Mozilla Public License is non-free: stipulates court venue ?
Hi all -
With the recent discussion about choice of venue, I was wondering about the
Mozilla license. Specifically, the Mozilla Public License v. 1.1 [1] seems to
contain a choice of venue clause in section 11:
| With respect to disputes in which at least one party is a citizen of, or an
| entity chartered or registered to do business in the United States of America,
| any litigation relating to this License shall be subject to the jurisdiction of
| the Federal Courts of the Northern District of California, with venue lying in
| Santa Clara County, California, with the losing party responsible for costs,
| including without limitation, court costs and reasonable attorneys' fees and
| expenses.
http://www.mozilla.org/MPL/MPL-1.1.html
As discussed recently, choice of venue clauses may be non-free, because they
require parties to travel unreasonable distances to avoid summary decisions
against them. Does this clause make the MPL non-free?
Another question: section 3.4(a) of the MPL seems to require retroactively
informing recipients about any third-party legal problems with the software:
| If Contributor has knowledge that a license under a third party's intellectual
| property rights is required to exercise the rights granted by such Contributor
| under Sections 2.1 or 2.2, Contributor must include a text file with the Source
| Code distribution titled "LEGAL'' which describes the claim and the party
| making the claim in sufficient detail that a recipient will know whom to
| contact. If Contributor obtains such knowledge after the Modification is made
| available as described in Section 3.2, Contributor shall promptly modify the
| LEGAL file in all copies Contributor makes available thereafter and shall take
| other steps (such as notifying appropriate mailing lists or newsgroups)
| reasonably calculated to inform those who received the Covered Code that new
| knowledge has been obtained.
Debian has found the "SGI Free Software License B" [2] to be non-free and
possible undistributable in part because of a similar, more restrictive clause
[3]. Do the same arguments apply to the MPL?
Note the "SGI Free Software License B" also contains a choice of venue clause
in Section 13, which was not noted as problematic in bug #211765 [4] :
| Any litigation relating to this License shall be subject to the exclusive
| jurisdiction of the Federal Courts of the Northern District of California (or,
| absent subject matter jurisdiction in such courts, the courts of the State of
| California), with venue lying exclusively in Santa Clara County, California,
| with the losing party responsible for costs, including without limitation,
| court costs and reasonable attorneys fees and expenses.
The full text of both licenses is pasted below.
Thanks!
Jim
1. http://www.mozilla.org/MPL/MPL-1.1.html
2. http://oss.sgi.com/projects/FreeB/
3. http://lists.debian.org/debian-legal/2003/09/msg00800.html
4. http://lists.debian.org/debian-x/2003/09/msg00410.html
------------------------------------------------------------------------------
MOZILLA PUBLIC LICENSE
Version 1.1
---------------
1. Definitions.
1.0.1. "Commercial Use" means distribution or otherwise making the
Covered Code available to a third party.
1.1. "Contributor" means each entity that creates or contributes to
the creation of Modifications.
1.2. "Contributor Version" means the combination of the Original
Code, prior Modifications used by a Contributor, and the Modifications
made by that particular Contributor.
1.3. "Covered Code" means the Original Code or Modifications or the
combination of the Original Code and Modifications, in each case
including portions thereof.
1.4. "Electronic Distribution Mechanism" means a mechanism generally
accepted in the software development community for the electronic
transfer of data.
1.5. "Executable" means Covered Code in any form other than Source
Code.
1.6. "Initial Developer" means the individual or entity identified
as the Initial Developer in the Source Code notice required by Exhibit
A.
1.7. "Larger Work" means a work which combines Covered Code or
portions thereof with code not governed by the terms of this License.
1.8. "License" means this document.
1.8.1. "Licensable" means having the right to grant, to the maximum
extent possible, whether at the time of the initial grant or
subsequently acquired, any and all of the rights conveyed herein.
1.9. "Modifications" means any addition to or deletion from the
substance or structure of either the Original Code or any previous
Modifications. When Covered Code is released as a series of files, a
Modification is:
A. Any addition to or deletion from the contents of a file
containing Original Code or previous Modifications.
B. Any new file that contains any part of the Original Code or
previous Modifications.
1.10. "Original Code" means Source Code of computer software code
which is described in the Source Code notice required by Exhibit A as
Original Code, and which, at the time of its release under this
License is not already Covered Code governed by this License.
1.10.1. "Patent Claims" means any patent claim(s), now owned or
hereafter acquired, including without limitation, method, process,
and apparatus claims, in any patent Licensable by grantor.
