1 Common Public License Version 1.0

     2 

     3 THE ACCOMPANYING PROGRAM IS PROVIDED UNDER THE TERMS OF THIS COMMON PUBLIC

     4 LICENSE ("AGREEMENT"). ANY USE, REPRODUCTION OR DISTRIBUTION OF THE PROGRAM

     5 CONSTITUTES RECIPIENT'S ACCEPTANCE OF THIS AGREEMENT.

     6 

     7 1. DEFINITIONS

     8 

     9 "Contribution" means:

    10 

    11     a) in the case of the initial Contributor, the initial code and documentation

    12     distributed under this Agreement, and

    13 

    14     b) in the case of each subsequent Contributor:

    15 

    16     i) changes to the Program, and

    17 

    18     ii) additions to the Program;

    19 

    20     where such changes and/or additions to the Program originate from and are

    21     distributed by that particular Contributor. A Contribution 'originates' from

    22     a Contributor if it was added to the Program by such Contributor itself or

    23     anyone acting on such Contributor's behalf. Contributions do not include

    24     additions to the Program which: (i) are separate modules of software

    25     distributed in conjunction with the Program under their own license

    26     agreement, and (ii) are not derivative works of the Program.

    27 

    28 "Contributor" means any person or entity that distributes the Program.

    29 

    30 "Licensed Patents " mean patent claims licensable by a Contributor which are

    31 necessarily infringed by the use or sale of its Contribution alone or when

    32 combined with the Program.

    33 

    34 "Program" means the Contributions distributed in accordance with this Agreement.

    35 

    36 "Recipient" means anyone who receives the Program under this Agreement, including

    37 all Contributors.

    38 

    39 2. GRANT OF RIGHTS

    40 

    41     a) Subject to the terms of this Agreement, each Contributor hereby grants

    42     Recipient a non-exclusive, worldwide, royalty-free copyright license to

    43     reproduce, prepare derivative works of, publicly display, publicly perform,

    44     distribute and sublicense the Contribution of such Contributor, if any, and

    45     such derivative works, in source code and object code form.

    46 

    47     b) Subject to the terms of this Agreement, each Contributor hereby grants

    48     Recipient a non-exclusive, worldwide, royalty-free patent license under

    49     Licensed Patents to make, use, sell, offer to sell, import and otherwise

    50     transfer the Contribution of such Contributor, if any, in source code and

    51     object code form. This patent license shall apply to the combination of the

    52     Contribution and the Program if, at the time the Contribution is added by

    53     the Contributor, such addition of the Contribution causes such combination

    54     to be covered by the Licensed Patents. The patent license shall not apply to

    55     any other combinations which include the Contribution. No hardware per se is

    56     licensed hereunder.

    57 

    58     c) Recipient understands that although each Contributor grants the licenses

    59     to its Contributions set forth herein, no assurances are provided by any

    60     Contributor that the Program does not infringe the patent or other

    61     intellectual property rights of any other entity. Each Contributor disclaims

    62     any liability to Recipient for claims brought by any other entity based on

    63     infringement of intellectual property rights or otherwise. As a condition to

    64     exercising the rights and licenses granted hereunder, each Recipient hereby

    65     assumes sole responsibility to secure any other intellectual property rights

    66     needed, if any. For example, if a third party patent license is required to

    67     allow Recipient to distribute the Program, it is Recipient's responsibility

    68     to acquire that license before distributing the Program.

    69 

    70     d) Each Contributor represents that to its knowledge it has sufficient

    71     copyright rights in its Contribution, if any, to grant the copyright license

    72     set forth in this Agreement.

