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.
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.