Kenetix End User License Agreement

Terms of Service
END USER LICENSE AGREEMENT

Change Log (Last Updated: September 18, 2016)
Version 1.0 (6/27/2017) – first published.

This End User License Agreement (“EULA”) is an agreement that governs your use of the Kenetix software (“Software”) either on a licensed basis or as a Software as a Service offering (as set forth in your applicable Order Form), and is an agreement between the individual or entity of which you are a duly authorized employee or agent as the party accessing the Software (“Licensee”) and Globalscape, Inc. (“Globalscape”) collectively referred to as “Parties”. This EULA shall govern Licensee’s initial purchase on the Effective Date as well as any future purchases made by Licensee which reference this EULA. This EULA covers all major and minor releases of Software. Globalscape provides the Software listed on an Order Form on a subscription basis. By downloading, installing, accessing or using Globalscape Software or services, Licensee is agreeing to these terms.

Definitions:
"Subscription Term" is defined on Order Form and means the period for which Licensee is granted the License to use the Kenetix Software, subject to the terms and restrictions as set forth in this EULA.
“Order Form” means a Globalscape order form containing the statement of the Software license type, applicable fees, number of users licensed and other limitations, the Subscription Term and accepted by both Parties, pursuant to which Licensee may order the Kenetix Software from Globalscape. Globalscape Site shall mean the corporate web-site of Globalscape located at www.globalscape.com and all web resources associated with it.

1. LICENSE
1.1 License Grant. If the Order Form specifies that the Licensee may obtain an object code copy of Globalscape software for installation on Licensee-owned hardware, subject to all of the terms and conditions of this EULA; during the Subscription Term, Globalscape grants to Licensee a non-transferable, non-sub-licensable, non-exclusive, limited license to install a single copy of the Software specified in an Order Form for Licensee’s internal business purposes for the sole benefit of Licensee.

1.2 Evaluation Licenses. In the event a trial or evaluation version of the Software is obtained, then such use is solely for use in a non-production environment for a limited time period (the “Trial Period”). Notwithstanding any other provision in this EULA, evaluation versions are provided “AS-IS” without indemnification, support, or warranty of any kind, expressed or implied. All such licenses expire at the end of the Trial Period. Evaluation Terms, including but not limited to length of Evaluation Period, will be set on an Order Form. If the length is not explicitly stated, then the period is 21 days from activation. Once the trial period has expired, certain features may not be accessible and Licensee will be required to subscribe to a paid version of the Software to access them.

1.3 Authorized Use. The Software may be used only by Licensee, for the benefit of Licensee, to process Licensee’s own data for Licensee’s own internal operations. The Software may also be used by Licensee contractors under obligation of Nondisclosure solely for the benefit of Licensee. Licensee shall ensure that each person authorized to use the Software under the terms of this EULA is informed of and agrees to conform to the obligations of the Licensee hereunder.

1.4 Assignment. Licensee may not assign this EULA or any rights or obligations under this EULA without the prior written consent of Globalscape. Globalscape may assign this EULA and its rights and/or obligations to any other party at its discretion.

1.5 Use Guidelines. Licensee may not (a) use the Software to offer data processing services to third parties, including but not limited to outsourcing or service bureau use, (b) use the Software in contravention of any applicable laws or government regulations, (c) reverse engineer, distribute, or otherwise tamper with or create copies of the Software unless otherwise permitted to do so.

Globalscape reserves the right to impose certain technical restrictions on the Software, such as rate limits on the execution of an integration created in the Software, amount of data transported, and other similar restrictions if Globalscape deems usage to be illegal or otherwise not in compliance with this EULA. Globalscape may revoke the license to the Software at any time, at which point the liability to the Licensee will be limited to that found within Section 6.

1.6 Subscription Term and Renewal. The length of the Subscription Term shall be designated in the Order Form. In the absence of an Order Form, the license is limited to use for evaluation purposes as set forth in Section 1.2.  Globalscape does not guarantee the same Subscription Terms for renewed Subscription. If the Licensee intends not to renew, Licensee agrees to cease using Software at the expiration of the Subscription Term and will certify cessation of use to Globalscape, its licensors and/or distributors.

1.7 Software as a Service. When using Software that is hosted by Globalscape (“Software as a Service” or “Service”), the following terms apply to Licensees.

