WHEREAS OpenSS7 Corporation ("OpenSS7"), a Texas corporation, has developed and is in the process of developing the OpenSS7 Project and associated documentation, (the "Programs").
WHEREAS OpenSS7 desires to make the aforementioned Programs available subject to all terms and conditions of this license agreement, and
WHEREAS whosoever accepts a copy of the Programs agrees to the terms and conditions herein and will be referred to hereafter as (the "Licensee"),
NOW THEREFORE OpenSS7 as the owner of the copyright on and holder of the right to license the Programs grants the Licensee the right to use and possess the Programs subject to the following terms and conditions: OpenSS7 grants the Licensee a license as follows:
1. GRANT. In consideration of Licensee's payment of the required fee as negotiated between the parties and Licensee's agreement to abide by the terms and conditions of this license, OpenSS7 grants Licensee a nonexclusive, nontransferable license for the Programs, subject to all of the following terms and conditions. This license permits Licensee to:
(1) use the Programs;
(2) make copies of the Programs for backup purposes;
(3) modify the Programs for porting or to incorporate the Programs into other programs ("Derived Works") for Licensee's personal or internal use;
(4) correct errors in the Programs ("Error Corrections");
(5) distribute the Programs, Derived Works and Error Corrections within the Licensee's organization;
(6) use, copy, modify, distribute, sell the Programs or Derived Works subject to the copy limitations negotiated between parties.
2. LIMITATIONS ON LICENSE. This License applies to all OpenSS7 Project Programs made available under this License during the term of the License. Licensee may only use, copy, modify and distribute the Programs as expressly provided for in this Agreement. No part of the Programs may be incorporated into any program, other product or any service which is sold, or for which revenue is received, until a license is negotiated.
(1) Licensee must reproduce and include OpenSS7 copyright notices on any copy of the Programs and their associated documentation. The Programs, if modified, must carry prominent notices stating that changes have been made, and the dates of any such changes.
(2) Licensee must reproduce without alteration OpenSS7 copyright and other proprietary notices in the Programs, Derived Works and Error Corrections. The OpenSS7 copyright and other proprietary notices must appear prominently in Licensee's Modifications and, in all cases, in the same file as all Licensee's copyright and other proprietary notices.
(3) Modifications made by Licensee are covered by the terms and conditions of this license, and Licensee expressly agrees that use and distribution, in whole or in part, of Licensee's Modifications shall only be performed in accordance with and subject to the terms and conditions of this License. (4) The Licensee may provide Error Corrections and improvements to OpenSS7 ("Contributed Code") at anytime, in Licensee's discretion.
(5) Licensee acknowledges that Programs, Derived Works, Error Corrections and Contributed Code ("Covered Code") are neither designed nor intended for use in the design, construction, operation or maintenance of any hazardous, life threatening or life supporting service or facility.
(6) Licensee will not assert any intellectual property rights that Licensee may have covering the Covered Code which would necessarily be infringed by the use, modification, distribution or sale of the Covered Code.
(7) Licensee agrees to treat all Programs not publicly released as confidential information of OpenSS7. The Programs will not be provided by Licensee to any third party as Source Code. Licensee will establish appropriate procedures to prevent the disclosure of the Source Code for the Programs.
(8) OpenSS7 reserves the right to release any, or all, or a portion of the Programs and Contributed Code covered under this License under alternate licenses including, but not limited to, the GNU Public License at OpenSS7's discretion.
(9) An express condition of this license is that OpenSS7 shall retain ownership of, and title, to the Programs. This License shall not be construed as a sale of the original Programs or any subsequent copy.
(10) All rights not expressly granted herein are reserved to OpenSS7.
3. NO OPENSS7 OBLIGATION. The mechanisms implemented by the Programs have inherent limitations, and Licensee shall determine that the Programs sufficiently meets Licensee's requirements. Licensee is solely liable for all costs and expenses incurred in connection with the distribution of the Programs or any Application Program derived therefrom, and OpenSS7 shall have no liability, obligation or responsibility therefor. Although a web site and developer's mailing list is available, OpenSS7 shall have no obligation to provide maintenance, support, upgrades, or new releases to Licensee.
4. NO WARRANTY OF PERFORMANCE. The Programs are licensed "as is" without warranty as to their performance, merchantability, or fitness for any particular purpose. The entire risk as to the results and performance of the Programs is assumed by Licensee. Should the Programs prove defective, Licensee shall assume the entire cost of all necessary servicing, repair, or correction.
