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 a Contributor with respect to a patent applicable to software (including a
cross-claim or counterclaim in a lawsuit), then any patent licenses granted by that Contributor to such Recipient
under this Agreement shall terminate as of the date such litigation is filed. In addition, 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, Recipient agrees to cease use and
distribution of the Program as soon as reasonably practicable. However, Recipient's obligations under this Agreement
and any licenses granted by Recipient relating to the Program shall continue and survive.
Everyone is permitted to copy and distribute copies of this Agreement, but in order to avoid inconsistency the
Agreement is copyrighted and may only be modified in the following manner. The Agreement Steward reserves the
right to publish new versions (including revisions) of this Agreement from time to time. No one other than the
Agreement Steward has the right to modify this Agreement. IBM is the initial Agreement Steward. IBM may assign the
responsibility to serve as the Agreement Steward to a suitable separate entity. Each new version of the Agreement will
be given a distinguishing version number. The Program (including Contributions) may always be distributed subject to
the version of the Agreement under which it was received. In addition, after a new version of the Agreement is
published, Contributor may elect to distribute the Program (including its Contributions) under the new version. Except
as expressly stated in Sections 2(a) and 2(b) above, Recipient receives no rights or licenses to the intellectual
property of any Contributor under this Agreement, whether expressly, by implication, estoppel or otherwise. All rights
in the Program not expressly granted under this Agreement are reserved.
This Agreement is governed by the laws of the State of New York and the intellectual property laws of the United States
of America. No party to this Agreement will bring a legal action under this Agreement more than one year after the
cause of action arose. Each party waives its rights to a jury trial in any resulting litigation.