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1LICENSE AGREEMENT 1LICENSE AGREEMENT
2 2
3PLEASE READ THIS LICENSE AGREEMENT ("AGREEMENT") CAREFULLY BEFORE REPRODUCING OR IN ANY WAY 3PLEASE READ THIS LICENSE AGREEMENT ("AGREEMENT") CAREFULLY BEFORE REPRODUCING OR IN ANY WAY
4UTILIZING THE sFlow(R) SOFTWARE ("SOFTWARE") AND/OR ANY ACCOMPANYING DOCUMENTATION 4UTILIZING THE sFlow(R) SOFTWARE ("SOFTWARE") AND/OR ANY ACCOMPANYING DOCUMENTATION
5("DOCUMENTATION") AND/OR THE RELATED SPECIFICATIONS ("SPECIFICATIONS"). YOUR REPRODUCTION 5("DOCUMENTATION") AND/OR THE RELATED SPECIFICATIONS ("SPECIFICATIONS"). YOUR REPRODUCTION
6OR USE OF THE SOFTWARE AND/OR THE DOCUMENTATION AND/OR THE SPECIFICATIONS CONSTITUTES YOUR 6OR USE OF THE SOFTWARE AND/OR THE DOCUMENTATION AND/OR THE SPECIFICATIONS CONSTITUTES YOUR
7ACCEPTANCE OF THE TERMS AND CONDITIONS OF THIS AGREEMENT. IF YOU DO NOT AGREE TO BE BOUND 7ACCEPTANCE OF THE TERMS AND CONDITIONS OF THIS AGREEMENT. IF YOU DO NOT AGREE TO BE BOUND
8BY THE TERMS AND CONDITIONS OF THIS AGREEMENT, YOU MAY NOT REPRODUCE OR IN ANY WAY UTILIZE 8BY THE TERMS AND CONDITIONS OF THIS AGREEMENT, YOU MAY NOT REPRODUCE OR IN ANY WAY UTILIZE
9THE SOFTWARE OR THE DOCUMENTATION OR THE SPECIFICATIONS. 9THE SOFTWARE OR THE DOCUMENTATION OR THE SPECIFICATIONS.
10 10
111. Definitions. 111. Definitions.
12 12
13"Documentation" means the user manuals, training materials, and operating materials, if any, 13"Documentation" means the user manuals, training materials, and operating materials, if any,
14InMon provides to Licensee under this Agreement. 14InMon provides to Licensee under this Agreement.
15 15
16"InMon" means InMon Corporation, its affiliates and subsidiaries. 16"InMon" means InMon Corporation, its affiliates and subsidiaries.
17 17
18"Intellectual Property Rights" means any trade secrets, patents, including without 18"Intellectual Property Rights" means any trade secrets, patents, including without
19limitation any patents covering the Software, copyrights, know-how, moral rights and 19limitation any patents covering the Software, copyrights, know-how, moral rights and
20similar rights of any type under the laws of any governmental authority, domestic or 20similar rights of any type under the laws of any governmental authority, domestic or
21foreign, including all applications and registrations relating to any of the foregoing. 21foreign, including all applications and registrations relating to any of the foregoing.
22 22
23"Licensee Hardware" means all computers, routers, or other equipment owned or controlled by 23"Licensee Hardware" means all computers, routers, or other equipment owned or controlled by
24or on behalf of Licensee. 24or on behalf of Licensee.
25 25
26"Products" means any and all software applications, computers, routers, or other equipment 26"Products" means any and all software applications, computers, routers, or other equipment
27manufactured by or on behalf of Licensee for the purpose of resale or lease to any other 27manufactured by or on behalf of Licensee for the purpose of resale or lease to any other
28third party, or otherwise made available by Licensee free of charge. 28third party, or otherwise made available by Licensee free of charge.
29 29
30"Software" means the sFlow(R) software programs, in source or binary code format, that 30"Software" means the sFlow(R) software programs, in source or binary code format, that
31Licensee licenses from InMon under this Agreement and any bug fixes or error corrections 31Licensee licenses from InMon under this Agreement and any bug fixes or error corrections
32which InMon may provide to Licensee. 32which InMon may provide to Licensee.
33 33
34"Specifications" means the published specifications provided or otherwise made available by 34"Specifications" means the published specifications provided or otherwise made available by
35InMon at: http://www.sflow.org. 35InMon at: http://www.sflow.org.
