9.UNITED STATES GOVERNMENT RESTRICTED RIGHTS. The Licensed Materials (i) were developed solely at private expense; (ii) contains “restricted computer software” submitted with restricted rights in accordance with section 52.227‐19 (a) through (d) of the Commercial Computer Software‐Restricted Rights Clause and its successors, and (iii) in all respects is proprietary data belonging to Enterasys and/or its suppliers. For Department of Defense units, the Licensed Materials are considered commercial computer software in accordance with DFARS section 227.7202‐3 and its successors, and use, duplication, or disclosure by the U.S. Government is subject to restrictions set forth herein.
10.LIMITED WARRANTY AND LIMITATION OF LIABILITY. The only warranty Enterasys makes to You in connection with this license of the Licensed Materials is that if the media on which the Licensed Software is recorded is defective, it will be replaced without charge, if Enterasys in good faith determines that the media and proof of payment of the license fee are returned to Enterasys or the dealer from whom it was obtained within ninety (90) days of the date of payment of the license fee.
NEITHER ENTERASYS NOR ITS AFFILIATES MAKE ANY OTHER WARRANTY OR REPRESENTATION, EXPRESS OR IMPLIED, WITH RESPECT TO THE LICENSED MATERIALS, WHICH ARE LICENSED ʺAS ISʺ. THE LIMITED WARRANTY AND REMEDY PROVIDED ABOVE ARE EXCLUSIVE AND IN LIEU OF ALL OTHER WARRANTIES, INCLUDING IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, WHICH ARE EXPRESSLY DISCLAIMED, AND STATEMENTS OR REPRESENTATIONS MADE BY ANY OTHER PERSON OR FIRM ARE VOID. ONLY TO THE EXTENT SUCH EXCLUSION OF ANY IMPLIED WARRANTY IS NOT PERMITTED BY LAW, THE DURATION OF SUCH IMPLIED WARRANTY IS LIMITED TO THE DURATION OF THE LIMITED WARRANTY SET FORTH ABOVE. YOU ASSUME ALL RISK AS TO THE QUALITY, FUNCTION AND PERFORMANCE OF THE LICENSED MATERIALS. IN NO EVENT WILL ENTERASYS OR ANY OTHER PARTY WHO HAS BEEN INVOLVED IN THE CREATION, PRODUCTION OR DELIVERY OF THE LICENSED MATERIALS BE LIABLE FOR SPECIAL, DIRECT, INDIRECT, RELIANCE, INCIDENTAL OR CONSEQUENTIAL DAMAGES, INCLUDING LOSS OF DATA OR PROFITS OR FOR INABILITY TO USE THE LICENSED MATERIALS, TO ANY PARTY EVEN IF ENTERASYS OR SUCH OTHER PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. IN NO EVENT SHALL ENTERASYS OR SUCH OTHER PARTYʹS LIABILITY FOR ANY DAMAGES OR LOSS TO YOU OR ANY OTHER PARTY EXCEED THE LICENSE FEE YOU PAID FOR THE LICENSED MATERIALS.
Some states do not allow limitations on how long an implied warranty lasts and some states do not allow the exclusion or limitation of incidental or consequential damages, so the above limitation and exclusion may not apply to You. This limited warranty gives You specific legal rights, and You may also have other rights which vary from state to state.
11.JURISDICTION. The rights and obligations of the parties to this Agreement shall be governed and construed in accordance with the laws and in the State and Federal courts of the Commonwealth of Massachusetts, without regard to its rules with respect to choice of law. You waive any objections to the personal jurisdiction and venue of such courts. None of the 1980 United Nations Convention on the Limitation Period in the International Sale of Goods, and the Uniform Computer Information Transactions Act shall apply to this Agreement.
12.GENERAL.
(a)This Agreement is the entire agreement between Enterasys and You regarding the Licensed Materials, and all prior agreements, representations, statements, and undertakings, oral or written, are hereby expressly superseded and canceled.
(b)This Agreement may not be changed or amended except in writing signed by both parties hereto.
(c)You represent that You have full right and/or authorization to enter into this Agreement.
(d)This Agreement shall not be assignable by You without the express written consent of Enterasys, The rights of Enterasys and Your obligations under this Agreement shall inure to the benefit of Enterasys’ assignees, licensors, and licensees.
(e)Section headings are for convenience only and shall not be considered in the interpretation of this Agreement.
(f)The provisions of the Agreement are severable and if any one or more of the provisions hereof are judicially determined to be illegal or otherwise unenforceable, in whole or in part, the remaining provisions of this Agreement shall nevertheless be binding on and enforceable by and between the parties hereto.
(g)Enterasys’ waiver of any right shall not constitute waiver of that right in future. This Agreement constitutes the entire understanding between the parties with respect to the subject matter hereof, and all prior agreements, representations, statements and undertakings, oral or written, are hereby expressly superseded and canceled. No purchase order shall supersede this Agreement.
Should You have any questions regarding this Agreement, You may contact Enterasys at the address set forth below. Any notice or other communication to be sent to Enterasys must be mailed by certified mail to the following address: ENTERASYS NETWORKS, INC., 50 Minuteman Road, Andover, MA 01810 Attn: Manager ‐ Legal Department.
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