Exhibit 10.11
LINDOWOS(TM) LICENSE AGREEMENT
This LindowsOS(TM) License Agreement (the "Agreement") is entered into
as of November ___, 2003 (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 ("Licensor"), on the one hand, and
SYNNEX Corporation, a Delaware corporation, whit its principal office located at
0000 Xxxxxxxxx Xxxxx, Xxxxxxx, Xxxxxxxxxx 00000, and SYNNEX Corporation's wholly
owned subsidiary SYNNEX Canada Limited, an Ontario corporation, with its
principal office located at 000 Xxxxxx Xx., Xxxxxxxxxx, XX X0X 0X0,
(collectively SYNNEX Corporation and SYNNEX Canada Limited shall hereinafter be
referred to as "Licensee").
WHEREAS, Licensor has entered into a license agreement with Seagate
Technology LLC, a Delaware Limited Liability Company with its principal office
located at 000 Xxxx Xxxxx, Xxxxxx Xxxxxx, XX 00000, ("Seagate"), (such agreement
hereinafter referred to as the "Xxxxxxx.xxx Partnership License Agreement")
pursuant to which Seagate has the limited right to pre-install the Xxxxxxx.xxx
Software Product (as defined in Section 1 below) on Seagate Products (as defined
in Section 1 below) in order to create Composite Products (as defined in Section
1 below) and to distribute in object code as an integrated part of a Composite
Product the Xxxxxxx.xxx Software Product;
WHEREAS, Seagate at this time desires to have Licensee perform such
pre-installation and such distribution; and
WHEREAS, Licensor agrees to license to Licensee and Licensee agrees to
receive a license to perform such pre-installation and distribution pursuant to
the terms and conditions of this Agreement;
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 "Composite Product" means Seagate Products on which the
Xxxxxxx.xxx Product Software has been installed 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
Composite Product either alone or installed in a Computer for personal and/or
internal business use and not for reselling or distribution.
1.4 "Hard Disk Drive" means a computer hardware product (a)
designed to perform the operations of recording, detecting and erasing
representations of any form of information, intelligence or data; (b) which
includes the following elements: (i) a single enclosure containing during such
operations (w) at least one rigid rotating magnetic disk, (x) at least one
motor-driven spindle for engaging and rotating the magnetic disk, (y) at least
one magnetic head assembly and (z) at least one actuator assembly for
positioning an magnetic head across a disk, and (ii) electronic components used
in operating the aforementioned elements; and (c) all the elements of which,
when assembled, form an integrated unit.
1.5 "Seagate Product(s)" means any new or refurbished computer
Hard Disk Drive designed, manufactured or refurbished, and distributed by or for
Seagate and sold to Licensee by Seagate.
1.6 "Xxxxxxx.xxx Branding Features" means Licensor's proprietary
trade names, trade dress, service marks, trademarks, logos, and indicia of
origin and other distinctive branding features specified in Exhibit A hereto.
1.7 "Xxxxxxx.xxx Software Product" means certain computer programs
including the LindowsOS(TM) and related documentation and interface
specifications developed, owned, licensed, otherwise controlled, and/or
distributed by Licensor, as more
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specifically set forth at the website
xxxx://xxx.xxxxxxx.xxx/xxxxxxx_xxxxxxxx.xxx or any successor website thereto,
and any Updates to the foregoing computer programs and related documentation and
interface specifications.
1.8 "Xxxxxxx.xxx Software Product Master Disk" means a master disk
image of the Xxxxxxx.xxx Software Product as made available to Licensee by
electronic download at xxxx://xxxxxxx.xxxxxxx.xxx or any successor website
thereto or on CD-ROM or other media.
1.9 "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.
1.10 "Reseller" means a person or entity that distributes Composite
Products directly or through other Resellers to End-Users, Composite Products
directly or through other Resellers to System Builders, or Composite Products
integrated into Computers directly or through other Resellers to End-Users.
