Calabrio End User License Agreement

This End User License Agreement (the “Agreement”) is made by and between the person or company using the Software described herein (“You,” “you” or “your”) and Calabrio, Inc. (“Calabrio”) and governs your use of Calabrio software (including any upgrades, modified versions, updates, additions and copies thereof) (“Software”) and any related explanatory materials, program documentation, user manuals, price lists, handbooks and other materials describing the use, design, installation, operation, and maintenance of the Software (“Documentation”). Your use or continued use of the Software indicates your acceptance of the terms and conditions contained in this Agreement. If you do not agree to this Agreement, you shall cease use of the Software.

LICENSE GRANT

Subject to the terms and conditions of this Agreement (including the conditions set forth in the “Restrictions” section below), Calabrio hereby grants you a limited, non-exclusive, perpetual, transferable, and assignable license to use the Software in object code or other machine readable executable format and the Documentation during the Term.  The Software and the Documentation may only be used or accessed in connection with the number of different physical devices for which you are licensed as set forth on a separate written agreement or purchase order and you agree that you will not exceed such use.  You may copy the Software and the Documentation for back-up and archival purposes, provided that any copy contains all of the original Software’s proprietary notices, the original and each copy remain in your possession, that your installation and use of the Software and Documentation does not exceed your authorized use.

RESTRICTIONS

The Software and the Documentation are proprietary to Calabrio and Calabrio remains the owner of all right, title and interest in and to the Software and the Documentation, including without limitation, all intellectual property rights in and to the foregoing.

You will not and will not authorize or suffer any third party to: (i) access, view, use, copy, modify or prepare derivative works of any part of the Software or the Documentation, except as expressly authorized in this Agreement; (ii) resell, distribute, rent, lease, sublicense, lend, give, market, commercialize, assign or otherwise transfer rights or usage of all or any part of the Software or Documentation to any third party, except as expressly authorized in this Agreement; (iii) reverse engineer, translate, disassemble, decompile, disable security measures or cause or allow discovery of the source code (except to the extent that such a restriction would be a breach of applicable law) for any part of the Software or attempt to do so; (iv) remove, obscure or alter the copyright, trademark or other proprietary notices affixed to or contained in the Software or the Documentation; (v) place the Software onto a server so that it is accessible via a public network such as the Internet; or (vi) export the Software to any person or entity outside the United States in violation of applicable U.S. export laws.

The terms and conditions of this License Agreement shall apply to the initial copy of the Software as well as to any Upgrade or Update subsequently delivered to you.  You must destroy all previous copies of the Software, however duplicated or archived, within thirty (30) days of installation of the Upgrade or Update.

TRANSFERS

You may not assign or otherwise transfer this Agreement or any other rights or obligations herein without the express written consent of Calabrio, except that you may assign this Agreement to an entity purchasing all or substantially all of your assets or voting securities so long as the acquiring party has reasonably complied with all terms and conditions of this Agreement and the assigning party provides prompt written notice to Calabrio of such assignment.  This Agreement shall be binding upon and inure to the benefit of each of the parties hereto, their successors and assigns.

You may, however, transfer the Software to a different physical device within your organization, provided that you transfer this Agreement, the Software (including all copies, updates and prior versions) and the Documentation (including any archival copies) to such physical device and provided that you retain no copies, including copies stored in computer memory, on the previously licensed computer.

 LIMITED WARRANTY

Calabrio warrants that for a period of 90 of days after delivery of this copy of the Software to you: (i) the media on which this copy of the Software is provided to you will be free from defects in materials and workmanship under normal use and service; and (ii) the Software will perform in substantial accordance with the Documentation.

To make a warranty claim, you must provide Calabrio with written notice of the claim within the 90 day warranty period.  Calabrio’s entire liability and your exclusive remedy for in the event that such media is proven to be defective shall be, at Calabrio’s option, to either: (i) return the price you paid; or (ii) repair or replace the media that does not meet the foregoing warranty, provided that you return the media.  If failure of such medial or any part of the media has resulted from accident, abuse or misapplication of the Software or Documentation, then Calabrio shall have no obligation to replace the media or any such part of the media under this limited warranty.

