END USER LICENSE AGREEMENT
THIS END USER LICENSE AGREEMENT (“EULA”) IS A LEGAL AGREEMENT BETWEEN THE INDIVIDUAL, COMPANY, OR LEGAL ENTITY INTENDING TO USE THIS SOFTWARE (“YOU” OR “CUSTOMER”) AND AXIA TECHNOLOGY PARTNERS, LLC, AN INDIANA CORPORATION. BY DOWNLOADING OR USING THE SOFTWARE, YOU REPRESENT, WARRANT, AND AGREE THAT YOU HAVE READ, UNDERSTOOD, AND AGREE TO BE BOUND TO THE TERMS OF THIS EULA. IF YOU DO NOT AGREE TO BE BOUND BY THIS EULA, OR YOU DO NOT HAVE AUTHORTIY TO BIND CUSTOMER TO THIS EULA, YOU MAY NOT USE OR INSTALL THE SOFTWARE.
a. “AxiaTP” means Axia Technology Partners, LLC, its employees, representatives, agents, and contractors.
b. “Software” means the Kerauno PBX computer software and any other proprietary software owned by, licensed by, or which AxiaTP has a right to sublicense under this Agreement including any updates, upgrades, modified versions, documentation, samples, and any other included resources.
c. “You” or “Your” shall refer to authorized users, either as individuals or entities, who have a license to use the Software in accordance with the terms and conditions of this EULA.
2. License Grant
Subject to the restrictions set forth below, this EULA grants you a non-exclusive, non-transferable, non-sublicensable, perpetual (unless terminated in accordance with this EULA) license to install and use one copy of the Software, on only one computer. The Software is “in use” on a computer when it is loaded into the temporary memory (i.e., RAM) or installed into the permanent memory (e.g., hard disk, CD-ROM, or other storage device) of that computer.
a. The license granted hereunder shall not be effective until you have paid in full all license fees, as applicable, for the Software due and payable to AxiaTP.
b. You may create a backup copy of the software binary for your own personal safekeeping only. You may not install or activate more than one copy of the Software at any time. You may not distribute, resell, or share the Software or any portions of the Software.
c. You may not use multiple instances of the Software in virtual environments without obtaining a separate license for each such use of the Software.
d. You agree that AxiaTP may audit Your use of the Software for compliance with these terms at any time, upon reasonable notice. In the event that such audit reveals any use of the Software by You other than in full compliance with the terms of this Agreement, You shall reimburse AxiaTP for all reasonable expenses related to such audit in addition to any other liabilities you may incur as a result of such noncompliance.
e. You may purchase upgrades to the Software from AxiaTP website or through AxiaTP’s authorized distribution partners. Available upgrade options are listed at AxiaTP reserves the right to change or update any upgrade options for AxiaTP from time to time without prior notice.
3. Limited License
You acknowledge and agree that the Software is the property of AxiaTP and is licensed and not sold to you under this EULA. You further acknowledge and agree to the following:
a. Other than as set forth in Section 2, You may not make or distribute copies of the Software, or electronically transfer the Software from one computer to another or over a network.
b. You may not alter, merge, modify, adapt or translate the Software, or decompile, reverse engineer, disassemble, or otherwise reduce the Software to a human-perceivable form.
c. You may not rent, lease, or sublicense the Software.
d. You may not modify the Software or create derivative works based upon the Software.
e. You shall not use the Software to develop any product having the same primary function as the Software.
g. You may not export the Software into any country prohibited by the United States Export Administration Act and the regulations hereunder.
h. You may not modify, remove or replace any copyright, patent, trademark or any other notices included in or placed upon the Software.
i. You may not use the Software in an attempt to, or in conjunction with any device, program or service designed to, circumvent technological measures employed to control access to, or the rights in, a content file or other work protected by the copyright laws of any jurisdiction.
j. In the event that You fail to comply with this EULA, AxiaTP may terminate the license and You must destroy all copies of the Software (in which case all other provisions of this EULA which by their nature or express terms should survive, will survive any such termination). In the event that AxiaTP determines in its sole discretion that Your copy of the Software may be pirated and/or that you have violated the EULA, AxiaTP may disable and terminate your license at any given time with or without warning.
