7.
Government Restricted Rights. As defined in FAR section 2.101, DFAR section 252.227-7014(a)(1) and DFAR section
252.227-7014(a)(5) or otherwise, the Software provided in connection with this Agreement are "commercial items," "commercial com-
puter software" and/or "commercial computer software documentation." Consistent with DFAR section 227.7202, FAR section 12.212
and other sections, any use, modification, reproduction, release, performance, display, disclosure or distribution thereof by or for the
U.S. Government shall be governed solely by the terms of this Agreement and shall be prohibited except to the extent expressly per-
mitted by the terms of this Agreement. Any technical data provided that is not covered by the above provisions shall be deemed "tech-
nical data-commercial items" pursuant to DFAR section 227.7015(a). Any use, modification, reproduction, release, performance,
display or disclosure of such technical data shall be governed by the terms of DFAR section 227.7015(b).
8.
Limitation of Liability. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT SHALL AIRESPACE OR ITS
SUPPLIERS BE LIABLE FOR THE COST OF PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES, LOSS OF PROFITS, OR FOR ANY
SPECIAL, CONSEQUENTIAL, INCIDENTAL, PUNITIVE OR INDIRECT DAMAGES (OR DIRECT DAMAGES IN THE CASE OF Airespace'S
SUPPLIERS) ON ANY THEORY OF LIABILITY, WHETHER IN CONTRACT, TORT (INCLUDING WITHOUT LIMITATION NEGLIGENCE),
STRICT LIABILITY OR OTHERWISE ARISING OUT OF OR UNDER THIS AGREEMENT OR ANY USE OR INABILITY TO USE THE LICENSED
MATERIALS OR EQUIPMENT, OR FOR BREACH OF THIS AGREEMENT. AIRESPACE'S TOTAL LIABILITY ARISING OUT OF OR UNDER THIS
AGREEMENT, OR USE OR INABILITY TO USE THE LICENSED MATERIALS OR EQUIPMENT, OR FOR BREACH OF THIS AGREEMENT,
WHETHER IN CONTRACT, TORT (INCLUDING WITHOUT LIMITATION NEGLIGENCE), STRICT LIABILITY OR OTHERWISE, SHALL NOT
EXCEED THE PRICE PAID FOR THE SOFTWARE (FOR THE STANDALONE SOFTWARE) AND THE PRICE PAID FOR THE EQUIPMENT (FOR
THE EMBEDDED SOFTWARE AND EQUIPMENT). THE LIMITATIONS SET FORTH IN THIS SECTION SHALL APPLY EVEN IF AIRESPACE
AND/OR ITS SUPPLIERS ARE ADVISED OF THE POSSIBILITY OF SUCH DAMAGE, AND NOTWITHSTANDING THE FAILURE OF ESSEN-
TIAL PURPOSE OF ANY LIMITED REMEDY.
9.
Third Party Beneficiaries. Airespace's suppliers are intended third party beneficiaries of this Agreement. The terms and condi-
tions herein are made expressly for the benefit of and are enforceable by Airespace's suppliers; provided, however, that Airespace's
suppliers are not in any contractual relationship with Licensee. Airespace's suppliers include without limitation: (a) Hifn, Inc., a Dela-
ware corporation with principal offices at 750 University Avenue, Los Gatos, California; and (b) Wind River Systems, Inc. and its sup-
pliers.
10.
General. This Agreement is governed and interpreted in accordance with the laws of the State of California, U.S.A. without
reference to conflicts of laws principles and excluding the United Nations Convention on Contracts for the Sale of Goods. The parties
consent to the exclusive jurisdiction of, and venue in, Santa Clara County, California, U.S.A. Licensee shall not transfer, assign or
delegate this Agreement or any rights or obligations hereunder, whether voluntarily, by operation of law or otherwise, without the
prior written consent of Airespace (except as expressly set forth in Section 1(f)). Subject to the foregoing, the terms and conditions
of this Agreement shall be binding upon and inure to the benefit of the parties to it and their respective heirs, successors, assigns and
legal representatives. This Agreement constitutes the entire agreement between Airespace and Licensee with respect to the subject
matter hereof, and merges all prior negotiations and drafts of the parties with regard thereto. No modification of or amendment to
this Agreement, nor any waiver of any rights under this Agreement, by Airespace shall be effective unless in writing. If any of the
provisions of this Agreement is held by a court of competent jurisdiction to be invalid or unenforceable under any applicable statute
or rule of law, such provision shall, to that extent, be deemed omitted.
11/5/04
90-100831-300 Rev 2Alcatel OmniAccess Wireless Access Point Quick Installation Guide
Legal Information
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