
END USER LICENSE AGREEMENT

PLEASE READ THIS END USER LICENSE AGREEMENT ("EULA") BETWEEN YOU AND OSA TECHNOLOGIES, INC., AN AVOCENT COMPANY, CAREFULLY BEFORE USING THE SOFTWARE (DEFINED BELOW) AND DOCUMENTATION (DEFINED BELOW) THAT IS PROVIDED WITH THIS EULA. 

BY USING THE SOFTWARE OR DOCUMENTATION, YOU ACKNOWLEDGE THAT YOU HAVE READ AND UNDERSTOOD ALL THE TERMS AND CONDITIONS OF THIS AGREEMENT AND YOU WILL BE CONSENTING TO BE BOUND BY THEM.  IF YOU DO NOT ACCEPT THESE TERMS AND CONDITIONS, THEN: (1) DO NOT INSTALL THE SOFTWARE OR IF INSTALLED ALREADY, YOU MUST UNINSTALL THE SOFTWARE; AND (2) DO NOT USE THE SOFTWARE OR DOCUMENTATION.  

The license grant hereunder is conditioned upon the terms of this EULA, and OSA is not willing to enter into this EULA if you are not willing to accept these terms.

DEFINITIONS

"Documentation" means electronic or printed materials that accompany the Software to provide instructions for installation, operation, and use.
"OSA" means OSA Technologies, Inc. and its affiliates, successors and assigns.
"OSA Distributor" means any distributor that OSA authorizes to distribute the Product.
"Platform" means those supported products as specified in writing by OSA or an OSA Distributor (as applicable).  
"Product" means the Software and Documentation.
"Software" means the OSA software, in object code format, which accompanies this EULA.
"you" means the company you represent.  

INTELLECTUAL PROPERTY PROTECTION

The Product is owned by OSA, or its licensors, and is protected by United States and international copyright and other intellectual property laws and international trade provisions.  You acknowledge that the Software and Documentation contain unpublished information and embody valuable trade secrets proprietary to OSA and its licensors. You agree to hold all such information and trade secrets in confidence.  OSA and its licensors reserve all rights in the Product not expressly granted in this EULA.  This license and your right to use the Product terminate automatically if you violate any part of this EULA.  In the event of termination, you must destroy the original and all copies of the Product or return them to OSA.

GRANT OF LICENSE

Upon your acceptance of this EULA and provided you observe the terms of this EULA, OSA grants you a nontransferable, nonsublicensable, nonexclusive license to either:  (a) use the Software on the Platform to the extent specified in use rights provided to you in writing by OSA or an OSA Distributor (as applicable), OR (b) if there are no use rights specified in writing to you by OSA or an OSA Distributor (as applicable), you may use the Software on the Platform.  Customer may use the Product solely on its own private network.  No copies of the Software shall be made without OSA's written consent.

TITLE TO SOFTWARE AND RESTRICTIONS

Title to the Software (including any online user documentation, and software contained therein and all translations thereof) shall remain with OSA.  You shall not remove, alter, cover or obfuscate any copyright notices or other proprietary rights notices placed or embedded by OSA on or in any Software or Documentation.  You shall not (a) disclose the results of any benchmark tests relating to the Software or (b) announce, promote, present, display,, criticize or advertise the Software or Documentation to anyone.  You may not sublicense or otherwise distribute the Software or Documentation to any third party.  You will not sell, resell for a profit, rent, lease or lend the Software or Documentation or use it for commercial time sharing, rental or service bureau use.  You shall not, and shall not authorize any third party to, modify, alter, adapt, reverse engineer, disassemble, create derivative works of, or decompile the Software and you agree that you do not have the right to obtain or use any source code for the Software or any part of it.  The preceding sentence is limited by the following:  The parties acknowledge that, in the European Union countries, a software directive by the European Union Commission mandates that a licensee of software shall be lawfully entitled to decompile such software for the purpose of obtaining the information necessary to achieve the interoperability of an independently created computer program with other programs, provided, among other things, that such information has not previously been readily available, and such decompilation is confined to the parts of the licensed program which are necessary to achieve interoperability.  You acknowledge that OSA makes such information available to you, and that, accordingly, you shall not claim or exercise any such right of decompilation.  You agree that you will not provide access to the Software to any person for any purpose other than processing your internal data for the intended use of the Software.  

