LINEO, INC.
OEM LICENSE AGREEMENT
NO. LN 0201
(AMENDED AND RESTATED 3/20/2000)
This OEM License Agreement (this "Agreement") is entered as of the Effective
Date listed on Schedule A between Lineo, Inc. ("Lineo") and the Original
Equipment Manufacturer identified below ("OEM" or "Licensee"), governing OEM's
licensed rights to use and reproduce software, related products and
documentation proprietary to Lineo, and consists of and incorporates the
following:
THIS SIGNATURE PAGE
SCHEDULE A - SCOPE, GENERAL TERMS AND LICENSE FEES
SCHEDULE B - ADDITIONAL TERMS AND EXCEPTIONS
SCHEDULE C - STANDARD TERMS AND CONDITIONS
APPENDIX I TO SCHEDULE C - END USER LICENSE AGREEMENT
SCHEDULE D - MAINTENANCE, SUPPORT AND TRAINING AGREEMENT
This Agreement amends, restates and supersedes that certain OEM License
Agreement first executed between the parties on February 17, 2000.
1. LINEO ADDRESS AND CONTACT: Lineo, Inc.
Attn: Legal
390 South 400 West
Lindon, UT 84042
Voice: 801-426-5001
Fax: 801-426-6166
2. OEM ADDRESS AND CONTACT: DaiShin Information & Communications CO.
Attn: Oneil Chung
395-68, Shindaebang-Dong
Dongjak-ku, Seoul, Korea 156-710
Voice: 82-2-3284-5008
Fax: 82-2-3284-5015
By signing below, the parties acknowledge their agreement with the terms and
conditions of this Agreement, and each signatory represents and certifies that
he or she is authorized to sign on behalf of and to bind each to the respective
signatories to all of the terms and conditions of this Agreement:
LINEO, INC. DAISHIN INFORMATION & COMMUNICATIONS CO.
By: /s/ Brad Walters By: /s/ Jae-Won Lee
-------------------------------- -----------------------------------
Printed Name: Brad Walters Printed Name: Jae-Won Lee
----------------------- --------------------------
Title: Vice President Title: CEO & President
------------------------------ ---------------------------------
Date: 2/17/00 Date: 2/17/00
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OEM License Agreement (Embedded) Lineo, Inc., 390 South 400 West,
Lindon, Utah 84042
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* Confidential Treatment Requested
LINEO, INC.
OEM LICENSE AGREEMENT
SCHEDULE A
SCOPE, GENERAL TERMS AND LICENSE FEES
1. EFFECTIVE DATE: 15 MARCH 2000
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2. LICENSED PRODUCT:
Lineo's Embedix(TM) binary software solution to be bundled with OEM's
banking/stock trading devices and electronic transaction system products
(sometimes referred to as "OEM Products" or "OEM Hardware Platforms"),
together with associated Documentation.
3. TERRITORY:
Worldwide.
4. LICENSE TERM:
The License Term is perpetual for the total number of units (* total)
specified in this Agreement, subject to terms governing termination as set
forth in Schedule C, Standard Terms and Conditions.
5. FEES AND PAYMENT:
OEM shall pay to Lineo a nonrefundable license fee of $*, against
which it shall be entitled to up to * licenses (or units) of
Embedix(TM) binary software solution, at preferred pricing of $* USD per
license.
$ * USD will be due and payable on the Effective Date of this
Agreement
$ * USD will be due and payable within 30 days of the
Effective Date of this Agreement.
6. MAINTENANCE/SERVICE AND TRAINING FEE:
In addition to the license fee payable as set forth above, OEM shall pay to
Lineo such fees for maintenance, service and training as are set forth in
Schedule D hereto, provided that such Schedule D is separately signed by
the parties. These fees will be due and payable 30 days from the Effective
Date of this Agreement unless otherwise stated in this Agreement.
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* Confidential Treatment Requested
OEM License Agreement (Embedded) Lineo, Inc., 390 South 400 West,
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LINEO, INC.
OEM LICENSE AGREEMENT
SCHEDULE B
ADDITIONAL TERMS AND EXCEPTIONS
A. The Standard Terms and Conditions set forth in Schedule C shall apply,
except that Sections 4(b) and 9(a) of Schedule C shall be superseded and
replaced as follows:
4(b) License Fees under this Agreement are due and payable pursuant to
Section 5 of Schedule A, which supersedes the Standard Terms and
Conditions set forth in Section 4(b) of Schedule C. OEM is granted no
rights hereunder to licensed copies of the Licensed Products beyond
* units.
9(a) License Term under this Agreement is as described under Section 4 of
Schedule A, which supersedes the Standard Terms and Conditions set
forth in Section 9(a) of Schedule C.
B. Further development or adaptation of the Licensed Product for OEM's
products, and product maintenance, service and training are covered, if at
all, by separate agreements between the parties.
