DIGIUM END-USER PURCHASE AND LICENSE AGREEMENT
IMPORTANT - PLEASE READ CAREFULLY
1. This Digium End-User License Agreement (the "Agreement") is a legal agreement between Digium and its Affiliates (collectively referred to as "Digium") and the licensee, purchaser and end user respectively (hereinafter, "you", "You" or "your") of the Digium distribution media, software and related documentation (the "Software"), Digium services ("Services"), and any Digium computer electronics excluding Digium branded and manufactured phones ("Digium Phones"), the Speech Recognition Engine Bridge Software, and the AA50 which are governed by different end user agreements independent of and separate from this Agreement ("Hardware"), entitlements granted pursuant to a Subscription Agreement, and related manuals (collectively the "Products"). Affiliate means an entity which is (a) directly or indirectly controlling Digium; or (b) which is directly or indirectly owned or controlled by Digium. By downloading or installing the Software or installing the Hardware, 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 and/or use the Software or Hardware and, if presented with the option to "agree" or "disagree" to the terms, click "disagree", and should remove any installed Software or Hardware from your computer. If you do not agree to the terms of this Agreement you may return the Hardware, subject to the time limitations, unopened requirement, and other restrictions of Digium's then current Return Policy and Warranty Policy. You may only return Software if the Software had not been activated and is returned within ten (10) days following date of purchase. Copies of Digium's Return Policy and Warranty Policy may both be found on www.digium.com and the terms of those polices are incorporated herein by reference
2. GRANT OF LICENSE. Subject to the terms and conditions of this Agreement, Digium grants you a non-exclusive, non-sublicenseable, non-transferable license to use the Software for internal business purposes and not for resale, sub license, leasing, or (except for those Products excluded in Section 2.1 of this Agreement) providing hosted services to third-parties. "Software" shall include any upgrades, updates, bug fixes or modified versions ("Upgrades") or backup copies of the Software supplied to you by Digium or an authorized reseller, provided you hold a valid license to the original Software and have paid any applicable fee for Upgrades. Notwithstanding the foregoing, Digium acknowledges 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 that only Open Source Components with licenses that intend to grant permissions no less broad than the license granted in this Section 2 are included in the Software. To the extent which the licenses applicable to an Open Source Component prohibit any of the restrictions in this Agreement with respect to such Open Source Component, such restrictions will not apply.
Digium respects your privacy. Please read the following statement that applies to data collected by Digium through the Product Switchvox. The Product Switchvox collects a variety of information including but not limited to server and software configuration information and SIP Provider identities and reports that to Digium's server on a regular basis for the purpose of improving the performance of the Product Switchvox. This information may be stored by Digium perpetually. Digium may share and disclose the foregoing information in an aggregated form in order to describe our services to prospective and existing partners, advertisers, or other third parties, and for other lawful purposes. The aggregated information will not be linked to any personal information that can identify any individual person or company. The following information is excluded from being collected pursuant to the foregoing: call logs, call recording details, login and logout activity, extension details such as name, address, and password, SIP provider details such as username and password, phonebook entries for names and phone numbers, administrative-user information, and audio files. If you do not agree to allowing all information falling under the previously listed categories and excluding the exceptions to be collected you must indicate that by removing the checkmark from the allow box on the Product registration page of the Product Switchvox. You may notify Digium at any time pursuant to the foregoing that you do not agree to allow collection of the previously listed information. Failure to notify Digium that you do not agree to allow the collection of the listed information will be deemed consent to allow Digium to collect all listed information.
The Product Switchvox SMB Trial also requests permission from Digium's server to continue running. If for any reason the Switchvox SMB Trial does not receive permission to continue running, then it will cease functioning. For any Product utilizing MP3 functionality (meaning the MPEG Layer-3 audio coding technology, which complies with the specifications and operating parameters established by the Joint Technical Committee of the International Standards Organization as described in ISO/IEC IS 11172-3 and ISO/IEC IS 13818-3) supply of that Product does not convey a license nor imply any right to distribute MPEG Layer-3 compliant content created with that Product in revenue-generating broadcast systems (terrestrial, satellite, cable and/or other distribution channels), streaming applications (via Internet, intranets and/or other networks), other content distribution systems (pay-audio or audio-on-demand applications and the like) or on physical media (compact discs, digital versatile discs, semiconductor chips, hard drives, memory cards and the like). An independent license for such use is required. For details, please visit http://mp3licensing.com.
