Additional Service Specific Terms:
1. Definitions.
For the purposes of this Agreement, the following terms have the meanings set forth below:
1. Definitions
1.1 “Content” means any data or document owned or licensed by Subscriber that is loaded into a Subscription Service by Subscriber.
1.2 “Documentation” means Fortra’s then-current online user guides, as updated from time to time, and as may be made accessible from within the “Help” feature of the Service. It may also include any tutorials, technical publications, and materials supplied with the Service(s), which include system requirements for implementation and operation of the Software or Subscription Service(s).
1.3 “Effective Date” for this Agreement is the date set forth in a signature page to this Agreement, and the Effective Date for each Service Order means the earlier of the date on the applicable Service Order; or the date Subscriber downloads, installs or uses the Software or Subscriber Services.
1.4 “Invoice” means any statement of charges issued by Fortra for fees.
1.5 “Maintenance Services” means the support and maintenance services provide by Fortra to Client in accordance with the applicable maintenance policies and/or addendum attached.
1.6 “Person” means an individual, corporation, partnership, joint venture, limited liability company, governmental authority, unincorporated organization, trust, association or other entity.
1.7 “Personal Information” means any information relating to an identified or identifiable natural person who can be identified, directly or indirectly, in particular by reference to an identifier such as a name, an identification number, location data, an online identifier or to one or more factors specific to the physical, physiological, genetic, mental, economic, cultural or social identity of that natural person. Personal Information is Confidential Information.
1.8 “Professional Service” means implementation or integration services; training services; programming or coding services; data conversion services; consulting, or other customized services, provided by Fortra at the request of the Subscriber, and does not include Software, Maintenance or Subscription Services.
1.9 “Seats” means individuals with a unique user identification that can utilize or be managed by the Software, including but not limited, to those individuals that are included in profile data store and designated by Subscriber as either “active” or “inactive”.
1.10 “Service Order” means the applicable Quote or statement of work issued by Fortra for the Services, which includes term specific pricing and subject to the terms and conditions set forth in this Agreement and which is signed by a duly authorized representative of Subscriber.
1.11 “Service(s)” means, collectively, Software, Subscription Services, Maintenance Services and Professional Services provided by Fortra. The Services provided will be licensed more specifically as set forth in a Service Order and the applicable Addenda.
1.12 “Software” means any software provided by Fortra for use in conjunction with the Services, including all updates, add-ons, and enhancements.
1.13 “Subscription Period” if applicable, means the annual time period for the grant to the Subscriber of a subscription license to the Software as indicated on an Invoice.
1.14 “Third-Party Software”, if applicable, means software products not developed by Fortra and/or its subsidiaries that Fortra may distribute or make available to Subscriber specifically for purposes related to the Services, Software and this Agreement. All Third-Party Software shall be governed strictly and solely by such third-party’s (i) clickwrap agreement, which requires Subscriber to “Accept” and/or “Agree” before utilizing and/or installing such software; (ii) the terms and conditions referenced via a universal resource locator (URL) indicated on the applicable quotation; or (iii) terms and conditions contained within a text file (e.g. .txt), which accompanies the Third-Party Software.
1.15 “Subscription Duration” is defined in the applicable Service Order, and starts on the Subscription Start Date.
1.16 “Subscription Service(s)” is defined as a software as a service application that is licensed for use under this Agreement.
1.17 “Subscription Start Date” is defined in the applicable Service Order or date of first use of applicable Service, whichever comes first.
1.18 “Quote” means the ordering document or statement specifying the details of the Services to be provided by Fortra and purchased by Client, which may include, without limitation, applicable fees, number of authorized users, the volume of use or data permitted, the Subscription Duration, any Service(s) to be performed by Fortra.
2. Services.
2.1 Agreement to Comply with Terms. Subscriber and Fortra hereby agree to comply with the terms and conditions of this Agreement, for Globalscape the applicable third party infrastructure terms at Microsoft Client Agreement and each Addendum applicable to the Service(s) being procured. The terms and conditions of each such applicable Addendum, Invoice and Service Order are hereby incorporated into this Agreement by this reference.
2.2 Professional Services. If set forth in a Quote, Fortra shall provide Professional Services for Subscriber pursuant to the terms of Fortra’s Service Order.
3. Ownership. Grant of Rights
3.1 No Intellectual Property Assignment. Fortra owns all right, title and interest in and to all versions of the Service(s) and all data related to the Service, and the development, creation, and delivery thereof, including, without limitation, any patents, copyrights, service marks, trademarks, trade secrets, and other intellectual property rights therein, and nothing in this Agreement shall be deemed to constitute a transfer or assignment of any such rights. Fortra shall have a royalty-free, worldwide, transferable, sub-licensable, irrevocable, perpetual license to use or incorporate in the Service any suggestions, enhancement requests, recommendations or other feedback provided by Subscriber relating to the Service (“Feedback”). In no event shall feedback be deemed to be Subscriber Confidential Information.
