Terms and Conditions of Sale

All quotations and sales by Firelytics Systems, Inc., its subsidiaries or affiliates (“Firelytics”) are subject to these terms and conditions.

 

1. Except as otherwise set forth on the front of an Firelytics invoice or acknowledgment, terms of payment are net 30 days from invoice date; prices are FOB Firelytics’ facility (as defined in the Uniform Commercial Code); and prices do not include any taxes, freight, handling, duty or other similar charges, payment of which will be the sole responsibility of customer.  Prices are conditioned upon timely payment and any past due balance will accrue interest at the monthly rate of one and one-half percent.  Freight charges may be constructed on the basis of standard carrier tariffs and may not reflect actual transportation costs.  Firelytics reserves the right to modify terms prior to shipment, require payment in advance, or delay or cancel any shipment or order by reason of customer’s creditworthiness or should customer fail to fulfill any obligation when due.

 

2. In the absence of prior agreement as to shipping, Firelytics may select a carrier.  Firelytics’ responsibility for any loss or damage ends,  and title passes, when products are delivered to the carrier, to customer, or to customer’s agent (including, without limitation,  any test house or value added service provider), whichever occurs first.  Customer will pay for storage charges if Firelytics holds products at customer’s request pending instructions or rescheduled delivery.

 

3. Firelytics warrants those products assembled or customized by it against defects caused solely by faulty assembly or customization for 90 days after delivery.  All other products, and the components and materials utilized in any assembled or customized products, are covered by, and subject to, the terms, conditions, and limitations of the manufacturer’s standard warranty, which warranty is expressly in lieu of any other warranty, express or implied, of or by Firelytics or the manufacturer.  Customer’s exclusive remedy, if any, under these warranties is limited, at Firelytics’ election, to any one of (a) refund of customer’s purchase price, (b) repair by Firelytics or the manufacturer of any products found to be defective, or (c) replacement of any such product.  Customer acknowledges that except as specifically set forth or referenced in this paragraph, THERE ARE NO REPRESENTATIONS OR WARRANTIES OF ANY KIND (INCLUDING, WITHOUT LIMITATION, IN ADVERTISING MATERIALS, BROCHURES, OR OTHER DESCRIPTIVE

LITERATURE) BY Firelytics OR ANY OTHER PERSON, EXPRESS OR IMPLIED, AS TO THE CONDITION OR PERFORMANCE OF ANY PRODUCTS, THEIR MERCHANTABILITY, OR FITNESS FOR A PARTICULAR PURPOSE, OR OTHERWISE.  Firelytics ASSUMES NO RESPONSIBILITY OR LIABILITY WHATSOEVER FOR MANUFACTURER’S PRODUCT SPECIFICATIONS OR THE PERFORMANCE OR ADEQUACY OF ANY DESIGN OR SPECIFICATION PROVIDED TO Firelytics BY OR ON BEHALF OF CUSTOMER.  Use of the customer’s part number on any document or on any products is for convenience only and does not constitute any representation by Firelytics with respect to the performance, specifications, or fitness of any part for any purpose.

 

4. Firelytics retains a purchase money security interest in all products sold by Firelytics to customer, and in the proceeds of any resale of such products, until the purchase price and any other charges due to Firelytics have been paid in full.  Upon any breach by customer of these terms and conditions, Firelytics will have all rights and remedies of a secured party under applicable law, which rights and remedies will be cumulative and not exclusive.  Customer is responsible for all costs and expenses incurred by Firelytics in collecting any sums owing by customer (which may include, but are not limited to, collection agency and reasonable attorneys’ fees).Firelytics shall have the right to offset any sum owed by Firelytics or any Firelytics subsidiary to Customer against any sum owed by Customer to Firelytics or any Firelytics subsidiary.  All transactions are governed by the laws of the State of New York.  The parties waive any right to trial by jury.

 

5. Products are deemed accepted by customer unless customer notifies Firelytics in writing within 10 days of delivery of product shortages, damage, or defect.  No returns may be made for any reason without a Return Authorization Form issued by Firelytics.  If customer refuses to accept tender or delivery of any products or returns any products without authorization from Firelytics, such products will be held by Firelytics awaiting  customer’s instruction for 20 days, after which Firelytics may deem the products abandoned and dispose of them as it sees fit, without crediting customer’s account.

