Update openchain-standards-model-provisions.0.2.txt

Updated based on the Legal Work Group call 2023-05-25

Author: shanecoughlan

Adoption-Preparation/Model-Provisions/openchain-standards-model-provisions.0.2.txt

@@ -1,113 +1,132 @@
-# Overview
-
-This is a document to explore model provisions for OpenChain ISO/IEC 5230 or ISO/IEC DIS 18974 in procurement contracts and similar material. It is based on the public domain Risk Grid version 12 hosted in the OpenChain Reference Library on GitHub:
-https://github.com/OpenChain-Project/Reference-Material/blob/master/General-Compliance-Support-Material/Risk-Grid/risk-grid-12.md
-
-The goal of this document is to ensure people can understand options. We will not be prescriptive and these model provisions will remain part of the OpenChain reference material. They will not be included in the OpenChain standards themselves.
-
-# Structure:
-
-Each issue is formatted as follows:
-
-- Issue	
-- Commentary	
-- Who is best placed to bear risk?	
-- Best mechanism to tackle risk	
-- Sample Wording	
-- Supplier's Arguments	
-- Customer's Arguments	
-
-# Overarching Topics
-
-## Issue - Inclusion of OpenChain ISO/IEC 5230
-
-### Commentary	
-
-None listed.
-
-### Who is best placed to bear risk?	
-
-Supplier.
-
-### Best mechanism to tackle risk	
-
-None listed.
-
-### Sample Wording	
-
-The Supplier warrants that the Software originates from an OpenChain ISO/IEC 5230:2000 Conformant Program [under the control of the Supplier / under the control of a provider to the Supplier]. 
-
-The Supplier [further] warrants that[, so far as it is aware,] the Software complies the Program Guidelines provided by OpenChain ISO/IEC 5230:2000 at the time of delivery. 
-
-[The Supplier does not warrant that use, modification or further distribution by the Customer of the Software constitutes a continuation of adherence to OpenChain ISO/IEC 5230:2000 Program Guidelines].
-
-### Supplier's Arguments	
-
-The Supplier may argue that the inclusion of these requirements or the extent of the requirements included introduce a cost-burden that need to be offset.
-
-### Customer's Arguments	
-
-The Customer is receiving a potential liability regarding third-party intellectual property along with the Software deliverable from the Supplier. As such, it is reasonable to request that the Supplier adheres to international standards related to the licensing of this third-party intellectual property.
-
-## Issue - Inclusion of OpenChain ISO/IEC DIS 18974
-
-### Commentary	
-
-None listed.
-
-### Who is best placed to bear risk?	
-
-Supplier.
-
-### Best mechanism to tackle risk	
-
-None listed.
-
-### Sample Wording	
-
-The Supplier warrants that the Software originates from an OpenChain ISO/IEC DIS 18974 Conformant Program [under the control of the Supplier / under the control of a provider to the Supplier]. 
-
-The Supplier [further] warrants that[, so far as it is aware,] the Software complies the Program Guidelines provided by OpenChain ISO/IEC DIS 18974 at the time of delivery. 
-
-[The Supplier does not warrant that use, modification or further distribution by the Customer of the Software constitutes a continuation of adherence to OpenChain ISO/IEC DIS 18974 Program Guidelines].
-
-### Supplier's Arguments	
-
-The Supplier may argue that the inclusion of these requirements or the extent of the requirements included introduce a cost-burden that need to be offset.
-
-### Customer's Arguments	
-
-The Customer is receiving a potential liability regarding security along with the Software deliverable from the Supplier. As such, it is reasonable to request that the Supplier adheres to international standards related to the managing of security assurance related to the Software.
-
-
-=== Specific Provisions ==
-
+# Overview
+
+This is a document to explore model provisions for OpenChain ISO/IEC 5230 or ISO/IEC DIS 18974 in procurement contracts and similar material. It is based on the public domain Risk Grid version 12 hosted in the OpenChain Reference Library on GitHub:
+https://github.com/OpenChain-Project/Reference-Material/blob/master/General-Compliance-Support-Material/Risk-Grid/risk-grid-12.md
+
+The goal of this document is to ensure people can understand options. We will not be prescriptive and these model provisions will remain part of the OpenChain reference material. They will not be included in the OpenChain standards themselves.
+
+## Version 0.2
+
+# Structure:
+
+Each issue is formatted as follows:
+
+- Issue	
+- Commentary	
+- Who is best placed to bear risk?	
+- Best mechanism to tackle risk	
+- Sample Wording	
+- Supplier's Arguments	
+- Customer's Arguments	
+
+# Overarching Topics
+
+## Issue - Inclusion of OpenChain ISO/IEC 5230
+
+### Commentary	
+
+None listed.
+
+### Who is best placed to bear risk?	
+
+Supplier.
+
+### Best mechanism to tackle risk	
+
+None listed.
+
+### Sample Wording	
+
+The Supplier warrants that the [Software] [defined componants of the Software] originate[s] from an OpenChain ISO/IEC 5230:2000 Conformant Program [or Programs] [, with the OpenChain ISO/IEC 5230:2000 Conformant Program being specified in the Supplier Information Pack]. 
+
+or
+
+The Supplier warrants that the [Software] [defined componants of the Software] originate[s] from a Program [or Programs] adhering to aspects of an OpenChain ISO/IEC 5230:2000 Conformant Program as specified in the Supplier Information Pack].
+
+and
+
+[The Supplier does not warrant that use, modification or further distribution by the Customer of the Software constitutes a continuation of adherence to an OpenChain ISO/IEC 5230:2000 Conformant Program].
+
+### Supplier's Arguments	
+
+The Supplier may argue that the inclusion of these requirements or the extent of the requirements included introduce a cost-burden that need to be offset.
+
+### Customer's Arguments	
+
+The Customer is receiving a potential liability regarding third-party intellectual property along with the Software deliverable from the Supplier. As such, it is reasonable to request that the Supplier adheres to international standards related to the licensing of this third-party intellectual property.
+
+## Issue - Inclusion of OpenChain ISO/IEC DIS 18974
+
+### Commentary	
+
+None listed.
+
+### Who is best placed to bear risk?	
+
+Supplier.
+
+### Best mechanism to tackle risk	
+
+None listed.
+
+### Sample Wording	
+
+The Supplier warrants that the Software originates from an OpenChain ISO/IEC DIS 18974 Conformant Program [under the control of the Supplier / under the control of a provider to the Supplier]. 
+
+The Supplier [further] warrants that[, so far as it is aware,] the Software complies the Program Guidelines provided by OpenChain ISO/IEC DIS 18974 at the time of delivery. 
+
+[The Supplier does not warrant that use, modification or further distribution by the Customer of the Software constitutes a continuation of adherence to OpenChain ISO/IEC DIS 18974 Program Guidelines].
+
+### Supplier's Arguments	
+
+The Supplier may argue that the inclusion of these requirements or the extent of the requirements included introduce a cost-burden that need to be offset.
+
+### Customer's Arguments	
+
+The Customer is receiving a potential liability regarding security along with the Software deliverable from the Supplier. As such, it is reasonable to request that the Supplier adheres to international standards related to the managing of security assurance related to the Software.
+
+## Issue - Determination of the type of Conformant Program 
+
+Self-Certification vs Third Party
+
+PENDING!
+
+=== Specific Provisions ==
+
+PENDING fleshing out.
 
