LINEO, INC.
LICENSE AGREEMENT
This License Agreement ("Agreement") between Lineo, Inc. ("Lineo") and
LinuxWizardry Systems, Inc. and its subsidiary LinuxWizardry, Inc.
(collectively, "LinuxWizardry"), entered as of the Effective Date identified in
Schedule A, governs LinuxWizardry's licensed rights, if granted herein, to use,
reproduce, market, distribute, and sell software and related products and
documentation proprietary to Lineo, and consists of the following:
This Signature Page
Schedule A - Scope, General Terms and License Fees
Schedule B - License Agreement, Standard Terms and Conditions
Appendix I to
Schedule B - Sample End User License
Schedule C - Scope of Service
Appendix Ito Schedule C - "2500-Series Router" Specifications,
Licensed Products Deliverables and Price List
Schedule D - Licensed Marks
1. Lineo Address and Contact: Lineo, Inc.
Attn: Xxxxx Xxxxx
0000 Xxxxxxx Xxxx, Xxxxx X 000
Xxx Xxxx, XX 00000
Voice: 000-000-0000
Fax: 000-000-0000
2. LinuxWizardry Address and Contact: LinuxWizardry Systems, Inc., and its
wholly-owned subsidiary,
LinuxWizardry, Inc.
Attn: Xxxx X. Xxxxxxxxx
4185, 00000 Xxxxxxxxxxx Xxx
Xxxxxxxx, XX X0X 0X0
Voice: 000-000-0000
Fax: 000-000-0000
By signing below, the parties acknowledge their agreement with the terms and
conditions of this Agreement, and each signatory represents and certifies that
he or she is authorized to sign on behalf of his or her respective party and
bind it to all of the terms and conditions of this Agreement:
LINEO, INC. LINUXWIZARDRY SYSTEMS, INC. and
LINUXWIZARDRY, INC.
By: /s/ Xxxx Xxxxxxx By: /s/ Xxxx Xxxxxxxxx
---------------------------------- -----------------------------------
Printed Name: Xxxx Xxxxxxx Printed Name: Xxxx Xxxxxxxxx
----------------------- ------------------------
Title: Sr. VP Title: President
------------------------------ ---------------------------------
Date: 7/12/00 Date: 6/29/2000
------------------------------ ---------------------------------
61
LINEO, INC.
LICENSE AGREEMENT
SCHEDULE A
SCOPE, GENERAL TERMS AND LICENSE FEES
License Agreement Page 1 of 18
62
1. EFFECTIVE DATE: June 30, 2000.
--
2. LICENSED PRODUCTS:
Products identified in any Authorized Appendix to Schedule C.
3. TERRITORY:
Worldwide.
4. LICENSE TERM:
The initial term of this Agreement expires on June 30, 2005.
--
5. FEES AND PAYMENT:
LinuxWizardry shall pay all the following fees to Lineo:
Non-Recurring Engineering Fee: $35,000, payable as follows: (1) $17,500
-------------------------------
upon the Effective Date; and (2) $17,500 upon delivery of the last of the
100 Prototype Routers to LinuxWizardry.
Prototype Router Costs: $35,000 for 100 Prototype Routers, payable as
------------------------
follows: (1) $17,500 upon the Effective Date; and (2) $17,500 upon delivery
of the last of the 100 Prototype Routers to LinuxWizardry.
Production Router Costs: According to the terms and volumes set forth in
-------------------------
Schedule C of this Agreement and any Authorized Appendix thereto.
License Fees: For all rights granted to LinuxWizardry hereunder, including
-------------
the licensed right to use, promote and sell the Licensed Products, a
portion of the per unit Production Router Costs shall be identified by
Lineo as the License Fee for each copy of the Licensed Products ordered or
acquired by LinuxWizardry from Lineo. Where LinuxWizardry orders or
acquires the Routers from any source other than Lineo, LinuxWizardry shall
pay to Lineo a License Fee for each such Router according to volumes as set
forth in Schedule C of this Agreement and any Authorized Appendices
thereto.
License Agreement Page 2 of 18
63
LINEO, INC.
LICENSE AGREEMENT
SCHEDULE B
STANDARD TERMS AND CONDITIONS
The following standard terms and conditions apply:
1. DEFINITIONS. For purposes of this Agreement, the following definitions
apply to the respective terms:
a. AGREEMENT means this Agreement, consisting of the Signature Page,
---------
Schedules A through D, Appendix I to Schedule B, Appendix I to Schedule C,
and any additional documents attached and initialed by the parties.
b. AUTHORIZED APPENDIX means: (i) Appendix I to Schedule B of this
--------------------
Agreement, which is attached hereto; (ii) Appendix I to Schedule C of this
Agreement, which is attached hereto; and (iii) any appendix prepared
subsequent to the Effective Date of this Agreement which has been signed
and dated by the parties.
c. BUNDLED PRODUCT refers to the specific hardware and software
----------------
manufactured or produced by, or at the direction of, Lineo or LinuxWizardry
with which any Licensed Product is to be bundled or integrated to create a
single product offering.
d. The terms BUY, PURCHASE. SALE, SELL and other similar terms, when
---- -------- ---- ----
used in connection with the distribution of the Licensed Products shall
mean the granting of a license or sublicense and shall not be deemed for
any purpose to mean a transfer of title or other rights of ownership in the
Licensed Products, other than the rights specifically set out in this
Agreement or in applicable End User License Agreements.
e. CONFIDENTIAL INFORMATION means all business, marketing and technical
------------------------
information of each party considered by each to be trade secrets or
otherwise valuable proprietary information, designated or marked as such by
either. Confidential Information shall not include information that: (i) is
now or later becomes generally known to the computer industry (other than
as a result of a breach of this Agreement); (ii) is independently developed
by the receiving party; or (iii) the receiving party lawfully obtains from
any third party without restrictions on use or disclosure.
f. DERIVATIVE WORKS means a revision, modification, translation,
-----------------
abridgment, condensation or expansion of a Licensed Product or
Documentation or any form in which a Licensed Product or Documentation may
be recast, transferred, or adapted, which, if prepared without the consent
of Lineo, would be a copyright infringement.
g. DOCUMENTATION means those software user manuals, reference manuals
-------------
and installation guides, or portions thereof (if any), which are
distributed in conjunction with the Licensed Products identified in
Schedule C.
h. DOLLAR or $ shall mean United States Dollars.
------
i. END USER means an entity that acquires the Licensed Product for
---------
Internal Use.
j. INTERNAL USE means use for purposes that do not directly produce
-------------
revenue for the user.
k. LICENSED PRODUCTS means the Router design and source code versions
------------------
within the products identified in any Authorized Appendix to Schedule C of
this Agreement. Lineo reserves the right at any time to make changes to any
Licensed Product, including without limitation changes required: (i) for
security; or (ii) to facilitate performance in accordance with
specifications. For the purposes of this Agreement, the term "Licensed
Products" does not include product properly developed by LinuxWizardry or
others independent of Lineo.
l. MANUFACTURER shall mean a manufacturer as designated by Lineo for
------------
the purpose of building the Routers provided that LinuxWizardry has
received a document from such manufacturer obligating the manufacturer to
duties of confidentiality and nondisclosure in a form reasonably acceptable
to LinuxWizardry.
m. MANUFACTURING COSTS shall mean the direct costs of Lineo to
--------------------
manufacture the Routers plus an additional five percent.
n. LINEO MARKS means Lineo's trademarks, trade names, service marks,
------------
logos, designations and insignias, as well as any third-party marks
licensed to Lineo with rights of sublicense.
o. NON-RECURRING ENGINEERING refers to the process of Lineo's creation,
-------------------------
customization and testing to develop Prototype Routers for LinuxWizardry.
p. PRODUCTION ROUTERS refers to those Routers produced for
-------------------
LinuxWizardry after LinuxWizardry has successfully completed the Testing of
the Prototype Routers.
q. PROTOTYPE ROUTERS refers to the first 100 Routers produced for
------------------
LinuxWizardry pursuant to this Agreement.