If this copy of the Software is an upgrade from an earlier version of the Software, You must possess a valid full license to a copy of an earlier version of the Software used to upgrade to this copy in order to install and/or use the upgrade copy. The upgrade is provided to You on a license exchange basis. By Your installment and use of the upgraded Software, You agree to discontinue use of and destroy all copes of the earlier Software.
The foregoing license gives You limited license to use the Software. AxiaTP retains all right, title and interest, including all patents, trademarks, trade names, copyrights, and all other intellectual and proprietary rights in and to the Software (as an independent work and as an underlying work serving as a basis for any application You may develop), and all copies thereof.
THE SOFTWARE IS PROVIDED “AS IS” AND WITHOUT WARRANTY OF ANY KIND. AXIATP HEREBY EXCLUDES AND DISCLAIMS ALL IMPLIED OR STATUTORY WARRANTIES, INCLUDING ANY WARRANTIES OF MERCHTABILITY, FITNESS FOR A PARTICULAR PURPOSE , QUALITY, NON-INFRINGEMENT TITLE, RESULTS, EFFORTS OR QUIET ENJOYMENT. THERE IS NO WARRANTY THAT THE SOFTWARE WILL BE ERROR-FREE OR WILL FUNCTION WITHOUT INTERRUPTION, OR THAT TECHNICAL SUPPORT WILL YIELD DESIRED RESULTS. YOU ASSUME THE ENTIRE RISK FOR THE RESULTS OBTAINED FROM USING THE SOFTWARE.
7. Limitation of Liability
YOU EXPRESSLY UNDERSTAND AND AGREE THAT AXIATP SHALL NOT BE LIABLE TO YOU OR ANY THIRD PARTY FOR ANY
DIRECT, INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL, OR EXEMPLARY DAMAGES, INCLUDING, BUT NOT LIMITED TO, DAMAGES FOR LOSS OF PROFITS, GOODWILL, USE, DATA OR OTHER INTANGIBLE LOSSES RESULTING FROM: (i) THE USE OR THE INABILITY TO USE THE SOFTWARE; (ii) THE INABILITY TO USE THE SOFTWARE TO ACCESS CONTENT OR DATA; (iii) THE COST OF PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES; (iv) UNAUTHORIZED ACCESS TO OR ALTERATION OF YOUR TRANSMISSIONS OR DATA; OR (v) ANY OTHER MATTER RELATING TO THE SOFTWARE. THE FOREGOING LIMITATIONS SHALL APPLY NOTWITHSTANDING A FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY TO THE FULLEST EXTENT PERMITTED BY LAW.
AXIATP’S TOTAL LIABILITY TO YOU FOR ACTUAL DAMAGES FOR ANY CAUSE WHATSOEVER WILL BE LIMITED TO THE GREATER OF $500 OR THE AMOUNT PAID BY YOU FOR THE SOFTWARE THAT CAUSED SUCH DAMAGE.
8. Exclusions and Limitations
NOTHING IN THIS AGREEMENT IS INTENDED TO EXCLUDE OR LIMIT ANY CONDITION, WARRANTY, OR RIGHT OF LIABILITY WHICH MAY NOT BE LAWFULLY EXCLUDED OR LIMITED. SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF CERTAIN WARRANTIES OR CONDITIONS OR THE LIMITATION OR EXCLUSION OF LIABILITY FOR LOSS OR DAMAGE CAUSED BY NEGLIGENCE, BREACH OF CONTRACT, OR BREACH OF IMPLIED TERMS, OR FROM INCIDENTAL OR CONSEQUENTIAL DAMAGES. ACCORDINGLY, ONLY THE ABOVE LIMITATIONS IN SECTIONS 6 AND 7 WHICH ARE LAWFUL IN YOUR JURISDICTION WILL APPLY TO YOU AND AXIATP’S LIABILITY WILL BE LIMITED TO THE MAXIMUM EXTENT PERMITTED BY LAW.
9. Third-Party Software
The Software may contain or be provided with certain third-party software, including open source software, licensed under separate license terms. Such third-party software and license terms applicable thereto are identified in the documentation provided in or with the Software. Copyrights and other propriety rights to such third-party software are held by the copyright holders identified in their applicable third-party license terms, and such third-party software is licensed to You under the applicable third-party license terms. You acknowledge that all such third-party license terms are solely between You and the applicable licensor of such third-party software. By accepting this Agreement, You also agree to abide by all applicable third party license terms.