1.11. "Source Code" means the preferred form of the Covered Code for
making modifications to it, including all modules it contains, plus
any associated interface definition files, scripts used to control
compilation and installation of an Executable, or source code
differential comparisons against either the Original Code or another
well known, available Covered Code of the Contributor's choice. The
Source Code can be in a compressed or archival form, provided the
appropriate decompression or de-archiving software is widely available
for no charge.
1.12. "You" (or "Your") means an individual or a legal entity
exercising rights under, and complying with all of the terms of, this
License or a future version of this License issued under Section 6.1.
For legal entities, "You" includes any entity which controls, is
controlled by, or is under common control with You. For purposes of
this definition, "control" means (a) the power, direct or indirect,
to cause the direction or management of such entity, whether by
contract or otherwise, or (b) ownership of more than fifty percent
(50%) of the outstanding shares or beneficial ownership of such
entity.
2. Source Code License.
2.1. The Initial Developer Grant.
The Initial Developer hereby grants You a world-wide, royalty-free,
non-exclusive license, subject to third party intellectual property
claims:
(a) under intellectual property rights (other than patent or
trademark) Licensable by Initial Developer to use, reproduce,
modify, display, perform, sublicense and distribute the Original
Code (or portions thereof) with or without Modifications, and/or
as part of a Larger Work; and
(b) under Patents Claims infringed by the making, using or
selling of Original Code, to make, have made, use, practice,
sell, and offer for sale, and/or otherwise dispose of the
Original Code (or portions thereof).
(c) the licenses granted in this Section 2.1(a) and (b) are
effective on the date Initial Developer first distributes
Original Code under the terms of this License.
(d) Notwithstanding Section 2.1(b) above, no patent license is
granted: 1) for code that You delete from the Original Code; 2)
separate from the Original Code; or 3) for infringements caused
by: i) the modification of the Original Code or ii) the
combination of the Original Code with other software or devices.
2.2. Contributor Grant.
Subject to third party intellectual property claims, each Contributor
hereby grants You a world-wide, royalty-free, non-exclusive license
(a) under intellectual property rights (other than patent or
trademark) Licensable by Contributor, to use, reproduce, modify,
display, perform, sublicense and distribute the Modifications
created by such Contributor (or portions thereof) either on an
unmodified basis, with other Modifications, as Covered Code
and/or as part of a Larger Work; and
(b) under Patent Claims infringed by the making, using, or
selling of Modifications made by that Contributor either alone
and/or in combination with its Contributor Version (or portions
of such combination), to make, use, sell, offer for sale, have
made, and/or otherwise dispose of: 1) Modifications made by that
Contributor (or portions thereof); and 2) the combination of
Modifications made by that Contributor with its Contributor
Version (or portions of such combination).
(c) the licenses granted in Sections 2.2(a) and 2.2(b) are
effective on the date Contributor first makes Commercial Use of
the Covered Code.
(d) Notwithstanding Section 2.2(b) above, no patent license is
granted: 1) for any code that Contributor has deleted from the
Contributor Version; 2) separate from the Contributor Version;
3) for infringements caused by: i) third party modifications of
Contributor Version or ii) the combination of Modifications made
by that Contributor with other software (except as part of the
Contributor Version) or other devices; or 4) under Patent Claims
infringed by Covered Code in the absence of Modifications made by
that Contributor.
3. Distribution Obligations.
3.1. Application of License.
The Modifications which You create or to which You contribute are
governed by the terms of this License, including without limitation
Section 2.2. The Source Code version of Covered Code may be
distributed only under the terms of this License or a future version
of this License released under Section 6.1, and You must include a
copy of this License with every copy of the Source Code You
distribute. You may not offer or impose any terms on any Source Code
version that alters or restricts the applicable version of this
License or the recipients' rights hereunder. However, You may include
an additional document offering the additional rights described in
Section 3.5.
3.2. Availability of Source Code.
Any Modification which You create or to which You contribute must be
made available in Source Code form under the terms of this License
either on the same media as an Executable version or via an accepted
Electronic Distribution Mechanism to anyone to whom you made an
Executable version available; and if made available via Electronic
Distribution Mechanism, must remain available for at least twelve (12)
months after the date it initially became available, or at least six
(6) months after a subsequent version of that particular Modification
has been made available to such recipients. You are responsible for
ensuring that the Source Code version remains available even if the
Electronic Distribution Mechanism is maintained by a third party.
