DAVID CLARK VOIP INTERCOM SYSTEM SOFTWARE LICENSE AGREEMENT

This David Clark VOIP Intercom System Software License Agreement (this “Agreement”) is between the account holder entity identified in the online user Registration (as defined below) process (“Licensee”) for the voice over IP intercom communication solution comprising hardware and software components offered by David Clark Company Incorporated (the “Solution”), and David Clark Company Incorporated, a Massachusetts corporation with offices located at 360 Franklin Street, Worcester MA 01615 (“DCCI”) and governs Licensee’s use of the software preloaded on the audio gateway hardware purchased by Licensee (the “Software”).

BY CLICKING “I AGREE,” COMPLETING THE REGISTRATION, ACTIVATING THE SOFTWARE, OR OTHERWISE LOGGING INTO, ACCESSING, OR USING THE SOFTWARE OR THE SOLUTION, LICENSEE AGREES TO COMPLY WITH AND BE LEGALLY BOUND BY ALL THE TERMS AND CONDITIONS SET FORTH IN THIS AGREEMENT. IF LICENSEE DOES NOT AGREE TO COMPLY WITH THIS AGREEMENT, LICENSEE MUST NOT CLICK “I AGREE,” REGISTER, ACTIVATE THE SOFTWARE, OR ACCESS OR USE THE SOFTWARE OR SOLUTION.

THIS AGREEMENT REQUIRES THAT ANY DISPUTES BE ARBITRATED, RATHER THAN DECIDED BY JURY TRIAL. THIS AGREEMENT ALSO CONTAINS IMPORTANT DISCLAIMERS AND LIMITATIONS OF DCCI’S LIABILITY. PLEASE READ THIS AGREEMENT CAREFULLY.

1. Overview.

(a) Background. Licensee has purchased the audio gateway on which the Software is pre-loaded from DCCI or an authorized distributor. The stock keeping unit number (the “SKU”) of the audio gateway Licensee purchased is set forth on the DCCI e-commerce shopping page through which Licensee placed and paid for its order. This SKU has been confirmed by the email message that Licensee received following the purchase. If the SKU of the audio gateway Licensee purchased indicates that the Software preloaded on the audio gateway comes with a temporary included license, the terms and conditions set forth in Section 2(a)(i) apply. If the SKU of the audio gateway License purchased does not come with a temporary, included license, or if the included license has expired, the terms and conditions set forth in Section 2(a)(ii) apply. The number of concurrent Authorized Users and the length of the Term associated with such SKU was set forth on DCCI’s e-commerce shopping page at the time of the purchase and is set forth in the confirmation email message Licensee received after placing its order and making its purchase. The Solution facilitates wireless communication. The Software is exclusively for use as part of the Solution.

(b) General. Licensee represents and warrants that (a) it will only use the Software for communicating with others through the Solution in the intended manner; (b) the individual executing this Agreement on behalf of Licensee has reached the age of majority and is competent and authorized by Licensee to bind Licensee to the terms and conditions of this Agreement; and (c) Licensee is not located in a country that is subject to a U.S. Government embargo or that has been designated by the U.S. Government as a terrorist supporting country and that none of Licensee’s Authorized Users is listed on any U.S. Government list of prohibited or restricted parties.

2. License.

(a) Licenses. One of the following licenses applies to Licensee, depending on whether the SKU of the purchased audio gateway indicates that it comes with a temporary, included license as described in Section 2(a)(i) or whether the Registration and SKU of the audio gateway indicate that a standard license under Section 2(a)(ii) applies:

(i) Included License. Subject to each and every term of this Agreement, if Licensee has just purchased the audio gateway hardware with the Software pre-loaded on it, the Licensee has not yet used the Software pursuant to a standard license as set forth in Section 2(a)(ii) below, and the SKU designated on the DCCI ecommerce shopping page and the confirmation email message sent to Licensee indicates the audio gateway came with a temporary, included license, DCCI hereby grants Licensee a personal, limited, nonexclusive, nontransferable and nonsublicensable, revocable license to use the object code Software and Solution solely through a maximum of ten concurrent Authorized Users (as defined below), solely for internal business purposes of the Licensee and for the purpose of temporary use of the Software and Solution, solely in the Territory (as defined below), solely for the purpose of accessing and using the Software and Solution in accordance with manner prescribed in the applicable documentation, and solely for twelve months. If Licensee desires to use the Software and Solution beyond the twelve-month period, Licensee shall follow the procedures to execute a standard license as set forth in Section 2(a)(ii) below to extend or renew the prior license and shall pay the appropriate fees.

(ii) Standard License. Subject to each and every term of this Agreement, if (A) Licensee has purchased the audio gateway hardware with the temporary, included license described in Section 2(a)(i) and such included license has expired or is about to expire, Licensee has completed the Registration process, requested a standard license in the Registration, and paid for the standard license in accordance with Section 9; or (B) Licensee has purchased the audio gateway hardware without an included license, Licensee has completed the Registration process, and Licensee has paid the requisite fees in accordance with Section 9, DCCI hereby grants Licensee a personal, limited, nonexclusive, nontransferable and nonsublicensable, revocable license to use the object code of the Software and the Solution solely through a maximum of the number of its concurrent Authorized Users (as defined below) Licensee identified in the Registration and the SKU associated with the purchased audio gateway and paid for, solely by accessing the Software with the key Licensee obtained upon completion of the Registration process, solely for internal business purposes of the Licensee, solely in the Territory (as defined below), solely for the purpose of accessing and using the Solution in accordance with manner prescribed in the applicable documentation, and solely during the Term (as defined below).

