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Optical Internetworking Forum Benchmark Results License Agreement
The Benchmark Implementation Agreements (the "Implementation Agreements" "IAs") found at the URL http://www.oiforum.com are generally made available by the Optical Internetworking Forum ("OIF") to user(s) (the "User(s)") for use in developing OIF Benchmark Results (the "Results") obtained by performing one or more benchmarks as prescribed in the Benchmark Implementation Agreements. The terms and conditions which govern the use of Results are set forth in this Benchmarking Results License Agreement (the "Agreement").
IMPORTANT - PLEASE READ THE TERMS AND CONDITIONS PROVIDED IN THIS AGREEMENT BEFORE DOWNLOADING AN IA, COPYING AN IA, OR USING RESULTS FOR PUBLICITY. IF YOU AGREE TO THE TERMS AND CONDITIONS OF THIS AGREEMENT, CLICK ON THE "ACCEPT" LINK AT THE BOTTOM OF THE PAGE. BY DOING SO, YOU AGREE TO BE BOUND BY THE TERMS AND CONDITIONS STATED IN THIS AGREEMENT. IF YOU ARE DOWNLOADING THE SPECIFICATION FOR REVIEW OR USE IN CONNECTION WITH YOUR EMPLOYMENT, YOU ARE ENTERING INTO THIS AGREEMENT ON BEHALF OF YOUR EMPLOYER AND YOU MUST BE AUTHORIZED TO ENTER INTO THIS AGREEMENT ON BEHALF OF YOUR EMPLOYER. FURTHER, THE PUBLICATION OR OTHER DISTRIBUTION OF BENCHMARK RESULTS FROM USING OIF BENCHMARK IAs WILL BE CONSTRUED AS ACCEPTANCE OF THIS AGREEMENT.
1. OIF BENCHMARK RESULTS LICENSE GRANT
In consideration of the potential promotional benefits to OIF and its Members, and subject to the terms and conditions of this Agreement, OIF hereby grants to the User, without charge, a worldwide, non-exclusive, copyright license to distribute, reproduce, translate into any language, publicly perform, and publicly display the Results. The foregoing license includes the right to modify and make derivative works of the Results only if the modifications and revised portions of the derivative works are clearly disclosed on the modification or derivative work
The foregoing license is conditioned on the User's strict adherence to the requirements of Section 2 ("Requirements") and the restrictions of Section 3 ("Restrictions").
2. REQUIREMENTS
2.1 The primary purpose for the copying and distribution of the OIF Benchmark Material must be the dissemination of results from using OIF Benchmark Implementation Agreements.
2.2 The Use shall conform to basic standards of Fidelity, Candor, and Due Diligence, which terms are defined below, as determined by OIF in its sole discretion.
- Fidelity: Adherence to facts; accuracy
- Candor: Disclosure of information relevant to interpretation of Results
- Due Diligence: Care for the integrity of Results and/or Specifications
2.3 Attribution and Copyright Notice. Any republication of the OIF Benchmark Results must carry the following attribution: "Results obtained using OIF Benchmark IAs are Reprinted by special permission of the Board of Directors of OIF. Copyright 2002-2006 OIF. All rights reserved."
2.4 User may freely compare and contrast sets of OIF Benchmark Results, from whatever set of Test Sponsors. However, any claims or assertions based upon comparisons of selected Results or a subset of Results must prominently state and display the basis of selection.
3. RESTRICTIONS
3.1 User may not use the Results in any manner that makes false or misleading OIF-related marketing claims, including any provision that states or implies that OIF endorses the Results.
3.2 User may not publish or distribute statements or publicity that encourages the average reader to make false or untrue inferences based upon OIF Benchmark Results.
3.3 User may not use or distribute estimated or simulated Results that refer to OIF or OIF Benchmarks, or to compare them to Results.
