Exhibit 10.12
*** 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
LINDOWSOS(TM) CD BUNDLING AND DISTRIBUTION AGREEMENT
This LindowsOS(TM)CD Bundling and Distribution Agreement (the
"Agreement") is entered into as of January, 1st, 2004 (the "Effective Date"), by
and between Xxxxxxx.xxx, Inc. ("Xxxxxxx.xxx"), a Delaware corporation with its
principal office located at 0000 Xxxxxxx Xxxxx, Xxx Xxxxx, XX 00000, Telephone:
000-000-0000, Facsimile: 000-000-0000, email: xxxxxxxx@xxxxxxx.xxx, and Albatron
Technology Co., Ltd., a Taiwan corporation, with its principal office located at
0X, Xx. 000, Xxxxx Xxxxx Xx., Xxxxx-Xx Xxxx, Xxxxxx Xxxxx, Xxxxxx, Telephone:
x000-00000-0000 Fax: x000-00000-0000 ("Licensee").
WHEREAS, Xxxxxxx.xxx desires to license to Licensee and Licensee
desires to receive a license for Licensee to distribute the Software bundled
with certain of Licensee's products subject to the terms and conditions hereof;
NOW, THEREFORE, in consideration of the foregoing, and in reliance on
the mutual agreements contained herein, the parties hereby agree as follows:
1. DEFINITIONS. All definitions herein or elsewhere in this Agreement
shall apply both to the singular and plural forms, as the context may require.
1.1 "Product" means one copy of the Software installed on a CD-ROM
disk bundled and packaged together with a single unit of a Licensee Product to
create an integrated single product, all as provided herein.
1.2 "Computer" means a new, or refurbished by or for a System
Builder, personal desktop computer, laptop computer, notebook computer, or
server computer.
1.3 "End-User" means an individual or organization that acquires a
Product for personal and/or internal business use and not for reselling or
distribution.
1.4 "Licensee Product" means a product manufactured by or for the
benefit and account of Licensee and specified on Exhibit B.
1.5 "Xxxxxxx.xxx Branding Features" means Xxxxxxx.xxx's
proprietary trade names, trade dress, service marks, trademarks, logos, and
indicia of origin and other distinctive branding features specified in Exhibit A
hereto.
1.6 "Software" means certain computer programs including the
LindowsOS(TM) and related documentation and interface specifications developed,
owned, licensed, otherwise controlled, and/or distributed by Xxxxxxx.xxx, as
more specifically set forth at the website xxxx://xxx.xxxxxxx.xxx/00 or any
successor website thereto, and any Updates to the foregoing.
1.7 "Master Disk" means a master disk image of the Software as
made available to Licensee by electronic download at xxxx://xxxxxxx.xxxxxxx.xxx
or any successor website thereto.
1.8 "Proprietary Rights" means any and all rights, whether
registered or unregistered, in, and with respect to, patents, copyrights,
confidential information, know-how, trade secrets, moral rights, contract or
licensing rights, confidential and proprietary information protected under
contract or otherwise under law, trademarks, trade names, trade dress, logos,
service marks, rights in and to animated characters and domain names, and all
other intellectual or industrial property throughout the world.
1.9 "Reseller" means a person or entity that distributes Products
directly or through other Resellers to End-Users, Products directly or through
other Resellers to System Builders, or Products integrated into Computers
directly or through other Resellers to End-Users.
1.10 "System Builder" means a third party that manufactures itself
or has manufactured for its benefit and account Computers.
1.11 "Update" means a new version, new release, upgrade, update,
bug fix, patch, work around, or other enhancement, modification, or revision of
the Software that is designated as such by Xxxxxxx.xxx, made available by
Xxxxxxx.xxx at the Xxxxxxx.xxx Builder website xxxx://xxxxxxx.xxxxxxx.xxx or any
successor website thereto, and provided by Xxxxxxx.xxx to Licensee pursuant to
this Agreement.
