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EXHIBIT 10.16
[EVERGREEN LOGO]
OEM RECIPROCAL LICENSE AGREEMENT
This OEM Agreement (the "Agreement" or "License") is made as of January 6, 2000
between EVERGREEN INTERNET, INC., an Arizona Corporation having offices at ▇▇▇▇
▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇ ("Evergreen" or "Licensor") and
Caldera Systems, Inc., a Utah Corporation, having offices at ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇,
▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ("Caldera" or "Licensee").
This OEM License Agreement is a "Contract" made pursuant to a Master Agreement
of even date. This Agreement, the Master Agreement and Exhibits B, C, D and E of
the Master Agreement will become effective simultaneously, as of the date when
this Agreement, the Master Agreement and all such Exhibits of the Master
Agreement have been mutually signed and delivered by the parties.
1. DEFINITIONS
"Code" means the computer programming code relating to ECential(TM) and
OpenLinux(TM) software products in object and/or executable code form
(machine-readable) not to include source code.
"Documentation" means the textual materials relating to the Code
provided to each other by Evergreen and Caldera, including operating
instructions, related technical information, and user documentation.
"ECential" means the ECential software products and programs for Linux,
as listed in Exhibit A including their Code and Documentation, and any
other existing or future e-Commerce Products that Evergreen determines
is appropriate for Linux, including their Code and Documentation.
Exhibit A shall be updated to keep it current with future e-Commerce
Products of Evergreen for Linux and Updates.
"e-Commerce Products" means software products and programs that are used
in the creation, analysis, management and promotion of Internet
E-Commerce web sites, storefronts, customer service, business logic,and
e-commerce transactions for consumer-to-business and
business-to-business solutions across the Internet or Intranets.
Software products or programs that are not competitive with eCential or
future releases thereof shall not be deemed to be within the definition
of ecommerce products.
"Marks" means Evergreen Marks and Caldera Marks. "Evergreen Marks" means
the trademarks and/or product names of Evergreen. "Caldera Marks" means
the trademarks and/or product names of Caldera.
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"Proprietary Data" means any proprietary "know-how" which a disclosing
party discloses to a receiving party relating to the development or use
of the disclosing parties design, structure, configuration, programming,
and protocol of the disclosing parties software. "Know-how" may include
computer program designs, algorithms, subroutines, system
specifications, programming logic, manufacturing techniques, and program
architecture.
"Evergreen Software" means any software proprietary to Evergreen
including ECential programs or Code. It also refers to any ECential
programs used in conjunction with Caldera Software.
"Caldera Software" means the software proprietary to Caldera which is
included by Caldera in OpenLinux eServer.
"OpenLinux eServer" mean the Linux software distribution designated by
Caldera for eServer. This Linux software distribution for eServer
includes a Linux kernel, Caldera Software and OpenLinux Third Party
Software. OpenLinux for eServer includes existing and future versions
thereof.
Third Party Software. "Third Party Software" means the software
proprietary third parties which is included in eBuilder. "OpenLinux
Third Party Software means the Third Party Software included by Caldera
in OpenLinux for eBuilder. "ECential Third Party Software" means the
Third Party Software included by Evergreen in ECential.
"OpenLinux eBuilder" means the bundled combination of ECential with
OpenLinux eServer plus third party software, plus any other software the
parties agree to add.
"Evergreen's version of the bundle" means the bundled combination of
OpenLinux eServer with eCential plus any software the parties agree to
add.
"Reseller" shall mean a distributor, OEM, VAR, integrator, retailer,
dealer or other reseller.
"Updates" shall means updates and upgrades to, new versions of, and
replacements for ECential.
2. OWNERSHIP
2.1 OWNERSHIP
ECential is the proprietary product of Evergreen and others in
accordance with Sections 3.3 and 3.4 below and is protected by the
Copyright and Trademark Laws of the United States of America. Caldera
acknowledges that Evergreen and others in accordance with Sections 3.3
and 3.4 below own the intellectual property in ECential software and
Caldera makes no claim of ownership to their intellectual property in
ECential or ECential itself.
2.2 EVERGREEN AND CALDERA MARKINGS
Caldera and Evergreen shall not in any manner act adversely to each
others Marks, Proprietary Data, or other intellectual property.. Caldera
shall not remove the Evergreen Marks from ECential, unless granted in
written permission from Evergreen. Evergreen shall not remove the
Caldera Marks from OpenLinux, unless granted in written permission from
Evergreen.
2.3 MUTUAL RIGHTS AND OBLIGATIONS
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Evergreen acknowledges that all rights, ownership, and trademarks of
OpenLinux for eBuilder are the exclusive property of Caldera and/or
Caldera's licensors / suppliers. Caldera acknowledges that all rights,
ownership and trademarks of eCential are the exclusive property of
Evergreen and/or Evergreens licensors/suppliers. Evergreen shall not in
any manner act adversely to the Caldera Marks, Caldera's Proprietary
Data or other intellectual property of Caldera. The eBuilder product
name and trademark shall belong exclusively to Caldera. The parties will
work together in the spirit of an equal partnership so that there is
agreement on all product issues such as content, look and feel and
licensing terms. Caldera will be sure that the name eCential is featured
in all packaging and promotion, web sites and software so that brand
equity is built for both parties and their respective products (eBuilder
and eCential). OpenLinux eBuilder must give prominent credit to eCential
in all packaging and promotion. Evergreen must have the opportunity to
approve packaging and promotional materials. Evergreen marketing
materials, packaging and look & feel must come through in Caldera's
packages, web sites and collateral. Evergreen is entitled to create its
own version of the bundled software and for that version hereby extends
to Caldera the same terms listed above.
3. LICENSE
3.1 LICENSE GRANT
Evergreen grants a, non-transferable (except under Section 9. Y. of the
Master Agreement), worldwide right and license for the Linux market
during the term of this Agreement, (and Caldera grants Evergreen a
non-transferable (except under Section 9. Y. of the Master Agreement),
worldwide right and license for the linux market during the term of this
agreement) to do the following:
3.1.1 bundle ECential with OpenLinux for eServer to create
eBuilder and Evergreen's version of the bundled product.
3.1.2 market, distribute, package, and publish Ecential and
OpenLinux, including ECential and OpenLinux Software and
documentation, only as part of eBuilder or Evergreen's version
of the bundled product and sell Ecential and OpenLinux licenses
to end users who receive eBuilder;
3.1.3 use ECential (such use being limited to use by employees
or by independent contractors of Caldera for internal use only).
Such internal use will require payment of VisiBroker license
fees based on the number of CPUs being used. Caldera shall be
entitled to purchase such VisiBroker licenses from Evergreen at
Evergreen's cost. Evergreen employees and independent
contractors may use OpenLinux for internal development.
3.1.4 copy and reproduce ECential and OpenLinux for the purposes
of this Agreement.
3.2 ECential is licensed, not sold. Title to the intellectual property
and Source Code in ECential remains with Evergreen and its suppliers
under Sections 3.3 and 3.4. Evergreen and/or its suppliers reserve all
rights not expressly granted herein. Without limiting the foregoing,
Caldera shall not modify, port, translate, localize, add features or
functionality in the Code, or create derivative works of ECential,
decompile, deencrypt, disassemble or otherwise reverse engineer
ECential, the logic,
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algorithms or program code of ECential, or attempt to do any of the
same. Caldera shall not receive any rights by implication or otherwise
in ECential or any component thereof, except as provided in the Business
Alliance.
3.3 Caldera and Evergreen may market, distribute, package and publish
ECential and OpenLinux under 3.1.2 above, directly to end users and/or
indirectly to end users through Caldera's or Evergreen's Resellers.
Bundling may be accomplished by physical bundling (e.g., inclusion of
ECential physical media with OpenLinux eBuilder media) or electronic
bundling (e.g., by making downloads of ECential available through the
same web page as downloads of OpenLinux eBuilder) or by otherwise making
ECential available in conjunction with eBuilder. The license and rights
granted to Caldera may be exercised with respect to any or all of the
ECential products as defined in Exhibit A.
3.4 FORM OF USER LICENSE
If and to the extent that the parties agree it is practicable, use by an
end user of ECential will require a license key. To obtain a license key
for ECential, registration is required by the registered user of the
product or by Caldera's Reseller. Registration is accomplished by the
end user or Caldera's Reseller accessing a web registration page hosted
by Evergreen and/or Caldera and filling in the required registration
information. Upon completion of the registration process, the registered
user will obtain (or the Reseller will obtain for its end user customer)
the license key and a User License for the ECential software product
being registered. The User License shall be the Software License
Agreement of Attachment B. If obtained by either parties Reseller, then
it will be passed on to the end user. Evergreen will provide Caldera
with the information requested by Caldera to create and maintain the
Caldera web page. Caldera will reciprocate.
