This document is a binding agreement between You and FileWave (USA), Inc. if You are installing the software in North America, Central America or South America or between You and FileWave (Europe) GmbH if You are installing the software anywhere else in the world ( that entity, as the case may be, the “Company”).
By accepting this License by clicking a box indicating Your acceptance of this License or, for free access, by using the services, You agree to the terms of this License. If the software is being installed or used for a company or other legal entity, The individual accepting this License represents that he or she has the authority to bind that entity and its affiliates to these terms, in which case the terms “You” and “Your” shall refer to that entity and its affiliates.
If You do not have that authority or if You do not agree with the terms of this License, do not download or open the installer package and do not use the software, instead, return any installer package and any manuals, documentation, or written materials that are associated with this program to the person from whom You obtained them for possible refund and delete all electronic copies of the software and documentation that You may have downloaded.
The provisions of this License control over any conflicting provisions in any purchase order.
The FileWave™ Software is distributed within two (2) Portfolio Editions:
Enterprise Edition (EE)
- Unlimited Client Computers ability
- Unlimited Administrator ability
- Unlimited Booster ability
- Unlimited Mobile Client
- Unlimited Engage Client
Education Edition (EDU)
- Unlimited Client Computers ability
- Unlimited Administrator ability
- Unlimited Booster ability
- Unlimited Mobile Client
- Unlimited Engage Client
The “Software” licensed to You by the Company are the components identified in the confirmation issued by the Company confirming receipt of Your purchase order to license this product (“Confirmation”) and any subsequent Confirmations for products.
1. The “Enterprise Edition”
a.) FileWave™ Client (Unix-Deamon or Windows Service) with all included features and functions
- FileWave™ Client for macOS: “fwcld”
- FileWave™ Client for Windows: “fwcld.exe”
- FileWave™ Client for LINUX: “fwcld”
The Software listed under 1.a.) is duplicated and distributed as one package for simultaneous use at Your local site for the maximum number of users specified for the “Portfolio Edition” in the Confirmation.
b.) FileWave™ Mobile Client (iOS or Android) with all included functions
- FileWave™ Client Google Android: “FileWaveClient-<applicable version>.apk” (i.e. “FileWaveClient-10.1.0.apk”)
- FileWave™ Client for Apple iOS: “App Portal <applicable version>.ipa” (i.e. “App Portal 10.1.0.ipa”)
The software listed in 1.b) is duplicated and distributed as one package for simultaneous use at Your local site for the maximum number of users specified for the “Portfolio Edition” in the Confirmation.
c.) FileWave™ Administrator with all features and functions
- c.1.) FileWave™ Administrator for macOS: “FileWave Super Prefs Editor.app”, “FileWave Admin.app”, “FileWave Client Monitor.app”
- c.2.) FileWave™ Administrator for Windows, “FileWave Super Prefs Editor.exe”, “FileWaveAdmin.exe”, “FileWaveClientMonitor.exe”
The Software listed under 1.c. (1-2) is distributed and shall be used according to the licensed number of Administrators as specified for the “Portfolio Edition” in the purchase order submitted to the Company to license this product. Each copy specified in the purchase order shall be distributed and used together as one (1) package on a single (1) computer unit at a single (1) location and shall reside in the memory of only one (1) single computer at one (1) time.
d.) FileWave™ Server (SQL-Lite and PostgreSQL Database) with all including features and functions
- d.1.) FileWave™ Server for macOS: “fwxserver”
- d.2.) FileWave™ Server for Windows: “fwxserver.exe”
- d.3.) FileWave™ Server for LINUX: “fwserver”
The Software listed under 1.d. (1-3) shall be used on a single (1) computer unit at a single (1) location as specified for the “Portfolio Edition” in the Confirmation.
e.) FileWave™ Booster (Unix-Deamon or Windows Service) with all including features and functions
- FileWave™ Booster for macOS: “fwbooster”, “FileWave Booster Monitor.app”
- FileWave™ Booster for Windows: “fwbooster.exe”, “FileWave Booster Monitor.exe”
- FileWave™ Booster for LINUX: “fwbooster”
The Software listed under 1.e.) is duplicated and distributed as one package for simultaneous use at Your local site for the maximum number of boosters specified for the “Portfolio Edition” in the purchase order submitted to FileWave Company to license this product.
f.) FileWave™ Engage (macOS and iOS Application) with all included features and functions
- FileWave™ Engage Client for macOS: “EngageX.app”
- FileWave™ Engage Client iOS: “FileWave_Engage.ipa”
- FileWave™ Engage Client for Windows: “EngageClient.exe”
- FileWave™ Engage Client for Chrome: “FileWave Engage Extension”
The software listed in 1.f) is duplicated and distributed as one package for simultaneous use at Your local site for the maximum number of users specified for the “Portfolio Edition” in the Confirmation.
g.) FileWave™ User Documentation
FileWave User Documentation (the “Documentation”) may be downloaded electronically from the FileWave CustomerBoard (also known as the FileWave “Alliance Community”) and used together with the FileWave Software according to the “Portfolio Edition”.
