THE ACCOMPANYING PROGRAM
IS PROVIDED UNDER THE TERMS OF THIS HUBSPAN PUBLIC LICENSE
("AGREEMENT"). ANY USE, REPRODUCTION OR DISTRIBUTION OF THE PROGRAM
CONSTITUTES RECIPIENT'S ACCEPTANCE OF THIS AGREEMENT.
"Contribution"
means:
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 HUBSPAN and any other 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.
"Original
Program" means the original version of the software accompanying this
Agreement as released by HUBSPAN, including source code, object code and
documentation, if any.
"Program" means
the Original Program and Contributions.
"Recipient"
means anyone who receives the Program under this Agreement, including all
Contributors.
A Contributor may choose
to distribute the Program in object code form under its own license agreement,
provided that:
When the Program is made
available in source code form:
Each Contributor must
include the following in a conspicuous location in the Program:
Copyright © 2003 Hubspan Corporation and others. All Rights Reserved.
In addition, 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.
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.
All Software and technical data
delivered under this Agreement are subject to U.S. export and re-export control
laws and may be subject to export or import laws in other countries. You agree to comply fully with all applicable
U.S. and non-U.S. laws, including without limitation the U.S. Export
Administration Regulations and the regulations administered by the U.S.
Treasury Department’s Office of Foreign Assets Control. You agree not to export, re-export, import,
or transfer the Software or technical data to any destination, person, or
entity, or for any activity or use
prohibited under the applicable laws or regulations of the United States or any
other country without obtaining prior authorization from the competent government
authorities as required by those laws and regulations.
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.
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.
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.
HUBSPAN may publish new
versions (including revisions) of this Agreement from time to time. 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. No one other than
HUBSPAN has the right to modify this Agreement. 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 Washington 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.