-1. TO BE FIXED

This is DRAFT-V0.02.

• th: firefox/thunderbird/evolution/etc distribute things but also to distributors eg Fedora, Ubuntu, etc. Who on there term redistribute it. This recursion should that be explicit in this disclaimer and license? What to do about multi-tier distributors, is this agreement with primary or end distributor or all of them? Mozilla => KDE => Evolution.
• pg: I think the 3pv should define "USE" and "RELY" in a preamble (or somewhere else at the beginning) Perhaps even specifically declare the difference between USE and RELY The other things are more or less clear in general, but USE and RELY and its special meaning should be defined
• pg: 1.4 Agreement in Spirit It doesn't clearly indicate that this is only in respect to cert stuff. Also, why are we policing the redistributors?
• Practically everything else... These are just scattered ideas and have not been exposed to criticism yet...

0. Preliminaries

0.1 Background

Being that,

• CAcert is a Certificate Authority ("the CA"),
• the CA offers a free certificate service to its subscribers,
• for the direct benefit and RELIANCE of its Community of signed-up users,
• and where possible, of some indirect benefit and USE to other general users (or end-users) of the Internet;

And that,

• the end-user has a choice in client software (such as browsers and email clients),
• such software offers features which are wholly or partly based on use of certificates,
• which may include the certificates of the CA and/or of any other certificate authority,
• the end-user may have strictly limited possibilities to choose or control the usage made of certificates,
• and that it may not be economic nor reasonable for software to provide for a high degree of choice and control over certificates,

And that, in offering the USE of certificates to the end-user,

• the CA has no direct relationship with the the end-user,
• it is not economic nor reasonable to expect such a direct relationship,
• by way of an open, indirect offering, the CA provides its Non-Related Persons -- Disclaimer and Licence for the end-user ("NRP"), in which
  • the CA disclaims liability to NRPs,
  • the CA offers a free licence to USE to all NRPs,
  • the CA specifically does not permit the NRPs to RELY,

And that,

• you are a third party vendor or distributor of software for end-users ("the Vendor"),
• the Vendor offers a free distribution of root certificates ("root list"), within client software,
• that in choosing the Vendor's software, the end-user would enter into an End-User Licence Agreement ("EULA") with the Vendor,
• the Vendor has the primary and only direct relationship with the end-user,

We both, CA and Vendor, agree that,

• we are committed to providing a free and USABLE way to benefit from cryptography,
• we are committed to the security of our respective communities,
• the design, custom and history of the public key infrastructure ("the PKI") creates risks and liabilities for inappropriate RELIANCE by the end-user,
• it is not economically possible nor reasonable to provide a free, open and unconstrained service that can be RELIED upon by end-users.

0.2 Parties

0.3 Terms

Terms used in this agreement are as defined in the CAcert Community Agreement.

1. Agreement and Licence

1.1 Agreement

You and CAcert both agree to the terms and conditions in this agreement. The relationship between the CA and the Vendor is based on this agreement. Your agreement is given by your distribution of the root within your distribution of your root list.

1.2 Other Agreements

The relationship between the Vendor and the end-user is based on Vendor's own agreement ("end-user licence agreement" or EULA). Generally, the Vendor offers the EULA to the end-user in the act of distributing the software and roots.

The relationship between the CA and the end-user is based on CA's Non-Related Persons -- Disclaimer and Licence ("NRP-DaL"). This Licence follows the style of popular open source licences, in that it is offered to an unknown audience, without a necessary expectation for explicit agreement by the end-user, because of the methods and restrictions of delivery.

1.3 Licence to Distribute

CA offers this licence to permit Vendor to distribute CA's roots within Vendor's root list to Vendor's end-users.

1.4 Agreement in Spirit

Vendor agrees to make EULA compatible and aligned with the CA's NRP-DaL. Specifically, the EULA must:

• disclaim all liability,
• offer free licence to USE, and
• deny permission to RELY under this EULA;

all with respect to the root list (including root keys, certificates, and related cryptographic and security software).