3.3. Description of Modifications.
You must cause all Covered Code to which You contribute to contain a
file documenting the changes You made to create that Covered Code and
the date of any change. You must include a prominent statement that
the Modification is derived, directly or indirectly, from Original
Code provided by the Initial Developer and including the name of the
Initial Developer in (a) the Source Code, and (b) in any notice in an
Executable version or related documentation in which You describe the
origin or ownership of the Covered Code.
3.4. Intellectual Property Matters
(a) Third Party Claims.
If Contributor has knowledge that a license under a third party's
intellectual property rights is required to exercise the rights
granted by such Contributor under Sections 2.1 or 2.2,
Contributor must include a text file with the Source Code
distribution titled "LEGAL" which describes the claim and the
party making the claim in sufficient detail that a recipient will
know whom to contact. If Contributor obtains such knowledge after
the Modification is made available as described in Section 3.2,
Contributor shall promptly modify the LEGAL file in all copies
Contributor makes available thereafter and shall take other steps
(such as notifying appropriate mailing lists or newsgroups)
reasonably calculated to inform those who received the Covered
Code that new knowledge has been obtained.
(b) Contributor APIs.
If Contributor's Modifications include an application programming
interface and Contributor has knowledge of patent licenses which
are reasonably necessary to implement that API, Contributor must
also include this information in the LEGAL file.
(c) Representations.
Contributor represents that, except as disclosed pursuant to
Section 3.4(a) above, Contributor believes that Contributor's
Modifications are Contributor's original creation(s) and/or
Contributor has sufficient rights to grant the rights conveyed by
this License.
3.5. Required Notices.
You must duplicate the notice in Exhibit A in each file of the Source
Code. If it is not possible to put such notice in a particular Source
Code file due to its structure, then You must include such notice in a
location (such as a relevant directory) where a user would be likely
to look for such a notice. If You created one or more Modification(s)
You may add your name as a Contributor to the notice described in
Exhibit A. You must also duplicate this License in any documentation
for the Source Code where You describe recipients' rights or ownership
rights relating to Covered Code. You may choose to offer, and to
charge a fee for, warranty, support, indemnity or liability
obligations to one or more recipients of Covered Code. However, You
may do so only on Your own behalf, and not on behalf of the Initial
Developer or any Contributor. You must make it absolutely clear than
any such warranty, support, indemnity or liability obligation is
offered by You alone, and You hereby agree to indemnify the Initial
Developer and every Contributor for any liability incurred by the
Initial Developer or such Contributor as a result of warranty,
support, indemnity or liability terms You offer.
3.6. Distribution of Executable Versions.
You may distribute Covered Code in Executable form only if the
requirements of Section 3.1-3.5 have been met for that Covered Code,
and if You include a notice stating that the Source Code version of
the Covered Code is available under the terms of this License,
including a description of how and where You have fulfilled the
obligations of Section 3.2. The notice must be conspicuously included
in any notice in an Executable version, related documentation or
collateral in which You describe recipients' rights relating to the
Covered Code. You may distribute the Executable version of Covered
Code or ownership rights under a license of Your choice, which may
contain terms different from this License, provided that You are in
compliance with the terms of this License and that the license for the
Executable version does not attempt to limit or alter the recipient's
rights in the Source Code version from the rights set forth in this
License. If You distribute the Executable version under a different
license You must make it absolutely clear that any terms which differ
from this License are offered by You alone, not by the Initial
Developer or any Contributor. You hereby agree to indemnify the
Initial Developer and every Contributor for any liability incurred by
the Initial Developer or such Contributor as a result of any such
terms You offer.
3.7. Larger Works.
You may create a Larger Work by combining Covered Code with other code
not governed by the terms of this License and distribute the Larger
Work as a single product. In such a case, You must make sure the
requirements of this License are fulfilled for the Covered Code.
4. Inability to Comply Due to Statute or Regulation.
If it is impossible for You to comply with any of the terms of this
License with respect to some or all of the Covered Code due to
statute, judicial order, or regulation then You must: (a) comply with
the terms of this License to the maximum extent possible; and (b)
describe the limitations and the code they affect. Such description
must be included in the LEGAL file described in Section 3.4 and must
be included with all distributions of the Source Code. Except to the
extent prohibited by statute or regulation, such description must be
sufficiently detailed for a recipient of ordinary skill to be able to
understand it.
5. Application of this License.
This License applies to code to which the Initial Developer has
attached the notice in Exhibit A and to related Covered Code.
6. Versions of the License.
6.1. New Versions.
Netscape Communications Corporation ("Netscape") may publish revised
and/or new versions of the License from time to time. Each version
will be given a distinguishing version number.
