Software License Agreement


This sealed package contains a Software License Agreement ("Agreement"), which is a legal Agreement for the conditional use of the software provided herein ("Software") between you, the end-user, whether an individual or a company and all of its authorized users of the Software (“You”), and Dialogic Corporation ("Dialogic").

READ THE SOFTWARE LICENSE AGREEMENT (“AGREEMENT”) CAREFULLY. BY DOWNLOADING, INSTALLING, COPYING OR OTHERWISE USING THE SOFTWARE, YOU FURTHER AGREE THAT YOU HAVE READ THIS AGREEMENT AND UNDERSTAND IT, AND THAT BY TAKING ANY ONE OR MORE OF SUCH STEPS YOU AGREE TO BE BOUND BY SUCH TERMS AND CONDITIONS. DIALOGIC IS UNWILLING TO LICENSE THE SOFTWARE TO YOU IF YOU DO NOT ACCEPT AND AGREE TO BE BOUND BY THE TERMS AND CONDITIONS OF THIS AGREEMENT.

1. Grant of License: Subject to the terms of this Agreement, Dialogic grants to You a non-exclusive, personal, non-transferable license to use the Software in object code form only and solely in accordance with the following terms and conditions:

a) You may make only one (1) copy of the Software for each computer system (or each node of a networked computer system) that contains a Dialogic® hardware product. For each copy of the Software You make under the Agreement, You may also make one copy solely for backup or archive purposes. You may not copy, reproduce, store, or transmit any documentation that accompanied the Software, in whole or in part, without the express written consent of Dialogic or other licensor(s).

b) You may distribute the Software in object code only and only as part of, or integrated by You into, a computer system that (i) contains a Dialogic hardware product, (ii) includes a substantial amount of other software and/or hardware manufactured or marketed by You and (iii) is marketed and sublicensed to an end user for the end user’s own internal use in the regular course of business (a “Licensed System”).

c) Each end user to whom a Licensed System is distributed must agree to license terms with respect to the Software that are at least as protective of Dialogic’s rights in the Software as those set forth in this Agreement.

d) You shall receive one (1) Software master disk, and shall be solely responsible for copying the Software into the Licensed Systems and for warranting the physical media on which it is copied.

e) You agree to indemnify and hold harmless Dialogic and its subsidiaries, affiliates, suppliers, officers, directors and employees from and against any claim, injury, loss or expense, including reasonable attorneys’ fees, arising out of (i) Your failure to comply with the provisions of this Agreement, or (ii) any other wrongful conduct by or on behalf of You.

f) You shall not remove, and each copy of the Software shall contain, the same copyright, proprietary, patent and/or other applicable intellectual property or other ownership notices, plus any restricted rights legends that appear in the Software and/or this Agreement and, if You copy the Software onto media to which a label may be attached, You shall attach a label to the media that includes all such notices and legends that appear on the Software master disk and envelope.

g) You shall not attempt to reverse compile, reverse engineer, decompile or disassemble the Software. Except as is strictly necessary for You to integrate the Software with other software and/or hardware to produce the Licensed Systems, You shall not copy, modify or reproduce the Software or documentation in any way. You shall use Your best efforts to ensure that any user of the Software does not reverse engineer, decompile or disassemble the Software to derive a source code equivalent of the Software.

h) The Software may be used only in conjunction with Dialogic hardware.

i) The Software shall not be exported or re-exported in violation of any export provisions of the United States or any other applicable jurisdiction.

This Agreement applies to all updates, future releases, modifications and portions of the Software contained in or merged into other programs.

