OEM RECIPROCAL LICENSE AGREEMENT
This OEM Agreement (the "Agreement" or "License") is made as of January
6, 2000
between EVERGREEN INTERNET, INC., an Arizona Corporation having offices
at 3260
North Colorado Street, Chandler, Arizona 85225 ("Evergreen" or
"Licensor") and
Caldera Systems, Inc., a Utah Corporation, having offices at 240 West
Center,
Orem Utah 84057 ("Caldera" or "Licensee").
This OEM License Agreement is a "Contract" made pursuant to a Master
Agreement
of even date. This Agreement, the Master Agreement and Exhibits B, C, D
and E of
the Master Agreement will become effective simultaneously, as of the
date when
this Agreement, the Master Agreement and all such Exhibits of the Master
Agreement have been mutually signed and delivered by the parties.
1. DEFINITIONS
"Code" means the computer programming code relating to
ECential(TM) and
OpenLinux(TM) software products in object and/or executable code
form
(machine-readable) not to include source code.
"Documentation" means the textual materials relating to the Code
provided to each other by Evergreen and Caldera, including
operating
instructions, related technical information, and user
documentation.
"ECential" means the ECential software products and programs for
Linux,
as listed in Exhibit A including their Code and Documentation,
and any
other existing or future e-Commerce Products that Evergreen
determines
is appropriate for Linux, including their Code and
Documentation.
Exhibit A shall be updated to keep it current with future e-
Commerce
Products of Evergreen for Linux and Updates.
"e-Commerce Products" means software products and programs that
are used
in the creation, analysis, management and promotion of Internet
E-Commerce web sites, storefronts, customer service, business
logic,and
e-commerce transactions for consumer-to-business and
business-to-business solutions across the Internet or Intranets.
Software products or programs that are not competitive with
eCential or
future releases thereof shall not be deemed to be within the
definition
of ecommerce products.
"Marks" means Evergreen Marks and Caldera Marks. "Evergreen
Marks" means
the trademarks and/or product names of Evergreen. "Caldera
Marks" means
the trademarks and/or product names of Caldera.
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"Proprietary Data" means any proprietary "know-how" which a
disclosing
party discloses to a receiving party relating to the development
or use
of the disclosing parties design, structure, configuration,
programming,
and protocol of the disclosing parties software. "Know-how" may
include
computer program designs, algorithms, subroutines, system
specifications, programming logic, manufacturing techniques, and
program
architecture.
"Evergreen Software" means any software proprietary to Evergreen
including ECential programs or Code. It also refers to any
ECential
programs used in conjunction with Caldera Software.
"Caldera Software" means the software proprietary to Caldera
which is
included by Caldera in OpenLinux eServer.
"OpenLinux eServer" mean the Linux software distribution
designated by
Caldera for eServer. This Linux software distribution for
eServer
includes a Linux kernel, Caldera Software and OpenLinux Third
Party
Software. OpenLinux for eServer includes existing and future
versions
thereof.
Third Party Software. "Third Party Software" means the software
proprietary third parties which is included in eBuilder.
"OpenLinux
Third Party Software means the Third Party Software included by
Caldera
in OpenLinux for eBuilder. "ECential Third Party Software" means
the
Third Party Software included by Evergreen in ECential.
"OpenLinux eBuilder" means the bundled combination of ECential
with
OpenLinux eServer plus third party software, plus any other
software the
parties agree to add.
"Evergreen's version of the bundle" means the bundled
combination of
OpenLinux eServer with eCential plus any software the parties
agree to
add.
"Reseller" shall mean a distributor, OEM, VAR, integrator,
retailer,
dealer or other reseller.
"Updates" shall means updates and upgrades to, new versions of,
and
replacements for ECential.
2. OWNERSHIP
2.1 OWNERSHIP
ECential is the proprietary product of Evergreen and others in
accordance with Sections 3.3 and 3.4 below and is protected by
the
Copyright and Trademark Laws of the United States of America.
Caldera
acknowledges that Evergreen and others in accordance with
Sections 3.3
and 3.4 below own the intellectual property in ECential software
and
Caldera makes no claim of ownership to their intellectual
property in
ECential or ECential itself.
2.2 EVERGREEN AND CALDERA MARKINGS
Caldera and Evergreen shall not in any manner act adversely to
each
others Marks, Proprietary Data, or other intellectual property..
Caldera
shall not remove the Evergreen Marks from ECential, unless
granted in
written permission from Evergreen. Evergreen shall not remove
the
Caldera Marks from OpenLinux, unless granted in written
permission from
Evergreen.
2.3 MUTUAL RIGHTS AND OBLIGATIONS
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Evergreen acknowledges that all rights, ownership, and
trademarks of
OpenLinux for eBuilder are the exclusive property of Caldera
and/or
Caldera's licensors / suppliers. Caldera acknowledges that all
rights,
ownership and trademarks of eCential are the exclusive property
of
Evergreen and/or Evergreens licensors/suppliers. Evergreen shall
not in
any manner act adversely to the Caldera Marks, Caldera's
Proprietary
Data or other intellectual property of Caldera. The eBuilder
product
name and trademark shall belong exclusively to Caldera. The
parties will
work together in the spirit of an equal partnership so that
there is
agreement on all product issues such as content, look and feel
and
licensing terms. Caldera will be sure that the name eCential is
featured
in all packaging and promotion, web sites and software so that
brand
equity is built for both parties and their respective products
(eBuilder
and eCential). OpenLinux eBuilder must give prominent credit to
eCential
in all packaging and promotion. Evergreen must have the
opportunity to
approve packaging and promotional materials. Evergreen marketing
materials, packaging and look & feel must come through in
Caldera's
packages, web sites and collateral. Evergreen is entitled to
create its
own version of the bundled software and for that version hereby
extends
to Caldera the same terms listed above.
3. LICENSE
3.1 LICENSE GRANT
Evergreen grants a, non-transferable (except under Section 9. Y.
of the
Master Agreement), worldwide right and license for the Linux
market
during the term of this Agreement, (and Caldera grants Evergreen
a
non-transferable (except under Section 9. Y. of the Master
Agreement),
worldwide right and license for the linux market during the term
of this
agreement) to do the following:
3.1.1 bundle ECential with OpenLinux for eServer to
create
eBuilder and Evergreen's version of the bundled product.
