Adaptec 5325301507 Administration Guide - Page 5

for backup or archival purposes, you may not copy any documentation pertaining to the Licensed Software. You agree that your use and possession of the Licensed Software is permitted only in accordance with the terms and conditions of this Agreement. 5 Ownership of Restricted Software. You agree and acknowledge that, (i) Overland Storage transfers no ownership interest in the Restricted Software, in the intellectual property in any Restricted Software or in any Restricted Software copy, to you under this Agreement or otherwise, (ii) Overland Storage and its licensors reserve all rights not expressly granted to you hereunder, and (iii) the Restricted Software is protected by United States Copyright Law and international treaties relating to protection of copyright, and other intellectual property protection laws of the U.S. and other countries. 6 Termination. If you fail to fulfill any of your material obligations under this Agreement, Overland Storage and/or its licensors may pursue all available legal remedies to enforce this Agreement, and Overland Storage may, at any time after your default of this Agreement, terminate this Agreement and all licenses and rights granted to you hereunder. You agree that any Overland Storage suppliers referenced in the Restricted Software are third-party beneficiaries of this Agreement, and may enforce this Agreement as it relates to their intellectual property. You further agree that, if Overland Storage terminates this Agreement for your default, you will, within thirty (30) days after any such termination, deliver to Overland Storage or render unusable all Restricted Software originally provided to you hereunder and any copies thereof embodied in any medium. 7 Government End Users. The Installation Utilities, Embedded Software, and accompanying documentation are deemed to be "commercial computer software" and "commercial computer software documentation," respectively, pursuant to DFAR Section 227.7202, Commercial Computer Software-Restricted Rights at 48 CFR 52.227-19, and FAR Section 12.212, and successor provisions thereof, as applicable. Any use modification, reproduction release, performance, display, or disclosure of the Installation Utilities or Embedded Software and accompanying documentation by the U.S. Government shall be governed solely by the terms of this Agreement and shall be prohibited except as expressly permitted by the terms of this Agreement. PROVISIONS APPLICABLE TO RESTRICTED SOFTWARE AND, SUBJECT TO SECTION 1, TO PUBLIC SOFTWARE (ARTICLES 8 - 15): 8 Export Laws. Notwithstanding any provision of any Public License to the contrary, Overland Storage shall have no duty to deliver or otherwise furnish source code of any Public Software if it cannot establish to its reasonable satisfaction that such delivery or furnishing will not violate applicable US laws and regulations. You hereby assure that you will not export or reexport any Licensed Software except in full compliance with all applicable laws, regulations, executive orders, and the like pertaining to export and/or re-export, including without limitation USA versions of the same. No Licensed Software may be exported or re-exported into (or to a national or resident of) any country to which the U.S. embargoes goods, or to anyone on the U.S. Treasury Department's list of Specially Designated Nationals or the U.S. Commerce Department's Table of Denial Orders. You agree to ascertain necessary licensing procedures and obtain required licenses before exporting or re-exporting either. You also agree to indemnify Overland Storage and assume all financial responsibility for any losses it may suffer if you do not comply with this paragraph. 9 Disclaimer of Warranties. THE INSTALLATION UTILITIES AND EMBEDDED SOFTWARE ARE LICENSED "AS IS" WITHOUT WARRANTY OF ANY KIND. OVERLAND STORAGE HEREBY DISCLAIMS ALL WARRANTIES, EXPRESS AND IMPLIED, RELATING TO THE INSTALLATION UTILITIES AND THE EMBEDDED SOFTWARE INCLUDING, WITHOUT LIMITATION, ANY IMPLIED WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE OR NONINFRINGEMENT. 10 Limitation of Liability. IN NO EVENT WILL OVERLAND STORAGE OR ITS LICENSORS' LIABILITY UNDER THIS AGREEMENT EXCEED THE PRICE THAT YOU PAID FOR THE INSTALLATION UTILITIES AND EMBEDDED SOFTWARE. FURTHERMORE, IN NO EVENT WILL OVERLAND STORAGE OR ITS LICENSORS BE LIABLE FOR ANY LOST PROFITS, LOST DATA, COST OF PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES, OR ANY SPECIAL, CONSEQUENTIAL, INCIDENTAL, INDIRECT, OR PUNITIVE DAMAGES ARISING OUT OF OR UNDER THIS AGREEMENT OR THE APPLICABLE PUBLIC LICENSE. The limitation of liability set forth in this paragraph will apply whether or not Overland Storage or its licensor was advised of the possibility of the loss, liability, or damages and notwithstanding any failure of essential purpose of any limited remedy. Since some states do not allow exclusions or limitations of liability for consequential or incidental damages, this provision may not apply to you. 11 Waiver. No delay or failure of Overland Storage to exercise any right under this Agreement, nor any partial exercise thereof, shall be deemed to constitute a waiver of any rights granted hereunder or at law. 12 Unlawful Provision(s). If any provision of the Agreement is held to be unenforceable for any reason, all other provisions of this Agreement shall nevertheless be deemed valid and enforceable to the fullest extent possible. 13 Applicable Law. Except with respect to any Public Software program for which the applicable Public License contains provisions expressly stating the applicable governing law (with respect to which the law so specified shall govern all aspects of such agreement, including the provisions incorporated into such Public License hereunder), the terms of this Agreement (including, to the extent allowable under the Public License, all software governed by a Public License which does not specify a governing law) will be governed by the laws of the State of California, without reference to its choice of law rules, and the United States, including U.S. Copyright laws. 14 Entire Agreement. This Agreement and all applicable Public Licenses supersede all proposals, negotiations, conversations, discussions, all other agreements, oral or written, and all past course of dealing between you and Overland Storage relating to the Licensed Software or the terms of its license to you, and may only be modified in writing signed by you and Overland Storage. 15 Contractor/Manufacturer. Overland Storage, Inc. 4820 Overland Avenue, San Diego, CA 92123. v