OEM Agreement
This OEM Agreement is dated October 16, 2000 and is by and between the following
Parties:
Caldera: Caldera Systems, Inc.
000 Xxxx Xxxxxx Xxxxxx
Xxxx, XX 00000
Tel.: (000) 000-0000
Fax: (000) 000-0000
OEM: Merlin Software Technologies Inc.
0000 Xxxxx 00xx Xxx
Xxxxxxx, XX 00000
Tel.: 000-000-0000
Fax:
and is for the following Territory:
North America
Terms and Conditions
1. Authorized OEM. Subject to the terms and conditions of this
Agreement, OEM is an authorized original equipment manufacturer or value added
reseller of Caldera with respect to the Software as combined or bundled with
OEM's Product as defined below.
2. Software. "Software" shall mean the software product(s) identified
in Appendix A. "Software" includes any packaging, documentation and materials
included by Caldera with the Software provided to OEM under this Agreement.
Caldera may discontinue any of the Software at any time. Caldera has no
obligation to make discontinued Software available to OEM, and may delete such
discontinued Software from Appendix A. The Parties may add Software to Appendix
A at any time by mutual written agreement. Such added Software shall become
"Software" governed by this Agreement. Caldera has no obligation to localize or
translate any of the Software or its documentation or other materials for the
Territory.
3. Caldera Software, Third Party Software and GPL Software. Software
may include any one or more of the following: Caldera Software, Third Party
Software, and GPL Software. The license agreements and/or documentation which
accompany a Software product will identify the Caldera Software, Third Party
Software and GPL Software included in the Software product.
(a) "Caldera Software" consists of the computer programs, databases and/or
other works of authorship which are licensed or sublicensed by Caldera to the
Customer. Such license or sublicense is governed by a license agreement
(included in or with the Caldera Software) between Caldera Software and the
Customer. Caldera Software and all rights
to use and copy Caldera Software are governed the applicable license agreement.
Nothing in this OEM Agreement gives OEM the right or authorization to use or
copy any Caldera Software. OEM and Customers are not entitled to any Caldera
Software source code unless such source code is included by Caldera in the
Software and the license.
(b) "Third Party Software" consists of the computer programs, databases
and/or works of authorship which are licensed or sublicensed by third party
licensors to Customers. Typically, such license or sublicense is governed by a
license agreement (included in or with the Software) between the third party
licensor and the Customer. Third Party Software and all rights to use and copy
Third Party Software are governed the applicable license agreement. Nothing in
this OEM Agreements gives OEM the right or authorization to use or copy any
Third Party Software. OEM and Customers are not entitled to any Third Party
Software source code unless such source code is included by the third party
licensor in the Third Party Software and the license.
(c) "GPL Software" consists of the computer programs, databases and/or works
of authorship distributed by Caldera under the terms of a GNU General Public
License. The GNU General Public License governs the GPL Software and the
copying, distribution and modification of the GPL Software. With respect to GPL
Software, this Agreement is subject to the applicable version of the GNU General
Public License. A copy of each applicable version of the GNU General Public
License is available from Caldera. All GPL Software is provided "as is" without
any warranty. GPL Software source code will be available to Customers
consistent with the requirements of the applicable GNU Public License.
(d) Licensed, Not Sold. Caldera Software, Third Party Software and GPL
Software are not sold, but are licensed or sublicensed. In this Agreement, any
reference to the purchase, sale or resale of a Software or to purchase, sell or
resell Software means, with respect to the Caldera Software and Third Party
Software in such Software, a purchase, sale or resale of the license or
sublicense or to purchase, sell or resell the license or sublicense. GPL
Software licenses and sublicenses are free, but a fee for distribution (e.g.,
transferring a copy) may be charged by Caldera. Therefore, in this Agreement,
any reference to the purchase, sale or resale of Software or to purchase, sell
or resell Software means, with respect to the GPL Software in such Software, the
payment or obligation to pay for such distribution. Ownership of copies of
Caldera Software, Third Party Software or GPL Software is governed by the
applicable license agreement.
(e) New Versions. New versions of Software may be made available to Caldera
to OEM as added Software under Section 2 above.
(f) Maintenance Releases. All Software maintenance releases, fixes,
patches, work-around solutions, upgrades, and updates made available by Caldera
to OEM shall be deemed part of the Software.
4. OEM's Product. "OEM's Product" shall mean the hardware, software
and/or other products identified in Appendix B attached hereto. Appendix B may
also includes a
description of the manner in which OEM will combine or bundle the Software with
OEM's Product and the "value added" which OEM brings to the Software.
