CALDERA SYSTEMS IBV BUSINESS PARTNER AGREEMENT
This is a software development and marketing agreement. Caldera Systems, Inc.,
a Utah corporation ("Caldera"), and Merlin Softech, a Nevada corporation
("ISV"), enter into this Agreement effective as of the last date following the
signatures below.
1. Definitions
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A. Product means the "Caldera means the "Caldera OpenLinux" product,
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version 2.1 and greater.
B. OpenLinux Solutions CD means the application CD which is a collection of
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software applications of third parties that is periodically distributions by
Caldera.
C. Confidential Information means any Information identified as being
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Confidential Information, by either party, either orally or in writing at the
time it is disclosed, or designated as confidential in writing (either
electronically or by other means) within 30 days following such disclosure.
Confidential Information shall not include any information that the receiving
party can demonstrate (I) was already in the possession of the receiving party
without obligation of confidence prior to the disclosure, (ii) was independently
developed by the receiving party or (iii) becomes available to the general
public through no action by the receiving party.
2. Participation Fees
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A. ISV shall pay to Caldera an annual participation fee of $405.00. This
payment shall be non-refundable. Payment shall be in U.S. funds, and shall be
due at the time of execution of this Agreement. Caldera shall incur an
obligation pursuant to this Agreement unless and until Caldera receives payment
from ISV as set forth in this section.
3. Press Release
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X. Xxxxxxx and ISV may desire to cooperate in the release of a press ????.
Neither party shall issue a press release related to this Agreement without
first obtaining the approval from the other party.
X. Xxxxxxx shall develop and maintain on its web site an index of software
application products available for Caldera OpenLinux and shall list the
applicable products of ISV on such list. The information to be provided on the
index shall be supplied by ISV via the attached Schedule A, and shall be
submitted to Caldera at the time of execution of this Agreement.
C. ISV grants to Caldera, and Caldera accepts the right and license to use and
display the name, corporate logo, and other trademarks of ISV on Caldera's web
site and in other promotional and marketing materials related to ISV and
Caldera's ISV Partner Program. Caldera shall comply with the reasonable logo
and trademark usage guidelines of ISV that it delivers to Caldera. All use of
the name, corporate logo, and other trademarks of ISV by Caldera under this
Agreement shall inure solely to the benefit of ISV.
4. Solutions CD
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A. ISV shall have the option, but not the obligation, to apply for
participation in the OpenLinux Solutions CD program. The terms and conditions
for the OpenLinux Solutions CD Program are set forth in Exhibit A of this
Agreement. The submission to Caldera of Exhibit A signed by ISV shall be
described as to be an acceptance of the terms and conditions of Exhibit A and
shall be deemed to be ISV's application for participation in the OpenLinux
Solutions CD. Caldera reserves the right to determine in its ???? discretion
whether ISV is selected for participation in the OpenLinux Solutions CD.
5. ISV Support
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X. Xxxxxxx shall establish and maintain during the term of this Agreement
on-line resources for ISV. Such resource shall be developed by Caldera in his
discretion, and may include paid-for technical support, a ???? forum for ISV,
technical ????? projects, documentation related to the development of software
application programs for OpenLinux and other technical resources.
6. Proprietary Right
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A. Each party acknowledges and agrees that the other party may own certain
intellectual property rights, including, without limitation, patent, copyright,
trade secret and trade-xxxx rights. Other than as set forth in this Agreement,
each party retains all right, title and interest to its intellectual property.
This Agreement grants no implied license or other rights with respect to any
intellectual property insured of either party.
7. Term and Termination
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A. This Agreement shall be effective on the date that the payment of fees
as described in Section 2 of this Agreement is completed and the Agreement is
signed by both parties below. The initial terms shall be one year from the date
executed. The term of this Agreement shall automatically renew for one-year
increments thereafter until one party gives written notice of termination to the
other party.
B. Either party may terminate this Agreement for any reason by providing
30 days written notice to the other party. Either party may terminate this
Agreement immediately. In the event that the other party becomes insolvent,
makes a general assignment for the benefit of creditors, or avails itself of or
????? subject to any proceeding in bankruptcy or other proceeding relating to
insolvency or protection of creditors.
8. Limitation of Liability
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X. Xxxxxxx'x aggregate liability for damages claimed under this Agreement
and arising out of Caldera's performance of services hereunder shall be limited
to the total fees paid by ISV to Caldera. TO THE MAXIMUM EXTENT PERMITTED BY
APPLICABLE LAW, IN NO EVENT SHALL CALDERA BE LIABLE TO ISV OR TO ANY THIRD PARTY
FOR ANY SPECIAL, INDIRECT, INCIDENTAL, OR CONSEQUENTIAL DAMAGES, PUNITIVE
DAMAGES, OR ANY DAMAGES RESULTING FROM LOSS OF DATA, USE OF PROFITS, OR LOSS OF
CONTRACTS OR BUSINESS OPPORTUNITY, ARISING OUT OF THIS AGREEMENT OR THE USE OF
OR INABILITY TO USE THE PRODUCT OR ARISING OUT OF CALDERA'S PERFORMANCE OR
NON-PERFORMANCE HEREUNDER, WHETHER OR NOT REASONABLY FORESEEABLE AND EVEN IF
CALDERA HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES AND REGARDLESS OF
THE FORM OF ACTION, WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT
LIABILITY, ARISING UNDER STATUTE OR OTHERWISE.
