Xyplex Networks Sales Terms and Conditions
For the Sale and Use of Products and Services Worldwide


1. Products & Services - Hardware, Software licenses and 
Services as listed on the then-current applicable XYPLEX 
NETWORKS Price List.   Or as otherwise  made available by 
Xyplex in the case of refurbished Product or Product made 
available by Xyplex in connection with any type of Product 
swap program. The price which applies to any Purchase Order 
shall be the price in effect as of the date of Acceptance of the
Purchase Order by Xyplex Networks.

2.  Acceptance of Purchase Order - Xyplex Networks may 
reject any Purchase Order(s).  The sole terms and conditions to 
govern the purchase of any Product are as set forth in these Sales 
Terms and Conditions unless issued pursuant to an existing 
Agreement between Purchaser and Xyplex Networks referenced 
on the face of the  Purchase Order.  All Services purchased are 
subject to the Xyplex Networks Support Agreement(s) 
applicable to such Service.

3.  Payment Terms - Payment in full for all Products and 
Services purchased is due net thirty (30) days from the date of 
the XYPLEX NETWORK invoice.

4.  Shipments - All shipments shall be FOB point of Origin; 
risk of loss passes to Purchaser upon delivery to the carrier.  
Purchaser may request the manner of shipment and the carrier, 
but Xyplex Networks reserves the right to ultimately designate 
the manner and means of any shipment(s).  Freight charges, if 
not stated on the Price List as being included in the Price, will be 
billed to Purchaser separately.

5.  Delivery - Xyplex Networks will use reasonable efforts to 
ship by the estimated ship date contained in the Xyplex 
Networks Purchase Order
Acknowledgment, but will not be liable for any failure to ship 
by that date, for whatever reason.

6.  Title - Title to the Software (including any firmware) and to 
all applicable licenses and documentation shall at all times 
remain in Xyplex Networks and, to the extent applicable, to its 
third party licensors.  Title to the Hardware products (excluding 
any firmware content) shall pass to Purchaser on delivery, 
subject to the security interest which Xyplex Networks retains, 
and which Purchaser hereby grants to Xyplex Networks, 
regarding all Products purchased until the required and 
applicable purchase price has been paid in full by Purchaser.

7.  Warranties - PURCHASER ACKNOWLEDGES THAT 
XYPLEX NETWORKS MAKES NO EXPRESS 
WARRANTIES REGARDING PRODUCTS OR SERVICES, 
THAT ANY WARRANTIES WHICH COULD BE 
IMPLIED, INCLUDING, BUT NOT LIMITED TO ANY 
WARRANTY OF MERCHANTABILITY, FITNESS FOR 
ANY PARTICULAR PURPOSE, COMPATIBILITY, 
INTEROPERABILITY, NON-INFRINGEMENT, 
COMPLIANCE WITH APPLICABLE SPECIFICATIONS, 
FREEDOM FROM DEFECTS, AND ERROR-FREE 
UNINTERRUPTED OPERATION ARE EXPRESSLY 
DISCLAIMED BY XYPLEX NETWORKS.  ALL 
PRODUCTS ARE MADE AVAILABLE HEREUNDER BY 
XYPLEX NETWORKS ON AN AS-IS BASIS ONLY.
However, in the event of a Product Defect, if Purchaser provides 
Xyplex Networks with written notice of such Product Defect 
(as well as with the model and serial number of that Product for 
validation purposes) within the applicable period specified 
below,  Xyplex Networks warrants that it will repair the 
Product Defect at no charge, replace the defective Product at no 
charge, or refund the net purchase price paid by Purchaser for 
the defective unit of Product.  This shall be Purchasers sole and 
exclusive remedy, in contract and at law, regarding that Product, 
and such warranty is non-transferable.
	a.  Hardware - A Product Defect shall mean a defect in 
Product materials and workmanship under normal use and 
service, or a material failure of the Product to perform 
substantially in accordance with the applicable Product 
specification in a standard configuration environment, which is 
reported within one (1) year (for new Product )or  thirty (30) 
days (for refurbished or swap Product), of the date it was first 
shipped by Xyplex Networks to Purchaser, provided that such 
failure is not due to any faulty installation of the Product.  
Xyplex Networks shall have the option, but not an obligation, 
to repair,  replace or grant a refund with regard to the repaired 
or replaced Product during the remainder of that same period.  If 
Purchaser is provided with replacement Product prior to 
Purchasers return to Xyplex of the allegedly defective Product, 
Xyplex reserves the right to invoice Purchaser for the 
replacement Product (and Purchaser agrees to pay Xyplex in 
accordance with the requirements of that invoice) if the Product 
being replaced is not returned to Xyplex, freight prepaid, within 
thirty (30) days of Purchasers receipt of the replacement 
Product.
	b.  Software or Firmware - A Product Defect shall 
mean a defect in the media itself, which is reported to Xyplex 
Networks by Purchaser within ninety (90) days from the date it 
was first shipped by Xyplex Networks to Purchaser.  Xyplex 
Networks shall have the option, but not an obligation, to repair,  
replace or grant a refund with regard to the repaired or replaced 
Product during the remainder of that same period.
	c.  Services - Xyplex Networks responsibility and 
liability for any defective Service(s) is solely as set forth in the 
applicable Xyplex Networks Support Agreements.  To the 
extent Xyplex provides any Services without charge, such 
Services shall be supplied on an AS-IS basis only, and Xyplex 
shall bear no responsibility or liability for such Services.
8.  Responsibility - Xyplex Networks responsibility for 
repairing, replacing or refunding the net purchase price paid by 
Purchaser for Products with Product Defects applies only to 
Product Defects present when shipped by Xyplex.  Accordingly, 
and for example, Xyplex is not responsible for repairing, 
replacing or refunding the purchase price paid for Products with 
Product Defects arising out of any accident, abuse, 
misapplication, alteration, attached equipment, improper 
handling or installation, improper operation, operation outside 
of the environmental specifications for the Products, or any 
other cause outside of Xyplexs control.

