Open Source Code
Commercial Contract
Table of Contents:
Definitions
Anti-Copyleft Licensing Warranties
Notice and Disclaimer
Special attention should be paid when licensing so-called “open source” (also sometimes referred to as “free” or “public” or “copyleft”) software which may be subject to licensing terms that could prove problematic to owners of proprietary solutions that work with such software, including terms that require such owner to make source code publicly available:
Open Source Code
Definitions
To avoid misunderstandings that could have serious implications to the user of open source software, the parties should agree to clear definitions of what constitutes an “open source” license or software:
Exemplar C55-1
An “Open Source License” for these purposes means any license terms which conform with the definition published by the Open Source Initiative from time to time as set out under the following link: http://www.opensource.org/osd.html and which, without limitation, include (i) GNU’s General Public License (GPL) or Lesser/Library GPL (LGPL); (ii) the Artistic License (e.g., PERL); (iii) the Mozilla Public License; (iv) the Creative Commons Attribution-ShareAlike licence (“CCL”); (v) the Open Database Licence (ODbL); and (vi) the Apache License or anything similar.
Exemplar C55-2
“Open Source” means any computer program, including any modification, improvement, derivative work, release, correction, governed by the terms and conditions of a license compliant with the Open Source Initiative (here after OSI) principles defined in the following website: http://www.opensource.org/docs/definition.php, and/or certified by the OSI (cf. list of such licenses in http://www.opensource.org/licenses/).
Exemplar C55-3
As used herein, “Open Source Software” means any software that is licensed under Open License Terms. “Open License Terms” means terms in any license agreement or grant that require as a condition of use, modification and/or distribution of a work that:
1. source code will be made available, or
2. permission will be granted for creating derivative works, or
3. a royalty-free license is granted to any party under any intellectual property rights regarding that work and/or any other work that contains, is combined with, requires or is based on that work.
Exemplar C55-4
“FREELY AVAILABLE SOFTWARE” means any software that contains or is derived in whole or in part from any software distributed as freely available software that requires as a condition of use, modification and/or distribution that the software or any derivative of the software (either in whole or in part) be generally (i) disclosed or distributed in source code form; (ii) licensed for the purpose of making derivative works; or (iii) redistributable. Such software may include but not be limited to software licensed under the following or similar license terms: (a) GNU’s General Public License (GPL) or Lesser/Library GPL (LGPL), (b) the Artistic License (e.g., PERL), (c) the Mozilla Public License, (d) the Netscape Public License, (e) the Sun Community Source License (SCSL), (f) the Sun Industry Standards Source License (SISL), (g) the Apache Server license, (h) QT Free Edition License, (i) IBM Public License, and (j) BitKeeper.
Exemplar C55-5
“Open Source License” means any license that requires as a condition of use, modification or distribution of software subject to the Open Source License, that the software or other software combined or distributed with the software be (a) disclosed or distributed in source code form; (b) licensed for the purpose of making derivative works; or (c) redistributable at no charge. “Open Source License” includes, without limitation, any GNU General Public License (“GPL”).
Exemplar C55-6
"Open Source License" means any version of the GNU General Public License (“GPL”), Lesser/Library GPL, Affero GPL, Mozilla Public License, Common Public License or any other license for software where the license includes terms providing that (a) a licensee of the software is authorized to make modifications to, or derivative works of, the source code for the software, and (b) the licensee is authorized to distribute such modifications or derivative works of the software only if subsequent licensees are authorized to modify or make further derivative works of licensee’s modifications or derivative works.
Exemplar C55-7
“Open Source License” means any license, including “open source” code (as defined by the Open Source Initiative) or “Free” code (as defined by the Free Software Foundation), that requires as a condition of use, modification, and/or distribution of software subject to the Excluded License, that such software or other software combined and/or distributed with such software be (i) disclosed or distributed in Source Code Form; (ii) licensed for the purpose of making derivative works; or (iii) redistributable at no charge.