9. Disclaimer of Warranty
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A. To the maximum extent allowable by applicable law, THE GOODS AND
SERVICES PROVIDED BY CALDERA PURSUANT TO THIS AGREEMENT ARE PROVIDED "AS IS" AND
CALDERA MAKES NO WARRANTY TO ANY PERSON OR ENTITY OF ANY KIND, EXPRESS OR
IMPLIED, INCLUDING, WITHOUT LIMITATION, ANY CONDITIONS OF QUALITY AND ANY
IMPLIED WARRANTY OF TITLE, NON-INFRINGEMENT, MERCHANTABILITY OR FITNESS FOR A
PARTICULAR PURPOSE.
10. Confidentiality
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X. Xxxxxxx and ISV agree that, during the term of this Agreement, each
party may disclose to the other certain Confidential Information. In the event
of such disclosure, each party agreed that it will not use the other party's
Confidential Information except to achieve the purpose of this Agreement, and
will not disclose such Confidential Information to any third party.
The receiving party may disclose Confidential Information to its employees,
agents and contractors with a bona fide need to know such Confidential
Information, but only to the extent necessary to discharge their duties under
this Agreement, and only if such employees, contractors, agents, as the case may
be, are advised of the confidential nature of such Confidential Information and
are bound by a written agreement to protect the confidentiality of such
Confidential Information.
B. The obligation of this section shall survive for three years after the
termination of this Agreement.
11. Force Majeure
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A. Neither party shall be liable for its failure to perform any of its
obligations hereunder, including, but not limited to, delivery obligations,
during any period in which such failure of performance is caused by an act of
God; act of any federal, state, or local governmental authority; fire or flood;
strike or labour unrest; degradation of telecommunications service; degradation
of computer services not under the direct control of such party; or unusually
severe weather conditions. Delays in delivery due to events beyond either
party's reasonable control shall automatically extend the delivery date for a
period equal to the duration of such events.
12. Miscellaneous
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A. This Agreement is not an exclusive arrangement, and each party remains
free to enter into similar arrangements with other parties.
B. This Agreement shall be governed by and shall be construed in
accordance with the laws of the State of Utah, U.S.A., regardless of its choice
of law provisions. The parties each agree that they are subject to the personal
jurisdiction of the state and federal courts within the State of Utah, and each
waives the right to challenge the personal jurisdiction of those courts over it.
The United Nations Convention on Contracts for the International Sale of Goods
shall not apply to this Agreement.
C. Any notice under this Agreement shall be in English, in writing, and
shall be deemed to be given upon receipt. Notices to Caldera shall be delivered
to Caldera Systems, Inc., Attn: Legal Dept., 000 Xxxx Xxxxxx Xxxxxx, X????,
XX00000 XXX
D. This Agreement, including all Schedules, constitutes the entire
understanding of the parties. This Agreement supersedes and terminates all
representations, warranties and agreements, written or oral, regarding the
subject matter of this Agreement. Any modifications to this Agreement must be
in writing signed by both parties.
E. All covenants and obligations of sections 6, 8, 9, 10 and 12 of this
Agreement shall survive the termination of this Agreement.
F. If one or more of the provisions contained in this Agreement is held
invalid, illegal or unenforceable in any respect by any court of competent
jurisdiction, such holding will not impair the validity, legality or
enforceability of the remaining provisions.
G. Headings in this Agreement are used for convenience of reference only
and do not affect the interpretation of the provisions.
H. Failure or delay on the part of any party to exercise any right,
remedy, power or privilege hereunder will not operate as a waiver. Any waiver
must be in writing and signed by the party granting such waiver in order to be
effective.
I. In the event that Caldera is merged with or consolidated into any other
entity, or in the event that substantially all of the assets of Caldera are sold
or otherwise transferred in any other entity, the provisions of this Agreement
will be binding upon, and inure to the benefit of, such other entity.
J. Nothing in this Agreement shall be construed to make the parties
partners, joint venturers, representatives, or agents of each other, nor shall
either party so represent itself.
To show their ???????, the duly authorized
representatives of the parties hereto have signed this Agreement.
CALDERA SYSTEMS INC. ("Caldera")
Name: [ ]
Signature: [ ]
Title: [VP, MARKETING]
Date: [2/17/00]
("ISV") [MERLIN SOFTWARE
TECHNOLOGIES INC.]
Name: [XXXXXXX XXXXXXXXXX]
Signature: [Xxxxxxx Xxxxxxxxxx]
Title: [V.P. MARKETING]
Date: [Feb. 10, 2000]
SCHEDULE A - PARTNER & PRODUCT INFORMATION
ISV PARTNER INFORMATION
Contact Name: [Xxxxxxx Xxxxxxxxxx]
Company Name: [Merlin Softech]
Address: [Suite 420 - 6450 Xxxxxxx Street]
City: [Burnaby]
State/Province: [B.C.]
Country: [Canada]
Web site: [xxx.xxxxxxxxxxxxx.xxx]
PRODUCT INFORMATION
Product Name: [Perfect Backup +]
Version Number: [6.2]
Description (50 words or less): [Perfect backup + 6.2 is a Linux based crash
recovery and backup application suite. Users can backup and verify their
systems totally unattended. Perfect Backup+6.2 will backup Linux, Van, Windows
and Macintosh systems. It provides backup scheduling and remote backup,
recovery, encryption, robotics, module, enhanced security with both graphical
and character users interface.]
Product Web site: ---------------------------------------
Works with OpenLinux versions:
1.x
2.2
[X] 2.3
Retail price: [$69 US download]
[$89US + $15 shipping and handling (retail box w/manual)]