Please read the following statement that applies to the Software called the Digium Phone Module for Asterisk. You are granted a limited, non-exclusive license to download, install, use and run the Digium Phone Module for Asterisk with Asterisk, strictly for the communications and control of Digium branded and manufactured Phones. The use of the Digium Phone Module for Asterisk with phones not branded and manufactured by Digium is not permitted. The grants set forth in this EULA do not permit you to, and you agree not to, install, use or run the Digium Phone Module in conjunction with any non-Digium branded phone, or to enable others to do so.
2.1 PRODUCTS EXCLUDED FROM HOSTED SERVICES RESTRICTION
The following Products are excluded from the hosted services restriction of Section 2 of this Agreement. For purposes of clarification, You are free to use the Products in this Section 2.1 to provide hosted services to third parties.
G.729 for Asterisk
FAX for Asterisk
HPEC for Asterisk
Digium Phone Module for Asterisk
All varieties of Switchvox Products except that the Switchvox Products may only be used to provide hosted services by running each single instance of Switchvox on a single server in a data center. The Switchvox Products may not be used in a virtualized environment to provide hosted services.
3. RESERVATION OF RIGHTS. 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 Hardware (exclusive of Software embedded in the Hardware) and the physical media on which the Software and associated documentation are reproduced and distributed. If you allow an existing Services or Subscription Agreement plan to lapse, you may be required to pay retroactively annual fees for all Products from the date of the lapse in order to reinstate such Services. Products that are provided or sold as demo or evaluation units, or are marked with the legend "For Evaluation Only" or a similar notation, are not authorized for commercial business use in production or deployment, but are made available only for demonstration or evaluation purposes, and may not be resold or transferred to any third party without prior written permission from Digium.
4. EMERGENCY CALLS. You understand and acknowledge that the Products may be used to implement, supplement, or replace telephone systems and telecommunications services, and that in some cases, certain government regulations may apply to their implementation or use; and compliance with such regulations is your sole responsibility. You understand and acknowledge that users of the system on which you install the Products may attempt to use that system to place emergency calls. You acknowledge and agree that: the Products must be properly configured for your system or application; that the nature of the Products and any networks they may operate upon allow many possible configurations; that such configuration may be beyond the scope of the documentation supplied with the Products; and that specialized experience and training may be required to properly configure the Products. You acknowledge and agree that it is your sole responsibility to ensure that the Products and associated networks and systems are implemented and configured such that emergency calls are properly handled, and that any system or application based on the Products complies with all applicable laws and regulations. You acknowledge and agree that telephone and telecommunications systems can be complex and must be installed, implemented, and configured by the appropriate technically qualified personnel, and that you or your authorized agents have the qualifications necessary to properly implement and configure the Products to handle emergency calls, if applicable. You further acknowledge and agree that it is your sole and ongoing responsibility to ensure the proper operation of any emergency calling system based on the Products, including, but not limited to: initially and regularly testing the operation of the Products, including testing the operation with emergency services; notifying and training all users of any system on which the Products are installed how to use the system for emergency calls; and notifying such users of any and all limitations of your configuration and implementations of the Products and any network or system the Products are used on or with. By using the Products under this Agreement, you explicitly release Digium from any warranty, duty, liability, or obligation to train you or any users of your system regarding the proper configuration, operation, or use of the Products or any system or network they are used in conjunction with on which it is installed; to ensure that your configuration, implementation, or use of the Products provides for the proper handling or routing of emergency calls; or to ensure that your use of the Products is in compliance with any applicable laws and regulations.
