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Revision 1.1 - (hide annotations) (download)
Sun May 22 16:23:31 2005 UTC (9 years, 4 months ago) by strerror
Branch: MAIN
Added new license (insmon-sflow) for net-analyzer/sflowtool.

1 strerror 1.1 LICENSE AGREEMENT
2    
3     PLEASE READ THIS LICENSE AGREEMENT ("AGREEMENT") CAREFULLY BEFORE REPRODUCING OR IN ANY WAY
4     UTILIZING THE sFlow(R) SOFTWARE ("SOFTWARE") AND/OR ANY ACCOMPANYING DOCUMENTATION
5     ("DOCUMENTATION") AND/OR THE RELATED SPECIFICATIONS ("SPECIFICATIONS"). YOUR REPRODUCTION
6     OR USE OF THE SOFTWARE AND/OR THE DOCUMENTATION AND/OR THE SPECIFICATIONS CONSTITUTES YOUR
7     ACCEPTANCE OF THE TERMS AND CONDITIONS OF THIS AGREEMENT. IF YOU DO NOT AGREE TO BE BOUND
8     BY THE TERMS AND CONDITIONS OF THIS AGREEMENT, YOU MAY NOT REPRODUCE OR IN ANY WAY UTILIZE
9     THE SOFTWARE OR THE DOCUMENTATION OR THE SPECIFICATIONS.
10    
11     1. Definitions.
12    
13     "Documentation" means the user manuals, training materials, and operating materials, if any,
14     InMon provides to Licensee under this Agreement.
15    
16     "InMon" means InMon Corporation, its affiliates and subsidiaries.
17    
18     "Intellectual Property Rights" means any trade secrets, patents, including without
19     limitation any patents covering the Software, copyrights, know-how, moral rights and
20     similar rights of any type under the laws of any governmental authority, domestic or
21     foreign, including all applications and registrations relating to any of the foregoing.
22    
23     "Licensee Hardware" means all computers, routers, or other equipment owned or controlled by
24     or on behalf of Licensee.
25    
26     "Products" means any and all software applications, computers, routers, or other equipment
27     manufactured by or on behalf of Licensee for the purpose of resale or lease to any other
28     third party, or otherwise made available by Licensee free of charge.
29    
30     "Software" means the sFlow(R) software programs, in source or binary code format, that
31     Licensee licenses from InMon under this Agreement and any bug fixes or error corrections
32     which InMon may provide to Licensee.
33    
34     "Specifications" means the published specifications provided or otherwise made available by
35     InMon at: http://www.sflow.org.
36    
37     "Trademark" means InMon's "sFlow(R)" trademark.
38    
39     2. License Grant.
40    
41     2.1 Software, Documentation and Specifications License Grant. InMon hereby grants to
42     Licensee, under all of InMon's Intellectual Property Rights therein, a perpetual (subject
43     to InMon's termination rights under Section 7 below), nonexclusive, royalty-free, worldwide,
44     transferable, sublicensable license, to: (i) use and reproduce the Software, the
45     Documentation, and the Specifications; (ii) modify the Software; (iii) implement the
46     Specifications in the Products; (iv) install the Software, or software in which the
47     Specifications have been implemented, on Licensee Hardware and Products, and (v) distribute
48     any Products that include the Software, the Documentation, or software in which the
49     Specifications have been implemented.
50    
51     2.2 Trademark License. InMon hereby grants to Licensee a perpetual (subject to InMon's
52     termination rights under Section 7 below), nonexclusive, royalty-free, worldwide,
53     transferable, sublicensable license to use the Trademark on or in connection with the