2. The “Education Edition”
The “EDU” – Portfolio always includes 1.a.) – 1.g.).
The Company grants You a non-exclusive license to use the number of copies of the Software as specified in 1 or 2, above, (as increased by any later Confirmations) and a reasonable number of copies of the Documentation, in each case for Your internal purposes. The term of this license is perpetual unless the relevant purchase order specifies a different term or unless it is terminated as permitted under 6, below.
4. Limited Warranty
The Company warrants to You that, during the Warranty Period, the Software will provide the functionality described in the version of the relevant Documentation located in the Support portion of https://filewave.com. The “Warranty Period” is the thirty (30) day period commencing on the date You install the first component of the Software. If the Software fails to provide that functionality and You provide specific written notice of the failure, the Company agrees to use reasonable efforts to correct the failure and, if the Company is unable to correct the failure, You shall have the right to terminate the license, so long as the failure remains uncorrected, by written notice given to the Company no later than ten (10) days after the expiration of the Warranty Period.
5. Limitation on Use
You agree that you will not rent, lease, lend, sell, sublicense, assign, distribute, publish, transfer or otherwise make available the Software to any person, including on, or in connection with, the internet or any time-sharing, service bureau, software as a service, cloud or other technology or service. You also agree not to reverse engineer, disassemble, decompile, decode, adapt or otherwise attempt to derive or gain access to the source code of the Software, in whole or in part and not to bypass or breach any security device or protection used by the Software. Similarly, You agree that you will not copy, modify, adapt, transfer, or create other works based upon the Documentation.
You may terminate the license at any time (but will not be entitled to any refund) by returning the Software and all Documentation to the Company and by removing the Software from the memory and disk storage of the computers into which the Software has been transferred. The Company may terminate this License upon thirty (30) days’ written notice in the event that You fail to comply with any term or condition of this License and upon ten (10) days’ written notice if you fail to pay any amount to the Company when due. Upon any termination, You will return to the Company or destroy, at Your expense, the Software and Documentation and any copies thereof whether or not the copying was authorized.
7. Data Collection
The Company collects information about Software users and their use of the Software through various means, including when users provide information to the Company and when the Company automatically collects information about users when they access, use, or interact with the Software. Such processing is performed to provide users with the Software. In some instances, users may be able to choose what information to provide, but sometimes the Company may require certain information from users to use the Software.
The Software provides a way for Your local server to collect certain information from Your client and Your mobile client devices. This information includes but is not limited to:
- Device phone number
- Currently logged on user
- Unique Device identifiers (Serial, IMEI, WWAN, MAC)
- Application usage (times launched and when)
- Device location (Potentially using; GPS, WiFi, iBeacon, IP, or other technologies)
- Installed software
- Currently installed software
Information collected by Your local server from Your client and Your mobile client devices is collected by the FileWave server for Your use and storage by You on Your premise, and the Company does not access or use such data. Where the Company provides a hosted instance of the Software for You, the Company does not access or use such data, except to store and make backups of such data for You.
The Company relies on a number of legal bases to process the information we receive about users from their use of the Software, including where: (1) You have consented to the processing; (2) the processing is necessary to perform the contractual obligations in order to provide the Software to You; and (3) the processing is necessary for the purposes of the Company’s or a third party’s legitimate interests, such as those of visitors, users, or partners.
8. User Identifiable Data
Data collected by the Software could potentially include user identifiable data. You agree You are responsible for taking meeting all legal requirements and taking all appropriate precautions necessary to maintain any such user-identifiable data, including user privacy.
UNLESS THE COMPANY PROVIDES A HOSTED INSTANCE OF THE SOFTWARE FOR YOU, YOU AGREE YOU WILL NOT SEND OR TRANSFER USER IDENTIFIABLE DATA TO THE COMPANY. IF YOU BECOME AWARE THAT USER IDENTIFIABLE DATA HAS BEEN SENT OR OTHERWISE TRANSFERRED TO THE COMPANY, YOU AGREE YOU WILL PROMPTLY NOTIFY THE COMPANY IN WRITING OF THE NATURE OF SUCH TRANSFER AND THE DATA TRANSFERRED.