2. LICENSE.
2.1 GRANT. Subject to the restrictions set forth in Sections 2.2,
3, 4 and 5 below and the other terms and conditions of this Agreement,
Xxxxxxx.xxx hereby grants to Licensee a worldwide (except to the extent
prohibited or restricted by Section 3.5 below), non-exclusive, nontransferable,
nonsublicensable, limited right and license solely (a) to use the Master Disk
provided by Xxxxxxx.xxx solely to install a single copy per CD-ROM disk of the
Software in object code form only, and pursuant to the specifications and
instructions provided from time to time by Xxxxxxx.xxx at
xxxx://xxx.xxxxxxx.xxx/xxxxxxxx or any successor website thereto, on a CD-ROM
disk; (b) to bundle and package together the Software as installed on such
CD-ROM disk with Licensee Products to create Products; (c) to distribute the
Software as installed on such CD-ROM disk only as an integrated part of a
Product to Resellers and System Builders with a Reseller and Builder Agreement
(as defined in Section 3.3 below) and End-Users with a Xxxxxxx.xxx XXXX (as
defined in Section 3.3 below); and (d) to publicly display Xxxxxxx.xxx Branding
Features pursuant to Xxxxxxx.xxx's Trademark Guidelines attached hereto as
Exhibit A solely on Products and to promote and market Products ((a) through
(d), individually and collectively, the "License"). The foregoing License does
not include the right for Licensee to have its rights exercised by a third party
for its benefit and account or on any other basis.
2.2 RESTRICTIONS. Subject to Section 3.6 below, Licensee shall
not: (a) copy, reproduce, distribute or otherwise make available the Master Disk
or any Software or any portion or element thereof except as and to the extent
expressly authorized herein and by Xxxxxxx.xxx; (b) translate, adapt, enhance,
create derivative works of or otherwise modify the Master Disk or any Software,
except as expressly set forth in Section 2.1 above, (c) decompile, disassemble
or reverse engineer (except as and to the extent permitted by applicable local
law), or extract ideas, algorithms, procedures, workflows or hierarchies from,
the Master Disk, the Software, Xxxxxxx.xxx's Confidential Information, or any
portion or element of any of the foregoing, (d) use the Master Disk or the
Software or any portion or element thereof to provide facility management,
service bureau or similar services to third parties; or (e) reproduce or use in
any manner (except solely as and to the extent expressly authorized under
Section 2.1(d) above), or remove, destroy, obscure or alter any Xxxxxxx.xxx
Branding Features or any related materials placed on or contained within the
Master Disk, the Software, Xxxxxxx.xxx's Confidential Information, or any
portion or element of any of the foregoing. The foregoing restrictions on
reverse engineering shall not apply only to the extent reverse engineering is
explicitly permitted by mandatory provisions of applicable national legislation,
the provisions of which legislation do not permit the prohibition by contract of
such reverse engineering, subject to the following: In countries where mandatory
provisions of national legislation permit certain limited reverse engineering
for interoperability purposes, if Licensee believes that
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Licensee requires information related to the interoperability of the Software
with other programs, Licensee shall not reverse engineer the Software to obtain
such information but instead shall request such information from Xxxxxxx.xxx.
Upon receiving such a request from Licensee with respect to such a country,
Xxxxxxx.xxx shall reasonably determine whether Licensee requires such
information for a legitimate purpose, and, if so, Xxxxxxx.xxx shall either
itself implement such interoperability information or provide such information
to Licensee within a reasonable time and on reasonable conditions. In the case
that Xxxxxxx.xxx informs Licensee that the information will not be provided or
implemented, and if Licensee wishes to reverse engineer the Software to
ascertain, derive and/or appropriate for any reason or purpose the source code
or source listings for the Software as permitted by the mandatory provisions of
national legislation, it shall inform Xxxxxxx.xxx in writing at least fifteen
(15) days in advance. Any interoperability information supplied under this
Section 2.2 or obtained through reverse engineering permitted hereunder shall be
treated as Confidential Information under the terms of this Agreement.
3. LICENSEE DUTIES.
3.1 COMPATIBILITY TESTING. Licensee shall, and shall require in
any agreement it enters into with Resellers, System Builders, or any other third
party that such Resellers, System Builders, and any other third party shall,
test and take other commercially reasonable measures to ensure the compatibility
of the Software with Products and/or Computers and that Computers containing the
Products function correctly (as applicable).
3.2. NO CHARGE FOR SOFTWARE. Licensee shall not charge any
Reseller, System Builder, End User or other party directly or indirectly for the
Software.
