viii
A.
Any addition to the contents of a file containing Original Code and/or
addition to or deletion from the contents of a file containing previous
Modifications.
B.
Any new file that contains any part of the Original Code or previous
Modifications.
1.9. “Notice” means any notice in Original Code or Covered Code, as
required by and in compliance with this License.
1.10. “Original Code” means source code of computer software code that is
described in the source code Notice required by Exhibit A as Original
Code, and updates and error corrections specifically thereto.
1.11. “Recipient” means an individual or a legal entity exercising rights under,and
complying with all of the terms of, this License or a future version of this
License issued under Section 8. For legal entities, “Recipient” includes any
entity that controls, is controlled by, or is under common control with
Recipient. For purposes of this definition, “control” of an entity means
(a) the power, direct or indirect, to direct or manage such entity, or (b)
ownership of fifty percent (50%) or more of the outstanding shares or
beneficial ownership of such entity.
1.12. “Recipient Patents” means patent claims Licensable by a Recipient that
are infringed by the use or sale of Original Code or any Modifications
provided by SGI, or any combination thereof.
1.13. “SGI” means Silicon Graphics, Inc.
1.14. “SGI Patents” means patent claims Licensable by SGI other than the
Licensed Patents.
2.
License Grant and Restrictions.
2.1 SGI License Grant. Subject to the terms of this License and any third
party intellectual property claims, for the duration of intellectual property
protections inherent in the Original Code, SGI hereby grants Recipient
a worldwide, royalty-free, non-exclusive license, to do the following:
(i) under copyrights Licensable by SGI, to reproduce, distribute, create
derivative works from, and, to the extent applicable, display and perform
the Original Code and/or any Modifications provided by SGI alone and/
or as part of a Larger Work; and (ii) under any Licensable Patents, to
make, have made, use, sell, offer for sale, import and/or otherwise transfer
the Original Code and/or any Modifications provided by SGI. Recipient
accepts the terms and conditions of this License by undertaking any of
the aforementioned actions. The patent license shall apply to the Covered
Code if, at the time any related Modification is added, such addition of
the Modification causes such combination to be covered by the Licensed
Patents. The patent license in Section 2.1(ii) shall not apply to any other
combinations that include the Modification. No patent license is provided
under SGI Patents for infringements of SGI Patents by Modifications not
provided by SGI or combinations of Original Code and Modifications not
provided by SGI.
2.2. Recipient License Grant. Subject to the terms of this License and any third
party intellectual property claims, Recipient hereby grants SGI and any
other Recipients a worldwide, royalty-free, non-exclusive license, under
any Recipient Patents, to make, have made, use, sell, offer for sale, import
and/or otherwise transfer the Original Code and/or any Modifications
provided by SGI.
2.3. No License For Hardware Implementations. The licenses granted in
Section 2.1 and 2.2 are not applicable to implementation in Hardwareof
the algorithms embodied in the Original Code or any Modifications
provided by SGI.
3. Redistributions.
3.1. Retention of Notice/Copy of License. The Notice set forth in Exhibit
A, below, must be conspicuously retained or included in any and all
redistributions of Covered Code. For distributions of the Covered Code
in source code form, the Notice must appear in every file that can include
a text comments field; in executable form, the Notice and a copy of this
License must appear in related documentation or collateral where the
Recipient’s rights relating to Covered Code are described. Any Additional
Notice Provisions which actually appears in the Original Code must also
be retained or included in any and all redistributions of Covered Code.
3.2. Alternative License. Provided that Recipient is in compliance with the
terms of this License, Recipient may, so long as without derogation of any
of SGI’s rights in and to the Original Code, distribute the source code
and/or executable version(s) of Covered Code under (1) this License;
(2) a license identical to this License but for only such changes as are
necessary in order to clarify Recipient’s role as licensor of Modifications;
and/or (3) a license of Recipient’s choosing, containing terms different
from this License, provided that the license terms include this Section
3 and Sections 4, 6, 7, 10, 12, and 13, which terms may not be modified
or superseded by any other terms of such license. If Recipient elects to
use any license other than this License, Recipient must make it absolutely
clear that any of its terms which differ from this License are offered by
Recipient alone, and not by SGI. It is emphasized that this License is a
limited license, and, regardless of the license form employed by Recipient
in accordance with this Section 3.2, Recipient may relicense only such
rights, in Original Code and Modifications by SGI, as it has actually been
granted by SGI in this License.
3.3. Indemnity. Recipient hereby agrees to indemnify SGI for any liability incurred
by SGI as a result of any such alternative license terms Recipient offers.
4.
Termination. This License and the rights granted hereunder will terminate
automatically if Recipient breaches any term herein and fails to cure such
breach within 30 days thereof. Any sublicense to the Covered Code that
is properly granted shall survive any termination of this License, absent
termination by the terms of such sublicense. Provisions that, by their
nature, must remain in effect beyond the termination of this License, shall
survive.
5.
