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Dialogic

DIALOGIC SOFTWARE LICENSE AGREEMENT

DIALOGIC SYSTEM RELEASE 6.0 PCI SU WINDOWS - DEVELOPER EDITION

IMPORTANT - READ BEFORE COPYING, INSTALLING OR USING.

YOU ACKNOWLEDGE THAT YOU HAVE READ THIS SOFTWARE LICENSE AGREEMENT (“AGREEMENT”) AND UNDERSTAND IT, AND THAT BY DOWNLOADING, INSTALLING OR USING THE SOFTWARE ACCOMPANYING THIS AGREEMENT ("SOFTWARE") YOU AGREE TO BE BOUND BY ITS TERMS AND CONDITIONS. IF YOU ARE ACCESSING THE SOFTWARE ELECTRONICALLY, YOU MUST INDICATE YOUR ACCEPTANCE OF THESE TERMS BY SELECTING THE "ACCEPT" BUTTON AT THE END OF THIS AGREEMENT. IF YOU DO NOT ACCEPT THE TERMS AND CONDITIONS OF THIS AGREEMENT AND YOU ARE ACCESSING THE SOFTWARE ELECTRONICALLY, SELECT THE "DECLINE" BUTTON AT THE END OF THIS AGREEMENT. IF YOU RECEIVED THE SOFTWARE ON A PHYSICAL MEDIA AND DO NOT ACCEPT THE TERMS AND CONDITIONS OF THIS AGREEMENT, YOU MAY RETURN THE PHYSICAL MEDIA UNOPENED FOR A FULL REFUND. DIALOGIC IS UNWILLING TO LICENSE THE SOFTWARE TO YOU IF YOU DO NOT AGREE TO THE TERMS AND CONDITIONS OF THIS AGREEMENT. AS USED HEREIN, "YOU" MEANS THE INDIVIDUAL DOWNLOADING THE SOFTWARE AND HIS/HER EMPLOYER AND "DIALOGIC" MEANS DIALOGIC CORPORATION. CERTAIN TERMS USED HEREIN ARE DEFINED ABOVE AND BELOW.

1. SOFTWARE LICENSE GRANT.

1.1 Subject to the terms of this Agreement, Dialogic grants to You the following non-transferable, non-assignable and non-exclusive copyright licenses in the Software, and these licenses alone:

(i) “Developer Tools” includes the header files located in the 'inc' directory and contains files in the 'lib' directory with the extension '.lib' which are part of the Software licensed hereunder. You may use the Developer Tools internally solely for the purposes of reproducing and integrating or including the "Distribution Software" (as defined below) as part of Your products that incorporate the Dialogic board hardware product for which Dialogic has written the Software ("Your Product). Your Product must include a substantial amount of other software and/or hardware manufactured and/or marketed by You.

(ii) “Sample Source” is the example interface or application source code which is part of the Software licensed hereunder but which does not include the Developer Tools or the Driver Source. You may reproduce, modify and compile the Sample Source and reproduce and integrate or include the Sample Source, but only as part of Your Product.

(iii) “Redistributable Object Code” is the redistributable code provided in object code form located in the following directory which is part of the Software licensed hereunder: "/redistributable-runtime". The Redistributable Object Code does not include the Developer Tools. You may reproduce and integrate or include an object code version of the Redistributable Object Code, but only as part of Your Product.

(iv) “End-User Documentation” is the textual materials intended for End Users. You may reproduce and distribute the End User Documentation solely as part of the End User documentation for Your Product which includes the "Distribution Software" and subject to Your strict compliance with the following restrictions: (a) any such distribution(s) do(es) not render the End User Documentation incomplete, inaccurate or misleading; and (b) You retain Dialogic's copyright or other proprietary notices as they appear in the End User Documentation and (iii) in the End User documentation for Your Product, You replace Dialogic's name with Your own and You include Your copyright and trademark notice along with Dialogic's copyright and trademark notice.

(v) “Distribution Software” means the Redistributable Object Code and the Driver and Sample Source, both as indicated above. You may distribute the Distribution Software solely as part of Your Product and only under the terms of Section 1.1(v), 1.2, 1.3 and/or 1.4 herein and subject to all other restrictions in this Agreement. You may only distribute the Distribution Software as part of Your Product and solely with the right to use the Distribution Software with Your Product. You may not distribute the Developer Tools under any circumstances.