3.1.2 market, distribute, package, and publish Ecential
and
OpenLinux, including ECential and OpenLinux Software and
documentation, only as part of eBuilder or Evergreen's
version
of the bundled product and sell Ecential and OpenLinux
licenses
to end users who receive eBuilder;
3.1.3 use ECential (such use being limited to use by
employees
or by independent contractors of Caldera for internal
use only).
Such internal use will require payment of VisiBroker
license
fees based on the number of CPUs being used. Caldera
shall be
entitled to purchase such VisiBroker licenses from
Evergreen at
Evergreen's cost. Evergreen employees and independent
contractors may use OpenLinux for internal development.
3.1.4 copy and reproduce ECential and OpenLinux for the
purposes
of this Agreement.
3.2 ECential is licensed, not sold. Title to the intellectual
property
and Source Code in ECential remains with Evergreen and its
suppliers
under Sections 3.3 and 3.4. Evergreen and/or its suppliers
reserve all
rights not expressly granted herein. Without limiting the
foregoing,
Caldera shall not modify, port, translate, localize, add
features or
functionality in the Code, or create derivative works of
ECential,
decompile, deencrypt, disassemble or otherwise reverse engineer
ECential, the logic,
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algorithms or program code of ECential, or attempt to do any of
the
same. Caldera shall not receive any rights by implication or
otherwise
in ECential or any component thereof, except as provided in the
Business
Alliance.
3.3 Caldera and Evergreen may market, distribute, package and
publish
ECential and OpenLinux under 3.1.2 above, directly to end users
and/or
indirectly to end users through Caldera's or Evergreen's
Resellers.
Bundling may be accomplished by physical bundling (e.g.,
inclusion of
ECential physical media with OpenLinux eBuilder media) or
electronic
bundling (e.g., by making downloads of ECential available
through the
same web page as downloads of OpenLinux eBuilder) or by
otherwise making
ECential available in conjunction with eBuilder. The license and
rights
granted to Caldera may be exercised with respect to any or all
of the
ECential products as defined in Exhibit A.
3.4 FORM OF USER LICENSE
If and to the extent that the parties agree it is practicable,
use by an
end user of ECential will require a license key. To obtain a
license key
for ECential, registration is required by the registered user of
the
product or by Caldera's Reseller. Registration is accomplished
by the
end user or Caldera's Reseller accessing a web registration page
hosted
by Evergreen and/or Caldera and filling in the required
registration
information. Upon completion of the registration process, the
registered
user will obtain (or the Reseller will obtain for its end user
customer)
the license key and a User License for the ECential software
product
being registered. The User License shall be the Software License
Agreement of Attachment B. If obtained by either parties
Reseller, then
it will be passed on to the end user. Evergreen will provide
Caldera
with the information requested by Caldera to create and maintain
the
Caldera web page. Caldera will reciprocate.
If this registration process is not utilized or if it does not
include a
procedure acceptable to Evergreen by which the end user accepts
the
Software License Agreement, then Caldera has the following
obligation:
The ECential licenses from Evergreen that Caldera is authorized
to sell
under Section 3.1 above shall be sold on behalf of Evergreen
under this
Agreement and are to include the Software License Agreement
attached as
Exhibit B to this Agreement. Caldera shall include a copy of the
applicable Software License Agreement with each license of
ECential that
Caldera sells. If Caldera believes that it is not practicable to
obtain
written signatures for the Software License Agreement, then
Evergreen
shall incorporate into the Software License Agreement and the
ECential
Code terms and procedures that provide for acceptance of the
Software
License Agreement by the end user by installing or using
ECential.
Caldera shall not interfere with such contract acceptance terms
and
procedures.
The Software License Agreement shall govern the use of ECential
by end
user customers. The Software License Agreement includes a grant
by
Evergreen to the end user to use ECential (including the third
party
software of Sections 3.3 and 3.4). The Software License
Agreement is an
agreement between Evergreen and the end user. Caldera is not a
party to
the Software License Agreement and has no obligation or
liability
thereunder.
3.5 VISIBROKER LICENSE
Visibroker, a product of Inprise, is an embedded product in
ECential.
Licenses granted by Visibroker are per CPU, and the number of
licenses
granted is determined by the product purchased. As described in
Exhibit
A, additional licenses are obtained by purchasing the additional
CPU
product.
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3.6 THIRD PARTY SOFTWARE
Caldera understands and agrees that the ECential Software
utilizes
software or software components (including Visibroker) from
third
parties as described in Exhibit 2 to Software License Agreement
of
Exhibit B, and said third party software is licensed to an end
user each
time Caldera sells an ECential license to an end user. The
Software
License Agreement will include a reference to and copy of the
applicable
third party license agreements. The end user must agree to abide
by the
terms of the applicable third party license agreement(s) through
acceptance of the end user's Software License Agreement as
provided in
Section 3.4. Evergreen and Caldera will amend said Exhibit 2 as
necessary to keep it current with the third party software in
ECential.
Evergreen shall be responsible for payment to the applicable
third
parties for the license fees, royalties and other payments or
costs of
third party software in ECential arising from licenses of
ECential to
end users ("third party fees"). If Caldera is the "Selling
Party" (as
defined in Section 4.2), then end users will pay such third
party fees
to Evergreen through Caldera. Caldera shall be responsible for
collection of these third party fees. Third party fees shall be
Evergreen's actual cost, without mark-up.
3.7 REPORTS
By the 20th day of each month following the calendar quarter
end,
Caldera will provide Evergreen the following activity reports:
a. License Report: List of all ECential licenses sold to end
users or
Resellers in conjunction or bundled with the eBuilder. If the
registered
user obtains the license key and User License through the web
site as
described in Section 3.4, this report will be generated by the
parties
from web site information. Otherwise, Caldera will be required
to
provide this list as agreed to in 3.7.a. The list may include
channel
partners and/or registered end users of the product. The report
should
include copies of OpenLinux that Caldera knows will be used to
deploy an
ecommerce internet or intranet site.
b. Trouble Report: Problems or bugs believed by Caldera to be
caused by
errors in the Evergreen Software.
c. Enhancement Report: Any enhancements and suggestions for
improvement
of Evergreen Software which Caldera desires to suggest to
Evergreen.
d. CPU Report: To the extent that VisiBroker is included in
ECential,
Caldera is required to provide a listing of server(s) and total
CPUs per
server per license distributed. Report is to include the name of
the end
user, address, version of eBuilder, hardware and operating
system and
the number of CPUs. This report, in addition to any other
purposes, is
required to provide compliance with Visibroker license
requirements as
indicated in 3.2 above. If however, the registered user obtains
the
license key and User License through the web site as described
in
Section 3.4, then this report will be generated by the parties
from web
site information. Otherwise, Caldera will be required to provide
this
list as agreed to in 3.7.d.
