DIALOGIC SOFTWARE LICENSE AGREEMENT
Dialogic® PowerMedia® Extended Media Server (XMS) Software License Agreement (Subscription and Non-Subscription), including Dialogic® PowerMedia® Media Resource Broker and Dialogic® PowerMedia® XMS JSR 309 Connector
IMPORTANT NOTICE - READ BEFORE COPYING, INSTALLING OR USING
This Software License Agreement (this “Agreement”) is a legal agreement between Dialogic Corporation, on behalf of itself and its Subsidiaries (collectively, “Dialogic”) and you (either an individual or an entity, or the employer of said individual or entity) (“You”). For the purpose of this Agreement, a Subsidiary of Dialogic Corporation shall be defined as any entity in which Dialogic Corporation owns a majority of the voting shares directly or indirectly. IF YOU HAVE A WRITTEN, SIGNED LICENSE AGREEMENT GOVERNING THE USE OF THE ACCOMPANYING SOFTWARE (AS DEFINED HEREIN), THE TERMS AND CONDITIONS OF THAT AGREEMENT WILL APPLY TO YOUR USE OF THE SOFTWARE. BEFORE YOU CLICK TO SELECT “I AGREE” OR “I ACCEPT” IN REFERENCE TO THIS AGREEMENT, CAREFULLY READ THE TERMS AND CONDITIONS OF THIS AGREEMENT, AS THEY DEFINE YOUR RIGHTS AND OBLIGATIONS WITH RESPECT TO THE SOFTWARE. BY SELECTING “I AGREE” OR “I ACCEPT” OR INSTALLING, DOWNLOADING OR USING THE SOFTWARE IN ANY MANNER, YOU ARE AGREEING TO BE BOUND BY AND TO BECOME A PARTY TO THIS AGREEMENT. WHERE APPLICABLE, IF YOU DO NOT AGREE TO ALL OF THE TERMS OF THIS AGREEMENT, DO NOT SELECT “I AGREE” OR “I ACCEPT” AND THE SOFTWARE WILL NOT BE INSTALLED ON YOUR COMPUTER. AN INDIVIDUAL WHO DOES NOT HAVE AUTHORITY TO BIND THE ENTITY USING THE SOFTWARE SHOULD NOT SELECT “I AGREE” OR “I ACCEPT” NOR SHOULD SUCH INDIVIDUAL USE THE SOFTWARE WITHOUT OBTAINING APPROVAL OF THIS AGREEMENT FROM A PERSON HAVING SUCH AUTHORITY.
YOU UNDERSTAND THAT IF YOU RECEIVED THE SOFTWARE FROM AN AUTHORIZED RESELLER OF DIALOGIC THAT RESELLER IS NOT DIALOGIC’S AGENT AND IS NOT AUTHORIZED TO MAKE ANY REPRESENTATIONS, CONDITIONS OR WARRANTIES, STATUTORY OR OTHERWISE, ON DIALOGIC'S BEHALF NOR TO VARY ANY OF THE TERMS OR CONDITIONS OF THIS AGREEMENT. IN ADDITION, YOU ACKNOWLEDGE THAT, UNLESS OTHERWISE AGREED BY THAT RESELLER IN WRITING OR PROHIBITED BY LAW, THE LIMITATIONS OF CONDITIONS AND WARRANTIES, STATUTORY OR OTHERWISE, AND LIABILITY SET FORTH IN THIS AGREEMENT ALSO APPLY TO AND BENEFIT THAT RESELLER.
LICENSE GRANT Subject to the terms of this Agreement, Dialogic grants to You a limited, non-exclusive, non-transferable license (without the right to sublicense) to use the Dialogic® PowerMedia® Extended Media Server (XMS), Dialogic® PowerMedia® Media Resource Broker and Dialogic® PowerMedia® XMS JSR 309 Connector and the related documentation supplied therewith (collectively the "Software") solely in connection with Your internal business purposes, provided that You purchase a License Key, or, in furtherance of a subscription, purchase a License Key for a subscription period, or obtain a temporary License Key as further detailed below. Notwithstanding the foregoing, the license granted to You may be subject to the following limitations: (i) Software downloaded as a limited four-port sample version of the applicable Dialogic product represents an evaluation version and is limited by design to four (4) ports. The license granted herein is specifically limited to four (4) ports and may not be combined with multiple versions of the applicable product and may be subject to other usage restrictions. You shall not make any use of the evaluation version of the Software other than for evaluation purposes. (ii) If you have requested and received from Dialogic an evaluation version of the Software, the license granted to You herein is specifically limited to a period of not longer than ninety (90) days from activation. You shall not make any use of the Software other than for evaluation purposes.