3.3 BUILDER LICENSE AGREEMENT AND END USER LICENSE AGREEMENT.
Licensee shall include the LindowsOS Builder License Agreement ("Builder
Agreement") currently located at xxxx://xxx.xxxxxxx.xxx/xxxxxxxx and the
LindowsOS License Agreement ("Xxxxxxx.xxx XXXX") currently located at
xxxx://xxx.xxxxxxx.xxx/xxxxxxxx in any distribution of a Software or a Product,
whether such Product is distributed alone or installed in and as part of a
Computer. In addition, Licensee shall: (a) place and affix in a conspicuous
place on bulk and individual unit packaging for Products a notice that any use,
distribution or other disposition of the Software and a Product other than by an
End User is subject to the Builder Agreement and that any use, distribution or
other disposition of the Software and a Product by an End User is subject to the
Xxxxxxx.xxx XXXX; (b) include in all bulk and individual unit packaging for
Products the Builder Agreement as a "shrink-wrapped" or "click-wrapped" license
agreement that requires a Reseller and System Builder to view in full and
indicate assent either by opening the physical product package or by clicking on
a designated button, respectively; and (c) include the Xxxxxxx.xxx XXXX as a
"shrink-wrapped" or "click-wrapped" license agreement that requires the End User
to view in full and indicate assent either by opening the physical product
package or by clicking on a designated button, respectively.
3.4 NO WARRANTIES. Licensee shall not make any representation or
warranty binding on or purporting to bind Xxxxxxx.xxx, including but not limited
to in connection with the performance, condition, title, non-infringement,
merchantability, fitness for a particular purpose, system integration or data
accuracy of a Master Disk, Software and/or Products, and Licensee shall disclaim
all warranties implied by law and other warranties to the maximum extent
permitted by applicable law.
3.5 EXPORT COMPLIANCE. Licensee shall be responsible for complying
and shall comply strictly with all United States import and export regulations
(and any similar regulations in foreign countries), shall not export, re-export,
divert or transfer, directly or indirectly, to any country (or any national or
resident of such country) that is embargoed by U.S. Export Administration
Regulations, Executive Order (or any similar regulations in foreign countries),
and shall obtain all required licenses, approvals and/or other clearances to
export, re-export or import, as applicable, the Master Disk, Software, and any
associated technical data, including, but not limited to where the Software is
bundled with a Product and/or installed into Computers via a Product.
3.6 OPEN SOURCE AND THIRD PARTY LICENSES. Certain Software
Programs, or portions thereof, included in the Software are distributed under
the GNU General Public License ("GPL"), other similar open source license
agreements and other third party agreements which contain terms that expand (or
restrict) Licensee's and/or third parties' rights to certain portions of the
Software. The GPL and other similar open source license agreements permit
Licensee and/or third parties to copy, modify, redistribute and have access to
the source code of certain portions of the Software. The GPL, other similar open
source license agreements, other third party agreements, on-line documentation,
source code, and other information about all such software programs are
available at the website xxxx://xxx.xxxxxxx.xxx/xxxxxxxx. To the extent the GPL,
other similar open source license agreements or other third party agreements
require Xxxxxxx.xxx to provide rights to the applicable portions of the Software
that are broader than the rights granted elsewhere in this agreement, then the
GPL and/or other similar open source license agreements shall take precedence
over the rights and restrictions set forth in this Agreement. Nothing in this
Section 3.6 shall permit Licensee or any third party to use the Xxxxxxx.xxx
Branding Features in connection with exercising the rights granted under the
GPL, other similar open source license agreements or other third party
agreements.
4. LICENSEE ACKNOWLEDGEMENT. Although the Software and the Xxxxxxx.xxx
Products are copyrighted, Licensee acknowledges and agrees that the Software,
the Master Disk, the Products and the Xxxxxxx.xxx Products, in each case, embody
valuable trade secrets proprietary to Xxxxxxx.xxx, as applicable. Except for the
rights and licenses expressly granted to Licensee in this Agreement, and subject
to Section 3.6, Licensee acknowledges and agrees that Xxxxxxx.xxx reserves and
retains all right, title and interest (including, without limitation, all
Proprietary Rights) in and to the Master Disk, the Software, the Xxxxxxx.xxx
Branding Features and the Xxxxxxx.xxx Confidential Information. Subject to the
license granted in Section 2.1(d), Licensee hereby acknowledges and agrees that
Licensee has no right, title or interest in or to the Xxxxxxx.xxx Branding
Features, and all benefits from the use of the Xxxxxxx.xxx Branding Features
shall automatically vest in Xxxxxxx.xxx. Licensee shall not (i) apply for
registration of the Xxxxxxx.xxx Branding Features (or any marks or features
confusingly similar thereto) anywhere in the world, (ii) alter, modify or change
the Xxxxxxx.xxx Branding Features in any manner, (iii) use any of the
Xxxxxxx.xxx Branding Features, except as expressly authorized herein or by prior
written approval of the Xxxxxxx.xxx, or (iv) take any action inconsistent with
Xxxxxxx.xxx's ownership of the Xxxxxxx.xxx Branding Features. Nothing contained
in this Agreement will be construed as conferring upon Licensee or any third
party (by implication, operation of law, estoppel or otherwise) any license or
right not expressly granted by Xxxxxxx.xxx in this Agreement.
