Draft 1 of the OpenDesk.com Public Source License

[Raymond Luk]

Having struggled with many different Open Source licenses as a basis for our
own, we have settled on Apple's license, the first draft of which is
attached for your reading pleasure. We have made only a few changes and they
are highlighted below.

We chose Apple's license because 1) I feel it is clearer and easier to
understand than MPL; 2) it is explicit about server applications; and 3) is
has some license/patent clauses which earlier licenses do not.

We wanted to add some notion of the 'partnership' quality of GPL to protect
developers who wanted their contributions to be part of Free software
products. But we haven't found a good way to do this. We cannot discriminate
against commercial projects and trying to do so seemed to lead to basically
recommending a commercial, proprietary fork anyways.

If anyone has any ideas, please let me know...

FYI, SmartWorker (which is the 'engine' of OpenDesk.com) will be released
LGPL.

Any comments would be appreciated, but please do not comment on
unhighlighted clauses as they are verbatim from APSL (i.e. that discussion
has already taken place).

Raymond Luk
ray at hbesoftware.com


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OpenDesk.com Public Source License
Draft 1 - November 15, 1999


Please read this License carefully before downloading this software. By
downloading and using this software, you are agreeing to be bound by the
terms of this License. If you do not or cannot agree to the terms of this
License, please do not download or use the software.

1. GENERAL; DEFINITIONS. This License applies to any program or other work
OpenDesk.com announces as subject to this OpenDesk.com Public Source License
and which contains a notice placed by OpenDesk.com identifying such program
or work as "Original Code" and stating that it is subject to the terms of
this OpenDesk.com Public Source License version 1 (or subsequent version
thereof), as it may be revised from time to time by OpenDesk.com
("License"). As used in this License:

1.1 "Affected Original Code" means only those specific portions of Original
Code that allegedly infringe upon any party's intellectual property rights
or are otherwise the subject of a claim of infringement.

1.2 "Applicable Patent Rights" mean: (a) in the case where OpenDesk.com is
the grantor of rights, (i) claims of patents that are now or hereafter
acquired, owned by or assigned to OpenDesk.com and (ii) that cover subject
matter contained in the Original Code, but only to the extent necessary to
use, reproduce and/or distribute the Original Code without infringement; and
(b) in the case where You are the grantor of rights, (i) claims of patents
that are now or hereafter acquired, owned by or assigned to You and (ii)
that cover subject matter in Your Modifications, taken alone or in
combination with Original Code.

1.3 "Covered Code" means the Original Code, Modifications, the combination
of Original Code and any Modifications, and/or any respective portions
thereof.

1.4 "Deploy" means to use, sublicense or distribute Covered Code other than
for Your internal research and development (R&D), and includes without
limitation, any and all internal use or distribution of Covered Code within
Your business or organization except for R&D use, as well as direct or
indirect sublicensing or distribution of Covered Code by You to any third
party in any form or manner.

1.5 "Larger Work" means a work which combines Covered Code or portions
thereof with code not governed by the terms of this License.

1.6 "Modifications" mean any addition to, deletion from, and/or change to,
the substance and/or structure of Covered Code. When code is released as a
series of files, a Modification is: (a) any addition to or deletion from the
contents of a file containing Covered Code; and/or (b) any new file or other
representation of computer program statements that contains any part of
Covered Code.

**1.7 "OpenDesk.com Compatibility Test" or "ODCT" means the test programs,
procedures and/or other requirements provided by OpenDesk.com for use in
testing Covered Code. OpenDesk.com may, in its sole discretion and from time
to time, revise a ODCT to correct errors and/or omissions.

1.8a "Original Code" means (a) the Source Code of a program or other work as
originally made available by OpenDesk.com under this License, including the
Source Code of any updates or upgrades to such programs or works made
available by OpenDesk.com under this License, and that has been expressly
identified by OpenDesk.com as such in the header file(s) of such work; and
(b) the object code compiled from such Source Code and originally made
available by OpenDesk.com under this License.