If this registration process is not utilized or if it does not include a
procedure acceptable to Evergreen by which the end user accepts the
Software License Agreement, then Caldera has the following obligation:
The ECential licenses from Evergreen that Caldera is authorized to sell
under Section 3.1 above shall be sold on behalf of Evergreen under this
Agreement and are to include the Software License Agreement attached as
Exhibit B to this Agreement. Caldera shall include a copy of the
applicable Software License Agreement with each license of ECential that
Caldera sells. If Caldera believes that it is not practicable to obtain
written signatures for the Software License Agreement, then Evergreen
shall incorporate into the Software License Agreement and the ECential
Code terms and procedures that provide for acceptance of the Software
License Agreement by the end user by installing or using ECential.
Caldera shall not interfere with such contract acceptance terms and
procedures.
The Software License Agreement shall govern the use of ECential by end
user customers. The Software License Agreement includes a grant by
Evergreen to the end user to use ECential (including the third party
software of Sections 3.3 and 3.4). The Software License Agreement is an
agreement between Evergreen and the end user. Caldera is not a party to
the Software License Agreement and has no obligation or liability
thereunder.
3.5 VISIBROKER LICENSE
Visibroker, a product of Inprise, is an embedded product in ECential.
Licenses granted by Visibroker are per CPU, and the number of licenses
granted is determined by the product purchased. As described in Exhibit
A, additional licenses are obtained by purchasing the additional CPU
product.
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3.6 THIRD PARTY SOFTWARE
Caldera understands and agrees that the ECential Software utilizes
software or software components (including Visibroker) from third
parties as described in Exhibit 2 to Software License Agreement of
Exhibit B, and said third party software is licensed to an end user each
time Caldera sells an ECential license to an end user. The Software
License Agreement will include a reference to and copy of the applicable
third party license agreements. The end user must agree to abide by the
terms of the applicable third party license agreement(s) through
acceptance of the end user's Software License Agreement as provided in
Section 3.4. Evergreen and Caldera will amend said Exhibit 2 as
necessary to keep it current with the third party software in ECential.
Evergreen shall be responsible for payment to the applicable third
parties for the license fees, royalties and other payments or costs of
third party software in ECential arising from licenses of ECential to
end users ("third party fees"). If Caldera is the "Selling Party" (as
defined in Section 4.2), then end users will pay such third party fees
to Evergreen through Caldera. Caldera shall be responsible for
collection of these third party fees. Third party fees shall be
Evergreen's actual cost, without ▇▇▇▇-up.
3.7 REPORTS
By the 20th day of each month following the calendar quarter end,
Caldera will provide Evergreen the following activity reports:
a. License Report: List of all ECential licenses sold to end users or
Resellers in conjunction or bundled with the eBuilder. If the registered
user obtains the license key and User License through the web site as
described in Section 3.4, this report will be generated by the parties
from web site information. Otherwise, Caldera will be required to
provide this list as agreed to in 3.7.a. The list may include channel
partners and/or registered end users of the product. The report should
include copies of OpenLinux that Caldera knows will be used to deploy an
ecommerce internet or intranet site.
b. Trouble Report: Problems or bugs believed by Caldera to be caused by
errors in the Evergreen Software.
c. Enhancement Report: Any enhancements and suggestions for improvement
of Evergreen Software which Caldera desires to suggest to Evergreen.
d. CPU Report: To the extent that VisiBroker is included in ECential,
Caldera is required to provide a listing of server(s) and total CPUs per
server per license distributed. Report is to include the name of the end
user, address, version of eBuilder, hardware and operating system and
the number of CPUs. This report, in addition to any other purposes, is
required to provide compliance with Visibroker license requirements as
indicated in 3.2 above. If however, the registered user obtains the
license key and User License through the web site as described in
Section 3.4, then this report will be generated by the parties from web
site information. Otherwise, Caldera will be required to provide this
list as agreed to in 3.7.d.
3.8 MASTER COPY OF THE SOFTWARE
Evergreen will provide Caldera with a master copy of the ECential
software products and programs listed in Exhibit A and for each Update
(see Section 6.3). Caldera is authorized to reproduce any such copy
solely in connection with exercising the rights granted under this
Agreement. Upon termination of this Agreement for any reason, Caldera
shall return to Evergreen the master copy or
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copies of the program and all other copies of the Evergreen Software
except as needed for continued support under Section 5.3. Caldera will
provide a master copy of OpenLinux under the same terms.
3.9 EVERGREEN MARKS
Caldera shall use the Evergreen Marks in connection with ECential. The
use of the Evergreen Marks by Caldera shall strictly adhere to the most
recent reasonable written guidelines provided by Evergreen. In the
absence of written guidelines from Evergreen, Caldera shall submit the
proposed use of any Evergreen ▇▇▇▇ to Evergreen for Evergreen's written
approval before such use. All use of the Evergreen Marks by Caldera
shall inure to the benefit of Evergreen. In bundled software packaging,
whether physical or on-line, Evergreen shall have the right to approve
all such packaging as to ECential prior to offering the bundle to
market. Evergreen shall not unreasonably withhold or delay approval.
3.10 GNU General Public License
Both parties understand that Linux and certain software in eBuilder are
or may be subject to or governed by the applicable GNU General Public
License and/or other applicable open source agreements, and nothing in
this Agreement or the Business Alliance shall require either party to
act in contradiction of the applicable GNU General Public License and/or
other applicable open source agreements.
3.11 EXCLUSIVE RIGHT TO DISTRIBUTE
For a period of one year from the Date of First Distribution or March
31, 2000 (whichever is first) , Evergreen agrees that it will not bundle
ECential with any other Linux operating system software that competes
with Caldera's OpenLinux other than Caldera's OpenLinux for eBuilder and
that Evergreen will promote Caldera andOpenLinux for eBuilder as the
preferred Linux solutions for ECential. During this same one year
period, Caldera agrees that it will not bundle with Open Linux or
OpenLinux for eBuilder any other e-Commerce Product that competes with
ECential and that Caldera will promote Evergreen and ECential as the
preferred e-Commerce Product solution for Linux. This Section 3.11
imposes no restrictions or obligations on the parties hereto other than
as stated in Section 3.11. Neither this paragraph nor the Business
Alliance create any exclusive distributorship on behalf of Caldera or
Evergreen. Either party to this Business Alliance may distribute the
bundled OpenLinux/ECential products directly or indirectly through their
respective distribution channels.
3.13 OpenLinux for eBuilder is licensed, not sold. The Linux kernel and
any other GNU General Public License software or open source software
are distributed pursuant to and governed by the applicable GNU General
Public License or open source software agreement. Title to the
intellectual property and source code in OpenLinux for eBuilder remains
with Caldera and its licensors or suppliers as applicable. Caldera
and/or its licensors and suppliers reserve all rights not expressly
granted herein. Without limiting the foregoing, Caldera shall not
modify, port, translate, localize, add features or functionality in
OpenLinux for eBuilder, or create derivative works of OpenLinux for
eBuilder, decompile, deencrypt, disassemble or otherwise reverse
engineer OpenLinux for eBuilder, the logic, algorithms or program code
of OpenLinux for eBuilder, or attempt to do any of the same,
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except as permitted in the applicable license agreements (see Sections
3.14 and 3.15 below). Evergreen shall not receive any rights by
implication or otherwise in OpenLinux for eBuilder or any component
thereof, except as provided in the Business Alliance.
3.14 FORM OF USER LICENSE
All copies of eBuilder marketed, distributed or published by Evergreen
must include copies of all license agreements applicable to OpenLinux
for eBuilder as provided by Caldera to Evergreen. Such license
agreements shall govern use and licensing of OpenLinux for Builder.
Evergreen shall respect any terms and procedures in any such license
agreement or the software that provide for acceptance of the license
agreement by the end user by installing or using the software to which
the license agreement applies. Evergreen shall not interfere with such
contract acceptance terms and procedures.
Each such license agreement is an agreement between Caldera or its
licensor or supplier, as applicable, and the end user. Evergreen is not
a party to these license agreements and has no obligation or liability
thereunder.
