Contract: On Premise

Contract: On Premise

DynFi® Manager SOFTWARE LICENSING
AND
MAINTENANCE AGREEMENT

 

CAUTION:

Please read carefully the license agreement reproduced below before installing the DynFi® Manager software.

This Agreement governs the use of DynFi® Manager software, owned by the company DYNFI and the conditions for provision of maintenance services related to the Software.

By clicking on the button « I accept the license agreement », you accept the terms of the license agreement and you agree to observe them.

In the case of disagreement with the terms of this agreement, do not install or use the Software

 

Clause 1. Definitions

"Anomaly": performance defect of the Software, preventing the execution of all or part of the features provided in the Documentation, which is exclusively attributable to the software and reproducible.

"Documentation": Installation instructions and operating manuals provided by DYNFI, in any form whatsoever.

"Agreement": means this agreement.

"DynFi® Manager Software" or "DynFI® Manager" or "Software": centralized management software of DynFi® Firewall or pfSense® or OPNSense® firewalls published by DYNFI.

"Updates": refers to versions of the Software, including technical and/or functional improvements, the correction of Anomalies. Every Update including technical and/or feature improvements is identified by a new version number.

"Third party": all natural or legal persons other than the Licensee or DYNFI.

"Licensee": refers to the legal or natural person who has acquired rights to use the DynFi® software.

"DYNFI": refers to the company DYNFI, EURL registered at the Registre du Commerce et des Sociétés de Paris with number 439.872.540, with registered office at 6, rue Montmartre, 75001 Paris - France.

 

Clause 2. Purpose

This Agreement governs the use of DynFi® Manager Software and the conditions for provision of maintenance services related to the Software.

 

Clause 3. Term

3.1.     The term of this Agreement is one (1) month, three (3) months or one (1) year following the choices made by the Client during his purchase.

3.2.     The Agreement shall thereafter be renewed for the same period by tacit agreement. The Agreement renewed pursuant to this clause is a fixed term agreement. The Licensee can cancel the Agreement at any time. The Licensee shall remain liable to DYNFI for all sums due under the Agreement until maturity, regardless of the termination date.

 

Clause 4. Rights granted

4.1    DYNFI grants the Licensee, subject to the payment of the sum charges/royalties corresponding to the number of firewalls managed with the Software, a non-transferable, non-exclusive license for use of the DynFi® Manager Software and this for application to the specific needs of the Licensee or those of its customers.

The rights of use granted by this license will automatically cease upon expiry of the Agreement. The Licensee may not use the software in a different manner than provided as part of this Agreement, and any such use will be considered direct infringement. The rights granted may not be transferred without the prior written permission of DYNFI to another natural or legal person.

4.2    Third Party Software

The Software uses one or more libraries, modules, programs, or other components belonging to third parties (hereinafter the Third Party Softwares) subject to an open source license.

The Licensee enjoys the rights granted by the "open source" license applicable to the Third Party Softwares, and will refer to the

Documentation provided online https://dynfi.com/third-party-software for more information.

 

Clause 5. Intellectual property – Trademarks

5.1     The Software made available to the Licensee as part of the Agreement is protected by intellectual property rights. DYNFI conserves all the rights that are not expressly granted in accordance with the contract. Any kind of use not explicitly provided by the law in favor of a user, or not expressly authorized by the Agreement is prohibited and considered a direct infringement.

The Licensee is not authorized to:

  • remove or modify any notable mention of DYNFI property; correct or have corrected by a third party any possible Anomalies;
  • perform or permit the disassembly, decompilation or the reverse-engineer of the Software.

 

5.2    DynFi® is a registered trademark, protected by national and international legislation.

The Customer undertakes to maintain all mentions of industrial property figuring on the Software affixed by DYNFI and to respect the policy of the trademark DYNFI available on line at : https://dynfi.com/trademark-copyright-guidelines

 

Clause 6. Maintenance services

DYNFI will ensure, as part of this Agreement, the maintenance services defined below.

6.1    Technical maintenance

Technical support is performed online through electronic means. This support aims to help the Licensee in solving any problem encountered when using the Software.

6.2    On site intervention

Any on site intervention will be subject to a purchase order and a specific contract.

6.3    Corrective and progressive maintenance

DYNFI provides a corrective and progressive maintenance consisting of sending to the Licensee, by any means of its choice, Updates or new versions of the Software including technical improvements, correction of Anomalies and/or new features compared to the version previously provided to the Licensee.

The Licensee is required to install the Update provided by DYNFI. Otherwise, the maintenance services provided for in the present clauses would be interrupted, in accordance with clause 6.4 below.