1.8b "Source Code" means the human readable form of a program or other work
that is suitable for making modifications to it, including all modules it
contains, plus any associated interface definition files, scripts used to
control compilation and installation of an executable (object code).

1.9 "You" or "Your" means an individual or a legal entity exercising rights
under this License. For legal entities, "You" or "Your" includes any entity
which controls, is controlled by, or is under common control with, You,
where "control" means (a) the power, direct or indirect, to cause the
direction or management of such entity, whether by contract or otherwise, or
(b) ownership of fifty percent (50%) or more of the outstanding shares or
beneficial ownership of such entity.

2. Permitted Uses; Conditions & Restrictions. Subject to the terms and
conditions of this License, OpenDesk.com hereby grants You, effective on the
date You accept this License and download the Original Code, a world-wide,
royalty-free, non-exclusive license, to the extent of OpenDesk.com's
Applicable Patent Rights and copyrights covering the Original Code, to do
the following:

2.1 You may use, copy, modify and distribute Original Code, with or without
Modifications, solely for Your internal research and development, provided
that You must in each instance:

(a) retain and reproduce in all copies of Original Code the copyright and
other proprietary notices and disclaimers of OpenDesk.com as they appear in
the Original Code, and keep intact all notices in the Original Code that
refer to this License;

(b) include a copy of this License with every copy of Source Code of Covered
Code and documentation You distribute, and You may not offer or impose any
terms on such Source Code that alter or restrict this License or the
recipients' rights hereunder, except as permitted under Section 6; and

(c) completely and accurately document all Modifications that you have made
and the date of each such Modification, designate the version of the
Original Code you used, prominently include a file carrying such information
with the Modifications, and duplicate the notice in Exhibit A in each file
of the Source Code of all such Modifications.

2.2 You may Deploy Covered Code **on internal servers not available to the
general public**, provided that You must in each instance:

(a) satisfy all the conditions of Section 2.1 with respect to the Source
Code of the Covered Code;

(b) make all Your Deployed Modifications publicly available in Source Code
form via electronic distribution (e.g. download from a web site) under the
terms of this License and subject to the license grants set forth in Section
3 below, and any additional terms You may choose to offer under Section 6.
You must continue to make the Source Code of Your Deployed Modifications
available for as long as you Deploy the Covered Code or twelve (12) months
from the date of initial Deployment, whichever is longer;

(c) if You Deploy Covered Code containing Modifications made by You, *you
must cause all Covered Code to which You contribute to contain a file
documenting the changes You made to create that Covered Code and the date of
any change You must include a prominent statement that the Modification is
derived, directly or indirectly, from Original Code provided by the Initial
Developer and including the name of the Initial Developer in (a) the Source
Code, and (b) in any notice in an Executable version or related
documentation in which You describe the origin or ownership of the Covered
Code*; and

(d) if You Deploy Covered Code in object code, executable form only, include
a prominent notice, in the code itself as well as in **a splash screen, help
file, or** related documentation, stating that Source Code of the Covered
Code is available under the terms of this License with information on how
and where to obtain such Source Code.

**2.3 You may Deploy Covered Code on servers available to the general
public, provided that You must in each instance:

**(a) satisfy all the conditions of Section 2.1 and Section 2.2 with respect
to the Source Code of the Covered Code;

**8(b) submit Deployed Covered Code to the OpenDesk.com Compatibility Test
(OCT);

**(c) remove all OpenDesk.com brand or related materials (such as the name,
logo, graphics, icons, and color schemes) if your Deployed Covered Code does
not pass the OCT.


