TOSHIBA AMERICA INFORMATION SYSTEMS, INC.
End User License Agreement
Toshiba America Information Systems, Inc.
Telecommunication Systems Division
9740 Irvine Boulevard
Irvine, California 92618-1697
United States of America
IMPORTANT: THIS END USER LICENSE AGREEMENT ("EULA") IS A LEGAL AGREEMENT BETWEEN YOU ("YOU") AND TOSHIBA AMERICA INFORMATION SYSTEMS, INC. ("TAIS"). CAREFULLY READ THIS EULA. USE OF ANY PROPRIETARY TOSHIBA AND THIRD PARTY SOFTWARE OR ANY RELATED DOCUMENTATION PRE-INSTALLED ON, OR SHIPPED WITH, A TAIS TELECOMMUNICATION SYSTEMS PRODUCT OR OTHERWISE MADE AVAILABLE TO YOU BY TAIS IN WHATEVER FORM OR MEDIA (COLLECTIVELY, "SOFTWARE"), WILL CONSTITUTE YOUR ACCEPTANCE OF THESE TERMS. IF SEPARATE TERMS ARE PROVIDED BY THE SOFTWARE SUPPLIER, THE TERMS OF THIS EULA THAT ARE NOT INCONSISTENT WITH THOSE SEPARATE TERMS WILL CONTINUE TO BE APPLICABLE. IF YOU DO NOT AGREE WITH THE TERMS OF THIS EULA, DO NOT INSTALL, COPY, OR USE THE SOFTWARE AND PROMPTLY RETURN IT TO THE TAIS AUTHORIZED CHANNEL FROM WHICH YOU OBTAINED IT IN ACCORDANCE WITH APPLICABLE RETURN POLICIES. EXCEPT AS OTHERWISE AUTHORIZED IN WRITING BY TAIS, THIS SOFTWARE IS LICENSED FOR DISTRIBUTION THROUGH AN AUTHORIZED CHANNEL ONLY TO AN END-USER PURSUANT TO THIS EULA. "AUTHORIZED CHANNEL" MEANS TAIS OR A DEALER AUTHORIZED BY TAIS TO PROVIDE TAIS HARDWARE AND/OR SOFTWARE TO END USERS. TAIS IS WILLING TO LICENSE THIS SOFTWARE TO YOU ONLY UPON THE CONDITION THAT YOU OBTAINED THE SOFTWARE FROM AN AUTHORIZED CHANNEL AND ACCEPT ALL TERMS OF THIS EULA.
1. License Grant. The Software is not sold; it is licensed upon payment of applicable charges. TAIS grants to you a non-transferable and non-exclusive right to use with a TAIS telecommunication systems product the copy of the Software provided under this EULA that you have obtained from an Authorized Channel. With respect to third party Software, TAIS is only passing along license rights which may be granted by the owner or licensor of the Software and TAIS does not separately license these rights to you. Each copy of the Software is owned by TAIS and/or its suppliers. You agree you will not copy the Software except as necessary to use it on one TAIS system at a time at one location. Modifying, translating, renting, copying, distributing, printing, sublicensing, transferring, or assigning all or part of the Software, or any rights granted hereunder, to any other persons and removing any proprietary notices, labels or marks from the Software is strictly prohibited except as permitted by applicable law; you agree violation of such restrictions will cause irreparable harm to TAIS and provide grounds for injunctive relief, without notice, against you or any other person in possession of the Software. You and any other person whose possession of the Software violates this EULA shall promptly surrender possession of the Software to TAIS, upon demand. Furthermore, you hereby agree not to create derivative works based on the Software. TAIS reserves the right to terminate this license and to immediately repossess the Software in the event that you or any other person violates this EULA.