License Agreement Page 3 of 18
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r. REQUESTED MODIFICATIONS refers to those reasonable modifications to
------------------------
the Prototype Router design as may be requested by LinuxWizardry within the
Testing Period.
s. ROUTERS means those routers designed by Lineo under this Agreement
-------
which have been customized for LinuxWizardry using the Virata Helium chip
set and pursuant to the specifications set forth in Appendix I to Schedule
C.
t. SERIES OF ROUTERS means all those Routers sharing the same NETel
-------------------
family of classification. By way of illustration, both the NETel 2500 and
the NETel 2520 are included in the "2500-Series" designation.
u. TESTING PERIOD means a period of two months from the date of the
---------------
delivery to LinuxWizardry of the last of the Prototype Routers.
2. CONTRACT RESPONSIBILITIES: Subject to the terms and conditions of this
Agreement, the parties have the following respective contractual
responsibilities:
a. LINEO'S RESPONSIBILITIES: Lineo shall:
1) Design, create, build and deliver 100 Prototype Routers to
LinuxWizardry within 60 days of the Effective Date;
2) Revise such design pursuant to Linux Wizardry's reasonable
Requested Modifications within a reasonable amount of time after such
Requested Modifications were provided to Lineo;
3) Ensure that the Routers are tested at the factory for the purpose
of verifying that the Routers: (i) meet the functional requirements
set forth in Appendix I to Schedule C hereof, and (ii) are able to be
certified according to FCC requirements;
4) Ensure that it shall meet LinuxWizardry's minimum order
requirements of 1,000 Production Routers per month;
5) Grant LinuxWizardry the rights and licenses to the Licensed
Products as set forth herein;
6) Warrant the Licensed Products as set forth in Section 7 hereof, and
7) Indemnify LinuxWizardry as set forth in Section 8(a) hereof.
b. LINUXWIZARDRY'S RESPONSIBILITIES: LinuxWizardry shall:
1) Make all payments to Lineo as set forth in Schedule A, Schedule C
and Section 4 hereof,
2) Test the Prototype Routers and provide Lineo with written details
of LinuxWizardry's findings and Requested Modifications:
3) Market, sell and distribute units of the Licensed Products within
the Territory identified in Schedule A;
4) Protect Lineo's proprietary rights in the Licensed Products as set
forth in Section 5 hereof,
5) Provide, or cause to be provided by its sublicensees. an
appropriate End User License Agreement to End Users, as set forth in
Sections 5(b) and 7(a) hereof,
6) Indemnify Lineo as set forth in Section 8(b) hereof, and
7) Perform all other obligations required of LinuxWizardry under this
Agreement.
3. GRANT OF LICENSES. Subject to the terms and conditions of this Agreement
and for the term hereof, Lineo hereby grants to LinuxWizardry the following
rights and licenses:
a. LICENSED PRODUCTS AND DOCUMENTATION. Lineo hereby grants to
LinuxWizardry a nonexclusive and nontransferable right and license to: (i)
use the Licensed Products for Internal Use only; and (ii) market, sell and
distribute copies of the Licensed Products, with copies of the
Documentation, to sublicensees within the Territory identified in Schedule
A. Unless otherwise specifically provided in Schedule A, LinuxWizardry's
rights of distribution and sale are limited to the Licensed Products and
Documentation.
b. TRADEMARKS. LinuxWizardry's trademark shall be the dominant trademark on
the Routers. Lineo hereby grants to LinuxWizardry the nonexclusive,
nontransferable right and license to use and display Lineo Marks identified
in Schedule D solely in connection with and only to the extent reasonably
necessary for the marketing, distribution and support of the Licensed
Products during the term of this Agreement, provided that any such use and
display shall comply with Lineo's then current trademark usage policies.
Upon expiration or termination of this Agreement, LinuxWizardry agrees to
cease all display, advertising and use of any and all Lineo Marks. In the
case of bundled products, LinuxWizardry agrees not to alter, erase or
overprint any notice provided by Lineo and not to attach any additional
trademarks without the prior written consent of Lineo or affix any Lineo
Marks to any non-Lineo or non-Lineo product, respectively. LinuxWizardry
recognizes Lineo's rights to Lineo
License Agreement Page 4 of 18
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Marks and the goodwill attaching to Lineo Marks. LinuxWizardry agrees not
to use, employ or attempt to register any trademarks or trade names that
are confusingly similar to Lineo Marks.
c. THIRD PARTY LICENSE. If all or any part of the Licensed Products
delivered to LinuxWizardry has been licensed to Lineo by a third party
software supplier, then, notwithstanding anything to the contrary contained
in this Agreement, LinuxWizardry is granted a sublicense to the third party
software subject to the same terms and conditions as those contained in the
agreement between Lineo and such third party software supplier. Lineo
reserves the right to substitute any third party software in the Licensed
Products.
d. GENERAL PUBLIC LICENSE. Certain components of certain Licensed Products
are components licensed under the GNU General Public License (version 2).
which Lineo supports. LinuxWizardry may obtain a copy of the GNU General
Public License at xxx.xxxxxxx.xxx/XXX/XXXXXXX. Lineo will provide source
---------------------------
code for any of the components of those Licensed Products licensed under
the GNU General Public License. To obtain such source code, send email to
xxxxxxx-xxxxxxx@xxxxx.xxx.
--------------------------
e. SUBLICENSE AGREEMENTS. LinuxWizardry may grant sublicensees within the
Territory identified in Schedule A the sublicensed rights to: (i) use
Licensed Products for Internal Use only; (ii) market, sell and distribute
copies of the Licensed Products bundled with or integrated in Bundled
Products to End Users, provided that such activities are governed by
written sublicenses consistent with the terms of this Agreement, and no
less restrictive than the licenses granted herein; and (iii) grant
third-party manufacturers the right to manufacture any Series of Routers
using the Licensed Products for LinuxWizardry, provided that LinuxWizardry
has first purchased at least 75,000 of such Series of Routers directly from
Lineo. LinuxWizardry assumes responsibility for the actions of, and its
agreements with, its sublicensees and for the compliance of such
sublicensees with the terms and restrictions of this Agreement relating to
the Licensed Products, including, but not limited to, those terms and
restrictions set forth in Sections 3, 5, 6 and 7 hereof, and the provision
of applicable End User License Agreements to End Users set forth in
Sections 5(b) and 7(a) hereof. To that end, LinuxWizardry shall take prompt
and commercially reasonable action at its expense to remedy any breach by
its sublicensees of duties imposed by this Agreement and to obtain all
other appropriate relief and shall, in addition, immediately notify Lineo
in writing of the breach and corrective action taken. The execution of
these duties by LinuxWizardry shall not preclude Lineo from also taking
corrective action, for which purposes it will be deemed to be an intended
third-party beneficiary of all of LinuxWizardry's agreements with
sublicensees dealing with Licensed Products. LinuxWizardry's obligations to
enforce any relevant sublicense and to protect the interest of Lineo shall
survive expiration or termination of this Agreement.
