Discuss: Request for OSI approval

Thu Apr 25 19:57:00 UTC 2002

Quoting Chris Knight (merlin at ghostwheel.com):

> [ please discuss this license.  -russ ]

For listmembers' convenience, I've converted the licence text into plain
ASCII, in the process fixing quite a number of goofy Microsoft-specific
high-bit special characters (weird quotation marks, stylised apostrophes
and dashes, copyright and trademark symbols) to their standard ASCII
equivalents.  And I re-flowed some text -- but have made no changes to
the contents.

Submitters should ideally do their own text-janitorial work.

-- RM

BEATNIK PUBLIC LICENSE AGREEMENT

IMPORTANT: This is a public license agreement ("Agreement") between you
(the "User" as defined below) and Beatnik, Inc., with its principal
place of business at 2600 S. El Camino Real, San Mateo, California 94403
("Beatnik"). It is important that you read this document before clicking
on the "I Accept" button below or using the Software (as defined below).
By clicking on the "I Accept" button below and/or using any of the
Software, you acknowledge that you have read this Agreement and agree to
be bound by its terms. If you do not agree to be bound by all of the
terms of this Agreement, click on the "I decline" button below and do
not attempt to access, install or use any of the Software. Any use or
distribution of the Program constitutes User's acceptance of this
Agreement.

Section 1. DEFINITIONS.

1.1 "Contribution" means:

    (a) in the case of Beatnik, the Original Program, and

    (b) in the case of each Contributor, changes and/or 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.

1.2 "Contributor" means Beatnik and any other entity that distributes
the Program.

1.3 "Original Program" means the original version of the Software, in
object code and source code form, together with any related technical
specification documentation provided by Beatnik.

1.4 "Program" means the Original Program and Contributions.

1.5 "Software" means the Beatnik Player software, version 2.0 - 2.x, in
source code and object code format, as made available by Beatnik via
download from ______________, and does not include any portion of the
Beatnik Audio Engine in any format, whether or not made available via
download at the same time.

1.6 "User" means anyone who receives the Program under this Agreement,
including all Contributors.

Section 2. LICENSE.

2.1 License Grant. Subject to the terms of this Agreement, each
Contributor hereby grants User a non-exclusive, worldwide, royalty-free
license to install, use, reproduce, prepare derivative works of,
publicly display, publicly perform, import, distribute and sublicense
the Contribution of such Contributor, if any, and such derivative works,
in source code and object code form.

2.2 Third Party Licenses. User 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 User 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 User 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 User to distribute the Program, it is User's responsibility to
acquire that license before distributing the Program.

2.3 Netscape Public License. The Original Program may contain certain
files that are derived, directly or indirectly from the Mozilla
Communicator client code, released March 31, 1998 ("Netscape Code"),
provided by Netscape Communications Corporation ("Netscape"). The source
code of such files are made available by Beatnik pursuant to the terms
of the Netscape Public License, Version 1.0 ("NPL") available via
download from Beatnik's website. Any terms applicable to such files in
this Agreement which are different from the terms with respect to the
executable version of the Netscape Code in the NPL are offered by
Beatnik alone, and not by Netscape or any other contributor. 

2.4 Ownership. Subject only to the licenses granted in this Section 2,
Beatnik, its licensors, or Contributors, as applicable, shall retain all
right, title and interest, including without limitation all copyrights,
trademarks and other proprietary rights, in and to the Program. The
Program is protected by the copyright and patent laws of the United
States and other countries, and international copyright conventions and
treaties.  Beatnik reserves all rights in the Program not expressly
granted to User herein.

Section 3. REQUIREMENTS. 

3.1 Object Code Distribution. 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; and

        (iii) states that any provisions which differ from this Agreement
        are offered by that Contributor alone and not by any other party.

3.2 Source Code Distribution. 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.

3.3 Contributor Identification. Each Contributor must include the
following in a conspicuous location in the Program:

    Copyright (c) 1996 - 2001 Beatnik, Inc. and others. All rights reserved.
    MPEG Layer 3 audio coding technology licensed from Fraunhofer IIS and  
    THOMSON multimedia. Portions created by Netscape, if any, are Copyright
    (c) 1998 Netscape Communications Corporation. All rights reserved.   

    Each Contributor must also identify itself as the originator of its
    Contribution, if any, in a manner that reasonably allows subsequent
    Users to identify the originator of the Contribution. In no event may
    Contributor use any trademark, trade name, logo or other proprietary 
    designation of Beatnik without Beatnik's prior written consent and  
    nothing in this Agreement shall be deemed a grant of such consent.

Section 4. COMMERCIAL DISTRIBUTION.                                        

4.1 Commercial distributors of software may accept certain
responsibilities with respect to end users and business partners. 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. 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. 

Section 5. TERM AND TERMINATION.                                          

5.1 Term. This Agreement shall commence on the date on which you click
"I Accept" below (the "Effective Date"), and shall continue
indefinitely, unless terminated pursuant to Section 5.2 of this
Agreement.

5.2 Termination. All User'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 within thirty (30) days
after becoming aware of such noncompliance. If all User's rights under
this Agreement terminate, User agrees to cease use and distribution of
the Program as soon as reasonably practicable. However, User's
obligations under this Agreement and any licenses granted by User
relating to the Program shall continue and survive. 

