Binary Code EVALUATION License Agreement for Metaswitch Networks Ltd’s MM7 Resource Adaptor.

Metaswitch Networks Ltd is a company incorporated under the laws of England and Wales with its principal place of business at 100 Church Street, Enfield, EN2 6BQ ("Metaswitch Networks" or "Metaswitch" or the "Licensor").

  1. General Description. This 12 month binary code license ("License") contains rights and restrictions associated with use of the accompanying Metaswitch’s MM7 Resource Adaptor including, without limitation, Rhino(tm) binaries, resource adaptor binaries, tool binaries, scripts, example services and the documentation provided (together the "SOFTWARE").

  2. 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 in one year from the date you download the SOFTWARE (the "Evaluation 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 Evaluation 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.

    • Licensee hereby acknowledges and accepts however that this Licence will not be granted by Metaswitch Networks if the Licensee has ever entered into any other commercial agreement either directly or indirectly as an end customer or reseller (the "End Customer") with Metaswitch Networks in respect of the evaluation or use of any of Metaswitch Networks’s software products, support and professional services prior to the date of download and acceptance of this Licence (the "Prior Use Restriction"). This Prior Use Restriction shall also apply to any individual or entity who is or shall be appointed as a subcontractor or agent of the End Customer.

    • For the purposes of this License, "internal use" means, subject to the other terms and conditions of this License: (a) the installation and operation of the SOFTWARE on Licensee’s computer equipment for internal evaluation purposes; and (b) the internal use of the documentation as part of, and provided with, the SOFTWARE.

  3. Use Restriction. This Software is for evaluation purposes only. It may not be reproduced, distributed, developed or used in any production or commercial use environment. Licensee may not deploy the Software or otherwise put it into commercial use. 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.

  4. 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.

  5. Other Restrictions. Software is confidential, copyrighted information of Metaswitch Networks and title to all copies is retained by Metaswitch Networks. Licensee shall not modify, alter, decompile, disassemble, decrypt, extract, or otherwise reverse engineer the SOFTWARE (or attempt to do any of those things). 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.

  6. Responsibility of Licensee. Licensee accepts full responsibility for use of the SOFTWARE including, but not limited to, acceptance of full responsibility pursuant to third party software and licensing agreements regarding the use of the SOFTWARE to modify, examine, or otherwise process such third party software.

  7. 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.

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

  9. 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.

  10. Disclaimer of Warranty. Except as expressly provided in Paragraph 6 above with respect to title, the SOFTWARE is provided "AS IS," without any warranty or representation of any kind. ALL EXPRESS OR IMPLIED REPRESENTATIONS AND WARRANTIES, STATUTORY OR OTHERWISE, INCLUDING WITHOUT LIMITATION ANY IMPLIED WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE OR NON-INFRINGEMENT ARE HEREBY EXCLUDED.

  11. Limitation of Liability.

    • TO THE FULLEST EXTENT PERMISSIBLE BY LAW, METASWITCH NETWORKS SHALL NOT BE LIABLE FOR ANY DAMAGES SUFFERED BY LICENSEE OR ANY THIRD PARTY AS A RESULT OF USING, REPRODUCING OR DISTRIBUTING THE SOFTWARE. WITHOUT LIMITING THE GENERALITY OF THE PRECEDING RESTRICTION, IN NO EVENT WILL METASWITCH NETWORKS BE LIABLE FOR ANY DIRECT OR INDIRECT, SPECIAL, CONSEQUENTIAL, PUNITIVE OR OTHER LOSS OR DAMAGES (INCLUDING WITHOUT LIMITATION ANY LOSS OF REVENUE, LOSS OF PROFIT, LOSS OF FUTURE BUSINESS OR LOSS OF DATA) HOWEVER CAUSED OR ARISING EVEN IF METASWITCH NETWORKS HAS BEEN ADVISED OF THE POSSIBILITY OF ANY SUCH LOSS OR DAMAGE.

    • Moreover, Metaswitch Networks has no obligation for any claim based on a modified version of the Software or its combination, operation, or use with any product, data, or apparatus not provided, or not expressly approved in writing, by Metaswitch Networks. Furthermore, Licensee shall indemnify, defend and hold harmless Metaswitch Networks from and against any and all claims asserted against Metaswitch Networks based upon any Software modified by Licensee or Software used in combination or operation with any product, data, or apparatus not provided, or not expressly approved in writing, by Metaswitch Networks.

  12. 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.

  13. Export Regulations. The SOFTWARE, including technical data, is subject to New Zealand export control laws, and may be subject to export or import regulations in other countries. Licensee agrees to comply strictly with all such regulations and acknowledges that it has the responsibility to obtain licenses to export, re-export, or import Software.

  14. Governing Law/Jurisdiction and Venue. Any action related to this License will be governed by New Zealand law. No choice of law rules of any jurisdiction will apply. All disputes arising under this Agreement shall be submitted to final and binding arbitration in New Zealand 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 New Zealand.

  15. 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, Metaswitch Networks reserves the right to terminate the License at any time.

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

  17. 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.

  18. 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.

  19. Entire Agreement. This License constitutes the entire agreement between the parties respecting the subject matter hereof and thereof, and supersedes all previous proposals, negotiations, representations, warranties, commitments, writings and communications between parties. The terms of this License shall prevail notwithstanding any variance with the terms of any purchase order or any other document submitted by Licensee.

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