exv10w15



 






Exhibit 10.15


	 	***	 	INDICATES
THAT TEXT HAS BEEN OMITTED WHICH IS THE SUBJECT OF A CONFIDENTIAL
TREATMENT REQUEST. THIS TEXT HAS BEEN FILED SEPARATELY WITH THE SEC.




CONFIDENTIAL TO MySQL Inc.




License Agreement for Commercial Use of MySQLTM Software




     This License Agreement (“Agreement”) is made as of the date set forth on the signature
page hereof (the “Effective Date”) by and between MySQL Inc., a Delaware corporation (“Licensor”),
and the company identified on the signature page of this Agreement (“Licensee”).



Explanation




     Pursuant to the terms and conditions hereof, Licensee desires to obtain a license to use
certain Licensor software with one or more specified Licensee
commercial application(s).



Agreement




     In consideration of the mutual promises, covenants and conditions contained herein, the
sufficiency of which is hereby acknowledged, the parties agree as follows.



1. Definitions.



“Product” means an arrangement of software that includes and connects only the following
components: (a) a version of Sourcefire Software; (b) a version of the Licensed Software licensed
pursuant to this Agreement (regardless of how it is connected to, or communicates with, the
Sourcefire Software); (c) a third party software operating system; and (d) certain other third
party software which constitutes a component necessary to support the functionality of the
included Sourcefire Software, as such functionality is described in Attachment A hereof.



“Customer” means an end user of a Product on whose behalf Licensee has paid applicable license
fees and who has affirmatively accepted a EULA (including electronically, such as via a
“click-wrap” license).



“Distributor” means a third party authorized to: (a) distribute or resell a Product, as permitted
herein; or (b) execute and display a Product on behalf of Customers, as permitted in Section
2.1(d).



“Documentation” means Licensor’s release notes or other similar instructions posted by Licensor on
the MySQL Website that describes the functionality of the Licensed Software.



“EULA” means a written End User License Agreement between Licensee and Customers (or
a Distributor and Customers) which governs each Customer’s right to use a Product. The license
rights and restrictions of each EULA (i) must not exceed the scope of the license grant in Section
2 below, must contain terms substantially similar to Section 6.1, and (ii) must include terms
substantially similar to that set forth in the form of EULA attached hereto as Attachment
D, which Licensor acknowledges meets the requirement of subsection (i) above.



“GPL License” means the GNU General Public License published by the Free Software Foundation.



“Licensed Software” is defined in Attachment A.



“Sourcefire Software” means the object code version of proprietary software created, developed,
owned and tested by Licensee and which is described in Attachment A.



“MySQL
Website” means the website located at www.mysql.com.



“Territory” means the geographical region described in Attachment A, subject to applicable export
restrictions.



Other capitalized terms may be defined herein in the context in which they appear, and will have
the indicated meaning throughout this Agreement.




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CONFIDENTIAL TO MySQL Inc.




2. Grant & Scope of License.




     2.1
Subject to the terms and conditions of this Agreement, Licensor hereby grants to
Licensee a limited and non-exclusive right during the term of this Agreement and any
renewals hereof to: (a) download the Licensed Software from the MySQL AB Website; (b) include
copies of the Licensed Software as part of Products, so long as Licensee does not modify the
Licensed Software or otherwise add to, or remove features from, the Licensed Software; (c) market,
distribute and sublicense copies of the Licensed Software as a part of the Products in the
Territory according to the terms of a EULA that has been affirmatively accepted by each Customer
(including electronic acceptance, such as via a “click-wrap” method); (d) permit third party
service providers the right to execute, and display the Licensed Software as part of a Product
deployed in a managed service provider environment for the benefit of such third party’s
respective customers; (e) permit a Distributor the right to distribute the Licensed Software solely
as part of a Product in the Territory, and to sublicense to a Customer the right to use the
Licensed Software solely as part of the Products; and (f) support distributed versions of the
Licensed Software that are part of the Products. The foregoing license is subject to the
additional conditions stated in this Agreement (including the
attachments). Any agreement
between the Licensee, on the one hand, and a Distributor, on the other, shall not grant to such
Distributor license rights broader in scope than the license rights granted to Licensee
under this Section 2.1, and shall include terms substantially similar to Section 2.2 and
Section 6.1.



     2.2 In connection with the Products, Licensee shall not: (a) lease, license, use, make
available or distribute all or any part of the Licensed Software to any third party, except as
included in the Product; (b) use the Licensed Software to operate in or as a time-sharing,
outsourcing, service bureau, application service provider or managed service
provider environment, except as otherwise expressly agreed by the parties in a separate,
signed writing that requires the payment of fees on a per-customer, per-user or per-access basis;
(c) lease, license, use, make available or distribute the Licensed Software as a general SQL server, as
a stand alone application or with applications other than a Product under this license; (d)
distribute Licensed Software pursuant to a public or open source license; (e) port the Licensed
Software to any operating system other than as described in Attachment A; or (f) change any
proprietary rights notices which appear in the Licensed Software. However, nothing in this
Agreement shall preclude Licensee or its authorized Distributors from sublicensing or granting a
Customer the right to use the Products in or as a time-sharing, outsourcing, service bureau,
application service provider or managed service provider environment.



     2.3 Licensee agrees to (a) require each Distributor of a Product to agree to protect the
Licensed Software under substantially similar terms and conditions as Licensee is hereby agreeing;
and (b) enforce its agreements with Distributors in response to breaches of Distributors’
obligations under such agreements with respect to the protection of Licensed Software as set forth
above. In the event Licensee learns that a Distributor has failed to take steps required under
subpart (a) above, or Licensee has taken enforcement steps in accordance with subpart (b) above,
Licensee shall promptly inform Licensor.



3. Delivery and Acceptance.



Licensee shall obtain the Licensed Software and bug fixes of the Licensed Software released during
the term of this Agreement by download from the MySQL Website. Licensor is under no obligation to
inform Licensee of bug fixes or other changes to the Licensed Software other than by generally
announcing such changes and making them available for download at the MySQL Website.



Because the Licensed Software is otherwise generally available for anybody (including Licensee) to
examine and test under the terms of the GPL License, the Licensed Software shall be deemed
accepted by Licensee immediately upon download and there shall be no trial period for Licensee to
test and accept the Licensed Software following execution of this Agreement.




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CONFIDENTIAL TO MySQL Inc.



4. Price and payment.




     4.1 Licensee shall pay Licensor in accordance with the payment plan set forth
in Attachment A. All payments made pursuant to this Agreement shall
be made in Euros or U.S. dollars as specified in Attachment A.



     4.2 Failure by Licensee to pay any amount due under this Agreement shall make
Licensee liable to pay Licensor interest at the rate of *** on the remaining amount due, or at
the highest amount permitted by applicable law (if lower). The imposition of late fees as
provided above shall not constitute an election of, or Licensor’s exclusive, remedy.



     4.3 All prices in Attachment A are exclusive of local, state, federal and
international sales, value added, excise and other taxes and duties of any kind. In addition to
payment of the prices in Attachment A, Licensee shall be responsible for payment of
taxes and duties of any kind payable with respect to the licensing of the Licensed Software or
arising out of or in connection with this Agreement, other than taxes levied or imposed based
upon Licensor’s net income.



5. Term and Termination.




     5.1 This Agreement shall continue in effect for a *** period from the Effective
Date, unless earlier terminated as provided below.



     5.2 Either party may terminate this Agreement immediately if the other party shall breach
any of the provisions of this Agreement in any material respect and such breach remains uncured
thirty (30) days after having received written notice thereof.



     5.3 In the event that either party becomes liquidated, dissolved, bankrupt or insolvent,
whether voluntary or involuntary, or shall take any action to be so declared, the other party
shall have the right to immediately terminate this Agreement.



     5.4
NOTWITHSTANDING ANY OTHER PROVISION OF THIS AGREEMENT, EXPIRATION OR TERMINATION OF THIS AGREEMENT FOR ANY REASON WILL
NOT TERMINATE THE RIGHTS OF EXISTING CUSTOMERS ON WHOSE BEHALF LICENSEE HAS PAID APPLICABLE LICENSE
FEES. During the ninety (90) day period immediately following expiration or termination of the term
of this Agreement for any reason other than Licensee’s failure to cure a material breach (the
“Wind-Down Period”), Licensee may continue to distribute pre-paid Products, provided that it does
so in accordance with the terms and conditions of this Agreement, including (without limitation)
the payment terms hereof. Notwithstanding the foregoing, upon termination of this Agreement due to
Licensee’s failure to timely cure a material breach after receipt of written notice, or upon
expiration of the Wind-Down Period, Licensee shall immediately discontinue distribution of Products
that include Licensed Software. In addition, each party shall return or certify the destruction of
any Confidential Information of the other party. Further in the event that support services have
not terminated or expired and Licensee is not in material breach of this Agreement, then Licensor
will continue to provide support and maintenance services under the terms of this Agreement and the
applicable support plan through the expiration of such support plan.



