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Dialogic Corporation License Agreement for Use of Software
page 4
Right to Audit
If this Program is licensed for use in a Company, Your Company and You individually and collectively agree to keep all usual
and proper records and books of accounts and all usual proper entries relating to each installation of the Program during the
term of this Agreement and for a period of three (3) years thereafter. During this period, Dialogic may cause an audit to be
made of the applicable records in order to verify Your compliance with this Agreement and prompt adjustment shall be made
to compensate for any errors or omissions disclosed by such audit. Any such audit shall be conducted by an independent
certified public accountant selected by Dialogic and shall be conducted during the regular business hours at Your offices and
in such a manner as not to interfere with Your normal business activities. Any such audit shall be paid for by Dialogic unless
material discrepancies are disclosed. For such purposes, "material discrepancies" shall mean three percent (3%) or more of
the Authorized Users within the Company. If material discrepancies are disclosed,
Your Company agrees to pay Dialogic for the costs associated with the audit as well as the license fees for the additional
licensed channels or additional authorized users. In no event shall audits be made more frequently than semi-annually unless
the immediately preceding audit disclosed a material discrepancy.
Supplementary Software
Any Supplementary Software provided with the Program and/or referred to in this Agreement is provided "as is" with no
warranty of any kind.
Miscellaneous
You acknowledge that You have read this Agreement, that You understand it, and that You agree to be bound by its terms
and conditions, and You further agree that this is the complete and exclusive statement of the Agreement between the Dialogic
and You ("the Parties"), which supersedes and merges all prior proposals, understandings and all other agreements, oral and
written, between the Parties relating to the Program. You agree to indemnify and hold harmless Dialogic and its subsidiaries,
affiliates, suppliers, officers, directors and employees from and against any claim, injury, loss or expense, including reasonable
attorneys' fees, arising out of (i) Your failure to comply with the provisions of this Agreement, or (ii) any other wrongful conduct
by or on behalf of You. This Agreement applies to all updates, future releases, modifications and portions of the Program
contained in or merged into other programs. This Agreement may not be modified or altered except by written instrument
duly executed by Dialogic. No action, regardless of form, arising out of this Agreement or the use of the Program may be
brought by You more than two (2) years after the cause of action has first arisen. Except as provided herein, neither this
Agreement nor any rights granted are assignable or transferable, and any assignment or transfer will be null and void. If You
authorize any other person to copy the Program, You shall obligate that person in writing to comply with all conditions of this
Agreement. Dialogic shall have the right to collect from You its reasonable expenses incurred in enforcing this agreement,
including attorney's fees. The waiver or failure of Dialogic to exercise in any respect any right provided for herein shall not be
deemed a waiver of any further right hereunder. All rights and remedies, whether conferred hereunder or by any other
instrument or law, will be cumulative and may be exercised singularly or concurrently. Failure by either Dialogic or You to
enforce any term or condition of the Agreement will not be deemed a waiver of future enforcement of that or any other term
or conditions. The terms and conditions stated herein are declared to be severable. Should any term(s) or condition(s) of this
Agreement be held to be invalid or unenforceable the validity, construction and enforceability of the remaining terms and
conditions of this Agreement shall not be affected. It is expressly agreed that Dialogic and You are acting as independent
contractors under this Agreement. These terms and conditions will prevail notwithstanding any different, conflicting or
additional terms and conditions that may appear on any other agreement between Dialogic and You. Deviations from these
terms and conditions are not valid unless agreed to in writing in advance by an authorized representative of Dialogic. Any
notices sent to Dialogic under this Agreement must be sent by registered mail or courier to the attention of Dialogic's legal
department at the address below or such other address as may be listed on www.dialogic.com from time to time as being
Dialogic's Montreal headquarters.
U.S. Government Restricted Rights
The Program and all accompanying documentation are provided with RESTRICTED RIGHTS. Use, duplication or disclosure by
the U.S. Government is subject to restrictions as set forth in subparagraph (c)(1)(iii) of The Rights in Technical Data and
Computer Software clause at DFARS 252.227-7013 or subparagraph (c) (1) and (2) of the Commercial Computer
Software-Restricted Rights at 48 CFR52.227-19, both as applicable.
Governing Law
Any and all claims arising under this Agreement shall be construed and controlled by the laws in force in the Province of
Quebec, Canada, excluding its principles of conflict of laws and the United Nations Convention on Contracts for the Sale of
Goods. Dialogic is not obligated under any other agreements unless they are in writing and signed by an authorized
representative of Dialogic.
Contractor/ manufacturer is:
Dialogic CORPORATION.
9800 Cavendish Blvd., Montreal, Quebec, Canada H4M 2V9
This Agreement has been drafted in English at the express wish of the parties. Ce contrat a été rédigé en anglais à la demande
expresse des parties.