6.2. Effect of New Versions.
Once Covered Code has been published under a particular version of the
License, You may always continue to use it under the terms of that
version. You may also choose to use such Covered Code under the terms
of any subsequent version of the License published by Netscape. No one
other than Netscape has the right to modify the terms applicable to
Covered Code created under this License.
6.3. Derivative Works.
If You create or use a modified version of this License (which you may
only do in order to apply it to code which is not already Covered Code
governed by this License), You must (a) rename Your license so that
the phrases "Mozilla", "MOZILLAPL", "MOZPL", "Netscape",
"MPL", "NPL" or any confusingly similar phrase do not appear in your
license (except to note that your license differs from this License)
and (b) otherwise make it clear that Your version of the license
contains terms which differ from the Mozilla Public License and
Netscape Public License. (Filling in the name of the Initial
Developer, Original Code or Contributor in the notice described in
Exhibit A shall not of themselves be deemed to be modifications of
this License.)
7. DISCLAIMER OF WARRANTY.
COVERED CODE IS PROVIDED UNDER THIS LICENSE ON AN "AS IS" BASIS,
WITHOUT WARRANTY OF ANY KIND, EITHER EXPRESSED OR IMPLIED, INCLUDING,
WITHOUT LIMITATION, WARRANTIES THAT THE COVERED CODE IS FREE OF
DEFECTS, MERCHANTABLE, FIT FOR A PARTICULAR PURPOSE OR NON-INFRINGING.
THE ENTIRE RISK AS TO THE QUALITY AND PERFORMANCE OF THE COVERED CODE
IS WITH YOU. SHOULD ANY COVERED CODE PROVE DEFECTIVE IN ANY RESPECT,
YOU (NOT THE INITIAL DEVELOPER OR ANY OTHER CONTRIBUTOR) ASSUME THE
COST OF ANY NECESSARY SERVICING, REPAIR OR CORRECTION. THIS DISCLAIMER
OF WARRANTY CONSTITUTES AN ESSENTIAL PART OF THIS LICENSE. NO USE OF
ANY COVERED CODE IS AUTHORIZED HEREUNDER EXCEPT UNDER THIS DISCLAIMER.
8. TERMINATION.
8.1. This License and the rights granted hereunder will terminate
automatically if You fail to comply with terms herein and fail to cure
such breach within 30 days of becoming aware of the breach. All
sublicenses to the Covered Code which are properly granted shall
survive any termination of this License. Provisions which, by their
nature, must remain in effect beyond the termination of this License
shall survive.
8.2. If You initiate litigation by asserting a patent infringement
claim (excluding declatory judgment actions) against Initial Developer
or a Contributor (the Initial Developer or Contributor against whom
You file such action is referred to as "Participant") alleging that:
(a) such Participant's Contributor Version directly or indirectly
infringes any patent, then any and all rights granted by such
Participant to You under Sections 2.1 and/or 2.2 of this License
shall, upon 60 days notice from Participant terminate prospectively,
unless if within 60 days after receipt of notice You either: (i)
agree in writing to pay Participant a mutually agreeable reasonable
royalty for Your past and future use of Modifications made by such
Participant, or (ii) withdraw Your litigation claim with respect to
the Contributor Version against such Participant. If within 60 days
of notice, a reasonable royalty and payment arrangement are not
mutually agreed upon in writing by the parties or the litigation claim
is not withdrawn, the rights granted by Participant to You under
Sections 2.1 and/or 2.2 automatically terminate at the expiration of
the 60 day notice period specified above.
(b) any software, hardware, or device, other than such Participant's
Contributor Version, directly or indirectly infringes any patent, then
any rights granted to You by such Participant under Sections 2.1(b)
and 2.2(b) are revoked effective as of the date You first made, used,
sold, distributed, or had made, Modifications made by that
Participant.
8.3. If You assert a patent infringement claim against Participant
alleging that such Participant's Contributor Version directly or
indirectly infringes any patent where such claim is resolved (such as
by license or settlement) prior to the initiation of patent
infringement litigation, then the reasonable value of the licenses
granted by such Participant under Sections 2.1 or 2.2 shall be taken
into account in determining the amount or value of any payment or
license.
8.4. In the event of termination under Sections 8.1 or 8.2 above,
all end user license agreements (excluding distributors and resellers)
which have been validly granted by You or any distributor hereunder
prior to termination shall survive termination.