f. PRODUCT TAMPERING. Without the prior written consent of Lineo, which
consent shall not be unreasonably withheld, and unless and to the specific
extent that source code rights are specifically granted in Schedule A,
LinuxWizardry shall have no rights directly or indirectly to de-compile,
reverse engineer, reverse compile, modify or perform any similar type of
operation on the Licensed Products, or any portion thereof, or to prepare
any other form of Derivative Works. LinuxWizardry hereby irrevocably
assigns to Lineo all right, title, and interest in and to all Derivative
Works, whether or not authorized by Lineo.
g. LIMITATIONS. Notwithstanding any of the foregoing, distribution of the
Licensed Products in any country where the proprietary rights of Lineo and
its third-party licensors in the Licensed Products would not be recognized
or would not be protected under the laws of such country is prohibited.
h. RESERVATION OF RIGHTS. Lineo reserves all rights not expressly granted
under this Agreement, including, but not limited to, the rights to market,
sell and distribute the Licensed Products to sublicensees and End Users
directly or indirectly through its distribution channels.
4. PRICING AND PAYMENT
a. PRICING AND LICENSE FEES. LinuxWizardry shall pay to Lineo the License
Fees set out in Schedule A as required therein. Prices are exclusive of all
applicable taxes. LinuxWizardry agrees to pay all taxes associated with the
marketing, sublicensing, distribution and transfer of all Licensed
Products, including but not limited to sales, use, excise, added value and
similar taxes and all customs, duties or governmental impositions, but
excluding taxes on Lineo's net income. Any tax or duty Lineo may be
required to collect or pay upon the marketing or transfer of Licensed
Products shall be paid by LinuxWizardry, and such sums shall be due and
payable to Lineo upon delivery. If LinuxWizardry claims a tax exemption.
LinuxWizardry must provide Lineo with valid tax exemption certificates.
b. PAYMENT AND REPORTING. License fees will accrue in the applicable
corresponding quantity upon distribution by LinuxWizardry of a copy of a
Licensed Product in any form to a sublicensee or End User. LinuxWizardry
shall pay Lineo License Fees accrued during each calendar month, together
with any other fees accruing over the same period, within 30 days following
the date of invoice for such month. Payment shall be accompanied by a
written report detailing the quantity, type, customer name, and destination
of all Licensed Products shipped by LinuxWizardry in the prior month and
showing calculation of all fees payable thereon. All payments shall be made
in U.S. dollars: (i) at Lineo's address as indicated in this Agreement or
at such other address as Lineo may from time to time indicate by proper
notice hereunder; or (ii) by wire transfer to a bank and account number to
be designated by Lineo.
c. INTEREST shall accrue on any unpaid payment or payment balance at an
annual rate of 12% per annum, or. if lower, at the highest lawful rate,
calculated from the date the payment is due to the date it is received by
Lineo. Arrearage in excess of $5,000 not paid within 10 days of written
demand following the date payment is due shall be grounds for Lineo's
termination of this Agreement at Lineo's option.
License Agreement Page 5 of 18
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d. RECORDS EXAMINATIONS. LinuxWizardry agrees to allow Lineo to examine
LinuxWizardry's records related to the matters of this Agreement to test
LinuxWizardry's compliance with this Agreement. Any examination will be
conducted only by an authorized representative of Lineo, and will occur
during regular business hours at LinuxWizardry's offices and will not
interfere unreasonably with LinuxWizardry's business activities.
Examinations will be made no more frequently than quarterly, and Lineo will
give LinuxWizardry 15 business days or more prior written notice of the
date of the examination and the name of Lineo's authorized representative
who will be conducting the examination. The audit will be conducted at
Lineo's expense unless the results of such audit establish that
inaccuracies in the quarterly reports have resulted in underpayment to
Lineo of more than 5% of the amount due in any quarter, in which case
LinuxWizardry shall pay all amounts determined to be due and shall bear the
expenses of the audit. All information obtained by Lineo's authorized
representative conducting the audit will be maintained confidential by the
representative. The examiner will give LinuxWizardry and Lineo an
examination report containing only the information necessary to indicate
compliance or non-compliance with this Agreement.
5. LINEO'S INTELLECTUAL PROPERTY RIGHTS
a. ACKNOWLEDGMENT OF LINEO'S RIGHTS. For purposes of this Agreement, and
with the exception only of those elements (if any) of the Licensed Product
specifically identified and designated by Lineo as third-party software,
LinuxWizardry acknowledges and confirms Lineo's exclusive worldwide rights,
including copyright in, and the validity of the Licensed Products
(including, without limitation, all input/output and report formats, screen
displays, menu features and overall structure, sequence and organization)
and in Lineo Marks. LinuxWizardry agrees not to challenge or otherwise to
interfere with the use and ownership by Lineo of the Licensed Products or
any of the intellectual property rights associated with the Licensed
Products or Lineo Marks (hereinafter referred to collectively as "Lineo
Intellectual Property"). LinuxWizardry also shall not permit any personnel
to remove any proprietary or other legends or restrictive notices contained
or included in any materials supplied or approved by Lineo, and
LinuxWizardry shall not permit any personnel to copy or modify or
reverse-engineer any materials, including the Licensed Products provided by
Lineo, except as and to the extent specifically permitted under this
Agreement. Title to every copy of a Licensed Product is vested and shall
remain in Lineo, or, as applicable, in such third party from whom Lineo
holds rights of license and distribution, and title does not pass with any
license under this Agreement.
b. END USER LICENSE AGREEMENTS. LinuxWizardry agrees to exercise
commercially reasonable efforts to ensure that each End User receiving a
Licensed Product through LinuxWizardry's sublicensees understands, and
agrees to be bound by, an appropriate End User License Agreement that is no
less restrictive in its application to the Licensed Product than the
then-current form of Lineo's End User License Agreement, the most current
version of which is attached as Appendix I hereto.
c. LINUXWIZARDRY'S WAIVER OF RIGHTS. LinuxWizardry further acknowledges
that it has no rights of any kind anywhere in the world in any Lineo
Intellectual Property other than those limited rights granted by this
Agreement. Accordingly, LinuxWizardry waives: (a) all claims of any right
by LinuxWizardry in any Lineo Intellectual Property; and (b) the right, if
any, to file or own in its own name or in that of any designee, any
application for registration of any trademark, copyright, patent,
industrial design, trade secret or other intellectual property which forms
part of Lineo Intellectual Property, or to own any registration or patent
resulting therefrom. In the event LinuxWizardry, in any jurisdiction of the
world, files such an application or obtains such a patent or registration
in violation of this section, such application, registration or patent
shall be deemed held in trust by LinuxWizardry for Lineo and shall be
assigned by LinuxWizardry to Lineo without conditions and upon demand by
Lineo.
d. PRESERVATION AND SECURITY OF PROPRIETARY INFORMATION. LinuxWizardry
shall not sell, assign, lease, license, transfer or otherwise disclose the
Licensed Products except as expressly authorized by this Agreement.