 

6. Firelytics will not be liable for any failure or delay in its performance or in the delivery or shipment of products, or for any damages suffered by customer by reason of such failure or delay, when such failure or delay is caused by, or arises in connection with, any fire,  flood, accident, riot, earthquake, severe weather, war, governmental interference or embargo, strike, shortage of labor, fuel, power, materials or supplies, delay in delivery by Firelytics’ suppliers or any other cause or causes beyond Firelytics’ reasonable control. Firelytics reserves the right to cancel without liability any order, the shipment of specifically or expressly object to any of customer’s terms.  Firelytics’ failure to object to any document, communication, or act of customer will not be deemed a waiver of any of these terms and conditions.  A duly authorized officer of Firelytics must specifically agree to any addition or change to these terms and conditions in writing before becoming binding on Firelytics.

 

7. This document, and not any purchase order or other customer document (which, if construed to be an offer is hereby rejected), will be deemed an offer or counter offer, and is a rejection of any other terms or conditions.  Customer,  by accepting any products, making any payments or ordering any products having previously received these terms and conditions, will be deemed to have assented to these terms and conditions, notwithstanding any terms contained in any prior or later communication from customer and whether or not Firelytics will specifically or expressly object to any of customer’s terms.  Firelytics’ failure to object to any document, communication, or act of customer will not be deemed a waiver of any of these terms and conditions.  A duly authorized officer of Firelytics must specifically agree to any addition or change to these terms and conditions in writing before becoming binding on Firelytics.

 

8. If customer’s order is placed under a contract with the United States Government, Firelytics agrees to comply only with those contract provisions and regulations with which, pursuant to law, it must comply and of which customer has, at the time of order placement, placed Firelytics on written notice.  In no event will United States Government Cost Accounting Standards apply.  All rights in technical data and software owned or licensed by Firelytics or the manufacturer are hereby reserved and deemed restricted or limited.  Unless specifically otherwise agreed in writing by Firelytics, customer acknowledges that products sold by Firelytics are not intended for and will not be used in life support systems, human implantation, nuclear facilities or systems or any other application where product failure could lead to loss of life or catastrophic property damage.  Customer will indemnify and hold Firelytics harmless from any loss, cost, or damage resulting from customer’s breach of the provisions of this paragraph.

 

9. Products may be subject to export or resale restriction or regulation, and customer acknowledges that it will comply with such restrictions and regulations.  Any statement as to product country of origin, Export Control Classification Number, or compliance with applicable law (including, without limitation, that products are lead-free or RoHS compliant) is as provided to Firelytics by its suppliers, and Firelytics does not warrant its accuracy and will not be liable for any error with regard to same.  Customer uses such information at its own risk.

 

10. Firelytics certifies that it complies with all applicable requirements of Sections 6, 7 and 15 of the Fair Labor Standards Act, as amended, and of regulations and orders of the United States Department of Labor issued under Section 14 thereof.

 

11. Except for the warranty coverage referenced in paragraph 3, above, NEITHER Firelytics NOR ITS SUPPLIERS WILL HAVE ANY LIABILITY OR OBLIGATION TO CUSTOMER OR ANY OTHER PERSON FOR ANY CLAIM, LOSS, DAMAGE, OR EXPENSE CAUSED IN WHOLE OR IN PART, DIRECTLY OR INDIRECTLY, BY THE INADEQUACY OF ANY PRODUCTS FOR ANY PURPOSE, BY ANY DEFICIENCY OR DEFECT IN ANY PRODUCT (WHETHER OR NOT COVERED BY ANY WARRANTY), BY THE USE OR PERFORMANCE OF ANY PRODUCTS OR BY ANY FAILURE OR DELAY IN Firelytics’ PERFORMANCE HEREUNDER, OR FOR ANY SPECIAL, DIRECT, INDIRECT, INCIDENTAL, CONSEQUENTIAL, EXEMPLARY OR PUNITIVE DAMAGES, HOWEVER CAUSED, INCLUDING, WITHOUT LIMITATION, PERSONAL INJURY OR LOSS OF BUSINESS OR PROFIT, WHETHER OR NOT CUSTOMER WILL HAVE INFORMED Firelytics OF THE POSSIBILITY OR LIKELIHOOD OF ANY SUCH DAMAGES.

