EXHIBIT 10.8
*** 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),
200.803 AND 230.406
STARSUITE SOFTWARE OEM LICENSE AND DISTRIBUTION AGREEMENT
This StarSuite Software OEM License and Distribution Agreement
("Agreement") is made and entered into by and between Sun Microsystems, Inc., a
Delaware corporation, located at 0000 Xxxxxxx Xxxxxx, Xxxxx Xxxxx, Xxxxxxxxxx
00000 ("Sun") and Customer set forth below ("Customer"):
Customer: Xxxxxxx.xxx
Address: 0000 Xxxxxxx Xxxxxx, 0xx Xxxxx
Xxx Xxxxx, Xxxxxxxxxx 00000
X.X.X.
Tel: 000-000-0000
Fax: 000-000-0000
E-mail: __________________________
WHEREAS, Sun designs, develops and markets office productivity software and
documentation.
WHEREAS, Customer desires to license from Sun the Software (as defined below)
and distribute the same on the terms and conditions herein.
IN CONSIDERATION of the mutual promises and covenants contained in this
Agreement and the Attachments attached hereto and incorporated herein, and for
other good and valuable consideration, receipt of which is hereby acknowledged,
the parties agree as follows:
This Agreement includes the terms and conditions set forth herein and the
following attachments (collectively, "Attachments"):
ATTACHMENT 1 AGREEMENT DETAILS
ATTACHMENT 2 END USER BINARY CODE LICENSE AGREEMENT
Notices as described in Section 12.8 ("Notices") shall be delivered to Customer
at the above address and to Sun at 0000 Xxxxxxx Xxxxxx, Xxxx. 00, M/S:
XXX00-000, Xxxxx Xxxxx, XX 00000, Attention: Vice President, Software Sales,
with a copy to Sun Legal Dept. at 0000 Xxxxxxx Xxxxxx, Xxxx. 00, M/S: XXX00-000
XXX & Xxxxxxxxxxxx Xxxxx Xxxx., Xxxxx Xxxxx, XX 00000. Royalty reports and
payments should be sent to the following address unless otherwise specified by
Sun in writing: Sun Microsystems, Inc., Software Royalty Accounting Group
--StarSuite, X.X. Xxx 00000, Xxxx Xxxx, XX 00000.
IN WITNESS WHEREOF the parties have caused this Agreement to be executed by
their duly authorized representatives.
SUN MICROSYSTEMS, INC. CUSTOMER: XXXXXXX.XXX
By: /s/ Xxxxxx Xxxxx By: /s/ Xxxxx Xxxxxxx
--------------------------------- ---------------------------------
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EXHIBIT 10.8
Name: Xxxxxx Xxxxx Name: Xxxxx Xxxxxxx
------------------------------- -------------------------------
(printed or typed) (printed or typed)
Title: Worldwide Director Title: President
------------------------------ ------------------------------
Date: 6-17-03 Date: 5-28-03
------------------------------- -------------------------------
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EXHIBIT 10.8
GENERAL TERMS AND CONDITIONS
1.0 DEFINITIONS
1.1 "Binary Code License" or "BCL" means an End User license to use the
Software pursuant to the terms set forth in Attachment 2 ("End User Binary Code
License Agreement"). The BCL must be provided with each copy of the Software
distributed.
1.2 "Confidential Information" means that information which Customer
and/or Sun desire to protect against unauthorized disclosure or use and which
the disclosing party designates as confidential (i) in writing, if communicated
in writing, or (ii) orally, prior to any oral disclosure of the Confidential
Information. The terms and conditions of this Agreement shall be considered
Confidential Information of Sun.
1.3 "Customer Marketing Collateral" means all materials created by
Customer and used in connection with promoting or marketing Customer's Product,
including but not limited to, advertising, press releases, brochures, data
sheets, web pages, trade show and event materials, and ad pillars, in any
medium, including but not limited to print and online media.
1.4 "Customer's Product(s)" means the hardware system(s), software and/or
components manufactured by or for Customer which have material value independent
from the Software, and incorporate or include the Software as an integral
element of Customer's hardware system, software or component, pre-installed from
Master Media.
1.5 "Distributor" means an entity that distributes Customer's Products and
which is under a contractual obligation to Customer as set forth in this
Agreement, for example, a retail distributor.
1.6 "Effective Date" shall have the meaning set forth in Section 3.1
("Term").
1.7 "End User" means the person or entity to whom the BCL applies and to
whom Customer and/or Distributors furnish the Software for use with and as part
of Customer's Products for internal use and not for resale, marketing, or
leasing.
1.8 "End User Documentation " means users' manuals, programmers' guides
and system guides which Sun may provide for use with the Software, and which are
specified in the Attachments hereto and/or the Price List.
1.9 "Error" means any reproducible failure of the Software to perform its
intended functions or any material inaccuracies in the End User Documentation.
1.10 "Error Correction " means a modification, addition, procedure or
routine intended to correct the practical adverse effect of an Error.
1.11 "Installed Base" means Customer's pre-existing End User customers who
are already in possession of and using Customer's Product under a current and
valid license. Such installed Customer Products shall be referred to as
"Installed Systems."
1.12 "Licensed Trademarks" means the StarSuite Logos, STARSUITE word xxxx,
and the Sun Logo depicted in the Trademark *rise Agreement entered into by
Customer and Sun, or such additional or replacement xxxx(s) as Sun may provide
under the Trademark License Agreement, and no other logo, xxxx or designation.
1.13 "Master Media" means the Software delivered to Customer for the
purpose of mass duplication in accordance with Section 2.0 ("Binary License
Rights; Terms and Conditions") herein.
1.14 "Price List" means the then-current, geographical, specific release
of the Sun Software OEM and Reseller License Fee and Royalty Schedule including
any subsequent price changes made by Sun pursuant to Section 4.4 ("Price
Changes").
1.15 "Royalty Bearing Event" means the license, grant of right to use, or
other authorized transfer of the Software. There will be only one (1) Royalty
Bearing Event for each copy of the Software shipped.
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EXHIBIT 10.8
1.16 "Software" means the binary, machine-readable, executable code for
the Sun software product and End User Documentation listed in Attachment 1
("Agreement Details") hereto, and Updates or Error Corrections provided to
Customer, if any.
1.17 "Sun Marketing Collateral" means all materials created by or for Sun
and used in connection with promoting or marketing Sun's Software, including but
not limited to, advertising, press releases, brochures, data sheets, web pages,
trade show and event materials, and ad pillars, in any medium, including but not
limited to print and online media.
1.18 "Sun Trademarks" means the Licensed Trademarks and all iPlanet-,
Java-, Jini-, Solaris-, Sun-, and StarSuite-based names, marks, logos, trade
dress and other brand designations used by Sun and its related companies.
1.19 "Tax" means sales, use, rental, receipt, personal property,
value-added, consumption, goods and services, or other tax which may be levied
or assessed in connection with this Agreement, excluding tax based on Sun's
income.
