SPIRENT COMMUNICATIONS, INC
SOFTWARE LICENSE AGREEMENT (iTest)

This Software License Agreement "Agreement" is made by and between (i) Spirent Communications, Inc. "Spirent", and (ii) you, the user ("Customer"), who, intending to be legally bound and for good and valuable consideration hereby acknowledge and agree as follows:


1. SOFTWARE LICENSE
Subject to the terms and conditions of this Agreement, Spirent grants to Customer, solely for Customer's internal use, a limited, nonexclusive, nontransferable license, without right of sublicense, to use the Software, in object code form only, for the Software licensed under this Agreement, but only in accordancw with (a) the technical specification documentation generally made available by Spirent to its customers with regard to the Software "Documentation", (b) this Agreement and (c) any term, user, CPU computer, website, field of use or other restricts set forth in the applicable Spirent quotation "Quote" or order form "Order Form" and subject to the restrictions set forth in Section 1.4 below.  Licenses designated as 'subscription' licenses are for a twelve (12) month period only (unless otherwise designated in the Quote or Order Form) and shall automatically renew for subsequent periods of the same length at the then-current price unless either party provides the other party with notice of cancellation thirty (30) days or more prior to the expiration of the then-current term.  Software shall also include any Documentation and any Maintenance and Support releases of the same Software product provided to Customer under this Agreement.  The Quote or Order Form shall specific the license type for each license of the Software:

Global Floating:  Customer may install the Software on any number of internal systems and any of Customer's employees, consultants or agents may use the Software on behalf of Customer, provided however, no more than the specified maximum number of simultaneous instances may be executed at any one time.

Floating:  Customer may install the Software on any number of internal systems and any of Customer's employees, consultants or agents may use the Software on behalf of Customer, provided however, that (i) no mre than the specified maximum number of simultaneous instances may be executed at any one time, and (ii) the Software may not be installed on any system or used by any user outside of the specified jurisdisction(s).

Named:  Customer may only permit one registered, unique named individual to use each licensed instance of the Software and may only be installed on a reasonable number of systems utilized by such individuals.  Named licenses must be registered with the individual's actual name and may not be shared by individuals or allocated to a job function.  Once a license is associated with an individual, the license may not be transferred to another individual without the express prior written consent of Spirent.

Node Locked:  Customer may install each license of the Software on one specific system and that system is the only one which may access that instance of the Software.  Once a license is associated with a specific system, the license may not be transferred to another system as a one-year subscription of a single Named license.

Spirent and Customer may agree on alternate types of lcienses as set forth in a Quote or Order Form.  If no license type is specified in a Quote or Order Form, the Software is licensed as a one-year subscription of a single Named license.

1.2	Installation and Copies.  Customer may copy and install on Customer's computers for use only by Customer's employees a reasonable number of copies of the Software sufficient to support the license type and quantity specified in the applicable Quote or Order Form.  Customer may also make a reasonable number of copies of the Software for back-up and archival purposes.

1.3	Use by Affiliates and Contractors.  Subject to the terms and conditions of this Agreement and the license type specified above, Customer's Affiliates and Contractors may use the licenses granted to Customer, provided that (a) such use is only for Customer's or such Affiliate's benefit, (b) Customer agrees to remain responsible for each such Affiliate's and Contractor's compliance with the terms and conditions of this Agreement and (c) upon request Customer will identify each such Affiliate and Contractor.  Use of the Software by the Affiliates, Contractors and Customer in the aggregate must be within the restrictions in the applicable Quote or Order Form.  'Affiate' means any etity under the control of Customer where 'control' means ownership of or the right to control greater than 50% of the voting securities of such entity.  The Affiliate rights granted in this section shall not apply to any 'enterprise wide' licenses unless Affiliate usage is designated in the Quote or Order Form.  'Contractor' means any third party employed by Customer to perform services on behalf of Customer.

1.4	Restrictions on Licensed Rights.  
    Customer acknowledges that the components of the Licensed Materials are subject to copyrights owned by Spirent or its licensors.  Customer is prohibited from modifying or permitting anyone else to modify the Licensed Materials or any module or other portion thereof.  Except as necessary to exercise the rights expressly granted in this Agreement, Customer is prohibited from copying or duplicating, or permitting anyone else to copy or duplicate the Licensed Materials or any module or other portion thereof, other than for purposes of replacing a worn copy or creating an archive copy.  Any such copy shall contain the same copyright notice and proprietary markings as the copy of the Licensed Materials furnished by Spirent to Customer hereunder.  In addition to the other restrictions in this Agreement, and other than as may be required by applicable law, Customer shall not creative derivate works, distribute, transmit, license or otherwise transfer the Licensed Materials directly or through third parties, reverse engineer, disassemble, decompile the Software or any component of the Software or otherwise attempt to obtain the source code of the Software.  Customer is prohibited from using the Software in a service bureau environment and from using the Software to process any data other than Customer's own internal data.  The Licensee agrees to label the media containing each copy of the Licensed Program with the notice: 
			Copyright (c) 2005-2016
			Spirent Communications, Inc.