54     Software, the Documentation, the Specifications and any software that implements the
55     Specifications.
56    
57     2.3 Restrictions. Licensee agrees that it will not use the Software in a way
58     inconsistent with the license granted in Section 2.1. Further, Licensee agrees that, in
59     exercising its rights under the license granted to it in this Agreement, Licensee will:
60     (i) strictly adhere to and fully comply with the Specifications; (ii) use the Trademark,
61     and no other mark, to identify the Software, the Documentation, the Specifications and any
62     Products that implement the Specifications; (iii) place, in a font or graphic design
63     designated by InMon, the phrase "sFlow(R)" on any technical documentation,
64     sales/marketing materials, catalogs, or other such materials relating to products it
65     manufactures or markets which it has configured to be compatible with the Software or
66     otherwise implement the Specifications; (iv) in connection with any Products shipped to or
67     sold in other countries that include the Software or any software that implements the
68     Specifications, comply with the patent and trademark laws and practice of such other
69     country; and (v) not alter or impair any acknowledgment of copyright or trademark rights of
70     InMon that may appear in or on the Software, the Documentation or the Specifications. In
71     the event InMon determines that Licensee is not complying with its obligations under
72     clauses (i)-(v) above, InMon shall notify Licensee of such non-compliance, and if Licensee
73     fails to correct such non-compliance within three (3) months, InMon may immediately
74     terminate this Agreement as provided under paragraph 7 below and pursue any and all
75     actions and remedies as it deems necessary, including, but not limited to breach of
76     contract.
77    
78     3. Ownership. Except for the license expressly granted in Section 2, Inmon hereby
79     retains all right, title, and interest in and to the Trademark and all its Intellectual
80     Property Rights in the Software, the Documentation and the Specifications. Licensee
81     obtains no rights hereunder in the Trademark, Software, Documentation or Specifications by
82     implication, estoppel or otherwise. Licensee acknowledges that the Trademark, Software,
83     Documentation and Specifications are being licensed and not sold under this Agreement, and
84     that this Agreement does not transfer title in the Trademark, Software, Documentation or
85     Specifications, or any copy thereof, to Licensee.
86    
87     4. Support. Inmon shall have no obligation under this Agreement to (a) supply
88     maintenance or support, bug fixes or error corrections to the Licensed Software,
89     (b) supply future versions of the Licensed Software or (c) provide Licensed Software
90     development tools to Licensee.
91    
92     5. Warranty. INMON HEREBY DISCLAIMS ALL WARRANTIES, EITHER EXPRESS, IMPLIED OR
93     STATUTORY, WITH RESPECT TO THE TRADEMARK, THE SOFTWARE, THE DOCUMENTATION, THE
94     SPECIFICATIONS. OR OTHERWISE, INCLUDING BUT NOT LIMITED TO IMPLIED WARRANTIES OF
95     MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT OF ANY INTELLECTUAL
96     PROPERTY RIGHTS.
97    
98     6. Limitation of Liability. IN NO EVENT SHALL INMON OR ITS SUPPLIERS OR LICENSORS BE
99     LIABLE FOR ANY CONSEQUENTIAL, INCIDENTAL, SPECIAL, INDIRECT OR EXEMPLARY DAMAGES WHATSOEVER,
100     WHETHER RELATED TO OR ARISING OUT OF THIS AGREEMENT, THE TRADEMARK, THE SOFTWARE, THE
101     DOCUMENTATION, THE SPECIFICATIONS, OR OTHERWISE, INCLUDING WITHOUT LIMITATION, DAMAGES FOR
102     LOSS OF PROFITS, BUSINESS INTERRUPTION, LOSS OF DATA, COSTS OF PROCUREMENT OF SUBSTITUTE
103     GOODS OR SERVICES OR FOR ANY CLAIM OR DEMAND AGAINST LICENSEE BY ANY OTHER PARTY, OR OTHER
104     PECUNIARY LOSS, EVEN IF INMON HAS BEEN ADVISED OF OR KNOWS OF THE POSSIBILITY OF SUCH
105     DAMAGES.
106    
107     7. Term and Termination. The term of this Agreement will begin on the Effective Date,
108     which shall be deemed to be the date of delivery of the Software and/or Documentation and/or
109     Specifications to Licensee, and shall continue indefinitely unless and until terminated by
110     Licensee's giving written notice of termination to InMon, or by InMon pursuant to InMon's
111     termination rights as set forth in Section 2.3 above. Upon any termination of this
112     Agreement, Licensee shall cease exercising its license rights under this Agreement,
113     including the right to distribute Products that incorporate the Software or Documentation
114     or that implement the Specifications. The rights and obligations contained in Sections 1,
115     3, 5, 6, 7, and 8 shall survive any termination of this Agreement.
