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. | |
1 Sansome Street, 35th Floor, San Francisco, CA 94104 | |
Phone: (415) 946-8901 | |
URL: www.inmon.com | |
Email: info@inmon.com | |