3.8 MASTER COPY OF THE SOFTWARE
Evergreen will provide Caldera with a master copy of the
ECential
software products and programs listed in Exhibit A and for each
Update
(see Section 6.3). Caldera is authorized to reproduce any such
copy
solely in connection with exercising the rights granted under
this
Agreement. Upon termination of this Agreement for any reason,
Caldera
shall return to Evergreen the master copy or
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copies of the program and all other copies of the Evergreen
Software
except as needed for continued support under Section 5.3.
Caldera will
provide a master copy of OpenLinux under the same terms.
3.9 EVERGREEN MARKS
Caldera shall use the Evergreen Marks in connection with
ECential. The
use of the Evergreen Marks by Caldera shall strictly adhere to
the most
recent reasonable written guidelines provided by Evergreen. In
the
absence of written guidelines from Evergreen, Caldera shall
submit the
proposed use of any Evergreen Mark to Evergreen for Evergreen's
written
approval before such use. All use of the Evergreen Marks by
Caldera
shall inure to the benefit of Evergreen. In bundled software
packaging,
whether physical or on-line, Evergreen shall have the right to
approve
all such packaging as to ECential prior to offering the bundle
to
market. Evergreen shall not unreasonably withhold or delay
approval.
3.10 GNU General Public License
Both parties understand that Linux and certain software in
eBuilder are
or may be subject to or governed by the applicable GNU General
Public
License and/or other applicable open source agreements, and
nothing in
this Agreement or the Business Alliance shall require either
party to
act in contradiction of the applicable GNU General Public
License and/or
other applicable open source agreements.
3.11 EXCLUSIVE RIGHT TO DISTRIBUTE
For a period of one year from the Date of First Distribution or
March
31, 2000 (whichever is first) , Evergreen agrees that it will
not bundle
ECential with any other Linux operating system software that
competes
with Caldera's OpenLinux other than Caldera's OpenLinux for
eBuilder and
that Evergreen will promote Caldera andOpenLinux for eBuilder as
the
preferred Linux solutions for ECential. During this same one
year
period, Caldera agrees that it will not bundle with Open Linux
or
OpenLinux for eBuilder any other e-Commerce Product that
competes with
ECential and that Caldera will promote Evergreen and ECential as
the
preferred e-Commerce Product solution for Linux. This Section
3.11
imposes no restrictions or obligations on the parties hereto
other than
as stated in Section 3.11. Neither this paragraph nor the
Business
Alliance create any exclusive distributorship on behalf of
Caldera or
Evergreen. Either party to this Business Alliance may distribute
the
bundled OpenLinux/ECential products directly or indirectly
through their
respective distribution channels.
3.13 OpenLinux for eBuilder is licensed, not sold. The Linux
kernel and
any other GNU General Public License software or open source
software
are distributed pursuant to and governed by the applicable GNU
General
Public License or open source software agreement. Title to the
intellectual property and source code in OpenLinux for eBuilder
remains
with Caldera and its licensors or suppliers as applicable.
Caldera
and/or its licensors and suppliers reserve all rights not
expressly
granted herein. Without limiting the foregoing, Caldera shall
not
modify, port, translate, localize, add features or functionality
in
OpenLinux for eBuilder, or create derivative works of OpenLinux
for
eBuilder, decompile, deencrypt, disassemble or otherwise reverse
engineer OpenLinux for eBuilder, the logic, algorithms or
program code
of OpenLinux for eBuilder, or attempt to do any of the same,
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except as permitted in the applicable license agreements (see
Sections
3.14 and 3.15 below). Evergreen shall not receive any rights by
implication or otherwise in OpenLinux for eBuilder or any
component
thereof, except as provided in the Business Alliance.
3.14 FORM OF USER LICENSE
All copies of eBuilder marketed, distributed or published by
Evergreen
must include copies of all license agreements applicable to
OpenLinux
for eBuilder as provided by Caldera to Evergreen. Such license
agreements shall govern use and licensing of OpenLinux for
Builder.
Evergreen shall respect any terms and procedures in any such
license
agreement or the software that provide for acceptance of the
license
agreement by the end user by installing or using the software to
which
the license agreement applies. Evergreen shall not interfere
with such
contract acceptance terms and procedures.
Each such license agreement is an agreement between Caldera or
its
licensor or supplier, as applicable, and the end user. Evergreen
is not
a party to these license agreements and has no obligation or
liability
thereunder.
3.15 OPENLINUX THIRD PARTY SOFTWARE
Evergreen understands and agrees that OpenLinux for eBuilder
includes
OpenLinux Third Party Software from third parties and said
OpenLinux
Third Party Software is licensed (under a license agreement
under
Section 3.14 above) to an end user each time Evergreen or its
Reseller
distributes or otherwise provides eBuilder to an end user. The
end user
must agree to abide by the terms of the applicable license
agreements
through acceptance of the these license agreements as provided
in
Section 3.14. As OpenLinux Third Party Software or the
applicable
license agreements change, Caldera will provide Evergreen with
new forms
of such license agreements as necessary to keep current with the
OpenLinux Third Party Software, and Evergreen shall use the
then-most-current version of the license agreements. The same
applies to
any new Caldera Software or changes in Caldera Software license
agreements. Caldera shall be responsible for payment to the
applicable
third parties for the license fees, royalties and other payments
or
costs of OpenLinux Third Party Software in eBuilder arising from
the
distribution of eBuilder to end users ("third party fees"). If
Evergreen
is the "Selling Party" (as defined in Section 4.2), then end
users will
pay such third party fees to Caldera through Evergreen.
Evergreen shall
be responsible for collection of these third party fees. Third
party
fees shall be Caldera's actual cost, without mark-up.
3.16 REPORTS
BY THE 20TH DAY OF EACH MONTH FOLLOWING THE CALENDAR QUARTER
END,
EVERGREEN SHALL PROVIDE REPORTS TO CALDERA ON ALL COPIES OF
EBUILDER
DISTRIBUTED OR PUBLISHED BY EVERGREEN TO END USERS OR RESELLERS.
