FalconStor End User License Agreement (StorSight, StorSafe, StorGuard, FDMP)

READ THIS LICENSE AGREEMENT CAREFULLY BEFORE INSTALLING KEY CODE OR USING THE PRODUCT. BY OPENING THIS PACKAGE, CLICKING THE “I ACCEPT” OR “YES” BUTTON, INSTALLING A KEY CODE OR USING THE PRODUCT, YOU INDICATE YOUR ACCEPTANCE OF THE TERMS OF THE FOLLOWING AGREEMENT AND THAT YOU HAVE FULL AUTHORITY TO BIND LICENSEE TO THESE TERMS. THESE TERMS APPLY TO YOU AND ANY SUBSEQUENT LICENSEE OF THIS PRODUCT. IF YOU DO NOT ACCEPT OR AGREE TO THE TERMS OF THIS AGREEMENT, CLICK THE “I DO NOT ACCEPT” OR THE “NO” BUTTON AND/OR IF YOU RECEIVED A PRODUCT, YOU MUST RETURN THE PRODUCT WITHIN TEN (10) DAYS OF RECEIPT WITH PROOF OF PAYMENT TO FALCONSTOR.

LICENSE/OWNERSHIP

FalconStor Software, Inc., (“FalconStor”) grants to you, as part of the subscription or node lock license/maintenance, a non-exclusive and non-transferable license to use the Software and accompanying documentation (collectively the “Product”) in the manner described below. FalconStor retains the ownership of this Copy and any subsequent copies of the Product. FalconStor, and/or its licensors, retains ownership of all copyright, patent, trade secret and other intellectual property rights in the Product. The Product is protected by the United States and other international copyright laws and treaties. This copy is licensed to you for use under the following conditions:

PERMITTED USES

I. If you received the Product, you may:

A. use the Product on any supported computer configuration;

B. use the Product up to and in excess of the maximum capacity licensed, provided, however, that if configured Product Capacity used exceeds the subscribed capacity, then the Product subscription/maintenance fees charged for renewal of the annual subscription/maintenance will be based on the configured Product Capacity during the 12-month period prior to renewal, subject to the limitations below;

C. copy the Product or make adaptations for archival purposes or when copying or adaptation is an essential step in the authorized use of the Product, provided any copy or adaptations must contain all of the original Product’s proprietary notices;

D. if you have purchased multiple licenses, make copies of the Software up to the number of licenses purchased in the manner specified by FalconStor, provided any copy must contain all of the original Software’s proprietary notices. The number of copies is the total number of copies that may be made for all platforms.

II. If you purchased FalconStor-branded hardware on which the Software was pre-installed (an “Appliance”), you may use the Product solely on the Appliance, except that you may transfer the Software to a new Appliance if the Appliance is replaced pursuant to the hardware warranty.

No matter whether you obtained the Product under I or II above, you may not, except as provided herein:

A. transfer, distribute, rent, sub-license, or lease the Product or documentation, or use the Product to provide services to third parties, unless (i) a separate MSP (Managed Service Provider) Agreement has been executed and is in effect, or (ii) a Migration Partner Subscription is active;

B. alter, modify, or adapt the Product, or portions thereof including, but not limited to, reverse engineering, translation, decompiling, disassembling, or creating derivative works;

C. permit direct or indirect access to or use of Product in a way that circumvents a contractual usage limit or the limit of the purchased subscription/maintenance;

D. make copies of the documentation, the Product, or portions thereof; or

E. remove any proprietary notices or labels on the Product.

SUBSCRIPTION/MAINTENANCE

This Product is made available on a pre-paid subscription or node lock license/maintenance basis. If purchased as a node lock license, you may not transfer the license to alternate hardware after you have made your initial installation. Your initial subscription/maintenance to use the Product will begin on the day the license key is sent by FalconStor electronically to the designated address and will end one (1) year from that date. You will be prompted to renew your subscription/maintenance prior to expiration as well as to make all applicable subscription/maintenance payments for use of the Product during the preceding twelve (12) month period that was in excess of the initially-purchased Product subscription/maintenance. Should you fail to timely renew your subscription/maintenance by timely paying the required Product subscription/maintenance renewal fee, your rights to continued use of the Product will immediately end upon expiration of your subscription/maintenance period.