116    
117     8. General Provisions.
118    
119     8.1 Assignment. This Agreement shall be binding upon and inure to the benefit of the
120     parties hereto and their permitted successors and permitted assigns. InMon will have the
121     right to assign this Agreement without notice to Licensee. Licensee may assign or transfer
122     (whether by merger, operation of law or in any other manner) any of its rights or delegate
123     any of its obligations hereunder without the prior written consent of InMon, provided the
124     assignee assumes in writing all of Licensee's obligations hereunder.
125    
126     8.2 Notices. All notices permitted or required under this Agreement shall be in
127     writing and shall be delivered in person or mailed by first class, registered or certified
128     mail, postage prepaid, to the address of the party specified in this Agreement or such
129     other address as either party may specify in writing. Such notice shall be deemed to have
130     been given upon receipt.
131    
132     8.3 Non-Waiver. No term or provision hereof shall be deemed waived, and no breach
133     excused, unless such waiver or consent shall be in writing and signed by the party claimed
134     to have waived or consented. Any consent or waiver, whether express or implied, shall not
135     constitute a consent or waiver of, or excuse for any separate, different or subsequent
136     breach.
137    
138     8.4 Independent Contractor. The parties' relationship shall be solely that of
139     independent contractors, and nothing contained in this Agreement shall be construed to make
140     either party an agent, partner, representative or principal of the other for any purpose.
141    
142     8.5 Choice of Law and Forum. This Agreement shall be governed by and construed under
143     the laws of the State of California, without giving effect to such state's conflict of laws
144     principles. The parties hereby submit to the personal jurisdiction of, and agree that any
145     legal proceeding with respect to or arising under this Agreement shall be brought in, the
146     United States District Court for the Northern District of California or the state courts
147     of the State of California for the County of San Francisco.
148    
149     8.6 U.S. Government Licenses. The Software and Documentation are considered a
150     "commercial item" as that term is defined at 48 C.F.R 2.101, or "commercial computer
151     software" and "commercial computer software documentation" as such terms are used in
152     48 C.F.R 12.212 of the Federal Acquisition Regulations and its successors, and
153     48 C.F.R. 227.7202 of the DoD FAR Supplement and its successors.
154    
155     8.7 Severability. If any provision of this Agreement is held to be unenforceable under
156     applicable law, then such provision shall be excluded from this Agreement and the balance
157     of this Agreement shall be interpreted as if such provision were so excluded and shall be
158     enforceable in accordance with its terms. The court in its discretion may substitute for
159     the excluded provision an enforceable provision which in economic substance reasonably
160     approximates the excluded provision.
161    
162     8.8 Compliance With Law. Licensee shall comply with all applicable laws and
163     regulations (including privacy laws and regulations) having application to or governing its
164     use and/or operation of the Software and agrees to indemnify and hold InMon harmless from
165     and against any claims, damages, losses or obligations suffered or incurred by InMon
166     arising from its failure to so comply.
167    
168     8.9 Entire Agreement; Amendment. This Agreement constitutes the final, complete and
169     entire agreement between the parties with respect to the subject matter hereof, and
170     supersedes any previous proposals, negotiations, agreements, or arrangements, whether
171     verbal or written, made between the parties with respect to such subject matter. This
172     Agreement shall control over any additional or conflicting terms in any of Licensee's
173     purchase orders or other business forms. This Agreement may only be amended or modified
174     by mutual agreement of authorized representatives of the parties in writing.
175    
176     InMon Corp.
177     580 California Street, 5th Floor, San Francisco, CA 94104
178     Phone: (415) 283-3260
179     URL: www.inmon.com
180     Email: info@inmon.com
181    

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