3.15 OPENLINUX THIRD PARTY SOFTWARE
Evergreen understands and agrees that OpenLinux for eBuilder includes
OpenLinux Third Party Software from third parties and said OpenLinux
Third Party Software is licensed (under a license agreement under
Section 3.14 above) to an end user each time Evergreen or its Reseller
distributes or otherwise provides eBuilder to an end user. The end user
must agree to abide by the terms of the applicable license agreements
through acceptance of the these license agreements as provided in
Section 3.14. As OpenLinux Third Party Software or the applicable
license agreements change, Caldera will provide Evergreen with new forms
of such license agreements as necessary to keep current with the
OpenLinux Third Party Software, and Evergreen shall use the
then-most-current version of the license agreements. The same applies to
any new Caldera Software or changes in Caldera Software license
agreements. Caldera shall be responsible for payment to the applicable
third parties for the license fees, royalties and other payments or
costs of OpenLinux Third Party Software in eBuilder arising from the
distribution of eBuilder to end users ("third party fees"). If Evergreen
is the "Selling Party" (as defined in Section 4.2), then end users will
pay such third party fees to Caldera through Evergreen. Evergreen shall
be responsible for collection of these third party fees. Third party
fees shall be Caldera's actual cost, without ▇▇▇▇-up.
3.16 REPORTS
BY THE 20TH DAY OF EACH MONTH FOLLOWING THE CALENDAR QUARTER END,
EVERGREEN SHALL PROVIDE REPORTS TO CALDERA ON ALL COPIES OF EBUILDER
DISTRIBUTED OR PUBLISHED BY EVERGREEN TO END USERS OR RESELLERS. SUCH
REPORTS SHALL BE AS SIMILAR AS POSSIBLE TO THE REPORTS UNDER SECTION
3.7, BUT DESIGNED TO INCLUDE INFORMATION NEEDED BY CALDERA FOR ROYALTY
PURPOSES, FOR PURPOSES OF OPENLINUX THIRD PARTY SOFTWARE, AND AS
OTHERWISE REASONABLY REQUESTED BY CALDERA. THE REPORT WILL INCLUDE
INFORMATION ON SALES OF ECENTIAL THAT EVERGREEN KNOWS WILL BE DEPLOYED
ON LINUX AT THE TIME OF THE TRANSACTION.
3.17 MASTER COPY OF THE SOFTWARE
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Caldera will provide Evergreen with a master copy of eBuilder and
updates to and new versions of eBuilder (including the OpenLinux for
eBuilder software therein). Caldera is authorized to reproduce any such
copy solely in connection with exercising the rights granted under this
Agreement. Upon termination of this Agreement for any reason, Caldera
shall return to Evergreen the master copy or copies of the program and
all other copies of the OpenLinux for eBuilder except as needed for
continued support under Section 5.3.
3.18 EVERGREEN MARKS
Evergreen shall use the Caldera Marks in connection with OpenLinux for
eBuilder (including any marketing, distribution, packaging or
publication of eBuilder under Section 3.12), and shall use "eBuilder"
(and no other trademark or product name unless and as approved in
writing by Caldera) as the trademark and product name for the eBuilder
product. The use of the Caldera Marks by Evergreen shall strictly adhere
to the most recent reasonable written guidelines provided by Caldera. In
the absence of written guidelines from Caldera, Evergreen shall submit
the proposed use of any ▇▇▇▇▇▇▇ ▇▇▇▇ to ▇▇▇▇▇▇▇ for ▇▇▇▇▇▇▇'▇ written
approval before such use. All use of the Caldera Marks by Evergreen
shall inure to the benefit of Caldera. In bundled software packaging,
whether physical or on-line, Caldera shall have the right to approve all
such packaging as to eBuilder or OpenLinux for eBuilder prior to
offering the bundle to market. Caldera shall not unreasonably withhold
or delay approval.
4. FEES
4.1 INITIAL PAYMENT
Caldera and Evergreen will pay each other a license fee of $100,000 in
each of the first two quarters after the agreement is signed. The first
payment will be made within ten days of the execution of this agreement.
The second payment will be made with the second quarterly report. This
Agreement shall become effective only upon the investment in Evergreen
by Caldera and the stock exchange referred to in the Master Agreement
4.2 ROYALTY
The "Selling Party" shall mean the party who sells, distributes and/or
licenses a copy of eBuilder or Evergreen's version of the bundled
product directly to an end user or to a Reseller. The other party is the
"Other Party." "Proceeds" shall mean the gross revenue received by the
Selling Party from an end user or a Reseller, whichever is applicable,
for the sale, distribution and/or licensing of eBuilder or Evergreen's
version of the bundled product.
"Third Party Software Payments" shall mean payments to third parties for
Third Party Software in eBuilder or Evergreen's version of the bundled
product.
From the Proceeds, all payments payable for applicable Third Party
Software shall be made. If Caldera is the Selling Party, then Caldera
shall pay such payments for OpenLinux Third Party Software directly to
the applicable third parties and shall pay such payments for ECential
Third Party Software to Evergreen, and Evergreen shall pass such payment
on to the applicable third parties. If Evergreen is the Selling Party,
then Evergreen shall pay such payments for ECential Third Party
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Software directly to the applicable third parties and shall pay such
payments for OpenLinux Third Party Software to Caldera, and Caldera
shall pass such payment on to the applicable third parties.
Proceeds do not include fees or payments for any support, maintenance or
services not included in the price for eBuilder. For example, support,
maintenance and other services invoiced or charged separate from the
price for the sale, distribution and/or licensing of eBuilder or
Evergreen's version of the bundled product, are not subject to the
Royalty. Software products which are distributed or licensed in
conjunction with eBuilder, but not included by either party in eBuilder
or Evergreen's version of the bundled product, shall not be subject to
the Royalty, i.e., the Royalty is not payable on the sales price
received by the Selling Party for such other software products.
"Net Proceeds" shall mean Proceeds minus Third Party Software Payments.
"Net Revenue" shall mean 50% of Net Proceeds.
The "Royalty" payable by the Selling Party to the Other Party shall be
[****] of Net Revenue [****].
The parties agree that they will review on a quarterly basis by the last
day of March, June, September, and December of each calendar year, the
definition and percentages of net revenue.
Evergreen may have customers who choose to deploy eCential on Linux
distributions that compete with Caldera. Evergreen will promote the
eBuilder bundle or Evergreen's version of the bundled product to
customers who ask for Linux. If the customer insists on purchasing
eCential and not the bundle Evergreen may sell it to them. If Evergreen
knows at the time of any transaction that eCential will be deployed on
Linux then that sale is subject to the royalty payments described above.
Evergreen may choose to refer customers who seek a Linux Support
Agreement to Caldera. If Caldera signs an agreement with a customer
referred by Evergreen then Caldera will give Evergreen [****] of the
first 12 months revenue as a referral fee.
Caldera may choose to refer customers who seek support on eCential to
Evergreen. If Evergreen signs an agreement with a customer referred by
Caldera then Evergreen will give Caldera [****] of the first 12 months
revenue as a referral fee.
4.3 PAYMENT
Selling Party will make quarterly payments to Other Party of the royalty
amounts Other Party is entitled to receive hereunder. Payments will
accompany the quarterly reports described in section 3.5. Reports and
payments are due the 20th day of that month which follows the end of
each calendar quarter. To compensate for the loss of the use of money
and the administrative expense involved in collecting past due amounts,
all amounts past due or in default under this Agreement shall bear
interest at a rate of one (1.5%) per month.
4.4 TAXES AND OTHER FEES.
As between Selling Party and Other Party, Selling Party shall be
responsible for payment of all sales, use and other taxes, fees and/or
assessments of any sort which come due because of or are related to
transactions between Selling Party and its customers. Selling Party
shall also pay, at its own expense, all import and export licenses and
permits, customs charges, and duty fees required to
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**** CERTAIN INFORMATION ON THIS PAGE HAS BEEN OMITTED AND FILED SEPARATELY WITH
THE SECURITIES AND EXCHANGE COMMISSION. CONFIDENTIAL TREATMENT HAS BEEN
REQUESTED WITH RESPECT TO SUCH OMITTED PORTIONS.
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accomplish the export and import of the licenses sold by Selling Party.
However, all of the foregoing are not including in Proceeds. Nothing
herein applies to Other Parties income taxes.
4.5 INSPECTION OF SELLING PARTY RECORDS.
Upon twenty (20) days written notice to Selling Party, at Other Parties
expense (except as otherwise provided below), and no more often than
once per year, Other Parties designated representative, or its
independent certified public accountant shall have the right to inspect
Selling Parties records relevant to the royalty or selling parties
compliance with the alliance during business hours solely for the
purposes of verifying the royalty amounts due to Other Party and Selling
Parties compliance with the provisions of this License and all related
Contracts under the Master Agreement. A final inspection shall occur no
later than one year after the termination of this Agreement. Selling
Party shall make immediate payment of any amounts that an inspection
accurately shows to be due to Other Party. If, as a result of any such
inspection, it is accurately determined that the amount paid or due from
Selling Party to Other Party for the period being reviewed has been
understated by an amount in excess of five percent (5%) of the total
amount due Other Party, then Selling Party shall promptly pay the
reasonable cost of such inspection. Other Parties representative or
independent certified public accountant must agree in writing with
Selling Party to keep confidential Selling Parties records and the
contents thereof, except for reasonable disclosures to Other Party
relating to Selling Parties failure to pay the royalty and/or Selling
Parties failure to comply with its obligations under any of the
contracts to the Business Alliance. Other Party must keep such
disclosures confidential and not use for any purpose, except as
necessary to enforce Selling Parties royalty obligation or any terms of
the contracts of the Business Alliance.
