THIS OPEN SOURCE AGREEMENT ("AGREEMENT") DEFINES THE RIGHTS OF
USE, REPRODUCTION, DISTRIBUTION, MODIFICATION AND
REDISTRIBUTION OF CERTAIN COMPUTER SOFTWARE ORIGINALLY
RELEASED BY THE NATIONAL MARROW DONOR PROGRAM(R) ("NMDP") AS
FUNDED BY THE UNITED STATES GOVERNMENT REPRESENTED BY THE
NATIONAL INSTITUTES OF HEALTH ("NIH"). THE UNITED STATES
GOVERNMENT, AS REPRESENTED BY NIH, IS AN INTENDED THIRD-PARTY
BENEFICIARY OF ALL SUBSEQUENT DISTRIBUTIONS OR REDISTRIBUTIONS
OF THE SUBJECT SOFTWARE. ANYONE WHO USES, REPRODUCES,
DISTRIBUTES, MODIFIES OR REDISTRIBUTES THE SUBJECT SOFTWARE,
AS DEFINED HEREIN, OR ANY PART THEREOF, IS, BY THAT ACTION,
ACCEPTING IN FULL THE RESPONSIBILITIES AND OBLIGATIONS
CONTAINED IN THIS AGREEMENT.
________________________________________________
1. DEFINITIONS
A. "Contributor" means NMDP, as the developer of the Original
Software, NIH, and any entity that makes a Modification.
B. "Covered Patents" mean patent claims licensable by a
Contributor that are necessarily infringed by the use
or sale of its Modification alone or when combined
with the Subject Software.
C. "Display" means the showing of a copy of the Subject Software,
either directly or by means of an image, or any other device.
D. "Distribution" means conveyance or transfer of the Subject
Software, regardless of means, to another.
E. "Larger Work" means computer software that combines Subject
Software, or portions thereof, with software separate from the
Subject Software that is not governed by the terms of this
Agreement.
F. "Modification" means any alteration of, including addition to
or deletion from, the substance or structure of either
the Original Software or Subject Software, and includes
derivative works, as that term is defined in the
Copyright Statute, 17 USC 101. However, the act of
including Subject Software as part of a Larger Work does
not in and of itself constitute a Modification.
G. "Original Software" means the computer software first
released under this Agreement by NMDP entitled A
Growable Network Information System (AGNIS),
including source code, object code and accompanying
documentation, if any.
H. "Recipient" means anyone who acquires the Subject Software
under this Agreement, including all Contributors.
I. "Redistribution" means Distribution of the Subject Software
after a Modification has been made.
J. "Reproduction" means the making of a counterpart, image or
copy of the Subject Software.
K. "Sale" means the exchange of the Subject Software for money
or equivalent value.
L. "Subject Software" means the Original Software,
Modifications, or any respective parts thereof.
M. "Use" means the application or employment of the Subject
Software for any purpose.
2. GRANT OF RIGHTS
A. Under Non-Patent Rights: Subject to the terms and conditions
of this Agreement, each Contributor, with respect to its own
contribution to the Subject Software, hereby grants to each
Recipient a non-exclusive, world-wide, royalty-free license
to engage in the following activities pertaining to the
Subject Software:
1. Use
2. Distribution
3. Reproduction
4. Modification
5. Redistribution
6. Display
B. Under Patent Rights: Subject to the terms and conditions of
this Agreement, each Contributor, with respect to its own
contribution to the Subject Software, hereby grants to each
Recipient under Covered Patents a non-exclusive, world-wide,
royalty-free license to engage in the following activities
pertaining to the Subject Software:
1. Use
2. Distribution
3. Reproduction
4. Sale
5. Offer for Sale
C. The rights granted under Paragraph B. also apply to the
combination of a Contributor's Modification and the Subject
Software if, at the time the Modification is added by the
Contributor, the addition of such Modification causes the
combination to be covered by the Covered Patents. It does
not apply to any other combinations that include a
Modification.