5. OEM License. Subject to the terms and conditions of this Agreement
and OEM's compliance therewith, OEM is authorized and licensed to combine or
bundle Software into or with OEM's Product and to distribute copies of such
combined or bundled Software with OEM's Product to Customers in the Territory
only (the "OEM License"). Copies of the Software may not be distributed by OEM
independent of OEM's Product or as a stand-alone product. The entirety of a
Software product must be included in the combination or bundle with OEM's
Product. OEM's rights are limited to the Territory and are nonexclusive. The
Territory is defined above. Rights not expressly granted to OEM are reserved by
Caldera. With respect to GPL Software, the restrictions of this Section 5 and
any other restrictions of this Agreement are subject to the applicable GNU
General Public License.
6. Customers. "Customers" mean end user customers of OEM's Product who
use the Software on, in or in conjunction with OEM's Product.
7. End User Software Licenses. To use the Software, each Customer must
first accept Caldera's then-current end-user license agreement. A copy of the
end-user license agreement is attached hereto as Appendix D will be provided by
Caldera to OEM for distribution by OEM to Customers. If a new form of end-user
license agreement is adopted by Caldera, a copy of such new form will be
provided to OEM as a replacement. Caldera may change its end-user licensing
procedures. Use of the Software by a Customer will be governed by the end-user
license agreement. This Section is subject to subsections (a), (b) and (c) of
Section 3 above.
8. Purchase Orders. OEM will purchase the applicable Software
product(s) from Caldera for distribution to Customers. The applicable fees set
forth in Appendix C. To purchase Software products, OEM will submit purchase
orders to Caldera stating the quantity and type of Software product needed. OEM
shall pay the applicable fees to Caldera within 30 days of the date of Caldera's
invoice. Any other terms or conditions included by OEM with a purchase order or
other document that are in addition to or different from or inconsistent with
the terms and conditions of this Agreement shall be of no effect, unless agreed
to by Caldera in writing in each case.
9. Fees and Discounts. The discount to which OEM is entitled and the
discounted fees payable by OEM are set forth in Appendix C. All payments to
Caldera shall be made in U.S. Dollars. All references in this Agreement,
including the Appendices, to $ to dollars shall mean U.S. Dollars.
10. Updates to Software. After a Customer receives OEM's Product and
the Software, if the Customer receives an update, upgrade, enhancement, new
version or new release of, or to, the Software, OEM will pay Caldera the
discounted fee (as specified by Caldera) for the update, upgrade, enhancement,
new version or new release. This payment shall be in addition to the discounted
fee paid for the original Software product.
11. Late Payments. If any payment is not made by OEM when due, OEM
shall pay interest to Caldera at the rate of 1.5% per month or the highest rate
allowed by applicable law (whichever is less) until payment is received in full.
12. Quantity and Credit Limits. Caldera may establish a credit limit
and/or quantity limit for OEM. These limits may be revised at any time by
Caldera. Caldera has no obligation in excess of the credit limit or quantity
limit. Caldera may at any time require payment in advance.
13. Termination of Software Licenses. Caldera may terminate any
Software license for which payment is not received in full. Such right to
terminate does not apply to GPL Software.
14. Costs of Collection. OEM shall pay Caldera for all costs and
expenses incurred in collecting from OEM any amounts not paid when due or in
repossessing Software, including reasonable attorneys' fees.
15. Taxes. OEM shall pay any sales, use, excise or other taxes, and
any duties, tariffs, fees, and other government assessments that may be imposed
by or payable to any U.S., state, provincial, local, or foreign authority or
agency upon or relating to this Agreement or any of the licensing, distribution,
or other transactions contemplated herein.
16. Guarantees and Other Warranties. Caldera may give a 30 day money
back guarantee to Customers. OEM will honor this guarantee. If Software is
returned or erased by a Customer for a refund in accordance with this guarantee,
then OEM will make the refund to the Customer and Caldera shall refund to OEM
the discounted license fee paid by OEM therefor. OEM will be refunded by
Caldera within 30 days of written notification by OEM to Caldera. OEM will
cooperate with Caldera in honoring any other written warranties made by Caldera
to Customers that are included in or with the Software license agreement or made
by Caldera in advertisements or other printed materials. This may include
returns for refunds or replacements. Guarantees and warranties are subject to
change by Caldera. Caldera has no obligation under outdated or expired
guarantees or warranties. The 30 day money back guarantee and the other
warranties referred to in this Section, are not given to OEM, but only to
Customers.