2. Software Support and Upgrade Service. NOTWITHSTANDING ANY OTHER PROVISION OF THIS EULA, YOU HAVE NO LICENSE OR RIGHT TO ANY SOFTWARE SUPPORT AND UPGRADE SERVICE, UNLESS YOU HOLD A VALID LICENSE TO THE ORIGINAL SOFTWARE AND HAVE PAID THE APPLICABLE FEE TO AN AUTHORIZED CHANNEL FOR THE SOFTWARE SUPPORT AND UPGRADE SERVICE. USE OF SOFTWARE SUPPORT AND UPGRADE SERVICE IS LIMITED TO TAIS TELECOMMUNICATION SYSTEMS PRODUCT SUPPLIED BY AN AUTHORIZED CHANNEL FOR WHICH YOU ARE THE ORIGINAL END USER PURCHASER OR OTHERWISE HOLD A VALID LICENSE TO USE THE SOFTWARE THAT IS BEING UPGRADED.
3. Copyright. You acknowledge that no title to the copyright or any other intellectual property rights in the Software is transferred to you. You further acknowledge that title and full ownership rights to the Software and all copies thereof will remain the exclusive property of TAIS and/or its suppliers, and you will not by this EULA acquire any rights to the Software or any copies thereof, except the license expressly set forth above. You will not remove or change any proprietary notices contained in or on the Software. The Software is protected under US patent, copyright, trade secret, and/or other proprietary laws, as well as international treaties. Any transfer, use, or copying of the Software in violation of the License Agreement constitutes copyright infringement. You are hereby on notice that any transfer, use, or copying of the Software in violation of this License Agreement constitutes a willful infringement of copyright.
4. Critical Applications. The Software is not designed or recommended for any "critical applications". "Critical applications" means life support systems, medical applications, connections to implanted medical devices, commercial transportation, nuclear facilities or systems or any other applications where product failure could lead to injury to persons or loss of life or catastrophic property damage. ACCORDINGLY, SHOULD YOU DECIDE TO USE THIS SOFTWARE FOR ANY CRITICAL APPLICATION TAIS DISCLAIMS ANY AND ALL LIABILITY ARISING OUT OF THE USE OF THE SOFTWARE IN ANY CRITICAL APPLICATION. IF YOU USE THE SOFTWARE IN A CRITICAL APPLICATION, YOU, AND NOT TAIS, ASSUME FULL RESPONSIBILITY FOR SUCH USE. Further you shall indemnify and hold TAIS harmless from any and all damages, liabilities, costs, and expenses, including reasonable attorneys' fees and amounts paid in settlement of third party or government claims, incurred by TAIS as a result of or in any way arising from such use.
5. No Reverse Engineering. You agree that you will not attempt, and if you employ employees or engage contractors, you will use your best efforts to prevent your employees and contractors from attempting to reverse compile, reverse engineer, modify, translate or disassemble the Software in whole or in part. Any failure to comply with the above or any other terms and conditions contained herein will result in the automatic termination of this license and the reversion of the rights granted hereunder back to TAIS.
