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EXHIBIT 10.37
OEM DISTRIBUTION AGREEMENT
between
THE SANTA ▇▇▇▇ OPERATION, INC.
A Company Incorporated in the State of California in the United States
and
CALDERA SYSTEMS, INC.
A Company Incorporated in the State of Utah in the United States
Date of Issue: June 22, 2000
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Contract Number: 1X101
Note: This Agreement shall be deemed invalid unless executed by COMPANY within
thirty (30) days of the date of Issue.
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This Agreement is made and entered into on the date last executed by and between
The Santa ▇▇▇▇ Operation, Inc., a corporation of the State of California with
its principal place of business at ▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇
▇▇▇▇▇ on behalf of it Tarantella Division ("TARANTELLA"), and Caldera Systems,
Inc. (hereinafter "OEM"), a company incorporated under the laws of the State of
Utah with its place of business at ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇.
WHEREAS, TARANTELLA is a licensor, manufacturer and distributor of TARANTELLA
software and related products and materials ("Licensed Product"),
WHEREAS, OEM is a reseller of computer products manufactured by or on behalf of
OEM, and possesses expertise in broad-based horizontal markets, and
WHEREAS, the parties are desirous of OEM's marketing of Licensed Products in
conjunction with substantial added value in the form of hardware and/or software
to its customers;
NOW, THEREFORE, the parties agree as follows:
1. The terms and conditions set forth in this Agreement shall apply to the
licensing and use of the Licensed Products and the sublicensing and
distribution of OEM Products that become subject to this Agreement.
2. Additional exhibit(s) may be added to this Agreement. Each such additional
exhibit shall be considered part of this Agreement when executed by OEM and
accepted by TARANTELLA. Any additional terms and conditions set forth in
such exhibit shall apply.
3. This Agreement and its exhibit(s) set forth the entire agreement and
understanding between the parties as to the subject matter hereof. Neither
of the parties shall be bound by any conditions, definitions, warranties,
understandings or representations with respect to such subject matter other
than as expressly provided herein or as duly set forth on or subsequent to
the date of acceptance hereof in writing and signed by a proper and duly
authorized representative of the party to be bound thereby. No provision
appearing on any form originated by OEM shall be applicable unless such
provision is expressly accepted in writing by an authorized representative
of TARANTELLA.
IN WITNESS WHEREOF, the parties have caused this Agreement to be executed by
their duly authorized representatives.
OEM: THE SANTA ▇▇▇▇ OPERATION, INC.
By: By:
------------------------- -------------------------
---------------------------- ----------------------------
(Title) (Title)
---------------------------- ----------------------------
(Date) (Date)
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1. DEFINITIONS
Each term defined in this Section is as follows unless the context in which
the term is used expressly provides otherwise. The term "Section" refers to
an identified section of this Agreement.
a. Bundled Products means the combination of the Licensed Products and
OEM Products that OEM will market and sell as a combined product
offering, or sales of Licensed Products on a stand-alone basis, but
only in incidental quantities and in direct support of OEM's marketing
and sales of the combined product offering.
b. "End User" means an entity who is not an affiliate of OEM's enterprise
and acquires the Licensed Products for Internal Use. "End User" does
not include an entity which resells, sells, licenses, rents or leases
Licensed Products to other parties in the regular course of business.
c. "Expiration Date" means each date identified as such in the applicable
exhibit that is made part of this Agreement.
d. "Golden Master" means master diskettes, master CD ROM or other media,
containing the Licensed Products and master user documentation from
which OEM may duplicate the TARANTELLA Products under this Agreement.
e. "Internal Use" means use in the regular course of business by the user
who has licensed the software. "Internal Use" does not include resale,
or the sale or lease of access to the Licensed Product for timesharing
purposes.
f. "List Price" means the price for TARANTELLA Licensed Products listed
in TARANTELLA's published price list excluding any discounts and/or
negotiated changes.
g. "Marks" means TARANTELLA's trademarks, service marks, logos,
designations and insignias.
h. "OEM Authorized Reseller" means an entity that acquires Licensed
Products for resale from OEM.
i. "Licensed Products" means the TARANTELLA products and related products
and materials identified in the applicable exhibit and made part of
this Agreement that OEM is authorized to market and sell under this
Agreement.
j. "Releases" shall mean changes or additions to the TARANTELLA Licensed
Product, other than maintenance modifications, that improve functions,
add new functions, or improve performance by changes in software
design. A Release is denoted and designated by TARANTELLA by a change
in the next to right-most digit in the complete product number.