1.11 "System Builder" means a third party that manufactures itself
or has manufactured for its benefit and account Computers.
1.12 "Update" means a new version, new release, upgrade, update,
bug fix, patch, work around, or other enhancement, modification, or revision of
the Xxxxxxx.xxx Software Product that is designated as such by Licensor, made
available by Licensor at the Xxxxxxx.xxx Builder website
xxxx://xxxxxxx.xxxxxxx.xxx or any successor website thereto, and provided by
Licensor to Licensee pursuant to this Agreement.
2. [THIS SECTION 2 INTENTIONALLY LEFT BLANK.]
3. LICENSE.
3.1 GRANT. Subject to the restrictions set forth in Section 3.2.
4.5, 4.6, 5 and 6 below and the other terms and conditions of this Agreement,
Licensor hereby grants to Licensee a non-exclusive, nontransferable,
nonsublicensable (except as expressly provided herein), limited right and
license only in the United States and Canada solely (a) only to the extent and
as expressly and specifically authorized and requested by Seagate, use the
Xxxxxxx.xxx Software Product Master Disk provided by Licensor solely to install
the Xxxxxxx.xxx Software Product on Seagate Products only to create Composite
Products, (b) to distribute the Xxxxxxx.xxx Software Product only in executable
form and only as installed on and as an integrated part of a Composite Product
to Resellers and System Builders and (c) to publicly display Xxxxxxx.xxx
Branding Features pursuant to Licensor's Trademark Guidelines attached hereto as
Exhibit A solely on Composite Product(s) and to promote and market Composite
Product(s) ((a) through (c), 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.
3.2 RESTRICTIONS. Subject to Section 4.6 below, Licensee will not:
(a) copy, reproduce, distribute or otherwise make available the Xxxxxxx.xxx
Software Product Master Disk or any Xxxxxxx.xxx Software Product or any portion
or element thereof except as and to the extent expressly authorized herein and
by Licensor; (b) translate, adapt, enhance, create derivative works of or
otherwise modify the Xxxxxxx.xxx Software Product Master Disk or any Xxxxxxx.xxx
Software Product, except as expressly set forth in Section 3.1 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 Xxxxxxx.xxx Software Product Master Disk or
any Xxxxxxx.xxx Software Product or any portion or element thereof, (d) use the
Xxxxxxx.xxx Software Product Master Disk or the Xxxxxxx.xxx Software Products 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 Sections 3.1 (b) above),
or remove, destroy, obscure or alter any Xxxxxxx.xxx Branding Features or any
related materials placed on or contained within the Xxxxxxx.xxx Software Product
Master Disk, any Xxxxxxx.xxx Software Product, or any Composite Product.
4. LICENSEE DUTIES.
4.1 COMPATIBILITY TESTING. Prior to distributing the initial or
modified Composite Products, Licensee shall provide Licensor and its licensors
and suppliers a reasonable opportunity to test and ensure the compatibility and
interoperability of the Xxxxxxx.xxx Software Products with Seagate Products and
Composite Products and to ensure that Composite
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Products function correctly. The foregoing shall include providing Licensor and
its licensors and suppliers in advance a reasonable number of test units.
4.2 NO CHARGE FOR XXXXXXX.XXX SOFTWARE PRODUCTS. Licensee shall
not charge any Reseller, System Builder, End User or other party directly or
indirectly for the Xxxxxxx.xxx Software Product.
