End User License Agreement for Active Voice Software

IMPORTANT - READ CAREFULLY:

Be sure to read and understand all the rights and restrictions described in this End User License Agreement ("EULA"). This EULA is a legal agreement between you (either an individual or a single entity) and Active Voice, LLC for the software accompanying this EULA, which includes the accompanying computer software, and may include associated media, printed material or electronic documentation ("SOFTWARE"). You will be asked to review and either accept or not accept the terms of this EULA. The software will not install on your computer unless or until you accept the terms of the EULA. By clicking the "Accept" button, installing, copying or otherwise using the Software, you agree to be bound by the terms of this EULA. IF YOU DO NOT AGREE TO THE TERMS OF THE EULA, YOU MAY NOT INSTALL OR USE THE SOFTWARE.

I ACCEPT I DO NOT ACCEPT

Please read the following agreement carefully:

This EULA is a binding, legally enforceable contract between Active Voice, LLC ("Active Voice") and you and/or your organization ("LICENSEE") for the Active Voice SOFTWARE.

By installing, copying or otherwise using the SOFTWARE, LICENSEE accepts and agrees to comply with each term and condition of this EULA. If LICENSEE does not so agree, LICENSEE may not install, copy or use the SOFTWARE. Upon LICENSEE'S breach of the terms of this EULA, this EULA shall automatically terminate and all licensed rights granted will immediately cease to exist, without requirement of notice from Active Voice. In such event, LICENSEE must immediately destroy the SOFTWARE and all copies thereof. Such termination shall neither be Active Voice's sole nor exclusive remedy for such breach.

1. OWNERSHIP AND INTELLECTUAL PROPERTY RIGHTS: Active Voice and its suppliers shall retain sole and exclusive ownership of the SOFTWARE and all intellectual property and/or proprietary rights related to or embodied therein. Active Voice reserves all rights not expressly granted to LICENSEE in Section 2 below and no license or rights are granted by implication, estoppel or otherwise. LICENSEE may not remove from, add to, or alter, any of the trademarks, trade names, logos, patent or copyright notices, or proprietary markings or legends in the SOFTWARE.

2. GRANT OF LICENSE: Subject to the terms and conditions of this EULA, Active Voice grants LICENSEE a personal, internal, non-transferable (except as set forth below), non-exclusive license to install and use the SOFTWARE only: (a) in object code form; (b) in accordance with the documentation; (c) for LICENSEE's own internal business purposes and not as a service provider or outsourcing facility, such as ISP, ASP and CO type applications, for unrelated third parties; and (d) for the number of authorized servers, seats and/or ports. LICENSEE may make one copy of the SOFTWARE for backup/archival purposes and may transfer its rights under this EULA only in a transfer of the entire ownership interest in and to the SOFTWARE, provided the transferee agrees to be bound by the terms and conditions hereof.

3. RESTRICTIONS: LICENSEE acknowledges that the SOFTWARE and its structure, sequence, organization, user interfaces and source code constitute valuable trade secrets and proprietary information of Active Voice and its suppliers. Accordingly, LICENSEE agrees not to and shall not permit any party to: (a) modify, adapt, alter, translate, or create derivative works from the SOFTWARE; (b) merge the SOFTWARE with other software; (c) sublicense, lease, rent, loan, timeshare, distribute or otherwise transfer (except in connection with a transfer permitted under Section 2 above) the SOFTWARE to any third party; (d) reverse engineer, decompile, disassemble, or otherwise attempt to derive the source code for the SOFTWARE, except and only to the extent that such activity is expressly permitted by applicable local law notwithstanding this limitation, and only after providing written notice to Active Voice of your intent to do so; or (e) otherwise use or copy the SOFTWARE except as expressly allowed under Section 2.

4. UPDATES: Active Voice may update the SOFTWARE at any time and in doing so incurs no obligation to furnish such updates to LICENSEE under this EULA. If Active Voice provides LICENSEE with an update to the SOFTWARE, LICENSEE agrees to use and install such update under the terms of this EULA and discontinue use of and destroy any prior versions of the SOFTWARE.