(iii) Renewed License. Subject to each and every term of this Agreement, if Licensee desires to renew or extend the Term of its standard license described in Section 2(a)(ii), and has indicated in the Registration the length of the desired renewal period of the license described in Section 2(a)(ii) as well as the number of concurrent Authorized Users and paid the requisite fees as set forth in Section 9, DCCI hereby renews the standard license for the period of time specified in the Registration for the length of the Term and for use by the designated number of concurrent Authorized Users solely by accessing the Software with the key Licensee obtained upon completion of the Registration process for use during the renewed license period. The terms of the previous standard license(s) granted to Licensee continue to apply (unless modified by DCCI since then in accordance with this Agreement, in which case the modified terms and conditions apply) only modified by the extended period of time and the number of concurrent Authorized Users set forth in the updated registration process.

(b) Mobile App and Solution. Licensee acknowledges and agrees that in order to access and use the Solution, Licensee must have a license to use the Software and Solution, and each Authorized User must download and execute an end user license agreement for the David Clark mobile software application for use on their mobile phone. In addition, for standard and renewed licenses, Licensee must complete the Registration process, indicate the number of concurrent Authorized Users and length of the Term during the Registration process, and obtain the applicable license key associated with the SKU that indicates the correct number of Authorized Users who may access and use the Solution concurrently (as indicated during the Registration process), for the length of the Term indicated by the SKU, and must purchase the audio gateway hardware on which the Software is pre-loaded.

(c) Authorized Users. Only Licensee’s Authorized Users may access and use the Software and Solution and then only on behalf of Licensee and then only the number of concurrent Authorized Users set forth in the Registration may use the Software at the same time. An “Authorized User” is an employee of Licensee designated by Licensee as someone authorized to use the Software and Solution on Licensee’s behalf and who has downloaded the David Clark mobile software application on their mobile device. Licensee is responsible for all acts and omissions of its Authorized Users.

(d) Term. The “Term” of the Agreement shall have the meaning set forth in Section 10.

(e) Territory. The “Territory” is the United States. Licensee (and its Authorized Users) may only access and use the Software and the Solution if located in the United States. (f)        Registration. Licensee must complete the registration process on DCCI’s designated webpage for all standard and renewed licenses (the “Registration”). Licensee represents that it has provided DCCI with true, accurate, and complete information about Licensee’s identity, including without limitation its name, street address, and email address in the Registration. Though the Solution is intended to work without accessing the Internet, Licensee acknowledges and agrees that it must access the Internet for purposes of Registration and activation of the standard license and any renewal license.

(g) Licensed Software; Policies. Licensee acknowledges that the Software is licensed, not sold, to Licensee. Licensee shall comply with additional policies, rules, and restrictions communicated to Licensee from time to time by DCCI, including any in the documentation.

(h) Reservation of Rights. DCCI expressly reserves all rights not expressly granted in this Agreement and Licensee acknowledges and agrees that Licensee receives no rights by implication, estoppel, or similar theories.

3. Restrictions. Except as expressly permitted in Section 2, and subject to Section 5(b) with respect to Open-Source Components (as defined below), Licensee shall not and shall not allow others to engage in prohibited activities and shall comply with the following restrictions:

(a) No copying. Licensee shall not copy, reproduce, distribute, publish, transmit, publicly perform, import, publicly display, rent, lease, lend, sell, sublicense, assign, transfer, make available to third parties, edit, modify, change, adapt, or create derivative works from the Software or Solution or use the Software or Solution in any way except as expressly permitted in Section 2 above. Licensee shall not use the Software or Solution for the benefit of third parties and Licensee may not use or commercialize the Software or Solution to generate income or revenue for Licensee. Licensee may not enable use of the Software on a device other than the audio gateway hardware (as identified by specific serial number) on which it was pre-loaded.

(b) No Derivative Works. Licensee shall not modify, adapt, edit, improve, fix, amend, alter, enhance, translate, or create any derivative works based on the Software or the Solution.

(c) No Reverse Engineering. Licensee shall not decompile, reverse engineer, disassemble, decode, adapt, attempt to derive, or gain access to the source code of, or decrypt the Software or Solution. In jurisdictions where licensees have the right to do the foregoing and cannot waive that right, Licensee may exercise the right only to the extent necessary to achieve interoperability with an independent program and only to the extent the information needed to achieve interoperability has not been made available by DCCI within a reasonable period of time upon request.

(d) No Bots. Licensee shall not use any robots, spiders, automated inquiry devices, or repetitive data gathering and extraction tools, routines, scripts, or mechanisms to access the Software or the Solution.

