IMPORTANT: BY CLICKING THE “AGREED AND ACCEPTED” BOX BELOW, LICENSEE IS AGREEING THAT LICENSEE (REFERRING TO THE BUSINESS ENTITY THAT IS DOWNLOADING THE SPECIFICATION FROM OPEN ALLIANCE AND ANYONE USING THE SPECIFICATION ON BEHALF OF THAT ENTITY), HAS ACCEPTED ALL THE PROVISIONS CONTAINED IN THIS AGREEMENT, AND IS LEGALLY BOUND THEREBY. THIS AGREEMENT CONTAINS LIMITATIONS OF LIABILITY, WARRANTY DISCLAIMERS AND CHOICE OF LAW PROVISIONS.
This Specification License Agreement (the “Agreement”) applies to the OPEN Alliance Specification, provided by OPEN Alliance on the OPEN Alliance website, opensig.org and that you will download after you agree to this Agreement (hereinafter referred to as the “Specification”).
By clicking the “Agreed and Accepted” box below, Licensee accepts and agrees to all of the provisions contained in this Agreement without modification. This Agreement and the Copyright Notice and Disclaimer contained in the Specification, which is incorporated herein by this reference, are the sole and exclusive terms and conditions for use of the Specification, and nothing else gives Licensee or any other person or entity any right to use, copy, modify or distribute the Specification, in whole or in part. Except for the rights expressly granted under this Agreement, OPEN Alliance and its licensors reserve all other rights in and to the Specification. Using the Specification is prohibited by law if Licensee does not accept this Agreement. By downloading or using any part of the Specification, Licensee also indicates that it accepts this Agreement.
If Licensee does not agree to the terms of the Agreement, Licensee is not granted any rights whatsoever to download or use the Specification.
1. Definitions.
In addition to other terms defined elsewhere in this Agreement, the following terms, when the first letter is capitalized, have the meanings set forth in this Section 1. All definitions below shall apply both to their singular or plural forms, as the context may require.
“Feedback” means any communication pertaining to the Specification made by Licensee, including without limitation modifications, changes, fixes, improvements, enhancements, applications, suggestions, ideas, concepts, know-how, techniques, data, translations, and reformattings.
“Specification Intellectual Property” means OPEN Alliance copyrights in the Specification, and the copyrights of the OPEN Alliance Members (as that term is defined in the OPEN Alliance Bylaws) in their contributions to the Specification.
2. Limited License; Restrictions.
2.1 Limited Copyright License. Subject to the terms and conditions of this Agreement, OPEN Alliance hereby grants to Licensee a royalty-free, worldwide, non-exclusive, non-sublicensable (except to Licensee’s third party manufacturers, distributors, wholesalers, and retailers who are using the Specification solely on Licensee’s behalf and solely for Licensee’s benefit under the terms of this Agreement), non-transferable copyright license to use, reproduce, internally distribute, and internally display the Specification and Specification Intellectual Property for internal business purposes and solely as reasonably necessary to implement such Specification in Licensee’s products and services.
2.2 Restrictions on Use. Except as expressly permitted in Section 2.1, Licensee may not (i) modify, alter, combine, delete portions of, prepare or create derivative works of, or otherwise change the Specification or any part thereof, (ii) sell, assign, pledge, lease, loan, rent, distribute, publish, display, or otherwise transfer the Specification or any part thereof in any form to another person (except that Licensee may solely permit Licensee’s third party manufacturers, distributors, wholesalers, and retailers to use the Specification solely on Licensee’s behalf and solely for Licensee’s benefit under the terms of this Agreement), (iii) remove from the Specification, or alter, any copyright notices or other proprietary notices or restricted rights notices, or add any other notices or markings to the Specification, or (iv) permit any other party to do any of the foregoing under (i) through (iii). For the avoidance of doubt, Licensee shall not include all or any portion of this Specification in any other technical specification or technical material, product manual, marketing material, or any other material without OPEN Alliance’s prior written consent. All rights not expressly granted to Licensee in the Agreement are reserved. OPEN Alliance does not grant to Licensee any express or implied licenses or rights to any enabling technologies or systems that may be necessary to develop, demonstrate, make, use or sell an implementation of the Specification.
2.3 Feedback License. Licensee hereby grants to OPEN Alliance and its affiliates a royalty-free, worldwide, non-exclusive, transferable, sublicensable, perpetual and irrevocable license under all of Licensee’s present and future copyrights, trade secret rights, patent rights, and other intellectual property rights, and all applications and registrations therefor, in any Feedback that Licensee provides to OPEN Alliance, to copy, modify, perform, display, create derivative works of, and otherwise use such Feedback, and to make, have made, use, sell, offer to sell, import and otherwise exploit any implementation of such Feedback, including without limitation the right to sublicense such rights through multiple tiers of distribution. Without limiting the foregoing, Licensee acknowledges and agrees that OPEN Alliance may incorporate all or parts of the Feedback into the Specification or any other specification, document, product, service, or otherwise. OPEN Alliance may assign its rights under such license in conjunction with all or any part of its rights in the Specification.