1.2 DISTRIBUTION TERMS AND RESTRICTIONS. Distribution of the Distribution 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 Distribution Software hereunder, (ii) You shall not make any statement that Your Product is "certified," or that its performance is in any way guaranteed, or the like, by Dialogic, (iii) You shall not use Dialogic's name or trademarks to market Your Product without written permission from Dialogic in advance of doing so and without adhering to Dialogic’s trademark usage guidelines, and (iv) You shall indemnify, hold harmless, and defend Dialogic (including all of its officers, employees, directors, subsidiaries, assigns, shareholders, representatives, affiliates and agents) and Dialogic's suppliers 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.

1.3 DISTRIBUTION TO END USERS. An "End User" is a party that is being provided with Your Product for its own use, and not for the purpose of further distribution, resale, or furnishing Your Product to a separate party. Distribution to End Users of the Distribution 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 that each End User enters into a written agreement that prohibits copying and distribution of the Distribution Software, and that prohibits use of the Distribution Software except with Your Product and (ii) that includes terms that are at least as protective of Dialogic as the terms and conditions specified in Sections 1.2, 1.3, 1.5-1.10, 2, 3, 4, 5 and 6 of this Agreement.

1.4 DISTRIBUTION VIA YOUR DISTRIBUTORS. You may authorize Your distributors and any subsequent sub-distributors to distribute the Distribution Software only as part of Your Product and 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 as the terms and conditions specified in Sections 1.2, 1.4, 1.5-1.10, 2, 3, 4, 5 and 6 of this Agreement, and (ii) that complies with the terms specified in the Section 1.3 "Distribution to End Users" above.

1.5 OWNERSHIP. Title to all copies of the Software remains with Dialogic, its subsidiaries, and/or its suppliers. The Software is copyrighted and protected by the laws of the United States and other countries, and those of international treaty provisions and/or treaties. 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. 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 owned by Dialogic or in which Dialogic has rights, including without limitation rights by ownership, license or assignment.

1.6 LIMITATION ON REVERSE ENGINEERING. You shall not, nor shall You permit any third party, to decompile, to disassemble or to reverse engineer the Software, except and only to the extent that it is expressly permitted by applicable jurisdictional law notwithstanding this limitation.

1.7 EXPORT CONTROL. You agree to comply with all applicable export requirements associated with the Software, including those of the US and Canadian governments and any foreign governments and their agencies as they may be amended from time to time.

1.8 CONFIDENTIALITY. The Software includes confidential information of Dialogic. 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.

1.9 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.

1.10 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 which are set forth below or in the End User Documentation, and installation, use and/or further distribution thereof 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; installation, use and/or further distribution by You of such third party software and Software components are subject to the respective open source license(s) 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 its recipient "as is".

2. WARRANTY. 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 FITNESS FOR A PARTICULAR PURPOSE, OR AGAINST LATENT DEFECTS. DIALOGIC ASSUMES NO RISK OF ANY AND ALL DAMAGE OR LOSS FROM USE OR INABILITY TO USE, WHETHER TEMPORARY OR PERMANENT, 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.

3. 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 acknowledgment of Dialogic's proprietary rights therein. Contractor or Manufacturer is Dialogic Corporation, 9800 Cavendish Blvd., 5th Floor, Montreal, Quebec, Canada H4M 2V9.

4. EXCLUSIVE REMEDIES AND LIMITATIONS OF LIABILITIES. IN NO EVENT SHALL DIALOGIC OR ITS OFFICERS, EMPLOYEES, DIRECTORS, SUBSIDIARIES, ASSIGNS, SHAREHOLDERS, 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, ASSIGNS, SHAREHOLDERS, 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', ASSIGNS., SHAREHOLDERS.,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(s), You shall indemnify and hold Dialogic and its officers, employees, directors, subsidiaries, assigns, shareholders, representatives, affiliates 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.

5. APPLICABLE LAWS. 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.

6. 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 in advance by an authorized representative of Dialogic.

Copyright © 2002-2007, Dialogic Corporation, All rights reserved.

Dialogic Corporation, 9800 Cavendish Blvd., 5th Floor, Montreal, Quebec, Canada H4M 2V9