1LICENSE AGREEMENT 2 3PLEASE READ THIS LICENSE AGREEMENT ("AGREEMENT") CAREFULLY BEFORE REPRODUCING OR IN ANY WAY 4UTILIZING THE sFlow(R) SOFTWARE ("SOFTWARE") AND/OR ANY ACCOMPANYING DOCUMENTATION 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 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 9THE SOFTWARE OR THE DOCUMENTATION OR THE SPECIFICATIONS. 10 111. Definitions. 12 13"Documentation" means the user manuals, training materials, and operating materials, if any, 14InMon 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 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 21foreign, 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 24or on behalf of Licensee. 25 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 28third 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 31Licensee licenses from InMon under this Agreement and any bug fixes or error corrections 32which InMon may provide to Licensee. 33 34"Specifications" means the published specifications provided or otherwise made available by 35InMon at: http://www.sflow.org. 36 37"Trademark" means InMon's "sFlow(R)" trademark. 38 392. License Grant. 40 412.1 Software, Documentation and Specifications License Grant. InMon hereby grants to 42Licensee, under all of InMon's Intellectual Property Rights therein, a perpetual (subject 43to InMon's termination rights under Section 7 below), nonexclusive, royalty-free, worldwide, 44transferable, sublicensable license, to: (i) use and reproduce the Software, 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 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 49Specifications have been implemented. 50 512.2 Trademark License. InMon hereby grants to Licensee a perpetual (subject to InMon's 52termination rights under Section 7 below), nonexclusive, royalty-free, worldwide, 53transferable, sublicensable license to use the Trademark on or in connection with the 54Software, the Documentation, the Specifications and any software that implements the 55Specifications. 56 572.3 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 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, 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 63designated by InMon, the phrase "sFlow(R)" on any technical documentation, 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 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 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 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 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 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 76contract. 77 783. 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 80Property Rights in the Software, the Documentation and the Specifications. Licensee 81obtains no rights hereunder in the Trademark, Software, Documentation or Specifications by 82implication, estoppel or otherwise. Licensee acknowledges that the Trademark, Software, 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 85Specifications, or any copy thereof, to Licensee. 86 874. Support. Inmon shall have no obligation under this Agreement to (a) supply 88maintenance or support, bug fixes or error corrections to the Licensed Software, 89(b) supply future versions of the Licensed Software or (c) provide Licensed Software 90development tools to Licensee. 91 925. Warranty. INMON HEREBY DISCLAIMS ALL WARRANTIES, EITHER EXPRESS, IMPLIED OR 93STATUTORY, WITH RESPECT TO THE TRADEMARK, THE SOFTWARE, THE DOCUMENTATION, THE 94SPECIFICATIONS. OR OTHERWISE, INCLUDING BUT NOT LIMITED TO IMPLIED WARRANTIES OF 95MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT OF ANY INTELLECTUAL 96PROPERTY RIGHTS. 97 986. 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, 100WHETHER RELATED TO OR ARISING OUT OF THIS AGREEMENT, THE TRADEMARK, THE SOFTWARE, THE 101DOCUMENTATION, THE SPECIFICATIONS, OR OTHERWISE, INCLUDING WITHOUT LIMITATION, DAMAGES FOR 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 104PECUNIARY LOSS, EVEN IF INMON HAS BEEN ADVISED OF OR KNOWS OF THE POSSIBILITY OF SUCH 105DAMAGES. 106 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 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 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, 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, 1153, 5, 6, 7, and 8 shall survive any termination of this Agreement. 116 1178. General Provisions. 118 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 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 123any of its obligations hereunder without the prior written consent of InMon, provided the 124assignee assumes in writing all of Licensee's obligations hereunder. 125 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 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 130been given upon receipt. 131 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 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 136breach. 137 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 140either party an agent, partner, representative or principal of the other for any purpose. 141 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 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 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. 148 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 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 15348 C.F.R. 227.7202 of the DoD FAR Supplement and its successors. 154 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 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 159the excluded provision an enforceable provision which in economic substance reasonably 160approximates the excluded provision. 161 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 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 166arising from its failure to so comply. 167 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 170supersedes any previous proposals, negotiations, agreements, or arrangements, whether 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 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. 175 176InMon Corp. 1771 Sansome Street, 35th Floor, San Francisco, CA 94104 178Phone: (415) 946-8901 179URL: www.inmon.com 180Email: info@inmon.com 181 182