Brekeke SIP Server License

Brekeke Software, Inc.
Brekeke SIP Server End User License Agreement
Effective Date: September 21, 2007

IMPORTANT: THIS SOFTWARE END USER LICENSE AGREEMENT ("EULA") IS A LEGAL AGREEMENT BETWEEN YOU (EITHER AN INDIVIDUAL OR, IF PURCHASED OR OTHERWISE ACQUIRED BY OR FOR AN ENTITY, AN ENTITY) AND BREKEKE SOFTWARE, INC. OR ITS AUTHORIZED RESELLER.  READ IT CAREFULLY BEFORE COMPLETING THE INSTALLATION PROCESS AND USING THE SOFTWARE.  IT PROVIDES A LICENSE TO USE THE SOFTWARE AND CONTAINS WARRANTY INFORMATION AND LIABILITY DISCLAIMERS. BY DOWNLOADING, INSTALLING, AND USING THE SOFTWARE, YOU ARE CONFIRMING YOUR ACCEPTANCE OF THE SOFTWARE AND AGREEING TO BECOME BOUND BY THE TERMS OF THIS AGREEMENT AND ANY AMENDMENTS OR UPDATES TO THIS AGREEMENT.  IF YOU ENTER INTO THIS AGREEMENT, YOU ARE EXPLICITLY STATING THAT YOUR JURISDICTION DOES NOT RESTRICT THE USE OF SOFTWARE FOR INTERNET TELEPHONY, AND YOU ARE QUALIFIED TO ENTER INTO THIS AGREEMENT, BY AGE OR OTHERWISE.  IF YOU DO NOT AGREE WITH ALL OF THE TERMS AND CONDITIONS OF THIS AGREEMENT, YOU MUST:
(i)	NOT DOWNLOAD THE SOFTWARE, 
(ii)	IMMEDIATELY CEASE USING THE SOFTWARE, AND
(iii)	DESTROY ALL COPIES OF THE SAME, INCLUDING ANY COPIES STORED ON YOUR HARD DRIVE AND ANY ARCHIVAL COPIES.  

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

1	Definitions
1.1	"Brekeke" means the licensor, Brekeke Software, Inc., and its licensors, if any. 
1.2	"Software" means the Brekeke SIP Server including any upgrades, modified versions or updates of the Software and corresponding documentation, associated media, printed materials, and online or electronic documentation made available to you by Brekeke. 
1.3	"Edition" means the specific Software edition that is licensed to you under this Agreement.  The Editions available under this Agreement are: Academic Edition, Evaluation Edition, Personal Edition, Standard Edition, or Advanced Edition.

2	License Grants and Limitations
The rights granted under this EULA apply only to this Software.  You must procure a separate license to use other Brekeke software.  The Software is deemed accepted by you upon download, installation, and/or use of the Software.  Brekeke grants you a limited right and license to use the Software as follows: 

2.1	ACADEMIC EDITION LICENSE 
2.1.1	Grant.  Brekeke grants you the personal, nonexclusive, nontransferable, revocable, and limited license to use the Software solely for Educational Use, as that term is defined in Paragraph 2.1.2.1 below.  You may only use the Software to create works for your own personal use in providing or receiving instruction within the limited scope of guided computer programming and/or software training courses in which you are a direct and personal participant, either as student or instructor ("Courses") at a degree-granting educational institution only.  You may only reproduce, distribute and use works, in source or object code form, to other participants of the Courses for educational or training purposes only. 
2.1.2	Limitations.
2.1.2.1	 The Academic Edition License may be used only by students and faculty members or staff members of a degree-granting educational institution (elementary schools, middle or junior high schools, high schools, junior colleges, colleges, and universities) ("Educational Use").
2.1.2.2	You may not use the Software or works created with the Software for any commercial, business, governmental or institutional purpose of any kind. You are strictly prohibited from downloading, installing or using the Software for any commercial training purpose.  
2.1.2.3	Software may not be used for any commercial purpose unless you obtain either a Standard Edition or Advanced Edition license for the Software. 
2.1.2.4	Commercial use for training, certification or use by nonprofit organizations is not allowed unless you obtain either a Standard Edition or Advanced Edition license for the Software.
2.1.2.5	You may not distribute or sublicense the Software externally to users who are not taking the Course at your educational institution without the prior written approval of Brekeke. 

