User's Guide
MeshNetworks
52
HARDWARE AND SOFTWARE COMBINATIONS SELECTED BY YOU. YOU ASSUME ALL
RESPONSIBILITY FOR THE SELECTION OF PRODUCTS AND THE LICENSED SOFTWARE
TO ACHIEVE YOUR INTENDED RESULTS, AND FOR YOUR USE OF AND RESULTS
OBTAINED FROM THE LICENSED SOFTWARE.
6.3 DISCLAIMER OF IMPLIED WARRANTIES. EXCEPT AS SET FORTH IN SECTION 6.1 ABOVE,
THE LICENSED SOFTWARE IS LICENSED TO YOU “AS IS.” MESHNETWORKS EXPRESSLY
DISCLAIMS, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, ANY AND ALL
REPRESENTATIONS AND WARRANTIES, EXPRESS, IMPLIED, OR STATUTORY, INCLUDING
REPRESENTATIONS OR WARRANTIES OF NON-INFRINGEMENT OF ANY THIRD PARTY
INTELLECTUAL PROPERTY RIGHTS, OWNERSHIP, MERCHANTABILITY, FITNESS FOR A
PARTICULAR PURPOSE, QUIET ENJOYMENT, SYSTEM INTEGRATION, AND DATA
ACCURACY. MESHNETWORKS’ EXPRESS WARRANTY WILL NOT BE ENLARGED,
DIMINISHED OR AFFECTED BY, AND NO OBLIGATION OR LIABILITY WILL ARISE OUT OF,
THE RENDERING OF TECHNICAL OR OTHER ADVICE OR SERVICE BY MESHNETWORKS
OR THE SOURCE IN CONNECTION WITH THE LICENSED SOFTWARE.
6.4 NO CONSEQUENTIAL DAMAGES. UNDER NO CIRCUMSTANCES WILL EITHER PARTY BE
LIABLE FOR ANY SPECIAL, INCIDENTAL OR CONSEQUENTIAL DAMAGES ARISING IN ANY
WAY OUT OF THIS AGREEMENT OR THE USE OF THE LICENSED SOFTWARE AND
DOCUMENTATION HOWEVER CAUSED (WHETHER ARISING UNDER A THEORY OF
CONTRACT, TORT (INCLUDING NEGLIGENCE), OR OTHERWISE), INCLUDING, WITHOUT
LIMITATION, DAMAGES FOR LOST PROFITS, LOSS OF DATA, OR COSTS OF
PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES. THE LIMITATIONS ON LIABILITY
SET FORTH IN THIS SECTION WILL APPLY NOTWITHSTANDING THE FAILURE OF
ESSENTIAL PURPOSE OF ANY OF THE LIMITED REMEDIES SET FORTH IN SECTION 6.1
ABOVE.
6.5 LIMITATION OF LIABILITY. THE TOTAL LIABILITY OF MESHNETWORKS, THE SOURCE AND
MESHNETWORKS’ LICENSORS ARISING OUT OF OR RELATING TO THIS AGREEMENT WILL
NOT EXCEED THE LICENSE FEES AND PURCHASE PRICE RECEIVED BY THE SOURCE
FROM YOU IN THE TWELVE (12) MONTHS PRIOR TO THE EVENT GIVING RISE TO THE
LIABILITY.
7 SUPPORT SERVICES. The Source may provide You with support services related to the Licensed
Software (“Support Services”). Use of Support Services is governed by the Source’s policies and
programs or in other materials from the Source. Any Updates or other supplemental software code
provided to You as part of the Support Services are considered part of the Licensed Software and subject
to the terms and conditions of this Agreement. You acknowledge and agree that MeshNetworks and its
licensors, contractors, resellers and distributors may use technical information You provide to them as
part of the Support Services for its business purposes, including for product support and development.
8 INDEMNIFICATION. MeshNetworks will defend, indemnify and hold You harmless from any liability
arising from any third party claim or proceeding against You to the extent that such claim or proceeding is
based on an assertion that the Licensed Software infringes any issued United States patent or any trade
secret or copyright of any third party; provided, however, that You notify MeshNetworks promptly in
writing of any such claim or proceeding and give MeshNetworks full and complete authority, information
and assistance to defend such claim or proceeding at the expense of MeshNetworks; and further
provided that You give MeshNetworks sole control of the selection of counsel and the defense of any
such claim or proceeding and all negotiations for its compromise or settlement. Should the Licensed
Software become, or in MeshNetworks’ opinion be likely to become, the subject of a claim of
infringement, MeshNetworks will have the right, at MeshNetworks’ option and expense, (i) to procure for
You the right to continue using the Licensed Software, or (ii) to replace or modify the Licensed Software
with a non-infringing version of substantially equivalent function and performance.
9 LIMITATION. MeshNetworks will have no liability to You hereunder for any infringement based upon
(i) the combination of the Licensed Software with other products not provided by MeshNetworks; (ii) the
use of other than a current, unaltered version of the Licensed Software; (iii) the use of any derivative
works, modification or improvement of the Licensed Software not created by MeshNetworks; (iv) any use