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 DOCUMENTATION IS WITH LICENSEE. SHOULD ANY COVERED CODE PROVE DEFECTIVE IN ANY RESPECT, LICENSEE (NOT OPENSS7 OR ANY OTHER CONTRIBUTOR) ASSUMES 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.
5. LIMITATION OF LIABILITY. OpenSS7 shall not be liable to Licensee or to any other person for any direct, indirect, special, incidental, consequential, or punitive damages, even if OpenSS7 has been advised of the possibility of such damages. Licensee hereby indemnifies OpenSS7 against any such liability.
UNDER NO CIRCUMSTANCES AND UNDER NO LEGAL THEORY, WHETHER TORT (INCLUDING NEGLIGENCE), CONTRACT, OR OTHERWISE, SHALL THE LICENSEE, THE INITIAL DEVELOPER, ANY 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 P ARTY 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.
6. PROPRIETARY RIGHTS. OpenSS7 believes that it is the sole author of the Programs and represents that, to the best of its knowledge and belief, there are no U.S. patent, trademark, copyright, trade secret of other proprietary rights of others that would be infringed by the use of the Programs as permitted by this license. Except as set forth herein, OpenSS7 makes no representation, indemnification, or warranty concerning proprietary rights infringement and holds itself harmless with respect to matters pertaining thereto.
7. TERMINATION. The license granted hereunder is effective until terminated. This license shall automatically terminate without notice if Licensee breaches any of the provisions hereof. Licensee may terminate at anytime by destroying the Programs and their associated documentation and notifying OpenSS7 in writing. If Licensee institutes patent litigation against OpenSS7 with respect to a patent applicable to Licensee Code, then any patent licenses granted by OpenSS7 to Licensee under this License shall terminate as of the date such litigation is filed. In addition, if Licensee institutes patent litigation against OpenSS7 alleging that the Programs or associated documentation infringe Licensee patent(s), then the rights granted to Licensee under Section 1. and 2. above will terminate. Upon termination, Licensee must discontinue all uses and distribution of the Programs, associated documentation, Modifications and Derived Works, except that Licensee may continue to use, reproduce, prepare derivative works of Licensee Modifications (without the benefit of any license arising from this License) for purposes other than to implement functionality designated in any portion of the Programs. Properly granted sublicenses to third parties will survive termination. Provisions which, by their nature, should remain in effect following termination sur-vive.
8. LICENSE VERSIONS. Only OpenSS7 may promulgate new versions of this License. Once the Licensee has accepted the Covered Code under a version of this License, Licensee may always continue to use such version of Covered Code under that version of the License. New Covered Code which Licensee may subsequently choose to accept as part of the OpenSS7 Subscription Service or made available on the OpenSS7 Website will be subject to any new License in effect at the time of Licensee's acceptance of such code and specifications.
9. INFRINGEMENT. No assurances are provided by OpenSS7 that Covered Code does not infringe the intellectual property rights of any third party. Each Licensee disclaims any liability to all other Licensees for claims brought by any third party based on infringement of intellectual property rights. OpenSS7 represents that, to its knowledge, it has sufficient copyrights to allow Licensee to use, modify and distribute the Programs as herein permitted and Licensee represents that, to Licensee's knowledge, Licensee has sufficient copyrights to allow each Licensee and OpenSS7 to use and distribute Licensee Error Corrections and Contributed Code as contemplated herein. Licensee agrees to notify OpenSS7 should Licensee become aware of any potential or actual infringement of the Programs or of any of OpenSS7's intellectual property rights in the Programs and associated documentation. OpenSS7 disclaims any liability to Licensee for claims brought by any third party based on infringement of intellectual property rights.
10. SUSPENSION. If any portion of, or functionality implemented by, the Covered Code becomes the subject of a claim or threatened claim of infringement ("Affected Materials"), OpenSS7 may, in its unrestricted discretion, suspend Licensee's rights to use and distribute the Affected Materials under this License. Such suspension of rights will be effective immediately upon OpenSS7 notifying Licensee of suspension. OpenSS7 has no obligation to lift the suspension of rights relative to the Affected Materials until a final, nonappealable determination is made by a court or governmental agency of competent juris-diction that OpenSS7 is legally able, without the payment of a fee or royalty, to reinstate Licensee rights to the Affected Materials to the full extent contemplated hereunder. Upon such determination, Original Contributor will lift the suspension by notifying the Licensee. Nothing herein shall be construed to prevent Licensee, at Licensee option and expense, and subject to applicable law and the restrictions and responsibilities set forth in this License and any Supplements, from replacing Covered Code in Affected Materials with non-infringing code or independently negotiating, without compromising or prejudicing OpenSS7's position, to obtain the rights necessary to use Affected Materials as herein permitted.