5. TERM AND TERMINATION
5.1 TERM.
Unless terminated earlier as provided herein, the initial term of this
Agreement shall be three (3) years from the date of this Agreement, and
the term of this Agreement shall automatically renew for an unlimited
number of successive one-year terms. However, either party may terminate
this Agreement by giving at least 90 days advance written notice of
termination to the other party, provided that the date of such
termination does not occur prior to the end of said initial three year
term. Either party may terminate this Agreement for any reason or no
reason as provided in the Master Agreement.
5.2 RIGHTS NOT TERMINATED.
The termination or expiration of this Agreement shall not affect any
licenses granted or sold to end-users prior to such termination or
expiration. Upon such termination or expiration, each party (the "first
party") shall use all commercially reasonable efforts to return or
destroy all materials provided by other party to the first party during
the term of this Agreement, as specifically provided in the Master
Agreement, but subject to Section 5.3.
5.3 SUPPORT OF EXISTING END USERS
Notwithstanding anything herein to the contrary, in the event of
termination or expiration of this Agreement, the parties shall cooperate
to ensure that end users who received eBuilder under this Agreement
prior to termination or expiration shall continue to receive the support
and maintenance contemplated by this Agreement for at least three years.
Caldera and Evergreen may continue to
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meet their respective support and maintenance obligations to such end
users as established in good faith prior to the date of termination.
5.4 TERMINATION FOR NON-PERFORMANCE
In the event that eBuilder has not been made available for shipping by
June 30, 2000 either party may terminate this agreement with 30 days
written notice.
6. SOFTWARE SUPPORT, DEVELOPMENT SUPPORT, UPGRADES AND TRAINING
6.1 SUPPORT OBLIGATIONS.
The selling party shall provide first and second line support to
customers for the Caldera Software and the Evergreen Software during the
term of this Agreement. The non-selling partyshall provide third line
support. The Selling party will be responsible to communicate third line
support requests to the other party. Third line support means technical
support, consultation with support personnel (and end users if
necessary), trouble shooting, diagnosis of problems, and back-up support
to first and second lines of support. Evergreen and Caldera shall
provide respective support for their Software in accordance with the
following support hours and response times. Evergreen and Caldera will
review support hours and response times guidelines on a quarterly basis
and make appropriate adjustments as mutually agreed upon.: Working Hours
(Hours of Live Support byboth parties) live escalation call support
Monday - Friday 9am - 5pm Mountain Time during normal business days
(non-holidays).
Holidays
Evergreen will notify Caldera each year of Evergreen's annual holiday
schedule, and vice versa.
Response Times
Evergreen and Caldera will accept escalation support incidents from each
other via e-mail and/or elephone for Severity 2 or 3 incidents, and the
other party will acknowledge such incidents within 4 working hours. Each
party will make best effort to reply to and resolve Severity 2 incidents
within 2 business days, and Severity 3 incidents within 5 business days.
The parties will accept escalation support incidents from each other
only via telephone for Severity 1 incidents, and the other party will
acknowledge such incidents within 1 working hour. Each party will make
best effort to reply to and resolve Severity 1 incidents within 4
business hours.
Severity is the impact the problem has on business operations. Severity
1, 2, and 3 incidents are defined below:
"1" - for Errors that result in an emergency condition that cause
critical impact to end user's schedule, cause a serious security breach,
or that make performance or continued performance of any feature or
function impossible or impracticable by the end user.
"2" - for errors that significantly affect an end user's schedule, cause
a minor security breach or which make the performance or continued
performance of any feature
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or function difficult that cannot be circumvented or avoided on a
temporary basis by the end user.
"3" - for errors that are not critical in that performance can be
continued without difficulty or loss of data by easy circumvention or
avoidance by the end user.
6.2 DEVELOPMENT SUPPORT
Development and Software implementation for the integration of ECential
to the Caldera OpenLinux eBuilder Caldera Software and tools will be
defined through Evergreen and Caldera Product Management procedures.
Both parties will dedicate resources to support and ensure integration
and success of the bundled Software.
6.3 UPDATES AND BUG FIXES. Evergreen shall maintain ECential and correct
bugs and programming errors in ECential. Within a commercially
reasonable time, Evergreen shall provide maintenance fixes, corrections,
and patches to Caldera for distribution by Caldera to end users under
licenses sold by Caldera. Such maintenance fixes, corrections, and
patches shall be governed by this Agreement as part of ECential. When
possible, Evergreen shall provide work-around solutions and temporary
fixes as soon as possible while Caldera and end users are awaiting such
maintenance fixes, corrections, and patches. Caldera shall use
commercially reasonable efforts to provide to Evergreen information
known to Caldera necessary (including, where appropriate, reproducible
test cases and other diagnostic information) to diagnose and correct or
repair such problems as Caldera may report to Evergreen. Caldera makes
the same promises to Evergreen.
Evergreen shall deliver Updates to Caldera as soon as they become
available. Updates shall be governed by this Agreement as ECential.
Caldera makes the same promises to Evergreen.
As Evergreen creates commercial versions of ECential for other operating
systems or platforms, Evergreen will also port such commercial versions
to OpenLinux and provide the same to Caldera as Updates, provided that
the port to OpenLinux is commercially viable. In the event Evergreen
elects to not make any such port to OpenLinux, then Caldera may do so at
its expense.
6.4 TRAINING
Within sixty (60) days of the execution of this Agreement, Evergreen
will provide three (3) days of free training for two (2) Caldera
employees. Caldera is responsible for travel and expense costs of
Caldera personnel to Evergreen facilities in Arizona. If Caldera
requests that training take place at Caldera facilities and Evergreen
agrees, then Caldera will be charged for the time of Evergreen's
personnel, travel, hotels, and other associated costs for Evergreen's
personnel, as well as training facilities and associated costs.
For their respective support obligations Evergreen and Caldera will pay
each other $20,000 per month for the life of the agreement (unless each
party agrees to waive the fee). Payment will be due quarterly at the
same time as the product royalty payment.
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Evergreen will provide Caldera with a training manual that both parties
agree is sufficient for Caldera's internal use within 20 days of the
signing of this agreement.
7. COVENANTS OF THE PARTIES
7.1 PROTECT INTELLECTUAL PROPERTY.
Caldera shall use its best commercially reasonable efforts to protect
Evergreen's and its licensors' / suppliers' intellectual property and
proprietary rights in the Evergreen Software, Proprietary Data,
Evergreen Marks, and other intellectual property of Evergreen. Evergreen
shall use its best commercially reasonable efforts to protect Caldera's
and its licensors' / suppliers' intellectual property and proprietary
rights in the Caldera Software, Proprietary Data, Caldera Marks, and
Caldera's other intellectual property.
7.2 REPRESENTATIONS/WARRANTIES BY CALDERA OR EVERGREEN CONCERNING
SOFTWARE.
Caldera shall make no representations or warranties about the Evergreen
Software in excess of the representations or warranties contained in the
Exhibit B Software License Agreement attached hereto or otherwise made
by Evergreen if in writing and made specifically for Caldera or its
end-users. Evergreen shall make no representations or warranties about
the OpenLinux for eBuilder software in excess of the representations or
warranties contained in the license agreements of Sections 3.14 and
3.15, or otherwise made by Evergreen, if in writing and made
specifically for Evergreen or its end-users.
7.3 Mutual Representations.
Each party (the "first party") represents and warrants to the other
party that the first party (a) has not relied on any promises or
representations not expressly made in this Agreement or the Business
Alliance; (b) possesses the facilities, personnel, and experience
necessary to meet its financial and other commitments under this
Agreement; (c) has the full right, power and authority to enter into
this Agreement and to carry out its obligations under this Agreement;
and (d) knows of no impediments that would prevent the first party from
complying with all the terms of this Agreement.
7.5 NOTIFICATION OF INFRINGEMENT.
If the management of Caldera becomes aware of the unauthorized use,
copying, or disclosure of the Evergreen Software, Evergreen Marks, or
Evergreen's Proprietary Data, Caldera will notify an Evergreen
representative. Caldera shall assist Evergreen, at Evergreen's request
and expense, in the investigation and prosecution of such unauthorized
use, copying, or disclosure.
