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PC PHONE CONNECTIONS
SOFTWARE LICENSE AGREEMENT
IMPORTANT — READ CAREFULLY BEFORE USING SOFTWARE
This Software License Agreement ("Agreement") 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 EZTapiAPI SDK software (including all libraries, dll files, any additional programs, 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 and notify Licensor in accordance with Section 7 of this Agreement. This Agreement is valid and grants the end-user rights ONLY for evaluation purposes unless a valid license key is provided by Licensor or an authorized vendor.
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. Evaluation
If you have received a copy of the Software from Licensor or an authorized vendor, but you have not yet purchased a license to use the Software, the Licensor grants you a personal, non- transferable, non-exclusive, limited license to install and use the Software for your own internal use solely for purposes of evaluating the Software for no more than thirty (30) days. When the Software is used on an evaluation basis, it may not have the full functionality described in its accompanying documentation.
2. 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:
(i) for each AUTHORIZED DEVELOPER CPU COPY of the Software paid for by the Licensee, to install, operate and use each AUTHORIZED DEVELOPER CPU COPY of the Software solely for use by the authorized project team specified in the order form the Software; and
(ii) for each AUTHORIZED RUNTIME COPY of the Software paid for by the Licensee, to install, operate, and use such runtime copy for the term of this Agreement or to distribute to an end-user ("End-User") that agrees to be bound by the terms of this Agreement such runtime copy as an integral part of, and solely in conjunction with, a product or software program distributed by Licensee ("Developer Product") that is registered and approved by Licensor and not as a separate, unbundled product (except as needed to replace a customer's defective media, or to remedy an error in the Software that can be resolved by providing customer with an upgrade).
b. Copies. The order confirmation that was delivered with this product specifies the number of AUTHORIZED DEVELOPER CPU COPIES and AUTHORIZED RUNTIME COPIES of the Software that are permitted to Licensee. 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, use, and/or distribute the number of authorized copies of the Software specified in the applicable order confirmation. AUTHORIZED RUNTIME COPIES of the Software may be produced by Licensee from Developer CPUs or may be provided directly to Licensee by Licensor and must be free of any Software source code. For each authorized copy, 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 at no additional license fee 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.
3. 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.
4. Support for Software
Product support for the Software is not provided by Licensor unless by some specific support agreement.
5. 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.
6. Fees
In partial consideration for the rights granted to Licensee herein, Licensee shall pay to Licensor or an authorized vendor the fees in accordance with the terms and conditions of the purchase order or other agreement(s) between the Licensee and Licensor or an authorized vendor that define the purchase and permitted use of the Software, which terms and conditions are incorporated herein by reference. Each party will be responsible for its own expenses incurred in rendering performance under this Agreement, including the cost of facilities, work space, computers and computer time, development tools and platforms, utilities management, personnel, supplies and the like.
7. 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 and notify Licensor or an authorized vendor from which it was received within ten (10) days thereof.
8. 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 returning to Licensor or destroying the Software and all copies thereof and deleting or uninstalling the Software and all copies thereof, and certifying the same in writing to Licensor within ten (10) business days of termination.
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 return to Licensor or destroy the Software and all copies thereof and delete or uninstall the Software and all copies thereof, and certify the same in writing to Licensor within ten (10) business days of termination.
9. 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 9 WILL SURVIVE ANY TERMINATION OF THIS AGREEMENT.
10. 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 2 and 3 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.
11. 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) any allegation that one or more of the Developer Products infringes the intellectual property rights of a third party; (iii) the use of the Client Libraries in a manner prohibited under this Agreement, or in a manner for which the Client Libraries were not designed; or (iv) 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 11(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.
12. 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 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.