26
otherwise make it clear that Your version
of
the license
contains terms which differ from the Mozilla
Public
License and Netscape
Public License. (Filling in the
name
of
the Initial Developer,
Original
Code or
Contributor in the notice described in Exhibit A shall
not
of
themselves be deemed to be modifications
of
this
License.)
7.
DISCLAIMER
OF
WARRANTY.
COVERED CODE IS PROVIDED
UNDER
THIS
LICENSE ON
AN
"AS IS" BASIS, WITHOUT
WARRANTY
OF
ANY
KIND, EITHER
EXPRESSED OR IMPLIED,
INCLUDING,
WITHOUT LIMITATION,
WARRANTIES THAT
THE COVERED
CODE
IS
FREE OF DEFECTS
MERCHANTABLE, FIT
FOR
A PARTICULAR
PURPOSE OR
NON-INFRINGING. THE ENTIRE
RISK
AS
TO
THE QUALITY AND
PERFORMANCE
OF
THE
COVERED CODE
IS
WITH
YOU. SHOULD
ANY
COVERED CODE
PROVE DEFECTIVE IN ANY RESPECT, YOU
(NOT THE INITIAL
DEVELOPER OR
ANY
OTHER
CONTRIBUTOR) ASSUME
THE
COST OF ANY
NECESSARY SERVICING,
REPAIR OR
CORRECTION. THIS
DISCLAIMER
OF
WARRANTY
CONSTITUTES AN
ESSENTIAL
PART OF THIS LICENSE. NO USE OF
ANY
COVERED CODE IS AUTHORIZED
HEREUNDER
EXCEPT
UNDER
THIS
DISCLAIMER.
8.
TERMINATION.
8.1. This License and the rights granted hereunder will
terminate automatically
if
You fail to comply with
terms
her~in
and fail to cure such breach within
30
days
ofbecommg aware
of
the breach. All sublicenses to the
Covered Code which are properly granted shall survive
an~
termination
of
this License. Provisions.which, by
theu
nature, must remain in effect beyond the
termination
of
this License shall survive.
·
~.2
..
If
You initia.te litigation by asserting a patent
mft;tngemen.t
clam~
~excluding
declatory judgment
ac~I~ms)
agamst
lmtial
Developer or a Contributor (the
Imtial
Developer
or
Contributor against whom You file
such action is referred to
as
"Participant")
alleging that:
(a) such
Participant's
Contributor Version directly
~r
indirectly infringes any patent, then any and all
nghts granted by such
Participant
to You under
Sections 2.1 and/or 2.2
of
this License shall, upon
60
days notice from
Participant
terminate
prospectively, unless
if
within
60 days after
Teceipt
of
notice You either: (i) agree in writing to
pay Participant a mutually agreeable reasonable
royalty for Your past and future use
of
~odifications
made by such Participant,
or (ii)
withdraw
Your litigation claim with respect to the
C?n~ributor
Version against such
Participant.
If
withm 60
days
of
notice, a reasonable royalty and
paym~nt
ar;r~ngement
are not mutually agreed
upon m
wntmg
by the parties or the litigation
claim is not withdrawn, the rights granted by
Participant
to
You
under
Sections
2.1
and/or 2.2
automatically terminate at the expiration
of
the
60
day notice period specified above.
(b) any software, hardware, or device, other than
~uc?
Parti~ipa?t's
Contributor Version, directly or
mdirectly mfnnges any patent, then any rights
granted to You by such
Participant
under
Sections
2.1
(b) and 2.2(b) are revoked effective as
of
the
date You first made, used, sold, distributed, or had
made, Modifications made by that
Participant.
8.3 ..
I~
You
asser_t
a patent infringement claim against .
Participant allegmg that such
Participant's
Contributor
Version directly or indirectly infringes any patent
where such claim is resolved (such
as
by license or
settlement) prior to the initiation
of
patent infringement
litigation, then the reasonable value
of
the
lice~ses
granted by such
Participant under
Sections
2.1
or 2.2
shall be taken into account
in
determining the amount
or yalue
of
any payment or license.
8.4. In the event
of
termination under
Sections
8.1
or
8:2
~bove,
all end user license agreements (excluding
distnbutors and resellers) which have been validly
gran~ed
?Y
You
or
·
an~
distributor hereunder prior to
termmatwn shall survive termination.
9.
LIMITATION
OF
LIABILITY.
UNDER
NO CIRCUMSTANCES
AND UNDER
NO
LEGAL
THEORY,
WHETHER
TORT
(INCLUDING
NEGLIGENCE),
CONTRACT, OR OTHERWISE,
SHAL~
YOU,
THE
INITIAL
DEVELOPER, ANY
OTHER CONTRIBUTOR, OR ANY
DISTRIBUTOR
OF
COVERED CODE,
OR
ANY
SUPPLIER OF
ANY
OF SUCH PARTIES,
BE
LIABLE
TO
ANY PERSON
FOR
ANY INDIRECT,
SPECIAL,
INCIDENTAL,
OR CONSEQUENTIAL DAMAGES OF ANY
CHARACTER
INCLUDING, WITHOUT
LIMITATION, -DAMAGES FOR LOSS OF
GOODWILL, WORK STOPPAGE, 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 SUCH PARTY'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 THIS
EXCLUSION
AND LIMITATION
MAY
NOT
APPLY TO YOU.
10.
U.S. GOVERNMENT
END
USERS.
The Covered Code is a "commercial item,"
as
that term
!.s
defined
~n
48 C.F.R.
2.101 (Oct. 1995), consisting
of
commercial computer software" and
"commercial
computer software documentation,
II
as
such terms are
used in 48 C.P.R. 12.212
(Sept. 1995). Consistent with
48 C.F.R. 12.212 and 48 C.P.R. 227.7202-1 through
227.7202-4 (June 1995), all
U.S.
Government End
Users acquire Covered Code with only those rights set
forth herein. .
11.
MISCELLANEOUS
..
This License represents the complete agreement
c~nce:ning
s.ubject matter hereof.
If
any provision
of
this License
IS
held to
be
unenforceable,
sucti
provision
shall be reformed only to the extent necessary
to
make
it enforceable. This License shall be governed by
California law provisions (except to the extent
~pplicable
law,
if
any, provides otherwise), excluding
!ts
COI_lflict-of-law
provisions. With respect to disputes
m
which
at least one party is a citizen of, or an entity
chartered or registered to do business in the United
States
of
America, any litigation relating to this License
shall be subject to the jurisdiction
of
the Federal Courts
?f
the Northern District
of
California, with venue lying
m
Sant~
Clara
County:
California, with the losing party
responsible for costs, mcluding without limitation,
court costs and reasonable attorneys' fees and expenses.
The application
of
the
United Nations Convention on
Contracts for the International
Sale
of
Goods is
expressly excluded. Any law or regulation which
provides that the language
of
a contract shall be
c~nstrued
against the drafter shall not apply to this
License.
12.
RESPONSIBILITY FOR CLAIMS.
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