1.20 "Territory" means the jurisdiction(s) where Customer may market,
advertise, and distribute Customer's Product containing the Software as set
forth in Attachment 1 ("Agreement Details"), and shall include no other
countries except Japan, the Peoples Republic of China (excluding Hong Kong),
Korea or Taiwan unless otherwise agreed by Sun in writing.
1.21 "Technical Support Entitlement" means that Sun will provide to
Customer for inclusion with Customer's Product, a text file (e.g., "Read Me"
file), splash screen, dialogue box or other collateral that will entitle the End
User to technical assistance with the Software (End User questions about the
Software relating to specific, discrete issues such as installation, launch,
configuration, usability, etc.) within a specified timeframe. Sun may also
provide End User Software training.
1.22 "Update" means a release of the Software, if any, which is designated
by Sun in its sole discretion as containing substantially only Error
Corrections, or minor new features, functionality and/or performance
enhancements. An Update is generally signified by a change of version
designation to the right of the decimal point, for example, version 6.0 to
version 6.1.
2.0 BINARY LICENSE RIGHTS; TERMS AND CONDITIONS
2.1 Binary License Grant. Subject to and conditioned upon Customer's
compliance with the payment obligations, limitations and restrictions set forth
in this Agreement, with respect to Software, Sun grants to Customer a personal,
non-transferrable, and nonexclusive, royalty-bearing, limited right and license
as follows:
(a) to make copies of the Software from Master Media, install those
copies in Customer's Products as part of the manufacturing process prior to
shipment, and distribute such copies as part of Customer's Products in
accordance with the terms of this Agreement;
(b) to copy Software from Master Media onto separate packaged
product storage media such as CD-ROMs ("White-CD") and distribute for use with
Customer's Product one White-CD with each Customer's Product incorporating
Software installed from Master Media;
(c) to the extent Updates are made available, to distribute
unbundled Updates to Customer's Installed Base for use only with Installed
Systems. Updates will be made available solely at Sun's discretion. Such
distributions, if any, must be made pursuant to an agreement with each End User
restricting use of the Update to Installed Systems.
2.2 Binary License Terms and Conditions. Each distribution of the Software
by Customer or its Distributors to an End-User must be made pursuant to the
unmodified terms and conditions of the BCL, including the supplemental terms and
conditions relating to the Software. It is expressly acknowledged and agreed
that in the United States and in other jurisdictions where an enforceable
copyright protection covering the Software exists, such license may be a written
agreement on or accompanying the package containing the Software media that is
fully visible to the End-User before the package is opened, that the End-User
accepts by
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EXHIBIT 10.8
opening the package and that complies with applicable law relating to agreements
of such type. In all other jurisdictions, such license must be a written
agreement signed by the End-User. Sun does not undertake to inform Customer of
the jurisdictions where such copyright protection exists. In the event the End
User, upon reading the BCL, elects to return the product as provided in the
product packaging, Customer will accept return of the Software and shall refund
the license fee to the End User.
2.3 Distribution Agreements.
(a) Prior to Customer furnishing any Software to any of its
Distributors, Customer shall obtain a signed agreement from its Distributors
substantially similar to the terms and conditions of this Agreement and
sufficient to allow protection of the intellectual property rights of Sun and
its licensors.
(b) Customer shall use commercially reasonable efforts comparable to
those it uses for its own products to monitor and enforce any agreements with
Distributors and End Users of the Software entered into by Customer or its
Distributors, and Customer shall promptly inform and consult with Sun if
Customer becomes aware of any substantial non-compliance. If a Distributor or
End User fails to fulfill any of its material obligations with respect to the
Software under such agreement, Sun may, upon its election and in addition to any
other remedies that it may have, notify Customer in writing of such breach and
require Customer to terminate all the rights granted in such agreement with
respect to the Software by thirty (30) days written notice to such Distributor
or End User specifying the breach, unless the breach is remedied within such
thirty (30) day period. In the event that Customer fails to satisfy the
foregoing obligations with regard to the Software, subject to Section 8.0
("Limitation of Liability"), Customer shall be responsible for all reasonable
costs incurred by Sun, including without limitation, attorneys' fees, in
connection with such enforcement actions undertaken by Sun. In those
jurisdictions where Sun does not have standing to bring an action in its own
name or under the intellectual property laws of such jurisdiction, Customer
shall assign those rights to Sun reasonably necessary to allow Sun to bring an
action under any legal theory available to Customer.
2.4 End User Documentation Distribution; Modification.
(a) End User Documentation Distribution. Electronic documentation is
included with Software. Customer may reprint documentation included on Master
Media only.
(b) Modification of End User Documentation. Customer may not modify
the End User Documentation.
2.5 Trademarks, Logos and Product Designs; Proprietary Notices.
(a) Customer may refer to Software by the associated Sun Trademarks
(but shall not use Suns stylization or logos except as otherwise provided in the
Trademark License Agreement that will be executed in conjunction with this
Agreement, provided that such reference is not misleading and complies with the
Sun Trademark and Logo Requirements, currently located at
xxxx://xxx.xxx.xxx/xxxxxxxx/xxxxxxxxxx. Customer shall not remove, alter, or add
to any Sun Trademarks, nor shall it co-logo Software.
(b) As between Sun and Customer, Customer acknowledges and agrees
that Sun is the sole owner of the Sun Trademarks and all associated goodwill and
intellectual property rights. Customer further agrees that any use of Sun
Trademarks by Customer shall inure to the sole benefit of Sun. Customer agrees
not to: (i) challenge Sun's ownership, use of or the validity of the On
Trademarks; (ii) attempt or register any xxxx or logo identical or substantially
similar to any Sun Trademark; (iii) remove, alter or add to any of Sun
Trademark; (iv) incorporate any of Sun Trademarks into Customer's trademarks,
product names, service marks, company names, slogans, domain names or any other
similar designations for use on or in connection with any computer and/or
internet-related hardware, software, technologies or services or any other
products or services likely to cause confusion with or dilute the Sun
Trademarks; or (v) infringe any Sun Trademark or associated intellectual
property rights. If Customer acquires any rights in any Sun Trademarks by
operation of law or otherwise, it will immediately at no expense to Sun assign
such rights to Sun along with any associated goodwill, applications, and/or
registrations.
(c) Customer is granted no right, title or license to, or interest
in, any Sun Trademarks or any name, xxxx, logo, trade dress or brand designation
of Sun and its related companies in this Agreement or
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EXHIBIT 10.8
any Attachment to this Agreement. Customer agrees to enter into and comply with
a Trademark License Agreement that it will sign with Sun. The Trademark License
Agreement shall be considered a separate agreement and not part of the terms of
this Agreement. Customer shall use the STARSUITE word xxxx, the StarSuite Logos
and the Sun Logo in strict compliance with the terms and conditions of the
Trademark License Agreement.
