Binary Code License Agreement

General Description. This 12 month binary code license ("License") contains rights and restrictions associated with use of the accompanying Metaswitch’s FSM Tool including, without limitation, Rhino(tm) binaries, resource adaptor binaries, tool binaries, scripts, example services and the documentation provided (together the "Software").

Limited License Grant. Metaswitch Networks grants to you (the "Licensee") a non-exclusive, non-assignable, non-transferable, limited in rights license to install, display and use the Software at one location solely for your internal use as defined below. This License commences on the date you first download the Software and expires one year from the date you download the Software (the "Development Period") unless you obtain an agreement in writing from Metaswitch Networks specifying some other term. Licensee agrees to take all reasonable precautions to secure the Software from distribution to any third party. At the end of the Development Period, Licensee must cease using the Software and you must destroy or erase all copies of the Software. Metaswitch Networks retains all rights that are not expressly granted to Licensee in this License.

Use Restriction. This Software is for evaluation and development purposes only. It may not be reproduced, distributed, developed, sold or rented to any third party. Licensee may not re-distribute the Software in whole or in part, either separately or included with a product, to any other person or publicly accessible machine. Licensee may not create any derivative works based on the Software or modify, or attempt to modify the Software.

No Service Use. Licensee may not, directly or indirectly, provide as a service, the use of the Software. By way of example, but not as a limitation, this includes providing a networked interface to the Software other than for its operational evaluation, permitting the direct or indirect use of the Software by third parties or directly or indirectly allowing third parties to access the Software.

Other Restrictions. Software is confidential, copyrighted information of Metaswitch Networks and its licensors and title to all copies is retained by Metaswitch Networks and its licensors, if applicable. Licensee shall not modify, alter, decompile, disassemble, decrypt, extract, or otherwise reverse engineer the Software (or attempt to do any of those things) save to the extent permitted by law. This restriction includes, but is not limited to, modifications attempting to subvert the time-limited restrictions placed upon Software. The Software may not be leased, assigned, sublicensed, or made the subject of any charge or security, in whole or in part. The Software is not designed or intended for use in on-line control of aircraft, military equipment, air traffic, aircraft navigation or aircraft communications; or in medical, biological, pharmaceutical, or other life-dependent applications; or in the design, construction, operation or maintenance of any nuclear facility. Licensee warrants that it will not use or redistribute the Software for any such purposes.

Responsibility of Licensee.

Benchmark performance or Benchmark testing. The Licensee may not disclose the results of any benchmark testing regarding the Software or any of Metaswitch’s other products to any third party without Metaswitch’s written consent.

Trademarks and Logos. This License does not authorise Licensee to use any name, trademark or logo of Metaswitch Networks or its licensors. Licensee acknowledges that Metaswitch Networks and its licensors own the "Metaswitch", "Open Cloud" and "Rhino" trademarks, logos and icons. Licensee shall neither take nor permit any action that will delete or obscure Metaswitch’s or its licensor’s copyright legend on any of the Software and related materials.

Warranty of Software Title. Metaswitch Networks warrants that it has the right to license the Software it purports to license to Licensee and that such Software does not infringe on any patent, copyright or other proprietary right of any person. Subject to clauses 12 and 13 of this License, if any person makes any claim against Licensee asserting such infringement, then Metaswitch shall, at its sole option, either: (a) defend Licensee against all such claims; or (b) obtain for Licensee the right to continue using such Software.