LinuxWizardry shall safeguard any and all copies of the Licensed Products
against unauthorized disclosure, reproduction or tampering, and shall
assist Lineo in the enforcement of Lineo's rights in the event of
unauthorized disclosure by any person under LinuxWizardry's control or
service. LinuxWizardry shall also ensure that Lineo's copyright, trademark
and patent notices, which may from time to time be updated, are prominently
displayed on all copies of products and documentation containing the
Licensed Products. LinuxWizardry shall not remove or obscure any copyright,
trademark, patent or other proprietary rights notice already present on any
of the Licensed Products or Documentation. The notice of Lineo's
intellectual property rights in each Licensed Product shall read as
follows: "Licensed Software(C) Lineo, Inc. and Lineo, Inc. 1999-2000, all
rights reserved."
e. GOODWILL. To protect and preserve the reputation and goodwill of Lineo
and of the Licensed Product, LinuxWizardry shall (1) avoid deceptive,
misleading or unethical practices that are or might be detrimental to
Lineo, the Licensed Products or the public, including any disparagement of
Lineo. Lineo or the Licensed Products; (2) make no false or misleading
representations with regard to Lineo, Lineo or the Licensed Product; (3)
refrain from publishing or employing any misleading or deceptive
advertising material reflecting upon Lineo, Lineo or the Licensed Products;
(4) refrain from making any representations, warranties or guarantees with
respect to the specifications, features or capabilities of the Licensed
Program that are inconsistent with the Documentation and marketing
literature distributed by Lineo, including all warranties and disclaimers
contained in such literature; (5) not distribute for any purpose any
marketing materials, packaging or other material bearing Lineo Marks which
have not been first approved by Lineo; and (6) enter into agreements for
marketing and distribution of the Licensed Products only with such
sublicensees who have agreed to be bound by the foregoing terms as part of
the applicable sublicense agreement.
f THIRD-PARTY REQUIREMENTS. In the event that Lineo is required by a third
party software supplier to cease and to cause its LinuxWizardrys and
sublicensees to cease use, reproduction and distribution of a particular
version of the Licensed Products, LinuxWizardry agrees to comply herewith.
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6. CONFIDENTIAL INFORMATION. LinuxWizardry shall not use or disclose any
Confidential Information supplied by Lineo relating to the Licensed Product
except as authorized in writing by Lineo in advance of such disclosure and
shall safeguard all Confidential Information provided by Lineo to
LinuxWizardry under this Agreement in the same or more restrictive manner
as LinuxWizardry safeguards its own Confidential Information.
7. LIMITED WARRANTIES
a. Lineo provides, to End Users only, the warranties for software in the
applicable End User License Agreement accompanying the Licensed Products.
LinuxWizardry is responsible for providing, or causing to be provided by
its sublicensees, a copy of the applicable End User License Agreement to
End Users for their review at the time of acquisition or installation,
Lineo warrants the materials and workmanship of the Routers produced by
Lineo or produced at Lineo's direction for a period of two (2) years from
the date of delivery to LinuxWizardry. Lineo does not warrant any non-Lineo
products, which are provided on an "AS-IS" basis. Any warranty service for
non-Lineo products will be provided by the manufacturer of the products in
accordance with the applicable manufacturer's warranty.
b. EXCEPT AS SET FORTH IN THIS SECTION 7, LINEO DISCLAIMS ALL WARRANTIES,
EXPRESS OR IMPLIED, INCLUDING. WITHOUT LIMITATION, ANY WARRANTIES AS TO THE
SUITABILITY OR MERCHANTABILITY OR FITNESS FOR ANY PARTICULAR PURPOSE. IN NO
EVENT SHALL LINEO BE LIABLE FOR ANY LOST OR ANTICIPATED PROFITS, OR ANY
INCIDENTAL, EXEMPLARY, SPECIAL OR CONSEQUENTIAL DAMAGES (INCLUDING LOST
PROFITS), REGARDLESS OF WHETHER LINEO WAS ADVISED OF THE POSSIBILITY OF
SUCH DAMAGES. THE WARRANTY IN THIS SECTION 7 SHALL NOT APPLY IF THE
ERROR(S) ARE CAUSED BY ANY PROGRAMMING NOT CREATED BY LINEO, OR BY ANY
REPAIRS, MODIFICATIONS OR ENHANCEMENT NOT MADE BY LINEO.
c. Lineo's liability for direct damages to LinuxWizardry for any cause
whatsoever, and regardless of the form of action, shall not exceed the
amount received by Lineo from LinuxWizardry during the previous 12 months
for the Licensed Products giving rise to such claim.
8. INDEMNIFICATION
a. BY LINEO. Lineo agrees to defend LinuxWizardry and, to the extent of
payments made by LinuxWizardry under this Agreement, to indemnify and hold
LinuxWizardry harmless from any and all third-party claims, actions,
demands, and related damages, liabilities, costs and expenses resulting
from charges or allegations that a Licensed Product or Lineo Xxxx
appropriately used, sold or distributed by LinuxWizardry infringes any U.S.
patent, U.S. trademark, or U.S. copyright of any third party.
LinuxWizardry shall permit Lineo to replace or modify any Licensed Products
affected so as to avoid infringement or to procure the right for
LinuxWizardry to continue use and marketing of such items. If neither
alternative is possible or commercially reasonable, the infringing items
shall be returned to Lineo, whose sole liability shall be to refund amounts
paid by LinuxWizardry for the affected copies of the Licensed Products.
Lineo shall have no liability for infringement based on: (a) use, sale or
distribution of other than the current release of the Licensed Products; or
(b) modification of the Licensed Products by any party other than Lineo, or
the combination or use of the Licensed Products with any other computer
program, equipment, product, device, item or process not furnished by
Lineo, if such infringement would have been avoided by the use of the
Licensed Products alone and in their current unmodified form; or (c) other
acts of LinuxWizardry or its sublicensees.
THE ABOVE STATES THE ENTIRE LIABILITY OF LINEO WITH RESPECT TO INFRINGEMENT
OF PATENTS, COPYRIGHTS, TRADEMARKS OR ANY OTHER FORM OF INTELLECTUAL
PROPERTY RIGHT BY ANY PRODUCT SUPPLIED BY LINEO.
b. BY LINUXWIZARDRY. LinuxWizardry agrees to indemnify, defend and hold
Lineo harmless from and against any and all third-party claims, actions,
demands, and related damages, liabilities, costs and expenses arising or
resulting from, or related to, use, marketing, sale, distribution,
modification, or other activities by LinuxWizardry or its sublicensees
under this Agreement or otherwise respecting the Licensed Products.
c. GENERAL CONDITIONS TO INDEMNITY RIGHTS. The forgoing rights and
obligations of indemnity are conditioned on (i) prompt written notification
from the indemnified party to the indemnifying party of the claim for which
indemnity is sought; (ii) sole control in the indemnifying party of the
defense of any action and all negotiations for settlement and compromise;
and (iii) cooperation and assistance from the party seeking
indemnification, including disclosure of information and authority
necessary to perform the above. The indemnified party shall be responsible
for the costs and fees of its own counsel if it desires to have separate
legal representation in any such action.
