1
EXHIBIT 10.15
[CONFIDENTIAL TREATMENT HAS BEEN REQUESTED FOR PORTIONS OF THIS EXHIBIT. THE
CONFIDENTIAL PORTIONS HAVE BEEN REDACTED AND ARE DENOTED BY A DOUBLE ASTERISK
(**). THE CONFIDENTIAL PORTIONS HAVE BEEN SEPARATELY FILED WITH THE
COMMISSION.]
MAC OS
LICENSE AGREEMENT
This Mac OS License Agreement ("Agreement") is effective as of March 1, 1997
(the "Effective Date"), by and between International Business Machines
Corporation, a New York corporation having an office at ▇▇▇▇ ▇▇▇▇▇ ▇▇, ▇▇▇▇▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ("IBM") and Power Computing Corporation, a corporation
formed under the laws of Delaware and having its principal place of business at
▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇, ▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇ ("Licensee").
RECITALS
IBM and Apple Computer, Inc. ("Apple") have entered into a license
agreement under which Apple has granted to IBM the right to grant
sublicenses to Apple's Mac(TM)OS operating system and other related
materials described herein under certain terms and conditions.
IBM and Licensee desire IBM to license to Licensee the Mac OS
operating system and other related materials described herein under
the terms and conditions set forth below.
AGREEMENT
1. DEFINITIONS
1.1 "Certification Requirements" means minimum levels of compatibility
imposed by Apple on all licensees of Licensed Software and documented
by Apple for Licensee Computers to successfully operate in the
following areas: installing and running the Licensed Software and
applications which run on the Licensed Software, and enabling
interoperability of the Licensed Software and Licensee Computers with
printers, peripherals, add-on cards, monitors, and networks which are
designed to operate with computers running the Licensed Software. A
document describing the current Certification Requirements and testing
process is attached hereto as Exhibit A.
1.2 "Change of Control" means an event that will be deemed to have
occurred if: (1) there shall be consummated (a) any consolidation or
merger of a party in which such party is not the continuing or
surviving corporation, or pursuant to which shares of such party's
common stock would be converted into cash, securities or other
property, other than a merger of such party in which the holders of
such party's common stock immediately prior to the merger have
substantially the same proportionate ownership of common stock of the
surviving corporation immediately after the merger or (b) any sale,
lease, exchange or other transfer
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(in one transaction or a series of related transactions) of all or
substantially all the assets of such party.
1.3 "Confidential Information" means for each party, the terms and
conditions of this Agreement (concerning licenses, royalties and
license fees and payments, indemnification, warranty, termination,
consequential damages and limitations on liability), information
resulting from any audit pursuant to Section 3.2(b), any information
relating to that party's product plans, designs, names, business
opportunities, personnel, research, development or know- how
designated as confidential as specified in Section 5; provided,
however that "Confidential Information" shall not include information
that: (a) is or becomes publicly known or available by publication,
commercial use or otherwise through no fault of the receiving party;
(b) is known by the receiving party at the time of disclosure and is
not subject to restriction by another agreement with the disclosing
party; (c) is independently developed by the receiving party without
use of the disclosing party's Confidential Information; (d) is
lawfully obtained without restriction from a third party who has the
right to make such disclosure; (e) is released for publication by the
disclosing party in writing; (f) is inherently disclosed in the use or
distribution of the Licensed Software; or (g) is disclosed pursuant to
operation of law provided that the disclosing party gives the owner of
such information reasonable prior notice and reasonable cooperation to
enable such owner to obtain a protective order.
1.4 "Enabling Technology" means the materials described under the heading
"Enabling Technology" in Exhibit B, provided to Licensee pursuant to
this Agreement.
1.5 "End User Documentation" means the End User documentation related to
the Licensed Software and any updates to such documentation provided
to Licensee by IBM under this Agreement, including but not limited to,
user manuals in electronic, modifiable form.
1.6 "End User" means an entity or person who owns or leases a Licensee
Computer for its own use and not for redistribution.
1.7 "IBM Microprocessor" means a microprocessor that bears the trademark
"PowerPC" and is sold as an IBM product.
1.8 "Licensed Software" means the binary executable form of the software
specified in Exhibit B under the heading, "Licensed Software."
1.9 "Licensee Computers" means hardware products substantially in the form
they will be used by End Users which are manufactured by or for
Licensee, each of which contains one or more IBM Microprocessors and
satisfies the Certification Requirements.
1.10 "Marks" means the trademark and logo listed in Exhibit C; and such
other marks owned by Apple that IBM notifies Licensee in writing are
subject to the terms of this Agreement.
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1.11 "Maintenance Releases" are releases of the Licensed Software
designated by a change in the second digit to the right of the first
decimal point (Mac OS 7.5X or Mac OS 7.5.X) that Apple makes generally
available for licensing. Maintenance Releases are primarily for
correcting errors or defects in prior release, making changes
necessary for new models of computers, increasing performance and
other incidental improvements.
1.12 "Major Releases'' are releases of the Licensed Software designated by
change in the digit to the left of the first decimal point (e.g., Mac
OS 8.x) Major Releases generally provide significant new functionality
and/or significant architectural changes.
1.13 "Minor Releases'' are releases of the Licensed Software designated by
a change in the first digit to the right of the first decimal point
(Mac OS 7.X) that Apple makes generally available for licensing.
Minor Releases generally provide some increased functionality and
performance but are not Major Releases.
1.14 "Proprietary Components" means components in which Apple has some
proprietary rights to be used for incorporation in Licensee Computers,
including but not limited to the Mac OS ROMs. "Proprietary
Components" does not mean any component which a provider has the right
to supply without Apple's consent.
1.15 "Replacement Copy" means a copy of the Licensed Software sent to a
Registered Customer of a Sublicensee which customer has purchased a
Licensee Computer with the same version of the Licensed Software as
the Replacement Copy, but which original copy of the Licensed Software
has been lost or destroyed.
1.16 "Registered Customer" means an End User who owns or has leased a
Licensee Computer with the Licensed Software and who has completed and
mailed the registration card provided pursuant to Section 2.2 of this
Agreement which registration card has been received by Apple, or whose
ownership or lease of an License Computer with the Licensed Software
has been verified by similar reliable means (e.g., sales records and
electronic registration).
