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SOFTWARE LICENSE AGREEMENT

PLEASE READ THIS AGREEMENT CAREFULLY BEFORE USING THE SOFTWARE.

This agreement is between FastTCP, Inc.™ d/b/a SendFaster, Inc.™, a Michigan corporation (SendFaster) and you, the entity or individual entering into this agreement (Customer). The SendFaster software, services, updates, documentation and license keys provided to Customer (Software) are licensed and are not sold.

  1. SCOPE. This agreement describes the licensing of the Software and support provided to Customer under an order. The specific costs associated with an order shall be designated at SendFaster.com or by any authorized reseller of SendFaster.
  2. LICENSE. Subject to the other terms of this agreement, SendFaster grants Customer, under an order, a limited duration non-exclusive, non-transferable license, up to the license capacity purchased, to install and operate the Software either, internally within Customer’s enterprise, or externally in addition to other value added services of Customer, on supported computers owned or controlled by Customer, and make one non-production backup.
  3. RESTRICTIONS. SendFaster reserves all rights not expressly granted, and usage or access to the Software other than as expressly granted is prohibited. Customer is prohibited from:
    1. Assigning, sub-licensing, or renting the Software or using it in any type of stand alone software service;
    2. Causing or permitting the reverse engineering (except to the extent expressly permitted by applicable law despite this limitation), decompiling, disassembly, modification, translation, attempting to discover the source code of the Software or any data exchange format used by the Software;
    3. Operating the Software on a routing device, switch, router, bridge, firewall or similar networking device or technology which provides the benefit of a the Software to multiple computers, unless otherwise agreed to in writing by SendFaster;
    4. Reverse engineering, rewriting or replaying any web, network or application program interface, SendFaster license communications; or
    5. Evaluating or using, or facilitating the evaluation or use, of the Software for the purpose of competing with SendFaster.
  4. PAYMENT. Customer shall pay all fees due on the date specified when ordering the Software, plus applicable sales, use and other similar taxes. If Customer pays any amounts owed through a wire transfer or electronic means, Customer is responsible for all fees associated with the payment. SendFaster’s billing processes are located at: SendFaster.com and are incorporated herein by this reference.
    1. Credit Card Payments. . If a credit card account is being used, SendFaster may obtain pre-approval for an amount up to the amount of the order. Customer must pay for the Services online, and SendFaster may charge its credit card for all purchases and for any additional amounts (including any taxes and late fees, as applicable) owed to SendFaster. CUSTOMER IS RESPONSIBLE FOR THE TIMELY PAYMENT OF ALL FEES AND FOR PROVIDING SENDFASTER WITH A VALID CREDIT CARD FOR PAYMENT WHICH THEY ARE AUTHORIZED TO USE. If Customer wants to designate a different credit card or if there is a change in Customer’s credit card status, Customer must change its information online in the account within the Service. If a Customer credit card changes or expires, or is revoked, disputed or not valid for any other reason, SendFaster may suspend, terminate, or both (without liability) Customer’s use of the Services upon 5 days notice sent to Customer via email.
    2. Payments to Resellers. If Customer purchases the license from an authorized SendFaster reseller, then Customer must pay the reseller for the licenses, unless SendFaster notifies Customer otherwise. SendFaster is not liable to Customer if SendFaster is not paid by the reseller for a license.
  5. LICENSE MANAGEMENT. The Software has embedded license management technology that requires a connection to the Internet to connect to the SendFaster license server. If this connection to the Internet is lost the Software may stop operating. Customer shall remain solely responsible for the maintenance of its connection to the Internet and any related expenses.
  6. PROPRIETARY RIGHTS AND CONFIDENTIALITY.
    1. Proprietary Rights. The Software, workflow processes, user interface, designs, know-how and other technologies provided by SendFaster as part of the Software are the proprietary property of SendFaster and its licensors, and all right, title and interest in and to such items, including all associated intellectual property rights, remain only with SendFaster. The Software is protected by applicable copyright, trade secret, and other intellectual property laws. Customer may not remove any product identification, copyright, trademark or other notice from the Software. Contractors of Customer may use or access the Software, on a limited basis and in accordance with the terms of this Software License Agreement and Customer is responsible for their compliance with the terms of this agreement.