k. "Subsidiary" means a corporation or other legal entity (i) the
majority of whose shares or other securities entitled to vote for
election of directors (or other managing authority) is now or
hereafter controlled by such company either directly or indirectly; or
(ii) the majority of the equity interest in which is now or hereafter
owned and controlled by such company either directly or indirectly;
but any such corporation or other legal entity shall be deemed to be a
Subsidiary of such company only so long as such control or such
ownership and control exists.
l. "Updates" shall mean changes or additions to Licensed Product which
primarily include maintenance modifications. An Update is denoted and
designated by TARANTELLA by a change in the right-most digit in the
complete product number.
m. "Versions" shall mean any modifications to the Licensed Products that
result from changes or additions that provide additional value and
utility to the Licensed Products. A Version is denoted and designated
by TARANTELLA by a change in the left-most digit in the complete
product number.
2. TERM
The term of this Agreement will commence on the date it is executed by an
authorized TARANTELLA signatory and, shall remain in effect for a one (1)
year period (the `Initial Term"). Thereafter, this Agreement will
automatically renew for subsequent one (1) year periods (the "Renewal
Period") unless (i) the Agreement is terminated by either party pursuant to
Section 11. of this Agreement, or (ii) either party terminates for
convenience by sending the other notice thereof at least ninety (90)
calendar days prior to the end of such Initial Term or the then current
Renewal Period.
3. APPOINTMENT AND RIGHTS
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a. Appointment. TARANTELLA appoints OEM as a TARANTELLA Authorized
Original Equipment Manufacturer. This appointment is non-exclusive,
with TARANTELLA reserving the right to appoint other TARANTELLA
customers as TARANTELLA Authorized OEMs without restriction as to
number and location.
▇. ▇▇▇▇▇ of Rights. TARANTELLA grants OEM a non-exclusive,
non-transferable, worldwide license to market Licensed Products to (i)
End Users acquiring OEM's Bundled Products for Internal Use and (ii)
OEM Authorized Resellers acquiring OEM's Bundled Products solely for
resale in the ordinary course of business. OEM agrees to offer
Licensed Products for sale to End Users or OEM Authorized Resellers
only as a part of a Bundled Product offering.
c. Reproduction/Installation License. OEM may reproduce the Licensed
Product, using the Golden Master provided to OEM by TARANTELLA, only
in accordance with the conditions contained in this Agreement and
applicable exhibit(s) to this Agreement. OEM has no other right to
reproduce any portion of the Licensed Product, unless expressly agreed
in writing.
4. PRODUCTS AND PRICES
a. Eligible Products. OEM may market the Licensed Products specified inn
Exhibit A to this Agreement. Except to the extent expressly provided
otherwise in a Exhibit A, TARANTELLA reserves the right at any time to
make changes to any Licensed Products, including without limitation
changes which are required (i) for security, or (ii) to facilitate
performance in accordance with specifications.
b. Modifications to Licensed Products. Except as otherwise agreed by the
parties in writing, OEM may modify the Licensed Products only as
provided for within TARANTELLA's standard installation procedure - for
example by the addition of drivers, and only as required to create a
hardware and/or software specific implementation as necessary for the
operation of the Licensed Products on the OEM Products. Additional
modification rights and/or restrictions may be included an exhibit(s)
to this Agreement.
Except as otherwise agreed by the parties in writing, OEM is also
authorized to provide Licensed Products to End User customers of OEM
for use solely on OEM hardware and/or software. An OEM representative
shall provide assistance for installation of the software products if
required.
In the event OEM pre-installs the Licensed Products, OEM agrees not to
alter the computer screen which will inform the End User, upon
operating the OEM Products, of the TARANTELLA and third party
copyright notices.
c. Pricing and Discounts. OEM may acquire Licensed Products under this
Agreement at the prices included in TARANTELLA's published TARANTELLA
price list (TARANTELLA price list is available at the TARANTELLA
website located at: ▇▇▇▇://▇▇▇.▇▇▇.▇▇▇/▇▇▇▇▇▇▇/▇▇▇▇▇▇▇▇▇▇.▇▇▇▇), less
the discount set forth in Exhibit A to this Agreement (or, as
applicable, at the per unit price set forth in such applicable
exhibit). Except to the extent expressly stated otherwise in Exhibit
A, TARANTELLA reserves the right at any time to (i) add Licensed
Products to, or delete Licensed Products from, the TARANTELLA list
price and/or such applicable exhibit and/or, (ii) increase or decrease
prices on the TARANTELLA's published price list. Product deletions and
price changes become effective upon thirty (30) days' prior written
notice to OEM. Orders requesting delivery after the effective date of
a price increase will be charged at the increased price.