9. LIMITATION OF LIABILITY.
UNDER NO CIRCUMSTANCES AND UNDER NO LEGAL THEORY, WHETHER TORT
(INCLUDING NEGLIGENCE), CONTRACT, OR OTHERWISE, SHALL YOU, THE INITIAL
DEVELOPER, ANY OTHER CONTRIBUTOR, OR ANY DISTRIBUTOR OF COVERED CODE,
OR ANY SUPPLIER OF ANY OF SUCH PARTIES, BE LIABLE TO ANY PERSON FOR
ANY INDIRECT, SPECIAL, INCIDENTAL, OR CONSEQUENTIAL DAMAGES OF ANY
CHARACTER INCLUDING, WITHOUT LIMITATION, DAMAGES FOR LOSS OF GOODWILL,
WORK STOPPAGE, COMPUTER FAILURE OR MALFUNCTION, OR ANY AND ALL OTHER
COMMERCIAL DAMAGES OR LOSSES, EVEN IF SUCH PARTY SHALL HAVE BEEN
INFORMED OF THE POSSIBILITY OF SUCH DAMAGES. THIS LIMITATION OF
LIABILITY SHALL NOT APPLY TO LIABILITY FOR DEATH OR PERSONAL INJURY
RESULTING FROM SUCH PARTY'S NEGLIGENCE TO THE EXTENT APPLICABLE LAW
PROHIBITS SUCH LIMITATION. SOME JURISDICTIONS DO NOT ALLOW THE
EXCLUSION OR LIMITATION OF INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO
THIS EXCLUSION AND LIMITATION MAY NOT APPLY TO YOU.
10. U.S. GOVERNMENT END USERS.
The Covered Code is a "commercial item," as that term is defined in
48 C.F.R. 2.101 (Oct. 1995), consisting of "commercial computer
software" 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 Covered Code with only those
rights set forth herein.
11. MISCELLANEOUS.
This License represents the complete agreement concerning subject
matter hereof. If any provision of this License is held to be
unenforceable, such provision shall be reformed only to the extent
necessary to make it enforceable. This License shall be governed by
California law provisions (except to the extent applicable law, if
any, provides otherwise), excluding its conflict-of-law provisions.
With respect to disputes in which at least one party is a citizen of,
or an entity chartered or registered to do business in the United
States of America, any litigation relating to this License shall be
subject to the jurisdiction of the Federal Courts of the Northern
District of California, with venue lying in Santa Clara County,
California, with the losing party responsible for costs, including
without limitation, court costs and reasonable attorneys' fees and
expenses. The application of the United Nations Convention on
Contracts for the International Sale of Goods is expressly excluded.
Any law or regulation which provides that the language of a contract
shall be construed against the drafter shall not apply to this
License.
12. RESPONSIBILITY FOR CLAIMS.
As between Initial Developer and the Contributors, each party is
responsible for claims and damages arising, directly or indirectly,
out of its utilization of rights under this License and You agree to
work with Initial Developer and Contributors to distribute such
responsibility on an equitable basis. Nothing herein is intended or
shall be deemed to constitute any admission of liability.
13. MULTIPLE-LICENSED CODE.
Initial Developer may designate portions of the Covered Code as
"Multiple-Licensed". "Multiple-Licensed" means that the Initial
Developer permits you to utilize portions of the Covered Code under
Your choice of the NPL or the alternative licenses, if any, specified
by the Initial Developer in the file described in Exhibit A.
EXHIBIT A -Mozilla Public License.
``The contents of this file are subject to the Mozilla Public License
Version 1.1 (the "License"); you may not use this file except in
compliance with the License. You may obtain a copy of the License at
http://www.mozilla.org/MPL/
Software distributed under the License is distributed on an "AS IS"
basis, WITHOUT WARRANTY OF ANY KIND, either express or implied. See the
License for the specific language governing rights and limitations
under the License.
The Original Code is ______________________________________.
The Initial Developer of the Original Code is ________________________.
Portions created by ______________________ are Copyright (C) ______
_______________________. All Rights Reserved.
Contributor(s): ______________________________________.
Alternatively, the contents of this file may be used under the terms
of the _____ license (the "[___] License"), in which case the
provisions of [______] License are applicable instead of those
above. If you wish to allow use of your version of this file only
under the terms of the [____] License and not to allow others to use
your version of this file under the MPL, indicate your decision by
deleting the provisions above and replace them with the notice and
other provisions required by the [___] License. If you do not delete
the provisions above, a recipient may use your version of this file
under either the MPL or the [___] License."
