PLEASE READ THIS END USER LICENSE AGREEMENT CAREFULLY. BY DOWNLOADING, INSTALLING OR USING THE SOFTWARE THAT ACCOMPANIES THIS AGREEMENT, YOU AGREE TO BE BOUND BY THE TERMS OF THIS AGREEMENT.
This End User License Agreement (“EULA”) is a legal agreement between DuVoice Corporation (“DuVoice”) and reseller or end user for the software product identified above, as a service, including any associated printed or online documentation (“Software”), whether obtained directly from DuVoice or through one of the DuVoice designated distributors, resellers or other representatives.
1. GRANT OF LICENSE. Subject to the terms of this EULA, DuVoice hereby grants you a nonexclusive, nontransferable, limited license to install and run the Software that is controlled by you solely for SaaS resale. However, you may make and use a reasonable number of copies of any user documentation provided with the Software; provided, that such copies will only be used for SaaS purposes and are not to be republished or redistributed (either in hard copy or electronic form) beyond your premises.
2. DESCRIPTION OF OTHER RIGHTS AND LIMITATIONS
a. Other Licenses. Your use of other software applications installed on or accessed through the Server may require additional licenses and are not covered under this EULA. Please consult the license agreement accompanying such software.
b. Limitations. The preceding sections state the entirety of your rights with respect to the Software. Without limiting the foregoing, you will not, and you will not authorize or permit any third party to: (a) use the Software for any purpose other than SaaS; (b) license, distribute, lease, rent, lend, transfer, assign or otherwise dispose of the Software or use the Software in any commercial hosted or service bureau environment; © reverse engineer, decompile, disassemble or attempt to discover the source code for or any trade secrets related to the Software, except and only to the extent that such activity is expressly permitted by applicable law notwithstanding this limitation; (d) modify, alter or create any derivative works of the Software; (e) remove, alter or obscure any copyright notice or other proprietary rights notice on the Software; or (f) circumvent or attempt to circumvent any methods employed by DuVoice to control access to the components, features or functions of the Software.
c. Reservation of Rights. The Software is protected by copyright and other intellectual property laws and treaties. DuVoice or its suppliers own the title, copyright, and other intellectual property rights in the Software. The Software is licensed, not sold. DuVoice and its suppliers reserve all rights not expressly granted to you in this EULA. Nothing in this EULA grants a license under any DuVoice intellectual property to implement any functionality contained in the Software (including, without limitation, communication protocols used by the Software) in any software installed on a device accessing or utilizing the Server.
3. TECHNICAL SUPPORT SERVICES
a. Scope. DuVoice will provide you with 24/7 Technical Support as defined under the provisions of DuVoice’s then current Support Plan. Any software DuVoice may provide you as part of a support service are governed by this EULA, unless separate terms are provided. This EULA does not obligate DuVoice to provide any support services or to support any software provided as part of those services.
b. Consent to Use of Data. DuVoice and its affiliates may collect and use technical information gathered as part of the support services provided to you, if any, related to the Software. DuVoice may use this information to improve its products or services or to provide services or technologies to you. DuVoice will not disclose this information to third parties (other than DuVoice’s subcontractors involved in the performance of services) in a form that personally identifies you without your consent.
c. Third Party Software. Any third party software not provided or approved by DuVoice must be removed at the request of DuVoice before any support service can be provided. Failure to comply may result in refusal by DuVoice to provide support services.
4. UPDATES. This EULA applies to updates, supplements, add on components, and Internet based services components of the Software that DuVoice may provide or make available to you unless DuVoice provides other terms with the update, supplement, add on component, or Internet-based services component. DuVoice reserves the right to discontinue any Internet based services provided to you or made available to you through the use of the Software.
5. NOT FOR RESALE SOFTWARE. Software identified as “Not for Resale” or “NFR” or “DEMO” may not be sold or otherwise transferred or used for any purpose other than demonstration, test or evaluation.
6. LIMITED WARRANTY; EXCLUSIVE REMEDY; DISCLAIMER. DuVoice warrants to you that the Software will perform substantially in accordance with the accompanying Software documentation for a period of 90 days from the date of receipt of the Software. To the maximum extent permitted by applicable law, DuVoice’s and its suppliers’ entire liability and your exclusive remedy for failure of the Software to conform to the foregoing warranty is, at DuVoice’s option, either (a) return of the license fee paid by you for the nonconforming Software in exchange for return of the nonconforming Software by you, or (b) repair or replacement of the Software that does not meet the warranty. The foregoing warranty is void if the failure is due to accident, abuse, misuse or unauthorized use and does not apply to any “Not for Resale,” “NFR,” or “DEMO” software or to any third party programs. Any replacement Software will be warranted for the remainder of the original warranty period, if any.
