Brekeke PBX End User License Agreement (EULA)

Brekeke Software, Inc. Brekeke PBX End User License Agreement Effective Date: October 10, 2011 THIS END USER LICENSE AGREEMENT (or "EULA") IS A LEGAL AGREEMENT BETWEEN THE PERSON, COMPANY, OR ORGANIZATION THAT HAS LICENSED THIS SOFTWARE ("YOU" OR "CUSTOMER") AND BREKEKE SOFTWARE, INC. OR ITS AUTHORIZED DISTRIBUTOR, SUB-DISTRIBUTOR OR RESELLER. BY INSTALLING AND USING THE SOFTWARE, CUSTOMER ACCEPTS THE SOFTWARE AND AGREES TO THE TERMS OF THIS AGREEMENT. READ IT CAREFULLY BEFORE COMPLETING THE INSTALLATION PROCESS AND USING THE SOFTWARE. BY INSTALLING AND/OR USING THE SOFTWARE, YOU ARE CONFIRMING YOUR ACCEPTANCE OF THE SOFTWARE AND AGREEING TO BECOME BOUND BY THE TERMS OF THIS AGREEMENT. IF YOU DO NOT AGREE TO BE BOUND BY THESE TERMS, OR DO NOT HAVE AUTHORITY TO BIND CUSTOMER TO THESE TERMS, YOU MUST: (i) NOT DOWNLOAD THE SOFTWARE, (ii) IMMEDIATELY CEASE USING THE SOFTWARE, AND (iii) DESTROY ALL COPIES OF THE SAME, INCLUDING ANY COPIES STORED ON YOUR HARD DRIVE AND ANY ARCHIVAL COPIES. Brekeke reserves the right to change or update any part of this Agreement from time to time without prior notice. The latest and most current agreement can be found at Brekeke's website. 1. Definitions a. "Brekeke" means the licensor, Brekeke Software, Inc., and its licensors, if any. b. "Software" means only the Brekeke PBX including any updates, upgrade, modified versions, the documentation, examples and any included resources available with the main program which is developed by Brekeke and any third party(s). c. "You" or "Your" shall refer to authorized users, either the individual or entity, who has a license to use the Software in accordance with the terms and conditions of this Agreement. d. "Edition" means the specific Software edition that is licensed to you under this Agreement. The Editions available under this Agreement are: Evaluation Edition, Basic Edition (only available for v2.x) or Pro Edition. e. "Evaluation Edition" means a version of the Software, so identified, to be used only to review, demonstrate and evaluate the Software for a limited time period. The Evaluation Edition may have limited features and will cease operating after a predetermined amount of time due to an internal mechanism within the Evaluation Edition. f. "Commercial License" means the specific Software license available to you under this Agreement. The Commercial Licenses available under this Agreement are: Basic Edition (only available for v2.x) or Pro Edition. 2. License Grants The licenses granted in this Section 2 are subject to the terms and conditions set forth in this EULA: a. Subject to the restrictions set forth below, this EULA grants you a non-exclusive, perpetual license to install and use one (1) copy of the specified Edition of the Software in object code format, on only one computer. The Software is "in use" on a computer when it is loaded into the temporary memory (i.e., RAM) or installed into the permanent memory (e.g., hard disk, CD-ROM, or other storage device) of that computer. The license granted hereunder shall not be effective until you have paid in full all license fees, as applicable, for the Software due and payable to Brekeke. b. Subject to the transfer procedure and policy set forth in the License Transfer Policy, you may move the Software to a different computer. Brekeke reserves the right to change or update any part of the license transfer policy from time to time without prior notice. The latest and most current License Transfer Policy can be found on Brekeke's website at http://www.brekeke.com/buy/buy_lic-transfer_policy.php. License transfer is available for Commercial License only. c. You may create a backup copy of the software binary for your own personal safekeeping only. You may not install or activate more than one copy of the Software at any time. You may not distribute, resell or share, the Software or any portions of the Software. d. You may not use multiple instances of the Software in virtual environments without obtaining a separate license of each such use of the Software. e. You agree that Brekeke may audit your use of the Software for compliance with these terms at any time, upon reasonable notice. In the event that such audit reveals any use of the Software by you other than in full compliance with the terms of this Agreement, you shall reimburse Brekeke for all reasonable expenses related to such audit in addition to any other liabilities you may incur as a result of such non-compliance. f. Your license rights under this EULA are non-exclusive. g. There may be technological measures in this Software that are designed to prevent unlicensed or illegal use of the Software. You agree that Brekeke may use these measures to protect Brekeke against software piracy. This Software may contain enforcement technology that limits the ability to install and activate the Software on a computer to not more than a finite number of times for a finite number of computers. The Software contains enforcement technology that may require activation as further set forth on the Brekeke website. If so, the Software will only operate for a finite period of time after Software activation by you. You may also need to reactivate the Software if you modify your computer hardware, alter the Software, or install