Bitvise FlowSsh License Terms

Bitvise Limited, a Texas corporation with its principal office at 4105
Lombardy Court, Colleyville, Texas 76034, USA, ("Bitvise"), develops a Windows
SSH library for use with C, C++ and .NET applications named FlowSsh
("FlowSsh"), to which it owns all rights, title, and interest, and is willing
to grant you, meaning any individual or entity who will use FlowSsh, ("you"),
the license to use FlowSsh, upon the condition that you agree to, accept, and
adhere to all of this license agreement (“Agreement”).

You must read this Agreement carefully.

BY DISTRIBUTING AND/OR USING FLOWSSH, YOU (A) ACKNOWLEDGE THAT YOU HAVE READ
AND UNDERSTAND THIS AGREEMENT; (B) REPRESENT THAT YOU ARE OF LEGAL AGE TO
ENTER INTO A BINDING AGREEMENT AND IF THIS AGREEMENT IS BEING ENTERED INTO ON
BEHALF OF A CORPORATION, GOVERNMENTAL ORGANIZATION, OR OTHER LEGAL ENTITY, YOU
HAVE THE RIGHT, POWER, AND AUTHORITY TO ENTER INTO THIS AGREEMENT ON BEHALF OF
SUCH ORGANIZATION; AND (C) ACCEPT THIS AGREEMENT AND AGREE THAT YOU ARE
LEGALLY BOUND BY ITS TERMS.

IF YOU DO NOT AGREE TO THESE TERMS, DO NOT DOWNLOAD,  DISTRIBUTE, OR USE
FLOWSSH.

NOTWITHSTANDING ANYTHING TO THE CONTRARY IN THIS AGREEMENT OR YOUR OR
ACCEPTANCE OF THE TERMS AND CONDITIONS OF THIS AGREEMENT, NO LICENSE IS
GRANTED (WHETHER EXPRESSLY, BY IMPLICATION, OR OTHERWISE) UNDER THIS
AGREEMENT, AND THIS AGREEMENT EXPRESSLY EXCLUDES ANY RIGHT, CONCERNING ANY
SOFTWARE THAT YOU DID NOT ACQUIRE LAWFULLY OR THAT IS NOT A LEGITIMATE,
AUTHORIZED COPY OF BITVISE’S SOFTWARE.

1.  Definitions. 

*   A "Machine" is a single hardware computer unit, or a virtual machine
running in a simulated environment. Each node of a cluster counts as an
individual Machine.

*   “Support” includes answering questions arising from your use of the most
current version of FlowSsh via online medium, such as email, web-based forum,
or a similar technology characterized by the ability to convey written
information electronically. Bitvise may attempt, but cannot guarantee, to
answer questions pertaining to older versions of FlowSsH. If you are eligible
for Support, Bitvise will attempt, but not guarantee, to reply to inquiries
within one business day. Bitvise does not guarantee, and is unlikely to
provide, Support in languages other than English.

*   “Upgrade Access” refers to access to any upgrades and new versions of
FlowSsh released to the public by Bitvise.

2.  License.  Subject to the terms of this Agreement, Bitvise grants to you a
limited, non-exclusive, license to download and use FlowSsh in the sense that
you may create software programs which interact with FlowSsh by making calls
to functions, classes and methods exposed by FlowSsh's programmatic interface.
You may use FlowSsh on any number of Machines for evaluation and testing
free-of-charge for an evaluation period of up to thirty (30) calendar days.
When thirty (30) or more days have passed since your initial use of FlowSsh on
any Machine, you may continue to use FlowSsh only after purchasing from
Bitvise an "Expanded License."

After purchasing an Expanded License from Bitvise, you may use FlowSsh
perpetually in accord with the terms of this agreement, for a purpose in
connection with the number of developers or applications, and in a manner
consistent with the Expanded License purchased, so long as you do not breach
the terms of this Agreement.

Purchase of an Expanded License entitles you to Support and Upgrade Access.
The term of such Support and Upgrade Access shall be from the date of purchase
until the expiration date communicated by Bitvise at the time of purchase (the
“Upgrade Access Expiry Date”).

You may NOT reverse engineer or disassemble or modify FlowSsh or any of its
components in any way without advance, specific and written approval from
Bitvise. You may NOT access FlowSsh functionality otherwise than through the
published programmatic interface without advance, specific and written
approval from Bitvise. You may NOT circumvent the FlowSsh activation process
without advance, specific approval from Bitvise. You may NOT use FlowSsh
beyond the scope legally permitted where such use is taking place. You may not
provide a copy of FlowSsh or of any of its parts or components to a third
party, without advance, specific and written approval from Bitvise.

3.  Distribution.  If you purchase an Expanded License, this MAY include
permission to create, distribute and/or market applications that use FlowSsh.
If you receive such permission, you may distribute the main functional
components of FlowSsh only together with your applications that use them, and
only in the form of digitally signed, unmodified Dynamic Link Libraries as
provided by Bitvise, unless you otherwise receive advance, specific and
written approval from Bitvise. The license terms for applications you
distribute and/or market shall ensure equal or superior protection for Bitvise
as this Agreement.