d. Taxes. Prices are exclusive of all applicable taxes. OEM agrees to pay
all taxes associated with the marketing, sublicensing and delivery of
Licensed Products ordered under this Agreement, including but not
limited to sales, use, excise, added value and similar taxes and all
customs, duties or governmental impositions, but excluding taxes on
TARANTELLA's net income. Any tax or duty TARANTELLA may be required to
collect or pay upon the marketing or delivery of the Licensed Products
will be paid by OEM, and such sums shall be due and payable to
TARANTELLA upon delivery. If OEM claims a tax exemption, OEM must
provide TARANTELLA with valid tax exemption certificates.
e. Product Upgrades. OEM may purchase licenses to subsequent Updates,
Releases and/or Versions of Licensed Products for purposes of revising
licenses obtained for OEM's Internal Use and /or distribution by
paying the then applicable fee(s).
5. MARKETING AND SUPPORT
a. Use of Authorized OEM Title. OEM may refer to itself, in connection
with exercising its rights under this Agreement, as a "TARANTELLA
Authorized OEM," but solely in connection with marketing the Bundled
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Products and only during the term of this Agreement.
b. Use of TARANTELLA Marks and Trade Names. OEM is authorized to use the
TARANTELLA Marks applicable to Licensed Products acquired under this
Agreement in connection with its marketing of Bundled Products, but
only in accordance with current trademark and trade name usage laws
and only during the term of this Agreement. Upon the Expiration Date
or termination of this Agreement, OEM shall no longer publicize or
advertise the fact that it is an authorized distributor for TARANTELLA
and shall make no further use of TARANTELLA Marks except as permitted
under the then current law. OEM agrees not to alter, erase or
overprint any notice provided by TARANTELLA and not to attach any
additional trademarks, except as included in Exhibit A, without the
prior written consent of TARANTELLA or affix any TARANTELLA Marks to
any non-Licensed Product.
c. End User Satisfaction. OEM shall maintain in force an agreement for
technical support with TARANTELLA.
d. OEM Authorized Resellers. OEM agrees to inform each OEM Authorized
Reseller that the TARANTELLA Software License Agreement governs the
use of the Licensed Product before any OEM Bundled Products are
provided to the OEM Authorized Reseller. If OEM should become aware of
one of OEM's OEM Authorized Resellers or End Users violation of
TARANTELLA's intellectual property and/or proprietary rights, OEM
shall promptly notify the OEM's OEM Authorized Resellers or End Users
of the violation and shall i) promptly notify TARANTELLA, ii) upon
TARANTELLA's request, assign any rights of enforcement that OEM has
with regard to such violation to the extent that such rights are
reasonably necessary for TARANTELLA to protect its TARANTELLA's
intellectual property and/or proprietary rights, and iii) cooperate
with TARANTELLA in such enforcement.
e. Point of Sale Reports. When OEM reproduces Licensed Product for
distribution, OEM will provide TARANTELLA, by no later than the tenth
(10th) day of each calendar month, an estimate of the previous
calendar month sales. This monthly sales estimate is to include, at a
minimum, total units by product by geographic territory, as stipulated
by TARANTELLA.
For all sales of Licensed Product, OEM will provide TARANTELLA, by no
later than thirty (30) days after the close of each calendar quarter,
a final Point of Sale report for the previous calendar quarter. "Point
of Sale Report" means, for purposes of this Agreement, a report
provided by OEM to TARANTELLA which is in a TARANTELLA-agreed format
which includes, among other things, (i) a list of Licensed Products
sold, (ii) geographical destination for each such Licensed Product,
containing, at a minimum, State/Province and country, (iii) the model
numbers of the Licensed Products sold, and (iv) the amount of on-hand
inventory of all Licensed Products by model number (including products
listed in the POS Report and any other Licensed Products in inventory
not otherwise included in the POS Report).
6. PLACING ORDERS & TERMS OF PAYMENT
a. Placing Orders. OEM is authorized to place orders with TARANTELLA for
Licensed Products through OEM's Corporate Headquarters. Additional
ordering locations may be agreed, in writing, from time to time. Each
purchase order received by TARANTELLA shall form a separate contract,
into which the terms of this Agreement shall be included by reference.
The terms of this Agreement shall apply to each such order as between
the ordering and accepting parties, as legal entities; variations of
such terms, may be agreed individually by those parties.
OEM may also utilize TARANTELLA's PartnerStore web based ordering
facilities for the purchase of licenses for Licensed Products.