EXCEPT AS EXPRESSLY PROVIDED IN THIS AGREEMENT, THE MEDIA, THE SOFTWARE AND THE DOCUMENTATION ARE PROVIDED “AS IS” WITHOUT REPRESENTATION OR WARRANTY OF ANY KIND WHATSOEVER.  WITHOUT LIMITING THE GENERALITY OF THE FOREGOING AND TO THE FULLEST EXTENT PERMISSIBLE UNDER APPLICABLE LAW, CALABRIO, ITS AFFILIATES AND ITS SUPPLIERS MAKE NO WARRANTIES, EXPRESS, IMPLIED, STATUTORY OR ARISING BY COURSE OF DEALING, INCLUDING IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT OR TITLE, IN CONNECTION WITH THE MEDIA, THE SOFTWARE, THE DOCUMENTATION OR ANY RELATED PRODUCTS AND SERVICES PROVIDED TO YOU HEREUNDER, AND ALL SUCH WARRANTIES ARE HEREBY DISCLAIMED.  FURTHER, CALABRIO AND ITS SUPPLIERS DO NOT AND CANNOT WARRANT THE PERFORMANCE OR RESULTS YOU MAY OBTAIN BY USING THE SOFTWARE OR THE DOCUMENTATION.  NO EMPLOYEE, AGENT, RESELLER, DEALER OR DISTRIBUTOR OF CALABRIO IS AUTHORIZED TO MODIFY THIS LIMITED WARRANTY, NOR TO MAKE ANY ADDITIONAL WARRANTIES WITH RESPECT TO THE MEDIA, THE SOFTWARE OR THE DOCUMENTATION, NOR TO MAKE ADDITIONAL REPRESENTATIONS WITH RESPECT TO THE SOFTWARE OR THE DOCUMENTATION THAT DO NOT APPEAR IN THE CALABRIO-APPROVED DOCUMENTATION.

GENERAL TERMS

IN NO EVENT WILL CALABRIO BE LIABLE FOR ANY INDIRECT, INCIDENTAL, SPECIAL, EXEMPLARY OR CONSEQUENTIAL DAMAGES (INCLUDING PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES, LOSS OF USE, LOSS OF DATA, LOST PROFITS, LOST SAVINGS OR BUSINESS INTERRUPTION) HOWEVER CAUSED AND ON ANY THEORY OF LIABILITY, WHETHER IN CONTRACT, STRICT LIABILITY OR TORT (INCLUDING NEGLIGENCE OR OTHERWISE) ARISING IN ANY WAY FROM THE USE OF OR INABILITY TO USE THIS SOFTWARE OR THE DOCUMENTATION, EVEN IF CALABRIO OR AN AUTHORIZED DEALER OR DISTRIBUTOR HAS BEEN ADVISED OF OR SHOULD HAVE KNOWN OF THE POSSIBILITY OF SUCH DAMAGE, AND WITHOUT REGARD TO THE SUCCESS OR EFFECTIVENESS OF OTHER REMEDIES.  YOU ACKNOWLEDGE THAT CALABRIO COULD NOT MAKE THE SOFTWARE AVAILABLE TO YOU ON THE TERMS SET FORTH IN THIS AGREEMENT IF CALABRIO’S LIABILITY AND THAT OF THIRD PARTIES WERE NOT LIMITED AS SET FORTH IN THIS AGREEMENT.  THE FOREGOING EXCLUSIONS SHALL NOT APPLY TO ANY LIABILITY ARISING OUT OF OR IN CONNECTION WITH ANY LIABILITY OF CALABRIO THAT CANNOT BE EXCLUDED UNDER APPLICABLE LAW.

This Agreement will be governed under the laws of the State of Minnesota, without regard to its conflicts of law provisions.  The United Nations Convention on Contracts for the International Sale of Goods will not apply to this Agreement.  This Agreement may not be amended except by a written agreement executed by you and Calabrio.  The failure of either party hereto at any time to require performance of any provision of this Agreement or to exercise any right provided for herein will not be deemed a waiver of such provision or such right.  If any provision of this Agreement is held by a court of competent jurisdiction to be contrary to law, such provision will be changed and interpreted so as to best accomplish the objectives of the original provision to the fullest extent allowed by law and the remaining provisions of this Agreement will remain in full force and effect.  As used in this Agreement, the word “or” is not exclusive and the words “including” or “include” are not limiting.  This Agreement has been written in the English language, and the parties agree that the English version will govern.