Licensee agrees to: (1) protect their password, applicable devices and account from all unauthorized use; (2) be solely responsible for the security of login information and acknowledge that Globalscape is not responsible for any losses incurred by Licensee as a result of failing to protect their login information; (3) notify Globalscape of any activity which is believed to be suspicious and in specific, which may be unlawful or unauthorized by Globalscape; and (4) notify Globalscape of any security-related deficiencies or concerns related to the Software as Licensee becomes aware of any such issues. To notify Globalscape, please complete an online contact submission form or email security@Globalscape.com.

Licensee agrees not to: (1) use the Service in a way that violates any applicable laws or regulations; (2) use Globalscape to facilitate the transmission or dissemination of anything violent, threatening, pornographic, racist, hateful, or otherwise objectionable according to the opinion of Globalscape or its delegates; (3) infringe on anyone’s intellectual property rights, defame anyone, impersonate anyone, or otherwise violate the rights of a third party; (4) hack, crack, phish, SQL inject, or otherwise compromise the security or integrity of the Globalscape Site, Service, or Licensee’s computers; and (5) do anything else which could bring Globalscape into disrepute or violate the rights of any person.

2. SUPPORT AND MAINTENANCE
Globalscape shall make available to Licensee the support and maintenance services set forth at the following URL, http://dynamic.globalscape.com/files/GS_Support_Guide.pdf, (“Support”) for as long as the Software is in use by Licensee during the Subscription Term.
 
3. ADDITIONAL SERVICES
The parties may agree to have Globalscape perform certain additional services for Licensee (e.g., implementation, training, or installation services in connection with the Software, etc.) (“Additional Services”), by describing such Additional Services and any fees therefor on (1) an Order Form, or (2) on a separate, mutually-executed Statement of Work which references this EULA (each, an “SOW”, which upon mutual execution, will be incorporated into and form a part of the EULA). Upon payment of any applicable fees set forth in the applicable Order Form and/or SOW (which shall be paid in accordance with the negotiated Master Services Agreement “MSA”, or Section 5, if no MSA has been defined), Globalscape agrees to use reasonable commercial efforts to provide the Additional Services described therein for the term specified therein (if any). If Globalscape provides Additional Services beyond those agreed in an Order Form or SOW (including, without limitation, in excess of any hours estimate set forth therein), Licensee will pay Globalscape at its then-current hourly rates for professional services.

4. LIMITATION OF LIABILITY
GLOBALSCAPE AND ITS PARTNERS, SUPPLIERS, AND DISTRIBUTORS MAKE NO REPRESENTATIONS OR WARRANTIES AS TO THE MERCHANTABILITY OF THE SOFTWARE OR FITNESS FOR ANY PARTICULAR PURPOSE. LICENSEE AGREES TO RELEASE GLOBALSCAPE AND ITS PARTNERS, SUPPLIERS, AND DISTRIBUTORS FROM ANY LIABILITY THAT GLOBALSCAPE MAY OTHERWISE HAVE TO LICENSEE IN RELATION TO OR ARISING FROM THIS EULA OR THE SOFTWARE, FOR REASONS INCLUDING, BUT NOT LIMITED TO, FAILURE OF THE SOFTWARE, NEGLIGENCE, OR ANY OTHER TORT. TO THE EXTENT THAT APPLICABLE LAW RESTRICTS THIS RELEASE OF LIABILITY, LICENSEE AGREES THAT GLOBALSCAPE AND ITS PARTNERS, SUPPLIERS AND DISTRIBUTORS ARE ONLY LIABLE TO LICENSEE FOR THE MINIMUM AMOUNT OF DAMAGES THAT THE LAW RESTRICTS GLOBALSCAPE’S LIABILITY TO, IF SUCH A MINIMUM EXISTS, AND AGGREGATE GLOBALSCAPE’S LIABILITY ARISING OUT OF OR RELATED TO THIS EULA, WHETHER IN CONTRACT, TORT OR UNDER ANY OTHER THEORY OF LIABILITY, SHALL NOT EXCEED THE AMOUNTS ACTUALLY PAID BY AND DUE FROM LICENSEE IN THE 12 MONTH PERIOD IMMEDIATELY PRECEDING THE EVENT GIVING RISE TO THE LIABILITY.

LICENSEE AGREES THAT GLOBALSCAPE IS NOT RESPONSIBLE IN ANY WAY FOR DAMAGES CAUSED BY THIRD PARTIES WHO MAY USE THE SOFTWARE, INCLUDING BUT NOT LIMITED TO PEOPLE WHO COMMIT INTELLECTUAL PROPERTY INFRINGEMENT, DEFAMATION, TORTIOUS INTERFERENCE WITH ECONOMIC RELATIONS, OR ANY OTHER ACTIONABLE CONDUCT TOWARDS LICENSEE.


