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.
