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APPENDIX
A
PP
EN
D
IX
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or the litigation claim is not withdrawn, the rights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
particular version of the license, you may always
continue to use it under the terms of that version. You
may also choose to use such covered code under the
terms of any subsequent version of the license
published by netscape. No one other than netscape has
the right to modify the terms applicable to covered
code created under this license.
6.3. Derivative works.
If You create or use a modified version of this license
(which you may only do in order to apply it to code
which is not already covered code governed by this
license), You must (a) rename Your license so that the
phrases "Mozilla", "MOZILLAPL", "MOZPL", "Netscape",
"MPL", "NPL" or any confusingly similar phrase do not
appear in your license (except to note that your 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, 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 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
