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No hardware per se is licensed 337*8a805b61SRob Weir hereunder. 338*8a805b61SRob Weir 339*8a805b61SRob Weir c) Recipient understands that although each Contributor grants the 340*8a805b61SRob Weir licenses to its Contributions set forth herein, no assurances are 341*8a805b61SRob Weir provided by any Contributor that the Program does not infringe the 342*8a805b61SRob Weir patent or other intellectual property rights of any other entity. 343*8a805b61SRob Weir Each Contributor disclaims any liability to Recipient for claims 344*8a805b61SRob Weir brought by any other entity based on infringement of intellectual 345*8a805b61SRob Weir property rights or otherwise. As a condition to exercising the rights 346*8a805b61SRob Weir and licenses granted hereunder, each Recipient hereby assumes sole 347*8a805b61SRob Weir responsibility to secure any other intellectual property rights 348*8a805b61SRob Weir needed, if any. For example, if a third party patent license is 349*8a805b61SRob Weir required to allow Recipient to distribute the Program, it is 350*8a805b61SRob Weir Recipient's responsibility to acquire that license before 351*8a805b61SRob Weir distributing the Program. 352*8a805b61SRob Weir 353*8a805b61SRob Weir d) Each Contributor represents that to its knowledge it has sufficient 354*8a805b61SRob Weir copyright rights in its Contribution, if any, to grant the copyright 355*8a805b61SRob Weir license set forth in this Agreement. 356*8a805b61SRob Weir 357*8a805b61SRob Weir 3. REQUIREMENTS 358*8a805b61SRob Weir 359*8a805b61SRob Weir A Contributor may choose to distribute the Program in object code form 360*8a805b61SRob Weir under its own license agreement, provided that: 361*8a805b61SRob Weir 362*8a805b61SRob Weir a) it complies with the terms and conditions of this Agreement; and 363*8a805b61SRob Weir 364*8a805b61SRob Weir b) its license agreement: 365*8a805b61SRob Weir 366*8a805b61SRob Weir i) effectively disclaims on behalf of all Contributors all warranties 367*8a805b61SRob Weir and conditions, express and implied, including warranties or 368*8a805b61SRob Weir conditions of title and non-infringement, and implied warranties 369*8a805b61SRob Weir or conditions of merchantability and fitness for a particular 370*8a805b61SRob Weir purpose; 371*8a805b61SRob Weir 372*8a805b61SRob Weir ii) effectively excludes on behalf of all Contributors all liability 373*8a805b61SRob Weir for damages, including direct, indirect, special, incidental and 374*8a805b61SRob Weir consequential damages, such as lost profits; 375*8a805b61SRob Weir 376*8a805b61SRob Weir iii) states that any provisions which differ from this Agreement are 377*8a805b61SRob Weir offered by that Contributor alone and not by any other party; and 378*8a805b61SRob Weir 379*8a805b61SRob Weir iv) states that source code for the Program is available from such 380*8a805b61SRob Weir Contributor, and informs licensees how to obtain it in a 381*8a805b61SRob Weir reasonable manner on or through a medium customarily used for 382*8a805b61SRob Weir software exchange. 383*8a805b61SRob Weir 384*8a805b61SRob Weir When the Program is made available in source code form: 385*8a805b61SRob Weir 386*8a805b61SRob Weir a) it must be made available under this Agreement; and 387*8a805b61SRob Weir 388*8a805b61SRob Weir b) a copy of this Agreement must be included with each copy of 389*8a805b61SRob Weir the Program. 390*8a805b61SRob Weir 391*8a805b61SRob Weir Contributors may not remove or alter any copyright notices contained 392*8a805b61SRob Weir within the Program. 393*8a805b61SRob Weir 394*8a805b61SRob Weir Each Contributor must identify itself as the originator of its 395*8a805b61SRob Weir Contribution, if any, in a manner that reasonably allows subsequent 396*8a805b61SRob Weir Recipients to identify the originator of the Contribution. 