Exhibit 10.7
*** CERTAIN CONFIDENTIAL INFORMATION
CONTAINED IN THIS DOCUMENT (INDICATED BY
ASTERISKS) HAS BEEN OMITTED AND FILED
SEPARATELY WITH THE SECURITIES AND EXCHANGE
COMMISSION PURSUANT TO A REQUEST FOR
CONFIDENTIAL TREATMENT UNDER 17 C.F.R.
SECTIONS 200.80(B)(4), 200.83 AND 230.406.
SOFTWARE DISTRIBUTION AGREEMENT
This Software Distribution Agreement ("Agreement"), effective as of the
17th day of March, 2003 (the "Effective Date"), is entered into by and between
Lindows, Inc., a Delaware corporation ("Supplier"), and Livin' On The Edge, Co.,
Ltd., a Japanese corporation ("Distributor").
RECITALS
A. Distributor is in the business of licensing and distributing software
products in Japan, and desires to distribute Supplier's Product (as defined
below) in Japan.
B. Supplier is in the business of developing and licensing software
products and services, and desires to authorize Distributor to distribute the
Product (as defined below) in Japan. The parties agree as follows:
1. DEFINITIONS
(a) "Customer" shall mean an end-user who purchases the Product
within the Territory.
(b) "Documentation" shall mean the end-user manuals relating to
the Software and services and related materials provided by Supplier to
Distributor hereunder.
(c) "Product" Product shall mean the Software, services, and
Documentation listed on Exhibit "A" attached hereto, including any
modifications, improvements, alterations, translations, localizations,
innovations, or changes of any kind performed on the Software or Documentation
by Distributor or agents, sub-licensees, contractors, or employees of
Distributor.
(d) "Release Date" shall mean the earlier of (1) the actual date
on which Distributor first releases the Localized Product for sale, or (2) 60
days after the Effective Date.
(e) "Software" shall mean the computer program(s) listed in
Exhibit A in machine executable object code format.
(f) "Territory" shall mean the Nation of Japan.
(g) "Updates" shall mean versions of the Software, including
version patches, subsequently released to the public for the purpose of
correcting errors and fixing software bugs that Supplier generally makes
available to its customers free of charge. "Updates" does not include subsequent
versions of the Software that contain new features or functionality, or which
are considered a new software product.
2. APPOINTMENT
Supplier hereby appoints Distributor, and Distributor hereby accepts
the appointment, as Supplier's [***] distributor [***] to distribute the Product
to Customers in the Territory. The period of this grant shall begin on the
Release Date and shall continue for [***] or until the termination of this
Agreement. This grant shall include the following permitted uses:
(a) Copying the Software from the Golden Master into copies of CD
Rom disks and repackaging such Software for distribution for retail sale within
the Territory.
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(b) Distribution of the Product through retail locations within
the Territory or via electronic transfer through servers controlled and
maintained by Supplier, through an Internet domain address jointly chosen by
Distributor and Supplier.
(c) Translating and localizing the English version of the Product
into appropriate Japanese language. Supplier reserves the sole and exclusive
right to terminate this Agreement in the event that the Product, as translated
and localized by the Distributor, does not satisfy Supplier's reasonable
requirements. Provided, however, that Supplier shall provide reasonable notice
to Distributor with regard to this subsection and Distributor shall have ten
(10) days to respond to such notice. Distributor shall have forty-five (45) days
after responding to the notice to satisfy such requirement(s).
(d) Authorizing dealers to distribute the Product on behalf of
Distributor, provided said dealers distribute the Product consistent with the
limitations, terms, and conditions contained herein.
(e) Sublicensing the Product to Customers pursuant to an end user
license agreement (the "End User Agreement") with terms consistent with the
terms set forth in Exhibit "B" attached hereto.
(f) Using the Product for the purpose of providing customer
support services, demonstrations and marketing purposes.