5. WARRANTY DISCLAIMERS: THE SOFTWARE IS PROVIDED TO YOU "AS IS" WITHOUT WARRANTY OF ANY KIND, EITHER EXPRESSED OR IMPLIED. Neither Active Voice nor its suppliers provide any maintenance or support for the SOFTWARE under this EULA and do not warrant that the SOFTWARE will meet LICENSEE's requirements or that the operation of the SOFTWARE will be uninterrupted, or bug or error free. ACTIVE VOICE AND IT SUPPLIERS HEREBY SPECIFICALLY DISCLAIM ALL OTHER WARRANTIES, EXPRESS, IMPLIED OR STATUTORY, INCLUDING WITHOUT LIMITATION, ANY WARRANTY OF FITNESS FOR A PARTICULAR PURPOSE, MERCHANTABILITY, TITLE, NONINFRINGEMENT OR ANY WARRANTY ARISING OUT OF CUSTOM, COURSE OF PERFORMANCE, COURSE OF DEALING OR TRADE OR IMPLIED INDEMNITIES. ACTIVE VOICE DOES NOT WARRANT THAT THE OPERATION OF ANY SOFTWARE WILL BE INTERRUPTION OR ERROR FREE, OR WILL BE FREE FROM BUGS, DEFECTS, VIRUSES, AND/OR SECURITY ISSUES. LICENSEE ACKNOWLEDGES IT HAS RELIED ON NO OTHER WARRANTIES AND THAT NONE ARE MADE BY ACTIVE VOICE, ITS SUPPLIERS OR AUTHORIZED RESELLERS. IF LICENSEE'S JURISDICTION DOES NOT ALLOW THE ABOVE DISCLAIMER OF IMPLIED WARRANTIES, THE DURATION OF ANY SUCH IMPLIED WARRANTIES IS LIMITED TO SIXTY (60) DAYS FROM DELIVERY OF THE SOFTWARE TO LICENSEE. THE SOFTWARE IS NOT DESIGNED OR INTENDED FOR USE IN: (A) ON-LINE OR REAL-TIME CONTROL OF ANY AVIATION, MASS TRANSIT OR MEDICAL APPLICATION OR ANY OTHER INHERENTLY DANGEROUS APPLICATION THAT COULD RESULT IN DEATH, PERSONAL INJURY, CATASTROPHIC DAMAGE OR MASS DESTRUCTION; OR (B) THE DESIGN, CONSTRUCTION, OPERATION OR MAINTENANCE OF ANY NUCLEAR FACILITY, AND LICENSEE AGREES THAT ACTIVE VOICE SHALL HAVE NO LIABILITY OF ANY NATURE AS A RESULT OF ANY SUCH USE.

6. LIMITATION OF LIABILITY: IN ANY EVENT, ACTIVE VOICE AND ITS SUPPLIERS SHALL NOT BE LIABLE TO LICENSEE, WHETHER IN CONTRACT, TORT OR OTHERWISE, FOR ANY INDIRECT, EXEMPLARY, SPECIAL, CONSEQUENTIAL OR INCIDENTAL DAMAGES OF ANY KIND (INCLUDING WITHOUT LIMITATION LOSS OF DATA, EQUIPMENT DOWNTIME OR LOST PROFITS), EVEN IF ACTIVE VOICE HAS BEEN ADVISED OF THE LIKELIHOOD OF SUCH DAMAGES. IN ANY EVENT, ACTIVE VOICE'S AGGREGATE LIABILITY IN CONNECTION WITH THIS EULA AND THE SOFTWARE, WHETHER IN CONTRACT, TORT OR OTHERWISE, SHALL NOT EXCEED THE AMOUNT PAID BY LICENSEE TO ACTIVE VOICE OR ITS AUTHORIZED RESELLER FOR THE SOFTWARE. LICENSEE ACKNOWLEDGES THAT THE LICENSE FEES REFLECT THE ALLOCATION OF RISK SET FORTH IN THIS EULA AND THAT ACTIVE VOICE WOULD NOT ENTER INTO THIS EULA WITHOUT SUCH LIMITATIONS.

7. GOVERNMENT END-USERS: If LICENSEE is a branch or agency of the United States Government, the following provision applies: The SOFTWARE is comprised of "commercial computer software" and "commercial computer software documentation" as such terms are used in 48 C.F.R. 12.212 (SEPT 1995) and is provided to the Government (i) for acquisition by or on behalf of civilian agencies, consistent with the policy set forth in 48 C.F.R. 12.212 or other of such department's or agency's regulations or rules which provide Active Voice equivalent or greater protection than the above-cited clause; or (ii) for acquisition by or on behalf of units of the Department of Defense, consistent with the policies set forth in 48 C.F.R. 227-7202-1 (JUN 1995) and 227.7202-3 (JUN 1995) or other of such department's regulations or rules which provide Active Voice equivalent or greater protection than the above-cited clause.

8. EXPORT CONTROL: To the extent that the SOFTWARE is subject to the export control laws of the United States or any other jurisdiction, LICENSEE may not export or re-export the SOFTWARE without the appropriate United States and foreign government licenses. LICENSEE shall otherwise comply with all applicable import and export control laws and regulations and shall defend, indemnify and hold Active Voice and all Active Voice suppliers harmless from any claims arising out of LICENSEE's violation of such export control laws.

9. GENERAL: This EULA shall for all purposes be governed by and interpreted in accordance with the laws of the State of Washington, U.S.A., as such laws apply to contracts entered into in Washington, between Washington residents, for performance therein. The United Nations Convention on Contracts for the International Sale of Goods specifically does not apply. Except for any action or proceeding brought by Active Voice involving injunctive relief, any action or proceeding arising from or relating to this EULA must be brought in courts located in King County, Washington, and LICENSEE irrevocably submits to the sole and exclusive jurisdiction of and venue in such court. If any provision of this EULA is held by a court of competent jurisdiction to be unenforceable for any reason, the remaining provisions hereof shall be unaffected and remain in full force and effect. All waivers must be in writing. Any waiver or failure to enforce any provision of this EULA on one occasion will not be deemed a waiver of any other provision or of such provision on any other occasion. In the event of termination of this EULA, Sections 1, 3,4,4 5, 67, 8, and 9shall perpetually survive. This EULA is the final, complete and exclusive EULA between the parties relating to the subject matter hereof, and supersedes all prior and contemporaneous understandings and agreements relating to such subject matter, whether oral or written. Should LICENSEE have any questions regarding this EULA, or if LICENSEE desires to contact Active Voice for any reason, please write to: Active Voice, LLC, 2033 Sixth Avenue, Suite 500, Seattle, WA 98121.