(d) Customer shall not delete, cover or alter, and shall maintain
Sun's trademarks, logos, proprietary rights notices and restrictive rights
legends included in and on the End User Documentation and Software. Customer
shall reproduce any proprietary rights notices of Sun and/or contributing third
parties contained in or on all copies of Software, End User Documentation,
packaging and related materials, in whole or in part, developed or made by
Customer or its Distributors. Customer shall submit its Customer Products
containing Software, End User Documentation or other materials licensed
hereunder to Sun for approval pursuant to this Section 2.5 ("Trademarks, Logos
and Product Designs; Proprietary Notices") prior to distribution, which approval
shall not be unreasonably withheld or delayed.
2.6 Intended Purpose. The intended purpose of the Software is for use on,
and as an integral component of, Customer's Products. Customer's Product
packaging for the Software shall clearly indicate this intended purpose.
Customer shall market and distribute the Software only with Customer's Product
and directly or indirectly through Customer's Distributors to End Users only if
bundled with Customer's Product. Customer and Distributors shall not distribute
the Software on a stand-alone basis.
2.7 Governmental Approvals. Customer shall, at its own expense, obtain and
arrange for the maintenance in full force and effect of all governmental
approvals, consents, licenses, authorizations, declarations, filings and
registrations as may be necessary for the performance of the terms and
conditions of the Agreement, including without limitation, fair trade approvals,
under all laws, regulations and other legal requirements within the
jurisdictions that Customer distributes the Software that apply to this
Agreement, including tax and foreign exchange legislation.
2.8 No Other Rights. Except as expressly stated herein and in the
Attachment(s) hereto, no other license, right or interest is granted to Customer
for any other purpose.
3.0 TERM AND TERMINATION
3.1 Term. This Agreement shall commence on: (i) the date of its execution
by Sun or (ii) where this Agreement will be void or Sun will be liable for a
penalty without an approval, registration, filing as referred to in Section 2.7
("Governmental Approvals"), or Sun obtaining the necessary US export license,
the date of such approval, registration, filing, or US export license, whichever
occurs later (the "Effective Date") and shall have an initial term of one (1)
year. Thereafter, this Agreement shall be automatically renewed for successive
one (1) year terms (with a maximum of two (2) subsequent terms), unless one
party notifies the other party in writing at least thirty (30) days before the
end of the then-current term stating that it wishes to terminate this Agreement;
whereupon, this Agreement shall terminate at the end of the then-current term.
3.2 Termination. If either party fails to comply with any of the material
terms and conditions of this Agreement, the other party may terminate this
Agreement upon thirty (30) days written notice to the breaching party specifying
any such breach, unless the breach specified therein has been remedied within
such thirty (30) day period. In the event of Customer's breach, Sun may
terminate this Agreement in its entirety or as to any individual Software
product.
3.3 Termination for Insolvency. Either party may terminate this Agreement
immediately in the event that the other party ceases to conduct its operations
in the normal course of business, files for or becomes the subject of a
bankruptcy petition, is placed in receivership, or attempts to assign this
Agreement to creditors or otherwise without prior written consent of the other
party.
3.4 Effect of Termination.
(a) For Breach by Customer: Upon expiration or termination of this
Agreement for breach by Customer, Customer shall discontinue issuing BCLs for
the Software, shall return all Software and Sun Confidential Information and all
copies thereof in its possession to Sun or destroy all Software and all
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EXHIBIT 10.8
copies thereof in Customer's possession and certify in writing by an officer of
Customer that such Software and all copies thereof were so destroyed.
(b) BCLs for the Software issued prior to the effective date of
termination shall continue in accordance with their terms and conditions.
Customer's obligation to pay royalties accrued prior to the termination of this
Agreement shall not terminate.
3.5 No Liability For Termination. To the full extent allowed by any
applicable law except as expressly provided in this Agreement, Customer agrees
that it shall have no rights to damages or indemnification of any nature due to
any expiration or rightful termination of this Agreement by Sun pursuant to its
terms. The foregoing restriction shall include without limitation, commercial
severance pay whether by way of loss of future profits, expenditure for
promotion of the Software, payment for goodwill generated or other commitments
made in connection with the business contemplated by this Agreement or other
similar matters. Customer will not be entitled under local law or otherwise to
receive any payment from Sun, whether for actual, consequential, indirect,
special or incidental damages, costs or expenses, whether foreseeable or
unforeseeable, any right to which Customer hereby waives and disclaims. Customer
EXPRESSLY WAIVES AND RENOUNCES ANY CLAIM TO COMPENSATION OR INDEMNITIES FOR ANY
TERMINATION OF BUSINESS RELATIONSHIP BY A FOREIGN BUSINESS ENTITY, WHICH MAY
EXIST UNDER THE LAWS OF ANY APPLICABLE JURISDICTION.
3.6 Survival. Rights and obligations under this Agreement which by their
nature should survive, will remain in effect after termination or expiration
hereof.
4.0 PAYMENTS; TAXES; ACTIVITY LEVEL
4.1 Payment Terms. Except as otherwise specified in the Attachments
hereto, and in consideration of the rights granted to Customer hereunder,
Customer shall pay to Sun the royalties for each Royalty Bearing Event for the
applicable Software licensed or distributed by Customer on a quarterly basis
within thirty (30) days following the end of the preceding calendar quarter,
accompanied by a report pursuant to Section 5.1 ("Record Keeping") below.
Software license and royalty fees are set forth on the Sun Price List. To the
extent that Customer orders any Software or other products from Sun or Sun
invoices Customer for any royalties due, Customer shall pay any amounts due to
Sun within thirty (30) days from Sun's invoice date except for royalties, which
shall always be due within thirty (30) following the end of the preceding
calendar quarter. Sun's acceptance of this Agreement and any associated order(s)
does not imply Sun's approval of an open line of credit. Credit terms are
established by Sun based in part upon Customer's financial and payment records.
Sun reserves the right to place Customer on credit hold in the event Customer's
financial condition ceases to warrant the credit terms specified above.
4.2 Taxes.
(a) Subject to Section 4.2(b), all amounts payable by Customer under
this Agreement are exclusive of any Tax, levy or similar governmental charge
that may be assessed by any jurisdiction, whether based on gross revenue, the
delivery, possession or use of the Software, the execution or performance of
this Agreement or otherwise, except for net income, net worth or franchise taxes
assessed on Sun. If, under the local law, Customer is required to withhold any
Tax on such payments, then the amount of the payment actually remitted to Sun
will be net of all Taxes. Customer will promptly furnish Sun with the official
receipt of payment of these Taxes to the appropriate taxing authority. Customer
will pay all other Taxes, levies or similar governmental charges or provide Sun
with a certificate of exemption acceptable to the taxing authority.
(b) Notwithstanding Section 4.2(a), Customer may deduct from
payments any income tax or tax of a similar nature imposed by any non-United
States government ("government income tax") on the income of Sun from such
payment and actually paid by Customer for the account of Sun. In the event that
Customer deducts any such income tax from any such payment, Customer shall
furnish Sun with evidence acceptable to Sun and to the United States Government
to sufficiently establish that such government income tax has been paid for the
account of Sun.