GLOBALSCAPE IS NOT LIABLE FOR ANY FAILURE OF THE GOODS OR SERVICES OF THE GLOBALSCAPE COMPANY OR A THIRD PARTY, INCLUDING ANY FAILURES OR DISRUPTIONS, UNTIMELY DELIVERY, SCHEDULED OR UNSCHEDULED, INTENTIONAL OR UNINTENTIONAL, ON THE GLOBALSCAPE SERVICE WHICH PREVENT ACCESS TO THE SOFTWARE TEMPORARILY OR PERMANENTLY.
THE SOFTWARE IS PROVIDED ON AN AS IS, WHERE IS BASIS, AND LICENSEE AGREES THAT GLOBALSCAPE IS NOT LIABLE TO LICENSEE FOR ANY DOWNTIME CAUSED FOR SECURITY, MAINTENANCE, TECHNICAL, LEGAL OR OTHER REASONS, NOR IS GLOBALSCAPE LIABLE TO LICENSEE IF THE SOFTWARE FAILS TO FUNCTION AS EXPECTED.

THE PROVISION OF THE SOFTWARE TO LICENSEE IS CONTINGENT ON AGREEMENT WITH THIS AND ALL OTHER SECTIONS OF THIS EULA. NOTHING IN THE PROVISIONS OF THIS SECTION SHALL BE CONSTRUED TO LIMIT THE GENERALITY OF THE FIRST PARAGRAPH OF THIS SECTION.

5. PAYMENTS
All fees are as set forth in the applicable Order Form (“License Fees”) and shall be paid by the Licensee.
5.1 Payment Terms. Prices and additional terms may be published on the Globalscape Site or negotiated with Globalscape on a case-by-case basis. Whether prices are posted on the Globalscape Site or communicated to the Licensee as a custom price, the prices and additional associated terms and conditions are hereby incorporated into this EULA by reference. Unless otherwise stated, all prices are listed in United States dollars.

The Licensee acknowledges and agrees that Globalscape may charge for the amount of any applicable taxes or duties incurred by Globalscape as a result of the transaction.

6. TERMINATION & CANCELLATION
Licensee may terminate this EULA at any time by providing written notice to Globalscape of the decision to terminate. Licensee’s financial obligation will terminate upon the expiration of the then current Subscription Term as specified on the Order Form.

Without prejudice to any other rights, this EULA will terminate automatically without notice to the Licensee if it is determined the Licensee has breached or failed to comply with any of the limitations or other requirements described herein, including the payment of any applicable fees or in the event Globalscape determines that continued access would cause harm to Globalscape, the systems in-use, or any third party.  Globalscape will use commercially-reasonable efforts to provide Licensee with ninety (90) days notice of termination or suspension of service. and the opportunity to request restoration of access if, in Globalscape’s sole discretion, it is deemed appropriate. Further, the Licensee acknowledges and agrees that Globalscape’s decision to take certain actions, including limiting access to the Software, may be based on confidential criteria that is essential to the management of risk and the security of Licensees’ Accounts and the Globalscape system and that Globalscape is under no obligation to disclose the details of its risk management or its security procedures to the Licensee.

Upon any termination or expiration of the EULA for any reason, Licensee agrees to uninstall the Software and either return to Globalscape the Software, Documentation, and all license keys that have been obtained, or to destroy all such materials and provide written verification of such destruction to Globalscape. Any terms of this EULA which by their nature extend beyond its termination shall remain in effect.

Under no circumstances, including termination or cancellation of the Software to Licensee, will Globalscape be liable for any losses related to actions of other Licensees. The Licensee agrees that Globalscape are not liable for the deletion of any Licensee-owned content upon such termination or cancellation.

7. PROPRIETARY RIGHTS
Title and full ownership rights to the Software and all intellectual property rights therein including patent, copyright, trademark and trade secret rights shall remain with Globalscape. Globalscape reserves all rights granted to it under copyright, patent and other intellectual property laws.

7.1 Copyright. Licensee acknowledges and agrees not to copy, distribute, display, disseminate, or otherwise reproduce any of the information on the Software without prior written consent from Globalscape. All text, audio, video, public relations, datasheets, and other information created by Globalscape remain the sole property of Globalscape.

