Zeratec Public License
bruce at perens.com
bruce at perens.com
Tue Jul 13 18:33:05 UTC 1999
My main criticism is that some of the language is _oblique_ and should be
phrased as a "permission" rather than an "understanding". The license is meant
to be executed by programmers, not attorneys, and thus should be as clear and
unambiguous as possible.
Thanks
Bruce
> From: "Charles A. Jolley" <charles.jolley at zeratec.com>
>
>
> ZERATEC DEGAS PUBLIC LICENSE AGREEMENT
> CONTRACTUAL TERMS OF USE AND NOTICES
>
> IMPORTANT =8B READ THIS ENTIRE AGREEMENT FULLY AND CAREFULLY BEFORE
> DOWNLOADING OR USING THIS PRODUCT OR SPECIFICATION: This Product or
> Specification describes, implements or makes use of Zeratec=B9s Degas
> Architecture and Specification, more fully described later in this License
> Agreement. In order to use or purchase this Product or Specification, you
> must accept this License Agreement, which is a binding legal contract
> between you (either as an individual or entity) and Zeratec, Inc. By
> clicking on the "I Accept" button, installing, copying, modifying,
> redistributing, or otherwise using this Product or Specification, you agree
> to be bound by the contractual terms of this License Agreement. If you do
> not agree to the terms of this License Agreement, click on the "I Do Not
> Accept" button and/or do not download, copy or install the Product and/or
> Specification.
> YOU AGREE THAT YOUR DOWNLOADING, COPYING, USE, PURCHASE,
> MODIFYING OR REDISTRIBUTING OF THIS PRODUCT AND/OR SPECIFICATION
> ACKNOWLEDGES THAT YOU HAVE READ THIS LICENSE AGREEMENT, UNDERSTAND IT, AND
> AGREE TO BE BOUND BY ITS CONTRACTUAL TERMS AND CONDITIONS.
Note that they may have gotten this software on a CD-ROM containing other
programs, so "purchase" does not necessarily convey acceptance of the license.
Installation of the program would convey acceptance in that case.
> 1. GRANT OF LICENSES:
>
> Subject to the provisions of this License Agreement, Zeratec hereby grants
> to you the following, world-wide, royalty free, non-exclusive license, to
> the extent of Zeratec=B9s own present and/or future statutory and/or common
> law rights associated with patents and patent applications, works of
> authorship including copyrights, copyright applications and/or registration
> or "moral rights," and confidential information including industrial and/or
> trade secrets ("Intellectual Property Rights"), in connection with the
> distribution and/or redistribution of any product, specification, or any
> derivatives of any products or implementation of the Degas Architecture as
> defined in Zeratec=B9s Degas Architecture Specification ("Licensed Product").
>
> 2. LICENSE RESTRICTIONS:
>
> The rights granted to you under Section 1 above are conditioned upon
> your express consent and agreement to comply with the following terms.
>
> 1. This license does not cover any right to use Zeratec=B9s trademarks=
> ,
> service marks and/or the words "Zeratec," "Degas," "Degas
> Certified," "Degas Compliant" or similar in connection with
> Licensed Product.
> 2. It is understood that this license is primarily intended to enabl=
This is what I think is oblique. Rather than "It is understood", I'd suggest
you re-phrase this as an _explicit_permission_ something like:
You may redistribute this product:
(a) at no cost to the recepient
OR (b) at only the reasonable costs associated with the physical act of
transferring a copy and for the media involved.
OR (c) under the GNU General Public License (published by the Free Software Foundation of Boston, MA.) version 2 or any later version.
OR (d) under a separate license available from Zeratec, Inc. [text from section
4, below, goes here].
I don't like oblique language because I think it's more open to interpretation
than an explicit permission. Note also that (d) subsumes the purpose of (4)
below.
> e
> free research and development utilizing Zeratec=B9s Degas
> Architecture as defined in Zeratec=B9s Degas Architecture
> Specification, and to facilitate the further open source
> redistribution of Licensed Product at (a) no cost to the
> recipient, (b) only reasonable costs associated with the physical
> act of transferring a copy and for the media involved, or (c)
> under a GNU General Public License as defined in any version of
> that license published by the Free Software Foundation, Inc. of
> Boston, MA.
> Nothing in this limitation, however, is intended to
> restrict the offer by you of warranty protection in exchange for a
> reasonable fee for such services on your part.