UPDATES AND UPGRADES

OSA may, from time to time in its sole discretion and without any obligation to do so, make updates and/or upgrades to the Software available via the Internet or other sources.  All such updates and upgrades shall be deemed to be included within the definition of Software and shall be subject to the terms and conditions of this EULA.  This EULA does not entitle you to any support, maintenance, assistance or the like, with respect to the Software or the Documentation.

WARRANTY

OSA warrants that on the date of delivery of the Software, the Software will substantially conform to the specifications set forth in the Documentation.  Your sole and exclusive remedy under the foregoing warranty shall be for OSA to use commercially reasonable efforts to correct any substantial non-conformity of the Software reported to OSA in writing within the warranty period. All errors shall be reported to OSA support at the following email address:  Support@OSATechnologies.com. The foregoing warranty shall not apply to any error in the Software that is caused by the use or operation of the Software other than on the Platform.  

DISCLAIMER OF OTHER WARRANTIES

OSA DISCLAIMS ALL OTHER WARRANTIES, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, INCLUDING BUT NOT LIMITED TO IMPLIED WARRANTIES OF MERCHANTABILITY, NONINFRINGEMENT, FITNESS FOR A PARTICULAR PURPOSE AND ANY WARRANTY OTHERWISE ARISING OUT OF ANY SAMPLE, SPECIFICATION OR PROPOSAL.  OSA DOES NOT GUARANTEE THAT THE SOFTWARE IS FREE OF DEFECTS, WILL RUN ERROR-FREE OR UNINTERRUPTED OR WILL MEET YOUR REQUIREMENTS OR THAT OSA WILL CORRECT ALL PROGRAM ERRORS.  SOME LAWS DO NOT ALLOW THE EXCLUSION OF IMPLIED WARRANTIES SO TO THAT EXTENT THIS LIMITATION MAY NOT APPLY TO YOU.  OSA FURTHER DISCLAIMS ANY EXPRESS OR IMPLIED WARRANTIES REGARDING LACK OF VIRUSES, ACCURACY OR COMPLETENESS OF RESPONSES, RESULTS, SATISFACTORY QUALITY, LACK OF NEGLIGENCE AND LACK OF WORKMANLIKE EFFORT.  

NO LIABILITY FOR CONSEQUENTIAL DAMAGES

IN NO EVENT WILL OSA OR ITS LICENSORS BE LIABLE FOR ANY SPECIAL, INCIDENTAL, CONSEQUENTIAL, PUNITIVE OR INDIRECT DAMAGES WHATSOEVER (INCLUDING, WITHOUT LIMITATION, DAMAGES FOR LOSS OF PROFITS, BUSINESS INTERRUPTION, LOSS OF INFORMATION, OR OTHER PECUNIARY LOSS) ARISING OUT OF THE USE OR INABILITY TO USE THE PRODUCT OR THE PERFORMANCE, INTERRUPTION OR FAILURE OF THE PRODUCT, IRRESPECTIVE OF THE CAUSE OF ACTION, EVEN IF OSA HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.  SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO TO THAT EXTENT THE ABOVE LIMITATIONS OR EXCLUSIONS MAY NOT APPLY TO YOU.  You acknowledge and agree that it is the intention of OSA to give its third party licensors and suppliers the benefit of the covenants made by you in this EULA, and you agree that the limitations of liability and disclaimers stated in this EULA also apply to OSA's licensors and suppliers as intended beneficiaries hereof.

YOU AGREE THAT IN ANY EVENT, OSA'S CUMULATIVE LIABILITY FOR ALL CLAIMS ARISING OUT OF OR IN CONNECTION WITH THIS EULA, INCLUDING, WITHOUT LIMITATION, FROM OR IN CONNECTION WITH THE LICENSE OR THE USE OR IMPROPER FUNCTIONING OF THE SOFTWARE (EACH, A "CLAIM"), WILL NOT EXCEED THE AMOUNT PAID BY YOU TO PURCHASE THE SOFTWARE.  OSA'S THIRD PARTY SUPPLIERS AND LICENSORS WILL HAVE NO LIABILITY FOR ANY CLAIMS.