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EXHIBIT 10.8
4.3 Updates. The fees specified in this Agreement are for the
then-current release of the Software and any Updates. It is within Sun's sole
discretion to release and/or distribute Updates to Customer. Sun shall have the
right, at its sole discretion and without incurring any liability to Customer,
to modify the Software or discontinue its development, manufacture, sale or
support and will provide Customer with sixty (60) days prior notice. Such change
shall not require Customer's approval.
4.4 Price Changes. Sun reserves the right to change the Price List,
discount schedule and/or royalties for any Software at any time. In the event of
a price increase, Sun shall provide Customer with thirty (30) days prior notice.
Such change shall not require Customer's approval. If, during the term of this
Agreement, Sun decreases the royalty rate for any Software(s), all orders for
such Software(s) scheduled for shipment or in transit to Customer at the time of
such notice shall be adjusted to the decreased royalty rate.
4.5 Customer's Products. Customer shall list in its revenue reports
to Sun pursuant to Section 5.0 ("Records; Audit Requirement; Forecast") of the
Agreement, Customer's Products shipped in conjunction or associated with the
Software hereunder.
5.0 RECORDS; AUDIT REQUIREMENTS; FORECAST
5.1 Record Keeping. Customer shall maintain for a three (3) year period
revenue records sufficient to determine that Customer is in compliance with the
terms and conditions of this Agreement. Customer shall provide to Sun along with
any payments specified hereunder, quarterly revenue reports, in the English
language which shall include, at a minimum, the following information: (i) the
Names of Software products; (ii) Customer's Product names; (iii) the number of
units of each type of Customer's Product shipped with the Software; (iv) the
number of Customer's Product units forecasted to be shipped for the next six (6)
months; (v) the number of units of Customers Product that were returned to
Customer for the reporting period for which Customer is entitled to a credit;
and (vi) the royalty amounts due Sun. For any quarter in which no royalties are
paid, Licensee will submit a report so indicating, along with any of the
applicable above information. Royalty reports and payments should be sent to the
address set forth above unless otherwise indicated by Sun in writing.
5.2 Audit Requirements. The following audit provision shall continue
throughout the term of this Agreement and shall survive the termination of this
Agreement insofar as applicable to obligations accrued prior to such
termination.
(a) Right to Audit. Sun shall have the right to audit the records
and accounts of Customer required to be kept in accordance with this Agreement.
The auditor shall be adequately bound to keep confidential all Confidential
Information of Customer learned during the course of or pursuant to the audit.
Any such audit shall be performed only during Customer's normal business hours,
no more frequently than once per calendar year (but more frequently and at Sun's
discretion if irregularities are found), and shall be performed in such a manner
as to avoid unreasonable interference with Customer's business operations; and
the auditor shall be limited to reporting the adequacy of Customer's records and
accounts, including, but not limited to, whether Customer is in compliance with
the terns of this Agreement and the amount, if any, of underpayment or
overpayment of the amounts due Sun pursuant to this Agreement. Except as
expressly provided in Section 5.2(b) ("Errors In Payment"), Sun shall bear all
costs and expenses associated with the exercise of its right to audit.
(b) Errors in Payment. In the event that any errors in payment shall
be determined, such errors shall be corrected by appropriate adjustment in
payment (plus interest at one and one-half percent (1-1/2%) per month or the
highest rate permitted by law) for the quarterly period during which the error
is discovered. In the event of underpayment of more than five percent (5%) of
the amount due for that period (i) Customer shall reimburse Sun for the
reasonable charges of the audit that identified the underpayments, and (ii) Sun
shall have the right to conduct additional audits, at its sole discretion; in
ninety (90) day intervals until Customer becomes fully compliant with the terms
and conditions of this Agreement.
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EXHIBIT 10.8
6.0 CONFIDENTIAL INFORMATION
Customer may not disclose Sun's Confidential Information and may use it only for
purposes specifically contemplated in this Agreement. Sun will treat Customers
Confidential Information with the same degree of care as it does its own similar
information. The foregoing obligations do not apply to information which: (i) is
rightfully obtained by recipient without an obligation to maintain its
confidentiality; (ii) is or becomes generally known to the public through no act
or omission of recipient, or (iii) is independently developed by recipient
without use of the other party's Confidential Information. This Section 6.0
("Confidential Information") will not affect any other confidential disclosure
agreement between the parties.
7.0 WARRANTIES
7.1 Customer's Limited Warranty: Sun warrants that for a period of ninety
(90) days from the date of delivery to Customer that the media on which the
Software is furnished will be free of defects in materials and workmanship under
normal use. Except for the foregoing, to the full extent allowed by applicable
law, the Software is provided "AS IS" and without warranty of any kind.
Customer's exclusive remedy and Sun's entire liability under this limited
warranty will be at Sun's option to repair or replace the defective media.
7.2 Nuclear Applications. Software is not designed or intended for use in
the design, construction, operation or maintenance of any nuclear facility. SUN
DISCLAIMS ANY EXPRESS OR IMPLIED WARRANTY OF FITNESS FOR SUCH USES.
7.3 No Other Warranties. UNLESS SPECIFIED IN THIS AGREEMENT, ALL EXPRESS
OR IMPLIED CONDITIONS, REPRESENTATIONS AND WARRANTIES, INCLUDING ANY IMPLIED
WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR
NON-INFRINGEMENT, ARE DISCLAIMED, EXCEPT TO THE EXTENT THAT SUCH DISCLAIMERS ARE
HELD TO BE LEGALLY INVALID.
8.0 LIMITATION OF LIABILITY
TO THE FULL EXTENT ALLOWED BY ANY APPLICABLE LAW, AND EXCEPT FOR OBLIGATIONS TO
DEFEND UNDER SECTION 9.0 ("INTELLECTUAL PROPERTY CLAIMS") OF THIS AGREEMENT,
EACH PARTY'S LIABILITY TO THE OTHER FOR CLAIMS RELATING TO THIS AGREEMENT,
WHETHER FOR BREACH OR IN TORT, SHALL BE LIMITED TO THE AMOUNT OF ACCRUED
ROYALTIES PAYABLE TO SUN FOR ALL COPIES LICENSED HEREUNDER FOR THE PARTICULAR
SOFTWARE GIVING RISE TO SUCH CLAIM, IF ANY. THE FOREGOING LIMITATION DOES ~T
REDUCE CUSTOMER'S OBLIGATION TO PAY SUN THE LICENSE FEES DUE AND OWING FOR THE
SOFTWARE. NO EVENT WILL EITHER PARTY BE LIABLE FOR ANY INDIRECT, PUNITIVE,
SPECIAL, INCIDENTAL OR NSEQUENTIAL DAMAGES IN CONNECTION WITH OR ARISING OUT OF
THIS AGREEMENT (INCLUDING WITHOUT LIMITATION, LOSS OF PROFITS, USE, DATA, OR
OTHER ECONOMIC ADVANTAGE), HOWEVER IT ARISES, WHETHER FOR BREACH OF THIS
AGREEMENT, INCLUDING, BUT NOT LIMITED TO, BREACH OF WARRANTY, OR IN TORT, EVEN
IF THAT PARTY HAS BEEN PREVIOUSLY ADVISED OF THE POSSIBILITY OF SUCH DAMAGE, AND
WHETHER OR NOT SUCH DAMAGES ARE FORESEEABLE. THE FOREGOING LIMITATION OF
LIABILITY OF CUSTOMER TO SUN SHALL NOT APPLY IF CUSTOMER'S ACTIONS OR INACTION
RESULT IN THE UNAUTHORIZED DISCLOSURE, DISTRIBUTION OR USE OF THE SOFTWARE OR
SUN'S CONFIDENTIAL INFORMATION.