397*8a805b61SRob Weir 398*8a805b61SRob Weir 4. COMMERCIAL DISTRIBUTION 399*8a805b61SRob Weir 400*8a805b61SRob Weir Commercial distributors of software may accept certain responsibilities 401*8a805b61SRob Weir with respect to end users, business partners and the like. While this 402*8a805b61SRob Weir license is intended to facilitate the commercial use of the Program, 403*8a805b61SRob Weir the Contributor who includes the Program in a commercial product offering 404*8a805b61SRob Weir should do so in a manner which does not create potential liability for 405*8a805b61SRob Weir other Contributors. Therefore, if a Contributor includes the Program 406*8a805b61SRob Weir in a commercial product offering, such Contributor ("Commercial 407*8a805b61SRob Weir Contributor") hereby agrees to defend and indemnify every other 408*8a805b61SRob Weir Contributor ("Indemnified Contributor") against any losses, damages 409*8a805b61SRob Weir and costs (collectively "Losses") arising from claims, lawsuits and 410*8a805b61SRob Weir other legal actions brought by a third party against the Indemnified 411*8a805b61SRob Weir Contributor to the extent caused by the acts or omissions of such 412*8a805b61SRob Weir Commercial Contributor in connection with its distribution of the 413*8a805b61SRob Weir Program in a commercial product offering. The obligations in this 414*8a805b61SRob Weir section do not apply to any claims or Losses relating to any actual 415*8a805b61SRob Weir or alleged intellectual property infringement. In order to qualify, 416*8a805b61SRob Weir an Indemnified Contributor must: a) promptly notify the Commercial 417*8a805b61SRob Weir Contributor in writing of such claim, and b) allow the Commercial 418*8a805b61SRob Weir Contributor to control, and cooperate with the Commercial Contributor 419*8a805b61SRob Weir in, the defense and any related settlement negotiations. The Indemnified 420*8a805b61SRob Weir Contributor may participate in any such claim at its own expense. 421*8a805b61SRob Weir 422*8a805b61SRob Weir For example, a Contributor might include the Program in a commercial 423*8a805b61SRob Weir product offering, Product X. That Contributor is then a Commercial 424*8a805b61SRob Weir Contributor. If that Commercial Contributor then makes performance 425*8a805b61SRob Weir claims, or offers warranties related to Product X, those performance 426*8a805b61SRob Weir claims and warranties are such Commercial Contributor's responsibility 427*8a805b61SRob Weir alone. Under this section, the Commercial Contributor would have to 428*8a805b61SRob Weir defend claims against the other Contributors related to those 429*8a805b61SRob Weir performance claims and warranties, and if a court requires any other 430*8a805b61SRob Weir Contributor to pay any damages as a result, the Commercial Contributor 431*8a805b61SRob Weir must pay those damages. 432*8a805b61SRob Weir 433*8a805b61SRob Weir 5. NO WARRANTY 434*8a805b61SRob Weir 435*8a805b61SRob Weir EXCEPT AS EXPRESSLY SET FORTH IN THIS AGREEMENT, THE PROGRAM IS PROVIDED 436*8a805b61SRob Weir ON AN "AS IS" BASIS, WITHOUT WARRANTIES OR CONDITIONS OF ANY KIND, EITHER 437*8a805b61SRob Weir EXPRESS OR IMPLIED INCLUDING, WITHOUT LIMITATION, ANY WARRANTIES OR 438*8a805b61SRob Weir CONDITIONS OF TITLE, NON-INFRINGEMENT, MERCHANTABILITY OR FITNESS FOR 439*8a805b61SRob Weir A PARTICULAR PURPOSE. Each Recipient is solely responsible for 440*8a805b61SRob Weir determining the appropriateness of using and distributing the Program 441*8a805b61SRob Weir and assumes all risks associated with its exercise of rights under this 442*8a805b61SRob Weir Agreement, including but not limited to the risks and costs of program 443*8a805b61SRob Weir errors, compliance with applicable laws, damage to or loss of data, 444*8a805b61SRob Weir programs or equipment, and unavailability or interruption of operations. 445*8a805b61SRob Weir 446*8a805b61SRob Weir 6. DISCLAIMER OF LIABILITY 447*8a805b61SRob Weir 448*8a805b61SRob Weir EXCEPT AS EXPRESSLY SET FORTH IN THIS AGREEMENT, NEITHER RECIPIENT NOR 449*8a805b61SRob Weir ANY CONTRIBUTORS SHALL HAVE ANY LIABILITY FOR ANY DIRECT, INDIRECT, 450*8a805b61SRob Weir INCIDENTAL, SPECIAL, EXEMPLARY, OR CONSEQUENTIAL DAMAGES (INCLUDING 451*8a805b61SRob Weir WITHOUT LIMITATION LOST PROFITS), HOWEVER CAUSED AND ON ANY THEORY OF 452*8a805b61SRob Weir LIABILITY, WHETHER IN CONTRACT, STRICT LIABILITY, OR TORT (INCLUDING 453*8a805b61SRob Weir NEGLIGENCE OR OTHERWISE) ARISING IN ANY WAY OUT OF THE USE OR 454*8a805b61SRob Weir DISTRIBUTION OF THE PROGRAM OR THE EXERCISE OF ANY RIGHTS GRANTED 455*8a805b61SRob Weir HEREUNDER, EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. 