LICENSE KEYS Commercial use of the Software requires a License Key from Dialogic. The License Key enables execution of purchased software entitlements on one or more client computer instances. You shall not (a) use any access code or activation key other than the License Key (if any) provided by Dialogic or (b) develop or alter any access code for the Software or otherwise circumvent or attempt to circumvent the License Key or (c) copy, modify or reproduce the License Key by any means, including but not limited to cloning of machine instances which host the License Key.
Types of License Keys covered by the agreement include:
- NODE LOCKED LICENSE: Node locked license is defined as a system for licensing software which restricts the operation of the software to a single computer instance, where the authorization is provided by a Product License Key locked to a unique identifier within a single computer instance, such as a physical machine, virtual machine instance, or container instance.
- LOCAL NETWORK LICENSE: A Local network license is defined as a system for licensing software which allows a license server application to issue a License Key to You to enable concurrent client computer instances. The license server application is restricted to running on a single computer through authorization provided by a Master License Key, for the license server, locked to a unique identifier a single computer instance, such as a physical machine, virtual machine instance, or container instance. When authorized by the license server application which controls the number of concurrent client computer instances which may concurrently use the Software, You may use the Software over a local area network (LAN) at the designated site for which an applicable license fee is paid or a wide area network (WAN) at sites located in the geographic area for which an applicable license fee is paid. The number of computers using the Software concurrently must not exceed the number of concurrent client connections granted to You by the Product License Key. Each client accessing the license server counts as an individual concurrent connection.
- CLOUD LICENSE: A cloud license is defined as a system for licensing software which allows a cloud license server to issue a License Key to You to enable concurrent client computer instances. The number of computer instances using the Software concurrently must not exceed the number of concurrent client connections granted to You by the Product License Key. Each client accessing the Cloud License counts as an individual concurrent connection.
UPGRADES, UPDATES, ETC. Unless otherwise agreed to in a separate agreement, You shall have no right to receive any corrections, enhancements, upgrades, maintenance releases or other modifications to the Software (“Changes”). For clarity, You acknowledge that if You are a party to Dialogic’s Software Developer License Agreement and/or Master Software Maintenance Agreement, and You receive Changes under either of those agreements, You shall have no right to use those Changes under this Agreement for Your internal business purposes unless You have entered into a separate maintenance agreement for the Software and have paid Dialogic the applicable maintenance fee.
ADDITIONAL RESTRICTIONS. You shall not, and shall not permit any third party to (i) take any action which would cause all or any portion of the Software to be placed in the public domain or be subject to an open source license or (ii) disclose the results of any benchmark test of the Software to a third party without the prior written approval of Dialogic.
DISTRIBUTION TERMS AND RESTRICTIONS Distribution of the Software is subject to the following conditions: (i) You are solely responsible to Your direct or indirect customers, distributors, sub-distributors and End Users for any warranty, update or support obligations or other liability which may arise from distribution of the Software hereunder, (ii) You shall not make any statement that Your Product is "certified," or that its performance is guaranteed, by Dialogic, (iii) You shall not use Dialogic's name or trademarks or logos to market Your Product without written permission, and (iv) You shall indemnify, hold harmless, and defend Dialogic (including all of its officers, employees, directors, subsidiaries, representatives, affiliates, suppliers and agents) from and against any claims or lawsuits, including attorney's fees and expenses, that arise or result from distribution of the Distribution Software pursuant to this Agreement.
DISTRIBUTION TO END USERS An "End User" is a party that is being provided Your Product for its own use, and not for the purpose of further distribution, resale, or furnishing Your Product to a third party. Distribution to End Users of the Software as part of Your Product by You or Your distributors and any sub-distributors, in addition to the other conditions set forth herein, is subject to the condition (i) that each End User enters into a legally valid agreement that prohibits copying and distribution of the Software, and prohibits use of the Software except with Your Product and (ii) that includes terms that are at least as protective of Dialogic (including all of its officers, employees, directors, subsidiaries, representatives, affiliates, suppliers and agents) as the terms and conditions specified in this Agreement.
DISTRIBUTIONS VIA YOUR DISTRIBUTORS You may authorize Your distributors and any subsequent sub-distributors to distribute the Software only as part of Your Product provided that any such distribution is in accordance with a written agreement entered into by any such distributor or sub-distributor that (i) includes terms and conditions at least as protective of Dialogic (including all of its officers, employees, directors, subsidiaries, representatives, affiliates, suppliers and agents) as the terms and conditions specified in this Agreement, and (ii) complies with the terms specified in the section entitled “Distribution to End Users” above.