3.2 Software and Subscription Services. Subject to the terms and provisions of this Agreement, including Client’s payment obligations, Fortra hereby grants to Client, and Client hereby accepts, a limited non-exclusive, non-transferable, non-assignable, and worldwide license for the Subscription Duration to access and use the Services in third party cloud platform or infrastructure chosen by Fortra and in object code/executable form for internal business purposes in the quantities set forth in the applicable Service Order, along with the applicable Documentation. The Service will be deemed accepted upon delivery of the access information. Subscriber’s use of the Services is subject to Fortra’s then current privacy policy.
3.3 Restrictions. Subscriber specifically agrees to limit the use of the Service(s), Documentation, and Third-Party Software (if any) to those specifically granted in this Agreement. Subscriber must strictly comply with the terms and conditions of this Agreement including, without limitation, the following: (a) Subscriber may use the Service for Subscriber’s own internal business purposes and shall not outsource, sublicense, resell, lease, transfer or otherwise allow use of the Service for the benefit of any third party; and (b) Subscriber shall not (i) create localized or derivative works based on the Service, modify or port Service, or cause or permit others to; (ii) modify, reverse engineer, translate, disassemble, attempt to derive the source code or decompile the Service, or cause or permit others to; (iii) access the Service in order to build a competitive product or service; (iv) remove any of Fortra’ or its vendors’, copyright notices and proprietary legends; (v) attempt to circumvent, disable or defeat the limitations on Subscriber’s use of the Service which are encoded into the Service and/or Third-Party Software’s key; (vi) use the Service and/or Third-Party Software (a) to infringe on the intellectual property rights of Fortra or any third party, or any rights of publicity or privacy; (b) to violate any law, statute, ordinance or regulation (including but not limited to the laws and regulations governing export/import control, unfair competition, anti-discrimination and/or false advertising); (c) to propagate any virus, worms, Trojan horses or other programming routine intended to damage any system or data; (d) in any application that may involve risks of death, personal injury, severe property damage or environmental damage, or in any life support applications, devices or systems; and/or (e) such that the total number of Authorized Users or Authorized Devices in excess of the total Seats or other license metric allocated to Client as reflected in the applicable Service Order or Invoice; (vi) file copyright or patent applications that include the Service and/or Third-Party Software or any portion thereof; (vii) use the Third-Party Software within any other applications or products other than with the Service; and/or (viii) make any Client copies of the Service and/or Third Party Software except with the prior written approval of Fortra and for nonproductive backup purpose only. Subscriber may not disclose results of any Services or program benchmark tests without Fortra’ prior written consent; or license, sell, rent, lease, transfer, assign, distribute, share, display, host, outsource, disclose, permit timesharing or service bureau use, or otherwise commercially exploit or make the Services, Fortra Documentation or materials available, to any third party other than, as expressly permitted under the terms of the Agreement. Without limiting any of the above, Subscriber may not combine the Services with any other services or software to create a commercially available solution. Except as expressly provided herein, no part of the Services may be copied, reproduced, distributed, republished, downloaded, displayed, posted or transmitted in any form or by any means, including but not limited to electronic, mechanical, photocopying, recording, or other means; and Subscriber agree to make every reasonable effort to prevent unauthorized third parties from accessing or using.
3.4 Authorized Users. The rights granted to Subscriber under the Agreement are also conditioned on the following: the rights of any Authorized User permitted to use the Services cannot be shared or used by more than one individual (unless such permission is reassigned in its entirety to another authorized user, in which case the prior authorized user shall no longer have any right to access or use the Services). For server or equipment-based licenses, the license may not be transferred to another server or piece of equipment.
3.5 Administration of Services. Subscriber shall be solely responsible for the acts and omissions of Subscriber administrator users and any other user who accesses the Services with Subscriber account credentials. Fortra shall not be liable for any loss of data or functionality caused directly or indirectly by the administrator Users. Fortra may modify the Services with or without notice to Subscriber. Subscribers are responsible for assessing the suitability of each Service for Subscriber’s intended use. By using the Services, Subscriber accepts responsibility for use of the Services, and acknowledge that they meet Fortra requirements and enable Fortra’ compliance with applicable laws.
3.6 Third-Party Software. Third Party Software that may be appropriate or necessary for use with the Services or Software may be specified in the Documentation or on other portals or websites as applicable. For Services that allow access to third party services or links to those Services, such third-party services or third-party sites are subject to those third-party website terms.
3.7 Subscriber’s Content for Subscription Services. Subscriber at all times retains full right, title and interest to its Confidential Information and as applicable to Services, Content. Subscriber represents and warrants that, to its actual or constructive knowledge, the use or transmission of the Content does not violate any applicable laws. Fortra strongly recommends that Subscriber maintain appropriate backup copies of the Content.
