v
Notice
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 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.