3. OBLIGATIONS OF DISTRIBUTOR
(a) Diligence. Distributor shall use commercially reasonable
efforts to promote the marketing and distribution of the Product to realize the
maximum sales potential for the Product in the Territory. Except as expressly
set forth herein, Distributor shall be solely responsible for all costs and
expenses related to the advertising, marketing, promotion, and distribution of
the Product and for performing its obligations hereunder.
(b) Repackaging. Any retail repackaging of the Product must be
approved by Supplier before the distribution of the Product in the Territory,
provided, however, that such approval shall not be unreasonably withheld.
(c) Translation; Localization. Distributor shall translate or
localize the Product into the Japanese language, provided, however, that
Supplier retains all ownership rights in and to such translated/localized
versions of the Product (the "Localized Product"), subject to the termination
provisions set forth in Section 2(c), above. Distributor shall provide a copy of
any and all publicly released versions of the Product containing such
translations/localizations within five (5) days of the Release Date.
(d) Product Support.
(i) Distributor shall provide reasonable technical
support to Customers, including without limitation (x) maintaining trained and
competent technical and engineering support personnel for the Product who are
sufficiently knowledgeable with respect to the Product to answer Customer
questions regarding the use and operation of Product, (y) responding promptly to
requests for technical support from Customers, and (z) providing technical
support services to address and resolve Customers' support requests with respect
to the Product.
(ii) Distributor shall ensure that all Customer questions
regarding the use or operation of Product are initially addressed to and
answered by Distributor. Unless otherwise agreed in
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writing by Supplier, Distributor shall not represent to any third party that
Supplier is available to answer questions from any Customer directly.
(e) End User License. Prior to providing any Customer with any
Software, Distributor shall ensure that each Customer has read and agreed to the
terms and conditions of the End User Agreement contained in each Software unit .
Distributor shall not conduct, support, or permit, and shall not authorize any
third party to conduct, support, or permit, the copying, modification,
alteration, reverse engineering, disassembly or decompiling of the Product.
4. OBLIGATIONS OF SUPPLIER
(a) Product Support and Training. Supplier shall provide
Distributor with engineering and technical support for the Product, including
providing corrections or workarounds to correct defects, bugs, or errors in the
Product. In the event a critical defect is discovered, Supplier agrees to use
best efforts to correct the defect and provide such correction within fifteen
(15) calendar days after notice thereof. A critical defect is generally defined
as one which causes the Product not to function for which there is no known
workaround. Supplier shall maintain a telephone number and technicians to
receive calls from Distributor's technical staff for so long as Supplier has
technicians responding to product support calls, currently 8 a.m. to 6 p.m.
Pacific Standard Time (USA). Supplier shall also provide Distributor with a
pager number pursuant to which Supplier's technician shall respond within four
(4) hours to any page received from Distributor, twenty-four (24) hours a day
seven (7) days a week concerning problems and questions. Supplier shall respond
to email questions regarding product support and training sent by Distributor
within twenty-four (24) hours. Supplier shall also provide training with respect
to the use, reproduction, installation and distribution of the Software as
contemplated under the Agreement.
(b) E-commerce transaction services and infrastructure. Supplier
shall provide Distributor with such e-commerce transaction services and
infrastructure necessary for the sale of the Product through any Internet web
site through which the parties agree to distribute the Product.
(c) Marketing Support. Supplier shall provide Distributor with
reasonable marketing support, including providing reasonable quantities of
Supplier's advertising and promotional materials, pricing information and
technical data related to the Product. Supplier may also from time to time
provide, at Supplier's sole discretion, monetary support for certain marketing
and promotional activities involving the Product, such as exhibitions,
conventions, trade shows and advertisements.
(d) Japanese Language Click-N-Run Warehouse Aisle. Within thirty
(30) days of the Effective Date of this Agreement, Supplier shall establish and
maintain an aisle within the Click-N-Run Warehouse containing references to
software applications which may be of interest to Japanese-speaking end-users.
Supplier exercises its sole and absolute discretion as to which software
application titles to place within the Japanese language aisle.
