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Carrier Access Software License Agreement

CARRIER ACCESS CORPORATION
5395 Pearl Parkway, Boulder; Colorado 80301 (303) 442-5455

PLEASE CAREFULLY READ THE FOLLOWING TERMS AND CONDITIONS BEFORE USING THE SOFTWARE. OPENING THIS PACKAGE AND INSTALLING, COPYING OR OTHERWISE USING THIS SOFTWARE INDICATES THAT YOU HAVE ACCEPTED THESE TERMS AND CONDITIONS AND AGREE TO BE BOUND BY THEM AND THE TERMS OF THRID PARTY LICENSORS OF SOFTWARE CONTAINED THEREIN.

CARRIER ACCESS CORPORATION provides this Software and licenses its use to you, the LICENSEE, pursuant to the following terms. (From this point on, references to "LICENSEE" mean the entity that has accepted the terms and conditions of this License by having opened this package and installing, accessing or using the software in any manner. References to “LICENSOR” means "CARRIER ACCESS CORPORATION". References to the "Software" mean all of the contents of the files, disks, CD-ROMs or other media with which this Agreement is provided). LICENSEE assumes responsibility for the selection of the Software to achieve LICENSEE’s intended results. LICENSEE is responsible for the installation, use, and results obtained from the Software.

LICENSE. Subject to the terms of this Agreement, LICENSEE desires to license from LICENSOR and LICENSOR desires to license to LICENSEE the Software which is an integral element of the communication and equipment package marketed by LICENSOR.

LICENSOR grants to LICENSEE a limited non-exclusive, non-transferable, revocable, personal license to install and use the accessed Software only on the LICENSOR equipment for which this Software is supplied and only on the number of units agreed to in the sales or purchase order under which the Software was purchased. The Software is licensed as a single product, and LICENSEE may not transfer the Software from one unit to another even though the Software is used on only one unit at a time. LICENSEE may not provide copies of the Software to any third party, nor is LICENSEE permitted to lease, rent, distribute or sublicense the Software, in whole or in part. The Software is copyrighted and LICENSEE may make one copy of the Software solely for backup purposes. LICENSEE may not modify the Software.

LICENSEE agrees that it will not attempt to alter, disassemble, decrypt or reverse engineer the Software, or otherwise create any translations or derivative works therefrom. LICENSEE may not allow access to or use of the Software by anyone other than its employees or agents and such use must be consistent and in accordance with the terms, conditions and restrictions set forth herein. LICENSEE will not make, or have made, or permit to be made, any copies of the Software or portions thereof, except as necessary for its use with the number of units previously agreed upon in the sales or purchase order under which the Software was purchased. LICENSEE agrees that any such copies of the Software will contain the same proprietary notices which appear on or in the Software.

The Software licensed hereunder may contain materials and/or licenses of third party licensors. LICENSEE’s use of the License granted herein is subject to restrictions and terms of such third party licensors.

In no event is any license or right granted in the source code of the Software.

TITLE AND RISK. Title to the Software, including the ownership of all copyrights, mask work rights, patents, trademarks, trade secrets, and all other intellectual property rights subsisting in the Software, Documentation, Enhancements, adaptations, and to any modifications thereto shall at all times remain with LICENSOR. The Software is protected by copyright laws and international copyright treaties, as well as other intellectual property laws and treaties. The Software is licensed (not sold) to Licensee, and its use is subject to the terms of this Agreement. This is NOT a sale contract.

Licensee shall make no claim of any ownership, interest in the intellectual property rights, including without limitation copyright and patents, in the Software, Enhancements, and any adaptations, developments, or modifications thereof.

