Digium End-User Purchase and License Agreement

July 2009

IMPORTANT - PLEASE READ CAREFULLY

1. This Digium End-User Purchase and 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 ("Hardware"), entitlements granted pursuant to a Subscription Agreement, and related manuals (collectively the "Products"). Affiliates 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 the Software or Hardware and should remove any installed Software and Hardware from your computer.

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, 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 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 Open Source Components prohibit any of the restrictions in this Agreement with respect to such Open Source Component, such restrictions will not apply . The Product Skype for Asterisk contains third party software that is licensed for use by Skype Software S.a.r.l under the terms of the Skype Business End User license at http://www.skype.com/go/business.eula for use with Skype communications products that are provided by Skype Communications S.a.r.l under the terms of the Skype Business Terms of Service at http://www.skype.com/go/business.terms. The Skype software is licensed, and the Skype products are provided, to end users for their own communication purposes only and any other use is strictly prohibited.

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 

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.The Product Skype For Asterisk is excluded from this Section 4. Skype For Asterisk does not support any emergency calls and You acknowledge that if You are using Skype For Asterisk it is Your responsibility to purchase, separately from the Skype software and Skype Products, traditional wireless or fixed line telephone services that offer access to emergency services, as more explicitly referred to in the Skype Business End User License Agreement and the Skype Business Terms of Service. 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. For purposes of clarification, to the maximum extent allowed by applicable law Digium is not liable in any amount for Excluded Product(s) as those Product(s) are provided at no charge. The foregoing express written warranties and remedies are exclusive and in lieu of any other warranties or remedies, express, implied or statutory.

6. WARRANTY.

The terms under which Digium's Products are warranted are defined in the Digium Standard Warranty Policy, available on www.digium.com, the terms of which are included herein and incorporated by this reference.

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, CONSEQUENTIAL, OR ECONOMIC DAMAGE OR INJURY TO PROPERTY, LOST PROFITS OR LOST REVENUES, WEHTHER 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, EXEPT TO THE EXTENT OTHERWISE AGREED IN WRITING BY SUCH PERSON OR ENTITY.   The Excluded Products are defined in the follow 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. :



Asterisk Desktop Assistant (ADA)

FAX for Asterisk

G.729 for Asterisk

HPEC for Asterisk 

7. PROPRIETARY WORKS. The Product(s) 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 Software, nor defeat, bypass, remove or otherwise interfere with any licensing mechanism which may be provided in or with 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 (including any information pertaining to any licensing mechanism which may be provided in or with the Software) in any form to any third party nor remove any trademark notices, copyright notices, or licensing terms from the Software or any components therein.


7.2 You will not (except with regard to fair use or nominative use) 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 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. You acknowledge that the Software, with the possible exception of certain third-party components, is of United States origin. The export and re-export of the Software is controlled by the United States Export Administration Regulations and such Software may not be exported or re-exported to Cuba, Iran, Iraq, Libya, North Korea, Sudan, Syria or any other country to which the United States embargoes goods.  In addition, the Software 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, you are certifying that you are not a national of Cuba, Iran, Iraq, Libya, North Korea, Sudan, Syria or any other 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.

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 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 Madison, Alabama, for any such legal action or proceeding. 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. The parties agree to attempt to resolve the dispute within fourteen (14) days of notice of the dispute having been provided to the party not invoking this clause and agree not to resort to legal action, other than injunctions, 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 EUPLA 07282009
