the Services and Deliverables or other Intellectual Property provided or
developed by Cisco or a third party on Cisco's behalf thereafter. As between
Distributor and Cisco, Distributor shall at all times retain all right, title,
and interest in and to all pre-existing Intellectual Property owned by
Distributor as of the Effective Date and all Intellectual Property that is
developed by Distributor or by a third party on Distributor's behalf thereafter
without the benefit of any of Cisco's Intellectual Property. Third party
hardware and software shall at all times be owned by the applicable third party.
11.0
WARRANTY. ALL SERVICES PROVIDED HEREUNDER SHALL BE PERFORMED IN A WORKMANLIKE
MANNER. EXCEPT AS SPECIFIED IN THIS SECTION, CISCO HEREBY DISCLAIMS AND
DISTRIBUTOR WAIVES ALL REPRESENTATIONS, CONDITIONS, ANO WARRANTIES (WHETHER
EXPRESS, IMPLIED, OR STATUTORY), INCLUDING, WITHOUT LIMITATION, ANY WARRANTY OR
CONDITION (A) OF MERCHANTABLIITY, FITNESS FOR A PARTICULAR PURPOSE,
NONINFRINGEMEN,TTITLE, SATISFACTORYQUALITY, QUIET ENJOYMENT, ACCURACY, (B)
ARISING FROM ANY COURSE OF DEALING , COURSE OF PERFORMANCE, OR USAGE IN THE
INDUSTRY. TO THE EXTENT AN IMPLIED WARRANTY CANNOT BE DISCLAIMED, SUCH WARRANTY
IS LIMITED IN DURATION TO THE APPLICABLE EXPRESS WARRANTY PERIOD. DISTRIBUTOR'S
SOLE AND EXCLUSIVE REMEDY FOR BREACH OF WARRANTY SHALL BE, AT CISCO'S OPTION,
RE­ PERFORMANCE OF THE SERVICES; OR CANCELLATION OF THE APPLICABLE SERVICE
ORDERED AND RETURN OF THE PORTION OF THE SERVICE FEES PAID TO CISCO BY
DISTRIBUTOR FOR SUCH NON-CONFORMING SERVICES.
12.0
LIMITATION OF LIABILITY AND CONSEQUENTIAL DAMAGES WAIVER.
12.1
DISTRIBUTOR EXPRESSLY ACKNOWLEDGES AND AGREES THAT IT IS SOLELY RESPONSIBLE FOR
THE DETERMINATION ANO IMPLEMENTATION OF THEIR END USER'S NETWORK, DESIGN,
BUSINESS, OR OTHER REQUIREMENTS AND THAT CISCO SHALL NOT BE RESPONSIBLE FOR THE
FAILURE OF DELIVERABLES AND/OR RELATED SOFTWARE TO MEET END USER'S NETWORK,
DESIGN, BUSINESS, OR OTHER REQUIREMENTS.
12.2
ALL LIABILITY OF CISCO, ITS AFFILIATES, OFFICERS, DIRECTORS, EMPLOYEES, AGENTS,
AND SUPPLIERS (COLLECTIVELY) FOR CLAIMS ARISING UNDER THIS ADDENDUM OR OTHERWISE
HOWSOEVER ARISING SHALL BE LIMITED TO THE AMOUNT PAID BY DISTRIBUTOR TO CISCO
PURSUANT TO THE RELEVANT SERVICE DURING THE [*****] PERIOD PRECEDING THE EVENT
OR CIRCUMSTANCES FIRST GIVING RISE TO SUCH LIABILITY. THIS LIMITATION OF
LIABILITY IS CUMULATIVE AND NOT PER-INCIDENT (I.E., THE EXISTENCE OF TWO OR MORE
CLAIMS WILL NOT ENLARGE THIS LIMIT).
Exhibit 10.49
12.3
EXCEPT FOR DISTRIBUTOR'S BREACH OF SECTION 9 (LICENSE), IN NO EVENT SHALL EITHER
PARTY, ITS RESPECTIVE AFFILIATES, OFFICERS, DIRECTORS, EMPLOYEES, AGENTS, OR
SUPPLIERS BE LIABLE FOR ANY SPECIAL, INCIDENTAL, INDIRECT, OR CONSEQUENTIAL
DAMAGES, OR LOST REVENUE, LOST PROFITS, OR LOST OR DAMAGED DATA, WHETHER ARISING
IN CONTRACT, TORT (INCLUDING NEGLIGENCE), OR OTHERWISE, EVEN IF SUCH PARTY HAS
BEEN INFORMED OF THE POSSIBILITY THEREOF.
13.0
DATA USAGE AND PROTECTION.
13.1
For the purposes of this Section, "personal data", "processing of personal
data'', (''processing"), "controller", "processor", "data subjects", and "third
party", shall have the same meanings as in Directive 95/46/EC of the European
Parliament and of the Council of 24 October 1995 on the protection of
individuals with regard to the processing of personal data and of the free
movement of