D. The rights granted in Paragraphs 2.A. and 2.B., above, allow
the Recipient to sublicense those same rights. Such
sublicense must be under the same terms and conditions of
this Agreement.
3. OBLIGATIONS OF RECIPIENT
A. Distribution or Redistribution of the Subject Software must
be made under this Agreement except for additions covered
under paragraph 3.H.
1. Whenever a Recipient distributes or redistributes
the Subject Software, a copy of this Agreement
must be included with each copy of the Subject
Software; and
2. If Recipient distributes or redistributes the Subject
Software in any form other than source code,
Recipient must also make the source code freely
available, and must provide with each copy of
the Subject Software information on how to
obtain the source code in a reasonable manner on
or through a medium customarily used for software
exchange.
B. Each Recipient must ensure that the following copyright
notice appears prominently in the Subject Software:
"Copyright (C) 2007 National Marrow Donor Program. All
Rights Reserved."
C. Each Contributor must characterize its alteration of the
Subject Software as a Modification and must identify
itself as the originator of its Modification in a manner
that reasonably allows subsequent Recipients to identify
the originator of the Modification. In fulfillment of these
requirements, Contributor must include a file
(e.g., a change log file) that describes the
alterations made and the date of the alterations,
identifies Contributor as originator of the alterations,
and consents to characterization of the alterations as a
Modification, for example, by including a statement that the
Modification is derived, directly or indirectly, from
Original Software provided by NMDP. Once consent is granted,
it may not thereafter be revoked.
D. A Contributor may add its own copyright notice to the Subject
Software. Once a copyright notice has been added to the
Subject Software, a Recipient may not remove it without the
express permission of the Contributor who added the notice.
E. A Recipient may not make any representation in the Subject
Software or in any promotional, advertising or other material
that may be construed as an endorsement by NMDP, NIH, or by
any prior Recipient of any product or service provided by
Recipient, or that may seek to obtain commercial advantage by
the fact of NMDP's, NIH's, or a prior Recipient's
participation in this Agreement.
F. In an effort to track usage and maintain accurate records of
the Subject Software, each Recipient, upon receipt of the
Subject Software, is requested to provide NMDP, by e-mail to
the NMDP Point of Contact listed in paragraph 5.F., the
following information: Organization name, contact
information, description of intended use. Recipient's name
and personal information shall be used for statistical
purposes only. Once a Recipient makes a Modification
available, it is requested that the Recipient inform NMDP,
by e-mail to the NMDP Point of Contact listed in paragraph
5.F., how to access the Modification.
G. Each Contributor represents that its Modification is believed
to be Contributor's original creation and does not violate
any existing agreements, regulations, statutes or rules, and
further that Contributor has sufficient rights to grant the
rights conveyed by this Agreement.
H. A Recipient may choose to offer, and to charge a fee for,
warranty, support, indemnity and/or liability obligations to
one or more other Recipients of the Subject Software. A
Recipient may do so, however, only on its own behalf and not
on behalf of NMDP, NIH, or any other Recipient. Such a
Recipient must make it absolutely clear that any such
warranty, support, indemnity and/or liability obligation is
offered by that Recipient alone. Further, such Recipient
agrees to indemnify NMDP, NIH, and every other Recipient for
any liability incurred by them as a result of warranty,
support, indemnity and/or liability offered by such Recipient.
I. A Recipient may create a Larger Work by combining Subject
Software with separate software not governed by the terms
of this Agreement and distribute the Larger Work as a
single product. In such case, the Recipient must make sure
Subject Software, or portions thereof, included in the
Larger Work is subject to this Agreement.
J. Notwithstanding any provisions contained herein, Recipient is
hereby put on notice that export of any goods or technical
data from the United States may require some form of export
license from the United States Government. Failure to obtain
necessary export licenses may result in criminal liability
under U.S. laws. NMDP and NIH neither represent that a
license shall not be required nor that, if required, it
shall be issued. Nothing granted herein provides any such
export license.
