OPEN CARD CONSORTIUM SOURCE LICENSE Version 1.0 8/10/1999 THE ACCOMPANYING PROGRAM IS PROVIDED UNDER THE TERMS OF THIS OPEN CARD CONSORTIUM SOURCE LICENSE ("AGREEMENT"). ANY DOWNLOADING, USE, REPRODUCTION OR DISTRIBUTION OF THE PROGRAM CONSTITUTES RECIPIENT'S ACCEPTANCE OF THIS AGREEMENT. 1. DEFINITIONS "Contribution" means: a) in the case of Open Card Consortium ("OCC"), the Original Program, and b) in the case of each Contributor, i) changes to the Program, and ii) additions to the Program; where such changes and/or additions to the Program originate from and are distributed by that particular Contributor. A Contribution 'originates' from a Contributor if the program changes or additions that make up the Contribution were made by that Contributor itself or by anyone acting on such Contributor's behalf. Contributions do not include additions to the Program which: (i) are separate modules of software distributed separately or in conjunction with the Program under their own license agreement or no license agreement, and (ii) are not derivative works of the Program. Changes referred to in this paragraph may be deletions and/or other alterations. "Contributor" means OCC and any other entity that distributes the Program. If a Recipient distributes the Program, the Recipient becomes also a Contributor, with respect to other Recipients. "Distribute" means to furnish, make available, or otherwise provide to another person or entity outside of the Recipient's own organization. This definition does not include mere use or demonstration of the functioning software. This definition does not include provision of the Program's object code or documentation if the object code or documentation so provided is obviously marked, on its face or cover, to reflect the copyright notices indicated in Section 3, or if in so providing the object code and documentation, the Recipient clearly indicates that they are subject to copyright protection but may be licensed from the Open Card Consortium or its licensees. "Licensed Patents " means patent claims licensable by a Contributor which are necessarily infringed by the use or sale of its Contribution alone or when combined with the Program. "Original Program" means the original version of the software accompanying this Agreement as released by OCC, including source code and/.or object code and including documentation, if any. The Original Program as current at any given time may be available for licensing from the Open Card Consortium at www.opencard.org under this Agreement or a successor to this Agreement. "Program" means the Original Program, with any Contributions, as supplied by a Contributor to Recipient under this Agreement. Therefore, depending on the software and documentation actually received by Recipient, the Program may be (a) only the Original Program, or (b) the Original Program, accompanied by and/or modified by Contributions. "Recipient" means anyone who receives the Program under this Agreement. 2. GRANT OF RIGHTS a) Subject to the terms of this Agreement, each Contributor hereby grants Recipient a non-exclusive, worldwide, royalty- free copyright license to reproduce, prepare derivative works of, publicly display, publicly perform, distribute and sublicense the Contribution of such Contributor, if any, and such derivative works, in source code and object code form. b) Subject to the terms of this Agreement, each Contributor hereby grants Recipient a non-exclusive, worldwide, royalty- free patent license under Licensed Patents to make, use, sell, offer to sell, import and otherwise transfer the Contribution of such Contributor, if any, in source code and object code form. This patent license shall apply to the combination of the Contribution and the Program if, at the time the Contribution is added by the Contributor, such addition of the Contribution causes such combination to be covered by the Licensed Patents. This patent license shall not apply to any other combinations or hardware. c) Recipient understands and agrees that although each Contributor grants the licenses to its Contributions set forth herein, no assurances are provided by any Contributor that the Program does not infringe the patent or other intellectual property rights of any other entity. Each Contributor disclaims any liability to Recipient for claims brought by any other entity based on infringement of intellectual property rights or otherwise. As a condition to exercising the rights and licenses granted hereunder, each Recipient hereby assumes sole responsibility to secure any other intellectual property rights needed, if any. For example, if a third party patent license is required to allow Recipient to distribute the Program, it is Recipient's responsibility to acquire that license before distributing the Program. d) Without changing the effect of Section 2(c), each Contributor represents that to its knowledge it has sufficient copyright rights in its Contribution, if any, to grant the copyright license set forth in this Agreement. 