3.Limited warranty. Bay Networks warrants each item of Software, as delivered by Bay Networks and properly installed and operated on Bay Networks hardware or other equipment it is originally licensed for, to function substantially as described in its accompanying user manual during its warranty period, which begins on the date Software is first shipped to Licensee. If any item of Software fails to so function during its warranty period, as the sole remedy Bay Networks will at its discretion provide a suitable fix, patch, or workaround for the problem that may be included in a future Software release. Bay Networks further warrants to Licensee that the media on which the Software is provided will be free from defects in materials and workmanship under normal use for a period of 90 days from the date Software is first shipped to Licensee. Bay Networks will replace defective media at no charge if it is returned to Bay Networks during the warranty period along with proof of the date of shipment. This warranty does not apply if the media has been damaged as a result of accident, misuse, or abuse. The Licensee assumes all responsibility for selection of the Software to achieve Licensee’s intended results and for the installation, use, and results obtained from the Software. Bay Networks does not warrant a) that the functions contained in the software will meet the Licensee’s requirements, b) that the Software will operate in the hardware or software combinations that the Licensee may select, c) that the operation of the Software will be uninterrupted or error free, or d) that all defects in the operation of the Software will be corrected. Bay Networks is not obligated to remedy any Software defect that cannot be reproduced with the latest Software release. These warranties do not apply to the Software if it has been (i) altered, except by Bay Networks or in accordance with its instructions; (ii) used in conjunction with another vendor’s product, resulting in the defect; or (iii) damaged by improper environment, abuse, misuse, accident, or negligence.
THE FOREGOING WARRANTIES AND LIMITATIONS ARE EXCLUSIVE REMEDIES AND ARE IN LIEU OF ALL OTHER WARRANTIES EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION ANY WARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE. Licensee is responsible for the security of its own data and information and for maintaining adequate procedures apart from the Software to reconstruct lost or altered files, data, or programs.
4.Limitation of liability. IN NO EVENT WILL BAY NETWORKS OR ITS LICENSORS BE LIABLE FOR ANY COST OF SUBSTITUTE PROCUREMENT; SPECIAL, INDIRECT, INCIDENTAL, OR CONSEQUENTIAL DAMAGES; OR ANY DAMAGES RESULTING FROM INACCURATE OR LOST DATA OR LOSS OF USE OR PROFITS ARISING OUT OF OR IN CONNECTION WITH THE PERFORMANCE OF THE SOFTWARE, EVEN IF BAY NETWORKS HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. IN NO EVENT SHALL THE LIABILITY OF BAY NETWORKS RELATING TO THE SOFTWARE OR THIS AGREEMENT EXCEED THE PRICE PAID TO BAY NETWORKS FOR THE SOFTWARE LICENSE.
5.Government Licensees. This provision applies to all Software and documentation acquired directly or indirectly by or on behalf of the United States Government. The Software and documentation are commercial products, licensed on the open market at market prices, and were developed entirely at private expense and without the use of any U.S. Government funds. The license to the U.S. Government is granted only with restricted rights, and use, duplication, or disclosure by the U.S. Government is subject to the restrictions set forth in subparagraph (c)(1) of the Commercial Computer Software––Restricted Rights clause of FAR 52.227-19 and the limitations set out in this license for civilian agencies, and subparagraph (c)(1)(ii) of the Rights in Technical Data and Computer Software clause of DFARS
252.227-7013, for agencies of the Department of Defense or their successors, whichever is applicable.
6.Use of Software in the European Community. This provision applies to all Software acquired for use within the European Community. If Licensee uses the Software within a country in the European Community, the Software Directive enacted by the Council of European Communities Directive dated 14 May, 1991, will apply to the examination of the Software to facilitate interoperability. Licensee agrees to notify Bay Networks of any such intended examination of the Software and may procure support and assistance from Bay Networks.
7.Term and termination. This license is effective until terminated; however, all of the restrictions with respect to Bay Networks’ copyright in the Software and user manuals will cease being effective at the date of expiration of the Bay Networks copyright; those restrictions relating to use and disclosure of Bay Networks’ confidential information shall continue in effect. Licensee may terminate this license at any time. The license will automatically terminate if Licensee fails to comply with any of the terms and conditions of the license. Upon termination for any reason, Licensee will immediately destroy or return to