2.2	EVALUATION EDITION LICENSE
2.2.1	Grant.  Brekeke grants you the nonexclusive, nontransferable, revocable, and limited license to use the Software solely for Evaluation Use, as that term is defined in Paragraph 2.2.3.1 below.  In order to evaluate the Software, you may install the Software on a temporary basis for trial, internal evaluation, non-commercial, and non-production purposes only.  
2.2.2	Term.  The term of the Evaluation Use license is limited to sixty (60) days, or a longer period if specified by Brekeke, from the date the Software is installed (the "Evaluation Period").  At the end of the Evaluation Period, your license to use the Software automatically expires.  The Evaluation Period applies only to Software licensed directly from Brekeke or Brekeke's authorized distributor or reseller. At the expiration of the Evaluation Period, you must take one of the following actions:  (i) comply with the termination provisions under Paragraph 12.3, (ii) obtain a license certificate at no charge from Brekeke or its authorized distributors or resellers, (iii) acquire a Standard Edition license, or (iv) acquire an Advanced Edition license.  
2.2.3	Limitations.  
2.2.3.1	 The Evaluation Edition License may be used by anyone who wishes to internally evaluate the Software during the Evaluation Period, as such term is defined in Paragraph 2.2.2 of this EULA ("Evaluation Use").
2.2.3.2	You may not use the Software during the Evaluation Period for any commercial, business, governmental, or institutional purpose of any kind.  You are strictly prohibited from using the Software for any commercial, commercial training, production, or research and development purposes.
2.2.3.3	You may not distribute (internally or externally) or sublicense the Software in any way.  

2.3	PERSONAL EDITION LICENSE
2.3.1	Grant.  Brekeke grants you the personal, nonexclusive, nontransferable, revocable, and limited license to use the Software solely for Personal Use, as that term is defined in Paragraph 2.3.2.1 below.  The only purpose of the Personal Use license is for your use and satisfaction and not for commercial or production purposes.  You must not obtain any direct or indirect monetary benefit from the use of the Software.  Use of the Software within the context of a home-based or part-time business falls under commercial use and is prohibited under the Personal Use license.
2.3.2	Limitations.
2.3.2.1	 Personal Edition License Software is to be used only for non-commercial personal use ("Personal Use"). The Software may only be installed on a personally owned computer (not belonging to any business or institution) that is located at licensee's residential property, and is not used by or on behalf of any business or institution.
2.3.2.2	You may not use the Software for any commercial, business, governmental, or institutional purpose of any kind.  You are strictly prohibited from using the Software for any commercial training purpose.
2.3.2.3	You may not distribute or sublicense the Software in any way.  

2.4	STANDARD EDITION LICENSE
2.4.1	Grant.  Brekeke grants you the personal, nonexclusive, nontransferable, revocable, and limited license to use the Software solely for General Use, as that term is defined in Paragraph 2.4.2.1 below.  
2.4.2	Limitations.  
2.4.2.1	 Standard Edition License Software is to be used by commercial users and by general users other than those specified in "Educational Use," "Evaluation Use," and "Personal Use" ("General Use").
2.4.2.2	You may install and use the Software on a single computer; OR install and store the Software on a storage device, such as a network server, used only to install the Software on your other computers over an internal network, provided you have a license for each separate computer on which the Software is installed and run.  A license for the Software may not be shared, installed or used concurrently on different computers.
2.4.2.3	You may not distribute (internally or externally) or sublicense the Software with this license. 

