Software License Agreement
This Software License Agreement ( the "Agreement") is made effective October 28,
1999 ("Effective Date") between LinuxOne, Inc. 000 Xxx Xxxxxxx Xxx. #000,
Xxxxxxxx Xxxx, XX 00000 ("Licensor") AND XXXXXX, Inc., 0X,0-00-00 Xxxxxxx-xx,
Xxxxx, 000-0000 Xxxxx ("Licensee").
DEFINITIONS:
7.5 "Licensed Software" shall mean all:
(a) Computer software described in Exhibit A;
(b) Fixes, and
(c) Enhancements and New Programs accepted by Licensee pursuant to article 5
below.
1.2 "Intellectual Property Rights" shall mean the following rights that
pertain to the Licensed Software under common law, state law, federal law, and
foreign law:
(a) Rights in letters patent and applications for letters patent;
(b) Rights in copyrights and rights of authorship; and
7 Rights in trade secrets, including trademarks.
7.5 "Object Code" shall mean any machine executable code derived in whole
or part from the Licensed Software.
1.4 "Documentation" shall mean non-confidential materials which Licensor
delivers to Licensee pursuant to Exhibit C.
7.5 "Developmental Work" shall mean the development work to be preformed by
Licensor, as more particularly described in Exhibit D.
1.6 "Fixes" shall mean all fixes, workarounds, and other modifications to
the Licensed Software other than Enhancements, which are made by or on behalf of
Licensor during the Term in order to correct defects in the Software.
1.7 "Enhancements" shall mean all improvements to the Licensed Software made
by or on behalf of Licensor during the Term, in order to add features to
otherwise improve functionality or performance.
1.8 "New Programs" shall mean all software programs developed by or for
Licensor during the Term to supplement or replace Licensed Software.
1.9 "Confidential Information" shall mean any proprietary and confidential
information delivered by one party to the other pursuant to this Agreement.
7.5 Royalty(ies)" shall mean the royalties descried in paragraph 3.1 below.
1.11 "Infringement Action" shall mean any claim, suit, or proceeding brought
against Licensee or its customers that Licensed Software or Documentation
infringes any Intellectual Property Rights of the third party.
1.12 "Infringing Product" shall mean any restriction on the use of the
Licensed Software as the result of any Infringement Action.
1.13 "Term" shall mean the period this Agreement is in effect, connecting on
the Effective Date.
2. GRANT CLAUSES
2.1 Licensor hereby grants the Licensee, under Licensor's Intellectual
Property Right, a royalty bearing, non-exclusive, non-transferable (subject to
2.2 below) license in the Licensed Software, Object Code, and Documentation to
use, sell. And distribute outside of the Territory of the American Continent
(including Canada, US, Mexico, Caribbean, South America). The main marketplace
will be in Japan and China.
2.2 Licensee's licenses rights under section 2.1 may be sublicensed or
otherwise delegated to its third party channels of distribution or its
subcontractors.
2.3 Expect as expressly provided in this Agreement, Licensor retains all
right, title, and interest in the licensed Software and Document.
3. CONSIDERATION:
3.1 For the rights granted in section 2.1 above, Licensee shall pay
royalties in accordance with Exhibit E.
3.2 Royalties due Licensor shall be paid within thirty days after the end of
each Licensee fiscal quarter, without any invoice. Such payments shall reflect
all Royalties due for that quarter, less credits and other adjustments, and
shall be accompanied by a report detailing how the Royalties were calculated.
3.3 Licensee shall maintain accurate records for the calculation of
Royalties. Licensor may, at its expense, engage an independent auditor to review
such records. Any such audit shall be subject to Licensee's security and
confidentiality requirements.
0.XXXXXXXX, MANUFACTORING, AND MARKETING
4.1 Licensor shall perform the Development Work at no charge to Licensee.
Upon completion of any Development Work, Licensor shall deliver a master copy of
the necessary Code, Programs, diskettes, CD's, and appropriate manuals
translated into the English language and ready for manufacture.
