Motorola SV-4250-P-1 - AirDefense Enterprise Appliance 4250 Quick Installation Manual page 31

Licensee all requested information and assistance for resolving or defending the Infringement Claim. For non-AirDefense-branded product
supplied hereunder, including any third party software, AirDefense's obligations for IP infringement claims shall be limited to any IP indemnities
or defense commitments provided by such third party supplier. In addition to AirDefense's obligation to defend, and subject to the same
conditions, AirDefense shall pay all damages finally awarded against Licensee by a court of competent jurisdiction to the extent based upon such
Infringement Claim. If a Product is subject to an Infringement Claim or, if in AirDefense's judgment, likely to become subject to a Infringement
Claim, AirDefense's obligations under this Section shall be fulfilled if at any time AirDefense, in its sole discretion, shall: (x) obtain a license for
Licensee to continue to use or to sell the Product purchased from AirDefense; (y) replace or modify the Product so as to be substantially
functionally equivalent but non-infringing; or (z) refund the purchase price paid to AirDefense by Licensee for such Product less a reasonable
charge for straight line depreciation and/or prior use. AirDefense shall have no liability to Licensee for any alleged or actual infringement, or
otherwise, arising out of or in connection with Licensee's ordering, use or transfer of Products after AirDefense's notice to Licensee that Licensee
shall cease use or transfer of such Products.
b
AirDefense shall have no liability to Licensee under this Agreement (i) for any damages based upon a per-use royalty or the Licensee's revenues,
or upon any damages theory other than a reasonable royalty applied to, or lost profits of the patent owner based on, the purchase price paid by
Licensee to AirDefense for the infringing Product; or (ii) for any alleged or actual infringement arising out of (a) use of Products in connection or in
combination with equipment, devices or software not provided by AirDefense, (b) use of Products in a manner for which they were not designed,
(c) any modification of Products by anyone other than AirDefense, (d) compliance with Licensee's designs, specifications, guidelines or
instructions; or (e) use of the Product in a patented process ((a) – (e) defined as "Excluded Conduct"). Licensee shall indemnify AirDefense against
any claim of infringement that is brought against AirDefense based upon or arising out of such Excluded Conduct or arising out of Licensee's
continued use or transfer of Products after being noticed to cease such use or transfer. AirDefense shall not be responsible for any compromise or
settlement made by Licensee without AirDefense's prior written consent.
c
c) THIS SECTION PROVIDES LICENSEE'S SOLE AND EXCLUSIVE REMEDIES AND AIRDEFENSE'S ENTIRE LIABILITY IN THE EVENT OF AN
INFRINGEMENT CLAIM. LICENSEE HAS NO RIGHT TO RECOVER AND AIRDEFENSE HAS NO OBLIGATION TO PROVIDE ANY OTHER OR FURTHER
REMEDIES, WHETHER UNDER ANOTHER PROVISION OF THIS AGREEMENT OR ANY OTHER LEGAL THEORY OR PRINCIPLE, IN CONNECTION
WITH AN INFRINGEMENT CLAIM. IN ADDITION, THE RIGHTS AND REMEDIES PROVIDED IN THIS SECTION ARE SUBJECT TO AND LIMITED BY
THE RESTRICTIONS SET FORTH IN THE GENERAL LIMIT OF LIABILITY SECTION OF THS AGREEMENT. IN NO EVENT SHALL AIRDEFENSE BE
LIABLE FOR ANY SPECIAL, INCIDENTAL, INDIRECT, COLLATERAL, CONSEQUENTIAL OR PUNITIVE DAMAGES OR LOST PROFITS OF LICENSEE IN
CONNECTION WITH ANY CLAIMS, LOSSES, DAMAGES OR INJURIES UNDER THIS SECTION. In no event shall AirDefense's liability under this
Section exceed the total net sales to Licensee of the applicable Product.
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Confidential Information. Licensee acknowledges that the Products (including Hardware, Software and Documentation), and Products and support
services pricing, limitation of liability, indemnification and warranty terms are confidential and constitute valuable trade secrets of AirDefense. Licensee
agrees to take all reasonably necessary action to protect such confidential and proprietary information, including appropriate instruction and agreement
with employees and agents of Licensee. In the event of any breach of this Section each party acknowledges that the non-breaching party would suffer
irreparable harm and shall therefore be entitled to seek injunctive relief. This Section shall survive termination or expiration of this Agreement.
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Audit Rights. Licensee grants AirDefense the right, which AirDefense will exercise at its own expense and no more than once per year, to enter
Licensee's premises during business hours for the sole purpose of examining Licensee's records and other information relating to the Licensee's use of
the Products. If this examination reveals that Licensee has improperly used the Products, AirDefense shall invoice Licensee for such unauthorized use
based upon AirDefense's standard fees in effect at the time the examination is completed. If the underpaid fees exceed five percent (5%) of the fees
actually paid, then Licensee shall also pay AirDefense's reasonable costs of conducting the examination.
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Dispute Resolution.
a
SETTLEMENT PREFERRED. The Parties, by their project managers, will attempt to settle any dispute arising from this Agreement (except for a
claim relating to intellectual property or breach of confidentiality) through consultation and a spirit of mutual cooperation. The dispute will be
escalated to appropriate higher-level managers of the parties, if necessary. If cooperative efforts fail, the dispute will be mediated by a mediator
chosen jointly by the Parties within thirty (30) days after notice by one of the parties demanding non-binding mediation. The Parties will not
unreasonably withhold their consents to the selection of a mediator, will share the cost of the mediation equally, may agree to postpone
mediation until they have completed some specified but limited discovery about the dispute, and may replace mediation with some other form of
non-binding alternative dispute resolution ("ADR").
b
LITIGATION. A Party may submit to a court of competent jurisdiction in the state in which the System is installed any claim relating to intellectual
property or a breach of confidentiality provisions and any dispute that cannot be resolved between the parties through negotiation or mediation
within two (2) months after the date of the initial demand for non-binding mediation. Each Party consents to jurisdiction over it by that court. The
use of ADR procedures will not be considered under the doctrine of laches, waiver, or estoppel to affect adversely the rights of either Party. Either
Party may resort to the judicial proceedings described in this section before the expiration of the two-month ADR period if good faith efforts to
resolve the dispute under these procedures have been unsuccessful; or interim relief from the court is necessary to prevent serious and
irreparable injury to the Party.
Master License Agreement for the
AirDefense System
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