MSF - Release 1 Architecture Guidelines License Agreement

LICENSE AGREEMENT

IMPORTANT—READ CAREFULLY. This license agreement (“Agreement”) is a legal agreement between You and the Multiservice Switching Forum (“MSF”), and governs Your use of (i) either MSF’s trademark “Support for MSF Release 1 Implementation Guidelines” (“MSF Trademark”) or MSF’s trademark set forth on MSF’s website and titled “Support For MSF Release 1 Implementation Guidelines” (“MSF Logo”), and (ii) MSF’s “MSF Release 1 Implementation Guidelines” (“Guidelines”), with those products that You will certify support the functional requirements described in the Guidelines, as further described below (“Qualified Products”).

As used in this Agreement, the term “You” means the individual or legal entity, as applicable, that registers for or uses the MSF Trademark or MSF Logo and Guidelines, the term “MSF Marks” refers to, collectively, the MSF Trademark and MSF Logo, and the term “Member” means a then-current member of MSF’s trade association who is in good standing.

Only Members of MSF are permitted to download and use the MSF Logo. If You are not a member of MSF, You are only permitted to use the MSF Trademark.

By clicking on the “I Agree” button, You: (i) agree to be bound by all of the terms and conditions of this Agreement, and (ii) certify, represent and warrant that (a) You have the power and authority to enter into this Agreement and bind the person or entity for whom you are registering for, downloading or using the applicable MSF Mark and Guidelines, (b) You will use the applicable MSF Mark solely in connection with those Qualified Products that You have verified support the functional requirements described in the Guidelines, and (c) You do not intend to use, and will not use, the any MSF Mark in connection with products other than Qualified Products. If You do not agree with all of the terms and conditions of this Agreement, do not have such power and authority, or cannot make these certifications, representations and warranties, You must click on the “I Do Not Agree” button and You will not be able or permitted to download or use the Guidelines or MSF Marks.

If You desire to join MSF or have any questions for or need additional information about MSF, please contact MSF directly at (510) 608-5922.

Responsibility for Determining Support for Guidelines. You are responsible for internally testing Your products to verify that they support the functional requirements described in the Guidelines and qualify as Qualified Products. You shall keep clear, true, correct and accurate records of all internal test results of Qualified Products that You use to determine support the functional requirements described in the Guidelines.

Qualified Products. A product will be deemed a Qualified Product only if the results of the internal testing conducted by You objectively demonstrate that the applicable product support the functional requirements described in the Guidelines. Any product that does not support the functional requirements described in the Guidelines shall not be considered a Qualified Product.

Modified Products. If a Qualified Product undergoes any modification that may impact the product’s status as a Qualified Product under the Guidelines, then You agree to re-test the modified product immediately pursuant to the Guidelines prior to using the applicable MSF Mark on or in connection with the modified product. If the re-tested product does not support the functional requirements described in the Guidelines, You may continue to use the applicable MSF Mark on the unmodified Qualified Product, but You (a) are not allowed to use, and shall immediately cease use of, the applicable MSF Mark on or in association with the modified product and (b) shall not use the applicable MSF Mark with the modified product until the modified product support the functional requirements described in the Guidelines.

No Endorsement, Approval or Certification. MSF does not endorse or approve Your products (including Qualified Products) or services. You shall not make any warranty or representation by or on behalf of MSF. MSF does not determine whether or not a product is qualified under or supports the Guidelines.

Guidelines.

Guidelines License. Subject to the terms and conditions of this Agreement, MSF grants to You a revocable, non-exclusive, non-transferable, limited license, without the right to sublicense, to use the Guidelines solely to test Your products to determine whether they support the functional requirements described in the Guidelines. You agree that the foregoing terms are material provisions of the Agreement and any breach shall be a material breach of the terms of this Agreement.

Ownership of the Guidelines. As between the parties, MSF retains all right, title and interest, including all intellectual property rights, in and to the Guidelines. All rights not expressly granted hereby are retained by MSF. There are no implied rights.