4.2 License is reasonable for reproducing and manufacturing the Licensed
Software, for sales in the Territory.
4.3 In marketing the Licensed Software, Licensee shall comply with any
naming requirements in Exhibit B.
4.4 Licensee may market the Licensed Software to the extent it deems
appropriate, in its sole discretion. This Agreement does not create any
partnership, agency, or other relationship other than licensee and Licensor.
5. ENHANCEMENTS AND NEW PROGRAMS
5.1 As soon as possible but in any event at least thirty days prior to the
commercial release of any New Program or Enhancement, Licensor, shall deliver to
Licensee a complete copy of the New Program or Enhancement.
5.2 For purposes of this article 5, a "complete copy" shall be sufficient to
enable Licensee to fully evaluate the New Program or Enhancement, and shall
include:
(a) A disk, CD, or other tangible media in a form to enable Licensee to
reproduce and manufacture Licensed Software;
(b) All available user manuals in hard copy form in English, and
(c) Any other documentation which Licensee reasonably requests.
5.3 Licensee may evaluate each New Program and Enhancement by any reasonable
means. Licensee shall have thirty days after receipt of a complete copy of a New
Program or Enhancement to either accept it or reject it. Licensee shall give
Licensor notice of the evaluation results.
5.4 At its discretion, Licensee may reject any New Program or Enhancement.
If Licensee rejects an Enhancement, Licensee shall be entitled to continue to
distribute the version of the Licensed Software prior to such Enhancement.
5.5 If Licensor updates or otherwise changes any Documentation, Licensor
shall provide Licensee one copy of the update or changes as soon as practical.
6. SUPPORT
7.5 Licensor shall, at no charge to the Licensee, provide Licensee with
support for all Licensed Software, as set forth in Exhibit F.
7.6 Licensor shall support its customers.
6.3 Licensor's support obligations shall continue for as long after the
termination of this Agreement as Licensee shall have the obligation to support
its customers who have been sold the Licensed Software.
7. CONFIDENTIAL INFORMATION
7.1 All Confidential Information shall either (1) be marked as confidential
at the time of disclosure, or (ii) if unmarked when disclosed but treated as
confidential (for example disclosed verbally), be described in a written
memorandum set to the recipient's Account Manager within thirty days after
disclosure.
7.2 A recipient of Confidential Information shall protect such information
by using the same degree of care, but no less than a reasonable degree of care,
as the recipient uses to protect its own information of a similar nature.
7.3 A recipient shall restrict access to Confidential Information to those
of its employees having a need to know.
7.4 A recipient's obligations of confidentiality shall continue for three
years from its disclosure.
7.5 A recipient of Confidential Information agrees that:
(a) The disclosure will be irreparably injured by the disclosure of
Confidential Information in violation of this Agreement, and
(b) In addition to any other remedies available at law or in equity, the
disclosure may obtain an injunction to prevent or stop any unauthorized
disclosure.
7.6 Confidential Information does not include information that:
(a) Was in the recipient's possession before receipt from the disclosure.
(b) Is or becomes a matter of public knowledge through no fault of the
recipient;
(c) Is rightfully received by the recipient from a third party without a
duty of confidentiality;
8. WARRANTIES
8.1 Licensor warrants that:
(a) It has full power and authority to grant the rights under this
Agreement;
(b) The Licensed Software will comply with the requirements in
Exhibit A;
and
c) The Licensed Software and Documentation do not violate or
infringe any third party's intellectual property.
8.2 With respect to any Infringing Product, Licensor shall, at its
expense and option:
(a) Procure for Licensee the rights to continue using the Product;
(b) Replace the Product with a non-infringing product or
comparable
function or performance, or
c) Modify the Product to be non-infringing.
8.3 Licensor shall have no liability under Section 8.2 to the extent
the Infringement Action is based upon:
(a) Any unauthorized modification of the Licensed Software or
Documentation; or
(b) Any combination, operation, or use of the Licensed Software or
Documentation with equipment, software, documentation, or other items
not
supplied by either Licensor or Licensee.
