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4. COMMERCIAL DISTRIBUTION
Commercial distributors of software may accept certain responsibilities with respect to end users,
business partners and the like. While this license is intended to facilitate the commercial use of the
Program, the Contributor who includes the Program in a commercial product offering should do so in a
manner which does not create potential liability for other Contributors. Therefore, if a Contributor
includes the Program in a commercial product offering, such Contributor ("Commercial Contributor")
hereby agrees to defend and indemnify every other Contributor ("Indemnified Contributor") against any
losses, damages and costs (collectively "Losses") arising from claims, lawsuits and other legal actions
brought by a third party against the Indemnified Contributor to the extent caused by the acts or
omissions of such Commercial Contributor in connection with its distribution of the Program in a
commercial product offering. The obligations in this section do not apply to any claims or Losses
relating to any actual or alleged intellectual property infringement. In order to qualify, an Indemnified
Contributor must: a) promptly notify the Commercial Contributor in writing of such claim, and b) allow
the Commercial Contributor to control, and cooperate with the Commercial Contributor in, the defense
and any related settlement negotiations. The Indemnified Contributor may participate in any such claim
at its own expense.
For example, a Contributor might include the Program in a commercial product offering, Product X. That
Contributor is then a Commercial Contributor.
If that Commercial Contributor then makes performance claims, or offers warranties related to Product
X, those performance claims and warranties are such Commercial Contributor's responsibility alone.
Under this section, the Commercial Contributor would have to defend claims against the other
Contributors related to those performance claims and warranties, and if a court requires any other
Contributor to pay any damages as a result, the Commercial Contributor must pay those damages.
5. NO WARRANTY
EXCEPT AS EXPRESSLY SET FORTH IN THIS AGREEMENT, THE PROGRAM IS PROVIDED ON
AN
"AS IS" BASIS, WITHOUT WARRANTIES OR CONDITIONS OF ANY KIND, EITHER EXPRESS OR
IMPLIED INCLUDING, WITHOUT LIMITATION, ANY WARRANTIES OR CONDITIONS OF TITLE,
NON-INFRINGEMENT, MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE.
Each Recipient is solely responsible for determining the appropriateness of using and distributing the
Program and assumes all risks associated with its exercise of rights under this Agreement, including but
not limited to the risks and costs of program errors, compliance with applicable laws, damage to or loss
of data, programs or equipment, and unavailability or interruption of operations.
6. DISCLAIMER OF LIABILITY
EXCEPT AS EXPRESSLY SET FORTH IN THIS AGREEMENT, NEITHER RECIPIENT NOR ANY
CONTRIBUTORS SHALL HAVE ANY LIABILITY FOR ANY DIRECT, INDIRECT, INCIDENTAL,
SPECIAL, EXEMPLARY, OR CONSEQUENTIAL DAMAGES (INCLUDING WITHOUT LIMITATION
LOST PROFITS), HOWEVER CAUSED AND ON ANY THEORY OF LIABILITY, WHETHER IN
CONTRACT, STRICT LIABILITY, OR TORT (INCLUDING NEGLIGENCE OR OTHERWISE)
ARISING IN ANY WAY OUT OF THE USE OR DISTRIBUTION OF THE PROGRAM OR THE
EXERCISE OF ANY RIGHTS GRANTED HEREUNDER, EVEN IF ADVISED OF THE
POSSIBILITY OF SUCH DAMAGES.
7. GENERAL
If any provision of this Agreement is invalid or unenforceable under applicable law, it shall not affect the
validity or enforceability of the remainder of the terms of this Agreement, and without further action by
the parties hereto, such provision shall be reformed to the minimum extent necessary to make such
provision valid and enforceable.
If Recipient institutes patent litigation against any entity (including a cross-claim or counterclaim in a
lawsuit) alleging that the Program itself (excluding combinations of the Program with other software or
hardware) infringes such Recipient's patent(s), then such Recipient's rights granted under Section 2(b)
shall terminate as of the date such litigation is filed.
All Recipient's rights under this Agreement shall terminate if it fails to comply with any of the material
terms or conditions of this Agreement and does not cure such failure in a reasonable period of time
after becoming aware of such noncompliance. If all Recipient's rights under this Agreement terminate,
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