6. Proprietary Rights.




     6.1 As between Licensor and Licensee, Licensee acknowledges that the copyright,
patent, trade secrets and all other intellectual property and proprietary rights of whatever nature
in the Licensed Software and related documentation, including derivative works, are and shall
remain the exclusive property of Licensor, and, except for the limited license rights expressly
provided herein, nothing in this Agreement should be construed as transferring any aspects of such
rights to Licensee or any third party. Licensor reserves any and all rights not expressly granted
herein.



     6.2 As between Licensor and Licensee, Licensor acknowledges that the copyright,
patent, trade secrets and all other intellectual



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CONFIDENTIAL TO MySQL Inc.



property and proprietary rights of whatever nature in the Sourcefire Software and related
documentation, including derivative works, are and shall remain the exclusive property of
Licensee, and nothing in this Agreement should be construed as transferring any aspects of such
rights to Licensor or any third party.




     6.3 MySQL is a trademark of MySQL AB, and, except as expressly provided in this Section,
shall not be used by Licensee without Licensor’s express written authorization. Licensee shall
include in the Products a notice that the Products include software whose copyright is owned by,
or licensed from, MySQL AB. Licensor hereby grants Licensee a limited, non-exclusive and
non-transferable right during the term of this Agreement to use the “Powered by MySQL” logo and
“MySQL” text trademark (the “Licensed Marks”) in order to comply with the foregoing requirement.
Licensor reserves all intellectual property rights in the Licensed Marks. Licensee also agrees to
abide by the publicly available “MySQL Trademark Policy” made available on the MySQL web site, as
revised by Licensor from time to time in its discretion. Currently, the MySQL Trademark Policy may
be found at http://www.mysql.com/company/trademark. html. Any and all goodwill arising from Licensee’s
use of a Licensed Mark shall inure exclusively to the benefit of Licensor.



7. Support.



Licensee agrees to purchase, and Licensor agrees to provide, technical support services from
Licensor as provided in Attachment A.




8.
Warranty and Disclaimer of Warranties.



*** OTHER THAN THE PRIOR SENTENCE, THE LICENSED SOFTWARE IS LICENSED “AS IS,” WITHOUT ANY WARRANTIES WHATSOEVER CONCERNING THE
INSTALLATION, USE OR PERFORMANCE OF THE LICENSED SOFTWARE. LICENSOR EXPRESSLY DISCLAIMS, AND
LICENSEE HEREBY EXPRESSLY WAIVES, ALL OTHER WARRANTIES, WHETHER EXPRESS OR IMPLIED, INCLUDING
WARRANTIES OF MERCHANTIBILITY, FITNESS FOR A PARTICULAR PURPOSE, NON-
INFRINGEMENT, SYSTEM INTEGRATION, NON-INTERFERENCE AND ACCURACY OF INFORMATIONAL CONTENT. LICENSOR
DOES NOT WARRANT THAT THE LICENSED SOFTWARE WILL MEET LICENSEE’S REQUIREMENTS OR THAT THE OPERATION
OF THE LICENSED SOFTWARE WILL BE UNINTERRUPTED OR ERROR-FREE, OR THAT ERRORS IN THE LICENSED
SOFTWARE WILL BE CORRECTED.



Without limiting the generality of the foregoing disclaimer, Licensee acknowledges that the
Licensed Software is not specifically designed, manufactured or intended for use in the planning,
construction, maintenance, control or direct operation of nuclear facilities, aircraft navigation,
control or communication systems, weapons systems or direct life support systems.




9. Indemnification and Infringement.




     9.1 The term “Licensee Claim” means a claim made by a third party that the exercise of
Licensee’s rights under Section 2 of this Agreement infringes any copyright registered in the
United States, Japan or the European Union as it is now constituted (or country which is a member
country thereof as of the Effective Date). Subject to Section 10 hereof, Licensor shall: (a) hire
counsel to defend and direct such counsel to defend all Licensee Claims; (b) pay all attorneys’
fees, litigation costs and other expenses of such counsel in connection with the defense of such
Licensee Claim(s); (c) pay the amount of any direct damages awarded pursuant to an adverse final
judgment issued by a court of competent jurisdiction against Licensee (after any appeals), or any
settlement to



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CONFIDENTIAL TO MySQL Inc.



which Licensor consents; and (d) reimburse Licensee for the reasonable, direct, out-of-pocket
expenses incurred by Licensee in defending the Licensee Claim. Expenses must be verified by
auditable receipts. In the event of any Licensee Claim, Licensee shall provide Licensor with (a)
prompt written notice of the Licensee Claim; (b) immediate and complete control over the defense
and/or settlement of the Licensee Claim; and (c) reasonable cooperation and assistance in the
defense of such Licensee Claim. *** Subject to the foregoing conditions, nothing in this
Agreement shall prohibit Licensee from hiring separate counsel, at its own expense, or at the
expense of Licensor but solely after written notice to, and solely for the duration of Licensee’s
failure to hire and employ its own counsel to defend the Licensee Claim.




     9.2 In addition, but subject to Section 10 hereof, in the event Licensor is obligated to
indemnify Licensee under Section 9.1 above, Licensor may, at its option and expense, either: (a)
procure for Licensee the right to continue to use the Licensed Software at no additional cost to
Licensee; or (b) modify the Licensed Software so that it becomes non-infringing, provided that any
substituted or modified software substantially performs to the Documentation as of
the Effective Date; or (c) in the event that it is not commercially reasonable for Licensor to
perform (a) or (b), above, Licensor may repurchase the affected licenses
less depreciation at the rate of twenty five percent (25%) per year, or pro rata for part of the
year, from the date of payment to the date of removal of the Licensed Software. If Licensor selects
either clause (b) or (c), Licensee shall immediately refrain from use of the
unmodified Licensed Software, in the case of clause (b) above, or the Licensed Software, in the
case of clause (c) above, according to this Agreement.



     9.3 Licensor shall have no obligations under this Section 9 or otherwise to the extent
that: (a) Licensor acted upon Licensee’s direct
instructions and such action resulted in a Claim; or (b) the alleged infringement would not have
occurred but for use of the Licensed Software in a manner prohibited under this Agreement; or (c)
the alleged infringement would not have occurred but for, combination or use of the Licensed
Software with one or more of the Sourcefire Software or other applications not provided by
Licensor.



     9.4 The foregoing provisions of Section 9 state Licensor’s entire obligation and liability
with respect to the infringement or violation of any property right.



     9.5 The term “Licensor Claim” means a claim made by a third party that Licensee’s
distribution of the Sourcefire Software, or the arrangement of the Sourcefire Software with
software other than the Licensed Software, within the scope and during the term of this
Agreement infringes any copyright registered in the United States, Japan or the European Union as
it is now constituted (or country which is a member country thereof as of the Effective Date).
Subject to Section 10 hereof, Licensee shall: (a) hire counsel to defend and direct such counsel to
defend all Licensor Claim; (b) pay all attorneys’ fees, litigation costs and other
expenses of such counsel in connection with the defense of such Licensor Claim(s); (c) pay the
amount of any direct damages awarded pursuant to an adverse final judgment issued by a
court of competent jurisdiction against Licensor (after any appeals), or any settlement to
which Licensee consents; and (d) reimburse Licensor for the reasonable, direct, out-of-pocket
expenses incurred by Licensor in defending the Licensor Claim. Expenses must be verified by
auditable receipts. In the event of any Licensor Claim, Licensor shall provide Licensee with (a)
prompt written notice of the Licensor Claim; (b) immediate and complete control over the
defense and/or settlement of the Licensor Claim; and (c) reasonable cooperation
and assistance in the defense of such Licensor Claim. ***



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CONFIDENTIAL TO MySQL Inc.



Subject to the foregoing conditions, nothing in this Agreement shall prohibit Licensor from hiring
separate counsel, at its own expense, or at the expense of Licensee but solely after written notice
to, and solely for the duration of Licensee’s failure to hire and employ its own counsel to defend
the Licensor Claim.