Exemplar C55-8
The term Open Source Software means: (a) any software that requires as a condition of use, modification and/or distribution of such software, that such software: (i) be disclosed or distributed in source code form; (ii) be licensed for the purpose of making derivative works; and/or (iii) can be redistributed only free of enforceable intellectual property rights (e.g., patents); and/or (b) any software that contains, is derived in any manner (in whole or in part) from, or statically or dynamically links against any software specified under subsection (a) above. For the purpose of this definition, by means of example and without limitation, any software modules or packages licensed or distributed under any of the following licenses or distribution models will qualify as Open Source Software:
(1) GNU's General Public License (GPL) or Lesser/Library GPL (LGPL),
(2) the Artistic License,
(3) the Mozilla Public License,
(4) the Common Public License,
(5) the Sun Community Source License (SCSL), and
(6) the Sun Industry Standards Source License (SISSL).
Exemplar C55-9
“Open Source Technology” shall mean any technology from the open source community, including without limitation, any software that requires, as a condition of use, modification and/or distribution of such software, that other software incorporated into, derived from or distributed with such software be: (i) disclosed or distributed in source code form; (ii) licensed for the purpose of making derivative works; or (iii) redistributable at no charge.
Exemplar C55-10
“FOSS” (Free and Open Source Software)” means any software that is subject to terms that, as a condition of use, copying, modification, or redistribution, require such software and derivative works thereof to be disclosed or distributed in source code form, to be licensed for the purpose of making derivative works, or to be redistributed free of charge, including without limitation software distributed under the GNU General Public License or GNU Lesser/Library GPL.
Exemplar C55-11
“Open Source Software” means any software that requires as a condition of use, modification and/or distribution of such software that such software or other software incorporated into, derived from or distributed with such software (a) be disclosed or distributed in source code form; or (b) be licensed by the user to third parties for the purpose of making and/or distributing derivative works; or (c) be redistributable at no charge. Open Source Software includes, without limitation, software licensed or distributed under any of the following licenses or distribution models, or licenses or distribution models substantially similar to any of the following: (a) GNU’s General Public License (GPL) or Lesser/Library GPL (LGPL), (b) the Artistic License (e.g., PERL), (c) the Mozilla Public License, (d) the Netscape Public License, (e) the Sun Community Source License (SCSL), (f) the Sun Industry Source License (SISL), (g) the Apache Software license and (h) the Common Public License (CPL).
Exemplar C55-12
“Open Source License” means a software license under which the Source Code is made available under terms that allow any licensee to copy, create derivative works and distribute the software without any fee or cost.
Exemplar C55-13
Open Source Software means source or object code software that is subject to an Open Source License. “Open Source License” means any license that requires that other software incorporated into, derived from or distributed with such licensed software (a) be distributed in source code form, (b) be licensed for the purpose of making derivative works, (c) be distributed at no charge, or (d) be distributed in a manner contrary to the terms of this Agreement.
Exemplar C55-14
“Viral Open Source Materials” means any software, technology or content (“Materials”) that is (in whole or in part) subject to any license that requires, as a condition of use, modification and/or distribution of such Materials, that such Materials, or any Materials incorporated into, derived from or distributed with such Materials, in any manner (in whole or in part) be: (i) disclosed or distributed in Source Code form; (ii) licensed for the purpose of making modifications or derivative works; (iii) reproduced and/or redistributed at no or minimal charge; (iv) permitted to be reverse engineered; or (v) used only for non-commercial purposes.
Exemplar C55-15
"Excluded License" means any version of the GNU General Public License (“GPL”), Lesser/Library GPL, Affero GPL, Mozilla Public License, Common Public License or any other license for software where the license includes terms providing that (a) a licensee of the software is authorized to make modifications to, or derivative works of, the source code for the software, and (b) the licensee is authorized to distribute such modifications or derivative works of the software only if subsequent licensees are authorized to modify or make further derivative works of licensee’s modifications or derivative works.
