GENBAND SOFTWARE END USER LICENSE AGREEMENT

PLEASE READ CAREFULLY:  THIS END USER LICENSE AGREEMENT (“AGREEMENT”) IS A LEGAL AND BINDING AGREEMENT BETWEEN YOU AND/OR YOUR ORGANIZATION (“YOU”), AND GENBAND US LLC (“CONTRACTOR” OR “WE”).  USE OF CONTRACTOR’S SOFTWARE AND ASSOCIATED DOCUMENTATION IS SUBJECT TO THE TERMS AND CONDITIONS OF THIS AGREEMENT.

ALL QUESTIONS CONCERNING THIS AGREEMENT SHOULD BE DIRECTED TO GENBAND US LLC, 2801 NETWORK BLVD., SUITE 300, FRISCO, TEXAS 75034; PHONE NUMBER: 972-372-5000; E-MAIL: CONTACTGB@GENBAND.COM.

LICENSE:  Subject to the terms and restrictions set forth in this Agreement, Contractor grants you a limited, non-exclusive and non-transferable license (“License”) solely for your internal business use, allowing access to a website designated by Contractor, establishing remote electronic access and utilizing programs on a subscription basis, provided the applicable license/subscription fees have been paid.   You are not authorized to download, copy or modify the Software in any manner whatsoever.  Your access to the Software shall be exclusively through the processes provided to you and as set forth in the documentation provided to you by Contractor. You are not authorized to use the Service or the Software in a hosted environment or on a subscription basis for subsequent End Users.

RESTRICTIONS:  You shall not, and shall not permit any third party to:  (a) except as expressly set forth in this Agreement, use, copy, modify, create derivative works of, distribute, sell, assign, pledge, sublicense, lease, loan, rent, deliver or otherwise transfer the Software; (b) copy the Software onto any public or distributed network; (c) use the Software as a stand-alone application; (d) alter any of the Contractor trademarks, trade names, logos, patent or copyright notices or markings, or add any other notices or markings; (e) decrypt, attempt to decrypt, or engage a third party to decrypt the Software; (f) derive or attempt to derive the source code of or decompile the Software; or (g) disclose or publish performance benchmark results for the Software.  However, where you have other rights under statute that make any portion of the foregoing contractual prohibition void, you agree to provide Contractor with reasonably detailed information regarding any intended disassembly or decompilation. 

OWNERSHIP:  You acknowledge and agree that the Software is proprietary to Contractor and/or its licensors, and that this license confers no ownership rights to you and is not a sale of any rights in the Software, the associated documentation, or the media on which either is recorded or printed.  Ownership of all right, title, and interest in or to (i) the Software and any copies, updates or upgrades thereof; (ii) the documentation and any copies thereof; (iii) any ideas, suggestions, or feedback relating to the Software; and (iv) all intellectual property rights embodied within the foregoing (i)-(iii) are and shall remain the exclusive property of Contractor and/or its licensors.

CONFIDENTIALITY:  The Software contains proprietary and confidential information of Contractor as well as trade secrets owned by Contractor.  You agree to hold the Software in strict confidence and not to use or disclose the Software in any way except as expressly permitted hereunder.  You agree to protect the Software at least to the same extent that you protect your similar confidential information, but in no event less than reasonable care.

EXPORT RESTRICTIONS:  You warrant that you will comply with all regulations of agencies of the U.S. Government regarding export and re-export restrictions on the Software, including without limitation, the Export Administration Regulations of the U.S. Department of Commerce, which prohibit the export or diversion of certain technical products to certain countries, and that you will cooperate as requested by Contractor to ensure compliance with any such export restrictions.  You acknowledge that the Software contains encryption technology that may require special attention with respect to export laws and regulations.  You will hold harmless and defend, at Contractor’s option, Contractor from any third party claim against Contractor arising from your failure to comply with this paragraph.

UNITED STATES GOVERNMENT LEGEND:  The Software is commercial in nature and developed solely at private expense.  The Software is delivered as “Commercial Computer Software” as defined in DFARS  252.227-7014 (June 1995) or as a commercial item as defined in FAR 2.101(a) and as provided with only such rights as are provided in this Agreement, which is Contractor’s standard commercial license for the Software.  Technical data is provided with limited rights only as provided in DFAR 252.227-7015 (Nov. 1995) or FAR 52.227-14 (June 1987), whichever is applicable.

TERM AND TERMINATION:  This Agreement is effective until terminated, but in no event longer than the applicable Subscription Period.  However, it will terminate immediately if you fail to comply with any term or condition of this Agreement.  Upon such termination you agree to cease all use of the Software and associated documentation.  If this Agreement is terminated, all terms and conditions herein shall terminate immediately except those contained in the paragraphs entitled Restrictions, Ownership, Confidentiality, Term and Termination, Governing Law, Limitation of Liability and General which shall survive any termination of this Agreement.

