IMPORTANT - READ CAREFULLY | |
1 AGREEMENT | |
1.1 This Digium End-User Purchase and License Agreement (the "Agreement") is a | |
legal agreement between Digium and the licensee and purchaser respectively | |
(hereinafter, "you", "You" or "your") of the Digium distribution media, | |
embedded software and related documentation (the "Software"), Digium services | |
(the "Services"), and related manuals (collectively the "Products"). BY | |
INSTALLING THE SOFTWARE, YOU AGREE TO AND ACCEPT THE TERMS AND CONDITIONS OF | |
THIS AGREEMENT. If you do not accept, or are not authorized to accept the terms | |
and conditions of this Agreement, then you should not install the Software and | |
should remove any installed Software from your computer. | |
2 GRANT OF LICENSE | |
2.1 Subject to your compliance with its obligations herein, Digium hereby | |
grants you a limited, non-transferable, non-exclusive, non-sublicensable | |
license to the Software for use with Zaptel software for internal business | |
purposes and not for resale, sublicense, or leasing to third-parties. | |
"Software" shall include any upgrades, updates, bug fixes or modified version | |
("Upgrades") or backup copies of the Software supplied to you by Digium | |
provided you hold a valid license key to the original Software and have paid | |
any applicable fee for Upgrades. | |
2.2 Notwithstanding the foregoing, you acknowledge that certain components of | |
the Software may be covered by so-called "open source" software licenses | |
("Open Source Components"). Digium will provide a list of Open Source | |
Components for a particular version of the Software upon your request. To the | |
extent required by the licenses covering Open Source Components, the terms of | |
such licenses will apply in lieu of the terms of this Agreement, and Digium | |
hereby represents and warrants that the licenses granted to such Open Source | |
Components will be no less broad than the license granted in this Section 2. | |
To the extent the terms of the licenses applicable to Open Source Components | |
prohibit any of the restrictions in this Agreement with respect to such Open | |
Source Component, such restrictions will not apply to such Open Source | |
Component. | |
2.3 "Key" refers to the unique registration code provided by Digium to enable | |
the Licensee to use the Software. You may use one copy of the Software | |
registered with a registration key, provided by Digium, on a single computer | |
owned, leased, or otherwise controlled by you at a single time. If you have | |
multiple registration keys for the Software you may use the Software on as | |
many computers as you have keys. The Software may not be used on or | |
distributed to a greater number of computers than you have registration keys. | |
3 RESERVATION OF RIGHTS | |
3.1 Except for the limited license rights expressly granted in this Agreement, | |
Digium reserves all rights in and to the Software and any modifications | |
thereto, including title, ownership, trademark, copyright, patent, trade secret | |
and any other rights and interests. You will own only the physical media on | |
which the Software and associated documentation are reproduced and distributed. | |
4 LIMITED WARRANTY - SOFTWARE | |
4.1 .Digium warrants only that the media on which Digium delivers the Software | |
will be free of physical defects for a period of ninety (90) days or will be | |
replaced by Digium. Except as otherwise agreed by Digium in writing, the | |
replacement Software is subject to the terms and conditions of this Agreement. | |
If Digium determines in its sole discretion that a defect cannot be corrected, | |
or that it is not practical to replace the Software, the price paid by the | |
original licensee for the Software will be refunded by Digium to you and the | |
license grant automatically terminated, in which case you will promptly return | |
to Digium or destroy the Software and any copies in your possession. | |
5 WARRANTY DISCLAIMERS | |
5.1 The limited warranty provided by Digium does not cover (i) Products that | |
have been subjected to misuse, tampering, modification, experimentation, | |
alteration, negligence, faulty installation; (ii) Products with the model or | |
serial number altered, tampered with, or removed; (iii) Initial installation, | |
installation and removal of the Product for repair, and shipping costs; | |
(iv) Configuration of the Product; (v) Damage that occurs in shipment due to | |
act of God, failures due to power surges, and cosmetic damage; (vi) Any | |
hardware, software, firmware or other materials or services provided by anyone | |
other than Digium; or (vii) Repair by anyone other than Digium or Digium's | |
authorized representative. Unless under a current Services contract with | |
Digium, you shall not upgrade or update Product using software of any origin | |
except commercial versions of the Software released to you by Digium or its | |
authorized distributors from time to time. THE PRODUCT IS PROVIDED WITHOUT ANY | |
IMPLIED WARRANTIES OF ANY KIND WHATSOEVER, INCLUDING, WITHOUT LIMITATION, ANY | |
IMPLIED WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND | |
NON-INFRINGEMENT. EXCEPT AS EXPRESSLY COVERED UNDER THE LIMITED WARRANTY | |
PROVIDED HEREIN, THE ENTIRE RISK AS TO THE QUALITY, SELECTION AND PERFORMANCE | |
OF THE PRODUCT IS YOURS. | |
6 RETURN MATERIAL AUTHORIZATION | |
6.1 If returning a Product under the limited warranty, you must include with | |
the Product a written description of the physical defect or in sufficient | |