10. Limitation of Liability.



NEITHER PARTY SHALL HAVE ANY LIABILITY WITH RESPECT TO ITS OBLIGATIONS UNDER THIS AGREEMENT OR
OTHERWISE FOR CONSEQUENTIAL, EXEMPLARY, SPECIAL, INDIRECT,
INCIDENTAL OR PUNITIVE DAMAGES, INCLUDING (WITHOUT LIMITATION) ANY LOST PROFIT OR LOST SAVINGS
(WHETHER RESULTING FROM IMPAIRED OR LOST DATA, SOFTWARE OR COMPUTER FAILURE OR ANY OTHER CAUSE),
EVEN IF IT HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. IN ANY EVENT, AND NOTWITHSTANDING
ANY OTHER PROVISION IN THIS AGREEMENT, EXCEPT IN CONNECTION WITH LICENSEE’S BREACH OF LICENSOR’S
INTELLECTUAL PROPERTY RIGHTS, THE LIABILITY OF EACH PARTY HEREUNDER FOR ANY REASON AND UPON ANY
CAUSE OF ACTION SHALL BE LIMITED TO THE AMOUNT PAID TO LICENSOR BY LICENSEE UNDER THIS AGREEMENT.
THIS LIMITATION APPLIES TO ALL CAUSES OF ACTION IN THE AGGREGATE, INCLUDING WITHOUT LIMITATION,
BREACH OF CONTRACT, BREACH OF WARRANTY, NEGLIGENCE, STRICT LIABILITY,
MISREPRESENTATIONS AND OTHER TORTS. BOTH PARTIES UNDERSTAND AND AGREE THAT THE REMEDIES AND
LIMITATIONS HEREIN ALLOCATE THE RISKS BETWEEN THE PARTIES AS AUTHORIZED BY APPLICABLE LAWS. THE
FEES HEREIN REFLECT, AND ARE SET IN RELIANCE UPON, THIS ALLOCATION OF RISK AND THE EXCLUSION OF
CONSEQUENTIAL AND OTHER DAMAGES SET FORTH IN THIS AGREEMENT.




11. Release.



The parties hereby represent and acknowledge that the scope of this Agreement solely governs
Licensee’s right to distribute the Licensed Software during the term of this Agreement, and does
not address Licensee’s use and/or distribution prior to the Effective Date of the Licensed Software
(or any prior version(s) of the Licensed Software). However, in an attempt to avoid any potential
dispute or uncertainty over Licensee’s use prior to the Effective Date of the Licensed Software (or
any prior version(s) of the Licensed Software), the parties agree to execute the release attached
hereto as Attachment B (the “Pre-Term Release”), contemporaneous with the execution of this
Agreement. The execution of such Pre-Term Release, and the payment of those fees described in
Attachment A, are a material inducement to entering into this Agreement.




12. Miscellaneous.




     12.1
Interpretation. The headings used in this Agreement are for convenience only and
are not intended to be used as an aid to interpretation. If any part of this
Agreement is held by a court of competent jurisdiction to be illegal or unenforceable, the
validity or enforceability of the remainder of this Agreement shall not be
affected and such provision shall be deemed modified to the minimum extent necessary to
make such provision consistent with applicable law and, in its modified form, such provision
shall then be enforceable and enforced. Sections 4, 5, 6, 8, 9, 10 and 12 shall survive the
termination of this Agreement for any reason.



     12.2
Binding. This Agreement will be binding upon and inure to the benefit of
the parties hereto, their respective successors and permitted assigns. Without the prior written
consent of Licensor, Licensee may not assign this Agreement or its rights or obligations under this
Agreement to any person or party, whether by operation of law or otherwise; any attempt by Licensee
to assign this Agreement without Licensor’s prior written consent shall be null and void.
Notwithstanding the foregoing, any transfer, assignment or deemed assignment on



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CONFIDENTIAL TO MySQL Inc.



account of a corporate reorganization, merger or sale of substantially all of Licensee’s assets
other than to a direct competitor of Licensor (i.e., a database software vendor) may be permitted
without Licensor’s prior written consent. There are no intended third party beneficiaries of this
Agreement.




     12.3 No Waiver; Limitations. Failure by either party to exercise any right or remedy
under this Agreement does not signify acceptance of the event giving rise to such
right or remedy. No action, regardless of form, arising out of this Agreement may be brought by
Licensee more than one (1) year after the cause of action has accrued.



     12.4 Governing Law.



          12.4.1 This Agreement shall be deemed to have been executed in the United States
of America and shall be governed by the laws of the State of New York, without regard to the
conflict of laws provisions thereof. In no event shall the United Nations Convention on Contracts
for the International Sale of Goods apply to, or govern, this Agreement.




          12.4.2 The parties hereby consent to the exclusive jurisdiction of the courts of the United
States of America. In the event that either party initiates an action in connection with this
Agreement or any other dispute between the parties, the exclusive jurisdiction of such action
shall be in New York, New York. Licensee shall comply at its own expense with all relevant and
applicable laws related to the use and distribution of the Licensed Software as permitted in this
Agreement. Notwithstanding the foregoing, either party may seek injunctive or other equitable
relief in any jurisdiction in order to protect its intellectual properly rights.




          12.4.3 The parties hereby consent to execute this Agreement in the English language. In the
event of any dispute in connection with this Agreement, the English language version of the
Agreement will control for all purposes. Any action brought under this Agreement shall be conducted
in the English language.




     12.5 Notice. Unless otherwise agreed to by the parties, any notice required or
permitted to be given or delivered under this Agreement shall be delivered and addressed
to the addresses set forth on the signature page hereof. Notice shall be deemed to have been
received by any party, and shall be effective: (a) on the day given, if personally delivered or if
sent by confirmed facsimile transmission, receipt verified; (b) on the third day after
which such notice is deposited, if mailed by certified, first class, postage prepaid, return
receipt requested mail, or by reputable, expedited overnight courier; or (c) on the fifth
day after which such notice is deposited, if sent by reputable, expedited international
courier. Either party may change its address for notice purposes upon issuance of notice thereof
in accordance with this Section.



     12.6 Independent Contractors. The parties enter this Agreement as, and shall remain,
independent contractors with respect to one another. Nothing in this Agreement is designed to
create, nor shall create between them, a partnership, joint venture, agency, or
employment relationship.



     12.7 Export Law Assurances. Licensee acknowledges and agrees that the
Licensed Software may be subject to U.S. Export Administration Regulations.
Diversion of Licensed Software contrary to U.S. law is prohibited. Licensee agrees
that the Licensed Software is not being or will not be acquired for, shipped, transferred, or
re-exported, directly or indirectly, to proscribed or embargoed countries or their nationals, nor
will it be used for nuclear activities, chemical or biological weapons, or missile projects unless
authorized by the U.S. government. Proscribed countries are set forth in U.S. Export
Administration Regulations. Licensee certifies that it is not on the U.S. Department of
Commerce’s Denied Persons List. Licensee is responsible for complying with any applicable local
laws, including its rights to use, modify, reproduce, release, perform, display or disclose the
Licensed Software or any documentation, will be subject in all respects to the
commercial license rights and restrictions provided in this Agreement.



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CONFIDENTIAL TO MySQL Inc.




     12.8 U.S. Government Restricted Rights. If the Licensed Software is being acquired by
or on behalf of the U.S. government or by a U.S. Government prime contractor or subcontractor (at
any tier), in accordance with 48 C.F.R. 227.7202-4 (for Department of Defense (“DOD”)
acquisitions) and 48 C.F.R. 2.101 and 12.212 (for non-DOD acquisitions), the government’s rights in
the Licensed Software and any documentation, including its rights to
use, modify, reproduce, release, perform, display or disclose the Licensed Software or
any documentation, will be subject in all respects to the commercial license rights and
restrictions provided in this Agreement.



     12.9 Confidentiality. Neither party shall disclose the financial or other terms of
this Agreement without the prior written consent of the other party. Notwithstanding the foregoing,
Licensor shall have the right to identify Licensee as a commercial licensee, including by making
reference thereto on the MySQL Website.



