This End User License Agreement (the “Agreement”) is an agreement between You (both the individual installing CYBOWALL’s Products and any legal entity on whose behalf such individual is acting) (hereinafter “You” or “Your”) and CYBOWALL. (hereinafter “CYBOWALL”).
TAKING ANY STEP TO SET-UP, CONFIGURE OR INSTALL THE PRODUCT (AS DEFINED BELOW) CONSTITUTES YOUR ASSENT TO AND ACCEPTANCE OF THIS END USER LICENSE AGREEMENT. WRITTEN APPROVAL IS NOT A PREREQUISITE TO THE VALIDITY OR ENFORCEABILITY OF THIS AGREEMENT AND NO SOLICITATION OF ANY SUCH WRITTEN APPROVAL BY OR ON BEHALF OF YOU SHALL BE CONSTRUED AS AN INFERENCE TO THE CONTRARY. IF YOU HAVE ORDERED THIS PRODUCT AND SUCH ORDER IS CONSIDERED AN OFFER BY YOU, CYBOWALL’S ACCEPTANCE OF YOUR OFFER IS EXPRESSLY CONDITIONAL ON YOUR ASSENT TO THE TERMS OF THIS AGREEMENT, TO THE EXCLUSION OF ALL OTHER TERMS. IF THESE TERMS ARE CONSIDERED AN OFFER BY CYBOWALL, YOUR ACCEPTANCE IS EXPRESSLY LIMITED TO THE TERMS OF THIS AGREEMENT. IF YOU DO NOT AGREE WITH ALL THE TERMS OF THIS AGREEMENT, YOU MUST RETURN THIS PRODUCT WITH THE ORIGINAL PACKAGE AND THE PROOF OF PAYMENT TO THE PLACE YOU OBTAINED IT FOR A FULL REFUND.
“Product” means the object code copy of the software program provided to You in connection with this Agreement, and all accompanying manuals and other documentations, and together with all enhancements, upgrades, infrastructure, any program updates acquired through technical support and extensions thereto that may be provided by CYBOWALL to You from time to time whether by electronic media or by automated updates, unless otherwise indicated by CYBOWALL. If You are a standard user, the Product shall be associated with CYBOWALL obtained by You. If You are a CYBOWALL Service Provider, the Product shall be an object code copy that allows the management of CYBOWALL Licensed Configurations for a defined amount of service customers.
“Licensed Configuration” means to the extent applicable, as indicated on the License Key, the choice of features and the number of maximum number of mailboxes as declared by You in your purchase order, or request for features and a License Key. If the Product purchased by You does not come with a License Key, then the Licensed Configuration shall be as specified in the purchase order.
“License Key” means the official confirmation given to You for the Product’s model and the modules You purchased.
“Third Party” includes the third party which has the right to provide and grant licenses for the use of third-party software.
You are a “CYBOWALL Service Provider” if You were authorized by CYBOWALL or by one of CYBOWALL’s training centers to provide service and support to CYBOWALL’s Products.
You are a “standard user” if You indicated in your purchase order or in requesting the License Key that You intend to use the Products on Your own behalf, or You obtained the Products from a CYBOWALL Service Provider, reseller, vendor, or any other intermediate supplier.
2.1. License. Subject to the terms and conditions of this Agreement, CYBOWALL hereby grants only to You, a non-exclusive, non-licensable, non-transferable license to install and use the Product in accordance with the relevant end user documentation provided by CYBOWALL for the Licensed Configuration. You have no right to receive, use or examine any source code or design documentation relating to the Product.
2.2 Standard User Restrictions. If You are a standard user, the Products are licensed to You solely for use by You for Your own operations. No Product, nor any portion thereof, may be used by or on behalf of, accessed by, re-sold to, rented to, or distributed to any other party.
2.3 CYBOWALL Service Provider Restrictions. If You are a CYBOWALL Service Provider, the Products are licensed to You for use by You to provide policy management for the operations of Your service customers, clients or other CYBOWALL Service Providers. No Product, nor any portion thereof, may be used by or on behalf of, accessed by, re-sold to, rented to, or distributed to any other party, except to customers or distributors who have made a valid purchase of the Product. Distribution of the Products to customers requires that You enter into a reseller and/or CYBOWALL Service Provider Agreement with CYBOWALL or its authorized representatives.
