Enterasys K-Series Installation Manual page 10

Vietnam, or such other countries as may be designated by the United States Government), (ii) export to Country Groups D:1 or
E:2 (as defined herein) the direct product of the Program or the technology, if such foreign produced direct product is subject to
national security controls as identified on the U.S. Commerce Control List, or (iii) if the direct product of the technology is a
complete plant or any major component of a plant, export to Country Groups D:1 or E:2 the direct product of the plant or a
major component thereof, if such foreign produced direct product is subject to national security controls as identified on the
U.S. Commerce Control List or is subject to State Department controls under the U.S. Munitions List.
5. UNITED STATES GOVERNMENT RESTRICTED RIGHTS. The enclosed Program (i) was developed solely at private
expense; (ii) contains "restricted computer software" submitted with restricted rights in accordance with section 52.227-19 (a)
through (d) of the Commercial Computer Software-Restricted Rights Clause and its successors, and (iii) in all respects is
proprietary data belonging to Enterasys and/or its suppliers. For Department of Defense units, the Program is considered
commercial computer software in accordance with DFARS section 227.7202-3 and its successors, and use, duplication, or
disclosure by the U.S. Government is subject to restrictions set forth herein.
6. DISCLAIMER OF WARRANTY. EXCEPT FOR THOSE WARRANTIES EXPRESSLY PROVIDED TO YOU IN WRITING
BY ENTERASYS, ENTERASYS DISCLAIMS ALL WARRANTIES, EITHER EXPRESS OR IMPLIED, INCLUDING BUT NOT
LIMITED TO IMPLIED WARRANTIES OF MERCHANTABILITY, SATISFACTORY QUALITY, FITNESS FOR A PARTICULAR
PURPOSE, TITLE AND NON-INFRINGEMENT WITH RESPECT TO THE PROGRAM. IF IMPLIED WARRANTIES MAY NOT
BE DISCLAIMED BY APPLICABLE LAW, THEN ANY IMPLIED WARRANTIES ARE LIMITED IN DURATION TO THIRTY
(30) DAYS AFTER DELIVERY OF THE PROGRAM TO YOU.
7. LIMITATION OF LIABILITY. IN NO EVENT SHALL ENTERASYS OR ITS SUPPLIERS BE LIABLE FOR ANY
DAMAGES WHATSOEVER (INCLUDING, WITHOUT LIMITATION, DAMAGES FOR LOSS OF BUSINESS, PROFITS,
BUSINESS INTERRUPTION, LOSS OF BUSINESS INFORMATION, SPECIAL, INCIDENTAL, CONSEQUENTIAL, OR
RELIANCE DAMAGES, OR OTHER LOSS) ARISING OUT OF THE USE OR INABILITY TO USE THE PROGRAM, EVEN IF
ENTERASYS HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THIS FOREGOING LIMITATION SHALL
APPLY REGARDLESS OF THE CAUSE OF ACTION UNDER WHICH DAMAGES ARE SOUGHT.
THE CUMULATIVE LIABILITY OF ENTERASYS TO YOU FOR ALL CLAIMS RELATING TO THE PROGRAM, IN
CONTRACT, TORT OR OTHERWISE, SHALL NOT EXCEED THE TOTAL AMOUNT OF FEES PAID TO ENTERASYS BY
YOU FOR THE RIGHTS GRANTED HEREIN.
8. AUDIT RIGHTS. You hereby acknowledge that the intellectual property rights associated with the Program are of critical
value to Enterasys, and, accordingly, You hereby agree to maintain complete books, records and accounts showing (i) license
fees due and paid, and (ii) the use, copying and deployment of the Program. You also grant to Enterasys and its authorized
representatives, upon reasonable notice, the right to audit and examine during Your normal business hours, Your books, records,
accounts and hardware devices upon which the Program may be deployed to verify compliance with this Agreement, including
the verification of the license fees due and paid Enterasys and the use, copying and deployment of the Program. Enterasys' right
of examination shall be exercised reasonably, in good faith and in a manner calculated to not unreasonably interfere with Your
business. In the event such audit discovers non-compliance with this Agreement, including copies of the Program made, used
or deployed in breach of this Agreement, You shall promptly pay to Enterasys the appropriate license fees. Enterasys reserves
the right, to be exercised in its sole discretion and without prior notice, to terminate this license, effective immediately, for failure
to comply with this Agreement. Upon any such termination, You shall immediately cease all use of the Program and shall return
to Enterasys the Program and all copies of the Program.
9. OWNERSHIP. This is a license agreement and not an agreement for sale. You acknowledge and agree that the Program
constitutes trade secrets and/or copyrighted material of Enterasys and/or its suppliers. You agree to implement reasonable
security measures to protect such trade secrets and copyrighted material. All right, title and interest in and to the Program shall
remain with Enterasys and/or its suppliers. All rights not specifically granted to You shall be reserved to Enterasys.
10. ENFORCEMENT. You acknowledge and agree that any breach of Sections 2, 4, or 9 of this Agreement by You may cause
Enterasys irreparable damage for which recovery of money damages would be inadequate, and that Enterasys may be entitled
to seek timely injunctive relief to protect Enterasys' rights under this Agreement in addition to any and all remedies available at
law.
11. ASSIGNMENT. You may not assign, transfer or sublicense this Agreement or any of Your rights or obligations under this
Agreement, except that You may assign this Agreement to any person or entity which acquires substantially all of Your stock
assets. Enterasys may assign this Agreement in its sole discretion. This Agreement shall be binding upon and inure to the benefit
of the parties, their legal representatives, permitted transferees, successors and assigns as permitted by this Agreement. Any
attempted assignment, transfer or sublicense in violation of the terms of this Agreement shall be void and a breach of this
Agreement.
12. WAIVER. A waiver by Enterasys of a breach of any of the terms and conditions of this Agreement must be in writing and
will not be construed as a waiver of any subsequent breach of such term or condition. Enterasys' failure to enforce a term upon
Your breach of such term shall not be construed as a waiver of Your breach or prevent enforcement on any other occasion.
viii