2.5	ADVANCED EDITION LICENSE
2.5.1	Grant.  Brekeke grants you the personal, nonexclusive, nontransferable, revocable, and limited license to use the Software solely for General Use.
2.5.2	Limitations.
2.5.2.1	You may install and use the Software on a single computer; OR install and store the Software on a storage device, such as a network server, used only to install the Software on your other computers over an internal network, provided you have a license for each separate computer on which the Software is installed and run.  A license for the Software may not be shared, installed or used concurrently on different computers.
2.5.2.2	You may not distribute (internally or externally) or sublicense the Software with this license.

2.6	PRICE AND PAYMENT
You shall make payment to Brekeke or Brekeke's authorized reseller for the price of the Software license in addition to all sales, use and other taxes imposed by any jurisdiction arising out of or related to the license granted under this EULA or to your use of the Software, regardless of when such tax liability is asserted.

3	License Restrictions
The following restrictions shall apply to all types of licenses under this EULA:
3.1	You may receive the Software in more than one medium but you shall only install or use one medium.  Regardless of the number of media you receive, you may use only the medium that is appropriate for the server or computer on which the Software is to be installed.
3.2	You shall not:  
3.2.1	Make or distribute copies of the Software, or electronically transfer the Software from one computer to another or over a network; 
3.2.2	Use the Software to develop or produce any application having the same primary function as the Software;
3.2.3	Modify, adapt, alter, translate, or create derivative works of the Software or merge the Software with other software other than as described in the Software's accompanying documentation or as approved of in writing by Brekeke; 
3.2.4	Lease, sell, transfer, rent, or loan the Software to any third party; 
3.2.5	Sublicense, distribute or otherwise transfer the Software or any component thereof to any third party except as expressly authorized by Brekeke in a Software Reseller/Distribution License Agreement; 
3.2.6	Reverse engineer, decompile, disassemble, attempt to derive the source code of the Software, or otherwise reduce the Software to a human-perceivable form; 
3.2.7	Remove, alter, or obscure any confidentiality or proprietary notices (including copyright and trademark notices) of Brekeke, its licensors or suppliers on the Software; 
3.2.8	Reproduce the Software; or
3.2.9	Disclose or publish performance benchmark results for the Software without the prior written approval of Brekeke.  

4	Upgrades
An upgrade is a major release of the Software and is defined as that which incorporates major new features or enhancement that increases the core functionality of the software.  This class of release is identified by the change of the revision to the left of the decimal point (e.g., 4.x to 5.x).  If this copy of the Software is an upgrade from an earlier version of the Software, it is provided to you on a license exchange basis.  By your installation and use of the upgraded Software, you agree to discontinue use of and destroy all copies of the earlier Software.

5	Ownership
The Software is proprietary to Brekeke and its licensors.  Brekeke and its licensors retain all copyrights, trade secret rights, patents, trademarks and any other proprietary rights relating to the Software.  The Software is licensed, not sold, to you notwithstanding any reference herein to "purchases."  You acknowledge and agree that:  (a) the Software is protected under U.S. copyright and other laws; (b) Brekeke and its licensors retain all copyrights and other intellectual property rights in the Software; (c) there are no implied licenses under this License, and any rights not expressly granted to you hereunder are reserved by Brekeke and its licensors; (d) you acquire no ownership or other interest (other than your license rights) in or to the Software; and (e) Brekeke owns all copies of the Software, however made.  You agree that you will not, at any time, contest anywhere in the world Brekeke's ownership of the Software, nor will you challenge the validity of Brekeke's rights in the Software.  You have no rights hereunder to use any trademark or service mark belonging to Brekeke.

6	Privacy and Data Collection
As a condition of downloading and using the Brekeke SIP Server Software, you agree to the terms of Brekeke's Privacy Policy, as expressed in the most recent version in existence at the time of your use during the term of the license.  You acknowledge and agree that the Privacy Policy may be updated by Brekeke from time to time.  The Privacy Policy is available from Brekeke's website at http://www.brekeke.com/company/company_privacy.php and is incorporated by reference into this agreement.