Use of Guidelines. MSF cannot assure You that the use of any Guidelines (including without limitation any tests described therein) will not be impacted by the intellectual property rights of a third party. All use of the Guidelines shall be at Your own risk and peril.

Modification of the Guidelines. MSF reserves the right to modify the Guidelines from time to time and to adopt a formal certification testing program. MSF shall use reasonable efforts to provide You with advance notice of any modification to the Guidelines (as the Guidelines are updated from time to time by placing a notice on the MSF website) and/or any proposed adoption of a formal certification program. It is Your responsibility to check MSF’s website periodically. Upon adoption and release of any modified Guidelines or a formal certification program, all products (including Qualified Products) and/or modified Guidelines shall be subject to testing and certification under the formal certification program, regardless of whether a Qualified Product has been previously determined by You to support the functional requirements described in the Guidelines. You shall immediately remove all MSF Marks from all product, and all associated marketing and packaging materials, manufactured after the effective date of any formal certification testing program if such products are determined to not support the functional requirements described in the Guidelines upon formal certification testing, or to comply with the modified Guidelines announced after the effective date of the modified version of the Guidelines.

MSF Marks

License - - MSF Logo. Subject to the terms and conditions of this Agreement, during the term of this Agreement, if You are a Member of MSF, MSF hereby grants to You a revocable, non-exclusive, non-transferable, limited license, without the right to sublicense, to use the MSF Logo solely on or in association with Qualified Products, including packaging, advertising and marketing materials, and on Your Internet Web site when referring to or discussing the Qualified Products. This license granted to You as set forth herein is strictly conditioned on You being a Member of MSF and current with Your membership dues in the MSF. You agree that the foregoing terms are material provisions of the Agreement and any breach shall be a material breach of the terms of this Agreement.

License - - MSF Trademark. Subject to the terms and conditions of this Agreement, during the term of this Agreement, if You are not a Member of MSF, MSF hereby grants to You a revocable, non-exclusive, non-transferable, limited license, without the right to sublicense, to use the MSF Mark solely on the product specification sheet and in packaging, advertising and marketing materials for a Qualified Product and on Your Internet Web site when referring to or discussing the Qualified Products. If You are not a Member of MSF, this license is granted to You in lieu of the license for the MSF Logo set forth in the Section above. You agree that the foregoing terms are material provisions of the Agreement and any breach shall be a material breach of the terms of this Agreement.

Limitations on Use. You agree to use the applicable MSF Mark only on or in connection with Qualified Products and the associated promotional materials as set forth in the relevant license grant in the Sections immediately preceding this Section, and not with any other products or services or in any other manner. You further agree not to use the applicable MSF Mark in such a manner as to suggest that a product is a Qualified Product when it is not. If a MSF Mark is, or in MSF’s opinion, is likely to become, subject to a legal claim or action in a particular geographic area, You agree to cease all of that MSF Mark in that geographic area within thirty (30) days from the date of MSF’s written notice to You. All rights not expressly granted to You hereunder are reserved by MSF, and You agree not to use the MSF Marks except as expressly permitted by MSF in this Agreement.

Usage and Style Guidelines. Use of the MSF Marks is subject to the MSF Usage and Style Guidelines (the “Usage Guidelines”), as may from time to time be published by MSF. The Usage Guidelines are available at for download from MSF’s website currently located at www.msforum.org. MSF reserves the right to modify the Usage Guidelines and You agree to comply with the modified Usage Guidelines from time to time, with respect to products not yet manufactured, within sixty (60) days of MSF’s publication of the modified Usage Guidelines. MSF shall use reasonable efforts to provide You with advance notice of any modification to the Usage Guidelines. Upon request from MSF, You agree to promptly submit to MSF samples demonstrating Your use of the applicable MSF Marks, and You shall promptly modify such use according to the instructions of MSF. You will comply with all procedures which MSF may from time to time adopt regarding display of intellectual property notices in connection with the applicable MSF Mark. Without limiting the foregoing, You agree to affix a superscript ? next to each use of the MSF Mark, together with the following statement (unless space limitations prohibit display of such statement): “_____________is a trademark or registered trademark of MSF.”