OWNERSHIP Title to all copies of the Software remains with Dialogic and/or its affiliates and/or its suppliers. The Software is copyrighted and protected by the laws of the United States and other countries and territories, as well as by international treaty provisions. You may not remove any copyright notices from the Software. This Agreement does not include any license to any updates or upgrades (including without limitation bug fixes, new releases, or added functionality) which Dialogic may make to the Software at its sole discretion. Dialogic is not obligated to support, update or upgrade the Software. Except as otherwise expressly provided herein, Dialogic grants no express or implied right or license under Dialogic’s patents, copyrights, trademarks, trade secrets or other intellectual property rights.
LIMITATION ON REVERSE ENGINEERING You shall not, nor shall You permit any third party to, decompile, disassemble or reverse engineer the Software, except and only to the extent that it is expressly permitted by applicable law notwithstanding this limitation. You also shall not, nor shall You permit any third party to access or extract any content that is provided with or as part of the Software, such content including but not being limited to sample/demo video files.
EXPORT CONTROL You agree to comply with all applicable requirements of the Office of Export Administration of the U.S. Department of Commerce, Washington, D.C. 20230, and that You will follow all applicable Export Administration Regulations issued by the U.S. Department of Commerce, as they may be amended from time to time.
CONFIDENTIALITY The Software includes confidential information of Dialogic and/or its affiliates, and/or suppliers . You may not reveal or disclose the Software in any form, or display it publicly, or use it or any information relating to it except for the purposes of this Agreement.
TERMINATION Without prejudice to any other rights, Dialogic may terminate this Agreement and all rights hereunder if You fail to comply with the terms herein. In such event, You must destroy all copies of the Software.
THIRD PARTY SOFTWARE Third party software (e.g. - drivers, utilities, operating system components, etc.) which may be distributed with the Software hereunder will also be subject to the terms and conditions of any third party licenses which may be supplied with such third party software or set forth below or in the End User Documentation, and installation, use and/or further distribution by You will be subject to such third party licenses. Some third party software and some of the Software components may be subject to open source license provisions and installation, use and/or further distribution by You of such third party software and Software components are subject to the respective open source license under which it is provided. Dialogic expressly disclaims liability of any kind with respect to installation, use or distribution by You of third party software. Such third party software is provided to You “as is” and at Your own risk.
FFmpeg SOFTWARE. This Software uses third party software libraries from the FFmpeg project (www.ffmpeg.org) licensed under the LGPLv2.1, and source code for these libraries can be downloaded from: https://www.dialogic.com/en/products/media-server-software/xms/xms-swcomponents.aspx .
DISCLAIMER OF WARRANTIES You understand and acknowledge that the Software is provided on an AS-IS basis, without warranty of any kind. DIALOGIC DOES NOT WARRANT THAT THE SOFTWARE WILL MEET YOUR REQUIREMENTS OR THAT THE SOFTWARE WILL RUN ERROR-FREE OR UNINTERRUPTED. DIALOGIC MAKES NO WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, ANY WARRANTY OF NON-INFRINGEMENT, MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE. DIALOGIC ASSUMES NO RISK OF ANY AND ALL DAMAGE OR LOSS FROM USE OR INABILITY TO USE THE SOFTWARE. THE ENTIRE RISK OF THE QUALITY AND PERFORMANCE OF THE SOFTWARE IS WITH YOU. IF YOU RECEIVE ANY WARRANTIES REGARDING THE SOFTWARE, THOSE WARRANTIES DO NOT ORIGINATE FROM, AND ARE NOT BINDING ON DIALOGIC.
GOVERNMENT RESTRICTED RIGHTS The Software is provided with "RESTRICTED RIGHTS." Use, duplication, or disclosure by the Government is subject to restrictions as set forth in FAR52.227-14 and DFAR252.227-7013 et seq. or its successor. Use of the Software by the Government constitutes acknowledgement of DIALOGIC's proprietary rights therein..
