ENDUSER LICENSING AGREEMENT
FOR VOICE ELEMENTS AND HMP ELEMENTS
PLEASE READ THIS LICENSE AGREEMENT (the “Agreement”) CAREFULLY. BY INSTALLING OR USING THE ASSOCIATED SOFTWARE (THE “SOFTWARE”), YOU AGREE TO THE TERMS OF THIS AGREEMENT BETWEEN YOU AND INVENTIVE LABS CORPORATION (“INVENTIVE LABS”). IF YOU DO NOT AGREE, DO NOT USE THE SOFTWARE, RETURN ANY COPIES OF THE SOFTWARE TO INVENTIVE LABS FOR A FULL REFUND, AND/OR DESTROY ANY COPIES ON ANY COMPUTER SYSTEMS. BY KEEPING A COPY OF THIS SOFTWARE ON YOUR COMPUTER SYSTEM, YOU ARE AGREEING TO THE TERMS OF USE HEREIN.
GENERAL TERMS
1. SOFTWARE. This Agreement controls your use of the following Software based on the licenses purchased by you:
- Voice Elements Server Addition;
- HMP Elements;
- Voice Elements Developer Toolkit; and/or,
- Applications developed with the Voice Elements Developer Toolkit.
All the Software may be purchased together and when done so, is referred to as the “Voice Elements Platform”
2. GENERAL. This Agreement is a legal agreement between you (either an individual or by you on behalf of the entity for which you are using the Software) and Inventive Labs. This Agreement governs the Software, which includes the server software, online and electronic documentation regarding the server software, the development software, and any associated media and printed materials regarding the software. This Agreement applies to updates, supplements, add-on components, and Internet-based services components of the Software that Inventive Labs may provide or make available to you unless Inventive Labs provides other terms with the update, supplement, add-on component, or Internet-based services component provided that such provisions of this Agreement not specifically amended thereby shall remain in full force and effect according to their terms. This Agreement also governs any product support services relating to the Software except as may be included in another agreement between you and Inventive Labs. An amendment or addendum to this Agreement may accompany the Software. The Software contains the Voice Elements Server Edition and/or HMP Elements to provide services or functionality on your system.
3. GRANT OF LICENSE. Inventive Labs grants you the following rights conditioned on your compliance with all the terms and conditions of this Agreement. You may install one copy of the Software on a single computer system (“Server”). You may use the Software with the number of ports for which you have purchased a license. Separate component parts of the Software may not be used on more than one Server. An additional license is required if you install another copy of the Software on the same Server (whether in a separate partition, by using system emulation software, or otherwise) or to install or run a copy of the Software on a different server.
DESCRIPTION OF OTHER RIGHTS AND LIMITATIONS
4. OTHER LICENSES. Your use of software applications installed on the Server, accessed through the Server, or providing application-sharing functionality may require additional licenses. Please consult the license agreement accompanying such software.
5. RESERVATION OF RIGHTS/OTHER RESTRICTIONS. The Software is protected by copyright and other intellectual property laws and treaties. Inventive Labs or its suppliers own the title, copyright, and other intellectual property rights in the Software. The Software is licensed, not sold. Inventive Labs reserves all rights not expressly granted to you in this Agreement. Notwithstanding any other provision in this Agreement, this Agreement does not grant a license or any other rights to implement any functionality contained in the Software (including without limitation communication protocols used by the Software) in any software installed on a device accessing or utilizing the Software. Reverse engineering, decompiling, or disassembling the Software is prohibited, except and only to the extent that such activity is expressly permitted by applicable law notwithstanding this limitation. Renting, leasing, lending and/or providing commercial hosting services using the Software is also prohibited.
6. USE OF SOFTWARE WITH OPEN SOURCE SOFTWARE. Open source software are programs licensed under a license that requires any “modifications” be made freely available If you use such program, such as software licensed under the GNU General Public License (“GPL”) (“Open Source software”). If you use Open Source software in conjunction with the Software, you must ensure that your use does not: (i) create or purport to create obligations of Inventive Labs with respect to the Software; or (ii) grant, or purport to grant, to any third party any rights to Inventive Labs’ intellectual property or proprietary rights in the Software. You also may not combine the Software with any programs, including libraries, licensed under the GNU General Public License (“GPL”) in any manner that could cause, or could be interpreted or asserted to cause, the Software or any modifications thereto to become subject to the terms of the GPL.
7. USE OF OPEN SOURCE SOFTWARE. The Software uses libraries licensed under the LGPL. You may request copies of such libraries as provided in the LGPL from Inventive Labs.
