at any time and without prior notice to licensee, to disable the operation of any beta software, any subscription software products for which Licensee has not paid fees due to Untangle under this agreement. Licensee hereby consents to Untangle’s use of any disable mechanism pursuant to this agreement, and Untangle shall not be liable for any costs or damages incurred by Licensee or any third party as a result of any subscription software products being disabled or accessed by Untangle.
8. DISCLAIMERS OF WARRANTY. LICENSEE AGREES AND ACKNOWLEDGES THAT COMPUTER SECURITY THREATS ARE EVOLVING AND THAT NO TOOLS CAN GUARANTEE THAT SECURITY BREACHES WILL NOT OCCUR. UNTANGLE PROVIDES NO ASSURANCE THAT THE SUBSCRIPTION SOFTWARE PRODUCTS WILL PROTECT AGAINST ALL COMPUTER VIRUS INFECTIONS, UNAUTHORIZED INTRUSIONS, IDENTITY THEFT, PRIVACY VIOLATIONS, SPYWARE, SPAM, OR OTHER FORMS OF HARMFUL ACTIVITY. ANY CHANGE IN THE OPERATING SYSTEM OR OTHER SOFTWARE OR CONFIGURATION OF LICENSEE'S HARDWARE MAY AFFECT THE PERFORMANCE AND OPERATION OF THE SOFTWARE PRODUCTS. ACCORDINGLY, UNTANGLE SHALL HAVE NO LIABILITY TO LICENSEE FOR ANY OF THE FOREGOING SECURITY BREACHES OR OTHER HARMFUL EFFECTS THAT MAY RESULT DESPITE THE DEPLOYMENT OF THE SUBSCRIPTION SOFTWARE PRODUCTS. WITHOUT LIMITING THE GENERALITY OF THESE DISCLAIMERS, LICENSEE AGREES THAT UNTANGLE MAKES NO REPRESENTATIONS OR WARRANTIES WITH RESPECT TO THE OPERATION, PERFORMANCE, OR COMPATIBILITY OF ANY SUBSCRIPTION SOFTWARE PRODUCT IN CONNECTION WITH INTERNET ACCESS DEVICE OWNED BY LICENSEE OR BY ANY THIRD PARTY. FURTHER, THE OPERATION OR PERFORMANCE OF THE SOFTWARE MAY BE AFFECTED BY INTERNET OUTAGES OR OTHER NETWORK OUTAGES DUE TO FAILURES IN SERVICES BY INTERNET SERVICE PROVIDERS OR DUE TO OTHER CAUSES, AND, CONSEQUENTLY, UNTANGLE MAKES NO WARRANTY THAT THE SUBSCRIPTION SOFTWARE PRODUCTS WILL ALWAYS BE AVAILABLE OR WILL ALWAYS PERFORM WITH THEIR FULL FUNCTIONALITY, AND UNTANGLE SHALL HAVE NO LIABILITY FOR FAILURES IN OPERATION OR PERFORMANCE WHICH ARE DUE TO THIRD-PARTY INTERNET SERVICE PROVIDERS. UNTANGLE MAKES NO WARRANTY IN ADDITION, UNTANGLE MAKES NO WARRANTY OR REPRESENTATION. LICENSEE AGREES AND ACKNOWLEDGES THAT THE USE OF ANY SUBSCRIPTION SOFTWARE PRODUCT IS AT ITS OWN RISK AND DISCRETION, AND THAT UNTANGLE HAS NO OBLIGATION UNDER THIS AGREEMENT TO PROVIDE ANY SUPPORT OR ASSISTANCE WITH RESPECT TO ANY SUBSCRIPTION SOFTWARE PRODUCT. UNTANGLE DOES NOT WARRANT THAT THE SUBSCRIPTION SOFTWARE PRODUCTS ARE ERROR-FREE, THAT THEY WILL OPERATE WITH LICENSEE'S HARDWARE OR NETWORK WITHOUT ANY IMPAIRMENT OF ITS FUNCTIONALITY, THAT THEY WILL OPERATE IN ERROR-FREE COMPATIBILITY WITH ANY UNTANGLE DOWNLOADABLE SOFTWARE PRODUCT, THAT THEY WILL MEET ALL OF LICENSEE’S NEEDS, OR THAT THEY WILL DELIVER ANY PARTICULAR OR DESIRED RESULTS. THE SUBSCRIPTION SOFTWARE PRODUCTS ARE PROVIDED "AS IS" WITHOUT WARRANTY OF ANY KIND, EITHER EXPRESSED OR IMPLIED, AND UNTANGLE EXPRESSLY DISCLAIMS ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, AND NON INFRINGEMENT. UNTANGLE SHALL NOT BE LIABLE TO LICENSEE OR ANY THIRD PARTY FOR ANY DEFECTS IN THE SUBSCRIPTION SOFTWARE PRODUCTS. Some jurisdictions do not allow the disclaimer of implied warranties, so the above disclaimer may not apply, in which case the duration of any such implied warranty is limited to sixty (60) days from the date the software is received by Licensee.
