NETGEAR EXPRESS EVA9100 - Manual (Page 95)

Digital Entertainer Express EVA9100 User Manual
6
v1.0, October 2009
certify in writing to NETGEAR or such NETGEAR licensor that all copies of the Software have been destroyed or deleted from
any of your computer libraries or storage devices.
4. NETGEAR warrants that the Software will perform substantially in accordance with the documentation accompanying the
Software for a period of 90 days after your initial receipt of the Software. NETGEAR’s entire liability and your exclusive remedy
for breach of this warranty shall be repair or replacement of the Software. This limited warranty shall be void if failure of the
Software has resulted from any accident, abuse, misuse or misapplication by You. EXCEPT AS SET FORTH ABOVE, THE
SOFTWARE IS PROVIDED ON AN “AS IS” BASIS. YOU ASSUME ALL RESPONSIBILITY FOR SELECTION OF THE
SOFTWARE TO ACHIEVE YOUR INTENDED RESULTS AND FOR THE INSTALLATION OF, USE OF AND RESULTS
OBTAINED FROM THE SOFTWARE. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, NETGEAR
DISCLAIMS ALL WARRANTIES, EITHER EXPRESS, IMPLIED OR STATUTORY, INCLUDING, BUT NOT LIMITED TO,
IMPLIED WARRANTIES OF MERCHANTABILITY, NONINFRINGEMENT, QUALITY, ACCURACY, FITNESS FOR A
PARTICULAR PURPOSE, AND FITNESS FOR YOUR PURPOSE WITH RESPECT TO THE SOFTWARE AND THE
ACCOMPANYING WRITTEN MATERIALS. THERE IS NO WARRANTY AGAINST INTERFERENCE WITH THE
ENJOYMENT OF THE SOFTWARE OR AGAINST 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 5 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.