READ THIS END USER LICENSE AGREEMENT (“AGREEMENT”) BEFORE DOWNLOADING, INSTALLING, OR USING THE SOFTWARE. BY DOWNLOADING, INSTALLING, OR USING THE SOFTWARE OR OTHERWISE EXPRESSING YOUR AGREEMENT TO THE TERMS CONTAINED HEREIN, YOU (AS CUSTOMER OR IF YOU ARE NOT THE CUSTOMER, AS A REPRESENTATIVE/AGENT AUTHORIZED TO BIND THE CUSTOMER) CONSENT TO BE BOUND BY THIS AGREEMENT. IF YOU DO NOT OR CANNOT AGREE TO THE TERMS CONTAINED HEREIN, THEN (A) DO NOT DOWNLOAD, INSTALL, OR USE THE SOFTWARE, AND (B) YOU MAY CONTACT PEPLINK PEPWAVE LIMITED. REGARDING LICENSE TERMS.
DEFINITIONS – The parties to this Agreement are Peplink Pepwave Limited and its affiliates (collectively “Peplink”), and the person or organization that originally purchased from Peplink or an authorized Peplink reseller the applicable license(s) for use of the Software (“Customer”) (collectively, the “Parties”). In this Agreement, “Software” means the program modules and features of the Peplink or Peplink-supplied software, and updates and releases of such software, for which Customer has paid the applicable license or support fees to Peplink or an authorized Peplink reseller. “Embedded Software” means Software which Peplink has embedded in the Peplink device.
GRANT OF LICENSE – Subject to payment of the applicable fees and the limitations and restrictions set forth herein, Peplink grants to Customer a non-exclusive and non-transferable license, without right to sublicense, to use the Software, in executable form only, subject to the following use restrictions:
a) Customer shall use the Embedded Software solely as embedded in, and for execution on, Peplink equipment originally purchased by Customer from Peplink or an authorized Peplink reseller.
b) Customer shall use the Software on a single hardware chassis having a single processing unit.
c) Product purchase documents, paper or electronic user documentation, and/or the particular licenses purchased by Customer may specify limits to Customer’s use of the Software. Such limits may restrict use to a maximum number of concurrent users, sessions, calls, connections, subscribers, clusters, nodes, realms, devices, links, ports or transactions, or require the purchase of separate licenses to use particular features, functionalities, services, applications, operations, or capabilities, or provide throughput, performance, configuration, bandwidth, interface, processing, temporal, or geographical limits. In addition, such limits may restrict the use of the Software to managing certain kinds of networks or require the Software to be used only in conjunction with other specific Software. Customer’s use of the Software shall be subject to all such limitations and purchase of all applicable licenses.
RESTRICTIONS & LIMITATIONS – Notwithstanding the foregoing, the license provided herein does not permit the Customer to, and Customer agrees not to and shall not: (a) modify, unbundle, reverse engineer, or create derivative works based on the Software; (b) make unauthorized copies of the Software (except as necessary for backup purposes); (c) rent, sell, assign, transfer, or grant any rights in and to any copy of the Software, in any form, to any third party; (d) remove any proprietary notices, labels, or marks on or in any copy of the Software or any product in which the Software is embedded; (e) distribute any copy of the Software to any third party, including as may be embedded in Peplink equipment sold in the secondhand market; (f) use any ‘locked’ or key-restricted feature, function, service, application, operation, or capability without first purchasing the applicable license(s) and obtaining a valid key from Peplink, even if such feature, function, service, application, operation, or capability is enabled without a key; (g) distribute any key for the Software provided by Peplink to any third party; (h) use the Software in any manner that extends or is broader than the uses purchased by Customer from Peplink or an authorized Peplink reseller; (i) use the Embedded Software on non-Peplink equipment; (j) use the Software (or make it available for use) on Peplink equipment that the Customer did not originally purchase from Peplink or an authorized Peplink reseller; (k) disclose the results of testing or benchmarking of the Software to any third party without the prior written consent of Peplink; or (l) use the Software in any manner other than as expressly provided herein.
AUDIT – Customer shall maintain accurate records as necessary to verify compliance with this Agreement. Upon request by Peplink, Customer shall furnish such records to Peplink and certify its compliance with this Agreement.