6.4    Maintenance limitation

DYNFI reserves the right to refuse to ensure the maintenance of any Software that has not undergone regular and continuous maintenance.

Maintenance services do not include:

  • services related to the installation, configuration, transfer or software reconfiguration;
  • supplies and accessories;
  • maintenance or operating system support services;
  • services resulting from:
    • neglect, misuse or accidental damage to the Software;
    • changes, corrections or interventions carried out by a person unauthorized by DYNFI;
    • the use of the Software with hardware, supplies or products, which do not conform to the Documentation.

DYNFI's obligations regarding maintenance services under the Agreement apply only to the last update of the Software and the previous update.

DYNFI cannot be held responsible for any loss of files, programs or data as part of its intervention, the Licensee is solely responsible for safeguarding the information that it owns.

If DYNFI performs, at the request of the Licensee, maintenance services beyond the scope of this clause, these services will be subject to a purchase order and invoiced to the Licensee based on the current DynFi® Manager rate.

 

Clause 7. Term

The term of the license is specified in the order.

The maintenance services are purchased for the term of the license.

In case of extension or renewal of the term of the license and maintenance associated thereto, the provisions of this Agreement remain applicable.

 

Clause 8. Guarantee

Clause 8.1 Conformity Guarantee

DYNFI guarantees that the Software will perform the features described in the Documentation and will be provided with all care and skill reasonably required.

The Licensee assumes all responsibility other than that of compliance with the Software in the Documentation and, in particular, that concerning:

  • the Software's suitability to its needs,
  • the operation of the Software,
  • the consequences of non-compliance by the Licensee with the license agreement or recommendations for use of the Software,
  • the qualification and competence of its staff.

 

Clause 8.2 Guarantee in case of infringement

DYNFI guarantees the Licensee against any claim made on the DynFi® Manager Software for infringement of intellectual property rights in the European Union under the following conditions:

  • that the Licensee has quickly notified DYNFI, in writing, of the action for infringement or any claim concerning an infringement;
  • that DYNFI is able to ensure the defense of its own interests and those of the Licensee, and to do so, that the Licensee collaborates in good faith in the defense by providing all information and assistance necessary to conduct any such defense.

 

Under this guarantee, DYNFI will indemnify the Licensee against all costs and damages suffered as a result of any action or claim.

DYNFI does not provide any guarantee on Third Party Software.

 

Clause 8.3 No provision of guarantee on the free version

DYNFI does not provide any guarantee on the free version of its Software (up to 3 firewalls), which is provided as is, without guarantee of any nature whatsoever.

 

Clause 9. Financial Conditions

The guidelines by which DynFi calculates its fees is outlined in here: https://dynfi.com/dynfi-products/dynfi-on-premise
By entering into this agreement, you also agree to the Billing Terms in their entirety.

 

Clause 9.1 Frequency of Payments

The first period begins upon creation of the account and will include any applicable one-time fees as well as pre-payment of the first Period's service.

DynFi Manager plans are billed monthly, quarterly or yearly ("Period"), on the first day of the Period for the upcoming Period, depending on the choice made by the Licensee. The fees do not include taxes, VAT is applicable at the prevailing rate.

The payment of all amounts due to DYNFI is an essential obligation of the Licensee under this Agreement.

The Licensee will receive a confirmation email at the conclusion of each Period at the email address specified in his account. The Licensee will receive an advance notice of a payment and a post-payment confirmation by email.

The Licensee will also receive a confirmation by email if his credit card can not be debited for a Period and will be invited to update his credit card information.

At the beginning of each Period, payment will be charged for the upcoming Period's service.

 

Clause 9.2 Payment method

Recurring credit/debit card payments are processed securely through a partnership with Ingenico (https://www.ingenico.fr/). Credit/Debit Card payments are processed automatically as described in the §.9.1 "Frequency of Payments" section. No credit card information are stored by DYNFI during the whole payment process.

Invoices are sent on the first day of the period as if they were processed automatically. Invoices are due upon receipt and should be paid by wire transfer or check addressed to DYNFI as described at the top of the invoice.

By entering or changing your payment method's information on your Licensee's billing page, you are authorizing DYNFI to process payment each period as outlined elsewhere in this contract. Payment methods can be changed at any time from Licensee's billing page. DYNFI may, at its sole discretion, choose to limit Your Licensee's options for payment methods to any subset of the two total methods.

