PC PHONE CONNECTIONS
SOFTWARE LICENSE AGREEMENT
IMPORTANT — READ CAREFULLY BEFORE USING SOFTWARE
This End-Users License Agreement (“EULA”) is a legal
agreement between you and, if applicable, your company (“you” or “Licensee”),
and Robert Bamberg d/b/a PC Phone
Connections (“Licensor”). The Licensor is the manufacturer of this software
product (“Software”). The Software, as that term is used in this Agreement,
includes EZCallerId software (including all updates, modifications, fixes,
patches, upgrades, and revisions supplied initially or subsequently to the
Licensee), the associated media, any printed materials, and any “online” or
electronic documentation. Any software provided along with the Software that is
associated with a separate end-user license agreement is licensed to the
Licensee under the terms of that license agreement. By installing, copying,
downloading, accessing, or otherwise using this Software, the Licensee agrees
to be bound by the terms of this Agreement
and the Licensee represents that he or she is authorized to accept the
conditions of this Agreement individually and, if the Software is to be
used by the Licensee’s company, on behalf of the Licensee’s company. If you do
not agree to the terms of this Agreement or if you do not have the authority to
agree to this Agreement, you may not use or copy the Software, and you should
destroy the Software. This Agreement is valid and grants the end-user rights to
use this software for personal, non-commercial use.
BY INSTALLING, COPYING,
DOWNLOADING, ACCESSING, OR OTHERWISE USING
THE SOFTWARE YOU INDICATE ACCEPTANCE OF THIS AGREEMENT AND THE LIMITED WARRANTY
AND LIMITATION OF LIABILITY SET OUT IN THIS AGREEMENT. YOU SHOULD
THEREFORE READ THIS AGREEMENT CAREFULLY BEFORE INSTALLING, COPYING, DOWNLOADING,
ACCESSING, OR OTHERWISE USING THIS SOFTWARE.
A manually signed license agreement between the Licensee
and the Licensor, if applicable, will supersede any conflicting terms in this
Agreement. The text of this Agreement
can also be found in the on-line help system and printed from there.
LICENSE AGREEMENT
1.
Grant of License and
Permitted Uses
a.
Grant of License.
Subject to the terms and conditions of this Agreement and any applicable terms
and conditions of the purchase order or other agreement between the Licensee
and Licensor that define the terms of the purchase and permitted use of the Software, which terms and conditions are
incorporated herein by reference, Licensor grants Licensee a limited,
non-exclusive, non-transferable, license to install and use a copy of the
Software on one (1) compatible computer.
The
Software may not be shared, installed or used concurrently on different
computers.
b. Copies. Except as otherwise expressly provided in this Agreement, Licensee may
not copy the Software or any portion thereof, in whole or in part,
except as is necessary to load, operate, and use the Software. The Licensee may make one (1) copy of the
Software and the system configuration and other installation-specific files that
are created during the installation and configuration process using the
Software solely for archival purposes, provided that Licensee reproduces on the
back-up copy all copyright notices and any other proprietary legends that are
on or encoded in the Software. Licensee may transfer the Software and set-up and other installation-specific files
from one server to another provided that Licensee deletes the Software and
configuration and other installation-specific files from the server no
longer in use and from each back-up copy for that server.
c. Reservation of Rights. Any rights not expressly granted in this Agreement are reserved to Licensor.
2.
Intellectual Property
Restrictions and Other Limitations
a.
Restrictions on Copying
and Modifying. Except as otherwise expressly provided in this Agreement,
Licensee shall not (i) copy the Software, in whole or in part; or (ii) adapt,
alter, create derivative works based on, modify, or translate the Software, in
whole or in part.
b.
Open Source. Licensee shall not utilize the Software
in conjunction with any Public Software in a manner which would require the
Software to be disclosed or distributed in source code form or made available
at no charge. “Public Software” means any software that contains, or is derived
in any manner (in whole or in part) from, any software that is distributed as
free software, open source software (e.g., Linux) or similar licensing or
distribution models.
c.
Restrictions on
Transfer. Licensee may not (i) sell, assign, distribute, lease, market, rent,
lend, sublicense, transfer, make available, or otherwise grant rights to the
Software, in whole or in part, to any third party in any form; or (ii) electronically transfer the Software, in whole or
in part, from one computer to another over a network except as is necessary to load, operate and use one
installation copy of the Software.
d.