TARANTELLA's PartnerStore terms and conditions are included in Exhibit
B of this Agreement.
b. Acceptance of Orders. Orders, placed with TARANTELLA in accordance
with the terms and conditions of this Agreement will be deemed
accepted by TARANTELLA if not rejected within two working days of
receipt by TARANTELLA. Orders requesting shipment more than ninety
(90) days from the date of the order are subject to written acceptance
by TARANTELLA. Should orders for Licensed Products exceed TARANTELLA's
available inventory, TARANTELLA may, unless OEM has specifically
indicated otherwise in its purchase order, accommodate OEM's order by
allocating available inventory and making shipments on a basis
TARANTELLA deems equitable, without liability to TARANTELLA on account
of the method of allocation chosen or its implementation.
c. Cancellation of Orders. Orders accepted by TARANTELLA may be canceled
without penalty by giving written
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notice of cancellation to TARANTELLA at least fifteen (15) days prior
to the scheduled shipment date. Orders canceled less than fifteen (15)
days prior to the scheduled shipment date may be subject to a
cancellation payment of fifteen percent (15%) of the invoice value of
the canceled order. In no event may OEM cancel any order or any
portion of an order after shipment.
d. Product Availability and Shipping Designations. TARANTELLA will use
commercially reasonable efforts to fill OEM's orders for Licensed
Products and meet OEM's request for shipment dates subject to product
availability and consistent with TARANTELLA production and supply
schedules. TARANTELLA will ship Licensed Products and ▇▇▇▇ OEM to
agreed OEM "ship to" and "▇▇▇▇ to" locations. OEM may change the "ship
to" location at any time prior to the estimated shipment date;
however, TARANTELLA may not be able to honor a notice, unless it is in
writing and received at least fifteen (15) days prior to the estimated
shipment date. The right to change "ship to" locations does not
include any right to drop ship to customer sites. So long as
TARANTELLA uses commercially reasonable efforts to fill OEM's orders,
TARANTELLA will not be liable for any damages to OEM or to any third
party for TARANTELLA's failure to fill any orders or for any delay in
delivery or error in filling any orders for any reason whatsoever.
e. Obligation to Ship In Presence of Breach. Even in cases where
TARANTELLA accepts a purchase order, TARANTELLA will not be obligated
to ship Licensed Products if OEM is more than thirty (30) days in
arrears on payments owing to TARANTELLA or if OEM is otherwise in
material breach of this Agreement at the time of the scheduled
shipment. This thirty (30) days delay period is only applicable to the
first time OEM is in arrears in payment or is otherwise in material
breach of this Agreement.
f. Delivery, Title & Risk of Loss. Licensed Products shipped hereunder
shall be shipped FOB TARANTELLA's facility to the "ship to" location
specified by OEM. Title to Licensed Products, exclusive of the rights
retained under this Agreement in Marks, patents, copyrights, trade
names, trade secrets and intellectual property, and all risk of loss
will pass to OEM upon delivery at TARANTELLA's designated shipping
facility.
g. Payment Terms: Subject to OEM maintaining a good payment record with
TARANTELLA, with regard to each order for Licensed Product, TARANTELLA
shall invoice OEM for such order no sooner than the day on which the
corresponding shipment from TARANTELLA takes place, and OEM shall make
payments to TARANTELLA in the currency specified on the invoice, or as
otherwise agreed in writing. All payments under this AGREEMENT shall
be sent to the address specified on the invoice within thirty (30)
calendar days after receipt of such invoice. TARANTELLA reserves the
right to set a credit limit for OEM.
In the event OEM is granted the right, in an applicable exhibit, to
reproduce the Licensed Product and to make payment after such
reproduction, OEM shall submit payment for such Licensed Product sales
at the time OEM provides TARANTELLA with its quarterly Point of Sales
Report due no later than thirty (30) days after the close of each
calendar quarter.
Any amounts owing under this Agreement will be due and payable as
indicated in any special terms and conditions stated in the applicable
exhibit. Payment not received by TARANTELLA when due will accrue
interest on an annual basis from the date due until paid of twelve
(12%) per annum on any outstanding balance or the maximum legal rate
allowed by law, whichever is less.
