THE ACCOMPANYING PROGRAM IS PROVIDED UNDER THE TERMS OF THIS ECLIPSE -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 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. The Eclipse -Foundation is the initial Agreement Steward. The Eclipse Foundation 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.
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