OR BECOMES PUBLICLY AVAILABLE THROUGH NO ACT OR OMISSION OF THE RECEIVING
PARTY; (II) IS RIGHTFULLY RECEIVED BY THE RECEIVING PARTY FROM A THIRD PARTY
WITHOUT RESTRICTION ON DISCLOSURE AND WITHOUT BREACH OF A NONDISCLOSURE
OBLIGATION; OR (III) IS PREVIOUSLY RIGHTFULLY KNOWN TO THE RECEIVING PARTY.
4
9.
TERM & TERMINATION.
(A) TERM.
THIS AGREEMENT BEGINS ON THE EFFECTIVE DATE AND CONTINUES UNLESS AND
UNTIL IT IS TERMINATED PURSUANT TO SECTION 9(B).
EACH LICENSE SHALL TERMINATE
AS SET FORTH IN SECTION 2.
(B)
TERMINATION.
EITHER PARTY MAY TERMINATE THIS AGREEMENT UPON THIRTY (30)
DAYS WRITTEN NOTICE OF A MATERIAL BREACH OF THIS AGREEMENT BY THE OTHER PARTY IF
SUCH BREACH IS NOT CURED WITHIN SUCH THIRTY (30) DAY PERIOD.
IN ADDITION, EACH
LICENSE MAY BE TERMINATED BY NEOWARE AS SET FORTH IN SECTION 2.
(C)
RIGHTS UPON TERMINATION.
UPON TERMINATION OF THIS AGREEMENT, ALL LICENSES
GRANTED TO NCD UNDER THIS AGREEMENT, EXCEPT AS DESCRIBED IN THIS SECTION, SHALL
IMMEDIATELY TERMINATE, NCD SHALL CEASE ALL USE, REPRODUCTION AND DISTRIBUTION OF
THE NEOWARE
SOFTWARE AND THE THINSTAR SOFTWARE AND ANY PART OR DERIVATIVE WORK
THEREOF, AND NCD WILL DESTROY ALL COPIES OF THE NEOWARE SOFTWARE AND THE
THINSTAR SOFTWARE AND ANY PART THEREOF IN NCD'S POSSESSION OR UNDER ITS CONTROL
WITHIN TEN (10) DAYS FOLLOWING THE TERMINATION DATE, EXCEPT THAT NCD MAY RETAIN
ONE (1) COPY OF THE THINSTAR SOFTWARE TO BE USED SOLELY FOR END-USER SUPPORT
PURPOSES FOR UP TO TWO (2) YEARS AFTER TERMINATION OF THIS AGREEMENT.
10.
GOVERNMENT RESTRICTIONS.
For Neoware Software and
ThinStar Software and documentation delivered to an agency or instrumentality of
the United States government, NCD shall identify the Neoware Software and the
ThinStar Software and documentation as "commercial computer software" and
"commercial computer software documentation" and, pursuant to FAR 12.212 and/or
DFARS 227.7202 (and their successors, as applicable), shall restrict the
government's right to use, reproduce and/or disclose such Neoware
Software and
ThinStar Software and documentation in accordance with the terms of NCD's
then-current standard end user license agreement.
11.
GENERAL.
(A)
NOTICE.
ANY NOTICES TO BE GIVEN HEREUNDER WILL BE GIVEN IN WRITING VIA
POSTAGE PREPAID, RETURN RECEIPT REQUESTED CERTIFIED MAIL (OR AN EQUIVALENT
METHOD UNDER THE LAWS OF THE COUNTRY WHERE MAILED), COURIER SERVICE OR FACSIMILE
TRANSMISSION TO THE ADDRESS OF EACH PARTY SET FORTH IN THIS AGREEMENT OR TO SUCH
OTHER ADDRESS AS EITHER PARTY MAY SUBSTITUTE BY WRITTEN NOTICE TO THE OTHER AS
PROVIDED HEREIN.
NOTICES SHALL BE EFFECTIVE TWO (2) DAYS AFTER OFFICIAL
CONFIRMATION OF DELIVERY TO THE INTENDED RECIPIENT BY RETURN RECEIPT OR THE
EQUIVALENT OR, IN THE CASE OF FACSIMILE, ONE (1) DAY AFTER CONFIRMATION OF
TRANSMISSION.
(B)
WAIVER.
FAILURE BY EITHER PARTY TO EXERCISE ANY OF ITS RIGHTS HEREUNDER
SHALL NOT CONSTITUTE OR BE DEEMED A WAIVER OR FORFEITURE OF SUCH RIGHTS.
(C)
GOVERNING LAW.
THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN
ACCORDANCE WITH THE INTERNAL LAWS OF THE COMMONWEALTH OF PENNSYLVANIA.
THE
UNITED NATIONS CONVENTION ON CONTRACTS FOR THE INTERNATIONAL SALE OF GOODS