1.17 "Royalty Payments" means the payments Licensee is required to make to
IBM pursuant to Section 3.2 of this Agreement and as described in
Exhibit B of this Agreement.
1.18 "System Updates" means software which, when installed on a Licensee
Computer which already has the Licensed Software installed on it,
updates the Licensed Software to fix malfunctions, defects or errors,
increase performance, and/or make other maintenance changes.
1.19 "Term" means the period during which this Agreement is in effect
pursuant to Section 9 of this Agreement.
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2. LICENSE AND RELATED RIGHTS AND RESTRICTIONS
2.1 License.
(a) IBM hereby grants to Licensee a non-exclusive,
non-transferable, worldwide, royalty-bearing, license:
(i) to reproduce and have reproduced the Licensed
Software in the form provided by IBM, and to
distribute, directly and through its distributors,
installed on a Licensee Computer delivered to an End
User, one copy, plus one copy for backup purposes, of
the same Minor Release or Maintenance Release for
which the computer was certified or the most recent
Minor Release or Maintenance Release;
(ii) to grant End Users the right to use the Licensed
Software and to make one copy of the Licensed
Software in the form provided by IBM for back up
purposes for each Licensee Computer owned or leased
by such End User that contains the Licensed Software;
and
(iii) to distribute, directly and through its distributors,
Maintenance Releases, System Updates and Replacement
Copies of the Licensed Software, to Registered
Customers of Licensee who own or have leased a
Licensee Computer that contains the Licensed
Software.
The number of copies of the Licensed Software which Licensee
is authorized to distribute pursuant to Section 2(a)(i) and
the number of Maintenance Releases and System Updates which
Licensee is authorized to distribute pursuant to Section
2(a)(iii) shall be limited in the aggregate over the term of
this Agreement to the number of IBM Microprocessors purchased
by Licensee during the term of this Agreement and in no event
shall be greater than ** copies per quarter ("Authorized
Copies"). In the event Licensee would like IBM to increase
the number of Authorized Copies, Licensee shall submit a
written request for such increase to IBM pursuant to Section
11.6. Provided that Licensee is in compliance with this
Agreement, IBM will not unreasonably deny such request.
(b) IBM hereby grants to Licensee a non-exclusive,
non-transferable, paid-up, worldwide license to:
(i) use, modify, reproduce and have reproduced the End
User Documentation and to distribute one (1) copy of
the End User Documentation together with each copy of
the applicable Licensed Software;
(ii) grant each End User who owns or has leased Licensee
Computers that contain the Licensed Software the
right to reproduce the number of copies of the End
User Documentation equal to the number of such
computers; and
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(iii) reproduce and use internally, the Enabling Technology
in connection with the installation of Licensed
Software on Licensee Computers and the Enabling
Technology and Licensed Software in connection with
the design, development, manufacture, and testing of
such computers.
2.2 Registration Cards; Restrictions; No Implied Rights; No Reverse
Assembly.
(a) Licensee will include with each copy of the Licensed Software,
a registration card addressed to Apple, in the form provided
by IBM for the purpose of allowing Apple to provide
information to End Users regarding new releases of the
Licensed Software, and other software and peripheral products.
The information requested on the registration card will
include, but not be limited to, the End User's name, address,
and machine configuration.
(b) Licensee will include, with each copy of the Licensed
Software, an end user license agreement substantially in the
form attached as Exhibit D, as may be updated for future
licensing transactions from time to time by IBM.
(c) Licensee will retain, on all copies of the Licensed Software
and End User Documentation reproduced by or for Licensee or
distributed by Licensee, copyright notices and other
proprietary rights notices contained on copies of the Licensed
Software or End User Documentation provided by IBM.
(d) No rights are granted by this Agreement except those expressly
set forth herein and nothing in this Agreement will limit
either party's rights to develop or license competing
products.
(e) Licensee will not, create derivative works from, decompile,
disassemble, or reverse assemble any Licensed Software (to the
extent such restriction is permitted under applicable law).
2.3 Trademark License.
(a) Grant. Subject to the provisions of this Section 2, IBM
hereby grants to Licensee a non-exclusive, non-transferable,
worldwide, paid-up, license to use the Marks, solely on or in
connection with Licensed Software and Licensee Computers to
the extent that the Licensed Software and Licensee Computers
are licensed in Section 2.1.
(b) Required Use of ▇▇▇▇. Licensee agrees to and will use the
Marks on or in connection with the Licensed Software and
Licensee Computers and such usage shall comply with the
trademark specifications and guidelines attached as Exhibit C.
Apple may issue updates and revisions to Exhibit C which will
be uniformly applicable to all licensees of Licensed Software
and Licensee will comply with such
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updates and revisions. Licensee will include the following
statement in conjunction with use of the Marks:
"Mac OS and the Mac OS logo are trademarks of Apple Computer,
Inc. and are used under license. The Mac OS logo is
registered in the United States and other countries."
or any other similar statement as Apple and/or IBM may from
time to time request Licensee to use.
(d) Limitations on Licensee. Licensee acknowledges and agrees
that the Marks and the goodwill associated therewith are the
sole property of Apple and that goodwill from the use of the
Marks exclusively inures to the benefit of and belongs to
Apple. Licensee acknowledges and agrees that this license
does not extend to or include the right to use the Marks, or
any other trademark, service ▇▇▇▇ or logo of Apple or any
trademark, service ▇▇▇▇ or logo of IBM as or in the title or
brand name of Licensee. Licensee agrees that this license
does not extend to or include the right to use the Marks on
promotional merchandise (such as, by way of example but not
limitation, shirts, key chains, mugs, mouse pads, etc.).
Licensee agrees it has no rights of any kind whatsoever with
respect to the Marks except to the extent of the license or
right to sublicense granted herein or in other written
agreements between Apple and Licensee. Licensee agrees, to
refrain from using or filing any application to register, in
any class and in any country, any trademark or service ▇▇▇▇
which is the same as, similar to, or which incorporates, in
whole or in part, any or all of the Marks, in the name or on
behalf of Licensee or its related companies, or in the name of
or on behalf of any of its officers, directors, employees,
agents, servants, or other juristic entity within the control
of, or which controls, any of them.
(e) Use and Approvals.
(i) Licensee acknowledges that it is of fundamental
importance to IBM that copies of the Licensed
Software and Licensee Computers shall be of the
highest quality. Licensee agrees that Licensee
Computers will, at all times during the Term, meet
the Certification Requirements.
