Warranty Information 67
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.