     12.10 Entire Agreement. This Agreement and its attachments comprise
the entire agreement between the parties regarding the subject matter hereof and supercedes and merges all
prior proposals, understandings and all other agreements, oral and written, between the parties
relating to the subject matter of this Agreement. This Agreement may be amended or modified only in
a writing executed by both parties. This Agreement may be executed in counterparts, both of which
taken together shall constitute one single Agreement between the parties. This Agreement may be
executed via facsimile, and a facsimile copy of either party’s signature shall be deemed and be
enforceable as an original thereof. To the extent of any conflict or inconsistency between the
terms and conditions of this Agreement and the terms and conditions of any invoice or other
document submitted by Licensee to Licensor, the terms and conditions of this Agreement will
control. Licensor’s acceptance of any such invoice or document shall not be construed as an
acceptance of provisions which are in any way in conflict or inconsistent with, or in addition to,
this Agreement, unless such terms are separately and specifically accepted in writing by an
authorized officer of Licensor.



          IN WITNESS WHEREOF, the parties hereto, intending to be legally bound hereby, have each
caused to be affixed hereto its hand and seal as of the Effective Date.



	 	 	 	 	 	 	 	 	 	 	 
	Licensor:	 	 	 	Licensee:	 	 
	MySQL Inc.	 	 	 	Sourcefire, Inc.	 	 
	 
	 	 	 	 	 	 	 	 	 	 
	By:

	 	/s/ Ellen A. Canaday
	 	 	 	By:
	 	/s/ Todd P. Headley
 

	 	 
	 
	 	 	 	 	 	 	 	 	 	 
	Printed Name: Ellen A. Canaday	 	 	 	Printed Name: Todd P. Headley	 	 
	 
	 	 	 	 	 	 	 	 	 	 
	Title: Director of Contracts	 	 	 	Title: Chief Financial Officer	 	 






Effective
Date: June 13, 2005




Licensee’s country of organization: USA

Licensee’s street address, city, state, country & postal code:

     9770 Patuxent Woods Drive

     Columbia, MD 21046

     USA




Licensor’s
street address, city, state, country & postal code:

     MySQL Inc.

     2510 Fairview Avenue East

     Seattle, Washington 98102

     USA





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ATTACHMENT A




Attachment to License Agreement for Commercial use of MySQLTM Software



Name of Licensee: Sourcefire Inc. 



Date of
Agreement: June 13, 2005




     As
stated in the above-referenced Agreement between Licensor and Licensee, Licensee’s rights
are subject to the following additional conditions:


1. Definition of Licensed Software. “Licensed Software” means a complete and unchanged
copy of
the object code of the version of the software product designated below as indicated by “check”
mark(s) and a description of the applicable version and operating system(s), including bug fixes
released by Licensor in connection with such version during the term of this Agreement.


Licensor will make Licensed Software available to Licensee for download by providing Licensee
with a password to http://mysql.mysql.com (or an alternative subpage of the MySQL Website
designated by Licensor) within 3 business days after the Effective Date.




	 	 	 	 	 	 	 	 	 
	 	 	Licensed Software	 	Version(s)	 	Operating System(s)
	x

	 	MySQL® ClassicTM
	 	 	4.1.11	 	 	The versions of Unix/Linux
Windows currently supported by
Licensor, as indicated on the MySQL
Website.





2. Definition of Sourcefire Software. “Sourcefire Software” means the
following commercial application(s) owned by Licensee:




	 	 	 
	Application Name	 	Functional Description
	Intrusion Detection Sensor

	 	The combination of signature, protocol, and
anomaly-based inspection methods to achieve attack
detection and prevention capability.
	 
	 	 
	Real-time Network Detection Sensor

	 	The use of passive network discovery,
behavioral profiling and integrated vulnerability
management technologies
	 
	 	 
	Defense Center

	 	The integration and correlation of threat
information to prioritize security threats





3.
Definition of Territory. “Territory” means the following geographical region:




Worldwide




A-1









 







CONFIDENTIAL TO MySQL Inc.



4. Licensee Fees.




     4.1
Calculation of License Fees. Licensee must pay to Licensor a fee (“License Fee”)
for each copy of
Licensed Software that is manufactured, sold, shipped, distributed or otherwise deployed
(collectively
“deployed”) as part of a Product. License Fees shall be calculated as follows:



	 	 	 
	Version
of Licensed Software	 	License
Fee per Copy
	MySQL® ClassicTM

	 	***






     4.2
Initial Purchase. Licensee shall make the following nonrefundable and irrevocable initial
purchase (collectively, the “Initial Purchase”), as follows:



          (a)
*** copies of MySQL Classic and payment shall be due thirty days after receipt of invoice
from Licensor




     4.3 No later than thirty days after receipt of invoice from Licensor, Licensee also agrees to
pay Licensor *** for the following:



          (a) The Pre-Term Release; and




          (b) the other development, testing, tech support, demonstration, and evaluation rights granted
in Section 4.4 of this Attachment A.




     4.4
Notwithstanding Section 4.1, no License Fee other than the fees described in Section 4.3
shall be
due or owing during the term for any: (a) development, testing or tech support copies of the
Product
which are used internally, or (b) any Product licensed by Licensee pursuant to a demonstration
or
evaluation license, provided that: Licensee does not receive consideration for same and such
licenses are
not offered as “loss leaders” or bundled as free products with any other product or service.



     4.5
Quarterly Payments. Once the Initial Purchase described in Section 4.2 above has
been depleted
(as determined by allocating License Fees to deployments in accordance with the License Fee
chart in
Section 4.1, above), Licensee shall pay License Fees to Licensor within thirty (30) days of
the end of a
calendar quarter for the number of copies of the Licensed Software deployed as part of the
Product
during the applicable calendar quarter or portion thereof. No later than 30 days after the end
of every
calendar quarter during the term of this Agreement, Licensee shall also provide Licensor with:
(a) a
written report detailing the number of deployments during such quarter, broken down by version
of
Sourcefire Software, version of Licensed Software and operating system; and (b) payment of a
License Fee
for each such deployment (calculated according to the License Fee chart in Section 4.1 of this
Attachment
A). Licensee shall submit such quarterly reports regardless of whether or not there were
any
deployments for that particular quarter.


5.
Support.




     5.1 During the entire term of this Agreement, Licensee agrees to pay the annual technical
support fee designated below for the level of technical support designated below (as such support
is described on the MySQL Website as of the Effective Date, “Support”). Support shall be subject
to the terms of Licensor’s standard Technical Support Services Agreement, a current copy of which
is attached hereto as Attachment C. Licensee agrees to go online to purchase such Support on the
Effective Date, and to pay for continued Support during the term of this Agreement as provided in
the Technical Support Services Agreement.



A-2









 




CONFIDENTIAL TO MySQL Inc.




	 	 	 
	Check the applicable	 	 
	level
of Support	 	Support
Level
	X

	 	MySQL Gold OEM






     5.2 Annual Support Fee:



          during
first year of the term = ***




          during each subsequent year: *** of the cumulative Licensed Software fees paid prior to
the first day of such support year.




     5.3 Support shall be solely third-level support provided directly to Licensee. Licensee shall
be responsible for providing first- and second-level support
(i.e., accepting and responding to
contacts and requests made by Customers). Licensor shall not be obligated to support any software
other than Licensed Software included as part of a Product.



6. ***



7.
Total Fees Due on or before the Effective Date:




	 	 	 	 	 
	Initial License Fee
	 	$	 	***
	Initial Year’s Support Fee
	 	$	 	***
	Pre-Term Release &
the rights granted in Section 4.4 of
Attachment A
	 	$	 	***
	 
	 	 	 	 
	Total Fees Due
	 	$	 	***






A-3









 





CONFIDENTIAL TO MySQL Inc.




Attachments
B




Pre-Term Release




     ***




     Unless defined herein, initial capitalized terms shall have the meaning given such term in the
License Agreement.



     ***




     IN WITNESS WHEREOF, the undersigned have executed this Pre-Term Release as of the
13th day of June, 2005.



	 	 	 	 	 	 	 
	MySQL Inc.	 	Sourcefire,
Inc.
	 
	 	 	 	 	 	 
	By:

	 	/s/ Ellen A. Canaday
	 	By:
	 	/s/ Todd P. Headley
	Printed Name:

	 	 

Ellen A. Canaday
	 	Printed Name:
	 	 
 Todd
P. Headley
	Title:

	 	Director of Contracts
	 	Title:
	 	Chief Financial Officer






 









 






Attachment C




Technical
Support Service

MySQL OEM Support



Definitions



Capitalized terms used in this Attachment C shall have the same meaning as
defined in the Agreement unless otherwise defined herein.



Action Plan — an action plan describes the initial incident statement, a clear definition of the
incident, and all activities, goals, actions, processes, time frames and responsible individuals
needed from both parties to bring the incident to closure.