FalconStor may, at any time, audit your use of the Product by accessing the Product through the FalconStor’s servers or by any other method deemed reasonable and appropriate by FalconStor to ensure compliance with the terms of this End User License Agreement and the subscription/maintenance purchased hereunder. Additionally, on or about the first anniversary of your first use of the Product, and every twelve (12) months thereafter, FalconStor will audit the Product Capacity you are using or that you have used during the previous twelve (12) months. You agree to cooperate with any and all audits performed by or at the direction of FalconStor and to provide any information reasonably requested by FalconStor, in each case, to ensure compliance herewith. In addition, you agree to enable “Alert Notifications” and configure “Email/SMS Settings” in the Product which automatically sends usage emails to FalconStor on a scheduled, periodic basis.

During any audit or through review of Alert Notifications, FalconStor reserves the right to examine “Used Object Storage for Tape Export” every one to three (1-3) months and apply an additional fee based on one-tenth (1/10) of that capacity at the then-current usage fees. That factored capacity will be additive to the configured Product Capacity at upcoming and future renewals, and that total will be referred to as Billable Capacity.

The annual Product subscription/maintenance renewal fees will be based on the configured Product Capacity used during the 12-month period preceding the renewal date at the then-current usage fees. Notwithstanding the foregoing, the minimum annual Product subscription/maintenance renewal fee charged will be based on the amount charged by FalconStor for 10TB Product usage capacity.

If you have purchased a pre-paid, capacity-based subscription to a cloud service provider for which FalconStor is reselling and managing under a master account, FalconStor may, at any time, audit your configured capacity usage. In the event that you have exceeded your pre-paid capacity by more than 1TB, FalconStor may charge for additional capacity, in 10TB increments, pro-rated at then current list price to coincide with the end date of your existing subscription.  Should you fail to timely pay for any such invoice received, your rights to continued use of any capacity under FalconStor’s master account will immediately end.

Promptly following notice from FalconStor, you will pay for all applicable subscription/maintenance renewal fees determined by FalconStor in accordance herewith.

You are responsible for providing complete and accurate billing and contact information to FalconStor and notifying FalconStor of any changes to such information.

TERMINATION

Your right to use the Product will terminate automatically if you use or attempt to use the Product in a way that is contrary to the Permitted Uses.

If you fail to timely renew your subscription/maintenance, FalconStor may, at its sole discretion, terminate your right to continue using the Product, whether entirely, or by limiting or restricting your ability to continue accessing all or any of the Product’s functionality or data contained therein.

Upon termination or expiration of your license subscription/maintenance:

• You will be restricted from making additions and changes to the Product database;
• The information stored in the Product database will be limited so that it is accessible solely in a “read only” mode;
• You will be prevented from accessing and using any or all functionality of the Product, including the ability to further configure the Product or to create new entries; and
• You will not have access or the ability to use or access any updates, improvements, new features, or any other changes to the Product;
• All technical support shall cease;
• You may lose access to all your data stored in or via the Product.

Upon termination or expiration of your license subscription/maintenance, you must immediately cease use of the Product, uninstall it from the appliance, computer or device on which you installed it and destroy all copies of the Product and all of its component parts.

