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APPENDIX
149
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 COV-
ERED CODE IS FREE OF DEFECTS, MERCHANTABLE, FIT
FOR A PARTICULAR PURPOSE OR NON-INFRINGING.
THE ENTIRE RISK AS TO THE QUALITY AND PERFOR-
MANCE 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 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 ini-
tial 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 indi-
rectly 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claim is not withdrawn, the rights granted by partici-
pant to you under sections 2.1 and/or 2.2 automati-
cally terminate at the expiration of the 60 day notice
period specified above.
(b) any software, hardware, or device, other than such par-
ticipant'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 partici-
pant 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 rea-
sonable 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 DIS-
TRIBUTOR OF COVERED CODE,OR ANY SUPPLIER OF
ANY OF SUCH PARTIES, BE LIABLE TO ANY PERSON FOR
ANY INDIRECT, SPECIAL, INCIDENTAL, OR CONSEQUEN-
TIAL DAMAGES OF ANY CHARACTER INCLUDING, WITH-
OUT LIMITATION, DAMAGES FOR LOSS OF GOODWILL,
WORK STOPPAGE, COMPUTER FAILURE OR MALFUNC-
TION, OR ANY AND ALL OTHER COMMERCIAL DAM-
AGES OR LOSSES, EVEN IF SUCH PARTY SHALL HAVE
BEEN INFORMED OF THE POSSIBILITY OF SUCH DAM-
AGES. THIS LIMITATION OF LIABILITY SHALL NOT APPLY
TO LIABILITY FOR DEATH OR PERSONAL INJURY RESULT-
ING 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 DAM-
AGES, 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 cov-
ered code with only those rights set forth herein.