[NOTE: The text of this Exhibit A may differ slightly from the text of
the notices in the Source Code files of the Original Code. You should
use the text of this Exhibit A rather than the text found in the
Original Code Source Code for Your Modifications.]
--------------------------------------------------------------------------
SGI FREE SOFTWARE LICENSE B (Version 1.1 [02/22/2000])
1. Definitions.
1.1. "Additional Notice Provisions" means such additional
provisions as appear in the Notice in Original Code under the heading
"Additional Notice Provisions."
1.2. "Covered Code" means the Original Code or Modifications, or
any combination thereof.
1.3. "Hardware" means any physical device that accepts input,
processes input, stores the results of processing, and/or provides
output.
1.4. "Larger Work" means a work that combines Covered Code or
portions thereof with code not governed by the terms of this License.
1.5. "Licensable" means having the right to grant, to the maximum
extent possible, whether at the time of the initial grant or
subsequently acquired, any and all of the rights conveyed herein.
1.6. "License" means this document.
1.7. "Licensed Patents" means patent claims Licensable by SGI that
are infringed by the use or sale of Original Code or any Modifications
provided by SGI, or any combination thereof.
1.8. "Modifications" means any addition to or deletion from the
substance or structure of the Original Code or any previous
Modifications. When Covered Code is released as a series of files, a
Modification is:
A. Any addition to the contents of a file containing Original Code
and/or addition to or deletion from the contents of a file containing
previous Modifications.
B. Any new file that contains any part of the Original Code or
previous Modifications.
1.9. "Notice" means any notice in Original Code or Covered Code,
as required by and in compliance with this License.
1.10. "Original Code" means source code of computer software code
that is described in the source code Notice required by Exhibit A as
Original Code, and updates and error corrections specifically thereto.
1.11. "Recipient" means an individual or a legal entity exercising
rights under, and complying with all of the terms of, this License or
a future version of this License issued under Section 8. For legal
entities, "Recipient" includes any entity that controls, is controlled
by, or is under common control with Recipient. For purposes of this
definition, "control" of an entity means (a) the power, direct or
indirect, to direct or manage such entity, or (b) ownership of fifty
percent (50%) or more of the outstanding shares or beneficial
ownership of such entity.
1.12. "Recipient Patents" means patent claims Licensable by a
Recipient that are infringed by the use or sale of Original Code or
any Modifications provided by SGI, or any combination thereof.
1.13. "SGI" means Silicon Graphics, Inc.
1.14. "SGI Patents" means patent claims Licensable by SGI other
than the Licensed Patents.
2. License Grant and Restrictions.
2.1. SGI License Grant. Subject to the terms of this License and
any third party intellectual property claims, for the duration of
intellectual property protections inherent in the Original Code, SGI
hereby grants Recipient a worldwide, royalty-free, non-exclusive
license, to do the following: (i) under copyrights Licensable by SGI,
to reproduce, distribute, create derivative works from, and, to the
extent applicable, display and perform the Original Code and/or any
Modifications provided by SGI alone and/or as part of a Larger Work;
and (ii) under any Licensable Patents, to make, have made, use, sell,
offer for sale, import and/or otherwise transfer the Original Code
and/or any Modifications provided by SGI. Recipient accepts the terms
and conditions of this License by undertaking any of the
aforementioned actions. The patent license shall apply to the Covered
Code if, at the time any related Modification is added, such addition
of the Modification causes such combination to be covered by the
Licensed Patents. The patent license in Section 2.1(ii) shall not
apply to any other combinations that include the Modification. No
patent license is provided under SGI Patents for infringements of SGI
Patents by Modifications not provided by SGI or combinations of
Original Code and Modifications not provided by SGI.
2.2. Recipient License Grant. Subject to the terms of this License
and any third party intellectual property claims, Recipient hereby
grants SGI and any other Recipients a worldwide, royalty-free,
non-exclusive license, under any Recipient Patents, to make, have
made, use, sell, offer for sale, import and/or otherwise transfer the
Original Code and/or any Modifications provided by SGI.
2.3. No License For Hardware Implementations. The licenses granted
in Section 2.1 and 2.2 are not applicable to implementation in
Hardware of the algorithms embodied in the Original Code or any
Modifications provided by SGI .
3. Redistributions.
3.1. Retention of Notice/Copy of License. The Notice set forth in
Exhibit A, below, must be conspicuously retained or included in any
and all redistributions of Covered Code. For distributions of the
Covered Code in source code form, the Notice must appear in every file
that can include a text comments field; in executable form, the Notice
and a copy of this License must appear in related documentation or
collateral where the Recipient's rights relating to Covered Code are
described. Any Additional Notice Provisions which actually appears in
the Original Code must also be retained or included in any and all
redistributions of Covered Code.