Section 6. WARRANTY DISCLAIMER. THE PROGRAM IS LICENSED "AS-IS." NO
WARRANTY OF ANY KIND, WHETHER EXPRESS OR IMPLIED IS PROVIDED BY BEATNIK,
INC., ITS LICENSORS OR ANY CONTRIBUTOR. BEATNIK, ITS LICENSORS AND EACH
CONTRIBUTOR EXPRESSLY DISCLAIM ANY AND ALL WARRANTIES OF ANY KIND
WHETHER EXPRESS OR IMPLIED (EITHER IN FACT OR BY OPERATION OF LAW) WITH
RESPECT TO THE PROGRAM, INCLUDING WITHOUT LIMITATION, ALL IMPLIED
WARRANTIES OF MERCHANTABILITY, NON-INFRINGEMENT OR FITNESS FOR A
PARTICULAR PURPOSE.  Each User is solely responsible for determining the
appropriateness of using and distributing the Program and assumes all
risks associated with it 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. In no event
will Beatnik be obligated to provide Users with any update or new
version of the Program or any maintenance or technical support with
respect to the Program

Section 7. LIMITATION OF LIABILITY. EXCEPT AS EXPRESSLY SET FORTH IN
THIS AGREEMENT, NEITHER BEATNIK, ITS LICENSORS, USER NOR ANY
CONTRIBUTORS SHALL HAVE ANY LIABILITY OR BE OBLIGATED WITH RESPECT TO
ANY SUBJECT MATTER OF THIS AGREEMENT UNDER CONTRACT, NEGLIGENCE, STRICT
LIABILITY OR ANY OTHER LEGAL OR EQUITABLE THEORY FOR ANY DIRECT,
SPECIAL, INCIDENTAL, PUNITIVE OR CONSEQUENTIAL DAMAGES (INCLUDING,
WITHOUT LIMITATION, FOR ANY COST OF PROCUREMENT OF SUBSTITUTE GOODS,
TECHNOLOGY, SERVICES OR RIGHTS), EVEN IF BEATNIK, USER OR CONTRIBUTOR
HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.

Section 8. GENERAL PROVISIONS.                                            

8.1 Future Versions of Agreement. Beatnik may publish new versions
(including revisions) of this Agreement from time to time. 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. No one other than Beatnik has the right to modify this
Agreement.

8.2 Governing Law. This Agreement shall be governed in all respects by
the substantive laws of the State of California, United States of
America (excluding conflict of laws rules). Any dispute regarding this
Agreement shall be subject to the exclusive jurisdiction of the
California state courts in and for San Mateo County, California or, if
there is federal jurisdiction, the United States District Court for the
Northern District of California, and the parties agree to submit to the
personal and exclusive jurisdiction and venue of these courts.

8.3 Notices. All notices, statements and reports required or permitted
by this Agreement shall be in writing and deemed to have been
effectively given and received; (i) five (5) business days after the
date of mailing if sent by registered or certified U.S. mail, postage
prepaid, with return receipt requested; (ii) when transmitted if sent by
facsimile, provided a confirmation of transmission is produced by the
sending machine and a copy of such facsimile is promptly sent by another
means specified in this Section 8.4; or (iii) when delivered, if
delivered personally or sent by express courier service. All notices to
Beatnik must be sent to the attention of Beatnik's General Counsel at
the address first set forth above.

8.4 Export Restrictions. User will comply in all respects with all laws,
regulations, rules and treaties applicable to any materials or
technology provided hereunder, including without limitation, all export
restrictions.  By downloading, using or installing the Software, you
warrant that you are not, and are not located in, under the control of,
or a national or resident of any country subject to United States export
restrictions that prohibit the license of the Software to you.

8.5 Successors and Assigns. The provisions of this Agreement shall apply
to and bind the successors and permitted assigns of the parties.

8.6 Severability. If any provision set forth in this Agreement is
determined by any court to be unenforceable, invalid or illegal, such
provision shall be interpreted to have the broadest application as shall
be enforceable, valid and legal, provided, however, that if such
provision cannot be interpreted to be enforceable, valid or legal to any
extent, such provision shall be severed. The invalidity, illegality or
unenforceability of any particular provision of this Agreement shall not
affect the other provisions hereof, which shall continue in full force
and effect.

8.7 Waiver of Rights. The failure of either party to require performance
of any of the terms, covenants, or conditions of this Agreement or to
exercise any right hereunder in any instance(s), shall not be construed
as a waiver or relinquishment of the future performance of any rights.

8.8 Entire Agreement; Conflict. This Agreement, together with all
exhibits and schedules hereto, constitutes the complete, final and
exclusive statement of the terms of the Agreement among the parties
pertaining to the subject matter hereof and supersedes all prior
agreements, understandings, negotiations and discussions of the parties.
No modification or rescission of this Agreement shall be binding unless
executed in writing by the party to be bound thereby.

8.9 Legal Expenses. The prevailing party in any legal action brought by
one party against the other and arising out of this Agreement will be
entitled, in addition to any other rights and remedies it may have, to
reimbursement for its expenses, including court costs and reasonable
attorneys' fees.

8.10 Government End-Users. The Software and accompanying documentation
are deemed to be "commercial computer software" and "commercial computer
software documentation", respectively, pursuant to DFAR Section 227.7202
and FAR Section 2.212, as applicable. Any use, modification,
reproduction, release, performing, displaying or disclosing of the
software and accompanying documentation by the U.S. Government shall be
governed solely by the terms of this Agreement and shall be prohibited
except to the extent expressly permitted by the terms of this Agreement.

Copyright notice applicable to the Software: Copyright (c) 1996 - 2001
Beatnik, Inc. and others. All rights reserved. MPEG Layer 3 audio coding
technology licensed from Fraunhofer IIS and THOMSON multimedia. Certain
portions created by Netscape are Copyright (c) 1998 Netscape
Communications Corporation. All rights reserved.

Beatnik(R), Beatnik Player(TM) and Beatnik Audio Engine(TM) are
trademarks of Beatnik, Inc. in the United States and/or other countries.

I ACCEPT / I DECLINE

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