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® Software” or “DynFi® Manager” or “Software”: centralised 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® Manager 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.
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
The term of this Agreement is one year from the date of signature. The Agreement shall thereafter be renewed from year to year by tacit agreement, except by notice from either Party to the other at least three months before the end of the annual period in force. The Agreement renewed pursuant to this clause is a fixed term agreement. The Customer shall remain liable to the Service Provider 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 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 Software) subject to an open source license.
The Licensee enjoys the rights granted by the “open source” license applicable to the Third Party Software, and will refer to the Documentation provided online https://dynfi.com/en/dynfi-products/manager/third-party-softwares/ 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 favour of a user, or not expressly authorised by the Agreement is prohibited and considered a direct infringement.
The Licensee is not authorised 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 on line through DYNFI’s Extranet exclusively 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 TODOO 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 unauthorised 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 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® 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 9. Financial Conditions
10.1 Billing Terms In consideration for the provision of Licenses to use the DynFi® Manager software, Licensee agrees to pay a monthly, quarterly, or annual fee according to the rate set forth online at https://shop.dynfi.com at the time of purchase and based on:
- the number of licensed firewalls
- the billing frequency
This fee will be invoiced and paid immediately via the Stripe secure payment platform for the first month, quarter or year, prior to the implementation of the service.
The 3D-Secure system allowing the autentification and non-repudiation of online payments is systematically used by Stripe if the Licensee’s bank allows it.
The fee due for the renewal of the licenses will then be automatically debited from the Licensee’s account or credit card, for the automatic renewal of the services, unless explicitly cancelled by the Licensee on the Licensee’s account located on the website https://shop.dynfi.com
The Licensee may cancel the automatic renewal of his Licenses at any time by logging in to the https://shop.dynfi.com and suspending his Services.
10.2 Review DynFi Manager license fees may be revised by DYNFI on the anniversary of the effective date of the Contract.
10.3 Failure to Pay Timely payment of all sums due to the Provider is an essential obligation of Licensee under this Contract.
Without prejudice to DYNFI’s other rights, including early termination of the Agreement, DYNFI shall require payment of daily default interest in the event of non-payment of all or part of an invoice by its due date as provided above. Such interest shall be calculated at a rate equal to the interest rate applied by the European Central Bank to its most recent refinancing operation plus 10 percentage points. Such interest shall be due from the due date up to and including the day on which the amount due by Licensee is paid in full to DYNFI. Such interest shall continue to accrue on amounts due notwithstanding the termination or expiration of this SaaS Contract for any reason.
Payment of amounts due after the eligibility date on the invoice will automatically increase the amount of the invoice by a flat fee of 40 € (Articles L 441-6 and D 441-5 of the Commercial Code).
In the event of a regulatory change in the amount of this fixed indemnity, the amount will be automatically substituted for the one appearing in the present general conditions. The automatic application of this fixed indemnity does not prevent the application of an additional indemnity for the costs incurred for the recovery of the debt upon justification, in accordance with the aforementioned text.
In case of total or partial non-payment of an invoice by the payment deadline, DYNFI may suspend without notice the provision of the service, in accordance with Article 1220 of the Civil Code. This suspension will be notified by email to the Licensee.
10.4 Invoice Inquiries and Claims
Throughout the term of the Agreement and at least for twelve (12) months following the date of the invoice, DYNFI shall make available to the Customer the elements justifying the invoice.
These are accessible on the website: https://shop.dynfi.com
By express agreement, the record of data and connections established by the operating system of the platform hosting the Service is considered authentic between the Parties.
In the event of a claim, the obligation to pay the amount in dispute shall be suspended, subject to payment of the undisputed portion of the invoice.
The Licensee undertakes to provide the elements justifying the disputed invoices. The Parties undertake to discuss in good faith in order to find a solution to this claim within fifteen (15) days. If DYNFI rejects the claim, payment of the amount in dispute shall become immediately due.
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 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.
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 authorises 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 the 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.