Product License Agreement - Fortinet FortiGate 3040B Quick Start Manual

Product License Agreement

Product License Agreement
The parties to this agreement are you, the end customer, and either (i) where you have purchased your Product within the Americas, Fortinet, Inc., or (ii) where you
have purchased your Product outside of the Americas, Fortinet Singapore Private Limited (each referred to herein as "Fortinet") .CAREFULLY READ THE FOLLOW-
ING LEGAL AGREEMENT (THE OR THIS "AGREEMENT" OR "EULA"). USE OF FORTINET PRODUCT(S) AND ANY UPDATES THERETO, INCLUDING HARDWARE APPLIANCE
PRODUCTS, SOFTWARE AND FIRMWARE INCLUDED THEREIN BY FORTINET, AND STAND-ALONE SOFTWARE PRODUCTS SOLD BY FORTINET (TOGETHER, THE "PROD-
UCTS") CONSTITUTES ACCEPTANCE BY YOU OF THE PROVISIONS IN THIS AGREEMENT. FORTINET SHALL NOT BE BOUND BY ANY ADDITIONAL AND/OR CONFLICTING
PROVISIONS IN ANY ORDER, RELEASE, ACCEPTANCE OR OTHER WRITTEN CORRESPONDENCE OR OTHER WRITTEN OR VERBAL COMMUNICATION UNLESS EXPRESSLY
AGREED TO IN A WRITING SIGNED BY THE GENERAL COUNSEL OF FORTINET. YOUR INSTALLATION OR USE OF ANY PRODUCT REPRESENTS AGREEMENT TO THE TERMS
HEREIN, AS AMENDED OR UPDATED FROM TIME TO TIME IN FORTINET'S DISCRETION BY FORTINET PUBLISHING AN AMENDED OR UPDATED VERSION. IF YOU DO NOT
AGREE TO ALL OF THE TERMS OF THIS AGREEMENT, DO NOT START THE INSTALLATION PROCESS OR USE THE PRODUCTS. IF YOU DO NOT AGREE TO THE PROVISIONS
OF THIS AGREEMENT, YOU SHOULD IMMEDIATELY, AND IN NO EVENT LATER THAN FIVE (5) CALENDAR DAYS AFTER YOUR RECEIPT OF THE PRODUCT RETURN THE
PRODUCTS TO THE LOCATION WHERE YOU OBTAINED THEM FOR A FULL REFUND FROM THE PARTNER SELLING TO YOU.
1. License Grant.
This is a license, not a sales agreement, between you and Fortinet. The term "Software", as used throughout this Agreement, includes all Fortinet and third party
firmware and software provided to you with, or incorporated into, Fortinet appliances and any stand-alone software provided to you by Fortinet, with the exception
of any open source software contained in Fortinet's Products which is discussed in detail in section 15 below, and the term "Software" includes any accompanying
documentation, any updates and enhancements of the software or firmware provided to you by Fortinet, at its option. Fortinet grants to you a non-transferable (except
as provided in section 5 ("Transfer") and section 15 ("Open Source Software") below), non-exclusive, revocable (in the event of your failure to comply with these terms
or in the event Fortinet is not properly paid for the applicable Product) license to use the Software solely for your internal business purposes (provided, if a substantial
portion of your business is to provide managed service provider services to your end-customers, you may use the Software embedded in FortiGate and supporting
hardware appliances to provide those services, subject to the other restrictions in this Agreement), in accordance with the terms set forth in this Agreement and subject
to any further restrictions in Fortinet documentation, and solely on the Fortinet appliance, or, in the case of blades, CPUs or databases, on the single blade, CPU or
database on which Fortinet installed the Software or, for stand-alone Software, solely on a single computer running a validly licensed copy of the operating system for
which the Software was designed, or, in the case of blades, CPUs or databases, on a single blade, CPU or database. For clarity, notwithstanding anything to the contrary,
all licenses of Software to be installed on blades, CPUs or databases are licensed on a per single blade, solely for one blade and not for multiple blades that may be
installed in a chassis, per single CPU or per single database basis, as applicable. The Software is "in use" on any Fortinet appliances when it is loaded into temporary
memory (i.e. RAM). You agree that, except for the limited, specific license rights granted in this section 1, you receive no license rights to the Software.
2. Limitation on Use.
You may not attempt to, and, if you are a corporation, you are responsible to prevent your employees and contractors from attempting to, (a) modify, translate, reverse
engineer, decompile, disassemble, create derivative works based on, sublicense, or distribute the Software; (b) rent or lease any rights in the Software in any form to
any third party or make the Software available or accessible to third parties in any other manner; (c) except as provided in section 5, transfer assign or sublicense right
to any other person or entity, or (d) remove any proprietary notice, labels, or marks on the Software, Products, and containers.
3. Proprietary Rights.
All rights, title, interest, and all copyrights to the Software and any copy made thereof by you and to any Product remain with Fortinet. You acknowledge that no title
to the intellectual property in the Software or other Products is transferred to you and you will not acquire any rights to the Software or other Products except for the
specific license as expressly set forth in section 1 ("License Grant") above.
4. Term and Termination.
Except for evaluation and beta licenses or other licenses where the term of the license is limited per the evaluation/beta or other agreement or in the ordering docu-
ments, the term of the license is for the duration of Fortinet's copyright in the Software. Fortinet may terminate this Agreement, and the licenses and other rights herein,
immediately without notice if you breach or fail to comply with any of the terms and conditions of this Agreement. You agree that, upon such termination, you will cease
using the Software and any Product and either destroy all copies of the Fortinet documentation or return all materials to Fortinet. The provisions of this Agreement,
other than the license granted in section 1 ("License Grant"), shall survive termination.
