NETGEAR EVA9000 User Manual page 147

5. In the event that a claim alleging infringement or misappropriation of an intellectual property
right arises concerning the Software, NETGEAR in its sole discretion may elect to defend or
settle such claim. NETGEAR, in the event of such claim, may also in its sole discretion, elect to
terminate this Agreement and all rights to use the Software and require the return and/or
destruction of the Software, with a refund of the fees paid for use of the Software less a
reasonable allowance for use and shipping. THE FOREGOING ARE NETGEAR'S SOLE
EXCLUSIVE OBLIGATIONS, AND YOUR SOLE AND EXCLUSIVE REMEDIES, WITH
RESPECT TO INFRINGEMENT AND/OR MISAPPROPRIATION OF ANY
INTELLECTUAL PROPERTY RIGHT.
6. UNDER NO CIRCUMSTANCES WILL NETGEAR OR ITS LICENSORS BE LIABLE FOR
ANY CONSEQUENTIAL, SPECIAL, INDIRECT, INCIDENTAL OR PUNITIVE
DAMAGES WHATSOEVER (INCLUDING, WITHOUT LIMITATION, DAMAGES FOR
LOSS OF PROFITS, INTERRUPTION, LOSS OF BUSINESS INFORMATION, LOSS OF
DATA OR OTHER SUCH PECUNIARY LOSS), WHETHER BASED ON BREACH OF
CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, PRODUCT
LIABILITY OR OTHERWISE, ARISING OUT OF THE USE OR INABILITY TO USE THE
SOFTWARE, EVEN IF NETGEAR AND/OR ITS LICENSORS HAVE BEEN ADVISED OF
THE POSSIBILITY OF SUCH DAMAGES. IN NO EVENT SHALL NETGEAR'S AND ITS
LICENSORS' AGGREGATE LIABILITY FOR DAMAGES ARISING OUT OF THIS
AGREEMENT EXCEED THE FEES PAID BY YOU FOR THE SOFTWARE. THE
FOREGOING LIMITATIONS ARE INDEPENDENT OF THE EXCLUSIVE REMEDY
PROVIDED IN SECTION 5 ABOVE AND SHALL APPLY NOTWITHSTANDING ANY
FAILURE OF SUCH EXCLUSIVE REMEDY OR OF ITS ESSENTIAL PURPOSE. THE
FOREGOING EXCLUSIONS AND LIMITATIONS OF LIABILITY AND DAMAGES
SHALL NOT APPLY TO CONSEQUENTIAL DAMAGES FOR PERSONAL INJURY.
7. You may not export or re-export the Software without: (a) the prior written consent of
NETGEAR, (b) complying with applicable export control laws, including, but not limited to,
restrictions and regulations of the Department of Commerce or other United States agency or
authority, and (c) obtaining any necessary permits and licenses. In any event, You may not
transfer or authorize the transfer of the Software to a prohibited territory or country or otherwise
in violation of any applicable restrictions or regulations.
8. The Software and documentation are considered "commercial computer software" and
"commercial computer software documentation," respectively, pursuant to DFAR Section
227.7202 and FAR Section 12.212, as applicable. Use, duplication or disclosure of the Software
and documentation by the U.S. Government is subject to the restrictions set forth in DFAR
Section 227.7202 for military agencies and FAR Section 12.212 for civilian agencies. THIS
AGREEMENT IS GOVERNED BY THE LAWS OF THE STATE OF CALIFORNIA, U.S.A.,
WITHOUT REFERENCE TO ITS CONFLICT OF LAWS PRINCIPLES. THIS
AGREEMENT WILL NOT BE GOVERNED BY THE U.N. CONVENTION ON
CONTRACTS FOR THE INTERNATIONAL SALES OF GOODS. ANY DISPUTE
BETWEEN YOU AND NETGEAR ARISING UNDER THIS AGREEMENT SHALL BE
SUBJECT TO THE EXCLUSIVE JURISDICTION OF THE COURTS OF THE STATE OF
CALIFORNIA. This Agreement is the entire agreement between You and NETGEAR regarding
the subject matter herein and supersedes any other communications with respect to the
Software. If any provision of this Agreement is held invalid or unenforceable, the remainder of
this Agreement will continue in full force and effect. Failure to prosecute a party's rights with
respect to a default hereunder will not constitute a waiver of the right to enforce rights with
respect to the same or any other breach.
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