3.  Ownership.  You acknowledge that Bitvise is the owner of FlowSsh, that
this Agreement does not convey to you any ownership interest in FlowSsh. You
are merely granted the license to download and use FlowSsh, and potentially to
incorporate and distribute it with your applications in accordance with the
terms of this Agreement. Such license may be revoked in accordance with
Section 8 of this Agreement if you breach your obligations hereunder.

4.  Support and Upgrades.  If your use of FlowSsh is covered by a valid
Expanded License properly purchased directly or indirectly from Bitvise, and
Upgrade Access for such license has not expired, Bitvise will provide (a)
Support, and (b) Upgrade Access.

Bitvise will offer extension of your Upgrade Access at an annual rate not
higher than 20 percent of the current price for a new Expanded License
covering the usage permitted by your Expanded License. Should your Upgrade
Access expire, any subsequent extension of your Upgrade Access will require
extension for a term greater than or equal to the amount of time between the
expiration of your Upgrade Access and the date of purchase for such extension.
Additional Upgrade Access may also be purchased together with your initial
Expanded License purchase.  

While Bitvise endeavors to consistently improve its software, Bitvise is not
obligated to create or release updates or new versions of FlowSsh.

5.  Disclaimer of Warranties.  FLOWSSH IS PROVIDED TO YOU “AS IS” AND WITH ALL
FAULTS AND DEFECTS WITHOUT WARRANTY OF ANY KIND. TO THE MAXIMUM EXTENT
PERMITTED UNDER APPLICABLE LAW, BITVISE EXPRESSLY DISCLAIMS ALL WARRANTIES,
WHETHER EXPRESS, IMPLIED, STATUTORY, OR OTHERWISE, WITH RESPECT TO FLOWSSH,
INCLUDING ALL IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR
PURPOSE, TITLE, AND NON-INFRINGEMENT, AND WARRANTIES THAT MAY ARISE OUT OF
COURSE OF DEALING, COURSE OF PERFORMANCE, USAGE, OR TRADE, AND MAKES NO
REPRESENTATION OF ANY KIND THAT THE APPLICATION WILL MEET YOUR REQUIREMENTS,
ACHIEVE ANY INTENDED RESULTS, BE COMPATIBLE, OR WORK WITH ANY OTHER SOFTWARE,
APPLICATIONS, SYSTEMS, OR SERVICES, OPERATE WITHOUT INTERRUPTION, MEET ANY
PERFORMANCE OR RELIABILITY STANDARDS OR BE ERROR-FREE, OR THAT ANY ERRORS OR
DEFECTS CAN OR WILL BE CORRECTED.

SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF OR LIMITATIONS ON IMPLIED
WARRANTIES OR THE LIMITATIONS ON THE APPLICABLE STATUTORY RIGHTS OF A
CONSUMER, SO SOME OR ALL OF THE ABOVE EXCLUSIONS AND LIMITATIONS MAY NOT APPLY
TO YOU.

Notwithstanding the foregoing, solely with respect to software used under a
valid Expanded License, Bitvise warrants that (i) the Software will
substantially contain the functionality described on Bitvise’s website, and
(ii) when used on a computer meeting the specifications set forth on, and
operated in accordance with, the documentation available on Bitvise’s website,
will operate in accordance with the documentation. 

Where Bitvise promotes FlowSsh as facilitating functional safety or as
compliant with industry functional safety standards, FlowSsh is intended to
help customers implement solutions that meet applicable functional safety
standards and requirements. Using FlowSsh in a solution does not by itself
establish any safety features in that solution. You must ensure compliance with
safety-related requirements and standards applicable to your solution.

6.  Indemnification.  As long as, and to the extent that, your use of FlowSsh
is covered by a valid Expanded License properly purchased directly or
indirectly from Bitvise, Bitvise will indemnify you and your officers,
directors, agents, and employees against all claims, actions, judgments,
awards, expenses (including reasonable attorney's fees) and damages awarded or
agreed by Bitvise to be paid in settlement arising from a claim asserting that
an unaltered release of FlowSsh including any modifications or enhancements
released by Bitvise to the public during the term of this Agreement and used
in accordance with the terms of this Agreement (collectively the "Indemnified
Software") infringes a third-party copyright, trade secret, a U.S. patent, or
a European Patent Convention patent, so long as you give Bitvise (a) prompt
written notice of such claim or action; (b) the right to control and direct
the investigation, preparation, defense, and settlement of the action; and (c)
reasonable assistance and information. If a final injunction is obtained
against your right to continue using the Indemnified Software or, if in
Bitvise's opinion the Indemnified Software is likely to become the subject of
a claim, Bitvise shall have the option to (i) obtain the right for you to
continue using the Indemnified Software; or (ii) replace or modify the
Indemnified Software so that it no longer infringes but functions
substantially equivalently including with respect to the form, fit or function
(including interoperability) of the Indemnified Software. If Bitvise
determines that neither of these alternatives is practicable after
commercially reasonable efforts, Bitvise shall refund to you a prorated
portion of either the purchase price paid for (a) the affected Expanded
License based on straight line depreciation over a five-year useful life, or
(b) your current, unexpired, Upgrade Access based on the percentage of time
remaining until your Upgrade Access Expiry Date, whichever has the greater
value.