If the management of Evergreen becomes aware of the unauthorized use,
copying, or disclosure of the OpenLinux for eBuilder software, Caldera
Marks, or Caldera's Proprietary Data, Evergreen will notify a Caldera
representative. Evergreen shall assist Caldera, at Caldera's request and
expense, in the investigation and prosecution of such unauthorized use,
copying, or disclosure.
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8. WARRANTIES
8.1 LIMITED WARRANTIES.
(1) Evergreen represents and warrants to and for the benefit of Caldera
that (a) the Evergreen Software and ECential do not infringe any valid
United States patent, copyright, or trademark, or include any
misappropriated trade secret, or violate any privacy or other rights of
any third party and (b) Evergreen has full right, power, and authority
to enter into this Agreement and to carry out its obligations hereunder.
(2) Evergreen represents and warrants that the Evergreen Software is and
will be Year 2000 Compliant. "Year 2000 Compliant" means that the
Evergreen Software is designed for use prior to, during and after
January 1, 2000 and will conform to the following:
1. Date data representative of years are represented or stored
in a four digit format, i.e., full representation of the year
(e.g., "1998") rather than partial representation of the year
(e.g., "98").
2. The screen displays, reports and printed output generated by
the Evergreen Software will show years in four digit format.
3. The Evergreen Software will not include any two digit
representation of years that causes: (a) execution of the
Evergreen Software to terminate abnormally, (b) invalid
values or incorrect results in century date data, (c)
ambiguity in the recognition of century date data, or (d)
other errors or problems.
4. The calculations performed by the Evergreen Software will
accommodate the use of both same-century date values and
multi-century date values.
5. The calculations performed by the Evergreen Software will
accurately accommodate the occurrence of leap years.
This warranty is subject to the following: This warranty does
not apply to any third party software integrated into ECential
or to modifications or enhancements to the Evergreen Software
made by persons other than Evergreen or its contractors. All
date data and date values received by the Evergreen Software
must be accurate, in a four digit century format, and otherwise
compatible with the Evergreen Software. Evergreen is not
responsible for inaccuracies, inadequacies or problems caused
by: (a) any computer programs and databases not licensed by
Evergreen to Caldera, and (b) any hardware. Any use of, or
interaction with, the Evergreen Software must be in accordance
with Evergreen's then-current documentation and instructions and
within the scope of the License.
(3) Evergreen warrants to Caldera that no master copy of the Evergreen
Software provided by Evergreen under this Agreement, except for
demonstration or evaluation software, will contain or be accompanied by
any Self-Help Code or Unauthorized Code (as defined below). This
warranty shall not applied to Evergreen software delivered over the
Internet to which such Unauthorized Code may have been attached outside
of Evergreen's control.
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"Self-Help Code" means any back door, time bomb, drop dead
device, or other routine, code, algorithm or hardware component
designed or used: (i) to disable, erase, alter or harm the
Evergreen Software or any computer system, program, database,
data, hardware or communications system, automatically with the
passage of time, or under the control of, or through some
affirmative action by, a person other than Caldera or its
Affiliate, or (ii) to access any computer system, program,
database, data, hardware or communications system of Caldera or
its Affiliate. "Self-Help Code" does not include any code in the
Evergreen Software or any accompanying hardware component
designed and used to permit Evergreen to obtain access to the
Evergreen Software on Caldera's or its Affiliate's computer
system (e.g., remote access via modem) solely for purposes of
providing maintenance or technical support to Caldera or its
Affiliate, provided that such code or hardware component is
first disclosed to Caldera and approved by Caldera in writing.
"Unauthorized Code" means any virus, Trojan horse, worm, or
other routine, code, algorithm or hardware component designed or
used to disable, erase, alter, or otherwise harm any computer
system, program, database, data, hardware or communications
system, or to consume, use, allocate or disrupt any computer
resources, in a manner which is malicious or intended to damage
or inconvenience. The term Unauthorized Code does not include
Self-Help Code.
Evergreen warrants that ECential will conform to the Documentation
provided by Evergreen in connection with ECential and any then effective
published specifications, descriptions or statements from Evergreen
concerning ECential that are made in writing to Caldera for the benefit
of Caldera or its end users. Caldera makes the same warranties and
covenants to Evergreen with respect to Caldera's products as contained
in this section.
8.2 EXCLUSIONS.
Evergreen makes no warranty concerning, and shall have no liability with
respect to (a) software not delivered by Evergreen; (b) use of the
Evergreen Software in a manner for which it was not designed; (c)
Caldera's modification of the Evergreen Software in a manner to become
infringing; or (d) any use of the Software in violation of this
Agreement. Evergreen does not warrant that the Software is free from
errors or that it will interface without any problems with Caldera's or
any end-user's computer system, however, this does not negate or limit
Evergreen's obligations of maintenance and support. Evergreen shall not
be liable for any damage or loss to Caldera's computer or data resulting
from the evaluation or use of the Evergreen Software.
Caldera makes no warranty concerning, and shall have no liability with
respect to (a) software not delivered by Caldera; (b) use of the Caldera
Software in a manner for which it was not designed; (c) Evergreen's
modification of the Caldera Software in a manner to become infringing;
or (d) any use of the Software in violation of this Agreement. Caldera
does not warrant that the Software is free from errors or that it will
interface without any problems with Evergreen's or any end-user's
computer system, however, this does not negate or limit Caldera's
obligations of maintenance and support. Caldera shall not be liable for
any damage or loss to Evergreen's computer or data resulting from the
evaluation or use of the Caldera Software.
8.3 DISCLAIMER.
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EXCEPT FOR THE REPRESENTATIONS AND WARRANTIES SET FORTH IN THE BUSINESS
ALLIANCE, THE EVERGREEN SOFTWARE IS OFFERED "AS IS" WITH ALL FAULTS.
CALDERA MAKES NO WARRANTIES NOT EXPRESSLY SET FORTH IN THE BUSINESS
ALLIANCE. ALL WARRANTIES AND OTHER TERMS WHICH WOULD OTHERWISE BE
IMPLIED OR INCORPORATED INTO THIS AGREEMENT BY STATUTE OR COMMON LAW ARE
HEREBY EXCLUDED BY THE PARTIES. THE WARRANTIES OF MERCHANTABILITY AND
FITNESS FOR A PARTICULAR PURPOSE ARE SPECIFICALLY DISCLAIMED BY
EVERGREEN AND CALDERA. IT IS EXPRESSLY AGREED THAT EVERGREEN SHALL NOT
BE IN ANY WAY RESPONSIBLE FOR THE COMMERCIAL SUCCESS OF THE EVERGREEN
SOFTWARE OR THE BUNDLED SOFTWARE AND THAT CALDERA SHALL NOT BE IN ANY
WAY RESPONSIBLE FOR THE COMMERCIAL SUCCESS OF CALDERA SOFTWARE OR
EVERGREEN SOFTWARE BUNDLED WITH CALDERA SOFTWARE. THERE ARE NO
GURANATEED SALES OR MINIMUM ROYALTIES. NEITHER PARTY MAKES ANY
WARRANTIES CONCERNING ANY THIRD PARTY SOFTWARE AND HAS NO OBLIGATION TO
INDEMNIFY, DEFEND OR HOLD HARMLESS WITH RESPECT TO THIRD PARTY SOFTWARE.
8.4 RESPONSE TO ANY INFRINGEMENT CLAIM.
If Caldera receives notice of any claim that the Evergreen Software
infringes a United States or foreign patent or copyright, Caldera shall
promptly give written notice of the claim to Evergreen in accordance
with Section 9.2 below. If Evergreen determines that the claim may have
merit, Evergreen may instruct Caldera to cease selling licenses for the
Evergreen Software. Evergreen shall have no obligation to indemnify
Caldera for any sales of licenses that occur (a) after Caldera has
notice of the infringement claim but before notice of such claim is
given to Evergreen, or (b) after Evergreen has instructed Caldera to
cease selling licenses, except for sales that are required by
contractual commitments existing prior to (a) and (b) above. Upon
receiving notice of the claim and determining that the claim may have
merit, Evergreen shall use commercially reasonable efforts to (a)
procure the right to continue using the Evergreen Software or portions
thereof and all rights and licenses necessary for this Agreement and the
Business Alliance; or (b) modify or replace all or part of the concerned
Evergreen Software to avoid any infringement, provided that the modified
Evergreen Software or the replacement is substantially the same or
better in functions, features and performance. If Evergreen determines
that it is not able to do either of the foregoing in a commercially
reasonable fashion, as determined by Evergreen in Evergreen's sole
discretion, Evergreen may terminate Caldera's license to sell further
licenses of the Evergreen Software (i.e., remove the infringing
Evergreen Software from eBuilder. In such case, Caldera shall have the
right to terminate all future obligations of the parties under the
Business Alliance, including this Agreement.
