Overland Storage REO 9000 - Manual (Page 3)

8. Disclaimer. EXCEPT AS SPECIFIED IN THIS EULA, ALL EXPRESS OR IMPLIED CONDITIONS, REPRESENTATIONS,
AND WARRANTIES INCLUDING, WITHOUT LIMITATION, ANY IMPLIED WARRANTY OR CONDITION OF
MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT, SATISFACTORY QUALITY OR
ARISING FROM A COURSE OF DEALING, USAGE, OR TRADE PRACTICE, ARE HEREBY EXCLUDED TO THE EXTENT
ALLOWED BY APPLICABLE LAW. IN NO EVENT WILL OVERLAND OR ITS SUPPLIERS BE LIABLE FOR ANY LOST
REVENUE, PROFIT, OR DATA, OR FOR SPECIAL, INDIRECT, CONSEQUENTIAL, INCIDENTAL, OR PUNITIVE DAMAGES
HOWEVER CAUSED AND REGARDLESS OF THE THEORY OF LIABILITY ARISING OUT OF THE USE OF OR INABILITY TO
USE THE SOFTWARE EVEN IF OVERLAND OR ITS SUPPLIERS HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH
DAMAGES. IN NO EVENT WILL OVERLAND'S TOTAL LIABILITY TO CUSTOMER, WHETHER IN CONTRACT, TORT
(INCLUDING NEGLIGENCE), OR OTHERWISE, EXCEED THE PRICE PAID BY CUSTOMER. THE FOREGOING
LIMITATIONS WILL APPLY EVEN IF THE ABOVE-STATED WARRANTY FAILS OF ITS ESSENTIAL PURPOSE.
Each party recognizes and agrees that the warranty disclaimers and liability and remedy limitations in this EULA are material
bargained for bases of this EULA and that they have been taken into account and reflected in determining the consideration to be
given by each party under this EULA and in the decision by each party to enter into this EULA.
9. Term and Termination. This EULA is effective until terminated. Customer's license rights under this EULA will terminate
immediately without notice from Overland if Customer fails to comply with any provision of this EULA. Upon termination, Customer
must destroy all copies of Software and the corresponding security keys in its possession or control.
10. Compliance With Law. Each party will comply with all applicable laws, rules and regulations in connection with its activities
under this EULA. Without limiting the foregoing, the Software, including technical data, is subject to United States export control
laws, including the United States Export Administration Act and its associated regulations, and may be subject to export or import
regulations in other countries. Customer will comply strictly with all such regulations and acknowledges that Customer has the
responsibility to obtain licenses to export, re-export, or import the Software.
11. Restricted Rights. The Software will be classified as “commercial computer software” as defined in the applicable provisions of
the Federal Acquisition Regulation (the “FAR”) and supplements thereto, including the Department of Defense (DoD) FAR
Supplement (the “DFARS”). The parties acknowledge that the Software was developed entirely at private expense and that no part
of the Software was first produced in the performance of a Government contract. If the Software is supplied for use by DoD, the
Software is delivered subject to the terms of this EULA and either (i) in accordance with DFARS 227.702-1(a) and 227.7202-3(a), or
(ii) with restricted rights in accordance with DFARS 252.227-7013(c)(1)(ii) (OCT 1988), as applicable. If the Software is supplied for
use by a Federal agency other than DoD, the Software is restricted computer software delivered subject to the terms of this EULA
and (i) FAR 12.212(a); (ii) FAR 52.227-19; or (iii) FAR 52.227-14 (ALT III), as applicable.
12. Third Party Software. Third party suppliers of materials integrated with the Overland equipment disclaim all implied
warranties, including the implied warranties of merchantability and fitness for a particular purpose. The collective liabilities of the
seller/licensor and its third party suppliers are subject to the limitation of liabilities described in this agreement. The third party
supplier is an intended beneficiary of this limitation.” Third party suppliers disclaim all liability for consequential or other indirect
damages or for loss of or damage to data or records.
13. General. This EULA will bind and inure to the benefit of each party's successors and assigns, provided that Customer may not
assign or transfer this EULA, in whole or in part, without Overland' written consent.
This EULA will be governed by and construed in accordance with the laws of the State of California, United States of America, as if
performed wholly within the state and without giving effect to the principles of conflict of law.
No failure of either party to exercise or enforce any of its rights under this EULA will act as a waiver of such rights.
Any waivers or amendments will be effective only if made in writing by non-preprinted agreements clearly understood by both parties
to be an amendment or waiver and signed by a representative of the respective parties authorized to bind the parties.
If any portion hereof is found to be void or unenforceable, the remaining provisions of this EULA will remain in full force and effect.
This EULA is the complete and exclusive agreement between the parties with respect to the subject matter hereof, superseding and
replacing any and all prior agreements, communications, and understandings (both written and oral) regarding such subject matter.
Any notice, report, approval or consent required or permitted hereunder will be in writing and will be deemed to have been duly given
if delivered personally or mailed by first-class, registered or certified US mail, postage prepaid to the respective addresses of the
parties. The prevailing party in any action to enforce this EULA will be entitled to recover costs and expenses including, without
limitation, reasonable attorneys' fees.
A material breach of this EULA adversely affecting Overland's proprietary rights in the Software would cause irreparable injury to
Overland for which monetary damages would not be an adequate remedy and that Overland will be entitled to equitable relief in
addition to any remedies it may have hereunder or at law.
©2004 Overland Storage, Inc. All rights reserved.
Overland® and Overland Storage® are registered trademarks of Overland Storage, Inc. Simply iSCSI, REO SERIES™, REO 100™,
REO 1000™, REO 4000™, REO 9000™, ProtectionPAC™, Multi-SitePAC™, AutomationPAC™, CompliancePAC™, BackPAC™,
REO SoftKey™, and D2D2T™ are trademarks of Overland Storage, Inc.
All other brand names or trademarks are the property of their respective owners.
The names of companies and individuals used in examples are fictitious and intended to illustrate the use of the software. Any
resemblance to actual companies or individuals, whether past or present, is coincidental.
PROPRIETARY NOTICE
All information contained in or disclosed by this document is considered proprietary by Overland Storage. By accepting this material
the recipient agrees that this material and the information contained therein are held in confidence and in trust and will not be used,
reproduced in whole or in part, nor its contents revealed to others, except to meet the purpose for which it was delivered. It is
understood that no right is conveyed to reproduce or have reproduced any item herein disclosed without express permission from
Overland Storage.
Overland Storage provides this manual as is, without warranty of any kind, either expressed or implied, including, but not limited
to, the implied warranties of merchantability and fitness for a particular purpose. Overland Storage may make improvements or
changes in the product(s) or programs described in this manual at any time. These changes will be incorporated in new editions of
this publication.
Overland Storage assumes no responsibility for the accuracy, completeness, sufficiency, or usefulness of this manual, nor for any
problem that might arise from the use of the information in this manual.