11. GENERAL. Trademarks. Licensee is granted no rights in or to any "OpenSS7", "OpenSS7 Project" trademarks now or hereinafter used or licensed by OpenSS7. Licensee agrees not to (i) challenge OpenSS7 Trademarks; (ii) attempt to register any OpenSS7 Trademarks, or any mark or logo substantially similar thereto; or (iii) incorporate any OpenSS7 Trademarks into Licensee's own trademarks, product names, service marks, company names or domain names. Integration and Assignment. OpenSS7 may assign this License to another by written notification to the other party. This License represents the complete agreement of the parties concerning the subject matter hereof. Severability. 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 unless to do so would defeat the intent of the parties. Governing Law. This License shall be governed by the laws of the United States and the State of Texas (except to the extent applicable law, if any, provides otherwise), as applied to contracts entered into and performed in Texas between Texas residents, excluding its conflict-of-law provisions. 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. Dispute Resolution. Any dispute arising out of or relating to this License shall be finally settled by arbitration as set forth in this Section, except that either party may bring an action in a court of competent jurisdiction (which jurisdiction shall be exclusive), relative to any dispute relating to such party's intellectual property rights. Arbitration will be administered (i) by the American Arbitration Association (AAA), (ii) in accordance with the rules of the United Nations Commission on International Trade Law (UNCITRAL) (the "Rules") in effect at the time of arbitration, modified as set forth herein, and (iii) the arbitrator will apply the governing laws required under Section "Governing Law" above. Judgment upon the award rendered by the arbitrator may be entered in any court having jurisdiction to enforce such award. The arbitrator may not award damages in excess of or of a different type than those permitted by this License and any such award is void. All proceedings will be in English and conducted by a single arbitrator selected in accordance with the Rules who is fluent in English, familiar with technology matters pertinent in the dispute and either a retired judge or practicing attorney having at least ten (10) years litigation experience. Venue for arbitration will be in Dallas, Texas, unless the parties agree otherwise. Each party will be required to produce documents relied upon in the arbitration and to respond to no more than twenty five (25) single question interrogatories. All awards are payable in US dollars and may include for the prevailing party (i) pre-judgment interest, (ii) reasonable attorney's fees in-curred in connection with the arbitration, and (iii) reasonable costs and expenses incurred in enforcing the award. U.S. Government End Users. If this Software is being acquired by or on behalf of the U.S. Government or by a U.S. Government prime contractor or subcontractor (at any tier), then the Government's rights in this Software and accompanying documentation shall be only as set forth in this license; this is in accordance with 48 CFR 227.7201 through 227.7202-4 (for Department of Defense acquisitions) and with 48 CFR 2.101 and12.212 (for non-DoD acquisitions). 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. International Use. Covered Code is subject to US export control laws and may be subject to export or import regulations in other countries. Each party shall comply fully with all such laws and regulations and acknowledges its responsibility to obtain such licenses to export, reexport or import as may be required. Licensee must pass through these obligations to all Licensee licensees. Licensee may not distribute Covered Code into countries other than those listed on the U.S. Government web site from time to time. Multiple Licensed Code. OpenSS7 may designate portions of the Covered Code as "Multiple Licensed". "Multiple Licensed" means that OpenSS7 permits you to utilize portions of the Covered Code under Licensee's choice of the GNU Public License Version 2 (GPL) or the alternative licenses, if any, specified by OpenSS7 in permission notices. All Programs which have not been publicly released on the OpenSS7 Project web site <http://wwww.openss7.org/> are considered ("Unpublished Works") and subject to the terms and conditions of this License Agreement regardless of the ("Permission Notices") and ("Licenses") included in the Program source files. This is a convenience for later public release as a ("Published Work") and Licensee will disregard such Permission Notices in Program source files.
Address all correspondence regarding this license to OpenSS7's electronic mail address: <mailto:licensing@openss7.com>, or to
OpenSS7 Corporation
4701 Preston Park Boulevard
Suite #424
Plano, Texas 75093
USA
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