8.4 Except as expressly provided in this Article 8, Licensor makes no
other
warranties, either express or implied, regarding the Licensed Software or
the Documentation, including as to their merchantability or fitness for any
particular purpose.
8.5 In no event shall either party be liable for any indirect, special,
incidental, or consequential damages (including loss of profits) arising out of
any performance of this Agreement, or in furtherance of the provisions and
objectives of this Agreement, whether such damages are based on tort,
contract, or any other legal theory and whether advised of the possibility
of such damages.
9. TERM AND TERMINATION
9.1 The Term of this Agreement shall be the life of the intellectual
property rights licensed herein, but not more than twenty (20) years.
9.2 Either party may terminate this Agreement if the other party
breaches this Agreement and if such breach is not cured within ninety days
after notice from the non-breaching party advising of such breach. For
purposes of this Section 9.2, to the extent permitted by applicable law, a
breach of this Agreement shall include either party:
(a) Being the subject of a petition in bankruptcy whether
voluntary or involuntary;
(b) Becoming insolvent, or ceasing to do business in the normal
course;
9.3 Either party may terminate this Agreement by sending a thirty (30)
days notice to the other.
9.3 Upon the expiration or termination of this Agreement, Licensee
shall cease distributing all Licensed Software. The expiration or
termination of this Agreement shall not affect the rights of end-users,
whose rights are perpetual.
10. MISCELLANEOUS PROVISIONS
10.1 All notices under this Agreement shall be in writing and shall be
considered given upon personal delivery or delivery by electronic means
(fax), or forty-eight hours after sending by air courier. All notices shall
be addressed as specified below:
Licensee: Licensor:
XXXXXX Inc. LinuxOne, Inc.
2F, 2-21-25 Kamiogi, Suginami-ku 000 Xxx Xxxxxxx Xxxxxx, Xxxxx 000
Xxxxx, 000-0000 Xxxxx Xxxxxxxx Xxxx, XX. 00000
10.2 Neither party shall disclose to any third party the terms of this
Agreement which is a strictly confidential agreement.
10.3 Neither party may assign or otherwise transfer its rights or
responsibilities in this Agreement without written permission of the other
party except in the event of a merger, acquisition or other reorganization.
10.4 This Agreement represents the entire agreement between the parties
as to the matters set forth and integrates all prior discussion and
understandings between them. This Agreement may only be modified by a
written instrument signed by an authorized representative of Licensor and
Licensee.
10.5 This Agreement shall be governed by, and construed in accordance
with the laws of the State of California. Exclusiveness shall be Mountain
View, CA.
10.6 All disputes under this Agreement shall be resolved exclusively by
binding non-appealable arbitration by the American Arbitration Association,
under the Commercial Arbitration Rules. The prevailing party shall be
entitled, in addition to any other award to all attorney's fees, costs and
expenses related to this dispute and arbitration.
LICENSOR LICENSEE
LinuxOne XXXXXX
Date: October 28, 1999 Date: October 28, 1999
By: /s/ Xxx X. Xxxxx, Xx. /s/ Xxxxx Xxxxx
Title: President Title: President
EXHIBITS:
Exhibit A: Licensed Software - Localization and packaging of LinuxOne OS
product into Japanese and Chinese versions.
Exhibit B: No trademark will be licensed in this Agreement. However, licensee
expressly acknowledges LINUXONE as the sole copyright owner of the Licensed
Software.
Exhibit C: Documentation - Necessary user manuals translated from English into
Japanese and Chinese
Exhibit D: The Development Work - As needed to develop and fully test the
software, fixes, enhancements and new programs. All costs for product
development and translation into the Japanese and Chinese languages are to be
paid for by Licensor. The actual work could be undertaken by Licensee with the
written consent by the parties.
Exhibit E: Royalty Schedule - Licensee shall pay Licensor a royalty of 25% of
gross revenues for Licensed Software sales. No royalty shall be paid for
software given away free for promotional purposes. In case of bundle software,
the license fee per copy will be negotiated.
