Brekeke IP-PBX Trial License

Brekeke Software, Inc.
Brekeke PBX Evaluation and End User License Agreement
Effective Date: November 30, 2006


1. Definitions

1.1 "Licensed Product" shall mean the Brekeke PBX software in object code form as set forth in Schedule A ("Software") and any accompanying documentation, files, or materials ("Documentation").

1.2 "Licensor" shall refer to Brekeke Software, Inc.

1.3 "Licensee" shall refer to you, either the individual or entity, who has a license to use the Licensed Product in accordance with the terms and conditions of this License Agreement.

2. License Grants

Licensor reserves the right to change or update any part of this License Agreement from time to time without prior notice.  The latest and most current agreement can be found at Licensor's website.

2.1 Evaluation License.  Licensor grants Licensee a nonexclusive, nonrenewable, non-sublicensable, and nontransferable license ("Evaluation License") to use and evaluate a copy of the Licensed Product for a term of sixty (60) days from the time of installation ("Evaluation Term").  Use of the Software and Documentation is limited to evaluation purposes, and any commercial use is strictly prohibited.  The Software includes both the PBX software program and the SIP server software program, but does not include any patches, fixes, updates, or upgrades.  Only one Evaluation License shall be authorized per computer, and there shall be no fee for this license.  To continue use of the Licensed Product after the end of the sixty (60) day evaluation term, Licensee will be required to obtain a Paid License as described below.

2.2 Paid License.  Upon Licensee's payment of the license fee and until termination by either party, Licensor grants Licensee a nonexclusive, non-sublicensable, and nontransferable license ("Paid License") to use the Licensed Product only in the country where acquired from Licensee's supplier.  A description of the Software editions and the number of allowable users are set forth in Schedule A.  The Software shall only be used on a single computer owned by Licensee and in accordance with the terms and conditions of this License Agreement.  Licensee shall make payment to Licensor or Licensor's authorized reseller for the price of the Licensed Product in addition to all sales, use, and other taxes imposed by any jurisdiction arising out of or relating to the license granted under this License Agreement or to Licensee's use of the Software, regardless of where such tax liability is asserted.

3. License Restrictions

Licensee shall not transfer, sublicense, or distribute the Licensed Product to others, and this License Agreement shall automatically terminate in the event of such transfer, sublicense, or distribution.  Licensee may not modify, translate, decompile, reverse engineer, disassemble, create derivative works based on, or copy the Software.

4. Title and Ownership

The Software and Documentation are licensed, not sold.  Licensor and its third-party licensors retain any and all rights, title, and interest in and to the Software and all copies thereof, including copyrights, patents, trade secret rights, trademarks, and other intellectual property rights.  Licensee agrees that the Software may be incorporated into and may include software and other technology owned and controlled by third parties.  Licensee agrees to be bound by all of the terms and conditions applicable to end users of those third-party software licenses to products embedded in or distributed with the Software.  Licensor makes no warranties, express or implied, with respect to any third-party software, and Licensee agrees not to assert any claims against Licensor's third-party licensors relating to this License Agreement.  Such third-party licensors of Licensor are intended third-party beneficiaries of this License Agreement.

5. Term and Termination

5.1 Evaluation License Termination.  The Evaluation License under this License Agreement shall automatically terminate at the end of the sixty (60) day Evaluation Term.

5.2 Paid License Termination.  Subject to the terms and conditions of this Agreement, this License Agreement shall remain effective until terminated by either party by providing ten (10) days' written notice to the other party.  Notwithstanding the foregoing, Licensor shall have the right to immediately terminate this License Agreement if Licensee breaches any of its terms and conditions.

5.3 Effect of Termination and Survival.  Upon termination of this License Agreement for any reason, Licensee shall (i) permanently destroy or return the Licensed Product to Licensor and, within ten (10) days after the effective date of termination, provide Licensor with written certification that the Licensed Product has been destroyed or returned and (ii) permanently remove or delete the Software from all computer systems, including servers and workstations, on which the Software was installed.  Paragraphs 3 (License Restrictions), 4 (Title and Ownership), 7 (Warranty Disclaimer), 8 (Limitation of Liability), and 12 (General) shall survive the termination of this License Agreement for any reason.

6. Maintenance and Support Services

Licensor is not required under this License Agreement to provide any installation, training or other technical services to Licensee.  Such services, if available, must be purchased separately.  If, pursuant to a separate support agreement or otherwise, Licensor provides Licensee with a new release, error correction, update, upgrade or other modification to the Software, such modification will be deemed part of the Software, and subject to the terms of this License Agreement, unless the modification is expressly provided subject to a separate license agreement.