EXCEPT AS EXPRESSLY SET FORTH ABOVE IN THIS SECTION 6, DUVOICE AND ITS SUPPLIERS PROVIDE THE SOFTWARE “AS IS” AND WITH ALL FAULTS. DUVOICE AND ITS SUPPLIERS HEREBY DISCLAIM ALL OTHER WARRANTIES, EXPRESS, IMPLIED OR STATUTORY, ARISING BY LAW OR OTHERWISE, INCLUDING, BUT NOT LIMITED TO, ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE OR USE, TITLE AND NONINFRINGEMENT. WITHOUT LIMITING THE FOREGOING, DUVOICE DOES NOT WARRANT THAT THE SOFTWARE WILL BE FREE OF BUGS, ERRORS, VIRUSES OR OTHER DEFECTS.
7. DISCLAIMER OF CERTAIN DAMAGES. IN NO EVENT WILL DUVOICE OR ITS SUPPLIERS BE LIABLE FOR THE COST OF COVER OR FOR ANY INCIDENTAL, INDIRECT, SPECIAL, PUNITIVE, CONSEQUENTIAL OR SIMILAR DAMAGES OR LIABILITIES WHATSOEVER (INCLUDING, BUT NOT LIMITED TO, LOSS OF DATA, INFORMATION, REVENUE, PROFIT OR BUSINESS) ARISING OUT OF OR RELATING TO THE USE OR INABILITY TO USE THE SOFTWARE OR OTHERWISE UNDER OR IN CONNECTION WITH THIS EULA OR THE SOFTWARE, WHETHER BASED ON CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY OR OTHER THEORY EVEN IF DUVOICE HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
8. LIMITATION OF LIABILITY. DUVOICE’S AND ITS SUPPLIERS’ LIABILITY ARISING OUT OF OR RELATING TO THE USE OR INABILITY TO USE THE SOFTWARE OR OTHERWISE UNDER OR IN CONNECTION WITH THIS EULA OR THE SOFTWARE IS LIMITED TO THE AMOUNT ACTUALLY PAID BY YOU FOR THE SOFTWARE REGARDLESS OF THE AMOUNT OF DAMAGES YOU MAY INCUR AND WHETHER BASED ON CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY OR OTHER THEORY. The foregoing disclaimer of warranties, disclaimer of certain damages and limitation of liability will apply to the maximum extent permitted by applicable law. The laws of some states/jurisdictions do not allow the exclusion of implied warranties or the exclusion or limitation of certain damages. To the extent that those laws apply to this EULA, the exclusions and limitations set forth above may not apply to you.
9. SOFTWARE TRANSFER.
a. Internal transfer. You may move the Software to a different Server owned or controlled by you provided you permanently remove it from the initial Server.
b. Transfer to Third Party. The Software may only be transferred to another party, person or entity if it is re-registered with DuVoice by that party person or entity.
10. TERMINATION. If you are not in compliance with all the terms and conditions of this EULA, DuVoice may, without prejudice to any other rights, terminate this EULA. In such event, you must destroy all copies of the Software.
11. EXPORT RESTRICTIONS. You acknowledge that the Software is subject to U.S. export restrictions. You agree to comply with all applicable laws and regulations that apply to the Software and your use thereof, including, without limitation, the U.S. Export Administration Regulations.
12. COMMERCIAL ITEMS. If acquired by any agency of the United States government, such agency acknowledges that (a) the Software constitutes “commercial computer software” or “commercial computer software documentation” for purposes of 48 C.F.R. §12.212 and 48 C.F.R. §227.7202, as applicable and (b) such agency's rights are limited to those specifically granted under this EULA.
13. ATTORNEYS' FEES. In any action or proceeding to enforce rights under this Agreement, the prevailing party will be entitled to recover costs and reasonable attorneys’ fees.
14. ENTIRE AGREEMENT; SEVERABILITY. This EULA (including any addendum or amendment to this EULA which is included with the Software) sets forth the entire agreement between you and DuVoice relating to the Software and they supersede all prior or contemporaneous oral or written communications, proposals and representations with respect to the Software or any other subject matter covered by this EULA. To the extent the terms of any DuVoice policies or programs for support services conflict with the terms of this EULA, the terms of this EULA shall control unless the parties otherwise agree in writing. 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.
15. GOVERNING LAW; VENUE. This EULA is governed by the laws of the State of Washington without regard to any conflict of law principles to the contrary. The 1980 U.N. Convention on Contracts for the International Sale of Goods or any successor thereto does not apply. You hereby irrevocably submit to jurisdiction of the state and federal courts located in King County, Washington with respect to any proceeding under this EULA or relating to the Software. You will not prosecute any action, suit, proceeding or claim arising under or by reason of this EULA except in such courts.