Exemplar C55-16
Licensee shall not combine the Licensed Products with any open source software or other data in any manner which may result in the Licensed Products becoming subject to the terms of an Open Source License. An “Open Source License” for these purposes means any license terms which conform with the definition published by the Open Source Initiative from time to time as set out under the following link: http://www.opensource.org/osd.html and which, without limitation, include (i) GNU’s General Public License (GPL) or Lesser/Library GPL (LGPL); (ii) the Artistic License (e.g., PERL); (iii) the Mozilla Public License; (iv) the Creative Commons Attribution-ShareAlike licence (“CCL”); (v) the Open Database Licence (ODbL); and (vi) the Apache License or anything similar.
Anti-Copyleft Licensing Warranties
Due to problematic licensing terms that may govern the use of certain open source software (e.g., GPL and other “copyleft” licenses), including the obligation to make source code available to the public, the parties may agree to certain restrictions on the existence and/or use of such software.
For example, the licensee may require the licensor to warrant that any software delivery is free of any open-source code so as not to “infect” or “contaminate” the licensee’s proprietary code with copyleft licensing terms:
Exemplar C55-17
Except for the specific exceptions identified below, Licensor represents and warrants that, to the best of its knowledge after proper due diligence and inquiry, the Licensed Software does not include any Open Source Software.
Or the licensor may prohibit the licensee from using the delivered software in a way that may infect or contaminate such software by making it subject to copyleft licensing terms:
Exemplar C55-18
Distributor will not directly or indirectly grant, or purport to grant, to any third party any rights or immunities under Licensor’s or its licensors’ intellectual property or proprietary rights that will subject such intellectual property to an open source license or scheme in which there is or could be interpreted to be a requirement that as a condition of use, modification and/or distribution, the software be: (i) disclosed or distributed in source code form; (ii) licensed for the purpose of making derivative works; or (iii) redistributable at no charge.
Exemplar C55-19
Authorized Contractor’s rights under this sublicense agreement are conditioned upon Authorized Contractor not performing, and Authorized Contractor shall not perform any actions in a manner that would require any Licensed Software or any derivative work thereof, to be licensed under Open License Terms. These actions include but are not limited to:
(i) combining the Licensed Software or a derivative work thereof with Open Source Software, by means of incorporation or linking or otherwise; or
(ii) distributing the Licensed Software or a derivative work thereof with Open Source Software; or
(iii) using Open Source Software to create a derivative work of the Licensed Software, insofar as these actions would require the Licensed Software or a derivative work thereof to be licensed under Open License Terms.
Exemplar C55-20
Licensee shall own all right, title and interest in any derivative works to the Software made by Licensee in accordance with this Agreement, subject to Licensor's ownership of the underlying Software and the restrictions contained herein. Licensee will not create any derivative works or take any other action that could expose Licensee to obligations that would conflict with Licensee's obligations hereunder, such as for example, combining the Software with code licensed under the General Public License ("GPL") or a similar license.
Exemplar C55-21
Company will not directly or indirectly grant, or purport to grant, to any third party any rights or immunities under Licensor’s intellectual property or proprietary rights that will subject such intellectual property to an open source license or scheme in which there is or could be interpreted to be a requirement that as a condition of use, modification and/or distribution, the software be: (i) disclosed or distributed in source code form; (ii) licensed for the purpose of making derivative works; or (iii) redistributable at no charge.
Exemplar C55-22
Supplier shall not incorporate or combine any Open Source Technology into or with any Deliverable or Work Product without first obtaining Customer’s prior written approval. Supplier shall strictly adhere to the following procedure with regard to Open Source Technology: Supplier shall submit a request to Customer which shall contain: (i) engineering data in support of the request, (ii) detailed explanation of how the Open Source Technology will interact with any Customer Property or proprietary technology of Customer or any Third-Party Intellectual Property incorporated into the Work Product or any component thereof or which directly interfaces with the Work Product, (iii) a copy of the license governing the use and distribution of the Open Source Technology, and (iv) detailed analysis of whether the use of the Open Source Technology would, (A) create obligations, or purports to create obligations, for Customer or Supplier with respect to any product or proprietary technology of Customer or Supplier, or (B) grant, or purports to grant, to any third party any rights or immunities under Customer Property or Preexisting Materials or proprietary technology (collectively, “Contamination”). At Customer’s request, Supplier shall cooperate with Customer in order to determine if incorporation of any Open Source Technology would result or has resulted in any Contamination.