7. INTELLECTUAL PROPERTY RIGHTS & INDEMNIFICATION
a. Licensed Products. Licensed Products acquired under this Agreement is
made available to OEM to market only under the provisions of this
Agreement. OEM shall distribute with each Licensed Product the End
User License Agreement included by TARANTELLA in the Licensed Product
package and included as Exhibit C to this Agreement.
b. Proprietary Nature of Licensed Products and Ownership. No title to or
ownership of software acquired under this Agreement is transferred to
OEM. Notwithstanding any provision of this Agreement to the contrary,
OEM acknowledges TARANTELLA's representation that TARANTELLA, or the
licensor through which TARANTELLA obtained the rights to distribute
the Licensed Products, owns and retains all title and ownership of all
intellectual property rights in the Licensed Products, including all
software, firmware, copies of software, documentation and related
materials which are acquired, produced or shipped by TARANTELLA under
this Agreement. Such title and ownership by TARANTELLA extends to any
Modifications to and derivative works from software acquired under
this Agreement which include any portion of Licensed Product(s).
TARANTELLA claims no ownership interest in any portion of such
Modification(s) by OEM that do not include any portion of the Licensed
Product. TARANTELLA does not transfer any portion of such title and
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ownership, or any of the associated goodwill, to OEM, and this
Agreement should not be construed to grant OEM any right or license,
whether by implication, estoppel or otherwise, except as expressly
provided. OEM agrees to be bound by and observe the obligations
imposed on OEM under this Agreement with regard to the Licensed
Products acquired under this Agreement. Except as set forth in this
Agreement, or as may be permitted in writing by TARANTELLA, OEM agrees
not to provide Licensed Products or any part or copies thereof to any
third party without the prior written consent of TARANTELLA.
c. Licensed Product Infringement. TARANTELLA shall indemnify and hold OEM
harmless from and against and defend any claim, suit or proceeding,
and pay any settlement amounts or damages awarded by a court of final
jurisdiction, arising out of claims filed by third parties that a
Licensed Product infringes any copyright, patent, trade ▇▇▇▇ or other
intellectual property right, provided that OEM promptly notifies
TARANTELLA in writing of any such claim, suit or proceeding, and
permits TARANTELLA to control the settlement or defense thereof. OEM
has the option to be represented by Counsel at its own expense.
If, pursuant to any such claim, a court of competent jurisdiction
removes or restricts OEM's right to distribute Licensed Product,
TARANTELLA shall, at its sole option (i) procure for OEM the right to
continue to distribute Licensed Product; or (ii) modify Licensed
Product, provided the functionality thereof is not substantially
affected, so as to make it non-infringing; or, in the event that
neither of these options is economically practical, (iii) require OEM,
immediately upon written notice, to discontinue distribution of
Licensed Product; in this event TARANTELLA will accept return, at
TARANTELLA's direction and expense, of OEM's inventory of Licensed
Product and will credit OEM the net amount received therefor. In
addition, TARANTELLA shall have the right to exercise any of options
(i) through (iii) at any time following receipt of notice of a claim
of infringement of copyright or other proprietary right.
TARANTELLA shall have no obligation under this section with respect to
any claim of infringement of a proprietary right based upon any
modification of Licensed Product by OEM or the combination, operation
or use of Licensed Product with materials not supplied by TARANTELLA
provided that it is such modification, combination, operation or use
which caused the claimed infringement.
THE ABOVE STATES THE ENTIRE LIABILITY OF TARANTELLA WITH RESPECT TO
INFRINGEMENT OF PATENTS, COPYRIGHTS, TRADEMARKS OR ANY OTHER FORM OF
INTELLECTUAL PROPERTY RIGHT BY ANY PRODUCT SUPPLIED BY TARANTELLA.
d. Product Tampering. OEM agrees not to de-compile, reverse engineer,
reverse compile, modify or perform any similar type of operation on
any object code software product, or firmware acquired under this
Agreement, in any fashion or for any purpose whatsoever, without the
prior written consent of TARANTELLA. In the event that applicable law
does not allow a total prohibition of de-compiling, reverse
engineering or reverse compiling, OEM agrees to request TARANTELLA to
provide any required information and not to perform such acts if this
information is made available. OEM also agrees that any such works are
derivative works and as such are the sole and exclusive property of
TARANTELLA or its licensor.
e. Confidential Information. The parties agree to protect, for a period
of five (5) years after the date of first receipt (twenty (20) years
in the case of source code), any Confidential Information, received
from the other, from disclosure to anyone other than the OEM's
employees or subcontractors, who have signed a nondisclosure agreement
containing restrictions on disclosure substantially similar to those
set forth herein, by use of the same degree of care as the OEM uses to
protect its own information of a similar nature and importance, and,
in no event, less than reasonable care. "Confidential Information"
means the information and materials noticed or marked by TARANTELLA or
OEM as confidential and proprietary; provided, however, that a party's
source code need not be so marked "Confidential Information" does not
include information that (i) is already known to the receiving party
at the time it is disclosed and has not been obtained wrongfully, (ii)
becomes publicly known without fault of the receiving party, (iii) is
independently developed by the receiving party, (iv) is approved for
release in writing by the disclosing party, (v) is disclosed without
restriction by the disclosing party to a third party, or (vi) is
disclosed pursuant to legal obligations beyond the control of the
disclosing and receiving parties.