Intellectual Property
Notices and Marking. Licensee may not (i) obscure, remove or alter any of the
trademarks, trade names, logos, patent or copyright notices or markings applied
to or on the Software; or (ii) add any other notices or markings to the
Software or any portion thereof.
e.
Limitations on Reverse
Engineer, Decompilation, and Disassembly. Licensee may not reverse engineer,
decompile, or disassemble the Software or
any portion thereof or otherwise obtain or attempt to obtain the source code
for the Software or any portion thereof. If Software is provided with
source code, Licensee acknowledges that the
source code is confidential to Licensor. Licensee shall preserve the
confidentiality of the source code and ensure that the source code is
not disclosed, distributed, or available to third parties. Licensee shall limit
access to the source code to the single Licensed user as specified in the order
confirmation.
f. Restrictions on Separation of Components. The Software is
licensed as a single product. Licensee may not separate or attempt to separate
any of the components of the Software. The component parts of the Software may
not be separated for use on more than one computer.
3.
Support for Software
Product support for the Software is not provided by Licensor unless by some specific support agreement.
4.
Ownership of Software
Licensor
has and shall have sole and exclusive ownership of all right, title, and
interest in and to the Software and all portions and copies thereof. In
addition, Licensor shall have sole and exclusive ownership of any additional programs, updates, modifications, fixes, patches,
upgrades, and revisions provided to Licensee for the Software. No title
is transferred by this Agreement or by the payment of any fee. If title to the
Software or any part or element thereof does
not, by operation of law, vest in Licensor, Licensee hereby assigns to
Licensor, or its designee all right, title and interest in and to the
Software.
5.
Fees
The Software is offered free of
charge for personal, non-commercial use.
6.
Failure to Execute
Agreement
If you are unwilling or unauthorized to execute this
Software License Agreement, you should destroy the Software and all copies thereof.
7.
Term and Termination
a. Term.
This Agreement commences upon the earliest date that you install, copy,
download, use the Software or otherwise accept the terms and conditions of this
Agreement, provided that the terms and conditions of the purchase order or other
agreement between the Licensee and Licensor or an authorized vendor defining
the purchase and permitted use of the Software have been satisfied, and shall
continue until terminated as provided herein.
b.
Termination. Licensee
may terminate this Agreement at any time, with or without cause, by destroying
the Software and all copies thereof and deleting or uninstalling the Software
and all copies thereof.
c.
Effect of Termination.
Termination of this Agreement shall not relieve either party of any obligation or
liability accrued hereunder prior to such termination, nor affect or impair the
rights of either party arising under this Agreement prior to such termination,
except as expressly provided herein. Upon
termination, the Licensee agrees to promptly destroy the Software and all
copies thereof and delete or uninstall the Software and all copies thereof.
8.
Disclaimers and
Remedies.
a.
Disclaimer of Warranty.
THE SOFTWARE AND ALL PORTIONS THEREOF, AND ANY SERVICES ARE PROVIDED “AS IS.”
TO THE MAXIMUM EXTENT PERMITTED BY LAW, LICENSOR DISCLAIMS ALL OTHER WARRANTIES
OF ANY KIND, EITHER EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, IMPLIED
WARRANTIES OF MERCHANTABILITY, QUALITY, PERFORMANCE, AND FITNESS FOR A
PARTICULAR PURPOSE. LICENSOR DOES NOT WARRANT THAT THE FUNCTIONS OR INFORMATION
CONTAINED IN THE SOFTWARE WILL MEET ANY REQUIREMENTS OR NEEDS LICENSEE MAY
HAVE, OR THAT THE Software WILL OPERATE ERROR FREE, OR IN AN UNINTERRUPTED
FASHION, OR THAT ANY DEFECTS OR ERRORS IN THE SOFTWARE WILL BE CORRECTED, OR THAT
THE SOFTWARE IS COMPATIBLE WITH ANY PARTICULAR SYSTEM, NETWORK, OR SOFTWARE.
b.
