IPitomy Communications, LLC - End User License Agreement & Warranty Information

IPITOMY IP PBX SOFTWARE END USER LICENSE AGREEMENT

BY PRESSING THE “I ACCEPT” BUTTON AND/OR DOWNLOADING, COPYING OR USING THE SOFTWARE, YOU ACCEPT, WITHOUT LIMITATION OR QUALIFICATION, ALL OF THE TERMS AND CONDITIONS IN THIS AGREEMENT WITH IPITOMY COMMUNICATION, LLC (“IPITOMY”). IF YOU DO NOT AGREE TO ALL OF THE TERMS OF THIS AGREEMENT, CLICK THE “DO NOT ACCEPT” BUTTON.

YOU AGREE TO BE BOUND BY THE TERMS OF THIS AGREEMENT BY INSTALLING, COPYING, OR USING THE SOFTWARE. IF YOU DO NOT AGREE, DO NOT INSTALL, COPY, OR USE THE SOFTWARE; YOU MAY RETURN IT TO YOUR PLACE OF PURCHASE FOR A FULL REFUND, IF APPLICABLE.

INTRODUCTION - IMPORTANT—READ CAREFULLY:

This End User License Agreement (“Agreement”) is a legal agreement between you, your principals, officers, directors, employees, assignees, agents and/or successors (“You”) and IPitomy Communications, LLC, a Florida Limited Liability Company, whose headquarters are located at 1940 Northgate Blvd. Suite B-1, Sarasota, FL 34234, hereinafter referred to as “IPitomy”, for the IPitomy IP PBX Software that accompanies this Agreement. The “Software” is hereby defined as all software included in the medium that has been given to You, irrespective of the original origin or ownership of the Software or any rights associated with it, along with all documentation and associated future updates as may be provided in the future. An amendment or addendum to this Agreement may accompany the Software.

As a convenience to the End User, IPitomy makes available within the Software distribution certain third-party software products as listed below (“Third Party Software”). Your use of each included Third Party Software is subject to separate licensing agreements that are either included with such Third Party Software or the Software documentation, or otherwise made available by IPitomy or its appointed Reseller. The Third Party Software that may be included is listed below with hyperlinks to assist you.

Third Party Software may include open source packages (“Open Source Software”) that are subject to the terms of the GNU General Public License and are more specifically identified in the documentation for the Software. For more on the GNU General Public License see http://www.gnu.org/copyleft/gpl.txt. By acknowledging your acceptance of the terms of this Agreement, you agree that you have had the opportunity to review these third party licenses and agree to comply with them. ONLY where applicable within the terms of such a GNU license, IPitomy will provide a copy of the source code to You for the following fees: $25 for all customers. Please make your request to GNU@IPitomy.com.

In the event of a conflict between a term of this Agreement and a term of a third party license, the terms of the third party license controls with respect to the applicable Third Party Software only.

“Assembly Process” of the Software and the manner by which different Third Party Software interacts successfully is not distributed as Open Source Software. The copyright and all related intellectual property rights in the “Assembly Process” remain with IPitomy, and You may only use within the term of and in accordance with this Agreement.

“IPitomy IP PBX Daemon” is not distributed as Open Source Software. The copyright and all related intellectual property rights in the “IPitomy IP PBX Daemon” remain with IPitomy, and You may only use within the term of and in accordance with this Agreement.

Third Party Software:
“Apache” http:/httpd.apache.org/. It is distributed as Open Source Software. License: http://www.apache.org/licenses/LICENSE-2.0
“Asterisk” www.asterisk.org. It is distributed as Open Source Software.
“Centos” www.centos.org, It is distributed as Open Source Software.
SQLite: http://www.sqlite.org/. It is distributed as Open Source Software although with Commercial exceptions. License:
PHP: This product includes PHP, freely available from http://www.php.net/ with license at http://www.php.net/license/3_0.txt
Rsync: http://samba.anu.edu.au/rsync/ License: http://samba.anu.edu.au/rsync/GPL.html
ION Cube Optimizer: http://www.ioncube.com

NOTE: If you have reason to believe that Your Software was acquired from an illegal source or has been illegally modified, product updates likely will not work as designed and may cause unexpected failures to your applications. For more information on software piracy please email piracy@IPitomy.com Subject: PIRACY.

