IMPORTANT - READ CAREFULLY 1 AGREEMENT 1.1 This Digium End-User Purchase and License Agreement (the "Agreement") is a legal agreement between Digium and the licensee and purchaser respectively (hereinafter, "you", "You" or "your") of the Digium distribution media, embedded software and related documentation (the "Software"), Digium services (the "Services"), and related manuals (collectively the "Products"). BY INSTALLING THE SOFTWARE, YOU AGREE TO AND ACCEPT THE TERMS AND CONDITIONS OF THIS AGREEMENT. If you do not accept, or are not authorized to accept the terms and conditions of this Agreement, then you should not install the Software and should remove any installed Software from your computer. 2 GRANT OF LICENSE 2.1 Subject to your compliance with its obligations herein, Digium hereby grants you a limited, non-transferable, non-exclusive, non-sublicensable license to the Software for use with Zaptel software for internal business purposes and not for resale, sublicense, or leasing to third-parties. "Software" shall include any upgrades, updates, bug fixes or modified version ("Upgrades") or backup copies of the Software supplied to you by Digium provided you hold a valid license key to the original Software and have paid any applicable fee for Upgrades. 2.2 Notwithstanding the foregoing, you acknowledge that certain components of the Software may be covered by so-called "open source" software licenses ("Open Source Components"). Digium will provide a list of Open Source Components for a particular version of the Software upon your request. To the extent required by the licenses covering Open Source Components, the terms of such licenses will apply in lieu of the terms of this Agreement, and Digium hereby represents and warrants that the licenses granted to such Open Source Components will be no less broad than the license granted in this Section 2. To the extent the terms of the licenses applicable to Open Source Components prohibit any of the restrictions in this Agreement with respect to such Open Source Component, such restrictions will not apply to such Open Source Component. 2.3 "Key" refers to the unique registration code provided by Digium to enable the Licensee to use the Software. You may use one copy of the Software registered with a registration key, provided by Digium, on a single computer owned, leased, or otherwise controlled by you at a single time. If you have multiple registration keys for the Software you may use the Software on as many computers as you have keys. The Software may not be used on or distributed to a greater number of computers than you have registration keys. 3 RESERVATION OF RIGHTS 3.1 Except for the limited license rights expressly granted in this Agreement, Digium reserves all rights in and to the Software and any modifications thereto, including title, ownership, trademark, copyright, patent, trade secret and any other rights and interests. You will own only the physical media on which the Software and associated documentation are reproduced and distributed. 4 LIMITED WARRANTY - SOFTWARE 4.1 .Digium warrants only that the media on which Digium delivers the Software will be free of physical defects for a period of ninety (90) days or will be replaced by Digium. Except as otherwise agreed by Digium in writing, the replacement Software is subject to the terms and conditions of this Agreement. If Digium determines in its sole discretion that a defect cannot be corrected, or that it is not practical to replace the Software, the price paid by the original licensee for the Software will be refunded by Digium to you and the license grant automatically terminated, in which case you will promptly return to Digium or destroy the Software and any copies in your possession. 5 WARRANTY DISCLAIMERS 5.1 The limited warranty provided by Digium does not cover (i) Products that have been subjected to misuse, tampering, modification, experimentation, alteration, negligence, faulty installation; (ii) Products with the model or serial number altered, tampered with, or removed; (iii) Initial installation, installation and removal of the Product for repair, and shipping costs; (iv) Configuration of the Product; (v) Damage that occurs in shipment due to act of God, failures due to power surges, and cosmetic damage; (vi) Any hardware, software, firmware or other materials or services provided by anyone other than Digium; or (vii) Repair by anyone other than Digium or Digium's authorized representative. Unless under a current Services contract with Digium, you shall not upgrade or update Product using software of any origin except commercial versions of the Software released to you by Digium or its authorized distributors from time to time. THE PRODUCT IS PROVIDED WITHOUT ANY IMPLIED WARRANTIES OF ANY KIND WHATSOEVER, INCLUDING, WITHOUT LIMITATION, ANY IMPLIED WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT. EXCEPT AS EXPRESSLY COVERED UNDER THE LIMITED WARRANTY PROVIDED HEREIN, THE ENTIRE RISK AS TO THE QUALITY, SELECTION AND PERFORMANCE OF THE PRODUCT IS YOURS. 