xii
implied or statutory, to which, under any applicable law, it might be
deemed to have been subject.
7. Claims of Infringement. If Recipient learns of any third party claim
that any disposition of Covered Code and/or functionality wholly
or partially infringes the third party’s intellectual property rights,
Recipient will promptly notify SGI of such claim.
8. Versions of the License. SGI may publish revised and/or new
versions of the License from time to time, each with a distinguishing
version number. Once Covered Code has been published under
a particular version of the License, Recipient may, for the duration
of the license, continue to use it under the terms of that version,
or choose to use such Covered Code under the terms of any
subsequent version published by SGI. Subject to the provisions of
Sections 3 and 4 of this License, only SGI may modify the terms
applicable to Covered Code created under this License.
9. DISCLAIMER OF WARRANTY. COVERED CODE IS
PROVIDED “AS IS.” ALL EXPRESS AND IMPLIED WARRANTIES
AND CONDITIONS ARE DISCLAIMED, INCLUDING,
WITHOUT LIMITATION, ANY IMPLIED WARRANTIES AND
CONDITIONS OF MERCHANTABILITY, SATISFACTORY
QUALITY, FITNESS FOR A PARTICULAR PURPOSE, AND NON-
INFRINGEMENT. SGI ASSUMES NO RISK AS TO THE QUALITY
AND PERFORMANCE OF THE SOFTWARE. SHOULD
THE SOFTWARE PROVE DEFECTIVE IN ANY RESPECT, SGI
ASSUMES NO COST OR LIABILITY FOR SERVICING, REPAIR
OR CORRECTION. THIS DISCLAIMER OF WARRANTY IS
AN ESSENTIAL PART OF THIS LICENSE. NO USE OF ANY
COVERED CODE IS AUTHORIZED HEREUNDER EXCEPT
SUBJECT TO THIS DISCLAIMER.
10. LIMITATION OF LIABILITY. UNDER NO CIRCUMSTANCES
NOR LEGAL THEORY, WHETHER TORT (INCLUDING,
WITHOUT LIMITATION, NEGLIGENCE OR STRICT
LIABILITY), CONTRACT, OR OTHERWISE, SHALL SGI OR
ANY SGI LICENSOR BE LIABLE FOR ANY DIRECT, INDIRECT,
SPECIAL, INCIDENTAL, OR CONSEQUENTIAL DAMAGES
OF ANY CHARACTER INCLUDING, WITHOUT LIMITATION,
DAMAGES FOR LOSS OF GOODWILL, WORK STOPPAGE,
LOSS OF DATA, 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 SGI’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 RECIPIENT.
11. Indemnity. Recipient shall be solely responsible for damages arising,
directly or indirectly, out of its utilization of rights under this License.
Recipient will defend, indemnify and hold harmless Silicon Graphics, Inc.
from and against any loss, liability, damages, costs or expenses (including
the payment of reasonable attor neys fees) arising out of Recipient’s use ,
modifi cation, reproduction and distribution of the Covered Code or out
of any representation or warranty made by Recipient.
12. U.S. Government End Users. The Covered Code is a “commercial
item” consisting of “commercial computer software” as such
terms are defi ned in title 48 of the Code of Federal Regulations
and all U.S. Government End Users acquire only the rights set
forth in this License and are subject to the terms of this License.
13. Miscellaneous. This License represents the complete agreement
concerning the its subject matter. If any provision of this License
is held to be unenforceable, such provision shall be reformed so
as to achieve as nearly as possible the same legal and economic
effect as the original provision and the remainder of this License
will remain in effect. This License shall be governed by and
construed in accordance with the laws of the United States and
the State of California as applied to agreements entered into and
to be performed entirely within California between California
residents. Any litigation relating to this License shall be subject to
the exclusive jurisdiction of the Federal Courts of the Northern
District of California (or, absent subject matter jurisdiction in such
courts, the courts of the State of California), with venue lying
exclusively 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 that
provides that the language of a contract shall be construed against
the drafter shall not apply to this License.
Exhibit A
License Applicability. Except to the extent portions of this fi le are made
subject to an alternative license as permitted in the SGI Free Software
License B, Version 1.1 (the “License”), the contents of this fi le are subject
only to the provisions of the License. You may not use this fi le except in
compliance with the License. You may obtain a copy of the License at
Silicon Graphics, Inc., attn: Legal Services, 1600 Amphitheatre Parkway,
Mountain View, CA 94043-1351, or at: http://oss.sgi.com/projects/FreeB
Note that, as provided in the License, the Software is distributed on
an “AS IS” basis, with ALL EXPRESS AND IMPLIED WARRANTIES
AND CONDITIONS DISCLAIMED, INCLUDING, WITHOUT
LIMITATION, ANY IMPLIED WARRANTIES AND CONDITIONS
OF MERCHANTABILITY, SATISFACTORY QUALITY, FITNESS FOR A
PARTICULAR PURPOSE, AND NON-INFRINGEMENT.
Original Code. The Original Code is: [name of software, version number,
and release date], developed by Silicon Graphics, Inc. The Original Code is
Copyright (c) [dates of fi rst publication, as appearing in the Notice in the
Original Code] Silicon Graphics, Inc. Copyright in any portions created by
third parties is as indicated elsewhere herein. All Rights Reserved.
Additional Notice Provisions: [such additional provisions, if any, as appear
in the Notice in the Original Code under the heading “Additional Notice
Provisions”]