9.0 INTELLECTUAL PROPERTY CLAIMS
9.1 Sun shall defend at its own expense and, in addition, shall indemnify
Customer from damages, liabilities, costs and expenses actually awarded against
Customer up to the amount stated in Section 8.0 ("Limitation of Liability"), as
a result of any final judgment against Customer in which it is determined that
the marketing or use of any Sun written code within the Software infringe Berne
Convention copyrights of third parties in any country where Sun has a
subsidiary. In the event Sun elects to avoid litigation relating to
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EXHIBIT 10.8
the foregoing and settle any such claims, Sun will pay the settlement amount and
obtain a release as to all such claims against Customer.
9.2 Customer shall defend at its expense without limitation and, in
addition, shall indemnify Sun from damages, liabilities, costs and expenses
actually awarded against Sun up to the amount stated in Section 8.0 ("Limitation
of Liability"), as a result of actions or omissions set forth in Section 9.5 (i)
through (iv). In the event Customer elects to avoid litigation relating to the
foregoing and settle any such claims, Customer will pay the settlement amount
and obtain a release as to all such claims against Sun.
9.3 The indemnification obligations set forth in Sections 9.1 and 9.2
above shall be conditioned upon the indemnified party (i) notifying the
indemnifying party within thirty (30) days of notice of a claim of infringement;
(ii) providing full cooperation and assistance to the indemnifying party at the
indemnifying party's expense; and (iii) providing the indemnifying party full
authority to manage the defense or settlement of the claim.
9.4 Should Software become or, in Sun's opinion, be likely to become the
subject of a claim of infringement for which indemnification obligations would
apply according to Section 9.1 above, Sun, at its option may (i) at no
additional cost to Customer, procure for Customer the right to continue to use
the Software, (ii) at no additional cost to Customer, replace or modify the
Software to make such Software non-infringing, provided that substantially
similar functionality and performance is obtained with the replacement or
modified Software, or (iii) if the right to continue to use cannot be procured
under commercially reasonable terms, or such Software cannot be replaced or
modified within a commercially reasonable time and at a commercially reasonable
expense, terminate the license to use such Software and refund to Customer over
five (5) years in equal monthly payments the amounts that Customer refunds to
its customers for such Software due to the claim of infringement, up to the
total amounts actually paid by Customer to Sun under this Agreement for such
Software. Sun's performance of (i), (ii) or (iii) above shall be Customer's sole
and exclusive remedies.
9.5 Notwithstanding the foregoing, Sun shall have no obligation to
indemnify and defend Customer or to pay costs, damages or attorneys' fees for
any claim based upon (i) the combination, operation, or use by Customer of
Software with other equipment, code, programs or data not supplied by Sun if
such infringement would have been avoided but for the combination, operation or
use of the Software with other equipment, code, programs or data; or (ii) use by
Customer of other than the then-latest version of the Software, if such
infringement could have been avoided by the use of the latest version of the
Software and such latest version had been made available to Customer; or (iii)
modifications by Customer of the Software in the event such infringement is
caused by such modifications; or (iv) use by Customer outside the scope of the
granted license(s).
10.0 MAINTENANCE AND SUPPORT
Sun shall provide technical assistance (as provided in Section 1.21) to End
Users. Customer shall distribute the Technical Support Entitlement with
Customer's Product to End Users.
11.0 GOVERNMENT CONTRACTS
11.1 U.S. Governments
(a) If Software is being acquired by or on behalf of the U.S.
Government or by a U.S. Government prime contractor or subcontractor (at any
tier), then the Government's rights in Software and accompanying documentation
will be only as set forth in this Agreement; this is in accordance with 48 CFR
227.7201 through 227.7202-4 (for Department of Defense (DOD) acquisitions) and
with 48 CFR 2.101 and 12.212 (for non-DOD acquisitions). Customer is responsible
for ensuring that proper notice is given to all such third parties and that the
Software and technical data are properly marked. Customer shall indemnify Sun
for any claims or damages arising from any claim by the U.S. Government to more
than Restricted Rights in and to the Software product(s) resulting from
Customer's failure to provide a Restricted Rights legend as required herein. Any
failure by Sun to affix a Restricted Rights legend on the Software product(s)
shall not be deemed to constitute a waiver of any limitation on Customer's
rights imposed by this Agreement.
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EXHIBIT 10.8
(b) Under no circumstances shall Sun be obligated to comply with any
requirements imposed by the U.S. Government regarding submission of or the
request for exemption from submission of cost or pricing data or cost accounting
requirements for any distribution or license of Software that would require
compliance by Sun with U.S. Governmental requirements relating to cost or
pricing data or cost accounting requirements.
11.2 Other Sovereign Governments
At its own cost and expense, Customer and its Distributors will take all
necessary steps in making proposals and agreements with sovereign governments
other than the U.S. Government which involve Software and End User Documentation
to ensure that Sun's proprietary rights in Software and End User Documentation
receive the reasonably necessary protection available from such foreign
governments for commercial computer software and related documentation developed
at private expense.
12.0 MISCELLANEOUS
12.1 Force Majeure. A party is not liable under this Agreement for
non-performance caused by events or conditions beyond that party's control if
the party makes reasonable efforts to perform. This provision does not relieve
Customer of its obligation to make payments then owing.
12.2 Severability. In the event that any part of this Agreement is held to
be unenforceable, in whole or in part, such holding will not affect the validity
of the other parts of this Agreement, unless Sun deems the unenforceable part to
be essential to this Agreement, in which case Sun may terminate this Agreement,
effective immediately upon notice to Customer.
12.3 Relationship of the Parties. This Agreement is not intended to create
a relationship such as a partnership, franchise, joint venture, agency, or
employment relationship. Neither party may act in a manner which expresses or
implies a relationship other than that of independent contractor, nor bind the
other party.
12.4 Governing Law. Any action related to this Agreement will be governed
by California law and controlling U.S. federal law. No choice of law rules of
any jurisdiction will apply.