5. LIMITATION OF LIABILITY.
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 Products, inconvenience or indirect damages of any character, including but not limited to damages for copyright or patent infringement, 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 Products, 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 defective or non-conforming Product(s). The maximum liability of Digium under this Agreement is limited to the purchase price of the Product(s) which is the subject of the dispute. If no money was paid for the applicable Product which is the subject of the dispute, then to the maximum extent permitted by applicable law Digium is not liable in any amount. The foregoing express written warranties and remedies are exclusive and in lieu of any other warranties or remedies, express, implied or statutory.
6. WARRANTY AND RETURN
The terms under which Digium's Products are warranted are defined in the Digium Warranty Policy, available on www.digium.com, the terms of which are included herein and incorporated by this reference. The Products may only be returned pursuant to Digium's Return Policy, available on www.digium.com, the terms of which are included herein and incorporated by this reference. Digium reserves the right to update Digium's Warranty Policy and Digium's Return Policy. The version of the Warranty Policy that is current as of the date of Your purchase of the Products is the version that applies to You. The version of the Return Policy that is current as of the date of the You request to return them applies to You.
6.1 WARRANTY EXCLUSIONS.
For purposes of clarification, certain Digium Products and Product families are not covered by Digium's Standard Warranty Policy ("Excluded Products"). FOR THE EXCLUDED PRODUCTS, TO THE MAXIMUM EXTENT ALLOWED BY APPLICABLE LAW, NEITHER DIGIUM, NOR ITS THIRD-PARTY LICENSORS OR SUPPLIERS, NOR ITS DIRECTORS, OFFICERS, EMPLOYEES, OR AFFILIATES MAKE ANY REPRESENTATIONS OR WARRANTIES OF ANY KIND TO ANY END USER, EITHER EXPRESS OR IMPLIED, WITH RESPECT TO THE PRODUCTS, INCLUDING, BUT NOT LIMITED TO WARRANTIES OR REPRESENTATIONS OF MERCHANTIBILITY, FITNESS FOR A PARTICULAR PURPOSE, OR NON-INFRINGEMENT, EXCEPT TO THE EXTENT OTHERWISE SPECIFICALLY AGREED IN WRITING BY SUCH PERSON OR ENTITY. TO THE MAXIMUM EXTENT ALLOWED BY APPLICABLE LAW, IN NO EVENT SHALL DIGIUM, ITS THIRD PARTY LICENSORS OR SUPPLIERS, NOR ITS DIRECTORS, OFFICERS, EMPLOYEES, AFFILLIATES OR LICENSORS BE LIABLE TO YOU FOR ANY DAMAGES OF ANY KIND, INCLUDING INCIDENTAL DAMAGES, CONSEQUENTIAL DAMAGES, OR ECONOMIC DAMAGE OR INJURY TO PROPERTY, LOST PROFITS OR LOST REVENUES, WHETHER BASED ON CONTRACT, TORT (INCLUDING NEGLIGENCE) OR OTHER THEORY AND REGARDLESS OF WHETHER SUCH PERSON OR ENTITY SHALL BE ADVISED OR HAVE REASON TO KNOW OF THE POSSIBLITY OF SUCH DAMAGES, EXCEPT TO THE EXTENT OTHERWISE AGREED IN WRITING BY SUCH PERSON OR ENTITY. SOME COUNTRIES, STATES, OR PROVINCES DO NOT ALLOW FOR THE EXCLUSION OF IMPLIED WARRANTIES OR THE LIMITATION OF INCIDENTAL OR CONSEQUENTIAL DAMAGES FOR CERTAIN PRODUCTS APPLIED TO CONSUMERS, OR THE LIMITATION FOR PERSONAL INJURY, SO THE ABOVE LIMITATIONS AND EXCLUSIONS MAY BE LIMITED IN THEIR APPLICATION TO YOU. IF THE IMPLIED WARRANTIES ARE NOT ALLOWED TO BE EXCLUDED IN THEIR ENTIRETY, THEY WILL BE LIMITED TO THE DURATION OF DIGIUM’S WARRANTY FOR OTHER SOFTWARE OR HARDWARE PRODUCTS (WHICHEVER IS APPLICABLE DEPENDING ON WHICH PRODUCT IS AT ISSUE) AVAILABLE ON WWW.DIGIUM.COM. The Excluded Products are defined in the following subsections. All terms and conditions of this Agreement apply to the Excluded Products as detailed in this Agreement.