(ii) When requested by IBM, Licensee shall supply to IBM a
copy of the packaging, documentation and advertising
for any such requested model of Licensee Computer.
(f) Infringement. In the event Licensee learns of any actual or
threatened infringement or passing-off of a ▇▇▇▇ or that any
third party alleges or claims that a ▇▇▇▇ is liable to cause
deception or confusion to the public, or is liable to dilute
or infringe any right, Licensee shall immediately notify IBM
of the particulars. Should Apple
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choose to take any action with respect to the Marks, Licensee
shall comply with Apple's reasonable requests for assistance
in connection therewith.
2.4 Certification Requirements. Licensee agrees that each computer
distributed by Licensee with the Licensed Software will satisfy the
Certification Requirements. IBM will provide Licensee with written
modifications to the Certification Requirements as they become
available from Apple. Any such modified Certification Requirements
will become effective only with respect to new computer models that
are submitted for certification more than ninety (90) days after such
modified Certification Requirements are received by IBM from Apple.
Each time a new model computer is submitted to Apple for testing,
Licensee shall pay Apple $ ** /hour for Apple's certification testing
not to exceed $ ** . For certification purposes, a computer is
considered a new model if it has a different (1) logic board layout,
(2) processor speed, or (3) processor. If Licensee believes that a
change in the foregoing aspects of a model will not affect the results
of Apple's certification testing, it will notify Apple of the change
it intends to make, and if Apple in its reasonable judgment believes
that such change will affect the certification results, Apple will
notify Licensee to submit the changed model for re-certification.
Licensee shall submit to Apple, or its designated agent, prior to
first commercial shipment of each new model of computer to be
distributed with the Licensed Software, the number of units of such
model specified in the Certification Requirements. Apple or its
designee will conduct the certification testing and provide written
notification of results for each submission within fifteen (15)
working days of submission of such computer model to Apple; provided,
however, that such period will be extended by the time required for
Apple to obtain Licensee's consent for consultation with personnel in
Apple's computer hardware division. Apple or its designee will return
the units submitted for testing promptly upon certification of the new
model or upon earlier request by Licensee. Licensee shall not make
general commercial shipment of the Licensed Software in association
with any new model computer until such new model computer passes
Apple's certification testing.
2.5 Next Major Release.
Provided Licensee has not materially breached this Agreement and that
IBM obtains sufficient rights from Apple, IBM will offer Licensee, in
a timely manner, a non-exclusive, royalty-bearing license to Apple's
next Major Release of the Mac OS ("8.0") on substantially similar
terms to, and at licensee fees and royalty rates no less favorable
than, those that IBM grants to other parties shipping similar volumes
of Mac OS 8.0 licensed from IBM and purchasing similar volumes of the
same PowerPC microprocessors from IBM.
3. PAYMENTS
3.1 License Fee. In consideration of the licenses granted under Section
2, Licensee will pay a non-refundable license fee to IBM in the amount
of $ ** within thirty (30) days of the Effective Date. During the
first year of the Term, IBM will provide a rebate of this License
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Fee to Licensee by issuing a credit to Licensee's account with IBM's
Microelectronics Division which Licensee may use only for purchases of
IBM Microprocessors during the first year of the Term as follows: (a)
** ; (b) ** ; and (c) ** . Unless used by Licensee as
specified above, these credits will expire one year after the
Effective Date.
3.2 Royalty Payments and Statements.
(a) Licensee will pay to IBM Royalty Payments associated with the
distribution of copies of the Licensed Software by Licensee in
connection with this Agreement as follows: For each copy of
the Licensed Software delivered by Licensee to a third party
with a Licensee Computer or used by Licensee internally,
Licensee will pay to IBM a royalty in the amount and according
to the terms specified in Exhibit B. Notwithstanding the
foregoing, Licensee shall not be obligated to pay IBM any
royalty for: (i) distribution of Maintenance Releases, System
Updates, and Replacement Copies pursuant to Section
2.1(a)(iii) above, provided, however that Maintenance
Releases, System Updates and Replacement Copies will be
royalty-free only if they are shipped as a replacement for or
an update to copy of the Licensed Software for which a royalty
has been paid or is not due; (ii) use by Licensee of a
reasonable number of copies of each version of the Licensed
Software for demonstrating the Licensed Software (provided
such use does not include distribution of the Licensed
Software to End Users), and for internal use in training,
briefing and porting centers; and (iii) copies used by IBM or
Sublicensees pursuant to Section 2.1(b)(iii). IBM will
provide Licensee with a credit against Royalty Payments for
any copies of Licensed Software which are returned to Licensee
for which a royalty was paid.
(b) Licensee shall keep and maintain appropriate books and records
necessary for verification that the applicable license fees
and royalties have been paid. During the term of this
Agreement and for three (3) years thereafter Apple and IBM
shall be entitled, not more than once annually and on thirty
(30) days' prior written notice, to retain independent
auditors at Apple's or IBM's expense, as applicable, to review
Licensees' books and records for the purpose of verifying the
accuracy of the statements provided and amounts paid pursuant
to this Section 3. Such audit firms will be required by
agreement to keep the information learned in the audit
confidential. Any underpayment or overpayment by Licensee
determined as a result of the audit will be reflected in the
following quarter's statement and Royalty Payment. If such
audit verifies an underpayment error of greater than five
percent (5%) of the aggregate royalties paid for the period
being reviewed, Licensee shall pay the cost of such audit.
Licensee shall pay all amounts when due, and any amount not
paid when due shall accrue interest at the annual rate of two
percentage points higher than the prime interest rate quoted
by the head office of Citibank, N.A., New York, at the close
of banking on such due date or on the first business day
thereafter if such
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date falls on a non-business day, or the highest rate allowed
by law, if lower, from the date when the payment should have
been paid and ending when paid.
3.3 Taxes. Licensee is responsible for payment of any taxes on payments
made under this Agreement except taxes based on IBM's income for which
IBM shall be responsible.
