TELLABS STANDARD LICENSE FOR LICENSED MATERIALS

2. DEFINITIONS

"Documentation" means the user instructions related to a Product.

"Force Majeure" means causes outside the reasonable control of a Party that cannot be avoided by the exercise of due care, including but not limited to:

1. governmental actions, orders, legislation, regulations, restrictions or rationing;
2. riots, civil disturbances or disobedience, epidemic, quarantine, acts of terrorism or war;
3. strikes, lockouts or shutdowns;
4.  shortages of labor or supplies, interruption or lack of transportation, embargo or prohibition of imports or exports; or
5. fire, flood, hurricane, earthquake, storm, lightning, explosion, acts of God or of a public enemy.

"Hardware" means that portion of a Product that is not Licensed Materials.

"Licensed Materials" means Software and Documentation.

"Management Licensed Materials" means Licensed Materials and software key, if any, licensed for monitoring, surveying, configuring, provisioning and otherwise managing Products in Licensee’s Network.

"Network" means the operation support system under the exclusive control of Licensee.

"Order" means Licensee’s written or electronic offer to purchase Products.

"Party/Parties" means, individually or collectively, Tellabs and Licensee.

"Product(s)" means those systems, associated system plug-ins and other goods, including the Licensed Materials, Tellabs sells and/or licenses to Licensee.

"Software" means the Tellabs executable computer programs, system operating software, firmware and other digital instructions and control data associated with a Product, including any enhancements, modifications or parts thereof.

"Tellabs" means the Tellabs entity that fulfills the Order, on behalf of itself and its affiliates.

3. LICENSE GRANT

1. Subject to the terms of this Agreement, Tellabs grants Licensee a non-exclusive, nontransferable license to use the Licensed Materials Tellabs delivers to Licensee:
   1. with the single Product for which it was delivered;
   2. for Licensee’s internal purposes;
   3. in accordance with the Documentation; and
   4. for Management Licensed Materials, for the permitted number of computing devices, simultaneous users and network elements in Licensee’s Network, as specified in the Documentation or otherwise.
2. Licensee receives no other express or implied license or right under any patent, copyright, trademark, trade secret or other proprietary right. Licensed Materials are protected by copyright laws and international treaties.
3. Licensee may make one (1) copy of the Software (excluding firmware), solely for backup purposes (unless additional copies are necessary for the Software’s intended use). Such copy shall be treated as an original for purposes of any restrictions herein.
4. Licensee shall not remove, obscure or otherwise disturb any copyright or proprietary notices on the Licensed Materials, and Licensee shall reproduce the same on any copy.
5. Licensee shall not directly or indirectly:
   1. decompile, disassemble, decode, reverse engineer (unless required for interoperability, but only where and to the extent the foregoing prohibitions are invalid under applicable law), modify, append, translate, copy (except as provided above), distribute, publicly display, disclose, sell, lease, loan, rent, transfer, assign, sublicense or otherwise provide to third parties the Licensed Materials, including their authorization control utilities;
   2. release benchmarks or comparisons of the Licensed Materials; or
   3. use the Licensed Materials for time-sharing, service bureau or subscription services.
6. Third-party software Tellabs provides to Licensee solely under the third-party’s name shall be subject to the terms and conditions, including the licenses, warranties, and indemnities, specified by the licensor of the third-party software. To the extent that the Licensed Materials originate from a third-party licensor, such licensor may be a third-party beneficiary to the license granted herein, may enforce the license directly against Licensee, and shall have no warranty or other obligation or liability to Licensee under this Agreement regarding such Licensed Materials.
7. This paragraph applies to all acquisitions of the Licensed Materials by or for the U.S. government. The Licensed Materials have been developed entirely at private expense. The software and documentation are "commercial items," as that term is defined at 48 C.F.R. §2.101, consisting of "commercial computer software" and "commercial computer software documentation," as such terms are used in 48 C.F.R. §12.212 or 48 C.F.R. §227.7202, as applicable. Consistent with 48 C.F.R. §12.212 or 48 C.F.R. §227.7202-1 through 227.7202-4, as applicable, the commercial computer software and commercial computer software documentation are being licensed to U.S. government end users (a) only as commercial items and (b) with only those rights as are granted to all other end users pursuant to the terms and conditions set forth in Tellabs’ Standard Terms and Conditions for Tellabs Deliverables.