17. Support. OEM shall be entitled to the then-current level of
support provided by Caldera under its Authorized OEM Program, including:
(a) Sales Literature. OEM shall receive an initial package of sales
literature for the Software at no charge. Thereafter, OEM may request
additional and updated sales literature as reasonably needed. Caldera reserves
the right to charge OEM a reasonable fee for such additional and updated sales
literature.
(b) Telephone Support. Software telephone support will be available to
OEM during Caldera's then-current normal telephone support hours.
(c) Software Training. OEM's personnel may attend Software training
courses offered by Caldera at Caldera's facilities as part of the Authorized OEM
Program. OEM shall be responsible for all travel and other expense of its
personnel.
18. Obligations of OEM. The obligations of OEM include the following:
(a) Defects and Complaints. OEM shall inform Caldera of any Software
defects of Customer complaints which come to the attention of OEM.
(b) Cooperation. If Caldera desires to recall any Software from OEM's
Customer's or to distribute replacements, maintenance fixes or work-around
solutions to OEM's Customers, OEM shall provide all cooperation and assistance
reasonably requested by Caldera.
(c) Warranties. OEM is not authorized by Caldera to make any
guarantees or warranties concerning the Software. OEM is responsible for all
warranties, representations and promises made by OEM to Customers. Caldera has
no responsibility or obligation with respect thereto.
(d) Compliance with Laws. OEM shall comply with the laws of all
relevant jurisdictions in the Territory and OEM will obtain all necessary
licenses and authorizations from the relevant governmental authorities to do
business and distribute Software in the Territory as provided in this Agreement.
(e) Notices. OEM shall include on all copies of the Software
distributed by OEM such copyright, trademark, and proprietary rights notices as
Caldera may reasonably request. At a minimum, OEM shall include on such copies
of the notices found on the Software products and documentation provided by
Caldera to OEM.
(f) Export Act. OEM hereby warrants and certifies that no Software
will be made available or exported by OEM to any country in contravention of any
law or regulation of the United States or any of its agencies, including, but
not limited to, the Export Administration Act of 1979 and regulations relating
thereto. This Agreement is subject to such laws and regulations.
(g) Indemnification. OEM shall indemnify Caldera against, and hold it
harmless from, any claims by third parties relating to OEM's Product and any
expenses, judgments, awards, settlements, attorneys' fees, and losses relating
to such claims.
(h) Modifications and Enhancements. If and to the extent that
modifications or enhancements to GPL Software are made by or for OEM, then such
modifications and enhancements shall be: (i) governed by the applicable GNU
General Public License and OEM shall comply therewith, and (ii) freely available
to the public. Furthermore, OEM shall promptly give complete copies of such
modifications and enhancements (including binary and source code) to Caldera,
and Caldera may use, copy, distribute, publish, modify and enhance such
modifications and enhancements and authorize others to do so, without any
obligation to OEM and without restriction other than any applicable provisions
of the applicable GNU General Public License. If and to the extent that
modifications or enhancements to Caldera Software are made by or for OEM, then
such modifications and enhancements shall be governed by and subject to any
restrictions imposed by Caldera. OEM shall promptly give complete copies of
such modifications and enhancements (including binary and source code) to
Caldera, and Caldera may use, copy, distribute, publish, modify and enhance such
modifications and enhancements and authorize others to do so, without any
obligations to OEM and without restriction.
19. Termination. Either Party may terminate this Agreement upon 30
days advance written notice to the other Party. However, such termination shall
not apply to, and this Agreement shall continue to govern, Software products
purchased or issued prior to the date of termination and any disputes relating
to such purchased or issued Software products. Section 15 and Subsections 18
(f), (g), (h) and (i) shall survive termination. Amounts payable by OEM to
Caldera shall not be affected, reduced or negated by such termination, and shall
be paid by OEM immediately. Upon termination of this Agreement, OEM shall cease
to have any rights under Caldera's Authorized OEM Program, including Section 17
of this Agreement.
20. Standard Warranty. The then-current warranties and guarantees of
Caldera applicable to the Software and stated in the licensed agreements or
other printed materials provided by Caldera with the Software are the only
warranties or guarantees made by Caldera relating to the Software. Such
warranties and guarantees are subject to any and all accompanying disclaimers,
limitations and other terms.
21. Disclaimers. CALDERA MAKES NO WARRANTY EXCEPT AS EXPRESSLY SET
FORTH IN THIS AGREEMENT. ALL IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR
A PARTICULAR PURPOSE AND NONINFRINGEMENT ARE DISCLAIMED AND EXCLUDED.