1.5	Compliance with U.S. Export Laws.  
Customer acknowledges that the Licensed Materials may be subject to export controls imposed by the U.S.  Export Administration Regulations (the "EAR").  Customer will not export or reexport (directly or indirectly) the Licensed Materials, or any derivatives of the Software without complying with the EAR or other applicable laws with respect to the export of technology from the United States.

1.6	U.S. Government Users.  The Licensed Materials are commercial computer software and commercial computer software documentation developed exclusively at private expense.  If acquired by or on behalf of a civilian agency of the United States government, the Licensed Materials will be subject to terms of this Agreement as a 'license customarily provided to the public' as specified in 48 C.F.R.  ch.  1 Part 12.212 of the Federal Acquisition Regulations and its successors.  If acquired by or on behalf of units of the Department of Defense, it will be subject to the terms of this Agreement as a 'license customarily provided to the public 'as specified in 48 C.F.R.  ch.  1 Part 227.7202, DFAR Supplement and its successors.  If Spirent receives a request from any Customer agency of the U.S.  Government to provide Licensed Materials with rights beyond those stated above, Spirent will promptly, in its sole discretion, accept or reject such request.

1.7	Excluded Convention.  The Parties agree that the United Nations Convention on Contracts for the International Sale of Goods is specifically excluded from application to this Agreement.



2.	INVOICING/PAYMENTS 

2.1	License subject to Payment.  The license of the Software granted under this Agreement is subject to the payment of Spirent's current list price for the Software or such other amount as set out in the Quote accepted in writing by Spirent.

2.2	Payment of Fees.  
Customer shall pay Spirent the then-current price for the Software and any associated products or services within thirty (30) days after receiving Spirent's invoice for the same.  If Customer wishes to expand the scope of its license additional license fees shall become due and payable to Spirent prior to the effective date of any expansion of the scope of the Customer's license.  Such invoice shall be issued in accordance with the Quote or absent such an Quote upon the delivery or download of the Software whichever is the earlier.  Any amounts not paid within such thirty (30) day period shall bear interest at the lesser of the maximum rate allowable in the Customer's state or two percent (2%) per month.  Customer's payment of such interest on late payments shall not prevent Spirent from exercising any other rights under this Agreement or applicable law.

2.3	Taxes.  
All amounts described herein are exclusive of all federal, state, municipal or other governmental excise, sales, value-added, use, personal property and occupational taxes, excises, withholding obligations and other levies now in force or enacted in the future and accordingly, all fees are subject to an increase equal to the amount of any tax Spirent may be required to collect or pay in connection with the Software, other than any tax on the net income of the Spirent.


3. PROPRIETARY RIGHTS; CONFIDENTIAL INFORMATION

3.1. Ownership of Software.  Other than the limited licenses set forth in this Agreement, any and all rights, title and interest in and to the Licensed Materials, and the proprietary rights to the Licensed Materials, shall not pass to Customer, but shall remain the exclusive property of Spirent or its licensors.

3.2	Spirent Confidential Information.  Customer acknowledges that the following categories of information constitute Spirent Confidential Information: (a) all components of the Licensed Materials; and (b) the terms and conditions of this Agreement.  Spirent Confidential Information will not include, however, any information which:  (a) is or becomes part of the public domain through no act of omission of Customer; (b) was in the Customer's lawful possession prior to the disclosure and had not been obtained by Customer either directly or indirectly from Spirent or the Licensed Materials; (c) is lawfully disclosed to Customer by a third party without restriction on disclosure; or (d) is independently developed by the Customer.  For a period of ten (10) years from and after acceptance hereof by Customer, Customer agrees to hold all such Spirent Confidential Information in strict confidence, and agree not to disclose it to others or use it in any way, commercially or otherwise, except in exercising its rights pursuant to this Agreement.  Customer shall not disclose any Spirent Confidential Information to a recipient not authorized in writing by Spirent or use the Confidential Information for any purpose not expressly authorized by this Agreement.  Any disclosures shall be to Customer's employees on a 'need to know' basis for the purposes of this Agreement and subject to such employee's acceptance of terms and conditions with respect to the disclosed information at least as restrictive as those set forth in this Agreement.   


4. TERMINATION

4.1. Termination.  
This Agreement may be immediately terminated by Spirent in the event: (a) Customer becomes insolvent, files or has filed against it a petition in bankruptcy, or ceases doing business; or (b) the Customer breaches Sectionss 1 or 2 of this Agreement.