 1.	OPEN SOURCE SOFTWARE: OPENCHAIN COMPLIANCE
+
 1.1.	General 
 1.1.1.	All capitalised terms in this Section [1] are, unless defined elsewhere in this Agreement, to be interpreted in line with the definitions in the OpenChain Specification 2.1 (ISO 5230:2020) (“OpenChain”).
 1.1.2.	“Software” means Supplied Software delivered or to be delivered to the Customer.
 1.1.3.	“Supplier Information Pack” means information supplied in writing and appended to this Agreement detailing various aspects of the Software, its specification, development, and compliance process. 
-1.1.4.	The Supplier affirms that the Software is developed subject to a Program which is OpenChain conformant.
-1.1.5.	The Supplier affirms that it has obtained and holds an OpenChain conformance validation document issued within the past 18 months, a copy of which is appended to the Supplier Information Pack.
-1.1.6.	Where in this Section [1] or pursuant to OpenChain the Supplier is required to have any policy, process or procedure, it further warrants that it shall maintain and enforce any such policy, process and procedure throughout the [term of this Agreement]
+1.1.4.	“Use Case” means the Use Case which the Customer has specified as being its intended use of the Software (for example, installation of the software onto an embedded device which is distributed to an end-user) 
+1.1.5.	The Supplier affirms that the Software is developed subject to a Program which is OpenChain conformant.
+1.1.6.	The Supplier affirms that it has obtained and holds an OpenChain conformance validation document issued within the past 18 months, a copy of which is appended to the Supplier Information Pack.
+1.1.7.	Where in this Section [1] or pursuant to OpenChain the Supplier is required to have any policy, process or procedure, it further warrants that it shall maintain and enforce any such policy, process and procedure throughout the [term of this Agreement] 
 