5. CONFIDENTIALITY.
5.1 CONFIDENTIAL INFORMATION. Licensee acknowledges that, in the
course of exercising its rights or performing its obligations under this
Agreement, it may obtain confidential information relating to Xxxxxxx.xxx, its
licensors or licensees, contractors, agents, customers and/or end users
("Confidential Information"). Such Confidential Information shall include,
without limitation: (a) the source code of the Master Disk and the Software, the
terms of this Agreement, and, as it relates to the Master Disk and the Software,
Proprietary Rights, techniques, processes, programs, ideas, algorithms,
formulas, schematics, testing procedures, software design and architecture,
computer code, internal documentation, design and functional specifications,
product requirements, problem reports and
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performance information, software documents and other technical, business,
product, marketing and financial information, plans and data; (b) any
information designated by Xxxxxxx.xxx as confidential in writing or, if
disclosed orally, reduced to writing and designated as confidential within
thirty (30) days; and (c) any nonpublic information regarding Xxxxxxx.xxx, the
Master Disk, Software, and other Xxxxxxx.xxx products, including but not limited
to, technical data, product design and development, sales information, quantity
and kind of products sold, prices and methods of pricing, marketing techniques
and plans, product returns, unannounced products, product and process
information and any other information which if disclosed might be competitively
detrimental to Xxxxxxx.xxx. Licensee shall not use any Confidential Information
except for the purposes of this Agreement and shall protect such Confidential
Information from disclosure to others, using the same degree of care used to
protect its own proprietary information of like importance, but in no event less
than a reasonable degree of care. Licensee may disclose Confidential Information
received hereunder only as reasonably required to perform its obligations or
exercise its rights under this Agreement and only to third parties, its
employees, and its agents who have a need to know for such purposes and who are
bound by signed, written agreements to protect the received Confidential
Information from unauthorized use and disclosure at least as protective as this
Section 5.
5.2 LIMITATIONS. The restrictions of this Agreement on use and
disclosure of Confidential Information shall not apply to information that: (a)
was in the possession or control of Licensee at the time of its disclosure by
Xxxxxxx.xxx; (b) is or becomes publicly known by Licensee through no wrongful
act; (c) is received by Licensee from a third party free to disclose it without
any confidentiality obligation; or (d) is independently developed by Licensee
without access to Confidential Information.
5.3 DISCLOSURES REQUIRED BY LAW. In the event Licensee is required
by law, regulation or court order to disclose Confidential Information, it will
promptly notify Xxxxxxx.xxx in writing prior to making any such disclosure in
order to facilitate Xxxxxxx.xxx's ability to seek a protective order or other
appropriate remedy from the appropriate body. Licensee further agrees that if it
and/or Xxxxxxx.xxx is not successful in precluding the requesting legal body
from requiring the disclosure of the Confidential Information, it will furnish
only that portion of the Confidential Information which is legally required and
will exercise all reasonable efforts to obtain reliable assurances that
confidential treatment will be accorded the Confidential Information. Any
Confidential Information released under this Section 5 shall remain Confidential
Information or all other purposes.
5.4 REMEDIES. The parties hereby agree that any breach of any
provision of this Agreement regarding confidentiality or protection of
Proprietary Rights would constitute irreparable harm, and that Xxxxxxx.xxx shall
be entitled to specific performance and injunctive relief in addition to other
remedies at law or in equity. This Section 5.4 shall not be construed to
preclude Xxxxxxx.xxx from seeking equitable relief under any other section of
this Agreement.
6. TERM AND TERMINATION.
6.1 TERM. Unless earlier terminated in accordance with Section 6.2
below, this Agreement shall commence as of the Effective Date and shall continue
in effect until (a) termination of this Agreement by either party upon thirty
(30) days written notice or (b) [***] whichever is earlier.
