Wide Area File Services (WAFS) and Continuous Data Protection (CDP)
License and Support Agreement
BY INSTALLING OR USING THE ENCLOSED SOFTWARE OR UTILIZING THE REGISTRATION SERIAL NUMBER ISSUED BY GLOBALSCAPE, INC. ("GLOBALSCAPE"), YOU AGREE AND ARE SUBJECT TO THE SOFTWARE LICENSE TERMS SET FORTH BELOW. If you do not agree to the terms of this Agreement, do not install the Software or use any registration serial 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.
This Software is licensed by GlobalSCAPE, not sold. You may use this Software only as described in this agreement.
1. SOFTWARE. The capitalized term "Software" refers to the object code for the computer programs known as Wide Area File Services (or WAFS) and/or Continuous Data Protection (or CDP) (as may be set forth in your invoice or sales receipt transmitted to you at the time of purchase) and any updates, supplemental code or programs provided to you by GlobalSCAPE with or in connection with WAFS and CDP, 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 Agent Program, and may include optional add-on modules as may be set forth in your invoice or sales receipt transmitted to you at the time of purchase.
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 install and 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.
ii) AGENT PROGRAM. You may use one copy of the Agent Program on that number of server computers for which you have purchased a separate license as indicated on your invoice or sales receipt.
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. ACTIVATION. Evaluation Software is activated automatically upon installation. To use the Software after the trial period, you must activate the Standard License for the Software by entering a properly issued registration serial number as prompted by the Software and as otherwise instructed by GlobalSCAPE. Your failure to correctly follow activation procedures is a material breach of this Agreement.
D. TERM. The term of the license for any component of the Software is as indicated on your invoice or sales receipt or, if not otherwise specified, perpetual.
3. RIGHT TO COPY FOR 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 distributed by GlobalSCAPE identified as an upgrade, or new version, you must first be licensed for the Software identified by GlobalSCAPE as eligible for the upgrade and must be current on all applicable payments of licensing or support fees. After upgrading, you may no longer use the Software that formed the basis for your upgrade eligibility and the license for that Software shall be deemed immediately terminated upon your installation of the upgrade.
5. TRANSFER. You may not rent, lease, lend or sublicense the Software. You may, however, make a one-time permanent assign 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, all modules you purchase in conjunction with the Software, 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 assign such license to only one transferee who receives all associated rights.
Notwithstanding anything else in this agreement to the contrary, an Evaluation License for the Software may be used only for testing, demonstration or evaluation and may not be sold or transferred to another person in any manner.
Transfer in violation of this agreement, in whole or in part, will be void ab initio.
6. INFORMATION COLLECTION AND PRIVACY. The Software may identify and report to GlobalSCAPE its license key, software version, IP address, server name, server port number, and operating system type. GlobalSCAPE uses this information to count installations, detect piracy of the Software, and develop rough statistical data regarding the geographic location of its 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 services in support of GlobalSCAPE's business purposes, including product support and development. In addition to as otherwise provided herein, GlobalSCAPE’s policies related to this information are as is further provided in the Privacy Policy available at www.globalscape.com.
7. RESTRICTIONS. You may not reduce the Software to human readable (or source code) form, reverse engineer, de-compile, disassemble, merge, adapt, or modify the Software, except and only to the extent that such activity is expressly required to be 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, in violation of any laws related to the transfer of encrypted data or for any other 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 Maintenance and Support Guide accessible from http://www.globalscape.com/files/WAFS_CDP_Support_Guide.pdf (the "Guide") as of the date of your acceptance of this Agreement and as set forth in your invoice or sales receipt. The term of the M & S Plan may vary and is specified on your invoice or sales receipt. To be eligible for maintenance and technical support services, the Server Program, the Agent Program, as well as all associated add-on modules must be covered by an active maintenance and support plan. Please contact GlobalSCAPE if you would like to extend the term of your M & S Plan.
9. PAYMENT TERMS. If GlobalSCAPE has agreed to invoice you for license fees or fees applicable to your M & S Plan, 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 commercially 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 should retain your authorization to use the Software at a specified level. That level may be measured, for example, by the number of servers, processors or users and may be set forth on your invoice or sales receipt. 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 processors for which you have purchased a license. You further agree that GlobalSCAPE may during normal business hours and with reasonable prior notice, request and gain access to your premises for the limited purpose of conducting an inspection to determine and verify your compliance with this Agreement and your level of authorized use. The inspection will be conducted no more than once per year and in a manner not intended to disrupt your business and will be restricted in scope and duration to that reasonably necessary to achieve its purpose.
