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Carrier Access Evaluation Terms and Conditions

These Evaluation Terms and Conditions (“Terms and Conditions”) govern the use of Carrier Access Corporation (“Licensor”) products (“Products”) for evaluation, consignment, or demonstration, or accommodation (“Evaluation”) purposes. These Terms and Conditions apply to any third party that receives Products for Evaluation (“Evaluator”) and receipt and use of Product constitutes acceptance to these terms. Notwithstanding the foregoing, each Evaluator must have signed a “Carrier Access Equipment Request: Evaluation, Consignment, Demo or Accommodation” form (“Form”) to obtain Products for Evaluation purposes.

Subject to these Terms and Conditions, Licensor will loan to Evaluator the Products identified, and for the evaluation period/term (“Term”) specified, in the Form.

1.0 Licensor Obligations
Licensor will provide to Evaluator, at no cost, Products during the Term. Any additional services requested by Evaluator will be provided by Licensor at Licensor’s then-current standard hourly rates and charges for such services.

Licensor will bear all expenses relating to the shipment of the Products to Evaluator’s location as specified in the Form.

2.0 Evaluator Obligations
Evaluator will use the Products solely for the intended purposes of evaluation, consignment, demonstration, or accommodation. Evaluator assumes all risk of loss to the Products while the Products are in Evaluator’s possession. Unless Evaluator purchases the Products, Evaluator will return the Products, at Evaluator’s expense, to Licensor at the end of the Term, in the same condition in which they were delivered to Evaluator, reasonable wear and tear excepted.

Evaluator will pay for all costs of repair, replacement, or refurbishment (other than normal wear and tear) of the Products until return is received by Licensor, as well as for all costs and/or damages associated with Evaluator’s failure to comply with these Terms and Conditions.

3.0 Term and Termination
These Terms and Conditions are effective immediatley upon Evaluator’s receipt of the Products and shall continue for the Term specified in the Form. The Term may be extended at Licensor’s sole discretion and only by the execution of a new Form. The Term may be terminated by Licensor for any reason or no reason upon ten (10) days’ written notice to Evaluator, or immediately upon notice of any breach by Evaluator of these Terms and Conditions, and in any case will terminate without further notice upon expiration of the Term. Upon termination, Evaluator will either: (i) immediately purchase the Products from Licensor; or (ii) immediately return to Licensor all of the Products, together with any and all documents, notes and other materials regarding the Products, including, without limitation, all Proprietary Information as defined in Section 5.0 of these Terms and Conditions and all copies and extracts of the foregoing. Evaluator agrees that the failure to return the Product at the end of the Term shall consititute purchase of the Product, for which Carrier Access shall invoice Evaluator therefor. Such payment shall be due within thrity (30) days of receipt of invoice, regardless of whether Evaluator has issued a corresponding purchase order or authorizing document.

4.0 Grant of License; Ownership of Software and Products; License Restrictions
Subject to these Terms and Conditions, Licensor grants Evaluator a restricted, personal, non-sublicensable, non-transferable, non-exclusive right and license during the Term to use the Products in accordance with the Products’ accompanying documentation, solely for Evaluation purposes in a non-production environment. Evaluator shall not permit external network access of the Products. Licensor will at all times retain all right, title and interest in and to the Products, including all intellectual property rights embodied therein. Other than the express rights granted to Evaluator herein, no right or license, express or implied, is granted to Evaluator. Evaluator agrees not to take any action inconsistent with Licensor’s proprietary rights. Evaluator shall not (and shall not allow any third party to): (i) decompile, disassemble, or otherwise reverse engineer the Products or attempt to reconstruct or discover any source code, underlying ideas, algorithms, file formats or programming interfaces of the Products by any means whatsoever (except and only to the extent that applicable law prohibits or restricts reverse engineering restrictions, and in such case Evaluator shall notify Licensor in advance of its intent to reverse engineer); (ii) distribute, sell, sublicense, rent, lease or use the Products (or any portion thereof) for any purpose other than Evaluation, including without limitation any productive or commercial purpose, time sharing, hosting, or service provider purpose; (iii) remove any product identification, proprietary, copyright or other notices contained in or on the Products; (iv) modify any part of the Products or create a derivative work of any part of the Products; (v) distribute externally or to any third party any communication that compares the features, functions, or performance characteristics of the Product with any other product of Evaluator’s or any third party, or otherwise publicly disseminate performance information or analysis (including, without limitation, benchmarks) relating to the Products; or (vi) separate any software included in the Products from the Products themselves.

5.0 Confidentiality
Evaluator acknowledges and agrees that information relating to Licensor and the Products, including but not limited to, the existence of any software, Product features and mode of operation, trade secrets, know-how, inventions (whether or not patentable), techniques, processes, programs, ideas, algorithms, schematics, testing procedures, software design and architecture, computer code, internal documentation, design and function specifications, product requirements, problem reports, analysis and performance information, software documents, and other technical, business, product, marketing and financial information, plans and data, will constitute proprietary information (“Proprietary Information”’) of Licensor. Evaluator agrees to hold in confidence and not use or disclose any Proprietary Information except as expressly permitted by these Terms and Conditions. Evaluator’s nondisclosure obligation shall not apply to information which Evaluator can document: (i) is or has become public knowledge through no fault of Evaluator; or (ii) is required to be disclosed pursuant to a regulation, law or court order (but only to the minimum extent required to comply with such regulation or order and with advance notice to Licensor). Evaluator acknowledges that disclosure of Proprietary Information would cause substantial harm to Licensor that could not be remedied by the payment of damages alone, and therefore that upon any such disclosure by Evaluator, Licensor shall be entitled to seek appropriate equitable relief. Evaluator will return all Proprietary Information to Licensor upon termination or expiration of the Term and, if requested by Licensor at any later time, certify to such return in writing.