SUCH
REPORTS SHALL BE AS SIMILAR AS POSSIBLE TO THE REPORTS UNDER
SECTION
3.7, BUT DESIGNED TO INCLUDE INFORMATION NEEDED BY CALDERA FOR
ROYALTY
PURPOSES, FOR PURPOSES OF OPENLINUX THIRD PARTY SOFTWARE, AND AS
OTHERWISE REASONABLY REQUESTED BY CALDERA. THE REPORT WILL
INCLUDE
INFORMATION ON SALES OF ECENTIAL THAT EVERGREEN KNOWS WILL BE
DEPLOYED
ON LINUX AT THE TIME OF THE TRANSACTION.
3.17 MASTER COPY OF THE SOFTWARE
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Caldera will provide Evergreen with a master copy of eBuilder
and
updates to and new versions of eBuilder (including the OpenLinux
for
eBuilder software therein). Caldera is authorized to reproduce
any such
copy solely in connection with exercising the rights granted
under this
Agreement. Upon termination of this Agreement for any reason,
Caldera
shall return to Evergreen the master copy or copies of the
program and
all other copies of the OpenLinux for eBuilder except as needed
for
continued support under Section 5.3.
3.18 EVERGREEN MARKS
Evergreen shall use the Caldera Marks in connection with
OpenLinux for
eBuilder (including any marketing, distribution, packaging or
publication of eBuilder under Section 3.12), and shall use
"eBuilder"
(and no other trademark or product name unless and as approved
in
writing by Caldera) as the trademark and product name for the
eBuilder
product. The use of the Caldera Marks by Evergreen shall
strictly adhere
to the most recent reasonable written guidelines provided by
Caldera. In
the absence of written guidelines from Caldera, Evergreen shall
submit
the proposed use of any Caldera Mark to Caldera for Caldera's
written
approval before such use. All use of the Caldera Marks by
Evergreen
shall inure to the benefit of Caldera. In bundled software
packaging,
whether physical or on-line, Caldera shall have the right to
approve all
such packaging as to eBuilder or OpenLinux for eBuilder prior to
offering the bundle to market. Caldera shall not unreasonably
withhold
or delay approval.
4. FEES
4.1 INITIAL PAYMENT
Caldera and Evergreen will pay each other a license fee of
$100,000 in
each of the first two quarters after the agreement is signed.
The first
payment will be made within ten days of the execution of this
agreement.
The second payment will be made with the second quarterly
report. This
Agreement shall become effective only upon the investment in
Evergreen
by Caldera and the stock exchange referred to in the Master
Agreement
4.2 ROYALTY
The "Selling Party" shall mean the party who sells, distributes
and/or
licenses a copy of eBuilder or Evergreen's version of the
bundled
product directly to an end user or to a Reseller. The other
party is the
"Other Party." "Proceeds" shall mean the gross revenue received
by the
Selling Party from an end user or a Reseller, whichever is
applicable,
for the sale, distribution and/or licensing of eBuilder or
Evergreen's
version of the bundled product.
"Third Party Software Payments" shall mean payments to third
parties for
Third Party Software in eBuilder or Evergreen's version of the
bundled
product.
From the Proceeds, all payments payable for applicable Third
Party
Software shall be made. If Caldera is the Selling Party, then
Caldera
shall pay such payments for OpenLinux Third Party Software
directly to
the applicable third parties and shall pay such payments for
ECential
Third Party Software to Evergreen, and Evergreen shall pass such
payment
on to the applicable third parties. If Evergreen is the Selling
Party,
then Evergreen shall pay such payments for ECential Third Party
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Software directly to the applicable third parties and shall pay
such
payments for OpenLinux Third Party Software to Caldera, and
Caldera
shall pass such payment on to the applicable third parties.
Proceeds do not include fees or payments for any support,
maintenance or
services not included in the price for eBuilder. For example,
support,
maintenance and other services invoiced or charged separate from
the
price for the sale, distribution and/or licensing of eBuilder or
Evergreen's version of the bundled product, are not subject to
the
Royalty. Software products which are distributed or licensed in
conjunction with eBuilder, but not included by either party in
eBuilder
or Evergreen's version of the bundled product, shall not be
subject to
the Royalty, i.e., the Royalty is not payable on the sales price
received by the Selling Party for such other software products.
"Net Proceeds" shall mean Proceeds minus Third Party Software
Payments.
"Net Revenue" shall mean 50% of Net Proceeds.
The "Royalty" payable by the Selling Party to the Other Party
shall be
[****] of Net Revenue [****].
The parties agree that they will review on a quarterly basis by
the last
day of March, June, September, and December of each calendar
year, the
definition and percentages of net revenue.
Evergreen may have customers who choose to deploy eCential on
Linux
distributions that compete with Caldera. Evergreen will promote
the
eBuilder bundle or Evergreen's version of the bundled product to
customers who ask for Linux. If the customer insists on
purchasing
eCential and not the bundle Evergreen may sell it to them. If
Evergreen
knows at the time of any transaction that eCential will be
deployed on
Linux then that sale is subject to the royalty payments
described above.
Evergreen may choose to refer customers who seek a Linux Support
Agreement to Caldera. If Caldera signs an agreement with a
customer
referred by Evergreen then Caldera will give Evergreen [****] of
the
first 12 months revenue as a referral fee.
Caldera may choose to refer customers who seek support on
eCential to
Evergreen. If Evergreen signs an agreement with a customer
referred by
Caldera then Evergreen will give Caldera [****] of the first 12
months
revenue as a referral fee.
4.3 PAYMENT
Selling Party will make quarterly payments to Other Party of the
royalty
amounts Other Party is entitled to receive hereunder. Payments
will
accompany the quarterly reports described in section 3.5.
Reports and
payments are due the 20th day of that month which follows the
end of
each calendar quarter. To compensate for the loss of the use of
money
and the administrative expense involved in collecting past due
amounts,
all amounts past due or in default under this Agreement shall
bear
interest at a rate of one (1.5%) per month.