2.4 Maintenance and Upgrades. Licensee understands that OPEN Alliance may update the Specification at any time but is under no obligation to inform Licensee of or furnish to Licensee such updates pursuant to this Agreement. This Agreement does not grant Licensee any right, license, or interest in or to any direct or indirect support, maintenance, improvements, modifications, enhancements, or updates to the Specification or supporting documentation; and OPEN Alliance has no obligation whatsoever to provide any of the foregoing for or to Licensee or its products or services that implement that Specification or otherwise.
3. Ownership; Reservation of Rights. Licensee agrees that the Specification and all intellectual property rights therein are owned by OPEN Alliance (or OPEN Alliance’s licensors). As between Licensee and OPEN Alliance, OPEN Alliance retains all right, title and interest in and to the Specification, including all of its intellectual property rights related thereto and to each whole or partial copy thereof. The Licensee acquires no title, right or interest in the Specification other than the limited copyright license expressly granted under Section 2 herein.
4. Confidentiality Requirement. The Specification contains valuable, proprietary trade secrets and confidential information of OPEN Alliance. Licensee agrees to retain in confidence and not to disclose the Specification to any third party, and Licensee shall use the Specification solely for the purpose permitted under this Agreement. Licensee agrees to take all reasonable steps to prevent disclosure and unauthorized use of Specification and to use no less than the same degree of care to protect the confidentiality of the Specification that Licensee uses with respect to its own confidential information of similar kind or nature. Licensee shall promptly notify OPEN Alliance of any unauthorized use or disclosure of the Specification. The obligations of confidentiality and restrictions on use of the Specification under this Agreement shall survive after the termination of this Agreement.
5. Warranty Disclaimer; Specification Provided AS IS. The Specification is provided to Licensee “AS IS” without any warranties of any kind. OPEN Alliance makes no warranties to Licensee and shall not have any duty or obligation to defend or indemnify Licensee or to hold Licensee harmless for any reason related to the Specification, or otherwise be liable to Licensee or any third party with respect to the subject matter of this Agreement. Licensee acknowledges and agrees that the Specification is provided AS IS and accepts all risks of utilizing the Specification. FURTHERMORE, OPEN ALLIANCE AND ITS LICENSORS EXPRESSLY DISCLAIM ALL REPRESENTATIONS, WARRANTIES, AND GUARANTEES, WHETHER EXPRESS OR IMPLIED, STATUTORY, OR OTHERWISE (UNLESS, AND THEN ONLY TO THE EXTENT THEY ARE, MANDATORY UNDER LAW). WITHOUT LIMITING THE FOREGOING SENTENCE, OPEN ALLIANCE MAKES NO REPRESENTATIONS OR WARRANTIES OR GUARANTEES WITH REGARD TO THIS SPECIFICATION OR THE INFORMATION (INCLUDING ANY SOFTWARE) CONTAINED THEREIN. OPEN ALLIANCE HEREBY EXPRESSLY DISCLAIMS ANY AND ALL SUCH EXPRESS, IMPLIED, STATUTORY, AND ALL OTHER REPRESENTATIONS, WARRANTIES, AND GUARANTEES, INCLUDING, BUT NOT LIMITED TO, ANY AND ALL IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE OR USE, ACCURACY, COMPLETENESS, TITLE, NON-INFRINGEMENT OF OR ABSENCE OF THIRD PARTY INTELLECTUAL PROPERTY RIGHTS OR OTHER RIGHTS, AND/OR VALIDITY OF RIGHTS IN THE SPECIFICATION. WITHOUT LIMITING THE FOREGOING, OPEN ALLIANCE AND/OR ITS LICENSORS HAS(VE) NO OBLIGATION WHATSOEVER TO INDEMNIFY OR DEFEND YOU AGAINST CLAIMS RELATED TO INFRINGEMENT OR MISAPPROPRIATION OF INTELLECTUAL PROPERTY RIGHTS. OPEN ALLIANCE AND ITS LICENSORS SHALL HAVE NO LIABILITY TO LICENSEE, OR ITS SUBSIDIARIES, AFFILIATES, OR ANY OTHER THIRD PARTY FOR ANY LOSSES, COSTS, EXPENSES, OR DAMAGES OF ANY KIND WHATSOEVER, INCLUDING WITHOUT LIMITATION, DAMAGES RESULTING OR ALLEGED TO HAVE RESULTED FROM ANY DEFECT, ERROR OR OMMISSION IN THE SPECIFICATION, OR AS A RESULT OF ANY INFRINGEMENT OF ANY INTELLECTUAL PROPERTY RIGHT OF ANY THIRD PARTY. IN NO EVENT SHALL OPEN ALLIANCE OR ITS LICENSORS BE LIABLE FOR ANY DIRECT, INCIDENTAL, INDIRECT, SPECIAL, EXEMPLARY, PUNITIVE, OR CONSEQUENTIAL DAMAGES (INCLUDING LOST PROFITS) SUFFERED BY LICENSEE OR ITS SUBSIDIARIES, AFFILIATES, OR ANY THIRD PARTY ARISING OUT OF OR RELATED TO THIS AGREEMENT AND/OR USE OF THE SPECIFICATION OR ANY INFORMATION THEREIN, EVEN IF OPEN ALLIANCE HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THE TOTAL CUMULATIVE LIABILITY OF OPEN ALLIANCE TO LICENSEE UNDER THIS AGREEMENT SHALL BE LIMITED TO THE GREATER OF (i) THE AMOUNT PAID BY LICENSEE TO OPEN ALLIANCE FOR THE SPECIFICATION; OR (ii) USD 50.00. NOTHING IN THIS DOCUMENT OPERATES TO LIMIT OR EXCLUDE ANY LIABILITY FOR FRAUD OR ANY OTHER LIABILITY WHICH IS NOT PERMITTED TO BE EXCLUDED OR LIMITED BY OPERATION OF LAW.