6 RETURN MATERIAL AUTHORIZATION 6.1 If returning a Product under the limited warranty, you must include with the Product a written description of the physical defect or in sufficient detail to allow Digium to confirm such determination. Prior to returning a Product under limited warranty to Digium, the original purchaser must obtain a Return Material Authorization ("RMA") in accordance with the Digium policy in effect at the time as published on the Digium web site. Digium will not be obligated to accept returns of any Software that has been activated or otherwise used. 7 LIMITATION OF LIABILITY 7.1 TO THE MAXIMUM EXTENT PERMITTED BY LAW, DIGIUM IS NOT LIABLE UNDER ANY CONTRACT, NEGLIGENCE, STRICT LIABILITY OR OTHER LEGAL OR EQUITABLE THEORY FOR ANY LOSS OF USE OF THE PRODUCT, INCONVENIENCE OR INDIRECT DAMAGES OF ANY CHARACTER, WHETHER SPECIAL, INCIDENTAL OR CONSEQUENTIAL (INCLUDING, BUT NOT LIMITED TO, LOSS OF REVENUE OR PROFIT, WORK STOPPAGE, COMPUTER FAILURE OR MALFUNCTION, FAILURE OF CONNECTED EQUIPMENT OR PROGRAMS, LOSS OF INFORMATION OR DATA OR LOSS OF GOODWILL) RESULTING FROM THE USE OF THE PRODUCT, RELATING TO WARRANTY SERVICE, OR ARISING OUT OF ANY BREACH OF THIS AGREEMENT, EVEN IF DIGIUM HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THE SOLE REMEDY FOR A BREACH OF THE FOREGOING LIMITED WARRANTY IS REPAIR, REPLACEMENT OR REFUND OF THE THE MAXIMUM LIABILITY OF DIGIUM UNDER THIS DEFECTIVE PRODUCT. IN NO EVENT SHALL THE REMEDY RELATED TO THIS AGREEMENT EXCEED THE PURCHASE PRICE OF THE APPLICABLE PRODUCT. THE FOREGOING EXPRESS LIMITED WRITTEN WARRANTY AND REMEDIES ARE EXCLUSIVE AND IN LIEU OF ANY OTHER WARRANTIES OR REMEDIES, EXPRESS, IMPLIED OR STATUTORY. 8 PROPRIETARY WORKS 8.1 The Products contain trademarks, trade secrets and/or copyrighted materials of Digium or its suppliers. 8.2 You agree not to reverse engineer, decompile, or disassemble the Software, except to the extent such restriction is expressly prohibited by applicable law. You shall not disclose or make available such trade secrets or copyrighted material in any form to any third party nor remove any trademark notices, copyright notices, or licensing terms from the Software or any components therein. 8.3 You will not, without Digium written consent, use the name, trademarks, trade names or logos of Digium, or the name of any product or service of Digium, in any manner. If Digium grants you a right to use the aforementioned, you will do so only in strict compliance with Digium's usage policies. 9 TERMINATION 9.1 This Agreement shall terminate upon removal of the Products from your server and either destruction of the Products or return of the Products by you to Digium. In the event of a breach of the scope of use permitted by the grant in Section 2, or if you do not comply with other materials terms and conditions of this Agreement, Digium shall have the right to immediately terminate this Agreement, in which case you must promptly remove the Software from your servers and destroy or return all copies to Digium. Notwithstanding the foregoing, the provisions of Sections 5, 6, 7, 10, 11, 12, 13 and 14 shall survive termination of this Agreement. 10 EXPORT RESTRICTION 10.1 You acknowledge that the Software, with the possible exception of certain third-party components, is of U.S. origin. You agree to comply with applicable domestic and international laws that apply to the Software, including the U.S. Export Administration Regulations and other limitations issued by U.S. and foreign governments. 11 TRANSFER AND ASSIGNMENT 11.1 This Agreement and the rights and obligations under it are not assignable by you without the prior written approval of Digium, voluntarily or by operation of law. Any attempt by you to assign this Agreement without such approval shall be void. This Agreement shall inure to the benefit of the successors and assigns of Digium. Notwithstanding the foregoing, you may move the Software to different internal computers to the extent consistent with the scope of license you have purchased to the Software. 12 U.S. GOVERNMENT USERS 12.1 The Software and documentation qualify as "commercial items" as defined at 48 C.F.R. 2.101 and 48 C.F.R. 12.212. All Government users acquire the Software and documentation with only those rights herein that apply to non-governmental customers of Digium. 13 GOVERNING LAW AND JURISDICTION 13.1 This Agreement is to be construed in accordance with and governed by laws of the State of Alabama, excluding its conflict of law provisions. Digium and you agree to submit to the personal and exclusive jurisdiction of, and agree that venue is proper in, the Alabama State or Federal Courts located in the County of Jefferson, Alabama, for any such legal action or proceeding. The United Nations Convention on International Sale of Goods, the application of which is expressly excluded, does not govern this Agreement. 14 ENTIRE AGREEMENT 14.1 This Agreement constitutes the entire understanding between the parties relating to the subject matter hereof and supersede all prior writings, negotiations or understandings with respect thereto. The provisions of this Agreement shall take precedence over any conflicting terms in any subsequent purchase order, documentation or collateral. Any modifications to this Agreement shall be reflected in a written agreement between the parties. The parties agree that this Agreement may be executed electronically and that electronic copies of this Agreement shall be binding upon the parties.