2201R Mobile Tester User Guide
Appendix C Software licence and warranty
47090/322
Copyright © 2015 Aeroflex Limited. All rights reserved.
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6.5.2 Third party produced proprietary software ('Third Party Software') which Aeroflex may deliver with its products (where
such Third Party Software carries a more limited warranty than the above warranty). In such case Aeroflex will provide a
remedy for any non-conformance of the Third Party Software commensurate with the third party's warranty to Aeroflex
(if any).
6.6 The remedies offered above are sole and exclusive remedies and to the extent permitted by applicable law are in lieu of any
implied conditions, guarantees or warranties whatsoever and whether statutory or otherwise as to the Licensed Software all of
which are hereby expressly excluded.
7. INDEMNITY
7.1 Aeroflex shall defend, at its expense, any action brought against the Licensee alleging that the Licensed Software infringes
any patent, registered design, trademark or copyright, and shall pay all Licensee's costs and damages finally awarded up to an
aggregate equivalent to the Licence Fee provided the Licensee shall not have done or permitted to be done anything which
may have been or become any such infringement and shall have exercised reasonable care in protecting the same failing
which the Licensee shall indemnify Aeroflex against all claims costs and damages incurred and that Aeroflex is given prompt
written notice of such claim and given information, reasonable assistance and sole authority to defend or settle such claim on
behalf of the Licensee. In the defense or settlement of any such claim, Aeroflex may obtain for the Licensee the right to
continue using the Licensed Software or replace it or modify it so that it becomes non-infringing.
7.2 Aeroflex shall not be liable if the alleged infringement:
7.2.1 is based upon the use of the Licensed Software in combination with other software not furnished by Aeroflex, or
7.2.2 is based upon the use of the Licensed Software alone or in combination with other software in equipment not functionally
identical to the Designated Equipment, or
7.2.3 arises as a result of Aeroflex having followed a properly authorized design or instruction of the Licensee, or
7.2.4 arises out of the use of the Licensed Software in a country other than the one disclosed to Aeroflex as the intended
country of use of the Licensed Software at the commencement of this Agreement.
7.3 Aeroflex shall not be liable to the Licensee for any loss of use or for loss of profits or of contracts arising directly or indirectly
out of any such infringement of patent, registered design, trademark or copyright.
7.4 Other than as may be covered by the indemnity provisions of Clauses 7.1, 7.2 and 7.3 Aeroflex shall not, under any
circumstances, be liable to the Licensee for any direct, indirect, special, consequential and/or contingent loss or damage (and
such loss or damage shall include without limitation loss of use or profit, loss of revenue, loss of product, liquidated damages
or penalties, economic loss, delay in operations, loss of contracts or loss of business) whether or not the same are foreseeable
and whether arising out of breach of contract, tort, statutory duty or otherwise. The total liability of Aeroflex and its
employees, in contract, tort, or otherwise (including negligence, warranty, indemnity, and strict liability) howsoever arising
out of this Licence shall be limited to the total amount of the Licence Fee and total support fees actually paid to Aeroflex by
the Licensee.
8. TERMINATION
8.1 Notwithstanding anything herein to the contrary, this Licence shall forthwith determine if the Licensee:
8.1.1 As an individual has a Receiving Order made against him or is adjudicated bankrupt or compounds with creditors or as a
corporate body, compounds with creditors or has a winding-up order made against it or
8.1.2 Parts with possession of the Designated Equipment.
8.2 This Licence may be terminated by notice in writing to the Licensee if the Licensee shall be in breach of any of its obligat
ions
hereunder and continue in such breach for a period of 21 days after notice thereof has been served on the Licensee.
8.3 On termination of this Agreement for any reason, Aeroflex may require the Licensee to return to Aeroflex all copies of the
Licensed Software in the custody of the Licensee and the Licensee shall, at its own cost and expense, comply with such
requirement within 14 days and shall, at the same time, certify to Aeroflex in writing that all copies of the Licensed Software
in whatever form have been obliterated from the Designated Equipment.
9. THIRD PARTY LICENCES
9.1 The Licensed Software or part thereof may be the proprietary property of third party licensors. In such an event such third
party licensors (as may be referenced on the software media, or any on screen message on start up of the software or on the
order acknowledgement) and/or Aeroflex may directly enforce the terms of this Agreement and may terminate the Agreement
if the Licensee is in breach of the conditions contained herein.
9.2 If any third party software supplied with the Licensed Software is supplied with, or contains or displays the third party’s own
licence terms then the Licensee shall abide by such third party licence terms (for the purpose of this Article the term “third
party” shall include other companies within the Aeroflex group of companies).
10. EXPORT REGULATIONS
The Licensee undertakes that where necessary the Licensee will conform with all relevant export regulations imposed by the
Governments of the United Kingdom and/or the United State of America.
11. U.S. GOVERNMENT RESTRICTED RIGHTS
The Licensed Software and documentation are provided with RESTRICTED RIGHTS. Use, duplication, or disclosure by the
Government is subject to restrictions as set forth in subparagraph (c)(1)(ii) of the Rights in Technical Data and Computer Software
clause at DFAR 252.227-7013 or subparagraphs (c)(1) and (2) of the Commercial Computer Software-Restricted Rights at 48 CFR
52.227-19, as applicable.
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