4. INFORMATION

Any drawings, specifications, technical and other information supplied by Tellabs shall:

1. be used solely or installing and maintaining Products;
2.  not be used in a manner detrimental to Tellabs’ interests;
3. not be reproduced, used or disclosed to third parties without Tellabs’ prior written consent; and
4. remain Tellabs’ property.

5. CONFIDENTIALITY

Licensed Materials contain confidential and proprietary information of Tellabs or its licensors. Licensee shall receive and maintain the Licensed Materials and other Tellabs confidential information (including this Agreement) in confidence and agrees to use at least the degree of care that it uses to protect its own proprietary information, but no less than reasonable care, to prevent the unauthorized use outside the scope of this Agreement, disclosure or publication of Tellabs confidential information. Licensee’s use of and access to the Licensed Materials will be strictly limited to its employees with a need to know who shall have contractually agreed to comply with confidentiality obligations no less stringent than those stated herein. Licensee’s obligations under this Section 5 shall continue indefinitely for so long as such Licensed Materials continue to be a trade secret.

6. Limited Warranties; Disclaimer

Tellabs’ Software is subject to Tellabs’ Global Warranty, available upon request. The Documentation is licensed "AS IS." Maintenance or support services outside the scope of Tellabs’ Global Warranty are expressly excluded. TELLABS EXPRESSLY DISCLAIMS ALL OTHER WARRANTIES, EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT.

7. INTELLECTUAL PROPERTY

1. Tellabs shall defend Licensee from a third-party claim against Licensee asserting that the Software infringes a United States patent, copyright or trade secret ("Claim"), and Tellabs shall pay any settlement made by Tellabs, Licensee’s reasonable and verifiable costs and expenses, and third-party damages finally awarded against Licensee, provided that:
   1. Licensee promptly notifies Tellabs in writing of the Claim;
   2. Tellabs has sole control of the defense and settlement;
   3. Licensee reasonably cooperates in providing information and assistance; and
   4. Licensee reasonably cooperates with any efforts that Tellabs may undertake to replace or modify the Software to avoid infringement.
2. In addition, if Licensee is enjoined from using the Software by reason of such Claim or Tellabs determines in its sole judgment that an injunction is likely, then provided Licensee meets Licensee’s obligations (a)-(d) in Subsection 8.1 and absent any replacement or modification provided by Tellabs to avoid infringement, Tellabs may at its sole election:
   1. obtain the rights necessary to permit continued use of such Software; or
   2. terminate this Agreement, allow Licensee to return such Software for a refund of the amount paid for such Software less depreciation, and if Licensee fails to do so, Licensee will give Tellabs access to Licensee’s facilities during normal business hours to retake the Software.
3. Notwithstanding the above, Tellabs is not obligated to the extent the Claim is based upon:
   1. a modification made other than by Tellabs;
   2. Tellabs’ compliance with Licensee’s designs, instructions or specifications;
   3. combination of the Software with other equipment, materials or processes;
   4. use of the Software not in accordance with the applicable Documentation; or
   5. use of the Software in violation of or otherwise outside the scope of this Agreement ((a)-(e) collectively "Claim Exceptions"). Licensee shall, in a commensurate manner, defend Tellabs for any third-party claim based upon any Claim Exceptions, and shall pay any settlement made by Licensee, Tellabs’ reasonable and verifiable costs and expenses, and any third-party damages finally awarded against Tellabs.
4. This Section 8 states Tellabs’ sole obligations and Licensee’s exclusive remedies with respect to any third-party claim based upon intellectual property rights.