the Software on another computer. Product activation is based on the exchange of information between your computer and Brekeke. Since Licenses are user-specific, the nature of such means personally identifiable information IS transmitted during such activations, and is logged with such information for the use of debugging and security. h. The number of allowable users is determined by the type of license that you have purchased. The number of allowable users are allotted in sets of twenty (20); the minimum number of allowable users is 20, and additional users are allowed in increments of 20. If you have licensed the Pro Edition, the number of concurrent call sessions authorized is equal to the number of allowable users. (For example, with 20 allowable users, 20 concurrent call sessions are authorized.) If you have licensed the Basic Edition (available only for v2.x), the number of concurrent call sessions authorized is equal to one-half the number of allowable users. (For example, with 20 allowable users, 10 concurrent call sessions are authorized.) Regardless of whether you collect fees from registered users, you are absolutely prohibited from transferring, sublicensing, or distributing the Software to registered users or any other third party. i. You may purchase upgrades to the Software at the Brekeke website or through Brekeke's authorized distribution partner. Available upgrade options are listed at Brekeke website. Brekeke reserves the right to change or update any upgrade options for Brekeke PBX from time to time without prior notice. 3. License Restrictions a. Other than as set forth in Section 2, you may not make or distribute copies of the Software, or electronically transfer the Software from one computer to another or over a network. b. You may not alter, merge, modify, adapt or translate the Software, or decompile, reverse engineer, disassemble, or otherwise reduce the Software to a human-perceivable form. c. Unless otherwise provided herein, you may not rent, lease, or sublicense the Software. d. Unless otherwise provided herein, you may not modify the Software or create derivative works based upon the Software. e. Unless otherwise provided herein, you shall not (A) in the aggregate, install or use more than one copy of the Evaluation Edition of the Software, (B) download the Evaluation Edition of the Software under more than one email account, (C) alter the contents of a hard drive or computer system to enable the use of the Evaluation Edition of the Software for an aggregate period in excess of the trial period for one license to such Evaluation Edition, (D) disclose or publish the results of software performance benchmarks obtained using the Software to any third party without Brekeke's prior written consent, or (E) use the Evaluation Edition of the Software for a purpose other than the sole purpose of determining whether to purchase a license to a commercial version of the software. You are strictly prohibited from installing or using the Evaluation Edition of the Software for any commercial training purpose. f. You shall not use the Software to develop any product having the same primary function as the Software. g. You may not export the Software into any country prohibited by the United States Export Administration Act and the regulations hereunder. h. In the event that you fail to comply with this EULA, Brekeke may terminate the license and you must destroy all copies of the Software (with all other rights of both parties and all other provisions of this EULA surviving any such termination). In the event that Brekeke assumes your license may be pirated and/or that you have violated the EULA, Brekeke may disable and terminate your license at any given time with or without warning. 4. Upgrades If this copy of the Software is an upgrade from an earlier version of the Software, you must possess a valid full license to a copy of an earlier version of the Software used to upgrade to this upgrade copy in order to install and/or use this upgrade copy. The upgrade is provided to you on a license exchange basis. By your installation and use of the upgraded Software, you agree to discontinue use of and destroy all copies of the earlier Software. 5. Ownership The foregoing license gives you limited license to use the Software. Brekeke and its suppliers retain all right, title and interest, including all copyright and intellectual property rights, in and to, the Software (as an independent work and as an underlying work serving as a basis for any application you may develop), and all copies thereof. All rights not specifically granted in this EULA, including Federal and International Copyrights, are reserved by Brekeke and its suppliers. You agree that you will not, at any time, contest anywhere in the world Brekeke's ownership of the Software, nor will you challenge the validity of Brekeke's rights in the Software. You have no rights hereunder to use any trademark or service mark belonging to Brekeke. 