Moldova, Mongolia, North Korea, the People’s Republic of China, Russia, Tajikistan, Turkmenistan, Ukraine, Uzbekistan, Vietnam, or such other countries as may be designated by the United States Government), (ii) export to Country Groups D:1 or E:2 (as defined herein) the direct product of the Program or the technology, if such foreign produced direct product is subject to national security controls as identified on the U.S. Commerce Control List, or (iii) if the direct product of the technology is a complete plant or any major component of a plant, export to Country Groups D:1 or E:2 the direct product of the plant or a major component thereof, if such foreign produced direct product is subject to national security controls as identified on the U.S. Commerce Control List or is subject to State Department controls under the U.S. Munitions List.
5.UNITED STATES GOVERNMENT RESTRICTED RIGHTS. The enclosed Program (i) was 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 Program is 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.
6.DISCLAIMER OF WARRANTY. EXCEPT FOR THOSE WARRANTIES EXPRESSLY PROVIDED TO YOU IN WRITING BY ENTERASYS, ENTERASYS DISCLAIMS ALL WARRANTIES, EITHER EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO IMPLIED WARRANTIES OF MERCHANTABILITY, SATISFACTORY QUALITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE AND NON‐INFRINGEMENT WITH RESPECT TO THE PROGRAM. IF IMPLIED WARRANTIES MAY NOT BE DISCLAIMED BY APPLICABLE LAW, THEN ANY IMPLIED WARRANTIES ARE LIMITED IN DURATION TO THIRTY (30) DAYS AFTER DELIVERY OF THE PROGRAM TO YOU.
7.LIMITATION OF LIABILITY. IN NO EVENT SHALL ENTERASYS OR ITS SUPPLIERS BE LIABLE FOR ANY DAMAGES WHATSOEVER (INCLUDING, WITHOUT LIMITATION, DAMAGES FOR LOSS OF BUSINESS, PROFITS, BUSINESS INTERRUPTION, LOSS OF BUSINESS INFORMATION, SPECIAL, INCIDENTAL, CONSEQUENTIAL, OR RELIANCE DAMAGES, OR OTHER LOSS) ARISING OUT OF THE USE OR INABILITY TO USE THE PROGRAM, EVEN IF ENTERASYS HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THIS FOREGOING LIMITATION SHALL APPLY REGARDLESS OF THE CAUSE OF ACTION UNDER WHICH DAMAGES ARE SOUGHT.
THE CUMULATIVE LIABILITY OF ENTERASYS TO YOU FOR ALL CLAIMS RELATING TO THE PROGRAM, IN CONTRACT, TORT OR OTHERWISE, SHALL NOT EXCEED THE TOTAL AMOUNT OF FEES PAID TO ENTERASYS BY YOU FOR THE RIGHTS GRANTED HEREIN.
8.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 to maintain 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 to audit 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 examination shall 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. Enterasys reserves 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 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.
