LIMITATION OF LIABILITY

SOFTWARE

2.1 The following provisions shall apply to any Software:

(i) For Software, subject to the terms and conditions of this Agreement, Tekelec grants to Company and Company accepts a temporary, limited, non-exclusive, non-transferable license to use the Software and related documentation provided by Tekelec pursuant to this Agreement solely for the Purpose.

(ii) Company acknowledges and agrees that the Software contains proprietary and confidential information of Tekelec and/or its third party suppliers, and agrees to keep such information confidential. Company shall not disclose the Software except to its employees having a need to know, and only after they have been advised of its confidential and proprietary nature and have agreed to protect same.

(iii) Company shall not, and shall prevent others from copying, translating, modifying, creating derivative works, reverse engineering, decompiling, encumbering or otherwise using the Software except as specifically authorized herein. Notwithstanding the foregoing, Company is authorized to make one copy of the Software for backup purposes only. All appropriate copyright and other proprietary notices and legends shall be placed on all Software supplied by Tekelec, and Company shall maintain and reproduce such notices on any full or partial copies.

TEKELEC OBLIGATIONS

Tekelec agrees to:

3.1 Install the Material and perform such other services as described in Exhibit B.

3.2 Provide technical support. The technical support will be available from 8:00 AM to 5:00 PM EST, Monday through Friday, excluding holidays. Tekelec shall provide such technical support via telephone or remote access unless, Tekelec, in its sole determination, deems on-site support appropriate.

COMPANY OBLIGATIONS

Company agrees to:

4.1 Prepare the loan site in accordance with the requirements specified by Tekelec.

4.2 Purchase the supporting equipment identified as “customer purchased” in Part 2 of Exhibit A and have such supporting equipment available on site and in working order for the beginning of the trial..

4.3 Maintain the TekMedia equipment in accordance with Tekelec provided material.

4.4 Safeguard all Materials in the same manner in which Company safeguards its own property and equipment.

4.5 Perform certain services as described in Exhibit B and to assess the performance of the Materials based on the Test Description Document shown in Exhibit C.

LIMITATION OF LIABILITY

5.1 THE MATERIALS ARE PROVIDED TO COMPANY ON AN “AS IS” BASIS, WITHOUT REPRESENTATIONS, WARRANTIES OR CONDITIONS OF ANY KIND, EXPRESS OR IMPLIED, BY STATUTE, USAGE, CUSTOM OF THE TRADE OR OTHERWISE, INCLUDING BUT NOT LIMITED TO THOSE OF WORKMANSHIP, MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT OR DURABILITY. WITHOUT LIMITING THE GENERALITY OF THE FOREGOING, TEKELEC DOES NOT REPRESENT OR WARRANT THAT THE MATERIALS WILL MEET COMPANY’S NEEDS, THAT THE OPERATION OF THE MATERIALS WILL BE ERROR FREE, OR THAT THE MATERIALS DO NOT INFRINGE ANY RIGHTS OF THIRD PARTIES.

5.2 TEKELEC, ITS EMPLOYEES, AGENTS, OFFICERS AND DIRECTORS SHALL NOT BE LIABLE IN ANY WAY WHATSOEVER, FOR ANY INDIRECT, SPECIAL, INCIDENTAL, PUNITIVE OR CONSEQUENTIAL DAMAGES, INCLUDING BUT NOT LIMITED TO, LOST PROFITS OR BUSINESS REVENUE, LOST BUSINESS, FAILURE TO REALIZE EXPECTED SAVINGS, OR OTHER COMMERCIAL OR ECONOMIC LOSS OF ANY KIND WHATSOEVER ARISING OUT OF OR RELATED TO THE MATERIALS OR COMPANY’S USE OF THEM, WHETHER SUCH DAMAGES ARE FORESEEABLE OR TEKELEC, ITS EMPLOYEES, AGENTS, OFFICERS OR DIRECTORS HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.