(e) Software and Click-N-Run Memberships. Within fifteen (15) days
of the Effective Date of this Agreement, Supplier shall provide the following to
Distributor: (x) a golden master for the LindowsOS ;(y) a golden master for the
Click-N-Run Express; (z) the Click-N-Run Membership identification numbers for
the Click-N-Run Warehouse in the amount consistent with the number of
memberships ordered by Distributor as described in Section 6(a). In the event
that Distributor purchases additional memberships, or makes additional payment
pursuant to Section 6(a) below, Supplier shall provide the membership
identification numbers within ten (10) days of receipt of Distributor's payment
for such memberships.
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(f) Software Updates. Supplier shall make available to Distributor
for distribution any Updates to the Software within ten (10) days after release
to the public. Supplier shall deliver a golden master for each Update to
Distributor.
(g) Post-termination Obligations. After the termination of this
Agreement, Supplier shall continue to provide Distributor with engineering and
technical support pursuant to Section 4(a) [***]. After the termination of this
Agreement, Supplier shall continue to provide warranty coverage to Customers of
the Product up to the expiration of the Customers' warranty period. Supplier
shall further continue to provide Click-N-Warehouse membership privileges for
Customers up to the expiration of such membership privileges.
5. PRICE/PRICE CHANGE
(a) Price. Distributor shall pay Supplier [***]. Distributor shall
maintain records of any and all Customer returns, including the name, address,
telephone number, and e-mail address of the Customer returning the Product, the
date of the return and reason for the return. Distributor shall maintain such
records for a period of one (1) year after termination of this agreement and
shall permit inspection and copying of such records by Supplier upon ten (10)
days notice by Supplier.
(b) [***]
(c) Click-N-Run Memberships. For each Click-N-Run stand-alone
membership or membership renewal sold by Distributor through the e-commerce
infrastructure provided for in Section 4(b), Supplier shall pay Distributor, in
regular monthly intervals, [***]. All Click-N-Run membership renewals or
stand-alone memberships sold pursuant to this Agreement [***].
(d) Price Decreases. The parties may negotiate in good faith a
discount to the Price in order to allow Distributor to be competitive in
obtaining certain distribution accounts, such as accounts with OEMs.
(e) Taxes. Prices do not include any Japanese taxes, including
franchise, sales and use taxes, if any. Distributor shall be solely responsible
for payment of any and all such taxes or obligations, including any fines,
penalties, or interest relating thereto.
6. [***]
(a) [***]
(b) [***]
(c) [***]
7. PAYMENT TERMS
(a) Payment Terms. All payments shall be in U.S. Dollars via
certified check or electronic wire transfer and shall be submitted together with
an accounting statement indicating all sales of the Product for such period.
Provided, however, that all payments made by Supplier to Distributor pursuant to
sales processed by Supplier under Section 7(b) shall be made in Japanese yen.
(b) Payments for Sales Processed by Supplier. For all retail sales
occurring through the e-commerce infrastructure provided by Supplier and
discussed in Section 4(b), Customers shall make
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payments directly to Supplier or Supplier's agent designated to process such
ecommerce transactions. Supplier shall provide Distributor an accounting of and
reimbursement for all such sales as follows:
(i) [***]
(ii) [***]
(iii) [***]
(c) Payments for Sales Processed by Distributor. For all sales of
the Product to Customers, retail outlets, OEMs, or otherwise, which occur
outside of the e-commerce infrastructure provided for in Section 4(b), above,
payments shall be made to Distributor. [***] Distributor shall provide Supplier
an accounting of all such sales at regular monthly intervals.
(d) Notices. Distributor shall maintain an accounting and all
records of sales of the Product and [***]
(e) OEM Distribution. The parties are currently negotiating an
agreement pursuant to which Supplier shall grant Distributor the right to
distribute the Product to OEMs. In the event that the Parties execute such an
agreement for OEM distribution, all units sold pursuant to such agreement shall
be included in the minimum product purchase amounts set forth in Section 6(a).
(f) Books and Records; Audit. Both parties shall maintain complete
books, records and accounts relevant to computation and accounting for amounts
payable under this Agreement. Each party agrees to allow an independent
certified public accountant the right to audit and examine such books, records
and accounts during normal business hours no more than once per year upon ten
(10) days notice at such examining party's expense, to verify the accuracy of
the reports and payments made under this Section 7.