4.3 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/xxxxxxx and the
LindowsOS License Agreement ("Xxxxxxx.xxx XXXX") currently located at
xxxx://xxx.xxxxxxx.xxx/xxxx in any distribution of a Xxxxxxx.xxx Software
Product or a Composite Product, whether such Composite Product is distributed
alone or installed in and as part of a Computer. In addition, Licensee shall
place and affix in a conspicuous place on bulk and individual unit packaging for
Composite Products a notice that any use, distribution or other disposition of
the Xxxxxxx.xxx Software Product and a Composite Product other than by an End
User is subject to the Builder Agreement and that any use, distribution or other
disposition of the Xxxxxxx.xxx Software Product and a Composite Product by an
End User is subject to the Xxxxxxx.xxx XXXX. When Licensor includes "click wrap"
versions of the Builder Agreement and Xxxxxxx.xxx XXXX on the Xxxxxxx.xxx
Software Product Master Disk, then Licensor shall provide written notice to
Licensee of the same and Licensee shall then be able to satisfy its obligation
to include a copy of the Builder Agreement and Xxxxxxx.xxx XXXX by not removing
or otherwise interfering with the operation of such click wrap versions.
4.4 NO WARRANTIES. Licensee shall not make any representation or
warranty binding on or purporting to bind Licensor, 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 Xxxxxxx.xxx Software Product Master Disk, Xxxxxxx.xxx Software
Product and/or Composite Products, and Licensee shall disclaim all warranties
implied by law and other warranties to the maximum extent permitted by
applicable law.
4.5 EXPORT COMPLIANCE. Licensee shall comply strictly with all
United States import and export regulations (and 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 Xxxxxxx.xxx
Software Product Master Disk, Xxxxxxx.xxx Software Product, and any associated
technical data, including, but not limited to where a Xxxxxxx.xxx Software
Product is installed on a Licensor Product or on Computers via a Composite
Product.
4.6 OPEN SOURCE AND THIRD PARTY LICENSES. Certain Software
Programs, or portions thereof, included in the Xxxxxxx.xxx Software Product 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 Xxxxxxx.xxx Software Product. 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
Xxxxxxx.xxx Software Product. 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 xxx.xxxxxxx.xxx/xxxxxxxxx (xxxx://xxx.xxxxxxx.xxx/xxxxxxxxx). To the
extent the GPL, other similar open source license agreements or other third
party agreements require Licensor to provide rights to the applicable portions
of the Xxxxxxx.xxx Software Product 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 4.6 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.
5. LICENSEE ACKNOWLEDGEMENT. Although the Xxxxxxx.xxx Software Product is
copyrighted, Licensee acknowledges and agrees that the Xxxxxxx.xxx Software
Product and the Xxxxxxx.xxx Software Product Master Disk embody valuable trade
secrets proprietary to Licensor. Except for the rights and licenses expressly
granted to Licensee in this Agreement, and subject to Section 4.6, Licensee
acknowledges and agrees that Licensor reserves and retains all right, title and
interest (including, without limitation, all Proprietary Rights) in and to the
Xxxxxxx.xxx Software Product Master Disk, the Xxxxxxx.xxx Software Product, the
Xxxxxxx.xxx Branding Features and the Licensor Confidential Information. Subject
to the license granted in Section 3.1(b), Licensee hereby acknowledges and
agrees that Licensee has no right, title or interest in or to the
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Xxxxxxx.xxx Branding Features, and all benefits from the use of the Xxxxxxx.xxx
Branding Features shall automatically vest in Licensor. 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 Licensor, or (iv) take any action inconsistent with
Licensee'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 Licensor in this Agreement.
6. CONFIDENTIALITY.
6.1 CONFIDENTIAL INFORMATION. Each party acknowledges that, in the
course of exercising its rights or performing its obligations under this
Agreement, it may obtain confidential information relating to the other party,
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 Xxxxxxx.xxx Software Product
Master Disk and the Xxxxxxx.xxx Software Product, the terms of this Agreement,
and as it relates to the Xxxxxxx.xxx Software Product Deliverables and
Xxxxxxx.xxx Software Product, 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 performance
information, software documents and other technical, business, product,
marketing and financial information, plans and data; (b) any information
designated by either party 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 Licensor, any sublicensees, Seagate
Products and Composite Products, including but not limited to, technical data,
product design and development, sales information, quantity and kind of Seagate
Products and/or Composite 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 Licensor and/or Seagate. Neither party may use the
Confidential Information of the other 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. The parties
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 under a duty of confidentiality consistent with
this Section 6.