8. TERMINATION

1. The license granted in Section 3 - License Grant is effective for the life of the Hardware portion of the product for which the Licensed Materials are delivered unless earlier terminated as provided in this Agreement or by Licensee in writing. This Agreement (including such license) will terminate immediately:
   1. upon any breach of Section 3 - License Grant or Subsection 12.5 (export compliance) or any incurable Licensee breach of this Agreement;
   2. if Licensee fails to cure any curable breach within thirty (30) days after notice of such breach; or
   3. as this Agreement otherwise provides. Immediately upon termination or Licensee’s receipt of replacement Licensed Materials and other Tellabs confidential information, Licensee shall immediately cease all use of, and return or certify destruction of, the Licensed Materials and other Tellabs confidential information and all copies. Termination is not an exclusive remedy.

9. TITLE AND SECURITY INTEREST

Title and ownership in the Licensed Materials and all copies remains at all times with Tellabs or its licensors.

10. RESERVATION OF RIGHTS

Notwithstanding Subsection 12.6, Tellabs may make changes to this Agreement at any time. All such changes shall become effective immediately and apply to all Orders received by Tellabs after the effective date of such changes.

11. GENERAL

1. This Agreement states all of the promises, agreements and conditions regarding its subject matter, supersedes all prior understandings (whether written, oral or otherwise) and constitutes the entire agreement between the Parties. If any provision of this Agreement shall for any reason be held to be unenforceable (in whole or in part) in any respect, then such unenforceable provision (or part thereof) shall be construed as if it had never been contained herein. Unless the Parties have mutually executed an agreement governing the licensing of Licensed Materials subject to the Order, all Orders shall be fulfilled strictly in accordance with the terms and conditions of this Agreement, and no other terms and conditions shall apply.
2. Licensee shall not assign or transfer the Licensed Materials or this Agreement or any interest in the foregoing except with Tellabs’ prior written consent.
3. Tellabs and Licensee are each engaged in an independent business. Each Party shall perform its obligations as an independent contractor and not as the agent, employee or servant of the other Party. Each Party shall be solely responsible for:
   1. the employment, direction, supervision, compensation and discharge of its own employees, agents and subcontractors, including compliance with social security, withholding and all other applicable regulations; and
   2. its own acts and those acts of its employees, agents and subcontractors.
4. Any failure by either Party (or by Tellabs’ subcontractors) to fulfill any of its obligations shall not be deemed a breach of this Agreement if that failure is due to Force Majeure. Notice of Force Majeure shall be made promptly in writing to the other Party. The performance of a Party’s obligations under this Agreement shall be suspended for as long as Force Majeure exists. Each Party shall take reasonable steps to limit the effect of Force Majeure. If Force Majeure continues for more than six (6) months, then either Party shall have the right to terminate this Agreement upon written notice.
5. The Parties are aware of, and shall strictly comply with, all applicable trade sanctions, executive orders, export control laws, regulations, restrictions and the like (including but not limited to those imposed by the governments of the United States of America and the European Community) pertaining to any Products (and the technology therein) supplied by Tellabs or its affiliates or subcontractors. Without limiting the generality of the foregoing, Licensee shall not export, re-export, transship, divert or transfer (whether directly or indirectly) any such Products (or technology therein) contrary to such trade sanctions, executive orders, export control laws, regulations, restrictions or the like.
6. No changes or additions to this Agreement shall be effective unless in writing and signed by Tellabs’ authorized representative. Tellabs’ failure to insist upon strict adherence to any term or condition of this Agreement shall not be a waiver by Tellabs of its right to thereafter insist upon strict adherence to that, or any other, term or condition.
7. Section 3 -License Grant, Section 5 - Confidentiality, Section 7 - Limitation of Liability, Section 8 - Intellectual Property, and Section 10 - Title and Security Interest hereof and any provision of this Agreement that, given its purpose, interpretation or context, logically should survive the expiration or termination of this Agreement shall so survive.
8. If a dispute arises that is not resolved within thirty (30) days from the date that either Party provides the other Party with written notice of the existence thereof, then each Party shall designate an executive who is authorized to investigate, negotiate and settle the dispute. The executives shall exercise good faith efforts to settle the dispute. If the executives do not resolve the dispute within thirty (30) days (or an extended period if they so agree), then the dispute resolution procedure shall be as follows:
   1. The Parties shall submit the dispute to non-binding mediation. The venue of such mediation shall be Dallas County, Texas, USA. The Parties shall share equally the costs and expenses of the mediation, except that each Party shall bear its own attorneys’ fees. If the dispute is not resolved through mediation within thirty (30) days of the mediator’s appointment, then the Parties may submit the dispute to litigation subject to the governing law specified herein. No litigation or any other action pertaining to a dispute shall be pursued unless this dispute resolution procedure has been exhausted.
   2. All questions regarding the validity, intention, interpretation, meaning or enforcement of this Agreement shall be resolved under the laws of Texas (excluding its conflict of laws provisions). Nonetheless, either Party at any time may pursue equitable relief before any court of competent jurisdiction in order to protect its intellectual property rights or confidential information.