LICENSEE acknowledges that the laws and regulations of the United States restrict the export and re-export of commodities and technical data of United States origin, including the Software. Licensee agrees to strictly comply with all such laws and regulations and acknowledges that it has the responsibility to obtain such licenses to export, re-export, or import as may be required. LICENSEE agrees that it will not export or re-export the LICENSEE in any form (a) into (or to a national or resident of) any country to which the U.S. has embargoed goods, to anyone on the U.S. Treasury Department's list of Specially Designated Nationals or the U.S. Commerce Department's Table of Denial Orders, or (b) without the appropriate United States and foreign government licenses. By downloading or using the Software, LICENSEE agrees to the foregoing and represents and warrants that it is not located in, under the control of, or a national or resident of any such country or on any such list. LICENSEE agrees that its obligations pursuant to this section shall survive and continue after any termination or expiration of rights under this License.

COPYRIGHT. The Software is protected by United States Copyright Law and International Treaty. UNAUTHORIZED REPRODUCTION OR DISTRIBUTION IS SUBJECT TO CIVIL AND CRIMINAL PENALTIES. The Software and Equipment are copyrighted by Carrier Access and except as permitted by this license, LICENSEE may not duplicate the Software or disclose it to any other party.

RESERVATION. LICENSOR reserves all rights in the Software not expressly granted to LICENSEE in this Agreement.

CONFIDENTIALITY. The Software contains valuable proprietary information and trade secrets of LICENSOR and its suppliers that is copyrighted by and remains the property of LICENSOR and LICENSEE shall protect the confidentiality of, and avoid disclosure and unauthorized use of, the Software.

TERM. This License is effective until terminated. LICENSEE may terminate it voluntarily at any time. LICENSOR or LICENSOR’s licensors or suppliers of the Software may terminate this License without notice upon LICENSEE’s failure to abide by this License. This termination shall not prevent LICENSOR from claiming any further damages. If LICENSEE does not comply with any of these terms, this license will immediately terminate and LICENSEE will be liable to LICENSOR for damages or losses caused by the non-compliance. The waiver by LICENSOR of a specific breach or default shall not constitute the waiver of any subsequent breach or default. Upon termination, unless otherwise requested by LICENSOR in writing, LICENSEE must promptly destroy the Software and all copies thereof.

DISCLAIMER. THE SOFTWARE IS DISTRIBUTED AND LICENSED "AS IS." ALL WARRANTIES, EITHER EXPRESS OR IMPLIED, ARE EXPRESSLY DISCLAIMED AS TO THE SOFTWARE AND ITS QUALITY, PERFORMANCE, OR FITNESS FOR ANY PARTICULAR PURPOSE. LICENSEE BEARS THE ENTIRE RISK RELATING TO THE SOFTWARE, INCLUDING ITS QUALITY AND IF THE SOFTWARE PROVES TO HAVE ANY DEFECTS, LICENSEE ASSUMES THE COST OF ANY NECESSARY SERVICING OR REPAIRS.

LICENSOR MAKES NO OTHER WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, ANY WARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE TITLE, AND NON-INFRINGEMENT OF THIRD PARTY RIGHTS.

Some countries, states, or provinces do not allow the exclusion or limitation of implied warranties or the limitation of incidental or consequential damages for certain products supplied to consumers, or the limitation of liability for personal injury, so the limitations and exclusions contained herein may be limited in their application to Licensee. When the implied warranties are not allowed to be excluded in their entirety, they will be limited to the duration of the applicable written warranty.

