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8. TERMINATION.
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by the parties or the litigation claim is not withdrawn,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
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
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