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| 1 | |||
| 2 | Common Public License Version 1.0 | ||
| 3 | |||
| 4 | THE ACCOMPANYING PROGRAM IS PROVIDED UNDER THE TERMS OF THIS COMMON PUBLIC | ||
| 5 | LICENSE ("AGREEMENT"). ANY USE, REPRODUCTION OR DISTRIBUTION OF THE | ||
| 6 | PROGRAM | ||
| 7 | CONSTITUTES RECIPIENT'S ACCEPTANCE OF THIS AGREEMENT. | ||
| 8 | |||
| 9 | 1. DEFINITIONS | ||
| 10 | |||
| 11 | "Contribution" means: | ||
| 12 | |||
| 13 | a) in the case of the initial Contributor, the initial code and | ||
| 14 | documentation distributed under this Agreement, and | ||
| 15 | |||
| 16 | b) in the case of each subsequent Contributor: | ||
| 17 | |||
| 18 | i) changes to the Program, and | ||
| 19 | |||
| 20 | ii) additions to the Program; | ||
| 21 | |||
| 22 | where such changes and/or additions to the Program originate from and are | ||
| 23 | distributed by that particular Contributor. A Contribution 'originates' from a | ||
| 24 | Contributor if it was added to the Program by such Contributor itself or anyone | ||
| 25 | acting on such Contributor's behalf. Contributions do not include additions to | ||
| 26 | the Program which: (i) are separate modules of software distributed in | ||
| 27 | conjunction with the Program under their own license agreement, and (ii) are | ||
| 28 | not | ||
| 29 | derivative works of the Program. | ||
| 30 | |||
| 31 | "Contributor" means any person or entity that distributes the | ||
| 32 | Program. | ||
| 33 | |||
| 34 | "Licensed Patents " mean patent claims licensable by a Contributor | ||
| 35 | which are | ||
| 36 | necessarily infringed by the use or sale of its Contribution alone or when | ||
| 37 | combined with the Program. | ||
| 38 | |||
| 39 | "Program" means the Contributions distributed in accordance with this | ||
| 40 | Agreement. | ||
| 41 | |||
| 42 | "Recipient" means anyone who receives the Program under this | ||
| 43 | Agreement, | ||
| 44 | including all Contributors. | ||
| 45 | |||
| 46 | 2. GRANT OF RIGHTS | ||
| 47 | |||
| 48 | a) Subject to the terms of this Agreement, each Contributor hereby grants | ||
| 49 | Recipient a non-exclusive, worldwide, royalty-free copyright license to | ||
| 50 | reproduce, prepare derivative works of, publicly display, publicly perform, | ||
| 51 | distribute and sublicense the Contribution of such Contributor, if any, and | ||
| 52 | such | ||
| 53 | derivative works, in source code and object code form. | ||
| 54 | |||
| 55 | b) Subject to the terms of this Agreement, each Contributor hereby grants | ||
| 56 | Recipient a non-exclusive, worldwide, royalty-free patent license under | ||
| 57 | Licensed | ||
| 58 | Patents to make, use, sell, offer to sell, import and otherwise transfer the | ||
| 59 | Contribution of such Contributor, if any, in source code and object code form. | ||
| 60 | This patent license shall apply to the combination of the Contribution and the | ||
| 61 | Program if, at the time the Contribution is added by the Contributor, such | ||
| 62 | addition of the Contribution causes such combination to be covered by the | ||
| 63 | Licensed Patents. The patent license shall not apply to any other combinations | ||
| 64 | which include the Contribution. No hardware per se is licensed hereunder. | ||
| 65 | |||
| 66 | c) Recipient understands that although each Contributor grants the licenses | ||
| 67 | to its Contributions set forth herein, no assurances are provided by any | ||
| 68 | Contributor that the Program does not infringe the patent or other intellectual | ||
| 69 | property rights of any other entity. Each Contributor disclaims any liability | ||
| 70 | to | ||
| 71 | Recipient for claims brought by any other entity based on infringement of | ||
| 72 | intellectual property rights or otherwise. As a condition to exercising the | ||
| 73 | rights and licenses granted hereunder, each Recipient hereby assumes sole | ||
| 74 | responsibility to secure any other intellectual property rights needed, if any. | ||
| 75 | For example, if a third party patent license is required to allow Recipient to | ||
| 76 | distribute the Program, it is Recipient's responsibility to acquire that | ||
| 77 | license | ||
| 78 | before distributing the Program. | ||
| 79 | |||
| 80 | d) Each Contributor represents that to its knowledge it has sufficient | ||
| 81 | copyright rights in its Contribution, if any, to grant the copyright license | ||
| 82 | set | ||
| 83 | forth in this Agreement. | ||
| 84 | |||
| 85 | 3. REQUIREMENTS | ||
| 86 | |||
| 87 | A Contributor may choose to distribute the Program in object code form under | ||
| 88 | its | ||
| 89 | own license agreement, provided that: | ||
| 90 | |||
| 91 | a) it complies with the terms and conditions of this Agreement; and | ||
| 92 | |||
| 93 | b) its license agreement: | ||
| 94 | |||
