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<br />Extreme NIaaS Subscriber Terms of Use_End User Direct v091224 Page 3 of 13
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<br />5. Access to Extreme Technology.
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<br />a. Extreme retains the sole and complete discretion to determine the appropriate Extreme
<br />Technology to be deployed at an identified Premise. Such Extreme discretion includes, without limitation,
<br />the rights:
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<br />(i) to select and substitute Extreme products;
<br />(ii) to refresh one or more items of Extreme Technology with new technology when deemed
<br />appropriate;
<br />(iii) to adjust the capacity of the Extreme Technology to meet variations in Subscriber's
<br />current and projected utilization; and
<br />(iv) to modify Extreme Technology in order to meet the requirements of these Terms of Use.
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<br />b. Extreme has the right to inspect and perform maintenance, repair, replacement, inspection, monitoring,
<br />identification or repossession, as permitted herein, of the Extreme Technology and performance of the NlaaS
<br />Subscriptions from time to time, as may reasonably be determined is necessary by Extreme. Extreme also has
<br />the right to access the Extreme Technology as necessary to obtain usage report information and documentation,
<br />and provide purchased Support Services, at any reasonable time. NOTWITHSTANDING ANYTHING TO THE
<br />CONTRARY HEREIN, EXTREME SHALL NOT BE LIABLE FOR ANY LOSS, DELAY, DOWNTIME OR
<br />UNAVAILABILITY OF DATA ASSOCIATED WITH EXTREME'S INABILITY TO ACCESS THE EXTREME
<br />TECHNOLOGY DUE TO SUBSCRIBER'S SECURITY PROCEDURES OR FAILURE TO COMPLY WITH
<br />THIS PROVISION.
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<br />c. Subscriber may not relocate the Extreme Technology from the installation address originally
<br />identified by Subscriber to Extreme, unless otherwise permitted in writing by Extreme, such consent not to
<br />be unreasonably withheld. Notwithstanding the foregoing, Extreme shall not be liable for any loss, delay,
<br />downtime, unavailability of data or Extreme's inability to fully perform the NlaaS Services associated with
<br />Subscriber's move or relocation of the Extreme Technology, including any required inspection or services
<br />determined necessary by Extreme to continue to provide the NIaaS Services. Any such inspection or
<br />services shall be at Subscriber's expense, charged at Extreme's then-current applicable time and materials
<br />rates.
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<br />d. Subscriber assumes and will bear the entire risk of loss and damage to the Extreme Technology
<br />from any cause whatsoever.
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<br />e. If the Extreme Technology, or any part thereof, is lost, stolen, destroyed or damaged beyond repair
<br />for any cause whatsoever, or becomes the subject of condemnation, confiscation, seizure or requisition of title to
<br />or use of the same, Subscriber must immediately notify Extreme of such loss and, at the option of Extreme,
<br />Subscriber must either:
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<br />(i) replace the Extreme Technology within thirty (30) days with replacement Extreme Technology
<br />having, in the sole discretion of Extreme, the same or greater value, utility and remaining useful
<br />economic life as the Extreme Technology so replaced, and the replacement Extreme
<br />Technology will immediately, and without further act, become Extreme Technology owned by
<br />Extreme, and fully subject to these Terms of Use; or
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<br />(ii) pay to Extreme, within thirty (30) days of invoice date, the full replacement value with respect to
<br />such lost Extreme Technology, as determined by Extreme's standard price list, subject to any
<br />applicable discounts.
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<br />6. Technology Refresh. Subscriber may elect to refresh the Extreme Technology one time during
<br />the NIaaS Subscription Term, defined in Exhibit B. In the event that Subscriber obtains a Refresh, Extreme
<br />will ship the agreed-upon Refresh Extreme Technology to Subscriber in the same or similar manner in
<br />which the original Extreme Technology was delivered. Subscriber will pay the transportation charges
<br />(including taxes, duties and customs) for the Refresh Extreme Technology. Within thirty (30) days of delivery
<br />of the Refresh Extreme Technology to Subscriber, Subscriber shall return the entire contents of the replaced
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