PART II             INTELLECTUAL PROPERTY RIGHTS

Section B:  Grant of Licenses

1.                Source Code Product License.        Nortel grants to University a non-exclusive, worldwide license for the Nortel Software Development Kit, in Source Code form, to:

(a)              use, copy, modify subject to restrictions stated herein this Agreement, and prepare derivative works of such Nortel Software Development Kit solely for internal research and development for the purpose of generating and supporting Third-Party Software.

2.                Binary Code Product License.         Nortel grants to University a non-exclusive, worldwide license for the Nortel Software Development Kit, in Binary Code form, to:

(a)              use, copy, modify subject to restrictions stated herein this Agreement, and prepare derivative works of such Nortel Software Development Kit in Binary Code form for internal research and development for the purpose of generating and supporting Third-Party Software.

3.                Modifications to the Nortel Software Development Kit:

Under the terms of this license agreement, University is given the limited right to use, copy, modify and prepare derivative works of The Nortel Software Development Kit.  However, the terms of this license will not be construed to give University the right to modify or re-engineer  any version of Router Source Code, Router JVM Software or Router API Software that is provided by Nortel Networks to be used in conjunction with the Third-Party Software.  Such Router Source Code, Router JVM Software or Router API Software is provided by Nortel Networks, for example, within an executable image that contains said aforementioned software and said Third-Party Software and which can be executed on a router, switch or other similar device manufactured by Nortel Networks.

 

University grants to Nortel Networks a non-exclusive worldwide license to use, copy, modify and prepare derivative works of, distribute and sell said modifications within said Nortel Software Development Kit and any Updates thereto.

4.                Contractors.         University may sublicense any of its rights in The Nortel Software Development Kit and distribute the Nortel Software Development Kit and Documentation for the sole purpose of allowing Contractors to develop or assist in the development of Third-Party Software.  Prior to, or at the time of providing the Nortel Software Development Kit or Documentation to a Contractor, University shall enter into a written agreement with the Contractor which requires that:

(a)              the Contractor use the Nortel Software Development Kit and Documentation exclusively for the benefit of University;

(b)              the Contractor shall incur the same obligations with respect to the use of the Nortel Software Development Kit and Documentation as those incurred by University under this Agreement;

(c)              the Contractor shall incur the same obligations with respect to confidentiality of the Nortel Software Development Kit and Documentation as those incurred by University under this Agreement; and

(d)              all copies of The Nortel Software Development Kit and Documentation provided to the Contractor shall be returned to University or destroyed upon completion of the work for University.

5.                Sublicense Agreements shall include terms and conditions substantially similar to the following:

(a)              restrict use of the Nortel Software Development Kit to object code form only;

(b)              prohibit use of the Nortel Software Development Kit for any purpose outside the scope of Third-Party Software generation;

(c)              prohibit causing or permitting the reverse engineering of The Nortel Software Development Kit except to the extent required by law;

(d)              prohibit title to the Nortel Software Development Kit from passing to the End User; and

(e)              require the End User, at the termination of the sublicense, to discontinue use and destroy or return to University or its Distributor the Nortel Software Development Kit, its associated Documentation and all copies of the Nortel Software Development Kit.

6.                All Required Rights.          University grants to Nortel a non-exclusive, worldwide license to use any intellectual property of University embodied in the Third-Party Software or associated Documentation.  Such intellectual property shall include, but not be limited to, patents, copyrights, trade secrets, trademarks, and where applicable, applications therefor.

Section C: Technical Support and Maintenance

Nortel Networks will maintain, on a generally accessible Internet website, a list of Frequently Asked Questions (FAQ’s) regarding the Nortel Software Development Kit.  The list of FAQ’s will constitute Nortel Networks sole responsibility for Technical Support to the University.

Section D:  Title and Protection

1.                Except for the rights granted under this Agreement, University shall retain all right, title, and interest in and to the Third-Party Software.

2.                University shall not remove or destroy any copyright or restricted rights notices affixed by Nortel to any original media containing The Nortel Software Development Kit or Documentation.  All products incorporating Third-Party Software or portions thereof distributed to the U.S. Government shall contain required "Restricted Rights" notices substantially as follows: “Use, duplication or disclosure by the U.S. government is subject to restrictions as set forth in DFARS 252.227-7013(c)(i)-(ii); FAR 52.227-19; and FAR 52.227-14, Alternate III, as applicable (including any subsequent clauses) or any other applicable and/or subsequent Federal government regulations.”  Any copies of Third-Party Software or Documentation distributed by University shall either be labeled in the same manner as on the original media or in a manner substantially similar to the following:

 

               ©Copyright "YEAR" University and its licensors.