2.4 General Restrictions. You may not copy the Product, in whole or in part. The Product is licensed to You solely for Your internal use by You and for You and the Product or any portion thereof may not be used or accessed by, sub-licensed to, re-sold to, rented to, or distributed to any other party. You agree not to allow others to use the Product and You will not use the Product for the benefit of third parties. You acknowledge that the source code of the Product and the underlying ideas and concepts, are valuable intellectual property of CYBOWALL and You agree not to, except as expressly authorized and only to the extent established by applicable statutory law, attempt to (or permit others to) decipher, reverse translate, decompile, disassemble or otherwise reverse engineer or attempt to reconstruct or discover any source code or underlying ideas or algorithms of file formats or programming or interoperability interfaces of the Products by any means whatsoever. You will not develop methods to enable unauthorized parties to use the Product or to develop any other Product containing any of the concepts and ideas contained in the Products. You will not (and will not allow any third party to) modify Product or incorporate any portion of Product into any software or create a derivative work of any portion of the Product. You will not (and will not allow any third party to) remove any copyright or other proprietary notices from the Product.
2.5 Specific Restrictions. The Product is licensed to You based on the applicable Licensed Configuration purchased. The license permits the use of the Product in accordance with the number of mailboxes. Without derogation from any applicable laws, it is a violation of this Agreement to create or design any software or system which alters the number of mailboxes configured in the Product with the intent or resulting effect, of circumventing the Licensed Configuration.
2.6 Evaluation License. This Section 2.6 shall only apply if You are licensing the Product for an initial thirty (30) day evaluation period. The license is valid only for a period of thirty (30) days from the delivery of the Product and is designed to allow You to evaluate the Product for such period. In the event that You wish to enter into a long-term license agreement with CYBOWALL, the terms and conditions of this Agreement shall be applicable. In the event that You determine not to enter into a long term license agreement with CYBOWALL at the end of such thirty (30) day evaluation period, or in the event that CYBOWALL advises You that discussions with respect to a licensing transaction have terminated, then Your rights under this Agreement shall immediately terminate and You shall promptly return any and all Products, documentation and related material in Your possession to the representative that supplied You the said Products.
2.7 Third Party Technology. Third party technology may be necessary for use with some Products and is specified in the Product documentation. This Agreement does not modify or abridge any rights or obligations You may have in open-source technology under the applicable open-source licenses. Any use of open-source technology outside of Your licensed use of applicable Products is subject to the rights and obligations under such third-party technology’s open-source license. Any distribution by You of code licensed under an open-source license, whether alone or with the Product, must be under an open source license.
CYBOWALL is obligated to provide support, maintenance, upgrades, and modifications during the first year from purchasing the Product as detailed in the SLA (attached as Appendix A). This obligation is valid as long as the customer pays his annual maintenance fees. Any purchases of Products or modules shall be subject to this Agreement, unless otherwise determined by CYBOWALL. The support, maintenance, upgrades, and modifications will be given to You directly by CYBOWALL or by a CYBOWALL Service Provider.
All right, title, and interest in and to the Product shall remain with CYBOWALL and its licensors. The Product is protected under international copyright, trademark, and trade secret and patent laws. The license granted herein does not constitute a sale of the Product or any portion or copy of it. CYBOWALL retains all ownership and intellectual property rights in the CYBOWALL Software.
This Agreement is affective until terminated. CYBOWALL may terminate this Agreement at any time upon Your breach of any of the provisions hereof. Upon termination of this Agreement, You agree to immediately cease all use of the Product and to return the Product and all documentation and related materials in Your possession to CYBOWALL. Except for the License granted herein and as expressly provided herein, the terms of this Agreement shall survive termination. In addition, upon termination You shall discontinue use and shall destroy or return to CYBOWALL all copies of the CYBOWALL Software and documentation.
CYBOWALL shall have the right, but not the obligation, to defend or settle, at its option, any action at law against You arising from a claim that your permitted use of the Product under this Agreement infringes any patent, copyright, or other ownership rights of a third party. You agree to provide CYBOWALL with written notice of any such claim within ten (10) days of your notice thereof and provide reasonable assistance in its defense. CYBOWALL has and shall have sole discretion and control over such defense and all negotiations for a settlement or compromise, unless it declines to defend or settle, in which case You shall be free to pursue any alternative You might have.
You shall defend and indemnify CYBOWALL from all claims and for all damages arising out of Your obligations under this Agreement, and in connection with Your use of the Product.
7.1 Limited Warranty. CYBOWALL warrants to You that the encoding of the software program of the media on which the Product is furnished will be free from defects in material and workmanship, and that the Product shall substantially conform to its user manual, as it exists at the date of delivery as can be found on CYBOWALL’s web page (www.CYBOWALL.com), for a period of ninety (90) days from the date of purchase. CYBOWALL’s entire liability and your exclusive remedy shall be, at CYBOWALL’s option, either to: (i) return of the money paid to CYBOWALL for the Product, resulting in the termination of this Agreement, or (ii) repair or replace the Product or media that does not meet this limited warranty. EXCEPT FOR THE LIMITED WARRANTIES SET FORTH IN THIS SECTION 7.1, THE PRODUCT AND ANY SERVICES ARE PROVIDED “AS IS” WITHOUT WARRANTY OF ANY KIND, EITHER EXPRESSED OR IMPLIED. CYBOWALL DOES NOT WARRANT THAT THE PRODUCT WILL MEET YOUR REQUIRMENTS OR THAT ITS OPERATION WILL BE UNINTERRUPTED OR ERROR FREE. CYBOWALL DISCLAIMS ANY WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NON-INFRIGEMENT. Some jurisdictions do not allow the exclusion of implied warranties or limitations on how long an implied warranty may last, so the above limitations may not apply to You. This warranty gives You specific legal rights. You may have other rights which vary from jurisdiction to jurisdiction.