GRANT OF LICENSE. IPitomy grants you the following rights provided that you comply with all terms and conditions of this Agreement:

Installation and use.

You may use a copy of the Software on one server or appliance provided by IPitomy. The license will be associated with a MAC address of that device and other license identifiers. The “MAC address” being defined as the unique 12 digit hexadecimal number that identifies the physical LAN address of the hardware device uniquely.
You may not change or transfer a license from one MAC address to another. In exceptional circumstances IPitomy may grant a written waiver to this clause. You must understand that any request for such a waiver will be subject to the IPitomy “MAC Address Licensing Policy” and that at all times it remains in the ultimate discretion of IPitomy to grant such a waiver and facilitate the transfer of a license from one MAC address to another.
You may install an additional copy of the executable files of the Software on a second, portable device for Your exclusive use as to be able to execute those files in the event that the primary device fails and needs to be restored. In no other circumstance should this second copy be executed such that it could be used or enjoyed by You or any other party.

License Grant for Remote Access. You may use remote access technologies, such as a browser connected through an intranet or over the Internet, to access and use your licensed copy of the Software.
License Grant for Remote Assistance. You may permit any device to access and use your licensed copy of the Software. In no manner does this permit you the right to install the Software onto such a device.
License Grant for Media Elements. The Software may include certain photographs, clip art, shapes, animations, sounds, music and video clips that are identified in the Software for your use (together “Media Elements”). You may copy and modify the Media Elements, and license, display and distribute them, along with your modifications as part of your software products and services, including your web sites, but you are not licensed to do any of the following:

You may not sell, license or distribute copies of the Media Elements by themselves or as part of any collection, product or service if the primary value of the product or service is in the Media Elements.
You may not grant customers of your product or service any rights to license or distribute the Media Elements.
You may not license or distribute any of the Media Elements that include representations of identifiable individuals, governments, logos, initials, emblems, trademarks, or entities for any commercial purposes or to express or imply any endorsement or association with any product, service, entity, or activity.
You may not create obscene or scandalous works, as defined by local, state, federal or national law at the time the work is created, using the Media Elements. In addition, you must (a) indemnify and defend IPitomy from and against any claims or lawsuits, including attorneys' fees that arise from or result from the licensing, use or distribution of Media Elements as modified by you, and (b) include a valid copyright notice on your products and services that include the Media Elements.

License Grant for Documentation. The documentation that accompanies the Software is licensed for internal, non-commercial reference purposes only.
License Grant for Templates. The Software may include templates. You may copy and modify the templates available as part of the IPitomy software that accompanies this Agreement for your own purpose. Such templates may not be distributed or your modifications used by other licensees of the Software. You also may copy, modify and distribute the templates available through related Internet-based services along with your modifications for use by other licensees of the Software, but only for personal or commercial correspondence involving person-to-person communication. You are not licensed to do any of the following:

You may not sell, resell, license, rent, lease, lend, or otherwise transfer for value, the templates.
You may not distribute the templates available via Internet-based services as part of any product or service.
You may not copy or post any templates available through Internet-based services on any network computer or broadcast it in any media. You must indemnify and defend IPitomy against any claims or lawsuits, including attorneys' fees that arise from or result from the licensing or distribution of the templates as modified by you.

Transferee’s Bound. You agree that if applicable Your resellers, Customers and Users will be bound by agreements containing terms no less restrictive or protective of IPitomy's and its licensors' rights than those set forth in this Agreement.

