END USER LICENSE AGREEMENT

TERMS AND CONDITIONS

ALL T-Metrics Inc. ("T-METRICS") SOFTWARE IS SUBJECT TO THESE TERMS AND CONDITIONS

	This sets forth the terms and conditions relating to the licensing by T-Metrics Inc. (“T-METRICS”) of the Software.  By clicking the "ACCEPT" button below or by using T-Metrics Software and any accompanying proprietary documentation, you accept the terms and conditions in the EULA. If you do not accept the terms and conditions in the EULA, you must click the "DECLINE" button, and discontinue use of the Software and any accompanying proprietary Documentation made available by T-Metrics. 

1.	“Order” means a purchase order issued by Licensee to T-METRICS or a T-METRICS authorized reseller that is accepted by T-METRICS. “Documentation” means that documentation that is generally provided to Licensee by T-METRICS with the Software, as revised by T-METRICS from time to time, and which may include end user manuals, operation instructions, installation guides, and release notes regarding the use of the Software. “Software Subscription Service Fee” means recurring maintenance fee for any generally released updates, patches, bug fixes, and support services.  "Line" means a telephone line capable of carrying no more than one phone communication at once. “Server” means a single telephony-enabled application/database server of Licensee.   "Software" means all computer programs (other than Third Party Software) specified in this Agreement, the Order, and related Documentation which T-METRICS makes generally available to similar Licensees. “Station” means a single analog, digital or IP telephone handset without a corresponding Workstation. "Third Party Software" means any software not owned by T-METRICS, even if Licensee may have acquired copies through T-METRICS.  "Workstation" means a single desktop computer of Licensee. “Hardware Key” is any hardware that will be required/purchased in order to use the software. Hardware Keys will not determine if the software can be used after the end of the Software License. Hardware Keys includes but is not limited to: T-METRICS issued hardware and HASP Keys.  “License Type” means the type of License applicable to the Software as follows:
	(a) A “Server License” comprises the right to: (i) create a single instance of a Server application/database on a T-METRICS provided Server; and (ii) use and access the Server database and software using only the number and type of authorized Workstation licenses and Port Licenses specified in the respective Order.
	(b) A “Workstation License” comprises the right to install and use the specified Client Software on the number of Workstations specified by the Order for the particular type of Software. 
	(c) A “Port License” comprises the right to connect to the Server the number of Lines specified in the respective Order. 
	(d) A “Station License” comprises the right to physically connect to the Server the number of desktop telephone devices specified in the Order.

2.	T-METRICS hereby grants Licensee a perpetual, royalty-free, non-exclusive, non-transferable license to install use and operate the Software for its internal business purposes, in executable code form only, within the country of the Licensee identified in this Agreement in accordance with (a) the License Type for which Licensee have paid T-METRICS or a T-METRICS authorized reseller the applicable fees; (b) the terms and conditions of this Agreement. The License to the Software is limited to the quantities specified in each applicable Order.

3.	Provided that Licensee pays the Software Subscription Service Fee to T-METRICS or a T-METRICS authorized reseller, T-METRICS agrees to provide Software Subscription Service to Licensee in accordance with (a) T-METRICS Documentation; (b) the terms and conditions of this Agreement. Software Subscription Service will be provided for a period of one (1) year, unless otherwise agreed to by the parties in writing, from the date of installation of the Software (the “Initial Term”), and with renewals, annually from the expiration date of the prior Software Subscription Service term.  For the Initial Term, Licensee shall be entitled to receive Software updates, patches, bug fixes, and support services T-METRICS may make generally available to its other Licensees under Software Subscription Service.   Licensee may, subject to this Agreement, renew Software Subscription Service by paying T-METRICS or a T-METRICS authorized reseller then current full Software Subscription Service Fee.  If Licensee fails to renew annual Software Subscription Service, Licensee will not be entitled to Software updates, patches, bug fixes, or support services. Since updated Software releases are cumulative, each new release is useful only if Licensee has obtained and installed all prior releases of the Software.  

4.	Licensee agrees that the Software is protected by trade secret, copyright, and other proprietary rights, and that title and ownership to the Software remains in T-METRICS.  T-METRICS reserves all rights not expressly granted herein, and the Software may not be used beyond the scope of the License expressly granted hereby. The Software shall be used only by Licensee, and the License granted hereunder does not include the right to sublicense; other than to any current or future employee of Licensee together with its agents, subcontractors and other users associated with Licensee and its affiliates who shall require access to or use the Software in connection with the business of Licensee.  Licensee shall keep the Software confidential.  Licensee may not alter, modify or adapt the Software or any part thereof. Licensee may not translate, reverse engineer, decompile, disassemble, or create derivative works of the Software or any part thereof. Licensee may not remove or modify any proprietary markings or restrictive legends placed on the Software. 

