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November 2004 202-10038-01
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INFRINGEMENT. NETGEAR DOES NOT WARRANT THAT THE FUNCTIONS CONTAINED IN THE
SOFTWARE WILL MEET YOUR REQUIREMENTS, BE UNINTERRUPTED OR ERROR-FREE, OR THAT
ALL DEFECTS IN THE SOFTWARE WILL OR CAN BE CORRECTED.
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 6 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.
9. Should you have any questions relating to this Agreement, or if you desire to contact NETGEAR for any reason,
please call 1-888-NETGEAR.