GlobalSCAPE, Inc. ("GlobalSCAPE")
Secure FTP Server, version 3.3
License and Support Agreement
This Software is licensed, not sold. You may use this Software only as described in this agreement.
If you do not agree to the terms of this agreement, do not install the Software or use any registration number that was provided with the Software. You may return the Software to the place of purchase for a refund if you have not used the registration serial number.
1. SOFTWARE. The capitalized term "Software" refers to the object code for the computer program known as Secure FTP Server Version 3, any updates, supplemental code or programs provided to you by GlobalSCAPE with or in connection with Secure FTP Server Version 3, such as the user's manual and Help file, any components, any related media and printed materials, and any related online or electronic documentation. The Software includes two basic components, the Server Program and the Administrator Interface, and may include optional add-on modules.
2. GRANT OF LICENSE.
A. Evaluation License. If you acquired the license for any component of the Software on an evaluation or trial basis, you may use the Software without charge for the evaluation period. Your evaluation period begins on the day you install the Software. You must pay the license fee and activate your copy in the manner required below to continue to use the Software after the evaluation period. An evaluation license for the Software may not be transferred to any other person.
B. Standard License.
i) Server Program. You may use one copy of the Server Program on that number of server computers for which you have purchased a separate license as indicated on your invoice or sales receipt. A server computer may include up to two processors on a single server computer.
ii) Administrator Interface. For so long as you are licensed to use the Server Program, you may copy, install and use the Administrator Interface on as many computers as you wish.
iii) Optional Add-On Modules. Add-on modules may be used on that number of computers for which you have purchased a separate license as indicated on your invoice or sales receipt.
C. Standby License. If you have purchased a license to use the Server Program or an add-on module on a non-production basis, then you may use the Server Program or add-on module so licensed only as follows:
i) On a standby computer that is not processing inbound traffic or doing work of any kind except in the event that, and only for so long as, the primary production server with which it is associated is offline; or
ii) On a server used solely for testing or evaluation that does not process actual inbound traffic.
D. Activation. You must activate the evaluation or standard license for the Software by entering the evaluation or registration serial number as prompted by the Software and as otherwise instructed by GlobalSCAPE. Your failure to correctly follow activation procedures is a breach of this license.
E. Term. The term of the license for any component of the Software is perpetual unless you purchased a limited term license as indicated on your invoice or sales receipt.
3. RIGHT TO COPY OR BACKUP. You may make one copy of the Software or the installation media for the Software for back-up or archival purposes at no additional charge.
4. UPGRADES. To use Software identified as an upgrade, you must first be licensed for the software identified by GlobalSCAPE as eligible for the upgrade. After upgrading, you may no longer use the software that formed the basis for your upgrade eligibility and the license for that software terminates.
5. TRANSFER. You may not rent, lease, lend or sublicense the Software. You may, however, make a one-time permanent transfer of all of your license rights to the Software to another party, provided that: (a) the transfer must include all of the Software, including all component parts, programs, media, printed materials, all registration serial numbers and this license; (b) you do not retain any copies of the Software, full or partial, including copies stored on a computer or other storage device, and (c) the person to whom you transfer the Software agrees to be bound by the terms of this license. If you purchased the license for the Software on a multi-computer basis-that is, one registration serial number valid for the number of computers indicated on your invoice-you may permanently transfer your rights to one person only.
6. INFORMATION COLLECTION AND PRIVACY. The Software includes a feature that assigns a unique identifier to your computer based on system information. The Software reports this identifier to GlobalSCAPE either when you install the Software, enter your evaluation serial number, or enter your registration serial number, or all of these. During the evaluation period, the Software will contact our registration and activation servers periodically to verify that the Software is still eligible for use on an evaluation basis. The Software may also identify and report to us your Windows language identifier setting, IP address, and the date and time of installation and/or activation. GlobalSCAPE uses this information to count installations, detect piracy of the Software, and develop rough statistical data regarding the geographic location of the Software users. GlobalSCAPE may tie this information to personally identifiable information it has about you. GlobalSCAPE may use any non-proprietary information you provide as part of obtaining support services for GlobalSCAPE's business purposes, including product support and development.