If Evergreen receives notice of any claim that the Caldera Software
infringes a United States or foreign patent or copyright, Evergreen
shall promptly give written notice of the claim to Caldera in accordance
with Section 9.2 below. If Caldera determines that the claim may have
merit, Caldera may instruct Evergreen to cease selling licenses for the
Caldera Software. Caldera shall have no obligation to indemnify
Evergreen for any sales of licenses that occur (a) after Evergreen has
notice of the infringement claim but before notice of such claim is
given to Caldera, or (b) after Caldera has instructed Evergreen to cease
selling licenses, except for sales that are required by contractual
commitments existing prior to (a) and (b) above. Upon receiving notice
of the claim and determining that the claim may have merit, Caldera
shall use commercially reasonable efforts to (a) procure the right to
continue using the Caldera Software or portions thereof and all rights
and licenses necessary for this Agreement and the Business Alliance; or
(b) modify or replace all or part of the concerned Caldera Software to
avoid any infringement, provided that the modified Caldera Software or
the replacement is substantially the same or better in functions,
features and performance. If Caldera determines that it is not able to
do either of the foregoing in a commercially reasonable fashion, as
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determined by Caldera in Caldera's sole discretion, Caldera may
terminate Evergreen's license to sell further licenses of the Caldera
Software (i.e., remove the infringing Caldera Software from eBuilder).
In such case, Evergreen shall have the right to terminate all future
obligations of the parties under the Business Alliance, including this
Agreement.
9. CROSS INDEMNITY
9.1 INDEMNIFICATION
Each party (the "first party") hereby agrees to indemnify, defend and
hold the other party harmless from and against any and all losses,
damages, judgments, settlements, liabilities, costs, charges and
expenses, including reasonable attorneys' fees, arising out of or from
any infringement or claim of infringement of any patent, copyright,
trade secret, trademark or other proprietary right. When the
infringement or claim of infringement applies to Evergreen Software,
then Evergreen is the "first party." When the infringement or claim of
infringement applies to Caldera Software, then Caldera is the "first
party." The exclusions of Section 8.2 or elsewhere shall also be
exclusions from the first parties obligations to indemnify, defend and
hold harmless the other party hereunder. Regarding the part of said
indemnity running from first party in favor of the other party, the
first party shall indemnify, defend and hold harmless the other party
only if: (i) the infringement is not caused by the combination of the
Software (Evergreen Software if Evergreen is the first party; and
Caldera Software if Caldera is the first party) with any other item not
provided by the first party, including but not limited to software,
data, or hardware, (ii) notification by the indemnified party shall be
in accordance with Section 9.2 below. and (iii) the indemnified party
allows the indemnifying party to control any litigation and settlement
of such infringement charges in accordance with Sections 9.3 and 9.4
below. Should any portion of the Software (Evergreen Software if
Evergreen is the first party; and Caldera Software if Caldera is the
first party) or its intended use become, or in the first parties opinion
be likely to become, the subject of a claim of infringement of a United
States patent, copyright or other proprietary right, then Section 8.4
above shall apply. The first parties liability and obligation to the
other party in the event of infringement or claimed infringement shall
be strictly limited to the obligations set forth in this Article 9.
9.2 NOTICE OF CLAIMS.
A party entitled to indemnification under Section 9.1, or any other
provision of this Agreement (an "Indemnified Party") shall give the
party required to provide such indemnification (the "Indemnifying
Party") written notice of any claim for indemnification promptly after
the Indemnified Party actually learns of the existence of such claim.
The Indemnifying Party shall have no obligation with respect to any
claim to the extent that failure to promptly give such notice materially
prejudices the ability of the Indemnifying Party to defend such claim.
9.3 CONDUCT OF DEFENSE.
The Indemnified Party shall permit the Indemnifying Party to assume the
defense of any claim covered by the indemnification. The Indemnified
Party shall have the right to approve the counsel who shall conduct the
defense of the claim but shall not withhold such approval unreasonably.
The Indemnified Party may participate in the defense at the Indemnified
Parties expense.
9.4 SETTLEMENTS.
No Indemnifying Party, in the defense of any claim, shall, except with
the consent of each Indemnified Party, consent to entry of any judgment
or enter into any settlement that does not include an unconditional
release by the claimant of the Indemnified Party from all liability in
respect to the
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claim. The Indemnified Party shall not settle any Claim without the
consent of the Indemnifying Party. The consent of the Indemnifying Party
is a condition to the obligation of the Indemnifying Party to pay money
pursuant to this Article 9. The Indemnifying Party shall not
unreasonably withhold consent to any proposed settlement. The settlement
must not include any obligation on the part of the Indemnified Party,
i.e., the settlement must be satisfied by the Indemnifying Party in
full.
10. LIMITATION OF LIABILITY
10.1 EXTENT OF LIABILITY.
Except for liabilities and obligations under Section 8.4 or Article 9,
and the royalty fees due Caldera pursuant to this Agreement and any
interest thereon, Evergreen's liability arising out of this Agreement or
arising out of the use or distribution of the Evergreen Software by
Caldera shall be limited to the amount paid by Caldera to Evergreen for
the Evergreen Software. Except for liabilities and obligations under
Section 8.4 and Article 9, and the royalty fees due Evergreen pursuant
to this Agreement and any interest thereon, Caldera's aggregate
liability to Evergreen shall not exceed a limit equal to the same
amount. Notwithstanding the foregoing, the limitation of liability under
this section 10.1, does not apply to liabilities that arise to either
party as a result of actions that infringe intellectual property or
violate Confidential Information responsibilities under this Agreement.
10.2 DISCLAIMER.
IN NO EVENT SHALL EVERGREEN OR CALDERA BE LIABLE FOR COSTS OF
PROCUREMENT OF SUBSTITUTE GOODS BY ANYONE (OTHER THAN AS PROVIDED FOR IN
SECTIONS 8.4 AND 9.1), NOR WILL EVERGREEN OR CALDERA BE LIABLE FOR ANY
SPECIAL, INDIRECT, INCIDENTAL, EXEMPLARY, PUNITIVE OR CONSEQUENTIAL
DAMAGES, INCLUDING WITHOUT LIMITATION LOST PROFITS, RELATING TO THIS
AGREEMENT OR RESULTING FROM A USE OR INABILITY TO USE THE EVERGREEN
SOFTWARE OR CALDERA SOFTWARE, OR EBUILDER OR OPENLINUX FOR EBUILDER,
HOWEVER CAUSED, ARISING UNDER ANY CAUSE OF ACTION, INCLUDING WITHOUT
LIMITATION, BREACH OF CONTRACT, WARRANTY, STRICT LIABILITY, NEGLIGENCE
OR OTHERWISE, AND WHETHER OR NOT EVERGREEN OR CALDERA HAS BEEN ADVISED
OF THE POSSIBILITY OF SUCH DAMAGES. THE ESSENTIAL PURPOSE OF THIS
SECTION 10.2 IS TO LIMIT THE POTENTIAL LIABILITY OF EVERGREEN AND
CALDERA ARISING OUT OF THIS AGREEMENT. Notwithstanding the foregoing,
the limitation of liability under this section 10.2, does not apply to
liabilities that arise to either party as a result of actions that
infringe intellectual property or violate Confidential Information
responsibilities under this Agreement.
11. CONFIDENTIALITY.
Evergreen and Caldera agree that each of them shall, during the term of
this Agreement and for so long thereafter as the information remains
confidential, take all steps which are reasonable to safeguard the
confidentiality of, and proprietary rights to, the confidential
information ("Confidential Information") of the other party which may be
disclosed under this Agreement (including, but not limited to, product
plans, designs, business plans, technical specifications, research, and
customer or financial data, and Proprietary Data) and shall not, without
the prior written consent of the other party, (a) use such Confidential
Information for its own benefit or the benefit of any third party except
for purposes expressly provided for in this Agreement, or (b) disclose
such Confidential Information to any third party. This Article 11 shall
not be construed to restrict, and Confidential Information shall not
include, information which (a) is publicly known at the time of its
disclosure to the receiving party, (b) is lawfully received by a party
from a third party not bound in a confidential relationship to the
disclosing party, (c) was already known by the receiving party prior to
disclosure by the disclosing party, or (d) is independently developed or
created by the receiving party without use of the Confidential
Information from the disclosing party. There is no restriction on
disclosures required by
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law or court order. If, however, either party is issued a Subpoena or
court order requiring disclosure of confidential information, it shall
provide the other party hereto notice of such Subpoena or notice and
provide said party an opportunity to contest it. Confidential
Information which becomes publicly known through no fault of the
receiving party after disclosure to the receiving party shall cease to
be Confidential Information.