9. TERM AND TERMINATION
a. TERM AND EXTENSIONS. The initial term hereof shall be as provided in
Schedule A. Unless earlier terminated for breach as provided herein, or
unless either party notifies the other in writing, not later than 30 days
prior to expiration of the initial term, of its intention to terminate the
Agreement upon said expiration, this Agreement shall automatically renew at
the end of the initial term for successive five-year terms. Either party
may notify the other in writing of its intention to terminate this
Agreement not later than 30 days prior to the expiration of any successive
term.
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b. TERMINATION FOR CAUSE. Either party may terminate this Agreement for the
breach by the other party of a material term. The terminating party will
first give the other party written notice of the breach and 30 days in
which to cure the alleged breach. If a cure is not achieved during the cure
period, then the non-breaching party may terminate this Agreement upon
written notice.
c. TERMINATION BY LINEO. Notwithstanding Section 9(b) hereof, Lineo may
terminate this Agreement if LinuxWizardry fails to meet its payment
obligations under this Agreement and this failure continues for 10 days
following receipt of written notice and demand from Lineo.
d. INSOLVENCY, ASSIGNMENT, OR BANKRUPTCY. Either party may, at its option,
immediately terminate this Agreement upon written notice to the other party
if the other party: (i) admits in writing its inability to pay its debts
generally as they become due; (ii) makes a general assignment for the
benefit of creditors; (iii) institutes proceedings to be adjudicated a
voluntary bankrupt, or consents to the filing of a petition of bankruptcy
against it; (iv) is adjudicated by a court of competent jurisdiction as
being bankrupt or insolvent; (v) seeks reorganization under any bankruptcy
act or consents to the filing of a petition seeking such reorganization; or
(vi) is the subject of a decree by a court of competent jurisdiction
appointing a receiver, liquidator, trustee or assignee in bankruptcy or in
insolvency covering all or substantially all of such party's property or
providing for the liquidation of such party's property or business affairs.
e. ACCELERATION OF PAYMENT. Upon termination of this Agreement by Lineo
under Section 9(a), 9(b) or 9(c) hereof, the due dates of all outstanding
invoices to LinuxWizardry for Licensed Products will automatically be
accelerated so that they become due and payable on the effective date of
termination, even if longer terms had been previously granted or allowed.
f. EFFECT OF TERMINATION ON OBLIGATIONS. Upon termination of this Agreement
for any reason, LinuxWizardry shall: (1) immediately cease all use and
reproduction of the Licensed Products and shall cease use and distribution
of all copies previously made; (2) within 30 calendar days after
termination of this Agreement, either deliver to Lineo or destroy all
copies of Licensed Products and Documentation in LinuxWizardry's possession
or under its control, and shall furnish to Lineo an affidavit signed by an
officer of Licensee certifying that, to the best of its knowledge, such
delivery or destruction has been fully effected. Notwithstanding the
foregoing, and provided LinuxWizardry fulfills its obligations specified in
this Agreement with respect to such items, LinuxWizardry may continue to
use and retain copies of the Licensed Products and Documentation to the
extent, but only to the extent, necessary to support and maintain Licensed
Products rightfully directly or indirectly distributed to sublicensees and
End Users by LinuxWizardry prior to termination of this Agreement.
Termination of this Agreement shall not affect rights of sublicensees or
End Users receiving any Licensed Product bundled with or integrated in an
Bundled Product prior to the date of termination, provided, however, that
Lineo shall have received payment of License Fees and other fees owing from
LinuxWizardry therefor.
g. SURVIVAL OF TERMS. Termination of this Agreement shall not relieve
either party of any obligations arising under this Agreement prior to the
date of termination. Any provisions of this Agreement that by their nature
extend beyond the termination of this Agreement, including specifically
obligations owing under Sections 4, 5 and 7 hereof, will survive and remain
in effect until all obligations are satisfied. Confidentiality provisions
shall remain in effect until the Confidential Information is no longer
confidential.
10. GENERAL PROVISIONS
a. PUBLIC ANNOUNCEMENTS AND PROMOTIONAL MATERIALS. Lineo and LinuxWizardry
shall cooperate with each other either to issue a joint press release
and/or to enable each party to issue and post to its web site an
announcement concerning this Agreement, provided that each party must
approve any such press announcement prior to its release. Any separate
release shall be subject to approval by both parties prior to publication
of such release. Lineo shall have the right to use LinuxWizardry's name as
a customer reference.
b. FORCE MAJEURE. If either party is prevented from performing any portion
of this Agreement (except the payment of money) by causes beyond its
control, including labor disputes, civil commotion, war, governmental
regulations or controls, casualty, inability to obtain materials or
services or acts of God, such defaulting party will be excused from
performance for the period of the delay and for a reasonable time
thereafter.
c. DISPUTE RESOLUTION. The parties agree to attempt in good faith to
resolve all disputes arising between them first through expedited mediation
(not to exceed 48 hours from the receipt by a party of the notice described
below) and, if mediation is not successful, through negotiated settlement
or court action. Neither party shall file a lawsuit until the mediation has
been completed, except that in the event that the actions of one party will
cause or are causing the other immediate irreparable injury requiring
temporary injunctive relief and the other party is unwilling to suspend its
planned or existing activity to allow for expedited mediation, the
aggrieved party may file suit and seek such temporary injunctive relief in
a court with jurisdiction over the subject matter of the dispute. Dispute
resolution under this section shall be triggered by one party's service
upon the other of a written notice and request to mediate, identifying the
subject matter of the dispute and the nature of the relief sought. Unless
otherwise agreed in writing at the time of mediation, mediation shall be
conducted through and under the mediation rules of the American Arbitration
Association.
d. LIMITATION OF ACTIONS. No action arising or resulting from this
Agreement, regardless of its form, may be brought by either party more than
two years after termination of this Agreement.
e. THIRD PARTY CLAIMS. Neither party shall be liable for any claim by the
other based on any third party claim, except as stated in Section 7 of this
Agreement.
License Agreement Page 8 of 18
69
f. JURISDICTION. This Agreement will in all respects be governed by and
construed in accordance with the laws of the State of California of the
United States of America, and will not be construed in accordance with or
governed by the United Nations Convention for International Sales of Goods.
g. ATTORNEYS' FEES. If either Lineo or LinuxWizardry employs attorneys to
enforce any rights arising out of or relating to this Agreement, the
prevailing party shall be entitled to recover reasonable costs and
attorneys' fees.
h. WAIVER. No waiver of any right or remedy on one occasion by either party
will be deemed a waiver of that right or remedy on any other occasion.
i. SUPERIOR AGREEMENT. This Agreement will not be supplemented or modified
by any course of dealing or usage of trade. Variance from or addition to
the terms and conditions of this Agreement in any written notification from
LinuxWizardry will be of no effect, unless otherwise expressly provided for
in this Agreement. This Agreement may be amended or modified only by a
writing signed by each party.
j. ASSIGNMENT. This Agreement is not assignable by LinuxWizardry, in whole
or in part, without Lineo's prior written consent. Lineo will not
unreasonably withhold consent to an assignment of this Agreement or any
part of this Agreement to a parent, subsidiary or affiliate of
LinuxWizardry, provided that such entity is at least as capable as
LinuxWizardry of satisfying LinuxWizardry's responsibilities hereunder. Any
attempted assignment without Lineo's written consent will be null and void.
k. NOTICE. Unless otherwise agreed to by the parties, all notices required
under this Agreement (except those relating to product pricing, changes and
upgrades) will be deemed effective when received and made in writing by
either (i) registered mail, (ii) certified mail, return receipt requested.