 1.2.	Policy
 1.2.1.	The Supplier has a written Open Source policy that governs Open Source compliance of the Software a copy of which is appended to the Supplier Information Pack.
 1.2.2.	The Supplier has (i) appointed persons responsible for the Supplier’s compliance with its Open Source policy; (ii) determined the necessary competence of such persons; (iii) ensured and taken action to ensure that such persons are competent on the basis of appropriate education, training, and/or experience; and (iv) retained documented information as evidence of competence. Copies of documents evidencing the above are appended to the Supplier Information Pack.
 1.2.3.	The Supplier has documented a procedure for making its Program Participants of its Open Source policy, has ensured that its Program Participants are aware of the Supplier’s Open Source policy, the relevant Open Source objectives, their contribution to the effectiveness of the compliance program, and the implications of non-compliance. Copies of documents evidencing the above are appended to the Supplier Information Pack.
 1.2.4.	Where different Open Source compliance programs are governed by their different levels of scope and limits, the Supplier has declared the scope designation for each program applicable to Supplied Software, copies of which are appended to the Supplier Information Pack.
 1.2.5.	The Supplier has adopted a process for reviewing the Identified Licenses to determine the obligations, restrictions and rights granted by each license. Details of the process are appended to the Supplier Information Pack.
+
 1.3.	Access & Resourcing
 1.3.1.	The Supplier has (i) adopted and maintained a process to effectively respond to external Open Source inquiries, details of which are appended to the Supplier Information Pack; and (ii) publicly identified a means by which a third party can make an Open Source compliance inquiry.
 1.3.2.	The Supplier has (i) assigned accountability to its Program Participants officers to ensure the successful execution of compliance Program tasks; (ii) ensured that compliance Program tasks have been provided with sufficient execution time and funding resources; (iii) adopted a process for reviewing and updating the policy and the supporting tasks; (iv) ensured that legal expertise pertaining to Open Source licence compliance is accessible to those who may need such guidance; and (v) adopted a process for the resolution of Open Source licence compliance issues. Details of the above are appended to the Supplier Information Pack.
+
 1.4.	Content Review & Approval
 1.4.1.	The Supplier has adopted and documented a process for creating and managing a bill of materials that includes each Open Source component (and its identified licences) from which the supplied software is comprised. Details of the process are appended to the Supplier Information Pack.
 1.4.2.	The Supplier has adopted and documented a process to ensure that its compliance program is capable of handling the common Open Source licence use cases for the Open Source components of the supplied software. Details of the documented process are appended to the Supplier Information Pack.
+
 1.5.	Compliance Artefacts
 1.5.1.	The Supplier has adopted and documented a process for creating a set of Compliance Artefacts (such as legal notices or source code) that represent the output of a compliance Program and accompany the Software. Copies of this procedure and records evidencing that it has been followed are appended to the Supplier Information Pack.
+1.5.2.	The Compliance Artefacts are prepared in such a way as to ensure that use and/or distribution of the Software in accordance with the Use Case will be compliant. 
+
 1.6.	Contributions
-1.6.1.	The Supplier has a policy governing the contribution to third party Open Source projects, a copy of which is appended to the Supplier Information Pack
+1.6.1.	The Supplier has a policy governing the contribution to third party Open Source projects, a copy of which is appended to the Supplier Information Pack 
 
 1.7.	Ongoing Obligations
 1.7.1.	The Customer shall be entitled on request to receive a copy of any Verification Materials or Compliance Artifacts applicable to Software or to any version of the Software currently in development.