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GAZZANG LICENSE AGREEMENT
ezNcrypt™ Software (All Editions) (v2011.2)

 

IMPORTANT – READ THIS LICENSE AGREEMENT (“AGREEMENT”) BEFORE CLICKING ON THE “ACCEPT” BUTTON, ENTERING “YES” IN RESPONSE TO THE ELECTRONIC LICENSE ACCEPTANCE INQUIRY, INSTALLING, OR ELECTRONICALLY DOWNLOADING.  ANY OF THE ABOVE ACTIONS INDICATE ACCEPTANCE OF, AND LEGALLY BINDS YOUR COMPANY (“LICENSEE”), AND GAZZANG, INC. (“GAZZANG”) TO THE TERMS AND CONDITIONS SET FORTH BELOW.  Licensee’s written approval is not a prerequisite to the validity or enforceability of this Agreement and no solicitation of any such written approval by or on behalf of Gazzang will be construed as an inference to the contrary.      

This Agreement applies to the object code copy of the Gazzang ezNcrypt software which accompanied this Agreement, any license key or keys, and any subsequent software update Licensee receives of the foregoing, together with any included documentation (collectively, the "Software").

This Agreement is divided into four parts:  Part I:  Terms and Conditions Applicable to Trial Licenses; Part II:  Terms and Conditions Applicable to ezNcrypt Software Subscription Licenses; Part III:  Terms and Conditions Applicable to the Provision of the Gazzang-hosted Key Storage System; Part IV:  General Terms and Conditions Applicable to all Licensees.  ALL RIGHTS GRANTED TO LICENSEE UNDER PARTS II AND III WILL BE SUBJECT TO PAYMENT OF APPLICABLE LICENSE FEES. 

 

PART I:  TERMS AND CONDITIONS APPLICABLE TO TRIAL LICENSE

  1. Trial License.  Licensee may order Trial Licenses for the Software on-line by downloading the Software and agreeing to these terms and conditions or pursuant to an agreement separately executed by the parties (“Trial License Order”).  Subject to the terms and conditions of this Agreement, Gazzang hereby grants to Licensee a non-sublicensable, non-transferable, non-exclusive, royalty-free license to use the Software in object code form in accordance with the accompanying documentation solely for Licensee’s internal evaluation, development and testing purposes (“Trial License”) for a period of 30 days commencing on download of the Software by Licensee (“Trial Period”).      Unless the Trial License is terminated by Licensee on or prior to the end of the Trial Period in written notice to Gazzang or on-line at the applicable Gazzang webpage, a Subscription License (as defined in Part II below) shall automatically commence at the then current fees for Subscription Licenses (viewable on Gazzang’s website) unless otherwise set forth in the Trial License Order or other Order pursuant to Part II below.  In the event Licensee fails to pay for the Subscription License in accordance with Part II below upon receiving notice of the transition to the Subscription License and/or an invoice, as applicable, Gazzang may at any time thereafter disable the Software.  By disabling the Software, this Agreement will be deemed terminated.  Gazzang will have no obligation to provide technical support for the Software during the Trial Period. 

  2. Warranty Disclaimer.  DURING THE TRIAL PERIOD, THE SOFTWARE IS PROVIDED “AS IS” WITHOUT WARRANTY OF ANY KIND INCLUDING WITHOUT LIMITATION, ANY WARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE OR NONINFRINGEMENT.

  3. Limitation of Remedies and Damages.   DURING THE TRIAL PERIOD, NEITHER GAZZANG NOR ITS THIRD PARTY SUPPLIERS WILL BE RESPONSIBLE OR LIABLE WITH RESPECT TO ANY SUBJECT MATTER RELATING TO THE SOFTWARE UNDER ANY CONTRACT, NEGLIGENCE, STRICT LIABILITY OR OTHER LEGAL OR EQUITABLE THEORY (A) FOR LOSS OR INACCURACY OF DATA OR COST OF PROCUREMENT OF SUBSTITUTE GOODS, SERVICES OR TECHNOLOGY, OR (B) FOR ANY DIRECT, INDIRECT, CONSEQUENTIAL, INCIDENTAL, SPECIAL OR PUNITIVE DAMAGES INCLUDING, BUT NOT LIMITED TO LOSS OF REVENUES AND LOSS OF PROFITS.  NOTHING IN THIS PART I WILL LIMIT GAZZANG’S LIABILITY FOR DEATH OR PERSONAL INJURY CAUSED BY GAZZANG’S NEGLIGENCE OR GAZZANG’S LIABILITY FOR FRAUD.