8. LIMITED WARRANTY
(a) Limited Warranty. Subject to the provisions of this Section 8
below, Supplier warrants that for a period of sixty (60) days ("Warranty
Period") the Software will conform to the specifications set forth in the
Documentation, manuals and any relevant data sheet or promotional literature
provided by Supplier. In the event that the Software fails to conform to such
specifications during the Warranty Period, Supplier shall use best efforts to
repair and correct such errors so that the Software conforms to such
specifications.
(b) Disclaimer of Warranties. EXCEPT AS EXPRESSLY PROVIDED IN
SECTION 8(a) ABOVE, SUPPLIER MAKES NO WARRANTIES OR CONDITIONS, EXPRESS,
STATUTORY, IMPLIED, OR OTHERWISE, AND SUPPLIER SPECIFICALLY DISCLAIMS THE
IMPLIED WARRANTIES AND CONDITIONS OF MERCHANTABILITY AND FITNESS FOR A
PARTICULAR PURPOSE. NOTWITHSTANDING THE FOREGOING, SUPPLIER DOES NOT EXCLUDE
LIABILITY TO THE EXTENT THAT SUCH LIABILITY MAY NOT BE EXCLUDED OR LIMITED BY
LAW.
(c) Distributor Limitations. Except to the extent required by
applicable law, Distributor shall not grant to its Customers a warranty of
greater scope or protection than the warranty (including the limited remedy,
exclusions, and limitation of liability) set forth in this Section 8 and Section
13 below.
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(d) Customer Claims. Distributor shall ensure that all Customer
claims for warranty, repair, or replacement are addressed to Distributor and not
to Supplier.
9. TERM AND TERMINATION
(a) Term. This Agreement shall commence upon the Effective Date
and continue in full force and effect for a fixed term of [***], unless earlier
terminated in accordance with the provisions of this Agreement and [***]. If a
party is in material breach of this Agreement and has failed to cure such
material breach within thirty (30) days after receiving written notice from the
other party of such material breach, the party not in breach may terminate this
Agreement. Distributor may also terminate this Agreement in accordance with
Section 11(c). Without limiting the foregoing, either party may terminate this
Agreement effective upon written notice to the other party stating such party's
intention to terminate, in the event the other party:
(i) ceases to function as a going concern or to conduct
operations in the normal course of business;
(ii) has a petition filed by or against it under any
bankruptcy or insolvency law which petition has not been dismissed or set aside
within sixty (60) days of its filing; or
(iii) fails to perform any of its obligations under this
Agreement so as to be in default hereunder and fails to cure such default within
thirty (30) days after written notice of such default.
(b) Customer Support. Distributor may continue to use the Product
after termination of this Agreement to provide customer support services set
forth in Section 3(d).
(c) No Liability for Termination. Except as expressly required by
law, in the event of termination of this Agreement by either party in accordance
with any of the provisions of this Agreement, neither party shall be liable to
the other, because of such termination, for compensation, reimbursement or
damages on account of the loss of prospective profits or anticipated sales or on
account of expenditures, inventory, investments, leases or commitments in
connection with the business or goodwill of Supplier or Distributor. Termination
shall not, however, relieve either party of obligations incurred prior to the
termination.
(d) Survival. Distributor may sell Product existing in its
inventory as of the effective date of termination of this Agreement for a period
of ninety (90) days after the effective date of such termination ("Wind-Down
Period"). During the Wind-Down Period, the provisions of Sections 7 and 10 shall
survive. In addition to the provisions set forth in this Section 9(d), the
following provisions shall survive expiration or any termination of this
Agreement: Sections 4(g), 8, 9(b)-(e), 10, 11, 13, 15 and the last sentence in
Section 12(b).
