ORCA Open Source License Agreement

ORCA OPEN SOURCE LICENSE AGREEMENT

This License Agreement (“Agreement”) is a legal agreement between you (“Licensee”) and the Alliance for Telecommunications Industry Solutions (“Licensor”) in connection with the Orca software, which is comprised of the Orca.js library and the documentation, test framework and test cases related thereto (collectively, the “Orca Software”) that permits Licensee to use the Orca Software pursuant to the terms hereof.  By installing, copying, or otherwise using the Orca Software, Licensee hereby agrees to be bound by the terms of this Agreement. If Licensee does not agree to the terms of this Agreement, do not install or use the Orca Software.

For purposes of this Agreement, the term Orca Software shall include upgrades, modified versions, updates, additions and copies of the Orca Software made available by Licensor pursuant to the terms of this Agreement.  In addition, “derivative works” is as defined in U.S. Copyright Law, Title 17 U.S.C. § 101 et seq. or equivalent law of foreign jurisdictions.

1.         Grant of Rights.

(a)        Software License.  Subject to the provisions contained herein, Licensor hereby grants Licensee a worldwide, non-exclusive, royalty-free, fully paid-up right and license to use, reproduce, prepare derivative works of, publicly display, publicly perform, distribute and sublicense the Orca Software, and any derivative works thereof, in source code and object code format.

(b)        Patent License.  Subject to the provisions contained herein, Licensor hereby grants Licensee a worldwide, non-exclusive, royalty-free, fully paid-up right and license under the Licensed Patents solely to make, use, sell, offer to sell, import and otherwise transfer the Orca Software in source code and object code format solely in the Field of Use.  If Licensee institutes patent litigation against Licensor (including a cross-claim or counterclaim in a lawsuit) alleging that the Orca Software infringes Licensee’s patent(s), then Licensee’s rights granted under this Section 1(b) shall terminate as of the date such litigation is filed.  For the avoidance of doubt, no rights are granted hereunder with respect to (i) use, sale, offer to sell, importation or other transfer outside of the Field of Use, (ii) the combination of Orca Software with any other software or hardware, or (iii) any hardware per se.  The license granted herein is not to be construed to include licenses to contributorily infringe or induce infringement under U.S. law or a foreign equivalent thereof.  For purposes of this Agreement, “Licensed Patents” means any and all United States and foreign patents, including any divisionals, continuations, continuations-in-part, renewals, reissues, reexaminations and extensions thereof that are owned or sublicensable by Licensor and that are necessarily infringed by the making, use, sale, offer to sell, importation or other transfer of the Orca Software.  In addition, “Field of Use” means client-side web browser implementations that are arranged in compliance with “WebSocket Protocol as a Transport for the Session Initiation Protocol (SIP)”, RFC: draft-ietf-sipcore-sip-websocket-08, promulgated by IETF.

(c)        Acknowledgement of Rights.  Licensee acknowledges and agrees that although Licensor grants the licenses set forth herein, no assurances are provided by Licensor that any derivative work of the Orca Software does not infringe, misappropriate or violate any intellectual property rights of any other entity.  Licensor hereby disclaims any liability to Licensee for claims brought by any other entity based on infringement, misappropriation or other violation of intellectual property rights.  As a condition to exercising the rights and licenses granted hereunder, Licensee hereby assumes sole responsibility to secure any other intellectual property rights needed, if any.

2.         Requirements.

(a)        Distribution in Object Code Format.  Licensee may distribute any derivative works of the Orca Software in object code format under its own license agreement, provided that (i) Licensee complies with the terms and conditions of this Agreement, and (ii) Licensee’s license agreement (A) disclaims 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 with respect to Licensor and the Orca Software; (B) excludes, on behalf of Licensor, all liability for damages, including direct, indirect, special, incidental and consequential damages, such as lost profits; (C) states that any provisions which differ from this Agreement are offered by Licensee alone and not by any other party, including Licensor; and (D) states that the source code of the Orca Software, and any derivative works thereof, is available from Licensee, and informs licensees of Licensee how to obtain it in a reasonable manner on or through a medium customarily used for software exchange.