4.4 TAXES AND OTHER FEES.
As between Selling Party and Other Party, Selling Party shall be
responsible for payment of all sales, use and other taxes, fees
and/or
assessments of any sort which come due because of or are related
to
transactions between Selling Party and its customers. Selling
Party
shall also pay, at its own expense, all import and export
licenses and
permits, customs charges, and duty fees required to
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**** CERTAIN INFORMATION ON THIS PAGE HAS BEEN OMITTED AND FILED
SEPARATELY WITH
THE SECURITIES AND EXCHANGE COMMISSION. CONFIDENTIAL TREATMENT HAS BEEN
REQUESTED WITH RESPECT TO SUCH OMITTED PORTIONS.
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accomplish the export and import of the licenses sold by Selling
Party.
However, all of the foregoing are not including in Proceeds.
Nothing
herein applies to Other Parties income taxes.
4.5 INSPECTION OF SELLING PARTY RECORDS.
Upon twenty (20) days written notice to Selling Party, at Other
Parties
expense (except as otherwise provided below), and no more often
than
once per year, Other Parties designated representative, or its
independent certified public accountant shall have the right to
inspect
Selling Parties records relevant to the royalty or selling
parties
compliance with the alliance during business hours solely for
the
purposes of verifying the royalty amounts due to Other Party and
Selling
Parties compliance with the provisions of this License and all
related
Contracts under the Master Agreement. A final inspection shall
occur no
later than one year after the termination of this Agreement.
Selling
Party shall make immediate payment of any amounts that an
inspection
accurately shows to be due to Other Party. If, as a result of
any such
inspection, it is accurately determined that the amount paid or
due from
Selling Party to Other Party for the period being reviewed has
been
understated by an amount in excess of five percent (5%) of the
total
amount due Other Party, then Selling Party shall promptly pay
the
reasonable cost of such inspection. Other Parties representative
or
independent certified public accountant must agree in writing
with
Selling Party to keep confidential Selling Parties records and
the
contents thereof, except for reasonable disclosures to Other
Party
relating to Selling Parties failure to pay the royalty and/or
Selling
Parties failure to comply with its obligations under any of the
contracts to the Business Alliance. Other Party must keep such
disclosures confidential and not use for any purpose, except as
necessary to enforce Selling Parties royalty obligation or any
terms of
the contracts of the Business Alliance.
5. TERM AND TERMINATION
5.1 TERM.
Unless terminated earlier as provided herein, the initial term
of this
Agreement shall be three (3) years from the date of this
Agreement, and
the term of this Agreement shall automatically renew for an
unlimited
number of successive one-year terms. However, either party may
terminate
this Agreement by giving at least 90 days advance written notice
of
termination to the other party, provided that the date of such
termination does not occur prior to the end of said initial
three year
term. Either party may terminate this Agreement for any reason
or no
reason as provided in the Master Agreement.
5.2 RIGHTS NOT TERMINATED.
The termination or expiration of this Agreement shall not affect
any
licenses granted or sold to end-users prior to such termination
or
expiration. Upon such termination or expiration, each party (the
"first
party") shall use all commercially reasonable efforts to return
or
destroy all materials provided by other party to the first party
during
the term of this Agreement, as specifically provided in the
Master
Agreement, but subject to Section 5.3.
5.3 SUPPORT OF EXISTING END USERS
Notwithstanding anything herein to the contrary, in the event of
termination or expiration of this Agreement, the parties shall
cooperate
to ensure that end users who received eBuilder under this
Agreement
prior to termination or expiration shall continue to receive the
support
and maintenance contemplated by this Agreement for at least
three years.
Caldera and Evergreen may continue to
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meet their respective support and maintenance obligations to
such end
users as established in good faith prior to the date of
termination.
5.4 TERMINATION FOR NON-PERFORMANCE
In the event that eBuilder has not been made available for
shipping by
June 30, 2000 either party may terminate this agreement with 30
days
written notice.
6. SOFTWARE SUPPORT, DEVELOPMENT SUPPORT, UPGRADES AND TRAINING
6.1 SUPPORT OBLIGATIONS.
The selling party shall provide first and second line support to
customers for the Caldera Software and the Evergreen Software
during the
term of this Agreement. The non-selling partyshall provide third
line
support. The Selling party will be responsible to communicate
third line
support requests to the other party. Third line support means
technical
support, consultation with support personnel (and end users if
necessary), trouble shooting, diagnosis of problems, and back-up
support
to first and second lines of support. Evergreen and Caldera
shall
provide respective support for their Software in accordance with
the
following support hours and response times. Evergreen and
Caldera will
review support hours and response times guidelines on a
quarterly basis
and make appropriate adjustments as mutually agreed upon.:
Working Hours
(Hours of Live Support byboth parties) live escalation call
support
Monday - Friday 9am - 5pm Mountain Time during normal business
days
(non-holidays).
Holidays
Evergreen will notify Caldera each year of Evergreen's annual
holiday
schedule, and vice versa.
Response Times
Evergreen and Caldera will accept escalation support incidents
from each
other via e-mail and/or elephone for Severity 2 or 3 incidents,
and the
other party will acknowledge such incidents within 4 working
hours. Each
party will make best effort to reply to and resolve Severity 2
incidents
within 2 business days, and Severity 3 incidents within 5
business days.
The parties will accept escalation support incidents from each
other
only via telephone for Severity 1 incidents, and the other party
will
acknowledge such incidents within 1 working hour. Each party
will make
best effort to reply to and resolve Severity 1 incidents within
4
business hours.
Severity is the impact the problem has on business operations.
Severity
1, 2, and 3 incidents are defined below:
"1" - for Errors that result in an emergency condition that
cause
critical impact to end user's schedule, cause a serious security
breach,
or that make performance or continued performance of any feature
or
function impossible or impracticable by the end user.
"2" - for errors that significantly affect an end user's
schedule, cause
a minor security breach or which make the performance or
continued
performance of any feature
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or function difficult that cannot be circumvented or avoided on
a
temporary basis by the end user.
"3" - for errors that are not critical in that performance can
be
continued without difficulty or loss of data by easy
circumvention or
avoidance by the end user.
6.2 DEVELOPMENT SUPPORT
Development and Software implementation for the integration of
ECential
to the Caldera OpenLinux eBuilder Caldera Software and tools
will be
defined through Evergreen and Caldera Product Management
procedures.
Both parties will dedicate resources to support and ensure
integration
and success of the bundled Software.
