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or the litigation claim is not withdrawn, the rights granted by Participant to You under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.
EXHIBIT A -Mozilla Public License. ``The contents of this file are subject to the Mozilla
Public License Version 1.1 (the "License"); you may not use this file except in compliance
124