Business Hours —




     If Company is based in North & South America: 9:00 a.m. — 8:00 p.m. Eastern time,
Mon-Fri



     If Company is based in Europe, Asia, & elsewhere: 7:00 a.m. — 5:00 p.m. GMT,
Mon-Fri


CSC — MySQL Customer Support Center



Hot Fix — software released to Company as an Incident Resolution that does not have any, or at best
very limited, functional testing, system testing, regression testing or any of the other test
suites that MySQL applies as part of normal QA processes. MySQL may deliver Hot Fix code segments
as part of an Incident Resolution if Company agrees to include such code and agrees to build such
code. There is no guarantee that the actual Hot Fix deliverable will be incorporated into any
future MySQL software release; Hot Fixes may be included in subsequent software releases at the
sole discretion of MySQL. The intent with a Hot Fix is to deliver an Incident Resolution to Company
as quickly as possible. Because Hot Fixes have no or very limited testing, until such time (if any)
that a Hot Fix is included in a Maintenance Release or Major Release: (a) Company’s use of a Hot
Fix is at its sole discretion and risk, and (b) notwithstanding any other term of this Agreement,
MySQL accepts absolutely no liability of any kind for Company’s use of a Hot Fix.



Incident Resolution — will be one of the following listed possibilities:





	 	•	 	a workaround has been delivered to Company and accepted by Company as a
final solution to the incident.
	 
	 	•	 	a solution has been generated in the form of a software Hot Fix that
corrects the
incident; the solution was delivered to Company, successfully installed by
Company and deemed a working solution by Company.
	 
	 	•	 	MySQL informs Company that the MySQL Licensed Software does not cause the
problem and the root cause is in a non-MySQL part of the Company Application.
	 
	 	•	 	the MySQL Licensed Software behaves according to specifications and will
not
be changed and the problem exists in the MySQL Licensed Software
documentation and the solution to the incident is to clarify and/or modify the
MySQL Licensed Software documentation in a subsequent documentation
release.
	 
	 	•	 	MySQL informs Company that the MySQL Licensed Software conforms to
its
specifications and need not be changed.
	 
	 	•	 	the MySQL Licensed Software conforms to its specifications and MySQL
decides
that the incident will be treated as a request for a new feature, new
functionality
or enhancement to the MySQL Licensed Software and will be considered for
future implementations.




C-1









 










CONFIDENTIAL TO MySQL Inc.





	 	•	 	the incident has occurred once only and MySQL informs Company that after
applying considerable time and MySQL resources to the incident, it has not
been
possible to reproduce the incident.
	 
	 	•	 	MySQL informs Company that MySQL will use commercially reasonable
efforts
to correct the incident in a future release of the MySQL Licensed Software
when
it has been deemed economically feasibly for MySQL to apply the resources
needed for the redesign, architecture and implementation of the MySQL
Licensed Software to correct the problem.




Initial Response Time — the time taken from when Company files the initial request to MySQL
until a MySQL technical support person has been assigned to the incident and that assignment
has been communicated back to Company.



Maintenance Release — As defined in the Agreement. A Maintenance Release is a MySQL Licensed
Software release that is part of the overall MySQL software release program and roadmap.



Major Release — As defined in the Agreement. A Major Release is a MySQL Licensed Software release
that is part of the overall MySQL software release program and roadmap. Maintenance Releases are
typically but not always rolled up into and included into Major Releases, at the sole discretion of
MySQL.



Non-Technical Support incident — MySQL reserves the right to advise Company to
use the consulting organization for additional assistance in resolving incidents
that fall outside the scope of MySQL Technical Support organization. These
services would be subject to MySQL’s then-current consulting fees. Company should
contact MySQL regarding availability and purchase of such services.



PDC — MySQL phone dispatch center



Resolution times — the time taken from when Company has properly filed the initial request to MySQL
and has received an acknowledgment that MySQL has received and accepted the incident, until the
incident has been closed.



Technical Support incidents — will generally fall into on of the following three categories:





	 	•	 	Technical Assistance






	 	o	 	Questions about product usage and installation
which do not result in registration of a Product Defect or
Feature Enhancement Request.






	 	•	 	Product Defect






	 	o	 	Company encounters a problem which is
determined to be a MySQL Licensed Software product defect.






	 	•	 	Feature Enhancement Request






	 	o	 	A request by Company for a feature that is not
included in the current versions of MySQL Licensed Software.
MySQL will review Company’s request and it will be included in
subsequent Licensed Software releases at the discretion of MySQL.
Company will be informed about the final decision regarding each
its feature requests.




 









 










CONFIDENTIAL TO MySQL Inc.



OEM
Support Levels




	 	 	 
	 	 	OEM Support
	 	 	Gold
	Knowledge Base

	 	Yes
	Number of Incidents

	 	Unlimited
	Web Access

	 	Yes
	Phone Access

	 	24x7
	Max Initial Response Time

	 	2 hours
	Emergency Response Time

	 	30 minutes





Initial
Response Times




	 	 	 	 	 
	Support
Level 

OEM Gold

	 	Severity
Level

Severity 1

Severity 2-4
	 	Initial
Response Time

30 minutes

2 hours





Resolution Times




     OEM GOLD



	 	 	 	 	 	 	 
	Severity
Level	 	Working
Hours	 	Effort	 	Status
Updates
	Severity 1

	 	24x7
	 	MySQL will work continually (24x7)
until the incident has been resolved or the
Severity of the incident has been downgraded
to Severity level 2 or lower in consultation
with Company.
	 	On change of state but no
less than every 8 hours. MySQL will
create an Action Plan together with
Company if the incident has not
been resolved or downgraded to
Severity 2 or lower in consultation
with Company within the first 8 hrs
after the initial filing of the
incident.
	 
	 	 	 	 	 	 
	Severity 2

	 	Business Hours
	 	MySQL will work during Business Hours
until the incident has been resolved, or an
Incident Resolution for the issue has been
released to Company, or the Severity of the
incident has been downgraded to Severity
level 3 or lower in consultation with
Company.
	 	On change of state or daily
at minimum.
	 
	 	 	 	 	 	 
	Severity 3-4

	 	Business Hours
	 	MySQL will work during Business Hours
until the incident has been resolved, or an
Incident Resolution for the issue has been
released to Company.
	 	On change of state.





MySQL will use commercially reasonable efforts to resolve the incidents
filed by Company. Not all incidents can be guaranteed to result in a workaround,
Hot Fix, maintenance release or any other measure that resolves the incident.
See Incident Resolution definition above for detailed description.




 









 







CONFIDENTIAL TO MySQL Inc.



Incident
Resolution Deliverables



Incidents typically require different resolutions depending on a number of factors such as the
severity level, Company’s needs, Support levels etc.



The software deliverables could be in the form of a Hot Fix, Maintenance Release, Major Release, or
an alternative build of the Licensed Software.



Escalation
Process



Escalation types



The objective of the escalation process is to assure that there is a path for both Company as
well as MySQL personnel to initiate a process that will get the attention on a level necessary to
drive an incident to resolution when the response times are not achieved per the definitions
herein.



There are two types of escalation processes





	 	•	 	Initial response time escalation by Company
	 
	 	•	 	Incident resolution escalation by Company or MySQL




Escalation
initiated by Company



Initial Response Time escalation



The initial response time escalation process is used by Company to initiate an escalation if
the MySQL support team does not respond within the initial response time as specified above, which
varies depending on the Support level purchased by Company and the severity level of the incident.



Resolution escalation



The resolution escalation process is used by Company to initiate an escalation if the MySQL
support team does not respond or perform within the resolution time as specified in the resolution
matrixes above. The response process varies depending on the Support level purchased by Company and
the severity level of the incident.



The process to initiate an escalation is the following:



Company contacts either our dispatch center or the first person on the escalation contact list
and in successive order until the incident has been managed to completion or satisfaction.



Company can request escalation to the next level as deemed necessary by Company as long as
reasonable time has passed between each escalation request to allow the MySQL person to manage and
serve the escalation request and drive the incident to resolution.



MySQL escalation process spans from the individual technical support engineer to the VP of WW
Customer Services per the following route:




 









 







CONFIDENTIAL TO MySQL Inc.