6. Warranty and Refund THE SOFTWARE IS PROVIDED "AS IS" AND WITHOUT WARRANTY OF ANY KIND. BREKEKE HEREBY EXCLUDES AND DISCLAIMS ALL IMPLIED OR STATUTORY WARRANTIES, INCLUDING ANY WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, QUALITY, NON-INFRINGEMENT, TITLE, RESULTS, EFFORTS OR QUIET ENJOYMENT. THERE IS NO WARRANTY THAT THE SOFTWARE WILL BE ERROR-FREE OR WILL FUNCTION WITHOUT INTERRUPTION. YOU ASSUME THE ENTIRE RISK FOR THE RESULTS OBTAINED USING THE SOFTWARE. TO THE EXTENT THAT BREKEKE MAY NOT DISCLAIM ANY WARRANTY AS A MATTER OF APPLICABLE LAW, THE SCOPE AND DURATION OF SUCH WARRANTY WILL BE THE MINIMUM PERMITTED UNDER SUCH LAW. SOME STATES DO NOT ALLOW THE EXCLUSION OF IMPLIED WARRANTIES, SO THE ABOVE EXCLUSION MAY NOT APPLY TO YOU. THIS LIMITED WARRANTY GIVES YOU SPECIFIC LEGAL RIGHTS, AND YOU MAY ALSO HAVE OTHER LEGAL RIGHTS, WHICH VARY FROM STATE TO STATE. 7. LIMITATION OF LIABILITY a. NEITHER BREKEKE NOR ITS SUPPLIERS SHALL BE LIABLE TO YOU OR ANY THIRD PARTY FOR ANY INDIRECT, SPECIAL, INCIDENTAL, PUNITIVE, COVER OR CONSEQUENTIAL DAMAGES (INCLUDING, BUT NOT LIMITED TO, DAMAGES FOR THE INABILITY TO USE EQUIPMENT OR ACCESS DATA, LOSS OF BUSINESS, LOSS OF PROFITS, BUSINESS INTERRUPTION OR THE LIKE), ARISING OUT OF THE USE OF, OR INABILITY TO USE, THE SOFTWARE AND BASED ON ANY THEORY OF LIABILITY INCLUDING BREACH OF CONTRACT, BREACH OF WARRANTY, TORT (INCLUDING NEGLIGENCE), PRODUCT LIABILITY OR OTHERWISE, EVEN IF BREKEKE OR ITS REPRESENTATIVES HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES AND EVEN IF A REMEDY SET FORTH HEREIN IS FOUND TO HAVE FAILED OF ITS ESSENTIAL PURPOSE. b. BREKEKE'S TOTAL LIABILITY TO YOU FOR ACTUAL DAMAGES FOR ANY CAUSE WHATSOEVER WILL BE LIMITED TO THE GREATER OF $500 OR THE AMOUNT PAID BY YOU FOR THE SOFTWARE THAT CAUSED SUCH DAMAGE. c. (USA only) SOME STATES DO NOT ALLOW THE LIMITATION OR EXCLUSION OF LIABILITY FOR INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THE ABOVE LIMITATION OR EXCLUSION MAY NOT APPLY TO YOU AND YOU MAY ALSO HAVE OTHER LEGAL RIGHTS THAT VARY FROM STATE TO STATE. d. THE FOREGOING LIMITATIONS ON LIABILITY ARE INTENDED TO APPLY TO THE WARRANTIES AND DISCLAIMERS ABOVE AND ALL OTHER ASPECTS OF THIS EULA. 8. Third Party Software The Software may contain third party software which requires notices and/or additional terms and conditions. Such required third party software notices and/or additional terms and conditions are included and are made a part of and incorporated by reference into this EULA. By accepting this EULA, you are also accepting the additional terms and conditions, if any, set forth therein. 9. Privacy and Data Collection From time to time, the Software may collect certain information from the computer on which it is installed, which may include information regarding installation or use of the Software. This information indicates to Brekeke whether installation of the Software was successfully completed and is collected by Brekeke for the purpose of evaluating and improving Brekeke's product installation success rate, as well as compliance with this EULA. 10. General This EULA shall be governed by the internal laws of the State of California, without giving effect to principles of conflict of laws. You hereby consent to the exclusive jurisdiction and venue of the state courts sitting in San Mateo County, California or the federal courts in the Northern District of California to resolve any disputes arising under this EULA. In each case this EULA shall be construed and enforced without regard to the United Nations Convention on the International Sale of Goods. This EULA contains the complete agreement between the parties with respect to the subject matter hereof, and supersedes all prior or contemporaneous agreements or understandings, whether oral or written. You agree that any varying or additional terms contained in any purchase order or other written notification or document issued by you in relation to the Software licensed hereunder shall be of no effect. The failure or delay of Brekeke to exercise any of its rights under this EULA or upon any breach of this EULA shall not be deemed a waiver of those rights or of the breach. No Brekeke distributor, sub-distributor, dealer, agent or employee is authorized to make any amendment to this EULA unless such amendment is in writing and signed by a duly authorized representative of Brekeke. If any provision of this EULA shall be held by a court of competent jurisdiction to be contrary to law, that provision will be enforced to the maximum extent permissible and the remaining provisions of this EULA will remain in full force and effect. Brekeke and other trademarks contained in the Software are trademarks or registered trademarks of Brekeke in the United States and/or other countries. Third party trademarks, trade names, product names and logos may be the trademarks or registered trademarks of their respective owners. You may not remove or alter any trademark, trade names, product names, logo, copyright or other proprietary notices, legends, symbols or labels in the Software. This EULA does not authorize you to use Brekeke's or its licensors' names or any of their respective trademarks.

PLEASE READ THIS AGREEMENT CAREFULLY BEFORE PURCHASING OR USING BREKEKE SOFTWARE, INC. SOFTWARE. BY USING OR PURCHASING BREKEKE SOFTWARE PRODUCTS, CUSTOMER SIGNIFIES ITS ASSENT TO THIS AGREEMENT. IF YOU ARE ACTING ON BEHALF OF AN ENTITY, THEN YOU REPRESENT THAT YOU HAVE THE AUTHORITY TO ENTER INTO THIS AGREEMENT ON BEHALF OF THAT ENTITY. IF CUSTOMER DOES NOT ACCEPT THE TERMS OF THIS AGREEMENT, THEN IT MUST NOT USE OR PURCHASE BREKEKE SOFTWARE PRODUCTS.