PRODUCT SUPPORT SERVICES
8. RIGHTS AND OBLIGATIONS. Inventive Labs, in its sole discretion, may provide you with product support services related to the Software. Use of any such support services is governed by Inventive Labs’ policies and programs described in the user manual, in online documentation, on Inventive Labs’ support webpage, and/or in other Inventive Labs’ provided materials. Any software Inventive Labs may provide you as part of support services are governed by this Agreement, unless separate terms are incorporated into such support services provided that such provisions of this Agreement not specifically amended thereby shall remain in full force and effect according to their terms. This Agreement does not obligate Inventive Labs to provide any support services or to support any software provided as part of those services.
9. CONSENT TO DATA. You agree that Inventive Labs and its affiliates may collect and use technical information gathered as part of the support services provided to you, if any, related to the Software. Inventive Labs may use this information to improve our products, to provide customized services or technologies to you, and to conduct market research provided that Inventive Labs will not disclose this information in a form that personally identifies you.
10. UPGRADES. To use Software identified as an upgrade by Inventive Labs, it is required that you be licensed for the Software identified by Inventive Labs as eligible for the upgrade. After upgrading, the Software that formed the basis for your upgrade eligibility may no longer be used. The resulting upgraded Software may be used only in accordance with the terms of this Agreement.
11. NOT FOR RESALE. The Software is licensed and not sold to you and such license is specifically not for resale. This license may not be sold, transferred, or used for any purpose other than demonstration, test, or evaluation by you.
12. EXPORT RESTRICTIONS. You acknowledge that the Software is subject to U.S. export jurisdiction. You agree to comply with all applicable international and national laws that apply to the Software, including the U.S. Export Administration Regulations, as well as end-user, end-use, and destination restrictions issued by U.S. and other governments. You agree that neither the Software nor any direct product thereof will be exported, directly, or indirectly, in violation of these laws, or will be used for any purpose prohibited by these laws. Further, by using this Software you agree that (1) you are not a citizen, national, or resident of, and are not under control of, the government of Cuba, Iran, Sudan, Libya, North Korea, Syria, nor any country to which the United States has prohibited export, (2) you will not download or otherwise export or re-export the Software, directly or indirectly, to the above mentioned countries nor to citizens, nationals or residents of those countries, (3) you are not listed on the United States Department of Treasury lists of Specially Designated Nationals, Specially Designated Terrorists, and Specially Designated Narcotics Traffickers, nor are you listed on the United States Department of Commerce Table of Denial Orders, (4) you will not download or otherwise export or re-export the Software, directly or indirectly, to persons on the above mentioned lists and (5) you will not use the Software for, and will not allow the Software to be used for, any purposes prohibited by United States law, including, without limitation, for the development, design, manufacture or production of nuclear, chemical or biological weapons of mass destruction, the violation of any telecommunication laws, or the violation of any copyright or intellectual property laws.
13. SOFTWARE TRANSFER. You may move the Software to a different server as long as you permanently remove the Software from the initial server.
14. TERMINATION. Without prejudice to any other rights, Inventive Labs may terminate this Agreement if you are not in compliance with all the terms and conditions of this Agreement. In such event, you must destroy all copies of the Software and all of its component parts.
HMP ELEMENTS LICENSE SPECIFICS
15. CONCURRENT LICENSES. You may only run the HMP Elements software if you have a license for the Voice Elements Server Edition, the CTI32 software, or the Voice Elements Platform purchased from Inventive Labs.
16. HMP ELEMENTS LICENSE. A license to use HMP Elements must be purchased separately from the Voice Elements Server Edition license or may be purchased as part of the Voice Elements Platform.
DEVELOPMENT LICENSES/CLIENT LICENSES/FAILOVER USE
17. DEVELOPMENT LICENSE. If you purchased a license for Voice Elements Server Edition and/or HMP Elements, you may install the Voice Elements Developer Toolkit for no additional charge. The Voice Elements Developer Toolkit may only be used to develop applications for the Voice Elements Server Edition and/or HMP Elements.
18. DEVELOPED APPLICATIONS. If you develop applications for Voice Elements Server Edition and/or HMP Elements using the Voice Elements Developer Toolkit (“Developed Applications”), such applications may be used by an unlimited number of clients, provided that such use stays within the number of ports licensed on the Voice Elements Server.