456*8a805b61SRob Weir 457*8a805b61SRob Weir 7. GENERAL 458*8a805b61SRob Weir 459*8a805b61SRob Weir If any provision of this Agreement is invalid or unenforceable under 460*8a805b61SRob Weir applicable law, it shall not affect the validity or enforceability of 461*8a805b61SRob Weir the remainder of the terms of this Agreement, and without further 462*8a805b61SRob Weir action by the parties hereto, such provision shall be reformed to the 463*8a805b61SRob Weir minimum extent necessary to make such provision valid and enforceable. 464*8a805b61SRob Weir 465*8a805b61SRob Weir If Recipient institutes patent litigation against a Contributor with 466*8a805b61SRob Weir respect to a patent applicable to software (including a cross-claim or 467*8a805b61SRob Weir counterclaim in a lawsuit), then any patent licenses granted by that 468*8a805b61SRob Weir Contributor to such Recipient under this Agreement shall terminate as of 469*8a805b61SRob Weir the date such litigation is filed. In addition, if Recipient institutes 470*8a805b61SRob Weir patent litigation against any entity (including a cross-claim or 471*8a805b61SRob Weir counterclaim in a lawsuit) alleging that the Program itself (excluding 472*8a805b61SRob Weir combinations of the Program with other software or hardware) infringes 473*8a805b61SRob Weir such Recipient's patent(s), then such Recipient's rights granted under 474*8a805b61SRob Weir Section 2(b) shall terminate as of the date such litigation is filed. 475*8a805b61SRob Weir 476*8a805b61SRob Weir All Recipient's rights under this Agreement shall terminate if it fails 477*8a805b61SRob Weir to comply with any of the material terms or conditions of this Agreement 478*8a805b61SRob Weir and does not cure such failure in a reasonable period of time after 479*8a805b61SRob Weir becoming aware of such noncompliance. If all Recipient's rights under 480*8a805b61SRob Weir this Agreement terminate, Recipient agrees to cease use and distribution 481*8a805b61SRob Weir of the Program as soon as reasonably practicable. However, Recipient's 482*8a805b61SRob Weir obligations under this Agreement and any licenses granted by Recipient 483*8a805b61SRob Weir relating to the Program shall continue and survive. 484*8a805b61SRob Weir 485*8a805b61SRob Weir Everyone is permitted to copy and distribute copies of this Agreement, 486*8a805b61SRob Weir but in order to avoid inconsistency the Agreement is copyrighted and may 487*8a805b61SRob Weir only be modified in the following manner. The Agreement Steward reserves 488*8a805b61SRob Weir the right to publish new versions (including revisions) of this Agreement 489*8a805b61SRob Weir from time to time. No one other than the Agreement Steward has the right 490*8a805b61SRob Weir to modify this Agreement. IBM is the initial Agreement Steward. IBM may 491*8a805b61SRob Weir assign the responsibility to serve as the Agreement Steward to a suitable 492*8a805b61SRob Weir separate entity. Each new version of the Agreement will be given a 493*8a805b61SRob Weir distinguishing version number. The Program (including Contributions) may 494*8a805b61SRob Weir always be distributed subject to the version of the Agreement under which 495*8a805b61SRob Weir it was received. In addition, after a new version of the Agreement is 496*8a805b61SRob Weir published, Contributor may elect to distribute the Program (including 497*8a805b61SRob Weir its Contributions) under the new version. Except as expressly stated in 498*8a805b61SRob Weir Sections 2(a) and 2(b) above, Recipient receives no rights or licenses 499*8a805b61SRob Weir to the intellectual property of any Contributor under this Agreement, 500*8a805b61SRob Weir whether expressly, by implication, estoppel or otherwise. All rights in 501*8a805b61SRob Weir the Program not expressly granted under this Agreement are reserved. 502*8a805b61SRob Weir 503*8a805b61SRob Weir This Agreement is governed by the laws of the State of New York and the 504*8a805b61SRob Weir intellectual property laws of the United States of America. No party to 505*8a805b61SRob Weir this Agreement will bring a legal action under this Agreement more than 506*8a805b61SRob Weir one year after the cause of action arose. Each party waives its rights 507*8a805b61SRob Weir to a jury trial in any resulting litigation. 508