GOVERNING LAW:  This Agreement shall be governed by the laws of the State of Texas and by the laws of the United States, excluding their conflicts of laws principles.  The United Nations Convention on Contracts for the International Sale of Goods (1980) is hereby excluded in its entirety from application to this Agreement.

WARRANTY DISCLAIMER: CONTRACTOR MAKES NO WARRANTIES OR REPRESENTATIONS CONCERNING THE PERFORMANCE OF THE SOFTWARE OR SERVICES TO THE END USER.  TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, CONTRACTOR DISCLAIMS ALL OTHER WARRANTIES TO RESELLER AND MAKE NO WARRANTIES WHATSOEVER TO THE END USERS REGARDING CONTRACTOR’S HARDWARE, SOFTWARE OR SERVICES, EXPRESS AND IMPLIED, STATUTORY OR OTHERWISE, INCLUDING BUT NOT LIMITED TO ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, NON-INFRINGEMENT OF INTELLECTUAL PROPERTY RIGHTS OF A THIRD PARTY, CUSTOM, TRADE, QUIET ENJOYMENT, ACCURACY OF INFORMATIONAL CONTENT, OR ANY WARRANTIES ARISING UNDER ANY STATUTE, COURSE OF DEALING OR OTHERWISE. IN NO EVENT SHALL Contractor BE LIABLE FOR THE COST OF PROCUREMENT OF SUBSTITUTE GOODS BY END USERS OR SERVICE PROVIDER OR FOR ANY SPECIAL EXEMPLARY, PUNITIVE, CONSEQUENTIAL OR INCIDENTAL DAMAGES FOR BREACH OF Service Provider will make no warranty, guarantee or representation, whether written or oral, on Contractor’s behalf.

LIMITATION OF LIABILITY:  IN NO EVENT WILL CONTRACTOR AND/OR ITS LICENSORS BE LIABLE FOR ANY INDIRECT, EXEMPLARY, SPECIAL, CONSEQUENTIAL, INCIDENTAL OR PUNITIVE DAMAGES OF ANY KIND, INCLUDING, WITHOUT LIMITATION, LOST PROFITS OR COSTS OF PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES, HOWEVER CAUSED AND REGARDLESS OF THEORY OF LIABILITY ARISING OUT OF THE USE OF OR INABILITY TO USE THE SOFTWARE, EVEN IF CONTRACTOR HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.   IN NO EVENT SHALL CONTRACTOR’S AGGREGATE LIABILITY HEREUNDER, WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE), OR OTHERWISE, EXCEED THE FEES ACTUALLY PAID OR PAYABLE FOR THE SOFTWARE LICENSED HEREUNDER.  THE WARRANTY AND LIMITATION OF LIABILITY CONTAINED IN THIS AGREEMENT ARE FUNDAMENTAL PARTS OF THE BASIS OF CONTRACTOR’S BARGAIN HEREUNDER.  IN THOSE STATES AND JURISDICTIONS THAT DO NOT ALLOW CERTAIN LIMITATIONS OF LIABILITY, CONTRACTOR’S LIABILITY SHALL BE LIMITED TO THE GREATEST EXTENT PERMITTED UNDER APPLICABLE LAW.

SEVERABILITY:  In the event any provision of this Agreement is found to be invalid, illegal or unenforceable, the validity, legality and enforceability of any of the remaining provisions shall not in any way be affected or impaired and a valid, legal and enforceable provision of similar intent and economic impact shall be substituted therefore.

ENTIRE AGREEMENT:  This Agreement sets forth the entire understanding and agreement between you and Contractor, supersedes all prior agreements, whether written or oral, with respect to the Software, and may be amended only in a writing signed by both parties.

GENERAL:  Failure or delay in enforcing any right or provision of this Agreement shall not be deemed a waiver of such right or provision with respect to any subsequent breach.  No terms, provisions, or conditions of any purchase order, acknowledgement, check, or other business form that you may use in connection with the licensing of the Software will have any effect on the rights, duties, or obligations of the parties under this Agreement, regardless of any failure of Contractor to object to such terms, provisions or conditions.  Your rights under this Agreement may not be transferred or assigned without the prior express written consent of Contractor and/or its licensors.  If Contractor and/or its licensors grant permission for an assignment of this Agreement to any third party, such transferee must accept the terms and conditions of this Agreement, and, upon such transfer, your License to the Software will automatically terminate.