Software Terms

These Additional Software Terms (“Terms”) are a part of the agreement pursuant to which customers of Peak 10, Inc. (“Peak 10”) receive Services (the “Agreement”). These Terms concern the use of various software products/services provided Customers by Peak 10 as described below. Please note that not all terms and conditions in these Terms may apply to you or the Services you are receiving. Please consult your MS A and/or your account manager.

I. General Definitions.

a. “Customer” or “you” means an entity receiving Services from Peak 10 pursuant to an Agreement. b. “Documentation” means technical documentation and operating instructions made available to Customer related to Software. c. “Services” means the services you receive from Peak 10. d. “Software” means any third party software services/products provided to you via Peak 10 for your use in connection with the Services.

II. General Terms.

a. Customer will not: (i) except as may be permitted with any Documentation provided by Peak 10, copy or sublicense any Software; (ii) remove, modify or obscure any copyright, trademark or other proprietary notices; and (iii) reverse engineer, decompile, disassemble, modify, adapt or create derivative works from, Software. Customer will comply with any Documentation provided by Peak 10. b. Upon the expiration or termination of the Agreement or upon the modification of Services providing the Software is no longer to be used by you, you will delete and destroy any software, including, without limitation, activation and serial numbers, documentation and all copies of such Software and you will make no further use of, or allow further use of, the Software. c. No ownership rights, including any intellectual property rights, in any Software are transferred to you.

III. Microsoft Terms.

To the extent you receive Microsoft software, which includes computer software provided to you by Peak 10 as described below, and may include associated media, printed materials, and “online” or electronic documentation (individually and collectively “Products”) these additional Microsoft Terms apply. Peak 10 does not own the Products and the use thereof is subject to certain rights and limitations which Peak 10 needs to inform you. Your right to use the Products is subject to the Agreement, and to your understanding of, compliance with and consent to the following terms and conditions, which Peak 10 does not have the authority to vary, alter or amend.
a. Definitions
“Client Software” means software that allows a Device to access or utilize the services or functionality provided by the Server Software.
“Device” means each of a computer, workstation, terminal, handheld PC, pager, telephone, personal digital assistant, “smart phone,” or other electronic device.
“Server Software” means software that provides services or functionality on a computer acting as a server.
“Software Documentation” means any end user document included with server software.
“Redistribution Software” the software described in Paragraph IIId (Use of Redistribution Software”) below.
b. Ownership of Products. The Products are licensed to Peak 10 from an affiliate of the Microsoft Corporation (“Microsoft”). All title and intellectual property rights in and to the Products (and the constituent elements thereof, including but not limited to images, photographs, animations, video, audio, music, text and “applets” incorporated into the Products) are owned by Microsoft or its suppliers. The Licensed Products are protected by copyright laws and international copyright treaties, as well as other intellectual property laws and treaties. Your possession, access, or use of the Products does not transfer any ownership of the Products or any intellectual property rights to you.
c. Use of Client Software. You may use the Client Software installed on your Devices by Peak 10 only in accordance with the instructions, and only in connection with the services, provided to you by Peak 10.
d. Use of Redistribution Software. In connection with the services provided to you by Peak 10, you may have access to certain “sample,” “redistributable” and/or software development (“SDK”) software code and tools (individually and collectively called “Redistribution Software”). YOU MAY NOT USE, MODIFY, COPY, AND/ OR DISTRIBUTE ANY REDISTRIBUTION SOFTWARE UNLESS YOU EXPRESSLY AGREE TO AND COMPLY WITH SERVICES PROVIDER USE RIGHTS (“SPUR”) APPLICABLE TO PEAK 10, WHICH TERMS MUST BE PROVIDED TO YOU BY PEAK 10. Microsoft does not permit you to use any Redistribution Software unless you expressly agree to and comply with such additional terms, as provided to you by Peak 10.
e. Copies. You may not make any copies of the Products; provided, however, that you may (a) make one (1) copy of Client Software on your device as expressly authorized by Peak 10; and (b) you may make copies of certain Redistribution Software in accordance with Paragraph 4 (Use of Redistribution Software). You must erase or destroy all such Client Software and/or Redistribution Software upon termination or cancellation of your agreement with Peak 10 or upon transfer of your Device to another person or entity, whichever occurs first. You may not copy any printed materials accompanying the Products.
f. Limitations on Reverse Engineering, Decompilation and Disassembly. You may not reverse, engineer, decompile, or disassemble the Products, except and only to the extent that applicable by law, notwithstanding this limitation expressly permits such activity.
g. No Rental. You may not rent, lease, lend, pledge or directly or indirectly transfer or distribute the Products to any third party, and may not permit any third party to have access to and/or se the functionality of the Products except in the form of software services in accordance with the terms of this agreement and any agreement between you and Peak 10.
h. Termination. Without prejudice to any other rights, Peak 10 may terminate your rights to use the Products if you fail to comply with these terms and conditions. In the event of termination or cancellation, you must stop using and/or accessing the Products, and destroy all copies of the Products and all of its component parts.
i. No Warranties, Liabilities or Remedies by Microsoft. ANY WARRANTIES, LIABILITY FOR DAMAGES AND REMEDIES, IF ANY, ARE PROVIDED SOLELY BY PEAK 10 AND NOT BY MICROSOFT OR ITS AFFILIATES OR SUBSIDIARIES.
j. Product Support. Any product support for the Products is provided to you by Peak 10 and is not provided by Microsoft or its affiliates or subsidiaries.
k. Not Fault Tolerant. THE PRODUCTS MAY CONTAIN TECHNOLOGY THAT IS NOT FAULT TOLERANT AND ARE NOT DESIGNED, MANUFACTURED, OR INTENDED FOR USE IN ENVIRONMENTS OR APPLICATIONS IN WHICH THE FAILURE OF THE PRODUCTS COULD LEAD TO DEATH, PERSONAL INJURY, OR SEVER PHYSICAL, PROPERTY OR ENVIRONMENTAL DAMAGE.
l. Export Restrictions. The Products are of U.S. origin for purposes of U.S. export control laws. You agree to comply with all applicable international and national laws that apply to the Products, including the U.S. Export Administration Regulations, as well as end- user, end-use and destination restrictions issued by U.S. and other governments. For additional information see http://www.microsoft.com/exporting/.
m. Liability for Breach. In addition to any liability you may have to Peak 10, you agree that you will also be legally responsible directly to Microsoft for any breach of these terms and conditions.