7.2 Trademark. Licensee acknowledges and agrees not to use the Globalscape trademark, or copy the look and feel of the Software or its design, without prior written consent. Under no circumstances may the Software be used for, or otherwise disclosed to a competitor of Globalscape.

8. CONFIDENTIALITY
Confidential Information. "Confidential Information" means (a) all information disclosed in tangible form by Licensee which is marked "confidential" or "proprietary;" (b) all oral and intangible information disclosed by Licensee which is designated as "confidential" or "proprietary;" (c) any information that, based on the circumstances under which it was disclosed, a reasonable person would believe to be confidential at the time of disclosure; (d) the terms of this EULA; and (e) the source code of the Software. Licensee’s Confidential Information may include, but is not limited to information regarding Licensee’s systems, networks, and business and technical requirements that may be disclosed in connection with the Software, the Services, or this EULA. Confidential Information does not include any information that: (i) is in the possession of the party receiving such information (the “Receiving Party”) at the time of disclosure as demonstrated by its written records; (ii) before or after it has been disclosed to the Receiving Party, enters the public domain through no wrongful act of the Receiving Party; (iii) is disclosed to the Receiving Party by a third party not in violation of any obligation of confidentiality; or (iv) is independently developed by the Receiving Party without use of or reference to Confidential Information of the Disclosing Party

Protection of Confidential Information. The Receiving Party will not use any Confidential Information of the party disclosing such Confidential Information (the “Disclosing Party”) for any purpose other than performing its obligations or exercising its rights under this EULA, and will disclose the Confidential Information of the Disclosing Party only to Receiving Party’s employees, agents, and Globalscape on a “need to know” basis, provided such persons are under a contractual obligation with the Receiving Party to maintain the confidentiality of such Confidential Information, which obligation is consistent with, and no less protective of Confidential Information than the terms of this Section. The Receiving Party will protect the Disclosing Party’s Confidential Information from unauthorized use, access, or disclosure in the same manner as the Receiving Party protects its own confidential or proprietary information of a similar nature and with no less than reasonable care. Notwithstanding the foregoing, Confidential Information may be disclosed as required by law or by order of a court of competent jurisdiction. In such event and if reasonably possible under the circumstances of disclosure, the Receiving Party will provide the Disclosing Party with prompt prior notice of such obligation in order to permit the Disclosing Party an opportunity to take legal action to prevent or limit the scope of such disclosure.

Return of Confidential Information. The Receiving Party will return to the Disclosing Party all Confidential Information of the Disclosing Party in the Receiving Party’s possession or control and permanently erase all electronic copies of such Confidential Information promptly upon the expiration or termination of this EULA, or in the case of Licensee’s Confidential Information, promptly upon Licensee’s earlier request. At the Disclosing Party’s request, the Receiving Party will certify in writing that it has fully complied with its obligations under this Section.

9. EXPORT CONTROL
The Software contains encryption technology that is controlled for export by the U.S. Government. Licensee agrees to comply fully with all relevant export laws and regulations of the United States ("Export Laws") to assure that (i) the Software is not exported, directly or indirectly (including as a result of providing access to the Software to a national or resident of and embargoed or restricted country), in violation of Export Laws, or the applicable laws of any other jurisdiction or (ii) or provided to anyone on the U.S. Treasury Department's list of Specially Designated Nationals or the U.S. Commerce Department's Table of Denial Orders or Entity List. Among other things, the Export 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 are not limited to Iran, Libya, North Korea, Syria, and Sudan. In addition to other restrictions described in this Section, Licensee may not use the Software, or export the Software to any destination where Licensee knows or has reason to know that the Software may be used, in connection with the proliferation of nuclear, chemical, or biological weapons or missiles. Licensee shall indemnify and hold Globalscape harmless in connection with any breach of this Section.
 
10. THIRD PARTY SOFTWARE
The Software which is distributed to Licensee contains various Open Source Software components (“OSS” or “Third Party Software” and together with the Software, the “Package”) which are provided under separate license terms, as may be described in more detail under the applicable OSS license terms located in the “Open_Source_Licenses.txt” file (if applicable) included in or along with the Software. Information regarding Third Party Software included in the Package is also available on the Globalscape website at https://www.globalscape.com. Licensee is permitted to use the Third-Party Software in conjunction with the Software, provided that such use is in compliance with all applicable OSS terms and conditions, which shall take precedence over this EULA, solely with respect to such OSS.