9.  Infringement - Xyplex Networks retains the exclusive right 
to defend Purchaser against any claim(s) based on a Xyplex 
Networks Product (excluding Third Party Product content) 
infringing a patent or a copyright.  If Purchaser provides Xyplex 
Networks with prompt written notice of a claim(s) or any threat 
of such a claim(s), and provided that Purchaser gives Xyplex 
Networks all assistance required in connection with such 
defense and Purchaser is not in breach of its obligations 
hereunder, Xyplex will pay all damages finally awarded.  
However, Xyplex Networks may, at its option, settle any such 
claim(s), purchase a license under the allegedly infringed patent 
or copyright, replace or modify the Product to avoid the 
infringement asserted, or grant Purchaser a refund or credit not 
to exceed the purchase price paid by Purchaser for the infringing 
unit(s) of Product.  Subject to Paragraph 10 below, Xyplex 
Networks responsibility or liability with regard to infringement 
claim(s) shall apply only to the infringement of a patent or a 
copyright by the unmodified Xyplex Networks Product on a 
standalone basis.  Accordingly, and for example, Xyplex 
Networks shall have no responsibility or liability for any 
intellectual property infringement claim(s) arising out of the 
combination, operation or use of any Xyplex Networks 
Product(s) with hardware, software or firmware not owned or 
licensed by Xyplex Networks hereunder.

10.  Third Party Products - To the extent any Product includes 
hardware, software or firmware purchased or licensed by Xyplex 
Networks from a third party (Third Party Products), 
Purchasers right to use such third party content shall be subject 
to the terms and conditions packaged with such contents.  
Xyplex Networks only responsibility and liability for any 
Third Party Products shall be limited to passing through 
whatever warranty protections, support, licensing and 
indemnification protections it is entitled to pass through to 
Purchaser.

11.  License - Subject to the provisions of Paragraph 10 above, 
Xyplex Networks grants Purchaser a non-transferable, non-
exclusive personal license to use the Xyplex Networks Software 
at a Purchaser facility which is owned and controlled by 
Purchaser, solely to communicate to Xyplex Networks 
Hardware at that same facility for Purchasers own end-use 
purposes at such facilities.  Such end-use specifically excludes any 
right to, and Purchaser agrees not to (i) decompile, reverse 
compile, disassemble, reverse engineer or perform any other 
activity which has as its purpose or otherwise results in the 
derivation of Xyplex Networks Software source code; (ii) copy 
except as authorized in Paragraph 13 below; (iii)  modify; or (iv) 
transfer, the Xyplex Networks Software and/or any 
documentation associated therewith.  This license will terminate 
if, as and when Purchaser fails to comply with any term or 
condition of this Agreement.