2. Intellectual Property Rights: You acknowledge that the Software and its accompanying documentation constitute valuable intellectual property rights, including without limitation trade secrets and copyrights, and confidential information of Dialogic. The Software and all programs developed thereunder and all copies thereof (including without limitation translations, compilations, partial copies with modifications and updated works) are proprietary to Dialogic and title to all applicable copyrights, trade secrets, patents and other intellectual property rights therein remains in Dialogic, its subsidiaries, and/or its suppliers. Except as expressly permitted in this Agreement, You shall not sell, transfer, publish, disclose, display or otherwise make available the Software or copies thereof to others. You agree to secure and protect the Software, its accompanying documentation and copies thereof in a manner consistent with the maintenance of Dialogic’s rights therein and to take appropriate action by instruction or agreement with Your employees and/or consultants who are permitted access to the Software to satisfy Your obligations hereunder. Violation of any provision of this paragraph shall be the basis for immediate termination of this Agreement. Because unauthorized use or transfer of the Software or documentation may diminish substantially the value of such materials and irrevocably harm Dialogic, if You breach the provisions of this Section 2 of this Agreement, Dialogic shall be entitled to injunctive and/or other equitable relief, in addition to other remedies afforded by law, to prevent a breach of this Section 2 of this Agreement.

3. Term: The Agreement is effective until terminated. You may terminate it at any time by notifying Dialogic. The Agreement will automatically terminate if You fail to comply with any term or condition of this Agreement. Upon such termination, You shall return or destroy all copies of the Software, as well as all copies of material and documentation pertaining to the Software supplied by Dialogic. All provisions of this Agreement relating to disclaimers of warranties, limitation of liability, remedies, or damages, and licensor’s proprietary rights shall survive termination.

4. Limited Warranty: Dialogic warrants the media on which the Software is furnished to You to be free from defects in materials and workmanship under normal use for a period of ninety (90) days from the date of purchase by You as evidenced by a copy of Your receipt. If such a defect appears within the warranty period, You may return the defective media to Dialogic for replacement without charge provided Dialogic, in good faith, determines that it was defective in materials or workmanship. Replacement is Your sole remedy with respect to such a defect. Dialogic offers no warranty for your reproduction of the Software. This Limited Warranty is void if failure of the Software has resulted from accident, misuse, abuse or misapplication..

5. Disclaimers, Limitations of Liabilities and Remedies: Except as set forth in Section 4, the Software and accompanying documentation are provided “as is.” Neither Dialogic, its subsidiaries, its suppliers, nor its licensor(s) (if any) warrants that the Software will meet Your requirements or that its use will be uninterrupted or error-free. Except as set forth in Section 4, EACH OF DIALOGIC, ITS SUBSIDIARIES, ITS SUPPLIUERS AND ITS LICENSOR(S) (IF ANY) DISCLAIMS ANY AND ALL REPRESENTATIONS AND WARRANTIES, EXPRESS OR IMPLIED, WITH RESPECT TO THE SOFTWARE AND ACCOMPANYING DOCUMENTATION, INCLUDING BUT NOT LIMITED TO THE IMPLIED WARRANTIES OF NON-INFRINGEMENT, MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR AGAINST LATENT DEFECTS. Except as set forth in Section 4, neither Dialogic, its subsidiaries, its suppliers, nor its licensor(s) (if any) shall have any liability to You or any third party for any claim, loss or damage of any kind, including but not limited to lost business profits, business interruption, loss of information, or other pecuniary loss and indirect, punitive, incidental, economic, consequential or special damages, arising out of or in connection with this Agreement and/or the use, inability to use the Software and/or the Software’s performance or inability to perform nor from or in connection with the Software’s accompanying documentation, or any data or equipment related thereto or used in connection therewith. In no event shall Dialogic’s or its licensor’s liability for damages, whether arising out of contract, negligence, warranty, or patent or copyright infringement, exceed the fees You paid for the Software. No representation or warranty regarding the Software may be made without Dialogic’s, its subsidiaries’, its suppliers’, or its licensor(s)’s (if any) prior written consent, and any warranty or representation made by You or Your customers regarding the Software shall not constitute an obligation of Dialogic, its subsidiaries, its suppliers, or other licensor(s) (if any). This limited warranty gives You specific legal rights. You may have others, which may vary from jurisdiction to jurisdiction. Also, as some jurisdictions do not allow the exclusion or limitation for certain damages, some of the above limitations may not apply to You.

