APPENDIX
20
beyond the termination of this License
shall survive.
8.2. Termination Upon Litigation.
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:
. 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or the litigation claim is not withdrawn, the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.
a. 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.
U N D E R N O C I R C U M S TA N C E S A N D
UNDER NO LEGAL THEORY, WHETHER
T O R T ( I N C L U D I N G N E G L I G E N C E ) ,
CONTRACT, OR OTHERWISE, SHALL
THE INITIAL DEVELOPER, ANY OTHER
CONTRIBUTOR, OR ANY DISTRIBUTOR
OF COVERED CODE, OR ANY SUPPLIER
OF ANY OF SUCH PARTIES, BE LIABLE
TO YOU OR ANY OTHER PERSON FOR
ANY INDIRECT, SPECIAL, INCIDENTAL,
OR CONSEQUENTIAL DAMAGES OF
ANY CHARACTER INCLUDING, WITHOUT
L I M I TAT I O N , D A M A G E S F O R L O S S
O F G O O D W I L L , W O R K S T O P PA G E ,
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
D O N O T A L L O W T H E E X C L U S I O N
OR LIMITATION OF INCIDENTAL OR
CONSEQUENTIAL DAMAGES, SO THAT
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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