9. Aggregate and Analytics Data
We use automatic data collection and analytics technologies to collect aggregate information about the use of the Software, Your equipment, domain name, patterns of use, communication data and the resources that you access and use on the Software. The Software periodically transmits such data to the Company over the internet to provide remote support information and to allow the Company to audit Your use of the Software in accordance with this License. This automatically transmitted data consists of aggregated user information such as keyserver data, the number of users of the Software, and other similar information.
By accepting this License You consent to the transmission of this aggregated user information to the Company, and agree not to restrict, disable or attempt to disable this function within the Software. You further consent to the Company’s use of this data for the purposes of analyzing the use of the Software, service and product planning, and improvement of the Software by the Company and its affiliates.
10. Not Infringing
The Company warrants that the Software does not infringe any copyright, patent, trade secret or other proprietary right of any third party enforceable in the jurisdiction where You licensed the Software. At Your written request, the Company will defend, at its own expense, any action brought against You to the extent that the action is based upon a claim that the Software infringes a patent, copyright, a trade secret or other proprietary right of a third party which, in each case, is enforceable in the jurisdiction where You licensed the Software (“infringement”). the Company will pay all costs, damages and reasonable attorneys’ fees finally awarded against You in the action provided that You promptly notify the Company in writing of the claim. The Company shall have the right to defend the claim on behalf of both parties and You shall make available to the Company all relevant records, papers or information and shall cooperate in defense of the claim as reasonably requested by the Company. You shall have the right to participate in the defense of the claim, under the control of the Company, at Your expense. If the Software becomes or, in the opinion of the Company is likely to become, the subject of an infringement claim, the Company may, at its election: (i) procure for You the right to continue to use the Software; or (ii) replace the Software or any part of it with a non-infringing substitute without materially impairing its functionality; or (iii) modify the Software so as to be non-infringing without materially impairing its functionality. If, in its discretion, the Company is unable to effect any of the three foregoing options available to it with respect to averting infringement or potential infringement, the Company may terminate this License by written notice to You at least thirty (30) days before the effective date of termination, in which event You shall return the Software to the Company in exchange for a partial refund of the license fee paid by Customer to the Company for the Software which will be calculated as the unamortized portion of the license fee based upon five years straight line amortization with amortization commencing on the date of you installed the first component of the Software. The foregoing states the entire liability of the Company with respect to infringement of any copyright, trade secret, proprietary or patent rights by the Software or any parts thereof.
11. No Other Warranties
The warranties made by the Company in 4 and 9, above, of this License are in lieu of all other representations or warranties, express or implied, including without limitation any implied warranties of design, merchantability, or fitness for any specific or general purpose and those arising by statute or by law, or from a course of dealing, or usage of trade.
12. Limitation of Remedies and Limitation of Damages
You agree that, in no event, will FileWave (USA) Inc., FileWave (Europe) GmbH, FileWave Financial Services GmbH, FileWave International Holding AG, or its officers, employees, or affiliates (collectively, the “FileWave Parties”) be liable to You for any consequential, incidental or indirect damages (including, without limitation, damages for loss of business profits, business interruption, loss of business information, or other pecuniary loss) arising out of the use of or inability to use the Software or the Documentation even if the Company or an authorized Company representative has been advised of the possibility of such damages, or arising out of the release or disclosure of user identifiable data unless You have notified the Company that the data has been sent or otherwise delivered to the Company. Because some jurisdictions do not allow the exclusion or limitation of liability for consequential or incidental damages, the above limitation may not apply to You. In the event any of the foregoing limitations of liability are void or are not effective, You agree that the aggregate liability of the FileWave Parties to You for damages for any cause whatsoever, and, regardless of the form of the action, will be limited to the license price of the Software.
13. U.S. Government
If You are a U.S. Government end-user, this license of the Software is being provided solely in accordance with the rights customarily provided to the public as specified in this License. This customary commercial license is provided in accordance with FAR 12.212 (Software) and, for Department of Defense transactions, DFAR 252.227-7202-3 (Rights in Commercial Computer Software or Computer Software
This License will be construed under the laws of the state of Indiana, except for that body of law dealing with conflicts of law, if the Software was obtained in the United States, or the laws of the jurisdiction where the Software was obtained, if obtained outside the United States. If any provision of this License is held by a court of competent jurisdiction to be contrary to law, that provision will be enforced to the maximum extent permissible, and the remaining provisions of this License will remain in full force and effect.
15. Patent registration
FileWave and all the FileWave logos are trademarks of FileWave and may be registered in certain jurisdictions. FileWave is patented in the United States of America under patent number: 7,904,900 and in Eurasia under the patent number: 012550. In the rest of the World FileWave is patent pending.
16. Other License
If You have the right to receive a component licensed by a third party under another license then You must rely on that license for that respective component, instead of this License.