6.0 Warranty Disclaimer
EVALUATOR ACKNOWLEDGES THAT THE PRODUCTS ARE PROVIDED “AS IS.” LICENSOR MAKES NO WARRANTY IN CONNECTION WITH THE PRODUCTS AND HEREBY EXPRESSLY DISCLAIMS ANY AND ALL IMPLIED OR STATUTORY WARRANTIES RELATING TO THE PRODUCTS, INCLUDING, BUT NOT LIMITED TO, ANY IMPLIED WARRANTIES OF TITLE, MERCHANTABILITY, NON-INFRINGEMENT AND FITNESS FOR A PARTICULAR USE OR PURPOSE. LICENSOR DOES NOT WARRANT THAT THE PRODUCTS OR ANY SOFTWARE WILL MEET EVALUATOR’S REQUIREMENTS, THAT OPERATION OF THE PRODUCTS OR ANY SOFTWARE WILL BE ERROR-FREE, OR THAT DEFECTS WILL BE CORRECTED.

To the extent that Licensor may not, as a matter of applicable law, disclaim any implied warranty, the scope and duration of such warranty will be the minimum permitted under such law.

7.0 Limitation of Liability
TO THE EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT WILL LICENSOR BE LIABLE TO EVALUATOR FOR ANY: (i) LOSS OR INACCURACY OF DATA OR COST OF PROCUREMENT OF SUBSTITUTE GOODS, SERVICES OR TECHNOLOGY; OR (ii) DIRECT, SPECIAL, INCIDENTAL, INDIRECT OR CONSEQUENTIAL DAMAGES (INCLUDING ANY LOST BUSINESS REVENUE OR PROFITS OR ANY LOSS, DAMAGE OR DESTRUCTION OF DATA); ARISING IN CONNECTION WITH THE USE OF THE PRODUCTS, WHETHER BASED ON BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE) OR OTHERWISE, WHETHER OR NOT LICENSOR HAS BEEN ADVISED OF, KNEW, OR SHOULD HAVE KNOWN OF, THE POSSIBLITY OF SUCH DAMAGE AND NOTWITHSTANDING THE FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY. LICENSOR’S ENTIRE LIABILITY TO EVALUATOR UNDER THESE TERMS AND CONDITIONS SHALL NOT EXCEED THE STANDARD LIST PRICE OF THE PRODUCTS LISTED IN THE FORM.

8.0 Indemnity
Evaluator shall indemnify and hold harmless Licensor from and against any and all costs, damages, losses, liability or expenses (including reasonable attorneys’ fees) arising from Evaluator’s use of the Products (including without limitation any actions arising from acts or omissions of Evaluator’s employees or agents) or any failure by Evaluator to comply with these Terms and Conditions.

9.0 Nonassignability
Neither the rights nor the obligations arising under these Terms and Conditions are assignable, sublicensable or transferable by Evaluator, and any such attempted assignment, sublicense or transfer will be void and without effect.

10.0 Governing Law; Dispute Resolution
Any action to enforce thse terms and Conditions will be governed by and construed under the laws of the State of Colorado and the United States without regard to conflicts of laws provisions thereof. If a dispute relates to these Terms and Conditions or their breach, and Evaluator and Licensor have not been successful in resolving such dispute through negotiation, they agree to attempt to resolve the dispute through mediation by submitting the dispute to a sole mediator selected by them or, at any time at the option of either Evaluator or Licensor to arbitration by the American Arbitration Association ("AAA"). Evaluator and Licensor shall each bear their own expenses and an equal share of the expenses of the mediator or arbitrator and the fees of the AAA. All defenses based on passage of time shall be suspended pending the termination of the mediation or arbitration.

11.0 Equitable Relief
Nothing in these Terms and Conditions shall be construed to preclude Licensor from seeking injunctive relief in order to protect its rights pending mediation or arbitration. Evaluator acknowledges and agrees that, due to the unique nature of Licensor’s Products and Proprietary Information subject to these Terms and Conditions, there can be no adequate remedy at law for any breach of its obligations hereunder, that any such breach may allow Evaluator or third parties to unfairly compete with Licensor resulting in irreparable harm to Licensor, and therefore, that upon any such breach or threat thereof, Licensor will be entitled to injunctions and other appropriate equitable relief, without posting a bond, in addition to whatever remedies it may have at law.

12.0 Conformiy with Applicable Law; Export Compliance
Evaluator agree to adhere to all applicable laws, regulations, and rules relating to the Products and the Proprietary Information, including, but not limited to, export restrictions.

13.0 Government Evaluators
The Products listed in the Form contain commercial computer software programs developed solely at private expense. As defined in U.S. Federal Acquisition Regulations (FAR) section 2.101 and U.S. Defense Federal Acquisition Regulations (DFAR) sections 252.227-7014(a)(1) and 252.227-7014(a)(5) (or otherwise as applicable to Evaluator), the software portion of Products are deemed to be “commercial items” and “commercial computer software” and “commercial computer software documentation.” Consistent with FAR section 12.212 and DFAR section 227.7202, (or such other similar provisions as may be applicable to Evaluator), any use, modification, reproduction, release, performance, display, or disclosure of such commercial software or commercial software documentation by the U.S. government (or any agency or contractor thereof) shall be governed solely by the these Terms and Conditions and shall be prohibited except to the extent expressly permitted by these Terms and Conditions.

14.0 Entire Understanding
These Terms and Conditions constitute the entire understanding between the Licensor and Evaluator pertaining to the Products listed int the Formand supersede all prior and contemporaneous agreements and understandings relating to the Products.