TERMINATION

6.1 This Agreement, and the loan and/or license of the Materials shall immediately terminate upon the occurrence of any of the following events:

(i) the termination of the Company's requirement to use the Materials for the Purpose, unless the parties mutually agree, in writing, to extend such date;

(ii) Company breaches any material provision of this Agreement;

(iii) Company makes any assignment for the benefit of its creditors, becomes insolvent, makes a sale in bulk of its assets, commits any act of bankruptcy, ceases to do business as a going concern, or seeks any arrangement, proposal or compromise with its creditors under any statute or otherwise;

(iv) any proceeding in bankruptcy, receivership, liquidation or insolvency is commenced against Company or its property, or Company's landlord terminates its tenancy for breach of any of the covenants contained in its lease;

(v) Either party, in its sole discretion, decides to terminate this Agreement at any time (in whole or in part), upon ten (10) days written notice; or

(vi) any other events specified in Exhibit A.

6.2 On or before the end date of the loan, as identified in Exhibit A, Company will provide Tekelec with:

(i) a purchase order to purchase the Materials and such other equipment proposed in Tekelec’s Proposal GM032107-3jpm. shown in Part II of Exhibit A. Such purchase shall be pursuant to the International Distribution Agreement (No. NNC/2005/12-TKLC-DA), and this Agreement shall terminate and such purchase terms shall prevail; or

(ii) written notification of Company’s reasoning for determining not to purchase the Materials and, in such case, Company shall follow the procedures identified in Section 6.3, below.

6.3 Upon termination or expiry of this Agreement for any reason, other than as provided in Section 6.2(i) above:

(i) Company shall immediately cease using the Materials;

(ii) All Materials shall be returned, at Company’s expense, to Tekelec in the same condition as when they were provided by Tekelec, except for ordinary wear and tear and;

(iii) Company shall promptly allow Tekelec representatives access to the sites at which the Materials are installed for the purpose of deinstallation and removal. Tekelec may retrieve the Materials from Company's location, and Company shall provide access to Tekelec to retrieve such equipment during regular business hours. If Tekelec retrieves such Materials, Company shall be liable for any reasonable costs incurred by Tekelec to facilitate the return of the Materials to its premises; and

(iv) sections 1.2, 2.1, 6.2 and 7 shall survive.

MISCELLANEOUS

7.1 This Agreement constitutes the entire agreement between the parties hereto with respect to the Materials, and cancels and supersedes any prior understanding and agreements between the parties relating thereto. There are no representations, warranties, terms, conditions, undertakings or collateral agreements, express, implied, statutory or otherwise between the parties regarding the Materials, except as expressly set forth in this Agreement. This Agreement shall not be amended or modified except in writing signed by the parties hereto. No course of dealing or usage of trade by or between the parties shall be deemed to effect any such amendment or modification. The provisions of this Agreement shall be deemed severable. If any provision of this Agreement shall be held unenforceable by any court of competent jurisdiction, it shall be severed from this Agreement and the remaining provisions shall remain in full force and effect. Any consent by any party to, or waiver of, a breach by the other, whether express or implied, shall not constitute a consent to, or a waiver of any other, different or subsequent breach.

7.2 Neither Tekelec nor Company shall represent that its relationship with respect to the other party is other than as an independent company. Company may not in any way assign, convey or transfer the Materials or this Agreement, by operation of law or otherwise, and any attempt to do so shall be void. Tekelec shall have the right, at its own expense and upon reasonable written notice to Customer, to periodically inspect Company's premises and such documents as it may reasonably require, for the purpose of verifying Company's compliance with its obligations under this Agreement. Company shall be responsible for all expenses arising out of Company's use and possession of the Materials under this Agreement, including but not limited to all taxes.

7.3 This Agreement sets forth the entire agreement between the parties as to the subject matter hereof and supersedes any previous or contemporaneous understandings, commitments or agreements, oral or written, as to such subject matter, all of which are merged herein. This Agreement can only be amended by a written document executed by the parties hereto. This Agreement may not be assigned by either party. This Agreement may be signed in counterparts. This Agreement shall be governed by the laws of the State of New York.

Date: 2015-12-24; view: 762