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Appendix D. Storage Networking Ind ustry Association Public License
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 (ex
cluding declaratory
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. (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or the litigation claim is not withdrawn, the rights granted by Participant to You under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.
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
EXCLUSIONANDLIMITATIONMAYNOTAPPLYTOYOU.
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
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hp Stor ageWorks Enterprise Virtual Array Updating Product
Software Instructions