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. Termination of this Agreement shall not release you from any liability which, at the time of termination, has already accrued or which thereafter may accrue with respect to any act or omission before termination, or from any obligation which is expressly stated in this Agreement to survive termination. The provisions in Sections 6, 7, 9, 12, 13, 15, 16, and 18 shall survive the termination of this Agreement.
13. INTELLECTUAL PROPERTY; CONFIDENTIALITY. 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 and all derivatives thereof are protected by United States copyright, patent and trademark law and rights granted by international treaties related to intellectual property rights. The Software is copyright © 1999-2012 GlobalSCAPE, Inc. All rights reserved.
You will keep confidential and refrain from disclosing any and all technical information, know-how, and inventions disclosed by GlobalSCAPE in relation to this agreement and the license granted hereunder, except when, after, and to the extent that the information, know-how, and inventions are generally known to the public.
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, but may not be limited to, Cuba, Iran, Libya, North Korea, Syria and Sudan. You shall indemnify and hold GlobalSCAPE harmless in connection with any breach of this Section.
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, QUALITY, PERFORMANCE 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. GLOBALSCAPE DOES NOT MAKE ANY EXPRESS OR IMPLIED WARRANTY, REPRESENTATION OR ENDORSEMENT TO YOU OR ANY THIRD PARTY WHATSOEVER WITH REGARD TO ANY DATA CAPTURED, TRANSFERRED, ACCESSED OR SHARED USING THE SOFTWARE AND SHALL NOT BE LIABLE TO YOU OR ANY THIRD PARTY FOR ANY COST OR DAMAGE ARISING, EITHER DIRECTLY OR INDIRECTLY, FROM ANY LOSS OF DATA. SOME STATES DO NOT ALLOW LIMITATIONS ON IMPLIED WARRANTIES SO THESE LIMITATIONS MAY NOT APPLY TO 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, INCLUDING, WITHOUT LIMITATION, DAMAGES FOR LOSS OF PROFITS, LOSS OF OR DAMAGE TO DATA, GOODWILL, WORK STOPPAGE, COMPUTER FAILURE OR MALFUNCTION, SECURITY BREACHES RESULTING IN DISCLOSURE OF CONFIDENTIAL INFORMATION OR ANY AND ALL OTHER DAMAGES OR LOSSES, EVEN IF GLOBALSCAPE HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF LIABILITY FOR INCIDENTAL, SPECIAL, OR CONSEQUENTIAL DAMAGES, SO THE ABOVE LIMITATION MAY NOT APPLY TO YOU. 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, Inc., 4500 Lockhill-Selma Road, Suite 150, San Antonio, Texas, 78249, USA.
18. MISCELLANEOUS. The laws of the State of Texas, excluding its conflicts laws, shall govern this agreement the rights and obligations of the parties hereto, the entire relationship between the parties hereto, and all matters arising out of or relating to this agreement. GlobalSCAPE may seek injunctive relief in court to prevent imminent harm. This agreement is not governed by the United Nations Convention on Contracts for the International Sale of Goods. You agree that this agreement shall be fully performable in Bexar County, Texas and submit to the non-exclusive jurisdiction of, and agree that venue is proper in, state or federal courts in Bexar County, Texas in any legal action or proceeding relating to this Agreement. You may bring any action under this Agreement for any cause whatsoever more than one (1) year after the occurrence giving rise to such cause of action. 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 applicable invoice or sales receipt as issued by GlobalSCAPE or the fees set forth on the GlobalSCAPE Web site, 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. In the case of a conflict between this Agreement and the invoice or sales receipt (or in the absence of an invoice or sales receipt, the fees set forth on the GlobalSCAPE Website), the invoice shall control. In the case of a conflict between this Agreement and the M&S Plan, this Agreement shall control. This agreement may only be modified by a written document signed by GlobalSCAPE. No GlobalSCAPE reseller or distributor is authorized to change the terms of this agreement. If any portion hereof is found to be void or unenforceable, then such provision shall be reformed without further action by the parties to the extent necessary to make such provision valid and enforceable when applied to such facts or circumstances, with the objective of achieving as nearly as legally possible the same effect. Failure to exercise or delay in the exercise of any right or remedy under this agreement shall not operate as a waiver thereof. If you are located outside the United States, then the following provision applies: Les parties aux présentes confirment leur intention que cette convention ainsi que tous les documents afférents soient redigés dans la 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 with copy to legal@globalscape.com.
Please print a copy of this agreement for your records.
Rev. 2/16/2012