DESCRIPTION OF OTHER RIGHTS AND LIMITATIONS
1. Mandatory Activation. THERE ARE TECHNOLOGICAL MEASURES IN THIS SOFTWARE THAT ARE DESIGNED TO PREVENT UNLICENSED USE OF THE SOFTWARE. IPitomy has already activated and licensed the product prior to shipment. You may also have to reactivate the Software if you change the hardware device that it is loaded on or alter the Software. IPitomy will use its licensing methodologies to confirm you have a legally licensed copy of the Software.
2. Uploads. IPitomy expressly reserves the right to monitor your usage of the Software for compliance with the terms and conditions of this Agreement. You agree to provide IPitomy or its representative with access reasonably necessary to monitor Your compliance with this Agreement. In addition, You acknowledge and agree that IPitomy will be entitled to receive reports, data and any other information related to the Software used by you pursuant to this Agreement, through uploads to IPitomy by means of the Software. The parties agree to work together to facilitate such uploads. If such uploads are not available for any reason, then You agree to use commercially reasonable efforts to provide the data and information included in such uploads to IPitomy, in the form, format and frequency as mutually agreed. If you are not using a licensed copy of the Software, you are forbidden to install the Software request Software updates.
3. Internet-Based Services. You may not use any IPitomy Internet-based services associated with the Software in any manner that could damage, disable, overburden, or impair such services or interfere with any other party's use and enjoyment of them. You may not attempt to gain unauthorized access to any service, account, computer systems or networks associated with the Internet-based services.
4. Speech Recognition. If the Software includes speech and/or handwriting recognition component(s), You understand that speech recognition are inherently statistical processes; that recognition errors are inherent in the processes; that it is your responsibility to provide for the handling of such errors and to monitor the recognition processes and correct any errors. Neither IPitomy nor its suppliers shall be liable for any damages arising out of errors in the speech processes.
5. Malicious use. You agree not to use the Software for any malicious purpose that could cause harm or discomfort to any person or organization. Specifically but not exclusively this includes voice broadcast, fax broadcasts and any activity deemed to be illegal in Your jurisdiction or any jurisdiction in which your actions may have an effect.
RESERVATION OF RIGHTS AND OWNERSHIP.

IPitomy reserves all rights not expressly granted to You in this Agreement. The Software is protected by copyright and other intellectual property laws and treaties. IPitomy or its suppliers own the title, copyright, and other intellectual property rights in the Software and Hardware except where stated above. IPitomy or its suppliers may transfer any and all such rights and privileges associated with either the Software or the License to third parties either temporarily or permanently as they see fit without notice to you. Particularly but not exclusively in the event of bankruptcy or insolvency proceedings or any other impeachment of the ability of IPitomy to further support the Software being supplied to You understand that Third Party Suppliers of the Software may invoke articles of existing agreements with IPitomy as to assume all rights concerning this Agreement so as to best guarantee continuing support of the Software. This will not affect the validity of this Agreement. The Software is licensed, not sold. This Agreement does not grant you any rights to patents, trademarks or service marks or other intellectual property or proprietary rights of IPitomy.

