EXFO Care - Simulators

Definitions EXFO Care - Simulators The validity of this EXFO Care for Simulators is subject to the full payment of the applicable EXFO Care fees published by EXFO or as set forth in the applicable quotation. The EXFO Care fees do not include any services attributable to: (a) modification, reconfiguration or maintenance of the Product by any person other than as authorized by EXFO; (b) any factor outside of EXFO s control, including without limitation catastrophes, the Licensee s negligence, operator error and environmental conditions; (c) any use of the Licensed Software on equipment other than the EXFO Hardware; or (d) any hardware, whether delivered by EXFO or not, or other software not created or manufactured by EXFO. EXFO reserves the right to refuse services or to charge its standard service fees for the performance of any services attributable to such causes. The Product is the Licensed Software or combination of Hardware and the Licensed Software. Licensed Software means the computer programs specified in EXFO s acknowledgment of each applicable purchase order of the Licensee and any related Documentation, which are subject to and defined more particularly in the EXFO Software License Agreement. Hardware means the equipment specified in EXFO s acknowledgment of each applicable purchase order of the Licensee. Licensee (or You) means the purchaser of the Product(s) to whom the license to use the Software contained in the Product has been granted upon agreement of the Product fee and who has purchased EXFO Care for Simulators. Software Updates means any error corrections, bug fixes, workarounds, updates, upgrades, enhancements, changes, revisions, and modifications to the existing functionality of the Licensed Software provided by EXFO and made available to its general customers. Software Updates are available as part of EXFO Care for Simulators at no additional charge. Software Updates are subject to, and are provided by EXFO to Licensee, subject to Licensee s compliance with the EXFO License for Simulators. Software Update is identified with a minor, corrective or patch version number as follows: Version type Version number (example) Major version (significant new features) 2 Minor version (minor new features) 2.3 Corrective version 2.3.1 or 2.3. SP1 Patch version 2.3.1.1 New Software Releases means any enhancements or new releases containing material changes to the functionality or new functionality of the Licensed Software. New Software Releases are available by EXFO upon its general release to customers subject to the payment of additional fees. New Software Releases are identified with a major version number as set forth above. Support means EXFO service for questions where engineer expertise is needed. Support includes helpdesk service for routine questions on the installation or the functionality of the Product during EXFO s normal business hours (excluding holidays and scheduled downtimes). Email: Simulators Products: support.simulators@exfo.com Telephone: local support numbers are available at www.exfo.com 1 of 5

Software Warranty A. For a period of sixty (60) days after the date of delivery of the Licensed Software (the Software Warranty Period ), EXFO warrants that the Licensed Software, when used as permitted under this Agreement and in accordance with its intended purpose as set forth in the Documentation, will operate substantially as described in the Documentation. EXFO does not warrant that your use of the Licensed Software will be error free or uninterrupted. EXFO will, at its own expense and as its sole obligation and your exclusive remedy for any breach of this warranty, use commercially reasonable efforts to correct any reproducible error in the Licensed Software reported to EXFO by You in writing during the Software Warranty Period or, if EXFO determines that it is unable to correct the error, EXFO will refund to you all license fees actually paid for the nonconforming Licensed Software, in which case this Agreement and your right to use such Licensed Software will be terminated. Any such error correction provided by EXFO to you will not extend the original Software Warranty Period. B. EXCEPT AS EXPRESSLY PROVIDED IN SUBSECTION (A) ABOVE, THE LICENSED SOFTWARE AND DOCUMENTATION ARE PROVIDED AS IS AND WITH ALL FAULTS WITHOUT WARRANTY OF ANY KIND AND THE ENTIRE RISK AS TO SATISFACTORY QUALITY, PERFORMANCE, ACCURACY AND EFFORT IS WITH YOU, THE END USER. THERE IS NO WARRANTY AGAINST INTERFERENCE WITH YOUR ENJOYMENT OR AGAINST INFRINGEMENT WITH RESPECT TO THE SOFTWARE AND DOCUMENTATION. THERE IS NO WARRANTY THAT THE LICENSED SOFTWARE OR THE DOCUMENTATION WILL FULFIL ANY OF YOUR PARTICULAR PURPOSES OR NEEDS. THERE IS NO IMPLIED WARRANTY OF BENEFIT FOR THE ORDINARY PURPOSES TO WHICH SUCH SOFTWARE OR DOCUMENTATION ARE USED. THERE IS