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 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, negligence, 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; or (e) is procured from a non-authorized reseller or non-authorized distributor. 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 NOTWITHSTANDING 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 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, and Fortinet reserves the right to terminate or suspend shipments, services and support in the event Fortinet has a reasonable basis to suspect
any import or export violation. 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 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, 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. 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 its
terms and conditions. Notwithstanding anything to the contrary, this EULA constitutes the entire agreement between Fortinet and its end-customers and supersedes any and all conflicting
provisions, such as limitations of liability, in any and all purported end customer agreements, whether entered into now or in the future. In the event of a conflict between this EULA and
another agreement, this EULA shall prevail unless the conflicting agreement expressly states that it replaces this EULA, expressly referring to this EULA, and is agreed to in writing by
authorized representatives of the parties (which, in the case of Fortinet, is Fortinet’s General Counsel).
14. Privacy.
You agree to Fortinet’s collection, use, disclosure, protection and transfer of your information, as set forth in the Fortinet privacy policy on the Fortinet web site
(
http://www.fortinet.com/about-us/privacy.html
), including (a) Fortinet’s use of the Customer information to send information regarding Fortinet products and services; and (b) Fortinet’s
disclosure of your information to provide assistance to law enforcement, governmental agencies and other authorities or to allow Fortinet to protect its Customers’ and/or end users’ rights.
15. Open Source Software.
Fortinet’s products may include software modules that are licensed (or sublicensed) to the user under the GNU General Public License, Version 2, of June 1991 (“GPL”) or GNU Lesser
General Public License, Version 2.1, of February 1999 (“LGPL”) or other open source software licenses which, among other rights, permit the user to use, copy, modify and redistribute
modules, or portions thereof, and may also require attribution disclosures and access to the source code (“Open Source Software”). The GPL requires that for any Open Source Software
covered under the GPL, which is distributed to someone in an executable binary format, that the source code also be made available to those users. For any Open Source Software
covered under the GPL, the source code is made available on this CD or download package. If any Open Source Software licenses require that Fortinet provide rights to use, copy or
modify any Open Source Software program that are broader than the rights granted in this agreement, then such rights shall take precedence over the rights and restrictions herein.
Fortinet will provide, for a charge reflecting our standard distribution costs, the complete machine-readable copy of the modified software modules. To obtain a complete machine-
readable copy, please send your written request, along with a check in the amount of US $25.00, to General Public License Source Code Request, Fortinet, Inc., 899 Kifer Rd, Sunnyvale,
CA 94086 USA. In order to receive the modified software modules, you must also include the following information: (a) Name, (b) Address, (c) Telephone number, (d) E-mail Address, (e)
Product purchased (if applicable), (f) Product Serial Number (if applicable). All open source software modules are licensed free of charge. There is no warranty for these modules, to the
extent permitted by applicable law. The copyright holders provide these software modules “AS-IS” without warranty of any kind, either expressed or implied. In no event will the copyright
holder for the open source software be liable to you for damages, including any special, incidental or consequential damages arising out of the use or inability to use the software
modules, even if such holder has been advised of the possibility of such damages. A full copy of this license, including additional open source software license disclosures and third party
license disclosures applicable to certain Fortinet products, may obtained by contacting Fortinet’s Legal Department at
.
GNU GENERAL PUBLIC LICENSE GNU GENERAL PUBLIC LICENSE
Version 2, June 1991
Copyright (C) 1989, 1991 Free Software Foundation, Inc.
59 Temple Place, Suite 330, Boston, MA 02111-1307 USA
TERMS AND CONDITIONS FOR COPYING, DISTRIBUTION AND MODIFICATION
This License applies to any program or other work which contains a notice placed by the copyright holder saying it may be distributed under the terms of this General Public License. The
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