EXCLUSIVE REMEDIES AND LIMITATIONS OF LIABILITIES IN NO EVENT SHALL DIALOGIC OR ITS OFFICERS, EMPLOYEES, DIRECTORS, SUBSIDIARIES, REPRESENTATIVES, AFFILIATES AND AGENTS HAVE ANY LIABILITY TO YOU OR ANY OTHER THIRD PARTY, FOR ANY LOST PROFITS, LOST DATA, LOSS OF USE OR COSTS OF PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES, OR FOR ANY INDIRECT, SPECIAL OR CONSEQUENTIAL DAMAGES ARISING OUT OF THIS AGREEMENT, UNDER ANY CAUSE OF ACTION OR THEORY OF LIABILITY, AND IRRESPECTIVE OF WHETHER DIALOGIC OR ITS OFFICERS, EMPLOYEES, DIRECTORS, SUBSIDIARIES, REPRESENTATIVES, AFFILIATES AND AGENTS HAVE ADVANCE NOTICE OF THE POSSIBILITY OF SUCH DAMAGES. THESE LIMITATIONS SHALL APPLY NOTWITHSTANDING THE FAILURE OF THE ESSENTIAL PURPOSE OF ANY LIMITED REMEDY. IN ANY CASE, DIALOGIC'S AND ITS OFFICERS', EMPLOYEES', DIRECTORS', SUBSIDIARIES', REPRESENTATIVES', AFFILIATES' AND AGENTS' ENTIRE LIABILITY UNDER ANY PROVISION OF THIS AGREEMENT SHALL NOT EXCEED THE AMOUNT OF THE FEES THAT YOU PAID FOR THE SOFTWARE (IF ANY). THE SOFTWARE IS NOT FAULT-TOLERANT AND IS NOT DESIGNED, INTENDED, OR AUTHORIZED FOR USE IN ANY MEDICAL, LIFE SAVING OR LIFE SUSTAINING SYSTEMS, OR FOR ANY OTHER APPLICATION IN WHICH THE FAILURE OF THE SOFTWARE COULD CREATE A SITUATION WHERE PERSONAL INJURY OR DEATH MAY OCCUR. Should You or Your direct or indirect customers use the Software for any such unintended or unauthorized use, You shall indemnify and hold Dialogic and its officers, employees, directors, subsidiaries, representatives, affiliates, suppliers and agents harmless against all claims, costs, damages and expenses, and attorney fees and expenses arising out of, directly or indirectly, any claim of product liability, personal injury or death associated with such unintended or unauthorized use, even if such claim alleges that Dialogic was negligent regarding the design or manufacture of the part.
APPLICABLE LAWS Claims arising under this Agreement shall be governed by the laws of the Province of Quebec, Canada, excluding its principles of conflict of laws and the United Nations Convention on Contracts for the Sale of Goods. DIALOGIC is not obligated under any other agreements unless they are in writing and signed by an authorized representative of DIALOGIC. Each Party hereby agrees to jurisdiction and venue in the courts of the Province of Quebec, for all disputes and litigation arising under or relating to this Agreement. The Parties consent to the personal jurisdiction of the above courts.
MISCELLANEOUS. All rights and remedies, whether conferred hereunder or by any other instrument or law, will be cumulative and may be exercised singularly or concurrently. Failure by either Dialogic or You to enforce any term will not be deemed a waiver of future enforcement of that or any other term. The terms and conditions stated herein are declared to be severable. Should any term(s) or condition(s) of this Agreement be held to be invalid or unenforceable the validity, construction and enforceability of the remaining terms and conditions of this Agreement shall not be affected. You may not assign any rights, duties or obligations hereunder without the prior written approval of Dialogic and any attempt to assign any rights, duties or obligations hereunder without Dialogic's written consent will be void. It is expressly agreed that Dialogic and You are acting as independent contractors. These terms and conditions constitute the entire agreement between Dialogic and You with respect to the subject matter hereof. These terms and conditions will prevail notwithstanding any different, conflicting or additional terms and conditions that may appear on any other agreement between Dialogic and You. Deviations from these terms and conditions are not valid unless agreed to in writing by an authorized representative of Dialogic. You agree to comply with all applicable laws including any applicable export rules or regulations.
LANGUAGE. This Agreement has been drafted in the English language only. Ce contrat a été rédigé en anglais uniquement. All communications and notices made or given pursuant to this Agreement, and all documentation and support to be provided, unless otherwise noted, shall be in the English language.
NOTICES. Any notices to Dialogic under this Agreement shall be sent to the attention of Dialogic’s Legal Department at 3300 Boulevard de la Côte-Vertu, Suite 112, Montreal, Quebec, CANADA H4R 1P8 by courier or registered mail.
Contractor or Manufacturer is Dialogic Corporation 3300 Boulevard de la Côte-Vertu, Suite 112, Montreal, Quebec, CANADA H4R 1P8
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