Cisco Systems SFS 7000 quick start

xv

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