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; (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 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, 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 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.
14. Privacy.
By entering into this Agreement, you agree and consent that Fortinet may collect,
retain and use personal information supplied, including name, address, and
e-mail address of individuals and payment details and other information. Personal
information will be used primarily to provide services and product functionality to
end users. Fortinet may also use personal information for additional communication, subject to an opt-out notice provided by you in writing per below. Fortinet
may engage other companies and individuals to perform functions on its behalf,
such as payment processing, order fulfillment, marketing programs and customer
service. Fortinet may share personal information with such subcontractors in
order to perform these and other functions, but such subcontractors may not
use your personal information for other purposes, unless you agree. By entering
into this Agreement, you agree and consent to the transfer the supplied personal
information to Fortinet’s offices in the United States and elsewhere, for the
purposes stated above. For more detailed information on the collection, use and
transfer of your personal information, and for information on how to opt out of or
unsubscribe from the communications described above, please read the Fortinet
privacy policy on the Fortinet web site (www.Fortinet.com).
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 touse, 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 a 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 legal@fortinet.com.
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 “Program”, below, refers to any such program
or work, and a “work based on the Program” means either the Program or any
derivative work under copyright law: that is to say, a work containing the Program
or a portion of it, either verbatim or with modifications and/or translated into
another language. (Hereinafter, translation is included without limitation in the term
“modification”.) Each licensee is addressed as “you”.
Activities other than copying, distribution and modification are not covered by this
License; they are outside its scope. The act of running the Program is not restrict-