  4. No Indemnity.  During the Trial Period, Gazzang will not be liable to Licensee under any claim, suit or action, under any theory of or related to indemnity arising from the Software.

 

PART II:  TERMS AND CONDITIONS APPLICABLE TO
ezNcrypt SOFTWARE SUBSCRIPTION LICENSES

  1. Applicability.  The terms and conditions of this Part II and Part III will supersede the terms and conditions of Part I for Licensee’s orders of Subscription Licenses (as defined below), and the terms and conditions of Part IV will continue to apply. 
  2. Orders.  In addition to Subscription Licenses automatically commencing at the end of the Trial Period, as set forth in Part I above, Licensee may also place orders for Subscription Licenses in accordance with Gazzang’s on-line order system or pursuant to a mutually executed order form between the parties (each, an “Order”). 
  3. License Grant. Subject to the terms and conditions of this Agreement, Gazzang grants Licensee a non-sublicensable, non-transferable, non-exclusive license (“Subscription License”) for a limited term as set forth on the Order (“Subscription Term”) to use the Software provided hereunder in object code form for production purposes in accordance with the documentation provided with the Software for the number of Servers (each, a “Server License”) set forth in an Order.  Licensee has no right to receive any source code or design documentation relating to the Software.
  4. Disabling the Software.  Licensee’s right to use the Software is governed by a limiting device in the Software, which is designed to prevent its unlicensed use. In the event Licensee (i) fails to place an Order for a Subscription License at the end of the Trial Period, (ii) fails to timely pay for a Subscription License, (iii) fails to renew a Subscription License at the end of the Subscription Term, or (iv) is otherwise in breach of this Agreement, Gazzang may disable the Software or individual Server Licenses without notice to Licensee.   ..  .
  5. Payment.  All rights granted to Licensee and obligations of Gazzang under this Part II and Part III will be subject to payment of applicable License Fees due upon commencement of the Subscription License, based on (i) the number of Servers encrypted by the Software as set forth in the Order or Trial Period Order, as applicable, and (ii) any subsequent Servers which Licensee may add from time to time (“License Fees”).    Except as set forth in Section 5 of this Part II, all fees due hereunder are nonrefundable.  All amounts payable under this Agreement are exclusive of all sales, use, value-added, withholding, and other taxes and duties.  Licensee will pay all such taxes and duties, except for taxes payable on Gazzang's net income.  Except for invoices disputed in good faith, all past due amounts will incur interest at a rate equal to the lower of 1.0% per month or the highest rate permitted by law, beginning as of 15 days after the applicable due date.  If at any time Licensee is delinquent (including during any grace periods) in the payment of License Fees, Gazzang may, in its discretion, disable any Server Licenses related to such unpaid License Fees.  If an executed order contains different payment terms, those terms will apply.
  6. Limited Warranty. Gazzang warrants for a period of 30 days from Licensee’s first installation of the Software (“Warranty Period”) that the Software will materially conform to Gazzang’s then-current user documentation for such Software. This warranty covers only problems reported to Gazzang during the Warranty Period. Any liability of Gazzang for a breach of the foregoing warranty will be limited exclusively to Software repair or replacement or, if repair or replacement is commercially impractical, refund of the License Fee paid for the Software. EXCEPT FOR THE FOREGOING, ALL SOFTWARE IS PROVIDED “AS IS” WITHOUT WARRANTY OF ANY KIND INCLUDING WITHOUT LIMITATION, ANY WARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE OR NONINFRINGEMENT. FURTHER, GAZZANG DOES NOT WARRANT RESULTS OF USE OR THAT THE SOFTWARE IS BUG FREE OR THAT ITS USE WILL BE UNINTERRUPTED.
