END USER LICENSE AGREEMENT (EULA)
THIS END USER LICENSE AGREEMENT (“Agreement”), is made on the _______day of___________, 20__, between ICON VOICE NETWORKS (“ICON”) with its principle office at 480 Wrangler Drive, Ste. 400, Coppell, TX 75019 (the “Licenser”) and _____________________ (the “End User”).
WHEREAS, End User has purchased an Iwatsu ENTERPRISE Communications Server telecommunication system (“System”) or components thereto from an Authorized ICON Voice Networks Dealer (“Dealer”) for use in a commercial application; and WHEREAS, the System and component thereto, including ICON Products, contains Copyrighted Software (the “Software”), owned or licensed by Iwatsu, ICON, and others (collectively, the “Owners”), which are their exclusive property and constitutes valuable trade secrets, and which Licenser is authorized to sub-license to End User; and
WHEREAS, the End User desired to obtain, from Licenser, a sub-license allowing it to use the Software by agreeing to be bound by the terms and conditions set forth in this Agreement.
NOW THEREFORE, in consideration of the premises, the parties hereto, intending to be bound, hereby agree, as follows:
- The parties agree to the above recitals, which are incorporated by the reference herein.
- Grant of License.
Licenser hereby grants to End User a non-exclusive, paid up license to use Software subject to terms and conditions herein concerning restrictions on its use. End User agrees not to execute, use, copy, alter or modify the Software (except for making an archival back-up copy as provided in the U.S. Copyright law) or take any action inconsistent with the Owners’ intellectual property rights in the Software. End User agrees not to decompile or reverse assemble the Software, or analyze or otherwise examine it for reverse engineering the Software or for reverse engineering any hardware or firmware implementation of the Software. End User agrees to neither resell nor otherwise transfer the Software for export; nor to another without first assuring that recipient of such agrees, in writing, to adhere to the material terms and conditions of this license. End User agrees to use the Software only in conjunction with the equipment n which the Software may be executed and at the originally installed site.
3. Limited Warranty.
A. Licenser warrants that (i) the Software, for a period of twelve (12) months from the date of installation will perform substantially in conformance with the current published Documentation, and (ii) under normal use and service, the media on which the Software is delivered shall be free from defects in material and workmanship for a period of ninety (90) days from date of cutover.
B. If the Software fails to meet the media warranty and the End User gives written notice thereof during the applicable warranty period to the Dealer, Licenser’s sole obligation shall be to replace such media. If the Software fails to meet the then current published Documentation, and End User gives Dealer written notice during the applicable warranty period and detail the information regarding said failure thereof, and Licenser is able to duplicate same, Licenser’s sole obligation shall be to provide technical services to attempt to correct the failure or refund the purchase price paid. End user acknowledges that the Software is complex, may not be error free, and that all errors, if any, may not be correctable or available.
C. This limited warranty is void if failure of the Software had resulted from Acts of God, accident, abuse, misapplication or electrical surge or any other cause beyond Owner’s control.
TO THE FULL EXTENT PERMITTED BY LAW, LICENSER, THE OWNERS, AND DEALER EXPRESSLY DISCLAIM ALL OTHER WARRANTIES AND CONDITIONS, WHETHER ORAL OR WRITTEN, EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION WARRANTIES OR CONDITIONS OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, OR NON-INFRINGEMENT AND THIS SO ACKNOWLEDGED BY END USER. EXCEPT AS EXPRESSLY SET FORTH HEREIN, THE SOFTWARE AND DOCUMENTATION ARE PROVIDED “AS IS”. LICENSER AND OWNERS FURTHER DISCLAIMS ANY AND ALL WARRANTIES AND REPRESENTATIONS CONCERNING THE SOFTWARE MADE BY PERSONS OTHER THAN ICON INCLUDING, BUT NOT LIMITED TO, THE AUTHORIZED ICON DEALER AND ANY THIRD PARTY.
D. End User shall be solely responsible for the selection, use, efficiency and suitability of the Software and the Licenser shall have no liability therefore.