6.2 TERMINATION. Either party may terminate this Agreement
immediately if the other party defaults in the performance of any material
provision of this Agreement and fails to cure such default within fifteen (15)
days of receiving written notice of such default from the non-defaulting party.
Upon the expiration or earlier termination of this Agreement, all rights and
licenses granted to Licensee hereunder shall terminate. The rights and
obligations of the parties under Sections 1, 2.2, 3.2, 3.3, 3.4, 3.5, 4, 5, 6,
7, and 8 will survive any expiration or termination of this Agreement. Any
termination of this Agreement by either party shall not limit any right or
remedies available at law or equity to the terminating party nor impair any
rights nor discharge any obligations which have accrued to the terminating party
as of the effective date of such termination. Except where otherwise specified,
the rights and remedies granted to a party under this Agreement are cumulative
and in addition to, and not in lieu of, any other rights or remedies which the
party may possess at law or in equity.
7. DISCLAIMER; LIMITATION OF LIABILITY.
7.1 NO WARRANTY. XXXXXXX.XXX MAKES NO WARRANTY TO LICENSEE OF ANY
KIND WITH REGARD THE SOFTWARE, THE MASTER DISK, THE PRODUCTS, OR ANY
CONFIDENTIAL INFORMATION. WITHOUT LIMITING THE GENERALITY OF THE FOREGOING, TO
THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, XXXXXXX.XXX, FOR ITSELF AND ON
BEHALF OF ITS LICENSORS AND SUPPLIERS, EXPRESSLY DISCLAIMS ANY WARRANTIES,
EXPRESS, STATUTORY OR IMPLIED, INCLUDING BUT NOT LIMITED TO ANY WARRANTIES OF
PERFORMANCE, CONDITION, TITLE, NON-INFRINGEMENT OF THIRD PARTY RIGHTS,
MERCHANTABILITY, SYSTEM INTEGRATION, DATA ACCURACY AND FITNESS FOR A PARTICULAR
PURPOSE, WHETHER ARISING OUT OF LAW, CUSTOM, CONDUCT, OR OTHERWISE.
7.2 LIMITATION OF LIABILITY. TO THE MAXIMUM EXTENT PERMITTED BY
APPLICABLE LAW, IN NO EVENT SHALL XXXXXXX.XXX AND ITS LICENSORS AND SUPPLIERS
HAVE ANY OBLIGATION OR LIABILITY (WHETHER IN TORT, CONTRACT, WARRANTY, STRICT
LIABILITY OR UNDER ANY OTHER LEGAL THEORY) TO LICENSEE, OR TO ANY OTHER ENTITY
OR PERSON, FOR ANY INDIRECT, INCIDENTAL, SPECIAL, STATUTORY, PUNITIVE OR
CONSEQUENTIAL DAMAGES (INCLUDING, BUT NOT LIMITED TO, LOSS OF GOODWILL, LOSS OF
PERFORMANCE, LOST PROSPECTIVE ECONOMIC ADVANTAGE, LOST REVENUE OR PROFITS, OR
LOSS OF DATA), IRRESPECTIVE OF WHETHER OR NOT SUCH DAMAGES ARE FORESEEABLE, EVEN
IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. XXXXXXX.XXX'S MAXIMUM AGGREGATE
LIABIILTY OF ANY KIND ARISING OUT OF THIS AGREEMENT SHALL BE LIMITED TO FIFTY
DOLLARS (US$50); PROVIDED, HOWEVER, THAT, TO THE MAXIMUM EXTENT PERMITTED BY
APPLICABLE LAW, IN NO EVENT SHALL (A) LICENSEE OR ANY OTHER ENTITY OR PERSON
HAVE ANY CLAIMS OR CAUSES OF ACTION OF ANY KIND AGAINST XXXXXXX.XXX'S LICENSORS
OR SUPPLIERS IN CONNECTION WITH THIS AGREEMENT, AND (B) ANY OF XXXXXXX.XXX'S
LICENSORS OR SUPPLIERS HAVE ANY LIABILITY (WHETHER EXPRESS, IMPLIED, STATUTORY,
OR OTHER) WHATSOEVER TO LICENSEE OR ANY OTHER ENTITY OR PERSON IN CONNECTION
WITH THIS AGREEMENT.
