
iii
5. PROTECTION AND SECURITY. In the performance of this Agreement or in contemplation thereof, You and your
employees and agents may have access to private or confidential information owned or controlled by Enterasys relating to the
Licensed Materials supplied hereunder including, but not limited to, product specifications and schematics, and such
information may contain proprietary details and disclosures. All information and data so acquired by You or your employees or
agents under this Agreement or in contemplation hereof shall be and shall remain Enterasys’ exclusive property, and You shall
use your best efforts (which in any event shall not be less than the efforts You take to ensure the confidentiality of your own
proprietary and other confidential information) to keep, and have your employees and agents keep, any and all such information
and data confidential, and shall not copy, publish, or disclose it to others, without Enterasys’ prior written approval, and shall
return such information and data to Enterasys at its request. Nothing herein shall limit your use or dissemination of information
not actually derived from Enterasys or of information which has been or subsequently is made public by Enterasys, or a third
party having authority to do so.
You agree not to deliver or otherwise make available the Licensed Materials or any part thereof, including without
limitation the object or source code (if provided) of the Licensed Software, to any party other than Enterasys or its employees,
except for purposes specifically related to your use of the Licensed Software on a single computer as expressly provided in this
Agreement, without the prior written consent of Enterasys. You agree to use your best efforts and take all reasonable steps to
safeguard the Licensed Materials to ensure that no unauthorized personnel shall have access thereto and that no unauthorized
copy, publication, disclosure, or distribution, in whole or in part, in any form shall be made, and You agree to notify Enterasys
of any unauthorized use thereof. You acknowledge that the Licensed Materials contain valuable confidential information and
trade secrets, and that unauthorized use, copying and/or disclosure thereof are harmful to Enterasys or its Affiliates and/or
its/their software suppliers.
6. MAINTENANCE AND UPDATES. Updates and certain maintenance and support services, if any, shall be provided to
You pursuant to the terms of an Enterasys Service and Maintenance Agreement, if Enterasys and You enter into such an
agreement. Except as specifically set forth in such agreement, Enterasys shall not be under any obligation to provide Software
Updates, modifications, or enhancements, or Software maintenance and support services to You.
7. DEFAULT AND TERMINATION. In the event that You shall fail to keep, observe, or perform any obligation under this
Agreement, including a failure to pay any sums due to Enterasys, or in the event that You become insolvent or seek protection,
voluntarily or involuntarily, under any bankruptcy law, Enterasys may, in addition to any other remedies it may have under
law, terminate the License and any other agreements between Enterasys and You.
(a) Immediately after any termination of the Agreement or if You have for any reason discontinued use of Software, You
shall return to Enterasys the original and any copies of the Licensed Materials and remove the Licensed Software from
any modular works made pursuant to Section 3, and certify in writing that through your best efforts and to the best of
your knowledge the original and all copies of the terminated or discontinued Licensed Materials have been returned
to Enterasys.
(b) Sections 4, 5, 7, 8, 9, 10, 11, and 12 shall survive termination of this Agreement for any reason.
8. EXPORT REQUIREMENTS. You acknowledge and agree that the Licensed Materials are subject to the export control laws
and regulations of the United States, including but not limited to the Export Administration Regulations (EAR), the International
Traffic in Arms Regulations (ITAR), and the sanction regimes of the U.S. Department of Treasury, Office of Foreign Assets
Control's Foreign Assets Control Regulations (FACR). You agree that You will comply with these laws and regulations.
You agree that You will not, without prior U.S. Government authorization, export, reexport, or transfer the Licensed Materials,
either directly or indirectly, to any country subject to a U.S. trade embargo or sanction (e.g. Cuba, N. Korea, Iran, Syria, Sudan)
or to any resident or national of said countries, or to any person, organization, or entity on any of the restricted parties lists
maintained by the U.S. Departments of State, Treasury, or Commerce. In addition, You agree that You will not export, reexport
or transfer the Licensed Materials to any end-user engaged in activities, or for any end-use, directly or indirectly related to the
design, development, production, use, or stockpiling of weapons of mass destruction, e.g. nuclear, chemical, or biological
weapons, and the missile technology to deliver them.
9. UNITED STATES GOVERNMENT RESTRICTED RIGHTS. The Licensed Materials (i) were developed solely at private
expense; (ii) contains “restricted computer software” submitted with restricted rights in accordance with section 52.227-19 (a)
through (d) of the Commercial Computer Software-Restricted Rights Clause and its successors, and (iii) in all respects is
proprietary data belonging to Enterasys and/or its suppliers. For Department of Defense units, the Licensed Materials are
considered commercial computer software in accordance with DFARS section 227.7202-3 and its successors, and use,
duplication, or disclosure by the U.S. Government is subject to restrictions set forth herein.
10. LIMITED WARRANTY AND LIMITATION OF LIABILITY. The only warranty Enterasys makes to You in connection
with this license of the Licensed Materials is that if the media on which the Licensed Software is recorded is defective, it will be
replaced without charge, if Enterasys in good faith determines that the media and proof of payment of the license fee are
returned to Enterasys or the dealer from whom it was obtained within ninety (90) days of the date of payment of the license fee.
NEITHER ENTERASYS NOR ITS AFFILIATES MAKE ANY OTHER WARRANTY OR REPRESENTATION, EXPRESS OR