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APPENDIX
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 herein and fail to cure such breach within 30
days of becoming aware of the breach. All subli-
censes 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 infringe-
ment 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 pro-
spectively, unless if within 60 days after receipt of
notice you either: (i) agree in writing to pay par-
ticipant 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parties or the litigation claim is not withdrawn, the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 sec-
tions 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 indi-
rectly infringes any patent, then any rights grant-
ed 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 partici-
pant.
8.3. If you assert a patent infringement claim against
participant alleging that such participant's contribu-
tor version directly or indirectly infringes any patent
where such claim is resolved (such as by license or
settlement) prior to the initiation of patent infringe-
ment 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 dis-
tributors 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), con-
sisting of "commercial computer software" and "com-
mercial 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.