3. REQUIREMENTS A Contributor may choose to distribute the Program in object code form under its own license agreement, provided that: a) the Contributor complies with the terms and conditions of this Agreement; and b) the Contributor's license agreement: i) effectively disclaims on behalf of all Contributors 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; ii) effectively excludes on behalf of all Contributors all liability for damages, including direct, indirect, special, incidental and consequential damages, such as lost profits; iii) states that any provisions which differ from this Agreement are offered by that Contributor alone and not by any other party; and iv) states that source code for the Program is available from such Contributor under this Agreement, and informs licensees how to obtain it in a reasonable manner on or through a medium customarily used for software exchange. When a Contributor distributes the Program in source code form: a) the Contributor must distribute it under this Agreement; and b)the Contributor must include a copy of this Agreement with each copy of the Program. Each Contributor must include the following in a conspicuous location in the Program: Copyright ¸ {year(s) here}, Open Card Consortium and others. All Rights Reserved. (Contributor should list here the years shown on the version received by the Contributor, as well as the year(s) of Contributor's Contributions), In addition, each Contributor must identify itself as the originator of its Contribution, if any, in a manner that reasonably allows subsequent Recipients to identify the Contribution and the originator of the Contribution. Each Contributor agrees to provide condensed summaries of its Contributions to OCC periodically, from time to time on a schedule decided solely by Contributor, either with or without copies of the Program as modified by such Contributions. 4. COMMERCIAL DISTRIBUTION Commercial distributors of software may accept certain responsibilities with respect to end users, business partners and the like. While this license is intended to facilitate the commercial use of the Program, the Contributor who includes the Program in a commercial product offering must do so in a manner which does not create potential liability for other Contributors. Therefore, if a Contributor includes the Program in a commercial product offering, such Contributor ("Commercial Contributor") hereby agrees to defend and indemnify every other Contributor ("Indemnified Contributor") against any losses, damages and costs (collectively "Losses") arising from claims, lawsuits and other legal actions brought by a third party against the Indemnified Contributor to the extent caused by the acts or omissions of such Commercial Contributor in connection with its distribution of the Program in a commercial product offering. The obligations in this section do not apply to any claims or Losses relating to any actual or alleged intellectual property infringement, except to the extent that the actual or alleged infringement arises from the Contribution(s) of the Commercial Contributor. In order to qualify, an Indemnified Contributor must: a) promptly notify the Commercial Contributor in writing of such claim, and b) allow the Commercial Contributor to control, and cooperate with the Commercial Contributor in, the defense and any related settlement negotiations. The Indemnified Contributor may participate in any such claim at its own expense. For example, a Contributor might include the Program in a commercial product offering, Product X. That Contributor is then a Commercial Contributor. If that Commercial Contributor then makes performance claims, or offers warranties related to Product X, those performance claims and warranties are such Commercial Contributor's responsibility alone. Under this section, the Commercial Contributor would have to defend claims against the other Contributors related to those performance claims and warranties, and if a court requires any other Contributor to pay any damages as a result, the Commercial Contributor must pay those damages. Contributor may only state that the Program it distributes is compatible with the Open Card Framework if Contributor specifies the version of the Program with which compatibility is claimed and if such Program has passed the then-current, unmodified OCC compatibility tests for that version of the Open Card Framework available from OCC. OCC may at any time, but is never required to, audit the Program for compatibility. If OCC determines that the Program does not pass the applicable unmodified OCC compatibility tests, OCC may require the Contributor to cease claiming compatibility for that version. Contributor must comply promptly and will exert commercially reasonable efforts to notify its licensees that the Program as provided to them under a claim of compatibility is actually not compatible. Failure to comply promptly will be a breach of this Agreement under Section 7 below. Recipient understands that no trademark rights are granted by virtue of this Agreement; any licensing of such rights will be the subject of a separate agreement. 