(e) No Malicious Code. Licensee shall not input, upload, store, or transmit any virus, Trojan horse, worm, trapdoor, time bomb or other computer programming routine intended to damage, interfere with, intercept, or expropriate the Software, the Solution, or any technology or that infringes or misappropriates the intellectual property rights of any third party (collectively, “Malicious Code”).

(f) Compliance with Laws. Licensee shall comply with all applicable, international, national, state, and local laws, regulations, rules, and ordinances.

(g) Intellectual Property and IP Notices. Licensee shall not remove, alter, obscure, or otherwise interfere with any Intellectual Property (as defined below) notice affixed to, within, or associated with the Software or the Solution, whether of DCCI or its suppliers or licensors. Licensee shall not use any Intellectual Property belonging to DCCI or its suppliers or licensors to develop, design, create, license, or distribute any applications, accessories, or devices for use with the Software or Solution or that compete with the Software or Solution.

(h) Limitation on Use. Licensee shall not use the Software or the Solution in any way or for any purpose except as expressly permitted in this Agreement and Licensee shall not use the Software or Solution in any way for which it was not designed or intended.

(i) Audio Gateway Hardware. Licensee shall use the Software only on the audio gateway hardware on which it came pre-loaded and that is identified by the serial number provided by the Licensee during the Registration process and the process of obtaining the license key. Licensee shall not (and shall not allow others to) use the Software or access the Solution on any other device or on any other audio gateway hardware.

(j) Network. Licensee shall not make the Software or the Solution available over a network, by means of timesharing, for public viewing, or in any commercial areas.

(k) Benchmarking. Licensee shall not conduct or disclose any benchmark tests of the Software or the Solution.

(l) No Competing. Licensee shall not develop competing or compatible Software or Solution during the Term of this Agreement. Licensee shall not use the Software or the Solution to develop or create any software application or service to replace or to be used in connection with the Software or Solution or any other product or service offered by DCCI or its suppliers or licensors.

(m) Not for High Risk. The Software and the Solution are not intended for use in connection with any high-risk activity, including, without limitation, situations where malfunctions could result in personal injury (including death) or significant damage to or loss of property, whether in the fields of space travel, firefighting, police operations, military operations, rescue operations, hospital or medical operations, or otherwise. Licensee shall not use or allow the use of the Software or the Solution in connection with such high-risk activities.

(n) Technology Protection. Licensee shall not attempt to avoid, overcome, tamper with, disable, circumvent, remove, disable, or work around any security features or technological measures used to protect the Intellectual Property or other rights of DCCI or its licensors or those of any third party. Licensee shall not attempt to gain unauthorized access to parts of the Software or Solution to which Licensee has not been granted access. Without limiting the foregoing, Licensee acknowledges and agrees that the Software may automatically cease working upon expiration or termination of the Term, will not work with more than the authorized number of concurrent Authorized Users set forth in the Registration, and that DCCI has the right to prevent the Solution from working if this Agreement is breached or if DCCI’s rights are violated. Licensee acknowledges and agrees that it must have and is solely responsible for having alternative solutions available in the event the Software or Solution ceases working.

(o) Third Party Agreements. Licensee must comply with applicable third-party terms of agreement when using the Software.

4. Changes. DCCI may modify the Software at any time for any reason in its sole discretion. DCCI may offer Licensee updated, upgraded, or otherwise modified versions of the Software in DCCI’s sole discretion. Unless such updated, upgraded, or otherwise modified versions of the Software are delivered with different terms and conditions, such updates, upgrades, and otherwise modified versions of the Software shall be considered the Software and shall be subject to the terms and conditions of this Agreement. Licensee acknowledges and agrees that it must connect the audio gateway hardware to the Internet to receive such updates and that DCCI may automatically push required updates to the audio gateway upon connection and may otherwise send notice of voluntary updates to the designated administrator for Licensee identified during the Registration process. DCCI and/or its licensors or suppliers may change, suspend, terminate, remove, restrict, disable, or otherwise modify access to or use of the Software or the Solution or require return of the Software at any time without notice and shall have no liability to Licensee for the foregoing. Without limiting the foregoing, DCCI may suspend or terminate Licensee’s permission to access and use the Software if a newer version is available, to discontinue unauthorized use of the Software or the Solution, to comply with a third-party request, or to comply with a court order.
5. Intellectual Property.

(a) DCCI’s Intellectual Property. The Software (including without limitation its source code and object code and any documentation provided by DCCI) and the Solution, including without limitation all copyrights, patents, trade secrets, trademarks, and other intellectual property rights (collectively, “Intellectual Property”) arising out of or embodied by the Software and the Solution belong exclusively to DCCI and/or its licensors or suppliers. Title to the Software, the Solution, and the Intellectual Property rights arising out of the foregoing shall remain at all times exclusively with DCCI and/or its licensors or suppliers.

