5.LIMITED WARRANTY
5.1Media and Documentation. Legato warrants that if the media or documentation are damaged or physically defective at the time of delivery of the first copy of the Software to Licensee and if defective or damaged product is returned to Legato (postage prepaid) within thirty (30) days thereafter, then Legato will provide Licensee with replacements at no cost.
5.2Limited Software Warranty. Subject to the conditions and limitations of liability stated herein, Legato warrants for a period of thirty (30) days from the delivery of the first copy of the Software to Licensee that the Software, as delivered, will materially conform to Legato’s then current published Documentation for the Software. This warranty covers only problems reported to Legato during the warranty period. For customers outside of the United States, this Limited Software Warranty shall be construed to limit the warranty to the minimum warranty required by law.
5.3Remedies. The remedies available to Licensee hereunder for any such Software which does not perform as set out herein shall be either repair or replacement, or, if such remedy is not practicable in Legato’s opinion, refund of the license fees paid by Licensee upon a return of all copies of the Software to Legato. In the event of a refund this Agreement shall terminate immediately without notice
6.TERM AND TERMINATION
6.1Term. The term of this Agreement is perpetual unless terminated in accordance with its provisions.
6.2Termination. Legato may terminate this Agreement, without notice, upon Licensee’s breach of any of the provisions hereof.
6.3Effect of Termination. Upon termination of this Agreement, Licensee agrees to cease all use of the Software and to return to Legato or destroy the Software and all Documentation and related materials in Licensee’s possession, and so certify to Legato. Except for the License granted herein and as expressly provided herein, the terms of this Agreement shall survive termination.
7.DISCLAIMER AND LIMITATIONS
7.1Warranty Disclaimer. EXCEPT FOR THE LIMITED WARRANTY PROVIDED IN SECTION 5 ABOVE, LEGATO AND ITS LICENSORS MAKE NO WARRANTIES WITH RESPECT TO ANY SOFTWARE AND DISCLAIMS ALL STATUTORY OR IMPLIED WARRANTIES, INCLUDING WITHOUT LIMITATION WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR ARISING FROM A COURSE OF DEALING OR USAGE OF TRADE AND ANY WARRANTIES OF NONINFRINGEMENT. ALL SOFTWARE IS PROVIDED “AS IS” AND LEGATO DOES NOT WARRANT THAT THE SOFTWARE WILL MEET ANY REQUIREMENTS OR THAT THE OPERATION OF SOFTWARE WILL BE UNINTERRUPTED OR ERROR FREE. ANY LIABILITY OF LEGATO WITH RESPECT TO THE SOFTWARE OR THE PERFORMANCE THEREOF UNDER ANY WARRANTY, NEGLIGENCE, STRICT LIABILITY OR OTHER THEORY WILL BE LIMITED EXCLUSIVELY TO THE REMEDIES SPECIFIED IN SECTION 5.3 ABOVE. Some jurisdictions do not allow the exclusion of implied warranties or limitations on how long an implied warranty may last, so the above limitations may not be applicable.
8.LIMITATION OF LIABILITY
8.1Limitation of Liability. EXCEPT FOR BODILY INJURY, LEGATO (AND ITS LICENSORS) WILL NOT BE LIABLE OR RESPONSIBLE WITH RESPECT TO THE SUBJECT MATTER OF THIS AGREEMENT UNDER ANY CONTRACT, NEGLIGENCE, STRICT LIABILITY, OR OTHER LEGAL OR EQUITABLE THEORY FOR: (I) ANY INDIRECT, SPECIAL, INCIDENTAL OR CONSEQUENTIAL DAMAGES, HOWEVER CAUSED AND WHETHER OR NOT ADVISED IN ADVANCE OF THE POSSIBILITY OF SUCH DAMAGES; OR (II) DAMAGES FOR LOST PROFITS OR LOST DATA; OR (III) COST OF PROCUREMENT OF SUBSTITUTE GOODS, TECHNOLOGY, SERVICES, OR RIGHTS; OR FOR AMOUNTS IN EXCESS OF THOSE RECEIVED BY LEGATO FOR THE PARTICULAR LEGATO SOFTWARE THAT CAUSED THE LIABILITY. Because some jurisdictions do not allow the exclusion or limitation of incidental or consequential damages, Legato's liability in such jurisdictions shall be limited to the extent permitted by law.
9.MISCELLANEOUS
9.1Governing Law. This Agreement shall be governed by the laws of the State of California, as applied to agreements entered into and to be performed entirely within California between California residents, without regard to the
principles of conflict of laws or the United Nations Convention on Contracts for the International Sale of Goods.
9.2Government Restricted Rights. This provision applies to Software acquired directly or indirectly by or on behalf of any government. The Software is a commercial software product, licensed on the open market at market prices, and was developed entirely at private expense and without the use of any government funds. All Software and accompanying Documentation provided in connection with this Agreement are “commercial items,” “commercial computer software,” and/or “commercial computer software documentation.” Any use, modification, reproduction, release, performance, display, or disclosure of the Software by any government shall be governed solely by the terms of this Agreement and shall be prohibited except to the extent expressly permitted by the terms of this Agreement, and no license to the Software is granted to any government requiring different terms. Licensee shall ensure that each copy used or possessed by or for any government is labeled to reflect the foregoing.
9.3Export and Import Controls. Regardless of any disclosure made by Licensee to Legato of an ultimate destination of the Products, Licensee will not directly or indirectly export or transfer any portion of the Software, or any system containing a portion of the Software, to anyone outside the United States (including further export if Licensee took delivery outside the U.S.) without first complying with any export or import controls that may be imposed on the Software by the U.S. Government or any country or organization of nations within whose jurisdiction Licensee operates or does business. Licensee shall at all times strictly comply with all such laws, regulations, and orders, and agrees to commit no act which, directly or indirectly, would violate any such law, regulation or order.
9.4Assignment. This Agreement may not be assigned or transferred by Licensee without the prior written consent of Legato, which shall not be unreasonably withheld. Legato may assign or otherwise transfer any or all of its rights and obligations under this Agreement upon notice to Licensee.
9.5Sole Remedy and Allocation of Risk. Licensee's sole and exclusive remedies are set forth in this Agreement. This Agreement defines a mutually
9.6Equitable Relief. The parties agree that a breach of this Agreement adversely affecting Legato’s intellectual property rights in the Software may cause irreparable injury to Legato for which monetary damages may not be an adequate remedy and Legato shall be entitled to equitable relief in addition to any remedies it may have hereunder or at law.
9.7No Waiver. Failure by either party to enforce any provision of this Agreement will not be deemed a waiver of future enforcement of that or any other provision, nor will any single or partial exercise of any right or power hereunder preclude further exercise of any other right hereunder.
9.8Severability. If for any reason a court of competent jurisdiction finds any provision of this Agreement, or portion thereof, to be unenforceable, that provision of the Agreement will be enforced to the maximum extent permissible so as to effect the intent of the parties, and the remainder of this Agreement will continue in full force and effect.
10.ENTIRE AGREEMENT
10.1This Agreement sets forth the entire understanding and agreement between the parties and may be amended only in a writing signed by authorized representatives of both parties. No vendor, distributor, dealer, retailer, sales person, or other person is authorized by Legato to modify this Agreement or to make any warranty, representation, or promise which is different than, or in addition to, the warranties, representations, or promises made in this Agreement. No preprinted purchase order terms shall in any way modify, replace, or supersede the terms of this Agreement.