LIMITATION OF LIABILITY. LICENSEE’S USE OF THE SOFTWARE IS AT LICENSEE’S SOLE RISK. LICENSOR'S SOLE OBLIGATION TO LICENSEE SHALL BE THE REPAIR OR REPLACEMENT OF NONCONFORMING SOFTWARE. NONCONFORMANCE SHALL BE DEFINED AS A FAILURE TO MEET THE PUBLISHED SPECIFICATIONS PROVIDED BY LICENSOR FOR THE OPERATION OF THE EQUIPMENT WITH WHICH THE Software OPERATES WITHIN NINETY (90) DAYS FROM RECEIPT BY LICENSEE OF THE SOFTWARE. LICENSOR’S AND ITS LICENSORS’ ENTIRE LIABILITY AND LICENSEE’S EXCLUSIVE REMEDY WILL BE REPLACEMENT OF THE DEFECTIVE FILE(S) CONVEYING THIS SOFTWARE, AFTER NOTIFICATION OF LICENSOR WITH PROOF OF PURCHASE OR DELIVERY AND PROVIDED THAT SUCH NOTICE IS MADE WITHIN NINETY (90) DAYS OF RECIPT OF THE SOFTWARE BY LICENSEE. LICENSOR WILL HAVE NO RESPONSIBILITY TO REPLACE FILE(S) DAMAGED BY ACCIDENT, IMPROPER INSTALLATION, ABUSE, MISAPPLICATION, OR OTHER CAUSE BEYOND ITS INTENDED USE. LICENSOR’S SOLE OBLIGATION WITH RESPECT TO ANY NONCONFORMING REPLACEMENT SOFTWARE PROVIDED HEREUNDER IS THE REPLACEMENT THEREOF AND ONLY IF SUCH NONCONFORMING REPLACEMENT SOFTWARE IS RETURNED TO LICENSOR WITHIN THIRTY (30) DAYS OF RECEIPT THEREOF BY LICENSEE.

IN NO EVENT SHALL LICENSOR OR LICENSOR’S LICENSORS BE RESPONSIBLE FOR ANY INDIRECT, EXEMPLARY, SPECIAL, INCIDENTAL OR CONSEQUENTIAL DAMAGES INCLUDING WITHOUT LIMITATION ANY LOST DATA, LOST PROFITS, AND COSTS OF PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES, DAMAGE TO COMPUTER SYSTEMS, ARISING FROM OR RELATING TO THESE LICENSE TERMS OR USE OF THE Software, HOWEVER CAUSED AND UNDER ANY THEORY OF LIABILITY (INCLUDING NEGLIGENCE, CONTRACT AND TORT), EVEN IF LICENSOR HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.

THE AGGREGATE LIABILITY OF LICENSOR TO LICENSEE IN RESPECT OF ANY AND ALL CAUSES OF ACTION AT ANY TIME OR TIMES ARISING OUT OF THIS LICENSE, INCLUDING WITHOUT LIMITATION ANY BREACH OF WARRANTY, SHALL NOT EXCEED AN AMOUNT EQUAL TO THE Software LICENSE OR PURCHASE FEE PAID BY LICENSEE FOR THE Software OR U.S. $5.00, WHICHEVER IS LESS.

INDEMNITY. LICENSEE agrees to indemnify and hold LICENSOR, and its subsidiaries, affiliates, officers, agents, customers, licensors, or other partners, and employees, harmless from any claim or demand, including reasonable attorneys' fees, made by any third party due to or arising out of your use of the Software, or your violation of the Terms.

U. S. GOVERNMENT END USERS. The Software is a “commercial item” as that term is defined at FAR 2.101 (Oct. 1995), consisting 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 U.S. Government only as a commercial end item. Consistent with FAR. 12.212 and DFARS 227.7202 (June 1995), all U.S. Government End Users acquire the Software with only those rights set forth herein.

JURISDICTION AND VENUE. This License shall be construed and interpreted according to the laws of the state of Colorado. Any action or proceeding arising from or relating to these License Terms shall be brought solely in the state and federal courts in Boulder, Colorado, and each party irrevocably submits to the jurisdiction and venue of any such court in any such action or proceeding.

GENERAL. If any provision of this Agreement is held to be unenforceable, that provision will be removed and the remaining provisions will remain in full force. This Agreement is the complete and exclusive statement of the agreement between us that supersedes any proposal or prior agreement, oral or written, and any other communications between us in relation to the subject matter of this Agreement.

WARRANTY PRODUCT RETURNS. Before returning any equipment to Carrier Access, first contact the distributor or dealer from which you purchased the product. A Return Material Authorization (RMA) number is required for all equipment returned to Carrier Access. Call Carrier Access Customer Support at (800) 786-9929 for RMA number, repair/warranty information and shipping instructions. Be prepared to provide the following information:

  • Carrier Access serial number(s) from the system chassis or circuit card(s)
  • Name of the distributor or dealer from which you purchased the product
  • Description of defect