Hi folks, Is the IBM Common Public Licence version 1.0 (below) considered DFSG-free? The intent generally looks reasonable, but I am unsure about - the patent issues - the "Indemnified Contributor" stuff which would apply to commercial distribution. This might be an optional undertaking, but I'm not sure the wording is clear I'm not subscribed to -legal, so I would appreciate a CC on any replies. Thanks, Roger
Common Public License - v 1.0
THE ACCOMPANYING PROGRAM IS PROVIDED UNDER THE TERMS OF THIS COMMON
PUBLIC LICENSE ("AGREEMENT"). ANY USE, REPRODUCTION OR DISTRIBUTION OF
THE PROGRAM CONSTITUTES RECIPIENT'S ACCEPTANCE OF THIS AGREEMENT.
1. DEFINITIONS
"Contribution" means:
a) in the case of the initial Contributor, the initial code and
documentation distributed under this Agreement, and
b) in the case of each subsequent Contributor:
i) changes to the Program, and
ii) additions to the Program;
where such changes and/or additions to the Program originate from and are
distributed by that particular Contributor. A Contribution 'originates'
From a Contributor if it was added to the Program by such Contributor
itself or anyone acting on such Contributor's behalf. Contributions do
not include additions to the Program which: (i) are separate modules of
software distributed in conjunction with the Program under their own
license agreement, and (ii) are not derivative works of the Program.
"Contributor" means any person or entity that distributes the Program.
"Licensed Patents " mean patent claims licensable by a Contributor which
are necessarily infringed by the use or sale of its Contribution alone or
when combined with the Program.
"Program" means the Contributions distributed in accordance with this
Agreement.
"Recipient" means anyone who receives the Program under this Agreement,
including all Contributors.
2. GRANT OF RIGHTS
a) Subject to the terms of this Agreement, each Contributor hereby grants
Recipient a non-exclusive, worldwide, royalty-free copyright license to
reproduce, prepare derivative works of, publicly display, publicly
perform, distribute and sublicense the Contribution of such Contributor,
if any, and such derivative works, in source code and object code form.
b) Subject to the terms of this Agreement, each Contributor hereby grants
Recipient a non-exclusive, worldwide, royalty-free patent license under
Licensed Patents to make, use, sell, offer to sell, import and otherwise
transfer the Contribution of such Contributor, if any, in source code and
object code form. This patent license shall apply to the combination of
the Contribution and the Program if, at the time the Contribution is
added by the Contributor, such addition of the Contribution causes such
combination to be covered by the Licensed Patents. The patent license
shall not apply to any other combinations which include the Contribution.
No hardware per se is licensed hereunder.
c) Recipient understands that although each Contributor grants the
licenses to its Contributions set forth herein, no assurances are
provided by any Contributor that the Program does not infringe the patent
or other intellectual property rights of any other entity. Each
Contributor disclaims any liability to Recipient for claims brought by
any other entity based on infringement of intellectual property rights or
otherwise. As a condition to exercising the rights and licenses granted
hereunder, each Recipient hereby assumes sole responsibility to secure
any other intellectual property rights needed, if any. For example, if a
third party patent license is required to allow Recipient to distribute
the Program, it is Recipient's responsibility to acquire that license
before distributing the Program.
d) Each Contributor represents that to its knowledge it has sufficient
copyright rights in its Contribution, if any, to grant the copyright
license set forth in this Agreement.
3. REQUIREMENTS
A Contributor may choose to distribute the Program in object code form
under its own license agreement, provided that:
a) it complies with the terms and conditions of this Agreement; and
b) its license agreement:
i) effectively disclaims on behalf of all Contributors all warranties and
conditions, express and implied, including warranties or conditions of
title and non-infringement, and implied warranties or conditions of
merchantability and fitness for a particular purpose;
ii) effectively excludes on behalf of all Contributors all liability for
damages, including direct, indirect, special, incidental and
consequential damages, such as lost profits;
iii) states that any provisions which differ from this Agreement are
offered by that Contributor alone and not by any other party; and
iv) states that source code for the Program is available from such
Contributor, and informs licensees how to obtain it in a reasonable
manner on or through a medium customarily used for software exchange.
When the Program is made available in source code form:
a) it must be made available under this Agreement; and
b) a copy of this Agreement must be included with each copy of the
Program.
Contributors may not remove or alter any copyright notices contained
within the Program.
Each Contributor must identify itself as the originator of its
Contribution, if any, in a manner that reasonably allows subsequent
Recipients to identify the originator of the Contribution.
4. COMMERCIAL DISTRIBUTION
Commercial distributors of software may accept certain responsibilities
with respect to end users, business partners and the like. While this
license is intended to facilitate the commercial use of the Program, the
Contributor who includes the Program in a commercial product offering
should do so in a manner which does not create potential liability for
other Contributors. Therefore, if a Contributor includes the Program in a
commercial product offering, such Contributor ("Commercial Contributor")
hereby agrees to defend and indemnify every other Contributor
("Indemnified Contributor") against any losses, damages and costs
(collectively "Losses") arising from claims, lawsuits and other legal
actions brought by a third party against the Indemnified Contributor to
the extent caused by the acts or omissions of such Commercial Contributor
in connection with its distribution of the Program in a commercial
product offering. The obligations in this section do not apply to any
claims or Losses relating to any actual or alleged intellectual property
infringement. In order to qualify, an Indemnified Contributor must: a)
promptly notify the Commercial Contributor in writing of such claim, and
b) allow the Commercial Contributor to control, and cooperate with the
Commercial Contributor in, the defense and any related settlement
negotiations. The Indemnified Contributor may participate in any such
claim at its own expense.