7	Brekeke's Audit Right
You agree that Brekeke may audit your use of the Software for compliance with these terms at any time, upon reasonable notice.  In the event that such audit reveals any use of the Software by you other than in full compliance with the terms of this EULA, you shall reimburse Brekeke for all reasonable expenses related to such audit in addition to any other liabilities Brekeke may incur as a result of such non-compliance.  
8	Warranty Disclaimer  
THE SOFTWARE IS PROVIDED "AS IS" AND WITHOUT WARRANTY OF ANY KIND.  BREKEKE HEREBY EXCLUDES AND DISCLAIMS ALL IMPLIED OR STATUTORY WARRANTIES, INCLUDING ANY WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, QUALITY, NON-INFRINGEMENT, TITLE, RESULTS, EFFORTS OR QUIET ENJOYMENT.  THERE IS NO WARRANTY THAT THE SOFTWARE WILL BE ERROR-FREE OR WILL FUNCTION WITHOUT INTERRUPTION.  YOU ASSUME THE ENTIRE RISK FOR THE RESULTS OBTAINED USING THE SOFTWARE.  TO THE EXTENT THAT BREKEKE 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. 
9	Technical Services; Updates; Product Changes 
Brekeke is not required under this License to provide any installation, training or other technical services to you.  Such services, if available, must be purchased separately.  If, pursuant to a separate support agreement or otherwise, Brekeke provides you 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, unless the modification is expressly provided subject to a separate license agreement. Brekeke reserves the right at any time not to release or to discontinue the release of any Software and to alter prices, features, specifications, capabilities, functions, licensing terms, release dates, general availability or other characteristics of any future releases of the Software. 
10	Confidentiality 
You acknowledge that the Software in source code form remains a confidential trade secret of Brekeke.  You agree to hold this information in strict confidence, not disclose it to any person, and not use it for any purpose other than the use and operation of the Software as permitted under this License. 
11	Limitation of Liability 
IN NO EVENT WILL BREKEKE BE LIABLE TO ANY PARTY FOR ANY DIRECT OR INDIRECT, INCIDENTAL, CONSEQUENTIAL, EXEMPLARY, SPECIAL OR PUNITIVE DAMAGES, INCLUDING ANY LOSS OF PROFIT, REVENUE, BUSINESS OPPORTUNITY OR DATA, ARISING FROM OR RELATING TO THIS LICENSE OR THE SOFTWARE, WHETHER IN CONTRACT, IN TORT, NEGLIGENCE OR OTHERWISE, EVEN IF BREKEKE KNEW, SHOULD HAVE KNOWN, OR HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.  BREKEKE'S TOTAL CUMULATIVE LIABILITY ARISING FROM OR RELATED TO THIS LICENSE OR THE SOFTWARE, WHETHER IN CONTRACT, IN TORT, OR OTHERWISE, WILL NOT EXCEED THE LICENSE FEES ACTUALLY PAID BY YOU UNDER THIS LICENSE.  THIS PARAGRAPH 11 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, SO THE ABOVE LIMITATION OR EXCLUSION MAY NOT APPLY TO YOU.

12	Termination
12.1	TERMINATION FOR CONVENIENCE
Each party may terminate this License for any reason, or for no reason by providing notice to the other party as follows: Brekeke may terminate this license by giving you five (5) days' notice; you may terminate this license by giving Brekeke five (5) days' written notice.
12.2	TERMINATION FOR CAUSE
Brekeke may immediately terminate this License if you breach any of your obligations hereunder.  
12.3	EFFECT OF TERMINATION
Upon the termination of this EULA for any reason, the following terms shall apply:  (a) all rights granted under this EULA will immediately terminate and you must stop all use of the Software; (b) you must return to Brekeke or permanently destroy all copies of the Software provided to or made by you, and, within ten (10) days after the effective date of termination, provide Brekeke with written certification that all such copies have been returned or destroyed; (c) you must permanently remove or delete the Software from all computer systems, including servers and workstations, on which the Software was installed, and (d) Paragraphs 3, 5, 6, 7, 8, 10, and 11 shall survive termination of this EULA for any reason.  
13	General Provisions
13.1	CANADIAN TRANSACTIONS
If you are subject to Canadian law, you agree to the following: 
The parties hereto have expressly required that the present EULA and its Exhibits, if any, be drawn up in the English language.  /  Les parties aux presentes ont expressement exige que la presente Convention et ses Annexes soient redigees en langue anglaise.