(e) Return of Materials. All Product, trademarks, marks, trade
names, patents, copyrights, designs, drawings, formulas or other data,
photographs, samples, literature, and sales and promotional aids of every kind
shall remain the property of Supplier. Within thirty (30) days after the
effective date of termination of this Agreement, Distributor shall at Supplier's
option destroy all tangible items bearing, containing, or contained in, any of
the foregoing, in its possession or control and provide written certification of
such destruction, or prepare such tangible items for shipment to Supplier or
Supplier's designee, as Supplier may direct, at Supplier's expense. Distributor
shall not make or retain any copies of any Confidential Information (as defined
in Section 10, below) which may have been entrusted to it.
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10. CONFIDENTIALITY AND PROPRIETARY RIGHTS
(a) Confidential Information. The term "Confidential Information"
means any information disclosed by one party to the other pursuant to this
Agreement that is in written, graphic, machine readable or other tangible form
and is marked "Confidential", "Proprietary" or in some other manner to indicate
its confidential nature. Confidential Information may also include oral
information disclosed by one party to the other pursuant to this Agreement,
provided that such information is designated as confidential at the time of
disclosure and is reduced to writing by the disclosing party within a reasonable
time (not to exceed 30 days) after its oral disclosure, and such writing is
marked in a manner to indicate its confidential nature and delivered to the
receiving party.
(b) Confidentiality. Each party shall treat as confidential all
Confidential Information of the other party, shall not use such Confidential
Information except to exercise its rights and perform its obligations under this
Agreement herein, and shall not disclose such Confidential Information to any
third party. Without limiting the foregoing, each of the parties shall use at
least the same degree of care it uses to prevent the disclosure of its own
confidential information of like importance, to prevent the disclosure of
Confidential Information of the other party. Each party shall promptly notify
the other party of any actual or suspected misuse or unauthorized disclosure of
the other party's Confidential Information.
(c) Exceptions. Confidential Information excludes information
that: (i) was in the public domain at the time it was disclosed or has become in
the public domain through no fault of the receiving party; (ii) was known to the
receiving party, without restriction, at the time of disclosure, as demonstrated
by files in existence at the time of disclosure; (iii) is disclosed with the
prior written approval of the disclosing party; (iv) was independently developed
by the receiving party without any use of the Confidential Information; (v)
becomes known to the receiving party, without restriction, from a source other
than the disclosing party, without breach of this Agreement, by the receiving
party; or (vi) is disclosed generally to third parties by the disclosing party
without restrictions similar to those contained in this Agreement. The receiving
party may disclose the other party's Confidential Information to the extent such
disclosure is required by order or requirement of a court, administrative
agency, or other governmental body, but only if the receiving party provides
prompt notice thereof to the disclosing party to enable the disclosing party to
seek a protective order or otherwise prevent or restrict such disclosure.
(d) Proprietary Rights. Distributor agrees that Supplier retains
all of its right, title and interest in and to all patent rights, trademarks,
trade names, inventions, copyrights, know-how and trade secrets relating to the
Product, including modifications, translations, and/or localizations of the
Product performed by Distributor, or the product lines that include the Product,
and the design, manufacture, operation or service of the Product. To the extent
that the Product contains or incorporates intellectual property of parties other
than Supplier, Distributor agrees to respect such third party rights and abide
by any terms and conditions contingent upon grant and use of such rights, and
that such third parties retain any such rights, if applicable. The use by
Distributor of any of these property rights is authorized only for the purposes
herein set forth and upon termination of this Agreement for any reason such
authorization will cease, subject to Section 9(d). Distributor shall not (and
shall require that its Customers do not) remove, alter, cover or obfuscate any
copyright notices or other proprietary rights notices placed or embedded by
Supplier on or in any Product.