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* Confidential Treatment Requested
OEM License Agreement (Embedded) Lineo, Inc., 390 South 400 West,
Lindon, Utah 84042
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LINEO, INC.
OEM LICENSE AGREEMENT
SCHEDULE C
STANDARD TERMS AND CONDITIONS
The following standard terms and conditions apply:
1. DEFINITION. For purposes of this Agreement, the following definitions apply
to the respective capitalized terms:
a. AGREEMENT means this Agreement, consisting of the Signature Page,
Schedules A, B, C and D, and Appendix I to Schedule C, and any additional
documents attached and initialed by the parties.
b. CONFIDENTIAL INFORMATION means all business, marketing and technical
information of each party considered by each to be trade secrets or
otherwise valuable proprietary information, designated or marked as such by
either. Confidential Information shall not include information that (i) is
now or later becomes generally known to the computer industry (other than
as a result of a breach of this Agreement); (ii) is independently developed
by the receiving party; or (iii) the receiving party lawfully obtains from
any third party without restrictions on use or disclosure.
c. DERIVATIVE WORKS means a revision, modification, translation,
abridgment, condensation or expansion of Lineo Products or Documentation or
any form in which Lineo Products or Documentation may be recast,
transferred, or adapted, which, if prepared without the consent of Lineo,
would be a copyright infringement.
d. DOCUMENTATION means those software user manuals, reference manuals and
installation guides, or portions thereof (if any), which are distributed in
conjunction with the Licensed Product set forth in Schedule A.
e. END USER means an entity that acquires the Licensed Product for
Internal Use and is not an affiliate of OEM's enterprise. "End User" does
not include a Reseller.
f. INTERNAL USE means use for purposes that do not directly produce
revenue for the user.
g. LICENSED PRODUCT means the binary code version of the Lineo's Licensed
Product identified in Schedule A, including updates thereof (if any). Lineo
reserves the right at any time to make changes to any Licensed Product,
including without limitation changes required (i) for security, or (ii) to
facilitate performance in accordance with specifications.
h. MARKS means Lineo's trademarks, service marks, logos, designations and
insignias.
i. OEM PRODUCTS refers to the specific hardware manufactured or produced
by OEM with which the Licensed Product is to be bundled or on which the
Licensed Product is to be embedded to create a single product offering.
j. RESELLER refers broadly to any third party VAD, VAR, distributor or
other reseller to or through which OEM is licensed under this Agreement to
distribute copies of the Licensed Product for marketing and distribution to
End-Users, directly or through other third parties.
2. CONTRACT RESPONSIBILITIES: Subject to the terms and conditions of this
Agreement, the parties have the following respective contractual
responsibilities:
a. LINEO'S RESPONSIBILITIES: Lineo shall:
1) Grant OEM the rights and licenses to the Licensed Product as set
forth in Section 3;
2) Provide such technical support as may be agreed and set forth in
Schedule A;
3) Warrant the Licensed Product as detailed in Section 7 below; and
4) Indemnify OEM as set forth in Section 8(a) below.
b. OEM'S RESPONSIBILITIES: OEM shall:
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1) Market, sell and deliver units of the Licensed Product embedded
or incorporated with OEM's Products as permitted under this Agreement
within the Territory, as identified in Schedule A;
2) Include with all sales and distributions of OEM Hardware
Platforms incorporating or bundled with the Licensed Product an
acceptable End-User License Agreement governing End-User use of the
Licensed Product;
3) Protect Lineo's proprietary rights in the Licensed Product as set
forth in Section 5 hereof; and
4) Make all payments to Lineo as required by Section 4 and Schedule
A hereof; and
5) Indemnify Lineo as set forth in Section 8(b) below.
6) Perform all other obligations required of OEM under this
Agreement.
3. GRANT OF LICENSES. Subject to the terms and conditions of this Agreement
and for the term hereof, Lineo hereby grants to OEM the following rights and
licenses:
a. LICENSED PRODUCT AND DOCUMENTATION. Lineo hereby grants to OEM a
nonexclusive and nontransferable right and license (i) to use and reproduce
the Licensed Product and the Documentation on any tangible media and (ii)
to market and distribute copies of the Licensed Product (in binary code
only), with copies of the Documentation, to End Users, directly or through
Resellers. Unless otherwise specifically provided in Schedules A or B,
OEM's rights to reproduce the Licensed Product are limited to binary code.