(b) Open-Source. Licensee acknowledges and agrees that portions of the Software may contain or be derived from software made available pursuant to a third-party software license and/or Open-Source Components and Licensee’s use of such portions are subject to and governed by the terms and conditions of such licenses. For purposes of this Section 5, “Open-Source Components” shall mean any software component that is subject to any Open-Source license agreement, including any software available under a license approved by the Open-Source Initiative. The Software includes Open-Source Components licensed under various Open-Source license agreements (each, an “Open-Source License”). Identification of the Open-Source Components and links to copies of the Open-Source Licenses that govern them can be found at https://connex.davidclark.com/open-source-license. Any use of the Open-Source Components by Licensee is governed by and subject to the terms and conditions of the applicable Open-Source License. Licensee shall not use the Open-Source Components in any manner or for any purpose or application not expressly permitted by the controlling Open-Source License.

6. Confidentiality.

(a) Confidential Information. Licensee acknowledges and agrees that DCCI desires to protect certain commercially sensitive information from unauthorized access, disclosure, or use. “Confidential Information” includes, without limitation the source code, object code, and documentation of the Software and the Solution, personal information, ideas, concepts, plans, business methods or processes, systems, criteria, standards, pricing, trade secrets, know-how, inventions, data, information entrusted to DCCI by third parties, customer or supplier information, information that by its nature would reasonably be considered confidential, and information marked confidential.

(b) Exclusions and Exemptions. Confidential Information shall not include information Licensee can prove through written records that existed at the time of disclosure is: (a) information that is or becomes generally known to the public other than through breach of a duty of confidentiality to DCCI; or (b) information Licensee had in its possession at the time of disclosure that was not acquired from DCCI or a third party that owed a duty of confidentiality to DCCI. If a court order or similar legal obligation requires Licensee to disclose Confidential Information, Licensee must first give DCCI prompt written notice and the opportunity to seek a protective order or obtain other relief to preserve the confidentiality of the Confidential Information. If Licensee are still obligated to disclose any Confidential Information, Licensee shall limit disclosure to only that Confidential Information which Licensee is legally obligated to disclose and shall use commercially reasonable efforts to impose obligations of confidentiality on the recipients.

(c) Obligations. Licensee shall not disclose the Confidential Information to any third party or allow any third party to access or use it. Licensee shall protect DCCI’s Confidential Information from unauthorized access, disclosure, loss, or use at least to the same extent and in the same manner Licensee protects its own similar information, but in no event using less than commercially reasonable methods. If Licensee becomes aware of any unauthorized access to, or disclosure of, loss of, or use of any Confidential Information in its possession or control, Licensee shall promptly take all appropriate actions to protect against the further dissemination and use of such Confidential Information and notify DCCI immediately. Licensee’s obligations to protect the Confidential Information received or accessed during the term of this Agreement from unauthorized access, disclosure, or use shall survive expiration or termination of this Agreement for any reason.

(d) No Use. Licensee acknowledges that Licensee has no right to use the Confidential Information in any way. Without limiting the foregoing, Licensee shall not use the Confidential Information to compete with DCCI or in any way potentially detrimental to DCCI. Licensee acknowledges that title to the Confidential Information and any derivative works, improvements upon or modifications to the Confidential Information shall remain at all times with DCCI and that the Confidential Information has value. Upon DCCI’s request at any time, and upon the expiration or termination of this Agreement for any reason, Licensee shall return to DCCI all Confidential Information or, at DCCI’s option, destroy any materials containing, regarding or derived from the Confidential Information.

7. Use of Technology; Data. Licensee acknowledges and agrees that DCCI may use technology to verify Licensee’s geographic location and Licensee’s Internet protocol address to ensure compliance with the terms and conditions of this Agreement, including the restrictions on use. In addition, DCCI and its licensors, suppliers, and/or service providers may gather data about Licensee and Licensee’s use of the Software and the Solution and use such data in accordance with DCCI’s Privacy Policy (which may be accessed here: https://connex.davidclark.com/app-privacy-policy/) during and after the term of this Agreement. In addition to its other rights and remedies and in addition to the right to terminate as set forth in Section 10 of this Agreement, DCCI may, without notice, use technology to suspend or terminate access to or use of the Software and the Solution to enforce the terms and conditions of this Agreement, including without limitation the duration of the Term, the number of concurrent Authorized Users, and use of a license key only in connection with the audio gateway hardware associated with it in the Registration process. Without limiting the foregoing, Licensee acknowledges that Licensee may no longer be able to access or use the Software or the Solution upon expiration or termination of this Agreement.
8. Support. DCCI has no obligation to provide any support or maintenance for the Software or the Solution.
9. Payment. Licensee shall pay DCCI the fees for use of the Software in the manner and amount identified for Licensee during Registration. Such fees shall be non-refundable and shall be paid in advance for the duration of the Term.
10. Term and Termination.

(a) Term. For an included license described in Section 2(a)(i), the “Term” of this Agreement shall begin on the earlier of (i) the date Licensee agrees to be bound by the terms and conditions of this Agreement; (ii) the date Licensee connects the audio gateway to the Internet for the first time; or (iii) the date Licensee enters the license key to connect with the audio gateway in the absence of an Internet connection and shall end twelve months later unless sooner terminated in accordance with this Agreement. For a standard license described in Section 2(a)(ii), the “Term” of this Agreement shall begin on the date Licensee agrees to be bound by the terms and conditions of this Agreement and shall end upon conclusion of the length of time designated in the Registration unless sooner terminated in accordance with this Agreement. For a renewed or extended license described in Section 2(a)(iii), the “Term” of this Agreement shall refer to the length of time designated in the original Registration plus each subsequent renewal period unless sooner terminated in accordance with this Agreement. Licensee acknowledges and agrees that the Software and Solution may automatically stop working upon expiration of the Term unless Licensee has paid for a renewal period.