The United Nations Convention on Contracts for the International Sale of Goods and the Uniform Computer Information Transaction Act shall not apply to any transaction entered into between the Parties.

9. Subject to full compliance with any written guidelines or requirements that are provided by Buyer to Tellabs in advance and further subject to the usage limitations set forth in the following sentence, Buyer hereby agrees that Tellabs may reference Buyer’s name and trademark
   1. on Tellabs’ internet or intranet corporate websites;
   2. in customer presentations, corporate presentations or verbal communications;
   3. in Tellabs-produced magazines, videos, case studies, press releases and white papers; and
   4. in Tellabs’ annual reports. Such usage shall be strictly limited to the following purposes:
   5. to identify the Products, Product series or Services that Buyer has purchased or licensed from Tellabs;
   6. the generic purpose or application of such Products, Product series or Services; or
   7. to reiterate any other information contained in any press release(s) issued by either Party with the other Party’s approval. Subject to full compliance with any written guidelines or requirements that are provided by Tellabs to Buyer in advance and further subject to the usage limitations set forth in the following sentence, Tellabs hereby agrees that Buyer may reference Tellabs’ name and trademark;
   8. on Buyer’s internet or intranet corporate websites;
   9. in customer presentations, corporate presentations or verbal communications;
   10. in Buyer-produced magazines, videos, case studies press releases and white papers; and
   11. in Buyer’s annual reports. Such usage shall be strictly limited to the following purposes.
   12. to identify the Products, Product series or Services that Buyer has purchased or licensed from Tellabs;
   13. the generic purpose or application of such Products, Product series or Services; or
   14. to reiterate any other information contained in any press release(s) issued by either Party with the other Party’s approval. In addition to the foregoing, the Parties shall provide each other with reasonable cooperation, assistance and approval (not to be unreasonably withheld) in the creation, completion and publication of any press releases, magazine articles, videos, case studies, white papers or other sales promotions as requested by a Party and pertaining to the transactions contemplated by this Agreement. Tellabs shall perform Software repairs and returns pursuant to Tellabs’ Global Repair and Return Policy.

12. PRODUCT-SPECIFIC TERMS AND CONDITIONS 

In addition to the terms and conditions of this Agreement, use of certain Tellabs Licensed Materials is subject to Tellabs Product-Specific Terms and Conditions, available upon request.

13. MORE INFORMATION 

For more information or clarification of the information and services described in this Tellabs Policy, please contact your local Tellabs sales office or visit www.tellabs.com. The information described herein is subject to change without notice.

This Policy supersedes any other previous warranty policy made available to Tellabs customers. If any portion of this Policy is deemed to be prohibited by (or unlawful or unenforceable under) any applicable law of any jurisdiction, then such portion shall be ineffective as to such jurisdiction without affecting any other portion of this Policy.