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Common Public License Version 0.5
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THE ACCOMPANYING PROGRAM IS PROVIDED UNDER THE TERMS OF THIS COMMON
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PUBLIC LICENSE ("AGREEMENT"). ANY USE, REPRODUCTION OR DISTRIBUTION OF
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THE PROGRAM CONSTITUTES RECIPIENT'S ACCEPTANCE OF THIS AGREEMENT.
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a) in the case of the initial Contributor, the initial code and
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documentation distributed under this Agreement, and
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b) in the case of each subsequent Contributor:
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i) changes to the Program, and
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ii) additions to the Program;
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where such changes and/or additions to the Program originate from and
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are distributed by that particular Contributor. A Contribution
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'originates' from a Contributor if it was added to the Program by such
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Contributor itself or anyone acting on such Contributor's behalf.
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Contributions do not include additions to the Program which: (i) are
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separate modules of software distributed in conjunction with the Program
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under their own license agreement, and (ii) are not derivative works of
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"Contributor" means any person or entity that distributes the Program.
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"Licensed Patents " mean patent claims licensable by a Contributor which
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are necessarily infringed by the use or sale of its Contribution alone
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or when combined with the Program.
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"Program" means the Contributions distributed in accordance with this
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"Recipient" means anyone who receives the Program under this Agreement,
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including all Contributors.
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a) Subject to the terms of this Agreement, each Contributor hereby
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grants Recipient a non-exclusive, worldwide, royalty-free copyright
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license to reproduce, prepare derivative works of, publicly display,
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publicly perform, distribute and sublicense the Contribution of such
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Contributor, if any, and such derivative works, in source code and
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b) Subject to the terms of this Agreement, each Contributor hereby
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grants Recipient a non-exclusive, worldwide, royalty-free patent license
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under Licensed Patents to make, use, sell, offer to sell, import and
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otherwise transfer the Contribution of such Contributor, if any, in
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source code and object code form. This patent license shall apply to the
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combination of the Contribution and the Program if, at the time the
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Contribution is added by the Contributor, such addition of the
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Contribution causes such combination to be covered by the Licensed
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Patents. The patent license shall not apply to any other combinations
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which include the Contribution. No hardware per se is licensed
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c) Recipient understands that although each Contributor grants the
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licenses to its Contributions set forth herein, no assurances are
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provided by any Contributor that the Program does not infringe the
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patent or other intellectual property rights of any other entity. Each
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Contributor disclaims any liability to Recipient for claims brought by
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any other entity based on infringement of intellectual property rights
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or otherwise. As a condition to exercising the rights and licenses
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granted hereunder, each Recipient hereby assumes sole responsibility to
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secure any other intellectual property rights needed, if any. For
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example, if a third party patent license is required to allow Recipient
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to distribute the Program, it is Recipient's responsibility to acquire
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that license before distributing the Program.
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d) Each Contributor represents that to its knowledge it has sufficient
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copyright rights in its Contribution, if any, to grant the copyright
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license set forth in this Agreement.
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A Contributor may choose to distribute the Program in object code form
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under its own license agreement, provided that:
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a) it complies with the terms and conditions of this Agreement; and
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b) its license agreement:
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i) effectively disclaims on behalf of all Contributors all warranties
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and conditions, express and implied, including warranties or conditions
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of title and non-infringement, and implied warranties or conditions of
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merchantability and fitness for a particular purpose;
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ii) effectively excludes on behalf of all Contributors all liability for
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damages, including direct, indirect, special, incidental and
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consequential damages, such as lost profits;
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iii) states that any provisions which differ from this Agreement are
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offered by that Contributor alone and not by any other party; and
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iv) states that source code for the Program is available from such
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Contributor, and informs licensees how to obtain it in a reasonable
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manner on or through a medium customarily used for software exchange.
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When the Program is made available in source code form:
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a) it must be made available under this Agreement; and
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b) a copy of this Agreement must be included with each copy of the
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Contributors may not remove or alter any copyright notices contained
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Each Contributor must identify itself as the originator of its
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Contribution, if any, in a manner that reasonably allows subsequent
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Recipients to identify the originator of the Contribution.
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4. COMMERCIAL DISTRIBUTION
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Commercial distributors of software may accept certain responsibilities
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with respect to end users, business partners and the like. While this
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license is intended to facilitate the commercial use of the Program, the
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Contributor who includes the Program in a commercial product offering
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should do so in a manner which does not create potential liability for
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other Contributors. Therefore, if a Contributor includes the Program in
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a commercial product offering, such Contributor ("Commercial
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Contributor") hereby agrees to defend and indemnify every other
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Contributor ("Indemnified Contributor") against any losses, damages and
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costs (collectively "Losses") arising from claims, lawsuits and other
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legal actions brought by a third party against the Indemnified
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Contributor to the extent caused by the acts or omissions of such
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Commercial Contributor in connection with its distribution of the
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Program in a commercial product offering. The obligations in this
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section do not apply to any claims or Losses relating to any actual or
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alleged intellectual property infringement. In order to qualify, an
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Indemnified Contributor must: a) promptly notify the Commercial
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Contributor in writing of such claim, and b) allow the Commercial
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Contributor to control, and cooperate with the Commercial Contributor
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in, the defense and any related settlement negotiations. The Indemnified
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Contributor may participate in any such claim at its own expense.