3. Your Grants. In consideration of, and as a condition to, the licenses
granted to You under this License:

(a) You hereby grant to OpenDesk.com and all third parties a non-exclusive,
royalty-free license, under Your Applicable Patent Rights and other
intellectual property rights owned or controlled by You, to use, reproduce,
modify, distribute and Deploy Your Modifications of the same scope and
extent as OpenDesk.com's licenses under Sections 2.1 and 2.2; and

(b) You hereby grant to OpenDesk.com and its subsidiaries a non-exclusive,
worldwide, royalty-free, perpetual and irrevocable license, under Your
Applicable Patent Rights and other intellectual property rights owned or
controlled by You, to use, reproduce, execute, compile, display, perform,
modify or have modified (for OpenDesk.com and/or its subsidiaries),
sublicense and distribute Your Modifications, in any form, through multiple
tiers of distribution.

4. Larger Works. You may create a Larger Work by combining Covered Code with
other code not governed by the terms of this License and distribute the
Larger Work as a single product. In each such instance, You must make sure
the requirements of this License are fulfilled for the Covered Code or any
portion thereof. [this is where we would have liked to have seen a
'partnership' clause...]

5. Limitations on Patent License. Except as expressly stated in Section 2,
no other patent rights, express or implied, are granted by OpenDesk.com
herein. Modifications and/or Larger Works may require additional patent
licenses from OpenDesk.com which OpenDesk.com may grant in its sole
discretion.

6. Additional Terms. You may choose to offer, and to charge a fee for,
warranty, support, indemnity or liability obligations and/or other rights
consistent with the scope of the license granted herein ("Additional Terms")
to one or more recipients of Covered Code. However, You may do so only on
Your own behalf and as Your sole responsibility, and not on behalf of
OpenDesk.com. You must obtain the recipient's agreement that any such
Additional Terms are offered by You alone, and You hereby agree to
indemnify, defend and hold OpenDesk.com harmless for any liability incurred
by or claims asserted against OpenDesk.com by reason of any such Additional
Terms.

7. Versions of the License. OpenDesk.com may publish revised and/or new
versions of this License from time to time. Each version will be given a
distinguishing version number. Once Original Code has been published under a
particular version of this License, You may continue to use it under the
terms of that version. You may also choose to use such Original Code under
the terms of any subsequent version of this License published by
OpenDesk.com. No one other than OpenDesk.com has the right to modify the
terms applicable to Covered Code created under this License.

8. NO WARRANTY OR SUPPORT. The Original Code may contain in whole or in part
pre-release, untested, or not fully tested works. The Original Code may
contain errors that could cause failures or loss of data, and may be
incomplete or contain inaccuracies. You expressly acknowledge and agree that
use of the Original Code, or any portion thereof, is at Your sole and entire
risk. The Original Code is provided "AS IS" and without warranty, upgrades
or support of any kind and OpenDesk.com and OpenDesk.com's licensor(s) (for
the purposes of Sections 8 and 9, OpenDesk.com and OpenDesk.com's
licensor(s) are collectively referred to as "OpenDesk.com") EXPRESSLY
DISCLAIM ALL WARRANTIES AND/OR CONDITIONS, EXPRESS OR IMPLIED, INCLUDING,
BUT NOT LIMITED TO, THE IMPLIED WARRANTIES AND/OR CONDITIONS OF
MERCHANTABILITY OR SATISFACTORY QUALITY AND FITNESS FOR A PARTICULAR PURPOSE
AND NONINFRINGEMENT OF THIRD PARTY RIGHTS. OPENDESK.COM DOES NOT WARRANT
THAT THE FUNCTIONS CONTAINED IN THE ORIGINAL CODE WILL MEET YOUR
REQUIREMENTS, OR THAT THE OPERATION OF THE ORIGINAL CODE WILL BE
UNINTERRUPTED OR ERROR-FREE, OR THAT DEFECTS IN THE ORIGINAL CODE WILL BE
CORRECTED. NO ORAL OR WRITTEN INFORMATION OR ADVICE GIVEN BY OPENDESK.COM OR
AN OPENDESK.COM AUTHORIZED REPRESENTATIVE SHALL CREATE A WARRANTY OR IN ANY
WAY INCREASE THE SCOPE OF THIS WARRANTY. You acknowledge that the Original
Code is not intended for use in the operation of nuclear facilities,
aircraft navigation, communication systems, or air traffic control machines
in which case the failure of the Original Code could lead to death, personal
injury, or severe physical or environmental damage.