 

12. The performance of any value added service may void the manufacturer’s warranty and render products non-returnable.  Orders incorporating such services are, accordingly, non-cancelable and the products are non-returnable.  Any third party value added service provider is deemed to be an agent of customer.

 

13. Any software or other intellectual property included in or relating to products is supplied by its manufacturer or licensor.  Firelytics makes no representation or warranty with respect thereto and will have no liability in connection therewith.  Customer agrees to comply with all requirements with regard to proprietary and similar rights in and to any intellectual property (including any requirement to enter into a separate license agreement and prohibitions against duplicating or disclosing the same); even if Firelytics has broken, the seal on any #shrink wrapped# software.  If Customer provides Firelytics with any intellectual property, Customer warrants that it has all necessary legal rights to such property.  Customer will indemnify Firelytics against and hold it harmless from any and all liability, cost or expense arising from a breach or purported breach of the requirements described in this section.

 

14. Firelytics may assign accounts receivable to a Firelytics affiliate.  In order to defray the cost of customer account administration, any credit balance or other sum owed to customer which remains unclaimed by customer for a period of twelve months will become the property of Firelytics.

 

15. No order or Customer obligation may be cancelled, rescheduled, reconfigured, or assigned without Firelytics’ prior written authorization and, in such event customer will be liable to Firelytics for any additional costs and expenses incurred by Firelytics.  Prices are subject to change by Firelytics upon customer rescheduling or reconfiguration of orders.  Prices are also subject to change in response to supplier price increases or if a price has been quoted in error, whereupon, customer may cancel the undelivered portion of any affected order by delivering written notice to Firelytics prior to the shipment thereof and within 10 days of its receipt of notice of the price increase.

 

Firelytics Services Terms and Conditions

 

BY CLICKING THE “I ACCEPT” BUTTON DISPLAYED AS PART OF THE ORDERING PROCESS, YOU AGREE TO THE FOLLOWING TERMS AND CONDITIONS (THE “AGREEMENT”) GOVERNING YOUR USE OF Firelytics Inc.`S SECURITY INTELLIGENCE SERVICE (THE “SERVICE”). IF YOU ARE ENTERING INTO THIS AGREEMENT ON BEHALF OF A COMPANY OR OTHER LEGAL ENTITY, YOU REPRESENT THAT YOU HAVE THE AUTHORITY TO BIND SUCH ENTITY TO THESE TERMS AND CONDITIONS, IN WHICH CASE THE TERMS “YOU” OR “YOUR” SHALL REFER TO SUCH ENTITY. IF YOU DO NOT HAVE SUCH AUTHORITY, OR IF YOU DO NOT AGREE WITH THESE TERMS AND CONDITIONS, YOU MUST SELECT THE “I DECLINE” BUTTON AND MAY NOT USE THE SERVICE.

 

Welcome

As part of the Service, Firelytics Inc. will provide You with use of the Service, including Security Intelligence Service. Your registration for, or use of, the Service shall be deemed to be Your agreement to abide by this Agreement including any materials available on the Firelytics Inc. website incorporated by reference herein, including but not limited to Firelytics Inc.`s privacy and security policies. For reference, a Definitions section is included at the end of this Agreement.

 

In addition, we offer a 30-day free trial through our distributors with no further obligation. Please see our distributors and resellers’ websites for feature differences between the various editions.

 

1. Privacy & Security

Firelytics Inc.`s privacy and security policies may be viewed at www.Firelytics.net/privacy.php. Firelytics Inc. reserves the right to modify its privacy and security policies in its reasonable discretion from time to time. Individual users, when they initially log in, will be asked whether or not they wish to receive marketing and other non-critical Service-related communications from Firelytics Inc. from time to time. They may opt out of receiving such communications at that time or at any subsequent time by changing their preference under Personal Setup. Note that because the Service is a hosted, online application, Firelytics Inc. occasionally may need to notify all users of the Service (whether or not they have opted out as described above) of important announcements regarding the operation of the Service.

 

2. License Grant & Restrictions

Firelytics Inc. hereby grants You a non-exclusive, non-transferable, worldwide right to use the Service, solely for Your own internal business purposes, subject to the terms and conditions of this Agreement. All rights not expressly granted to You are reserved by Firelytics Inc. and its licensors.