3.4 Form of Payment. The licensee fee and all royalty statements and
payments will be made in U.S. dollars and sent to:
Manager of Marketing and Sales Operations
International Business Machines Corporation
▇▇▇▇ ▇▇▇▇▇ ▇▇ - ▇▇▇ ▇▇▇
▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
4. CONFIDENTIALITY
4.1 It is understood that either party may refuse to accept information
that is identified as Confidential Information. When Confidential
Information is disclosed in writing, the writing will contain an
appropriate legend, such as "Apple Confidential Information",
"Licensee Confidential Information" or "IBM Confidential Information."
4.2 If such disclosure is orally and/or visually made, disclosure will
begin with an identification as confidential information and be
confirmed by the disclosing party in a written resume delivered within
thirty (30) calendar days following such disclosure to the receiving
party. The resume will:
(a) specifically recite the information deemed to be Confidential
Information and identify it as Confidential Information;
(b) state that the resume confirms a prior oral and/or visual
disclosure;
(c) set forth the date of that disclosure; and
(d) state that the prior disclosure and the resume have been made
pursuant to this Agreement.
4.3 Each party will protect the other party's and Apple's Confidential
Information from unauthorized dissemination with the same degree of
care that the first party uses to protect its own like information but
in no event less than reasonable care. Each party agrees for a period
of five (5) years from the receipt thereof not to disclose to third
parties the other party's and Apple's Confidential Information without
the prior written consent of the other party. Subject to patent
rights, copyrights, any express use restrictions on Confidential
Information in this Agreement, and provided the use of the disclosing
party's documents or software containing Confidential Information does
not exceed the scope of any applicable
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licenses, there is no use restriction on the receiving party regarding
any Confidential Information received pursuant to this Agreement and
the receiving party will be free to use any ideas and concepts
contained therein. Receipt of Confidential Information under this
Agreement will not create any obligation in any way limiting or
restricting the assignment and/or reassignment of employees within a
party or between a party and any of its subsidiaries.
5. DELIVERY & PROPRIETARY COMPONENTS
5.1 IBM will deliver the Licensed Software, Enabling Technology and End
User Documentation in accordance with the delivery terms in Exhibit B.
5.2 Licensee will use the Proprietary Components solely for incorporation
into or servicing of Licensee Computers, and not for other purposes,
including resale to others. This Agreement does not grant a license,
expressly or by implications, to any intellectual property rights that
Apple may have in the Proprietary Components.
6. SUPPORT
6.1 Licensee will be primarily responsible for providing support to
Licensee's End Users and distributors and will be ultimately
responsible for providing the following support:
Licensee shall be responsible for handling all issues raised by
Licensee's End Users involving a lack of understanding by the End User
as to how to use a particular feature of the Licensed Software where
such answer is either available in the End User Documentation or can
be reasonably deduced therefrom. IBM will not be responsible for
providing support directly to Licensee's End Users. Licensee will not
direct its End Users to Apple or IBM for support in connection with
Licensee Computers. IBM will provide support to Licensee to answer
questions that cannot reasonably be answered by Licensee's support
personnel.
IBM will provide one (1) training session in PowerPC architecture and
reference designs for up to two (2) of Licensee's support personnel.
IBM will make available to Licensee a copy of an Apple course
providing an introduction to RISC and PowerPC. IBM will provide one
training and support session to Licensee's support personnel at one of
IBM's facilities to assist Licensee in supporting End Users.
For Licensee Computers for which Licensee requests that IBM provide
support, Licensee shall provide at least one (1) Mac OS compatible
system to IBM for each new model computer which requires certification
under Section 2.4 to enable IBM to provide technical support specified
in this Section 6.1 to Licensee. One (1) system is to be supplied to
IBM's technical support center in Austin, Texas. If the licensed
system is to be marketed in Europe/Middle East or Asia Pacific
regions, one (1) additional system is to be provided to
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the IBM technical support center in each region, for a total of up to
three (3) systems per licensed product family. These systems will not
include monitor, keyboard or mouse.
6.2 Developer Partner Program. Licensee will receive a complimentary
membership in Apple's Developer Partner Program. The current program
entitles a licensee to: - have access to the Developer Technical
Support Group. They provide support via e-mail for creating 3rd
party software or peripherals for Mac OS-compatible computers.
- various mailings of technical information:
Apple Directions: marketing info
Developer CD Series: 3 CDS rotate each quarter
containing: development tools, sample code, system software
develop magazine (quarterly) - Apple's Technical Journal for
creating software and hardware for the Mac utilizing various
pieces of technology.
- technical resources: sample code, technical notes, developer
notes, and tools
- seeding of future Mac technologies (i.e. QuickTime, VR,
QuickDraw 3D, etc...)
Apple may change the Developer Partner program and benefits from time
to time.
7. NO WARRANTY
7.1 IBM MAKES NO WARRANTY, EXPRESS OR IMPLIED, STATUTORY OR OTHERWISE,
INCLUDING ANY WARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR
PURPOSE WITH RESPECT TO ANY LICENSED SOFTWARE, ENABLING TECHNOLOGY, OR
ANY OTHER DELIVERABLES UNDER THIS AGREEMENT, LICENSED AND/OR DELIVERED
TO LICENSEE FROM IBM.
8. TERM
This Agreement will commence on the Effective Date and will continue
until the earliest of the following occur:
(i) the later of when Apple discontinues shipping products
containing Mac OS 7.x, or twelve (12) months from Apple's
general commercial release of the next Major Release;
(ii) April 10, 2000; or
(iii) termination of this Agreement pursuant to Section 9, below.
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9. TERMINATION
9.1 Termination for Cause By Either Party. Either party will have the
right to terminate this Agreement for cause immediately upon written
notice at any time if:
(a) The other party is in material breach of any term, condition
or covenant of this Agreement and fails to cure that breach
within thirty (30) days after receiving written notice of that
breach and of the notifying party's intention to terminate.
(b) The other party: (i) becomes insolvent; (ii) admits in writing
its insolvency or inability to pay its debts or perform its
obligations as they mature; or (iii) makes an assignment for
the benefit of creditors; (iv) undergoes a Change of Control.
9.2 Termination for Convenience by IBM. IBM may terminate this Agreement
without cause upon six (6) months prior written notice to Licensee.
9.3 Termination by IBM. IBM may terminate this Agreement upon thirty (30)
days' prior written notice to Licensee if the Mac OS License Agreement
between IBM and Apple dated as of April 10, 1996 is terminated.
