| LICENSE AGREEMENT |
| |
| PLEASE READ THIS LICENSE AGREEMENT ("AGREEMENT") CAREFULLY BEFORE REPRODUCING OR IN ANY WAY |
| UTILIZING THE sFlow(R) SOFTWARE ("SOFTWARE") AND/OR ANY ACCOMPANYING DOCUMENTATION |
| ("DOCUMENTATION") AND/OR THE RELATED SPECIFICATIONS ("SPECIFICATIONS"). YOUR REPRODUCTION |
| OR USE OF THE SOFTWARE AND/OR THE DOCUMENTATION AND/OR THE SPECIFICATIONS CONSTITUTES YOUR |
| ACCEPTANCE OF THE TERMS AND CONDITIONS OF THIS AGREEMENT. IF YOU DO NOT AGREE TO BE BOUND |
| BY THE TERMS AND CONDITIONS OF THIS AGREEMENT, YOU MAY NOT REPRODUCE OR IN ANY WAY UTILIZE |
| THE SOFTWARE OR THE DOCUMENTATION OR THE SPECIFICATIONS. |
| |
| 1. Definitions. |
| |
| "Documentation" means the user manuals, training materials, and operating materials, if any, |
| InMon provides to Licensee under this Agreement. |
| |
| "InMon" means InMon Corporation, its affiliates and subsidiaries. |
| |
| "Intellectual Property Rights" means any trade secrets, patents, including without |
| limitation any patents covering the Software, copyrights, know-how, moral rights and |
| similar rights of any type under the laws of any governmental authority, domestic or |
| foreign, including all applications and registrations relating to any of the foregoing. |
| |
| "Licensee Hardware" means all computers, routers, or other equipment owned or controlled by |
| or on behalf of Licensee. |
| |
| "Products" means any and all software applications, computers, routers, or other equipment |
| manufactured by or on behalf of Licensee for the purpose of resale or lease to any other |
| third party, or otherwise made available by Licensee free of charge. |
| |
| "Software" means the sFlow(R) software programs, in source or binary code format, that |
| Licensee licenses from InMon under this Agreement and any bug fixes or error corrections |
| which InMon may provide to Licensee. |
| |
| "Specifications" means the published specifications provided or otherwise made available by |
| InMon at: http://www.sflow.org. |
| |
| "Trademark" means InMon's "sFlow(R)" trademark. |
| |
| 2. License Grant. |
| |
| 2.1 Software, Documentation and Specifications License Grant. InMon hereby grants to |
| Licensee, under all of InMon's Intellectual Property Rights therein, a perpetual (subject |
| to InMon's termination rights under Section 7 below), nonexclusive, royalty-free, worldwide, |
| transferable, sublicensable license, to: (i) use and reproduce the Software, the |
| Documentation, and the Specifications; (ii) modify the Software; (iii) implement the |
| Specifications in the Products; (iv) install the Software, or software in which the |
| Specifications have been implemented, on Licensee Hardware and Products, and (v) distribute |
| any Products that include the Software, the Documentation, or software in which the |
| Specifications have been implemented. |
| |
| 2.2 Trademark License. InMon hereby grants to Licensee a perpetual (subject to InMon's |
| termination rights under Section 7 below), nonexclusive, royalty-free, worldwide, |
| transferable, sublicensable license to use the Trademark on or in connection with the |
| Software, the Documentation, the Specifications and any software that implements the |
| Specifications. |
| |
| 2.3 Restrictions. Licensee agrees that it will not use the Software in a way |
| inconsistent with the license granted in Section 2.1. Further, Licensee agrees that, in |
| exercising its rights under the license granted to it in this Agreement, Licensee will: |
| (i) strictly adhere to and fully comply with the Specifications; (ii) use the Trademark, |
| and no other mark, to identify the Software, the Documentation, the Specifications and any |
| Products that implement the Specifications; (iii) place, in a font or graphic design |
| designated by InMon, the phrase "sFlow(R)" on any technical documentation, |
| sales/marketing materials, catalogs, or other such materials relating to products it |
| manufactures or markets which it has configured to be compatible with the Software or |
