THIS SOFTWARE LICENSE
AGREEMENT (the "Agreement") is made between the company you represent
(“User”) and TransNexus, Inc (“TransNexus”), a Delaware corporation located
at 75 5th
Street, NW; Atlanta, Georgia, 30308, USA, and establishes the terms and
conditions of User’s access to and use of the TransNexus OSPrey Peering
Server.
TransNexus OSPrey-32(TM) Server Software License Agreement
and Notices
THIS
SOFTWARE LICENSE AGREEMENT (the "Agreement") is made between the you the
individual and/or the company
you
represent ("User") and TransNexus, Inc ("TransNexus"), a Delaware
corporation located at 75 5th Street,
NW; Suite 333; Atlanta, Georgia, 30308, USA, and establishes
the terms and conditions of User's access to
and use of the TransNexus OSPrey-32TM server 32-bit Software
(the "Software"). All software in the OSPrey-32
package with a TransNexus copyright notice (including but not
limited to ospnexus, NexNUM, NumberUpdate, etc.)
are collectively referred to as the "Licensed Programs."
Other software included in the OSPrey-32
package that have copyright notice other than TransNexus are
expressly not covered by this license, and
are covered by their own license agreement.
BY USING THIS SOFTWARE, USER REPRESENTS
THAT USER HAS READ AND UNDERSTANDS THIS AGREEMENT, AND THAT USER
EXPRESSLY AGREES TO AND CONSENTS TO BE BOUND BY ALL OF THE TERMS OF THIS
AGREEMENT. IF USER DOES NOT AGREE TO BE BOUND BY THE TERMS OF THIS
AGREEMENT, USER MUST NOT INSTALL OR USE THE LICENSED PROGRAMS AND USER MUST
DELETE ANY COPIES OF THE LICENSED PROGRAMS AND DOCUMENTATION OBTAINED FROM
TRANSNEXUS OR OTHER SOURCES.
1. Grant of License. TransNexus grants User a non-exclusive,
non-transferable, revocable license to
use the Licensed Programs as provided herein. The Licensed
Programs and Documentation are protected
by copyright. User acknowledges and understands that this
Agreement does not grant User any right of
access to any other services or products of TransNexus. Any
access to and use of TransNexus services
shall be governed by terms of an applicable TransNexus User
Agreement.
2.
Restrictions. User may not reverse engineer, modify, decompile or
disassemble the object code,
or
otherwise attempt to or allow a third party to discern the source code of
the Licensed Programs.
User agrees
to notify its employees and agents who may have access to the Licensed
Programs of the
restrictions
contained in this Agreement and to ensure their compliance with these
restrictions.
OSPrey-32 is not
licensed for use with the TransNexus NexOSS product for route provisioning,
CDR
collection, reporting or rating.
3. Ownership Rights. TransNexus retains
all rights, title, and interest in and to: (i) the Licensed
Programs and Documentation including,
without limitation, all modifications thereto and copies; and
(ii) all copyrights, trademarks, service
marks, trade secrets, patents and other intellectual property
rights with respect to TransNexus, the
Licensed Programs, and the Documentation (together, "Proprietary
Rights"). User shall have no right, title,
or interest in the Licensed Programs, Documentation, or
Proprietary Rights and User waives all
rights to challenge TransNexus's ownership of all rights, title,
and interest to the Licensed Programs,
Documentation, and Proprietary Rights.
4. Warranties and Disclaimer. TRANSNEXUS
DISCLAIMS ALL WARRANTIES, EITHER EXPRESS OR IMPLIED, INCLUDING
WITHOUT LIMITATION, WARRANTIES OF MERCHANTABILITY,
NON-INFRINGEMENT, OR FITNESS FOR A PARTICULAR PURPOSE OR THAT THE LICENSED
PROGRAMS WILL MEET ALL THE REQUIREMENTS OF USER, OR THAT THE USE OF THE
LICENSED PROGRAMS WILL BE UNINTERRUPTED OR ERROR-FREE.
