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of an identical make, model, or part; Fortinet may, in its discretion, replace
the defective Hardware (or any part thereof) with any reconditioned
Product that Fortinet reasonably determines is substantially equivalent (or
superior) in all material respects to the defective Hardware. The Hardware
Warranty Period for the repaired or replacement Hardware shall be for the
greater of the remaining Hardware Warranty Period or ninety days from the
delivery of the repaired or replacement Hardware. If Fortinet determines
in its reasonable discretion that a material defect is incapable of correction
or that it is not practical to repair or replace defective Hardware, the price
paid by the original purchaser for the defective Hardware will be refunded
by Fortinet upon return to Fortinet of the defective Hardware. All Hardware
(or part thereof) that is replaced by Fortinet, or for which the purchase
price is refunded, shall become the property of Fortinet upon replacement
or refund.
Fortinet warrants that the software as initially shipped with the Hardware
Products will substantially conform to Fortinet's then current functional
specifications for the Software, as set forth in the applicable documen-
tation for a period of ninety (90) days ("Software Warranty Period"), if the
Software is properly installed on approved Hardware and operated as
contemplated in its documentation. Fortinet's sole obligation shall be to
repair or offer replacement Software for the non-conforming Software with
software that substantially conforms to Fortinet's functional specifica-
tions. This obligation is exclusive of transport fees, labor, de-installation,
installation, reconfiguration, or return shipment and handling fees and
costs, and Fortinet shall have no obligation related thereto. Except as
otherwise agreed by Fortinet in writing, the warranty replacement Software
is provided only to the original licensee, and is subject to the terms and
conditions of the license granted by Fortinet for the Software. The Soft-
ware Warranty Period shall extend for an additional ninety (90) days after
any warranty replacement software is delivered. If Fortinet determines in
its reasonable discretion that a material non-conformance is incapable of
correction or that it is not practical to repair or replace the non-conforming
Software, the price paid by the original licensee for the non-conforming
Software will be refunded by Fortinet; provided that the non-conforming
Software (and all copies thereof) is first returned to Fortinet. The license
granted respecting any Software for which a refund is given automatically
terminates immediately upon refund. For purpose of the above hardware
and software warranties, the term "functional specifications" means solely
those specifications authorized and published by Fortinet that expressly
state in such specifications that they are the functional specifications
referred to in this section 6 of this Agreement, and, in the event no such
specifications are provided to you with the Software or Hardware, there
shall be no warranty on such Software.
7. Disclaimer of Other Warranties and Restrictions.
EXCEPT FOR THE LIMITED WARRANTY SPECIFIED IN SECTION 6
ABOVE, THE PRODUCT AND SOFTWARE ARE PROVIDED "AS-IS"
WITHOUT ANY WARRANTY OF ANY KIND INCLUDING, WITHOUT
LIMITATION, ANY IMPLIED WARRANTY, IMPLIED OR EXPRESS WAR-
RANTY OF MERCHANTABILITY, OR WARRANTY FOR FITNESS FOR A
PARTICULAR PURPOSE AND NON-INFRINGEMENT. IF ANY IMPLIED
WARRANTY CANNOT BE DISCLAIMED IN ANY TERRITORY WHERE A
PRODUCT IS SOLD, THE DURATION OF SUCH IMPLIED WARRANTY
SHALL BE LIMITED TO NINETY (90) DAYS FROM THE DATE OF ORIGI-
NAL SHIPMENT FROM FORTINET. EXCEPT AS EXPRESSLY COVERED
UNDER THE LIMITED WARRANTY PROVIDED HEREIN, THE ENTIRE
RISK AS TO THE QUALITY, SELECTION AND PERFORMANCE OF THE
PRODUCT IS WITH THE PURCHASER OF THE PRODUCT. NOTWITH-
STANDING ANYTHING TO THE CONTRARY, THE HARDWARE WAR-
RANTY PERIOD DISCUSSED ABOVE DOES NOT APPLY TO CERTAIN
FORTINET PRODUCTS, INCLUDING FORTIFONE WHICH HAS A NINETY
(90) DAY LIMITED WARRANTY AND FORTITOKEN WHICH HAS A 365
DAY WARRANTY FROM THE DATE OF SHIPMENT FROM FORTINET'S
FACILITIES, AND THE SOFTWARE WARRANTY DOES NOT APPLY TO
CERTAIN FORTINET PRODUCTS, INCLUDING FORTIGATE-ONE AND
VDOM SOFTWARE. YOU HEREBY ACKNOWLEDGE AND AGREE THAT
NO VENDOR CAN ASSURE COMPLETE SECURITY AND NOTHING
HEREIN OR ELSEWHERE SHALL BE DEEMED TO IMPLY A SECURITY
GUARANTEE OR ASSURANCE.
The warranty in Section 6 above does not apply if the Software, Product
or any other equipment upon which the Software is authorized to be used
(a) has been altered, except by Fortinet or its authorized representative, (b)
has not been installed, operated, repaired, updated to the latest version,
or maintained in accordance with instructions supplied by Fortinet, (c) has
been subjected to abnormal physical or electrical stress, misuse, negli-
gence, or accident; (d) is licensed for beta, evaluation, donation, testing or
demonstration purposes or for which Fortinet does not charge a purchase
price or license fee. In the case of beta, testing, evaluation, donation or
free Software or Product, the end user acknowledges and agrees that
such Software or Product may contain bugs or errors and could cause
system failures, data loss and other issues, and the end user agrees
that such Software or Product is provided "as-is" without any warranty
whatsoever, and Fortinet disclaims any warranty or liability whatsoever. An
end user's use of evaluation or beta Software or Product is limited to thirty
(30) days from original shipment unless otherwise agreed in writing by
Fortinet.