 

You shall not (i) license, sublicense, sell, resell, transfer, assign, distribute or otherwise commercially exploit or make available to any third party the Service or the Content in any way; (ii) modify or make derivative works based upon the Service or the Content; (iii) create Internet “links” to the Service or “frame” or “mirror” any Content on any other server or wireless or Internet-based device; or (iv) reverse engineer or access the Service in order to (a) build a competitive product or service, (b) build a product using similar ideas, features, functions or graphics of the Service, or (c) copy any ideas, features, functions or graphics of the Service.

 

3. Your Responsibilities

You are responsible for all activity occurring under Your User accounts and shall abide by all applicable local, state, national and foreign laws, treaties and regulations in connection with Your use of the Service, including those related to data privacy, international communications and the transmission of technical or personal data. You shall: (i) notify Firelytics Inc. immediately of any unauthorized use of any password or account or any other known or suspected breach of security; (ii) report to Firelytics Inc. immediately and use reasonable efforts to stop immediately any copying or distribution of Content that is known or suspected by You or Your Users; (iii) not impersonate another Firelytics Inc. user or provide false identity information to gain access to or use the Service; and (4) take all steps necessary to notify Your employees, agents, independent contractors and any other Party which uses the Client’s Internet service and/or e-mail service (collectively the “Users”) that their Activities are being monitored; and (5) notify all of Your existing Users that the Activities are being monitored by Firelytics Inc. prior to Firelytics Inc. monitoring the Activities and that Client will notify any new Users that the Activities are being monitored by Firelytics Inc. prior to Firelytics Inc. monitoring the Activities prior to such new Users being able to access the Internet and e-mail through Client’s service.

You acknowledge that the Service requires that You have, and continue to maintain, sufficient telecommunications access which will enable Firelytics Inc. to perform under the terms of this Agreement.  You represent and warrant that Your network will remain in good working order that will enable Firelytics Inc. to perform the services provided for in this Agreement.

You are responsible for assuring that the Customer Premises Equipment is properly configured, or re-configured, by qualified individuals (whether by Reseller, Distributor, their agents or by You).

 

4. Account Information and Data Firelytics Inc. does not store Your raw data.  Reports generated are retained by Firelytics Inc. only for a time period deemed reasonable in Firelytics Inc.’s sole discretion.

 

5. Intellectual Property Ownership

Firelytics Inc. alone (and its licensors, where applicable) shall own all right, title and interest, including all related Intellectual Property Rights, in and to the Firelytics Inc. Technology, the Content and the Service and any suggestions, ideas, enhancement requests, feedback, recommendations or other information provided by You or any other party relating to the Service. This Agreement is not a sale and does not convey to You any rights of ownership in or related to the Service, the Firelytics Inc. Technology or the Intellectual Property Rights owned by Firelytics Inc.. The Firelytics Inc. name, the Firelytics Inc. logo, and the product names associated with the Service are trademarks of Firelytics Inc. or third parties, and no right or license is granted to use them.

 

6. Third Party Interactions

During use of the Service, You may enter into correspondence with, purchase goods and/or services from, or participate in promotions of advertisers or sponsors showing their goods and/or services through the Service. Any such activity, and any terms, conditions, warranties or representations associated with such activity, is solely between You and the applicable third-party. Firelytics Inc. and its licensors shall have no liability, obligation or responsibility for any such correspondence, purchase or promotion between You and any such third-party. Firelytics Inc. does not endorse any sites on the Internet that are linked through the Service. Firelytics Inc. provides these links to You only as a matter of convenience, and in no event shall Firelytics Inc. or its licensors be responsible for any content, products, or other materials on or available from such sites. Firelytics Inc. provides the Service to You pursuant to the terms and conditions of this Agreement. You recognize, however, that certain third-party providers of ancillary software, hardware or services may require Your agreement to additional or different license or other terms prior to Your use of or access to such software, hardware or services.

 

 

7.Termination for Cause

Firelytics Inc. will have the right to terminate this Agreement and/or exercise any other rights or remedies, which may be available at law or equity, if the You breach any material term or condition of this Agreement and fail to cure such breach within ten (10) days after receipt of written notice of the same. Upon the occurrence of a Default, You shall pay all reasonable expenses (including court costs and reasonable attorneys fees) to Firelytics Inc. in connection with the breach.  Firelytics Inc., in its sole discretion, may terminate Your password, account or use of the Service if You breach or otherwise fail to comply with this Agreement.

