4.0 Company obligations
Company agrees to:
4.1 Prepare the loan site in accordance with the requirements specified by Tekelec.
4.2 Purchase the supporting equipment identified as “customer purchased” in Part 2 of Exhibit A and have such supporting equipment available on site and in working order for the beginning of the trial..
4.3 Maintain the TekMedia equipment in accordance with Tekelec provided material.
4.4 Safeguard all Materials in the same manner in which Company safeguards its own property and equipment.
4.5 Perform certain services as described in Exhibit B and to assess the performance of the Materials based on the Test Description Document shown in Exhibit C.
5.0 Limitation of liability
5.1 THE MATERIALS ARE PROVIDED TO COMPANY ON AN “AS IS” BASIS, WITHOUT REPRESENTATIONS, WARRANTIES OR CONDITIONS OF ANY KIND, EXPRESS OR IMPLIED, BY STATUTE, USAGE, CUSTOM OF THE TRADE OR OTHERWISE, INCLUDING BUT NOT LIMITED TO THOSE OF WORKMANSHIP, MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT OR DURABILITY. WITHOUT LIMITING THE GENERALITY OF THE FOREGOING, TEKELEC DOES NOT REPRESENT OR WARRANT THAT THE MATERIALS WILL MEET COMPANY’S NEEDS, THAT THE OPERATION OF THE MATERIALS WILL BE ERROR FREE, OR THAT THE MATERIALS DO NOT INFRINGE ANY RIGHTS OF THIRD PARTIES.
5.2 TEKELEC, ITS EMPLOYEES, AGENTS, OFFICERS AND DIRECTORS SHALL NOT BE LIABLE IN ANY WAY WHATSOEVER, FOR ANY INDIRECT, SPECIAL, INCIDENTAL, PUNITIVE OR CONSEQUENTIAL DAMAGES, INCLUDING BUT NOT LIMITED TO, LOST PROFITS OR BUSINESS REVENUE, LOST BUSINESS, FAILURE TO REALIZE EXPECTED SAVINGS, OR OTHER COMMERCIAL OR ECONOMIC LOSS OF ANY KIND WHATSOEVER ARISING OUT OF OR RELATED TO THE MATERIALS OR COMPANY’S USE OF THEM, WHETHER SUCH DAMAGES ARE FORESEEABLE OR TEKELEC, ITS EMPLOYEES, AGENTS, OFFICERS OR DIRECTORS HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
6.0 Termination
6.1 This Agreement, and the loan and/or license of the Materials shall immediately terminate upon the occurrence of any of the following events:
(i) the termination of the Company's requirement to use the Materials for the Purpose, unless the parties mutually agree, in writing, to extend such date;
(ii) Company breaches any material provision of this Agreement;
(iii) Company makes any assignment for the benefit of its creditors, becomes insolvent, makes a sale in bulk of its assets, commits any act of bankruptcy, ceases to do business as a going concern, or seeks any arrangement, proposal or compromise with its creditors under any statute or otherwise;
(iv) any proceeding in bankruptcy, receivership, liquidation or insolvency is commenced against Company or its property, or Company's landlord terminates its tenancy for breach of any of the covenants contained in its lease;
(v) Either party, in its sole discretion, decides to terminate this Agreement at any time (in whole or in part), upon ten (10) days written notice; or
(vi) any other events specified in Exhibit A.
On or before the end date of the loan, as identified in Exhibit A, Company will provide Tekelec with:
a purchase order to purchase the Materials and such other equipment proposed in Tekelec’s Proposal GM032107-3jpm. shown in Part II of Exhibit A. Such purchase shall be pursuant to the International Distribution Agreement (No. NNC/2005/12-TKLC-DA), and this Agreement shall terminate and such purchase terms shall prevail; or
(ii) written notification of Company’s reasoning for determining not to purchase the Materials and, in such case, Company shall follow the procedures identified in Section 6.3, below.
6.3 Upon termination or expiry of this Agreement for any reason, other than as provided in Section 6.2(i) above:
(i) Company shall immediately cease using the Materials;
(ii) All Materials shall be returned, at Company’s expense, to Tekelec in the same condition as when they were provided by Tekelec, except for ordinary wear and tear and;
Company shall promptly allow Tekelec representatives access to the sites at which the Materials are installed for the purpose of deinstallation and removal. Tekelec may retrieve the Materials from Company's location, and Company shall provide access to Tekelec to retrieve such equipment during regular business hours. If Tekelec retrieves such Materials, Company shall be liable for any reasonable costs incurred by Tekelec to facilitate the return of the Materials to its premises; and
sections 1.2, 2.1, 6.2 and 7 shall survive.