WARRANTIES
19. LIMITED WARRANTY FOR SOFTWARE ACQUIRED IN THE UNITED STATES AND CANADA. Inventive Labs warrants that the Software will perform substantially in accordance with the accompanying materials for a period of thirty (30) days from the date of purchase of the license provided that no modifications have been made by you to the Software. If an implied warranty or condition is created by your state and/or provincial law prohibits disclaimer of it, you also have an implied warranty or condition, BUT ONLY AS TO DEFECTS DISCOVERED DURING THE PERIOD OF THIS LIMITED WARRANTY (THIRTY DAYS). AS TO ANY DEFECTS DISCOVERED AFTER THE THIRTY-DAY PERIOD, THERE IS NO WARRANTY OR CONDITION OF ANY KIND. Some states and/or jurisdictions do not allow limitations on how long an implied warranty or condition lasts, so the above limitation may not apply to you. Any supplements or updates to the Software, including without limitation any service packs or hot fixes, provided to you after the expiration of the thirty-day Limited Warranty period are not covered by any warranty or condition, express, implied, or statutory. Inventive Labs does not provide any warranty for Software that has been modified.
20. LIMITATION ON REMEDIES; NO CONSEQUENTIAL OR OTHER DAMAGES. Your exclusive remedy for any breach of this Limited Warranty is as set forth below. Except for any refund elected by Inventive Labs, YOU ARE NOT ENTITLED TO ANY DAMAGES, INCLUDING, BUT NOT LIMITED TO, CONSEQUENTIAL DAMAGES, if the Software does not meet Inventive Labs’ Limited Warranty, and, to the maximum extent allowed by applicable law, even if any remedy fails of its essential purpose. The terms of 23 – Exclusion of Incidental, Consequential and Certain Other Damages are also incorporated into this Limited Warranty. Some states/jurisdictions do not allow the exclusion or limitation of incidental or consequential damages, so the above limitation or exclusion may not apply to you if state law specifically grants you other rights.
21. YOUR EXCLUSIVE REMEDY. Inventive Labs’ entire liability and your exclusive remedy for any breach of this Limited Warranty or for any other breach of this Agreement or for any other liability relating to the Software shall be, at Inventive Labs’ option from time to time exercised subject to applicable law, (a) return of the amount paid (if any) for the Software, or (b) repair or replacement of the Software, that does not meet this Limited Warranty and that is returned to Inventive Labs with a copy of your receipt provided that such Software has not been modified by you. You will receive the remedy elected by Inventive Labs without charge, except that you are responsible for any expenses you may incur (e.g., cost of shipping the Software to Inventive Labs). This Limited Warranty is void if failure of the Software has resulted from accident, abuse, misapplication, abnormal use, modification, change in files, and/or a virus. Any replacement Software will be warranted for the remainder of the original warranty period or thirty (30) days, whichever is longer, and Inventive Labs will use commercially reasonable efforts to provide your remedy within a commercially reasonable time of your compliance with Inventive Labs’ warranty remedy procedures. Outside the United States or Canada, neither these remedies nor any product support services offered by Inventive Labs are available.
22. DISCLAIMER OF WARRANTIES. The Limited Warranty that appears above is the only express warranty made to you and is provided in lieu of any other express warranties or similar obligations (if any) created by any advertising, documentation, packaging, or other communications. Except for the Limited Warranty and to the maximum extent permitted by applicable law, Inventive Labs and its suppliers provide the Software and support services (if any) AS IS AND WITH ALL FAULTS, and hereby disclaim all other warranties and conditions, whether express, implied or statutory, including, but not limited to, any (if any) implied warranties, duties or conditions of merchantability, of fitness for a particular purpose, of reliability or availability, of accuracy or completeness of responses, of results, of workmanlike effort, of lack of viruses, and of lack of negligence, all with regard to the Software, and the provision of or failure to provide support or other services, information, software, and related content through the Software or otherwise arising out of the use of the Software. THERE IS NO WARRANTY OR CONDITION OF TITLE, QUIET ENJOYMENT, QUIET POSSESSION, CORRESPONDENCE TO DESCRIPTION, OR NON-INFRINGEMENT WITH REGARD TO THE SOFTWARE.
