Acronis True Image for MS SBS Server - User Guide User Manual

Page 5

BY LICENSOR SHALL CREATE A WARRANTY OR IN ANY WAY INCREASE THE SCOPE OF THIS WARRANTY.

Liability Limitations

. LICENSOR SHALL NOT BE LIABLE FOR ANY SPECIAL, INDIRECT, PUNITIVE, OR

CONSEQUENTIAL DAMAGES RESULTING FROM USE OF SOFTWARE UNDER ANY CONTRACT,
NEGLIGENCE, STRICT LIABILITY OR OTHER THEORY. LICENSOR’S CUMULATIVE LIABILITY FOR DAMAGES
HEREUNDER, WHETHER IN AN ACTION IN CONTRACT, WARRANTY, TORT, NEGLIGENCE, STRICT
LIABILITY, INDEMNITY, OR OTHERWISE, SHALL IN NO EVENT EXCEED THE AMOUNT OF LICENSE FEES
PAID BY THE LICENSEE FOR THE SOFTWARE LICENSED UNDER THIS AGREEMENT. THESE LIMITATIONS
SHALL APPLY NOTWITHSTANDING ANY FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY.

LICENSEE Indemnity

. LICENSEE agrees to indemnify and defend LICENSOR, and hold it harmless from all

costs, including attorney’s fees, arising from any claim that may be made against LICENSOR by any third party as a
direct or indirect result of any use by LICENSEE of the Software,

Termination.

This Agreement and the license may be terminated without fee reduction (i) by LICENSEE without

cause on thirty (30) days notice; (ii) by LICENSOR, in addition to other remedies, if LICENSEE is in default and fails
to cure within ten (10) days following notice; (iii) on notice by either party hereto if the other party ceases to do
business in the normal course, becomes insolvent, or becomes subject to any bankruptcy, insolvency, or equivalent
proceedings. Upon termination for any reason, LICENSEE shall immediately return Software and all copies to
LICENSOR and delete all Software and all copies from the Hardware.

Law.

This Agreement shall be governed by the laws of the Commonwealth of Massachusetts, exclusive of its

conflicts of laws provisions and without regard to the United Nations Convention on Contracts for the International
Sale of Goods, and any suit under this Agreement shall exclusively be brought in a federal or state court in
Massachusetts. Any action against LICENSOR under this Agreement must be commenced within one year after
such cause of action accrues.

Government End Users.

This provision applies to all Software acquired directly or indirectly by or on behalf of the

United States Government. The Software is a commercial product, licensed on the open market at market prices,
and was developed entirely at private expense and without the use of any U.S. Government funds. If the Software is
supplied to the Department of Defense, the U.S. Government acquires only the license rights customarily provided to
the public and specified in this Agreement. If the Software is supplied to any unit or agency of the U.S. Government
other than the Department of Defense, the license to the U.S. Government is granted only with restricted rights. Use,
duplication, or disclosure by the U.S. Government is subject to the restrictions set forth in subparagraph (c) of the
Commercial Computer Software Restricted Rights clause of FAR 52.227-19.

Export Restriction.

LICENSEE will not remove or export from the United States or the country originally shipped

to by LICENSOR (or re-export from anywhere) any part of the Software or any direct product thereof except in
compliance with applicable export laws and regulations, including without limitation, those of the U.S. Department of
Commerce.

Miscellaneous.

This Agreement contains the entire understanding of the parties and supersedes all other

agreements, oral or written, including purchase orders submitted by LICENSEE, with respect to the subject matter
covered in this Agreement The delay or failure of either party to exercise any right provided in the Agreement shall
not be deemed a waiver. All notices must be in writing and shall be delivered by hand (effective when received) or
mailed by registered or certified mail (effective on the third day following the date of mailing). The notices addressed
to LICENSOR shall be sent to its address set out above. If any provision is held invalid, all others shall remain in
force. LICENSEE may not assign, pledge, or otherwise transfer this agreement, nor any rights or obligations
hereunder in whole or in part to any entity. Paragraph headings are for convenience and shall have no effect on
interpretation. In the event that it is necessary to undertake legal action to collect any amounts payable or to protect
or to defend against the unauthorized use, disclosure, distribution, of the Software hereunder and/or other violation
of this Agreement, LICENSOR shall be entitled to recover its costs and expenses including, without limitation,

reasonable attorneys' fees