3.2. Alternative License. Provided that Recipient is in compliance
with the terms of this License, Recipient may, so long as without
derogation of any of SGI's rights in and to the Original Code,
distribute the source code and/or executable version(s) of Covered
Code under (1) this License; (2) a license identical to this License
but for only such changes as are necessary in order to clarify
Recipient's role as licensor of Modifications; and/or (3) a license of
Recipient's choosing, containing terms different from this License,
provided that the license terms include this Section 3 and Sections 4,
6, 7, 10, 12, and 13, which terms may not be modified or superseded by
any other terms of such license. If Recipient elects to use any
license other than this License, Recipient must make it absolutely
clear that any of its terms which differ from this License are offered
by Recipient alone, and not by SGI. It is emphasized that this License
is a limited license, and, regardless of the license form employed by
Recipient in accordance with this Section 3.2, Recipient may relicense
only such rights, in Original Code and Modifications by SGI, as it has
actually been granted by SGI in this License.
3.3. Indemnity. Recipient hereby agrees to indemnify SGI for any
liability incurred by SGI as a result of any such alternative license
terms Recipient offers.
4. Termination. This License and the rights granted hereunder will
terminate automatically if Recipient breaches any term herein and
fails to cure such breach within 30 days thereof. Any sublicense to
the Covered Code that is properly granted shall survive any
termination of this License, absent termination by the terms of such
sublicense. Provisions that, by their nature, must remain in effect
beyond the termination of this License, shall survive.
5. No Trademark Or Other Rights. This License does not grant any
rights to: (i) any software apart from the Covered Code, nor shall any
other rights or licenses not expressly granted hereunder arise by
implication, estoppel or otherwise with respect to the Covered Code;
(ii) any trade name, trademark or service mark whatsoever, including
without limitation any related right for purposes of endorsement or
promotion of products derived from the Covered Code, without prior
written permission of SGI; or (iii) any title to or ownership of the
Original Code, which shall at all times remains with SGI. All rights
in the Original Code not expressly granted under this License are
reserved.
6. Compliance with Laws; Non-Infringement. There are various worldwide
laws, regulations, and executive orders applicable to dispositions of
Covered Code, including without limitation export, re-export, and
import control laws, regulations, and executive orders, of the U.S.
government and other countries, and Recipient is reminded it is
obliged to obey such laws, regulations, and executive orders.
Recipient may not distribute Covered Code that (i) in any way
infringes (directly or contributorily) any intellectual property
rights of any kind of any other person or entity or (ii) breaches any
representation or warranty, express, implied or statutory, to which,
under any applicable law, it might be deemed to have been subject.
7. Claims of Infringement. If Recipient learns of any third party
claim that any disposition of Covered Code and/or functionality wholly
or partially infringes the third party's intellectual property rights,
Recipient will promptly notify SGI of such claim.
8. Versions of the License. SGI may publish revised and/or new
versions of the License from time to time, each with a distinguishing
version number. Once Covered Code has been published under a
particular version of the License, Recipient may, for the duration of
the license, continue to use it under the terms of that version, or
choose to use such Covered Code under the terms of any subsequent
version published by SGI. Subject to the provisions of Sections 3 and
4 of this License, only SGI may modify the terms applicable to Covered
Code created under this License.
9. DISCLAIMER OF WARRANTY. COVERED CODE IS PROVIDED "AS IS." ALL
EXPRESS AND IMPLIED WARRANTIES AND CONDITIONS ARE DISCLAIMED,
INCLUDING, WITHOUT LIMITATION, ANY IMPLIED WARRANTIES AND CONDITIONS
OF MERCHANTABILITY, SATISFACTORY QUALITY, FITNESS FOR A PARTICULAR
PURPOSE, AND NON-INFRINGEMENT. SGI ASSUMES NO RISK AS TO THE QUALITY
AND PERFORMANCE OF THE SOFTWARE. SHOULD THE SOFTWARE PROVE DEFECTIVE
IN ANY RESPECT, SGI ASSUMES NO COST OR LIABILITY FOR SERVICING, REPAIR
OR CORRECTION. THIS DISCLAIMER OF WARRANTY IS AN ESSENTIAL PART OF
THIS LICENSE. NO USE OF ANY COVERED CODE IS AUTHORIZED HEREUNDER
EXCEPT SUBJECT TO THIS DISCLAIMER.