Again, make this into an explicit permission instead of the oblique
language: "You may offer warranty services and support for this product,
entirely at your own risk." Licenses should not be written in the passive
voice. As copyright holder you are dispensing permissions, not passively
participating in understandings.
> 3. It is further specifically agreed and understood that when any
> Licensed Product distributed or redistributed under sections 1 an=
> d
> 2.2 above has not been determined by Zeratec or a Zeratec
> authorized certification program to be fully Degas compliant by
> means of Zeratec=B9s proprietary test programs, procedures and
> requirements, you may refer to such Licensed Product as
> "Degas-based," however, any such untested and/or uncertified
> Licensed Product absolutely must also contain the notice and
> limitation set forth in Exhibit A prominently displayed in an
> appropriate place and fashion where a user will be most likely to
> see and read it, including, for example but without limitation, i=
> n
> all source code files and upon the product and/or its packaging.
> When such testing by Zeratec or its authorized designee has been
> satisfactorily completed to establish Degas compliance, then the
> notice in Exhibit B may be used in similar manner. It is further
Language concerning use of Exhibit B should be in your separate commercial
license, not in this license at all, since nothing in this license grants
permission to use it.
> understood and agreed that the permitted use of the Exhibit B
> notice does not convey or permit any additional or other use of
> any Zeratec trademark, logo, or service mark, and nothing in this
> License Agreement shall be deemed to provide any separate or
> different rights in Zeratec=B9s marks and logos.
> 4. If Licensed Product is to be used for any direct or indirect
> strategic or commercial gain and/or advantage or other commercial
> purposes not covered under section 2.2 above, all such Licensed
> Product must first be submitted to Zeratec or its authorized
> designee for testing and certification and thereafter must be
> marked with the Zeratec "Degas Compliant" Mark and Logo under the
> terms of a separate Degas Compliant Mark and Logo License
> Agreement between you and Zeratec, or you must obtain an explicit
> and further written release from Zeratec, in its sole discretion,
> waiving this requirement. Nothing in this Public License Agreemen=
> t
> replaces or supercedes the requirement for such separate license
> agreement and /or waiver covering product certification and the
> mandatory use of the Zeratec Degas Compliant Mark and Logo in
> connection with commercial use and /or exploitation of Licensed
> Product and/or Zeratec=B9s Degas Architecture.
>
I suggest you move the text of (4) into 2.2(d) as I drafted above.
> 2.5 You further agree to assure by means of appropriate notices, contracts,
> sub-licenses and agreements (similar to that provided in Exhibits A and B)
> that any redistribution by you of any Licensed Product and/or Zeratec=B9s
> Degas Architecture and Specification themselves is subject to all the same
> terms and conditions as contained in this License Agreement. You also agree
> to make clear that any further warranties, terms and/or conditions imposed
> in connection with your distribution or redistribution of Licensed Product
> which differ from the terms of this License Agreement are offered by you
> alone and not by Zeratec.
>
> 3. DISCLAIMER OF WARRANTY:
>
> THE DEGAS ARCHITECTURE, SPECIFICATIONS AND DOCUMENTATION ARE PROVIDED "AS
> IS" WITHOUT WARRANTY OF ANY KIND. TO THE MAXIMUM EXTENT PERMITTED BY LAW,
> ZERATEC EXPLICITLY DISCLAIMS ANY AND ALL WARRANTIES, INCLUDING WITHOUT
> LIMITATION: ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR ANY
> PARTICULAR PURPOSE, AND NONINFRINGEMENT. THE ENTIRE RISK ARISING OUT OF THE
> USE OF THE DEGAS ARCHITECTURE, SPECIFICATIONS AND DOCUMENTATION REMAINS WIT=
> H
> YOU. TO THE MAXIMUM EXTENT PERMITTED BY LAW, IN NO EVENT SHALL ZERATEC BE
> LIABLE FOR ANY CONSEQUENTIAL, DIRECT, INDIRECT, INCIDENTAL, SPECIAL,
> PUNITIVE, OR OTHER DAMAGES OF ANY KIND WHATSOEVER (INCLUDING WITHOUT
> LIMITATION LOSS OF BUSINESS PROFITS, BUSINESS INTERRUPTION, LOSS OF BUSINES=
> S
> INFORMATION, OR OTHER MONETARY LOSS) ARISING OUT OF THIS PUBLIC LICENSE
> AGREEMENT OR YOUR DOWNLOADING, COPYING OR USE OF THE SOFTWARE CODE,
> SPECIFICATIONS AND DOCUMENTATION, EVEN IF ZERATEC HAS BEEN ADVISED OF THE
> POSSIBILITY OF SUCH DAMAGES. BECAUSE SOME STATES/JURISDICTIONS DO NOT PERMI=
> T
> THE EXCLUSION OR LIMITATION OF LIABILITY FOR CONSEQUENTIAL OR INCIDENTAL
> DAMAGES, THE ABOVE LIMITATION MAY NOT APPLY TO YOU.
