Novell ZENWORKS NETWORK ACCESS CONTROL 5.0 - 09-22-2008 User Manual page 481

writing of such claim, and b) allow the Commercial Contributor to control, and cooperate with the
Commercial Contributor in, the defense and any related settlement negotiations. The Indemnified
Contributor may participate in any such claim at its own expense.
For example, a Contributor might include the Program in a commercial product offering, Product X.
That Contributor is then a Commercial Contributor. If that Commercial Contributor then makes
performance claims, or offers warranties related to Product X, those performance claims and
warranties are such Commercial Contributor's responsibility alone. Under this section, the
Commercial Contributor would have to defend claims against the other Contributors related to those
performance claims and warranties, and if a court requires any other Contributor to pay any damages
as a result, the Commercial Contributor must pay those damages.
5. NO WARRANTY
EXCEPT AS EXPRESSLY SET FORTH IN THIS AGREEMENT, THE PROGRAM IS
PROVIDED ON AN "AS IS" BASIS, WITHOUT WARRANTIES OR CONDITIONS OF ANY
KIND, EITHER EXPRESS OR IMPLIED INCLUDING, WITHOUT LIMITATION, ANY
WARRANTIES OR CONDITIONS OF TITLE, NON-INFRINGEMENT, MERCHANTABILITY
OR FITNESS FOR A PARTICULAR PURPOSE. Each Recipient is solely responsible for
determining the appropriateness of using and distributing the Program and assumes all risks
associated with its exercise of rights under this Agreement, including but not limited to the risks and
costs of program errors, compliance with applicable laws, damage to or loss of data, programs or
equipment, and unavailability or interruption of operations.
6. DISCLAIMER OF LIABILITY
EXCEPT AS EXPRESSLY SET FORTH IN THIS AGREEMENT, NEITHER RECIPIENT NOR
ANY CONTRIBUTORS SHALL HAVE ANY LIABILITY FOR ANY DIRECT, INDIRECT,
INCIDENTAL, SPECIAL, EXEMPLARY, OR CONSEQUENTIAL DAMAGES (INCLUDING
WITHOUT LIMITATION LOST PROFITS), HOWEVER CAUSED AND ON ANY THEORY OF
LIABILITY, WHETHER IN CONTRACT, STRICT LIABILITY, OR TORT (INCLUDING
NEGLIGENCE OR OTHERWISE) ARISING IN ANY WAY OUT OF THE USE OR
DISTRIBUTION OF THE PROGRAM OR THE EXERCISE OF ANY RIGHTS GRANTED
HEREUNDER, EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
7. GENERAL
If any provision of this Agreement is invalid or unenforceable under applicable law, it shall not
affect the validity or enforceability of the remainder of the terms of this Agreement, and without
further action by the parties hereto, such provision shall be reformed to the minimum extent
necessary to make such provision valid and enforceable.
If Recipient institutes patent litigation against a Contributor with respect to a patent applicable to
software (including a cross-claim or counterclaim in a lawsuit), then any patent licenses granted by
that Contributor to such Recipient under this Agreement shall terminate as of the date such litigation
is filed. In addition, if Recipient institutes patent litigation against any entity (including a cross-
claim or counterclaim in a lawsuit) alleging that the Program itself (excluding combinations of the
Program with other software or hardware) infringes such Recipient's patent(s), then such Recipient's
rights granted under Section 2(b) shall terminate as of the date such litigation is filed.
All Recipient's rights under this Agreement shall terminate if it fails to comply with any of the
material terms or conditions of this Agreement and does not cure such failure in a reasonable period
of time after becoming aware of such noncompliance. If all Recipient's rights under this Agreement
Licenses 481