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Exhibit 10.22
IMPORTANT--READ CAREFULLY BEFORE OPENING SOFTWARE PACKAGES.
BY OPENING THE SEALED PACKETS CONTAINING THE SOFTWARE, YOU INDICATE YOUR
ACCEPTANCE OF THE FOLLOWING CONCORD COMMUNICATIONS LICENSE AGREEMENT.
CONCORD COMMUNICATIONS LICENSE AGREEMENT
This is a legal agreement between you and Concord Communications, Inc. By
opening the sealed software packets you are agreeing to be bound by the terms of
this agreement. If you do not agree to the terms and conditions of this
agreement, immediately return the unopened software packages and all
accompanying materials to Concord.
LICENSE TERM AND CHARGES. Concord Communications, Inc. ("Concord") hereby grants
to you a non-exclusive, nontransferable license to use the enclosed proprietary
copyrighted licensed software ("SOFTWARE") owned by Concord and its licensors.
The term of this license commences when you open the sealed packages containing
the SOFTWARE and will continue until terminated upon default or as otherwise set
forth herein. The SOFTWARE may be used on only one host workstation at a time.
The SOFTWARE might not be usable by you until you have obtained a license key
which enables the Software. By obtaining a license key for the SOFTWARE, you
ratify your assent to this agreement.
If the SOFTWARE is used to poll Network Element data and monitor the functioning
of your computer network(s), the maximum number ("Number") of Network Elements
which may be polled shall be specified on your contract, purchase order, or
invoice, and if no Number is so specified, the Number shall be 25. If you desire
to increase the Number, you may do so by notifying Concord and paying the
applicable price. A Network Element is a resource in your network, for example,
an Ethernet, Token Ring, a port, a WAN link, etc., that is identified by a
unique "IP address/indices/community string" combination.
RESTRICTIONS. You shall not (and you shall not permit other persons or entities
to) (i) directly or indirectly, by electronic or other means, reproduce (except
one copy for archival purposes), publish, distribute, rent, lease, sell,
sublicense, assign or otherwise transfer the SOFTWARE or any part thereof or
this Agreement; (ii) reverse-engineer, decompile, disassemble, merge, modify,
create derivative works of, or translate the SOFTWARE or use any part of the
SOFTWARE outside the scope of the intended use of the SOFTWARE; (iii) use the
SOFTWARE for any purpose other than internal business purposes and not permit
sublicensing, time sharing, rental, facility management, service bureau or
application development use of the SOFTWARE nor permit publication or
distribution of results of any benchmark tests run on the SOFTWARE; or (iv)
remove or obscure any copyright, trademark or other proprietary notices or
legends from any portion of the SOFTWARE or any associated documentation.
This License Agreement and your rights hereunder will automatically terminate if
you fail to comply with any provision of this agreement. Upon such termination,
you agree to destroy all copies, installed or otherwise, of the information on
the CD which contains the SOFTWARE, and return the CD and all accompanying
materials, whether or not lawful, that are in your possession or under your
control.
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LIMITED WARRANTY AND LIMITED LIABILITY
A. Concord warrants that for a period of 180 days from the date of
shipment of the CD to you, the SOFTWARE, if operated as instructed,
will perform substantially in accordance with the accompanying user
documentation and will substantially achieve the functionality
described therein. Concord's obligation under this warranty shall be
limited as set forth below. Concord does not warrant that the
SOFTWARE, due to its complex nature, is totally free from error or
omission or that operation will be uninterrupted. All warranty
obligations are void if the SOFTWARE has been modified.
B. Concord's entire liability and your sole remedy shall be limited, at
the election of Concord, to (i) replacement of the CD, (ii) refund of
your license fee, or (iii) use of Concord's best reasonable efforts to
correct, at no charge, SOFTWARE errors of which Concord is the cause.
Concord shall have no liability if failure of the SOFTWARE is wholly
or partly the result of abuse, misapplication or accident. Any
replacement CD will be warranted on the same terms for the remainder
of the original warranty period or 30 days, whichever is longer.
C. EXCEPT AS SPECIFICALLY STATED ABOVE, THE LICENSED SOFTWARE IS PROVIDED
WITHOUT WARRANTY OF ANY KIND, EITHER EXPRESSED OR IMPLIED INCLUDING,
WITHOUT LIMITATION, ANY WARRANTY OF MERCHANTABILITY AND FITNESS FOR A
PARTICULAR PURPOSE. THE ENTIRE RISK AS TO THE RESULTS AND PERFORMANCE
OF THE LICENSED SOFTWARE IS ASSUMED BY YOU, AND CONCORD ASSUMES NO
RESPONSIBILITY FOR THE ACCURACY OR APPLICATION OF OR ERRORS OR
OMISSIONS IN THE LICENSED SOFTWARE. IN NO EVENT SHALL CONCORD BE
LIABLE FOR ANY DIRECT, INDIRECT, SPECIAL, INCIDENTAL OR CONSEQUENTIAL
DAMAGES ARISING OUT OF THE USE OR INABILITY TO USE THE LICENSED
SOFTWARE, EVEN IF CONCORD HAS BEEN ADVISED OF THE LIKELIHOOD OF SUCH
DAMAGES OCCURRING. CONCORD SHALL NOT BE LIABLE FOR ANY BUSINESS
INTERRUPTION; LOST PROFITS OR REVENUE; LOSS OF USE OF THE LICENSED
SOFTWARE; LOSS OF DATA OR EQUIPMENT; THE COST OF RECOVERING MATERIALS
IN THE LICENSED SOFTWARE; THE COST OF SUBSTITUTE SOFTWARE; CLAIMS BY
THIRD PARTIES OR OTHER SIMILAR COSTS. AS USED IN THIS PARAGRAPH, THE
TERM CONCORD INCLUDES CONCORD'S LICENSORS.
D. The warranty and remedy set forth herein are exclusive and in lieu of
all others, oral or written, expressed or implied. No Concord agent or
employee or third party is authorized to make any modification or
addition to this warranty.
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E. Some states do not allow exclusion or limitation of implied warranties
or limitation of liability for incidental or consequential damages, so
the above limitations or exclusions may not apply to you.
U.S. GOVERNMENT RESTRICTED RIGHTS. The SOFTWARE is licensed subject to
RESTRICTED RIGHTS. Use, duplication, or disclosure by the U.S. Government or any
person or entity acting on its behalf is subject to restrictions as set forth in
subdivision(c)(1)(ii) of the Rights in Technical Data and Computer Software
Clause at DFARS (sec.252.277-7013) for DoD contracts, in paragraphs (c)(1) and
(2) of the Commercial Computer Software Restricted Rights clause in the FAR
(sec.52.227-19) for civilian agencies or in other comparable agency clauses. The
contractor/manufacturer is Concord Communications, Inc.
GENERAL PROVISIONS. Concord retains all rights not expressly granted. Nothing in
this Agreement constitutes a waiver of Concord's rights under U.S. copyright
laws or any other federal, state, local, or foreign law or grants you any rights
in source code. You are responsible for installation, management and operation
of the SOFTWARE. This Agreement shall be construed, interpreted and governed
under Massachusetts law.