7. RESTRICTIONS. You may not reduce the Software to human readable form, reverse engineer, de-compile, disassemble, merge, adapt, or modify the Software, except and only to the extent that such activity is expressly permitted by applicable law notwithstanding this limitation. You may not use the Software to perform any unauthorized transfer of information, such as copying or transferring a file in violation of a copyright, or for any illegal purpose.
8. MAINTENANCE AND TECHNICAL SUPPORT SERVICES. If you purchased a maintenance and support plan ("M & S Plan"), GlobalSCAPE shall provide the support services at the level agreed by you and GlobalSCAPE and as defined in the GlobalSCAPE Plan Ahead Priority Maintenance and Support page accessible at http://www.globalscape.com/support/priority_support.asp as of the date of your acceptance of this Agreement. The term of the M & S Plan may vary and is specified on your invoice. To be eligible for maintenance and technical support services, the server program as well as all associated add-on modules must be covered by an active maintenance and support plan.
9. PAYMENT TERMS. If GlobalSCAPE has agreed to invoice you for license fees or support services, invoices shall be transmitted on the date of issuance via electronic or postal mail to the primary or billing contact listed on your account. Unless otherwise agreed to in writing, full payment is due within thirty (30) days from invoice date. Amounts not paid when due shall bear interest at 1.5% per month, or the highest non-usurious rate permitted under applicable law, whichever is less. If GlobalSCAPE is required to take legal action to collect any overdue amount, you shall also pay GlobalSCAPE's reasonable costs of collection, including reasonable attorney fees.
10. SECURITY. The Software creates a means for others to gain access to your computer. Although we have taken reasonable measures to prevent unauthorized persons from gaining access to your computer via the Software, we cannot foresee or control the actions of third parties. Therefore, use of the Software will make you vulnerable to security breaches that you might not otherwise face and could result in the loss of your privacy or property. You agree that GlobalSCAPE is not liable to you for security breaches resulting from your use of the Software or otherwise. Use of secure passwords and keeping passwords confidential are not the responsibility of GlobalSCAPE or the Software.
11. AUDIT. You agree that on GlobalSCAPE's request you will certify in writing your compliance with the terms of this agreement, including your use of the Software only on or in connection with the number of computers licensed.
12. TERMINATION. This agreement terminates if you fail to comply with its terms and conditions. If your agreement terminates, you must destroy all copies of the Software. The termination of this agreement does not limit GlobalSCAPE's other rights it may have by law.
13. INTELLECTUAL PROPERTY. You acknowledge that you have only the limited, non-exclusive right to use and copy the Software as expressly stated in this agreement and that GlobalSCAPE retains title to the Software and all other rights not expressly granted. You agree not to remove or modify any copyright, trademark, patent or other proprietary notices that appear, on, in or with the Software. The Software is protected by United States copyright, patent and trademark laws and international treaty provisions.
14. EXPORT RESTRICTIONS. You may not export or re-export the Software in violation of the export laws of the United States, or the applicable laws of any other jurisdiction. Among other things, U.S. laws provide that the Software may not be exported or re-exported to certain countries that are embargoed or restricted, or to certain restricted persons. Embargoed and restricted countries currently include Cuba, Iran, Libya, North Korea, Syria and Sudan. THE SOFTWARE CONTAINS ENCRYPTION TECHNOLOGY THAT IS CONTROLLED FOR EXPORT BY THE U.S. GOVERNMENT UNDER THE EXPORT ADMINISTRATION ACT. In addition to other restrictions described in this section, you may not use the Software, or export the Software to any destination where you know or have reason to know that the Software may be used, in connection with the proliferation of nuclear, chemical or biological weapons or missiles.