12. RESTRICTED RIGHTS OF GOVERNMENT USERS
If an end user of any Evergreen Software will be an agency, department,
or other entity of the United States Government (the "Government"), the
end user's Software License Agreement shall include such "restricted
rights of government users" clause as Evergreen has included in Exhibit
B.
IN WITNESS WHEREOF the parties through their duly authorized representatives
have caused this OEM License Agreement to be executed as of the date first set
forth above.
CALDERA SYSTEMS, INC. EVERGREEN INTERNET, INC.
By: /s/ RANSOM H. LOVE By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
-------------------------------- ---------------------------------
Name: Ransom H. Love Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
------------------------------ -------------------------------
Title: CEO / President Title: CEO / President
----------------------------- ------------------------------
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EXHIBIT A TO OEM LICENSE AGREEMENT
------------------------------------------------ -----------------
------------------------------------------------ -----------------
------------------------------------------------ -----------------
------------------------------------------------ -----------------
ECential
ECential(TM) Enterprise
ECential(TM) Multi-Store
Additional Store-Fronts for ECential Multi-Store
Additional Server License
ECential(TM) Enterprise Annual Software Maintenance
ECenital(TM) Multi-Store Annual Software Maintenance
Pricing for Visibroker
[Insert Pricing]
Visibroker for Linux
Each party will unilaterally determine the price at which it sells, licenses or
distributes eBuilder.
As of the date of this Agreement there are no fees payable for any third party
software in ECential other than Visibroker. If any fees become payable to third
parties for third party software in ECential, then Evergreen shall provide as
much advance written notice as reasonably possible and this Exhibit shall be
amended by the parties to make it current.
Evergreen will use its best reasonable efforts to negotiate and obtain the most
favorable pricing for Visibroker and other third party software in ECential.
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EXHIBIT B to OEM License Agreement
ECENTIAL(TM) 2.X
SOFTWARE LICENSE AGREEMENT
PLEASE READ THIS AGREEMENT CAREFULLY BEFORE INSTALATION AND USE OF THE PROGRAM.
EVERGREEN INTERNET WILL LICENSE THE PROGRAM TO YOU (LICENSEE) ONLY IF YOU FIRST
ACCEPT THE TERMS OF THIS AGREEMENT. BY USING THE PROGRAM YOU AGREE TO THESE
TERMS. IF YOU DO NOT AGREE TO THE TERMS OF THIS AGREEMENT, EXIT INSTALATION NOW.
ERASE, DESTROY, OR RETURN THE SOFTWARE TO EVERGREEN.
1. LICENSE GRANT AND LIMITATION.
a.) LICENSE. Subject to the terms and conditions of this Agreement,
Evergreen grants Licensee a perpetual (except in the event of
termination under section 13(b)), nontransferable, nonassignable,
nonexclusive license to use one copy of Ecential(TM) Software
("Software") and user documentation. The Software licenses covered by
this agreement are listed in Exhibit 1 hereto. B.) MODULAR BASED.
Licensee understands and agrees that the Software is modular based to
facilitate distributive computing.
a.)
c.) LIMITATIONS. Evergreen and/or its suppliers reserve all rights not
expressly granted herein. Without limiting the generality of the
preceding sentence, Licensee receives no rights and agrees:
1.) not to modify, port, translate, localize, add features or
functionality, or create derivative works of the Software,
2.) not to decompile, deencrypt, disassemble or otherwise
reverse engineer the Software, algorithms, logic or program
code of the Software or any derivative work thereof, or
attempt to do any of the same. Licensee does not and shall
not receive any rights by implication or otherwise in the
Software or any component thereof.
3.) WEB SITE DISPLAY. Licensee shall, throughout its use of the
Software, display the following or something similar on its
home page and product pages:
"Ecential(TM) by Evergreen Internet, Inc.,
Setting the Standard for Open Commerce."
or, a "powered by ECentialTM button represented with an
Evergreen/ECential graphic provided by Evergreen.
2. DELIVERABLES. Evergreen or its distributor shall provide Licensee one
executable copy of the object code version of the Software and one copy of
the Software's user documentation. Licensee shall not copy the Software
(except for one archival copy for back up purposes only) or the user
documentation, subject to the conditions referred to in the license grant
herein.
3. TITLE. The Software is licensed, not sold. Title to the Software remains
with Evergreen. Title to any third party software used by the Software
remains with the third party.
4. THIRD PARTY SOFTWARE. Licensee understands and agrees that the Software
utilizes software components from third parties as described in Exhibit 2
and said third party software is licensed to Licensee pursuant to the terms
of the license agreement(s) as stated in Exhibit 2. Licensee hereby agrees
to abide by the terms of the third party license agreement(s) included in
Exhibit 2 which accompany this Agreement. Evergreen makes no warranties
regarding third party software.
5. INSTALLATION. Licensee shall be responsible for installation of the
Software.
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6. CONFIDENTIALITY. Licensee agrees that neither Licensee, its agents nor its
employees shall in any manner use, disclose or otherwise communicate any
information with respect to the Software which might enable use or copying
of all or any portion of the Software. Licensee agrees to take all necessary
action to protect the confidential and proprietary information included in
the Software, including appropriate instruction and agreement with its
employees.
7. SOFTWARE SUPPORT POLICY This license does not guarantee software support
from Evergreen. Any software support is provided by separate agreement with
the distributor of this software.
8. WARRANTIES.
a.) Evergreen warrants that it has clear title to the Software. Evergreen
warrants to Licensee that it has all necessary rights, power and
authority to enter into this Agreement and to grant the rights granted
under this Agreement.
b.) Licensee warrants that it has all necessary rights, power and authority
to enter into this Agreement and to grant the rights granted under this
Agreement.
c.) Evergreen warrants that the Software as delivered to Licensee is not
contaminated by harmful computer programming code.
d.) Company warrants that the software accurately processes date/time data
(including but not limited to, calculating, comparing and sequencing)
from, into, and between the twentieth and twenty-first centuries, and
the years 1999 and 2000 and leap year calculations, to the extent that
other information technology properly exchanges date/time data with it.
e.) For 90 days from the date software is installed, Evergreen warrants that
the Software will perform substantially in accordance with the
accompanying documentation, and the Software media will be free from
defects in materials and workmanship. In the event of a breach of this
warranty, Evergreen shall (a) refund to Licensee the price paid for the
Software, or (b) repair or replace the Software that does not meet this
Limited Warranty.
f.) EXCEPT AS OTHERWISE PROVIDED HEREIN, THE SOFTWARE AND THE ACCOMPANYING
WRITTEN MATERIALS ARE PROVIDED "AS IS" WITHOUT EXPRESS OR IMPLIED
WARRANTY OF ANY KIND. EVERGREEN FURTHER DISCLAIMS ALL IMPLIED
WARRANTIES, INCLUDING WITHOUT LIMITATION ANY IMPLIED WARRANTIES OF
MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE. EVERGREEN DOES NOT
WARRANT THAT THE SOFTWARE WILL BE ERROR FREE OR WILL OPERATE WITHOUT
INTERRUPTION OR THAT THE SOFTWARE DOES NOT INFRINGE ANY COPYRIGHT,
PATENT, ETC. OF ANY THIRD PARTY. THE ENTIRE RISK ARISING OUT OF THE USE
OR PERFORMANCE OF THE SOFTWARE AND ACCOMPANYING WRITTEN MATERIALS
REMAINS WITH LICENSEE.
The Software is not designed or licensed for use in hazardous
environments requiring fail-safe controls, including without limitation
operation of nuclear facilities, aircraft navigation or communication
systems, air traffic control, and life support or weapons systems.
Without limiting the generality of the foregoing, Evergreen specifically
disclaims any express or implied warranty of fitness for such purposes.
9. INDEMNITY. Both parties shall indemnify, defend and hold the other party
harmless from and against any and all losses, damages, liabilities, costs,
charges and expenses, including reasonable attorneys' fees, arising out of
any breach by either party of their obligations under this agreement or from
any infringement or claim of infringement of any patent, copyright, trade
secret, trademark or other proprietary right based on or arising out of the
creation, use or installation by Licensee of the Software. Regarding the
part of said indemnity running from Evergreen in favor of Licensee,
Evergreen shall indemnify and hold harmless Licensee for any liability for
infringement of any United States patent, copyright or trade secret rights
of and due to a third party caused solely by the use of the Software in
accordance with the Software's documentation, provided that: (i) the
infringement is not caused by the combination of the Software with any other
item not provided by the Evergreen, including but not limited to software,
data, or
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hardware, (ii) Licensee notifies Evergreen in writing within ten (10) days
of Licensee's first knowledge of a charge of infringement of patent,
copyright or trade secret rights by another party, and (iii) Licensee agrees
to allow Evergreen to fully control any litigation and settlement of such
infringement charges provided any such settlement does not require the
Licensee to make any payment.