 

8. Representations & Warranties

Each party represents and warrants that it has the legal power and authority to enter into this Agreement. Firelytics Inc. represents and warrants that it will provide the Service in a manner consistent with general industry standards reasonably applicable to the provision thereof and that the Service will perform substantially in accordance with the online Firelytics Inc. help documentation under normal use and circumstances. You represent and warrant that You have not falsely identified Yourself nor provided any false information to gain access to the Service and that Your billing information is correct.

 

A. Service Level Agreements

The Service Level Agreement offering is designed to clearly and effectively communicate to customers the quality and reliability of infrastructure and services. This Service Level Agreements is the standard by which the performance of services will be measured.

 

Provided Services     SLA

Service access     98% up-time

Data Collection     99% data capture

 

A particular Service will be considered “available” if it is operating with an error-free performance of the percentage mentioned above or better as measured based upon annual basis. For the purposes of this Supplement, a period of unavailability shall start when Firelytics Inc. is notified by an Firelytics Inc. distributor or reseller that the Service is not operating properly and it shall end when Service has been restored. The period when Service is not meeting SLA Requirement due to a cause beyond Firelytics Inc.`s reasonable control or due to Firelytics Inc. performing scheduled network shall be excluded when calculating actual annual availability.

B. Procedures:

If Firelytics Inc.’s service or availability is below the commitment level, the Firelytics Inc. Distributor or Reseller must notify Firelytics Inc. in writing with details of the under performance which is subject to the conditions outlined in the Service Agreement. This Service Level Notice must detail the periods of time or incidents at which Firelytics Inc. Services were not meeting the SLA Requirement.   For measurement of emergency response SLA compliance Firelytics Inc. will use the timestamps on the emergency e-mail or VoiceMail as the start time of the incident of downtime.

 

9. Indemnification

You shall indemnify and hold Firelytics Inc., its licensors and each such party`s parent organizations, subsidiaries, affiliates, officers, directors, employees, attorneys and agents harmless from and against any and all claims, costs, damages, losses, liabilities and expenses (including attorneys` fees and costs) arising out of or in connection with: (i) a claim alleging that use of the Customer Data infringes the rights of, or has caused harm to, a third party; (ii) a claim, which if true, would constitute a violation by You of Your representations and warranties; or (iii) a claim arising from the breach by You or Your Users of this Agreement, provided in any such case that Firelytics Inc. (a) gives written notice of the claim promptly to You; (b) gives You sole control of the defense and settlement of the claim (provided that You may not settle or defend any claim unless You unconditionally release Firelytics Inc. of all liability and such settlement does not affect Firelytics Inc.`s business or Service); (c) provides to You all available information and assistance; and (d) has not compromised or settled such claim.

 

10. Confidential Information.

Each Party acknowledges that it will have access to confidential information from the other in connection with this Agreement.  Each Party agrees that it will not use in any way, for its own account or the account of any third party, except for the performance of this Agreement, nor disclose to any third party (except as required by law or to that Party’s attorneys, accountants and other advisors as reasonably necessary), any of the other Party’s confidential information and will take reasonable precautions to protect the confidentiality of such information.

 