9. Liability.

9.1 Infringement. If any portion of, or functionality implemented by, the
Original Code becomes the subject of a claim of infringement, OpenDesk.com
may, at its option: (a) attempt to procure the rights necessary for
OpenDesk.com and You to continue using the Affected Original Code; (b)
modify the Affected Original Code so that it is no longer infringing; or (c)
suspend Your rights to use, reproduce, modify, sublicense and distribute the
Affected Original Code until a final determination of the claim is made by a
court or governmental administrative agency of competent jurisdiction and
OpenDesk.com lifts the suspension as set forth below. Such suspension of
rights will be effective immediately upon OpenDesk.com's posting of a notice
to such effect on the OpenDesk.com web site that is used for implementation
of this License. Upon such final determination being made, if OpenDesk.com
is legally able, without the payment of a fee or royalty, to resume use,
reproduction, modification, sublicensing and distribution of the Affected
Original Code, OpenDesk.com will lift the suspension of rights to the
Affected Original Code by posting a notice to such effect on the
OpenDesk.com web site that is used for implementation of this License. If
OpenDesk.com suspends Your rights to Affected Original Code, nothing in this
License shall be construed to restrict You, at Your option and subject to
applicable law, from replacing the Affected Original Code with
non-infringing code or independently negotiating for necessary rights from
such third party.

9.2 LIMITATION OF LIABILITY. UNDER NO CIRCUMSTANCES SHALL OPENDESK.COM BE
LIABLE FOR ANY INCIDENTAL, SPECIAL, INDIRECT OR CONSEQUENTIAL DAMAGES
ARISING OUT OF OR RELATING TO THIS LICENSE OR YOUR USE OR INABILITY TO USE
THE ORIGINAL CODE, OR ANY PORTION THEREOF, whether under a theory of
contract, warranty, tort (including negligence), products liability or
otherwise, even if OPENDESK.COM has been advised of the possibility of such
damages AND NOTWITHSTANDING THE FAILURE OF ESSENTIAL PURPOSE OF ANY REMEDY.
In no event shall OpenDesk.com's total liability to You for all damages
under this License exceed the amount of fifty dollars ($50.00).

10. Trademarks. This License does not grant any rights to use the trademarks
or trade names "HBE Software Inc.", "OpenDesk.com", or any other trademarks
or trade names belonging to HBE Software Inc. (collectively "HBE Software
Marks") and no HBE Software Marks may be used to endorse or promote products
derived from the Original Code *without written agreement by HBE Software
Inc. *

11. Ownership. OpenDesk.com retains all rights, title and interest in and to
the Original Code and any Modifications made by or on behalf of OpenDesk.com
("OpenDesk.com Modifications"), and such OpenDesk.com Modifications will not
be automatically subject to this License. OpenDesk.com may, at its sole
discretion, choose to license such OpenDesk.com Modifications under this
License, or on different terms from those contained in this License or may
choose not to license them at all. OpenDesk.com's development, use,
reproduction, modification, sublicensing and distribution of Covered Code
will not be subject to this License.

12. Termination.

12.1 Termination. This License and the rights granted hereunder will
terminate:

(a) automatically without notice from OpenDesk.com if You fail to comply
with any term(s) of this License and fail to cure such breach within 30 days
of becoming aware of such breach;

(b) immediately in the event of the circumstances described in Section
13.5(b); or

(c) automatically without notice from OpenDesk.com if You, at any time
during the term of this License, commence an action for patent infringement
against OpenDesk.com.

