76
license differs from this License) and (b) 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, WITH-
OUT WARRANTY OF ANY KIND, EITHER EXPRESSED OR IMPLIED, INCLUDING, WITH-
OUT 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 INI-
TIAL DEVELOPER OR ANY OTHER CONTRIBUTOR) ASSUME THE COST OF ANY NECES-
SARY 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 termi-
nation of this License. Provisions which, by their nature, must remain in effect beyond the termi-
nation of this License shall survive.
8.2. If You initiate litigation by asserting a patent infringement claim (excluding declatory judg-
ment 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 reason-
able royalty for Your past and future use of Modifications made by such Participant, or (ii) with-
draw 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 Par-
ticipant 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, dis-
tributed, or had made, Modifications made by that Participant.
8.3. If You assert a patent infringement claim against Participant alleging that such Partici-
pant'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 agree-
ments (excluding distributors and resellers) which have been validly granted by You or any dis-
tributor 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 CHARAC-
TER INCLUDING, WITHOUT LIMITATION, DAMAGES FOR LOSS OF GOODWILL, WORK
STOPPAGE, COMPUTER FAILURE OR MALFUNCTION, OR ANY AND ALL OTHER COM-
MERCIAL 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 LIMITA-
TION. 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.
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