6. Terms and Termination
6.1 Term. The “Term” of this Agreement shall commence on the date Licensee downloads the Specification (the “Effective Date”) and shall continue in effect, unless terminated sooner as set forth herein.
6.2 Termination for Breach. Either party may terminate this Agreement immediately upon written notice if the other party materially breaches any provision of this Agreement and does not cure such breach within ten (10) business days from the date written notice of such breach is provided to the breaching party; provided, however, that OPEN Alliance shall have the right to terminate this Agreement immediately if Licensee breaches Section 4 (Confidentiality). OPEN Alliance may provide notice of such termination under this Section 7.2 by posting an announcement on its website (at OPENSIG.ORG).
6.3 Termination for Convenience. Either party may terminate this Agreement anytime and for any reason upon thirty (30) calendar days’ prior written notice to the other; provided, however, that OPEN Alliance may provide such notice by posting an announcement on its website (at OPENSIG.ORG).
6.4 Effect of Termination. The license granted to Licensee under this Agreement shall immediately end upon the termination of this Agreement. Upon termination of this Agreement, Licensee shall immediately cease use of and destroy all copies and versions of the Specification.
7. General
7.1 Survival. The provisions of Sections 1, 2.3, 3, 4, 5, 7.4, and 8 shall survive the termination of this Agreement.
7.2 Assignment Prohibited by Licensee. Licensee may not assign its rights or obligations under this Agreement without the prior written consent of OPEN Alliance, and any purported assignment without such consent shall have no force or effect. Subject to the foregoing, this Agreement shall bind and inure to the benefit of the respective parties hereto and their permitted successors and assigns. In the event of an assignment or attempted assignment by Licensee without OPEN Alliance’s prior written approval, this Agreement shall immediately terminate.
7.3 Relationship. No principal/agent, joint venture, franchise, employment, or partnership relationship is created between the parties by this Agreement. Neither party has the authority to bind the other party or represent to any person or entity that the party is an agent of the other.
7.4 Waiver. No failure or delay by either party to enforce or take advantage of any provision or right under this Agreement shall constitute a subsequent waiver of that provision or right, nor shall it be deemed to be a waiver of any of the other terms and/or conditions of this Agreement.
7.5 Reformation. In the event that any provision of this Agreement is prohibited by any law governing its construction, performance or enforcement, such provision shall be ineffective to the extent of such prohibition without invalidating thereby any of the remaining provisions of the Agreement.
7.6 Choice of Law; Jurisdiction; Attorneys Fees. This Agreement shall be governed by and interpreted in accordance with the laws of the State of Delaware, without regard to provisions concerning conflicts of law. The sole jurisdiction and venue for any action related to the subject matter of this Agreement will be in a state or federal court located in New York City, NY. Both parties hereby submit to the exclusive jurisdiction of such courts over each of them personally in connection with such litigation, and waive any objection to venue in such courts and waive any claim that such forum is an inconvenient forum. In the event any proceeding or lawsuit is brought by either party in connection with this Agreement, the prevailing party in such proceeding or lawsuit shall be entitled to receive its costs for such action, including its reasonable attorneys’ fees and expert witness fees.
7.7 Injunctive Relief. Licensee acknowledges that a breach of this Agreement may cause irreparable damage for which recovery of money damages would be inadequate, and that, in addition to any and all remedies available at law and equity, OPEN Alliance shall be entitled to seek injunctive relief to protect its rights under this Agreement.
7.8 Notices. All notices under this Agreement must be in writing and must be given as follows: if to OPEN Alliance, then via email to admin@members.opensig.org; if to Licensee, then via a posting on the OPEN Alliance website (at OPENSIG.ORG). Notices will be deemed received when sent.
7.9 Entire Agreement; Amendments in Writing. This Agreement (and the Copyright Notice and Disclaimer contained in the Specification) is the entire agreement between the parties with respect to the subject matter hereof, and it supersedes any prior or contemporaneous agreements and negotiations relating to such subject matter. This Agreement may not be modified except by a writing signed by both parties.
