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5. LIMITED WARRANTY
5.1 Media and Documentation. Legato warrants that if the media or
documentation are damaged or physically defective at the time of delivery
of the first copy of the Software to Licensee and if defective or damaged
product is returned to Legato (postage prepaid) within thirty (30) days
thereafter, then Legato will provide Licensee with replacements at no cost.
5.2 Limited Software Warranty. Subject to the conditions and limitations
of liability stated herein, Legato warrants for a period of thirty (30) days
from the delivery of the first copy of the Software to Licensee that the
Software, as delivered, will materially conform to Legato’s then current
published Documentation for the Software. This warranty covers only
problems reported to Legato during the warranty period. For customers
outside of the United States, this Limited Software Warranty shall be
construed to limit the warranty to the minimum warranty required by law.
5.3 Remedies. The remedies available to Licensee hereunder for any such
Software which does not perform as set out herein shall be either repair or
replacement, or, if such remedy is not practicable in Legato’s opinion,
refund of the license fees paid by Licensee upon a return of all copies of the
Software to Legato. In the event of a refund this Agreement shall
terminate immediately without notice
6. TERM AND TERMINATION
6.1 Term . The term of this Agreement is perpetual unless terminated in
accordance with its provisions.
6.2 Termination. Legato may terminate this Agreement, without notice,
upon Licensee’s breach of any of the provisions hereof.
6.3 Effect of Termination. Upon termination of this Agreement, Licensee
agrees to cease all use of the Software and to return to Legato or destroy
the Software and all Documentation and related materials in Licensee’s
possession, and so certify to Legato. Except for the License granted herein
and as expressly provided herein, the terms of this Agreement shall
survive termination.
7. DISCLAIMER AND LIMITATIONS
7.1 Warranty Disclaimer. EXCEPT FOR THE LIMITED WARRANTY
PROVIDED IN SECTION 5 ABOVE, LEGATO AND ITS LICENSORS
MAKE NO WARRANTIES WITH RESPECT TO ANY SOFTWARE AND
DISCLAIMS ALL STATUTORY OR IMPLIED WARRANTIES,
INCLUDING WITHOUT LIMITATION WARRANTIES OF
MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR
ARISING FROM A COURSE OF DEALING OR USAGE OF TRADE AND
ANY WARRANTIES OF NONINFRINGEMENT. ALL SOFTWARE IS
PROVIDED “AS IS” AND LEGATO DOES NOT WARRANT THAT THE
SOFTWARE WILL MEET ANY REQUIREMENTS OR THAT THE
OPERATION OF SOFTWARE WILL BE UNINTERRUPTED OR ERROR
FREE. ANY LIABILITY OF LEGATO WITH RESPECT TO THE
SOFTWARE OR THE PERFORMANCE THEREOF UNDER ANY
WARRANTY, NEGLIGENCE, STRICT LIABILITY OR OTHER THEORY
WILL BE LIMITED EXCLUSIVELY TO THE REMEDIES SPECIFIED IN
SECTION 5.3 ABOVE. Some jurisdictions do not allow the exclusion of
implied warranties or limitations on how long an implied warranty may
last, so the above limitations may not be applicable.
8. LIMITATION OF LIABILITY
8.1 Limitation of Liability. EXCEPT FOR BODILY INJURY, LEGATO
(AND ITS LICENSORS) WILL NOT BE LIABLE OR RESPONSIBLE WITH
RESPECT TO THE SUBJECT MATTER OF THIS AGREEMENT UNDER
ANY CONTRACT, NEGLIGENCE, STRICT LIABILITY, OR OTHER
LEGAL OR EQUITABLE THEORY FOR: (I) ANY INDIRECT, SPECIAL,
INCIDENTAL OR CONSEQUENTIAL DAMAGES, HOWEVER CAUSED
AND WHETHER OR NOT ADVISED IN ADVANCE OF THE
POSSIBILITY OF SUCH DAMAGES; OR (II) DAMAGES FOR LOST
PROFITS OR LOST DATA; OR (III) COST OF PROCUREMENT OF
SUBSTITUTE GOODS, TECHNOLOGY, SERVICES, OR RIGHTS; OR FOR
AMOUNTS IN EXCESS OF THOSE RECEIVED BY LEGATO FOR THE
PARTICULAR LEGATO SOFTWARE THAT CAUSED THE LIABILITY.