NO WARRANTY, REPRESENTATION OR GUARANTEE THAT THE LICENSED SOFTWARE WILL CONTINUOUSLY OPERATE OR BE ERROR FREE OR THAT ANY PROBLEMS WILL BE CORRECTED. SHOULD THE LICENSED SOFTWARE OR ANY OF ITS COMPONENTS PROVE DEFECTIVE OR INADEQUATE IN ANY RESPECT, YOU (AND NOT EXFO OR ITS AFFILIATES OR REPRESENTATIVES) ASSUME THE ENTIRE COST OF ALL NECESSARY SERVICING, REPAIR, OR CORRECTION. FURTHER, EXFO DOES NOT WARRANT, GUARANTEE, OR MAKE ANY REPRESENTATIONS REGARDING THE USE OF, OR THE RESULTS OF THE USE OF THE LICENSED SOFTWARE IN TERMS OF ITS ABILITY TO DETER UNAUTHORIZED ACCESS, ITS COMPATIBILITY WITH HARDWARE OR OTHER SOFTWARE, ITS RELIABILITY, CURRENTNESS, OR OTHERWISE; AND YOU RELY ON THE LICENSED SOFTWARE AND ITS PERFORMANCE SOLELY AT YOUR OWN RISK. ANY AND ALL OTHER REPRESENTATIONS AND WARRANTIES INCLUDING, BUT NOT LIMITED TO ANY IMPLIED WARRANTIES OF MERCHANTABILITY AND/OR FITNESS OF THE PRODUCT FOR A PARTICULAR USE OR PURPOSE, QUALITY, COURSE OF DEALINGS, USAGE OF TRADE, INACCURACY IN CONTENT CAUSED BY EXFO'S FAILURE TO PERFORM WITH REASONABLE CARE, QUIET ENJOYMENT OR NON INFRINGEMENT ARE HEREBY EXPRESSLY DISCLAIMED. Hardware Warranty Remedial Hardware Maintenance: EXFO warrants that the media (CD ROM) on which the Licensed Software may be delivered and/or the Hardware will be free of defects in materials and faulty workmanship under normal use for a period of sixty (60) days from the date of delivery. During this warranty period EXFO will, at its option, repair or replace, free of charge, defective media and/or the Hardware and deliver a copy of the Licensed Software on the repaired or replaced media. Said repair or replacement shall be Licensee s exclusive remedy under this warranty. Notwithstanding the foregoing, EXFO shall have no responsibility to repair or replace the media and/or the Hardware which, in EXFO s opinion, has been damaged by Licensee by accident, abuse, or as a result of attempted self maintenance service. EXFO warrants that the Licensed Software and the Hardware will be fully compatible with each other. EXFO does not warrant that the Product will meet Licensee s requirements or that the operation of the Product will be uninterrupted and error free. Licensee is solely responsible for the selection of the product to achieve its intended results and for the results actually obtained. 2 of 5

EXFO Care for Licensed Software EXFO Care - Simulators With respect to the Licensed Software for Simulators, EXFO Care covers the following: a) Remedial Software Maintenance: After the end of the sixty (60) days Software Warranty period, mentioned in Section Software warranty of this Agreement, EXFO shall perform Remedial Software Maintenance when Licensee notifies EXFO in writing of a Software failure; provided that such Software failure is capable of being reproduced by EXFO. The written notice, which is sent by email or by any technological means, shall be deemed received when EXFO is able to access it. The notice mentioned in this section shall include the following information: Licensee contact information, registration number, Software ID and Hardware ID, and a detailed description of the error. An acknowledgement of the reported error will be sent by email to Licensee containing classification of the error and schedule for correction pursuant to EXFO s standard procedures. The correction will be a modification of configuration or a software update. b) Helpdesk telephone support during the EXFO Care period. More information on helpdesk services is available at www.exfo.com. c) Support service: support.simulators@exfo.com EXFO Care for Hardware In respect to Simulators, EXFO Care for Hardware covers the following: a) Remedial Hardware Maintenance: After the end of the sixty (60) days Hardware Warranty period, mentioned in Section "Hardware warranty" of this Agreement, EXFO shall perform Remedial Hardware Maintenance when Licensee notifies EXFO in writing of a Hardware failure; provided that such Hardware failure is capable of being reproduced by EXFO. The Hardware must be properly packaged and sent for repair at the Licensee s own risk and expense and will be returned to the Licensee at EXFO s expense. EXFO shall use its commercially reasonable efforts to repair or replace the faulty Hardware within ten (10) working days from the time the hardware is confirmed faulty by EXFO, excluding transport and customs time (FCA Sellers shipping point, Incoterms 2010). The Licensee shall not permit any person other than EXFO personnel or an authorised representative of EXFO to perform maintenance or attempt to repair the Hardware. b) Helpdesk telephone support during the EXFO Care period. More information on helpdesk services is available at www.exfo.com. c) Support service: support.simulators@exfo.com EXFO Care Exclusions EXFO Care does not cover any of the following: EXFO