12.2 Effect of Termination. Upon termination, You agree to immediately stop
any further use, reproduction, modification, sublicensing and distribution
of the Covered Code and to destroy all copies of the Covered Code that are
in your possession or control. All sublicenses to the Covered Code which
have been properly granted prior to termination shall survive any
termination of this License. Provisions which, by their nature, should
remain in effect beyond the termination of this License shall survive,
including but not limited to Sections 3, 5, 8, 9, 10, 11, 12.2 and 13.
Neither party will be liable to the other for compensation, indemnity or
damages of any sort solely as a result of terminating this License in
accordance with its terms, and termination of this License will be without
prejudice to any other right or remedy of either party.

13. Miscellaneous.

13.1 Relationship of Parties. This License will not be construed as creating
an agency, partnership, joint venture or any other form of legal association
between You and OpenDesk.com, and You will not represent to the contrary,
whether expressly, by implication, appearance or otherwise.

13.2 Independent Development. Nothing in this License will impair
OpenDesk.com's right to acquire, license, develop, have others develop for
it, market and/or distribute technology or products that perform the same or
similar functions as, or otherwise compete with, Modifications, Larger
Works, technology or products that You may develop, produce, market or
distribute.

13.3 Waiver; Construction. Failure by OpenDesk.com to enforce any provision
of this License will not be deemed a waiver of future enforcement of that or
any other provision. Any law or regulation which provides that the language
of a contract shall be construed against the drafter will not apply to this
License.

13.4 Severability. (a) If for any reason a court of competent jurisdiction
finds any provision of this License, or portion thereof, to be
unenforceable, that provision of the License will be enforced to the maximum
extent permissible so as to effect the economic benefits and intent of the
parties, and the remainder of this License will continue in full force and
effect. (b) Notwithstanding the foregoing, if applicable law prohibits or
restricts You from fully and/or specifically complying with Sections 2
and/or 3 or prevents the enforceability of either of those Sections, this
License will immediately terminate and You must immediately discontinue any
use of the Covered Code and destroy all copies of it that are in your
possession or control.

13.5 Dispute Resolution. Any litigation or other dispute resolution between
You and OpenDesk.com relating to this License shall take place in the
Province of Quebec, and You and OpenDesk.com hereby consent to the personal
jurisdiction of, and venue in, the provincial and federal courts within that
District with respect to this License. The application of the United Nations
Convention on Contracts for the International Sale of Goods is expressly
excluded.

13.6 Entire Agreement; Governing Law. This License constitutes the entire
agreement between the parties with respect to the subject matter hereof.
This License shall be governed by the laws of Canada and the Province of
Quebec, except that body of Quebec law concerning conflicts of law.

Where You are located in the province of Quebec, Canada, the following
clause applies: The parties hereby confirm that they have requested that
this License and all related documents be drafted in English. Les parties
ont exigé que le présent contrat et tous les documents connexes soient
rédigés en anglais.

EXHIBIT A.

"Portions Copyright (c) 1999 OpenDesk.com. All Rights Reserved.

This file contains Original Code and/or Modifications of Original Code as
defined in and that are subject to the OpenDesk.com Public Source License
Version 1 (the 'License'). You may not use this file except in compliance
with the License. Please obtain a copy of the License at
http://www.OpenDesk.com.com/vslicense.html and read it before using this
file.

The Original Code and all software distributed under the License are
distributed on an 'AS IS' basis, WITHOUT WARRANTY OF ANY KIND, EITHER
EXPRESS OR IMPLIED, AND OPENDESK.COM HEREBY DISCLAIMS ALL SUCH WARRANTIES,
INCLUDING WITHOUT LIMITATION, ANY WARRANTIES OF MERCHANTABILITY, FITNESS FOR
A PARTICULAR PURPOSE OR NON-INFRINGEMENT. Please see the License for the
specific language governing rights and limitations under the License."



[not part of the license, to be put on the Web site before downloading the
tarball]

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