CONFIDENTIALITY – The Parties agree that aspects of the Software and associated documentation are the confidential property of Peplink. As such, Customer shall exercise all reasonable commercial efforts to maintain the Software and associated documentation in confidence, which at a minimum includes restricting access to the Software to Customer employees and contractors having a need to use the Software for Customer’s internal business purposes.
OWNERSHIP – Peplink and Peplink’s licensors, respectively, retain ownership of all right, title, and interest (including copyright) in and to the Software, associated documentation, and all copies of the Software. Nothing in this Agreement constitutes a transfer or conveyance of any right, title, or interest in the Software or associated documentation, or a sale of the Software, associated documentation, or copies of the Software.
LIMITED WARRANTY – The warranty applicable to the Software shall be as set forth in the warranty statement that accompanies the Software (the “Warranty Statement”). Nothing in this Agreement shall give rise to any obligation to support the Software. Support services may be purchased separately. Any such support shall be governed by a separate, written support services agreement.
NO OTHER WARRANTIES – PEPLINK HEREBY EXPRESSLY DISCLAIMS ALL OTHER WARRANTIES, EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION THE IMPLIED WARRANTIES OF TITLE, NON-INFRINGEMENT, FITNESS FOR A PARTICULAR PURPOSE AND MERCHANTABILITY. SOME JURISDICTIONS DO NOT ALLOW THE DISCLAIMER OF IMPLIED WARRANTIES, SO THE ABOVE DISCLAIMER MAY NOT APPLY TO YOU, IN WHICH CASE THE DURATION OF ANY SUCH IMPLIED WARRANTIES IS LIMITED TO THIRTY (30) DAYS FROM YOUR DATE OF PURCHASE. THIS WARRANTY GIVES YOU SPECIFIC LEGAL RIGHTS. YOU MAY HAVE OTHER LEGAL RIGHTS WHICH VARY FROM JURISDICTION TO JURISDICTION.
LIMITATION OF LIABILITY – TO THE MAXIMUM EXTENT PERMITTED BY LAW, PEPLINK SHALL NOT BE LIABLE FOR ANY LOST PROFITS, LOSS OF DATA, OR COSTS OR PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES, OR FOR ANY SPECIAL, INDIRECT, OR CONSEQUENTIAL DAMAGES ARISING OUT OF THIS AGREEMENT, THE SOFTWARE, OR ANY PEPLINK OR PEPLINK-SUPPLIED SOFTWARE. IN NO EVENT SHALL PEPLINK BE LIABLE FOR DAMAGES ARISING FROM UNAUTHORIZED OR IMPROPER USE OF ANY PEPLINK OR PEPLINK-SUPPLIED SOFTWARE. EXCEPT AS EXPRESSLY PROVIDED IN THE WARRANTY STATEMENT TO THE EXTENT PERMITTED BY LAW, PEPLINK DISCLAIMS ANY AND ALL WARRANTIES IN AND TO THE SOFTWARE (WHETHER EXPRESS, IMPLIED, STATUTORY, OR OTHERWISE), INCLUDING ANY IMPLIED WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR NONINFRINGEMENT. IN NO EVENT DOES PEPLINK WARRANT THAT THE SOFTWARE, OR ANY EQUIPMENT OR NETWORK RUNNING THE SOFTWARE, WILL OPERATE WITHOUT ERROR OR INTERRUPTION, OR WILL BE FREE OF VULNERABILITY TO INTRUSION OR ATTACK. In no event shall Peplink’s or its suppliers’ or licensors’ liability to Customer, whether in contract, tort (including negligence), breach of warranty, or otherwise, exceed the price paid by Customer for the Software that gave rise to the claim, or if the Software is embedded in another Peplink product, the price paid by Customer for such other product. Customer acknowledges and agrees that Peplink has set its prices and entered into this Agreement in reliance upon the disclaimers of warranty and the limitations of liability set forth herein, that the same reflect an allocation of risk between the Parties (including the risk that a contract remedy may fail of its essential purpose and cause consequential loss), and that the same form an essential basis of the bargain between the Parties.
