Cisco InfiniBand SFS 7000 Quick Start Manual page 15

Customer must provide written notice to Topspin within thirty (30) days of delivery in the event
that Products do not conform to the quotation made by Topspin.
6. Intellectual Property Rights. Title to and ownership of the Software and any associated
documentation, and any improved, updated, modified or additional parts thereof, and all copyright,
patent, trade secret, trademark and other intellectual property rights embodied in the Products, shall
at all times remain the property of Topspin or Topspin's licensors. All suggestions or feedback
provided by Customer or its employees or agents to Topspin with respect to the Products shall be
Topspin's property and deemed confidential information of Topspin.
7. Force Majeure. Shipping dates are approximate and may be delayed absent prompt receipt from
Customer of all necessary information. Topspin shall not be responsible for any failure to perform
or delay attributable in whole or in part to any cause beyond its reasonable control, including but
not limited to Acts of God, government actions, war, civil disturbance, insurrection, sabotage, labor
shortages or disputes, failure or delay in delivery by Topspin's suppliers or subcontractors,
transportation difficulties, shortage of energy, raw materials or equipment, or Customer's fault or
negligence. In the event of any such delay the date of delivery shall, at the request of Topspin, be
deferred for a period equal to the time lost by reason of the delay.
8. Indemnity. (a) Topspin shall defend Customer against any third party action alleging that the
Products infringes any valid U.S. patent or copyright, and Topspin shall pay all settlements entered
into, and all final judgments and costs (including reasonable attorneys' fees) awarded against
Customer in connection with such action. If any Product, or parts thereof, becomes, or in Topspin's
opinion may become, the subject of an infringement claim, Topspin may, at its option, (i) procure
for Customer the right to continue using such Products, (ii) modify or replace such Products with
substantially equivalent non-infringing products, or (iii) require the return of such Products and
refund to Customer a pro-rata portion of the purchase price of such Products based on a three-year
straight line amortization of the purchase price. (b) Topspin shall have no indemnification
obligations with respect to any third party action alleging that (i) the use of any Products, or any
part thereof, in combination with products not supplied by Topspin, or (ii) any service or other
process utilizing any Products, or any part thereof, infringes any third party intellectual property
right, and in such event Customer shall defend Topspin, and its officers, directors and employees,
against any such action, and Customer shall pay all settlements entered into, and all final judgments
and costs (including reasonable attorneys' fees) awarded against such party in connection with such
action. (c) Each party's indemnification obligations shall be subject to the indemnified party (i)
notifying the indemnifying party promptly in writing of such action, (ii) giving the indemnifying
party exclusive control and authority over the defense or settlement of such action, (iii) not entering
into any settlement or compromise of any such action without the indemnifying party's prior
written consent and (iv) providing all reasonable assistance to the indemnifying party (provided
that the indemnifying party reimburses the indemnified party for its out-of-pocket expenses
incurred in providing such assistance). (d) THIS SECTION 8 STATES THE ENTIRE LIABILITY
OF TOPSPIN FOR ANY INFRINGEMENT OF INTELLECTUAL PROPERTY RIGHTS.
9. Limited Warranty and Disclaimer. Any limited warranty for the Products and Topspin's sole and
exclusivity liability thereunder is as set forth in Topspin's standard warranty documentation.
Notwithstanding anything herein or otherwise to the contrary, Topspin makes no warranty with
respect to any third party hardware or software products provided under this Agreement.
Customer's sole remedy with respect to such third party products shall be pursuant to the original
licensor's warranty, if any, to Customer, to the extent permitted by the original licensor. EXCEPT
FOR ANY EXPRESS LIMITED WARRANTIES FROM TOPSPIN IN SUCH
DOCUMENTATION, THE PRODUCTS ARE PROVIDED "AS IS", AND TOPSPIN AND ITS
SUPPLIERS MAKE NO WARRANTY, EXPRESS, IMPLIED, STATUTORY OR OTHERWISE,
WITH RESPECT TO PRODUCTS OR ANY PART THEREOF, INCLUDING WITHOUT
LIMITATION ANY IMPLIED WARRANTY OF MERCHANTABILITY, FITNESS FOR A
PARTICULAR PURPOSE, NONINFRINGEMENT, OR THOSE ARISING FROM COURSE OF
PERFORMANCE, DEALING, USAGE OR TRADE. NEITHER TOPSPIN NOR ANY OF ITS
SUPPLIERS WARRANT THAT THE PRODUCTS OR ANY PART THEREOF WILL MEET
CUSTOMER'S REQUIREMENTS OR BE UNINTERRUPTED, OR ERROR-FREE, OR THAT
ANY ERRORS IN THE PRODUCTS WILL BE CORRECTED. SOME
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