(b) Termination.

(i) Hardware. If Licensee ceases to own the audio gateway hardware on which the Software was pre-loaded, Licensee’s right to access and use the Software shall automatically terminate.

(ii) Termination of Software or the Solution. This Agreement shall terminate immediately if and when DCCI chooses to discontinue the Software or the Solution and/or ceases to make it available.

(iii) Licensor. DCCI may terminate this Agreement immediately without notice to Licensee if DCCI loses any right or licenses that impedes its ability to provide the Software or deliver the Solution. (iv)           Breach. Either party may terminate this Agreement upon written notice to the other if such other party has not cured a curable breach of this Agreement within thirty (30) days of receiving written notice of the breach or if such other party has committed an incurable breach.

(v) Cause. DCCI shall have the right to terminate this Agreement immediately on written notice to Licensee if (A) a receiver is appointed for Licensee, or Licensee’s property, (B) Licensee makes an assignment for benefit of creditors, (C) proceedings are commenced by or for Licensee for relief under bankruptcy, insolvency, or debtor’s relief law, (D) Licensee liquidates or dissolves Licensee’s business or attempt to do so. This Agreement shall terminate automatically without notice upon Licensee’s breach of any provisions of this Agreement pertaining to DCCI’s Intellectual Property rights or Confidential Information or Licensee’s violation of DCCI’s or any third party’s Intellectual Property or Confidential Information.

(c) Effect of Termination. The expiration or termination of this Agreement shall not affect the respective rights and obligations of the parties arising under it before the effective date of termination, and shall not limit the parties’ rights and remedies under applicable law or in equity. Termination in accordance with the provisions of this Section 10 shall not constitute breach of this Agreement.

(d) Post-Termination. Upon termination or expiration of this Agreement for any reason, the permissions granted to Licensee shall immediately terminate and revert to DCCI and Licensee shall immediately cease and discontinue all use of the Software and return all DCCI’s Confidential Information to DCCI, or, at DCCI’s option, destroy such Confidential Information in Licensee’s possession or control and certify its destruction to DCCI.

11. Representations and Warranties.

(a) Licensee’s Representations and Warranties. In addition to the representations and warranties Licensee makes elsewhere in this Agreement, Licensee represents and warrants to DCCI that: (i) Licensee has the legal power and authority to enter into this Agreement without consent from any third party; (ii) Licensee has not falsely identified itself nor provided any false information to gain access to the Software or the Solution and that Licensee’s information provided to DCCI (in the Registration and otherwise) is true, accurate, unaltered, and complete and will contain no untrue statement or omission of material fact or data; (iii) none of entering into, delivering, or performing Licensee’s obligations under this Agreement will violate any provision of law or any order of any court or any governmental authority to which Licensee is subject, or conflict with, result in a breach of, or constitute a default under any contract or agreement by which Licensee is bound; (iv) Licensee’s use of the Software and the Solution shall comply with all applicable laws, regulations rules, ordinances, and court orders; (v) Licensee shall not enter into any agreement with a third party that is inconsistent with any provision of this Agreement; (vi) Licensee has the right to receive notices of termination or amendment to end user license agreements binding Licensee’s Authorized Users; (vii) Licensee has purchased the audio gateway on which the Software is pre-loaded from DCCI or an authorized distributor; (viii) if Licensee is seeking a standard license as described in Section 2(a)(ii) rather than a trial license described in Section 2(a)(i), Licensee has purchased the requisite number of Software keys to match the number of concurrent Authorized Users set forth in Licensee’s Registration from DCCI through DCCI’s Shopify page; (ix) through the Registration process, Licensee has provided DCCI with true, accurate, and complete information about Licensee’s identity, including without limitation its name, street address, and email address; (x) Licensee will not upload or transmit any Malicious Code, any obscene, pornographic, defamatory, or illegal content or any other content that DCCI determines, in its sole discretion is inappropriate.