(b)        Distribution in Source Code Format.  Licensee may distribute the Orca Software, and any derivative works thereof, in source code format, provided that (i) Licensee makes such Orca Software, and any derivative works thereof, available under terms identical to those set forth in this Agreement, and (ii) a copy of this Agreement is included with each copy of such Orca Software, and any derivative works thereof.

(c)        Identification.  In the case of any distribution of any derivative works of the Orca Software by Licensee, Licensee must identify itself as the originator of such derivative works in a manner that reasonably allows subsequent licensees to identify the originator of any derivative works of the Orca Software.

(d)       Restrictive Code.  For the avoidance of doubt, neither Licensee nor any other recipient of the Orca Software shall (i) incorporate any Restrictive Code, in whole or in part, into any part of such program or such accompanying materials, (ii) use Restrictive Code, in whole or in part, in the development of any part of such program or such accompanying materials, or (iii) distribute such program or such accompanying materials in conjunction with or for use with any Restrictive Code, that in any case subjects or purports to subject such program or such accompanying materials, in whole or in part, to all or part of the license obligations of any Restrictive Code.  For purposes of this Agreement, “Restrictive Code” means any software that requires as a condition of use, modification and/or distribution of such software that such software or other software incorporated into, derived from or distributed with such software (A) be disclosed or distributed in source code form; (B) be licensed for the purpose of making derivative works; or (C) be redistributable at no charge.

3.         Software Product Ownership.  All title, right and interest in and to the Orca Software, including any intellectual property rights therein are owned by Licensor and are protected by applicable copyright laws and international copyright treaties, as well as other intellectual property laws, treaties and trade secret laws.  Absent a separate written agreement between Licensee and Licensor, Licensee’s rights to use the Orca Software are specified in this Agreement and Licensor retains all rights not expressly granted to Licensee in this Agreement.  Nothing in this Agreement constitutes a waiver of Licensor’ rights under international copyright law or any other applicable intellectual property laws or treaties. Licensee agrees to treat the Orca Software like any other copyrighted material for archival purposes.  Licensee may not remove, modify or alter any Licensor copyright or trademark notice from any part of the Orca Software, including, but not limited to, any such notices contained in the physical or electronic media or documentation, in any of the runtime resources, or in any web presences or web-enabled notices, code, or other embodiments originally contained in or dynamically or otherwise created by the Orca Software.

4.         Export Law Assurances.  Licensee acknowledges that performance of the Agreement is subject to compliance with applicable United States laws, regulations, or orders, including those that may relate to the export of technical data and equipment, including, but not limited to, as embodied in technology, software, and hardware, and further including, but not limited to, the International Traffic in Arms Regulations (“ITAR”) and/or Export Administration Act/Regulations (“EAR”), as may be amended, and agree to comply with all such laws, regulations or orders.  In addition, Licensee agrees to abide by any export and/or import compliance regulations from other governments where they may be conducting business together in accordance with this Agreement.  Licensee will not export, directly or indirectly, the Orca Software without first obtaining any required export license or government approval.

5.         Warranties.

(a)        Licensor represents that, to its knowledge, it has sufficient rights in the Orca Software to grant the licenses set forth in this Agreement.

(b)        EXCEPT AS EXPRESSLY SET FORTH HEREIN, LICENSOR MAKES NO AND EXPRESSLY DISCLAIMS ALL WARRANTIES AND REPRESENTATIONS, EXPRESS OR IMPLIED, WITH RESPECT TO THE ORCA SOFTWARE, ITS ACCURACY, QUALITY, PERFORMANCE, INCLUDING BUT NOT LIMITED TO ALL WARRANTIES OF MERCHANTABILITY, OR FITNESS FOR A PARTICULAR PURPOSE, TITLE OR NON-INFRINGEMENT AND ALL WARRANTIES IMPLIED FROM ANY COURSE OF DEALING OR USAGE OF TRADE.  AS A RESULT, THE ORCA SOFTWARE IS LICENSED “AS IS”, AND THE LICENSEE IS ASSUMING THE ENTIRE RISK AS TO ITS QUALITY AND PERFORMANCE.  LICENSOR DOES NOT WARRANT THAT (I) THE ORCA SOFTWARE WILL MEET ITS REQUIREMENTS, (II) OPERATION OF THE ORCA SOFTWARE WILL BE UNINTERRUPTED OR ERROR FREE, OR (III) DEFECTS WILL BE CORRECTED.  THE ORCA SOFTWARE IS PROVIDED TO LICENSEE FREE OF CHARGE.  LICENSOR PROVIDES NO TECHNICAL SUPPORT, WARRANTIES OR REMEDIES FOR THE ORCA SOFTWARE.