6.3 UPDATES AND BUG FIXES. Evergreen shall maintain ECential and
correct
bugs and programming errors in ECential. Within a commercially
reasonable time, Evergreen shall provide maintenance fixes,
corrections,
and patches to Caldera for distribution by Caldera to end users
under
licenses sold by Caldera. Such maintenance fixes, corrections,
and
patches shall be governed by this Agreement as part of ECential.
When
possible, Evergreen shall provide work-around solutions and
temporary
fixes as soon as possible while Caldera and end users are
awaiting such
maintenance fixes, corrections, and patches. Caldera shall use
commercially reasonable efforts to provide to Evergreen
information
known to Caldera necessary (including, where appropriate,
reproducible
test cases and other diagnostic information) to diagnose and
correct or
repair such problems as Caldera may report to Evergreen. Caldera
makes
the same promises to Evergreen.
Evergreen shall deliver Updates to Caldera as soon as they
become
available. Updates shall be governed by this Agreement as
ECential.
Caldera makes the same promises to Evergreen.
As Evergreen creates commercial versions of ECential for other
operating
systems or platforms, Evergreen will also port such commercial
versions
to OpenLinux and provide the same to Caldera as Updates,
provided that
the port to OpenLinux is commercially viable. In the event
Evergreen
elects to not make any such port to OpenLinux, then Caldera may
do so at
its expense.
6.4 TRAINING
Within sixty (60) days of the execution of this Agreement,
Evergreen
will provide three (3) days of free training for two (2) Caldera
employees. Caldera is responsible for travel and expense costs
of
Caldera personnel to Evergreen facilities in Arizona. If Caldera
requests that training take place at Caldera facilities and
Evergreen
agrees, then Caldera will be charged for the time of Evergreen's
personnel, travel, hotels, and other associated costs for
Evergreen's
personnel, as well as training facilities and associated costs.
For their respective support obligations Evergreen and Caldera
will pay
each other $20,000 per month for the life of the agreement
(unless each
party agrees to waive the fee). Payment will be due quarterly at
the
same time as the product royalty payment.
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Evergreen will provide Caldera with a training manual that both
parties
agree is sufficient for Caldera's internal use within 20 days of
the
signing of this agreement.
7. COVENANTS OF THE PARTIES
7.1 PROTECT INTELLECTUAL PROPERTY.
Caldera shall use its best commercially reasonable efforts to
protect
Evergreen's and its licensors' / suppliers' intellectual
property and
proprietary rights in the Evergreen Software, Proprietary Data,
Evergreen Marks, and other intellectual property of Evergreen.
Evergreen
shall use its best commercially reasonable efforts to protect
Caldera's
and its licensors' / suppliers' intellectual property and
proprietary
rights in the Caldera Software, Proprietary Data, Caldera Marks,
and
Caldera's other intellectual property.
7.2 REPRESENTATIONS/WARRANTIES BY CALDERA OR EVERGREEN
CONCERNING
SOFTWARE.
Caldera shall make no representations or warranties about the
Evergreen
Software in excess of the representations or warranties
contained in the
Exhibit B Software License Agreement attached hereto or
otherwise made
by Evergreen if in writing and made specifically for Caldera or
its
end-users. Evergreen shall make no representations or warranties
about
the OpenLinux for eBuilder software in excess of the
representations or
warranties contained in the license agreements of Sections 3.14
and
3.15, or otherwise made by Evergreen, if in writing and made
specifically for Evergreen or its end-users.
7.3 Mutual Representations.
Each party (the "first party") represents and warrants to the
other
party that the first party (a) has not relied on any promises or
representations not expressly made in this Agreement or the
Business
Alliance; (b) possesses the facilities, personnel, and
experience
necessary to meet its financial and other commitments under this
Agreement; (c) has the full right, power and authority to enter
into
this Agreement and to carry out its obligations under this
Agreement;
and (d) knows of no impediments that would prevent the first
party from
complying with all the terms of this Agreement.
7.5 NOTIFICATION OF INFRINGEMENT.
If the management of Caldera becomes aware of the unauthorized
use,
copying, or disclosure of the Evergreen Software, Evergreen
Marks, or
Evergreen's Proprietary Data, Caldera will notify an Evergreen
representative. Caldera shall assist Evergreen, at Evergreen's
request
and expense, in the investigation and prosecution of such
unauthorized
use, copying, or disclosure.
If the management of Evergreen becomes aware of the unauthorized
use,
copying, or disclosure of the OpenLinux for eBuilder software,
Caldera
Marks, or Caldera's Proprietary Data, Evergreen will notify a
Caldera
representative. Evergreen shall assist Caldera, at Caldera's
request and
expense, in the investigation and prosecution of such
unauthorized use,
copying, or disclosure.
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8. WARRANTIES
8.1 LIMITED WARRANTIES.
(1) Evergreen represents and warrants to and for the benefit of
Caldera
that (a) the Evergreen Software and ECential do not infringe any
valid
United States patent, copyright, or trademark, or include any
misappropriated trade secret, or violate any privacy or other
rights of
any third party and (b) Evergreen has full right, power, and
authority
to enter into this Agreement and to carry out its obligations
hereunder.
(2) Evergreen represents and warrants that the Evergreen
Software is and
will be Year 2000 Compliant. "Year 2000 Compliant" means that
the
Evergreen Software is designed for use prior to, during and
after
January 1, 2000 and will conform to the following:
1. Date data representative of years are represented or
stored
in a four digit format, i.e., full representation of
the year
(e.g., "1998") rather than partial representation of
the year
(e.g., "98").
2. The screen displays, reports and printed output
generated by
the Evergreen Software will show years in four digit
format.
3. The Evergreen Software will not include any two digit
representation of years that causes: (a) execution of
the
Evergreen Software to terminate abnormally, (b)
invalid
values or incorrect results in century date data, (c)
ambiguity in the recognition of century date data, or
(d)
other errors or problems.
4. The calculations performed by the Evergreen Software
will
accommodate the use of both same-century date values
and
multi-century date values.
5. The calculations performed by the Evergreen Software
will
accurately accommodate the occurrence of leap years.
This warranty is subject to the following: This warranty
does
not apply to any third party software integrated into
ECential
or to modifications or enhancements to the Evergreen
Software
made by persons other than Evergreen or its contractors.