                All Rights Reserved.

 

Section E:  Confidentiality

1.                Any Confidential Information received by a Party shall be retained in confidence and shall be used, disclosed, and copied solely for the purposes of, and in accordance with, this Agreement.  The receiving Party shall use the same degree of care as it uses to protect its own confidential information of a similar nature, but no less than reasonable care, to prevent the unauthorized use, disclosure or publication of the Confidential Information.

2.                No Party shall be bound by obligations restricting disclosure and use set forth in this Agreement with respect to Confidential Information, or any part thereof, which:

(a)              was lawfully known or received by the receiving Party prior to disclosure, as evidenced by its business records;

(b)              was lawfully in the public domain prior to its disclosure, or becomes publicly available other than through a breach of this Agreement;

(c)              was disclosed to the receiving Party by a third party, provided such third party, or any other party from whom such third party receives such information, is not in breach of any confidentiality obligation in respect of such information;

(d)              is independently developed by the receiving Party, as evidenced by its business records; or

(e)              is disclosed when such disclosure is compelled pursuant to legal, judicial, or administrative proceedings, or otherwise required by law, subject to the receiving Party using reasonable efforts to provide prior notice to the disclosing Party to allow it to seek protective or other court orders.

 

PART III            Notices

1.                Any and all notices or other information to be provided by one Party to another shall be in writing and shall be deemed sufficiently given when sent by prepaid registered or certified first-class mail, facsimile transmission, or hand delivery to the other Party at the following address:

 

               If to Nortel:

 

                              Nortel Networks Corporation

                              600 Technology Park Drive

                              Billerica, Massachusetts

                              01821

 

                              Attention:                            Assistant General Counsel

                              Copy to:                                             Legal Department;

 

               If to University: 

 

Attention: Contact person identified on User Registration page.

 

                             

               or such other address as such other Party may designate by giving thirty (30) days prior written notice.

2.                Such notices shall be deemed to have been received ten (10) Business Days after mailing if sent by mail, and the following Business Day if sent by facsimile transmission or delivered by hand.

 

PART IV: WARRANTIES, LIMITATIONS, AND INDEMNITIES

Section A: Disclaimer of Warranties and Acceptance

1.                NORTEL NETWORKS DISCLAIMS ALL WARRANTIES, REPRESENTATIONS AND CONDITIONS RELATING TO THE NORTEL SOFTWARE DEVELOPMENT KIT AND THIRD-PARTY SOFTWARE GENERATED THEREFROM OR IN ACCORDANCE THEREWITH OR IN CONCERT THEREWITH, WHETHER EXPRESS, IMPLIED OR ARISING BY CUSTOM OR TRADE USAGE, INCLUDING, BUT NOT LIMITED TO, ANY REPRESENTATION, WARRANTY, AND CONDITION OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT, EXCEPT FOR THE WARRANTIES, REPRESENTATIONS, AND CONDITIONS SET OUT IN THIS AGREEMENT.

 

THE NORTEL SOFTWARE DEVELOPMENT KIT IS PROVIDED UNDER THIS LICENSE ON AN "AS IS" BASIS, NORTEL NETWORKS AND ITS AGENTS AND SUPPLIERS DISCLAIM ALL REPRESENTATIONS, WARRANTIES AND CONDITIONS RELATING TO THE SOFTWARE, INCLUDING, WITHOUT LIMITATION, WARRANTIES THAT THE COVERED SOFTWARE IS FREE OF DEFECTS, MERCHANTABLE, OF SATISFACTORY QUALITY, FIT FOR A PARTICULAR

PURPOSE OR DOES NOT INFRINGE THIRD PARTY INTELLECTUAL PROPERTY RIGHTS. THE ENTIRE RISK AS TO THE QUALITY AND PERFORMANCE OF THE COVERED SOFTWARE REMAINS WITH THE UNIVERSITY. SHOULD THE NORTEL SOFTWARE DEVELOPMENT KIT OR ANY RUN TIME SOFTWARE GENERATED THEREFROM, OR IN CONCERT THEREWITH, PROVE DEFECTIVE IN ANY RESPECT, THE UNIVERSITY ASSUMES THE COST OF ANY NECESSARY SERVICING, REPAIR OR CORRECTION. THIS DISCLAIMER OF WARRANTY CONSTITUTES AN ESSENTIAL PART OF THIS LICENSE. NO USE OF ANY SOFTWARE COVERED BY THIS LICENSE IS AUTHORIZED HEREUNDER EXCEPT UNDER THIS DISCLAIMER.