23. EXCLUSION OF INCIDENTAL, CONSEQUENTIAL AND CERTAIN OTHER DAMAGES. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT SHALL INVENTIVE LABS OR ITS SUPPLIERS BE LIABLE FOR ANY SPECIAL, INCIDENTAL, PUNITIVE, INDIRECT, OR CONSEQUENTIAL DAMAGES WHATSOEVER (INCLUDING, BUT NOT LIMITED TO, DAMAGES FOR LOSS OF PROFITS OR CONFIDENTIAL OR OTHER INFORMATION, FOR BUSINESS INTERRUPTION, FOR PERSONAL INJURY, FOR LOSS OF PRIVACY, FOR FAILURE TO MEET ANY DUTY OF GOOD FAITH OR OF REASONABLE CARE, FOR NEGLIGENCE, AND FOR ANY OTHER PECUNIARY OR OTHER LOSS WHATSOEVER) ARISING OUT OF OR IN ANY WAY RELATED TO THE USE OF OR INABILITY TO USE THE SOFTWARE, THE PROVISION OF OR FAILURE TO PROVIDE SUPPORT OR OTHER SERVICES, INFORMATION, SOFTWARE, AND RELATED CONTENT THROUGH THE SOFTWARE, OR OTHERWISE UNDER OR IN CONNECTION WITH ANY PROVISION OF THIS AGREEMENT, EVEN IN THE EVENT OF THE FAULT, TORT (INCLUDING NEGLIGENCE), MISREPRESENTATION, STRICT LIABILITY, BREACH OF CONTRACT OR BREACH OF WARRANTY OF INVENTIVE LABS OR ANY SUPPLIER, AND EVEN IF INVENTIVE LABS OR ANY SUPPLIER HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
24. LIMITATION OF LIABILITY AND REMEDIES. NOTWITHSTANDING ANY DAMAGES THAT YOU MIGHT INCUR FOR ANY REASON WHATSOEVER (INCLUDING, WITHOUT LIMITATION, ALL DAMAGES REFERENCED HEREIN AND ALL DIRECT OR GENERAL DAMAGES IN CONTRACT OR ANYTHING ELSE), THE ENTIRE LIABILITY OF INVENTIVE LABS AND ANY OF ITS SUPPLIERS UNDER ANY PROVISION OF THIS AGREEMENT AND YOUR EXCLUSIVE REMEDY HEREUNDER (EXCEPT FOR ANY REMEDY OF REPAIR OR REPLACEMENT ELECTED BY INVENTIVE LABS WITH RESPECT TO ANY BREACH OF THE LIMITED WARRANTY) SHALL BE LIMITED TO THE GREATER OF THE ACTUAL DAMAGES YOU INCUR IN REASONABLE RELIANCE ON THE SOFTWARE UP TO THE AMOUNT ACTUALLY PAID BY YOU FOR THE SOFTWARE OR US $500.00. THE FOREGOING LIMITATIONS, EXCLUSIONS, AND DISCLAIMERS (INCLUDING SECTIONS 19, 20, 21, 22, and 23) SHALL APPLY TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, EVEN IF ANY REMEDY FAILS ITS ESSENTIAL PURPOSE.
MISCELLANEOUS PROVISIONS
25. USE OF PRODUCT. By using the Software, you agree that you will comply with all applicable laws governing such use including, but not limited to, compliance with federal and state “Do Not Call” regulations and all Federal Communications Commissions and Federal Trade Communication regulations.
26. APPLICABLE LAW. By using the Software, you agree that the laws of the State of Colorado, without regard to principles of conflict of laws, will govern any disputes between you and Inventive Labs. You agree not to commence or prosecute any action in connection therewith other than in the state and federal courts located in Denver, Colorado, and you hereby consent to, and waive all defenses of lack of personal jurisdiction and forum non conveniens with respect to, venue and jurisdiction in the state and federal courts of Colorado.
27. ELECTRONIC COMMUNICATIONS. If you provide an email address to Inventive Labs, you consent to receive electronic communications from Inventive Labs, including but not limited to, information about the Software, updates to such Software, and email newsletters.
28. PHONE COMMUNICATIONS. If you provide a phone number to Inventive Labs, you consent to receive phone calls from Inventive Labs regarding the Software and waive any rights under applicable Do Not Call Registry federal and state laws.
29. INDEMNIFICATION. You agree to indemnify Inventive Labs and its officers, directors, employees, agents, distributors, and affiliates from and against any and all third party claims, demands, liabilities, costs, or expenses, including reasonable attorney’s fees, that arise from your use or misuse of this Software.
30. ENTIRE AGREEMENT; SEVERABILITY. This Agreement (including any addendum or amendment to this Agreement which is included with the Software) is the entire agreement between you and Inventive Labs relating to the Software and any support services. This Agreement supersedes all prior or contemporaneous oral or written communications, proposals, and representations with respect to the Software or any other subject matter covered by this Agreement. To the extent the terms of any Inventive Labs policies or programs for support services conflict with the terms of this Agreement, the terms of this Agreement shall control unless the parties otherwise agree in writing. If any provision of this Agreement is held to be void, invalid, unenforceable, or illegal, the other provisions shall continue in full force and effect.