7. Warranty Disclaimer

NEITHER LICENSOR NOR ITS THIRD-PARTY LICENSORS WARRANT THAT THE SOFTWARE WILL MEET LICENSOR'S REQUIREMENTS OR THAT ITS USE WILL BE UNINTERRUPTED OR ERROR FREE.  THE SOFTWARE LICENSED HEREIN IS PROVIDED "AS IS" WITHOUT WARRANTY OF ANY KIND, EITHER EXPRESSED OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT.  THE ENTIRE RISK AS TO THE QUALITY AND PERFORMANCE OF THE LICENSED PRODUCT IS WITH LICENSEE.  TO THE EXTENT THAT LICENSOR MAY NOT DISCLAIM ANY WARRANTY AS A MATTER OF APPLICABLE LAW, THE SCOPE AND DURATION OF SUCH WARRANTY WILL BE THE MINIMUM PERMITTED UNDER SUCH LAW.  SOME STATES DO NOT ALLOW THE EXCLUSION OF IMPLIED WARRANTIES, SO THE ABOVE EXCLUSION MAY NOT APPLY TO YOU.  THIS LIMITED WARRANTY GIVES YOU SPECIFIC LEGAL RIGHTS, AND YOU MAY ALSO HAVE OTHER LEGAL RIGHTS, WHICH VARY FROM STATE TO STATE.  THE UNITED NATIONS CONVENTION ON CONTRACTS FOR THE INTERNATIONAL SALE OF GOODS SHALL NOT APPLY AND IS STRICTLY EXCLUDED.

8. Limitation of Liability

IN NO EVENT WILL LICENSOR OR ITS THIRD-PARTY LICENSORS BE LIABLE FOR ANY CONSEQUENTIAL, INCIDENTAL, DIRECT OR INDIRECT DAMAGES, INCLUDING, WITHOUT LIMITATION, ANY LOSS OF DATA, OR LOSS OF PROFITS OR LOST SAVINGS, ARISING OUT OF USE OF OR INABILITY TO USE THE SOFTWARE OR DOCUMENTATION, EVEN IF LICENSOR OR ITS THIRD-PARTY LICENSORS HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, OR FOR ANY CLAIM BY ANY THIRD PARTY.  LICENSOR'S TOTAL CUMULATIVE LIABILITY ARISING FROM OR RELATED TO THIS LICENSE AGREEMENT OR THE SOFTWARE, WHETHER IN CONTRACT, IN TORT OR OTHERWISE, SHALL BE LIMITED TO THE LICENSE FEES ACTUALLY PAID BY LICENSEE TO LICENSOR WITHIN THE SIX (6) MONTHS PRIOR TO THE EVENT GIVING RISE TO THE ALLEGED LIABILITY UNDER THIS LICENSE AGREEMENT.  THIS PARAGRAPH 8 WILL APPLY EVEN IF AN EXCLUSIVE REMEDY HEREUNDER HAS FAILED OF ITS ESSENTIAL PURPOSE.  SOME STATES DO NOT ALLOW THE EXCLUSION OR LIMITATION OF INCIDENTAL OR CONSEQUENTIAL DAMAGES, THUS THE ABOVE LIMITATION OR EXCLUSION MAY NOT APPLY TO YOU.

9. Privacy and Data Protection

As a condition of downloading and using the Software, Licensee agrees to the terms and conditions of the Licensor's Privacy Policy, as expressed in the most recent version in existence at the time of Licensor's use during the term of this License Agreement.  Licensee acknowledges and agrees that the Privacy Policy may be updated by Licensor from time to time.  Licensor's Privacy Policy is available from Licensor's website at http://www.brekeke.com/company/company_privacy.php and is incorporated by reference into this License Agreement.

10. Export Control

Licensee shall comply with all export laws and restrictions and regulations of the Department of Commerce, the United States Department of Treasury Office of Foreign Assets Control, or other United States or foreign agency or authority, and Licensee shall not export, or allow the export or re-export of the Software in violation of any such restrictions, laws or regulations.  By downloading or using the Software, Licensee agrees to the foregoing and represents and warrants that Licensee is not located in, under the control of, or a national or resident of any restricted country, and that Licensee will otherwise comply with all applicable export control laws.  Any attempt to sublicense, assign or transfer any of the rights, duties or obligations hereunder is void.