All
date data and date values received by the Evergreen
Software
must be accurate, in a four digit century format, and
otherwise
compatible with the Evergreen Software. Evergreen is not
responsible for inaccuracies, inadequacies or problems
caused
by: (a) any computer programs and databases not licensed
by
Evergreen to Caldera, and (b) any hardware. Any use of,
or
interaction with, the Evergreen Software must be in
accordance
with Evergreen's then-current documentation and
instructions and
within the scope of the License.
(3) Evergreen warrants to Caldera that no master copy of the
Evergreen
Software provided by Evergreen under this Agreement, except for
demonstration or evaluation software, will contain or be
accompanied by
any Self-Help Code or Unauthorized Code (as defined below). This
warranty shall not applied to Evergreen software delivered over
the
Internet to which such Unauthorized Code may have been attached
outside
of Evergreen's control.
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"Self-Help Code" means any back door, time bomb, drop
dead
device, or other routine, code, algorithm or hardware
component
designed or used: (i) to disable, erase, alter or harm
the
Evergreen Software or any computer system, program,
database,
data, hardware or communications system, automatically
with the
passage of time, or under the control of, or through
some
affirmative action by, a person other than Caldera or
its
Affiliate, or (ii) to access any computer system,
program,
database, data, hardware or communications system of
Caldera or
its Affiliate. "Self-Help Code" does not include any
code in the
Evergreen Software or any accompanying hardware
component
designed and used to permit Evergreen to obtain access
to the
Evergreen Software on Caldera's or its Affiliate's
computer
system (e.g., remote access via modem) solely for
purposes of
providing maintenance or technical support to Caldera or
its
Affiliate, provided that such code or hardware component
is
first disclosed to Caldera and approved by Caldera in
writing.
"Unauthorized Code" means any virus, Trojan horse, worm,
or
other routine, code, algorithm or hardware component
designed or
used to disable, erase, alter, or otherwise harm any
computer
system, program, database, data, hardware or
communications
system, or to consume, use, allocate or disrupt any
computer
resources, in a manner which is malicious or intended to
damage
or inconvenience. The term Unauthorized Code does not
include
Self-Help Code.
Evergreen warrants that ECential will conform to the
Documentation
provided by Evergreen in connection with ECential and any then
effective
published specifications, descriptions or statements from
Evergreen
concerning ECential that are made in writing to Caldera for the
benefit
of Caldera or its end users. Caldera makes the same warranties
and
covenants to Evergreen with respect to Caldera's products as
contained
in this section.
8.2 EXCLUSIONS.
Evergreen makes no warranty concerning, and shall have no
liability with
respect to (a) software not delivered by Evergreen; (b) use of
the
Evergreen Software in a manner for which it was not designed;
(c)
Caldera's modification of the Evergreen Software in a manner to
become
infringing; or (d) any use of the Software in violation of this
Agreement. Evergreen does not warrant that the Software is free
from
errors or that it will interface without any problems with
Caldera's or
any end-user's computer system, however, this does not negate or
limit
Evergreen's obligations of maintenance and support. Evergreen
shall not
be liable for any damage or loss to Caldera's computer or data
resulting
from the evaluation or use of the Evergreen Software.
Caldera makes no warranty concerning, and shall have no
liability with
respect to (a) software not delivered by Caldera; (b) use of the
Caldera
Software in a manner for which it was not designed; (c)
Evergreen's
modification of the Caldera Software in a manner to become
infringing;
or (d) any use of the Software in violation of this Agreement.
Caldera
does not warrant that the Software is free from errors or that
it will
interface without any problems with Evergreen's or any end-
user's
computer system, however, this does not negate or limit
Caldera's
obligations of maintenance and support. Caldera shall not be
liable for
any damage or loss to Evergreen's computer or data resulting
from the
evaluation or use of the Caldera Software.
8.3 DISCLAIMER.
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EXCEPT FOR THE REPRESENTATIONS AND WARRANTIES SET FORTH IN THE
BUSINESS
ALLIANCE, THE EVERGREEN SOFTWARE IS OFFERED "AS IS" WITH ALL
FAULTS.
CALDERA MAKES NO WARRANTIES NOT EXPRESSLY SET FORTH IN THE
BUSINESS
ALLIANCE. ALL WARRANTIES AND OTHER TERMS WHICH WOULD OTHERWISE
BE
IMPLIED OR INCORPORATED INTO THIS AGREEMENT BY STATUTE OR COMMON
LAW ARE
HEREBY EXCLUDED BY THE PARTIES. THE WARRANTIES OF
MERCHANTABILITY AND
FITNESS FOR A PARTICULAR PURPOSE ARE SPECIFICALLY DISCLAIMED BY
EVERGREEN AND CALDERA. IT IS EXPRESSLY AGREED THAT EVERGREEN
SHALL NOT
BE IN ANY WAY RESPONSIBLE FOR THE COMMERCIAL SUCCESS OF THE
EVERGREEN
SOFTWARE OR THE BUNDLED SOFTWARE AND THAT CALDERA SHALL NOT BE
IN ANY
WAY RESPONSIBLE FOR THE COMMERCIAL SUCCESS OF CALDERA SOFTWARE
OR
EVERGREEN SOFTWARE BUNDLED WITH CALDERA SOFTWARE. THERE ARE NO
GURANATEED SALES OR MINIMUM ROYALTIES. NEITHER PARTY MAKES ANY
WARRANTIES CONCERNING ANY THIRD PARTY SOFTWARE AND HAS NO
OBLIGATION TO
INDEMNIFY, DEFEND OR HOLD HARMLESS WITH RESPECT TO THIRD PARTY
SOFTWARE.
8.4 RESPONSE TO ANY INFRINGEMENT CLAIM.
If Caldera receives notice of any claim that the Evergreen
Software
infringes a United States or foreign patent or copyright,
Caldera shall
promptly give written notice of the claim to Evergreen in
accordance
with Section 9.2 below. If Evergreen determines that the claim
may have
merit, Evergreen may instruct Caldera to cease selling licenses
for the
Evergreen Software. Evergreen shall have no obligation to
indemnify
Caldera for any sales of licenses that occur (a) after Caldera
has
notice of the infringement claim but before notice of such claim
is
given to Evergreen, or (b) after Evergreen has instructed
Caldera to
cease selling licenses, except for sales that are required by
contractual commitments existing prior to (a) and (b) above.