    2. Confidentiality. Customer may not disclose Confidential Information of SendFaster to any third party, or use the Confidential Information other than for purposes of this agreement. Confidential Information means all non-public information that is disclosed or provided by SendFaster, and includes, among other things all software technical information. Customer may disclose Confidential Information if required by law, but it will attempt to provide notice to the Discloser in advance so it may seek a protective order. Each party acknowledges that any misuse of the other party’s Confidential Information may cause irreparable harm for which there is no adequate remedy at law. Either party may seek immediate injunctive relief in such event.
  7. DISCLAIMER OF WARRANTIES. SENDFASTER DISCLAIMS ALL EXPRESS AND IMPLIED WARRANTIES, INCLUDING WITHOUT LIMITATION THE IMPLIED WARRANTY OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE. THE SOFTWARE MAY NOT BE ERROR FREE, AND USE MAY BE INTERRUPTED.
  8. TERMINATION. This agreement will terminate, with notice, upon breach by either party. Upon termination of this agreement or a license, Customer must discontinue using the Software, de-install and destroy or return the Software and all copies. Upon SendFaster' request, Customer will provide written certification of such compliance. Upon termination, Customer shall immediately pay any outstanding balance owed to SendFaster. The termination of this agreement does not relieve Customer of any of its financial obligations owed to SendFaster.
  9. SUPPORT. SendFaster’s technical support services (Support) is included with the Software. Support is provided under the Support policies then in effect which are incorporated by reference herein. The Support policies are located at https://sendfaster.com/support and may be changed from time to time in the sole and absolute discretion of SendFaster. Customer is responsible for regularly visiting the Support policies.
  10. LIMIT ON LIABILITY.
    1. SENDFASTER IS NOT LIABLE FOR ANY INDIRECT, SPECIAL, INCIDENTAL OR CONSEQUENTIAL DAMAGES ARISING OUT OF OR RELATED TO THIS AGREEMENT (INCLUDING, WITHOUT LIMITATION, COSTS OF DELAY, LOSS OF DATA, LOST PROFITS, RECORDS OR INFORMATION, AND ANY FAILURE OF DELIVERY OF THE SERVICES).
    2. SENDFASTER’S LIABILITY FOR TOTAL DAMAGES ARISING OUT OF OR RELATED TO THIS AGREEMENT (WHETHER IN CONTRACT, TORT OR OTHERWISE) DOES NOT EXCEED THE ACTUAL AMOUNT PAID BY CUSTOMER WITHIN THE PRECEDING 3 MONTHS UNDER THIS AGREEMENT.
  11. INTELLECTUAL PROPERTY INDEMNITY. This section contains Customer’s exclusive remedies and SendFaster’s sole liability for intellectual property infringement claims.
    1. Defense of Third Party Claims. SendFaster will defend or settle any third party claims against Customer alleging that the Software used in accordance with this agreement violates a copyright, patent, trademark or other intellectual property right. SendFaster will pay infringement claim defense costs, and SendFaster negotiated settlement amounts, and court awarded damages. Provided, however, Customer must
      • Promptly notifies SendFaster of the claim in writing;
      • Cooperates with SendFaster in the defense; and
      • Allows SendFaster to solely control the defense or settlement of the claim.
    2. Remedies. If such a claim appears likely, then SendFaster may modify the Software, procure the necessary rights, or replace it with the functional equivalent. If SendFaster determines that none of these are reasonable available, then SendFaster will accept the return of the Software and refund any prepaid and unused fees.
    3. Exclusions. SendFaster has no obligation for any claim arising from:
      • SendFaster’s compliance with Customer’s designs, specification, instructions, or technical information;
      • Modifications made other than by SendFaster;
      • A combination of the Software with other technology where the infringement would not occur but for the combination; or
      • Technology not provided by SendFaster.