	4	 	Technical Support Engineer or TAM (if applicable)






	 	4	 	Support Group Manager






	 	4	 	Technical Coordinator of Support






	 	4	 	Director of Support






	 	4	 	VP WW Customer Services




Escalation initiated by MySQL 



Resolution escalation



The resolution escalation process is used by MySQL to initiate an escalation if the MySQL support
team does not get the response needed from Company to be able to drive an incident to resolution as
specified in the resolution matrixes above. The response process varies depending on the Support
level purchased by Company and the severity level of the incident.



The process to initiate an escalation is the following:



MySQL contacts the first person on the escalation contact list and in successive order until
Company has responded appropriately to the needs of MySQL support
team.



MySQL can request escalation to the next level as deemed necessary by MySQL as long as reasonable
time has passed between each escalation request to allow the assigned Company employee to manage
and serve the escalation request and drive the incident to resolution.



The escalation process spans from the individual technical contact that opened the incident or is
currently assigned to it to Company’s senior management per the following route:





	4	 	Authorized Technical Contact that opened or is currently assigned to the
incident






	 	4	 	Authorized Administrative Contact






	 	4	 	Authorized Administrative Contacts Manager
      (Company
needs to provide contact info)




Escalation
contact list



The escalation process includes an escalation contact list, one for MySQL and one for Company,
which is populated with contact data and kept up to date by both parties. The escalation calling
list contains persons in successively more responsible or qualified positions to provide the answer
or assistance desired.



The escalation contact list is created and maintained in parallel by both MySQL and Company.



The escalation contact list consists of a list of persons, telephone numbers and other
pertinent contact information, for the initiator to contact to enable them to initiate an
escalation.



The escalation contact list includes the following information for each individual:





	 	•	 	Name
	 
	 	•	 	Position
	 
	 	•	 	Email address
	 
	 	•	 	Time zone
	 
	 	•	 	Direct phone number




 









 











CONFIDENTIAL TO MySQL Inc.




	 	•	 	Cell phone number (if applicable)
	 
	 	•	 	Pager number (if applicable)




Any changes to the content of the MySQL escalation contact list will be sent to Company’s
administrative contact person who is responsible for updating the Company’s team and internal
records.



Any changes to the content of the Company escalation contact list will be sent to MySQL
administrator at support-feedback@mysql.com. The MySQL administrator will update MySQL internal
records as well and the support team and management.





 









 





CONFIDENTIAL TO MySQL Inc.



Attachment D




Form of Sourcefire EULA




NETWORK APPLIANCE PURCHASE AND LICENSE AGREEMENT




This is a legal agreement (“Agreement”) between you, the party purchasing products, and
Sourcefire Inc., a corporation having offices at 9770 Patuxent Woods Drive, Columbia, MD 21046
(“Sourcefire”). This Agreement is part of a package that includes one or more network appliance
machines and associated Software (defined below) and certain electronic and/or written materials.
This Agreement covers your permitted download, installation and use of the Network Appliance
(defined below) and the Software. BY TYPING IN THE WORD ‘YES’ BELOW AND PRESSING THE ENTER KEY YOU
ACKNOWLEDGE THAT YOU HAVE READ ALL OF THE TERMS AND CONDITIONS OF THIS AGREEMENT, UNDERSTAND THEM,
AND AGREE TO BE LEGALLY BOUND BY THEM. If you do not agree with the terms of this Agreement, you
may not download, install or use the Network Appliance or the Software. In such event, promptly
return the entire package to the place you obtained it for a full refund. As used In this
Agreement, “Network Appliance” means the combination of Sourcefire’s network security products, the
Sourcefire Software and any Open Source Program. “Sourcefire Software” means any Sourcefire
proprietary network security software products provided by Sourcefire, any third party proprietary
software, and any patches, updates, Improvements, additions and other modifications or revised
versions that may be provided by Sourcefire or its licensors from time to time, excluding any and
all Open Source Programs. “Open Source Program” means the open source code software programs that
are provided to you for use with the Sourcefire Software. “Software” means collectively the
Sourcefire Software and the Open Source Program. “Documentation” means Sourcefire’s release notes
or other similar instructions in hard copy or machine readable form supplied by Sourcefire to you
that describes the functionality of the Network Appliance and/or the Software purchased or licensed
hereunder.



1. YOUR PAYMENT OBLIGATIONS. You agree to pay all amounts due or incurred by you, including any
late payment fees, as are specified in an invoice provided by Sourcefire or its designated reseller
(the “Reseller”). If any authority imposes a duty, tax or similar levy (other than taxes based on
Sourcefire’s or its Reseller’s income), you agree to pay, or to promptly reimburse Sourcefire or
its Reseller, as applicable, for all such amounts. You are also responsible for paying all
shipping charges. Unless otherwise indicated in an invoice, all invoices are payable thirty (30)
days from the date of invoice. Overdue amounts are subject to a late payment Interest charge, at
the lower rate of (i) one percent (1%) per month, or (ii) the maximum legal rate. You agree to
promptly pay or reimburse Sourcefire or its Reseller, as applicable, for all costs and expenses,
including all reasonable attorneys’ fees, related to any breach of your obligations under this
Agreement.



2. TITLE. Subject to the terms and conditions of this Agreement, title, except to the extent the
Network Appliance contains or consists of intellectual property rights of Sourcefire or other third
parties, and risk of loss to each Network Appliance purchased is transferred to you when the
Network Appliance is delivered to Sourcefire’s designated carrier for shipment.



3. GRANT OF SOFTWARE LICENSE. Subject to the terms and conditions of this Agreement, Sourcefire
grants to you a non-exclusive, non-transferable license (the “Sourcefire License”) to download,
install and use the Sourcefire Software solely for your internal operations and internal security
purposes. Such Sourcefire Software may be delivered to you pre-installed on a Network Appliance or
on a recorded or fixed media, or may be made available to you to via download from a web site
designated by Sourcefire. You shall own the magnetic or other physical media upon which the
Sourcefire Software is originally or subsequently recorded or fixed, but Sourcefire or Sourcefire’s
licensors retain all title, copyright and other intellectual proprietary rights in, and ownership
of, the Sourcefire Software regardless
of the media upon which the original or any copy may be recorded or fixed. Any rights in Software
not granted herein are expressly reserved by Sourcefire or its licensors.



4. OPEN SOURCE TERMS. You acknowledge that each Open Source Program is distributed under the Open
Source Program license applicable to such Open Source Program, and only such license, and this
Agreement in no ways supplements or detracts from any term or conditions of such open source
license agreement (the “Open Source License”). Notwithstanding anything to the contrary in this
Agreement, you agree and acknowledge that the rights attached to any Open Source Programs provided



 









 





CONFIDENTIAL TO MySQL Inc.




hereunder are separate from and do not depend on the Open Source Programs being part of, or
used in connection with, the Software or the Network Appliance.



5. SCOPE OF USE. The Software pre-installed on a Network Appliance may only be used by you with
such Network Appliance for which the Software is provided and registered for use. To the extent any
Software is separately made available to you, your use of the Software may not exceed the
applicable use restrictions associated with the license fees paid or payable by you under this
Agreement. For example, in the case of Intrusion Sensor software, you may not deploy and use such
software in a manner that exceeds the permitted number of connections to the applicable management
console associated with the license fees paid or payable by you. Likewise, with respect to the
Real-time Network Awareness software, you may not deploy and use such software in a manner that
exceeds the permitted number of monitored hosts associated with the applicable license fees paid or
payable by you. If any Software is provided on separate media (e.g., a CD-ROM), you may make a
reasonable number of copies solely for internal backup purposes. The scope of use of any Open
Source License shall be governed by the applicable open source license agreement.



6. NO REVERSE ENGINEERING, OTHER RESTRICTIONS. Except to the extent allowed under the applicable
Open Source License, you shall not directly or indirectly: (i) sell, lease, redistribute or
transfer any of the Software; (ii) modify, translate, reverse engineer (except to the limited
extent permitted by law), decompile, disassemble, create derivative works based on, sublicense, or
distribute any of the Software; (iii) rent or lease any rights in any of the Software in any form
to any person; (iv) use any Software for the benefit of any third parties (e.g., in an ASP,
outsourcing or service bureau relationship) or in any way other than in its intended manner; (v)
remove, alter or obscure any proprietary or copyright notice, labels, or marks on the hardware
components of the Network Appliance or within the Software; or (vi) disable or circumvent any
access control or related security measure, process or procedure established with respect to the
Network Appliance or any Software or any other part thereof. You are responsible for all use of the
Network Appliance and any downloading, installing and using the Software and for compliance with
this Agreement; any breach by you or any user shall be deemed to have been made by you.