10. LIMITATION OF LIABILITY. UNDER NO CIRCUMSTANCES NOR LEGAL THEORY,
WHETHER TORT (INCLUDING, WITHOUT LIMITATION, NEGLIGENCE OR STRICT
LIABILITY), CONTRACT, OR OTHERWISE, SHALL SGI OR ANY SGI LICENSOR BE
LIABLE FOR ANY DIRECT, INDIRECT, SPECIAL, INCIDENTAL, OR CONSEQUENTIAL
DAMAGES OF ANY CHARACTER INCLUDING, WITHOUT LIMITATION, DAMAGES FOR
LOSS OF GOODWILL, WORK STOPPAGE, LOSS OF DATA, COMPUTER FAILURE OR
MALFUNCTION, OR ANY AND ALL OTHER COMMERCIAL DAMAGES OR LOSSES, EVEN
IF SUCH PARTY SHALL HAVE BEEN INFORMED OF THE POSSIBILITY OF SUCH
DAMAGES. THIS LIMITATION OF LIABILITY SHALL NOT APPLY TO LIABILITY FOR
DEATH OR PERSONAL INJURY RESULTING FROM SGI's NEGLIGENCE TO THE EXTENT
APPLICABLE LAW PROHIBITS SUCH LIMITATION. SOME JURISDICTIONS DO NOT
ALLOW THE EXCLUSION OR LIMITATION OF INCIDENTAL OR CONSEQUENTIAL
DAMAGES, SO THAT EXCLUSION AND LIMITATION MAY NOT APPLY TO RECIPIENT.
11. Indemnity. Recipient shall be solely responsible for damages
arising, directly or indirectly, out of its utilization of rights
under this License. Recipient will defend, indemnify and hold harmless
Silicon Graphics, Inc. from and against any loss, liability, damages,
costs or expenses (including the payment of reasonable attorneys fees)
arising out of Recipient's use, modification, reproduction and
distribution of the Covered Code or out of any representation or
warranty made by Recipient.
12. U.S. Government End Users. The Covered Code is a "commercial item"
consisting of "commercial computer software" as such terms are defined
in title 48 of the Code of Federal Regulations and all U.S. Government
End Users acquire only the rights set forth in this License and are
subject to the terms of this License.
13. Miscellaneous. This License represents the complete agreement
concerning the its subject matter. If any provision of this License is
held to be unenforceable, such provision shall be reformed so as to
achieve as nearly as possible the same legal and economic effect as
the original provision and the remainder of this License will remain
in effect. This License shall be governed by and construed in
accordance with 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. Any
litigation relating to this License shall be subject to the exclusive
jurisdiction of the Federal Courts of the Northern District of
California (or, absent subject matter jurisdiction in such courts, the
courts of the State of California), with venue lying exclusively in
Santa Clara County, California, with the losing party responsible for
costs, including without limitation, court costs and reasonable
attorneys fees and expenses. The application of the United Nations
Convention on Contracts for the International Sale of Goods is
expressly excluded. Any law or regulation that provides that the
language of a contract shall be construed against the drafter shall
not apply to this License.
Exhibit A
License Applicability. Except to the extent portions of this file are
made subject to an alternative license as permitted in the SGI Free
Software License B, Version 1.1 (the "License"), the contents of this
file are subject only to the provisions of the License. You may not
use this file except in compliance with the License. You may obtain a
copy of the License at Silicon Graphics, Inc., attn: Legal Services,
1600 Amphitheatre Parkway, Mountain View, CA 94043-1351, or at:
[13]http://oss.sgi.com/projects/FreeB
Note that, as provided in the License, the Software is distributed on
an "AS IS" basis, with ALL EXPRESS AND IMPLIED WARRANTIES AND
CONDITIONS DISCLAIMED, INCLUDING, WITHOUT LIMITATION, ANY IMPLIED
WARRANTIES AND CONDITIONS OF MERCHANTABILITY, SATISFACTORY QUALITY,
FITNESS FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT.
Original Code. The Original Code is: [name of software, version
number, and release date], developed by Silicon Graphics, Inc. The
Original Code is Copyright (c) [dates of first publication, as
appearing in the Notice in the Original Code] Silicon Graphics, Inc.
Copyright in any portions created by third parties is as indicated
elsewhere herein. All Rights Reserved.
Additional Notice Provisions: [such additional provisions, if any, as
appear in the Notice in the Original Code under the heading
"Additional Notice Provisions"]
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