Motorola AirDefence Installation Manual page 38

32 Server Appliance Installation Guide
subject to a Infringement Claim, AirDefense's obligations under this Section shall be fulfilled if at any time AirDefense,
in its sole discretion, shall: (x) obtain a license for Licensee to continue to use or to sell the Product purchased from
AirDefense; (y) replace or modify the Product so as to be substantially functionally equivalent but non-infringing; or (z)
refund the purchase price paid to AirDefense by Licensee for such Product less a reasonable charge for straight line
depreciation and/or prior use. AirDefense shall have no liability to Licensee for any alleged or actual infringement, or
otherwise, arising out of or in connection with Licensee's ordering, use or transfer of Products after AirDefense's notice
to Licensee that Licensee shall cease use or transfer of such Products.
b AirDefense shall have no liability to Licensee under this Agreement (i) for any damages based upon a per-use royalty
or the Licensee's revenues, or upon any damages theory other than a reasonable royalty applied to, or lost profits of
the patent owner based on, the purchase price paid by Licensee to AirDefense for the infringing Product; or (ii) for any
alleged or actual infringement arising out of (a) use of Products in connection or in combination with equipment,
devices or software not provided by AirDefense, (b) use of Products in a manner for which they were not designed, (c)
any modification of Products by anyone other than AirDefense, (d) compliance with Licensee's designs, specifications,
guidelines or instructions; or (e) use of the Product in a patented process ((a) - (e) defined as "Excluded Conduct").
Licensee shall indemnify AirDefense against any claim of infringement that is brought against AirDefense based upon
or arising out of such Excluded Conduct or arising out of Licensee's continued use or transfer of Products after being
noticed to cease such use or transfer. AirDefense shall not be responsible for any compromise or settlement made by
Licensee without AirDefense's prior written consent.
c THIS SECTION PROVIDES LICENSEE'S SOLE AND EXCLUSIVE REMEDIES AND AIRDEFENSE'S ENTIRE
LIABILITY IN THE EVENT OF AN INFRINGEMENT CLAIM. LICENSEE HAS NO RIGHT TO RECOVER AND
AIRDEFENSE HAS NO OBLIGATION TO PROVIDE ANY OTHER OR FURTHER REMEDIES, WHETHER UNDER
ANOTHER PROVISION OF THIS AGREEMENT OR ANY OTHER LEGAL THEORY OR PRINCIPLE, IN
CONNECTION WITH AN INFRINGEMENT CLAIM. IN ADDITION, THE RIGHTS AND REMEDIES PROVIDED IN
THIS SECTION ARE SUBJECT TO AND LIMITED BY THE RESTRICTIONS SET FORTH IN THE GENERAL LIMIT
OF LIABILITY SECTION OF THS AGREEMENT. IN NO EVENT SHALL AIRDEFENSE BE LIABLE FOR ANY
SPECIAL, INCIDENTAL, INDIRECT, COLLATERAL, CONSEQUENTIAL OR PUNITIVE DAMAGES OR LOST
PROFITS OF LICENSEE IN CONNECTION WITH ANY CLAIMS, LOSSES, DAMAGES OR INJURIES UNDER THIS
SECTION. In no event shall AirDefense's liability under this Section exceed the total net sales to Licensee of the
applicable Product.
13 Confidential Information. Licensee acknowledges that the Products (including Hardware, Software and Documentation), and
Products and support services pricing, limitation of liability, indemnification and warranty terms are confidential and constitute
valuable trade secrets of AirDefense. Licensee agrees to take all reasonably necessary action to protect such confidential
and proprietary information, including appropriate instruction and agreement with employees and agents of Licensee. In the
event of any breach of this Section each party acknowledges that the non-breaching party would suffer irreparable harm and
shall therefore be entitled to seek injunctive relief. This Section shall survive termination or expiration of this Agreement.
14 General. This Agreement is the complete and exclusive statement of the agreement between Licensee and AirDefense, and
this Agreement supersedes any prior proposal, agreement, or communication, oral or written, pertaining to the subject matter
of this Agreement and there are no inducements to enter into this Agreement which are not set forth herein. This Agreement
shall be governed by the laws of the State of Georgia and of the United States of America, excluding (i) its conflicts of law
principles and (ii) the United Nations Convention on Contracts for the International Sale of Goods. All questions concerning
the terms and conditions of this Agreement should be directed to AirDefense in writing addressed to
airdefensemla@airdefense.net.
15 Audit Rights. Licensee grants AirDefense the right, which AirDefense will exercise at its own expense and no more than once
per year, to enter Licensee's premises during business hours for the sole purpose of examining Licensee's records and other
information relating to the Licensee's use of the Products. If this examination reveals that Licensee has improperly used the
Products, AirDefense shall invoice Licensee for such unauthorized use based upon AirDefense's standard fees in effect at
the time the examination is completed. If the underpaid fees exceed five percent (5%) of the fees actually paid, then Licensee
shall also pay AirDefense's reasonable costs of conducting the examination.
16 Dispute Resolution. All disputes arising out of or relating to this Agreement shall be finally settled by arbitration conducted in
Atlanta, Georgia, United States under the rules of commercial arbitration of the American Arbitration Association. The parties
shall bear equally the cost of the arbitration (exclusive of legal fees and expenses of the parties, all of which each party shall
bear separately). All decisions of the arbitrator(s) shall be final and binding on both parties and enforceable in any court of
competent jurisdiction. Notwithstanding the foregoing, in the event of breach by a party of its obligations hereunder, the non-
breaching party may seek injunctive or other equitable relief in any court of competent jurisdiction. Licensee acknowledges
that infringement of intellectual property of AirDefense or unauthorized copying would cause irreparable harm to AirDefense.
17 Publicity. Licensee agrees that during the term of this Agreement AirDefense may publicly refer to Licensee, orally and in
writing, as a customer of AirDefense. Any other written reference to Licensee by AirDefense requires the prior approval of
Licensee.