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right or remedy under this EULA or to interpret any provision of this EULA, the prevailing party will be
<br />entitled to recover its costs, including reasonable attorneys' fees.
<br />10. ENTIRE AGREEMENT. This EULA constitutes the entire agreement between you and NetMotion
<br />with respect to your right to use the Software, and replaces all other agreements or representations, whether
<br />written or oral. Terms contained in the invoice(s) issued by NetMotion or its authorized Resellers, and in
<br />any purchase order issued by you and accepted by NetMotion or its authorized Resellers, are hereby
<br />incorporated by reference solely for the purpose of identifying the quantity and type of client and server
<br />licenses and modules purchased, the level of maintenance and support to be provided, the rate at which
<br />such products and services shall be paid and the payment terms applicable to the licensing of such Software
<br />and services. In all other respect, the terms of this EULA cannot be modified by any terms in any printed
<br />forms used by the parties in performing the EULA, and can only be modified by express written consent of
<br />both parties. If any part of this EULA is held to be unenforceable as written, it will be enforced to the
<br />maximum extent allowed by applicable law, and will not affect the enforceability of any other part. The
<br />original of this EULA is in English. If it is translated into another language, the English language version
<br />shall prevail.
<br />11. LIMITED WARRANTY. For a period of ninety (90) days from the date of shipment or download
<br />from NetMotion of the Software, NetMotion warrants that (a) the unmodified Software will perform
<br />substantially in accordance with the accompanying written materials when used as directed, and (b) the
<br />media upon which the Software is delivered will be free of defects. This Limited Warranty is void if failure
<br />of the Software has resulted from modification, accident, abuse, or misapplication.
<br />With respect to the Subscription Hosted License, you understand that, from time to time, the hosting
<br />services MAY BE SUBJECT TO LIMITATIONS, DELAYS, AND OTHER PROBLEMS INHERENT IN
<br />THE USE OF THE INTERNET AND ELECTRONIC COMMUNICATIONS. NETMOTION IS NOT
<br />RESPONSIBLE FOR ANY DELAYS, DELIVERY'FAILURES, OR OTHER DAMAGE RESULTING
<br />FROM SUCH PROBLEMS.
<br />12. EXCLUSIVE REMEDY. Your exclusive remedy with respect to any breach of the Limited Warranty
<br />is, at NetMotion's option, either repair or replacement of the non -conforming Software or return of the pro-
<br />rata price you paid for the non -conforming Software. You must return all non -conforming Software to
<br />NetMotion with your proof of purchase to be entitled to this remedy. Outside the United States, neither
<br />these remedies nor any product support services offered by NetMotion are available without proof of your
<br />purchase from an authorized international source.
<br />13. NO OTHER WARRANTIES. TO THE FULL EXTENT PERMITTED BY LAW, NETMOTION
<br />AND ITS LICENSORS DISCLAIM ALL OTHER WARRANTIES, WHETHER ORAL OR WRITTEN,
<br />EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, IMPLIED WARRANTIES OF
<br />MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, AND NON -
<br />INFRINGEMENT, WITH REGARD TO THE SOFTWARE.
<br />14. LIMITATION OF LIABILITY. NETMOTION AND ITS LICENSORS WILL NOT BE LIABLE
<br />FOR ANY SPECIAL, INCIDENTAL, INDIRECT, OR CONSEQUENTIAL DAMAGES (INCLUDING,
<br />WITHOUT LIMITATION, DAMAGES FOR PERSONAL INJURY, LOSS OF BUSINESS PROFITS,
<br />BUSINESS INTERRUPTION, LOSS OF BUSINESS OR CONFIDENTIAL INFORMATION, LOSS OF
<br />PRIVACY, OR ANY OTHER PECUNIARY LOSS) ARISING OUT OF THE USE OF OR INABILITY TO
<br />USE THE SOFTWARE, EVEN IF NETMOTION OR ITS LICENSORS HAVE BEEN ADVISED OF
<br />THE POSSIBILITY OF SUCH DAMAGES. IN ANY CASE, THE ENTIRE LIABILITY OF
<br />NETMOTION AND ITS LICENSORS UNDER THIS AGREEMENT AND LIMITED WARRANTY
<br />SHALL BE LIMITED TO THE AMOUNT ACTUALLY PAID BY YOU FOR THE SOFTWARE THAT
<br />CAUSES THE DAMAGE.
<br />15. THIRD PARTY SOFTWARE. The Software may contain or be distributed with software code or
<br />products from third parties ("Third Party Software"). NetMotion has secured all necessary rights from such
<br />third parties to use, distribute and sublicense such Third Party Software in conjunction with the Software.
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