v
3.
APPLICABLE LAW.
This Agreement shall be interpreted and governed under the laws and in the state and
federal courts of the Commonwealth of Massachusetts without regard to its conflicts of laws provisions. You accept the
personal jurisdiction and venue of the Commonwealth of Massachusetts courts. None of the 1980 United Nations
Convention on Contracts for the International Sale of Goods, the 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.
4.
EXPORT RESTRICTIONS.
You understand that Enterasys and its Affiliates are subject to regulation by agencies
of the U.S. Government, including the U.S. Department of Commerce, which prohibit export or diversion of certain
technical products to certain countries, unless a license to export the Program is obtained from the U.S. Government or
an exception from obtaining such license may be relied upon by the exporting party.
If the Program is exported from the United States pursuant to the License Exception CIV under the U.S. Export
Administration Regulations, You agree that You are a civil end user of the Program and agree that You will use the
Program for civil end uses only and not for military purposes.
If the Program is exported from the United States pursuant to the License Exception TSR under the U.S. Export
Administration Regulations, in addition to the restriction on transfer set forth in Sections 1 or 2 of this Agreement, You
agree not to (i) reexport or release the Program, the source code for the Program or technology to a national of a country
in Country Groups D:1 or E:2 (Albania, Armenia, Azerbaijan, Belarus, Bulgaria, Cambodia, Cuba, Estonia, Georgia,
Iraq, Kazakhstan, Kyrgyzstan, Laos, Latvia, Libya, Lithuania, Moldova, North Korea, the People’s Republic of China,
Romania, Russia, Rwanda, 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 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.
