End-User License Agreement (EULA)
END USER LICENSE AGREEMENT (“EULA”)
PLEASE READ THE FOLLOWING TERMS AND CONDITIONS CAREFULLY
This is an agreement between Zenitel Norway AS ("Zenitel"), a Norwegian limited liability company with company registration number 863 503 922 and you as the licensed party ("You") with respect to the Software. Zenitel and You are each referred to as a "Party" and jointly as the "Parties".
"Software" means all software (including also firmware) which are provided by Zenitel or its suppliers, and all third-party software included herein, related documentation (electronic or other) and explanations, associated media, printed materials, updates, additions and copies. The Software is often embedded with hardware devices produced by or for Zenitel.
Any use of the Software is to be regarded as an acceptance of this EULA as binding between Zenitel and You.
If You do not agree to the terms of the EULA, then You are not entitled to use the Software. Your use of the Software is also conditional upon such terms of purchase as may be agreed between You and Zenitel or its distributors. Your compliance with such terms and conditions are a requirement also under this EULA. No distributors or other third parties are entitled to vary this EULA, and this EULA take precedence in case of conflict with any other terms and conditions. Zenitel is not willing to license its Software to consumers. If You are a consumer, You are not allowed to use the Software.
If the Software is embedded with a hardware device You have acquired, then You may only use the Software on that device. You are not allowed to make any copies of the Software that is embedded with any device.
2 - COPYRIGHT
You acknowledge that the Software, including all releases/versions thereof, and any related patents, trademarks or copyrights are, and shall remain the exclusive property of Zenitel or its third party suppliers, and that You shall have no right, title or interest to the Software except Your right to use as expressly set out in this EULA.
3 - RIGHT TO USE
By acceptance of this EULA and payment of valid fees (if applicable), You are granted the personal, non-exclusive, non-transferable right to use and display one copy of the Software (per license validly obtained) for Your internal purposes only, and in the case of the Software being embedded with a hardware device, solely in conjunction with such device.
4 - RESPONSIBILTY FOR USE
You are solely responsible for any use of the Software and that such use is made in compliance with this EULA, any other terms agreed between You and Zenitel or its distributors, and applicable law.
To the extent that the Software contains surveillance and/or recording functions, You acknowledge that You are solely responsible to use such functionality in compliance with applicable law.
5 - LICENSE RESTRICTIONS
To the extent permitted by mandatory law, You explicitly agree to the following restrictions:
a) You shall not copy, alter, merge, modify or adapt the Software, including its accompanying documentation, explanations and any notices. If the Software is for use other than as embedded software on a hardware device, then You may make one single copy of the Software for back-up purposes.
b) You shall not remove any program identification, copyright notices, or other notices or proprietary restrictions from the Software. You shall not circumvent any technical measures in the Software.
c) You shall not cause or permit the reverse engineering, disassembly, de-compilation, translation or adaptation of the Software, or the reduction of the Software to a human-perceivable form.
d) You shall not use the Software to develop or market a product or service that competes with the Software, but You are entitled to develop, market and add supplementing software products or services to the Software provided that it does not compete with the Software and provided that the documented API for the Software has been used.
e) You shall not sell, lease, distribute, transfer, assign, sublicense or otherwise dispose of the Software or any right granted to the Software, in whole or in part. Notwithstanding the foregoing, if the Software is embedded on a hardware device You have lawfully acquired, then You may, on the terms and conditions of this EULA, sell the device to a third party, together with the right of use of the Software as set out in this EULA as part of the device, provided that You have procured that the third party has accepted in writing the terms of this EULA with respect to such Software. If You have not secured such acceptance, You shall indemnify and keep Zenitel and its affiliates harmless for any and all damage or loss resulting therefrom.
f) The use of the Software may require that You have a product key or license file. In such case, You shall not use a product key or license file that was not directly obtained from Zenitel or an official partner/distributor of Zenitel. You shall not share such product key or license file with any third party.
g) You shall use the Software in special risk areas, unless you have a prior express consent in writing from Zenitel.
h) You shall not export or re-export the Software when such acts are restricted by applicable law, except in compliance with U.S. export laws and regulations (the "Export Laws"). Supplier and You will not, directly or indirectly, export or re-export the Software to any country which is in the then current list of prohibited countries specified in the applicable Export Laws.
i) To the extent an initial free use period has been granted, You may only use the Software for the sole purpose of familiarizing Yourself with the functionalities of the Software and then for the maximum number of days set out as the initial free use period.
6 - SUPPORT, WARRANTIES, LIABILITIES AND CLAIMS
If You have purchased the user right to the Software directly from Zenitel, whether as part of a hardware device on which the Software is embedded or not, then the purchase is governed by ZENITEL – TERMS AND CONDITIONS FOR SALE OF PRODUCTS AND SERVICES (available at https://www.zenitel.com/file/7237/download or such other website that may be advertised by Zenitel), and any claim You may have, is subject to these terms and conditions and this EULA.
In all other cases, Your claim, and also any request for support, shall be directed solely to the distributor or such other third party from which You have acquired the Software. If You direct the claim against Zenitel or its affiliates, You shall indemnify and keep Zenitel and its affiliates harmless for any and all damage or loss resulting therefrom.
If You despite the preceding disclaimer have any basis for claiming damages from Zenitel, the aggregate liability for damages shall not exceed USD 1,000. For the avoidance of doubt this limitation of liability shall be cumulative and not per incident. This applies regardless of cause, whether through the negligence and/or breach of duty (statutory or otherwise) of Zenitel or anyone Zenitel is responsible for, or otherwise, that arises out of or in connection with the Software and/or this EULA. Except to the extent otherwise explicitly agreed between You and the one You purchased the Software from, the Software shall be regarded as licensed on an “AS IS” basis and to the extent permitted by mandatory law, Zenitel and its suppliers disclaim all other representations or warranties, whether express or implied through contract or law, included but not limited to warranties for merchantability or fitness for any particular purpose, or that the Software is error-free, or that the use of the Software or any copies thereof will not infringe any patent, copyright or trademark of third parties.