36 36
37"Trademark" means InMon's "sFlow(R)" trademark. 37"Trademark" means InMon's "sFlow(R)" trademark.
38 38
392. License Grant. 392. License Grant.
40 40
412.1 Software, Documentation and Specifications License Grant. InMon hereby grants to 412.1 Software, Documentation and Specifications License Grant. InMon hereby grants to
42Licensee, under all of InMon's Intellectual Property Rights therein, a perpetual (subject 42Licensee, under all of InMon's Intellectual Property Rights therein, a perpetual (subject
43to InMon's termination rights under Section 7 below), nonexclusive, royalty-free, worldwide, 43to InMon's termination rights under Section 7 below), nonexclusive, royalty-free, worldwide,
44transferable, sublicensable license, to: (i) use and reproduce the Software, the 44transferable, sublicensable license, to: (i) use and reproduce the Software, the
45Documentation, and the Specifications; (ii) modify the Software; (iii) implement the 45Documentation, and the Specifications; (ii) modify the Software; (iii) implement the
46Specifications in the Products; (iv) install the Software, or software in which the 46Specifications in the Products; (iv) install the Software, or software in which the
47Specifications have been implemented, on Licensee Hardware and Products, and (v) distribute 47Specifications have been implemented, on Licensee Hardware and Products, and (v) distribute
48any Products that include the Software, the Documentation, or software in which the 48any Products that include the Software, the Documentation, or software in which the
49Specifications have been implemented. 49Specifications have been implemented.
50 50
512.2 Trademark License. InMon hereby grants to Licensee a perpetual (subject to InMon's 512.2 Trademark License. InMon hereby grants to Licensee a perpetual (subject to InMon's
52termination rights under Section 7 below), nonexclusive, royalty-free, worldwide, 52termination rights under Section 7 below), nonexclusive, royalty-free, worldwide,
53transferable, sublicensable license to use the Trademark on or in connection with the 53transferable, sublicensable license to use the Trademark on or in connection with the
54Software, the Documentation, the Specifications and any software that implements the 54Software, the Documentation, the Specifications and any software that implements the
55Specifications. 55Specifications.
56 56
572.3 Restrictions. Licensee agrees that it will not use the Software in a way 572.3 Restrictions. Licensee agrees that it will not use the Software in a way
58inconsistent with the license granted in Section 2.1. Further, Licensee agrees that, in 58inconsistent with the license granted in Section 2.1. Further, Licensee agrees that, in
59exercising its rights under the license granted to it in this Agreement, Licensee will: 59exercising 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, 60(i) strictly adhere to and fully comply with the Specifications; (ii) use the Trademark,
61and no other mark, to identify the Software, the Documentation, the Specifications and any 61and no other mark, to identify the Software, the Documentation, the Specifications and any
62Products that implement the Specifications; (iii) place, in a font or graphic design 62Products that implement the Specifications; (iii) place, in a font or graphic design
63designated by InMon, the phrase "sFlow(R)" on any technical documentation, 63designated by InMon, the phrase "sFlow(R)" on any technical documentation,
64sales/marketing materials, catalogs, or other such materials relating to products it 64sales/marketing materials, catalogs, or other such materials relating to products it
65manufactures or markets which it has configured to be compatible with the Software or 65manufactures or markets which it has configured to be compatible with the Software or
66otherwise implement the Specifications; (iv) in connection with any Products shipped to or 66otherwise implement the Specifications; (iv) in connection with any Products shipped to or
67sold in other countries that include the Software or any software that implements the 67sold in other countries that include the Software or any software that implements the
68Specifications, comply with the patent and trademark laws and practice of such other 68Specifications, comply with the patent and trademark laws and practice of such other
69country; and (v) not alter or impair any acknowledgment of copyright or trademark rights of 69country; and (v) not alter or impair any acknowledgment of copyright or trademark rights of
70InMon that may appear in or on the Software, the Documentation or the Specifications. In 70InMon that may appear in or on the Software, the Documentation or the Specifications. In
71the event InMon determines that Licensee is not complying with its obligations under 71the event InMon determines that Licensee is not complying with its obligations under
72clauses (i)-(v) above, InMon shall notify Licensee of such non-compliance, and if Licensee 72clauses (i)-(v) above, InMon shall notify Licensee of such non-compliance, and if Licensee
73fails to correct such non-compliance within three (3) months, InMon may immediately 73fails to correct such non-compliance within three (3) months, InMon may immediately
74terminate this Agreement as provided under paragraph 7 below and pursue any and all 74terminate this Agreement as provided under paragraph 7 below and pursue any and all
75actions and remedies as it deems necessary, including, but not limited to breach of 75actions and remedies as it deems necessary, including, but not limited to breach of
76contract. 76contract.
