ANYTHING TO THE CONTRARY, THE HARDWARE WARRANTY PERIOD
DISCUSSED ABOVE DOES NOT APPLY TO CERTAIN FORTINET
PRODUCTS, INCLUDING 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 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,
DE-INSTALLATION AND INSTALLATION FEES AND COSTS,
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, and Fortinet reserves the right to
terminate or suspend shipments, services and support in the event
Fortinet has a reasonable basis to suspect any import or export
violation. 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
