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5. Application of this License.
This License applies to code to which the Initial Developer has
attached the notice in Exhibit A and to related Covered Code.
6. Versions of the License.
6.1. New Versions. Netscape Communications Corporation
(‘’Netscape’’) may publish revised and/or new versions of
the License from time to time. Each version will be given a
distinguishing version number.
6.2. Effect of New Versions. Once Covered Code has been
published under a particular version of the License, You may
always continue to use it under the terms of that version. You
may also choose to use such Covered Code under the terms of
any subsequent version of the License published by Netscape.
No one other than Netscape has the right to modify the terms
applicable to Covered Code created under this License.
6.3. Derivative Works. If You create or use a modified version
of this License (which you may only do in order to apply it to
code which is not already Covered Code governed by this
License), You must (a) rename Your license so that the phrases
‘’Mozilla’’, ‘’MOZILLAPL’’, ‘’MOZPL’’, ‘’Netscape’’, "MPL", ‘’NPL’’
or any confusingly similar phrase do not appear in your license
(except to note that your license differs from this License) and (b)
otherwise make it clear that Your version of the license contains
terms which differ from the Mozilla Public License and Netscape
Public License. (Filling in the name of the Initial Developer,
Original Code or Contributor in the notice described in Exhibit
A shall not of themselves be deemed to be modifications of this
License.)
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 COVERED CODE
IS FREE OF DEFECTS, MERCHANTABLE, FIT FOR A
PARTICULAR PURPOSE OR NON-INFRINGING. THE ENTIRE
RISK AS TO THE QUALITY AND PERFORMANCE OF THE
COVERED CODE IS WITH YOU. SHOULD ANY COVERED
CODE PROVE DEFECTIVE IN ANY RESPECT, YOU (NOT
THE INITIAL DEVELOPER OR ANY OTHER CONTRIBUTOR)
ASSUME THE COST OF ANY NECESSARY SERVICING,
REPAIR OR CORRECTION. THIS DISCLAIMER OF WARRANTY
CONSTITUTES AN ESSENTIAL PART OF THIS LICENSE. NO
USE OF ANY COVERED CODE IS AUTHORIZED HEREUNDER
EXCEPT UNDER THIS DISCLAIMER.
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 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