6.         Indemnification.  Licensee hereby agrees to hold harmless, indemnify, and defend Licensor and its officers, directors, members and employees from and against any losses, damages, fines, and expenses (including reasonable attorneys’ fees and costs) arising out of or relating to any claims resulting from (a) a breach of this Agreement by Licensee, and/or (b) Licensee’s distribution of the Orca Software or any derivative works thereof.

7.         Limitation of Liability.  IN NO EVENT WILL LICENSOR BE LIABLE FOR DIRECT, INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL OR PUNITIVE DAMAGES (INCLUDING DAMAGES FOR LOSS OF PROFITS, LOSS OF BUSINESS OR THE LIKE) RESULTING FROM THE ORCA SOFTWARE (INCLUDING, BUT NOT LIMITED TO, ANY DEFECT IN THE ORCA SOFTWARE), OR OTHERWISE ARISING IN ANY WAY IN CONNECTION WITH THIS AGREEMENT, EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.  THE FOREGOING LIMITATIONS ON LIABILITY ARE INTENDED TO APPLY TO ALL ASPECTS OF THIS AGREEMENT. THE DISCLAIMER ON WARRANTY AND LIMITED LIABILITY SET FORTH ABOVE ARE FUNDAMENTAL ELEMENTS OF THE BASIS OF THE BARGAIN BETWEEN LICENSEE AND LICENSOR. LICENSOR WOULD NOT BE ABLE TO PROVIDE THE ORCA SOFTWARE ON THESE TERMS WITHOUT SUCH LIMITATIONS.

8.         Termination.  All rights under this Agreement shall terminate if Licensee fails to comply with any of the material terms or conditions of this Agreement and does not cure such failure within thirty (30) days of receipt of any notice from Licensor of such noncompliance.  Notwithstanding the foregoing, any failure of Licensee to comply with the obligations of Section 2 of this Agreement shall result in an automatic termination of this Agreement and Licensor shall not be required to provide Licensee any notice of such termination.  If all rights under this Agreement are terminated, Licensee agrees to cease use and distribution of the Orca Software, and any derivative works thereof, as soon as reasonably practicable. However, Licensee’s obligations under this Agreement and any licenses granted by Licensee relating to the Orca Software, and any derivative works thereof, prior to such termination shall continue and survive.

9.         Miscellaneous.  This Agreement is governed by the laws of the State of New York without regard to its principles governing conflicts of law.  By using the Orca Software, Licensee consents to the personal and exclusive jurisdiction and venue of the state and federal courts sitting in the State and County of New York.  This Agreement shall be binding upon and shall inure to the benefit of the successors and assigns of the parties hereto.  Licensor reserves the right to conduct audits to verify Licensee’s compliance with this Agreement.  If any provision of this Agreement is declared by a court of competent jurisdiction to be invalid, illegal or unenforceable, such provision shall be severed from this Agreement and all the other provisions shall remain in full force and effect.  The waiver by Licensor of any default or breach of this Agreement shall not constitute a waiver of any other or subsequent default or breach.

10.       Acknowledgment

Licensee acknowledges that (a) License has read and understands this Agreement, and (b) that this Agreement has the same force and effect as a signed agreement.

Copyright © 2013 Alliance for Telecommunications Industry Solutions.  All rights reserved.