7.2 Limitation of Liability. IN NO EVENT WILL CYBOWALL BE LIABLE TO YOU OR ANY THIRD PARTY FOR ANY DAMAGES ARISING OUT OF THE SUBJECT MATTER OF THIS AGREEMENT, THE PRODUCT OR ANY SERVICES UNDER ANY CONTRACT, NEGLIGENCE, STRICT LIABILITY OR OTHER THEORY FOR ANY INDIRECT , SPECIAL, INCIDENTAL, OR CONSEQUENTIAL DAMAGES (INCLUDING LOST PROFITS), OR FOR LOSS OF OR CORRUPTION OF DATA, OR FOR COST OF PROCUREMENT OF SUBSTITUTE GOODS OR TECHNOLOGY, IRRESPECTIVE OF WHETHER CYBOWALL HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. CYBOWALL’S MAXIMUM LIABILITY FOR DAMAGES SHALL BE LIMITED TO THE LICENSE FEES RECEIVED BY CYBOWALL UNDER THIS LICENSE FOR THE PARTICULAR PRODUCT(S) WHICH CAUSED THE DAMAGES. Some jurisdictions do not allow the exclusion of implied warranties or limitations on how long an implied warranty may last, so the above limitations may not apply to you.
8.1 Government regulations. You agree that the Product will not be shipped, transferred or exported into any country or used in any manner prohibited by law.
8.2 Export. The Product is subject to export control laws of the state of Israel and/or may be subject to additional export control laws applicable to You or in your jurisdiction, including, without limitation, the United States. Since the Products contain encrypted devices, You must contact CYBOWALL through CYBOWALL’s web page (www.CYBOWALL.com) or by phone for specific information. You agree that You will not ship, transfer, or export the Product into any country, or make available or use the Product in any manner, prohibited by law.
8.3 You understand and acknowledge that upon entry of the Product into the United States it becomes subject to regulation by agencies of the U.S government, including the U.S Department of commerce, which prohibit export or diversion of certain Products and technology to certain countries. Any and all of your obligations with respect to the Product shall be subject in all respects to such United States laws and regulations as shall from time to time govern the license and delivery of technology and Products abroad by persons subject to the jurisdiction of the United States, including the Export administration Act of 1979, as amended, any successor legislation , and the export administration regulations (“EAR”) issued by the department of commerce, International Trade administration and Bureau of Export Administration. You warrant that You will comply in all respects with the export and re-export restrictions applicable to the Product and will otherwise comply with the EAR or other United States laws and regulations in effect from time to time.
8.4 You warrant and agree that you are not: (i) located in, under the control of, or a national or resident of Cuba, Iraq, Libya, North Korea, Iran, Syria or Sudan, or (ii) on the U.S Treasury Department list of specially Designated Nationals or the U.S. Commerce Department’s table of Deny Orders.
If you are the data subject of the Usage Information we process on behalf of a Business (i.e., a Business’s end-user), and would like to exercise any of your EU or UK rights, please contact the Business.
You have a right to submit a complaint to the relevant supervisory data protection authority.
Subject to applicable law, you have the right to lodge a complaint with your local data protection authority. If you are in the EU, then according to Article 77 of the GDPR, you can lodge a complaint to the supervisory authority, particularly in the Member State of your residence, place of work or place of an alleged infringement of the GDPR. For a list of supervisory authorities in the EU, click here.
If you are in the UK, you can lodge a complaint to Information Commissioner’s Office (ICO) pursuant to the instructions provided here.
9.1 Miscellaneous. You may not assign your rights or obligations under this Agreement without the prior written consent of CYBOWALL. If any provision of this Agreement is held to be invalid or unenforceable by a court of competent jurisdiction, that provision of the Agreement will be enforced to the maximum extent permissible so as to affect the intent of the Agreement, and the remainder of the provisions of this Agreement shall remain in full force and effect.
9.2 This Agreement will not be governed by the United Nations Convention on Contracts for the international Sales of Goods, the application of which is expressly excluded. This Agreement sets forth the entire understanding and agreement between You and CYBOWALL and may be amended only in writing signed by both parties.
9.3 Third Party Software. Certain third parties’ software may be provided with the Product for use in connection with the Product subject to the licenses of their respective proprietors. The third parties’ software may be used only in connection with the Products. The provisions of this Agreement shall apply to all third parties’ software provided hereunder and such third parties’ software as if they were the Product and CYBOWALL, respectively.
