
20 21
to in writing by Fortinet) the Software to one end user on a permanent basis, provided that: (i) you ensure that your customer and the end user
receives a copy of this Agreement, is bound by its terms and conditions, and, by selling the Product or Software, you hereby agree to enforce the
terms in this Agreement against such end user, (ii) you at all times comply with all applicable United States export control laws and regulations,
and (iii) you agree to refund any fees paid to you by an end user who purchased Product(s) from you but does not agree to the terms contained
in this Agreement and therefore wishes to return the Product(s) as provided for in this Agreement. Further, if you are a non-authorized reseller of
Products, you are not authorized to sell Product(s) or Software, but, regardless, by selling Product(s) or Software, you hereby agree you are bound
by the restrictions and obligations herein and are bound to: (i) ensure that your customer and the end user receive a copy of this Agreement and
are bound in full by all restrictions and obligations herein (ii) enforce the restrictions and obligations in this Agreement against such customer and/
or end user, (iii) comply with all applicable United States export control laws and regulations and all other applicable laws, and (iv) refund any fees
paid to you by a customer and/or end user who purchased Product(s) from you but does not agree to the restrictions and obligations contained
in this Agreement and therefore wishes to return the Product(s) as provided for in this Agreement. Notwithstanding anything to the contrary,
distributors, resellers and other Fortinet partners (a) are not agents of Fortinet and (b) are not authorized to bind Fortinet in any way.
6. Limited Warranty.
Fortinet provides this limited warranty for its product only to the single end-user person or entity that originally purchased the Product from
Fortinet or its authorized reseller or distributor and paid for such Product. The warranty is only valid for Products which are registered on Fortinet’s
Support Website: https://support.fortinet.com; or on the TalkSwitch support website: http://global.talkswitch.com; or such other website as
provided by Fortinet. For the below software warranty to start, registration must take place within three hundred sixty-ve (365) days from the
date the Product was originally shipped from Fortinet’s facilities or the warranty is null and void and will not be honored. For the hardware war-
ranty, such warranty starts on the earlier of the date of Product registration on Fortinet’s Support Website or ninety (90) days from the date that
the Product was originally shipped from Fortinet’s facilities. It is the Fortinet distributor’s and reseller’s responsibility to make clear to the end user
the date the product was originally shipped from Fortinet, and it is the end user’s responsibility to understand the original ship date from the party
from which the end user purchased the product. All warranty claims must be submitted in writing to Fortinet before the expiration of the warranty
term or such claims are waived in full, i.e. ninety (90) days from the earlier of registration or the automatically started term for hardware and
spare parts claims and three hundred sixty-ve (365) days from registration within three hundred sixty-ve (365) days from shipment for software
claims. Fortinet provides no warranty for any beta, donation or evaluation Products, for any spare parts not purchased directly from Fortinet by
the end-user, for any accessories, or for any stand-alone software.
Fortinet warrants that the hardware portion of the Products, including spare parts unless noted otherwise (“Hardware”) will be free from mate-
rial defects in workmanship as compared to the functional specications for the period set forth as follows and applicable to the Product type
(“Hardware Warranty Period”): a three hundred sixty-ve (365) day limited warranty for the Hardware excluding spare parts, power supplies, and
accessories (provided, solely with respect to FortiAP indoor Wi-Fi access point Hardware appliance products and FortiSwitch Hardware appliance
products other than the FortiSwitch-5000 series (for both excluding spare parts, power supplies, and accessories), the warranty herein shall last
from the start of the warranty period as discussed above until ve (5) years following the product announced end-of-life date), and, for spare
parts, power supplies, and accessories, solely a ninety (90) days limited warranty. Fortinet’s sole obligation shall be to repair or offer replacement
Hardware for the defective Hardware at no charge to the original owner. This obligation is exclusive of transport fees, labor, de-installation,
installation, reconguration, or return shipment and handling fees and costs, and Fortinet shall have no obligation related thereto. Such repair or
replacement will be rendered by Fortinet at an authorized Fortinet service facility as determined by Fortinet. The replacement Hardware need not
be new or of an identical make, model, or part; Fortinet may, in its discretion, replace the defective Hardware (or any part thereof) with any recon-
ditioned Product that Fortinet reasonably determines is substantially equivalent (or superior) in all material respects to the defective Hardware.
The Hardware Warranty Period for the repaired or replacement Hardware shall be for the greater of the remaining Hardware Warranty Period or
ninety days from the delivery of the repaired or replacement Hardware. If Fortinet determines in its reasonable discretion that a material defect is
incapable of correction or that it is not practical to repair or replace defective Hardware, the price paid by the original purchaser for the defective
Hardware will be refunded by Fortinet upon return to Fortinet of the defective Hardware. All Hardware (or part thereof) that is replaced by Fortinet,
or for which the purchase price is refunded, shall become the property of Fortinet upon replacement or refund.
Fortinet warrants that the software as initially shipped with the Hardware Products will substantially conform to Fortinet’s then current functional
specications for the Software, as set forth in the applicable documentation for a period of ninety (90) days (“Software Warranty Period”), if
the Software is properly installed on approved Hardware and operated as contemplated in its documentation. Fortinet’s sole obligation shall
be to repair or offer replacement Software for the non-conforming Software with software that substantially conforms to Fortinet’s functional
specications. This obligation is exclusive of transport fees, labor, de-installation, installation, reconguration, or return shipment and handling
fees and costs, and Fortinet shall have no obligation related thereto. Except as otherwise agreed by Fortinet in writing, the warranty replacement
Software is provided only to the original licensee, and is subject to the terms and conditions of the license granted by Fortinet for the Software.
The Software Warranty Period shall extend for an additional ninety (90) days after any warranty replacement software is delivered. If Fortinet
determines in its reasonable discretion that a material non-conformance is incapable of correction or that it is not practical to repair or replace
the non-conforming Software, the price paid by the original licensee for the non-conforming Software will be refunded by Fortinet; provided that
the non-conforming Software (and all copies thereof) is rst returned to Fortinet. The license granted respecting any Software for which a refund
is given automatically terminates immediately upon refund. For purpose of the above hardware and software warranties, the term “functional
specications” means solely those specications authorized and published by Fortinet that expressly state in such specications that they are
the functional specications referred to in this section 6 of this Agreement, and, in the event no such specications 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 EN-
TIRE RISK AS TO THE QUALITY, SELECTION AND PERFORMANCE OF THE PRODUCT IS WITH THE PURCHASER OF THE PRODUCT. NOTWITHSTAND-
ING 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. 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. 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 conict 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 PER-
SONAL OR REAL PROPERTY, WORK STOPPAGE, COMPUTER FAILURE OR MALFUNCTION, COMPUTER SECURITY BREACH, COMPUTER VIRUS INFEC-
TION, 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; diver-
sion 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 specic
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 benet of, and are not being transferred to, any government entity, representative or afliate.
11. U.S. Government End Users.
The Software and accompanying documentation are deemed to be “commercial computer software” and “commercial computer software docu-
mentation,” respectively, pursuant to DFAR Section 227.7202 and FAR Section 12.212, as applicable. Any use, modication, 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 specically 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 benet 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 agree-
ment 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.
For information regarding Fortinet’s collection, use and transfer of your personal information please read the Fortinet privacy policy on the Fortinet
web site (http://www.fortinet.com/aboutus/privacy.html)..
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