22. Sole and Exclusive Remedy. THIS AGREEMENT DEFINES AND PROVIDES THE
SOLE AND EXCLUSIVE REMEDY OR OEM AND THE SOLE AND EXCLUSIVE LIABILITY OF
CALDERA.
23. Limitation on Liability. IN NO EVENT SHALL CALDERA'S AGGREGATE
LIABILITY ARISING FROM OR RELATING TO THIS AGREEMENT OR THE SOFTWARE (REGARDLESS
OF THE FORM OF ACTION, WHETHER BY CONTRACT, WARRANTY, TORT, MALPRACTICE, FRAUD
AND/OR OTHERWISE) EXCEED THE AMOUNT ACTUALLY PAID BY OEM TO CALDERA. IN NO
EVENT SHALL CALDERA BE LIABLE FOR ANY CONSEQUENTIAL, SPECIAL, INDIRECT,
INCIDENTAL OR PUNITIVE DAMAGES, EVEN IF CALDERA HAS BEEN ADVISED OF THE
POSSIBILITY OF SUCH DAMAGES.
24. Assignment and Successors. This Agreement is not assignable or
transferable, except that this Agreement may be assigned or transferred by
Caldera to any third party who acquires substantially all of Caldera's
intellectual property in and to the Caldera Software.
25. Government Law and Forum. This Agreement shall be governed by, and
construed and enforced in accordance with, the laws of the State of Utah and the
United States of America, specifically excluding the United Nations Convention
on Contracts for the International Sale of Goods, and without giving effect to
conflict of laws. Any litigation or arbitration between the Parties shall be
conducted exclusively in the state of Utah.
26. Entire Agreement. This Agreement (including its Appendices): (i)
represents the entire agreement between the Parties relating to the subject
matter of this Agreement, (ii) supersedes all prior agreements, understandings,
representations and warranties relating to the
subject matter of this Agreement, and (iii) may only be amended, canceled or
rescinded in writing and signed by both Parties.
27. Force Majeure. Except for obligations to make payment, neither
Party shall be deemed in breach of this Agreement for any failure to perform an
obligation where such failure is caused by Acts of God or other circumstances
beyond the control of that Party.
28. Waiver. Any waiver under this Agreement must be in writing and any
waiver of one event shall not be construed as a waiver of subsequent events.
29. Attorney's fees. In the event of any litigation or arbitration
between the Parties relating to this Agreement or the Software, the prevailing
Party shall be entitled to recover from the other Party all reasonable
attorneys' fees and other reasonable costs incurred by the prevailing Party in
connection therewith.
30. Construction. This Agreement represents the wording selected by
the Parties to define their agreement and no rule of strict construction shall
apply against either Party. This Agreement is written in, and shall be governed
by, the English language.
31. Severability. In case any one or more of the provisions contained
herein shall, for any reason, be held to be invalid, illegal, or unenforceable
in any respect, such invalid, illegal or unenforceable provision(s) shall be
curtailed, limited, and construed to the extent necessary (and only to such
extent) to remove such invalidity, illegality or unenforceability with respect
to the applicable law as it shall then be applied. If it is not possible to
curtail, limit and/or construe such provisions to make them valid, legal and
enforceable, then such provisions shall be severed from this Agreement, and the
other provisions of this Agreement shall not be affected thereby.
32. Execution. The persons signing below represent that they are duly
authorized to execute this Agreement for and on behalf of the Party for whom
they are signing.
AGREED TO AND ACCEPTED BY:
OEM: Merlin Software Technologies Inc.
By (signature): /s/ X. Xxxxxxxxxx
Name (print): X. XXXXXXXXXX
Title: V.P. SALES.
CALDERA SYSTEMS, INC. ("Caldera")
By (signature): /s/ signed
Name (print): Xxxx Xxxxxx
Title: CFO
APPENDIX A
SOFTWARE
eDesktop 2.4
eServer 2.3
APPENDIX B
OEM'S PRODUCT
Describe the manner in which OEM will combine or bundle the Software with OEM's
Product and the "value added" which OEM brings to the Software:
OEM will bundle applicable Caldera products with its PerfectBACKUP+ software and
not sell Caldera's products separately.
APPENDIX C
FEES AND DISCOUNTS
eDesktop 2.4 $13.50 (U.S.)
eServer 2.3 $40.00 (U.S.)
APPENDIX D
END USER LICENSE AGREEMENT
