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is not withdrawn, the rights granted by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.
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
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