E. Neither the Licenser nor the Owners shall be liable to End User for the warranty provisions of this Paragraph 3, if:
(i) Modifications are made to the Software;
(ii) The Software is used with software or hardware that are not supplied by Licenser or are not approved in writing by Licenser; or
(iii) The media for the Software is subject to misuse or abuse.
F. Licenser’s warranty is limited to the initial installation of Software on Licenser’s provided equipment.
A. If a claim is made that the licensed use of the Software infringes any United States patent, copyright, trade secret or other proprietary right, or if Licenser believes that a likelihood of such claim exists, Licenser may, in Licenser’s sole discretion, either procure for End User the right to continue using the Software, modify it to make it non-infringing but continue to meet the specifications therefore, or replace it with non-infringing software of like functionality which meets the specifications for the Software; provided, however, if none of the foregoing is reasonably available to Licenser, Licenser may terminate/cancel the license granted herein and require that End User return the Software, including all copies and portions to Licenser in return for a refund of the purchase price paid y the Dealer for the Software based upon a three (3) year amortization.
B. Neither Licenser nor the Owners shall have any liability to End User for any claim of infringement pursuant to this Paragraph 4 if such claim is based on:
(i) Combination of the Software with data or other software or devices not supplied by Licenser; or
(ii) Modifications made to the Software.
C. The foregoing sets forth Licenser’s, the Owners’, and Dealer’s entire liability to End User for the infringement of proprietary rights by the Software or any portion thereof.
5. Limitation of Liability.
(I) IN NO EVENT SHALL LICENSER, OWNERS, OR DEALER BE LIABLE FOR ANY DIRECT, INDIRECT, CONSEQUENTIAL OR INCIDENTAL DAMAGES (INCLUDING DAMAGES FOR LOSS OF BUSINESS PROFITS, BUSINESS INTERRUPTION, LOSS OF BUSINESS INFORMATION, THE CLAIMS OF THIRD PARTIES INCLUDING CUSTOMERS, AND THE LIKE) ARISING OUT OF THE USE OR INABILITY TO USE THE SOFTWARE EVEN IF LICENSER, OWNERS, OR DEALER HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. LICENSER, OWNERS OR DEALER LIABILITY TO END USER HEREUNDER, IF ANY, SHALL IN NO EVENT EXCEED THE TOTAL OF THE LICENSE FEES PAID TO DEALER HEREUNDER BY THE END USER.
6. Licenser’s, Owners’ and/or Dealer’s foregoing rights and remedies shall be cumulative and in addition to all other rights and remedies available to Licenser in law and in equity.
7. End User acknowledges that the System purchased by End User may contain Third Party Product consisting of Software that is subject to license, if any, by the Third Party Product manufacturers/suppliers. Dealer shall inform End User of all such license requirements.
END USER ACKNOWLEDGES AND AGREES THAT THE SOFTWARE CONTAINED IN THE THIRD PARTY PRODUCT IS MADE AVAILABLE BY ICON TO DEALER FOR LICENSE TO THE END USER “AS IS” AND IS NOT SUPPORTED, WARRANTED OR GUARANTEED BY ICON IN ANY MANNER AND THAT ICON HEREBY DISCLAIMS AND END USER HEREBY EXPRESSLY WAIVES, ANY AND ALL IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE. END USER HEREBY WAIVES ANY AND ALL CLAIMS AGAINST ICON AND DEALER FOR DAMAGES, ARISING OUT OF ICON’s OR DEALER’s SALE, RESALE, OR LICENSING OF ANY SOFTWARE CONTAINED IN THIRD PARTY PRODUCT TO END USER.
8. Any cause of action arising out of or related to this Agreement must be brought no later than one (1) year after the same has accrued, or later as allowed by law
9. This writing constitutes the entire Agreement between the parties with regard to the Software license, as well as, the terms and conditions thereof and it may not be amended or modified without the express written consent of the parties to this Agreement.
10. This Agreement shall be interpreted in accordance with the substantive laws of the State of Texas. End User acknowledges that it consents to the exclusive jurisdiction of the Courts of the State of Texas, County of Dallas, and represent that any action commenced by End User as a result of an alleged breach of this Agreement, shall be commenced in a court of proper jurisdiction in the State of Texas, County of Dallas.