Limitations of
Liability. TO THE MAXIMUM EXTENT PERMITTED BY LAW, IN NO EVENT WILL LICENSOR BE
LIABLE TO LICENSEE OR ANY THIRD PARTY FOR ANY LOSS OF PROFITS, LOSS OF USE,
LOSS OF DATA, OR INCIDENTAL OR CONSEQUENTIAL DAMAGES (INCLUDING, WITHOUT
LIMITATION, INDIRECT, SPECIAL, PUNITIVE, OR EXEMPLARY DAMAGES) ARISING OUT OF THE USE OF OR INABILITY TO USE THE SOFTWARE OR
ANY PORTION THEREOF, DEFECTS IN WARRANTY, ANY SERVICES, OR FOR ANY CLAIM
BY ANY OTHER PARTY, EVEN IF LICENSOR HAS BEEN ADVISED OF THE POSSIBILITY OF
SUCH DAMAGES. IN NO EVENT SHALL LICENSOR’S LIABILITY EXCEED THE AMOUNT OF FEES PAID UNDER THIS AGREEMENT (WHETHER SUCH
LIABILITY ARISES FROM BREACH OF WARRANTY, BREACH OF THIS AGREEMENT, OR OTHERWISE, AND WHETHER IN CONTRACT
OR IN TORT, INCLUDING NEGLIGENCE AND STRICT LIABILITY). IN NO EVENT MAY
ANY ACTION BE BROUGHT AGAINST LICENSOR ARISING OUT OF THIS AGREEMENT MORE THAN
ONE YEAR AFTER THE CLAIM OR CAUSE OF ACTION ARISES, DETERMINED WITHOUT REGARD
TO WHEN THE LICENSEE SHALL HAVE LEARNED OF THE ALLEGED DEFECT, INJURY, OR LOSS.
SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF IMPLIED
WARRANTIES OR LIABILITY FOR INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THE ABOVE EXCLUSION OR LIMITATION MAY NOT APPLY
TO EACH LICENSEE. THE PROVISIONS OF THIS SECTION 8 WILL SURVIVE ANY
TERMINATION OF THIS AGREEMENT.
9.
Security and Audit
Rights
Licensee
will take reasonable action to restrict and control all use of the Software to
enforce the limitations and restrictions set forth in Sections 1 and 2 of this
Agreement, and to permit access only to End-Users authorized to use the
Software. Licensee will make reasonable efforts to ensure compliance by all
End-Users authorized to use the Software
with this Agreement. Licensee grants Licensor the right to audit, at any time
during regular business hours without prior notice, use of the Software
to ensure compliance with this Agreement.
10.
Indemnification.
a.
Licensor. If Licensee
receives a claim that the use of the Software infringes a patent, copyright, or
other Intellectual property right, Licensee must promptly notify Licensor in
writing. Licensor shall, at its own expense and option: (i) defend and settle
such claim, (ii) procure Licensee the right to use the Software, (iii) modify
or replace the Software to avoid infringement; or (iv) provide a pro rata
refund of license fees paid for the applicable time period. In the event
Licensor exercises option (i) above, it shall have the sole and exclusive
authority to defend and/or settle any such claim or action.
b. Licensee. Licensee agrees to indemnify, defend, and
hold harmless Licensor and its directors, officers, employees, agents,
successors and assigns from and against any and all third-party liabilities,
claims, demands losses, damages, costs and expenses (including reasonable
attorney’s fees) which may be assessed against or incurred by Licensee relating
to or arising out of: (i) any material
breach of this Agreement by Licensee; (ii) the use of the
Software in a manner prohibited under this Agreement; or (iii) any negligent, grossly
negligent or intentional misconduct or omission of Licensee or its directors, officers, employees, agents,
successors and assigns in connection with its use of the Software.
c. Exceptions. Licensor shall have no liability to
Licensee under section 10(a) or otherwise for any claim or action alleging
infringement based upon (i) any use of the Software in a manner other than as
specified by Licensor; (ii) any combination
of the Software by Licensee with other products, equipment, devices, software,
systems, or data not supplied by an
authorized vendor or Licensor (including, without limitation, any software
produced by Licensee for use with the Software or Developer Products) to the extent such claim is directed against
such combination; (iii) any unauthorized modifications, enhancements or
customization of the Software by any person other than Licensor; or (iv)
use of other than a current release of the Software, if such infringement would have been avoided by use of a current
release that Licensor has made available to Licensee free of charge
prior to the notice of infringement.
11.
General Provisions
a.