6.2 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 the receiving party at the time of its
disclosure by the disclosing party; (b) is or becomes publicly known through no
wrongful act; (c) is received from a third party free to disclose it without any
confidentiality obligation; or (d) is independently developed without access to
Confidential Information.
6.3 DISCLOSURES REQUIRED BY LAW. In the event a party is required
by law, regulation or court order to disclose Confidential Information, it will
promptly notify the other party in writing prior to making any such disclosure
in order to facilitate the other party's ability to seek a protective order or
other appropriate remedy from the appropriate body. Each party further agrees
that if it 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 6 shall remain Confidential Information
or all other purposes.
6.4 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 the aggrieved
party shall be entitled to specific performance and/or injunctive relief in
addition to other remedies at law or in equity. This Section 6.4 shall not be
construed to preclude either party from seeking equitable relief under any other
section of this Agreement.
7. TERM AND TERMINATION.
7.1 TERM. Unless earlier terminated in accordance with Section 7.2
below, this Agreement shall commence as of the Effective Date and shall
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continue in effect until (a) termination of this Agreement by either party upon
thirty (30) days written notice or (b) the termination of the Xxxxxxx.xxx
Partnership License Agreement in accordance with its terms, whichever is
earlier.
7.2 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, including but not limited to any
sublicenses granted at any tier below Licensee, will terminate. Upon the
expiration or termination hereof, Licensee shall cease distributing Composite
Products; provided that, except where Licensor terminated this Agreement
pursuant to default under this Section 7.2, Licensee shall have the right to
distribute Composite Products existing as of the date of termination and in its
possession or control for a period of one hundred and twenty (120) days after
termination. The rights and obligations of the parties under Sections 1, 3.2,
4.2, 4.3, 4.4, 4.5, 6, 7, 9.1, 9.2 and 10 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.
8. [THIS SECTION 8 INTENTIONALLY LEFT BLANK.]
9. DISCLAIMER; LIMITATION OF LIABILITY; INDEMNIFICATION.
9.1 NO WARRANTY. LICENSOR MAKES NO WARRANTY TO LICENSEE OF ANY
KIND WITH REGARD THE XXXXXXX.XXX SOFTWARE PRODUCTS, THE XXXXXXX.XXX SOFTWARE
PRODUCT MASTER DISK, THE SEAGATE PRODUCTS, THE COMPOSITE PRODUCTS, OR ANY
CONFIDENTIAL INFORMATION. WITHOUT LIMITING THE GENERALITY OF THE FOREGOING, TO
THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, LICENSOR, FOR ITSELF AND ON
BEHALF OF SEAGATE AND LICENSOR'S LICENSORS ANY SUPPLIERS, EXPRESSLY DISCLAIMS
ANY WARRANTIES, EXPRESS, STATUTORY OR IMPLIED, INCLUDING BUT NOT LIMITED TO ANY
WARRANTIES OF PERFORMANCE, CONDITION, XXXXXX, 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.