Upon
receiving notice of the claim and determining that the claim may
have
merit, Evergreen shall use commercially reasonable efforts to
(a)
procure the right to continue using the Evergreen Software or
portions
thereof and all rights and licenses necessary for this Agreement
and the
Business Alliance; or (b) modify or replace all or part of the
concerned
Evergreen Software to avoid any infringement, provided that the
modified
Evergreen Software or the replacement is substantially the same
or
better in functions, features and performance. If Evergreen
determines
that it is not able to do either of the foregoing in a
commercially
reasonable fashion, as determined by Evergreen in Evergreen's
sole
discretion, Evergreen may terminate Caldera's license to sell
further
licenses of the Evergreen Software (i.e., remove the infringing
Evergreen Software from eBuilder. In such case, Caldera shall
have the
right to terminate all future obligations of the parties under
the
Business Alliance, including this Agreement.
If Evergreen receives notice of any claim that the Caldera
Software
infringes a United States or foreign patent or copyright,
Evergreen
shall promptly give written notice of the claim to Caldera in
accordance
with Section 9.2 below. If Caldera determines that the claim may
have
merit, Caldera may instruct Evergreen to cease selling licenses
for the
Caldera Software. Caldera shall have no obligation to indemnify
Evergreen for any sales of licenses that occur (a) after
Evergreen has
notice of the infringement claim but before notice of such claim
is
given to Caldera, or (b) after Caldera has instructed Evergreen
to cease
selling licenses, except for sales that are required by
contractual
commitments existing prior to (a) and (b) above. Upon receiving
notice
of the claim and determining that the claim may have merit,
Caldera
shall use commercially reasonable efforts to (a) procure the
right to
continue using the Caldera Software or portions thereof and all
rights
and licenses necessary for this Agreement and the Business
Alliance; or
(b) modify or replace all or part of the concerned Caldera
Software to
avoid any infringement, provided that the modified Caldera
Software or
the replacement is substantially the same or better in
functions,
features and performance. If Caldera determines that it is not
able to
do either of the foregoing in a commercially reasonable fashion,
as
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determined by Caldera in Caldera's sole discretion, Caldera may
terminate Evergreen's license to sell further licenses of the
Caldera
Software (i.e., remove the infringing Caldera Software from
eBuilder).
In such case, Evergreen shall have the right to terminate all
future
obligations of the parties under the Business Alliance,
including this
Agreement.
9. CROSS INDEMNITY
9.1 INDEMNIFICATION
Each party (the "first party") hereby agrees to indemnify,
defend and
hold the other party harmless from and against any and all
losses,
damages, judgments, settlements, liabilities, costs, charges and
expenses, including reasonable attorneys' fees, arising out of
or from
any infringement or claim of infringement of any patent,
copyright,
trade secret, trademark or other proprietary right. When the
infringement or claim of infringement applies to Evergreen
Software,
then Evergreen is the "first party." When the infringement or
claim of
infringement applies to Caldera Software, then Caldera is the
"first
party." The exclusions of Section 8.2 or elsewhere shall also be
exclusions from the first parties obligations to indemnify,
defend and
hold harmless the other party hereunder. Regarding the part of
said
indemnity running from first party in favor of the other party,
the
first party shall indemnify, defend and hold harmless the other
party
only if: (i) the infringement is not caused by the combination
of the
Software (Evergreen Software if Evergreen is the first party;
and
Caldera Software if Caldera is the first party) with any other
item not
provided by the first party, including but not limited to
software,
data, or hardware, (ii) notification by the indemnified party
shall be
in accordance with Section 9.2 below. and (iii) the indemnified
party
allows the indemnifying party to control any litigation and
settlement
of such infringement charges in accordance with Sections 9.3 and
9.4
below. Should any portion of the Software (Evergreen Software if
Evergreen is the first party; and Caldera Software if Caldera is
the
first party) or its intended use become, or in the first parties
opinion
be likely to become, the subject of a claim of infringement of a
United
States patent, copyright or other proprietary right, then
Section 8.4
above shall apply. The first parties liability and obligation to
the
other party in the event of infringement or claimed infringement
shall
be strictly limited to the obligations set forth in this Article
9.
9.2 NOTICE OF CLAIMS.
A party entitled to indemnification under Section 9.1, or any
other
provision of this Agreement (an "Indemnified Party") shall give
the
party required to provide such indemnification (the
"Indemnifying
Party") written notice of any claim for indemnification promptly
after
the Indemnified Party actually learns of the existence of such
claim.
The Indemnifying Party shall have no obligation with respect to
any
claim to the extent that failure to promptly give such notice
materially
prejudices the ability of the Indemnifying Party to defend such
claim.
9.3 CONDUCT OF DEFENSE.
The Indemnified Party shall permit the Indemnifying Party to
assume the
defense of any claim covered by the indemnification. The
Indemnified
Party shall have the right to approve the counsel who shall
conduct the
defense of the claim but shall not withhold such approval
unreasonably.
The Indemnified Party may participate in the defense at the
Indemnified
Parties expense.
9.4 SETTLEMENTS.
No Indemnifying Party, in the defense of any claim, shall,
except with
the consent of each Indemnified Party, consent to entry of any
judgment
or enter into any settlement that does not include an
unconditional
release by the claimant of the Indemnified Party from all
liability in
respect to the
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claim. The Indemnified Party shall not settle any Claim without
the
consent of the Indemnifying Party. The consent of the
Indemnifying Party
is a condition to the obligation of the Indemnifying Party to
pay money
pursuant to this Article 9. The Indemnifying Party shall not
unreasonably withhold consent to any proposed settlement. The
settlement
must not include any obligation on the part of the Indemnified
Party,
i.e., the settlement must be satisfied by the Indemnifying Party
in
full.
10. LIMITATION OF LIABILITY
10.1 EXTENT OF LIABILITY.
Except for liabilities and obligations under Section 8.4 or
Article 9,
and the royalty fees due Caldera pursuant to this Agreement and
any
interest thereon, Evergreen's liability arising out of this
Agreement or
arising out of the use or distribution of the Evergreen Software
by
Caldera shall be limited to the amount paid by Caldera to
Evergreen for
the Evergreen Software. Except for liabilities and obligations
under
Section 8.4 and Article 9, and the royalty fees due Evergreen
pursuant
to this Agreement and any interest thereon, Caldera's aggregate
liability to Evergreen shall not exceed a limit equal to the
same
amount. Notwithstanding the foregoing, the limitation of
liability under
this section 10.1, does not apply to liabilities that arise to
either
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