12.5 Import and Export Laws. All Software and technical data delivered
under this Agreement are subject to U.S. export control laws and may be subject
to export or import regulations in other countries. Customer agrees to comply
strictly with all such laws and regulations and acknowledges that it has the
responsibility to obtain such licenses to export, re-export or import as may be
required after delivery to Customer.
12.6 Assignment. Neither party may assign or otherwise transfer any of its
rights or obligations under this Agreement, without the prior written consent of
the other party, except that Sun may assign its right to payment and may assign
this Agreement to an affiliated company.
12.7 Change of Control. In the event of the direct or indirect taking over
or assumption of control of Customer or of substantially all of its assets by
any government, governmental agency or other third party, Sun may terminate this
Agreement upon written notice to Customer.
12.8 Notices. All written notices required by this Agreement must be
delivered in person or by means evidenced by a delivery receipt and will be
effective upon receipt.
12.9 Waiver or Delay. Any express waiver or failure to exercise promptly
any right under this Agreement will not create a continuing waiver or any
expectation of non-enforcement. To be enforceable, a waiver must be in writing
and signed by the waiving party.
12.10 No Rights in Third Parties. This Agreement is made for the benefit
of the parties hereto, and not for the benefit of any third parties unless
otherwise stated herein or agreed to by the parties.
12.11 Counterparts. This Agreement may be executed in one or more
counterparts, each of which will be deemed an original, but all of which will
constitute but one and the same instrument.
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EXHIBIT 10.8
12.12 Headings. The headings and captions used in this Agreement are used
for convenience only and are not to be considered in construing or interpreting
this Agreement.
12.13 Construction. This Agreement has been negotiated by the parties
hereto and by their respective counsel. This Agreement will be fairly
interpreted in accordance with its terms and without any strict construction in
favor of or against either party. The original of this Agreement has been
written in English, and such version shall be the governing version of the
Agreement. To the extent allowed under applicable law, Customer waives any right
it may have, if any, under any law or regulation to have this Agreement written
in a language other than English.
12.14 Orders. This Agreement does not constitute an order for Software,
but rather a commitment to order Software as set forth in the Attachments
hereto. Purchase orders for Software shall be submitted to Sun by Customer
pursuant to the terms of this Agreement. Any terms or conditions set forth on
any purchase order, check, or other document of Customer shall have no force or
effect whatsoever. Customer further acknowledges that it does not take title to
the Software, with the exception of the media, but rather licenses the Software
pursuant to the terms and conditions of this Agreement.
12.15 Deliveries. Software and Documentation shall be delivered F.O.B.
Sun's designated shipping facility unless otherwise agreed to by the parties in
writing. Title to the Software media, but not to the Software and its associated
intellectual property rights, shall pass to Customer at that time. Sun may make
partial deliveries and such deliveries will not relieve Customer of its
obligation to accept the remainder of that order in whole or in part. Sun may
allocate Software to fairly accommodate orders received by Sun from all
customers at any time demand exceeds the available supply.
12.16 Equitable Relief. Because the licenses granted under this Agreement
are personal and unique, and because Customer will have access to and become
acquainted with confidential and proprietary information of Sun, the
unauthorized use or disclosure of which would cause irreparable harm and
significant injury which would be difficult to ascertain and which would not be
compensable by damages alone, both parties agree that, in addition to any and
all legal remedies available to Sun for Customer's breach of this Agreement, Sun
shall be entitled to avail itself of actions against Customer and/or third
parties for seizure and injunctive relief. If an unauthorized use or disclosure
occurs, Customer will promptly notify Sun and take, at Customer's expense, all
steps which are necessary to recover the Software and to prevent its subsequent
unauthorized use or dissemination.
12.17 Entire Agreement. This Agreement is the parties' entire agreement
relating to its subject matter. It supersedes all prior and contemporaneous oral
or written communications, proposals, conditions, representations and warranties
and prevails over any conflicting or additional terms of any quote, order,
acknowledgment, or other communication between the parties relating to its
subject matter during the term of this Agreement. No modification to this
Agreement will be binding, unless in writing and signed by an authorized
representative of each party.
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EXHIBIT 10.8
ATTACHMENT 1
AGREEMENT DETAILS
1. SOFTWARE PRODUCT VERSION & LANGUAGES: StarSuite software version 6.0 * in
English, German, French, Italian, Swedish, Spanish.
*If and when Sun Makes a Portuguese edition of version 6.0 of the Software
generally commercially available, Customer may distribute such edition pursuant
to the terms of this Agreement. Customer understands and agrees that Sun is
under no obligation to make such a Portuguese edition available, and that Sun
may never make such and edition generally commercially available.
2. CUSTOMER'S PRODUCT(S) THAT WILL INCLUDE STARSUITE 6.0: Lindows OS [***],
Customer's Linux operating system.
3. DISTRIBUTION TERRITORY(S): THE STARSUITE SOFTWARE AND CUSTOMER MARKETING
COLLATERAL CONTAINING THE LICENSED TRADEMARKS MUST BE DISTRIBUTED OR MARKETED
SOLELY IN JAPAN, PRC (EXCLUDING HONG KONG), TAIWAN OR KOREA.
4. DISTRIBUTION TERRITORY LIMITATIONS: THE STARSUITE SOFTWARE AND CUSTOMER
MARKETING COLLATERAL CONTAINING THE LICENSED TRADEMARKS MUST BE DISTRIBUTED OR
MARKETED SOLELY IN JAPAN, PRC (EXCLUDING HONG KONG), TAIWAN OR KOREA. A SEPARATE
AND SPECIFIC PRODUCT ("STAROFFICE") IS AVAILABLE FOR DISTRIBUTION IN TERRITORIES
OUTSIDE OF THESE AREAS UNDER A SEPARATE AGREEMENT THROUGH THE STAROFFICE
BUSINESS GROUP.
5. SINGLE USER LICENSE AND END USER SUPPORT: Each StarSuite Software unit is a
single user license (please refer to the End User Binary Code License for more
detail). Each single user license includes a Technical Support Entitlement which
entitles the End User licensee to receive technical assistance as provided in
Section 1.21. Sun will provide technical assistance program details.
6. DISTRIBUTION OPTIONS: Customer is authorized to distribute Software via one
or more of the following models only
A. SOFTWARE OEMS: Customer must market and distribute the Software, in
binary form, by bundling it with Customer's Product and reproducing the Software
on CDs that shall be distributed with Customer's Product. Customer (at its own
expense) must produce and distribute the CDs containing the StarSuite Software
as a value-add component of Customer's Product only, and shall not distribute
the StarSuite Software as a stand-alone product. Customer is prohibited from
distributing StarSuite Software as part of any publication of any kind (books,
magazines, etc.) without prior written permission from Sun. References to
Sun-approved CD producers are available upon request. Customer agrees to
distribute one (1) Technical Support Entitlement with each Software unit
distributed.