| 95 | i) effectively disclaims on behalf of all Contributors all warranties and | ||
| 96 | conditions, express and implied, including warranties or conditions of title | ||
| 97 | and | ||
| 98 | non-infringement, and implied warranties or conditions of merchantability and | ||
| 99 | fitness for a particular purpose; | ||
| 100 | |||
| 101 | ii) effectively excludes on behalf of all Contributors all liability for | ||
| 102 | damages, including direct, indirect, special, incidental and consequential | ||
| 103 | damages, such as lost profits; | ||
| 104 | |||
| 105 | iii) states that any provisions which differ from this Agreement are offered | ||
| 106 | by that Contributor alone and not by any other party; and | ||
| 107 | |||
| 108 | iv) states that source code for the Program is available from such | ||
| 109 | Contributor, and informs licensees how to obtain it in a reasonable manner on | ||
| 110 | or | ||
| 111 | through a medium customarily used for software exchange. | ||
| 112 | |||
| 113 | When the Program is made available in source code form: | ||
| 114 | |||
| 115 | a) it must be made available under this Agreement; and | ||
| 116 | |||
| 117 | b) a copy of this Agreement must be included with each copy of the Program. | ||
| 118 | |||
| 119 | Contributors may not remove or alter any copyright notices contained within the | ||
| 120 | Program. | ||
| 121 | |||
| 122 | Each Contributor must identify itself as the originator of its Contribution, if | ||
| 123 | any, in a manner that reasonably allows subsequent Recipients to identify the | ||
| 124 | originator of the Contribution. | ||
| 125 | |||
| 126 | 4. COMMERCIAL DISTRIBUTION | ||
| 127 | |||
| 128 | Commercial distributors of software may accept certain responsibilities with | ||
| 129 | respect to end users, business partners and the like. While this license is | ||
| 130 | intended to facilitate the commercial use of the Program, the Contributor who | ||
| 131 | includes the Program in a commercial product offering should do so in a manner | ||
| 132 | which does not create potential liability for other Contributors. Therefore, if | ||
| 133 | a Contributor includes the Program in a commercial product offering, such | ||
| 134 | Contributor ("Commercial Contributor") hereby agrees to defend and | ||
| 135 | indemnify | ||
| 136 | every other Contributor ("Indemnified Contributor") against any | ||
| 137 | losses, damages | ||
| 138 | and costs (collectively "Losses") arising from claims, lawsuits and | ||
| 139 | other legal | ||
| 140 | actions brought by a third party against the Indemnified Contributor to the | ||
| 141 | extent caused by the acts or omissions of such Commercial Contributor in | ||
| 142 | connection with its distribution of the Program in a commercial product | ||
| 143 | offering. The obligations in this section do not apply to any claims or Losses | ||
| 144 | relating to any actual or alleged intellectual property infringement. In order | ||
| 145 | to qualify, an Indemnified Contributor must: a) promptly notify the Commercial | ||
| 146 | Contributor in writing of such claim, and b) allow the Commercial Contributor | ||
| 147 | to | ||
| 148 | control, and cooperate with the Commercial Contributor in, the defense and any | ||
| 149 | related settlement negotiations. The Indemnified Contributor may participate in | ||
| 150 | any such claim at its own expense. | ||
| 151 | |||
| 152 | For example, a Contributor might include the Program in a commercial product | ||
| 153 | offering, Product X. That Contributor is then a Commercial Contributor. If that | ||
| 154 | Commercial Contributor then makes performance claims, or offers warranties | ||
| 155 | related to Product X, those performance claims and warranties are such | ||
| 156 | Commercial Contributor's responsibility alone. Under this section, the | ||
| 157 | Commercial Contributor would have to defend claims against the other | ||
| 158 | Contributors related to those performance claims and warranties, and if a court | ||
| 159 | requires any other Contributor to pay any damages as a result, the Commercial | ||
| 160 | Contributor must pay those damages. | ||
| 161 | |||
| 162 | 5. NO WARRANTY | ||
| 163 | |||
| 164 | EXCEPT AS EXPRESSLY SET FORTH IN THIS AGREEMENT, THE PROGRAM IS PROVIDED ON AN | ||
| 165 | "AS IS" BASIS, WITHOUT WARRANTIES OR CONDITIONS OF ANY KIND, EITHER | ||
| 166 | EXPRESS OR | ||
| 167 | IMPLIED INCLUDING, WITHOUT LIMITATION, ANY WARRANTIES OR CONDITIONS OF TITLE, | ||
| 168 | NON-INFRINGEMENT, MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE. Each | ||
| 169 | Recipient is solely responsible for determining the appropriateness of using | ||
| 170 | and | ||
| 171 | distributing the Program and assumes all risks associated with its exercise of | ||
| 172 | rights under this Agreement, including but not limited to the risks and costs | ||