You agree to indemnify, defend, and hold harmless Bitvise and its officers,
directors, employees, agents, affiliates, successors, and assigns from and
against any and all losses, damages, liabilities, deficiencies, claims,
actions, judgments, settlements, interest, awards, penalties, fines, costs, or
expenses of whatever kind, including reasonable attorneys’ fees, arising from
or relating to your use or misuse of FlowSsh or your breach of this Agreement,
other than liability arising from a claim that your use of FlowSsh in
accordance with this Agreement infringes the copyright, trade secret, or
patent rights of a third-party.

7.  Assignment.  This Agreement will bind and inure to the benefit of each
party's permitted successors and assigns. However, you may not assign this
Agreement in whole or in part, or transfer to a third party the license or any
of the rights or obligations granted to you under this Agreement, unless
explicitly permitted to do so by Bitvise in this Agreement or separately in
writing. Any attempt to assign this Agreement or transfer such license,
obligations or rights under this Agreement without Bitvise's explicit written
permission will be void and null.

8.  Term and Termination.  This Agreement remains valid and in force as long
as you continue to use FlowSsh on any Machine or medium, or continue to have
any copies of FlowSsh, or any of its parts or components stored on any Machine
or media in your possession or under your control.

You may terminate this Agreement unilaterally at any time, and with immediate
effect, by removing or making irreversibly inoperable all copies of FlowSsh
and any of its parts or components residing on any computer, virtual machine,
or medium in your possession or control. 

This Agreement is terminated automatically, and with immediate effect, if you
breach any of your obligations under this Agreement, and fail to cure the
breach within thirty (30) calendar days of discovering or being notified of
such breach. If this Agreement terminates for this or any reason, you must
cease your use of FlowSsh immediately, and must immediately remove or make
irreversibly inoperable all copies of FlowSsh and any of its parts or
components residing on any Machines or media in your possession or control.

If you use FlowSsh beyond the scope legally permitted where such use is taking
place, this Agreement shall terminate automatically and with immediate effect.

9.  Limitation of Liability.  You agree that Bitvise shall not be responsible
or liable:

*   for any damage or harm (including direct, incidental, or consequential
damages) caused or arising through anyone's use, misuse or attempted use of
FlowSsh, whether direct or indirect, including but not limited to any failure
of or within FlowSsh, any programming error in, triggered by or related to
FlowSsh, or any incorrect or illegal use of FlowSsh. Either you, or the users
of your application(s) that incorporate FlowSsh, shall assume the entire risk
of the results and performance of the use of FlowSsh;

*   for any damage or harm caused by a technical or administrative problem on
the recipient's or intermediary's behalf that cannot reasonably be cured by
Bitvise, including but not limited to any DNS or mail server issue or a
problem with a proxy, a firewall, email filtering or another network device.

The foregoing limitations apply to the full extent permitted by applicable law
in your jurisdiction.

Furthermore, you agree that, except for indemnification obligations under
Section 6, Bitvise's total liabilities, if any, arising from this Agreement or
FlowSsh, including from anyone's use of your application(s) that incorporate
FlowSsh, shall not exceed the amount actually paid to Bitvise for your
current, affected Expanded License. Any use of FlowSsh that requires greater
assurance is at your own, or your end users', risk and responsibility.

If you are granted the right to distribute FlowSsh with your application(s),
you shall ensure that your license terms provide equal or superior protection
for Bitvise as this Agreement, and agree that Bitvise may hold you liable for
any costs arising from your failure to do so.

10. Headings.  Headings and captions are for convenience only and are not to
be used in the interpretation of this Agreement.

11. Governing Law, Jurisdiction and Venue.  This Agreement shall be governed
by the laws of the State of Texas. Each party agrees that any suit that it
brings in relation to this Agreement shall be brought in a court sitting in
Texas, and that venue is proper in Texas. Each party agrees not to dispute the
personal jurisdiction of a court sitting in Texas.

12. Severability.  If any provision of this Agreement is adjudged by any court
of competent jurisdiction to be unenforceable or invalid, and that provision
is capable of being limited or eliminated without destroying the material
economic incentives of Bitvise to extend the terms of this Agreement and for
you to accept them, then such provision shall be so limited or eliminated to
the minimum extent necessary so that this Agreement shall otherwise remain in
full force and effect and enforceable.

13. Survival.  The following provisions shall survive termination of this
Agreement: Section 9 (Limitation of Liability) and Section 11 (Governing Law,
Jurisdiction and Venue).

14. Waiver.  No failure to exercise or delay in exercising any right under
this Agreement will operate as a waiver of that right, nor will any single or
partial exercise of any right or power preclude further exercise of that right
or any other right.

15. Complete Agreement and Modification.  This Agreement constitutes the
entire agreement of the parties with respect to its subject matter, to be
superseded or modified only by a written document that refers specifically to
this Agreement and is signed by both parties.
