Enterasys Networks Network Card Infringement Indemnification, Limitation of Liability, Appendix C

Appendix C Enterasys Networks License Agreement

EXCEPT AS SPECIFICALLY PROVIDED HEREIN, THERE ARE NO WARRANTIES, EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO ANY IMPLIED WARRANTY OF MERCHANTABILITY OR ANY IMPLIED WARRANTY OF FITNESS FOR A PARTICULAR PURPOSE.

Infringement Indemnification

Enterasys shall indemnify, defend and hold Customer harmless from and against any claims, actions, or demands alleging that the Licensed Software directly infringes any United States patent, trademark, or copyright, or misappropriates any trade secret right of any third party, provided that Customer promptly notifies Enterasys of any such claim, allows Enterasys to control the defense and provides reasonable information and assistance to Enterasys (at Enterasys' expense) in the defense of the claim. Customer shall permit Enterasys to replace or modify any affected Licensed Software to avoid infringement, or to procure for Customer the right to continue to use such Licensed Software. If neither of such alternatives is reasonably possible, Enterasys may require Customer to return the affected Licensed Software to Enterasys and Enterasys' sole liability in regard to such return shall be to refund the purchase price paid by Customer. Enterasys shall have no obligation with respect to claims, actions, or demands to the extent that they are based upon (i) the combination of Licensed Software with any items not supplied by Enterasys, (ii) any modification or change to the Licensed Software by Customer, or, (iii) any failure by Customer to implement modifications or replacements distributed by Enterasys that address any alleged infringement. This Section states the entire liability of Enterasys with respect to indemnification or liability for infringement or misappropriation of patents, copyrights, trademarks, trade secrets or other proprietary rights by Enterasys or the Licensed Software or any part thereof or by their use or operation.

Limitation of Liability

ENTERASYS AND ITS LICENSORS' TOTAL LIABILITY FOR ANY CAUSE OF ACTION ARISING IN CONNECTION WITH THIS AGREEMENT, AND REGARDLESS OF THE FORM OF ACTION, WHETHER IN CONTRACT OR IN TORT INCLUDING NEGLIGENCE, SHALL BE LIMITED TO THE ACTUAL DOLLAR AMOUNT ENTERASYS RECEIVED HEREUNDER

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