11. PATENT/COPYRIGHT/TRADEMARK WARRANTY AND INDEMNIFICATION
(a) Indemnity. Supplier represents and warrants that the Product
or any part thereof, and any of its patents, copyrights, trademarks, trade
secrets or other proprietary rights related thereto, do not violate or infringe
any patent, copyright, trademark, trade secret or other proprietary right of any
third party. Supplier shall defend and hold Distributor harmless against any
loss, liability or expense
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(including reasonable attorney's fees) paid to third parties arising from any
action, proceeding or claim brought or threatened against Distributor alleging
that the Product infringes any third party's patent, copyright, trademark
(provided Distributor adheres to the Branding Guidelines provided by Supplier),
trade secret or other intellectual property right (an "Action"). Supplier will
have sole control of any such Action or settlement negotiations, and Supplier
agrees to pay, subject to the limitations hereinafter set forth, any final
judgment entered against Distributor on such issue in any such Action defended
by Supplier. Distributor shall notify Supplier promptly in writing of such
Action, give Supplier authority to proceed as contemplated herein, and give
Supplier proper and full information and assistance to settle and/or defend any
such Action. If it is adjudicatively determined, or if Supplier believes, that
the Product, or any part thereof, infringe any patent, copyright or trademark
(provided Distributor adheres to the Branding Guidelines provided by Supplier),
or if the sale or use of the Product, or any part thereof, is, as a result,
enjoined, then Supplier may, at its election, option, and expense: (i) procure
for Distributor the right under such patent, copyright or trademark to sell or
use, as appropriate, the Product or such part thereof; (ii) modify the Product
or part thereof; or (iii) cease distribution of the Product, or part thereof,
and refund any payments (including any minimum product purchases under Section
6) paid by Distributor for such Product.
(b) Modifications to Branding Guidelines. Supplier reserves the
right to modify the Branding guidelines from time to time, and shall give
Distributor notice of any such modifications. Within thirty (30) days of receipt
of notice of any modifications to the Branding guidelines, Distributor shall act
to assure that all Product, Product marketing materials or other promotional
matter complies with the Branding Guidelines. If at any time Distributor fails
to follow the Branding Guidelines, Xxxxxxx.xxx shall be relieved of any
obligation set forth in Section 10 relating to or resulting from such failure.
(c) LINDOWS Trademarks. Notwithstanding the terms in Section
11(a), in the event that any trademark or service xxxx containing the terms
"Lindows" or "LindowsOS" are held by a court to infringe upon the trademark or
service xxxx of a third party, the use of such trademarks or service marks are
enjoined by a court, or Supplier changes such trademarks or service marks in
connection with a third party infringement action, claim or dispute, Distributor
shall have the option to immediately terminate this Agreement and Supplier shall
(i) indemnify Distributor for all liability and costs in connection with such
infringement (including damages and reasonable attorneys fees) and (ii) shall
also remunerate Distributor for the difference between the amount of any advance
payments paid to Supplier under Section 6 and the amount of payments received
from Customers for Product purchased from Supplier by Distributor pursuant to
such advance payments.
12. USE OF TRADEMARKS/TRADE NAMES
(a) Trademarks. During the term of this Agreement, Distributor
shall have the right to indicate to the public that it is an authorized
distributor of Supplier's Product and to advertise such Product under the
trademarks, marks, and trade names of Supplier and in the promotion and
distribution of the Product; provided, however, that upon thirty (30) days prior
written notice to Distributor, Supplier may substitute alternative marks for any
or all of such Supplier's trademarks used by Distributor. All representations of
Supplier's trademarks that Distributor intends to use shall first be submitted
to Supplier for approval (which shall not be unreasonably withheld) of design,
color and other details or shall be exact copies of those used by Supplier. In
addition, Distributor shall fully comply with all reasonable guidelines, if any,
communicated by Supplier concerning the use of Supplier's trademarks.
(b) Use. Distributor shall not alter or remove any of Supplier's
trademarks affixed to the Product by Supplier. Except as set forth in this
Section 12, nothing contained in this Agreement shall grant or shall be deemed
to grant to Distributor any right, title or interest in or to Supplier's
trademarks. All uses of Supplier's trademarks will inure solely to Supplier and
Distributor shall obtain no rights with
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respect to any of Supplier's trademarks, other than the right to distribute
Product as set forth herein, and Distributor irrevocably assigns to Supplier all
such right, title and interest, if any, in any of Supplier's trademarks. At no
time during or after the term of this Agreement shall Distributor challenge or
assist others to challenge Supplier's trademarks (except to the extent expressly
prohibited by applicable law) or the registration thereof or attempt to register
any trademarks, marks or trade names confusingly similar to those of Supplier.