10. NO CONSEQUENTIAL DAMAGES. Evergreen shall not be liable to Licensee for
indirect, special, incidental, exemplary, punitive, or consequential damages
(including, without limitation, lost profits) related to this Agreement or
resulting from Licensee's use or inability to use the Software, arising from
any cause of action whatsoever, including without limitation, contract,
warranty, strict liability, or negligence, even if notified of the
possibility of such damages.
11. LIMITATION ON RECOVERY. UNDER NO CIRCUMSTANCES, INCLUDING NEGLIGENCE, SHALL
EVERGREEN BE LIABLE FOR ANY INCIDENTAL, SPECIAL, INDIRECT, PUNITIVE OR
CONSEQUENTIAL DAMAGES ARISING OUT OF OR RELATING TO THIS LICENSE. SOME
JURISDICTIONS DO NOT ALLOW THE LIMITATION OF INCIDENTAL OR CONSEQUENTIAL
DAMAGES SO THIS LIMITATION MAY NOT APPLY TO YOU. In no event shall either
Evergreen's total liability to you for all damages exceed the amount paid
for this License for the Software.
12. PROPRIETARY RIGHTS. Except as expressly provided for in Section 1 of this
Agreement, Evergreen and/or its suppliers retain any and all right, title
and interest in and to the Software. This Agreement grants no additional
express or implied license, right or interest in any copyright, patent,
trade secret, trademark, invention or other intellectual property right of
Evergreen Internet, Inc. or its suppliers. Licensee receives no rights to
and will not distribute, sublicense, sell, assign, lease market, transfer,
encumber or suffer to exist any lien or security interest on the Software,
nor will Licensee take any action that would cause the Software to be placed
in the public domain. Licensee will not remove, or allow to be removed, any
Evergreen copyright, trade secret or other proprietary rights notice from
the Software. Licensee will not make any warranties with respect to the
Software beyond those made to Licensee by Evergreen under this Agreement.
Evergreen and its suppliers reserve all rights not specifically granted
under this License.
13. GENERAL PROVISIONS.
a. ASSIGNMENT. Licensee shall not assign or otherwise transfer the Software
or this Agreement to anyone, including any parent, subsidiaries,
affiliated entities or third parties, or as a part of the sale of any
portion of its business, or pursuant to any merger, consolidation or
reorganization, without Evergreen's prior written consent. Third
parties, such as consultants, subcontractors, or agents of licensee who
have been contracted by the licensee to implement the Software on
Licensee's behalf at licensee's facility, or in a hosting facility, and
who have agreed in writing to use the Software only in accordance with
the terms and conditions of this license, do not violate this Section
13(a).
b. TERMINATION. Without prejudice to other rights, Evergreen may terminate
this License if Licensee fails to comply with the terms and conditions
of the License, provided that prior to any termination Evergreen shall
have provided written notice to Licensee specifying the nature of such
failure to comply and Licensee shall have failed to remedy such failure
within 30 days of receipt of such notice. In such event, Licensee must
destroy all copies of the Software and all of its component parts and
shall certify in writing to Evergreen that such destruction has
occurred.
c. NOTICES. Any notice required or permitted to be sent to a party under
this Agreement will be in writing, effective on receipt by that party,
and will be sent by overnight carrier, fax, first-class mail or personal
delivery to the Address for Notice given for that party below. Either
party may change its notice address by giving written notice to the
other party at the other party's notice address.
d. EXPORT. Licensee may not export or re-export the Software to a national
of a country in Country Groups E:1 or E:2 without a license or a license
exception from the U.S. Department of Commerce nor otherwise violate any
provision of U.S. export laws.
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IMPORTANT NOTICE: THIS SOFTWARE OR ANY UNDERLYING INFORMATION OR ANY
UNDERLYING TECHNOLOGY MAY NOT BE DOWNLOADED, DISTRIBUTED OR OTHERWISE
EXPORTED OR RE-EXPORTED OUTSIDE THE UNITED STATES (OR CANADA) OR TO ANY
FOREIGN ENTITY OR "FOREIGN PERSON" AS DEFINED BY U.S. GOVERNMENT
REGULATIONS. INCLUDING WITHOUT LIMITATION ANYONE WHO IS NOT A CITIZEN,
NATIONAL, OR LAWFUL PERMANENT RESIDENT OF THE UNITED STATES (OR CANADA)
OR TO ANYONE ON THE U.S. TREASURY DEPARTMENT'S LIST OF SPECIALLY
DESIGNATED NATIONALS OR ON THE U.S. COMMERCE DEPARTMENT'S TABLE OF
DENIAL ORDERS OR ENTITY LIST, OR INTO (OR TO A NATIONAL OR RESIDENT OF)
CUBA, IRAQ, LIBYA, NORTH KOREA, IRAN OR ANY OTHER COUNTRY TO WHICH THE
U.S. EMBARGOES GOODS. BY DOWNLOADING OR USING THIS SOFTWARE, YOU AND
YOUR COMPANY ARE AGREEING TO ABIDE BY THE FOREGOING AND ARE WARRANTING
THAT YOU AND YOUR COMPANY ARE NOT A FOREIGN PERSON OR FOREIGN ENTITY
(OTHER THAN A CANADIAN PERSON OR CANADIAN ENTITY) OR UNDER THE CONTROL
OF A FOREIGN PERSON OR FOREIGN ENTITY (OTHER THAN A CANADIAN PERSON OR
CANADIAN ENTITY).
e. ARBITRATION. Evergreen and the Licensee shall settle any controversy
arising out of this Agreement by arbitration in the State of Arizona in
accordance with the rules of the American Arbitration Association. A
single arbitrator shall be agreed upon by Evergreen and the Licensee or,
if Evergreen and the Licensee cannot agree upon an arbitrator within
thirty (30) days, then Evergreen and the Licensee agree that a single
arbitrator shall be appointed by the American Arbitration Association.
The arbitrator may award attorneys' fees and costs as part of the award.
The award of the arbitrator shall be binding and may be entered as a
judgment in any court of competent jurisdiction. The arbitrator shall
not have the power to award non-monetary, injunctive or equitable relief
of any sort, which may be sought in court as provided in section 13(l),
in addition to any other legal remedies that may be available hereunder.
f. COMPLETE AGREEMENT. Evergreen and the Licensee agree that this Agreement
is the complete and exclusive statement of the agreement between
Evergreen and the Licensee, which supersedes and merges all prior
proposals, understandings and all other agreements, oral or written,
between the Evergreen and the Licensee relating to this Agreement.
g. AMENDMENT. This Agreement may not be modified, altered or amended except
by written instrument duly executed by both Evergreen and the Licensee.
h. WAIVER. The waiver or failure of either Evergreen or the Licensee to
exercise in any respect any right provided for in this Agreement shall
not be deemed a waiver of any further right under this Agreement. Any
waiver must be in writing, signed by the party waiving its rights.
i. SEVERABILITY. If any provision of this Agreement is invalid, illegal or
unenforceable under any applicable statute or rule of law, it is to that
extent to be deemed omitted. The remainder of the Agreement shall be
valid and enforceable to the maximum extent possible.
j. RECORDS INSPECTION. Upon three business days written notice, Licensee
shall allow Evergreen and/or its agents to inspect and audit all of
Licensee's records, in any media, relating to the Software and this
Agreement, at the Licensee's regular place of business and at such
reasonable times as shall not disrupt Licensee's business operations, to
confirm Licensee's compliance with its obligations hereunder. If such
inspection and/or audit discloses that Licensee has not complied with
its obligations, Licensee shall bear the full cost of the inspection and
audit, in addition to any other rights Evergreen may have hereunder.
k. GOVERNING LAW. This agreement and performance hereunder shall be
governed by the laws of the State of Arizona without regard to conflict
of law principles. Any Dispute shall be resolved in Maricopa County,
Arizona, and
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Licensee submits to the personal jurisdiction in Arizona of the
arbitrator and/or the Arizona court, as appropriate under the Agreement.
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IN WITNESS WHEREOF, by virtue of accepting the Software by electronic means,
downloading, installing the Software, or by using the Software in any way, the
parties hereto have caused this Ecential(TM) License to be executed and consider
this AGREEMENT to be effective as of the day and year the software was acquired.
Address for Notice:
Evergreen Internet, Inc.
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