1.5 Agreement in Practice

Where agreement is explicitly sought from the end-user they will be offered and agree to:

• CA's NRP-DaL, where the NRP-DaL and EULA are not in contradiction, OR
• only your EULA, where the spirit of the NRP-DaL is preserved within the EULA.

Vendors are encouraged to ship the NRP-DaL with their software, and make available means for the end-user to further examine the NRP-DaL.
Note, document this elsewhere in FAQ.

1.6 Fair and Non-Discriminatory

Vendor agrees to make available CA's root key in a fair and non-discriminatory way to Vendor's end-users.
Note, document this elsewhere in FAQ.

2. Disclaimer

2.1 All Liability

Vendor's relationship with end-users creates risks, liabilities and obligations due to the end-user's permitted USE of the certificates, and potentially through other activities such as inappropriate and unpermitted RELIANCE.

We in general DISCLAIM ALL LIABILITY to each other and to the end-user.

2.2 Monetary Limits on Liability

Notwithstanding the general disclaimer on liability above, we agree that, to the extent that CAcert is reasonably represented to the Vendor's end-user by the software as being the Certificate Authority, at the events and circumstances of question, liability of CAcert is strictly limited to be 1000 euros. This is the same limit of liability that applies to each member of the CAcert Community.

To the extent that the CA is not reasonably represented to the end-user, we agree that any liability is limited to the lowest of agreed liabilities of all CAs for all roots shipped by the Vendor, and 1000 euros.

3. Legal Matters

3.1 Law

The Choice of Law is that of NSW, Australia.

3.2 Dispute Resolution

We agree that all disputes arising out of or in connection to this agreement and the root key of the CA shall be referred to and finally resolved by Arbitration under the Dispute Resolution Policy of the CA (DRP => COD7). The ruling of the Arbitrator is binding and final on CA and Vendor alike.

We further agree, as a single exception to DRP, that the single Arbitrator may be chosen from outside the CAcert Community.

3.3 CAcert Community Agreement

The CA also offers a CAcert Community Agreement (CCA). The CCA replaces the NRP-DaL and this present agreement for those parties that accept it.

If a Community member is also an end-user, then the provisions of the CCA will replace all elements of the CA's NRP-DaL, and will dominate this present agreement.

Acceptance alone of this present agreement by the Vendor does not imply that Vendor is a Community User/Member.

The following parts are not part of the above licence, but may shed light.

Z. FAQ

Z.1 Notes on Liability

Liability agreement between CA and Vendor suggests that the end-user be presented with the name of the CA. This is useful for identifying the particular characteristics of the CA, and accepts that all CAs are different. Each CA has its ways of checking, its relevent laws, and its particular view as to the interests of the end-user.

The Vendor should present the name of the CA so as to inform the end-user of what can be known. In the event that the Vendor does not present the CA, the CA is taking on all the risk and liability that the CA is equivalent to others, which can only be rationally measured as the lowest-common-denominator, that is, the lowest of the liabilities that is accepted across all CAs that are shipped by the CA. This would generally be zero.

If the CA has been presented to the end-user, the end-user is able to discriminate. In this case, it is reasonable for the CA to offer to share the liability, and to accept some limit to that liability.

Always remembering that this is strictly within the relationship with the Vendor. As there are millions and one day, billions of users, and as the software and the certificates are free, the liability to the end-user must be disclaimed totally. In other words, set to zero.

Z.2 Reasonably Shown

To reasonably show the name of the CA is undefined, as security user interfaces currently are not representative of reasonable descriptions, and the area is an open research topic (sometimes known as "usable security").

A reasonable man test is known in law, and selects someone who would be the reasonable person who would use the software. This might hypothetically examine whether a majority of random users would have "got it" when presented with the same information, however this is not quite how it is tested in law; instead, it is more of a gut-feeling.