| otherwise implement the Specifications; (iv) in connection with any Products shipped to or |
| sold in other countries that include the Software or any software that implements the |
| Specifications, comply with the patent and trademark laws and practice of such other |
| country; and (v) not alter or impair any acknowledgment of copyright or trademark rights of |
| InMon that may appear in or on the Software, the Documentation or the Specifications. In |
| the event InMon determines that Licensee is not complying with its obligations under |
| clauses (i)-(v) above, InMon shall notify Licensee of such non-compliance, and if Licensee |
| fails to correct such non-compliance within three (3) months, InMon may immediately |
| terminate this Agreement as provided under paragraph 7 below and pursue any and all |
| actions and remedies as it deems necessary, including, but not limited to breach of |
| contract. |
| |
| 3. Ownership. Except for the license expressly granted in Section 2, Inmon hereby |
| retains all right, title, and interest in and to the Trademark and all its Intellectual |
| Property Rights in the Software, the Documentation and the Specifications. Licensee |
| obtains no rights hereunder in the Trademark, Software, Documentation or Specifications by |
| implication, estoppel or otherwise. Licensee acknowledges that the Trademark, Software, |
| Documentation and Specifications are being licensed and not sold under this Agreement, and |
| that this Agreement does not transfer title in the Trademark, Software, Documentation or |
| Specifications, or any copy thereof, to Licensee. |
| |
| 4. Support. Inmon shall have no obligation under this Agreement to (a) supply |
| maintenance or support, bug fixes or error corrections to the Licensed Software, |
| (b) supply future versions of the Licensed Software or (c) provide Licensed Software |
| development tools to Licensee. |
| |
| 5. Warranty. INMON HEREBY DISCLAIMS ALL WARRANTIES, EITHER EXPRESS, IMPLIED OR |
| STATUTORY, WITH RESPECT TO THE TRADEMARK, THE SOFTWARE, THE DOCUMENTATION, THE |
| SPECIFICATIONS. OR OTHERWISE, INCLUDING BUT NOT LIMITED TO IMPLIED WARRANTIES OF |
| MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT OF ANY INTELLECTUAL |
| PROPERTY RIGHTS. |
| |
| 6. Limitation of Liability. IN NO EVENT SHALL INMON OR ITS SUPPLIERS OR LICENSORS BE |
| LIABLE FOR ANY CONSEQUENTIAL, INCIDENTAL, SPECIAL, INDIRECT OR EXEMPLARY DAMAGES WHATSOEVER, |
| WHETHER RELATED TO OR ARISING OUT OF THIS AGREEMENT, THE TRADEMARK, THE SOFTWARE, THE |
| DOCUMENTATION, THE SPECIFICATIONS, OR OTHERWISE, INCLUDING WITHOUT LIMITATION, DAMAGES FOR |
| LOSS OF PROFITS, BUSINESS INTERRUPTION, LOSS OF DATA, COSTS OF PROCUREMENT OF SUBSTITUTE |
| GOODS OR SERVICES OR FOR ANY CLAIM OR DEMAND AGAINST LICENSEE BY ANY OTHER PARTY, OR OTHER |
| PECUNIARY LOSS, EVEN IF INMON HAS BEEN ADVISED OF OR KNOWS OF THE POSSIBILITY OF SUCH |
| DAMAGES. |
| |
| 7. Term and Termination. The term of this Agreement will begin on the Effective Date, |
| which shall be deemed to be the date of delivery of the Software and/or Documentation and/or |
| Specifications to Licensee, and shall continue indefinitely unless and until terminated by |
| Licensee's giving written notice of termination to InMon, or by InMon pursuant to InMon's |
| termination rights as set forth in Section 2.3 above. Upon any termination of this |
| Agreement, Licensee shall cease exercising its license rights under this Agreement, |
| including the right to distribute Products that incorporate the Software or Documentation |
| or that implement the Specifications. The rights and obligations contained in Sections 1, |
| 3, 5, 6, 7, and 8 shall survive any termination of this Agreement. |
| |
| 8. General Provisions. |
| |
| 8.1 Assignment. This Agreement shall be binding upon and inure to the benefit of the |
| parties hereto and their permitted successors and permitted assigns. InMon will have the |
