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 XOP NETWORKS INC. ("XOP NETWORKS" OR "WE"). USE OF XOP NETWORKS PRODUCT, INCLUDING WITHOUT LIMITATION ALL SOFTWARE, HARDWARE AND ASSOCIATED DOCUMENTATION, IS SUBJECT TO THE TERMS AND CONDITIONS OF THIS AGREEMENT. ALL QUESTIONS CONCERNING THIS AGREEMENT SHOULD BE DIRECTED TO XOP NETWORKS INC., 17218 Preston Rd Suite 2400A Dallas, TX 75252, PHONE NUMBER: 972-590-0201.
LICENSE: XOP NETWORKS grants you a non-exclusive and non-transferable license ("License") to use the basic system software for XOP Networks' USN, Audio Conferencing, Web Conferencing, Group Alerting, Voice Mail and Enhanced Firebar products and the associated system software, together with the accompanying documentation for use only with XOP Networks' products (collectively with the Software, "Product") and subject to the terms and restrictions set forth in this License Agreement. Additional applications are available to be licensed upon payment of the specific application license fee (collectively the "Application Software" and together with the "Basic System Software", "Software"). Upon payment of the specific application fee, XOP NETWORKS grants you a non-exclusive and non-transferable license to use the Application Software in machine-readable form only, together with the accompanying documentation for use only with the Product and subject to the terms and restrictions set forth in this License Agreement. You agree not to activate any Application Software without payment of the appropriate license fees. XOP NETWORKS may audit by remote polling or other reasonable means to determine your use of the Application Software. The Software may contain freeware, shareware or open source software. Regarding such portions of the Software, you hereby accept the specific license conditions as being a part of the software documentation (open source conditions). Upon your request, XOP NETWORKS will provide you a copy of the source code of the open source software, if required by the open source conditions. To the extent there is a conflict between these license terms and the open source conditions, the terms of the open source conditions will prevail over these license terms with regard to the open source software.
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) remove from the Product, or alter, any of the XOP NETWORKS trademarks, trade names, logos, patent or copyright notices or markings, or add any other notices or markings to the Product; (c) decrypt, attempt to decrypt, or engage a third party to decrypt the Software; (d) derive or attempt to derive the source code of or decompile the Software; or (e) disassemble or reverse engineer the Product by any means. However, where you have other rights under statute that make any portion of the foregoing contractual prohibition void, you agree to provide XOP NETWORKS with reasonably detailed information regarding any intended disassembly or decompilation. Any files generated by the Product may not be used by you or transmitted to any third party without XOP Networks' prior approval (except logs or other reports generated in conjunction with your use of the Product for your internal use only). The Software and supporting documentation may be copied only as essential for backup or archive purposes in support of your use of the Software as permitted hereunder. You must reproduce and include all copyright notices and any other proprietary rights notices appearing on the Software on any copies that you make.
OWNERSHIP: You acknowledge and agree that the Software contains both open source software (including freeware and shareware) and other software that is proprietary to XOP NETWORKS 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. Except for the open source software, freeware and shareware included or embedded in the Software, 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 Product; and (iv) all intellectual property rights embodied within the foregoing (i)-(iii) are and shall remain the exclusive property of XOP NETWORKS and/or its licensors.
CONFIDENTIALITY: The Product contains proprietary and confidential information of XOP NETWORKS as well as trade secrets owned by XOP NETWORKS. You agree to hold the Product in strict confidence and not to use or disclose the Product in any way except as expressly permitted hereunder. You agree to protect the Product 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 Product, 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 XOP NETWORKS to ensure compliance with any such export restrictions. You acknowledge that the Product contains encryption technology that may require special attention with respect to export laws and regulations. You will hold harmless and defend, at XOP Networks' option, XOP NETWORKS from any third party claim against XOP NETWORKS 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 License Agreement, which is XOP Networks' 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 License Agreement is effective until terminated. However, you may terminate it at any time by ceasing to use the Software and associated documentation and by destroying the Software and documentation together with all copies and merged portions in any form. It will also terminate immediately if you fail to comply with any term or condition of this License Agreement. Upon such termination you agree to cease all use of the Software and associated documentation and also to destroy the Software and documentation, together with all copies and merged portions in any form. 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 License 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 License Agreement.
WARRANTY: The Software is warranted to substantially conform to its published specifications, as those exist on the date of delivery to the end user of the Software, for a period of ninety (90) days from the date of delivery. XOP Networks' sole obligation under this warranty shall be limited to use of commercially reasonable efforts to correct the Software as soon as practical after licensee has notified XOP NETWORKS of nonconformance. XOP NETWORKS does not warrant that: 1) operation of any of the Software shall be uninterrupted or error free, or 2) functions contained in the licensed Software shall operate in combinations which may be selected for use by the licensee or meet the licensee's requirements. No warranty shall apply to any Software that is modified without XOP Networks' written consent. These warranties extend only to you as the original licensee. ALL OPEN SOURCE SOFTWARE, FREEWARE AND SHAREWARE EMBEDDED OR INCLUDED IN THE PRODUCT IS PROVIDED "AS IS" WITHOUT ANY WARRANTY WHATSOEVER. EXCEPT AS SPECIFIED IN THIS LICENSE AGREEMENT, ALL EXPRESS OR IMPLIED CONDITIONS, REPRESENTATIONS AND WARRANTIES, INCLUDING ANY IMPLIED WARRANTY OF MERCHANTIBILITY, FITNESS FOR A PARTICULAR PURPOSE OR NONINFRINGEMENT, ARE HEREBY EXCLUDED.
LIMITATION OF LIABILITY: IN NO EVENT WILL XOP NETWORKS 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 LIABILTIY ARISING OUT OF THE USE OF OR INABILITY TO USE THE SOFTWARE, EVEN IF XOP NETWORKS HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMANGES. IN NO EVENT SHALL XOP NETWORKS'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 XOP NETWORKS'S BARGAIN HEREUNDER, AND YOU ACKNOWLEDGE THAT WE WOULD NOT BE ABLE TO PROVIDE THE PRODUCT TO YOU ABSENT SUCH LIMITATIONS. IN THOSE STATES AND JURISDICTIONS THAT DO NOT ALLOW CERTAIN LIMITATIONS OF LIABILITY, XOP NETWORKS'S LIABILITY SHALL BE LIMITED TO THE GREATEST EXTENT PERMITTED UNDER APPLICABLE LAW.
SEVERABILITY: In the event any provision of this License 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 License Agreement sets forth the entire understanding and agreement between you and XOP NETWORKS, 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 acquisition or licensing of the Product will have any effect on the rights, duties, or obligations of the parties under this Agreement, regardless of any failure of XOP NETWORKS 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 XOP NETWORKS.