5. Limitation of
Liability. USER AGREES TO HOLD TRANSNEXUS, INC. HARMLESS REGARDING ANY
MATTER CONCERNING
THIS AGREEMENT OR
USE OF THE LICENSED PROGRAMS. UNDER NO CIRCUMSTANCES WILL TRANSNEXUS BE
LIABLE FOR INCIDENTAL, INDIRECT, CONSEQUENTIAL, SPECIAL, PUNITIVE, OR
EXEMPLARY DAMAGES OF ANY KIND (INCLUDING LOST REVENUES OR PROFITS, LOSS OF
BUSINESS, INTELLECTUAL PROPERTY INFRINGEMENT, SECURITY BREACH OR LOSS OF
DATA) IN ANY WAY RELATED TO THE USE OF THE LICENSED PROGRAMS OR THIS
AGREEMENT WHETHER IN CONTRACT OR IN TORT, REGARDLESS OF WHETHER TRANSNEXUS
WAS ADVISED, HAD OTHER REASON TO KNOW, OR IN FACT KNEW OF THE POSSIBILITY
THEREOF. IN NO EVENT SHALL THE LIABILITY OF TRANSNEXUS UNDER THIS AGREEMENT,
WHETHER ARISING OUT OF BREACH OF CONTRACT (INCLUDING BREACH OF WARRANTY) OR
TORT (INCLUDING NEGLIGENCE AND STRICT LIABILITY), EXCEED THE LICENSE FEES
ACTUALLY PAID TO TRANSNEXUS BY USER FOR THE LICENSED PROGRAMS. These
limitations shall apply notwithstanding any failure of essential purpose of
any remedy.
6.
Term and Termination. TransNexus may terminate this Agreement and User's
license(s) to use the
Licensed
Programs if User breaches this Agreement or a TransNexus User Agreement.
Upon expiration
or termination of
this Agreement or any license of the Licensed Programs, User shall cease all
use of the
Licensed Programs,
return to TransNexus the Licensed Programs (including without limitation all
Documentation and related materials
furnished by TransNexus to User), certify to TransNexus that it has
erased or otherwise destroyed all copies
of the Licensed Programs, and take such other actions as
TransNexus may reasonably request to
ensure that no copies of the Licensed Programs created by User exist.
7. Governing Law. This Agreement is
governed and construed under the laws of the State of Georgia,
U.S.A., excluding its conflicts of law
principles, and User further consents to jurisdiction by the state
and federal courts in the State of
Georgia. The parties specifically disclaim application of the United
Nations Convention on Contracts for the
International Sale of Goods.
8. Equitable Relief. In addition to any other remedies, in
the event of any violation or threatened
violation of this Agreement, TransNexus shall be entitled to
seek injunctive and other equitable relief
to restrain such breach by User without showing or proving
any actual damages. User hereby waives the
requirement that TransNexus post any bond in connection with
such injunction or restraining order.
9. Additional Terms. Neither this
Agreement nor any part or portion hereof may be assigned, sublicensed
or otherwise transferred by User. This Agreement shall be
binding upon and shall inure to the benefit of
User's partners, successors, and representatives. Should any
provision of this Agreement be held to be
void, invalid, unenforceable or illegal by a court of
competent jurisdiction, the validity and
enforceability of the other provisions will not be affected
thereby. Failure of a party to enforce any
provision of this Agreement does not constitute and should
not be construed as a waiver of such provision
or of the right to enforce such provision. A waiver of any
breach or covenant shall not be construed to
be a waiver of any succeeding breach or any other covenant.
All waivers must be signed by the party
waiving its rights. Nothing herein shall be construed more
strictly against or in favor of either party
on the basis of authorship. User agrees not to publish,
proclaim or make any negative comments about the
licensed programs or TransNexus, Inc.
10. Export Laws. The Licensed Programs and
the Documentation may not be exported or reexported in
violation of the U.S. Export
Administration Act and its implementing regulations.
11. Trademarks. TransNexus, OSP Nexus, OSP
Toolkit, NexOSS, OSPrey, OSPrey-32, NexTransit, LookAhead,
Nex1, SDReporter, PeeringHouse and ClearIP are trademarks of
TransNexus, Inc.
12. Patents. Features of the OSPrey-32 server are protected by the following
patents: US 6,426,955;
AU 748468;
SG 200001336-7; IL 135131; UK 1016261; US 6,665,271; US 6,205,211; US
6,751,652;
US 6,426,955; US
6,996,093; CA 2,304,214; US 7,203,956; US 7,743,263