Upon termination of this Agreement, Distributor shall immediately cease to use
all Supplier's trademarks (other than for any remaining inventory to be sold
during the "Wind Down Period").
13. LIMITATION OF LIABILITY
IN NO EVENT SHALL EITHER PARTY BE LIABLE FOR LOST PROFITS, COST OF
PROCUREMENT OF SUBSTITUTE GOODS, OR ANY OTHER SPECIAL, RELIANCE, INCIDENTAL, OR
CONSEQUENTIAL DAMAGES, HOWEVER CAUSED AND UNDER ANY THEORY OF LIABILITY WHETHER
BASED IN CONTRACT, TORT (INCLUDING NEGLIGENCE), OR OTHERWISE. THE FOREGOING
LIMITATIONS SHALL APPLY REGARDLESS OF WHETHER SUCH PARTY HAS BEEN ADVISED OF THE
POSSIBILITY OF SUCH DAMAGES AND NOTWITHSTANDING THE FAILURE OF ESSENTIAL PURPOSE
OF ANY LIMITED REMEDY STATED HEREIN. NEITHER PARTY'S LIABILITY ARISING OUT OF OR
RELATING TO THIS AGREEMENT SHALL EXCEED THE AGGREGATE AMOUNTS PAID BY
DISTRIBUTOR TO SUPPLIER HEREUNDER. NOTWITHSTANDING THE FOREGOING, THIS SECTION
13 SHALL NOT BE APPLICABLE WITH REGARD TO ANY BREACH OR LIABILITY UNDER SECTIONS
10 AND 11.
14. COMPLIANCE WITH LAWS
(a) Export Control. Distributor understands and acknowledges that
Supplier is subject to regulation by agencies of the United States Government,
including, but not limited to, the U.S. Department of Commerce, which prohibit
export or diversion of certain Product and technology to certain countries. Any
and all obligations of Supplier to provide the Product, as well as any other
technical information or assistance shall be subject in all respects to such
United States laws and regulations as shall from time to time govern the license
and delivery of technology and Product abroad by persons subject to the
jurisdiction of the United States, including the Export Administration Act of
1979, as amended, any successor legislation, and the Export Administration
Regulations issued by the Department of Commerce, Bureau of Export
Administration. Distributor agrees to cooperate with Supplier including without
limitation, providing required documentation, in order to obtain export licenses
or exemptions therefrom. Distributor warrants that it will comply with the
Export Administration Regulations and other United States laws and regulations
governing exports in effect from time to time. Distributor further agrees not to
resell Product to any organization, public or private, which engages in the
research or production of military devices, armaments, or any instruments of
warfare, including biological, chemical and nuclear warfare.
(b) Governmental Approvals. Distributor represents and warrants
that it has obtained all required approvals of the government within the
Territory in connection with this Agreement and that the provisions of this
Agreement and the rights and obligations of the parties hereunder, are
enforceable under the laws within the Territory. Supplier represents and
warrants that it has obtained all required approvals of the United States
government in connection with this Agreement and that the provisions of this
Agreement and the rights and obligations of the parties hereunder, are
enforceable under the laws of the United States of America.
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15. MISCELLANEOUS PROVISIONS
(a) Independent Contractors. The relationship of Supplier and
Distributor established by this Agreement is that of independent contractors,
and neither party is an employee, agent, partner or joint venturer of the other.
(b) Assignment. This Agreement will be binding upon and inure to
the benefit of the parties hereto and their respective successors and assigns;
provided, however, that neither party shall assign any of its rights,
obligations, or privileges (by operation of law or otherwise) hereunder without
the prior written consent of the other party.
(c) Indemnity. Except for warranty claims for which Supplier is
liable under Section 8 and infringement claims covered by Section 11,
Distributor agrees to indemnify and hold Supplier harmless against any cost,
loss, liability or expense (including attorneys' fees) arising out of third
party claims against Supplier relating to Distributor's use and distribution of
the Product.