(iii) overnight mail, addressed and sent to the address indicated on the
Signature Page, to the attention of the person designated as the
responsible representative or to that person's successor, or (iv) by
telephone facsimile transfer appropriately directed to the attention of the
person designated as the responsible representative or to that person's
successor.
l. SEVERABILITY. If any term, provision. covenant or condition of this
Agreement is held invalid or unenforceable for any reason, the remainder of
the provisions will continue in full force and effect as if this Agreement
had been executed with the invalid portion eliminated. The parties further
agree to substitute for the invalid provision a valid provision that most
closely approximates the intent and economic effect of the invalid
provision.
m. INDEPENDENT CONTRACTORS. Each party acknowledges that the parties to
this Agreement are independent contractors and that it will not, except in
accordance with this Agreement, represent itself as an agent or legal
representative of the other.
n. COMPLIANCE WITH LAWS. LinuxWizardry represents and warrants that it
shall comply at its own expense with all applicable laws, rules and
regulations of governmental bodies and agencies, including all laws, rules
and regulations affecting or governing exports, in its performance under
this Agreement.
o. GOVERNMENT RIGHTS. LinuxWizardy agrees (i) to identify the Licensed
Products in all proposals and agreements with the United States Government
or any contractor for the United States Government; and (ii) to identify or
to xxxx the software products provided pursuant to any agreement with the
United States Government or any contractor for the United States Government
as necessary to obtain protection substantially equivalent to that afforded
commercial computer software and related documentation developed at private
expense and provided with Restricted Rights as defined in DOD FAR
Supplement 48 C.F.R. 252.227-70l3(c)(I)(ii) in effect as of May 18, 1987 or
any successor regulation.
p. HEADINGS. The headings provided in this Agreement are for convenience
only and will not be used in interpreting or construing this Agreement.
q. SCOPE OF AGREEMENT. Each of the parties hereto acknowledges that it has
read this Agreement, understands it and agrees to be bound by its terms.
The parties further agree that this Agreement is the complete and exclusive
statement of agreement regarding the subject matter and supersedes all
proposals (oral or written), understandings, representations, conditions,
warranties, covenants and all other communications between the parties
relating thereto. This Agreement may be amended only by a writing that
refers specifically to this Agreement and is signed by both parties.
* * * END OF STANDARD TERMS AND CONDITIONS * * *
license Agreement Page 9 of 18
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APPENDIX I TO SCHEDULE B
SAMPLE END USER LICENSE
LINEO END USER LICENSE AGREEMENT
IMPORTANT-READ CAREFULLY:
You have acquired an item ("Device") that includes software licensed to
[sublicensee Name] ("Company") by Lineo, Inc. ("Lineo"). This Lineo End User
License Agreement ("XXXX") is a legal agreement between you (either an
individual or a single entity) and Lineo for the installed software product of
Lineo origin, as well as associated media, printed materials, and "online" or
electronic documentation ("Software"). Any product provided along with the
Software that is associated with a separate end user license agreement is
licensed to you under the terms of that license agreement. By installing,
copying, downloading, accessing, or otherwise using the Software, you agree to
be bound by the terms of this XXXX. If you do not agree to the terms of this
XXXX, do not use or install the Software. If you have purchased the Software,
promptly return the Software and all accompanying materials with proof of
purchase for a refund.
SOFTWARE LICENSE
The Software is protected by copyright laws and international copyright
treaties, as well as other intellectual property laws and treaties. The Software
is licensed, not sold.
1. GRANT OF LICENSE. This XXXX grants you the following rights:
You may install and use the Software on a single CPU.
2. OTHER RIGHTS AND LIMITATIONS
- Limitations on Reverse Engineering, Decompilation, and Disassembly. You
may not reverse engineer, decompile, or disassemble the Software, except
and only to the extent that such activity is expressly permitted by
applicable law notwithstanding this limitation.
- Rental. You may not rent, lease, sell, sublicense, or lend the Software.
- Transfer. You may permanently transfer rights under this XXXX only as
part of a permanent sale or transfer of the Device, and only if the
recipient agrees to this XXXX.
- Reservation of Rights. Lineo reserves all rights not expressly granted
under this XXXX.
3. COPYRIGHT. Lineo and its suppliers retain all ownership of the Software
and all copies thereof, provided, however, that certain components of the
Software are components licensed under the GNU General Public License (version
2), which Lineo supports. You may obtain a copy of the GNU General Public
License at xxx.xxxxxxx.xxx/XXX/XXXXXXX. Lineo will provide source code for any
---------------------------
of the components of the Software licensed under the GNU General Public License.
To obtain such source code, send email to xxxxxxx-xxxxxxx@xxxxx.xxx. You may
-------------------------
make up to ten copies of electronic documentation accompanying the Software for
each license you have acquired for the Software. If you make copies, you must
include all applicable copyright notices and other proprietary rights legends
that come with the Software.
4. EXPORT. You agree that you will not export or re-export the Software, any
part thereof, or any process or service that is the direct product of the
Software (the foregoing collectively referred to as the "Restricted
Components"), to any country, person or entity subject to U.S. export
restrictions. You specifically agree not to export or re-export any of the
Restricted Components (1) to any country to which the U.S. has embargoed or
restricted the export of goods or services, which currently include, but are not
necessarily limited to Cuba, Iran, Iraq, Libya, North Korea, Sudan, Syria, and
the Federal Republic of Yugoslavia (including Serbia, but not Montenegro), or to
any national of any such country, wherever
License Agreement Page 10 of 18
71
located, who intends to transmit or transport the Restricted Components back to
such country; (ii) to any person or entity who you know or have reason to know
will utilize the Restricted Components in the design, development, or production
of nuclear, chemical or biological weapons; or (iii) to any person or entity who
has been prohibited from participating in U.S. export transactions by any
federal agency of the U.S. Government. You warrant and represent that neither
the Bureau of Export Administration of the U.S. Commerce Department nor any
other U.S. federal agency has suspended, revoked, or denied your export
privileges.
5. GOVERNING LAW AND ATTORNEYS' FEES. This XXXX is governed by the laws of
the State of Utah, USA, excluding its conflict of laws rules, and specifically
excludes the United Nations Convention on Contracts for the International Sale
of Goods. If you acquired this Software in a country outside of the United
States, that country's laws may apply. In any action or suit to enforce any
right or remedy under this XXXX or to interpret any provision of this XXXX, the
prevailing party will be entitled to recover its costs, including reasonable
attorneys' fees.
6. ENTIRE AGREEMENT. This XXXX constitutes the entire agreement between you
and Lineo with respect to the Software, and replaces all other agreements or
representations, whether written or oral. The terms of this XXXX cannot be
modified by any terms in any printed forms used by the parties in performing the
XXXX, and can only be modified by express written consent of both parties. If
any part of this XXXX is held to be unenforceable as written, it will be
enforced to the maximum extent allowed by applicable law, and will not affect
the enforceability of any other part.