5.	T-METRICS warrants to Licensee that the Software will substantially conform to T-METRICS’ standard user documentation provided to Licensee as of the Effective Date, for the Software for a period of one (1) year after the Effective Date of this Agreement; Additional years may be obtained by the continuations of the Software Subscription Service provided by T-METRICS or a T-METRICS authorized reseller.  T-METRICS shall not be liable for Third Party Software or hardware.    T-METRICS does not warrant that use of the Software will be uninterrupted or error free, that all defects in the Software will be corrected, or that the Software is free of bugs or errors, will meet Licensee’s needs, or will operate in the combinations which may be selected by Licensee.  
LICENSEE'S EXCLUSIVE REMEDY WITH RESPECT TO BREACH OF THIS WARRANTY SHALL BE TO RECEIVE REPLACEMENT (AND ANY SUCH REPLACEMENT WILL BE SIMILAR (OR GREATER) IN FORM AND FUNCTIONALITY TO THAT WHICH WAS ORIGINALLY PURCHASED BY LICENSEE), OF NON-CONFORMING SOFTWARE WITH CONFORMING SOFTWARE. IF T-METRICS DOES NOT REPLACE THE NON-CONFORMING SOFTWARE, LICENSEE MAY TERMINATE ITS LICENSE TO THE NON-CONFORMING SOFTWARE WITHIN THE ONE (1) YEAR WARRANTY PERIOD BY RETURNING ALL COPIES OF THE NON-CONFORMING SOFTWARE, PURGING ALL COPIES THEREOF FROM LICENSEE’S COMPUTER SYSTEMS, AND SUPPLYING TO T-METRICS AN AFFIDAVIT CONFIRMING THAT THESE ACTIONS HAVE BEEN COMPLETED.  UPON SUCH TERMINATION, LICENSEE SHALL RECEIVE A PRO RATA REFUND OF THE LICENSE FEE(S) IT PAID FOR THE NON-CONFORMING SOFTWARE BASED ON A THIRTY-SIX (36) MONTH AMORTIZATION.

6.	T-METRICS shall have no liability or responsibility for problems with the Software caused by misuse, improper installation, alteration or modification by Licensee, except wherein such modifications are made at T-METRICS' direction, or for problems arising out of the malfunction of Licensee's equipment or other software not supplied by T-METRICS.  Licensee acknowledges that the Software may include features limiting its operability beyond the scope of the license, and T-METRICS shall be entitled to use self-help, including electronic means, to prevent use of the Software beyond its licensed scope.  

7.	TO THE FULLEST EXTENT ALLOWED BY LAW, AND EXCEPT FOR THE WARRANTIES EXPRESSLY STATED HEREIN, THIS SOFTWARE IS PROVIDED “AS IS”, AND T-METRICS DISCLAIMS ALL OTHER WARRANTIES, TERMS OR CONDITIONS, EXPRESS OR IMPLIED, EITHER IN FACT OR BY OPERATION OF LAW, STATUTORY OR OTHERWISE, INCLUDING WARRANTIES, TERMS OR CONDITIONS REGARDING MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND SATISFACTORY QUALITY.

8.	T-METRICS SHALL NOT BE LIABLE TO LICENSEE FOR ANY INCIDENTAL, SPECIAL, INDIRECT, CONSEQUENTIAL OR PUNITIVE DAMAGES OF ANY CHARACTER, INCLUDING WITHOUT LIMITATION, DAMAGES FOR: LOSS OF BUSINESS OR GOOD WILL, WORK STOPPAGE, LOSS OF INFORMATION OR DATA, LOSS OF REVENUE OR PROFIT, OR COMPUTER FAILURE, OR PHONE/TELECOMMUNICATIONS CHARGES RESULTING FROM UNAUTHORIZED ACCESS TO LICENSEE’S COMPUTERS, TELEPHONE EQUIPMENT OR LINES, OR OTHER FINANCIAL LOSS ARISING OUT OF OR IN CONNECTION WITH THE INSTALLATION, MAINTENANCE, USE, PERFORMANCE OR FAILURE OF THE SOFTWARE, REGARDLESS OF THE LEGAL THEORY ASSERTED, WHETHER BASED ON BREACH OF CONTRACT, BREACH OF WARRANTY, TORT (INCLUDING NEGLIGENCE), PRODUCT LIABILITY, OR OTHERWISE, AND EVEN IF T-METRICS HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES AND EVEN IF A REMEDY SET FORTH HEREIN IS FOUND TO HAVE FAILED OF ITS ESSENTIAL PURPOSE T-METRICS' LIABILITY TO LICENSEE, REGARDLESS OF THE LEGAL THEORY OF ANY CLAIM, SHALL NOT EXCEED THE LICENSE FEE(S) FOR THE SOFTWARE.