5. NO WARRANTY EXCEPT AS EXPRESSLY SET FORTH IN THIS AGREEMENT, THE PROGRAM IS PROVIDED ON AN "AS IS" BASIS, WITHOUT WARRANTIES OR CONDITIONS OF ANY KIND, EITHER EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, ANY WARRANTIES OR CONDITIONS OF TITLE, NON-INFRINGEMENT, MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE. Each Recipient is solely responsible for determining the appropriateness of using and distributing the Program and assumes all risks associated with its exercise of rights under this Agreement, including but not limited to the risks and costs of program errors, compliance with applicable laws, damage to or loss of data, programs or equipment, and unavailability or interruption of operations. 6. DISCLAIMER OF LIABILITY EXCEPT AS EXPRESSLY SET FORTH IN THIS AGREEMENT, NEITHER RECIPIENT NOR ANY CONTRIBUTORS SHALL HAVE ANY LIABILITY FOR ANY DIRECT, INDIRECT, INCIDENTAL, SPECIAL, EXEMPLARY, OR CONSEQUENTIAL DAMAGES (INCLUDING WITHOUT LIMITATION LOST PROFITS), HOWEVER CAUSED AND ON ANY THEORY OF LIABILITY, WHETHER IN CONTRACT, STRICT LIABILITY, OR TORT (INCLUDING NEGLIGENCE OR OTHERWISE) ARISING IN ANY WAY OUT OF THE USE OR DISTRIBUTION OF THE PROGRAM OR THE EXERCISE OF ANY RIGHTS GRANTED HEREUNDER, EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. 7. GENERAL 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, and without further action by the parties hereto, such provision shall be reformed to the minimum extent necessary to make such provision valid and enforceable. If Recipient institutes patent litigation against a Contributor with respect to a patent applicable to software (including a cross- claim or counterclaim in a lawsuit), then any patent licenses granted by that Contributor to such Recipient under this Agreement shall terminate as of the date such litigation is filed. In addition, If Recipient institutes patent litigation against any entity (including a cross-claim or counterclaim in a lawsuit) alleging that the Program itself (excluding combinations of the Program with other software or hardware) infringes such Recipient's patent(s), then such Recipient's rights granted under Section 2(b) shall terminate as of the date such litigation is filed. All Recipient's rights under this Agreement shall terminate if it fails to comply with any of the material terms or conditions of this Agreement and does not cure such failure in a reasonable period of time after becoming aware of such noncompliance. The reasonable period of time is never to exceed sixty (60) calendar days. If all Recipient's rights under this Agreement terminate, Recipient must cease using and distributing the Program as soon as reasonably practicable. However, Recipient's obligations under this Agreement, and any and all licenses granted by Recipient relating to the Program, shall continue and survive. OCC may publish new versions (including revisions) of this Agreement from time to time. OCC may also publish new versions of the Program from time to time, possibly including Contributions, but OCC is never obligated to include any particular Contribution. Each new version of the Agreement, as well as each new version of the Program, will be given a distinguishing version number. Each Contributor may distribute a version of the Program,(with or without that Contributor's Contributions), subject to the version of the Agreement under which the Contributor properly received it, or under a newer version of this Agreement, as the Contributor may choose. No one other than OCC has the right to modify this Agreement. Except as expressly stated in Sections 2(a) and 2(b) above, Recipient receives no rights or licenses to the intellectual property of any Contributor under this Agreement, whether expressly, by implication, by estoppel or otherwise. All rights in the Program not expressly granted under this Agreement are reserved. This Agreement is governed by the laws of the State of New York and the intellectual property laws of the United States of America. No party to this Agreement will bring a legal action under this Agreement more than one year after the cause of action arose. Each party waives its rights to a jury trial in any resulting litigation.