9. LIMITATION OF LIABILITY. UNTANGLE WILL NOT BE LIABLE TO LICENSEE FOR ANY SPECIAL, INCIDENTAL, INDIRECT, EXEMPLARY, OR CONSEQUENTIAL DAMAGES, WHETHER ARISING IN TORT, CONTRACT, OR OTHERWISE, OR FOR ANY LOST PROFITS, LOST DATA, OR LOSS OF USE, ARISING FROM OR RELATING TO THE SUBSCRIPTION SOFTWARE PRODUCTS, EVEN IF UNTANGLE HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. UNTANGLE'S LIABILITY TO LICENSEE IN ANY EVENT SHALL NOT EXCEED THE GREATER OF (A) THE TOTAL AMOUNT OF FEES PAID BY LICENSEE TO UNTANGLE FOR THE LICENSE TO THE SUBSCRIPTION SOFTWARE PRODUCTS, OR (B) FIFTY U.S. DOLLARS (U.S. $50). THIS DISCLAIMER CONSTITUTES AN ESSENTIAL PART OF THIS AGREEMENT, AND NO USE OF THE SOFTWARE PRODUCTS IS AUTHORIZED HEREUNDER EXCEPT UNDER THIS DISCLAIMER.
10. Termination. This Agreement will become effective at the time that Licensee clicks the "Agree" button, and will continue in full force and effect until any breach of any of its terms and conditions by Licensee, as determined by Untangle in its sole discretion and judgment, whereupon the Agreement (and all licenses granted hereunder) will automatically terminate without advance notice to Licensee. Sections 1, 3.5, 6, 8, 9, 10, 11, 12, 13, 14, and any accrued payment obligations will survive any such termination.
11. Assignment. Licensee shall not transfer or assign this Agreement (or any rights or obligations hereunder) without the prior written consent of Untangle, which may be withheld or delayed in its sole discretion. Any purported assignment in violation of the foregoing will be null and void. The rights granted under this Agreement are personal to Licensee, and do not extend to any subsidiary, parent, or affiliate of Licensee.
12. Governing Law. This Agreement shall be governed by the laws of the State of California, U.S.A, without giving effect to any conflicts of laws principles that would require the application of the laws of a different jurisdiction. Neither the Uniform Computer Information Transactions Act nor the United Nations Convention on the International Sale of Goods apply to this Agreement. If either party employs attorneys to enforce any rights arising out of or relating to this Agreement, the prevailing party shall be entitled to recover reasonable attorney's fees. The parties consent to the exclusive jurisdiction of the state and federal courts located in San Mateo County, California, USA; provided, however, that nothing in this sentence will prevent Untangle from seeking injunctive relief to protect its intellectual property rights in any venue or forum that it deems appropriate.
13. General. If any provision of this Agreement is held by a court of competent jurisdiction to be unenforceable for any reason, the remaining provisions hereof shall be unaffected and remain in full force and effect. This Agreement constitutes the entire agreement between the parties concerning Licensee's use of the Subscription Software Products. This Agreement supersedes any prior verbal understanding between the parties and any Licensee purchase order or other ordering document, regardless of whether such document is received by Untangle before or after Licensee agrees to this Agreement. This Agreement may be amended only in writing signed by an authorized officer of Untangle specifically evidencing an intent to amend this Agreement.
14. Confidentiality. End User acknowledges that, it may obtain information relating to the Subscription Software Product, including, but not limited to, any code, technology, know-how, ideas, algorithms, testing procedures, structure, interfaces, specifications, documentation, bugs, problem reports, analysis and performance information, and other technical, business, product, and data (“Confidential Information”). End User shall not disclose Confidential Information to any third party or use Confidential Information for any purpose other than the use of the Subscription Software Product as licensed under the EULA.
15. Export Compliance. End User acknowledges that the Subscription Software Product may be subject to export restrictions by the United States government and import restrictions by certain foreign governments. End User shall not and shall not allow any third-party to remove or export from the United States or allow the export or re-export of any part of the Software or any direct product thereof: (i) into (or to a national or resident of) any embargoed or terrorist-supporting country; (ii) to anyone on the U.S. Commerce Department’s Table of Denial Orders or U.S. Treasury Department’s list of Specially Designated Nationals; (iii) to any country to which such export or re-export is restricted or prohibited, or as to which the United States government or any agency thereof requires an export license or other governmental approval at the time of export or re-export without first obtaining such license or approval; or (iv) otherwise in violation of any export or import restrictions, laws or regulations of any United States or foreign agency or authority. End User agrees to the foregoing and warrants that it is not located in, under the control of, or a national or resident of any such prohibited country or on any such prohibited party list. The Subscription Software Product is further restricted from being used for the design or development of nuclear, chemical, or biological weapons or missile technology, or for terrorist activity, without the prior permission of the United States government.
16. Government Users. The Subscription Software Product is commercial computer software. If the user or licensee of the Subscription Software Product is an agency, department, or other entity of the United States Government, the use, duplication, reproduction, release, modification, disclosure, or transfer of the Subscription Software Product, or any related documentation of any kind, including technical data and manuals, is restricted by a license agreement or by the terms of this EULA in accordance with Federal Acquisition Regulation 12.212 for civilian purposes and Defense Federal Acquisition Regulation Supplement 227.7202 for military purposes. The Subscription Software Product was developed fully at private expense. All other use is prohibited.