End User License Agreement
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by their nature are intended to survive such expiration or termination will survive, including,
without limitation, the disclaimers of warranties and limitations of liability provided herein.
14. LIMITED WARRANTY; DISCLAIMER OF WARRANTIES. NComputing warrants that the
Server Software (and any Updates thereto) will perform substantially in accordance with the
applicable user documentation for a period of ninety (90) days from the date of your purchase
of the Server Software (the “Limited Warranty”). NComputing’s and its suppliers’ sole liability,
and your exclusive remedy, for any breach of this Limited Warranty or for breach of any other
warranty related to the performance of the Server Software shall be, at NComputing’s option, (i)
to terminate this EULA and return the amount paid by you for the aected Server Software; or
(ii) to repair or replace the Server Software to make it perform substantially in accordance with
the Limited Warranty. This Limited Warranty shall not apply (i) if you make any unauthorized
modications to the Server Software, or misuse, abuse of the Server Software; (ii) if you use
the Server Software for purposes other than its intended use; or (ii) if you violate any terms
and conditions of this EULA. NComputing and its suppliers make no warranties, and provide
no remedies, in connection with any defects discovered after the ninety-day Limited Warranty
period.
EXCEPT FOR THE LIMITED WARRANTY PROVIDED ABOVE, THE SERVER SOFTWARE, INCLUDING
WITHOUT LIMITATION ANY OPEN SOURCE SOFTWARE INCORPORATED THEREIN OR PROVIDED
THEREWITH, AND ANY ACCOMPANYING DOCUMENTATION, ARE PROVIDED “AS IS”.
TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, THE WARRANTIES EXPRESSLY
STATED HEREIN ARE EXCLUSIVE AND IN LIEU OF ALL OTHER WARRANTIES, WHETHER IMPLIED,
STATUTORY OR OTHERWISE, INCLUDING THE WARRANTIES OF MERCHANTABILITY, NON-
INFRINGEMENT, TITLE, FITNESS FOR A PARTICULAR PURPOSE OR SATISFACTORY QUALITY,
WHICH NCOMPUTING SPECIFICALLY DISCLAIMS, FOR ITSELF AND ON BEHALF OF ITS SUPPLIERS,
TOGETHER WITH ANY AND ALL WARRANTIES ARISING FROM COURSE OF DEALING OR USAGE
IN TRADE. NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED FROM
NCOMPUTING OR ELSEWHERE SHALL CREATE ANY WARRANTY NOT EXPRESSLY STATED IN THIS
AGREEMENT.
SOME JURISDICTIONS DO NOT ALLOW THE DISCLAIMER OF IMPLIED WARRANTIES, SO THE
DISCLAIMER OF IMPLIED WARRANTIES ABOVE MAY NOT APPLY TO YOU, IN WHICH CASE THE
DURATION OF ANY SUCH IMPLIED WARRANTIES SHALL BE LIMITED TO NINETY (90) DAYS FROM
THE DATE YOU PURCHASED THE SERVER SOFTWARE; PROVIDED, HOWEVER, THAT IN SUCH CASE
NCOMPUTING’S OR ITS SUPPLIERS’ SOLE LIABILITY AND YOUR EXCLUSIVE REMEDY FOR BREACH
OF SUCH IMPLIED WARRANTIES SHALL IN ANY CASE BE, AT NCOMPUTING’S OPTION, (i) TO
REPAIR OR REPLACE THE SERVER SOFTWARE TO CONFORM IT TO SUCH APPLICABLE WARRANTY,
OR (ii) TO TERMINATE THIS EULA AND RETURN THE AMOUNT PAID BY YOU FOR THE AFFECTED
SERVER SOFTWARE.
NCOMPUTING DOES NOT WARRANT THAT THE OPERATION OF THE SERVER SOFTWARE WILL BE
UNINTERRUPTED OR ERROR FREE OR THAT THE SERVER SOFTWARE WILL MEET YOUR SPECIFIC
REQUIREMENTS. YOU ACKNOWLEDGE AND AGREE THAT PERFORMANCE OF THE SERVER
SOFTWARE MAY VARY DEPENDING ON THE SERVER DEVICE, CLIENT DEVICE, THE SOFTWARE
PROGRAMS RUNNING ON THE FOREGOING (INCLUDING THE SERVER SOFTWARE), AND THE
BANDWIDTH AND CONFIGURATION OF THE NETWORK CONNECTING THEM. SINCE ALL
CLIENT DEVICES SHARE THE SERVER DEVICE’S RESOURCES, A CLIENT DEVICE’S PERFORMANCE
MAY DECREASE IF THE SERVER DEVICE’S PROCESSOR(S) OR OTHER RESOURCES BECOME
OVERLOADED AS MORE CLIENT DEVICES ARE CONNECTED TO THE SERVER DEVICE OR IF A USER
RUNS RESOURCE INTENSIVE APPLICATIONS.
15. LIMITATION OF LIABILITY. EXCEPT TO THE EXTENT THAT LIABILITY MAY NOT BY LAW BE
LIMITED OR EXCLUDED, IN NO EVENT WILL NCOMPUTING OR ITS SUPPLIERS BE LIABLE FOR LOSS
OR CORRUPTION OF DATA, LOST PROFITS OR LOSS OF CONTRACTS, COST OF PROCUREMENT
OF SUBSTITUTE PRODUCTS OR OTHER SPECIAL, INCIDENTAL, PUNITIVE, CONSEQUENTIAL
OR INDIRECT DAMAGES ARISING FROM THE SUPPLY OR USE OF THE SERVER SOFTWARE,
HOWEVER CAUSED AND ON ANY THEORY OF LIABILITY (INCLUDING, WITHOUT LIMITATION,