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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withdrawn, the rights granted by Participant to You under Sections 2.1 and/or 2.2 automatically terminate at the expiration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 a citizen of, or an entity chartered or
registered to do business in the United States of America, any litigation relating to this License shall be subject to the
jurisdiction of the Federal Courts of the Northern District of California, with venue lying in Santa Clara County, California,
with the losing party responsible for costs, including without limitation, court costs and reasonable attorneys' fees and
expenses. The application of the United Nations Convention on Contracts for the International Sale of Goods is expressly
excluded. Any law or regulation which provides that the language of a contract shall be construed against the drafter shall
not apply to this License.
12. RESPONSIBILITY FOR CLAIMS.
As between Initial Developer and the Contributors, each party is responsible for claims and damages arising, directly or
indirectly, out of its utilization of rights under this License and You agree to work with Initial Developer and Contributors to
distribute such responsibility on an equitable basis. Nothing herein is intended or shall be deemed to constitute any
admission of liability.
13. MULTIPLE-LICENSED CODE.
Initial Developer may designate portions of the Covered Code as "Multiple-Licensed". "Multiple-Licensed" means that the
Initial Developer permits you to utilize portions of the Covered Code under Your choice of the NPL or the alternative licenses,
if any, specified by the Initial Developer in the file described in Exhibit A.