12.  Indemnification - Purchaser agrees to indemnify and 
hereby holds Xyplex Networks harmless from any liabilities, 
claims, or damages, in contract and at law, arising out of any (i) 
any act or omission of Purchaser (including but not limited to 
any use of a Product), or (ii) Xyplex Networks compliance with 
Purchasers instructions, specifications or requirements.

13.  Backup - Purchaser may make one (1) single copy of the 
Xyplex Networks Software solely for backup purposes but 
provided that all legends, notices and logos appearing on the 
original copy supplied to Purchaser are accurately reproduced on 
the backup copy.

14.  Audit - Xyplex Networks shall have the right to inspect the 
Purchasers facility(s) where the Xyplex Networks Products are 
located, and to audit Purchasers records to satisfy itself that 
Purchaser is complying with all requirements of this Agreement.

15.  Product and Methods of Doing Business Changes - 
Xyplex Networks reserves the right to modify as well as 
obsolete any and all of its Products, associated Product offerings 
as well as the basis of their availability, at any time and without 
notice.

16.  Insolvency - In the event of any proceedings, voluntary or 
involuntary, in bankruptcy or insolvency, brought by or against 
Purchaser, including any proceeding under the applicable 
Federal or State Bankruptcy law currently in effect, or in the 
event of the appointment, with or without Xyplex Networks 
consent, of any assignee for the benefit of creditors or of a 
receiver, Xyplex Networks shall be entitled to accelerate the due 
date for payment of any invoices then outstanding and to cancel 
any unfilled part of any outstanding Purchase Order issued by 
Purchaser, without liability or penalty.

17.  Overshipment or Undershipment - Purchaser shall be 
obligated and agrees to promptly pay for all Products in 
accordance with Paragraph 3.  Shipment to Purchases of less 
than the quantity of Products ordered shall not entitle Purchaser 
to withhold payment for those Products already received.  
Shipment of more than the quantity of Products ordered shall 
entitle Purchaser to withhold payment for Products not 
ordered, provided such Products are shipped (prepaid) back to 
Xyplex Networks in their original, unopened containers, within 
ten (10) days of their receipt.

18.  Data Rights - The Xyplex Networks Software Products 
and the software programs contained in any Third Party 
Products, as well as the related documentation, are commercial 
computer software or commercial computer software 
documentation.  Purchasers rights with respect to such Xyplex 
Networks Products, Third Party Products and documentation 
are limited by the Xyplex terms and conditions set forth herein 
or which are otherwise published, pursuant to FAR 12.212(a) 
and/or DFARS 227.7202-1(a), as applicable.

19.  High-Risk - The Xyplex Networks Products and Third 
Party Products purchase hereunder are not fault-tolerant and are 
not designed, certified, manufactured or intended for use in 
hazardous environments requiring fail-safe or uninterrupted 
performance, including without limitation, the operation of 
nuclear facilities, aircraft navigation or communication systems, 
air traffic control, direct life support machines, weapons 
systems, or disposal of hazardous waste, in which the failure of 
such software programs could lead, directly or indirectly, to 
death, personal injury, or severe physical or environmental 
damage (High Risk Activities).  Purchaser agrees not to in any 
manner represent, directly or indirectly, that any Xyplex 
Networks Product or Third Party Product is in any way 
suitable for such Activities.  XYPLEX NETWORKS HAS 
NOT MADE ANY EXPRESS WARRANTIES, AND 
SPECIFICALLY DISCLAIMS ALL WARRANTIES WHICH 
COULD BE IMPLIED, INCLUDING BUT NOT LIMITED 
TO WARRANTIES OF FITNESS FOR ANY PARTICULAR 
PURPOSE SUCH AS HIGH RISK ACTIVITIES.  Purchaser 
shall, and agrees to indemnify and hereby holds Xyplex harmless 
from and against any and all claims for losses, costs, damages, 
expenses, or liability which may arise out of, or be connected 
with, Purchasers failure to comply with this obligation.