(b) Disclaimer. DCCI MAY DISABLE, SUSPEND, OR REMOVE ANY PART OF SOFTWARE OR THE SOLUTION AT ANY TIME IF DCCI IS REQUIRED TO DO SO BY ONE OF ITS LICENSORS OR SUPPLIERS, IF DCCI DETERMINES THAT SUCH PORTION OF THE SOFTWARE OR THE SOLUTION VIOLATES APPLICABLE LAW OR THIRD-PARTY RIGHTS, OR FOR OTHER REASONS. DCCI MAKES NO REPRESENTATION OR WARRANTY REGARDING THE SOFTWARE OR THE SOLUTION AND, TO THE MAXIMUM EXTENT PERMITTED BY LAW, DCCI EXPRESSLY DISCLAIMS ALL WARRANTIES, WHETHER WRITTEN OR ORAL, EXPRESS, IMPLIED, OR STATUTORY, INCLUDING ANY IMPLIED WARRANTY OF MERCHANTABILITY, NON-INFRINGEMENT, OR FITNESS FOR A PARTICULAR PURPOSE, ANY WARRANTY REGARDING INFORMATION ACCURACY, ANY WARRANTY THAT THE SOFTWARE OR THE SOLUTION WILL BE UNINTERRUPTED OR ERROR-FREE, ANY WARRANTY REGARDING QUALITY (INCLUDING WHETHER THE SOFTWARE OR THE SOLUTION WILL MEET LICENSEE’S REQUIREMENTS OR EXPECTATIONS), ACCURACY, TIMELINESS, SUITABILITY, USABILITY COMPLETENESS, SECURITY, AVAILABILITY, OR CONDITION OF THE SOFTWARE OR THE SOLUTION AND ANY WARRANTY THAT THE SOFTWARE OR THE SOLUTION WILL OPERATE WITH ANY PARTICULAR HARDWARE (OTHER THAN THE AUDIO GATEWAY ON WHICH THE SOFTWARE CAME PRE-LOADED), SOFTWARE, SYSTEM, OR DATA. THE SOFTWARE AND THE SOLUTION ARE PROVIDED ON AN “AS-IS” AND “AS AVAILABLE” BASIS WITH ALL FAULTS. LICENSEE ACKNOWLEDGES THAT COMPATIBILITY AND INTEROPERABILITY PROBLEMS COULD NEGATIVELY AFFECT THE PERFORMANCE OF LICENSEE’S DEVICES, LOSS OF DATA FROM LICENSEE’S SOFTWARE AND DEVICES, AND CORRUPTION OF THE SOFTWARE AND FILES ON LICENSEE’S DEVICES. LICENSEE ACKNOWLEDGES AND AGREES THAT LICENSEE IS SOLELY RESPONSIBLE FOR ALL EXPENSES ASSOCIATED WITH SERVICE AND REPAIR TO LICENSEE’S DEVICE AND HARDWARE AND THAT NEITHER DCCI NOR ANY OF ITS LICENSORS OR SUPPLIERS OR ANY OF THE OFFICERS, DIRECTORS, EMPLOYEES, REPRESENTATIVES OR AGENTS OF THE FOREGOING SHALL HAVE ANY LIABILITY TO LICENSEE FOR ANY LOSSES SUFFERED, RESULTING FROM, OR ARISING IN CONNECTION WITH COMPATIBILITY OR INTEROPERABILITY PROBLEMS. DCCI SHALL NOT BE LIABLE FOR ANY DAMAGES CAUSED BY MALICIOUS CODE OR OTHER FORMS OF CONTAMINATION OR DESTRUCTIVE FEATURES THAT AFFECT LICENSEE’S HARDWARE, SOFTWARE, DATA, OR OTHER PROPERTY ON ACCOUNT OF LICENSEE’S ACCESS TO OR USE OF THE SOFTWARE OR THE SOLUTION. LICENSEE SHALL IMPLEMENT BACK UP PLANS AND SYSTEMS FOR USE ON OCCASIONS WHERE THE SOFTWARE OR SOLUTION FAIL, WHERE LICENSEE’S LICENSE EXPIRES OR TERMINATES, OR WHERE LICENSEE’S AUTHORIZED USERS STEP OUT OF RANGE. LICENSEE SHALL NOT USE THE SOFTWARE OR THE SOLUTION IN A LIFE-THREATENING SITUATION. WITHOUT LIMITING THE FOREGOING, DCCI MAKES NO REPRESENTATION OR WARRANTY WITH RESPECT TO ANY OF THE OPEN-SOURCE COMPONENTS. ALL OPEN-SOURCE COMPONENTS AND OTHER THIRD-PARTY MATERIALS ARE PROVIDED “AS-IS” AND ANY REPRESENTATION OR WARRANTY OF OR CONCERNING THEM IS STRICTLY BETWEEN LICENSEE AND THE THIRD PARTY OWNER OR DISTRIBUTOR OF SUCH OPEN-SOURCE COMPONENTS AND THIRD PARTY MATERIALS.