(d) No Implied Waivers. The failure of either party at any time to
require performance by the other of any provision hereof shall not affect the
right of such party to require performance at any time thereafter, nor shall the
waiver of either party of a breach of any provision hereof be taken or held to
be a waiver of a provision itself.
(e) Severability. If any provision of this Agreement is held to be
invalid by a court of competent jurisdiction, then the remaining provisions will
nevertheless remain in full force and effect. The parties agree to renegotiate
in good faith those provisions so held to be invalid to be valid, enforceable
provisions which provisions shall reflect as closely as possible the original
intent of the parties, and further agree to be bound by the mutually agreed
substitute provision.
(f) Force Majeure. Except for payment of monies, neither party
shall be liable for failure to fulfill its obligations under this Agreement or
for delays in delivery due to causes beyond its reasonable control, including,
but not limited to, acts of God, acts of terror, man-made or natural disasters,
earthquakes, fire, riots, flood, material shortages, strikes, delays in
transportation or inability to obtain labor or materials through its regular
sources. The time for performance of any such obligation shall be extended for
the time period lost by reason of the delay.
(g) Conflicting Terms. The parties agree that the terms and
conditions of this Agreement shall prevail, notwithstanding contrary or
additional terms, in any purchase order, sales acknowledgment, confirmation or
any other document issued by either party effecting the purchase and/or sale of
Product.
(h) Headings. Headings of Sections herein are inserted for
convenience of reference only and shall not affect the construction or
interpretation of this Agreement.
(i) Notice. Any notice required or permitted to be given under
this Agreement shall be delivered (i) by hand, (ii) by registered or certified
mail, postage prepaid, return receipt requested, to the address of the other
party first set forth above, or to such other address as a party may designate
by written notice in accordance with this Section 15(i), (iii) by overnight
courier, (iv) by email to an officer of such party or (v) by fax with confirming
letter mailed under the conditions described in (ii) above. Notice so given
shall be deemed effective when received, or if not received by reason of fault
of addressee, when delivered.
(j) Entire Agreement. This Agreement contains the entire
understanding of the parties with respect to the subject matter hereof and
supersedes all prior agreements relating thereto, written or oral,
Page 10
between the parties. Amendments to this Agreement must be in writing, signed by
the duly authorized officers of the parties. This Agreement may be executed in
counterparts and delivered by facsimile, all of which shall together be
effective as a single original.
(k) Governing Law. This Agreement shall be governed by and
construed under the laws of the State of California, United States of America,
without regard to conflict of laws principles or the U.N. Convention on
Contracts for the International Sale of Goods. The parties consent to the
jurisdiction of the United States District Court for the Southern District of
California for purposes of any disputes arising out the their relationship.
IN WITNESS WHEREOF, the parties hereto have duly executed this
Agreement effective as of the Effective Date.
SUPPLIER: DISTRIBUTOR:
XXXXXXX.XXX, INC. LIVIN' ON THE EDGE, CO., LTD.
By: /s/ Xxxxx Xxxxxxx By: /s/ Xxxxxxxx Xxxxx
------------------------------ ---------------------------------
Name: Xxxxx Xxxxxxx Name: Xxxxxxxx Xxxxx
----------------------------
Title: President and COO Title: President and CEO
---------------------------
Page 11
EXHIBIT A
SOFTWARE
LindowsOS Version 3.0 Membership Edition (both English and Japanese versions)
(Object Code) and any new versions including versions that contain new features
or functionality.
Click-N-Run Installation with pre-determined software applications (Object Code)
MEMBERSHIP SERVICES
[***] membership to "Click-N-Run" Warehouse, a service provided by Xxxxxxx.xxx
enabling users of LindowsOS to access and install software applications provided
by parties other than Provider, valued at [***]. Membership to "Click-N-Run"
Warehouse does not include the cost, if any, of the software which may be
charged for the software provided by such third parties.
DOCUMENTATION
Page A-1