  12. GOVERNING LAW AND EXCLUSIVE FORUM. This agreement is governed by the laws of the State of Michigan, without regard to conflict of law principles. Any dispute arising out of or related to this agreement may only be brought in the state courts located in Oakland County Michigan and federal court for the Eastern District of Michigan. Customer consents to the personal jurisdiction of such courts and waives any claim that it is an inconvenient forum. The prevailing party in litigation is entitled to recover its attorneys’ fees and costs from the other party. The Parties agree that any dispute between them arising out of or related to this agreement and the services hereunder shall be resolved by binding arbitration conducted under the rules of the American Arbitration Association in effect as of the date any such action is initiated. This is an exclusive remedy. Unless another venue is agreed to by both Parties, any arbitration conducted pursuant to this paragraph shall take place in the City of Farmington Hills, County of Oakland, State of Michigan, United States. The arbitration and proceedings related thereto shall be conducted in English. A single arbitrator will make a determination and render an award within Thirty (30) days of the close of evidence in such arbitration proceeding. The Parties waive any right to jury trial and agree that the arbitration award will be final and binding and that judgment will be entered thereon in any court of competent jurisdiction. Notwithstanding the foregoing, any Party may seek immediate judicial intervention to prevent any unauthorized use or disclosure of the confidential or proprietary information of the party (or those to whom it owes a duty of confidentiality) bringing any such action. In addition, any party may bring an action in a court of competent jurisdiction to enforce (i) the Arbitration, Venue, and Governing Law provisions hereof and (ii) any arbitration award rendered hereunder, and any such action shall not be deemed a waiver of this arbitration requirement or any other provision hereof.
  13. OTHER TERMS.
    1. Electronic Messages. For purposes of messages and notices about the Software, SendFaster may send email messages to the email address associated with Customer’s account. Customer understands that SendFaster has no liability associated with Customer's failure to maintain accurate contact information.
    2. Entire Agreement. This agreement, and all orders, constitute the entire agreement between the parties, and supersedes all prior or contemporaneous negotiations, representations or agreements, whether oral or written, related to this subject matter.
    3. Non-Assignment. Customer may not assign or transfer this agreement to a third party, nor delegate any duty, except with the consent of SendFaster, which will not be unreasonably withheld.
    4. Independent Contractors. The parties are independent contractors with respect to each other.
    5. Enforceability. If any term of this agreement is invalid or unenforceable, the other terms remain in effect.
    6. Survival of Terms. All terms that by their nature survive termination or expiration of this agreement, will survive.
    7. Compliance Audit. No more than once in any 12-month period and upon at least 30 days advance notice, SendFaster (or its representative) may audit Customer’s usage of the Software at any Customer facility. Customer will cooperate with such audit. Customer agrees to pay within 30 days of written notification any fees applicable to Customer’s use of the Software in excess of the license.
    8. Modifications in Writing and Through Email. SendFaster may modify any portion of this agreement by providing 30 days advance email notice to Customer (using the email address associated with Customer’s account). Customer’s continued use of the Software after such email has been sent constitutes Customer’s agreement to the modification.
    9. Export Compliance. Customer must comply with all applicable export control laws of the United States, foreign jurisdictions and other applicable laws and regulations.
    10. US GOVERNMENT Restricted Rights. The Software and documentation are provided with RESTRICTED RIGHTS. Use, duplication, or disclosure by the U.S. government or any agency thereof is subject to restrictions as set forth in subparagraph (c)(I)(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 C.F.R. 52.227-19, as applicable.
    11. Force Majeure. Neither party is liable for force majeure events.
    12. No PO Terms. SendFaster rejects additional or conflicting terms of a Customer’s form-purchasing document.
    13. Notices. Any and all notices or other communication arising out of this agreement shall be made by certified mail. Notwithstanding the foregoing SendFaster may elect to send any and all notices or other communications arising out of this agreement to Customer by email to the email address specified by Customer. SendFaster's mailing address can be found at SendFaster.com and it is Customer's responsibility to notify SendFaster of any changes to its physical or email address.