9.4 Effect of Termination. Upon any termination of this Agreement, all
licenses and other rights granted under this Agreement will
automatically terminate and each party will be released from all
obligations and liabilities to the other occurring or arising after
the date of such termination, except that the provisions of Sections
1, 2.2, 2.3(c), 3.2, 3.3, 3.4, 4, 7, 9.3, 10 and 11, and any liability
arising from any breach of this Agreement will survive termination of
this Agreement. Termination of this Agreement will not affect the
rights of any End User to continue to use the Licensed Software or any
Licensee Computer. Upon such termination, Licensee may sell such
quantities of Licensee Computers together with copies of the Licensed
Software pursuant to the licenses in this Agreement, to the extent
necessary to fulfill binding written contractual obligations (e.g.,
accepted purchase orders for a specified quantity, price and delivery
date, and not purchase or distribution agreements without committed
quantities) in existence at the time of notice of termination, for up
to three (3) months after termination. Any obligation to pay incurred
prior to termination will survive termination. Neither party will be
liable to the other for damages of any sort solely as a result of
terminating this Agreement in accordance with its terms. Termination
of this Agreement will be without prejudice to any other right or
remedy of either party.
10. CONSEQUENTIAL DAMAGES; LIMITATION OF LIABILITY
10.1 CONSEQUENTIAL DAMAGES. IN NO EVENT SHALL IBM BE LIABLE TO LICENSEE
FOR ANY SPECIAL, INCIDENTAL, INDIRECT OR CONSEQUENTIAL DAMAGES OF ANY
KIND, ARISING OUT OF OR RELATED TO THIS AGREEMENT, INCLUDING BUT NOT
LIMITED TO, LOSS OF PROFITS OR DAMAGES TO
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LICENSEE'S BUSINESS REPUTATION HOWEVER CAUSED AND ON ANY THEORY OF
LIABILITY, WHETHER IN AN ACTION FOR CONTRACT, STRICT LIABILITY OR TORT
(INCLUDING NEGLIGENCE) OR OTHERWISE, WHETHER OR NOT IBM HAS BEEN
ADVISED OF THE POSSIBILITY OF SUCH DAMAGE AND NOTWITHSTANDING THE
FAILURE OF ESSENTIAL PURPOSE OF ANY REMEDY.
10.2 LIMITATION OF LIABILITY. IN NO EVENT SHALL IBM'S LIABILITY TO
LICENSEE IN THE AGGREGATE, UNDER THIS AGREEMENT EXCEED THE AMOUNTS
ACTUALLY PAID BY LICENSEE TO IBM UNDER THIS AGREEMENT AS ROYALTIES FOR
THE COPIES OF LICENSED SOFTWARE THAT ARE THE SUBJECT OF THE CLAIM, OR
ONE HUNDRED THOUSAND DOLLARS ($100,000), WHICHEVER IS GREATER.
11. GENERAL
11.1 Force Majeure. Neither party will be liable for any failure or delay
in its performance under this Agreement due to causes, including, but
not limited to, an act of God, act of civil or military authority,
fire, epidemic, flood, earthquake, riot, war, sabotage, labor shortage
or dispute, and governmental action, which are beyond its reasonable
control; provided that the delayed party: (i) gives the other party
written notice of such cause promptly, and in any event within fifteen
(15) days of discovery thereof; and (ii) uses its reasonable efforts
to correct such failure or delay in its performance. The delayed
party's time for performance or cure under this Section 11.1 will be
extended for a period equal to the duration of the cause or sixty (60)
days, whichever is less, provided the delayed party is complying with
Section 11.1 (ii) above.
11.2 Assignment. The rights and liabilities of the parties hereto will
bind and inure to the benefit of their respective successors,
executors and administrators, as the case may be, provided that
Licensee may not assign or delegate its rights or obligations under
this Agreement either in whole or in part, (by operation of law or
merger or otherwise), without the prior written consent of IBM. Any
attempted assignment in violation of the provisions of this Section
11.2 will be void.
11.3 Applicable Law. This Agreement will be governed by and construed in
accordance with the laws of the United States and the State of
California as applied to agreements entered into and to be performed
entirely within California between California residents. Both parties
will comply with applicable export laws and regulations and will
cooperate in executing necessary documentation to comply with such
laws and regulations. The parties specifically exclude applicability
of the Convention Relating to Uniform Law on the International Sale of
Goods. With respect to any suit, action or other proceeding arising
out of this Agreement, or any other transaction contemplated thereby,
the parties hereto expressly waive any right they may have to a jury
trial and agree that any proceeding hereunder shall be tried by a
judge without a jury.
13 IBM CONFIDENTIAL
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11.4 Jurisdiction and Venue. Licensee agrees to submit to the
jurisdiction, and waive any venue objections against, the United
States District Court for the Northern District of California, or in
the case of an action for which there is not federal jurisdiction, to
the California state courts located in Santa ▇▇▇▇▇ County, California,
in any litigation arising out of the Agreement.
11.5 Severability. If for any reason a court of competent jurisdiction
finds any provision of this Agreement, or portion thereof, to be
unenforceable, that provision of the Agreement will be enforced to the
maximum extent permissible so as to effect the intent of the parties,
and the remainder of this Agreement will continue in full force and
effect to the extent it still gives effect to the intent of the
parties.
11.6 Notices. All notices required or permitted under this Agreement will
be in writing, will reference this Agreement and will be deemed given
when: (i) delivered personally; (ii) when sent by confirmed telex or
facsimile; (iii) five (5) days after having been sent by documented
registered or certified mail, return receipt requested, postage
prepaid; or (iv) one (1) day after deposit with a commercial overnight
carrier specifying next day delivery, with written confirmation of
receipt. All communications will be sent to the addresses set forth
below to or such other address as my be designated by a party by
giving written notice to the other party pursuant to this Section
11.6.
Licensee:
IBM:
▇▇. ▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇. ▇▇▇▇▇ ▇▇▇▇▇▇
Chairman & CEO Director of Marketing
Power Computing IBM Marketing & Sales
▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇ ▇▇▇ Microelectronics Division
▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇ ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
With a copy to Licensee's Legal With a copy to IBM's Law Dept.
Dept. at the following address: at the following address:
▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ 35 ▇▇▇▇ ▇▇▇▇▇ ▇▇
▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
11.7 No Waiver. Failure by either party to enforce any provision of this
Agreement will not be deemed a waiver of future enforcement of that or
any other provision.