77 77
783. Ownership. Except for the license expressly granted in Section 2, Inmon hereby 783. Ownership. Except for the license expressly granted in Section 2, Inmon hereby
79retains all right, title, and interest in and to the Trademark and all its Intellectual 79retains all right, title, and interest in and to the Trademark and all its Intellectual
80Property Rights in the Software, the Documentation and the Specifications. Licensee 80Property Rights in the Software, the Documentation and the Specifications. Licensee
81obtains no rights hereunder in the Trademark, Software, Documentation or Specifications by 81obtains no rights hereunder in the Trademark, Software, Documentation or Specifications by
82implication, estoppel or otherwise. Licensee acknowledges that the Trademark, Software, 82implication, estoppel or otherwise. Licensee acknowledges that the Trademark, Software,
83Documentation and Specifications are being licensed and not sold under this Agreement, and 83Documentation and Specifications are being licensed and not sold under this Agreement, and
84that this Agreement does not transfer title in the Trademark, Software, Documentation or 84that this Agreement does not transfer title in the Trademark, Software, Documentation or
85Specifications, or any copy thereof, to Licensee. 85Specifications, or any copy thereof, to Licensee.
86 86
874. Support. Inmon shall have no obligation under this Agreement to (a) supply 874. Support. Inmon shall have no obligation under this Agreement to (a) supply
88maintenance or support, bug fixes or error corrections to the Licensed Software, 88maintenance 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 89(b) supply future versions of the Licensed Software or (c) provide Licensed Software
90development tools to Licensee. 90development tools to Licensee.
91 91
925. Warranty. INMON HEREBY DISCLAIMS ALL WARRANTIES, EITHER EXPRESS, IMPLIED OR 925. Warranty. INMON HEREBY DISCLAIMS ALL WARRANTIES, EITHER EXPRESS, IMPLIED OR
93STATUTORY, WITH RESPECT TO THE TRADEMARK, THE SOFTWARE, THE DOCUMENTATION, THE 93STATUTORY, WITH RESPECT TO THE TRADEMARK, THE SOFTWARE, THE DOCUMENTATION, THE
94SPECIFICATIONS. OR OTHERWISE, INCLUDING BUT NOT LIMITED TO IMPLIED WARRANTIES OF 94SPECIFICATIONS. OR OTHERWISE, INCLUDING BUT NOT LIMITED TO IMPLIED WARRANTIES OF
95MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT OF ANY INTELLECTUAL 95MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT OF ANY INTELLECTUAL
96PROPERTY RIGHTS. 96PROPERTY RIGHTS.
97 97
986. Limitation of Liability. IN NO EVENT SHALL INMON OR ITS SUPPLIERS OR LICENSORS BE 986. Limitation of Liability. IN NO EVENT SHALL INMON OR ITS SUPPLIERS OR LICENSORS BE
99LIABLE FOR ANY CONSEQUENTIAL, INCIDENTAL, SPECIAL, INDIRECT OR EXEMPLARY DAMAGES WHATSOEVER, 99LIABLE FOR ANY CONSEQUENTIAL, INCIDENTAL, SPECIAL, INDIRECT OR EXEMPLARY DAMAGES WHATSOEVER,
100WHETHER RELATED TO OR ARISING OUT OF THIS AGREEMENT, THE TRADEMARK, THE SOFTWARE, THE 100WHETHER RELATED TO OR ARISING OUT OF THIS AGREEMENT, THE TRADEMARK, THE SOFTWARE, THE
101DOCUMENTATION, THE SPECIFICATIONS, OR OTHERWISE, INCLUDING WITHOUT LIMITATION, DAMAGES FOR 101DOCUMENTATION, THE SPECIFICATIONS, OR OTHERWISE, INCLUDING WITHOUT LIMITATION, DAMAGES FOR
102LOSS OF PROFITS, BUSINESS INTERRUPTION, LOSS OF DATA, COSTS OF PROCUREMENT OF SUBSTITUTE 102LOSS OF PROFITS, BUSINESS INTERRUPTION, LOSS OF DATA, COSTS OF PROCUREMENT OF SUBSTITUTE
103GOODS OR SERVICES OR FOR ANY CLAIM OR DEMAND AGAINST LICENSEE BY ANY OTHER PARTY, OR OTHER 103GOODS OR SERVICES OR FOR ANY CLAIM OR DEMAND AGAINST LICENSEE BY ANY OTHER PARTY, OR OTHER
104PECUNIARY LOSS, EVEN IF INMON HAS BEEN ADVISED OF OR KNOWS OF THE POSSIBILITY OF SUCH 104PECUNIARY LOSS, EVEN IF INMON HAS BEEN ADVISED OF OR KNOWS OF THE POSSIBILITY OF SUCH
105DAMAGES. 105DAMAGES.
