User's Manual

10/10/03 Legal Information
90-100584-004 Airespace Product Guide vi
THEREOF, INCLUDING WITHOUT LIMITATION ANY IMPLIED WARRANTY OF TITLE, MERCHANTABILITY, FITNESS FOR A PARTICULAR
PURPOSE, NONINFRINGEMENT, OR THOSE ARISING FROM COURSE OF PERFORMANCE, DEALING, USAGE OR TRADE. AIRESPACE’S
SUPPLIERS MAKE NO DIRECT WARRANTY OF ANY KIND TO LICENSEE FOR THE LICENSED MATERIALS. NEITHER AIRESPACE NOR ANY
OF ITS SUPPLIERS WARRANT THAT THE LICENSED MATERIALS OR ANY PART THEREOF WILL MEET LICENSEE’S REQUIREMENTS OR
BE UNINTERRUPTED, OR ERROR-FREE, OR THAT ANY ERRORS IN THE LICENSED MATERIALS WILL BE CORRECTED. SOME STATES/
JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF IMPLIED WARRANTIES SO THE ABOVE EXCLUSIONS MAY NOT APPLY TO LIC-
ENSEE. THIS LIMITED WARRANTY GIVES LICENSEE SPECIFIC LEGAL RIGHTS. LICENSEE MAY ALSO HAVE OTHER RIGHTS, WHICH
VARY FROM STATE/JURISDICTION TO STATE/JURISDICTION.
5. Term and Termination. This Agreement is effective until terminated. License may terminate this Agreement at any time by de-
stroying all copies of the Software. This Agreement and all licenses granted hereunder will terminate immediately without notice from
Airespace if Licensee fails to comply with any provision of this Agreement. Upon any termination, Licensee must destroy all copies of
the Licensed Materials. Sections 1(b), 2, 3, 4(b), 5, 6, 7, 8, 9 and 10 shall survive any termination of this Agreement.
6. Export. The Software is specifically subject to U.S. Export Administration Regulations. Licensee agrees to strictly comply with
all export, re-export and import restrictions and regulations of the Department of Commerce or other agency or authority of the United
States or other applicable countries, and not to transfer, or authorize the transfer of, directly or indirectly, the Software or any direct
product thereof to a prohibited country or otherwise in violation of any such restrictions or regulations. Licensee’s failure to comply
with this Section is a material breach of this Agreement. Licensee acknowledges that Licensee is not a national of Cuba, Iran, Iraq,
Libya, North Korea, Sudan or Syria or a party listed in the U.S. Table of Denial Orders or U.S. Treasury Department List of Specially
Designated Nationals.
7. Government Restricted Rights. As defined in FAR section 2.101, DFAR section 252.227-7014(a)(1) and DFAR section
252.227-7014(a)(5) or otherwise, the Software provided in connection with this Agreement are “commercial items,” “commercial com-
puter software” and/or “commercial computer software documentation.” Consistent with DFAR section 227.7202, FAR section 12.212
and other sections, any use, modification, reproduction, release, performance, display, disclosure or distribution thereof by or for the
U.S. Government shall be governed solely by the terms of this Agreement and shall be prohibited except to the extent expressly per-
mitted by the terms of this Agreement. Any technical data provided that is not covered by the above provisions shall be deemed “tech-
nical data-commercial items” pursuant to DFAR section 227.7015(a). Any use, modification, reproduction, release, performance,
display or disclosure of such technical data shall be governed by the terms of DFAR section 227.7015(b).
8. Limitation of Liability. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT SHALL AIRESPACE OR ITS
SUPPLIERS BE LIABLE FOR THE COST OF PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES, LOSS OF PROFITS, OR FOR ANY
SPECIAL, CONSEQUENTIAL, INCIDENTAL, PUNITIVE OR INDIRECT DAMAGES (OR DIRECT DAMAGES IN THE CASE OF AIRESPACE’S
SUPPLIERS) ON ANY THEORY OF LIABILITY, WHETHER IN CONTRACT, TORT (INCLUDING WITHOUT LIMITATION NEGLIGENCE),
STRICT LIABILITY OR OTHERWISE ARISING OUT OF OR UNDER THIS AGREEMENT OR ANY USE OR INABILITY TO USE THE LICENSED
MATERIALS OR EQUIPMENT, OR FOR BREACH OF THIS AGREEMENT. AIRESPACE’S TOTAL LIABILITY ARISING OUT OF OR UNDER THIS
AGREEMENT, OR USE OR INABILITY TO USE THE LICENSED MATERIALS OR EQUIPMENT, OR FOR BREACH OF THIS AGREEMENT,
WHETHER IN CONTRACT, TORT (INCLUDING WITHOUT LIMITATION NEGLIGENCE), STRICT LIABILITY OR OTHERWISE, SHALL NOT
EXCEED THE PRICE PAID FOR THE SOFTWARE (FOR THE STANDALONE SOFTWARE) AND THE PRICE PAID FOR THE EQUIPMENT (FOR
THE EMBEDDED SOFTWARE AND EQUIPMENT). THE LIMITATIONS SET FORTH IN THIS SECTION SHALL APPLY EVEN IF AIRESPACE
AND/OR ITS SUPPLIERS ARE ADVISED OF THE POSSIBILITY OF SUCH DAMAGE, AND NOTWITHSTANDING THE FAILURE OF ESSEN-
TIAL PURPOSE OF ANY LIMITED REMEDY.
9. Third Party Beneficiaries. Airespace’s suppliers are intended third party beneficiaries of this Agreement. The terms and condi-
tions herein are made expressly for the benefit of and are enforceable by Airespace’s suppliers; provided, however, that Airespace’s
suppliers are not in any contractual relationship with Licensee. Airespace’s suppliers include without limitation: (a) Hifn, Inc., a Dela-
ware corporation with principal offices at 750 University Avenue, Los Gatos, California; and (b) Wind River Systems, Inc. and its sup-
pliers.
10. General. This Agreement is governed and interpreted in accordance with the laws of the State of California, U.S.A. without
reference to conflicts of laws principles and excluding the United Nations Convention on Contracts for the Sale of Goods. The parties
consent to the exclusive jurisdiction of, and venue in, Santa Clara County, California, U.S.A. Licensee shall not transfer, assign or
delegate this Agreement or any rights or obligations hereunder, whether voluntarily, by operation of law or otherwise, without the
prior written consent of Airespace (except as expressly set forth in Section 1(f)). Subject to the foregoing, the terms and conditions
of this Agreement shall be binding upon and inure to the benefit of the parties to it and their respective heirs, successors, assigns and
legal representatives. This Agreement constitutes the entire agreement between Airespace and Licensee with respect to the subject
matter hereof, and merges all prior negotiations and drafts of the parties with regard thereto. No modification of or amendment to
this Agreement, nor any waiver of any rights under this Agreement, by Airespace shall be effective unless in writing. If any of the
provisions of this Agreement is held by a court of competent jurisdiction to be invalid or unenforceable under any applicable statute
or rule of law, such provision shall, to that extent, be deemed omitted.