3.4 User may not use results, metrics, or terminology which is not based upon OIF Benchmark Results, but which could be reasonably inferred to refer to OIF or OIF Benchmarks, or to be comparable to Results.
3.5 User may not make OIF-related claims or lead the reader to OIF-related conclusions, which are untrue or cannot be substantiated by the entire body of Results.
3.6 User may not display Results without specifying that these Results are current as of a certain date; if applicable, a single date can be displayed for an entire range of Results.
3.7 User may not show Results with non-Results in a manner that may cause the reader to believe that non-Results are in fact Results.
3.8 User may not show a Benchmark non-Result derived from OIF Implementation Agreements in a manner that may cause the reader to believe that these non-Results are the equivalent or near-equivalent of Results.
3.9 User may not state or imply that another Test Sponsor's Results are considered invalid or in any way suspect by OIF, unless OIF has publicly stated this to be the case. All OIF internal review proceedings are OIF Confidential, and attempts to disclose these review proceedings or their results without OIF authorization are in violation of the Use policy.
3.10 User may not refer to a withdrawn Result without specifically stating that the Result is withdrawn.
3.11 User may not compare Results from different major versions of OIF Benchmark Implementation Agreements.
3.12 User may not distribute, re-publish, or make special purchases to distribute or re-publish documents, from whatever source, which are in violation of the License Grant.
3.13 User may not display required information in a manner that is not legible.
4. USE OF OIF BENCHMARK IMPLEMENTATION AGREEMENTS
4.1 If OIF Benchmark Implementation Agreements or portions thereof are used to develop other non-OIF benchmarks, then:
(a) All variances from OIF Implementation Agreements in question must be explicitly noted.
(b) Non-Results based on the non-OIF Benchmark must be clearly identified as not being com-parable to an official OIF Result.
5. NO OTHER LICENSES
5.1 Both parties understand and acknowledge that no license under any patents, trademarks, trade secrets, or confidential information is granted to or conferred upon either party in this Agreement or by the disclosure of any information by one party to the other party as contem-plated hereunder, either expressly, by implication, inducement, estoppel or otherwise, and that any license under any such intellectual property rights must be express and in writing. Further, no license is granted under any copyrights except as expressly set forth in Section 1 ("Results License Grant").
6. WARRANTY DISCLAIMER; LIMITATION OF LIABILITY
6.1 Disclaimer of Warranty. NEITHER OPTICAL INTERNETWORKING FORUM NOR ITS MEMBERS MAKE ANY REPRESENTATIONS ABOUT THE COMPLETENESS, ACCURACY OR SUITABILITY FOR ANY PURPOSE OF THE RESULTS, SPECIFICATIONS, OR ANY OTHER DATA OR INFORMATION ("DATA") MADE AVAILABLE BY THE OPTICAL INTERNETWORKING FORUM. THE DATA IS PROVIDED "AS IS" WITHOUT EXPRESS OR IMPLIED WARRANTIES OF ANY TYPE, INCLUDING THE IMPLIED WARRANTIES OF MERCHANTABILITY, TITLE, FITNESS FOR A PARTICULAR PUR-POSE OR NONINFRINGEMENT OF THIRD PARTY RIGHTS.
6.2 Limitation of Liability. THE RESULTS AND DATA ARE PROVIDED GRATUITOUSLY. ACCORDINGLY, OPTICAL INTERNETWORKING FORUM SHALL NOT BE LIABLE FOR ANY DAMAGES SUFFERED BY ANY USER OF ANY OF THE RESULTS OR DATA, WHETHER DIRECT, INDIRECT, SPECIAL, CONSEQUENTIAL, OR PUNITIVE, FOR ANY REASON INCLUDING, WITHOUT LIMITATION, FOR LOSS OF PROFITS, REVENUE, OR DATA; NOR SHALL OPTICAL INTERNETWORKING FORUM BE LIABLE TO PROVIDE ALTERNATE GOODS OF ANY TYPE; WHETHER IN AN ACTION IN CONTRACT, TORT, STRICT LIABILITY, OR OTHERWISE, EVEN IF THE OPTICAL INTERNETWORKING FORM IS ADVISED OF THE POSSIBILITY OF THOSE DAMAGES OR LIABILITY.