11.8 Third Party Beneficiary. Licensee acknowledges and agrees that Apple
is a third party beneficiary under this Agreement and has the right to
enforce any provision hereunder.
14 IBM CONFIDENTIAL
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11.9 Counterparts. This Agreement may be executed in or more counterparts,
each of which will be deemed an original, but which collectively will
constitute one and the same instrument.
11.10 Headings and References. The headings and captions used in this
Agreement are used for convenience only and are not to be considered
in construing or interpreting this Agreement.
11.11 Trademark Usage. Except as set forth in Section 2.3 or other written
agreements between the parties, neither party is licensed, without the
other party's prior written consent, to use any of the other party's
or Apple's trademarks, service marks, trade names, logos or other
commercial or product designations for any purpose, including, but not
limited to, use in connection with any products, promotions,
advertisements or exhibitions.
11.12 Relationship of Parties. IBM and Licensee are independent
contractors. Neither party nor its employees, consultants,
contractors or agents are agents, employees or joint ventures of the
other party, nor do they have any authority, except as provided in
this Agreement or other agreement between the parties, to bind the
other party by contract or otherwise to any obligation. They will not
represent to the contrary, either expressly, implicitly, by appearance
or otherwise.
11.13 Complete Agreement. This Agreement, including all exhibits,
constitutes the entire agreement between the parties with respect to
the subject matter hereof, and supersedes and replaces all prior or
contemporaneous understandings or agreements, written or oral,
regarding such subject matter. No amendment to or modification of
this Agreement will be binding unless in writing and signed by a duly
authorized representative of both parties.
11.15 Publicity. Neither party will issue any press release or make any
statement of announcement to any third party regarding this Agreement
unless and until expressly agreed to by both parties in writing.
15 IBM CONFIDENTIAL
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IN WITNESS WHEREOF, the parties have caused this Agreement to be executed by
their duly authorized representatives as of the date last signed below.
POWER COMPUTING INTERNATIONAL BUSINESS
CORPORATION MACHINES CORPORATION
By: /s/ By: /s/
------------------------ ---------------------------------
Name: ▇▇▇▇▇▇▇ ▇▇▇▇▇ Name: ▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: Chairman & CEO Title: Vice President and
General Manager Worldwide
Sales and Marketing
Date: February 14, 1997 Date: February 23, 1997
---------------------- -----------------------------
16 IBM CONFIDENTIAL
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EXHIBIT A
CERTIFICATION REQUIREMENTS
The current Certification Requirements are attached hereto and are hereby
incorporated herein by reference. The Certification Requirements will
subsequently be updated for computers using the CHRP version of the Mac OS
operating system.
17 IBM CONFIDENTIAL
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EXHIBIT B
LICENSED SOFTWARE
This exhibit sets forth the royalty rate and other terms relating to the
Licensed Software:
LICENSED SOFTWARE:
The Licensed Software consists of the Licensee non-CHRP (PowerPC and Motorola
68xxx) version and Licensee CHRP version of the Mac OS 7.5.x operating system,
Maintenance Releases, Minor Releases and System Updates thereto for Licensee
Computers in the following languages, as they become available:
US English, UK English, Italian, German, French, Spanish, Portuguese, Swedish,
Norwegian, Danish, Finnish, Dutch, Traditional Chinese, Simplified Chinese,
Japanese. (This license does not include a license to the Japanese fonts from
the FDPC consortium.)
Also, to the extent that other language versions become available to IBM from
Apple at royalty rates no greater than those for the above non-US English
language versions, IBM will make them available to Licensee hereunder.
ENABLING TECHNOLOGY:
Manufacturing Final Test Tool. This tool is used by Apple during the final
test phase in the manufacture of a Macintosh computer. This test is very
extensive. This tool is extensible to allow a licensee to create additional
tests beyond the tests created and provided by Apple. This tool includes:
complete documentation, header files, and libraries to enable a licensee to
create new tests to meet its additional requirements.
Apple Personal Diagnostics. This tool provides comprehensive diagnostic test
on logic board, hard disk, floppy disk drives, system software and display. It
also provides information about the system configuration. The Automatic
Diagnostics feature allows testing of the system automatically when the system
is not otherwise in use. These tools alert users to problems and suggest
corrections.
Mac OS Certification Environment. Apple is developing a new certification
procedure under which licensees of the Licensed Software will be able to
perform certification testing on their own with limited validation being
conducted by Apple. To enable such self-certification, Apple is developing a
tool, currently known as the Mac OS Certification Environment, which Apple
intends to provide to licensees of the Licensed Software and which will enable
licensees to determine, to a large extent, whether their computers meet the
Certification Requirements. Apple intends to provide pre-release copies of
this tool to licensees on an evaluation basis throughout 1996. Version 1.0 of
the tool is currently expected to be released by early 1997. Apple's goal is
to have self certification with validation fully in place at that time.
18 IBM CONFIDENTIAL
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Pre-Release Seed copies of the Licensed Software. Enabling Technology includes
prerelease copies of the Licensed Software provided to Licensee.
The current versions of the Manufacturing Final Test Tool and Apple Personal
Diagnostics will be delivered to Licensee within thirty (30) days of the
Effective Date. Additional Enabling Technology and updates to the current
Enabling Technology will be made available to Licensee within thirty (30) days
of the date it is made available to IBM.
ROYALTY RATE AND PAYMENT TERMS:
Subject to the provisions of this Agreement, royalties will be due and payable
upon all distributions of the Licensed Software by Licensee, except Maintenance
Releases, System Upgrades and Replacement Copies distributed pursuant to
Section 2.1(a)(iii) according to the following terms and payment schedule:
Royalty Payments will be based on quarterly unit volume. Quarterly unit volume
will be calculated based on the following four calendar quarters:
January-March, April-June, July- September, and October-December.
For the period starting on the Effective Date and ending on the last day of the
second full quarter after the Effective Date the royalty rate will be $ **
for U.S. English versions of the Licensed Software and $ ** for all other
language versions of the Licensed Software regardless of Licensee's actual
volume.