8. WARRANTIES
TARANTELLA WARRANTS THAT IT IS EMPOWERED TO GRANT THE RIGHTS GRANTED
HEREIN. TARANTELLA FURTHER WARRANTS THAT THE LICENSED PRODUCT DOES NOT
INFRINGE ANY COPYRIGHT, PATENT, TRADE ▇▇▇▇ OR OTHER INTELLECTUAL PROPERTY
RIGHT OF A THIRD
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PARTY. TARANTELLA DOES NOT WARRANT THAT THE FUNCTION CONTAINED IN LICENSED
PRODUCT WILL MEET OEM'S OR ANY USER'S REQUIREMENTS OR THAT ITS OPERATION
WILL BE UNINTERRUPTED OR ERROR FREE. TARANTELLA WARRANTS THAT LICENSED
PRODUCT SUBSTANTIALLY CONFORMS AND WILL PERFORM TO THE SPECIFICATIONS AND
FUNCTIONAL DESCRIPTIONS CONTAINED IN THE PERTINENT DOCUMENTATION; AND THAT
THE REPRODUCTION OF THE SOFTWARE ON THE MEDIA MATERIAL PROVIDED BY
TARANTELLA IS CORRECT; AND THAT THE DOCUMENTATION IS CORRECTLY PRINTED TO
TARANTELLA'S STANDARD AT THE TIME OF EXECUTION OF THIS AGREEMENT. PROVIDED
OEM NOTIFIES TARANTELLA OF ANY NON-CONFORMANCE WITHIN NINETY (90) DAYS OF
OEM'S RECEIPT OF LICENSED PRODUCT, TARANTELLA SHALL AT ITS SOLE DISCRETION
EITHER 1) REPAIR NONCONFORMING LICENSED PRODUCT, 2) REPLACE THE
NON-CONFORMING LICENSED PRODUCT, OR 3) ACCEPT RETURN OF SAME AND REFUND OR
CREDIT ANY FEES PAID BY OEM FOR SUCH RETURNED LICENSED PRODUCT.
TARANTELLA PROVIDES, TO END USERS ONLY, WARRANTIES FOR LICENSED PRODUCTS AS
STATED IN THE TARANTELLA SOFTWARE LICENSE AGREEMENT WHICH ACCOMPANIES EACH
LICENSED PRODUCT. ANY LICENSED PRODUCT WHICH IS DELIVERED IN PACKAGING
CONTAINING A LICENSE AGREEMENT THAT INDICATES THAT THE LICENSOR IS OTHER
THAN TARANTELLA, IS DEEMED TO BE PROVIDED BY TARANTELLA SOLELY ON AN "AS
IS" BASIS, WITHOUT WARRANTY FROM TARANTELLA, AND IS WARRANTED BY THE NAMED
LICENSOR SOLELY TO THE EXTENT THAT THE PACKAGING, OR ACCOMPANYING
BREAK-THE-SEAL LICENSE AGREEMENT, IF ANY, EXPRESSLY STATES A WARRANTY.
OEM IS NOT AUTHORIZED TO MAKE ANY WARRANTY COMMITMENT ON TARANTELLA'S
BEHALF, WHETHER WRITTEN OR ORAL, OTHER THAN THOSE CONTAINED IN THE
APPLICABLE STATEMENT OF LIMITED WARRANTY OR SOFTWARE LICENSE AGREEMENT.
9. LIMITATION OF WARRANTIES
EXCEPT AS OTHERWISE EXPRESSLY STATED HEREIN, OR IN AN APPLICABLE
ATTACHMENT, TARANTELLA and ITS SUPPLIERS make no other representations or
warranties, expressly or impliedly. By way of example but not of
limitation, TARANTELLA and other developers make no representations or
warranties of merchantability or fitness for any particular purpose, or
that the use of any SOFTWARE PRODUCT will not infringe any patent,
copyright or trademark.