4.2. Customer Obligations Upon Termination.  Upon termination of this Agreement for any reason, Customer shall discontinue use of the Software and the other Licensed Materials, and any portion thereof, and return the Licensed Materials and any and all other Spirent Confidential Information in its possession to Spirent, or, at Spirent's option, destroy the Licensed Materials and such other Spirent Confidential Information, including all copies or partial copies thereof, and shall certify to Spirent in writing that Customer has retained none of the Spirent Confidential Information.

5. LIMITED WARRANTIES AND IP INDEMNIFICATION; EXCLUSIVE REMEDIES 

5.1. Software.  
For a period of ninety (90) days after delivery of the Software to Customer, or such other period as stated in the Quote accepted in writing by Spirent, Spirent warrants that the performance of the Software will not deviate materially from the accompanying documentation or other specifications for the Software which Spirent may publish.  The warranties set forth herein do not apply to any material deviation from the accompanying documentation which results from (a) modification of the Software by anyone other than Spirent, (b) use of the Software for any purpose other than intended, (c) use of Software in combination with any other software if such claim would have been avoided but for such combination, (d) any misuse or incorrect use of the Software, or (e) any hardware malfunction.  CUSTOMER EXPRESSLY ACKNOWLEDGES THAT BECAUSE OF THE COMPLEX NATURE OF COMPUTER SOFTWARE, SPIRENT CANNOT AND DOES NOT WARRANT THAT THE OPERATION OF THE SOFTWARE WILL BE WITHOUT INTERRUPTION OR ERROR-FREE.  During the aforementioned warranty period, Spirent will, at Spirent's expense, (i) correct the Software's failure to conform to the foregoing warranty, provided Customer has notified Spirent in writing of the nature of the non-conformity within ten (10) days of Customer's discovery of the non-conformity and provided Spirent is able to verify such non-conformity or (ii) replace the Licensed Software with Licensed Software meeting Spirent's then-current published specifications.  

5.2. Infringement.  

5.2.1.  Cure.  
In the event of a determination that the Software or Customer's use of the Software in accordance with the terms of this Agreement infringes, or is likely to infringe, any proprietary right of any third party, Spirent shall have the option, at its own discretion and expense, to (a) obtain for Customer the right to continue using the actual or potential infringing component of the Software or (b) replace the actual or potential infringing component of the Software or modify such component so that it becomes noninfringing, or (c) terminate the licensed rights granted herein and grant Customer a refund of the license fee, less reasonable depreciation based on usage, which shall in no event be less than the result of a straight-line computation based upon a five (5) year usable life.

5.2.2.  Indemnification.  
Spirent shall indemnify, defend and hold Customer harmless from and against any and all liability, damages, loss or expense (including reasonable fees of attorneys) arising from any claim, demand, action or proceeding initiated by any third party based upon infringement of a copyright, US registered patent or trademark as a result of Customer's use of the Software; provided, however, that as a condition to this indemnification obligation, Customer shall promptly (a) notify Spirent of any threat or initiation of any claim, demand, action or proceeding to which the indemnification obligation may apply, and (b) assist Spirent in the defense or settlement of the matter.

5.2.3.  Exclusions.  
Spirent shall have no obligations under Section 5.2.  for: (a) any alleged infringement based upon modification of the Software by anyone other than Spirent, (b) use of the Software in combination with other software or any other products or devices if such claim would have been avoided but for such modification or combination, (c) Customer's continued use of the infringing Software after receipt of notice of an infringement claim or after receipt of a remedy required of Spirent under this Agreement, (d) Customer's use of the Software other than in accordance with the terms of this Agreement, or (e) modifications made pursuant to Customer's express instruction.

5.3. Disclaimers.  
THE LIMITED WARRANTIES AND INTELLECTUAL PROPERTY INDEMNIFICATION SET FORTH HEREIN ARE EXCLUSIVE AND IN LIEU OF, AND CUSTOMER HEREBY WAIVES, ALL OTHER REPRESENTATIONS, WARRANTIES AND GUARANTEES, EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS OF THE SOFTWARE FOR A PARTICULAR PURPOSE OR NONINFRINGEMENT, AND ANY WARRANTIES ARISING BY STATUTE OR OTHERWISE IN LAW OR OUT OF COURSE OF DEALING, COURSE OF PERFORMANCE, OR USAGE OF TRADE.


6. LIMITATION OF LIABILITY 

6.1. Limitations and Exclusions.  
IN NO EVENT SHALL SPIRENT OR ANY OF ITS SUPPLIERS BE LIABLE FOR ANY INDIRECT, SPECIAL, INCIDENTAL OR CONSEQUENTIAL DAMAGES, (INCLUDING WITHOUT LIMITATION ANY INTERRUPTION OF SERVICE, LOST PROFITS, OR LOSS OF DATA), INCURRED BY THE CUSTOMER WITHOUT REGARD TO CAUSE OR THEORY OF LIABILITY AND REGARDLESS OF WHETHER OR NOT A PARTY WAS ADVISED SUCH DAMAGES MIGHT ARISE.

