PLEASE READ THIS LICENSE AGREEMENT ("AGREEMENT") CAREFULLY BEFORE DOWNLOADING THE SOFTWARE ("SOFTWARE") AND ACCOMPANYING DOCUMENTATION ("DOCUMENTATION") FROM THIS WEB SITE. BY DOWNLOADING THE SOFTWARE AND/OR DOCUMENTATION, YOU AGREE TO BE BOUND BY THE TERMS OF THIS AGREEMENT. IF YOU DO NOT AGREE TO BE BOUND BY THE TERMS OF THIS AGREEMENT, DO NOT DOWNLOAD THE SOFTWARE OR THE DOCUMENTATION.
(a) Grant. InMon Corp. ("InMon") hereby grants you a non-exclusive, non-transferable and non-sublicenseable right and license during the term of this Agreement to use one copy of the Software, including all supporting Documentation, for the sole purpose of your internal evaluation and, subject to receipt by InMon of payment from you for the Software as set forth in Section 7(a), your internal use on a single computer.
(b) Restrictions. You hereby agree not to use the Software or Documentation for any purpose other than as set forth in 1(a), including without limitation on two or more computers without separate authorization in writing from InMon and payment of applicable license fees. In particular (and to the fullest extent permitted by law), you agree not to attempt to decompile, decipher or disassemble the Software or to otherwise reverse engineer the Software (or knowingly permit others to do so), or to use the Software or Documentation for any commercial purpose. You shall not copy the Software or Documentation, in whole or in part, except as necessary to use or archive the Software.
2. Ownership. Except for the limited rights expressly granted to you under Section 1, (i) InMon reserves all rights, title and interests in and to the Software and Documentation, (ii) no right, title, ownership, interest or license in or to the Software and Documentation, whether by implication, estoppel or otherwise, is granted, assigned or transferred to you under or in connection with this Agreement. You acknowledge and agree that the Software and the Documentation are proprietary products of InMon protected under U.S. copyright, patent and trademark law. You further acknowledge and agree that all rights, title, and interest in and to the Software and the Documentation, including associated intellectual property rights, are and shall remain with InMon. By downloading the Software and Documentation, you waive any claim to or proprietary interest in the technology.
3. Notice. The Software and the Documentation contain copyrighted material, trade secrets and other proprietary information of InMon, and may be covered by pending and issued patents. You agree not to remove or destroy any patent, copyright or other proprietary rights notices contained in or on the Software.
4. Protection of Data. You shall have the sole responsibility for adequate protection and backup of your data used in connection with the Software, and you shall not have any claim against InMon for lost data, work delays or lost profits resulting from the use of the Software.
(a) Nondisclosure Obligation. You recognize that the existence, content, purpose, design and function of the Software and Documentation are highly proprietary and confidential in nature to InMon. You agree that neither you nor any of your employees will use for your or their own account or for the account of any third party or disclose to any third party any information whatsoever regarding the content, design or function of the Software and Documentation. In accordance with the foregoing, you will treat the Software and Documentation with the same degree of care you use to protect your own most confidential information, but in no case less than reasonable care. Software and Documentation shall only be used by you in accordance with this Agreement. You shall promptly notify InMon in writing of any misuse or misappropriation of the Software and Documentation which comes to your attention.
(b) Required Disclosure. Nothing in this Agreement shall prohibit you from disclosing the contents of the Software or Documentation if legally required to do so by judicial or governmental order or by deposition, interrogatory, request for documents, subpoena, civil investigative demand or similar process in a judicial or governmental proceeding ("Required Disclosure"); provided that you (i) shall only disclose the exact portion of the Software or Documentation specifically requested by the Required Disclosure, and (ii) shall give InMon prompt notice of such Required Disclosure prior to disclosure and cooperate with InMon in the event that InMon elects to contest such disclosure or seek a protective order with respect thereto.
(c) Return of Materials. Upon written request from InMon at any time or during the initial 30 day evaluation term, or thereafter upon termination of this Agreement, you shall promptly return the Software and accompanying Documentation to InMon and certify to InMon in writing that the Software and Documentation have been destroyed.
(d) Injunctive Relief. You acknowledge and agree that unauthorized disclosure or use of the Software and Documentation, or any information contained therein, will diminish the value thereof to InMon. Therefore, if you breach any obligations set forth in this Section 5, InMon shall be entitled to seek equitable relief without posting bond to protect its interests in the Software, the Documentation or any information contained therein, including but not limited to injunctive relief, as well as any other remedies available to InMon in equity or at law.