6. Limited Warranty. THE HARDWARE PRODUCT LIMITED WARRANTY IS SET FORTH IN THE TAIS STANDARD LIMITED WARRANTY ASSOCIATED WITH THE HARDWARE PRODUCT, WHICH MAY BE POSTED ON THE TAIS TELECOMMUNICATION SYSTEMS DIVISION INTERNET WEBSITE. TAIS' SOLE OBLIGATIONS WITH RESPECT TO TOSHIBA SOFTWARE IS SET FORTH IN THIS EULA. UNLESS OTHERWISE STATED IN WRITING, ALL TOSHIBA AND THIRD PARTY SOFTWARE ARE PROVIDED ON AN "AS IS" BASIS WITHOUT WARRANTY OF ANY KIND BY TOSHIBA. UNLESS THIRD PARTY SOFTWARE MANUFACTURERS, SUPPLIERS OR PUBLISHERS EXPRESSLY OFFER THEIR OWN WARRANTIES IN WRITING IN CONNECTION WITH YOUR USE OF THEIR THIRD PARTY SOFTWARE, SUCH THIRD PARTY SOFTWARE IS PROVIDED ON AN "AS IS" BASIS WITHOUT WARRANTY OF ANY KIND BY THE MANUFACTURER, SUPPLIER, OR PUBLISHER OF SUCH THIRD PARTY SOFTWARE. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, TAIS AND ITS SUPPLIERS DISCLAIM ALL WARRANTIES WITH REGARD TO THE SOFTWARE, EITHER EXPRESS OR IMPLIED, OR STATUTORY, INCLUDING, BUT NOT LIMITED TO, THE WARRANTY OF NON-INFRINGEMENT OF THIRD PARTY RIGHTS, AND THE IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE. THE ENTIRE RISK AS TO THE QUALITY AND PERFORMANCE OF THE SOFTWARE IS WITH YOU. NEITHER TAIS NOR ITS SUPPLIERS WARRANT THAT THE FUNCTIONS CONTAINED IN THE SOFTWARE WILL MEET YOUR REQUIREMENTS OR THAT THE OPERATION OF THE SOFTWARE WILL BE UNINTERRUPTED OR ERROR-FREE. HOWEVER, TAIS WARRANTS THAT ANY MEDIA ON WHICH THE SOFTWARE IS FURNISHED IS FREE FROM DEFECTS IN MATERIAL AND WORKMANSHIP UNDER NORMAL USE FOR A PERIOD OF NINETY (90) DAYS FROM THE DATE OF DELIVERY TO YOU. NO ORAL OR WRITTEN INFORMATION OR ADVICE GIVEN BY TAIS OR A TAIS AUTHORIZED REPRESENTATIVE SHALL CREATE A WARRANTY OR IN ANY WAY INCREASE THE SCOPE OF THIS WARRANTY. SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF IMPLIED WARRANTIES, SO THE ABOVE EXCLUSION MAY NOT APPLY TO YOU.
7. Limitation of Liability. TAIS' AND/OR ITS SUPPLIERS' ENTIRE LIABILITY AND YOUR SOLE AND EXCLUSIVE REMEDY UNDER THIS EULA SHALL BE, AT TAIS' OPTION, REPLACEMENT OF THE MEDIA OR REFUND OF THE PRICE PAID. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT SHALL TAIS OR ITS SUPPLIERS BE LIABLE TO YOU FOR ANY CONSEQUENTIAL, SPECIAL, INCIDENTAL, OR INDIRECT DAMAGES FOR PERSONAL INJURY, LOSS OF BUSINESS PROFITS, BUSINESS INTERRUPTION, LOSS OF BUSINESS INFORMATION/DATA, OR ANY OTHER PECUNIARY LOSS OF ANY KIND ARISING OUT OF THE USE OR INABILITY TO USE THE SOFTWARE, OR OTHERWISE IN CONNECTION WITH ANY PROVISION OF THIS EULA EVEN IF TAIS OR ANY SUPPLIER HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES AND EVEN IF THE REMEDY FAILS OF ITS ESSENTIAL PURPOSE. IN NO EVENT SHALL TAIS OR ITS SUPPLIERS BE LIABLE FOR ANY CLAIM BY A THIRD PARTY.
8. State/Jurisdiction Laws. SOME STATES/JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF IMPLIED WARRANTIES OR LIMITATIONS ON HOW LONG AN IMPLIED WARRANTY MAY LAST, OR THE EXCLUSION OR LIMITATION OF INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO SUCH LIMITATIONS OR EXCLUSIONS MAY NOT APPLY TO YOU. THIS LIMITED WARRANTY GIVES YOU SPECIFIC RIGHTS AND YOU MAY ALSO HAVE OTHER RIGHTS WHICH VARY FROM STATE/JURISDICTION TO STATE/JURISDICTION.
9. Export Laws. This EULA involves products and/or technical data that may be controlled under the United States and other countries, including but not limited to United States Export Administration Regulations or any other applicable law, regulation or order ("Export Laws"). The products and/or technical data involved with this EULA may not be exported without US Department of commerce, Bureau of Export Administration authorization. Any export or re-export by you, directly or indirectly, in contravention of U.S. Export Administration Regulation is prohibited. You shall comply with all Export Laws to assure that the Software is not exported, directly or indirectly, in contravention of the Export Laws.