7. INTELLECTUAL PROPERTY. Unless otherwise expressly stated herein, this Agreement does not
transfer to you any title or any ownership right or interest in any Network Appliance or any
Software or in any other intellectual property rights of Sourcefire or in any Sourcefire Software.
You acknowledge that the Software is owned by Sourcefire and Its licensors, and that the Software
and the Network Appliance contains, embodies and is based upon patented or patentable inventions,
trade secrets, copyrights and other intellectual property rights owned by Sourcefire and its
licensors.



8. TECHNICAL SUPPORT. You may obtain technical support by separately enrolling in Sourcefire’s
maintenance and support plan (the “Support Plan” see
http://www.sourcefire.com/services/support.html) by paying Sourcefire the then-applicable annual
maintenance and support fee. A copy of the terms of the current Support Plan is located at
https://support.sourcefire.com/Support-T&C.pdf.



9. CONFIDENTIALITY. As used herein, “Confidential Information” means any non-public technical or
business Information of Sourcefire (or its licensors), including without limitation, any
information, relating to Sourcefire’s techniques, algorithms, software, know-how, current and
future products and services, research, engineering, designs, financial information,
procurement requirements, manufacturing, customer lists, business forecasts, marketing plans
and information, the terms and conditions of this Agreement, and any other information of
Sourcefire (or its licensors) that is disclosed to you. You will take all reasonable measures to
maintain the confidentiality of Sourcefire’s Confidential Information, but in no event less than
the measures you use to protect your own confidential information. You will limit the disclosure of
Sourcefire’s Confidential Information to your employees with a bona fide need to access such
Confidential Information in order to exercise your rights and obligations under this Agreement;
provided that all such employees are bound by a written non-disclosure agreement that
contains restrictions at least as protective as those set forth herein. You agree that Sourcefire
will suffer irreparable harm in the event that you breach any obligations under this Section 9 and
that monetary damages will be inadequate to compensate Sourcefire for such breach. In the event
of a breach or threatened breach of any of the provisions of this Section 9, Sourcefire, in
addition to and not in limitation of any other rights, remedies or damages available to it at law
or in equity, shall be entitled to a temporary restraining order, preliminary injunction and/or
permanent injunction in order to prevent or to restrain any such breach.



 









 





CONFIDENTIAL TO MySQL Inc.



10. INSTALLATION AND CONFIGURATION. You represent, warrant and covenant that you are solely
responsible for the proper configuration and management of the Network Appliance on which the
Software will be installed, as well as the installation of any separately provided Software. You
further understand and hereby acknowledge that the failure to properly configure and manage a
Network Appliance, and the failure to properly install any separately provided Software, may
adversely affect the performance of the Network Appliance and the Software. You represent and
warrant to adhere strictly to the recommended minimum requirements specified from time to time by
Sourcefire in the Documentation. Sourcefire shall have no obligations under this Agreement to the
extent the Network Appliance or any separately provided Software fails to substantially perform the
functions described in the Documentation, in whole or in part, because (i) you fail to meet
Sourcefire’s minimum requirements, (ii) your separate hardware fails to perform, (iii) you
mis-configured a Network Appliance or (iv) the Software had been improperly installed. You further
agree to indemnify and hold harmless Sourcefire, its officers, directors, employees or agent
against any claims, losses, damages, liabilities or expenses arising from the failure of the
Network Appliance or any Software to perform as warranted where such failure to perform is
attributable, in whole or in part, to (i) your failure to meets Sourcefire’s minimum requirements,
(ii) the failure of your hardware to perform, (iii) the mis-configuration of the Network Appliance
or (iv) the improper installation of the Software.



11. WARRANTY AND DISCLAIMER. Sourcefire warrants that, for a period of ninety (90) days from the
date of initial shipment of the Network Appliance or, in the case of Software separately provided
to you, the date the Software is made available to you for download or delivered on a fixed media
(the “Software Warranty Period”), the unmodified Software will, under normal use, substantially
perform the functions described in its Documentation. Sourcefire warrants that for a period of
one (1) year from shipment (the “Hardware Warranty Period”) the unmodified hardware portions of the
Network Appliance will, under normal use, be free of substantial defects in materials and
workmanship. EXCEPT AS EXPRESSLY WARRANTED IN THIS SECTION 11 OF THIS AGREEMENT,
THE NETWORK APPLIANCE, ANY SOFTWARE, AND ANY OTHER, DOCUMENTATION, MATERIALS AND/OR DATA PROVIDED
BY SOURCEFIRE ARE PROVIDED “AS IS” AND “WITH ALL FAULTS,” AND SOURCEFIRE EXPRESSLY DISCLAIMS ALL
OTHER WARRANTIES OF ANY KIND OR NATURE, WHETHER EXPRESS, IMPLIED OR STATUTORY, INCLUDING, BUT NOT
LIMITED TO, ANY WARRANTIES OF OPERABILITY, CONDITION, TITLE, NON-INFRINGEMENT,
NON-INTERFERENCE, QUIET ENJOYMENT, VALUE, ACCURACY OF DATA, OR QUALITY, AS WELL AS ANY
WARRANTIES OF MERCHANTABILITY, SYSTEM INTEGRATION, WORKMANSHIP, SUITABILITY, FITNESS FOR A
PARTICULAR PURPOSE, OR THE ABSENCE OF ANY DEFECTS THEREIN, WHETHER LATENT OR PATENT. NO WARRANTY IS
MADE BY SOURCEFIRE ON THE BASIS OF TRADE USAGE, COURSE OF DEALING OR COURSE OF TRADE. SOURCEFIRE
DOES NOT WARRANT THAT THE NETWORK APPLIANCE, THE SOFTWARE OR ANY OTHER INFORMATION, MATERIALS,
DOCUMENTATION OR TECHNOLOGY PROVIDED UNDER THIS AGREEMENT WILL MEET YOUR REQUIREMENTS OR THAT THE
OPERATION THEREOF WILL BE UNINTERRUPTED OR ERROR-FREE, OR THAT ALL ERRORS WILL BE CORRECTED. YOU
ACKNOWLEDGE THAT SOURCEFIRE’S OBLIGATIONS UNDER THIS AGREEMENT ARE FOR YOUR BENEFIT ONLY.
NOTWITHSTANDING ANYTHING TO THE CONTRARY IN THIS AGREEMENT, ALL OPEN SOURCE PROGRAMS ARE PROVIDED
“AS IS” WITHOUT ANY WARRANTY WHATSOEVER. THE WARRANTY MADE BY SOURCEFIRE MAY BE VOIDED BY ABUSE OR
MISUSE.



12. EXCLUSIVE REMEDY. Sourcefire’s sole obligation and liability, and your sole and exclusive
remedy under the warranties set forth in Section 11 shall be for Sourcefire to use commercially
reasonable efforts to remedy the problem, or to replace the defective product, provided that
Sourcefire is notified in writing of all warranty problems during the applicable warranty period.



13. LIMITATION OF LIABILITY. IN NO EVENT WILL SOURCEFIRE’S AGGREGATE LIABILITY (INCLUDING, BUT NOT
LIMITED TO, LIABILITY FOR NEGLIGENCE, STRICT LIABILITY, BREACH OF CONTRACT, MISREPRESENTATION AND
OTHER CONTRACT OR TORT CLAIMS) ARISING FROM OR RELATED TO THIS AGREEMENT, OR THE USE OF THE NETWORK APPLIANCE OR THE SOFTWARE, EXCEED THE
AMOUNT OF FEES YOU PAID TO SOURCEFIRE OR ITS RESELLER FOR THE NETWORK APPLIANCE OR SOFTWARE THAT
GIVES RISE TO SUCH LIABILITY. UNLESS OTHERWISE EXPRESSLY STATED HEREUNDER, UNDER NO
CIRCUMSTANCES SHALL SOURCEFIRE OR ANY OF ITS SUPPLIERS OR LICENSORS BE LIABLE FOR ANY OF THE



 









 





CONFIDENTIAL TO MySQL Inc.



