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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 Governed
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 patent infringement litigation against AnIdea or a Contributor (AnIdea or the
Contributor against whom You file such action is referred to as "Participant") alleging that: 

 

         (a) such Participant's Original Code or 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 the Original Code or the Modifications made by such Participant, or (ii) withdraw
         Your litigation claim with respect to the Original Code or 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         agreed upon in writing by the parties or the litigation claim is not withdrawn, the rights granted by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 provided to You by the Participant, other than such Participant's
         Original Code or 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, Original Code or the Modifications made by that Participant. 

          

8.3. If You assert a patent infringement claim against Participant alleging that such Participant's Original Code or
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 THOUGHTSTORE, ANY CONTRIBUTOR, OR ANY
DISTRIBUTOR OF GOVERNED CODE, OR ANY SUPPLIER OF ANY OF SUCH PARTIES, BE LIABLE TO
YOU OR ANY OTHER PERSON FOR ANY DIRECT, 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 THAT EXCLUSION AND LIMITATION MAY NOT APPLY TO YOU. TO
THE EXTENT THAT ANY EXCLUSION OF DAMAGES ABOVE IS NOT VALID, YOU AGREE THAT IN NO
EVENT WILL THOUGHTSTORE'S LIABILITY UNDER OR RELATED TO THIS AGREEMENT EXCEED
FIVE THOUSAND DOLLARS ($5,000). THE GOVERNED CODE IS NOT INTENDED FOR USE IN
CONNECTION WITH ANY NUCLEAR, AVIATION, MASS TRANSIT OR MEDICAL APPLICATION OR
ANY OTHER INHERENTLY DANGEROUS APPLICATION THAT COULD RESULT IN DEATH, PERSONAL
INJURY, CATASTROPHIC DAMAGE OR MASS DESTRUCTION, AND YOU AGREE THAT NEITHER
THOUGHTSTORE NOR ANY CONTRIBUTOR SHALL HAVE ANY LIABILITY OF ANY NATURE AS A
RESULT OF ANY SUCH USE OF THE GOVERNED CODE. 

 

10. U.S. Government End Users. 

 

The Governed 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 Governed 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 New York law (except to the extent applicable law, if any, provides otherwise), excluding
its conflict-of-law provisions. The parties submit to personal jurisdiction in New York, New York and further agree
that any cause of action arising under or related to this Agreement shall be brought in the Federal Court for the
Southern District of New York, with venue lying in New York, New York. The losing party shall be responsible for
costs, including without limitation, court costs and reasonable attorneys' fees and expenses. Notwithstanding anything
to the contrary herein, AnIdea may seek injunctive relief related to a breach of this Agreement in any court of
competent jurisdiction. 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. 

 

Except in cases where another Contributor has failed to comply with Section 3.4, You are responsible for damages
arising, directly or indirectly, out of Your utilization of rights under this License, based on the number of copies of
Governed Code you made available, the revenues you received from utilizing such rights, and other relevant factors.
You agree to work with affected parties to distribute responsibility on an equitable basis.