11. Restricted Rights Legend

Use, duplication, or disclosure by the U.S. Government or an agency thereof is subject to restrictions as set forth in this License Agreement and as provided in DFARS 252.227-7013 and FAR 52.227-19(c)(2), or any successor regulations thereto as applicable.

12. General

This License Agreement shall be governed by and interpreted under the laws of the State of California, United States of America, without regard to its conflicts of law provisions.  This License Agreement may not be assigned in whole or in part by Licensee without the prior written consent of Licensor.  Jurisdiction for settlement or litigation of any dispute, controversy or claim arising out of or in connection with this License Agreement, or the breach thereof, shall be only in the federal or state court with competent jurisdiction located in San Mateo County, California.  This License Agreement contains the complete agreement between the parties with respect to the Licensed Product and supersedes all prior agreements and understandings.  If any provision of this License Agreement is held to be illegal, invalid, or unenforceable, that provision shall be fully severable and the remaining provisions shall continue in full force and effect.


BREKEKE SOFTWARE, INC., SAN MATEO, CALIFORNIA

LICENSEE ACKNOWLEDGES THAT IT HAS READ AND UNDERSTANDS THIS LICENSE AGREEMENT AND AGREES TO BE BOUND BY ITS TERMS.  LICENSEE FURTHER AGREES THAT THIS LICENSE AGREEMENT IS THE COMPLETE AND EXCLUSIVE STATEMENT OF THE AGREEMENT BETWEEN LICENSEE AND LICENSOR, AND SUPERSEDES ANY PROPOSAL OR PRIOR AGREEMENT, ORAL OR WRITTEN, AND ANY OTHER COMMUNICATIONS RELATING TO THE SUBJECT MATTER OF THIS LICENSE AGREEMENT. 
Schedule A

Brekeke PBX Pro Edition

Description of Software
Brekeke PBX is a software IP-PBX that is compliant with the IETF Standard Protocol Session Initiation Protocol (SIP).  Brekeke PBX inherits traditional PBX's essential features with all of the benefits of IP.  Brekeke PBX can be utilized at a single office setting or multiple office locations; it offers flexibility and options for future expansion.  The Pro Edition offers basic IP PBX, plus more sophisticated call management features, such as Call Queuing, Call Recording, and ARS Failover, among other features.  The Codec G.729 support feature may be added to the Pro Edition for an additional support fee.

Number of Allowable Users and Limitations
The number of allowable users are allotted in sets of twenty (20); the minimum number of allowable users is 20, and additional users are allowed in increments of 20.  The number of concurrent call sessions authorized is equal to the number of allowable users.  (For example, with 20 allowable users, 20 concurrent call sessions are authorized.)  Regardless of whether Licensee collects fees from registered users, Licensee is absolutely prohibited from transferring, sublicensing, or distributing the Licensed Product to registered users or any other third party. 


Brekeke PBX Basic Edition

Description of Software
Brekeke PBX is a software IP-PBX that is compliant with the IETF Standard Protocol Session Initiation Protocol (SIP).  Brekeke PBX inherits traditional PBX's essential features with all of the benefits of IP.  Brekeke PBX can be utilized at a single office setting or multiple office locations; it offers flexibility and options for future expansion.  The Basic Edition offers basic IP PBX features.  The Codec G.729 support feature may be added to the Basic Edition for an additional support fee.

Number of Allowable Users and Limitations
The number of allowable users are allotted in sets of twenty (20); the minimum number of allowable users is 20, and additional users are allowed in increments of 20.  The number of concurrent call sessions authorized is equal to one-half of the number of allowable users.  (For example, with 20 allowable users, 10 concurrent call sessions are authorized.)  Regardless of whether Licensee collects fees from registered users, Licensee is absolutely prohibited from transferring, sublicensing, or distributing the Licensed Product to registered users or any other third party.
PLEASE READ THIS AGREEMENT CAREFULLY BEFORE PURCHASING OR USING BREKEKE SOFTWARE, INC. SOFTWARE. BY USING OR PURCHASING BREKEKE SOFTWARE PRODUCTS, CUSTOMER SIGNIFIES ITS ASSENT TO THIS AGREEMENT. IF YOU ARE ACTING ON BEHALF OF AN ENTITY, THEN YOU REPRESENT THAT YOU HAVE THE AUTHORITY TO ENTER INTO THIS AGREEMENT ON BEHALF OF THAT ENTITY. IF CUSTOMER DOES NOT ACCEPT THE TERMS OF THISAGREEMENT, THEN IT MUST NOT USE OR PURCHASE BREKEKE SOFTWARE PRODUCTS.