>
> 4. TERMINATION: This Public License Agreement shall terminate automatically
> if you fail to comply with its terms, conditions and limitations. No notice
> shall be required from Zeratec to effectuate such termination. Upon
> termination, you must destroy all copies of the Degas Architecture,
> Specifications, Documentation and Licensed Product.
Does that mean I have to throw away my CD-ROM which contained this program
along with 1000 others?
> 5. INDEMNIFICATION: You agree to hold harmless, indemnify and defend
> Zeratec, its officers, directors and employees from and against any and all
> claims, losses, damages, fines and expenses (including attorneys=B9 fees and
> costs) of any nature whatsoever arising out of or in any way related to you=
> r
> downloading, copying modification and/or use of the Degas Architecture,
> Specifications, Documentation and/or Licensed Product.
>
> 6. GOVERNMENT RESTRICTED RIGHTS AND EXPORT RESTRICTIONS: The Degas
> Architecture, Specifications and Documentation are provided with RESTRICTED
> RIGHTS. Use, duplication or disclosure by the U.S. Government is subject to
> restrictions set forth in subparagraphs (a) through (d) of the Commercial
> Software -- Restricted Rights at FAR 52.227-19 when applicable, or in
> subparagraph (c)(1)(ii) of the Rights in Technical Data and Computer
> Software clause at DFARS 252.227-7013, and in similar clauses in the NASA
> FAR supplement, as applicable. Consistent with 48 C.F.R. 12.212 and 48
> C.F.R. 227.7202-1 through 227.7202.4, all U.S. Government End Users acquire
> the Degas Architecture, Specificatiosn and Documentation hereunder with onl=
> y
> those rights set forth herein. Manufacturer is Zeratec, Inc., 561 N. 716
> Rd., Lawrence, KS 66047. You are responsible for complying with all trade
> regulations and laws both foreign and domestic. You acknowledge that none o=
> f
> the Architecture, Specifications, Documentation, or underlying information
> or technology may be downloaded or otherwise exported or re-exported (i)
> into (or to a national or resident of) Cuba, Iraq, Libya, Sudan, North
> Korea, Iran, Syria, or any other country subject to a U.S. embargo; or (ii)
> to anyone on the U.S. Treasury Department=B9s list of Specially Designated
> Nationals or the U.S. Commerce Department=B9s Denied Parties Or Entities
> Lists. By downloading, copying or using the Software Code, Specifications
> and Documentation you are agreeing to the foregoing and are further
> specifically representing and warranting to Zeratec that (i) no U.S. federa=
> l
> agency has suspended, revoked or denied you export privileges, (ii) you are
> not located in or under the control of a national or resident of any such
> country or on any such list, and (iii) you will not export or re-export the
> Software and Documentation to any prohibited country, or to any prohibited
> person, entity or end user as specified by U.S. export controls. You are
> responsible for complying with any and all applicable local laws and
> regulations, including but not limited to the export and import laws and
> regulations of other countries.
>
> 7. MISCELLANEOUS: This Public License Agreement shall constitute the entire
> and exclusive agreement between you and Zeratec. The Terms and conditions o=
> f
> this Public License Agreement may not be changed unless both you and an
> authorized representative of Zeratec execute a separate written agreement.
> If any provision of this Public License Agreement shall be held invalid or
> unenforceable for any reason, such provision shall be amended only to the
> extent necessary to make it valid and enforceable, and such decision shall
> not affect the validity or enforceability of such provision under other
> circumstances or of the other, remaining provisions of this License
> Agreement under any circumstances. This Public License Agreement shall be
> governed by the laws of the state of Kansas, without regard to conflicts of
> law provisions, and you hereby consent to the exclusive jurisdiction of the
> state and federal courts sitting in the state of Kansas. Any and all
> unresolved disputes under this Public License Agreement shall be submitted
> to arbitration in the state of Kansas. The arbitration shall be conducted
> under the commercial rules then prevailing of the American Arbitration
> Association. The arbitrator=B9s award shall be final and binding and may be
> entered as a judgment in any court of competent jurisdiction. This Public
> License Agreement will not be governed by the United Nations Convention of
> Contracts for the International Sale of Goods, the application of which is
> hereby expressly excluded.