Promotion of Marks. The MSF Marks provide a way by which consumers can identify products that support the functional requirements described in the Guidelines. You acknowledge that proper use and wide-scale promotion of the MSF Marks are essential to develop awareness of, and grow public confidence in, MSF and the Guidelines, and agree to actively participate in the promotion of the MSF Marks by including their use in materials as permitted under this Agreement.

Ownership/Assignment by You. All right, title, and interest in and to the MSF Marks, other than Your limited license to use the applicable MSF Mark as expressly set forth in this Agreement during the term of this Agreement, shall remain with MSF. During the term of this Agreement and thereafter, You will not contest MSF’s exclusive right, title and interest in and to, or the validity of, the MSF Marks. In addition, You will not in any manner represent that You have an interest in the MSF Marks, except for the limited license provided herein for the term of this Agreement. Use of the applicable MSF Mark by You shall not confer upon You any right, title or interest in or to the MSF Mark, and all such use by You of the applicable MSF Mark, and all related goodwill, shall inure to the sole benefit of, and be on behalf of, MSF. You shall make any and all assignments, and shall execute any and all documents, necessary to perfect such ownership and rights on behalf of MSF. To assist MSF with its registration of the applicable MSF Mark in the name of MSF, You, at MSF’s request and expense, shall promptly perform any act necessary for MSF to secure or maintain any and all rights regarding the applicable MSF Mark made available to You under this Agreement. You agree not to register the MSF Marks or any confusingly similar mark in any country or in any form. All rights not expressly granted herein are reserved by MSF.

Suspected Infringement. You agree to cooperate with and assist MSF in protecting and defending the MSF Marks. You shall promptly notify MSF in writing of any suspected infringement, claim or action of which You become aware in connection with the MSF Marks in any jurisdiction and of any claim made against You adverse to or conflicting with MSF’s exclusive ownership of the MSF Marks. MSF shall have the sole and exclusive right to determine whether any action should be taken on account of any such infringement, claim or action with respect to the MSF Marks. You shall not take any action on account of any such infringement, claim or action with respect to the MSF Marks without the prior written consent of MSF. Upon written notice from MSF, You shall cease to use the MSF Marks in any country specified by MSF.

Your Trademarks.

License to Your Trademarks. If You are a Member, MSF will also exercise commercially reasonable efforts to display Your Marks on a page within MSF’s website which lists the Qualified Products and the trademarks of those Members who have Qualified Products. In such case, subject to the terms and conditions of this Agreement, during the term of this Agreement, You hereby grant to MSF a revocable, non-exclusive, non-transferable, royalty-free, limited license to use Your trademarks [previously provided to MSF] [that You upload to MSF’s website] (“Your Marks”) on MSF’s website currently located at www.msforum.org.

Ownership/Assignment by MSF. All rights, title, and interest in and to Your Marks, other than MSF’s license to use Your Marks as expressly set forth in this Agreement during the term of this Agreement, shall remain with You. MSF will not in any manner represent that it has an interest in Your Marks, except for the limited license provided herein for the term of this Agreement. Use of Your Marks by MSF shall not confer upon MSF any right, title or interest in or to Your Marks, and all such use by MSF of Your Marks, and all related goodwill, shall inure to the sole benefit of and be on behalf of You. All rights not expressly granted herein are reserved by You.

Your Obligations.

Costs and Expenses; Future License Fee. All costs and expenses incurred by You in connection with making and performing this Agreement, including but not limited to all costs and expenses incurred by You in determining whether Your products support the functional requirements described in the Guidelines, testing of Your products and using the MSF Marks, shall be borne solely by You. You shall also pay the license fee, if any, established by MSF for the licenses granted hereunder, or You shall immediately cease use of the MSF Marks on or in connection with any product (including Qualified Products) and all associated materials at such time when a license fee is established by MSF.