5. Transfer.
If you are a Fortinet contracted and authorized reseller or distributor of Products, you may transfer (not rent or lease unless specifically agreed to in writing by Fortinet)
the Software to one end user on a permanent basis, provided that: (i) you ensure that your customer and the end user receives a copy of this Agreement, is bound by
its terms and conditions, and, by selling the Product or Software, you hereby agree to enforce the terms in this Agreement against such end user, (ii) you at all times
comply with all applicable United States export control laws and regulations, and (iii) you agree to refund any fees paid to you by an end user who purchased Product(s)
from you but does not agree to the terms contained in this Agreement and therefore wishes to return the Product(s) as provided for in this Agreement. Further, if you
are a non-authorized reseller of Products, you are not authorized to sell Product(s) or Software, but, regardless, by selling Product(s) or Software, you hereby agree
you are bound by the restrictions and obligations herein and are bound to: (i) ensure that your customer and the end user receive a copy of this Agreement and are
bound in full by all restrictions and obligations herein (ii) enforce the restrictions and obligations in this Agreement against such customer and/or end user, (iii) comply
with all applicable United States export control laws and regulations and all other applicable laws, and (iv) refund any fees paid to you by a customer and/or end user
who purchased Product(s) from you but does not agree to the restrictions and obligations contained in this Agreement and therefore wishes to return the Product(s) as
provided for in this Agreement. Notwithstanding anything to the contrary, distributors, resellers and other Fortinet partners (a) are not agents of Fortinet and (b) are not
authorized to bind Fortinet in any way.
6. Limited Warranty.
Fortinet provides this limited warranty for its product only to the single end-user person or entity that originally purchased the Product from Fortinet or its authorized
reseller or distributor and paid for such Product. The warranty is only valid for Products which are registered on Fortinet's Support Website: https://support.fortinet.com;
or on the TalkSwitch support website: http://global.talkswitch.com; or such other website as provided by Fortinet. For the below software warranty to start, registration
must take place within three hundred sixty-five (365) days from the date the Product was originally shipped from Fortinet's facilities or the warranty is null and void
and will not be honored. For the hardware warranty, such warranty starts on the earlier of the date of Product registration on Fortinet's Support Website or ninety (90)
days from the date that the Product was originally shipped from Fortinet's facilities. It is the Fortinet distributor's and reseller's responsibility to make clear to the end
user the date the product was originally shipped from Fortinet, and it is the end user's responsibility to understand the original ship date from the party from which the
end user purchased the product. All warranty claims must be submitted in writing to Fortinet before the expiration of the warranty term or such claims are waived in
full, i.e. ninety (90) days from the earlier of registration or the automatically started term for hardware and spare parts claims and three hundred sixty-five (365) days
from registration within three hundred sixty-five (365) days from shipment for software claims. Fortinet provides no warranty for any beta, donation or evaluation
Products, for any spare parts not purchased directly from Fortinet by the end-user, for any accessories, or for any stand-alone software.
Fortinet warrants that the hardware portion of the Products, including spare parts unless noted otherwise ("Hardware") will be free from material defects in workman-
ship as compared to the functional specifications for the period set forth as follows and applicable to the Product type ("Hardware Warranty Period"): a three hundred
sixty-five (365) day limited warranty for the Hardware excluding spare parts, and, for spare parts, solely a ninety (90) days limited warranty. Fortinet's sole obligation
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shall be to repair or replace the defective Hardware at no charge to the original owner. This obligation is exclusive of transport fees, labor or installation costs, and any
other cost which are not directly associated to the Product. Such repair or replacement will be rendered by Fortinet at an authorized Fortinet service facility as deter-
mined by Fortinet. The replacement Hardware need not be new or 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 portion of Hardware Products will substantially conform to Fortinet's then current functional specifications for the Software, as set
forth in the applicable documentation 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 replace the non-conforming Software with software that substantially
conforms to Fortinet's functional specifications. Except as otherwise agreed by Fortinet in writing, the 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 Software Warranty Period shall extend for an additional ninety (90)
days after any 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 WARRANTY 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 ORIGINAL 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. NOTWITHSTANDING ANYTHING TO THE CONTRARY, THE HARDWARE WARRANTY 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.
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, or maintained in accordance with instructions supplied by Fortinet, (c)
has been subjected to abnormal physical or electrical stress, misuse, negligence, or accident; or (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.
This Agreement and the warranty herein shall be governed by the laws of the state of California, without regards to the conflicts of laws principles thereof.
9. Limitation of Liability.
TO THE MAXIMUM EXTENT PERMITTED BY LAW AND NOTWITHSTANDING ANYTHING TO THE CONTRARY, FORTINET IS NOT LIABLE UNDER ANY CONTRACT, NEGLI-
GENCE, 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, DAMAGE
TO PERSONAL OR REAL PROPERTY, WORK STOPPAGE, COMPUTER FAILURE OR MALFUNCTION, COMPUTER SECURITY BREACH, COMPUTER VIRUS INFECTION, 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 SERVICE, 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 information 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 technology, 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 understand, 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 Products and/or services are not provided in exchange for Fortinet maintaining current busi-
ness 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," respec-
tively, pursuant to DFAR Section 227.7202 and FAR Section 12.212, as applicable. Any use, modification, reproduction, 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. In the event of any claim arising out of this Agree-
ment, the parties hereby submit to the jurisdiction of the federal and state courts located in Santa Clara County, California, as applicable. 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 otherwise 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 failure to enforce rights nor effective unless in a writing
signed on behalf of the party against whom the waiver is asserted. If any part of this Agreement is found unenforceable, that part will be enforced to the maximum
extent permitted and the remainder shall continue in full force and effect. You acknowledge that you have read this Agreement, understand it, and agree to be bound by
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