| 173 | of | ||
| 174 | program errors, compliance with applicable laws, damage to or loss of data, | ||
| 175 | programs or equipment, and unavailability or interruption of operations. | ||
| 176 | |||
| 177 | 6. DISCLAIMER OF LIABILITY | ||
| 178 | |||
| 179 | EXCEPT AS EXPRESSLY SET FORTH IN THIS AGREEMENT, NEITHER RECIPIENT NOR ANY | ||
| 180 | CONTRIBUTORS SHALL HAVE ANY LIABILITY FOR ANY DIRECT, INDIRECT, INCIDENTAL, | ||
| 181 | SPECIAL, EXEMPLARY, OR CONSEQUENTIAL DAMAGES (INCLUDING WITHOUT LIMITATION LOST | ||
| 182 | PROFITS), HOWEVER CAUSED AND ON ANY THEORY OF LIABILITY, WHETHER IN CONTRACT, | ||
| 183 | STRICT LIABILITY, OR TORT (INCLUDING NEGLIGENCE OR OTHERWISE) ARISING IN ANY | ||
| 184 | WAY | ||
| 185 | OUT OF THE USE OR DISTRIBUTION OF THE PROGRAM OR THE EXERCISE OF ANY RIGHTS | ||
| 186 | GRANTED HEREUNDER, EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. | ||
| 187 | |||
| 188 | 7. GENERAL | ||
| 189 | |||
| 190 | If any provision of this Agreement is invalid or unenforceable under applicable | ||
| 191 | law, it shall not affect the validity or enforceability of the remainder of the | ||
| 192 | terms of this Agreement, and without further action by the parties hereto, such | ||
| 193 | provision shall be reformed to the minimum extent necessary to make such | ||
| 194 | provision valid and enforceable. | ||
| 195 | |||
| 196 | If Recipient institutes patent litigation against a Contributor with respect to | ||
| 197 | a patent applicable to software (including a cross-claim or counterclaim in a | ||
| 198 | lawsuit), then any patent licenses granted by that Contributor to such | ||
| 199 | Recipient | ||
| 200 | under this Agreement shall terminate as of the date such litigation is filed. | ||
| 201 | In | ||
| 202 | addition, if Recipient institutes patent litigation against any entity | ||
| 203 | (including a cross-claim or counterclaim in a lawsuit) alleging that the | ||
| 204 | Program | ||
| 205 | itself (excluding combinations of the Program with other software or hardware) | ||
| 206 | infringes such Recipient's patent(s), then such Recipient's rights granted | ||
| 207 | under | ||
| 208 | Section 2(b) shall terminate as of the date such litigation is filed. | ||
| 209 | |||
| 210 | All Recipient's rights under this Agreement shall terminate if it fails to | ||
| 211 | comply with any of the material terms or conditions of this Agreement and does | ||
| 212 | not cure such failure in a reasonable period of time after becoming aware of | ||
| 213 | such noncompliance. If all Recipient's rights under this Agreement terminate, | ||
| 214 | Recipient agrees to cease use and distribution of the Program as soon as | ||
| 215 | reasonably practicable. However, Recipient's obligations under this Agreement | ||
| 216 | and any licenses granted by Recipient relating to the Program shall continue | ||
| 217 | and | ||
| 218 | survive. | ||
| 219 | |||
| 220 | Everyone is permitted to copy and distribute copies of this Agreement, but in | ||
| 221 | order to avoid inconsistency the Agreement is copyrighted and may only be | ||
| 222 | modified in the following manner. The Agreement Steward reserves the right to | ||
| 223 | publish new versions (including revisions) of this Agreement from time to time. | ||
| 224 | No one other than the Agreement Steward has the right to modify this Agreement. | ||
| 225 | IBM is the initial Agreement Steward. IBM may assign the responsibility to | ||
| 226 | serve | ||
| 227 | as the Agreement Steward to a suitable separate entity. Each new version of the | ||
| 228 | Agreement will be given a distinguishing version number. The Program (including | ||
| 229 | Contributions) may always be distributed subject to the version of the | ||
| 230 | Agreement | ||
| 231 | under which it was received. In addition, after a new version of the Agreement | ||
| 232 | is published, Contributor may elect to distribute the Program (including its | ||
| 233 | Contributions) under the new version. Except as expressly stated in Sections | ||
| 234 | 2(a) and 2(b) above, Recipient receives no rights or licenses to the | ||
| 235 | intellectual property of any Contributor under this Agreement, whether | ||
| 236 | expressly, by implication, estoppel or otherwise. All rights in the Program not | ||
| 237 | expressly granted under this Agreement are reserved. | ||
| 238 | |||
| 239 | This Agreement is governed by the laws of the State of New York and the | ||
| 240 | intellectual property laws of the United States of America. No party to this | ||
| 241 | Agreement will bring a legal action under this Agreement more than one year | ||
| 242 | after the cause of action arose. Each party waives its rights to a jury trial | ||
| 243 | in | ||
| 244 | any resulting litigation. | ||
| 245 | |||
| 246 | |||
| 247 | |||
| 248 | |||
| 249 | |||
| 250 | |||