  7. Limitation of Remedies and Damages. NOTWITHSTANDING ANYTHING IN THIS AGREEMENT OR OTHERWISE, NEITHER GAZZANG NOR ITS THIRD PARTY SUPPLIERS WILL BE LIABLE OR OBLIGATED WITH RESPECT TO ANY SUBJECT MATTER OF THIS AGREEMENT OR UNDER CONTRACT, NEGLIGENCE, STRICT LIABILITY OR ANY OTHER LEGAL OR EQUITABLE THEORY (I) FOR ANY AMOUNTS IN EXCESS IN THE AGGREGATE OF THE LICENSE FEES PAID TO GAZZANG OR ITS AUTHORIZED RESELLER BY LICENSEE WITH RESPECT TO THE SOFTWARE (AS EQUITABLY DETERMINED IN THE EVENT THE SOFTWARE IS BUNDLED WITH OTHER SOFTWARE DURING THE SIX MONTH PERIOD BEFORE THE CAUSE OF ACTION AROSE), (II) FOR ANY COST OF PROCUREMENT OF SUBSTITUTE GOODS, TECHNOLOGY, SERVICES OR RIGHTS; (III) FOR ANY INDIRECT, CONSEQUENTIAL, INCIDENTAL, SPECIAL OR PUNITIVE DAMAGES; (IV) FOR INTERRUPTION OF USE OR LOSS OR CORRUPTION OF DATA; OR (V) FOR ANY MATTER BEYOND ITS REASONABLE CONTROL. SOME STATES DO NOT ALLOW THE EXCLUSION OR LIMITATION OF INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THE ABOVE LIMITATION AND EXCLUSIONS MAY NOT APPLY.  NOTHING IN THIS AGREEMENT WILL LIMIT GAZZANG’S LIABILITY FOR FRAUD OR LIABILITY FOR DEATH OR PERSONAL INJURY CAUSED BY GAZZANG’S NEGLIGENCE.  The provisions of this Agreement allocate the risks between Licensee and Gazzang.  Gazzang’s pricing reflects this allocation of risk and the limitations of liability specified herein.
  8. Indemnification. Gazzang will defend and hold Licensee harmless from claims by third parties resulting from infringement by the Software of any United States patent or copyright or any misappropriation of any trade secret, provided Gazzang is promptly notified of any and all threats, claims and proceedings related thereto and given reasonable assistance and the opportunity to assume sole control over defense and settlement; Gazzang will not be responsible for any settlement it does not approve in writing. The foregoing obligations do not apply with respect to Software or portions or components thereof (i) not supplied by Gazzang, (ii) that are modified by Licensee, (iii) combined with other products, processes or materials where the alleged infringement relates to such combination, (iv) where Licensee continues allegedly infringing activity after being notified thereof or after being informed of modifications that would have avoided the alleged infringement, or (v) where Licensee’s use of such Software is not strictly in accordance with this Agreement.  This provision will not survive the termination of this Agreement.  If Licensee's use of any of the Software is, or in Gazzang's opinion is likely to be, enjoined due to the type of infringement specified in this Section 7, or if a claim is brought against Licensee due to the type of infringement specified in this Section 7, then Gazzang may, at its sole option and expense:  (a) procure for Licensee the right to continue using such Software under the terms of this Agreement, (b) replace or modify such Software so that it is non-infringing and substantially equivalent or better in function to the enjoined Software, or (c) if options (a) and (b) above cannot be accomplished despite Gazzang's efforts, then Gazzang may terminate Licensee's rights and Gazzang's obligations hereunder with respect to such Software and remit to Licensee a prorata refund of the pre-paid License Fees for such Software corresponding to the portion of the then-current Subscription Term for such Software after the date of such termination.
  9. Support and Maintenance.  At no additional charge, Gazzang will provide Software maintenance and support services in accordance with Gazzang’s standard Software Maintenance Program, set forth here during Gazzang’s business hours. 

