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.)
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.
8.1. 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 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is not withdrawn, the rights granted by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
106
