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Inmon Corporation |
sFlow® software
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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. |
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1. Definitions.
"Documentation" means the user manuals, training materials,
and operating materials, if any, InMon provides to Licensee under
this Agreement. |
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"InMon" means InMon Corporation, its
affiliates and subsidiaries. |
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"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. |
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"Licensee Hardware" means all computers,
routers, or other equipment owned or controlled by or on behalf
of Licensee. |
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"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. |
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"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. |
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"Specifications" means the published
specifications provided or otherwise made available by InMon at:
http://www.sflow.org. |
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"Trademark" means InMon's "sFlow(R)"
trademark. |
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2. License Grant. |
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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. |
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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. |
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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. |
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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. |
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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. |
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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. |
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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. |
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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. |
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8. General Provisions. |
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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. |
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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. |
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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. |
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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. |
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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. |
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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. |
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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. |
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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. |
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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. |
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InMon Corp.
1 Sansome Street, 35th Floor, San Francisco, CA 94104
Phone: (415) 946-8901
URL: www.inmon.com
Email: info@inmon.com |
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