LIMITATIONS ON REVERSE ENGINEERING, DECOMPILATION, AND DISASSEMBLY. You may not reverse engineer, decompile, or disassemble the Software, except and only to the extent that such activity is expressly permitted by applicable law notwithstanding this limitation.
CONFIDENTIALITY. You acknowledge that, in the course of using the Software, you may obtain or develop information relating to the Software and/or to IPitomy ("Proprietary Information"), including, but not limited to, technology, software code, know-how, ideas, testing procedures, structure, interfaces, documentation, problem reports, analysis and performance information, and other technical, business, product, marketing and financial information, plans and data. During and after the term of this Agreement, you shall hold in confidence and protect, and shall not use (except as expressly authorized by this Agreement) or disclose, Proprietary Information, unless such Proprietary Information becomes part of the public domain without breach of this Agreement by You. You acknowledge and agree that due to the unique nature of IPitomy’s Proprietary Information, there can be no adequate remedy at law for any breach of Your obligations hereunder, that any such breach may allow You or third parties to unfairly compete with IPitomy resulting in irreparable harm to IPitomy, and therefore, that upon any such breach or threat thereof, IPitomy shall be entitled to injunctions and other appropriate equitable relief in addition to whatever remedies it may have at law.
LINKS TO THIRD PARTY SITES. IPitomy is not responsible for the contents of any third-party sites or services, any links contained in third-party sites or services, or any changes or updates to third-party sites or services. IPitomy is providing these links and access to third-party sites and services to you only as a convenience, and the inclusion of any link or access does not imply an endorsement by IPitomy of the third-party site or service.
ADDITIONAL SOFTWARE/SERVICES. This Agreement applies to updates, supplements, add-on components, or Internet-based services components, of the Software that IPitomy may provide to you or make available to you after the date you obtain your initial copy of the Software, unless they are accompanied by separate terms. IPitomy reserves the right to discontinue Internet-based services provided to you or made available to you through the use of the Software.
LICENSE COPYRIGHT NOTICE. The License Number received used to activate the Software is NOT public. Any public display or public transfer of this number will be considered a direct and willing violation of this Agreement and to the maximum extent permitted by applicable law you may be held liable for loss of revenue to IPitomy or IPitomy's suppliers or IPitomy’s representatives due to loss of sales or devaluation of the Software PRODUCT or both.
UPGRADES. To use Software identified as an upgrade, you must first be licensed for the Software identified by IPitomy as eligible for the upgrade. After installing the upgrade, you may no longer use the original software that formed the basis for your upgrade eligibility, except as part of the upgraded software.
EXPORT RESTRICTIONS. You understand that parts of the Software may be subject to U.S. export jurisdiction. You understand also that parts of this Software are encrypted and as such may be 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.
SEPARATION OF COMPONENTS. The Software is licensed as a single product. Its component parts may not be separated for use on more than one device. This does not affect your rights to the source code where Third Party Software has been used under GNU Licensing as described above.
SOFTWARE TRANSFER. You may not transfer your copy of the Software to a different device or transfer to a Third Party. If you are the person who initially licensed the Software, you may NOT make a one-time permanent transfer of this Agreement, Software and Certificate of Authenticity (if applicable) to another end user.
LIMITED WARRANTY TO DIRECT IPITOMY CUSTOMERS AND CUSTOMERS OF CERTIFIED IPITOMY RESELLERS ONLY. If You purchased a new or upgraded (subsequent) version of the Software directly from IPitomy or a Certified IPitomy Reseller or Distributor, IPitomy warrants and represents that the Software as delivered by IPitomy to the IPitomy Reseller toYou will substantially perform in accordance with its applicable documentation for the period specified at the time of Your purchase of the Software from IPitomy. If no warranty period is specified at the time of Your purchase of the Software, then no warranty is available to you. Notwithstanding the foregoing, IPitomy makes no warranties with respect to any General Public License Software or other Third Party Software embedded in the Program and/or furnished to You. If You obtained the Software from Reseller, You may have certain warranties provided by the Reseller, and You agree to look solely to Reseller with respect to any such warranties.
