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by the parties or the litigation claim is not withdrawn,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
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
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),
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 Covered Code with
only those rights set forth herein.
11. MISCELLANEOUS.
This License represents the complete agreement
concerning subject matter hereof. If any provision of
this License is held to be unenforceable, such
provision shall be reformed only to the extent
necessary to make it enforceable. This License shall
be governed by California law provisions (except to
the extent applicable law, if any, provides otherwise),
excluding its conflict-of-law provisions.
With respect to disputes in which at least one party is
a citizen of, or an entity chartered or registered to do
business in the United States of America, any
litigation relating to this License shall be subject to the
jurisdiction of the Federal Courts of the Northern
District of California, with venue lying in Santa Clara
County, California, with the losing party responsible
for costs, including without limitation, court costs and
reasonable attorneys' fees and expenses. The
application of the United Nations Convention on
Contracts for the International Sale of Goods is
expressly excluded.
Any law or regulation which provides that the
language of a contract shall be construed against the
drafter shall not apply to this License.
12. RESPONSIBILITY FOR CLAIMS.
As between Initial Developer and the Contributors,
each party is responsible for claims and damages
124