8. Governing Law.
Any disputes arising out of this Agreement or Fortinet's limited warranty
shall be governed by the laws of the state of California, without regard
to the conflict of laws principles. In the event of any disputes arising out
of this Agreement or Fortinet's limited warranty, the parties submit to the
jurisdiction of the federal and state courts located in Santa Clara County,
California, as applicable.
9. Limitation of Liability.
TO THE MAXIMUM EXTENT PERMITTED BY LAW AND NOTWITH-
STANDING ANYTHING TO THE CONTRARY, FORTINET IS NOT LIABLE
UNDER ANY CONTRACT, NEGLIGENCE, TORT, STRICT LIABILITY,
INFRINGEMENT OR OTHER LEGAL OR EQUITABLE THEORY FOR ANY
LOSS OF USE OF THE PRODUCT OR SERVICE OR ANY DAMAGES OF
ANY KIND WHATSOEVER, WHETHER DIRECT, SPECIAL, INCIDENTAL
OR CONSEQUENTIAL (INCLUDING, BUT NOT LIMITED TO, DAMAGES
FOR LOSS OF GOODWILL, LOSS OF PROFIT, LOSS OF OPPORTUNITY,
LOSS OR DAMAGE RELATED TO USE OF THE PRODUCT OR SERVICE
IN CONNECTION WITH HIGH RISK ACTIVITIES, DE-INSTALLATION AND
INSTALLATION FEES AND COSTS, DAMAGE TO PERSONAL OR REAL
PROPERTY, WORK STOPPAGE, COMPUTER FAILURE OR MALFUNC-
TION, COMPUTER SECURITY BREACH, COMPUTER VIRUS INFEC-
TION, LOSS OF INFORMATION OR DATA CONTAINED IN, STORED ON,
OR INTEGRATED WITH ANY PRODUCT INCLUDING ANY PRODUCT
RETURNED TO FORTINET FOR WARRANTY SERVICE) RESULTING
FROM THE USE OF THE PRODUCT, RELATING TO WARRANTY SER-
VICE, OR ARISING OUT OF ANY BREACH OF THE LIMITED WARRANTY
IN SECTION 6 ABOVE, EVEN IF FORTINET HAS BEEN ADVISED OF
THE POSSIBILITY OF SUCH DAMAGES. THE SOLE REMEDY FOR A
BREACH OF THE LIMITED WARRANTY IS REPAIR, REPLACEMENT OR
REFUND OF THE DEFECTIVE OR NON-CONFORMING PRODUCT AS
SPECIFICALLY STATED IN SECTION 6 ABOVE.
10. Import / Export Requirements; FCPA Compliance.
You are advised that the Products may be subject to the United States
Export Administration Regulations and other import and export laws;
diversion contrary to United States law and regulation is prohibited. You
agree to comply with all applicable international and national laws that
apply to the Products as well as end user, end-use, and destination
restrictions issued by U.S. and other governments. For additional informa-
tion on U.S. export controls see www.bis.doc.gov. Fortinet assumes no
responsibility or liability for your failure to obtain any necessary import and
export approvals. You represent that neither the United States Bureau
of Industry and Security nor any other governmental agency has issued
sanctions against you or otherwise suspended, revoked or denied your
export privileges. You agree not to use or transfer the Products for any
use relating to nuclear, chemical or biological weapons, or missile technol-
ogy, unless authorized by the United States Government by regulation or
specific written license. Additionally, you agree not to directly or indirectly
export, import or transmit the Products contrary to the laws or regulations
of any other governmental entity that has jurisdiction over such export,
import, transmission or use. Furthermore, you represent that you under-
stand, and you hereby agree to comply with, all requirements of the U.S.
Foreign Corrupt Practices Act and all other applicable laws. For beta,
testing, evaluation, donation or free Products and/or related services,
you hereby agree, represent and warrant to Fortinet that (a) receipt of the
Products and/or services comply with all policies and you have obtained
all necessary approvals for such Products and/or services, (b) the Prod-
ucts and/or services are not provided in exchange for Fortinet maintaining
current business or for new business opportunities, and (c) the Products
and/or services are not being received for the benefit of, and are not being
transferred to, any government entity, representative or affiliate.
11. U.S. Government End Users.
The Software and accompanying documentation are deemed to be
"commercial computer software" and "commercial computer software
documentation," respectively, pursuant to DFAR Section 227.7202 and
FAR Section 12.212, as applicable. Any use, modification, reproduc-
tion, release, performance, display or disclosure of the Software and
accompanying documentation by the United States Government shall be
governed solely by the terms of this Agreement and shall be prohibited
except to the extent expressly permitted by the terms of this Agreement
and its successors.
12. Tax Liability.
You agree to be responsible for payment of any sales or use taxes
imposed at any time on this transaction.
13. General Provisions.
Except as specifically permitted and required in section 5 ("Transfer")
above, you agree not to assign this Agreement or transfer any of the rights
or obligations under this Agreement without the prior written consent of
Fortinet. This Agreement shall be binding upon, and inure to the benefit
of, the successors and permitted assigns of the parties. The United
Nations Convention on Contracts for the International Sales of Goods is
expressly excluded. This Agreement and other Fortinet agreements may
be amended or supplemented only by a writing that refers explicitly to the
agreement signed on behalf of both parties, or, for this Agreement, as oth-
erwise expressly provided in the lead-in above Section 1 above, provided,
notwithstanding anything to the contrary and except for this Agreement
which may be amended or updated as expressly provided in the lead-in
above Section 1 above, for any amendment or other agreement to be
binding on Fortinet, such amendment or other agreement must be signed
by Fortinet's General Counsel. No waiver will be implied from conduct or
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