For all subsequent quarters (except as provided below) the royalty rates are:
Quarterly Unit Volume US Eng. Other
** $ ** $ **
When Licensee sells a model of Licensee Computer that is a desktop system
having an average price paid by the End User below $ ** or a notebook
computer having an average price paid by the End User below $ ** , the
royalty rates are:
Quarterly Unit Volume US Eng. Other
** $ ** $ **
Licensee must provide reliable evidence of the average street price of a model
of Licensee Computer (which IBM shall have the right to audit pursuant to
Section 3.2(b) above) to be entitled to the above discounted royalty rates.
Within fifteen (15) days after the close of each calendar month Licensee shall
provide a statement certified correct by an officer of Licensee, indicating the
number and type of copies distributed by
19 IBM CONFIDENTIAL
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Licensee during the calendar month for which royalties are being paid, the
amount of royalties owed for the month, and an itemization of the volume of
Licensee Computers sold by Licensee in the U.S. versus the volume of Licensee
Computers sold by Licensee outside of the U.S.
IBM will invoice Licensee for the Royalty Payment amount which Licensee owes
for the unit volume for that month no sooner than fifteen (15) days after the
close of the calendar month. Payment by Licensee will be due within ** days
from the date of invoice. Late payment of invoices will be assessed a charge
equal to the lesser of one and one-half percent (1.5%) per month or the
statutorily allowed maximum rate of interest in accordance with the laws of the
State of New York. The royalty rate for the current quarter will be based on
the prior quarter unit volume. An adjustment will be made at the end of the
quarter to reflect the royalty rate for the quarterly unit volume actually
achieved. Each Royalty Payment shall be accompanied by a statement of the type
described in the previous paragraph indicating the number and type of copies
distributed by Licensee during the calendar month. In the event that Licensee
fails to provide a statement to IBM within fifteen (15) days of the end of the
calendar month, IBM will invoice Licensee based on the number of IBM
Microprocessors shipped from the Effective Date through the end of the calendar
month, less the number of units of Licensed Software on which a royalty has
previously been paid.
DELIVERY OF LICENSED SOFTWARE:
IBM will deliver to Licensee the IBM U.S. English version of Mac OS 7.6 and
the corresponding End User Documentation in electronic form within fifteen (15)
days of the Effective Date.
Each language version of MAC OS 7.6 and any Minor Release or Maintenance
Release thereafter for the Licensed Software will be delivered to Licensee
within thirty (30) days of the date IBM receives each such language version.
20 IBM CONFIDENTIAL
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EXHIBIT C
MARKS
"MAC OS"
MAC OS STYLIZED LOGO
APPLE TRADEMARK GUIDELINES
The Apple Trademark Guidelines and the Usage Guidelines for the Mac OS Logo are
attached hereto and are incorporated herein by reference.
Required Use of ▇▇▇▇
The Marks must be displayed on and in connection with the Licensed Software and
Licensee Computers in at least the following instances: (i) on at least two
sides of the outside of the box or other package in which a Licensee Computer
is shipped and on the packaging in which the Licensed Software is shipped; (ii)
on the copyright/title page of End User Documentation for Licensed Software and
Licensee Computers; (iii) by prominently displaying the Marks on promotional
material, including, without limitation, advertising, point of sale and data
sheets for the Licensed Software and Computers; and (iv) the ▇▇▇▇ must be
retained on the screen display of the Licensed Software at boot up. Licensee
may also use the Marks in other ways on or in connection with the Licensed
Software and Licensee Computers in accordance with Section 2.3. All such usage
will comply with the Apple trademark Guidelines and the Usage Guidelines.
Use of the Marks as authorized by this Agreement may be done by Licensee or its
authorized agents.
Amendment to Trademark Guidelines
The paragraph entitled, "the Mac OS Logo trademark" in the attached Apple
Trademark Guidelines and the Usage Guidelines is amended in its entirety to
read as follows:
"Only Apple and authorized licensees and sublicensees can use the Mac OS Logo,
and then only as specified in their license agreement."
21 IBM CONFIDENTIAL
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EXHIBIT D
END USER SOFTWARE LICENSE
APPLE COMPUTER, INC.
LICENSE FOR MAC(TM) OS
PLEASE READ THIS LICENSE CAREFULLY BEFORE USING THE SOFTWARE. BY USING THE
SOFTWARE, YOU ARE AGREEING TO BE BOUND BY THE TERMS OF THIS LICENSE.
1. License. The application, demonstration, system and other software
accompanying this License, whether on disk, in read only memory, or on any
other media (the "Apple Software"), the related documentation and fonts are
licensed to you by Apple Computer, Inc. or its local subsidiary, if any
("Apple''). You own the disk on which the Apple Software and fonts are
recorded but Apple and/or Apple's Licensor(s) retain title to the Apple
Software, related documentation and fonts. This License allows you to use the
Apple Software and fonts on a single computer and make one copy of the Apple
Software and fonts in machine-readable form for backup purposes only. You must
reproduce on such copy the Apple copyright notice and any other proprietary
legends that were on the original copy of the Apple Software and fonts. You
may use the Apple Software in a networked environment so long as each computer
in such environment is the subject of a Software license for the Apple
Software; however, you may not electronically transmit the Apple Software from
one computer to another over a network. You may also transfer all your license
rights in the Apple Software and fonts, the backup copy of the Apple Software
and fonts, the related documentation and a copy of this License to another
party, provided the other party reads and agrees to accept the terms and
conditions of this License.
2. Restrictions. The Apple Software contains copyrighted material, trade
secrets and other proprietary material and in order to protect them, and except
as permitted by applicable legislation, you may not decompile, reverse
engineer, disassemble or otherwise reduce the Apple Software to a
human-perceivable form. You may not modify, network, rent, lease, loan,
distribute or create derivative works based upon the Apple Software in whole or
in part, except for the limited networking described above in Section 1. THIS
APPLE SOFTWARE MAY NOT BE IMPORTED TO, USED IN, OR RE-EXPORTED FROM FRANCE OR
ANY OF ITS DEPARTMENTS OR TERRITORIES. [This last sentence is not required for
the French version of Mac OS].
3. Termination. This License is effective until terminated. You may
terminate this License at any time by destroying the Apple Software, related
documentation and fonts and all copies thereof. This License will terminate
immediately without notice from Apple if you fail to comply with any provision
of this License. Upon termination you must destroy the Apple Software, related
documentation and fonts and all copies thereof.