11. Disclaimer of Warranties

Firelytics Inc. AND ITS LICENSORS MAKE NO REPRESENTATION, WARRANTY, OR GUARANTY AS TO THE RELIABILITY, TIMELINESS, QUALITY, SUITABILITY, TRUTH, AVAILABILITY, ACCURACY OR COMPLETENESS OF THE SERVICE OR ANY CONTENT. Firelytics Inc. AND ITS LICENSORS DO NOT REPRESENT OR WARRANT THAT (A) THE USE OF THE SERVICE WILL BE SECURE, TIMELY, UNINTERRUPTED OR ERROR-FREE OR OPERATE IN COMBINATION WITH ANY OTHER HARDWARE, SOFTWARE, SYSTEM OR DATA, (B) THE SERVICE WILL MEET YOUR REQUIREMENTS OR EXPECTATIONS, (C) ANY STORED DATA WILL BE ACCURATE OR RELIABLE, (D) THE QUALITY OF ANY PRODUCTS, SERVICES, INFORMATION, OR OTHER MATERIAL PURCHASED OR OBTAINED BY YOU THROUGH THE SERVICE WILL MEET YOUR REQUIREMENTS OR EXPECTATIONS, (E) ERRORS OR DEFECTS WILL BE CORRECTED, OR (F) THE SERVICE OR THE SERVER(S) THAT MAKE THE SERVICE AVAILABLE ARE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS. THE SERVICE AND ALL CONTENT IS PROVIDED TO YOU STRICTLY ON AN “AS IS” BASIS. ALL CONDITIONS, REPRESENTATIONS AND WARRANTIES, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, INCLUDING, WITHOUT LIMITATION, ANY IMPLIED WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR NON-INFRINGEMENT OF THIRD PARTY RIGHTS, ARE HEREBY DISCLAIMED TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW BY Firelytics Inc. AND ITS LICENSORS.

 

12. Internet Delays

Firelytics Inc.`S SERVICES MAY BE SUBJECT TO LIMITATIONS, DELAYS, AND OTHER PROBLEMS INHERENT IN THE USE OF THE INTERNET AND ELECTRONIC COMMUNICATIONS. Firelytics Inc. IS NOT RESPONSIBLE FOR ANY DELAYS, DELIVERY FAILURES, OR OTHER DAMAGE RESULTING FROM SUCH PROBLEMS.   AS SET FORTH IN SECTION 3, ABOVE, YOU ACKNOWLEDGE THAT THE SERVICE REQUIRES THAT YOU HAVE, AND CONTINUE TO MAINTAIN, SUFFICIENT TELECOMMUNICATIONS ACCESS WHICH WILL ENABLE Firelytics Inc. TO PERFORM UNDER THE TERMS OF THIS AGREEMENT.  YOU REPRESENT AND WARRANT THAT YOUR NETWORK WILL REMAIN IN GOOD WORKING ORDER THAT WILL ENABLE Firelytics Inc. TO PERFORM THE SERVICES PROVIDED FOR IN THIS AGREEMENT.

 

13. Limitation of Liability

IN NO EVENT SHALL EITHER PARTY`S AGGREGATE LIABILITY EXCEED THE AMOUNTS ACTUALLY PAID BY AND/OR DUE FROM YOU IN THE TWELVE (12) MONTH PERIOD IMMEDIATELY PRECEDING THE EVENT GIVING RISE TO SUCH CLAIM. IN NO EVENT SHALL EITHER PARTY AND/OR ITS LICENSORS BE LIABLE TO ANYONE FOR ANY INDIRECT, PUNITIVE, SPECIAL, EXEMPLARY, INCIDENTAL, CONSEQUENTIAL OR OTHER DAMAGES OF ANY TYPE OR KIND (INCLUDING LOSS OF DATA, REVENUE, PROFITS, USE OR OTHER ECONOMIC ADVANTAGE) ARISING OUT OF, OR IN ANY WAY CONNECTED WITH THIS SERVICE, INCLUDING BUT NOT LIMITED TO THE USE OR INABILITY TO USE THE SERVICE, OR FOR ANY CONTENT OBTAINED FROM OR THROUGH THE SERVICE, ANY INTERRUPTION, INACCURACY, ERROR OR OMISSION, REGARDLESS OF CAUSE IN THE CONTENT, EVEN IF THE PARTY FROM WHICH DAMAGES ARE BEING SOUGHT OR SUCH PARTY`S LICENSORS HAVE BEEN PREVIOUSLY ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. NOTWITHSTANDING THE FOREGOING, Firelytics Inc.’S DAMAGES FOR YOUR BREACH OF SECTIONS  2, 3, 5, 7 and 10 SHALL NOT BE LIMITED BY THIS SECTION 13).

 

14. Additional Rights

Certain states and/or jurisdictions do not allow the exclusion of implied warranties or limitation of liability for incidental, consequential or certain other types of damages, so the exclusions set forth above may not apply to You.