YOU AGREE THAT THE ABOVE LIMITATIONS OF LIABILITY APPLY REGARDLESS OF THE BASIS ON WHICH YOU ARE ENTITLED TO CLAIM, INCLUDING BUT NOT LIMITED TO BREACH OF CONTRACT (INCLUDING, WITHOUT LIMITATION, FUNDAMENTAL BREACH) OR TORT (INCLUDING, WITHOUT LIMITATION, NEGLIGENCE, GROSS NEGLIGENCE, NEGLIGENT MISREPRESENTATION, PRODUCT LIABILITY OR OTHER FAULT OF OSA OR ITS THIRD PARTY SUPPLIERS AND LICENSORS), EVEN IF OSA OR ITS THIRD PARTY SUPPLIERS AND LICENSORS HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES AND NOTWITHSTANDING THE FAILURE OF ESSENTIAL PURPOSE OF ANY REMEDY.  YOU AGREE THAT THESE LIMITATIONS ON POTENTIAL LIABILITIES WERE AN ESSENTIAL ELEMENT IN SETTING CONSIDERATION UNDER THIS EULA.

GENERAL

This EULA constitutes the entire agreement between you and OSA and supersedes any prior agreement concerning the Product.  OSA is not bound by any provision of any purchase order, receipt, acceptance, confirmation, correspondence, or otherwise, unless OSA specifically agrees to the provision in a written, executed document.  If any provision of this EULA shall be held to be invalid, illegal or unenforceable, such provision shall be enforced to the maximum extent permitted by law and the remaining provisions shall not be affected.  This EULA is governed by the laws of the State of California without reference to conflicts of laws provisions.  You agree that all disputes arising out of or in connection with this EULA shall be subject to the exclusive jurisdiction of and venue in the federal and state courts within  Santa Clara County, California, U.S.A., and you irrevocably consent to the personal and exclusive jurisdiction and venue of these courts.  You may not assign or transfer this EULA or any rights or obligations under this EULA.  Any assignment or transfer of this EULA made in contravention of the terms hereof shall be null and void.  Subject to the foregoing, this EULA shall be binding on and inure to the benefit of the parties' respective successors and permitted assigns.  OSA may assign its rights under this EULA to its affiliates and to any successor by way of merger, acquisition, consolidation, reorganization or sale or all or substantially all of its assets which relate to this EULA, without action on your part, in which case references to OSA herein shall be deemed to refer to the assignee.  You are responsible for the payment of any taxes, including your personal property taxes, arising from this EULA or your use of the Product.

LIFE SUPPORT AND OTHER CRITICAL SYSTEMS

The Software shall not be used in connection with any system where malfunction can reasonably be expected to result in personal injury, death or damage to property, environment or business.  Without limiting the foregoing, the Software shall not be used in connection with any life support system.  You agree to hold OSA and its officers, directors, employees, affiliates and licensors harmless from any claims or losses resulting from any of the foregoing uses of the Software.  

EXPORT CONTROLS  
The Software and the underlying information and technology may not be downloaded or otherwise exported or reexported (i) into (or to a national or resident of) Cuba, Iraq, Libya, Sudan, North Korea, Iran, Syria or any other country to which the U.S. has embargoed goods; or (ii) to anyone on the U.S. Treasury Department's list of Specially Designated Nationals, Specially Designated Terrorists, Specially Designated Narcotic Traffickers or the U.S. Commerce Department's Table of Deny Orders. By downloading or using the Software, you are agreeing to the foregoing and you represent and warrant that you are not located in, under the control of, or a national or resident of any such country or on any such list.  Without limiting the generality of the foregoing, you agree that you will not export or re-export, directly or indirectly, the Software or Documentation (or any copies thereof) or any products utilizing the Software or such documentation in violation of any applicable laws or regulations.
U.S. GOVERNMENT RESTRICTED RIGHTS

The Software and Documentation are considered to be "commercial computer software" and "commercial computer software documentation," respectively, pursuant to DFAR Section 227.7202 and FAR Section 12.212, as applicable. Use, duplication, or disclosure of the Software and/or Documentation by the U.S. Government is subject to the restrictions set forth in DFAR Section 227.7202 for military agencies, and FAR Section 12.212 for civilian agencies. OSA reserves all rights not expressly granted herein.