11. INDEMNIFICATION
Each party shall indemnify and hold harmless the other party, its Affiliates, and its and their directors, officers, employees and agents from and against all losses for personal injury (including death) or real and/or tangible property damage, arising out of acts or omission to act under this EULA of employees, contractors or agents of the indemnifying party.

Globalscape shall indemnify and hold harmless Licensee, its Affiliates and its directors, officers, employees and agents from and against all losses arising from: (i) any breach by Globalscape of any representation, warranty or obligation set forth in this EULA; (ii) any breach by Globalscape of its information security and confidentiality obligations set forth in this EULA; and/or (iii) any claim that Licensee’ use or its Affiliates’ use or possession of any or all of the Software, or other related materials, or the exercise by Licensee of its rights granted under this EULA, infringes, misappropriates or violates any Intellectual Property Rights.

At the request of the indemnified party from time to time after any such claims, the indemnifying party shall, at its sole expense, defend with counsel reasonably acceptable to the indemnified party, all claims, suits or proceedings arising out of the foregoing.  The indemnifying party shall be notified promptly of any such claims, suits or proceedings in writing and, if requested to defend said action, given full and complete authority, information and assistance for the defense of same, provided, however, the indemnifying party shall have no authority to enter into any settlement or compromise on behalf of the indemnified party without the prior written consent of the indemnified party, which consent shall not be unreasonably withheld.  In all events, the indemnified party shall have the right to defend any indemnifiable claim itself, or in the case of a claim defended by the indemnifying party, participate in the defense of any proceedings with counsel of its own choosing, at its expense.

If use of Software as contemplated under this EULA is held to constitute an infringement or misappropriation of any Intellectual Property Rights, or if in Globalscape’s reasonable opinion, use of the Software is likely to be held to constitute an infringement or misappropriation, Globalscape shall either, at its expense and option: (i) procure the right for Licensee to continue using the Software; (ii) replace all copies of the Software with a non-infringing and non-misappropriating functionally equivalent product; (iii) modify the Software to make them non-infringing and non-misappropriating; or (iv) if options (i)-(iii) are not commercially reasonable as demonstrated by Globalscape to Licensee, terminate the applicable portion hereof and refund to Licensee the fees paid for the applicable Software.

12.  PUBLICITY
Notwithstanding anything in the EULA to the contrary, Globalscape may identify Licensee as a customer of Globalscape and may use the Licensee’s company name, logos, and marks in press releases, general advertising materials, case studies, and other promotional materials, provided that Globalscape will include protective legends necessary to protect Licensee’s rights in and to its trademarks, service marks, or copyrighted materials. Any other use made by Globalscape will only occur upon the receipt of prior written approval from Licensee.
 
13. COMMUNICATIONS; NOTICES
English is the official language of this EULA, and all communications relating to this EULA must be in the English language. Notices provided under this EULA must be in writing and will be deemed validly given: (a) upon delivery, if personally delivered with service fees prepaid, (b) upon delivery, if delivered, with fees prepaid, by reputable overnight courier that provides proof of delivery, or (c) three (3) business days following deposit in the United States mail, first class, postage prepaid, certified, or registered, and return receipt requested. The foregoing are the only permitted mechanisms for delivery of notices. The addresses set forth on the first page of this EULA will apply.

14.    SEVERABILITY; INTERPRETATION
The terms and provisions in this EULA are severable. If any provision of this EULA is held by a court of competent jurisdiction to be void, invalid, or unenforceable, then that provision will be enforced to the maximum extent permissible and the remaining terms and provisions of this EULA will continue in full force and effect. To the extent permitted by applicable law, Licensee and Globalscape agree to and do hereby waive any applicable statutory and common law that may permit a court to construe a contract against its drafter

15.    APPLICABLE LAW; JURISDICTION; VENUE
This EULA will be governed by and interpreted in accordance with the laws of the State of Texas applicable to agreements made between Texas residents to be wholly performed in Texas, without regard to choice of law provisions. If either party engages outside counsel to enforce this EULA, and in any action or proceeding between the parties relating to this EULA, the enforcing or prevailing party will be entitled to recover its reasonable attorneys’ fees. In the case of an action or proceeding and any appeal in connection therewith, such attorneys’ fees, as well as the prevailing party’s other costs and expenses, will be awarded in addition to any other relief awarded or granted.