Third Party Equipment and Licenses. You shall, at Your expense, (a) purchase or acquire the right to use all software, hardware, firmware, peripherals and equipment needed or required to conduct the internal testing of Your products to determine whether they support the functional requirements described in the Guidelines, and (b) obtain all necessary governmental and third party approvals, permits, and licenses for the testing of products to determine whether they support the functional requirements described in the Guidelines.

Complaints. You shall give prompt written notice to MSF of any complaint or other indication by a third party that Your product does not support the functional requirements described in the Guidelines.

Compliance with Laws. You shall comply with all applicable local, state, federal and foreign laws and, at all times, conduct Your activities under this Agreement in a lawful manner.

Taxes. You shall pay, indemnify and hold MSF harmless from any sales, use, excise, import or export, value-added, or similar tax or duty, and any other tax or duty not based on MSF’s net income (“Taxes”), and all government permit fees, license fees, customs fees or similar fees (“Fees”), levied upon any deliverables under this Agreement or due to any payment to be made pursuant to this Agreement, and any penalties, interest, collection costs and withholding costs associated with any of the foregoing items (“Additional Costs”). Taxes, Fees and Additional Costs required to be paid by You pursuant to this paragraph are in addition to, and may not be claimed as a reduction or offset against, payments due to MSF under this Agreement, if any.

Warranty and Warranty Disclaimer

Your Warranties and Representations. You represent and warrant that: (a) You have the right, power and authority to enter into this Agreement and fully perform all of Your obligations, including the granting of licenses, hereunder; (b) the performance of the terms of this Agreement and of Your obligations hereunder shall not breach any separate agreement by which You are bound; and (c) all records of testing are, and information submitted by You to MSF will be, complete, accurate and correct.

Disclaimer of Warranty. MSF MAKES NO WARRANTIES WHATSOEVER REGARDING YOUR PRODUCTS, THE QUALIFIED PRODUCTS, OTHER MEMBERS’ PRODUCTS, INCLUDING, BUT NOT LIMITED TO, THEIR END-USER PERFORMANCE, OR YOUR RIGHT TO USE THE MSF MARKS. THE MSF MARKS AND GUIDELINES ARE PROVIDED TO YOU AND ALL THIRD PARTIES ON AN “AS IS” BASIS AND MSF HEREBY DISCLAIMS AND EXCLUDES ALL WARRANTIES, COVENANTS AND REPRESENTATIONS OF ANY TYPE OR KIND, WHETHER EXPRESS, STATUTORY OR IMPLIED, INCLUDING, WITHOUT LIMITATION, ANY WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT OF THIRD PARTY RIGHTS.

Limitation of Liability. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT SHALL MSF BE LIABLE TO YOU OR ANY THIRD PARTY IN CONNECTION WITH THIS AGREEMENT OR THE MSF MARKS OR THE GUIDELINES IN ANY MANNER OR FOR ANY AMOUNT FOR ANY SPECIAL, INCIDENTAL, EXEMPLARY, CONSEQUENTIAL, PUNITIVE, INDIRECT OR OTHER DAMAGES OF ANY KIND, REGARDLESS OF THE FORM OF ACTION, EVEN IF MSF HAS BEEN INFORMED OF THE POSSIBILITY OF ANY SUCH DAMAGES IN ADVANCE. MSF’S TOTAL LIABILITY UNDER THIS AGREEMENT SHALL NOT EXCEED FIVE HUNDRED DOLLARS ($500). THE LIMITATIONS SET FORTH ABOVE SHALL BE DEEMED TO APPLY TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW AND NOTWITHSTANDING THE FAILURE OF THE ESSENTIAL PURPOSE OF THIS AGREEMENT OR ANY LIMITED REMEDIES HEREUNDER. THE PARTIES ACKNOWLEDGE AND AGREE THAT THEY HAVE FULLY CONSIDERED THE FOREGOING ALLOCATION OF RISK AND FIND IT REASONABLE, AND THAT THE FOREGOING LIMITATIONS ARE AN ESSENTIAL BASIS OF THE BARGAIN BETWEEN THE PARTIES. Certain states and/or jurisdictions do not allow the exclusion of implied warranties or limitation of liability for incidental or consequential damages, so the exclusions set forth above may not apply to You.