7 - NO CONSEQUENTUAL LOSSES
You hereby waive any and all right to claim compensation under or in connection with this EULA or the subject matter contemplated hereunder, now or in the future, including, without limitation, the Software, whether in tort, contract, or otherwise, for:
a) special, indirect, consequential, exemplary, incidental, or punitive damages or losses,
b) loss of production, lost earnings or revenues of any kind, loss of anticipated cost savings, loss or corruption of date, loss related to third party claims, in each case whether indirect or not.
8 - UPDATES
Zenitel will be entitled to, but is not obliged to, update and/or modify the Software.
9 - LICENSE KEYS OR ACTIVATIONS CODE – IF APPLICABLE FOR THE SOFTWARE
Depending on the Software, some functions within the Software or the Software as such may only be activated by installing the proper license keys or activations codes. The license keys or activation codes authorizes the use of these functionalities through payment of the invoice relating to the license key or activation code as stated on the invoice, irrespective of whether the Software is being used or not. Zenitel reserves the right not to supply or withdraw any license key or activation code if the underlying invoice is not paid or You are in breach of other terms under this EULA.
10 - CONFIDENTIALITY
You shall keep confidential all information and documentation provided by Zenitel or any third party relating to the Software, and not use such information for any other purpose than Your lawful use of the Software.
11 - LIMITATIONS OF LIABILITY
Zenitel and its suppliers shall not be liable towards You for damages or any other remedies, including any loss of profit, loss of data, loss of savings, or other incidental or consequential damages arising from Your use or inability to use t- he Software, even if Zenitel and/or its suppliers or their representatives have been advised of the possibility of such damages, or for any claim by any other party whether based on contract, tort or any other legal basis.
12 VALIDITY AND TERMINATION
You are entitled to terminate this EULA at any time by simple written notice to Zenitel subject to the provisions set out hereinafter. Zenitel is entitled to terminate this EULA by simple written notice towards You, but only in the event
You fail to comply with any of Your obligations pursuant to this EULA. In the event of termination, whether by You or by Zenitel, You shall immediately stop any use of the Software and of all copies thereof and return to Zenitel or destroy the Software and all copies thereof. You shall also promptly (but at the latest within five calendar days after termination) confirm in writing to Zenitel that You have returned or destroyed the Software and all copies thereof and have terminated use. In addition, in the event of termination because of Your failure to comply with Your obligations, Zenitel reserves the right to invoke any and all other remedies available under law or contract including the right to claim damages.
13 - AUDIT RIGHTS
Zenitel may, during normal business hours, and upon at least 14 (fourteen) calendar days prior notice, have an internationally recognized, independent audit firm mutually agreeable to both parties, audit Your records and systems in order to verify compliance with the EULA. The audit will be conducted at Zenitel's expense, except that if irregularities are detected:
a) You shall if requested by Zenitel immediately pay the total difference between list price license fees (if any) to Zenitel, plus a 20% (twenty percent) addition to be calculated of the license shortfall; and
b) You shall pay all Zenitel's reasonable direct costs and expenses related to the audit.
Section a-b is in addition to any other rights and remedies Zenitel may have under law or otherwise.
14 - MISCELANEOUS
Any terms and conditions provided by You are inapplicable whether or not contained in order forms or otherwise unless specifically accepted by Zenitel in writing by means of an addition to this EULA.
No changes of this EULA are valid unless written approval have been made by Zenitel and You.
In the event that any provision herein shall be declared unenforceable by a court of competent jurisdiction, all other provisions will remain in full force and effect.
The failure or delay of Zenitel 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.
The Software may include software based on open source, please see wiki.zenitel.com or such other website that that may be advertised by Zenitel. You may for some of the open source possibly be entitled to receive a copy, subject to the applicable open source license and payment of a reasonable fee for shipping the open source to You.
15 - GOVERNING LAW
If You are domiciled in Norway, Sweden or Denmark this EULA shall be exclusively governed by and construed in accordance with the laws of Norway, otherwise the EULA shall be exclusively governed by and construed in accordance with the laws of England and Wales, without giving effect to any choice or conflict of law provisions.
The Norwegian Sale of Goods Act and the United Nations Convention on Contracts for the International Sale of Goods, are specifically excluded from this EULA.
16 - DISPUTES
If You are domiciled in Norway Sweden or Denmark: Any dispute arising out of or in connection with this EULA and/or the Software, including any question regarding the EULA's existence, validity or termination, shall be referred to and finally resolved by the ordinary courts of Norway. The venue in the first instance shall be Oslo city court, to the exclusion of any other forum.
If You are domiciled outside of Norway, Sweden and Denmark: Any dispute arising out of or in connection with this EULA and/or the Software, including any question regarding the EULA's existence, validity or termination, shall be referred to and finally resolved by arbitration under the LCIA Rules, which Rules are deemed to be incorporated by reference into this clause.
The number of arbitrators shall be three.
The seat, or legal place, of arbitration shall be London, England.
The language to be used in the arbitral proceedings shall be English.
The arbitral proceedings shall be kept strictly confidential. This confidentiality undertaking shall cover all information disclosed in the course of such arbitral proceedings. This clause 16 shall not preclude a Party from obtaining interim or injunctive relief on an immediate basis from a court of competent jurisdiction.
Oslo, Norway 09.11.2020