B. HARDWARE OEM PRE-INSTALLS: Software shall be pre-installed on
Customer's Product, and a shortcut visible to End User will be placed on the
desktop upon initial activation and remain visible unless uninstalled by End
User. Customer may elect to include a CD containing the Software in binary form
for the sole purpose of providing a back-up CD to End User. Under this scenario,
separate instances of the Software (pre-install and on back-up CD) count as a
single unit for royalty calculation purposes. Customer will distribute one (1)
Technical Support Entitlement with each Software unit distributed.
C. SUB-LICENSING TO HARDWARE MANUFACTURERS: Customer may resell Software
only to third party computer hardware manufacturers, and only if the Software is
bundled with Customer's Product. Customer must maintain accurate records of all
Software units distributed to third parties, and Customer will pay royalties for
such units based on Customer's current royalty rate as set forth in the Price
List. Customer is
Page 13 of 17
EXHIBIT 10.8
responsible for ensuring that computer hardware manufacturers who obtain
Software from Customer for further distribution, fully comply with the trademark
usage standards set forth in Section 5 of the Trademark License Agreement, AND
pre-install Software as specified above in Section 6.B ("Hardware OEM
Pre-Installs"). Customer shall ensure that one (1) Technical Support Entitlement
is included with each Software unit distributed to sublicensees.
D. [***]
7. CUSTOMER TECHNICAL CONTACTS: [***]
8. CUSTOMER MARKETING CONTACT: [***]
9. ADDITIONAL CUSTOMER COMMITMENTS:
i. TRADEMARKS: Customer agrees to use the Sun Trademarks as specified
in the Trademark License Agreement.
ii. REFERENCES AND PRESS QUOTE SUPPORT: Customer agrees to support and
participate in a reasonable amount of Sun's press and marketing
activities relating to this Agreement including, but not limited to,
press releases, customer references, customer success stories, and
customer quotes. Customer retains final approval of press releases,
customer reference or success stories, and/or customer quotes.
Notwithstanding the foregoing, Sun at its discretion may discuss
this and other StarSuite OEM agreements with press and industry
analysts.
10. CUSTOMER DELIVERABLES:
A. QUARTERLY REPORTS: Within thirty (30) days following each quarter
end, Customer shall report to Sun the number of copies of Software
(by platform) distributed by Customer in each country in the
distribution Territory.
B. CUSTOMER MARKETING COLLATERAL & PACKAGING SAMPLES: Customer shall
provide to Sun all Customer Marketing Collateral samples and
Customer Product packaging mock-ups for approval by Sun pursuant to
the terms and conditions in the Trademark License Agreement to be
signed by the parties in conjunction with this Agreement.
C. FINAL PRODUCT SAMPLES: If Customer's Product is packaged as a retail
box, Customer shall deliver to Sun two (2) complete samples of each
boxed Customer Product that includes the Software. Customer will
deliver new boxed samples as new versions of Customer's Products are
released. In the event that Customer's Product is not packaged as a
retail box, then Customer must provide a screenshot of Customer's
Product clearly showing the pre-installed Software icon on the
desktop.
11. SUN DELIVERABLES.
A. MASTER MEDIA: Sun shall deliver Master Media to Customer following
the Effective Date of this Agreement. Customer is authorized to
distribute Software binaries duplicated from Master Media only.
B. ARTWORK/FORMAT: Sun shall make available to Customer the Licensed
Trademarks (in .eps format) relating to the StarSuite Software
following the Effective Date of this Agreement and the execution by
both parties of the Trademark License Agreement to be signed by the
parties in conjunction with this Agreement.
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EXHIBIT 10.8
C. TECHNICAL SUPPORT ENTITLEMENT: Sun shall provide Technical Support
Entitlement (at no cost) to Customer which must be distributed with
Customer's Product to End Users via printed collateral, text file
(e.g., "Read Me" file), splash screen, dialogue box, or other means
pre-approved in writing by Sun.
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EXHIBIT 10.8
ATTACHMENT 2
END USER BINARY CODE LICENSE AGREEMENT
READ THE TERMS OF THIS AGREEMENT AND ANY PROVIDED SUPPLEMENTAL LICENSE TERMS
(COLLECTIVELY "AGREEMENT") CAREFULLY BEFORE OPENING THE SOFTWARE MEDIA PACKAGE.
BY OPENING THE SOFTWARE MEDIA PACKAGE, YOU AGREE TO THE TERMS OF THIS AGREEMENT.
IF YOU ARE ACCESSING THE SOFTWARE ELECTRONICALLY, INDICATE YOUR ACCEPTANCE OF
THESE TERMS BY SELECTING THE "ACCEPT" BUTTON AT THE END OF THIS AGREEMENT. IF
YOU DO NOT AGREE TO ALL THESE TERMS, PROMPTLY RETURN THE UNUSED SOFTWARE TO YOUR
PLACE OF PURCHASE FOR A REFUND OR, IF THE SOFTWARE IS ACCESSED ELECTRONICALLY,
SELECT THE "DECLINE" BUTTON AT THE END OF THIS AGREEMENT.
1. LICENSE TO USE. Sun grants you a non-exclusive and non-transferable license
for the internal use only of the accompanying software and documentation and any
error corrections provided by Sun (collectively "Software"), by the number of
users and the class of computer hardware for which the corresponding fee has
been paid.
2. RESTRICTIONS. Software is confidential and copyrighted. Title to Software and
all associated intellectual property rights is retained by Sun and/or its
licensors. Except as specifically authorized in any Supplemental License Terms,
you may not make copies of Software, other than a single copy of Software for
archival purposes. Unless enforcement is prohibited by applicable law, you may
not modify, decompile, or reverse engineer Software. You acknowledge that
Software is not designed, licensed or intended for use in the design,
construction, operation or maintenance of any nuclear facility. Sun disclaims
any express or implied warranty of fitness for such uses. No right, title or
interest in or to any trademark, service xxxx, logo or trade name of Sun or its
licensors is granted under this Agreement.
3. LIMITED WARRANTY. Sun warrants to you that for a period of ninety (90) days
from the date of purchase, as evidenced by a copy of the receipt, the media on
which Software is furnished (if any) will be free of defects in materials and
workmanship under normal use. Except for the foregoing, Software is provided "AS
IS". Your exclusive remedy and Sun's entire liability under this limited
warranty will be at Sun's option to replace Software media or refund the fee
paid for Software.
4. DISCLAIMER OF WARRANTY. UNLESS SPECIFIED IN THIS AGREEMENT, ALL EXPRESS OR
IMPLIED CONDITIONS, REPRESENTATIONS AND WARRANTIES, INCLUDING ANY IMPLIED
WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE OR
NON-INFRINGEMENT ARE DISCLAIMED, EXCEPT TO THE EXTENT THAT THESE DISCLAIMERS ARE
HELD TO BE LEGALLY INVALID.