    73 

    74 3. REQUIREMENTS

    75 

    76 A Contributor may choose to distribute the Program in object code form under its

    77 own license agreement, provided that:

    78 

    79     a) it complies with the terms and conditions of this Agreement; and

    80 

    81     b) its license agreement:

    82 

    83     i) effectively disclaims on behalf of all Contributors all warranties and

    84     conditions, express and implied, including warranties or conditions of title

    85     and non-infringement, and implied warranties or conditions of merchantability

    86     and fitness for a particular purpose;

    87 

    88     ii) effectively excludes on behalf of all Contributors all liability for

    89     damages, including direct, indirect, special, incidental and consequential

    90     damages, such as lost profits;

    91 

    92     iii) states that any provisions which differ from this Agreement are offered

    93     by that Contributor alone and not by any other party; and

    94 

    95     iv) states that source code for the Program is available from such Contributor,

    96     and informs licensees how to obtain it in a reasonable manner on or through

    97     a medium customarily used for software exchange. 

    98 

    99 When the Program is made available in source code form:

   100 

   101     a) it must be made available under this Agreement; and

   102 

   103     b) a copy of this Agreement must be included with each copy of the Program. 

   104 

   105 Contributors may not remove or alter any copyright notices contained within the Program.

   106 

   107 Each Contributor must identify itself as the originator of its Contribution, if

   108 any, in a manner that reasonably allows subsequent Recipients to identify the

   109 originator of the Contribution.

   110 

   111 4. COMMERCIAL DISTRIBUTION

   112 

   113 Commercial distributors of software may accept certain responsibilities with

   114 respect to end users, business partners and the like. While this license is

   115 intended to facilitate the commercial use of the Program, the Contributor who

   116 includes the Program in a commercial product offering should do so in a manner

   117 which does not create potential liability for other Contributors. Therefore, if

   118 a Contributor includes the Program in a commercial product offering, such

   119 Contributor ("Commercial Contributor") hereby agrees to defend and indemnify

   120 every other Contributor ("Indemnified Contributor") against any losses, damages

   121 and costs (collectively "Losses") arising from claims, lawsuits and other legal

   122 actions brought by a third party against the Indemnified Contributor to the

   123 extent caused by the acts or omissions of such Commercial Contributor in

   124 connection with its distribution of the Program in a commercial product offering.

   125 The obligations in this section do not apply to any claims or Losses relating to

   126 any actual or alleged intellectual property infringement. In order to qualify,

   127 an Indemnified Contributor must: a) promptly notify the Commercial Contributor 

   128 n writing of such claim, and b) allow the Commercial Contributor to control,

   129 and cooperate with the Commercial Contributor in, the defense and any related

   130 settlement negotiations. The Indemnified Contributor may participate in any such

   131 claim at its own expense.

   132 

   133 For example, a Contributor might include the Program in a commercial product

   134 offering, Product X. That Contributor is then a Commercial Contributor. If that

   135 Commercial Contributor then makes performance claims, or offers warranties

   136 related to Product X, those performance claims and warranties are such Commercial

   137 Contributor's responsibility alone. Under this section, the Commercial

   138 Contributor would have to defend claims against the other Contributors related

   139 to those performance claims and warranties, and if a court requires any other

   140 Contributor to pay any damages as a result, the Commercial Contributor must pay

   141 those damages.

   142 

   143 5. NO WARRANTY

   144 

   145 EXCEPT AS EXPRESSLY SET FORTH IN THIS AGREEMENT, THE PROGRAM IS PROVIDED ON AN

   146 "AS IS" BASIS, WITHOUT WARRANTIES OR CONDITIONS OF ANY KIND, EITHER EXPRESS OR

   147 IMPLIED INCLUDING, WITHOUT LIMITATION, ANY WARRANTIES OR CONDITIONS OF TITLE,

   148 NON-INFRINGEMENT, MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE. Each

   149 Recipient is solely responsible for determining the appropriateness of using

   150 and distributing the Program and assumes all risks associated with its exercise

   151 of rights under this Agreement, including but not limited to the risks and costs

   152 of program errors, compliance with applicable laws, damage to or loss of data,

   153 programs or equipment, and unavailability or interruption of operations.