10. LIMITATION OF LIABILITY
EXCEPT FOR BREACH OF THE WARRANTY OF TITLE, PRODUCT INFRINGEMENT OR
CONFIDENTIAL INFORMATION NEITHER PARTY SHALL BE LIABLE TO THE OTHER FOR ANY
LOSS OF PROFITS, LOSS OF BUSINESS OR GOODWILL, LOSS OF USE OR OF DATA,
INTERRUPTION OF BUSINESS, NOR FOR INDIRECT, SPECIAL, INCIDENTAL OR
CONSEQUENTIAL DAMAGES OF ANY KIND UNDER OR ARISING OUT OF THIS AGREEMENT,
HOWEVER CAUSED, WHETHER FOR BREACH OF WARRANTY, BREACH OR REPUDIATION OF
CONTRACT, TORT NEGLIGENCE OR OTHERWISE EVEN IF ADVISED OF THE POSSIBILITY
OF SUCH LOSS.
11. TERMINATION
a. Termination for Cause. Either party may terminate this Agreement for
the substantial breach by the other party of a material term. The
terminating party will first give the other party written notice of
the breach and a reasonable period of at least thirty (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.
b. Termination by OEM. Except to the extent expressly provided otherwise
in a particular exhibit, OEM may terminate this Agreement upon thirty
(30) days' prior written notice to TARANTELLA if TARANTELLA amends the
program requirements for Licensed Product contained in an exhibit to
this Agreement and such amendment is not mutually agreed to by OEM and
TARANTELLA.
c. Termination by TARANTELLA. TARANTELLA may terminate this Agreement if
OEM fails to meet its payment obligations under this Agreement and
this failure continues for thirty (30) days following receipt of
written notice from TARANTELLA.
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d. Insolvency, Assignment, or Bankruptcy. Either party may terminate this
Agreement upon written notice to the other party if the other party
(i) is not paying its debts as such debts generally become due, (ii)
becomes insolvent, (iii) files or has filed against it a petition (or
other document) under any Bankruptcy Law or similar law, which is
unresolved within sixty (60) days of the filing of such petition (or
document), (iv) proposes any dissolution, liquidation, composition,
financial reorganization or recapitalization with creditors, (v) makes
a general assignment or trust mortgage for the benefit of creditors,
or (vi) if a receiver, trustee, custodian or similar agent is
appointed or takes possession of any of its property or business.
e. Acceleration of Payment. Upon termination of this Agreement, the due
dates of all outstanding invoices to OEM 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
provided previously.
f. Effect of Termination on Obligations. Termination of this Agreement
will not affect any pre-termination obligations of either party under
this Agreement, and any termination is without prejudice to the
enforcement of any undischarged obligations existing at the time of
termination. Regardless of any other provision of this Agreement,
either party will not by reason of the termination of this Agreement
be liable for compensation, reimbursement, or damages on account of
the loss of prospective profits on anticipated sales, or on account of
expenditures, investments, leases, or commitments in connection with
the other's business or goodwill, or otherwise.
12. GENERAL PROVISIONS
a. 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.
b. Governing Law and Jurisdiction. This Agreement shall be construed in
accordance with and governed by the laws of the State of California,
excluding that State's laws regarding conflict of laws and excluding
the UN treaty on the international sale of goods.
The state and federal courts located in the principal place of
business of the party against whom the claim or action is initially
commenced, shall have exclusive jurisdiction and venue over any
dispute or claim arising out of this Agreement; both parties hereby
consent to the jurisdiction of and venue in said courts.
c. Arbitration. The parties shall promptly negotiation in good faith a
resolution of any and all disputes arising out of or in connection
with the interpretation, performance or non performance, or
termination of this Agreement.
If within two months of the date on which one party sends to the other
a letter describing the dispute no resolution of the dispute has been
reached, either party may request that such dispute be resolved in
accordance with the Arbitration Rules then in effect of the American
Arbitration Association ("AAA"). Such Arbitration shall take place in
the State of California and shall be conducted by one arbitrator which
will be selected within the time limits established in accordance with
the then existing Rules of the AAA. The award of the arbitrator shall
be final and judgment may be entered thereon in any court of competent
jurisdiction. The parties, their representatives other participants
and the arbitrator shall hold the existence, content and results of
the arbitration in confidence.
In no event shall the arbitrators limit, expand or otherwise modify
the terms of this Agreement or award exemplary or punitive damages or
attorney's fees. Each party shall bear its own expenses of such
arbitration (including attorney's fee) and an equal share of the
relevant fees of the arbitrators and the fees of the AAA.
Nothing in this clause shall be construed to preclude any party from
seeking injunctive relief in order to protect its rights pending
arbitration. A request by a party to a court for such injunctive
relief shall not be deemed a waver of the obligation to arbitrate.