5. LIMITATION OF LIABILITY. TO THE EXTENT NOT PROHIBITED BY LAW, IN NO EVENT
WILL SUN OR ITS LICENSORS BE LIABLE FOR ANY LOST REVENUE, PROFIT OR DATA, OR FOR
SPECIAL, INDIRECT, CONSEQUENTIAL, INCIDENTAL OR PUNITIVE DAMAGES, HOWEVER CAUSED
REGARDLESS OF THE THEORY OF LIABILITY, ARISING OUT OF OR RELATED TO THE USE OF
OR INABILITY TO USE SOFTWARE, EVEN IF SUN HAS BEEN ADVISED OF THE POSSIBILITY OF
SUCH DAMAGES. In no event will Sun's liability to you, whether in contract, tort
(including negligence), or otherwise, exceed the amount paid by you for Software
under this Agreement. The foregoing limitations will apply even if the above
stated warranty fails of its essential purpose.
6. Termination. This Agreement is effective until terminated. You may terminate
this Agreement at any time by destroying all copies of Software. This Agreement
will terminate immediately without notice
Page 16 of 17
EXHIBIT 10.8
from Sun if you fail to comply with any provision of this Agreement. Upon
Termination, you must destroy all copies of Software.
7. Export Regulations. All Software and technical data delivered under this
Agreement are subject to US export control laws and may be subject to export or
import regulations in other countries. You agree to comply strictly with all
such laws and regulations and acknowledge that you have the responsibility to
obtain such licenses to export, re-export, or import as may be required after
delivery to you.
8. U.S. Government Restricted Rights. If Software is being acquired by or on
behalf of the U.S. Government or by a U.S. Government prime contractor or
subcontractor (at any tier), then the Government's rights in Software and
accompanying documentation will be only as set forth in this Agreement; this is
in accordance with 48 CFR 227.7201 through 227.7202-4 (for Department of Defense
(DOD) acquisitions) and with 48 CFR 2.101 and 12.212 (for non-DOD acquisitions).
9 Governing Law. Any action related to this Agreement will be governed by
California law and controlling U.S. federal law. No choice of law rules of any
jurisdiction will apply.
10. Severability. If any provision of this Agreement is held to be
unenforceable, this Agreement will remain in effect with the provision omitted,
unless omission would frustrate the intent of the parties, in which case this
Agreement will immediately terminate.
11. Integration. This Agreement is the entire agreement between you and Sun
relating to its subject matter. It supersedes all prior or contemporaneous oral
or written communications, proposals, representations and warranties and
prevails over any conflicting or additional terms of any quote, order,
acknowledgment, or other communication between the parties relating to its
subject matter during the term of this Agreement. No modification of this
Agreement will be binding, unless in writing and signed by an authorized
representative of each party.
STARSUITE, VERSION 6.0 SUPPLEMENTAL LICENSE TERMS
These supplemental license terms ("Supplemental Terms") add to or modify the
terms of the Binary Code License Agreement (collectively, the "Agreement").
Capitalized terms not defined in these Supplemental Terms shall have the same
meanings ascribed to them in the Agreement. These Supplemental Terms shall
supersede any inconsistent or conflicting terms in the Agreement, or in any
license contained within the Software.
1. SOFTWARE LICENSE TO USE. Subject to the terms and conditions of this
Agreement, Sun grants you a non-exclusive, nontransferable, limited license to
use up to five (5) complete and unmodified copies of the binary form of the
Software installed only on computers that you operate.
2. LINUX END USER LICENSE TO USE. Subject to the terms and conditions of this
Agreement, if you are a Linux operating system end user and you received the
Software as part of a Linux operating system bundle, Sun grants you a
non-exclusive and non-transferable license for the internal use only of the
accompanying unmodified binary form of the Software.
3. EDUCATIONAL INSTITUTION LICENSE TO USE. Subject to the terms and conditions
of this Agreement, if you are an educational institution, Sun grants you a
non-exclusive and non-transferable license for the internal use only of the
accompanying unmodified binary form of the Software. In this situation "internal
use" means that your enrolled students, faculty and staff may use the Software.
4. FONT SOFTWARE. The Software contains font software which generates typeface
designs ("Font Software"). You may not separate the Font Software from the
Software. You may not alter Font Software for the purpose of adding any
functionality which such Font Software did not have when delivered to you as
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EXHIBIT 10.8
part of the Software. You may not embed Font Software into a document which is
distributed as a commercial product in exchange for a fee or other consideration
(For example, End-Users shall not embed Font Software into an electronic book
that is offered to the public for a fee).
5. TRADEMARKS AND LOGOS. You acknowledge and agree as between you and Sun that
Sun owns the SUN-based, STARSUITEbased, SOLARIS-based, JAVA-based, JINI-based,
FORTE-based, iPLANET-based brand designations (including without limitation
names, marks, logos and trade dress) ("Sun Marks"), and you agree to comply with
the Sun Trademark and Logo Usage Requirements currently located at
xxxx://xxx.xxx.xxx/xxxxxxxx/xxxxxxxxxx. Any use you make of the Sun Marks inures
to Sun's benefit. These Supplemental License Terms do not grant the right to use
any Sun logos or trade dress, and the Sun Trademark and Logo Usage Requirements
do not permit any use of any Sun logos or trade dress without written permission
or license from Sun.
6. SOURCE CODE. Software may contain source code that is provided solely for
reference purposes pursuant to the terms of this Agreement. Source code may not
be redistributed unless expressly provided for in this Agreement.
7. TERMINATION FOR INFRINGEMENT. Either party may terminate this Agreement
immediately should any Software become, or in either party's opinion be likely
to become, the subject of a claim of infringement of any intellectual property
right.
8. LIMITED WARRANTY. Any implied warranties on the Software are limited to 90
days. Some states do not allow limitations on duration of an implied warranty,
so the above may not apply to you. This limited warranty gives you specific
legal rights. You may have others, which vary from state to state.
9. LIMITATION OF LIABILITY. Some states do not allow the exclusion of incidental
or consequential damages, so some of the terms of Section 5, Limitation of
Liability, above may not be applicable to you.
10. JAVA TECHNOLOGY RESTRICTIONS. You may not modify the Java Platform Interface
("JPI", identified as classes contained within the "Java" package or any
subpackages of the "Java" package), by creating additional classes within the
JPI or otherwise causing the addition to or modification of the classes in the
JPI. In the event that you create an additional class and associated API(s)
which (i) extends the functionality of the Java platform, and (ii) is exposed to
third party software developers for the purpose of developing additional
software which invokes such additional API, you must promptly publish broadly an
accurate specification for such API for free use by all developers. You may not
create, or authorize your licensees to create, additional classes, interfaces,
or subpackages are in any way identified as "Java", "javax", "sun" or similar
convention as specified by Sun in any naming convention designation. Refer to
the appropriate version of the Java Runtime Environment binary code license
(currently located at xxxx://xxx.xxxx.xxx.xxx/xxx/xxxxx.xxx]) for the
availability of runtime code which may be distributed with Java applets and
applications.
For inquiries please contact: Sun Microsystems, Inc., 0000 Xxxxxxx Xxxxxx,
Xxxxxxxxxx 00000
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