Unless otherwise specifically provided in Schedules A or B, OEM's rights of
distribution and sale are limited to Licensed Product bundled with or
embedded in OEM's Product(s), and OEM shall have no rights to market or
distribute copies of the Licensed Product or Documentation independent of
OEM's Products. OEM shall not contract reproduction of the Licensed Product
and Documentation to third parties without Lineo's express written consent,
which consent shall not unreasonably be withheld. OEM may grant Resellers
the sublicensed right to distribute copies of OEM Hardware Platforms
incorporating or bundled with the Licensed Product through other Resellers,
regardless of tier, provided that such sublicenses are consistent with the
terms hereof and are no less restrictive than the license granted herein.
b. TRADEMARKS. Lineo hereby grants to OEM the nonexclusive,
nontransferable right and license to use and display Lineo's Marks solely
in connection with and only to the extent reasonably necessary for the
marketing, distribution and support of OEM's Product during the term of
this Agreement, provided that any such use and display shall comply with
Lineo's then current trademark usage policies. Upon expiration or
termination of this Agreement, OEM agrees to cease all display, advertising
and use of any and all Lineo Marks. In the case of bundled products, OEM
agrees not to alter, erase or overprint any notice provided by Lineo and
not to attach any additional trademarks without the prior written consent
of Lineo or affix any Lineo Marks to any non-Lineo product. OEM recognizes
Lineo's ownership and title to the Marks and the goodwill attaching to said
Marks. OEM agrees not to use, employ or attempt to register any trademarks
or Trade Names that are confusingly similar to Lineo's Marks or Trade
Names.
c. THIRD PARTY LICENSE. If all or any part of the Licensed Product or
Updates delivered to OEM has been licensed to Lineo by a third party
software supplier then, notwithstanding anything to the contrary contained
in this Agreement, OEM is granted a sublicense to the third party software
subject to the same terms and conditions as those contained in the
Agreement between Lineo and such third party software supplier. Lineo
reserves the right to substitute any third party software in the Licensed
Product as long as the new third party software does not materially affect
the functionality of the Licensed Product. Lineo hereby represents the
current release of the Licensed Product contains no third party software
which would require OEM to agree to any terms and conditions in addition to
those set forth in this Agreement. Certain components of the Licensed
Product are components licensed under the GNU General Public License
(version 2), which Lineo supports. OEM may obtain a copy of the GNU General
Public License at www.gnudocs.com/GNU/COPYING. Lineo will provide source
code for any of the components of the Licensed Product licensed under the
GNU General Public License. To obtain such source code, send email request
to embedix-support@lineo.com. OEM's rights to obtain source code to those
elements or components of the Licensed Product that are subject to the GNU
General Public License shall not be construed to create or imply a right to
any element or component of the Licensed Product that is proprietary to
Lineo, except as and to the extent that such rights are expressly granted
under this License Agreement.
d. PRODUCT TAMPERING. Unless and to the specific extent that source code
rights are specifically granted in Schedules A or B, OEM shall have no
rights directly or indirectly to de-compile, reverse engineer, reverse
compile, modify or perform any similar type of operation on the Licensed
Product, or any portion thereof, or to prepare any other form of Derivative
Works. All Derivative Works, whether or not authorized by Lineo, shall
remain the sole property of Lineo.
4. PRICING AND PAYMENT
a. PRICING AND LICENSE FEES. OEM shall pay to Lineo the Fees set out in
Schedule A as required therein. Prices are exclusive of all applicable
taxes. OEM agrees to pay all taxes associated with the marketing,
sublicensing, distribution and transfer of all Licensed Products, whether
bundled with or embedded with OEM Products, including but not limited to
sales, use, excise, added value and similar
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taxes and all customs, duties or governmental impositions, but excluding
taxes on Lineo's net income. Any tax or duty Lineo may be required to
collect or pay upon the marketing or transfer of the Licensed Product shall
be paid by OEM, and such sums shall be due and payable to Lineo upon
delivery. If OEM claims a tax exemption, OEM must provide Lineo with valid
tax exemption certificates.
b. PAYMENT AND REPORTING. License fees will accrue in the applicable
corresponding quantity upon: (a) the initial date of OEM's Internal Use of
a Licensed Product; (b) distribution by OEM of a copy of a Licensed Product
in any form (including demonstration versions or prototypes of OEM's
Product) to a Reseller or End User; or (c)(if rights to do so are
specifically granted in Schedule A) OEM's authorization to a Reseller to
increase the authorized number of copies. OEM shall pay Lineo License Fees
accrued during each calendar month, together with any other fees accruing
over the same period, within 30 days following the date of invoice for such
month. Payment shall be accompanied by a written report detailing the
quantity of bundled or embedded Licensed Product shipped by OEM in the
prior month and showing calculation of all fees payable thereon. All
payments shall be made in U.S. dollars, (i) at Lineo's address as indicated
in this Agreement or at such other address as Lineo may from time to time
indicate by proper notice hereunder or (ii) by wire transfer to a bank and
account number to be designated by Lineo. Royalty reporting requirements
shall not apply when licenses are pre-paid.