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For example, a Contributor might include the Program in a commercial
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product offering, Product X. That Contributor is then a Commercial
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Contributor. If that Commercial Contributor then makes performance
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claims, or offers warranties related to Product X, those performance
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claims and warranties are such Commercial Contributor's responsibility
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alone. Under this section, the Commercial Contributor would have to
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defend claims against the other Contributors related to those
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performance claims and warranties, and if a court requires any other
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Contributor to pay any damages as a result, the Commercial Contributor
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must pay those damages.
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EXCEPT AS EXPRESSLY SET FORTH IN THIS AGREEMENT, THE PROGRAM IS PROVIDED
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ON AN "AS IS" BASIS, WITHOUT WARRANTIES OR CONDITIONS OF ANY KIND,
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EITHER EXPRESS OR IMPLIED INCLUDING, WITHOUT LIMITATION, ANY WARRANTIES
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OR CONDITIONS OF TITLE, NON-INFRINGEMENT, MERCHANTABILITY OR FITNESS FOR
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A PARTICULAR PURPOSE. Each Recipient is solely responsible for
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determining the appropriateness of using and distributing the Program
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and assumes all risks associated with its exercise of rights under this
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Agreement, including but not limited to the risks and costs of program
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errors, compliance with applicable laws, damage to or loss of data,
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programs or equipment, and unavailability or interruption of operations.
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6. DISCLAIMER OF LIABILITY
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EXCEPT AS EXPRESSLY SET FORTH IN THIS AGREEMENT, NEITHER RECIPIENT NOR
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ANY CONTRIBUTORS SHALL HAVE ANY LIABILITY FOR ANY DIRECT, INDIRECT,
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INCIDENTAL, SPECIAL, EXEMPLARY, OR CONSEQUENTIAL DAMAGES (INCLUDING
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WITHOUT LIMITATION LOST PROFITS), HOWEVER CAUSED AND ON ANY THEORY OF
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LIABILITY, WHETHER IN CONTRACT, STRICT LIABILITY, OR TORT (INCLUDING
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NEGLIGENCE OR OTHERWISE) ARISING IN ANY WAY OUT OF THE USE OR
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DISTRIBUTION OF THE PROGRAM OR THE EXERCISE OF ANY RIGHTS GRANTED
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HEREUNDER, EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
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If any provision of this Agreement is invalid or unenforceable under
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applicable law, it shall not affect the validity or enforceability of
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the remainder of the terms of this Agreement, and without further action
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by the parties hereto, such provision shall be reformed to the minimum
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extent necessary to make such provision valid and enforceable.
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If Recipient institutes patent litigation against a Contributor with
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respect to a patent applicable to software (including a cross-claim or
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counterclaim in a lawsuit), then any patent licenses granted by that
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Contributor to such Recipient under this Agreement shall terminate as of
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the date such litigation is filed. In addition, If Recipient institutes
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patent litigation against any entity (including a cross-claim or
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counterclaim in a lawsuit) alleging that the Program itself (excluding
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combinations of the Program with other software or hardware) infringes
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such Recipient's patent(s), then such Recipient's rights granted under
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Section 2(b) shall terminate as of the date such litigation is filed.
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All Recipient's rights under this Agreement shall terminate if it fails
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to comply with any of the material terms or conditions of this Agreement
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and does not cure such failure in a reasonable period of time after
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becoming aware of such noncompliance. If all Recipient's rights under
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this Agreement terminate, Recipient agrees to cease use and distribution
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of the Program as soon as reasonably practicable. However, Recipient's
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obligations under this Agreement and any licenses granted by Recipient
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relating to the Program shall continue and survive.
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Everyone is permitted to copy and distribute copies of this Agreement,
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but in order to avoid inconsistency the Agreement is copyrighted and may
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only be modified in the following manner. The Agreement Steward reserves
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the right to publish new versions (including revisions) of this
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Agreement from time to time. No one other than the Agreement Steward has
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the right to modify this Agreement. IBM is the initial Agreement
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Steward. IBM may assign the responsibility to serve as the Agreement
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Steward to a suitable separate entity. Each new version of the Agreement
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will be given a distinguishing version number. The Program (including
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Contributions) may always be distributed subject to the version of the
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Agreement under which it was received. In addition, after a new version
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of the Agreement is published, Contributor may elect to distribute the
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Program (including its Contributions) under the new version. Except as
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expressly stated in Sections 2(a) and 2(b) above, Recipient receives no
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rights or licenses to the intellectual property of any Contributor under
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this Agreement, whether expressly, by implication, estoppel or
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otherwise. All rights in the Program not expressly granted under this
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Agreement are reserved.
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This Agreement is governed by the laws of the State of New York and the
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intellectual property laws of the United States of America. No party to
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this Agreement will bring a legal action under this Agreement more than
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one year after the cause of action arose. Each party waives its rights
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to a jury trial in any resulting litigation.
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