Paradyne CPX-1000 User Manual page 4

5. Limited Warranty and Disclaimer of Warranties
The media upon which any Software is contained is warranted to be free from defects in material and workmanship
for a period of thirty (30) days from the date of delivery to Licensee (the "Warranty Period"). The entire liability of
Paradyne (and, as applicable, its licensor(s)) and Licensee's exclusive remedy for breach of the foregoing limited
warranty shall be for Paradyne to replace any defective media which is returned to Paradyne during the Warranty
Period. PARADYNE DOES NOT WARRANT THAT ANY SOFTWARE WILL OPERATE ERROR-FREE, WILL
OPERATE UNINTERRUPTED IN YOUR OPERATING ENVIRONMENT, IS COMPATIBLE WITH ANY SOFTWARE
OR HARWARE CONFIGURATION, OR IS FREE OF ERRORS OR "BUGS." EXCEPT AS PROVIDED HEREIN,
THE SOFTWARE IS PROVIDED "AS IS" AND PARADYNE MAKES NO WARRANTY, EXPRESS, IMPLIED, OR
STATUTORY, WITH RESPECT TO THE SOFTWARE AND SPECIFICALLY DISCLAIMS THE IMPLIED
WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE AND ANY WARRANTY
OF NON-INFRINGEMENT.
6. Availability of Support
No support (such as ongoing maintenance and delivery of upgrades) is provided for the Software under this
Agreement. Any support for the Software must be purchased separately.
7. Intellectual Property Indemnification
Paradyne shall defend or settle, at its own expense, any action brought against Licensee to the extent arising out of
or based on any claim alleging that the unmodified Software or any portion thereof, as used within the scope of this
Agreement, infringes or misappropriates any third-party rights in copyrights, patents, or trade secrets in the United
States. Additionally, Paradyne shall pay any damages finally awarded against Licensee and attributable to such
claim, or any costs of settlement to which Paradyne agrees; provided, that (a) Licensee gives prompt written notice
of any such claim, demand, or action to Paradyne; (b) Licensee provides Paradyne with sole control of the defense
and settlement thereof; and (c) Licensee reasonably cooperates with Paradyne in the defense or settlement
thereof. In the event that any Software is held in such suit or proceeding to infringe or misappropriate such
intellectual property right, and the use of the Software, or portion thereof, is enjoined, Paradyne shall, at its sole
option and expense (i) procure for Licensee the right to continue using the Software, or portion thereof; (ii) replace
the same with noninfringing programs of reasonably equivalent functionality; or (iii) accept return of the Software,
or portion thereof. In the event that Paradyne accepts return of the Software, or portion thereof, Licensee shall
receive a refund of that portion of any fee paid in connection with the license for such Software, or portion thereof.
Paradyne assumes no liability hereunder for claims which result from the use or combination of the Software with
other than Paradyne hardware or Paradyne-compatible IADs. THIS SECTION 7 SETS FORTH THE ENTIRE
LIABILITY AND OBLIGATION OF PARADYNE AND LICENSEE'S SOLE REMEDY FOR ANY CLAIM OF
INFRINGEMENT OR MISAPPROPRIATION OF PATENT, COPYRIGHT, TRADE SECRET OR OTHER
INTELLECTUAL PROPERTY RIGHTS.
8. Limitation of Liability
IN NO EVENT WILL PARADYNE (OR, AS APPLICABLE, ITS LICENSORS) BE LIABLE TO LICENSEE OR ANY
OTHER PARTY FOR ANY CONSEQUENTIAL, INCIDENTAL, PUNITIVE, SPECIAL OR INDIRECT DAMAGES
ARISING OUT OF THIS AGREEMENT OR THE USE OR INABILITY TO USE THE SOFTWARE, INCLUDING,
BUT NOT LIMITED TO, ANY LOST PROFITS OR COST SAVINGS, EVEN IF PARADYNE HAS BEEN ADVISED
OF THE POSSIBILITY OF SUCH DAMAGES.
IN NO EVENT SHALL THE PARADYNE LIABILITY TO LICENSEE, WHETHER BASED ON AN ACTION OR
CLAIM IN CONTRACT OR TORT (INCLUDING, WITHOUT LIMITATION, NEGLIGENCE AND, TO THE EXTENT
PERMITTED BY LAW, STRICT LIABILITY) OR OTHERWISE, ARISING OUT OF OR RELATED TO THIS
AGREEMENT EXCEED THE AGGREGATE FEES PAID BY LICENSEE FOR THE SOFTWARE AS OF THE DATE
SUCH ACTION OR CLAIM WAS FILED.
9. Transfer and Assignment
Neither the licenses granted hereunder nor this Agreement (nor any portion of the Software) may be assigned or
transferred by Licensee except in connection with the sale or transfer of the Paradyne hardware or
Paradyne-compatible IAD with which the Software is used, and then only if (a) the entire Software and all copies
thereof, and related documentation, are transferred; and (b) the transferee agrees to be bound by the terms of this
Agreement.
C
September 2002 1000-A2-GB21-00