Section B:  Limitation of Liability

               UNDER NO CIRCUMSTANCES AND UNDER NO LEGAL THEORY, WHETHER TORT (INCLUDING NEGLIGENCE), CONTRACT, OR OTHERWISE, SHALL NORTEL NETWORKS BE LIABLE TO UNIVERSITY OR ANY OTHER PERSON FOR ANY DIRECT, INDIRECT, SPECIAL, INCIDENTAL, OR CONSEQUENTIAL DAMAGES OF ANY CHARACTER INCLUDING, WITHOUT LIMITATION, DAMAGES FOR LOSS OF GOODWILL, BUSINESS INTERRUPTION, COMPUTER FAILURE OR MALFUNCTION, LOSS OF DATA, LOSS OF PROFITS OR ANY AND ALL OTHER COMMERCIAL DAMAGES OR LOSSES REGARDLESS OF THE CAUSE, EVEN IF SUCH PARTY SHALL HAVE BEEN INFORMED OF THE POSSIBILITY OF SUCH DAMAGES.

Section C:  Indemnification

1.                University shall:

(a)              at its own expense, defend, indemnify and hold harmless Nortel (including its Contractors, directors, officers, employees and agents), against any and all damages, awards, or settlement payments arising from claims, proceedings and/or suits brought against Nortel Networks (including, without limitation, claims by Distributors, Affiliates, End Users, Contractors, and any other third party against Nortel Networks), alleging that the exercise of any of the rights granted in this Agreement, infringes or violates any third-party patent, copyright, trademark, trade secret or other intellectual property right ("Infringement Claim"); and

(b)              pay all expenses and costs (including attorney's fees) incurred by Nortel Networks on account of such Infringement Claim;

provided Nortel Networks:

(c)              gives University prompt written notice of any Infringement Claim;

(d)              gives University sole control of the defense and settlement of the Infringement Claim; and

(e)              furnishes University, at University's expense, with reasonable information, and assistance to defend against the Infringement Claim(s).

PART V            TERM AND TERMINATION

1.                This Agreement shall become effective on the Effective Date and shall continue in effect unless terminated by mutual agreement of the parties or as set out herein.

2.                In the event any Party is in a curable material breach of, or fails to perform a material obligation under, this Agreement, then

(a)              if such Party is a Nortel Networks Affiliate or Subsidiary, University shall provide notice to such Affiliate or Subsidiary, or

(b)              if such Party is a University Affiliate or Subsidiary, Nortel shall provide notice to such Affiliate or Subsidiary,

specifying in appropriate detail the nature of such material breach or such failure to perform a material obligation.  Provided that the non-defaulting Party has given appropriate notice, if within sixty (60) days of the receipt of such notice, the Party in default fails to undertake a reasonable course of action to cure such breach or perform such obligation, the non-defaulting Party may, by notice, immediately terminate the rights under this Agreement in respect of the Party in default. In the event either Nortel Networks or University:

(c)              admits in writing its inability to pay its debts generally as they become due;

(d)              commits an act of bankruptcy;

(e)              is the subject of a petition or assignment in bankruptcy under applicable bankruptcy laws or other similar laws, that is not discharged within thirty (30) days;

(f)              files a notice of intention to make a proposal or otherwise seeks a reorganization under applicable bankruptcy laws or any other similar law or statute of any relevant jurisdiction;

(g)              makes an assignment for the benefit of its creditors;

(h)              consents to the appointment of a receiver or receiver-manger of itself or of the whole or any substantial part of its property; or

(i)               enters into an arrangement with or for the general benefit of its creditors,

                       the other Party may terminate this Agreement immediately upon notice.

