Evaluation Agreement

HYPERIP® EVALUATION AND END-USER LICENSE AGREEMENT

1. Product License. During the period for which the HyperIP Products are licensed, NetEx grants Licensee a non-transferable, non-exclusive license to use the HyperIP Products in object code form on the designated processor. Licensee is responsible for installation of the HyperIP Products. Licensee agrees not to copy, modify, distribute, sublicense, decompile, disassemble, or otherwise reverse engineer the HyperIP Products. Title to HyperIP Products remains with NetEx or its licensors. All proprietary legends and copyright notices on the HyperIP Products and related documentation must be retained.
   HyperIP Products are licensed on an annual basis except that licenses provided on a no-charge evaluation basis are licensed for a period of ten (10) days. Evaluation products shall be used for test and evaluation purposes only. At the end of a license term, Licensee must either pay the license fee applicable to the next annual period or terminate the license by notifying NetEx in writing. Upon termination and non-renewal of an annual or evaluation license, any HyperIP products provided on a hardware appliance must be returned to NetEx at Licensee's expense.
   IMPORTANT NOTE: HYPERIP PRODUCTS ARE ENABLED WITH A KEY THAT ALLOWS OPERATION OF THE PRODUCT FOR A DESIGNATED PERIOD OF TIME. IF A LICENSE IS TERMINATED OR APPLICABLE LICENSE FEES ARE NOT PAID IN A TIMELY MANNER, THE HYPERIP PRODUCT MUST BE REMOVED FROM THE NETWORK. OTHERWISE IT WILL CEASE OPERATION WHICH MAY INTERRUPT DATA TRANSMISSIONS.
   License charges consist of an initial license fee (ILF) for the first year's usage (initial license term) and annual renewal license fees thereafter. NetEx will invoice the ILF upon order receipt. Renewal license fees will be invoiced annually in advance. Renewal license fees may be increased at the end of any annual license term with 30 days written notice; however the adjusted charges will not exceed NetEx's list prices on the effective date of increase.
2. Warranty. HyperIP Products are warranted to function in accordance with NetEx's published specifications during the initial license term. If a HyperIP Product does not function as warranted, Licensee's sole remedy is repair (in accordance with NetEx's support specifications) or replacement by NetEx or if NetEx is unable to repair or replace, NetEx will provide a prorated refund of the ILF paid for the defective product. NetEx does not warrant uninterrupted or error-free operation of the HyperIP Product. Notwithstanding the above, evaluation products are provided "as is" without warranty of any kind.
3. Warranty Disclaimer. THE WARRANTIES IN THIS AGREEMENT ARE IN LIEU OF ALL OTHER WARRANTIES, EXPRESS OR IMPLIED, INCLUDING THE IMPLIED WARRANTIES OF FITNESS FOR A PARTICULAR PURPOSE OR MERCHANTABILITY.
4. Support Specifications. HyperIP support, if available, is included in the annual license charges. Support entitles Licensee to NetEx's reasonable efforts to correct deviations between the HyperIP Product and its documentation existing on the date of acquisition. All support services from NetEx are remotely delivered from its US facility during NetEx's normal business hours in accordance with NetEx service specification. NetEx does not provide local on-site support. If needed, Licensee will allow NetEx access to the HyperIP Products and reasonable use of its data processing and communications facilities at no charge to maintain and support the HyperIP Products. If a HyperIP hardware appliance must be returned to NetEx for repair, Licensee shall send the defective appliance to NetEx's repair facility at Licensee's expense. NetEx may terminate support by providing a 30-day advance written notice.
5. Prices and Payment. All prices are in US dollars, EXW (Ex-Works Incoterms 2000) NetEx's facility in Maple Grove, MN USA. HyperIP Products provided on a hardware platform will be shipped on a freight collect or "prepaid and add" basis. All shipping and related charges including all duties and taxes are Licensee's responsibility. Risk of loss shall pass upon delivery to the carrier.
   Payment is due within thirty days of invoice date. A finance charge for payments made after the due date will be assessed at the rate of one and one-half percent of the unpaid balance per month.
6. Limitation of Liability. NetEx will not be liable for any failure or delay in performance hereunder which is due, in whole or in part, to any cause beyond NetEx's control. THE EXCLUSIVE REMEDY FOR ANY CLAIMS ARISING OUT OF OR RELATED TO THIS AGREEMENT SHALL BE LIMITED TO LICENSEE'S DIRECT DAMAGES, BUT NOT TO EXCEED THE AMOUNT ACTUALLY PAID FOR THE HYPERIP PRODUCT OR SERVICE THAT GAVE RISE TO THE CLAIM. IN NO EVENT SHALL NETEX BE LIABLE FOR ANY INDIRECT, INCIDENTAL, SPECIAL OR CONSEQUENTIAL DAMAGES.
7. Confidential Information. Licensee may be provided with, or become aware of, information that is identified as confidential to NetEx. Licensee agrees not to use or disclose such confidential information to third parties except as provided for in this Agreement. Evaluation test results shall be considered confidential to NetEx unless otherwise agreed in writing.
8. Other General Terms. Licensee agrees to comply with US export laws and regulations governing the products and services, including related technical data. This Agreement will be governed by the laws of the State of Minnesota excluding its conflict of law rules. This Agreement constitutes the entire understanding of NetEx and Licensee regarding the acquisition of products and services by Licensee from NetEx and supersedes all prior written and oral communications. No modification of or amendment to this Agreement will be valid unless in writing and signed by both NetEx and Licensee.