6. Limited Warranty. InMon warrants, for your benefit alone, for a period of two months from the date of commencement of this License Agreement (referred to as the "Warranty Period") that the Software will operate substantially in accordance with the functional specifications in the Documentation. If, during the Warranty Period, a defect in the Software appears, you may return the Software to InMon for replacement or, if InMon elects in its sole discretion, a refund of amounts paid by you under this License Agreement. You agree that the foregoing constitutes your sole and exclusive remedy for breach by InMon of any warranties made under this agreement or otherwise. EXCEPT FOR THE LIMITED WARRANTY SET FORTH ABOVE, THE SOFTWARE AND DOCUMENTATION ARE LICENSED "AS IS," AND INMON DISCLAIMS ANY AND ALL OTHER WARRANTIES, WHETHER EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, ANY IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE.
IN NO EVENT SHALL INMON BE LIABLE TO YOU FOR ANY CONSEQUENTIAL, EXEMPLARY, PUNITIVE, INCIDENTAL, INDIRECT OR SPECIAL DAMAGES OR COSTS (INCLUDING WITHOUT LIMITATION ATTORNEYS' OR EXPERTS' FEES), INCLUDING WITHOUT LIMITATION LOSS OF DATA, LOST PROFITS, COST OF COVER OR OTHER SPECIAL, INCIDENTAL, CONSEQUENTIAL, DIRECT OR INDIRECT DAMAGES ARISING FROM THE USE OF THE SOFTWARE OR THE DOCUMENTATION OR OTHERWISE ARISING OUT OF OR RELATED TO THIS AGREEMENT, WHETHER OR NOT INMON HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES OR COSTS.
(a) Term. The term of this Agreement shall commence upon your downloading the Software and/or Documentation, and shall expire thirty (30) days thereafter. This Agreement shall be extended upon receipt by InMon of payment of the full license fee for the copy of the Software downloaded by you, as specified in the formal quote sent to you or as specified in the online purchasing system for the selected license, in which case this Agreement will continue in effect for the period of the purchased license or until terminated by either party in accordance with Section 7(b).
(b) Termination. You may terminate this Agreement at any time by returning the Software and Documentation to InMon and certifying to InMon in writing that the Software and Documentation have been destroyed. Termination of this Agreement shall not relieve you of any obligations set forth in this Agreement with respect to the protection of the Software and Documentation, and all such obligations shall continue in accordance with the terms of this Agreement in perpetuity.
8. Governing Law and Venue. This Agreement shall be governed by and construed under, and the legal relations between the parties hereto shall be determined in accordance with, the laws of the State of California, without giving effect to such state's conflicts of law principles. In any dispute arising out of this Agreement, you and InMon each consent to the jurisdiction of the state courts of San Francisco County, California and the federal courts for the Northern District of California and agree to bring any actions arising out of this Agreement only in such courts.
9. No Assignment. You shall not assign, transfer or pledge this Agreement, or any interest, license or rights of any kind herein, in any manner without the prior written consent of InMon.
10. Independent Contractor. This Agreement does not create any agency, employment, partnership, joint venture, franchise or other similar or special relationship between the parties. Neither party will have the right or authority to assume or create any obligations or to make any representations, warranties or commitments on behalf of the other party or its affiliates, whether express or implied, or to bind the other party or its affiliates in any respect whatsoever.
11. Attorneys' Fees. In the event of any litigation or other legal proceedings between you and InMon arising under or relating to this Agreement, the prevailing party therein shall be entitled to recover its attorneys' and experts' fees and costs in addition to any other relief to which it may be entitled.
12. Severability. If any provision of this Agreement or portion thereof is determined by a court of competent jurisdiction, or declared under any law, rule or regulation of any government having jurisdiction over the parties hereto, to be invalid, illegal or otherwise unenforceable, then such provision will, to the extent permitted by the court or government not be voided but will instead be construed to give effect to its intent to the maximum extent permissible under applicable law and the remainder of this Agreement will remain in full force and effect according to its terms.
13. Entire Agreement; Waiver. This Agreement constitutes the entire agreement between you and InMon concerning its subject matter and supersedes any and all prior or contemporaneous, written or oral negotiations, correspondence, understandings and agreements between you and InMon respecting the subject matter of this Agreement. No waiver of any of the provisions of this Agreement shall be deemed, or shall constitute, a waiver of any other provision, whether or not similar, nor shall any waiver constitute a continuing waiver. No waiver shall be binding unless executed in writing by the party making the waiver.