6.1.1 PRODUCTS EXCLUDED FROM DIGIUM'S STANDARD WARRANTY POLICY
The following Excluded Products are not covered by Digium's Standard Warranty Policy and Digium expressly disclaims any liability arising from use of such Excluded Products pursuant to Section 6.1. :
FAX for Asterisk
G.729 for Asterisk
HPEC for Asterisk
The Digium Phone Module for Asterisk
7. PROPRIETARY WORKS. The Products contain trademarks, trade secrets and/or copyrighted materials of Digium or its suppliers.
7.1 You agree not to reverse engineer, decompile, or disassemble the Products, nor defeat, bypass, remove or otherwise interfere with any licensing mechanism which may be provided in or with the Products, 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 (including any information pertaining to any licensing mechanism which may be provided in or with the Products) in any form to any third party nor remove any trademark notices, copyright notices, or licensing terms from the Products or any components therein. Title and intellectual property rights in and to Digium trademarks and Digium copyrighted material which appears in content displayed by or accessed through the Products belongs to Digium This Agreement does not grant you any rights to use such trademarks or copyrighted material nor does it guarantee that such content will continue to be available to you.
7.2 You will not (except with regard to fair use or nominative use) without Digium's 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 trademark policies.
8. TERMINATION. This Agreement shall terminate upon 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 destroy or return all Products to Digium. Notwithstanding the foregoing, the provisions of Sections 5, 6, 7, 8, 9, 10, 11, 12 and 13 shall survive termination of this Agreement.
9. EXPORT RESTRICTION AND COMPLIANCE WITH ALL APPLICABLE LAWS. You acknowledge that the Products, with the possible exception of certain third-party components, are of United States origin. The export and re-export of the Products are controlled by the United States Export Administration Regulations and such Products may not be exported or re-exported to any country to which the United States embargoes goods. In addition, the Products may not be distributed to persons on the Table of Denial Orders, the Entity List, or the List of Specially Designated Nationals. By downloading or using a Digium Software Product, or using any other Digium Product, you are certifying that you are not a national of any country to which the United States embargoes goods and that you are not a person on the Table of Denial Orders, the Entity List or the List of Specially Designated Nationals. You also agree that you will not use the Products for any purposes prohibited by United States law. You agree to use the Products in compliance with all applicable laws, including local laws of the country or region in which you reside.
10. TRANSFER AND ASSIGNMENT. 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.
11. U.S. GOVERNMENT USERS. 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.
12. GOVERNING LAW AND JURISDICTION AND DISPUTE RESOLUTION. This Agreement shall be governed by and construed under the laws of the USA, and to the extent no federal law applies, the laws of the State of Alabama, USA. Forum, jurisdiction, and venue shall be determined in accordance with such law. If permitted by applicable law, Digium and you hereby expressly waive any right to a trial by jury and consent to a bench trial in the event of a dispute Digium and you agree to attempt to resolve any dispute by direct communication between representatives of each party who are authorized to finally resolve the dispute prior to filing any legal action against the other party. The parties agree to attempt to resolve the dispute within fourteen (14) days of the first direct verbal communication between the representatives of the parties in which the parties make good faith efforts to attempt to resolve the dispute following written notice of the dispute having been provided to the party not invoking this clause. The party with the dispute must provide the written notice and must provide sufficient detail in the notice as to the nature of the problem and requested remedies so as to permit the party not invoking this clause to make good faith attempts to remedy the dispute. The parties agree not to resort to legal action, other than injunctions, either prior to or during the fourteen day dispute resolution period. The United Nations Convention on International Sale of Goods, the application of which is expressly excluded, does not govern this Agreement.
13. ENTIRE AGREEMENT. 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. The parties agree that this Agreement may be executed electronically and that electronic copies of this Agreement shall be binding upon the parties. If any provision of this EULA is held to be void, invalid, unenforceable or illegal, the other provisions shall continue in full force and effect.
Digium EULA 012620122