APPENDIX
APPENDIX
7. DISCLAIMER OF WARRANTY.
COVERED CODE IS PROVIDED UNDER THIS LICENSE ON AN “AS IS” BASIS, WITHOUT WARRANTY OF ANY KIND, EITHER EXPRESSED OR IMPLIED, INCLUDING, WITHOUT LIMITATION, WARRANTIES THAT THE COV- ERED CODE IS FREE OF DEFECTS, MERCHANTABLE, FIT FOR A PARTICULAR PURPOSE OR
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 ini- tial 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 indi- rectly 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royalty and payment arrangement are not mutually agreed upon in writing by the parties or the litigation claim is not withdrawn, the rights granted by partici- pant to you under sections 2.1 and/or 2.2 automati- cally terminate at the expiration of the 60 day notice period specified above.
(b)any software, hardware, or device, other than such par- ticipant'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 partici- pant 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 rea- sonable 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 DIS- TRIBUTOR OF COVERED CODE,OR ANY SUPPLIER OF ANY OF SUCH PARTIES, BE LIABLE TO ANY PERSON FOR ANY INDIRECT, SPECIAL, INCIDENTAL, OR CONSEQUEN- TIAL DAMAGES OF ANY CHARACTER INCLUDING, WITH- OUT LIMITATION, DAMAGES FOR LOSS OF GOODWILL, WORK STOPPAGE, COMPUTER FAILURE OR MALFUNC- TION, OR ANY AND ALL OTHER COMMERCIAL DAM- AGES OR LOSSES, EVEN IF SUCH PARTY SHALL HAVE BEEN INFORMED OF THE POSSIBILITY OF SUCH DAM- AGES. THIS LIMITATION OF LIABILITY SHALL NOT APPLY TO LIABILITY FOR DEATH OR PERSONAL INJURY RESULT- ING 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 DAM- AGES, 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.