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are responsible for the selection of the Software and for the installation of, use of, and results
obtained from the Software.
1. Licensed Use of Software. Nortel Networks grants Customer a nonexclusive license to use a
copy of the Software on only one machine at any one time or to the extent of the activation or
authorized usage level, whichever is applicable. To the extent Software is furnished for use with
designated hardware or Customer furnished equipment (“CFE”), Customer is granted a
nonexclusive license to use Software only on such hardware or CFE, as applicable. Software
contains trade secrets and Customer agrees to treat Software as confidential information using the
same care and discretion Customer uses with its own similar information that it does not wish to
disclose, publish or disseminate. Customer will ensure that anyone who uses the Software does so
only in compliance with the terms of this Agreement. Customer shall not a) use, copy, modify,
transfer or distribute the Software except as expressly authorized; b) reverse assemble, reverse
compile, reverse engineer or otherwise translate the Software; c) create derivative works or
modifications unless expressly authorized; or d) sublicense, rent or lease the Software. Licensors of
intellectual property to Nortel Networks are beneficiaries of this provision. Upon termination or
breach of the license by Customer or in the event designated hardware or CFE is no longer in use,
Customer will promptly return the Software to Nortel Networks or certify its destruction. Nortel
Networks may audit by remote polling or other reasonable means to determine Customer’s
Software activation or usage levels. If suppliers of third party software included in Software require
Nortel Networks to include additional or different terms, Customer agrees to abide by such terms
provided by Nortel Networks with respect to such third party software.
2. Warranty. Except as may be otherwise expressly agreed to in writing between Nortel Networks
and Customer, Software is provided “AS IS” without any warranties (conditions) of any kind.
NORTEL NETWORKS DISCLAIMS ALL WARRANTIES (CONDITIONS) FOR THE
SOFTWARE, EITHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO THE
IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR
PURPOSE AND ANY WARRANTY OF NON-INFRINGEMENT. Nortel Networks is not
obligated to provide support of any kind for the Software. Some jurisdictions do not allow
exclusion of implied warranties, and, in such event, the above exclusions may not apply.
3. Limitation of Remedies. IN NO EVENT SHALL NORTEL NETWORKS OR ITS AGENTS
OR SUPPLIERS BE LIABLE FOR ANY OF THE FOLLOWING: a) DAMAGES BASED ON
ANY THIRD PARTY CLAIM; b) LOSS OF, OR DAMAGE TO, CUSTOMER’S RECORDS,
FILES OR DATA; OR c) DIRECT, INDIRECT, SPECIAL, INCIDENTAL, PUNITIVE, OR
CONSEQUENTIAL DAMAGES (INCLUDING LOST PROFITS OR SAVINGS), WHETHER IN
CONTRACT, TORT OR OTHERWISE (INCLUDING NEGLIGENCE) ARISING OUT OF
YOUR USE OF THE SOFTWARE, EVEN IF NORTEL NETWORKS, ITS AGENTS OR
SUPPLIERS HAVE BEEN ADVISED OF THEIR POSSIBILITY. The forgoing limitations of