DynFi® License Agreement
DynFi® SOFTWARE LICENSING AND MAINTENANCE AGREEMENT CAUTION: Please read carefully the license agreement reproduced below before installing the DynFi® software. This Agreement governs the use of DynFi® software, owned by the company TODOO 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 TODOO, in any form whatsoever. "Agreement": means this agreement. "DynFi® Software" or "Software": centralized management software of pfSense® or OPNSense® firewalls published by TODOO. "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 TODOO. "Licensee": refers to the legal or natural person who has acquired rights to use the DynFi® software. "TODOO": refers to the company TODOO, SARL 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® 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 TODOO for all sums due under the Agreement until maturity, regardless of the termination date. Clause 4. Rights granted 4.1 TODOO 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® 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 TODOO 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. TODOO 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 TODOO 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 TODOO and to respect the policy of the trademark TODOO available on line at : https://dynfi.com/trademark-copyright-guidelines Clause 6. Maintenance services TODOO 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 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 TODOO. Otherwise, the maintenance services provided for in the present clauses would be interrupted, in accordance with clause 6.4 below. 6.4 Maintenance limitation TODOO 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: o neglect, misuse or accidental damage to the Software; o changes, corrections or interventions carried out by a person unauthorized by TODOO; o the use of the Software with hardware, supplies or products, which do not conform to the Documentation. TODOO's obligations regarding maintenance services under the Agreement apply only to the last update of the Software and the previous update. TODOO 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 TODOO 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 TODOO 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 TODOO 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 TODOO 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 TODOO, in writing, of the action for infringement or any claim concerning an infringement; * that TODOO 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, TODOO will indemnify the Licensee against all costs and damages suffered as a result of any action or claim. TODOO does not provide any guarantee on Third Party Software. Clause 8.3 No provision of guarantee on the free version TODOO 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 Invoices will be automatically issued monthly, quarterly or annually, depending on the choice made by the Licensee. They are payable on receipt. The fees do not include taxes, VAT is applicable at the prevailing rate. The payment of all amounts due to TODOO is an essential obligation of the Licensee under this Agreement. Clause 10. Limitation of Liability The Licensee acknowledges having received from TODOO 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, TODOO is held to an obligation of providing all means for the execution of maintenance services. TODOO 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 TODOO'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, TODOO 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® 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 TODOO. TODOO 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 TODOO 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.