15. NO WARRANTIES. TO THE EXTENT PERMITTED BY APPLICABLE LAW, THE SOFTWARE AND ANY SUPPORT SERVICES ARE PROVIDED "AS IS" WITHOUT WARRANTY OF ANY KIND, EITHER EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NONINFRINGEMENT. IF APPLICABLE LAW REQUIRES A WARRANTY, THE REQUIRED WARRANTY IS LIMITED TO NINETY (90) DAYS FROM YOUR RECEIPT OF A COPY OF THE SOFTWARE. COMPUTER PROGRAMS ARE INHERENTLY COMPLEX, AND THE SOFTWARE MAY NOT BE FREE OF ERRORS. THE SOFTWARE IS PROVIDED WITH ALL FAULTS AND THE ENTIRE RISK AS TO SATISFACTORY QUALITY, PERFORMANCE, ACCURACY AND EFFORT IS WITH YOU.
16. LIMITATION OF LIABILITY. GLOBALSCAPE IS NOT LIABLE TO YOU FOR ANY PUNITIVE, CONSEQUENTIAL, SPECIAL, INCIDENTAL, OR INDIRECT DAMAGES OF ANY KIND ARISING OUT OF THE DELIVERY, PERFORMANCE, OR USE OF THE SOFTWARE, EVEN IF GLOBALSCAPE HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. UNLESS APPLICABLE LAW PROVIDES OTHERWISE, GLOBALSCAPE'S LIABILITY FOR ANY CLAIM RELATED TO YOUR PURCHASE OF A LICENSE FOR OR USE OF THE SOFTWARE AND RELATED SUPPORT SERVICES, WHETHER IN CONTRACT, TORT, OR ANY OTHER THEORY OF LIABILITY WILL NOT EXCEED THE GREATER OF U.S. $5.00 OR THE FEES PAID BY YOU UNDER THIS AGREEMENT.
17. U.S. GOVERNMENT. The Software is commercial computer software developed solely at private expense. The rights of civilian and non-civilian agencies of the U.S. Government to use, disclose and reproduce the Software are governed by the terms of this agreement. Publisher is GlobalSCAPE Texas, LP, 6000 Northwest Parkway, Suite 100, San Antonio, Texas, 78249, USA.
18. MISCELLANEOUS. This agreement is governed by the laws of the State of Texas, and the laws of the United States of America, as applicable. This agreement is not governed by the United Nations Convention on Contracts for the International Sale of Goods. You agree to submit to the jurisdiction of courts sitting in the State of Texas for all purposes. SOLE AND EXCLUSIVE VENUE FOR ANY DISPUTE ARISING UNDER OR RELATING TO THIS AGREEMENT SHALL BE IN A COURT SITTING IN BEXAR COUNTY, SAN ANTONIO, TEXAS. This agreement constitutes the complete and exclusive agreement between us, notwithstanding any provision in any purchase order or other written document, except for: (i) the definition of any evaluation period, limited license term, and fees and terms for maintenance or support services or additional software components that may appear on the GlobalSCAPE Web site or other documentation provided to you, and (ii) the statement of the number of separate computers or concurrent users for which you have paid a license fee as described in Section 2, above. Notwithstanding anything else in this agreement to the contrary, a license for the Software provided on a free, promotional or "not-for-resale" (NFR) basis may be used only for testing, demonstration or evaluation and may not be sold or transferred to another person in any manner. This agreement may only be modified by a written document signed by GlobalSCAPE. No GlobalSCAPE dealer or distributor is authorized to change the terms of this agreement. If any provision of this agreement is held to be unenforceable, the remainder of the agreement shall not be affected, and the unenforceable provision shall be reformed to the extent necessary to make the provision enforceable. If you are located outside the United States, then the following provision applies: Les parties aux présentés conferment leur volonté que cette convention de même que tous les documents y compris tout avis qui SHY rattaché, soient redigés en langue anglaise. (Translation: "The parties confirm that this agreement and all related documentation is and will be in the English language.")
Should you have any questions concerning this agreement, or if you desire to contact GlobalSCAPE for any reason, please contact GlobalSCAPE by mail at: 4500 Lockhill-Selma Road, Suite 150, San Antonio, Texas, 78249, USA, by telephone at: +1 (210) 308-8267, or by electronic mail from: http://www.globalscape.com.