PART III: TERMS AND CONDITIONS APPLICABLE TO THE PROVISION OF THE
GAZZANG-HOSTED KEY STORAGE SYSTEM

  1. Hosted Key Storage System Access.  Subject to the terms and conditions of the Agreement, Gazzang will make the Hosted Key Storage System available to Licensee only (i) during the Subscription Term, (ii) by employees and consultants of Licensee, and (iii) for Licensee’s internal business purposes and solely for use with the Software, as set forth in Gazzang’s documentation, and may not be used by Licensee to provide services to third parties.
  2. System Outages.  This section is applicable to the delivery of the Hosted Key Storage System only.  Gazzang will provide support 24 hours a day, 7 days a week to resolve emergency operational outages associated with the Hosted Key Storage System infrastructure, including server hardware and software, firewalls, load balancer and routers, systems administration, co-location services, and bandwidth provision, and critical, production-stopping errors in the Hosted Key Storage System.
  3. Information Security.  Gazzang will operate an information security program designed to protect Licensee data and utilizing industry standard policies and technologies.  Gazzang will use third party hosting providers (“Third Party Hosting Providers”) to host the Hosted Key Storage System.  Gazzang shall ensure that any such third party hosting provider will have a current SAS 70 Type II report consisting of a comprehensive internal controls assessment report covering the internal controls and information security related to its hosting services, prepared by a third party auditor (“SAS 70 Type II Report”).  In the event the SAS 70 Type II Report is not reissued at least annually to the Third Party Hosting Provider being used for Licensee data, Gazzang agrees to replace such Third Party Hosting Provider as soon as practicable with another hosting services provider which has a current SAS 70 Type II Report.  
  4. Password and Encryption Key Administration.  The Software administration tools used by Licensee to provide access to the Key Storage System will be password-protected and access by the Software to the Key Storage System will require encryption keys.   Only Licensee personnel who have properly registered and received a login ID and password will be able to access the administration tools and encryption keys.  Licensee will be solely responsible for administering, safeguarding and monitoring the use of login IDs and passwords and encryption keys.  Upon the termination of employment of any personnel with access to administration tools and encryption keys, Licensee will immediately terminate access of the login ID of that individual to the administration tools and encryption keys.  Gazzang will not recover any encryption keys if Licensee loses and is unable to recall any such encryption keys. 
  5. Customer Installed Key Storage System.  In the event Customer purchases a version of the Software which includes a Customer-installed Key Storage System, the terms and conditions of such on-site Key Storage System license shall be as set forth in the On-Site Key Storage System Addendum at the URL referenced in the applicable Order.