20.  Limitation of Remedies - TO THE EXTENT 
ENFORCEABLE, AND AS PART OF THE BARGAINED 
FOR CONSIDERATION, XYPLEX NETWORKS 
LIABILITY, IN CONTRACT AND AT LAW 
(IRRESPECTIVE OF FAULT OR NEGLIGENCE), SHALL 
BE LIMITED TO DIRECT DAMAGES SUFFERED BY 
PURCHASER AND SHALL BE LIMITED TO THE 
PURCHASE PRICE PAID BY PURCHASER TO XYPLEX 
FOR THE XYPLEX PRODUCT(S) WHICH IS/ARE THE 
SUBJECT OF A SPECIFIC CLAIM.  IN NO EVENT SHALL 
XYPLEX NETWORKS BE RESPONSIBLE OR LIABLE TO 
PURCHASER OR TO ANY THIRD PARTY FOR ANY 
DAMAGES, HOWEVER CHARACTERIZED, WHICH 
EQUATE TO LOST PROFITS, LOST SAVINGS, LOSS OF 
USE, LOSS OF BUSINESS OPPURTUNITES, OR ARE 
PUNITIVE, INCIDENTAL, SPECIAL, INDIRECT, OR 
CONSEQUENTIAL IN NATURE, OR WHICH 
OTHERWISE ARISE OUT OF THE USE OF OR 
INABILITY TO USE ANY XYPLEX NETWORKS 
PRODUCT(S) OR THIRD PARTY PRODUCTS, EVEN IF 
XYPLEX NETWORKS WAS ADVISED OF THE 
POSSIBILITY OF SUCH DAMAGE.  IN NO EVENT 
SHALL  XYPLEX NETWORKS CUMULATIVE 
MAXIMUM AGGREGATE LIABILITY EXCEED THE 
TOTAL PURCHASE PRICE PAID HEREUNDER BY 
PURCHASER FOR XYPLEX PRODUCTS.

21.  Assignment of Rights - Purchaser shall not delegate any 
duties nor assign any rights or claims under this contract or for 
breach thereof without the prior written consent of Xyplex 
Networks, and no attempted delegation or assignment absent 
such consent shall be binding on Xyplex Networks.  

22.  Remedies - The rights and remedies provided to Purchaser 
herein shall be exclusive and in lieu of any other rights and 
remedies provided by law or equity (or provided under the 
Uniform Commercial Code).

23.  Waiver - Waiver of a breach of any of these terms and 
conditions shall not constitute waiver of full compliance with 
such provision, nor shall it be construed as a waiver of any other 
breach.

24.  Governing Law - These terms and conditions shall be interpreted, 
governed and enforced in all respects according to the laws and by the courts of 
the Commonwealth of Massachusetts (excluding its conflicts of law provisions).

25.  Export - Purchaser agrees not to ship, transfer or export, directly or 
indirectly, any Products nor any direct product thereof, outside of the U.S. 
unless in full compliance with all applicable export requirements, and in no 
event into any country prohibited by the United States Export Administration 
Act and the regulations thereunder.

26.  Acknowledgment - PURCHASER REPRESENTS THAT IT HAS 
READ AND UNDERSTANDS THIS AGREEMENT, HAS HAD THE 
BENEFIT OF LEGAL COUNSEL IN THIS REGARD, AND AGREES TO 
BE BOUND BY THESE TERMS AND CONDITIONS.  THIS 
AGREEMENT IS THE COMPLETE AND EXCLUSIVE STATEMENT OF 
THE UNDERSTANDINGS REACHED BETWEEN PURCHASER AND 
XYPLEX NETWORKS AND SUPERCEDES ALL PROPOSALS, AND 
PRIOR WRITINGS AND AGREEMENTS, VERBAL OR WRITTEN, 
BETWEEN THESE PARTIES RELATING TO THE SUBJECT MATTER 
OF THIS AGREEMENT.