LIMITATION OF LIABILITY AND REMEDIES. In the event of a breach of IPitomy’s warranty under the preceding paragraph, IPitomy will, at its discretion, repair and/or make available replacement Software. The foregoing remedies are Your exclusive remedies for a breach of warranty hereunder. IPitomy will not have any liability under this warranty if the alleged defect is due to causes not within IPitomy’s reasonable control, including but not limited to any defect caused by any negligent act or omission by anyone other than IPitomy, any defect caused by use of the Software in an operating environment not specified by the applicable documentation or otherwise not in accordance with this Agreement, or any defect caused by alteration or abuse of media on which the Software is stored, failure to follow IPitomy’s instructions for installation, operation or maintenance, power failure or surges, fire, flood or the like. TO THE FULL EXTENT PERMISSIBLE UNDER APPLICABLE LAW, IPITOMY SHALL NOT BE RESPONSIBLE OR LIABLE WITH RESPECT TO THIS AGREEMENT UNDER ANY CONTRACT, NEGLIGENCE, STRICT LIABILITY OR OTHER THEORY, EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, FOR ANY (A) LOSS OR INACCURACY OF DATA, (B) DAMAGE TO SOFTWARE OR EQUIPMENT, (C) INABILITY TO DELIVER GOODS, SERVICES OR TECHNOLOGY, (D) COST OF PROCUREMENT OF SUBSTITUTE GOODS, SERVICES OR TECHNOLOGY, (E) INDIRECT, INCIDENTAL, SPECIAL, EXEMPLARY OR CONSEQUENTIAL DAMAGES INCLUDING, BUT NOT LIMITED TO, LOSS OF REVENUES, DATA OR PROFITS, (F) LOSS OF PRIVACY OR (G) FOR ANY MATTER BEYOND ITS REASONABLE CONTROL. IN NO EVENT WILL IPITOMY’S TOTAL LIABILITY TO YOU UNDER THIS AGREEMENT, IN THE AGGREGATE, EXCEED THE LICENSE FEE YOU PAID TO IPITOMY PURSUANT TO THIS AGREEMENT. If you obtained the Software from a Reseller, YOU AGREE THAT YOU SHALL LOOK SOLELY TO RESELLER FOR RECOURSE, AND IPITOMY SHALL HAVE NO LIABILITY TO YOU WHATSOEVER.
TRAINING AND SUPPORT. If You purchased the Software directly from IPitomy, You may be eligible for the applicable training and support options associated with the specific Software product available at the date of purchase for the product You purchased. IPitomy shall have no other obligation under this Agreement to provide any training or support or to correct any bugs, defects or errors or to otherwise support, develop or maintain the Software or any included Third Party products, and IPitomy will have no obligation to provide support directly to You if You obtained the Software from a Reseller You must contact Reseller for any support. IPitomy will not provide technical support for any unauthorized software installations, client enhancements, server-side upgrades, or third-party software installations or upgrades not included with this distribution. You acknowledge and agree that any modifications of or upgrades to the Software included with this distribution may jeopardize the performance and reliability of the Software.
TERMINATION. Without prejudice to any other rights, IPitomy may terminate this Agreement if you fail to comply with the terms and conditions of this Agreement. This Agreement may be terminated by You for any reason or no reason upon written notice to IPitomy. Upon termination or expiration, the terms of this Agreement will remain in full force, you must destroy all copies of the Software and all of its component parts or portions of the Software and Proprietary Information in Your possession or control.
GOVERNMENT LICENSE RIGHTS. If You are the U.S. Government or any other Government or if You are a contractor or subcontractor (at any tier) of the U.S. Government or any other Government and are licensing the Software for use by the U.S. Government or another Government or in connection with any contract or other transaction with the U.S. Government or another government, You acknowledge that by accepting delivery of the Software, the Government concerned or affected agrees that the Software qualifies as commercial computer software and that the Documentation qualifies as commercial computer software documentation within the meaning of the acquisition regulations and contract clauses applicable to this procurement. The terms and conditions of this Agreement are fully applicable to the Government's use and disclosure of the Software, and shall supersede any conflicting terms or conditions in any procurement document. No license of any kind is granted in the case of acquisitions which contain or are subject to the clauses FAR 52-227.19 COMMERCIAL COMPUTER SOFTWARE-RESTRICTED RIGHTS (JUNE 1987) or DFARS 252.227-7013 RIGHTS IN TECHNICAL DATA AND COMPUTER SOFTWARE (OCT 1988) or any other clause in the USA or elsewhere which purports to grant to the Government rights greater than, or additional to those, set forth in this Agreement, or which purports to impose additional requirements upon IPitomy to make this Agreement effective, unless IPitomy specifically so consents by separate written agreement. Failing such agreement, and if this Agreement fails to meet the Government's stated needs or is inconsistent in any respect with federal law, the Government agrees to return the Software and Documentation, unused, to IPitomy at its address identified herein, or, if applicable, Reseller.
APPLICABLE LAW; JURISDICTION AND VENUE. This Agreement will take effect under the Laws of the State of Florida. All disputes arising hereunder shall be resolved exclusively in the federal and state courts with jurisdiction and venue in Sarasota, Florida. You consent to the personal jurisdiction and exclusive venue of those courts for that purpose. IPitomy does however reserve the right to choose to enforce this agreement in Your jurisdiction.
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 IPitomy relating to the Software and the support services (if any) and they supersede 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 IPitomy policies or programs for support services conflict with the terms of this Agreement, the terms of this Agreement shall control. 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.

If you have any questions concerning this Agreement, or if you desire to contact IPitomy for any reason, please use the address information enclosed in this Software to contact the IPitomy subsidiary serving your country or visit IPitomy on the World Wide Web at http://www.IPitomy.com.