LIMITED AND AS IS WARRANTIES

This Product, like all software, may not be error free. If the Product is distributed to you on optical media, FalconStor warrants that the optical media on which the Product is distributed is free from defects in materials and workmanship. FalconStor will replace defective media at no charge, provided you return the defective item with dated proof of payment to FalconStor within ninety (90) days of the date of delivery. This is your sole and exclusive remedy for any breach of warranty. FalconStor warrants that the Product, other than the Ancillary Software (as defined below) will substantially perform the functions of its published documentation for a period of thirty (30) days from delivery to you. To the extent permitted by applicable law, the Ancillary Software is provided to you “as is” without warranties of any kind. THE LIMITED WARRANTY IS THE ONLY WARRANTY MADE BY FALCONSTOR. EXCEPT AS SPECIFICALLY PROVIDED ABOVE, FALCONSTOR MAKES NO WARRANTY OR REPRESENTATION, EITHER EXPRESS OR IMPLIED, WITH RESPECT TO THE PRODUCT, INCLUDING ITS QUALITY, PERFORMANCE, MERCHANTABILITY, OR FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT OR TITLE. Some jurisdictions do not allow the exclusion of implied warranties or conditions, so that the above limitation or exclusion may not apply to you to the extent prohibited by such local laws. You may have other rights that vary from country to country, state to state, or province to province.

LIMITATION OF LIABILITY

UNDER NO CIRCUMSTANCES AND UNDER NO LEGAL THEORY, TORT, CONTRACT, OR OTHERWISE, SHALL FALCONSTOR OR ITS LICENSORS OR RESELLERS BE LIABLE TO YOU OR ANY OTHER PERSON FOR ANY DIRECT, INDIRECT, SPECIAL, INCIDENTAL, OR CONSEQUENTIAL DAMAGES OF ANY CHARACTER INCLUDING, WITHOUT LIMITATION, DAMAGES FOR LOSS OF GOODWILL, WORK STOPPAGE, COMPUTER FAILURE OR MALFUNCTION, OR ANY AND ALL OTHER COMMERCIAL DAMAGES OR LOSSES ARISING OUT OF THE USE OR INABILITY TO USE THE PRODUCT OR DOCUMENTATION, EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. NOTWITHSTANDING ANY DAMAGES YOU MIGHT INCUR FOR ANY REASON WHATSOEVER, THE ENTIRE LIABILITY OF FALCONSTOR AND ANY OF ITS SUPPLIERS UNDER ANY PROVISION OF THIS LICENSE AGREEMENT, AND YOUR EXCLUSIVE REMEDY HEREUNDER SHALL BE LIMITED TO THE GREATER OF $500 OR THE AMOUNT FALCONSTOR RECEIVED FROM YOU FOR A LICENSE TO THE PRODUCT. THIS LIMITATION OF LIABILITY SHALL NOT APPLY TO LIABILITY FOR DEATH OR PERSONAL INJURY TO THE EXTENT APPLICABLE LAW PROHIBITS SUCH LIMITATION. Some jurisdictions do not allow the exclusion or limitation of liability for incidental or consequential damages, so the above limitation may not apply to you to the extent prohibited by such local laws.

THIRD PARTY CONTENT OR OPEN SOURCE CODE

THE SOFTWARE PROVIDED HEREIN, IS PROVIDED BY FALCONSTOR AND BY THIRD PARTIES, INCLUDING THE OPEN SOURCE COMMUNITY (“ANCILLARY SOFTWARE”). USE OF THE PRODUCT, THE ANCILLARY SOFTWARE, ACCOMPANYING PRINTED MATERIALS, AND ANY “ONLINE” OR ELECTRONIC DOCUMENTATION IS CONDITIONED UPON AND LIMITED BY THE TERMS AND CONDITIONS OF THIS AGREEMENT, INCLUDING THE “LIMITED AND AS IS WARRANTIES,” THE “LIMITATION OF LIABILITY” AND THE TERMS AND CONDITIONS OF THE ANCILLARY SOFTWARE LICENSE AGREEMENTS (“ANCILLARY SOFTWARE LICENSES”). USE OF ANCILLARY SOFTWARE SHALL BE GOVERNED BY THE ANCILLARY SOFTWARE LICENSES, EXCEPT THAT THE DISCLAIMER OF WARRANTIES AND LIMITATION OF LIABILITIES PROVISIONS OF THIS AGREEMENT SHALL ALSO APPLY TO SUCH ANCILLARY SOFTWARE. FALCONSTOR HAS IDENTIFIED ANCILLARY SOFTWARE BY NOTING THE ANCILLARY SOFTWARE PROVIDER’S OWNERSHIP WITHIN EACH ANCILLARY SOFTWARE PROGRAM. THE ANCILLARY SOFTWARE LICENSES ARE SET FORTH IN THE ANCILLARY SOFTWARE FILES AND MAY BE VIEWED AT https://www.falconstor.com/open-source-licensing. BY ACCEPTING THE TERMS AND CONDITIONS OF THIS AGREEMENT, YOU ARE ALSO ACCEPTING THE TERMS AND CONDITIONS OF EACH ANCILLARY SOFTWARE LICENSE.