13.2	HAZARDOUS USES 
The Software is not intended for use in connection with any application requiring fail-safe performance such as the operation of nuclear power facilities, air traffic control or navigation systems, weapons control systems, life support systems, or any other system whose failure could lead to injury, death, environmental damage or mass destruction.  You agree that Brekeke will have no liability of any nature, and you are solely responsible, for any expense, loss, injury or damage incurred as a result of such use of the Software. 
13.3	GOVERNING LAW
This License will be governed by and construed in accordance with the laws of the State of California, United States of America, without giving effect to any conflicts or choice of laws principles that would require the application of the laws of a different jurisdiction.  Jurisdiction for settlement or litigation of any dispute, controversy or claim arising out of or in connection with this EULA, or the breach thereof, shall be only in the federal or state court with competent jurisdiction located in San Mateo County, California. The parties expressly exclude the application of the 1980 United Nations Convention on the International Sale of Goods (if applicable). 
13.4	ENTIRE AGREEMENT; SEVERABILITY
This EULA constitutes the entire, final and exclusive agreement between you and Brekeke regarding the specific license transaction described herein.  If any provision of this EULA is held to be illegal, invalid or unenforceable for any reason, then such provision will be enforced to the maximum extent permissible and the remainder of the provisions of this EULA will remain in full force and effect. 
13.5	EXPORT CONTROL
You may not directly or indirectly transfer the Software, including its documentation, to any country if such transfer would be prohibited by applicable law, including the U.S. Export Administration Act and the regulations issued thereunder. You agree to the foregoing and you are representing and warranting that you are not located in, under the control of, or a national or resident of any such country. You will be solely responsible for identifying and complying with all laws of any jurisdiction outside of the United States regarding the import, export or use of Software and technical data supplied by Brekeke.  You will obtain at your own expense all licenses, permits or approvals required by any government to use the Software. 

13.6	U.S. GOVERNMENT RIGHTS
The Software is a "commercial item" as that term is defined at 48 C.F.R. 2.101, consisting of "commercial computer software" and "commercial computer software documentation" as such terms are used in 48 C.F.R. 12.212.  Consistent with 48 C.F.R. 12.212 and 48 C.F.R. 227.7202-1 through 227.7202-4, all U.S. Government end users acquire the Software with only those rights set forth in this EULA.  
13.7	WAIVER AND MODIFICTIONS
All waivers must be in writing.  Any waiver or failure to enforce a provision of this EULA on one occasion shall not be deemed a waiver of any other provision or such provision on any other occasion.   
If you have any questions about this EULA, please contact your Brekeke authorized reseller or Brekeke. 
NOTICE TO U.S. GOVERNMENT END USERS. The Software and any accompanying documentation are provided with RESTRICTED RIGHTS. Use, duplication, or disclosure by the U.S. Government or its contractors is subject to restrictions as set forth in subparagraph (c)(1)(ii) of the Rights in Technical Data and Computer Software clause at DFARS 252.227-7013, or any successor regulation or as set forth in the particular department or agency regulations or rules which provide Brekeke or its licensors with protection equivalent to or greater than that clause.
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 THIS AGREEMENT, THEN IT MUST NOT USE OR PURCHASE BREKEKE SOFTWARE PRODUCTS.