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62
APPENDIX
fail to cure such breach within 30 days
of becoming aware of the breach. All
sublicenses to the covered code which
are properly granted shall survive any
termination of this license. Provisions
which, by their nature, must remain in
effect beyond the termination of this
license shall survive.
8.2. If you initiate litigation by asserting a
patent infringement
claim (excluding declatory judgment
actions) against initial developer or
a contributor (the initial developer or
contributor against whom you file such
action is referred to as “Participant”)
alleging that:
(a) such participant’s contributor version
directly or indirectly infringes any
patent, then any and all rights 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 receipt
of notice you either: (i) agree in
writing to pay participant a mutually
agreeable reasonable royalty for your
past and future use of modifications
made by such participant, or (ii)
withdraw your litigation claim with
respect to the contributor version
against such participant. If within 60
days of notice, a reasonable royalty
and payment arrangement are not
mutually agreed upon in writing 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not withdrawn, the rights granted by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 such participant’s contributor
Version, directly or indirectly infringes
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. If you assert a patent infringement
claim against participant alleging
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 licenses
granted by such participant under
sections 2.1 or 2.2 shall be taken into
account in determining the amount
or value of any payment or license.
8.4. In the event of termination under
sections 8.1 or 8.2 above, all end
user license agreements (excluding
distributors and resellers) which
have been validly granted by you or
any distributor hereunder prior to
termination shall survive termination.
9. LIMITATION OF LIABILITY.
UNDER NO CIRCUMSTANCES AND
UNDER NO LEGAL THEORY, WHETHER
TORT (INCLUDING NEGLIGENCE),
CONTRACT, OR OTHERWISE, SHALL
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 is defined in 48 C.F.R. 2.101
(Oct. 1995), consisting of “commercial
computer software” and “commercial
computer software documentation,”
as such terms are used in 48 C.F.R.
12.212 (Sept. 1995). Consistent with 48
C.F.R. 12.212 and 48 C.F.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.
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