6.2. Maximum Liability.  
THE LIABILITY OF SPIRENT AND ITS SUPPLIERS UNDER THIS AGREEMENT, WHETHER ARISING OUT OF BREACH OF CONTRACT (INCLUDING BUT NOT LIMITED TO BREACH OF WARRANTY) OR TORT (INCLUDING BUT NOT LIMITED TO NEGLIGENCE AND STRICT LIABILITY) OR ANY OTHER REASON, SHALL IN NO EVENT EXCEED THE TOTAL FEES PAID TO SPIRENT BY CUSTOMER FOR THE SOFTWARE TO WHICH SUCH LIABILITY RELATES. 


7. DISPUTE RESOLUTION & CHOICE OF LAW AND FORUM

7.1	Governing Law.  This Agreement and any disputes arising from or related to it, or its subject matters, shall be governed, resolved and remedied in accordance with the laws of the State of California, USA, without resort to conflict of law principles.

7.2	Forum.  Any action to enforce, arising out of, or relating in any way to, any of the provisions of this Agreement shall be brought and prosecuted in the state courts of the State of California or the United States District Court for New Jersey and the parties consent to the jurisdiction of said courts and to service of process by registered mail, return receipt requested, or by any other manner provided by law.


8. GENERAL TERMS

8.1. Amendment; Waiver.  
No amendment, modification or discharge of this Agreement, and no waiver hereunder, shall be valid or binding unless set forth in writing and duly executed by the party against whom enforcement of the amendment, modification, discharge or waiver is sought.  If Spirent fails to enforce any provision of this Agreement, or fails to exercise, or waives, any right in respect thereto, such failure or waiver shall not be construed as constituting any of : (1) a waiver of its rights to enforce such provision with respect to other events; (2) a course of dealing; or (3) a waiver of any other rights under the Agreement.

8.2. Assignment.  
This Agreement and any rights granted hereby may not be assigned by Customer, including without limitation by operation of law, without the prior written consent of Spirent.  Spirent may assign any or all of this Agreement and it rights and obligations hereunder.  Any attempt by Customer to assign any rights, duties or obligations without such consent shall be void and without force or effect.  
8.3. Force Majeure.  
Spirent shall not be liable for any damages or penalty for any delay in performance of, or failure to perform, any obligation hereunder due to the elements beyond its reasonable control.

8.4	Attorneys fees.  If any action is necessary to enforce the terms of this Agreement, Spirent will be entitled to reasonable attorneys' fees, costs and expenses in addition to any other relief to which such prevailing party may be entitled.

8.5	Severability.  
If any provision of this Agreement shall be held to be invalid, illegal or unenforceable for any reason, the validity, legality and enforceability of the remaining provisions shall not in any way be affected or impaired thereby.

8.6	Entire Agreement.  The parties acknowledge that this Agreement sets forth the complete, exclusive and integrated understanding of the parties which supersedes all proposals or prior agreements, oral or written, and all other prior communications between the parties relating to the terms and subject matters of this Agreement.

8.7	Headings.  Section and subsection headings contained in this Agreement are inserted for convenience of reference only, shall not be deemed to be a part of this Agreement for any purposes, and shall not in any way define or affect the meaning, construction or scope of any of the provisions hereof.

8.8	Relationship of the Parties.  Spirent and Customer will be and shall act as independent entities, and neither party is authorized to act as an agent or partner of, or joint venturer with, the other party for any purpose.  Neither party by virtue of this Agreement shall have any right, power or authority to act or create any obligation, express or implied, on behalf of the other party.

8.9	Third-Party Components.  
Customer acknowledges that the Software contain components made available to Spirent by thirdparty suppliers, and Customer agrees that each such supplier is third-party beneficiary of this Agreement with the right to enforce Customer's obligations hereunder with respect to the individual components such supplier has supplied.

8.10	Precedence of Documents:  
The terms and conditions of this Agreement, insofar as they relate to the rights licensed to the Licensed Materials will control over any conflicting or inconsistent terms contained in any quotation, purchase Quote, Quote, acknowledgment or invoice unless otherwise mutually agreed to in writing by the Parties.  The terms and conditions of this Agreement insofar as they relate to matters other than the rights licensed to the Licensed Materials shall be subject to the terms and conditions of the master purchase agreement between Spirent and Customer (if any) (the "Master Agreement" only to the extent that such Master Agreement expressly contradicts the terms and conditions of this Agreement.  
 


RESTRICTED-PROPRIETARY
The information contained herein is the proprietary information of Spirent and is not for use or disclosure outside Spirent except under written Agreement.