4. DISCLAIMER OF WARRANTIES AND LIABILITIES; WAIVER AND INDEMNIFICATION
A. No Warranty: THE SUBJECT SOFTWARE IS PROVIDED "AS IS" WITHOUT
ANY WARRANTY OF ANY KIND, EITHER EXPRESSED, IMPLIED, OR
STATUTORY, INCLUDING, BUT NOT LIMITED TO, ANY WARRANTY THAT
THE SUBJECT SOFTWARE WILL CONFORM TO SPECIFICATIONS, ANY
IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A
PARTICULAR PURPOSE, OR FREEDOM FROM INFRINGEMENT, ANY
WARRANTY THAT THE SUBJECT SOFTWARE WILL BE ERROR FREE, OR
ANY WARRANTY THAT DOCUMENTATION, IF PROVIDED, WILL CONFORM
TO THE SUBJECT SOFTWARE. THIS AGREEMENT DOES NOT, IN ANY
MANNER, CONSTITUTE AN ENDORSEMENT BY NMDP, NIH, OR ANY PRIOR
RECIPIENT OF ANY RESULTS, RESULTING DESIGNS, HARDWARE,
SOFTWARE PRODUCTS OR ANY OTHER APPLICATIONS RESULTING FROM
USE OF THE SUBJECT SOFTWARE.FURTHER, NMDP DISCLAIMS ALL
WARRANTIES AND LIABILITIES REGARDING THIRD-PARTY SOFTWARE,
IF PRESENT IN THE ORIGINAL SOFTWARE, AND DISTRIBUTES IT
"AS IS."
B. Waiver and Indemnity: RECIPIENT AGREES TO WAIVE ANY AND ALL
CLAIMS AGAINST NMDP, THE UNITED STATES GOVERNMENT, ITS
CONTRACTORS AND SUBCONTRACTORS, AS WELL AS ANY PRIOR
RECIPIENT. IF RECIPIENT'S USE OF THE SUBJECT SOFTWARE
RESULTS IN ANY LIABILITIES, DEMANDS, DAMAGES, EXPENSES OR
LOSSES ARISING FROM SUCH USE, INCLUDING ANY DAMAGES FROM
PRODUCTS BASED ON, OR RESULTING FROM, RECIPIENT'S USE OF THE
SUBJECT SOFTWARE, RECIPIENT SHALL INDEMNIFY AND HOLD HARMLESS
NMDP, THE UNITED STATES GOVERNMENT, ITS CONTRACTORS AND
SUBCONTRACTORS, AS WELL AS ANY PRIOR RECIPIENT, TO THE EXTENT
PERMITTED BY LAW. RECIPIENT'S SOLE REMEDY FOR ANY SUCH MATTER
SHALL BE THE IMMEDIATE, UNILATERAL TERMINATION OF THIS
AGREEMENT.
5. GENERAL TERMS
A. Termination: This Agreement and the rights granted hereunder
will terminate automatically if a Recipient fails to comply
with these terms and conditions, and fails to cure such
noncompliance within thirty (30) days of becoming aware of
such noncompliance. Upon termination, a Recipient agrees to
immediately cease use and distribution of the Subject
Software. All sublicenses to the Subject Software properly
granted by the breaching Recipient shall survive any such
termination of this Agreement.
B. Severability: If any provision of this Agreement is invalid or
unenforceable under applicable law, it shall not affect the
validity or enforceability of the remainder of the terms of
this Agreement.
C. Applicable Law: This Agreement shall be subject to United
States federal law only for all purposes, including, but
not limited to, determining the validity of this Agreement,
the meaning of its provisions and the rights, obligations
and remedies of the parties.
D. Entire Understanding: This Agreement constitutes the entire
understanding and agreement of the parties relating to
release of the Subject Software and may not be superseded,
modified or amended except by further written agreement duly
executed by the parties.
E. Binding Authority: By accepting and using the Subject
Software under this Agreement, a Recipient affirms its
authority to bind the Recipient to all terms and
conditions of this Agreement and that that Recipient hereby
agrees to all terms and conditions herein.
F. Point of Contact: Any Recipient contact with NMDP is to be
directed to the designated representative as follows:
agnis@nmdp.org.