 

15. Local Laws and Export Control

This site provides services and uses software and technology that may be subject to United States export controls administered by the U.S. Department of Commerce, the United States Department of Treasury Office of Foreign Assets Control, and other U.S. agencies and the export control regulations of the European Union. The user of this site (“User”) acknowledges and agrees that the site shall not be used, and none of the underlying information, software, or technology may be transferred or otherwise exported or re-exported to countries as to which the United States and/or the European Union maintains an embargo (collectively, “Embargoed Countries”), or to or by a national or resident thereof, or any person or entity on the U.S. Department of Treasury`s List of Specially Designated Nationals or the U.S. Department of Commerce`s Table of Denial Orders (collectively, “Designated Nationals”). The lists of Embargoed Countries and Designated Nationals are subject to change without notice. By using the Service, You represent and warrant that You are not located in, under the control of, or a national or resident of an Embargoed Country or Designated National. You agree to comply strictly with all U.S. and European Union export laws and assume sole responsibility for obtaining licenses to export or re-export as may be required.

 

This site may use encryption technology that is subject to licensing requirements under the U.S. Export Administration Regulations, 15 C.F.R. Parts 730-774 and Council Regulation (EC) No. 1334/2000

 

Firelytics Inc. and its licensors make no representation that the Service is appropriate or available for use in other locations. If You use the Service from outside the United States of America and/or the European Union, You are solely responsible for compliance with all applicable laws, including without limitation export and import regulations of other countries. Any diversion of the Content contrary to United States or European Union (including European Union Member States) law is prohibited. None of the Content, nor any information acquired through the use of the Service, is or will be used for nuclear activities, chemical or biological weapons, or missile projects, unless specifically authorized by the United States government or appropriate European body for such purposes.

 

16. Notice

Firelytics Inc. may give notice by means of a general notice on the Service, electronic mail to Your e-mail address on record in Firelytics Inc.`s account information, or by written communication sent by first class mail or pre-paid post to Your address on record in Firelytics Inc.`s account information. Such notice shall be deemed to have been given upon the expiration of 48 hours after mailing or posting (if sent by first class mail or pre-paid post) or 12 hours after sending (if sent by email). You may give notice to Firelytics Inc. (such notice shall be deemed given when received by Firelytics Inc.) at any time by any of the following:  letter delivered by nationally recognized overnight delivery service or first class postage prepaid mail to Firelytics Inc. at the following address: Firelytics Inc., 812 Proctor Ave. Ogdensburg, NY 13669, USA.

 

17. Modification to Terms

Firelytics Inc. reserves the right to modify the terms and conditions of this Agreement or its policies relating to the Service at any time, effective upon posting of an updated version of this Agreement on the Service. You are responsible for regularly reviewing this Agreement. Continued use of the Service after any such changes shall constitute Your consent to such changes.

 

18. Assignment

This Agreement may not be assigned by You without the prior written approval of Firelytics Inc. but may be assigned without Your consent by Firelytics Inc. to (i) a parent or subsidiary, (ii) an acquirer of assets, or (iii) a successor by merger. Any purported assignment in violation of this section shall be void.

 

19. General

Amendments; Waivers. No amendment, modification, or waiver of any provision of this Agreement shall be binding unless in writing and signed by the Party against whom the operation of such amendment, modification, or waiver is sought to be enforced. No delay in the exercise of any right shall be deemed a waiver thereof, nor shall the waiver of a right or remedy in a particular instance constitute a waiver of such right or remedy generally.

 

Relationship of the Parties.  Nothing in this Agreement will be construed to imply a joint venture, partnership, or agency relationship between the Parties, and Firelytics Inc. will be considered an independent contractor when performing services under this Agreement.

 

Transfer/Assignment.  Client may not transfer (by operation of law or otherwise) or assign its rights or duties hereunder without the prior written consent of Firelytics Inc..  The transfer of control or of a majority interest in Client, however accomplished, and whether in a single transaction or in a series of transactions, will be an assignment of this Agreement requiring Firelytics Inc.’s prior written consent in each instance.  Firelytics Inc. shall have the right to assign its rights and duties hereunder.

 

Force Majeure.  Either Party will not be in default of its obligations to the extent its performance is delayed or prevented by causes beyond its control, including but not limited to acts of God, earthquake, flood, embargo, riots, sabotage, utility or transmission failures, fire or labor disturbances.