10. Privacy and Data Collection
The Software may collect certain information from the computer on which it is installed, which may include information regarding installation or use of the Software. This information indicates to AxiaTP whether installation of the Software was successfully completed and is collected by AxiaTP for the purpose of evaluation and improving AxiaTP’s product installation success rate, as well as compliance with this EULA.
11. Remote Access
The Software may include a feature that allows AxiaTP or its authorized service providers to remotely access or connect to the Software on the computer on which it is installed. This feature may be used to provide You with technical support (“Technical Support”) at your request. You agree that AxiaTP may remotely access or connect to the Software on the computer on which it is installed in order to provide you with Technical Support. AxiaTP shall have no obligation to provide Technical Support to you if you do not provide AxiaTP or its authorized service providers with reasonable remote internet access to the computer on which the Software is installed.
12. Export Restrictions
The Software may be subject to the U.S. export and re-export control laws and regulations, including the Export Administration Regulations (“EAR”) maintained by the U.S. Department of Commerce (“DOC”), and the trade and economic sanctions maintained by the Treasury Department’s Office of Foreign Assets Control (“OFAC”). You agree to (i) comply with the requirements of EAR, DOC, and OFAC and all applicable international, national, state, regional, and local laws and regulations, including without limitation, any applicable import and use restrictions; (ii) not export, or re-export, directly or indirectly, the Software to any country outlined in the EAR, nor to any person or entity on the DOC Denied Persons, Entities and Unverified Lists, the U.S. Department of State’s Debarred List, or on the U.S. Department of Treasury’s lists of Specially Designated Nationals, Specially Designated Narcotics Traffickers, or Specially Designated Terrorists; (iii) not export, or re-export the Software to any military entity not approved under the EAR, or to any other entity for any military purpose; and (iv) not license, sell, provide, or distribute the Software for use in connection with chemical, biological, or nuclear weapons.
You agree to indemnify, to the fullest extent permitted by law, AxiaTP from and against any fines or penalties that may arise as a result of your breach of this provision. This Section 12 (Export Restrictions) shall survive any termination of this Agreement.
a. Choice of Law and Jurisdiction. This EULA shall be governed by the laws of
the State of Indiana, without giving effect to principles of conflicts of laws. You hereby consent to the exclusive personal jurisdiction and venue of the state courts sitting in Allen County and Marion County, Indiana and/or the federal courts in the Northern and/or Southern District of Indiana to resolve any disputes arising under this EULA.
b. Attorney Fees. The prevailing party in any legal action between the parties
arising from or relating in any way to the Software or this EULA shall be entitled to recover their reasonable costs and attorney fees.
c. Entire Agreement. This EULA contains the complete agreement between the parties with respect to the license granted herein, and supersedes all prior or contemporaneous agreements or understandings, whether oral or written, regarding the licensing of the Software. You agree that any varying or additional terms contained in any purchase order or other written notification or document issued to or by You in relation to Your license of the Software shall be of no effect.
d. Waiver. The failure of AxiaTP to exercise or enforce any right or provision of this EULA shall not be deemed to constitute a waiver of such right or provision.
e. Severability. If any provision of this EULA shall be held by a court of competent jurisdiction to be contrary to law, the provision will be enforced to the maximum extent permissible and the remaining provisions of this EULA will remain in full force and effect.
f. Statute of Limitations. You agree that regardless of any statute or law to the contrary, any claim or cause of action arising out of or related to use of the Software or this EULA must be filed within one year after such claim or cause of action accrues or be forever barred.
g. Headings. The section headings in this EULA are for convenience only and have no legal or contractual effect.
h. Disrepute. You shall not commit any act likely to result in the disrepute or harming of AxiaTP’s interests, whether through explicit act or omission.
i. Trademarks. AxiaTP and other trademarks contained in the Software are trademarks or registered trademarks of AxiaTP in the United States and/or other countries. Third-party trademarks, trade names, product names and logos may be the trademarks or registered trademarks of their respective owners. You may not remove or alter any trademark, trade names, product names, logo, copyright or other propriety notices, legends, symbols or labels in the Software. This EULA does not authorize you to use AxiaTP’s name or any of its respective trademarks.