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61
APPENDIX
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 herein
and 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not withdrawn, the rights granted by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.
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