PART IV: GENERAL TERMS AND CONDITIONS

  1. Confidentiality.  Each party acknowledges on its own behalf and on behalf of its officers, directors, employees, agents and consultants, and those of its affiliates (“Personnel”), that, during the term of this Agreement, it (“Receiving Party”) may receive from or on behalf of the other party (“Disclosing Party”) confidential and proprietary information relating to Disclosing Party (“Proprietary Information”). The Software and the documentation will be considered Gazzang’s Proprietary Information.  Business information, strategy, keys, operations information and related information disclosed by Licensee to Gazzang will be considered Licensee’s Proprietary Information.  During and after the term of this Agreement, Receiving Party will use the same degree of care to protect the Disclosing Party’s Proprietary Information as it uses for its own Proprietary Information of like importance but in no event less than a reasonable standard of care.  Proprietary Information will not include information that: (i) becomes public without breach of this Agreement by Receiving Party or its Personnel; (ii) was previously in the Receiving Party’s possession (in written or other recorded form) with no obligation to maintain confidentiality; (iii) was received from a third party not under any obligation of confidentiality to Disclosing Party; or (iv) was developed by Receiving Party independently of, and without reference to, any Proprietary Information.  Receiving Party will only permit access to Proprietary Information to those of its Personnel (a) who require access thereto for a purpose authorized by the Agreement and (b) who have signed confidentiality agreements or are otherwise bound by confidentiality obligations at least as restrictive as those contained herein.   
  2. Server.  The term “Server” means a single computing system, including but not limited to a primary network server, a fail over server, or a virtual (or otherwise emulated) server, that is encrypted by the Software.
  3. Restrictions. Except for one copy made solely for back-up purposes, Licensee may not copy the Software.  Licensee must reproduce and include the copyright notice and any other notices that appear on the original Software on any copies and any media therefore. Licensee will not (and will not allow any third party to): (i) decompile, disassemble, or otherwise reverse engineer (except to the extent that applicable law prohibits reverse engineering restrictions) or attempt to reconstruct or discover any source code or underlying ideas or algorithms or file formats or programming or interoperability interfaces of the Software by any means whatsoever; (ii) remove any Software identification, copyright or other notices; (iii) provide, lease, lend, use for timesharing or service bureau purposes or otherwise use or allow others to use the Software to or for the benefit of third parties; (iv) modify, incorporate into or with other software or create a derivative work of any part of the Software; (v) disseminate performance information or analysis (including, without limitation, benchmarks) from any source relating to the Software; or (vi) remove or export from the United States or allow the export or re-export of any part of the Software or any direct Software thereof in violation of any restrictions, laws or regulations of the United States Department of Commerce, the United States Department of Treasury Office of Foreign Assets Control, or any other United States or foreign agency or authority. If a user of the software is an agency, department, or other entity of the United States Government (“Government”), the use, duplication, reproduction, release, modification, disclosure or transfer of the software, manuals, or any technical specifications, or any related documentation of any kind, including technical data, licensed in this Agreement, is restricted in accordance with Federal Acquisition Regulation (“FAR”) 12.212 for civilian agencies and Defense Federal Acquisition Regulation Supplement (“DFARS”) 227.7202 for military agencies. The Software and documentation licensed in this Agreement are commercial computer software and commercial computer software documentation.  The use of the Software and documentation licensed under this Agreement is further restricted in accordance with the terms of this Agreement, or any modification thereto. The Software and documentation are licensed on the open market at market prices, and were developed entirely at private expense and without the use of any U.S. Government funds.  Contractor/Manufacturer is Gazzang, Inc., 502 Baylor Street, Austin, Texas 78703.
  4. Ownership.  Notwithstanding anything else, as between Licensee and Gazzang, Gazzang retains all title to, and, except as expressly and unambiguously licensed herein, reserves all rights in the Software, all copies and derivative works thereof (by whomever made) and all related documentation and materials. Licensee acknowledges that Gazzang’s third party licensors will be intended third party beneficiaries of this Agreement and will have the right to directly enforce against Licensee any Licensee obligations hereunder with respect to the Software to the extent the Software include licensed materials of such third party suppliers.  Open source may be subject to additional license rights and restrictions, as set forth here. 
  5. High Risk Activities.  Licensee acknowledges that the Software is not intended for use in connection with any high risk or strict liability activity (including, without limitation, air travel, space travel, fire fighting, police operations, power plant operation, military operations, rescue operations, hospital and medical operations which could result in death or injury or the like) and Licensee agrees not to use or allow the use of the Software for or in connection with any such activity.