106 106
1077. Term and Termination. The term of this Agreement will begin on the Effective Date, 1077. Term and Termination. The term of this Agreement will begin on the Effective Date,
108which shall be deemed to be the date of delivery of the Software and/or Documentation and/or 108which shall be deemed to be the date of delivery of the Software and/or Documentation and/or
109Specifications to Licensee, and shall continue indefinitely unless and until terminated by 109Specifications to Licensee, and shall continue indefinitely unless and until terminated by
110Licensee's giving written notice of termination to InMon, or by InMon pursuant to InMon's 110Licensee's giving written notice of termination to InMon, or by InMon pursuant to InMon's
111termination rights as set forth in Section 2.3 above. Upon any termination of this 111termination rights as set forth in Section 2.3 above. Upon any termination of this
112Agreement, Licensee shall cease exercising its license rights under this Agreement, 112Agreement, Licensee shall cease exercising its license rights under this Agreement,
113including the right to distribute Products that incorporate the Software or Documentation 113including the right to distribute Products that incorporate the Software or Documentation
114or that implement the Specifications. The rights and obligations contained in Sections 1, 114or that implement the Specifications. The rights and obligations contained in Sections 1,
1153, 5, 6, 7, and 8 shall survive any termination of this Agreement. 1153, 5, 6, 7, and 8 shall survive any termination of this Agreement.
116 116
1178. General Provisions. 1178. General Provisions.
118 118
1198.1 Assignment. This Agreement shall be binding upon and inure to the benefit of the 1198.1 Assignment. This Agreement shall be binding upon and inure to the benefit of the
120parties hereto and their permitted successors and permitted assigns. InMon will have the 120parties hereto and their permitted successors and permitted assigns. InMon will have the
121right to assign this Agreement without notice to Licensee. Licensee may assign or transfer 121right 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 122(whether by merger, operation of law or in any other manner) any of its rights or delegate
123any of its obligations hereunder without the prior written consent of InMon, provided the 123any of its obligations hereunder without the prior written consent of InMon, provided the
124assignee assumes in writing all of Licensee's obligations hereunder. 124assignee assumes in writing all of Licensee's obligations hereunder.
125 125
1268.2 Notices. All notices permitted or required under this Agreement shall be in 1268.2 Notices. All notices permitted or required under this Agreement shall be in
127writing and shall be delivered in person or mailed by first class, registered or certified 127writing and shall be delivered in person or mailed by first class, registered or certified
128mail, postage prepaid, to the address of the party specified in this Agreement or such 128mail, postage prepaid, to the address of the party specified in this Agreement or such
129other address as either party may specify in writing. Such notice shall be deemed to have 129other address as either party may specify in writing. Such notice shall be deemed to have
130been given upon receipt. 130been given upon receipt.
131 131
1328.3 Non-Waiver. No term or provision hereof shall be deemed waived, and no breach 1328.3 Non-Waiver. No term or provision hereof shall be deemed waived, and no breach
133excused, unless such waiver or consent shall be in writing and signed by the party claimed 133excused, unless such waiver or consent shall be in writing and signed by the party claimed
134to have waived or consented. Any consent or waiver, whether express or implied, shall not 134to have waived or consented. Any consent or waiver, whether express or implied, shall not
135constitute a consent or waiver of, or excuse for any separate, different or subsequent 135constitute a consent or waiver of, or excuse for any separate, different or subsequent
136breach. 136breach.