| right to assign this Agreement without notice to Licensee. Licensee may assign or transfer |
| (whether by merger, operation of law or in any other manner) any of its rights or delegate |
| any of its obligations hereunder without the prior written consent of InMon, provided the |
| assignee assumes in writing all of Licensee's obligations hereunder. |
| |
| 8.2 Notices. All notices permitted or required under this Agreement shall be in |
| writing and shall be delivered in person or mailed by first class, registered or certified |
| mail, postage prepaid, to the address of the party specified in this Agreement or such |
| other address as either party may specify in writing. Such notice shall be deemed to have |
| been given upon receipt. |
| |
| 8.3 Non-Waiver. No term or provision hereof shall be deemed waived, and no breach |
| excused, unless such waiver or consent shall be in writing and signed by the party claimed |
| to have waived or consented. Any consent or waiver, whether express or implied, shall not |
| constitute a consent or waiver of, or excuse for any separate, different or subsequent |
| breach. |
| |
| 8.4 Independent Contractor. The parties' relationship shall be solely that of |
| independent contractors, and nothing contained in this Agreement shall be construed to make |
| either party an agent, partner, representative or principal of the other for any purpose. |
| |
| 8.5 Choice of Law and Forum. This Agreement shall be governed by and construed under |
| the laws of the State of California, without giving effect to such state's conflict of laws |
| principles. The parties hereby submit to the personal jurisdiction of, and agree that any |
| legal proceeding with respect to or arising under this Agreement shall be brought in, the |
| United States District Court for the Northern District of California or the state courts |
| of the State of California for the County of San Francisco. |
| |
| 8.6 U.S. Government Licenses. The Software and Documentation are considered a |
| "commercial item" as that term is defined at 48 C.F.R 2.101, or "commercial computer |
| software" and "commercial computer software documentation" as such terms are used in |
| 48 C.F.R 12.212 of the Federal Acquisition Regulations and its successors, and |
| 48 C.F.R. 227.7202 of the DoD FAR Supplement and its successors. |
| |
| 8.7 Severability. If any provision of this Agreement is held to be unenforceable under |
| applicable law, then such provision shall be excluded from this Agreement and the balance |
| of this Agreement shall be interpreted as if such provision were so excluded and shall be |
| enforceable in accordance with its terms. The court in its discretion may substitute for |
| the excluded provision an enforceable provision which in economic substance reasonably |
| approximates the excluded provision. |
| |
| 8.8 Compliance With Law. Licensee shall comply with all applicable laws and |
| regulations (including privacy laws and regulations) having application to or governing its |
| use and/or operation of the Software and agrees to indemnify and hold InMon harmless from |
| and against any claims, damages, losses or obligations suffered or incurred by InMon |
| arising from its failure to so comply. |
| |
| 8.9 Entire Agreement; Amendment. This Agreement constitutes the final, complete and |
| entire agreement between the parties with respect to the subject matter hereof, and |
| supersedes any previous proposals, negotiations, agreements, or arrangements, whether |
| verbal or written, made between the parties with respect to such subject matter. This |
| Agreement shall control over any additional or conflicting terms in any of Licensee's |
| purchase orders or other business forms. This Agreement may only be amended or modified |
| by mutual agreement of authorized representatives of the parties in writing. |
| |
| InMon Corp. |
| 580 California Street, 5th Floor, San Francisco, CA 94104 |
| Phone: (415) 283-3260 |
| URL: www.inmon.com |
| Email: info@inmon.com |