9. During the Initial Term or any renewal of Software Subscription Service, if (a) any portion of the Software is found to infringe any third party intellectual property rights, then with respect to Software for which Licensee has paid, T-METRICS will, at its expense and option: (i) obtain the right for Licensee to continue to use the Software consistent with this Agreement; (ii) modify the Software so that it is non-infringing;  (iii) replace the infringing component with a non-infringing component; or (iv) accept the return of the Software and refund a pro-rated portion of the license fee paid for the infringing Software, based on a five (5) year product life.

10.	If Licensee infringes T-METRICS' proprietary rights pertaining to the Software, and fails to cure such breach within thirty (30) days of written notice thereof, T-METRICS may terminate the License to the Software on ten (10) days written notice thereof.  Customer may terminate this Agreement at any time without cause upon thirty (30) days prior written notice to T-Metrics. Upon termination of this Agreement or a license to specific Software, Licensee may continue use of Software, but T-METRICS or its authorized Reseller will no longer be responsible for the support or bug fixes of the Software or hardware initial supplied by T-METRICS or its authorized Reseller. All obligations to keep the Software confidential and to pay amounts owing as of the termination date survive termination.  

11.	Licensee shall not assign this Agreement or any license hereunder, without the express written consent of T-METRICS. Provided, however, that Licensee may assign this Agreement and the license to the Software in conjunction with the transfer of substantially all of Licensee’s business (or assets pertaining thereto) to which this Agreement relates.  Any other attempt to sublicense, assign or transfer this Software license shall be void. 

12.	This software is Commercial Computer Software under Federal Government Acquisition Regulations and agency supplements to them.  The Software is provided to the Federal Government and its agencies only under the Restricted Rights Provision of the Federal Acquisition Regulations applicable to commercial computer software developed at private expense and not in the public domain.  The Use, Duplication or Disclosure by the government is subject to restrictions as set forth in subdivision (c)(ii) of the Rights in Technical Data and Computer Software clause at DFARS 252.227-7013 and FAR 52.227-19(c).

13.	This Agreement constitutes the entire understanding between the parties with respect to the Software.  There are no representations, promises, warranties or understandings relied upon by Licensee which is not contained herein.  This Agreement shall be governed by North Carolina law.  Any actions relating to this Agreement shall be brought and maintained only in the state of North Carolina, and Licensee consents to venue and jurisdiction therein. Licensee shall indemnify T-METRICS from any costs or damages suffered by T-METRICS as a result of a breach hereof by Licensee. In any collection action or litigation relating to this Agreement, T-METRICS shall be entitled to recover its costs of collection or litigation, including reasonable attorney fees finally awarded under a court of competent jurisdiction.

14. "Indemnification. T-METRICS shall hold Licensee free and harmless from all damages, liabilities, claims, lawsuits, judgements, obligations, costs and expenses including reasonable attorneys’ fees; arising out of any claim that the Software licensed hereunder infringe any U.S. patent, copyright, trademark, service mark, trade secret, or other intellectual property right of any third party.  Licensee shall give T-METRICS prompt written notice if it learns of any such claim, action or proceeding and will cooperate with T-METRICS to facilitate the defense, settlement and satisfaction thereof (provided that any delay in notification by Licensee will not relieve T-METRICS of its obligations hereunder except to the extent that the delay impairs its ability to defend).  T-METRICS shall be entitled to control the defense or settlement of such claim, provided that: (a) T-METRICS shall permit Licensee to participate in the defense and settlement of any such claim, at its own expense, with counsel of its choosing; and (b) T-METRICS shall not enter into or acquiesce to any settlement containing any admission of or stipulation to any guilt, fault, liability or wrongdoing on the part of Licensee or which would otherwise adversely affects Licensee without Licensee’s prior written consent, such consent not to be unreasonably withheld or delayed.  With regard to T-METRICS' indemnification obligations, the foregoing does not apply with respect to: (x) Software that is modified after delivery by Licensee unless at T-METRICS' direction; (y) Software that Licensee combines with other products, processes or materials where the alleged infringement relates solely to such combination and if such infringement would have been avoided but for the combination of such other products, processes or materials; or (z) where Licensee’s use of the Software is not strictly in accordance with this Agreement."