8. GENERAL PROVISIONS. This Agreement represents the entire agreement
between Xxxxxxx.xxx and Licensee and supersedes all prior agreements and
understandings, whether written or oral, with respect to all matters covered in
this Agreement. This Agreement will not be altered, modified, or amended in any
respect except by a writing signed by each party. This Agreement is to be
construed in accordance with and governed by the internal laws of the State of
California (as permitted by Section 1646.5 of the California Civil Code or any
similar successor provision) without giving effect to any choice of law rule
that would cause the application of the laws of any jurisdiction other than the
internal laws of the State of California to the rights and duties of the
parties. Any dispute regarding this Agreement shall be subject to the exclusive
jurisdiction of the courts for the State of California in and for San Diego
County, California, U.S.A. (or, if there is federal jurisdiction, the United
States District Court for the Southern District of California),
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and the parties agree to submit to the personal and exclusive jurisdiction and
venue of these courts. Nothing in this Agreement is intended to or will be
construed to give any person (other than Xxxxxxx.xxx and Licensee) any legal or
equitable right, remedy or claim under this Agreement or any provision hereof.
Licensee may not assign this Agreement or any of its rights or obligations
hereunder, whether voluntarily, by operation of law, indirectly, or otherwise.
Failure by either party to enforce at any time or for any period of time the
provisions of this Agreement will not be construed as a waiver of such
provisions, and will in no way affect such party's right to later enforce such
provisions. If any part of this Agreement is determined by any court of
competent jurisdiction to be unenforceable for any reason, such unenforceability
will not affect the balance of this Agreement, and the unenforceable provision
will be changed and interpreted so as to best accomplish the objectives of such
provision within the limits of applicable law. This Agreement may be executed,
by manual or facsimile signature, in multiple counterparts, which taken together
shall constitute one Agreement and each of which shall be considered an original
for all purposes.
IN WITNESS WHEREOF, the parties have executed this Agreement by their
duly authorized representatives.
XXXXXXX.XXX, INC. [LICENSEE]
Signature: /s/ Xxxxx Xxxxxxx Signature: /s/ Xxxx Xxx
--------------------------- -----------------------
Name: Name: Xxxx Xxx
----------------------------
Title: Title: President
----------------------------
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EXHIBIT A
XXXXXXX.XXX BRANDING FEATURES; TRADEMARK GUIDELINES
BRANDING FEATURES
To be provided on request.
TRADEMARK NOTICES
The Branding Features are trademarks and service marks of Xxxxxxx.xxx.
The Branding Features shall be accompanied by the superscript "TM" or "(R)"
symbol, as specified by Xxxxxxx.xxx, which must appear to the immediate right of
the Branding Features. The footnote "LindowsOS is the trademark of Xxxxxxx.xxx,
Inc." or "Xxxxxxx.xxx is the trademark of Xxxxxxx.xxx, Inc.", as applicable,
shall accompany each use of the Branding Features (or, if a Branding Feature is
used multiple times in a document, screen or packaging, such notice shall
accompany the first prominent use in such document, screen or packaging).
USING THE BRANDING FEATURES
Licensee may only use the Branding Features as an indication that the
Software is being offered to end users via distribution pursuant to the
Agreement. Licensee may not use the Branding Features in such a way as to
suggest that the Branding Features may also apply to any hardware or software
other than the Software. When referring to Xxxxxxx.xxx, Inc., Licensee shall use
the name "Xxxxxxx.xxx". When referring to the Software, Licensee shall use the
trademark "LindowsOS".
SIZING AND PLACEMENT REQUIREMENTS
The digitized, machine-readable file for the artwork of the Branding
Features shall be delivered as provided above in this Exhibit A. Licensee shall
not alter this file or the Branding Features in any way, including, without
limitation, changing the color of any of the logos or artwork, separating any
words in the Branding Features from the remainder of the Branding Features or
replacing words with any other words.
Licensee shall not combine the Branding Features with any other
feature, including, without limitation, other marks, words, graphics, photos,
slogans, numbers, design features or symbols.
The Branding Features shall not be larger or more prominent than the
trademark, logo or any Licensee trade name that appears on the same packaging,
documentation, advertising or other materials. The Branding Features shall not
be smaller or less prominent than any name, trademark or logo of any third party
that appears on the same packaging, documentation, advertising or other
materials.
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EXHIBIT B
LICENSEE PRODUCTS
6
