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5.2 Limited Software Warranty. Subject to the conditions and limitations of

liability stated herein, LEGATO warrants for a period of thirty (30) days from

the delivery of the first copy of the Software to Licensee that the Software, as

delivered, will materially conform to LEGATO’s then current published

Documentation for the Software. This warranty covers only problems

reported to LEGATO during the warranty period. For customers outside of

the United States, this Limited Software Warranty shall be construed to limit

the warranty to the minimum warranty required by law.

5.3 Remedies. The remedies available to Licensee hereunder for any such

Software which does not perform as set out herein shall be either repair or

replacement, or, if such remedy is not practicable in LEGATO’s opinion,

refund of the license fees paid by Licensee upon a return of all copies of the

Software to LEGATO. In the event of a refund this EULA shall terminate

immediately without notice with respect to such Software.

6. WARRANTY DISCLAIMER

6.1 Warranty Disclaimer. EXCEPT FOR THE LIMITED WARRANTY

PROVIDED IN SECTION 5 ABOVE, ALL SOFTWARE IS PROVIDED "AS

IS". LEGATO AND ITS LICENSORS MAKE NO WARRANTIES WITH

RESPECT TO ANY SOFTWARE AND DISCLAIMS ALL STATUTORY OR

IMPLIED WARRANTIES, INCLUDING WITHOUT LIMITATION

WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR

PURPOSE, OR ARISING FROM A COURSE OF DEALING OR USAGE OF

TRADE AND ANY WARRANTIES OF NONINFRINGEMENT. LEGATO

DOES NOT WARRANT THAT THE SOFTWARE WILL MEET ANY

REQUIREMENTS OR THAT THE OPERATION OF SOFTWARE WILL BE

UNINTERRUPTED OR ERROR FREE. ANY LIABILITY OF LEGATO WITH

RESPECT TO THE SOFTWARE OR THE PERFORMANCE THEREOF

UNDER ANY WARRANTY, NEGLIGENCE, STRICT LIABILITY OR

OTHER THEORY WILL BE LIMITED EXCLUSIVELY TO THE REMEDIES

SPECIFIED IN SECTION 5.3 ABOVE. Some jurisdictions do not allow the

exclusion of implied warranties or limitations on how long an implied

warranty may last, so the above limitations may not be applicable.

7. LIMITATION OF LIABILITY

7.1 Limitation of Liability. EXCEPT FOR BODILY INJURY, LEGATO (AND

ITS LICENSORS) WILL NOT BE LIABLE OR RESPONSIBLE WITH

RESPECT TO THE SUBJECT MATTER OF THIS EULA UNDER ANY

CONTRACT, NEGLIGENCE, STRICT LIABILITY, OR OTHER LEGAL OR

EQUITABLE THEORY FOR: (I) ANY INDIRECT, SPECIAL, INCIDENTAL

OR CONSEQUENTIAL DAMAGES, HOWEVER CAUSED AND

WHETHER OR NOT ADVISED IN ADVANCE OF THE POSSIBILITY OF

SUCH DAMAGES; OR (II) DAMAGES FOR LOST PROFITS OR LOST

DATA; OR (III) COST OF PROCUREMENT OF SUBSTITUTE GOODS,

TECHNOLOGY, SERVICES, OR RIGHTS; OR (IV) FOR AMOUNTS IN

EXCESS OF THOSE RECEIVED BY LEGATO FOR THE PARTICULAR

LEGATO SOFTWARE THAT CAUSED THE LIABILITY . Because some

jurisdictions do not allow the exclusion or limitation of incidental or

consequential damages, LEGATO's liability in such jurisdictions shall be

limited to the extent permitted by law.

8. TERM AND TERMINATION

8.1 Term. The term of this EULA is perpetual unless terminated in

accordance with its provisions.

8.2 Termination. LEGATO may terminate this EULA, without notice, upon

Licensee's breach of any of the provisions hereof.

8.3 Effect of Termination. Upon termination of this EULA, Licensee agrees

to cease all use of the Software and to return to LEGATO or destroy the

Software and all Documentation and related materials in Licensee's

possession, and so certify to LEGATO. Except for the License granted herein

and as expressly provided herein, the terms of this EULA shall survive

termination.

9. MISCELLANEOUS

9.1 Governing Law. This EULA shall be governed by the laws of the

Commonwealth of Massachusetts, without regard to the principles of conflict

of laws or the United Nations Convention on Contracts for the International

Sale of Goods.

9.2 Government Restricted Rights. Any S oftware which is acqui red directly

or indirectly for or on behalf of the United States of America, its agencies

and/or instrumentalities ("U.S. Government"), is provided with Restricted

Rights. Use, duplication, or disclosure by the U.S. Government is subject to

restrictions as set forth in subparagraph (c)(1)(ii) of the Rights in Technical

Data and Computer Software clause at DFARS 252.227-7013 or

subparagraphs (c)(1) and (2) of the Commercial Computer Software -

Restricted Rights at 48 CFR 52.227-19, as applicable. Manufacturer is

LEGATO Software, a division of EMC Corporation, 2350 W. El Camino Real,

Mountain View, CA 94040. The Software is a commercial software product,

licensed on the open market at market prices, and was developed entirely at

private expense and without the use of any government funds.

9.3 Export and Import Controls. Regardless of any disclosure made by

Licensee to LEGATO of an ultimate destination of the Products, Licensee may

not directly or indirectly export or transfer any portion of the Software, or any

system containing a portion of the Software, to anyone outside the United

States (including further export if Licensee took delivery outside the U.S.)

without first complying with any export or import controls that may be

imposed on the Software by the U.S. Government or any country or

organization of nations within whose jurisdiction Licensee operates or does

business. Licensee shall at all times strictly comply with all such laws,

regulations, and orders, and agrees to commit no act which, directly or

indirectly, would violate any such law, regulation or order.

9.4 Assignment. This EULA may not be assigned or transferred by Licensee

without the prior written consent of LEGATO, which shall not be

unreasonably withheld. LEGATO may assign or otherwise transfer any or all

of its rights and obligations under this EULA upon notice to Licensee.

9.5 Sole Remedy and Allocation of Risk. Licensee's sole and exclusive

remedies are set forth in this EULA. This EULA defines a mutually

agreed-upon allocation of risk, and the License price reflects such allocation

of risk.

9.6 Equitable Relief. The parties agree that a breach of this EULA adversely

affecting LEGATO's intellectual property rights in the Software may cause

irreparable injury to LEGATO for which monetary damages may not be an

adequate remedy and LEGATO shall be entitled to equitable relief in addition

to any remedies it may have hereunder or at law.

9.7 No Waiver. Failure by either party to enforce any provision of this EULA

will not be deemed a waiver of future enforcement of that or any other

provision, nor will any single or partial exercise of any right or power

hereunder preclude further exercise of any other right hereunder.

9.8 Severability. If for any reason a court of competent jurisdiction finds any

provision of this EULA, or portion thereof, to be unenforceable, that

provision of the EULA will be enforced to the maximum extent permissible

so as to effect the intent of the parties, and the remainder of this EULA will

continue in full force and effect.

10. ENTIRE EULA

10.1 This EULA sets forth the entire understanding and EULA between the

parties and may be amended only in a writing signed by authorized

representatives of both parties. No vendor, distributor, reseller, dealer,

retailer, sales person, or other person is authorized by LEGATO to modify

this EULA or to make any warranty, representation, or promise which is

different than, or in addition to, the warranties, representations, or promises

made in this EULA. No pre-printed purchase order terms shall in any way

modify, replace or supersede the terms of this EULA.

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