Should you have any questions concerning this XXXX, or if you desire to contact
Lineo for any reason, please contact the Lineo representative serving your
company, or send email to: xxxxxxx@xxxxx.xxx.
THE FOLLOWING DISCLAIMER OF WARRANTY AND LIMITATION OF LIABILITY IS INCORPORATED
INTO THIS XXXX BY REFERENCE.
NOT FAULT TOLERANT. THE SOFTWARE IS NOT FAULT TOLERANT. COMPANY HAS
INDEPENDENTLY DETERMINED HOW TO USE THE SOFTWARE IN THE DEVICE, AND LINEO AND
ITS SUBISIDIARIES HAVE RELIED UPON COMPANY TO CONDUCT SUFFICIENT TESTING TO
DETERMINE THAT THE SOFTWARE IS SUITABLE FOR SUCH USE.
NO WARRANTIES FOR THE SOFTWARE. THE SOFTWARE IS PROVIDED "AS IS" AND WITH ALL
FAULTS. THE ENTIRE RISK AS TO SATISFACTORY QUALITY, PERFORMANCE, ACCURACY, AND
EFFORT (INCLUDING LACK OF NEGLIGENCE) IS WITH YOU. ALSO, THERE IS NO WARRANTY
AGAINST INTERFERENCE WITH YOUR ENJOYMENT OF THE SOFTWARE OR AGAINST
INFRINGEMENT. IF YOU HAVE RECEIVED ANY WARRANTIES REGARDING THE DEVICE OR THE
SOFTWARE, THOSE WARRANTIES DO NOT ORIGINATE FROM, AND ARE NOT BINDING ON, LINEO
OR ITS SUBSIDIARIES.
NO LIABILITY FOR CERTAIN DAMAGES. EXCEPT AS PROHIBITED BY LAW, LINEO AND ITS
SUBSIDIARIES SHALL HAVE NO LIABILITY FOR ANY INDIRECT, SPECIAL, CONSEQUENTIAL,
OR INCIDENTAL DAMAGES ARISING FROM OR IN CONNECTION WITH THE USE OR PERFORMANCE
OF THE SOFTWARE. THIS LIMITATION SHALL APPLY EVEN IF ANY REMEDY FAILS OF ITS
ESSENTIAL PURPOSE. IN NO EVENT SHALL LINEO OR ITS SUSIDIARIES BE LIABLE FOR ANY
AMOUNT IN EXCESS OF THE LICENSE FEE PAID BY COMPANY TO LINEO OR ITS SUBSIDIARIES
UNDER THIS XXXX.
License Agreement Page 11 of l8
72
SCHEDULE C
SCOPE OF SERVICE
1. PURPOSE
This document identifies the service requirements and defines the
participation of LinuxWizardry and Lineo in support of this Agreement relative
to the Routers manufactured for LinuxWizardry under this Agreement. It addresses
the specifications, pricing, areas of forecast methodology, material planning,
inventory management, and operational control specific to the purchase, sale and
licensing of the Production Products and Licensed Products acquired by
LinuxWizardry from Lineo pursuant to this Agreement. It will be utilized in
identifying the duties of both the LinuxWizardry and Lineo in fulfilling the
requirements of this program in assuring a successful business engagement.
2. EXCEPTIONS
Any exceptions or change to this Scope of Service must be mutually agreed
to in writing prior to implementation.
3. SPECIFICATIONS AND PRICES OF THE PRODUCTION PRODUCTS AND LICENSED PRODUCTS
The specifications, list of Licensed Products and pricing related to the
Production Products are set forth on Authorized Appendices to this Schedule C.
4. CHANGE PROCESS
Once product has entered the work-in-process (WIP) stage, it is
non-cancelable-non-returnable and shall be invoiced to LinuxWizardry according
to original schedule date or at time of completion. LinuxWizardry may request
reschedule changes to product in WIP and after review of product status by
Lineo, Lineo may allow for schedule changes if such request does not result in
product liability. If requested change results in product liability and
LinuxWizardry gives Lineo direction to proceed with requested change, then
LinuxWizardry shall issue that direction in writing acknowledging applicable
cost impact and LinuxWizardry's liability. Lineo will respond in writing of
acceptance and implementation of the requested change and issue to
LinuxWizardry, applicable invoice related to LinuxWizardrys liability. Lineo
will not implement requested change until invoice for associated liability has
been issued to Linux Wizardry.
If Lineo receives a corrective action request from LinuxWizardry, Lineo is
requested to provide an acknowledgement of receipt within two (2) business days.
Upon receipt of corrective action request, Lineo will review and implement
measures to prevent further occurrence. Lineo will notify LinuxWizardry in
writing upon the implementation of the corrective action plan.
5. FORECAST METHODOLOGY
LinuxWizardry agrees to use its best efforts to provide Lineo with a
non-binding, 12 Month rolling forecast of required products and quantities,
updated on a monthly basis. The forecast shall be provided by way of e-mail.
LinuxWizardry shall provide a schedule and maintain firm order requirements with
Lineo for a minimum of ninety (90) day periods.
Lineo will use its best efforts to pipeline product in support of
LinuxWizardry's forecast. Lineo will use its best efforts to keep LinuxWizardry
informed of current lead times and any other factors that could potentially
impact timely deliveries in support of LinuxWizardry's forecast. Lineo will make
best efforts commensurate to its business process in meeting LinuxWizardry's
requirements.
License Agreement Page 12 of 18
73
If LinuxWizardry requests Lineo to provide material upside coverage in
support of unforeseen increases in LinuxWizardry's forecast, that upside will be
inclusive in the monthly forecast quantity. In the event of an unforeseen
increase above and beyond the forecast and upside requirement, LinuxWizardry and
Lineo agree to negotiate the cost of premium freight and/or unit cost price
variance resulting from this unforeseen demand.
At LinuxWizardry's reasonable request, Lineo will provide to LinuxWizardiy
a liability report documenting all products that Lineo has in inventory, or in
the pipeline, in support of LinuxWizardry's forecast and the requirements of
this Scope of Service. Such report will include description, quantity and Linux
Wizardry's price, if known at that time.
Lineo will review and react to demand changes to LinuxWizardry's forecast
on a weekly basis so that changes are facilitated with Lineo's suppliers in a
timely manner. Lineo will review and respond with any unsupportable deliveries
to the e-mailed forecast within forty-eight (48) hours of receipt. Lineo's
pipeline shall be subject to material lead times with Lineo exerting all
reasonable effort to minimize potential delivery times.
6. MATERIAL PLANNING, PROCUREMENT AND LOGISTICS
Delivery will be made to LinuxWizardry's designated location via agreed
upon carrier as stated in LinuxWizardry's purchase order. The delivery schedule
shall be in accordance with LinuxWizardry's forecast. The trigger method
designating material release from Lineo to LinuxWizardry shall be
LinuxWizardry's Purchase Order. The minimum purchase quantities shall be 250
units of any type of the 2500 Series Routers.
LinuxWizardry retains the right to adjust purchase order delivery schedules
as required, upon approval from Lineo. Notification from LinuxWizardry to Lineo
to adjust purchase order schedules will occur in writing.
Lineo shall submit invoices to LinuxWizardry on a monthly basis unless
otherwise agreed to in writing by Lineo.
