V8. AUDIT RIGHTS. You hereby acknowledge that the intellectual property rights
associated with the Program are of critical value to Enterasys and, accordingly, You hereby
agree tomaintain complete books, records and accounts showing (i) license fees due and
paid, and (ii) the use, copying and deployment of the Program. You also grant to Enterasys
and its authorized representatives, upon reasonable notice, the right toaudit and examine
during Your normal business hours, Your books, records, accounts and hardware devices
upon which the Program may be deployed to verify compliance with this Agreement,
including the verification of the license fees due and paid Enterasys and the use, copying
and deployment of the Program. Enterasys’ right of examinationshall be exercised
reasonably, in good faith and in a manner calculated to not unreasonably interfere with
Your business. In the event such audit discovers non-compliance with this Agreement,
including copies of the Program made, used or deployed in breach of this Agreement, You
shall promptly pay to Enterasys the appropriate license fees. Enterasysreserves the right ,
to be exercised in its sole discretion and without prior notice, to terminate this license,
effective immediately, for failure to comply with this Agreement. Upon any such
termination, You shall immediately cease all use of the Program and shall return to
Enterasys the Program and all copies of the Program.
9. OWNERSHIP. This is a license agreement and not an agreement for sale. You
acknowledge and agree that the Program constitutes trade secrets and/or copyrighted
material of Enterasys and/or its suppliers. You agree to implement reasonable security
measures to protect such trade secrets and copyrighted material. All right, title and interest
in and to the Program shall remain with Enterasys and/or its suppliers. All rights not
specifically granted to You shall be reserved to Enterasys.
10. ENFORCEMENT. You acknowledge and agree that any breach of Sections 2, 4, or
9 of this Agreement by You may cause Enterasys irreparable damage for which recovery
of money damages would be inadequate, and that Enterasys may be entitled to seek timely
injunctive relief to protect Enterasys’ rights under this Agreement in addition to any and all
remedies available at law.
11. ASSIGNMENT. You may not assign, transfer or sublicense this Agreement or any
of Your rights or obligations under this Agreement, except that You may assign this
Agreement to any person or entity which acquires substantially all of Your stock or assets.
Enterasys may assign this Agreement in its sole discretion. This Agreement shall be
binding upon and inure to the benefit of the parties, their legal representatives, permitted
transferees, successors and assigns as permitted by this Agreement. Any attempted
assignment, transfer or sublicense in violation of the terms of this Agreement shall be void
and a breach of this Agreement.
12. WAIVER. A waiver by Enterasys of a breach of any of the terms and conditions of
this Agreement must be in writing and will not be construed as a waiver of any subsequent
breach of such term or condition. Enterasys’ failure to enforce a term upon Your breach of
such term shall not be construed as a waiver of Your breach or prevent enforcement on any
other occasion.