Disclaimer of Warranty. THIS LICENSE SETS OUT THE FULL EXTENT OF THE LICENSORS OBLIGATIONS AND LIABILITIES IN RESPECT OF THE SUPPLY OF SOFTWARE. IN PARTICULAR, THERE ARE NO CONDITIONS, WARRANTIES, REPRESENTATIONS OR OTHER TERMS, EXPRESS OR IMPLIED, THAT ARE BINDING ON THE LICENSOR EXCEPT AS SPECIFICALLY STATED IN THIS LICENSE. ANY CONDITION, WARRANTY, REPRESENTATION OR OTHER TERM CONCERNING THE SUPPLY OF THE SOFTWARE WHICH MIGHT OTHERWISE BE IMPLIED INTO, OR INCORPORATED IN, THIS LICENSE, OR ANY COLLATERAL CONTRACT, WHETHER BY STATUTE, COMMON LAW OR OTHERWISE, IS HEREBY EXCLUDED TO THE FULLEST EXTENT PERMITTED BY LAW.

Nothing in this License shall limit or exclude the liability of either party for death or personal injury resulting from negligence, fraud or fraudulent misrepresentation.

Termination. Licensee may terminate this License at any time by destroying all copies of the Software. This License will terminate immediately without notice from Metaswitch Networks if Licensee commits a breach of this License. Upon such termination, Licensee must destroy all copies of the Software.

Export Regulations. The Software, including technical data, is subject to United Kingdom export control laws and may be subject to export or import laws or regulations in other countries. Licensee agrees to comply strictly with all applicable laws and regulations and acknowledges that it bears sole responsibility for obtaining licenses to export, re-export, or import Software as well as for any failure to comply with any laws or regulations.

Governing Law/Jurisdiction and Venue. Any action related to this License will be governed by the laws of England. No choice of law rules of any jurisdiction will apply. All disputes arising under this License shall be submitted to final and binding arbitration in London or such other location as agreed between the parties. Notwithstanding the foregoing, Metaswitch Networks reserves the right to bring any action for injunctive or other equitable relief in an appropriate case and, for purposes thereof, Licensee consents to the personal jurisdiction and venue of the courts of England and Wales.

Severability. If any of the above provisions are held to be in violation of applicable law, void, or unenforceable in any jurisdiction, then such provisions are here with waived to the extent necessary for the License to be otherwise enforceable in such jurisdiction. However, if in Metaswitch’s opinion deletion of any provisions of the License by operation of this paragraph unreasonably compromises the rights or increase the liabilities of Metaswitch Networks or its subsidiaries, Metaswitch Networks reserves the right to terminate the License at any time.

No Waiver. No waiver by Metaswitch Networks of any breach of any provision of this License shall be effective unless in writing signed by Metaswitch Networks. No waiver shall constitute a continuing waiver unless expressly provided in the writing signed by Metaswitch Networks.

Assignment. This License may be assigned by Metaswitch Networks without the consent of Licensee. This License may not be assigned by Licensee without the prior written consent of Metaswitch Networks.

Independent Contractors. The parties to this License are independent contractors, each in full control of its own business, employees and expenses. Nothing in this License will create, constitute or evidence any partnership, joint venture, agency, trust or employer/employee relationship between the parties. This License places neither party in the control or direction of the other, and neither party is authorized to act as the principal or agent for the other. No party will have the authority to act for, or incur any obligation on behalf of, any other party except as expressly provided in this License.

Entire Agreement. This License constitutes the entire and only agreement between the parties in relation to its subject matter and replaces and extinguishes all prior or simultaneous agreements, undertakings, arrangements, understandings or statements of any nature made by the parties or any of them whether oral or written (and, if written, whether or not in draft form) with respect to such subject matter. Each of the parties acknowledges that they are not relying on any statements, warranties or representations given or made by any of them in relation to the subject matter of this License, save those expressly set out in this License, and that they shall have no rights or remedies with respect to such subject matter otherwise than under this License save to the extent that they arise out of the fraud or fraudulent misrepresentation of another party.

Third Parties. A person who is not a party to this License has no right under the Contract (Rights of Third Parties) Act 1999 to enforce any term of this License. Notwithstanding that any term of this License may be or become enforceable by a person who is not a party to it, the terms of this License or any of them may be varied, amended or modified or this License may be suspended, cancelled or terminated by agreement in writing between the parties or this License may be rescinded (in each case), without the consent of any such third party.