IF AND ONLY IF THE PRODUCT INCLUDES SOFTWARE LICENSED UNDER THE GNU GENERAL PUBLIC LICENSE (“GPL SOFTWARE”), YOU MAY OBTAIN A COMPLETE MACHINE-READABLE COPY OF THE GPL SOFTWARE SOURCE CODE (“GPL SOURCE CODE”) BY DOWNLOAD FROM A SITE SPECIFIED IN THE FOLLOWING FALCONSTOR WEBSITE: https://www.falconstor.com/open-source-licensing. UPON YOUR WRITTEN REQUEST, FALCONSTOR WILL PROVIDE, FOR A FEE COVERING THE COST OF DISTRIBUTION, A COMPLETE MACHINE-READABLE COPY OF THE GPL SOURCE CODE, BY MAIL. INFORMATION ABOUT HOW TO MAKE A WRITTEN REQUEST FOR GPL SOURCE CODE MAY BE FOUND AT THE FOLLOWING WEBSITE: https://www.falconstor.com/legal/open-source-licensing/

RESTRICTIONS

You acknowledge that the Product may be subject to U.S. export jurisdiction. You agree to comply with all applicable international and national laws that apply to the Product, including the U.S. Export Administration Regulations, as well as end-user, end-use, and destination restrictions issued by the U.S. and other governments.

HIGH RISK ACTIVITIES

Unless you enable the Active-Active Failover and the Synchronous Mirroring options, the Software is not fault-tolerant. In addition, the Software is not designed, manufactured or intended for use or resale on equipment used in hazardous environments requiring fail-safe performance, such as in the operation of nuclear facilities, aircraft navigation or communication systems, air traffic control, direct life support machines, or weapons systems, in which the failure of the Software could lead directly to death, personal injury, or severe physical or environmental damage (“High Risk Activities”). FalconStor and its suppliers specifically disclaim any express or implied warranty of fitness for High Risk Activities.

U.S. GOVERNMENT RESTRICTED RIGHTS

The Product is provided with RESTRICTED RIGHTS. Use, duplication, or disclosure by the Government is subject to restrictions as set forth in subparagraph (c)(1)(ii) of the Rights in Technical Data and Computer Software clause at DFARS 252.227-7013 or subparagraphs (c)(1) and (2) of the Commercial Computer Software – Restricted Rights at 48 CFR 52.227-19, as applicable. Manufacturer is FalconStor Software, Inc., 111 Congress Ave, Suite 500, Austin, TX 78701.

GENERAL

FalconStor retains all rights not expressly granted herein. Nothing in this License Agreement constitutes a waiver of FalconStor’s rights under United States copyright law. This license is non-exclusive. This License and your right to use the Product automatically terminate without notice from FalconStor if you fail to comply with any provision of this License Agreement, or any terms and conditions associated with the sale of this Product. Upon termination, you will destroy all documentation and disks. Any delay by FalconStor to enforce any of its rights hereunder shall not be deemed a waiver. This Agreement is governed by the laws of the State of Texas without giving effect to its conflict of law principles. You hereby consent to the exclusive jurisdiction and venue of the state courts sitting in Travis County, Texas or the federal courts in the Western District of Texas to resolve any disputes arising under this License Agreement. In each case this License Agreement shall be construed and enforced without regard to the United Nations Convention on the International Sale of Goods. This Agreement represents the complete agreement concerning this license and may be amended only by a writing executed by both parties. If any provision of this Agreement is held to be unenforceable, such provision shall be reformed only to the extent necessary to make it enforceable.