10. Governing Law. This EULA will be governed by the laws of the State of California, United States of America, excluding its conflict of law provisions.
11. United States Government Restricted Rights. The Software is provided with RESTRICTED RIGHTS. The Software and other materials provided hereunder constitute Commercial Computer Software and Software Documentation and Technical Data related to Commercial Items. Use, duplication, or disclosure by the United States Government, its agencies and/or instrumentalities is subject to restrictions of this Agreement pursuant to FAR 12.211, FAR 12.212(a), DFARS 227.7202-1, DFARS 227.7202-3(a), and DFARS 252.227.7014(a)(1) as applicable. Without limiting the foregoing, use, duplication, or disclosure by the United States Government, its agencies and/or instrumentalities is subject to restrictions as set forth in subparagraph (c)(1)(ii) of The Rights in Technical Data and Computer Software Clause at DFARS 252.227-7013 (October 1988) or subparagraphs (c)(1) and (2) of the Commercial Computer Software - Restricted Rights at 48 CFR 52.227-19, FAR 52.227-19(b)(1) and (2) (DEC 2007), FAR 52.227-14 (DEC 2007) including Alt. III, FAR 52.227-20, and DFARS 252.227-7015 as applicable.
12. Severability. If any provision of this EULA shall be held to be invalid, illegal or unenforceable, the validity, legality and enforceability of the remaining provisions hereof shall not in any way be affected or impaired.
13. No Waiver. No waiver of any breach of any provision of this EULA shall constitute a waiver of any prior, concurrent or subsequent breach of the same or any other provisions hereof, and no waiver shall be effective unless made in writing and signed by an authorized representative of the waiving party. To the extent the terms of any TAIS policies or programs for support services conflict with the terms of this EULA, the terms of this EULA shall control.
14. Supplier Software. The Software may include certain software provided by TAIS suppliers. In such event, you agree that such supplier may be designated by TAIS as a third party beneficiary of TAIS with rights to enforce the Agreement with respect to supplier's software.
15. MIB Download Confidentiality and Non Disclosure. Upon downloading any MIB technical information and data (collectively, "MIB"), you agree that the MIB is for limited use, only for implementation and use in connection with IPedge or CIX Strata. It may not be sold, shared, or distributed by you, except by your own employees, consultants or third party developer(s) bound by the terms and conditions of this Agreement, who have a reasonable need to know said information. The MIB is considered proprietary and confidential information of TAIS and no rights, title or interest are being transferred hereunder. When the purpose in which the MIB was intended is no longer valid, the information shall be destroyed or returned to TAIS. Any unauthorized distribution, posting, sharing, or publishing of the MIB is strictly prohibited. The obligation to maintain confidentiality of information received hereunder, including code or MIB, will survive the expiration or termination of this agreement by seven (7) years, or three (3) years from the date of the end of production of the product (including succession products), whichever is longer.
16. Open Source Software. The Software may contain software files that are subject to certain open source license agreements. The open source software files and additional terms and conditions may be included in the TAIS Telecommunication Systems Division product general description, Internet website or electronically within the product. The open source software files are provided "AS IS" to the maximum extent permitted by applicable law. Please read the open source and third party software terms and conditions carefully for relevant copyright and licensing terms.
YOU ACKNOWLEDGE THAT YOU HAVE READ THIS EULA AND THAT YOU UNDERSTAND ITS PROVISIONS. YOU AGREE TO BE BOUND BY ITS TERMS AND CONDITIONS. YOU FURTHER AGREE THAT THIS EULA CONTAINS THE COMPLETE AND EXCLUSIVE AGREEMENT BETWEEN YOU AND TAIS AND SUPERSEDES ANY PROPOSAL OR PRIOR AGREEMENT, ORAL OR WRITTEN, OR ANY OTHER COMMUNICATION RELATING TO THE SUBJECT MATTER OF THIS EULA.
Copyright© 2007-2011 Toshiba America Information Systems, Inc. All Rights Reserved.