Indigo Binary License Agreement

THIS FIRMWARE LICENSE AGREEMENT ("Agreement"), issued by BIG SWITCH NETWORKS, Inc., a Delaware corporation located at Palo Alto, California ("BSN"), sets forth the terms by which the recipient of firmware accepting these terms ("Recipient") may use the Indigo software provided by bsn ("software").  YOU REPRESENT AND WARRANT THAT YOU HAVE THE AUTHORITY TO BIND TO THIS AGREEMENT.   

BY DOWNLOADING the Indigo Software Recipient agrees to all the terms of this Agreement and agrees to be bound by its provisions.  

License. Recipient is hereby granted a non-exclusive license to use Software with the switch product on which the Software was designed to run (each a "Switch").  You may transfer the Software and this Agreement to another party only in connection with a transfer of the Switch upon which the Software is used, if the other party assents to the terms and conditions of this Agreement. Except as set forth above, you may not transfer or assign the Software or your rights under this Agreement. Recipient agrees that any software or materials which may be made available by BSN, or otherwise obtained or used by Recipient, subject to an open source license or other open source terms shall be and shall remain subject to the terms and conditions of the original providers and are not part of the Software. Recipient's license rights to the Software are limited to those expressly granted by this Agreement.  The Software is licensed and not sold; BSN, or its licensors, own all intellectual property rights, including patent, copyright, trade secret, trademark and other proprietary rights, in and to the Software. 

Restrictions. Recipient shall not (and shall not allow any third party to) (i) use or access any component of the Software separate and apart from Software as a whole; (ii) reverse engineer or attempt to discover any source code or underlying ideas or algorithms of any Software (except to the extent that applicable law prohibits reverse engineering restrictions), (iii) import the Software into any jurisdiction requiring disclosure of source code; or (iv) download or use any Software, or allow the transfer, transmission, export, or re-export of any Software or portion thereof, in violation of any export control laws or regulations administered by the U.S. Commerce Department, OFAC, or any other U.S. or foreign government entity.

Term and Termination. This Agreement is effective until terminated. Recipient may terminate it at any time by destroying the Software. This Agreement will automatically terminate if Recipient fails to comply with any terms of this Agreement. Upon termination, Recipient agrees to discontinue all use of the Software.

Disclaimer of Warranties.  TO THE FULLEST EXTENT ALLOWABLE BY APPLICABLE LAW, THE SOFTWARE IS PROVIDED "AS IS," WITHOUT WARRANTY OF ANY KIND.  ALL WARRANTIES, WHETHER EXPRESS OR IMPLIED, ARE HEREBY DISCLAIMED, INCLUDING WITHOUT LIMITATION IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT. WITHOUT LIMITING THE FOREGOING, BSN DOES NOT WARRANT THAT THE OPERATION OF THE SOFTWARE WILL BE UNINTERRUPTED OR ERROR FREE.

Limitation of Liability.  RECIPIENT AGREES THAT BSN AND ITS SUPPLIERS SHALL NOT BE LIABLE FOR ANY DAMAGES, INCLUDING BUT NOT LIMITED TO DIRECT, INDIRECT, INCIDENTAL, SPECIAL OR CONSEQUENTIAL DAMAGES (INCLUDING BUT NOT LIMITED TO LOSS OF PROFITS OR REVENUE, LOSS OF USE OF THE SOFTWARE OR SOFTWARE OR SERVICES) WHICH ARISE FROM THE USE OF THE SOFTWARE, WHETHER THE CLAIM FOR DAMAGES IS BASED IN CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY OR OTHERWISE.

Indemnification. Recipient will defend, indemnify, and hold harmless BSN, its suppliers, and their respective directors, officers, employees and representatives  against any and all claims, actions, suits, proceedings (or threat thereof), liabilities, losses, damages, fines, penalties, judgments, costs and expenses (including, without limitation, reasonable attorneys' fees and costs), arising out of or in connection with Recipient's breach of this Agreement.

U.S. Government End Users. The Software is a "commercial item," as that term is defined in 48 C. F. R. 2.101 (Oct. 1995), consisting of "commercial computer software," "commercial computer hardware" and "commercial computer software documentation" as such terms are used in 48 C. F. R. 12.212 (Sept. 1995). Consistent with 48 C. F. R. 12.212 and 48 C. F. R. 227.7202-1 through 227.7202-4 (June 1995), all U. S. Government end users acquire the Software with only those rights set forth in this Agreement.

Miscellaneous.  No failure or delay in exercising any right hereunder will operate as a waiver thereof, nor will any partial exercise of any right or power hereunder preclude further exercise.  If any provision of this Agreement shall be adjudged by any court of competent jurisdiction to be unenforceable or invalid, that provision shall be limited or eliminated to the minimum extent necessary so that this Agreement shall otherwise remain in full force and effect and enforceable.  This Agreement shall be deemed to have been made in, and shall be construed pursuant to the laws of the State of California without regard to conflicts of laws provisions thereof, and without regard to the United Nations Convention on the International Sale of Goods or the Uniform Computer Information Transactions Act.  Any action arising from this Agreement shall be brought in the state or federal courts in and for Santa Clara County, California and the parties consent to the exclusive jurisdiction and venue of such courts.  Any waivers or amendments shall be effective only if made in writing.  This Agreement is the complete and exclusive statement of the mutual understanding of the parties and supersedes and cancels all previous written and oral agreements and communications relating to the subject matter of this Agreement.  The prevailing party in any action to enforce this Agreement will be entitled to recover its attorney's fees and costs in connection with such action.