The provision of this Section shall survive for five (5) years from
the termination or expiration of this Agreement.
d. Survival of Terms. The provisions of this Agreement which by their
nature extend beyond the applicable Expiration Date or other
termination of this Agreement will survive and remain in effect until
all obligations are satisfied.
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e. 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.
f. 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 purchase
order or other written notification from OEM (including but not
limited to any specification of a price different than TARANTELLA's
current list price, less the appropriate discount) will be of no
effect, unless otherwise expressly provided in this Agreement.
g. Assignment. Neither party shall assign, this Agreement, in whole or in
part, without the prior written consent of an authorized
representative of the other, which consent shall not unreasonably be
withheld, any right or interest under this Agreement (except moneys
due or to become due) to any entity other than to i) its corporate
parent, ii) a division or wholly or majority owned subsidiary or
affiliate. Any attempted assignment without written consent will be
null and void.
h. Notice. With the exception of quotes, purchase orders,
acknowledgments, invoices and other usual and routine communications,
all other notices or writings required or permitted under this
Agreement, including but not limited to notices of default or breach,
shall be signed by an authorized representative of the sender, sent to
the respective individuals identified in this Agreement (which may be
changed by written notice to the other), and shall be deemed to have
been received i) when hand delivered to such individuals by a
representative of the sender, or, ii) three (3) days after having been
sent postage prepaid, by registered or certified first class mail,
return receipt requested, or iii) when sent electronic transmission,
with written confirmation by the method of transmission, or iv) one
(1) day after deposit with an overnight carrier, with written
verification of delivery.
i. 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 which most closely approximates the intent
and economic effect of the invalid provision.
j. 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.
k. Compliance with Laws. OEM represents and warrants that all consents of
governmental officials necessary for this Agreement to become
effective have been obtained, or will be obtained, before OEM places
any orders under this Agreement. OEM will comply, at its own expense,
with all statutes, regulations, rules, ordinances, and orders of any
governmental body, department or agency which apply to or result from
OEM's obligations under this Agreement. OEM agrees to not export
Licensed Products, directly or indirectly, separately or as part of a
system, without first obtaining proper authority to do so from the
appropriate governmental agencies or entities, as may be required by
law.
l. Government Rights. OEM agrees to identify, and require Authorized
Resellers to identify, the Licensed Product provided under this
Agreement in all proposals and agreements with the United States
Government or any other contractor therefor; and include that
statement that all Licensed Product is commercial computer software as
defined in FAR 12.212, and has been developed exclusively at private
expense. All technical data, or TARANTELLA commercial computer
software/documentation is subject to the provisions of FAR 12.211 -
"Technical Data", and FAR 12.212 - "Computer Software" respectively,
or clauses providing TARANTELLA equivalent protections in DFARS or
other agency specific regulations.
m. Records Examinations. In the event that TARANTELLA determines that
there is a discrepancy between the quantities of Licensed Products
obtained by OEM under this Agreement and the quantity of Licensed
Products distributed, TARANTELLA shall notify OEM and OEM shall
promptly investigate inform TARANTELLA of the results of such
investigation. If OEM discovers such a discrepancy, OEM shall allow
TARANTELLA to examine the records kept by OEM with regard to
quantities of Licensed Products distributed or used by OEM. Any
examination will be solely for the purpose of ensuring compliance with
this Agreement. Any examination will be conducted only by an
independent accounting firm, that has signed a nondisclosure agreement
containing restrictions substantially similar to those set forth in
this agreement and has been retained by TARANTELLA on other than a
contingency fee basis, and will occur during regular business hours at
OEM's offices and will not interfere unreasonably with OEM's business
activities. Examinations will be made no more
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frequently than once during the OEM's fiscal year and shall examine
the period that includes the current and preceding OEM fiscal years.,
and TARANTELLA will give OEM ten (10) days or more prior written
notice of the date of the examination and the name of the entity who
will be conducting the examination. All information obtained by the
TARANTELLA examiner will be maintained confidential by TARANTELLA and
such examiner, . The examiner will give OEM and TARANTELLA an
examination report containing only the information necessary to
indicate compliance or non-compliance with this Agreement. The cost of
any such examination conducted by an independent accounting firm shall
be borne by TARANTELLA, unless such examination reveals a payment
shortfall in excess of five percent (5%) of amounts due hereunder in
which case the cost of such examination shall be borne by OEM.
n. Headings. The headings provided in this Agreement are for convenience
only and will not be used in interpreting or construing this
Agreement.
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