detail to allow Digium to confirm such determination. Prior to returning a | |
Product under limited warranty to Digium, the original purchaser must obtain a | |
Return Material Authorization ("RMA") in accordance with the Digium policy in | |
effect at the time as published on the Digium web site. Digium will not be | |
obligated to accept returns of any Software that has been activated or | |
otherwise used. | |
7 LIMITATION OF LIABILITY | |
7.1 TO THE MAXIMUM EXTENT PERMITTED BY LAW, DIGIUM IS NOT LIABLE UNDER ANY | |
CONTRACT, NEGLIGENCE, STRICT LIABILITY OR OTHER LEGAL OR EQUITABLE THEORY FOR | |
ANY LOSS OF USE OF THE PRODUCT, INCONVENIENCE OR INDIRECT DAMAGES OF ANY | |
CHARACTER, WHETHER SPECIAL, INCIDENTAL OR CONSEQUENTIAL (INCLUDING, BUT NOT | |
LIMITED TO, LOSS OF REVENUE OR PROFIT, WORK STOPPAGE, COMPUTER FAILURE OR | |
MALFUNCTION, FAILURE OF CONNECTED EQUIPMENT OR PROGRAMS, LOSS OF INFORMATION | |
OR DATA OR LOSS OF GOODWILL) RESULTING FROM THE USE OF THE PRODUCT, RELATING | |
TO WARRANTY SERVICE, OR ARISING OUT OF ANY BREACH OF THIS AGREEMENT, EVEN IF | |
DIGIUM HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THE SOLE REMEDY FOR | |
A BREACH OF THE FOREGOING LIMITED WARRANTY IS REPAIR, REPLACEMENT OR REFUND OF | |
THE THE MAXIMUM LIABILITY OF DIGIUM UNDER THIS DEFECTIVE PRODUCT. IN NO EVENT | |
SHALL THE REMEDY RELATED TO THIS AGREEMENT EXCEED THE PURCHASE PRICE OF THE | |
APPLICABLE PRODUCT. THE FOREGOING EXPRESS LIMITED WRITTEN WARRANTY AND REMEDIES | |
ARE EXCLUSIVE AND IN LIEU OF ANY OTHER WARRANTIES OR REMEDIES, EXPRESS, IMPLIED | |
OR STATUTORY. | |
8 PROPRIETARY WORKS | |
8.1 The Products contain trademarks, trade secrets and/or copyrighted materials | |
of Digium or its suppliers. | |
8.2 You agree not to reverse engineer, decompile, or disassemble the Software, | |
except to the extent such restriction is expressly prohibited by applicable | |
law. You shall not disclose or make available such trade secrets or copyrighted | |
material in any form to any third party nor remove any trademark notices, | |
copyright notices, or licensing terms from the Software or any components | |
therein. | |
8.3 You will not, without Digium written consent, use the name, trademarks, | |
trade names or logos of Digium, or the name of any product or service of | |
Digium, in any manner. If Digium grants you a right to use the aforementioned, | |
you will do so only in strict compliance with Digium's usage policies. | |
9 TERMINATION | |
9.1 This Agreement shall terminate upon removal of the Products from your | |
server and either destruction of the Products or return of the Products by you | |
to Digium. In the event of a breach of the scope of use permitted by the grant | |
in Section 2, or if you do not comply with other materials terms and conditions | |
of this Agreement, Digium shall have the right to immediately terminate this | |
Agreement, in which case you must promptly remove the Software from your | |
servers and destroy or return all copies to Digium. Notwithstanding the | |
foregoing, the provisions of Sections 5, 6, 7, 10, 11, 12, 13 and 14 shall | |
survive termination of this Agreement. | |
10 EXPORT RESTRICTION | |
10.1 You acknowledge that the Software, with the possible exception of certain | |
third-party components, is of U.S. origin. You agree to comply with applicable | |
domestic and international laws that apply to the Software, including the U.S. | |
Export Administration Regulations and other limitations issued by U.S. and | |
foreign governments. | |
11 TRANSFER AND ASSIGNMENT | |
11.1 This Agreement and the rights and obligations under it are not assignable | |
by you without the prior written approval of Digium, voluntarily or by | |
operation of law. Any attempt by you to assign this Agreement without such | |
approval shall be void. This Agreement shall inure to the benefit of the | |
successors and assigns of Digium. Notwithstanding the foregoing, you may move | |
the Software to different internal computers to the extent consistent with the | |
scope of license you have purchased to the Software. | |
12 U.S. GOVERNMENT USERS | |
12.1 The Software and documentation qualify as "commercial items" as defined at | |
48 C.F.R. 2.101 and 48 C.F.R. 12.212. All Government users acquire the Software | |
and documentation with only those rights herein that apply to non-governmental | |
customers of Digium. | |
13 GOVERNING LAW AND JURISDICTION | |
13.1 This Agreement is to be construed in accordance with and governed by laws | |
of the State of Alabama, excluding its conflict of law provisions. Digium and | |
you agree to submit to the personal and exclusive jurisdiction of, and agree | |
that venue is proper in, the Alabama State or Federal Courts located in the | |
County of Jefferson, Alabama, for any such legal action or proceeding. The | |
United Nations Convention on International Sale of Goods, the application of | |
which is expressly excluded, does not govern this Agreement. | |
14 ENTIRE AGREEMENT | |
14.1 This Agreement constitutes the entire understanding between the parties | |
relating to the subject matter hereof and supersede all prior writings, | |
negotiations or understandings with respect thereto. The provisions of this | |
Agreement shall take precedence over any conflicting terms in any subsequent | |
purchase order, documentation or collateral. Any modifications to this | |
Agreement shall be reflected in a written agreement between the parties. The | |
parties agree that this Agreement may be executed electronically and that | |
electronic copies of this Agreement shall be binding upon the parties. |