Exemplar C55-23
Licensee shall not combine the Licensed Products with any open source software or other data in any manner which may result in the Licensed Products becoming subject to the terms of an Open Source License. Licensee shall indemnify Licensor and its Affiliates against, and hold Licensor and its Affiliates harmless from, any damage or costs arising from or in connection with any violation or breach of the provisions of this Section and Licensee shall reimburse all costs and expenses incurred by Licensor and/or its Affiliates in defending any claim, demand, suit or proceeding arising from or in connection with such violation or breach.
Notice and Disclaimer
The following examples provide the licensee with notice of the inclusion (or possible inclusion) of third-party software subject to open-source licensing terms, which notice may be required to be given to down-stream licensees pursuant to such licensing terms:
Exemplar C55-24
Certain portions of the SDK ("Open Source Components") are licensed under the terms of applicable open source licenses, such as the BSD license, Apache license, the Lesser GNU General Public License, the GNU General Public License or any other such license. Licensee’s use of each Open Source Component is subject to the terms of each applicable license. Any other software code that is not part of the Open Source Components is subject to the restrictions set forth elsewhere in this EULA. Furthermore, those portions of the SDK that are part of the Open Source Components are subject to the remaining terms and conditions of the EULA to the extent that those terms are not inconsistent with the terms of the applicable licenses of the Open Source Components.
Exemplar C55-25
To the extent Licensee receives any Publicly Available Software as part of the Software under this Agreement, and notwithstanding any provision to the contrary, the restrictions on use, modification or reproduction of the Software do not apply to the portion thereof that constitutes source code for any Publicly Available Software or Publicly Available Software component of the Software. The rights and obligations of Licensee with respect to such source code and source code documentation for Publicly Available Software shall be as set forth in the Publicly Available Software license under which Licensor distributes such code to Licensee. Licensee agrees to treat any modification by Licensor of Publicly Available Software that Licensee receives under this Agreement as Licensor’s Confidential Information until such time as Licensor publishes its modifications to such Publicly Available Software pursuant to the terms of any applicable Publicly Available Software license.
Exemplar C55-26
Licensee must not sell, redistribute, rent, lease, lend or sublicense all or any part of the SDK, or enable or allow others to do such things. Licensee must not use the SDK for any purpose that is not expressly permitted under this Agreement. Except to the extent permitted by licensing terms in respect of Open Source Software components or sample code included with the SDK, Licensee must not copy (except as expressly permitted under this Agreement), modify, adapt, redistribute, decompile, reverse engineer, disassemble, or create derivative works of the SDK or any part thereof, or enable or allow others to do such things. The foregoing restrictions apply except as prohibited by applicable law and only to the extent of such prohibition.
Exemplar C55-27
Portions of Pre-Release Software may be provided with notices and open source licenses from communities and third parties that govern the use of those portions, and any licenses granted hereunder do not alter any rights and obligations Licensee may have under such open source licenses, however, the disclaimer of warranty and limitation of liability provisions in this Agreement will apply to all Pre-Release Software in this distribution.
Exemplar C55-28
Notwithstanding any of the forgoing, to the extent Software includes any open source libraries/components/applications/user interface/utilities (collectively referred to as “Open Source”) and to the extent required by the relevant licensor, such Open Source shall be subject to the relevant Open Source proprietary notices, disclaimers, requirements and/or extended rights which are relevant to the relevant Open Source code.
Exemplar C55-29
Limited portions of the software contain software code subject to the GNU GPL Version 2 available at http://www.gnu.org/licenses/gpl-2.0.html. Please refer to the Acknowledgement section found in the Software documentation for the specific references. GPL software is not subject to the restrictions set forth in this License but is licensed separately under the GPL. Only those portions of the software that are licensed under the GPL are subject to the GPL license. All other software code is subject to the restrictions set forth elsewhere in this License. Furthermore, those portions of the software that are licensed under the GPL are subject to the remaining terms and conditions of the License to the extent that those terms are not inconsistent with the terms of the GPL.