 

Governing Law.  This Agreement will be governed by and construed in accordance with the laws of the Province of Ontario, Canada, excluding its conflict of law rules.

 

Venue.  The Venue for any dispute between Firelytics Inc. and Client shall lie exclusively in the United States .

 

Violation of Covenants. The Parties agree that either Party may seek and obtain an injunction in court to enjoin an actual or threatened violation of any of the covenants made by the other Party in this Agreement.

 

Fees.  In the event of a dispute arising under this Agreement, the prevailing Party shall be entitled to recover reasonable attorney’s fees and costs.

 

Severability.  In the event any provision of this Agreement is held by a tribunal of competent jurisdiction to be contrary to the law, the remaining provisions of this Agreement shall not thereby be rendered invalid or unenforceable, provided that the remaining provisions, taken together, provide each Party with substantially all of the benefits such Party reasonably expected hereunder.

 

Counterparts/Facsimile.  This Agreement may be executed in one or more counterparts, each of which shall be deemed an original, and all of which together shall be deemed to be one and the same instrument.  A facsimile transmission of an original signature shall be deemed to be an original signature.

 

Binding Effect and Assignment.  This Agreement shall be binding upon and inure to the benefit of and be enforceable by each of the Parties and their respective successors and assigns.

 

Notices.  All notices called for under this agreement will be in writing and given by personal delivery, certified mail, return receipt requested, or by commercial overnight courier, to the recipient’s address set forth above or to such other address or addresses as either Party may specify in writing to the other.  Notice will be deemed given the date of personal delivery, the third business day after mailing, or the next business day after delivery to such courier (unless the return receipt or the courier’s records evidence a later delivery).

 

Survival.  Sections 2, 3, 5, 7 and 10  and the subsections contained therein will survive any termination of this Agreement.

 

Entire Agreement.  This Agreement and the attached Schedule constitute the entire agreement between the Parties as of the Effective Date and may only be modified by an instrument in writing signed by both Parties. This Agreement cancels and supersedes any and all prior proposals (oral or written), understandings, representations, conditions, warranties, covenants and other communications between the Parties, which relate to the subject matter of this Agreement.

 

20. Definitions

As used in this Agreement and in any Order Forms now or hereafter associated herewith: “Agreement” means these online terms of use, any Order Forms, whether written or submitted online via the Firelytics Inc. Online Order Center, and any materials available on the Firelytics Inc. website specifically incorporated by reference herein, as such materials, including the terms of this Agreement, may be updated by Firelytics Inc. from time to time in its sole discretion; “Content” means the audio and visual information, documents, software, products and services contained or made available to You in the course of using the Service; “Customer Data” means any data, information or material provided or submitted by You to the Service in the course of using the Service; “Customer Premises Equipment” means Fortinet device installed at Your site from which data is sent; “Distributor” means the Firelytics Inc. distributor from which the Services(s) was purchased; “Effective Date” means the earlier of either the date this Agreement is accepted by selecting the “I Accept” option presented on the screen after this Agreement is displayed or the date You begin using the Service; “Intellectual Property Rights” means unpatented inventions, patent applications, patents, design rights, copyrights, trademarks, service marks, trade names, domain name rights, mask work rights, know-how and other trade secret rights, and all other intellectual property rights, derivatives thereof, and forms of protection of a similar nature anywhere in the world; “Firelytics Inc.” means collectively  Firelytics Inc., having its principal place of business at Firelytics Inc.; “Reseller” means the Firelytics Inc. reseller from which the Service(s) was purchased.

“Service(s)” means the standard edition plus any add-ons of Firelytics Inc.`s online Security Intelligence services identified during the ordering process, developed, operated, and maintained by Firelytics Inc., accessible via www.Firelytics.com or another designated web site or IP address, or ancillary services rendered to You by Firelytics Inc., to which You are being granted access under this Agreement, including the Firelytics Inc. and the Content; “User(s)” means Your employees, representatives, consultants, contractors or agents who are authorized to use the Service and have been supplied user identifications and passwords by You (or by Firelytics Inc. at Your request).

 

Questions or Additional Information:

If You have questions regarding this Agreement or wish to obtain additional information, please send an e-mail to: info@Firelytics.com This e-mail address is being protected from spambots. You need JavaScript enabled to view it

Copyright © 2013 Firelytics Inc.