 

Clause 9.3 Automatic Recurring Payment Failure

Payment will be retried according to the following schedule at the beginning of each period: Five (5) days after first failure, five (5) days after the second failure, and then five (5) days after the third failure. If Your automatic recurring payment is declined or fails for any reason on the fourth and final attempt, the Licensee will be contacted via email at the address provided for your organization and your DYNFI Manager license will not be renewed. You may log in at any time prior to your license expiration to correct or change the payment information on the Licensee's billing page. Upon correcting the payment information, the previously failed payment amount will be re-attempted, but future periodic billing dates will not change from their originally scheduled cycle.

 

Clause 9.4 Cancellation of the License and Automatic Recurring Payment

You have the right to change your payment method or withdraw your License from this Automatic Recurring Payment at any time. Doing so will cancel and deactivate your License from all use.

To cancel your License, login to your dynfi.com account, go to "Owned Licenses" > "Modify License" > "Cancel the licence". Your request to cancel your License will be processed immediately but the License won't be deactivated until the end of the actual billing period. No charges will be refunded and any overages or other charges incurred up to the point of cancellation will be charged to the currently selected payment method at that time. No refunds for negative balances will be issued.

 

Clause 10. Limitation of Liability

The Licensee acknowledges having received from DYNFI the advice, appropriate warnings and information, and that it is solely responsible for the Software's suitability to its requirements, for the precautions and safeguards to be made for the operation of the Software, for the security of its information system, for the qualification of its staff, for the use made of the results that it obtains.

By express agreement, DYNFI is held to an obligation of providing all means for the execution of maintenance services.

DYNFI cannot be held responsible for unpredictable and indirect damages.

The parties agree that such indirect damages are: the loss of opportunity, the loss of goodwill, the loss of anticipated savings or profits, data loss incurred due to the use of DynFi® Manager software.

In any event, it is expressly agreed that DYNFI's responsibility will be limited to, regardless of the nature and the legal basis for any action brought against it, the amount paid by the Licensee in the year preceding the occurrence of the event that caused the damage. The costs agreed between the parties reflect the allocation of the risk and the resulting limitation of liability.

The free version of the Software is provided as is, DYNFI will not assume any responsibility of any nature whatsoever if the Licensee opts for a free version of the Software.

 

Clause 11. Termination

11.1 Termination for breach

In the event of serious breach by one of the Parties to one of its obligations under this Agreement not remedied within a period of 15 days from the date of submission of a formal notice sent by registered letter with acknowledgement of receipt notifying the breaches, the other Party may automatically terminate this Agreement without judicial formalities and without prejudice to any damages and interest. The termination shall be notified by sending a registered letter with acknowledgement of receipt.

11.2 Consequences of termination

Upon termination, the Licensee agrees to discontinue the use of the DynFi® Manager Software provided to it.

 

Clause 12. Assignment of the agreement

It is expressly agreed that this Agreement will not be transferred to a Third Party by the Licensee without the prior written consent of DYNFI.

DYNFI may assign, contribute or transfer its rights and obligations under this Agreement to a Third Party, upon written notice to the Licensee.

 

Clause 13. Confidentiality

Each Party undertakes to treat as confidential and not to reproduce or disclose, other than for the sole purpose of performance of the Agreement, the information and documents supplied by the other Party for the implementation and during the performance of the Agreement and which, owing to their technical, commercial or financial content, should be regarded as confidential.

The confidentiality obligation will prevail for the duration of the Agreement and for the three (3) years following the termination of the contractual relationship. This duty will lapse if the information falls into the public domain without any intervention by the Party that received the information. It will not apply to information that the law or applicable regulations require to be disclosed.

The Licensee expressly authorizes DYNFI to quote as a reference the name of the Licensee.

 

Clause 14: Force majeure

The parties will not be liable for a breach of one of the obligations applicable to them resulting from a case of force majeure. Should such circumstances arise, the performance of this Agreement shall be suspended until the event of force majeure ceases.

 

Clause 15: Miscellaneous provisions

15.1    Absence of waiver

The waiver of any breach of the Agreement shall not constitute a waiver of any other breach, whether prior or subsequent, identical or different.

15.2    Partial invalidity

If one or more provisions of this Agreement is held to be invalid or declared as such under any law, regulation or after a final decision from a competent jurisdiction, the remaining provisions will remain in full force and scope. The Parties agree to replace the clause declared to be invalid with a clause that will be as much similar in content as the initial one, particularly so as to maintain the economic balance of the Agreement.

 

Clause 16: Applicable law and jurisdiction

This Agreement is governed by French law.

In case of difficulties in implementing this Agreement, the Parties shall first attempt to negotiate in good faith to find an amicable solution to the dispute.

In case of failure of these negotiations, any dispute which may arise between the Parties regarding the formation, execution, or interpretation of this Agreement shall be within the exclusive jurisdiction of the Tribunal de Commerce of Paris.