12. Indemnification. Licensee shall indemnify, defend, hold harmless, and reimburse DCCI and its affiliates, suppliers and licensors, and all of their officers, directors, owners, employees, representatives, affiliates, and agents, and any other entity that provides services to Licensee under this Agreement from and against all claims, judgments, settlements, causes of action, damages, deficiencies, fines, penalties, losses, costs, and expenses (including reasonable attorneys’ fees and disbursements of counsel) arising out of or related to (a) any claim that, if true, would indicate that Licensee breached the terms and conditions of this Agreement, (b) Licensee’s access to or use of the Software or the Solution, (c) Licensee’s violation of law, (d) Licensee’s violation of a third party’s rights, (e) Licensee’s negligence or willful misconduct.
13. Limitation of Liability. TO THE MAXIMUM EXTENT PERMITTED BY LAW, UNDER NO CIRCUMSTANCES WILL DCCI OR ITS LICENSORS OR SUPPLIERS BE LIABLE TO LICENSEE FOR ANY INCIDENTAL, SPECIAL, INDIRECT, PUNITIVE, EXEMPLARY, OR CONSEQUENTIAL DAMAGES OF ANY KIND OR NATURE, INCLUDING WITHOUT LIMITATION, LOSS OF REVENUES, BUSINESS, OR PROFITS, LOSS OF DATA, BUSINESS INTERRUPTION, REGARDLESS OF THE FORM OF ACTION, WHETHER IN CONTRACT, TORT, STRICT PRODUCT LIABILITY, OR OTHERWISE, EVEN IF DCCI HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, WHETHER OR NOT CAUSED BY DCCI’S NEGLIGENCE OR ON ACCOUNT OF ANY ACT OR OMISSION OF DCCI. DCCI ASSUMES NO RESPONSIBILITY, AND SHALL NOT BE LIABLE FOR ANY DAMAGES CAUSED BY MALICIOUS CODE OR OTHER FORMS OF CONTAMINATION OR DESTRUCTIVE FEATURES THAT MAY AFFECT LICENSEE’S HARDWARE, SOFTWARE, DATA, FILES, OR OTHER PROPERTY AS A CONSEQUENCE OF LICENSEE’S ACCESS OR USE OF THE SOFTWARE OR THE SOLUTION. DCCI SHALL HAVE NO LIABILITY FOR ANY UNAUTHORIZED ACCESS, DESTRUCTION, LOSS, MODIFICATION, OR DAMAGE TO LICENSEE’S SOFTWARE, DATA, FILES, OR FOR ANY INTELLECTUAL PROPERTY INFRINGEMENT. DCCI SHALL HAVE NO LIABILITY TO LICENSEE FOR ANY OPEN-SOURCE COMPONENTS OR OTHER THIRD-PARTY MATERIALS OR LICENSEE’S USE OF THE FOREGOING. TO THE MAXIMUM EXTENT PERMITTED BY LAW, UNDER NO CIRCUMSTANCES WILL DCCI BE LIABLE TO LICENSEE FOR ANY DAMAGES IN EXCESS OF THE GREATER OF (A) ONE HUNDRED U.S. DOLLARS ($100.00) OR (B) THE AMOUNT LICENSEE PAID TO DCCI UNDER THIS AGREEMENT FOR THE LICENSE TO USE THE SOFTWARE DURING THE TWELVE MONTH PERIOD IMMEDIATELY PRECEDING THE CAUSE OF ACTION.
14. Government End Users. The Software is a Commercial Item within the meaning of 48 C.F.R. § 2.101 comprised of Commercial Computer Software and Commercial Computer Software Documentation as set forth in 48 C.F.R. § 12.212 or 48 C.F.R. § 227.7202 as applicable. Subject to 48 C.F.R. § 12.212 and 48 C.F.R. § 227.7202-1 through § 227.7202-4, the U.S. Government receives only with those rights granted to other licensees pursuant to the terms and conditions of this Agreement.
15. Export. Licensee shall comply with all US and other applicable laws related to the export or re-export of the Software and the Solution.
16. General.

(a) Notices. Except as otherwise expressly permitted in this Agreement, all notices required under this Agreement shall be in writing sent by hand, certified mail return receipt requested, or reputable overnight courier service addressed to general counsel for DCCI at the contact information set forth above or if transmitted to Licensee at the street address provided by Licensee during registration, unless changed by notice pursuant to this section.

(b) No Assignment. This Agreement is binding on and benefits the parties and their permitted successors and assigns. This Agreement is personal to Licensee. Licensee shall not assign or delegate any of its rights or obligations under this Agreement. If Licensee undergoes a change in control, that shall be deemed an assignment for purposes of this Agreement. DCCI may assign or delegate this Agreement or any rights or obligations under it without restriction.

(c) Severability. To the extent any provision of this Agreement is deemed unenforceable by a court of competent jurisdiction, the provision shall be ineffective in that jurisdiction to the extent such prohibition does not invalidate the remaining provisions and such unenforceability shall not invalidate such provision in other jurisdictions.

(d) Amendments. Except as otherwise set forth in this Agreement, this Agreement may not be modified or amended except in writing signed by the parties, and none of its provisions may be waived except in writing signed by the party charged with waiving its rights. DCCI may amend this Agreement from time to time by providing Licensee with advance written notice of the amended version of the Agreement. The modified version of the Agreement will become effective within the earlier of thirty (30) days of posting or notice and will apply to Licensee’s use of the Software and the Solution thereafter. By using the Software or accessing and using the Solution on or after the thirtieth (30th) day following the day the modified version of the Agreement is posted or sent to Licensee, Licensee will be deemed to have agreed to any such modification or amendment.

(e) Waivers. None of the provisions in this Agreement may be waived except in writing signed by the party charged with waiving its rights. No waivers shall be implied, whether from any custom or course of dealing or any delay or failure in a party’s exercise of its rights and remedies hereunder or otherwise. Any waiver granted by a party shall not obligate such party to grant any further, similar, or other waivers.