Severability. Should
any term or provision of this Agreement be finally determined by a court of
competent jurisdiction to be void, invalid, unenforceable or contrary to law or
equity, the offending term or provision shall be modified and limited (or if
strictly necessary, deleted) only to the
extent required to conform to the requirements of law and the remainder of this
Agreement (or, as the case may be, the application of such provisions to
other circumstances) shall not be affected thereby but rather shall be enforced
to the greatest extent permitted by law, and
the parties shall use their best efforts to substitute for the offending
provision new terms having similar economic effect.
b. Governing Law. This Agreement shall for all purposes
be governed by and interpreted in accordance with the laws of the Commonwealth
of Massachusetts, as those laws are applied to contracts entered into and to be
performed entirely in Massachusetts, without reference to its conflicts of laws
provisions. Any legal suit, action, or proceeding arising out of or relating to
this Agreement shall be commenced in a federal or state court in the
Massachusetts, and each party hereto irrevocably submits to the non-exclusive jurisdiction and venue of any such court in any
such suit, action, or proceeding. Licensee hereby acknowledges and agrees that
the U.N. Convention on Contracts for the International Sale of Goods
shall not apply to this Agreement.
c. U.S. Government Rights. If you are a branch or agency of the U.S. Government, then you acknowledge that the Software is a
“commercial item” as that term is defined at 48 C.F.R. 2.101, consisting of
“commercial computer software” and “commercial computer software documentation”
as such terms are used in 48 C.F.R. 12.212.
Any technical data provided with the Software is commercial technical
data as defined in 48 C.F.R. 12.211.
Consistent with 48 C.F.R. 12.211 through 12.212 and 48 C.F.R. 227.7202-1
through 227.7202-4, and 48 C.F.R. 252.227-7015, all U.S. Government end users
acquire the Software with only the rights set forth in this Agreement.
d. Modification and Waiver. Any modification, amendment,
supplement, or other change to this Agreement must be in writing and signed by
a duly authorized representative of Licensor and Licensee. All waivers must be
in writing. The failure of Licensor to insist upon
strict performance of any provision of this Agreement, or to exercise any right
provided for herein, shall not be deemed to be a waiver of the future
performance or exercise of such provision or right, and no waiver of any
provision or right shall affect the right of the waiving party to enforce any
other provision or right herein.
e. Assignment. No right or obligation of Licensee under
this Agreement may be assigned, delegated or otherwise transferred, whether by agreement, operation of law, or otherwise, without
the express prior written consent of Licensor, and any attempt to assign,
delegate or otherwise transfer any of
Licensee’s rights or obligations hereunder, without such consent, shall be
void. Subject to the preceding sentence, this Agreement shall bind each
party and its permitted successors and assigns.
f. Remedies. The parties agree that any breach of this
Agreement would cause irreparable injury for which no adequate remedy at law exists; therefore, the parties agree that
equitable remedies, including without limitation, injunctive relief and
specific performance, are appropriate
remedies to redress any breach or threatened breach of this Agreement, in
addition to other remedies available to the parties. All rights and
remedies hereunder shall be cumulative, may be exercised singularly or
concurrently, and shall not be deemed exclusive
except as otherwise provided. If any legal action is brought to enforce any
obligations hereunder, the prevailing party shall be entitled to receive
its attorneys’ fees, court costs, and other collection expenses, in addition to
any other relief it may receive. Licensee hereby waives any right or claim to
which Licensee may be entitled to immunity or exemption from liability.
g. Notice. All notices, statements and reports required
or permitted by this Agreement shall be in writing and deemed to have been effectively given and received: (i) on the date
shown on the return receipt if sent by registered or certified U.S. Mail,
postage prepaid, with return receipt requested; or (ii) when delivered
if delivered personally or sent by express courier service provided a receipt
of delivery is obtained. Notices shall be addressed as follows:
PC Phone Connections
Email: sales@pcphoneconnections.com
h. Force Majeure. Neither party will be responsible for
any failure to fulfill its obligations due to causes beyond its reasonable
control, including without limitation, acts or omissions of government or
military authority, acts of God, materials shortages, transportation delays, fires, floods, labor disturbances, riots,
wars, or inability to obtain any export or import license or other approval of
authorization of any government authority.
i. Export
Control. Licensee shall not export or allow the export or re-export of the
Software or any portions thereof without compliance with all export laws and
regulations of the U.S. Department of Commerce
and all other U.S. agencies and authorities, including without limitation, the
Export Administration Regulations of the U.S. Department of Commerce,
Bureau of Export Administration, and, if applicable, relevant foreign laws and
regulations.
j. Relationship. Licensor and Licensee are independent contracting
parties. This Agreement shall not constitute the parties as principal and
agent, partners, joint venturers, or employer and employee.
k. Entire Agreement. This Agreement constitutes the
entire, full and complete Agreement between the parties concerning the subject
matter hereof, and they collectively supersede all prior or contemporaneous
oral or written communications, proposals, conditions, representations and warranties. This Agreement prevails over any
conflicting or additional terms of any quote, order, acknowledgment, or
other communication between the parties relating to its subject matter.