Because some jurisdictions do not allow the exclusion or limitation of
incidental or consequential damages, Legato's liability in such
jurisdictions shall be limited to the extent permitted by law.
9. MISCELLANEOUS
9.1 Governing Law. This Agreement shall be governed by the laws of the
State of California, as applied to agreements entered into and to be
performed entirely within California between California residents,
without regard to the
principles of conflict of laws or the United Nations Convention on
Contracts for the International Sale of Goods.
9.2 Government Restricted Rights. This provision applies to Software
acquired directly or indirectly by or on behalf of any government. The
Software is a commercial software product, licensed on the open market at
market prices, and was developed entirely at private expense and without
the use of any government funds. All Software and accompanying
Documentation provided in connection with this Agreement are
“commercial items,” “commercial computer software,” and/or
“commercial computer software documentation.” Any use, modification,
reproduction, release, performance, display, or disclosure of the Software
by any government shall be governed solely by the terms of this
Agreement and shall be prohibited except to the extent expressly
permitted by the terms of this Agreement, and no license to the Software
is granted to any government requiring different terms. Licensee shall
ensure that each copy used or possessed by or for any government is
labeled to reflect the foregoing.
9.3 Export and Import Controls. Regardless of any disclosure made by
Licensee to Legato of an ultimate destination of the Products, Licensee will
not directly or indirectly export or transfer any portion of the Software, or
any system containing a portion of the Software, to anyone outside the
United States (including further export if Licensee took delivery outside
the U.S.) without first complying with any export or import controls that
may be imposed on the Software by the U.S. Government or any country
or organization of nations within whose jurisdiction Licensee operates or
does business. Licensee shall at all times strictly comply with all such laws,
regulations, and orders, and agrees to commit no act which, directly or
indirectly, would violate any such law, regulation or order.
9.4 Assignment. This Agreement may not be assigned or transferred by
Licensee without the prior written consent of Legato, which shall not be
unreasonably withheld. Legato may assign or otherwise transfer any or all
of its rights and obligations under this Agreement upon notice to Licensee.
9.5 Sole Remedy and Allocation of Risk. Licensee's sole and exclusive
remedies are set forth in this Agreement. This Agreement defines a
mutually agreed-upon allocation of risk, and the License price reflects
such allocation of risk.
9.6 Equitable Relief. The parties agree that a breach of this Agreement
adversely affecting Legato’s intellectual property rights in the Software
may cause irreparable injury to Legato for which monetary damages may
not be an adequate remedy and Legato shall be entitled to equitable relief
in addition to any remedies it may have hereunder or at law.
9.7 No Waiver. Failure by either party to enforce any provision of this
Agreement will not be deemed a waiver of future enforcement of that or
any other provision, nor will any single or partial exercise of any right or
power hereunder preclude further exercise of any other right hereunder.
9.8 Severability. If for any reason a court of competent jurisdiction finds
any provision of this Agreement, or portion thereof, to be unenforceable,
that provision of the Agreement will be enforced to the maximum extent
permissible so as to effect the intent of the parties, and the remainder of
this Agreement will continue in full force and effect.
10. ENTIRE AGREEMENT
10.1 This Agreement sets forth the entire understanding and agreement
between the parties and may be amended only in a writing signed by
authorized representatives of both parties. No vendor, distributor, dealer,
retailer, sales person, or other person is authorized by Legato to modify
this Agreement or to make any warranty, representation, or promise which
is different than, or in addition to, the warranties, representations, or
promises made in this Agreement. No preprinted purchase order terms
shall in any way modify, replace, or supersede the terms of this
Agreement.