3.                In the event University becomes insolvent or is declared bankrupt and the Agreement is rejected by a trustee in bankruptcy, then if Nortel Networks elects to continue exercising any of the rights granted herein, such trustee shall provide to Nortel Networks all materials University is obligated to provide hereunder to enable Nortel to continue to exercise such rights. 

4.                In addition to, and subject to the terms and conditions of, this Part VII, the following provisions shall survive termination of this Agreement: Part I – Definitions; Part II, Section C - Title and Protection; Part II, Section D- Confidentiality; Part III - Fees and Payments, Section A and Part VI - Limitations, Warranties and Indemnities. 

 

PART VI                       GENERAL

5.                No agency, partnership, joint venture or employment relationship is or shall be created by virtue of this Agreement.

6.                Subject to the rights granted herein, no Party shall use the name of the other Party in any advertising, marketing, promotion, public relations or media release relating to the subject matter of this Agreement, without the prior written consent of the other Party.

7.                Either Party shall have the right to delegate any duty or assign any right hereunder upon the prior written consent of the other Party, such consent not to be unreasonably withheld.  Notwithstanding the foregoing, Nortel shall have the right to delegate or assign this Agreement to any Subsidiary without the consent of University.

8.                If the performance by a Party of any of its obligations under this Agreement shall be interfered with by reason of any circumstances beyond the reasonable control of that Party, including without limitation, fire, explosion, acts of God, war, revolution, civil commotion, unavailability of supplies or sources of energy, power failure, breakdown of machinery, or labor difficulties, including without limitation, strikes, slowdowns, picketing or boycotts, then that Party shall be excused from such performance for a period equal to the delay resulting from the applicable circumstances and such additional period as may be reasonably necessary to allow that Party to resume its performance. .  Any failure to perform during the period in which a Party is excused from performance shall not constitute a material breach of this Agreement.

9.                University shall not, without the prior written consent, if required, of the U.S. Department of Commerce or its counterparts in nations other than the U.S., export directly or indirectly, The Nortel Software Development Kit or Third-Party Software to any prohibited country specified in applicable export administration regulations.  University shall advise Nortel of any specific export control restrictions applicable to any Nortel Software Development Kit or Third-Party Software.

10.             The Parties agree that the U.N. Convention on Contracts for the International Sale of Goods (Vienna, 1980) shall not apply to this Agreement nor to any dispute arising out of this Agreement.

11.             In the event that any provision of this Agreement is found by a court or governmental authority of competent jurisdiction to be invalid, voidable or unenforceable, the Parties agree that unless such provision materially affects the entire intent and purpose of this Agreement, such invalidity, voidability or unenforceability shall affect neither the validity of this Agreement nor the remaining portions herein, and that the provision in question shall be deemed to be replaced with a valid and enforceable provision most closely reflecting the intent and purpose of the original provision. In the event that any provision of this Agreement is found by a court or governmental authority of competent jurisdiction to be invalid, voidable or unenforceable, and such provision materially affects the entire intent and purpose of this Agreement, the Parties shall negotiate in good faith to enter into a new agreement replacing this Agreement.  In the event that the Parties are unable to enter into a new agreement replacing this Agreement after negotiating for sixty (60) days, or any other mutually agreed upon period of time, this Agreement shall be deemed terminated in accordance with PART V               TERM AND TERMINATION.

12.             No Party will be deemed to have waived the exercise of any right that it holds under this Agreement unless such waiver is made in writing.  No waiver made with respect to any instance involving the exercise of any such right will be deemed to be a waiver with respect to any other instance involving the exercise of the right or with respect to any other such right.

13.             This Agreement constitutes the entire agreement between the Parties and supersedes all other agreements between the Parties concerning the subject matter herein, except for rights created under those agreements, if any:

(a)              entered into between Nortel Networks and University before the Effective Date; and,

(b)              relating to The Nortel Software Development Kit, which rights shall continue to exist but otherwise shall be governed by this Agreement.

14.             This Agreement shall be governed by and construed in accordance with the laws of Delaware, U.S.A.. The venue for any disputes arising under or in respect to this Agreement shall be Delaware, U.S.A.. 

 

University  (by, or through their agent, clicking the " I accept " button and continuing to download the product) acknowledge that they have read this Agreement and Appendices and Addenda, if any, understand them and agree to be bound by their terms and conditions.