9.2 LIMITATION OF LIABILITY. EXCEPT FOR A BREACH OF THE LICENSE
(INCLUDING BUT NOT LIMITED TO ANY APPLICABLE RESTRICTIONS TO THE SAME) IN
SECTION 3 BY LICENSEE, BREACH OF SECTION 6 BY EITHER PARTY, AND THE PARTIES'
INDEMNIFICATION OBLIGATIONS IN SECTION 9.3, TO THE MAXIMUM EXTENT PERMITTED BY
APPLICABLE LAW, IN NO EVENT SHALL EITHER PARTY AND LICENSOR'S LICENSORS AND
SUPPLIERS HAVE ANY OBLIGATION OR LIABILITY (WHETHER IN TORT, CONTRACT, WARRANTY,
STRICT LIABILITY OR UNDER ANY OTHER LEGAL THEORY) TO THE OTHER PARTY, 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. EXCEPT FOR A
BREACH OF THE LICENSE (INCLUDING BUT NOT LIMITED TO ANY APPLICABLE RESTRICTIONS
TO THE SAME) IN SECTION 3 BY LICENSEE, BREACH OF SECTION 6 BY EITHER PARTY, AND
THE PARTIES' INDEMNIFICATION OBLIGATIONS IN SECTION 9.3, EITHER PARTY'S MAXIMUM
AGGREGATE LIABILITY 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 SUBLICENSOR'S
LICENSORS OR SUPPLIERS IN CONNECTION WITH THIS AGREEMENT, AND (B) SUBLICENSOR'S
LICENSORS AND SUPPLIERS HAVE ANY LIABILITY (WHETHER EXPRESS, IMPLIED, STATUTORY,
OR OTHER) WHATSOEVER TO LICENSEE OR ANY OTHER
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ENTITY OR PERSON IN CONNECTION WITH THIS AGREEMENT.
9.3 INDEMNIFICATION. Licensor shall defend at its sole cost any
claim or proceeding brought by a third party against Licensee, its officers,
directors, agents, and employees ("Licensee Indemnified Parties"), shall have
the right at its option and sole cost to settle such claim or action, and shall
pay any final award of damages issued against the Licensee Indemnified Parties
by a court of competent jurisdiction to the extent that such claim or proceeding
is based on a claim that Licensee's authorized use or distribution of the
Xxxxxxx.xxx Software Product infringes or misappropriates a third party
Proprietary Right (a "Claim"), provided that: (1) upon becoming aware of such
Claim, the Licensee Indemnified Parties promptly notify Licensor in writing of
the Claim; (2) Licensor shall have exclusive control of the settlement (except
solely to the extent provided below) and/or defense of any action to which the
Claim relates; and (3) the Licensee Indemnified Parties cooperate with Licensor
in every reasonable way to facilitate such defense or settlement. Licensor shall
not settle any claim without the Licensee Indemnified Parties' prior written
consent (which shall not be unreasonably withheld, conditioned or delayed).
Licensor's obligations under this Section 9.3 shall not apply to the extent any
Claim arises from (1) any modifications made by the Licensee Indemnified Parties
to the Xxxxxxx.xxx Software Product as and in the form delivered by Licensor to
Licensee under this Agreement, (2) the Licensee Indemnified Parties' failure to
use the Xxxxxxx.xxx Software Product in accordance with the provisions of this
Agreement, or (3) the combination or use by the Licensee Indemnified Parties of
the Xxxxxxx.xxx Software Product, or any portion thereof, with software,
hardware or materials not provided by Licensor. Licensor shall have no liability
for any use of the Xxxxxxx.xxx Software Product other than as expressly set
forth in this Agreement and the foregoing states Licensor's sole indemnification
obligations and entire liability to the Licensee Indemnified Parties with
respect thereto. If the Xxxxxxx.xxx Software Product becomes subject to a Claim
or in the event that Licensor wishes to minimize its potential liability
hereunder, then Licensor may, at Licensor's option and at no expense to
Licensee, (1) obtain for Licensee the right to continue to exercise the license
granted; (2) substitute functionally equivalent non-infringing Xxxxxxx.xxx
Software Products; or (3) modify the Xxxxxxx.xxx Software Product to make it
non-infringing but still functionally equivalent. Licensee shall defend at its
sole cost any claim or proceeding brought by a third party against Licensor, its
officers, directors, agents and employees ("Licensor Indemnified Parties"),
shall have the right at its option and sole cost to settle such claim or action,
and shall pay any final award of damages issued against the Licensor Indemnified
Parties by a court of competent jurisdiction, to the extent that such claim or