(f) Remedies. Except as otherwise expressly stated in this Agreement, all remedies are cumulative, and the exercise or partial exercise of any such right or remedy shall not preclude the exercise of any other. Licensee acknowledges that the covenants contained in this Agreement are reasonable and necessary to protect DCCI’s legitimate business interests. A breach or threatened breach of the confidentiality or Intellectual Property provisions of this Agreement may irreparably harm DCCI for which DCCI would have no adequate remedy at law. Accordingly, in the event of an actual or threatened breach of this Agreement, DCCI shall be entitled to seek injunctive relief, specific performance, or both in addition to all other remedies available to it at law or in equity in such circumstances. Further, notwithstanding the parties’ agreement to arbitrate controversies or claims set forth elsewhere in this Agreement, DCCI may apply to a court of competent jurisdiction to seek to enjoin, preliminarily or permanently, any breach or threatened breach of Licensee’s obligations under this Agreement that affect DCCI’s or its licensors’ Intellectual Property rights or Confidential Information or any other violation of DCCI’s Intellectual Property rights or violation of its Confidential Information.

(g) Force Majeure. DCCI shall be excused for failure or delay in performance when and to the extent that performance is prevented or delayed by any act of any government authority (whether valid or invalid), act of God, disaster, pandemic, epidemic, terrorism, hurricane, tornado, flood, fire, or other similar event beyond DCCI’s reasonable control.

(h) Relationship. The parties are independent contractors. Nothing in this Agreement shall create any partnership, agency, or other fiduciary relationship between them (i) Governing Law. This Agreement is governed by the laws of the State of Delaware (without regard to its conflicts of laws principles).

(j) Arbitration. Except as set forth expressly elsewhere in this Agreement, each party agrees to submit any disputes, claims, or controversies arising out of or relating to this Agreement or use of the Software or the Solution, including disputes arising from or concerning interpretation, violation, invalidity, non-performance, or termination to final and binding arbitration administered by the American Arbitration Association applying Delaware law in Worcester County, Massachusetts or via remote communication using a single arbitrator chosen by mutual agreement of the parties within twenty (20) days of the request for arbitration using the American Arbitration Association’s Commercial Arbitration Rules. The arbitration shall be conducted and the award rendered in English. The award entered by the arbitrator shall be final and binding on the parties and may be entered and enforced in any court having jurisdiction except to the extent the decision is subject to judicial review as permitted by law and except to the extent the arbitration award is one for injunctive relief, in which case the enjoined party may seek judicial review of such relief in a court of competent jurisdiction that is not bound by the arbitrator’s application or conclusions of law. Each party shall bear its own expenses in connection with any arbitration or proceeding arising out of or relating to this Agreement, directly or indirectly, or the performance or breach of this Agreement. Except as required by law, neither party nor the arbitrator may disclose the existence, content, or results of any arbitration without prior written consent of both parties, unless to protect or pursue a legal right. By agreeing to this Agreement, each party agrees that the United States Federal Arbitration Act governs the interpretation and enforcement of this clause. Arbitration is a form of dispute resolution that serves as an alternative to litigation in court. In arbitration, a neutral arbitrator decides the case instead of a judge or jury. There may also be more limited discovery and less review of the decision by courts. By entering into this Agreement, each party to arbitrate disputes between them.

(k) Limitations on Actions; Jury Waiver. LICENSEE AGREES THAT ANY ACTION, SUIT, PROCEEDING, OR OTHER CLAIM LICENSEE MAY HAVE AGAINST DCCI SHALL BE BROUGHT INDIVIDUALLY ON LICENSEE’S OWN BEHALF AND LICENSEE SHALL NOT JOIN SUCH CLAIM WITH CLAIMS OF ANY OTHER PERSON OR ENTITY OR BRING, JOIN, OR PARTICIPATE IN A CLASS ACTION AGAINST DCCI. TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, LICENSEE AGREES TO WAIVE ANY AND ALL RIGHT TO TRIAL BY JURY IN ANY LEGAL PROCEEDING ARISING OUT OF OR RELATING TO THIS AGREEMENT. LICENSEE MUST COMMENCE ANY CAUSE OF ACTION OR CLAIM AGAINST DCCI WITHIN ONE (1) YEAR AFTER THE CAUSE OF ACTION OR CLAIM ARISES, OTHERWISE LICENSEE AGREES THAT LICENSEE’S CAUSE OF ACTION OR CLAIM SHALL BE BARRED.

(l) Survival. Sections 5(a), 9, 10, 11(b), 12, 13, and 16, the obligation to protect Confidential Information received during the term of this Agreement in accordance with Section 6, as well as all terms and conditions of this Agreement that by their nature are intended to survive termination of this Agreement shall so survive.

(m) Third-Party Beneficiaries. Except as otherwise expressly set forth in this Agreement, this Agreement may be enforced only by the parties and their permitted successors and assigns.

(n) Entire Agreement. This Agreement is the entire agreement between the parties, superseding any and all other prior or contemporaneous agreements, promises or representations between them regarding the subject matter of this Agreement. No modification shall be made to this Agreement except in the manner expressly permitted by this Agreement.