No Trademark Or Other Rights. This License does not grant any rights
to: (i) any software apart from the Covered Code, nor shall any other
rights or licenses not expressly granted hereunder arise by implication,
estoppel or otherwise with respect to the Covered Code; (ii) any trade
name, trademark or service mark whatsoever, including without limitation
any related right for purposes of endorsement or promotion of products
derived from the Covered Code, without prior written permission of
SGI; or (iii) any title to or ownership of the Original Code, which shall at
all times remains with SGI. All rights in the Original Code not expressly
granted under this License are reserved.
6.
Compliance with Laws; Non-Infringement. There are various worldwide
laws, regulations, and executive orders applicable to dispositions of
Covered Code, including without limitation export, re-export, and import
control laws, regulations, and executive orders, of the U.S. government
and other countries, and Recipient is reminded it is obliged to obey
such laws, regulations, and executive orders. Recipient may not distribute
Covered Code that (i) in any way infringes (directly or contributorily) any
intellectual property rights of any kind of any other person or entity or (ii)
breaches any representation or warranty, express, implied or statutory, to
which, under any applicable law, it might be deemed to have been subject.
7.
Claims of Infringement. If Recipient learns of any third party claim that
any disposition of Covered Code and/or functionality wholly or partially
infringes the third party’s intellectual property rights, Recipient will
promptly notify SGI of such claim.
8. Versions of the License. SGI may publish revised and/or new versions of
the License from time to time, each with a distinguishing version number.
Once Covered Code has been published under a particular version of
the License, Recipient may, for the duration of the license, continue to use
it under the terms of that version, or choose to use such Covered Code
under the terms of any subsequent version published by SGI. Subject to
the provisions of Sections 3 and 4 of this License, only SGI may modify
the terms applicable to Covered Code created under this License.
9.
DISCLAIMER OF WARRANTY. COVERED CODE IS PROVIDED “AS
IS.” ALL EXPRESS AND IMPLIED WARRANTIES AND CONDITIONS
ARE DISCLAIMED, INCLUDING, WITHOUT LIMITATION, ANY
IMPLIED WARRANTIES AND CONDITIONS OF MERCHANTABILITY,
SATISFACTORY QUALITY, FITNESS FOR A PARTICULAR PURPOSE,
AND NON-INFRINGEMENT. SGI ASSUMES NO RISK AS TO THE
QUALITY AND PERFORMANCE OF THE SOFTWARE. SHOULD THE
SOFTWARE PROVE DEFECTIVE IN ANY RESPECT, SGI ASSUMES NO
COST OR LIABILITY FOR SERVICING, REPAIR OR CORRECTION.
THIS DISCLAIMER OF WARRANTY IS AN ESSENTIAL PART OF
THIS LICENSE. NO USE OF ANY COVERED CODE IS AUTHORIZED
HEREUNDER EXCEPT SUBJECT TO THIS DISCLAIMER.
10. LIMITATION OF LIABILITY. UNDER NO CIRCUMSTANCES NOR
LEGAL THEORY, WHETHER TORT (INCLUDING, WITHOUT
LIMITATION, NEGLIGENCE OR STRICT LIABILITY), CONTRACT,
OR OTHERWISE, SHALL SGI OR ANY SGI LICENSOR BE
LIABLE FOR ANY DIRECT, INDIRECT, SPECIAL, INCIDENTAL,
OR CONSEQUENTIAL DAMAGES OF ANY CHARACTER
INCLUDING, WITHOUT LIMITATION, DAMAGES FOR LOSS OF
GOODWILL, WORK STOPPAGE, LOSS OF DATA, COMPUTER
FAILURE OR MALFUNCTION, OR ANY AND ALL OTHER
COMMERCIAL DAMAGES OR LOSSES, EVEN IF SUCH PARTY
SHALL HAVE BEEN INFORMED OF THE POSSIBILITY OF SUCH
DAMAGES. THIS LIMITATION OF LIABILITY SHALL NOT APPLY
TO LIABILITY FOR DEATH OR PERSONAL INJURY RESULTING
FROM SGI’s NEGLIGENCE TO THE EXTENT APPLICABLE LAW
PROHIBITS SUCH LIMITATION. SOME JURISDICTIONS DO NOT
ALLOW THE EXCLUSION OR LIMITATION OF INCIDENTAL
OR CONSEQUENTIAL DAMAGES, SO THAT EXCLUSION AND
LIMITATION MAY NOT APPLY TO RECIPIENT.
11. Indemnity. Recipient shall be solely responsible for damages arising,
directly or indirectly, out of its utilization of rights under this License.
Recipient will defend, indemnify and hold harmless Silicon Graphics, Inc.
from and against any loss, liability, damages, costs or expenses (including
the payment of reasonable attorneys fees) arising out of Recipient’s use,
modification, reproduction and distribution of the Covered Code or out
of any representation or warranty made by Recipient.
12. U.S. Government End Users. The Covered Code is a “commercial item”
consisting of “commercial computer software” as such terms are defined
in title 48 of the Code of Federal Regulations and all U.S. Government
End Users acquire only the rights set forth in this License and are subject
to the terms of this License.