3.8 License to Content. Fortra does not, directly or indirectly, have the ability to view the Content; however in order to provide the Services, certain rights to the Content are required. To that end, Subscriber hereby grants Fortra a non-exclusive, non-transferable (subject to the Assignment section of the Agreement), royalty-free, right to process and display Content during the Term, solely to the extent necessary to provide the Services hereunder.
3.9 Personal Information. In providing the Services hereunder, Subscriber may disclose Personal Information to Fortra. If applicable, Fortra shall process all Personal Information in accordance with the Data Processing Addendum attached as Exhibit A to the applicable Service Order.
3.10 Future Features and Functionality. Subscriber agrees that any purchases under this Agreement are not contingent on the delivery of any future feature or functionality or dependent on any oral or written public or private comments made by Fortra regarding future features or functionality. Fortra may release improvements and other features and functionality in its discretion. Some features and functionality may be available only with certain versions of the Service(s).
3.11 Audit; Excess Users. Subscriber will maintain records reasonably required to verify its compliance with this Agreement. Without limitation to the foregoing, Subscriber will purchase sufficient licenses for the number of Seats or other license metric it will need at all times. On Fortra’s written request, not more frequently than annually, Fortra may audit Subscriber’s use of the Software or Services. Any such audit shall be conducted during Subscriber’s normal business hours and in such a manner as to avoid unreasonable interference with Subscriber’s business operations. If an audit reveals that Subscriber has underpaid fees to Fortra, Subscriber shall be invoiced for such underpaid fees.
3.12 Installation and/or Use. Upon payment of the fees, Fortra shall deliver a key to make the current version of the Service(s) available to Subscriber. The Services shall be deemed delivered once it is made available to Subscriber and the license to the Services shall commence upon such delivery.
3.13 Suspension. Fortra may immediately suspend your password, account, and access to or use of the Services: (a) if you fail to pay Fortra as required under the Agreement and do not cure within ten (10) days of delivery of notice, (b) if you violate any provision of Section 3.2 (Software and Subscription Services), Section 3.3 (Restrictions) or the Confidentiality section of the Agreement (c) Fortra reasonably concludes that Subscriber’s use of the Services is causing immediate and ongoing harm to Fortra or others. If Fortra must suspend delivery of the Services, Fortra shall notify Subscriber of the suspension and the parties shall diligently attempt to resolve the issue. Fortra shall not be liable to Subscriber or to any third party for any liabilities, claims or expenses arising from or relating to any suspension of the Services in accordance with this Section. Without limiting any of Fortra’ other rights, Fortra may terminate the Services hereunder if any of the foregoing is not cured within thirty (30) days after Fortra’ initial notice thereof. Any suspension by Fortra of the Services under this paragraph shall not excuse Subscriber from your obligation to make payment(s) under the Agreement.
4. Limited Warranties.
4.1 Subscription Services. Fortra represents and warrants that it will perform the Service in a good and workmanlike manner in accordance with applicable industry standards. Subscriber’s sole and exclusive remedy and Fortra’ entire liability for any breach of this Section 4.1 shall be as follows: Fortra will have thirty (30) days after written notice to deliver a correction that resolves the nonconformance of the Service with this Section 4.1 or shall refund to the Subscriber any prepaid Service fees paid under this Agreement in a prorated amount based on the remaining days in the Subscription Duration, and all remaining obligations under this Agreement shall be terminated.
4.2 Disclaimer. EXCEPT AS EXPRESSLY SET FORTH ABOVE IN SECTION 4.1, FORTRA DOES NOT MAKE ANY REPRESENTATIONS OR WARRANTIES THAT THE FUNCTIONS PERFORMED BY THE SERVICE WILL MEET SUBSCRIBER’S REQUIREMENTS, THAT THE OPERATION OF THE SERVICE WILL BE UNINTERRUPTED OR ERROR FREE, OR THAT ALL DEFECTS IN THE SERVICE WILL BE CORRECTED. FORTRA CANNOT AND DOES NOT REPRESENT OR WARRANT THAT THE SERVICE IS FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS. THEREFORE, SUBSCRIBER SHOULD USE INDUSTRY-RECOGNIZED SOFTWARE TO DETECT AND DISINFECT VIRUSES FROM ANY UPLOAD AND DOWNLOAD TO AND FROM THE SERVICE. EXCEPT AS EXPRESSLY PROVIDED TO THE CONTRARY IN A WRITING BY FORTRA, THE SERVICE IS PROVIDED ON AN “AS IS” BASIS WITHOUT WARRANTIES OF ANY KIND, EITHER EXPRESS OR IMPLIED. FORTRA DISCLAIMS ALL OTHER WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, ANY AND ALL IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE AND NON-INFRINGEMENT. FORTRA DOES NOT REPRESENT OR WARRANT THAT THE SERVICE IS ACCURATE, COMPLETE, RELIABLE, CURRENT OR WILL BE UNINTERRUPTED OR ERROR-FREE.
5. Addendum/Addenda incorporated herein by reference:
5.1 GoAnywhere SaaS Policies
5.2 GoAnywhere MFT Client Care Manual