proceeding arises out of the Composite Product (except to the extent the claim
or proceeding (1) both a) arises out of the Xxxxxxx.xxx Software Product as and
in the form delivered and b) does not arise not out of (i) any modifications
made by the Licensee Indemnified Parties to the Xxxxxxx.xxx Software Product as
and in the form delivered by Licensor to Licensee under this Agreement, (ii) the
Licensee Indemnified Parties' failure to use the Xxxxxxx.xxx Software Product in
accordance with the provisions of this Agreement, or (iii) the combination or
use by the Licensee Indemnified Parties of the Xxxxxxx.xxx Software Product, or
any portion thereof, with software, hardware or materials not provided by
Licensor, and (2) arises out of a Seagate Product as and in the form delivered
by Seagate to Licensee) (each, a "Licensor Claim"), provided that: (1) upon
becoming aware of such Licensor Claim, the Licensor Indemnified Parties promptly
notify Licensee in writing of the Licensor Claim; (2) Licensee shall have
exclusive control of the settlement (except solely to the extent provided below)
and/or defense of any action to which the Licensor Claim relates; and (3) the
Licensor Indemnified Parties cooperates with Licensee in every reasonable way to
facilitate such defense or settlement. Licensee shall not settle any claim
without the Licensor Indemnified Parties' prior written consent (which shall not
be unreasonable withheld, conditioned or delayed). Notwithstanding any of the
foregoing, the Licensor Indemnified Parties shall have the right, in their
absolute discretion and at their sole cost, to employ attorneys of their own
choice and to institute or defend any such Licensor Claim.
10. GENERAL PROVISIONS. This Agreement represents the entire agreement
between Licensor 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. Except as otherwise set forth in Section 6.4, any dispute regarding
this Agreement shall be subject to the exclusive jurisdiction
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of the courts for the State of California in and for Santa Xxxxx County,
California, U.S.A. (or, if there is federal jurisdiction, the United States
District Court for the Northern District of California, San Xxxx Xxxxxx), and
the parties agree to submit to the personal and exclusive jurisdiction and venue
of these courts. Nothing in this Agreement is intended or will be construed to
give any person (other than Licensor and Licensee) any legal or equitable right,
remedy or claim under this Agreement or any provision hereof. Neither party may
assign this Agreement or any of its rights or obligations hereunder, whether
voluntarily, by operation of law or otherwise without the consent of the other
party; provided, however, that either party may assign this Agreement pursuant
to a transfer of all or substantially all of such party's business and assets,
whether by merger, sale of assets, sale of stock, or otherwise. Any attempted
assignment or delegation in contravention of this Section 17 shall be void and
ineffective. 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.
SYNNEX Corporation Xxxxxxx.xxx, Inc.
By: /s/ Xxxxx X. Xxxxx By: /s/ Xxxxx Xxxxxxx
-------------------- -------------------------
Name: Xxxxx X. Xxxxx Name: Xxxxx Xxxxxxx
Title: General Counsel & Corporate Secretary Title: Pres/COO
Date: 11/24/03 Date: 11/25/03
SYNNEX Canada Limited
By: /s/ Xxxxx X. Xxxxx
------------------
Name: Xxxxx X. Xxxxx
Title: General Counsel & Corporate Secretary
Date: 11/24/03
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EXHIBIT A
XXXXXXX.XXX BRANDING FEATURES; TRADEMARK GUIDELINES
BRANDING FEATURES
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
Xxxxxxx.xxx Software Product 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 Xxxxxxx.xxx Software Product. When referring to
Xxxxxxx.xxx, Inc., Licensee shall use the name "Xxxxxxx.xxx". When referring to
the Xxxxxxx.xxx Software Product, Licensee shall use the trademark "LindowsOS".
SIZING AND PLACEMENT REQUIREMENTS
The digitized, machine-readable file for the artwork of the Branding
Features appears 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.
8
Lindows License final 11-21-03