Indemnification. You shall indemnify, defend and hold MSF and its licensors, and their respective officers, agents, directors and employees, harmless from and against any and claims, causes of action, damages, obligations, liabilities, expenses (including reasonable attorneys’ fees) and costs made against or incurred by MSF or its licensors arising by reason of or in connection with: (a) any breach of this Agreement by You or Your agents, (b) any act or omission of You or Your agents in connection with the testing of products pursuant to the Guidelines (including, without limitation, information relating to the results of product testing); (c) Your improper use of a MSF Mark or use not in accordance with the Usage Guidelines; (d) any allegation that any data, materials or information supplied to MSF infringe or violate any intellectual property, proprietary or other rights of a third party; or (e) Your products (including, without limitation, Qualified Products) whether due to product liability, breach of warranty, infringement or violation of the intellectual property rights of third party rights or other claims; provided that (i) MSF promptly notifies You of any such claim, (ii) MSF renders reasonable assistance as required (at Your expense), and (iii) You are permitted to direct the defense and/or any settlement negotiations.

Term. This Agreement will commence on the Effective Date and shall continue until terminated by either party.

Termination for Convenience. Either party shall have the right to terminate this Agreement and the license and rights granted herein, provided that such terminating party provides at least thirty (30) days’ prior written notice to the other party.

Termination for Material Breach. Either party may terminate this Agreement and the licenses granted herein upon written notice to the other party, without need of judicial notice or court action, in the event of a material breach of this Agreement, unless the breach is corrected within fifteen (15) days after written notice of such material breach. Examples of material breaches shall include, but not be limited to: (a) Your use of a MSF Mark in a manner that is inconsistent with the license granted to You under this Agreement, or otherwise contrary to the provisions of this license; or (b) Your challenge to MSF’s ownership of a MSF Mark or the validity of a MSF Mark; or (c) failure of Your Qualified Products to support the functional requirements described in the Guidelines.

Effect of Termination. Upon the effective date of termination of this Agreement, this Agreement and all rights and licenses granted hereunder shall immediately terminate, and You shall destroy all copies of the Guidelines and none shall remain in Your possession or under Your control and cease all use of the MSF Marks. You will have the right to distribute any Qualified Products existing in Your inventory as of the effective date of termination and to fulfill any purchase orders or contractual obligations for such Qualified Products existing as of the effective date of termination.

Survival. The duties, rights and obligations of the parties under the following sections shall survive any expiration or termination of this Agreement: “No Endorsement or Approval,” “Ownership of Guidelines,” “ Ownership/Assignment by You,” “Complaints,” “Taxes,” “ Your Warranties and Representations,” “ Disclaimer of Warranty,” “Indemnification,” “ Effect of Termination,” “Survival,” “No Public Announcement,” “Notices,” and “ General.”

No Public Announcement. Except as expressly set forth herein, You shall acquire no right to use, and shall not use, without MSF’s prior written consent, the names, logos, trade names, copyrighted materials, trademarks or service marks of MSF: (a) in any advertising, publicity, press release, membership list, prospectus, private placement memorandum, business plan, presentation or promotion; (b) to express or to imply any endorsement by MSF of You or Your services; or (c) in any other manner. Without limiting the foregoing, no press releases shall be made without the advance written consent of MSF, which consent MSF may withhold in its sole discretion.

Notices. Any notice or reports required or permitted to be given under this Agreement shall be given in writing and shall be delivered by, personal delivery confirmed, facsimile transmission, nationally recognized overnight delivery service, or by verified or registered mail, postage prepaid, return receipt requested, and shall be deemed given upon personal delivery, five (5) days after deposit in the mail, two (2) days after deposit with a nationally recognized overnight delivery service, or upon acknowledgment of receipt of electronic transmission. Notices shall be sent to You at either the address specified in Your Member registration information which is on file with MSF or provided by You to MSF, and to MSF at 39355 California Street, Suite 307, Fremont, CA 94538.