For example, a Contributor might include the Program in a commercial
product offering, Product X. That Contributor is then a Commercial
Contributor. If that Commercial Contributor then makes performance
claims, or offers warranties related to Product X, those performance
claims and warranties are such Commercial Contributor's responsibility
alone. Under this section, the Commercial Contributor would have to
defend claims against the other Contributors related to those performance
claims and warranties, and if a court requires any other Contributor to
pay any damages as a result, the Commercial Contributor must pay those
damages.
5. NO WARRANTY
EXCEPT AS EXPRESSLY SET FORTH IN THIS AGREEMENT, THE PROGRAM IS PROVIDED
ON AN "AS IS" BASIS, WITHOUT WARRANTIES OR CONDITIONS OF ANY KIND, EITHER
EXPRESS OR IMPLIED INCLUDING, WITHOUT LIMITATION, ANY WARRANTIES OR
CONDITIONS OF TITLE, NON-INFRINGEMENT, MERCHANTABILITY OR FITNESS FOR A
PARTICULAR PURPOSE. Each Recipient is solely responsible for determining
the appropriateness of using and distributing the Program and assumes all
risks associated with its exercise of rights under this Agreement,
including but not limited to the risks and costs of program errors,
compliance with applicable laws, damage to or loss of data, programs or
equipment, and unavailability or interruption of operations.
6. DISCLAIMER OF LIABILITY
EXCEPT AS EXPRESSLY SET FORTH IN THIS AGREEMENT, NEITHER RECIPIENT NOR
ANY CONTRIBUTORS SHALL HAVE ANY LIABILITY FOR ANY DIRECT, INDIRECT,
INCIDENTAL, SPECIAL, EXEMPLARY, OR CONSEQUENTIAL DAMAGES (INCLUDING
WITHOUT LIMITATION LOST PROFITS), HOWEVER CAUSED AND ON ANY THEORY OF
LIABILITY, WHETHER IN CONTRACT, STRICT LIABILITY, OR TORT (INCLUDING
NEGLIGENCE OR OTHERWISE) ARISING IN ANY WAY OUT OF THE USE OR
DISTRIBUTION OF THE PROGRAM OR THE EXERCISE OF ANY RIGHTS GRANTED
HEREUNDER, EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
7. GENERAL
If any provision of this Agreement is invalid or unenforceable under
applicable law, it shall not affect the validity or enforceability of the
remainder of the terms of this Agreement, and without further action by
the parties hereto, such provision shall be reformed to the minimum
extent necessary to make such provision valid and enforceable.
If Recipient institutes patent litigation against a Contributor with
respect to a patent applicable to software (including a cross-claim or
counterclaim in a lawsuit), then any patent licenses granted by that
Contributor to such Recipient under this Agreement shall terminate as of
the date such litigation is filed. In addition, if Recipient institutes
patent litigation against any entity (including a cross-claim or
counterclaim in a lawsuit) alleging that the Program itself (excluding
combinations of the Program with other software or hardware) infringes
such Recipient's patent(s), then such Recipient's rights granted under
Section 2(b) shall terminate as of the date such litigation is filed.
All Recipient's rights under this Agreement shall terminate if it fails
to comply with any of the material terms or conditions of this Agreement
and does not cure such failure in a reasonable period of time after
becoming aware of such noncompliance. If all Recipient's rights under
this Agreement terminate, Recipient agrees to cease use and distribution
of the Program as soon as reasonably practicable. However, Recipient's
obligations under this Agreement and any licenses granted by Recipient
relating to the Program shall continue and survive.
Everyone is permitted to copy and distribute copies of this Agreement,
but in order to avoid inconsistency the Agreement is copyrighted and may
only be modified in the following manner. The Agreement Steward reserves
the right to publish new versions (including revisions) of this Agreement
From time to time. No one other than the Agreement Steward has the right
to modify this Agreement. IBM is the initial Agreement Steward. IBM may
assign the responsibility to serve as the Agreement Steward to a suitable
separate entity. Each new version of the Agreement will be given a
distinguishing version number. The Program (including Contributions) may
always be distributed subject to the version of the Agreement under which
it was received. In addition, after a new version of the Agreement is
published, Contributor may elect to distribute the Program (including its
Contributions) under the new version. Except as expressly stated in
Sections 2(a) and 2(b) above, Recipient receives no rights or licenses to
the intellectual property of any Contributor under this Agreement,
whether expressly, by implication, estoppel or otherwise. All rights in
the Program not expressly granted under this Agreement are reserved.
This Agreement is governed by the laws of the State of New York and the
intellectual property laws of the United States of America. No party to
this Agreement will bring a legal action under this Agreement more than
one year after the cause of action arose. Each party waives its rights to
a jury trial in any resulting litigation.
--
Roger Leigh
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