>
>
> <---------------- THIS PORTION MAY BE OMITTED FOR LICENSES ----------------=
> >
> <-------------------- NOT REQUIRING ON-LINE ACCEPTANCE --------------------=
> >
>
>
> PLEASE READ THE TERMS OF THIS PUBLIC LICENSE AGREEMENT CAREFULLY. BY
> CLICKING ON THE "I ACCEPT" BUTTON BELOW YOU ARE REPRESENTING THAT YOU HAVE
> READ AND UNDERSTAND AND ARE ACCEPTING AND AGREEING TO THE TERMS AND
> CONDITIONS OF THIS PUBLIC LICENSE AGREEMENT AS A BINDING CONTRACT WITH
> ZERATEC, INC. IF YOU ARE AGREEING TO THIS PUBLIC LICENSE AGREEMENT ON BEHAL=
> F
> OF AN ORGANIZATION OR COMPANY, YOU SPECIFICALLY REPRESENT THAT YOU ARE AN
> AGENT OF SUCH ORGANIZATION OR COMPANY AND FULLY AUTHORIZED TO LEGALLY BIND
> IT TO THIS PUBLIC LICENSE AGREEMENT. IF YOU DO NOT AGREE TO ANY OF THE TERM=
> S
> AND CONDITIONS OF THIS PUBLIC LICENSE AGREEMENT, CLICK ON THE "I DO NOT
> ACCEPT" BUTTON TO EXIT.
>
> I ACCEPT I DO NOT ACCEPT
>
> <------------------------------------------------------------------------->
>
> EXHIBIT A
>
> This product has been created and/or modified under License from Zeratec,
> Inc. using the Degas Architecture defined in Zeratec=B9s Degas Specification.
> It has not been tested and may not pass the relevant Degas compliance and
> compatibility standards established by Zeratec, Inc. and is NOT WARRANTED I=
> N
> ANY WAY BY ZERATEC, INC. A copy of the Zeratec License may be obtained at
> http://www.zeratec.com/??? and is incorporated herein by reference. By
> obtaining and using this product, you explicitly agree to be bound by the
> terms and conditions of the Zeratec License.
>
> Or
>
> This software has been created and/or modified under License from Zeratec,
> Inc. using the Degas Architecture defined in Zeratec=B9s Degas Specification.
> It has not been tested and may not pass the relevant Degas compliance and
> compatibility standards established by Zeratec, Inc. and is NOT WARRANTED I=
> N
> ANY WAY BY ZERATEC, INC. A copy of the Zeratec License may be obtained at
> http://www.zeratec.com/??? and is incorporated herein by reference. By
> obtaining and using this software, you explicitly agree to be bound by the
> terms and conditions of the Zeratec License.
>
> EXHIBIT B
>
This exhibit belongs in your separate commercial license, it doesn't really
belong in the free one at all, since nothing in this license grants
permission to use it.
>
>
> This product has been created and/or modified under License from Zeratec,
> Inc. using the Degas Architecture defined in Zeratec=B9s Degas Specification.
> It has been tested and has passed the relevant Degas compliance and
> compatibility standards established by Zeratec, Inc. but THIS PRODUCT IS NO=
> T
> WARRANTED IN ANY OTHER WAY BY ZERATEC, INC. BEYOND SUCH CERTIFICATION OF
> COMPLIANCE. A copy of the Zeratec License may be obtained at
> http://www.zeratec.com/??? and is incorporated herein by reference. By
> obtaining and using this product, you explicitly agree to be bound by the
> terms and conditions of the Zeratec License.
>
> or
>
>
>
> This software has been created and/or modified under License from Zeratec,
> Inc. using the Degas Architecture defined in Zeratec=B9s Degas Specification.
> It has been tested and has passed the relevant Degas compliance and
> compatibility standards established by Zeratec, Inc., but THIS PRODUCT IS
> NOT WARRANTED IN ANY OTHER WAY BY ZERATEC, INC. BEYOND SUCH CERTIFICATION O=
> F
> COMPLIANCE. A copy of the Zeratec License may be obtained at
> http://www.zeratec.com/??? and is incorporated herein by reference. By
> obtaining and using this product, you explicitly agree to be bound by the
> terms and conditions of the Zeratec License.
>
>
>
More information about the License-discuss
mailing list