6. Restricted Rights: The Software and accompanying documentation are provided with RESTRICTED RIGHTS. Use, duplication or disclosure by the U.S. Government is subject to restrictions as set forth in subparagraph (c)(1)(iii) of the Rights in Technical Data and computer Software clause at DFARS52.227-7013.

7. Audit Rights: If this Software is licensed for use in a company, Your company and You agree to keep all usual and proper records and books of accounts and all usual proper entries relating to each installation of the Software during the term of this Agreement and for a period of three (3) years thereafter. During this period, Dialogic may cause an audit to be made of the applicable records and of the installations of the Software in order to verify Your compliance with this Agreement and prompt adjustment shall be made to compensate for any errors or omissions disclosed by such audit. Any such audit shall be conducted by an independent certified public accountant selected by Dialogic and shall be conducted during the regular business hours at Your offices and in such a manner as not to interfere with Your normal business activities. Any such audit shall be paid for by Dialogic unless material discrepancies are disclosed. For such purposes, ‘material discrepancies’ shall mean Your Company and/or You exceeding by three percent (3%) or more the number of licensed channels for any function of the Software or Your company exceeding the licensed number of authorized users by three percent (3%) or more. If material discrepancies are disclosed, Your company agrees to pay Dialogic for the costs associated with the audit as well as the license fees for the additional licensed channels or additional authorized users. In no event shall audits be made more frequently than semi-annually unless the immediately preceding audit disclosed a material discrepancy.

8. Supplemental Software

Any supplementary software provided with the Software and/or referred to in this Agreement is provided ‘as is’ with no warranty of any kind.

9. Miscellaneous:

a) You acknowledge that You have read this Agreement, that You understand it, and that You agree to be bound by its terms and conditions, and You further agree that this is the complete and exclusive statement of the Agreement between the Dialogic and You (“the Parties”), which supersedes and merges all prior proposals, understandings and all other agreements, oral and written, between the Parties relating to the Software. This Agreement may not be modified or altered except by written instrument duly executed by Dialogic.

b) Claims arising under this Agreement shall be governed by the laws of the Province of Quebec, 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.

c) No action, regardless of form, arising out of this Agreement or the use of the Software may be brought by You more than two (2) years after the cause of action has first arisen.

d) Except as provided herein, neither this Agreement nor any rights granted are assignable or transferable, and any assignment or transfer will be null and void. If You authorize any other person to copy the Software, You shall obligate that person in writing to comply with all conditions of this Agreement.

e) Dialogic shall have the right to collect from You its reasonable expenses incurred in enforcing this agreement, including attorney’s fees.

f) The waiver or failure of Dialogic to exercise in any respect any right provided for herein shall not be deemed a waiver of any further right hereunder.

g) All rights and remedies, whether conferred hereunder or by any other instrument or law, will be cumulative and may be exercised singularly or concurrently.

h) Failure by either Dialogic or You to enforce any term or condition of the Agreement will not be deemed a waiver of future enforcement of that or any other term or conditions.

i) 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.

j) It is expressly agreed that Dialogic and You are acting as independent contractors under this Agreement.

k) 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 in advance by an authorized representative of Dialogic.

l) Any notices sent to Dialogic under this Agreement must be sent by registered mail or courier to the attention of Dialogic’s legal department at the address below or such other address as may be listed on http://www.dialogic.com/ from time to time as being Dialogic’s Montreal headquarters.

Copyright © 2003-2015, Dialogic Corporation, All rights reserved.

Contractor/ manufacturer is:

DIALOGIC CORPORATION.

6700 Cote-de-Liesse Road, Suite 100, Montreal, Quebec, Canada H4T 2B5