  6. Assignment.  Licensee may not assign or otherwise transfer in whole or in part or in any manner any rights, obligations, or any interest in or under this Agreement without Gazzang's prior written consent and any attempted assignment will be void. A merger or other acquisition by a third party will be treated as an assignment. Gazzang may at any time and without Licensee’s consent assign all or a portion of its rights and duties under this Agreement.  Subject to the foregoing, this Agreement will bind and inure to the benefit of the parties, their respective successors and permitted assigns.
  7. Open Source Licenses.  Any open source software provided hereunder will be provided pursuant to such open source software license terms and conditions.  Upon reasonable notice to Licensee, Gazzang has the right to replace software provided to Licensee as part of open source software with software that has similar functionality.  The license terms associated with open source software require that Gazzang provide copyright and license information to Licensee.  A list of the open source software included in the Software or otherwise provided to Licensee and applicable license terms is available in Gazzang’s on-line user documentation for the Software.  Any provisions in this Agreement which differ from any open source software license are offered by Gazzang alone and not by any other party.  In no event will the third party open source providers be liable for any special, direct, indirect, or consequential damages or any damages resulting from loss of use, data, or profits, whether in an action of contract, negligence, or other tortious action, arising out of or in connection with the use or performance of the open source software even if Gazzang or these providers have been advised of the possibility of such damages and whether or not such losses or damages are foreseeable.
  8. Term and Termination.  This Agreement is effective from the date Licensee downloads or installs the Software and will remain in force until terminated. The term of this Agreement with respect to Trial Software is governed by the key delivered with the Trial Software at the time of download. However, in no event will the term of the license for Trial Software be more than 30 days from the date of installation without express written approval from Gazzang.  With respect to Software license under Part II above, the term of the Agreement will be for the agreed upon Subscription Term as set forth in the applicable order (normally, one year).  Unless otherwise set forth in an Order, the Subscription Term will automatically renew at then-current License Fees, provided that if Licensee fails to pay the License Fees for such renewed Subscription Term on the renewal date or when due, if otherwise set forth in an Order , Gazzang may terminate this Agreement without notice and disable the Software.  Licensee may terminate this Agreement at any time by destroying the documentation and the Software together with all copies and adaptations thereof.  This Agreement will terminate immediately without notice from Gazzang if Licensee breaches this Agreement and fails to cure such breach within 30 days of notice from Gazzang. Upon termination of this Agreement by Gazzang, Licensee will destroy all copies of the Software and documentation, and upon request, Licensee will certify such destruction to Gazzang. Part I Sections 2, 3, and 4, Part II Sections 4, 5, and 7, and Part IV Sections 1, 3, 4, 8, 9 and 10 of this Agreement will survive any termination hereof.
  9. Records and Inspection.  Licensee will conduct such internal audits as are reasonably required to verify continuing full compliance with this Agreement, maintain records with respect to Servers, and provide access to the Server locations or other applicable locations during normal business hours as requested by Gazzang on ten business days advance notice, from time to time, to permit personnel designated by Gazzang to verify such compliance.
  10. Miscellaneous.  This Agreement will be governed by, and interpreted in accordance with, the laws of the State of Texas (U.S.A.) exclusive of its choice of law provisions. This Agreement expressly excludes the United Nations Convention on Contracts for the International Sale of Goods. This Agreement sets forth the entire understanding and agreement between Licensee and Gazzang with respect to the subject matter hereof. NO VENDOR, DISTRIBUTOR, DEALER, RETAILER, SALES PERSON OR OTHER PERSON IS AUTHORIZED TO MODIFY THIS AGREEMENT OR TO MAKE ANY WARRANTY, REPRESENTATION OR PROMISE WHICH IS DIFFERENT THAN, OR IN ADDITION TO, THIS AGREEMENT ABOUT THE SOFTWARE OR ANY GAZZANG SERVICES. No waiver of any right under this Agreement will be effective unless in writing, signed by a duly authorized representative of Gazzang. Any modifications of this Agreement must be in writing and signed by both parties hereto.  Each party will be and act as an independent contractor and not as an agent or partner of the other party for any purpose related to this Agreement.  Neither party will have the authority to legally bind the other to any contract, proposal or other commitment or to incur any debt or create any liability on behalf of the other.  Any notice required or permitted hereunder will be in writing and will be deemed to have been effectively given:  (i) immediately upon personal delivery or facsimile transmission to the parties to be notified, (ii) one business day after deposit with a commercial overnight courier with tracking capabilities, or (iii) three days after deposit with the United States Postal Service, by registered or certified mail, postage prepaid to the respective addresses of the parties as set forth in the related electronic order. If any provision in this Agreement is held invalid or unenforceable, then that provision will be construed, limited, modified or, if necessary, severed, to the extent necessary, to eliminate its invalidity or unenforceability, and the other provisions of this Agreement will remain unaffected.  Any pre-printed, additional or conflicting terms stated on purchase orders or acknowledgements of Licensee will be void and of no effect.  English is the controlling language of this Agreement.

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