22 IBM CONFIDENTIAL
23
4. Export Law Assurance. You may not use or otherwise export or reexport
the Apple Software except as authorized by United States law and the laws of
the jurisdiction in which the Apple Software was obtained. In particular, but
without limitation, the Apple Software may not be exported or reexported (i)
into (or to a national or resident of) Cuba, Iran, Iraq, Libya, North Korea,
Syria or any other U.S. embargoed country or (ii) to anyone on the U.S.
Treasury Department's list of Specially Designated Nationals or the U.S.
Department of Commerce's Table of Denial Orders. By using the Apple Software,
you represent and warrant that you are not located in, under control of, or a
national or resident of any such country or on any such list.
5. Government End Users. If the Apple Software is supplied to the United
States Government, the Apple Software is classified as "restricted computer
software" as defined in clause 52.227-19 of the FAR. The United States
Government's rights to the Apple Software are as provided in clause 52.227-19
of the FAR.
6. Disclaimer of Warranty on Apple Software. You expressly acknowledge
and agree that use of the Apple Software and fonts is at your sole risk. The
Apple Software, related documentation and fonts are provided "AS IS" and
without warranty of any kind and Apple and Apple's Licensor(s) (for the
purposes of provisions 7 and 8, Apple and Apple's Licensor(s) shall be
collectively referred to as "Apple") EXPRESSLY DISCLAIM ALL WARRANTIES AND/OR
CONDITIONS, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED
WARRANTIES AND/OR CONDITIONS OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR
PURPOSE. APPLE DOES NOT WARRANT THAT THE FUNCTIONS CONTAINED IN THE APPLE
SOFTWARE WILL MEET YOUR REQUIREMENTS, OR THAT THE OPERATION OF THE APPLE
SOFTWARE WILL BE UNINTERRUPTED OR ERROR FREE, OR THAT DEFECTS IN THE APPLE
SOFTWARE AND THE FONTS WILL BE CORRECTED. FURTHERMORE, APPLE DOES NOT WARRANT
OR MAKE ANY REPRESENTATIONS REGARDING THE USE OR THE RESULTS OF THE USE OF THE
APPLE SOFTWARE AND FONTS OR RELATED DOCUMENTATION IN TERMS OF THEIR
CORRECTNESS, ACCURACY, RELIABILITY, OR OTHERWISE. WITHOUT PREJUDICE TO THE
GENERALITY OF THE FOREGOING, APPLE DOES NOT WARRANT OR MAKE ANY REPRESENTATION
OR GUARANTEE REGARDING THE AUTHENTICITY OR SECURITY OF ANY DIGITAL SIGNATURE
GENERATED USING THE APPLE SOFTWARE, OR ANY WARRANTY OR REPRESENTATION THAT THE
PERSON OR ENTITY THAT IS USING SUCH A DIGITAL SIGNATURE HAS THE AUTHORITY TO DO
SO. NO ORAL OR WRITTEN INFORMATION OR ADVICE GIVEN BY APPLE OR AN APPLE
AUTHORIZED REPRESENTATIVE SHALL CREATE A WARRANTY OR IN ANY WAY INCREASE THE
SCOPE OF THIS WARRANTY. SHOULD THE APPLE SOFTWARE PROVE DEFECTIVE, YOU (AND
NOT APPLE OR AN APPLE AUTHORIZED REPRESENTATIVE) ASSUME THE ENTIRE COST OF ALL
NECESSARY SERVICING, REPAIR OR CORRECTION. SOME JURISDICTIONS DO NOT ALLOW THE
EXCLUSION OF IMPLIED WARRANTIES, SO THE ABOVE EXCLUSION MAY NOT APPLY TO YOU.
THE TERMS OF THIS DISCLAIMER AND THE LIMITED WARRANTY IN PARAGRAPH 3 DO NOT
AFFECT OR PREJUDICE THE STATUTORY RIGHTS OF A CONSUMER ACQUIRING APPLE PRODUCTS
OTHERWISE THAN IN THE
23 IBM CONFIDENTIAL
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COURSE OF BUSINESS, NEITHER DO THEY LIMIT OR EXCLUDE ANY LIABILITY FOR DEATH OR
PERSONAL INJURY CAUSED BY APPLE'S NEGLIGENCE.
7. Limitation of Liability. UNDER NO CIRCUMSTANCES INCLUDING NEGLIGENCE,
SHALL APPLE BE LIABLE FOR ANY INCIDENTAL, SPECIAL OR CONSEQUENTIAL DAMAGES THAT
RESULT FROM THE USE, INCLUDING BUT NOT LIMITED TO THE IMPROPER, WRONGFUL, OR
FRAUDULENT USE OF THE DIGITAL SIGNATURES GENERATED USING THE APPLE SOFTWARE, OR
INABILITY TO USE THE APPLE SOFTWARE OR RELATED DOCUMENTATION, EVEN IF APPLE OR
AN APPLE AUTHORIZED REPRESENTATIVE HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH
DAMAGES. SOME JURISDICTIONS DO NOT ALLOW THE LIMITATION OR EXCLUSION OF
LIABILITY FOR INCIDENTAL OR CONSEQUENTIAL DAMAGES SO THE ABOVE LIMITATION OR
EXCLUSION MAY NOT APPLY TO YOU.
In no event shall Apple's total liability to you for all damages, losses, and
causes of action (whether in contract, tort (including negligence) or
otherwise) exceed the amount paid by you for the Apple Software and fonts.
8. Controlling Law and Severability. If there is a local subsidiary of
Apple in the country in which the Apple Software License was purchased, then
the local law in which the subsidiary sits shall govern this License.
Otherwise, this License shall be governed by and construed in accordance with
the laws of the United States and the State of California, as applied to
agreements entered into and to be performed entirely within California between
California residents. If for any reason a court of competent jurisdiction
finds any provision of this License, or portion thereof, to be unenforceable,
that provision of the License shall be enforced to the maximum extent
permissible so as to effect the intent of the parties, and the remainder of
this License shall continue in full force and effect.
9. Complete Agreement. This License constitutes the entire agreement
between the parties with respect to the use of the Apple Software, related
documentation and fonts, and supersedes all prior or contemporaneous
understandings or agreements, written or oral, regarding such subject matter.
No amendment to or modification of this License will be binding unless in
writing and signed by a duly authorized representative of Apple.
24 IBM CONFIDENTIAL