137 137
1388.4 Independent Contractor. The parties' relationship shall be solely that of 1388.4 Independent Contractor. The parties' relationship shall be solely that of
139independent contractors, and nothing contained in this Agreement shall be construed to make 139independent contractors, and nothing contained in this Agreement shall be construed to make
140either party an agent, partner, representative or principal of the other for any purpose. 140either party an agent, partner, representative or principal of the other for any purpose.
141 141
1428.5 Choice of Law and Forum. This Agreement shall be governed by and construed under 1428.5 Choice of Law and Forum. This Agreement shall be governed by and construed under
143the laws of the State of California, without giving effect to such state's conflict of laws 143the laws of the State of California, without giving effect to such state's conflict of laws
144principles. The parties hereby submit to the personal jurisdiction of, and agree that any 144principles. The parties hereby submit to the personal jurisdiction of, and agree that any
145legal proceeding with respect to or arising under this Agreement shall be brought in, the 145legal proceeding with respect to or arising under this Agreement shall be brought in, the
146United States District Court for the Northern District of California or the state courts 146United States District Court for the Northern District of California or the state courts
147of the State of California for the County of San Francisco. 147of the State of California for the County of San Francisco.
148 148
1498.6 U.S. Government Licenses. The Software and Documentation are considered a 1498.6 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 150"commercial item" as that term is defined at 48 C.F.R 2.101, or "commercial computer
151software" and "commercial computer software documentation" as such terms are used in 151software" and "commercial computer software documentation" as such terms are used in
15248 C.F.R 12.212 of the Federal Acquisition Regulations and its successors, and 15248 C.F.R 12.212 of the Federal Acquisition Regulations and its successors, and
15348 C.F.R. 227.7202 of the DoD FAR Supplement and its successors. 15348 C.F.R. 227.7202 of the DoD FAR Supplement and its successors.
154 154
1558.7 Severability. If any provision of this Agreement is held to be unenforceable under 1558.7 Severability. If any provision of this Agreement is held to be unenforceable under
156applicable law, then such provision shall be excluded from this Agreement and the balance 156applicable law, then such provision shall be excluded from this Agreement and the balance
157of this Agreement shall be interpreted as if such provision were so excluded and shall be 157of this Agreement shall be interpreted as if such provision were so excluded and shall be
158enforceable in accordance with its terms. The court in its discretion may substitute for 158enforceable in accordance with its terms. The court in its discretion may substitute for
159the excluded provision an enforceable provision which in economic substance reasonably 159the excluded provision an enforceable provision which in economic substance reasonably
160approximates the excluded provision. 160approximates the excluded provision.
161 161
1628.8 Compliance With Law. Licensee shall comply with all applicable laws and 1628.8 Compliance With Law. Licensee shall comply with all applicable laws and
163regulations (including privacy laws and regulations) having application to or governing its 163regulations (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 164 use and/or operation of the Software and agrees to indemnify and hold InMon harmless from
165and against any claims, damages, losses or obligations suffered or incurred by InMon 165and against any claims, damages, losses or obligations suffered or incurred by InMon
166arising from its failure to so comply. 166arising from its failure to so comply.
167 167
1688.9 Entire Agreement; Amendment. This Agreement constitutes the final, complete and 1688.9 Entire Agreement; Amendment. This Agreement constitutes the final, complete and
169entire agreement between the parties with respect to the subject matter hereof, and 169entire agreement between the parties with respect to the subject matter hereof, and
170supersedes any previous proposals, negotiations, agreements, or arrangements, whether 170supersedes any previous proposals, negotiations, agreements, or arrangements, whether
171verbal or written, made between the parties with respect to such subject matter. This 171verbal or written, made between the parties with respect to such subject matter. This
172Agreement shall control over any additional or conflicting terms in any of Licensee's 172Agreement shall control over any additional or conflicting terms in any of Licensee's
173purchase orders or other business forms. This Agreement may only be amended or modified 173purchase orders or other business forms. This Agreement may only be amended or modified
174by mutual agreement of authorized representatives of the parties in writing. 174by mutual agreement of authorized representatives of the parties in writing.
175 175
176InMon Corp. 176InMon Corp.
177580 California Street, 5th Floor, San Francisco, CA 94104 177580 California Street, 5th Floor, San Francisco, CA 94104
178Phone: (415) 283-3260 178Phone: (415) 283-3260
179URL: www.inmon.com 179URL: www.inmon.com
180Email: info@inmon.com 180Email: info@inmon.com
181

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