7. Discrepant Material
LinuxWizardry shall have thirty (30) days to reject material arriving at
the designated location.
In the event that material arrives at LinuxWizardry's designated location
in a damaged or non-functioning condition, LinuxWizardry will notify/request an
RMA (Return Material Authorization) from Lineo. This RMA must be issued to
LinuxWizardry within 48 hours of notification to Lineo. Freight costs to return
defective product to Lineo and Lineo's replacement product to LinuxWizardry are
the responsibility of Lineo. At time of issue of the RMA, depending on return
quantity, Lineo will advise LinuxWizardry of lead-time for replacement, which
should not exceed 12 weeks.
8. MATERIAL MANAGEMENT / BUSINESS REVIEW
Lineo may provide a material management plan within thirty (30) days of the
Effective Date of this Agreement. Lineo may appoint and identify to
LinuxWizardry, a Material / Program Manager specifically charged with the
responsibility of overseeing the overall program effort.
LINEO SHALL PARTICIPATE IN AND SUPPORT PROGRAM REVIEW MEETINGS AT INTERVALS,
MINIMALLY ONCE PER QUARTER, THROUGHOUT THE PERIOD OF PERFORMANCE OF THIS
AGREEMENT AS DEEMED APPROPRIATE BY LINUXWIZARDRY. THESE MEETINGS SHALL PROVIDE
AN OVERVIEW OF LINUXWIZARDRY'S AND LINEO'S OVERALL PERFORMANCE, ISSUES, SCHEDULE
STATUS, FORECAST ACCURACY, INVENTORY POSITION AND REPORTS PRESENTED BY VARIOUS
DISCIPLINES WITHIN BOTH PARTIES ORGANIZATION. LINUXWIZARDRY OR LINEO MAY
SCHEDULE SPECIAL
License Agreement Page 13 of 18
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REVIEWS AT ANY TIME IF IT IS DETERMINED THAT A HIGH-RISK SITUATION EXISTS. DATES
AND LOCATIONS OF SUCH MEETINGS SHALL BE DETERMINED BY MUTUAL AGREEMENT.
License Agreement Page 14 of 18
75
APPENDIX I TO SCHEDULE C
"2500-SERIES ROUTER"
ROUTER SPECIFICATIONS, LICENSED PRODUCTS DELIVERABLES AND PRICE LIST
ROUTER SPECIFICATIONS:
----------------------
NEEDS TO SUPPORT FULL RATE ADSL AND G.LITE:
- ANSI T1.413 Issue 2
- ITU 0.992. 1 Annex A. (G.dmt)
- ITU G.992.2 (G.Lite)
- 1 serial port for external analog or ISDN modem for interim or backup
Internet access
LAN INTERFACE:
- NAT enabled routing
- DHCP server
- TFTP client
- DNS masquerading
- Web Server (Must support CGI)
PROTOCOLS:
- TCP/IP
- RIP I
- RFC 1483 (partial)
- PPP over ATM
- PPP over Ethernet
OPERATING SYSTEMS:
SECURITY:
- Address translation protecting private LAN addresses
- Packet filtering
- Administrative password
IP SUPPORT:
- Single static IP (NAT)
- Multiple static IPs
MANAGEMENT:
- SNMP MIB II
- Browser_based configuration
- Command line interface via telnet or console port
- Import/Export of configuration
- Reset button for factory defaults
HARDWARE:
- 4 Ethernet Hub
- 2 MB flash memory
- 16 MB SDRAM
License Agreement Page 15 of 18
76
OPERATING ENVIRONMENT:
- Temperature: 40 F to 105 F (5 C to 40 C)
- Humidity: 20% to 80% noncondensing
- Weight: 1.22 lbs. (0.55 kg)
INTEROPERABILITY:
- Must support Alcatel DSLAM and should be interoperable across a wide
range of Full Rate & G.Lite DSLAMs
LICENSED PRODUCTS:
------------------
The Licensed Products relating to this 2500-Series Router shall be the design of
the 2500-Series Router, the standard Lineo NETeI operating system and
application software (except that application software properly developed by
LinuxWizardry), including the source code listed below, and related
Documentation (modified to operate LinuxWizardry's proprietary application
software):
Source Code:
------------
- boa HTTP Server
- bpalogin BigPond Advanced Login
- chat Modem Communications
- dhcpd DHCP Server
- dhcpcd DHCP Client
- diald Dial Out
- discard Delete Files
- expand Copy Files
- flashw Update Flash
- flatfsd Flat File System Daemon
- gettyd Dial In
- ifconfig Network Configuration
- inetd I Net Daemon
- ipfwadm firewall! Masquerading Tool
- ipportfw Port Forwarding Tool
- null Debug Program
- ping Ping
- pppd ppp Daemon
- pptpctrl PPTP Control
- pptpd PoPToP
- telnetd Telnet Server
- telnet Telnet Client
- uCLinux Operating System
- winds Win Server
Only the above-listed items are licensed hereunder. The LinuxWizardry
application software is the exclusive property of Linux Wizardry and is not
considered a "Licensed Product" herein.
License Agreement Page 16 of 18
77
PRICE LIST:
------------
PRODUCTION PRODUCTS PURCHASED FROM LINEO:
--------------------------------------------
For volumes of 0 to 1,000 2500-Series Routers purchased by LinuxWizardry during
any calendar month, the price per Router shall be Lineo's Manufacturing Cost
plus 45%.
For volumes of 1,001 to 3,000 2500-Series Routers purchased by LinuxWizardry
during any calendar month, the price per Router shall be Lineo's Manufacturing
Cost plus 42%.
For volumes of more than 3,000 2500-Series Routers purchased by LinuxWizardry
during any calendar month, the price per Router shall be Lineo's Manufacturing
Cost plus 38%.
LinuxWizardry shall pay for such Production Products within 30 days of the date
of each such Lineo invoice.
Lineo shall use its best efforts to negotiate favorable pricing with each
Manufacturer. Lineo shall provide copies of its invoices and any other
supporting documentation of its Manufacturing Cost.
LICENSE FEES:
--------------
Where LinuxWizardry orders or acquires the 2500-Series Routers from any source
other than Lineo, LinuxWizardry shall pay to Lineo a License Fee for each such
Router according to volume as follows:
For volumes of up to 500,000 2500-Series Routers purchased by LinuxWizardry
from any source, the License Fee per Router shall be $15.00, provided that
LinuxWizardry shall only be obligated to pay Lineo this License Fee for
those Routers purchased from a manufacturer other than Lineo.
For volumes of 500,001 to 1,000,000 2500-Series Routers purchased by
LinuxWizardry from any source, the License Fee per Router shall be $10.00,
provided that LinuxWizardry shall only be obligated to pay Lineo this
License Fee for those Routers purchased from a manufacturer other than
Lineo.
For volumes of more than 1,000,000 2500-Series Routers purchased by
LinuxWizardry from any source, the License Fee per Router shall be $5.00,
provided that LinuxWizardry shall only be obligated to pay Lineo this
License Fee for those Routers purchased from a manufacturer other than
Lineo.
License Agreement Page 17 of 18
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SCHEDULE D
LICENSED MARKS
Lineo(TM)
Moreton Bay(TM)
Embedix(C)
Embedix Linux(C)
Embedix SDK(C)
Embedix Browser(C)
License Agreement Page 18 of 18
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