Care does not entitle the Licensee to receive current or future optional features of the Product, which are not part of the Licensed Software. These optional features can be purchased separately, and the EXFO Care for Simulators can be extended to cover these options with an additional fee. EXFO shall not be responsible for correcting any alleged error if the Licensee fails to incorporate the latest available version of the Product. EXFO Care is guaranteed only for the latest available version of the Product. The Hardware must be used according to the documentation supplied with the Product(s) mentioned above. Any defects caused by accident, neglect, misuse, abuse or modification are not covered by EXFO Care for Simulators. The cables, splitters, connectors, transceivers, cable & fiber adapters, taps, cases, power cords, memory sticks, ESD protection products and headset are supplied with the Product, when applicable. The time period during which faulty cables, splitters, connectors, transceivers, cable & fiber adapters, taps, cases, power cords, memory sticks, ESD protection products and headset can be returned for repair or exchange is two (2) weeks from the date of delivery. On site support. Support at the Licensee's premises is not included in EXFO Care for Simulators. Any third party components of the Product are not covered by EXFO Care for Simulators. Support for any third party 3 of 5

components, if ordered by You, shall be subject to such third party support terms and conditions provided separately. All disclaimers set forth in the EXFO Software License Agreement are incorporated herein by reference. Any modification, reconfiguration or maintenance of the Product by any person other than as authorized by EXFO. Any factor outside of EXFO s control, including without limitation catastrophes, Licensee s negligence, operator error and environmental conditions. Licensee s use of the Licensed Software on equipment other than the Hardware. Any hardware, whether delivered by EXFO or not, or other software not created or manufactured by EXFO. Licensee s continued use of an infringing version of the Product when EXFO has provided the Licensee with a non infringing version. Due to possible changes in Hardware life cycle EXFO reserves the right to discontinue offering EXFO Care services for any Hardware in case more than (3) three years have passed since the delivery date of the Hardware. Procedure for EXFO Care Support EXFO Care for Simulators is a service dedicated to a single user. In case user rights, for any reason whatsoever, need to be transferred to another user, the change shall without exception be notified to EXFO prior to its implementation. Limitations of Maintenance EXFO shall use its commercially reasonable efforts to remedy any defect or correct any reproducible error reported in accordance with the procedure mentioned above. However, the time limits indicated herein are informative only. The Licensee undertakes to supply all relevant information requested by EXFO that is necessary to solve the reported error. EXFO cannot be held responsible for not solving such an error in cases where insufficient information or material is provided by the Licensee or such error is not capable of being reproduced on the Hardware after submission to EXFO. EXFO cannot be held responsible for any delay, interruption or malfunction, which may occur in EXFO website services as a consequence of any third party fault in telecommunication network or services. All response times shall be met only during EXFO s normal business hours (excluding holidays and scheduled downtimes). All EXFO Care services are designed to meet TL 9000 requirements. Acceptance of EXFO Care The Licensee shall be deemed to have accepted all terms and conditions contained herein upon reception of the purchase order. EXFO reserves the right to suspend or terminate its performance of the EXFO Care at any time upon its receipt of such notice or if Licensee has failed to pay any amounts when due hereunder or if the EXFO License is terminated for any reason. EXFO reserves the right, in any way and without notice, to revise, not to revise, update or modify the terms and conditions contained herein at any time. Liability TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, ANY LIABILITY OF EXFO FOR ANY LOSS, DAMAGE, OR COST UNDER THIS AGREEMENT SHALL BE LIMITED TO ACTUAL DIRECT DAMAGES INCURRED BY THE LICENSEE BUT IN NO EVENT SHALL THE AGGREGATE LIABILITY OF EXFO HEREUNDER EXCEED THE AMOUNT ACTUALLY PAID BY THE LICENSEE TO EXFO FOR THE EXFO CARE. To the maximum extent permitted by applicable law, in no event shall EXFO be liable for any special, indirect, incidental or consequential damages, under any legal doctrine. This shall include: loss of data; loss of use and/or profits; business interruption or downtime costs; capital costs or claim of third parties, whether caused by defects, performances, non performances, delays, personal injuries, property damages or otherwise, regardless of whether EXFO has been advised of the possibility of such damages and even if the stated remedies fail of their essential purposes. The remedies provided by EXFO shall be cumulative and in addition to any other remedies provided by law or equity. A waiver of a breach of any provision hereof shall not constitute a waiver of any other. 4 of 5