7. RESERVATION OF RIGHTS
7.1 All rights not expressly granted hereunder are reserved to OIF and its members.
8. TERMINATION
8.1 OIF may terminate this License at any time by delivering notice to the User.
9. MISCELLANEOUS
9.1 Governing Law and Jurisdiction. Any questions, claims, disputes or litigation concerning or arising from the Agreement shall be governed by the laws of California without giving effect to the conflicts of laws principles of that state or of any other state of the United States, or any nation state. Each of the parties agrees to submit to the exclusive jurisdiction of the federal and state courts in California for any matter arising out of or relating to this Agreement. Notwithstanding the foregoing, in actions seeking to enforce any order or any judgment of any such federal or state courts located in California, personal jurisdiction shall be nonexclusive.
9.2 Waiver. Any waiver of the provisions of this Agreement or of a party's rights or remedies under this Agreement must be in writing to be effective. Failure, neglect, or delay by a party to enforce the provisions of this Agreement or its rights or remedies at any time will not be construed and will not be deemed to be a waiver of such party's rights under this Agreement and will not in any way affect the validity of the whole or any part of this Agreement or prejudice such party's right to take subsequent action.
9.3 Amendments. This Agreement may not be altered or amended except by a written instrument signed by both parties.
9.4 Assignment. User may not assign this Agreement, or its rights or responsibilities hereunder without OIF's prior written consent. Any assignment in derogation of the foregoing shall be void.
9.5 Severability. If any provision in this Agreement shall be found or be held to be invalid or unenforceable, then the meaning of said provision shall be construed, to the extent feasible, so as to render the provision enforceable, and if no feasible interpretation would save such provision, it shall be severed from the remainder of this Agreement which shall remain in full force and effect unless the severed provision is essential and material to the rights or benefits received by any party. In such event, the parties shall use good faith efforts to negotiate, in good faith, a substitute, valid and enforceable provision or agreement that most nearly affects the parties' intent in entering into this Agreement.
9.6 Relationship Between Parties. The parties shall at all times and for all purposes be deemed to be independent contractors and neither party, nor either party's employees, represen-tatives, subcontractors or agents, shall have the right or power to bind the other party. This Agreement shall not itself create or be deemed to create a joint venture, partnership or similar association between the parties or either party's employees, subcontractors or agents.
9.7 Headings; Construction; Mutual Drafting. The headings in this Agreement are for convenience only and will not be construed to affect the meaning of any provision of this Agreement. Any use of "including" shall also be deemed to mean "including without limitation." This Agreement is the joint product of the parties hereto and their respective counsel, and each provision hereof has been subject to the mutual consultation, negotiation and agreement of such parties and counsel, and shall not be construed for or against either party on the basis of authorship thereof.
9.8 Entire Agreement. This Agreement (including its Exhibits and any amendments) and the other documents referred to herein, contain the entire agreement of the parties with respect to the subject matter of this Agreement except for agreements referenced in this Agreement, and supersedes all previous communications, representations, understandings and agreements, either oral or written, between the parties with respect to the subject matter hereof.
9.9 Attorneys Fees. The prevailing party shall be entitled to recover from the losing party its attorneys' fees and costs incurred in any lawsuit or other action with respect to any claim arising from the facts or obligations set forth in this Agreement.
9.10 Remedies Cumulative. A party's remedies under this Agreement are cumulative and shall not exclude any other remedy to which the party may be entitled. Termination of this Agreement by a party shall not adversely affect or impair such party's right to pursue any other remedy including, without limitation, the right to recover damages for all harm suffered as a re-sult of the other party's breach or default.
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