FOLLOWING: (I) THIRD PARTY CLAIMS; (II) LOSS OR DAMAGE TO ANY SYSTEMS, RECORDS OR DATA, OR
LIABILITIES RELATED TO A VIOLATION OF AN INDIVIDUAL’S PRIVACY RIGHTS; OR (III) INDIRECT,
INCIDENTAL, SPECIAL, CONSEQUENTIAL, PUNITIVE, RELIANCE, OR COVER DAMAGES (INCLUDING LOST PROFITS
AND LOST SAVINGS), IN EACH CASE EVEN IF SOURCEFIRE HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH
DAMAGES. YOU ARE SOLELY RESPONSIBLE AND LIABLE FOR VERIFYING THE SECURITY, ACCURACY AND ADEQUACY OF
ANY OUTPUT FROM THE NETWORK APPLIANCE OR THE SOFTWARE, AND FOR ANY RELIANCE THEREON. THE
LIMITATIONS OF LIABILITY IN THE ABOVE PARAGRAPHS OF THIS SECTION 13 ARE EACH INTENDED TO APPLY
WITHOUT REGARD TO WHETHER OTHER PROVISIONS OF THIS AGREEMENT HAVE BEEN BREACHED OR HAVE PROVEN
INEFFECTIVE.



14. ESSENTIAL BASIS. The disclaimers, exclusions and limitations of liability set forth in this
Agreement form an essential basis of the bargain between the parties, and, absent any of such
disclaimers, exclusions or limitations of liability, the provisions of this Agreement, including,
without limitation, the economic terms, would be substantially different.



15. INTELLECTUAL PROPERTY INDEMNITY. Sourcefire will defend any action brought against you to the
extent that it is based upon a third party claim that the Sourcefire Software as provided by
Sourcefire to you under this Agreement infringes any existing U.S. patent or copyright. Sourcefire
will pay any costs, damages and reasonable attorneys’ fees attributable to such claim that are
finally awarded against you in such action. Sourcefire’s obligations under this Section 15 are
contingent upon: (i) you giving prompt written notice to Sourcefire of any such claim; (ii) you
allowing Sourcefire to control the defense and any related settlement
of any such claim; and (iii)
you furnishing Sourcefire with reasonable assistance in the defense of any such claim, so long as
Sourcefire pays your reasonable out-of-pocket expenses. This indemnity obligation does not extend
to any Open Source Programs; Sourcefire will have no obligation to indemnify you with respect to
any claims relating to Open Source Programs. If your use of the Network Appliance or the Software
hereunder is, or in Sourcefire’s opinion is likely to be, enjoined due to the type of claim
specified in this section, then Sourcefire may, at its sole option and expense: (i) procure for you
the right to continue using the Network Appliance or the Software under the terms of this
Agreement; or (ii) replace or modify the Network Appliance or the Software so that it Is
non-infringing and substantially equivalent in function to the enjoined Network Appliance or
Software. Sourcefire will have no obligation for any claim of infringement to the extent that it
results from: (i) modifications to the Network Appliance or the Software made other than by
Sourcefire; or (ii) your failure to use updated or modified Network Appliance or Software
provided by Sourcefire to avoid a claim of infringement or misappropriation.



16. VERIFICATION. You agree that Sourcefire or its designee shall have the right to periodically
conduct on-site audits of your use of the Network Appliance or any Software. These audits will be
conducted during regular business hours, and Sourcefire will make reasonable efforts to minimize
interference with your regular business activities. Alternatively, Sourcefire may request that you
complete a self-audit questionnaire in a form provided by Sourcefire. If an audit or such
questionnaire reveals unlicensed use of the Software, you agree to promptly order and pay for
sufficient licenses to permit all usage disclosed.



17. LEGAL COMPLIANCE; RESTRICTED RIGHTS. You shall be responsible for, and agree to comply with,
all applicable laws, statutes, ordinances, regulations and other types of government authority
(including without limitation the laws and regulations governing export control, unfair
competition, anti discrimination, false advertising, privacy and data protection, and publicity)
(“Laws”). Without limiting the foregoing, you agree to comply with all U.S. export Laws and
applicable export Laws of your locality (if you are not in the United States), and you further
agree not to export any Network Appliance or Software or other materials provided by Sourcefire
without first obtaining all required authorizations or licenses. The Software and Documentation are
“commercial computer software” and “commercial computer software documentation”, and pursuant to
FAR 12.212 or DFARS 227.7202, and their successors, as
applicable, use, reproduction and disclosure of the Software and the Documentation are governed by
the terms of this Agreement.



18. GOVERNING LAW; ARBITRATION. This Agreement shall be governed in all respects by the laws of the
State of New York, USA, without regard to choice-of-law rules or principles. You expressly agree
with Sourcefire that this Agreement shall not be governed by the U.N. Convention on Contracts for
the International Sale of Goods. Except for Instance where equitable relief is permitted under
this



 









 






CONFIDENTIAL TO MySQL Inc.



Agreement, any and all claims, disputes, or controversies arising under, out of, or in
connection with this Agreement or the breach thereof, (herein “dispute”) shall be submitted to the
chief operating officer (or equivalent) of each party (or their designee) for a good faith attempt
to resolve the dispute. The position of each party shall be submitted, and the individuals promptly
thereafter shall meet at a neutral site. If the parties are unable to reach agreement within
fifteen (15) days following such meeting, then any dispute which has not been resolved within said
fifteen (15) days by good faith negotiations between the parties shall be resolved at the request
of either party by final and binding arbitration. Arbitration shall be conducted in Washington,
D.C., by one (1) arbitrator mutually agreed upon by the parties. The arbitrator shall be
knowledgeable in the commercial aspects of software licensing, open source licensing, Internet
applications, networking, network security, technical consulting services and copyright and patent
law and otherwise in accordance with the Commercial Arbitration Rules of the American Arbitration
Association. The arbitrator shall make detailed written findings to support their award. The
arbitrator shall render a decision no more than sixty (60) days after the parties finally submit
the claim, dispute or controversy to the panel. Judgment upon the arbitration award may be entered
in any court having jurisdiction.



19. SEVERABILITY. If any provision of this Agreement is held to be illegal or unenforceable for any
reason, then such provision shall be deemed to be restated so as to be enforceable to the maximum
extent permissible under law, and the remainder of this Agreement shall remain in full force and
effect.



20. FORCE MAJEURE. Neither Party shall be liable for any delay or failure due to a force majeure
event and other causes beyond its reasonable control. This provision shall not apply to your
payment obligations.



21. NOTICES. Any notices under this Agreement to Sourcefire will be personally delivered or sent by
certified or registered mail, return receipt requested, or by nationally recognized overnight
express courier, to the address specified herein or such other address as Sourcefire may specify in
writing. Such notices will be effective upon receipt, which may be shown by confirmation of
delivery. All notices to Sourcefire shall be sent to the attention of General Counsel (unless
otherwise specified by Sourcefire).



22. ASSIGNMENT. You may not assign or otherwise transfer this Agreement without Sourcefire’s prior
written consent. Notwithstanding the foregoing, either party may assign this Agreement without the
consent of the other party if a majority of its outstanding voting capital stock is sold to a third
party, or if it sells all or substantially all of its assets or if there is otherwise a change of
control. This Agreement shall be binding upon and inure to the benefit of the Parties’ successors
and permitted assigns.



23. FURTHER
ASSURANCES. You agree, at Sourcefire’s request and reasonable expense, to provide
reasonable assistance and cooperation to Sourcefire and its designees, and to give testimony and
execute documents and to take such further acts reasonably requested by Sourcefire to acquire,
transfer, maintain, perfect, and enforce Sourcefire’s intellectual property rights as described in
this Agreement.



24. THIRD PARTY CLAIMS. This Agreement is for the benefit of Sourcefire and you, and is not
intended to confer upon any other person or entity, Including without limitation, any current or
future reseller, any rights or remedies hereunder. You agree that you shall not make any claim,
demand, or take any action, or threaten to do the same, against any third party, including without
limitation, any of Sourcefire’s resellers or distributors, for any actual or alleged breach of this
Agreement, and you agree to defend, indemnify and hold harmless Sourcefire and its officers,
directors, employees, agents, resellers, distributors and subcontractors from any losses, damages,
costs, liabilities or expenses attributable to your breach of this Section 24, including reasonable
attorneys fees and costs.



25. GENERAL. This Agreement is the parties’ complete agreement regarding its subject matter,
superseding any prior oral or written communications. Under no circumstances will the terms of
any purchase order issued by you control or otherwise negate the terms set forth in this Agreement.
Amendments or changes to this Agreement must be in mutually executed writings to be effective.
Sections 1, 2, 4, 6, 7, 9-25 and all warranty disclaimers and use restrictions shall survive the
termination or expiration of this Agreement. The parties are independent contractors for all
purposes under this Agreement.



 


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of Sourcefire, Inc. All other trademarks are property of their respective owners.