Assignment. This Agreement is personal to You, and You shall not assign this Agreement or delegate any of Your rights, duties or obligations hereunder, directly or indirectly, by operation of law or otherwise, without the prior written consent of MSF, which consent shall not be unreasonably withheld, conditioned or delayed. Subject to the foregoing, this Agreement shall inure to the benefit of each of the party’s successors and permitted assigns.

General.

Any waiver of any kind or character by either party of a breach of this Agreement must be in writing, shall be effective only to the extent set forth in such writing, and shall not operate or be construed as a waiver of any subsequent breach by the other party. No failure of either party to insist upon strict compliance by the other with any obligation or provision hereunder, and no custom or practice of the parties at variance with the terms hereof, shall constitute a waiver of either party’s right to demand exact compliance with the terms of this Agreement. Nor shall either party’s delay or omission in exercising any right, power or remedy upon a breach or default by the other party impair any such right, power or remedy. The exercise of any right or remedy provided in this Agreement shall be without prejudice to the right to exercise any other right or remedy provided by law or equity.

The provisions of this Agreement are severable and if any one or more such provisions shall be determined to be invalid, illegal or unenforceable, in whole or in part, the validity, legality and enforceability of any of the remaining provisions or portions thereof shall not in any way be affected or impaired thereby and shall be binding between the parties hereto. Any such invalid, illegal or unenforceable provision or portion thereof shall be changed and interpreted so as to best accomplish the economic effect of such provision or portion thereof within the limits of applicable law or applicable court decisions.

The Section and paragraph headings of this Agreement are included merely for convenience of reference. They are not to be considered part of, or to be used in interpreting this Agreement and in no way limit or affect any of the contents of this Agreement or its provisions.

This Agreement shall be governed by and construed under the laws of the United States and the State of California as applied to agreements entered into and to be performed entirely within California between California residents. This Agreement shall be deemed to have been made and entered into in Fremont, California. The parties hereby submit to the jurisdiction of the United States District Court for the Northern District of California, San Jose Branch and the Superior and Municipal Courts of the State of California, Alameda County, in any litigation arising out of or in connection with the Agreement. The parties hereby irrevocably waive any and all claims and defenses either might otherwise have in any action or proceeding in any of such courts based upon any alleged lack of personal jurisdiction, improper venue, forum non conveniens or any similar claim or defense.

This Agreement, and the exhibits hereto, are prepared and executed in the English language only, which language shall be controlling in all respects. Any translations of this Agreement into any other language are for reference only and shall have no legal or other effect. Any notice which is required or permitted to be given by one party to the other under this Agreement will be in the English language and made in writing.

Nothing contained in this Agreement shall be construed as creating any agency, partnership, or other form of joint enterprise between the parties. The relationship between the parties shall at all times be that of independent contractors. Neither party shall have authority to contract for or bind the other in any manner whatsoever. This Agreement confers no rights upon either party except those expressly granted herein.

The parties agree and acknowledge that a breach of this Agreement may cause a party irreparable damage. Accordingly, notwithstanding anything to the contrary set forth in this Agreement, upon any breach of this Agreement by a party, the other party shall be entitled to immediate injunctive relief and other equitable remedies in a court of competent jurisdiction, and the party in breach agrees that it shall not seek to stay such an action pending the outcome of any dispute resolution process.

In the event of a dispute between the parties relating to this Agreement or in the event of any default under this Agreement, the party prevailing in the resolution of any such dispute or default by a court of law shall be entitled to recover its reasonable attorneys’ fees and other costs incurred in connection with resolving said dispute or default.

This Agreement is the complete, entire, final and exclusive statement of the terms and conditions of the agreement between the parties. This Agreement supersedes, and the terms of this Agreement govern, any prior or contemporaneous agreements between the parties with respect to the subject matter hereof. This Agreement may not be modified except in a writing executed by duly authorized representatives of the parties.