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<br /> <br /> <br /> <br /> <br />Extreme NIaaS Subscriber Terms of Use_End User Direct v091224 Page 6 of 13 <br /> <br />OF LIABILITY APPLIES WHETHER THE CLAIMS ARE IN WARRANTY, CONTRACT, TORT, <br />INFRINGEMENT, OR OTHERWISE, EVEN IF EITHER PARTY HAS BEEN ADVISED OF THE <br />POSSIBILITY OF SUCH DAMAGES. NOTHING IN THIS SECTION 16 LIMITS OR EXCLUDES ANY <br />LIABILITY THAT CANNOT BE LIMITED OR EXCLUDED UNDER APPLICABLE LAW. THIS <br />LIMITATION OF LIABILITY IS CUMULATIVE AND NOT PER INCIDENT. <br /> <br />17. Upon execution of these Terms of Use, and <br />again as of the Effective Date, Subscriber warrants and represents to Extreme as follows: <br /> <br />a. Subscriber IaaS Services is for business purposes only, provided that to the extent <br />applicable, the parties hereto agree that Subscriber <br />Products for hosting services if agreed to by Extreme and reflected in Appendix B; <br /> <br />b. Subscriber is a duly organized and validly existing partnership, limited liability company or <br />corporation in good standing under the laws of the jurisdiction of its formation and in each jurisdiction in <br />which the character of its properties or the nature of its business or the performance of its obligations <br />under these Terms of Use requires such qualification; <br /> <br />c. Subscriber has full power and authority and all necessary licenses and permits to enter into and <br />perform all its obligations hereunder; <br /> <br />d. Subscriber <br />hereunder have been duly authorized by all necessary corporate action on the part of Subscriber, and do <br />not and will not result in the creation of any lien upon the Extreme Technology or any other property of <br />Extreme. <br /> <br />e. There are no actions, suits or proceedings pending or threatened against or affecting Subscriber <br />or any property of Subscriber in any court, before any arbitrator of any kind or before or by any <br />Governmental Body, which, if adversely determined, would materially and adversely affect the business, <br />financial condition, assets, or operations of Subscriber, or adversely affect the ability of Subscriber to <br />perform its obligations under any Contract; and <br /> <br />18. Extreme Warranties. <br /> <br />a. Extreme warrants that, for the duration of the Term, the NIaaS Services will be provided to <br />Subscriber <br />customarily done by other providers in the community) and in accordance with industry standards <br />s convention by industry <br />members, either through formal agreement or through emulation of best practices established by industry <br />leaders). <br /> <br />b. THE FOREGOING WARRANTIES AND REMEDIES ARE EXCLUSIVE AND ARE IN LIEU OF <br />ALL OTHER WARRANTIES, EXPRESS OR IMPLIED, EITHER IN FACT OR BY OPERATION OF LAW, <br />STATUTORY OR OTHERWISE INCLUDING WARRANTIES OF MERCHANTABILITY AND FITNESS <br />FOR A PARTICULAR PURPOSE OR NON-INFRINGEMENT. SOME JURISDICTIONS DO NOT ALLOW <br />LIMITATIONS OF IMPLIED WARRANTIES, IN WHICH CASE THIS SECTION 18(b) WILL NOT APPLY. <br /> <br />c. EXTREME DOES NOT ASSUME OR AUTHORIZE ANY OTHER PERSON TO ASSUME FOR <br />IT ANY OTHER OR GREATER LIABILITY IN CONNECTION WITH THE INSTALLATION, SERVICING, <br />MAINTENANCE, LICENSING OR USE OF EXTREME PRODUCTS WHILE PROVIDING THE NIAAS <br />SERVICES UNDER ANY CONTRACT, AND EXTREME MAKES NO WARRANTY WHATSOEVER WITH <br />RESPECT TO ANY THIRD PARTY BRANDED PRODUCTS SUPPLIED BY IT IN CONNECTION <br />THEREWITH. <br /> <br />19. Confidentiality Obligations. In the event of the non-existence of a non-disclosure or other <br />confidentiality agreement between the parties, the following language shall apply. Subscriber agrees that