   154 

   155 6. DISCLAIMER OF LIABILITY

   156 

   157 EXCEPT AS EXPRESSLY SET FORTH IN THIS AGREEMENT, NEITHER RECIPIENT NOR ANY

   158 CONTRIBUTORS SHALL HAVE ANY LIABILITY FOR ANY DIRECT, INDIRECT, INCIDENTAL,

   159 SPECIAL, EXEMPLARY, OR CONSEQUENTIAL DAMAGES (INCLUDING WITHOUT LIMITATION LOST

   160 PROFITS), HOWEVER CAUSED AND ON ANY THEORY OF LIABILITY, WHETHER IN CONTRACT,

   161 STRICT LIABILITY, OR TORT (INCLUDING NEGLIGENCE OR OTHERWISE) ARISING IN ANY

   162 WAY OUT OF THE USE OR DISTRIBUTION OF THE PROGRAM OR THE EXERCISE OF ANY RIGHTS

   163 GRANTED HEREUNDER, EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.

   164 

   165 7. GENERAL

   166 

   167 If any provision of this Agreement is invalid or unenforceable under applicable

   168 law, it shall not affect the validity or enforceability of the remainder of the

   169 terms of this Agreement, and without further action by the parties hereto, such

   170 provision shall be reformed to the minimum extent necessary to make such

   171 provision valid and enforceable.

   172 

   173 If Recipient institutes patent litigation against a Contributor with respect to

   174 a patent applicable to software (including a cross-claim or counterclaim in a

   175 lawsuit), then any patent licenses granted by that Contributor to such Recipient

   176 under this Agreement shall terminate as of the date such litigation is filed.

   177 In addition, if Recipient institutes patent litigation against any entity

   178 (including a cross-claim or counterclaim in a lawsuit) alleging that the Program

   179 itself (excluding combinations of the Program with other software or hardware)

   180 infringes such Recipient's patent(s), then such Recipient's rights granted under

   181 Section 2(b) shall terminate as of the date such litigation is filed.

   182 

   183 All Recipient's rights under this Agreement shall terminate if it fails to comply

   184 with any of the material terms or conditions of this Agreement and does not cure

   185 such failure in a reasonable period of time after becoming aware of such

   186 noncompliance. If all Recipient's rights under this Agreement terminate, Recipient

   187 agrees to cease use and distribution of the Program as soon as reasonably

   188 practicable. However, Recipient's obligations under this Agreement and any

   189 licenses granted by Recipient relating to the Program shall continue and survive.

   190 

   191 Everyone is permitted to copy and distribute copies of this Agreement, but in

   192 order to avoid inconsistency the Agreement is copyrighted and may only be modified

   193 in the following manner. The Agreement Steward reserves the right to publish new

   194 versions (including revisions) of this Agreement from time to time. No one other

   195 than the Agreement Steward has the right to modify this Agreement. IBM is the

   196 initial Agreement Steward. IBM may assign the responsibility to serve as the

   197 Agreement Steward to a suitable separate entity. Each new version of the Agreement

   198 will be given a distinguishing version number. The Program (including Contributions)

   199 may always be distributed subject to the version of the Agreement under which it

   200 was received. In addition, after a new version of the Agreement is published,

   201 Contributor may elect to distribute the Program (including its Contributions)

   202 under the new version. Except as expressly stated in Sections 2(a) and 2(b) above,

   203 Recipient receives no rights or licenses to the intellectual property of any

   204 Contributor under this Agreement, whether expressly, by implication, estoppel or

   205 otherwise. All rights in the Program not expressly granted under this Agreement

   206 are reserved.

   207 

   208 This Agreement is governed by the laws of the State of New York and the

   209 intellectual property laws of the United States of America. No party to this

   210 Agreement will bring a legal action under this Agreement more than one year after

   211 the cause of action arose. Each party waives its rights to a jury trial in any

   212 resulting litigation.