9.4 Government Restriction Rights. This provision applies to Products acquired directly or indirectly by or on behalf of any government. The Product is a commercial Product, licensed on the open market at market prices, and was developed entirely at private expense and without the use of any U.S government funds. Any use modification, reproduction, release, performance, display or disclosure of the Product by any 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 no license to the Product is granted to any government requiring different terms.
9.5 Questions. Should You have any questions concerning this Agreement kindly contact the manufacturers at CYBOWALL Security Technologies., Matam, Building 23, P.O.B. 15102, Haifa, 3190501
CYBOWALL warrants that the software of the Cybowall Product shall be free from material defects in design, materials, and workmanship and will function, under normal use and circumstances, materially in accordance with the documentation provided with the software for a period of one (1) year from the date of shipment by CYBOWALL. Your sole and exclusive remedy, and CYBOWALL’s sole and exclusive liability for defective software shall be that CYBOWALL, at its sole option, subject to the terms and conditions of this section, and solely upon confirmation of a defect or failure in a software component to perform as warranted, shall either repair or replace the nonconforming software component. All replacement parts furnished to You under this warranty shall be new or equivalent to new and shall be warranted as new for the remainder of the original warranty period. All defective software, which has been replaced, shall become the property of CYBOWALL. All defective software that has been repaired shall remain your property.
A software Product may only be returned to CYBOWALL with CYBOWALL’s written approval. Any such approval shall reference a returned material authorization number issued by an authorized CYBOWALL service representative. Transportation costs, if any, incurred in connection with the return of a defective item to CYBOWALL shall be borne by you. Any transportation costs incurred in connection with the redelivery of a repaired or replacement item to You by CYBOWALL shall be borne by CYBOWALL; provided, however that if CYBOWALL determines, in its sole discretion, that the allegedly defective is not covered by the terms of the warranty or that a warranty claim is made after the warranty period, the cost of the repair by CYBOWALL, including all shipping expenses, shall be reimbursed by You.
The foregoing warranties and remedies shall be void as to any CYBOWALL Products damaged or rendered unserviceable by one or more of the following: (1) improper or inadequate maintenance by anyone other than CYBOWALL or CYBOWALL’s authorized agents, (2) software components supplied and implemented by anyone other than CYBOWALL, (3) modifications, alterations or additions to CYBOWALL’s software by personnel not certified by CYBOWALL or CYBOWALL’s authorized agents to perform such acts, or other unauthorized repair, installation or other causes beyond CYBOWALL’s control, (4) unreasonable refusal to agree with engineering change notice programs, (5) negligence by any person other than CYBOWALL or CYBOWALL’s authorized agents, (6) Misuse, abuse, accident, electrical irregularity, theft, vandalism, fire, water or other peril, (7) damage caused by containment and/or operation outside the environmental specifications for CYBOWALL’s Products, (8) any use that is inconsistent with the user manual supplied with CYBOWALL’s Products or (9) any damage done to CYBOWALL’s Products due to wrong or missing configuration done by You or requested by You.
NOTWITHSTANDING ANYTHING ELSE IN THIS AGREEMENT OR OTHERWISE, NEITHER CYBOWALL NOR ITS SUPPLIERS WILL BE LIABLE WITH RESPECT TO ANY SUBJECT MATTER OF THIS AGREEMENT UNDER ANY CONTRACT, NEGLIGENCE, STRICT LIABILITY , OR OTHER LEGAL OR EQUITABLE THEORY, REGARDLESS OF WHETHER CYBOWALL WAS ADVISED OF THE POSSIBILITY OF SUCH DAMAGE, FOR: (i) ANY PUNITIVE, INCIDENTAL OR CONSEQUENTIAL DAMAGES OR LOST DATA OR LOST PROFITS; OR (ii) FOR COSTS OF PROCUREMENT OF SUBSTITUTE GOODS, TECHNOLOGY OR SERVICES; OR (iii) FOR ANY CLAIMS BASED ON ANY ERROR, DEFECT OR NONCONFORMITY IN THE PRODUCTS OR SERVICE, FOR ANY AMOUNT IN EXCESS OF THE PRICE PAID TO CYBOWALL FOR SUCH DEFECTIVE PRODUCT(S) OR SERVICE; OR (iv) FOR ALL OTHER CLAIMS NOT RELATED TO AN ERROR, DEFECT OR NONCONFORMITY IN CYBOWALL’S PRODUCTS, ANY AMOUNT IN EXCESS IN THE AGGREGATE OF THE AMOUNT PAID TO CYBOWALL HEREUNDER DURING THE THREE (3) MONTHS PRECEDING THE DATE THE CAUSE OF ACTION AROSE.