Severability Whenever possible, each provision of this Agreement will be interpreted in such manner as to be effective and valid under applicable law, but if any provision of this Agreement is held to be prohibited or invalid under applicable law, the parties will negotiate in good faith to restate such provision to reflect the original intentions of the parties as nearly as is possible in accordance with applicable law, and the remaining provisions of this Agreement shall be enforced as if this Agreement was entered into with the restated provision. Entire Agreement This Agreement sets forth the entire terms under which EXFO Care will be provided by EXFO, and such services shall be governed only by the terms and conditions of this Agreement and the said instruction, notwithstanding: 1) Any terms or conditions contained in any purchase order by the Licensee; and 2) Any other agreement between the parties. There is no other agreement, oral or written, with respect to the subject matter of this Agreement and all oral and written correspondence relating to the subject matter hereof is superseded by this Agreement. Changes to this Agreement may only be made in writing. Termination This Agreement will be valid for the period for which the EXFO Care fees have been paid by Licensee to EXFO. However, the Licensee acknowledges that its performance of EXFO Care is conditioned upon Licensee s compliance with the EXFO License and having a valid license on each applicable product. Therefore, in case of limitation, revocation, termination or cancellation by EXFO of the Licensee s right to use the Product for any reason (including without limitation any termination of the EXFO License or any the breach of any terms and conditions of the EXFO License), this EXFO Care Agreement will follow the application of such limitation, revocation, termination or cancellation and will be terminated immediately by EXFO. EXFO further shall have the absolute right to limit, revoke, terminate or cancel the Licensee s right to the EXFO Care upon the insolvency, bankruptcy, cessation of business, change of control, merger, reorganization, sale or transfer or all or substantially all of the assets of Licensee. The Licensee agrees to pay all costs and expenses, including reasonable legal fees, incurred by EXFO in exercising any of its rights or remedies. Applicable Law With the exception of any disputes or questions concerning confidentiality matters or intellectual property infringement, namely but not limited to where injunctive relief may be obtained, the Parties agree that this Agreement must be construed and enforced according to the substantive laws of the province of Quebec, Canada, without regards to any conflict of laws rules, and the United Nations Convention on Contracts for the International Sale of Goods is hereby excluded. Any dispute, conflict or claim arising under this Agreement, in particular concerning its formation, existence, validity, effects, interpretation, implementation, violation, resolution or annulment, shall be finally resolved by means of arbitration in accordance with the International Arbitration Rules of the Canadian Commercial Arbitration Centre by a sole arbitrator appointed in accordance with the said Rules. Either party may commence arbitration by serving a written demand for arbitration on the other party. The decision rendered by the arbitrator shall be final and there shall be no appeal therefrom. Any such arbitration shall occur in Quebec City, Province of Quebec, Canada, shall be conducted in the English language and the decision of the arbitrator shall be final and binding upon the parties both as to law and to facts. The parties shall share the expenses of the arbitrator equally, unless the arbitrator determines that expenses shall be otherwise assessed. If any provision of this Agreement is held unenforceable, such holding shall not affect the enforceability of the other provisions hereof. Assignment You may not assign this Agreement in whole or in part without the prior written consent of EXFO and any attempted assignment in violation thereof (whether voluntary or involuntary, by operation of law, merger, reorganization, change of control or otherwise) is void. EXFO may assign its rights under this Agreement in whole or in part without your prior consent. 5 of 5