TERMINATION – Any breach of this Agreement or failure by Customer to pay any applicable fees due shall result in automatic termination of the license granted herein. Upon such termination, Customer shall destroy or return to Peplink all copies of the Software and related documentation in Customer’s possession or control.
TAXES – All license fees for the Software are exclusive of taxes, withholdings, duties, or levies (collectively “Taxes”). Customer shall be responsible for paying Taxes arising from the purchase of the license, or importation or use of the Software.
CRITICAL APPLICATIONS – The Software is not designed for, and shall not be used in, life support systems, critical care applications, human implantations, commercial aviation, nuclear facilities, on-line control equipment in hazardous environments requiring fail-safe performance, or systems or any other applications where product failure could directly lead to physical injury to persons or loss of life or catastrophic property damage (“Critical Applications”). Peplink disclaims any and all liability for use of the Software in Critical Applications, and you agree to fully indemnify, defend and hold harmless Peplink and its suppliers from and against (i) any and all claims, demands, actions, litigation, proceedings and the like arising out of or related to use or sale of such Critical Applications (“Use Claims”), and (ii) any and all liens, liabilities, damages, costs, expenses (including reasonable attorney’s fees) and the like arising out of or related to any Use Claims.
EXPORT CONTROL – Customer agrees to comply with all applicable export laws and restrictions and regulations of any United States and any applicable foreign agency or authority, and not to export or re-export the Software or any direct product thereof in violation of any such restrictions, laws or regulations, or without all necessary approvals. Customer shall be liable for any such violations. The version of the Software supplied to Customer may contain encryption or other capabilities restricting Customer’s ability to export the Software without an export license.
GOVERNMENT END USERS – The Software is “commercial computer software” and is provided with restricted rights. Use, duplication, or disclosure by the United States government is subject to restrictions set forth in this Agreement and as provided in DFARS 227.7201 through 227.7202-4, FAR 12.212, FAR 27.405(b)(2), FAR 52.227-19, or FAR 52.227-14(ALT III) as applicable. Peplink reserves all rights not expressly granted herein.
THIRD PARTY SOFTWARE – Any licensor of Peplink whose software is embedded in the Software and any supplier of Peplink whose products or technology are embedded in (or services are accessed by) the Software shall be a third party beneficiary with respect to this Agreement, and such licensor or vendor shall have the right to enforce this Agreement in its own name as if it were Peplink. In addition, certain third party software may be provided with the Software and is subject to the accompanying license(s), if any, of its respective owner(s). To the extent portions of the Software are distributed under and subject to open source licenses obligating Peplink to make the source code for such portions publicly available (such as the GNU General Public License (“GPL”) or the GNU Library General Public License (“LGPL”)), Peplink will make such source code portions (including Peplink modifications, as appropriate) available upon request for a period of up to three years from the date of distribution. Such request can be made in writing to Peplink Pepwave Limited. You may obtain a copy of the GPL at: http://www.gnu.org/licenses/gpl.html, and a copy of the LGPL at http://www.gnu.org/licenses/lgpl.html.
GOVERNING LAW – This License shall be governed by and construed in accordance with the laws of the laws of the Hong Kong Special Administrative Region without reference to its choice of law provisions. The provisions of the U.N. Convention for the International Sale of Goods shall not apply to this Agreement. For any disputes arising under this Agreement, the Parties hereby consent to the personal and exclusive jurisdiction of, and venue in, the courts within Hong Kong Special Administrative Region. This Agreement constitutes the entire and sole agreement between Peplink and the Customer with respect to the Software, and supersedes all prior and contemporaneous agreements relating to the Software, whether oral or written (including any inconsistent terms contained in a purchase order), except that the terms of a separate written agreement executed by an authorized Peplink representative and Customer shall govern to the extent such terms are inconsistent or conflict with terms contained herein. No modification to this Agreement nor any waiver of any rights hereunder shall be effective unless expressly assented to in writing by the party to be charged. If any portion of this Agreement is held invalid, the Parties agree that such invalidity shall not affect the validity of the remainder of this Agreement. This Agreement and associated documentation has been written in the English language, and the Parties agree that the English version will govern.