c. INTEREST shall accrue on any unpaid payment or payment balance at an
annual rate of 18% per annum, or, if lower, at the highest lawful rate,
calculated from the date the payment is due to the date it is received by
Lineo. Arrearage in excess of $5,000 not paid within 10 days of written
demand following the date payment is due shall be grounds for Lineo's
termination of this Agreement at Lineo's option.
d. RECORDS EXAMINATIONS. OEM agrees to allow Lineo to examine OEM's
records to test OEM's compliance with this Agreement. Any examination will
be conducted only by an authorized representative of Lineo, and will occur
during regular business hours at OEM's offices and will not interfere
unreasonably with OEM's business activities. Examinations will be made no
more frequently than quarterly, and Lineo will give OEM 15 business days or
more prior written notice of the date of the examination and the name of
Lineo's authorized representative who will be conducting the examination.
The audit will be conducted at Lineo's expense unless the results of such
audit establish that inaccuracies in the quarterly reports have resulted in
underpayment to Lineo of more than 5% of the amount due in any quarter, in
which case OEM shall pay all amounts determined to be due and shall bear
the expenses of the audit. All information obtained by Lineo's authorized
representative conducting the audit will be maintained confidential by the
representative. The examiner will give OEM and Lineo an examination report
containing only the information necessary to indicate compliance or
non-compliance with this Agreement.
5. LINEO'S INTELLECTUAL PROPERTY RIGHTS
a. ACKNOWLEDGMENT OF LINEO'S RIGHTS. For purposes of this Agreement, and
with the exception only of those elements (if any) of the Licensed Product
specifically identified and designated by Lineo as third-party software,
OEM acknowledges and confirms Lineo's exclusive worldwide rights, including
copyright in, and the validity of the Licensed Products (including, without
limitation, all input/output and report formats, screen displays, menu
features and overall structure, sequence and organization) and in the
Marks. OEM agrees not to challenge or otherwise to interfere with the use
and ownership by Lineo of the Licensed Product or any of the intellectual
property rights associated with the Licensed Product or the Marks
(hereinafter referred to collectively as "Lineo Intellectual Property").
OEM also shall not permit any personnel to remove any proprietary or other
legends or restrictive notices contained or included in any materials
supplied or approved by Lineo, and OEM shall not permit any personnel to
copy or modify or reverse-engineer any materials, including the Licensed
Product provided by Lineo, except as and to the extent specifically
permitted under this Agreement. Title to every copy of the Licensed Product
is vested and shall remain in Lineo, or, as applicable, in such third party
from whom Lineo holds rights of license and distribution, and title does
not pass with any license under this Agreement.
b. END USER LICENSE AGREEMENTS. OEM agrees to exercise commercially
reasonable efforts to ensure that each End User receiving the Licensed
Product through OEM or Resellers understands, and agrees to be bound by, an
appropriate End User License Agreement that is no less restrictive in its
application to the Licensed Product than the then-current form of Lineo's
End User License Agreement, the most current version of which is attached
as Appendix I hereto.
c. OEM'S WAIVER OF RIGHTS. OEM further acknowledges that it has no rights
of any kind anywhere in the world in any of Lineo's Intellectual Property
other than those limited rights granted by this Agreement. Accordingly, OEM
waives (a) all claims of any right by OEM in any of the Lineo's
Intellectual Property and (b) the right, if any, to file or own in its own
name or in that of any designee, any application for registration of any
trademark, copyright, patent, industrial design, trade secret or other
intellectual property which forms part of Lineo's Intellectual Property, or
to own any registration or patent resulting therefrom. In the event OEM, in
any jurisdiction of the world, files such an application or obtains such a
patent or registration in violation of this section, such application,
registration or patent shall be deemed held in trust by OEM for Lineo and
shall be assigned by OEM to Lineo without conditions and upon demand by
Lineo.
d. PRESERVATION AND SECURITY OF PROPRIETARY INFORMATION. OEM shall not
sell, assign, lease, license, transfer or otherwise disclose the Licensed
Product except as expressly authorized by this Agreement. OEM shall
safeguard any and all copies of the Licensed Product against unauthorized
disclosure, reproduction or tampering, and shall assist Lineo in the
enforcement of Lineo's rights in the event of unauthorized disclosure by
any person under OEM's control or service. OEM shall also ensure that
Licensor's Lineo's copyright, trademark and patent notices, which may from
time to time be updated, are prominently displayed on all copies of OEM's
Products and documentation containing the Licensed Product. OEM shall not
remove or obscure any copyright, trademark, patent or other proprietary
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rights notice already present on any of the Licensed Products or
Documentation. The notice of Lineo's intellectual property rights in the
Licensed Product shall read as follows: "Licensed Software (C)Lineo,
Inc.1999-2000, all rights reserved."
e. GOODWILL. To protect and preserve the reputation and goodwill of Lineo
and of the Licensed Product, OEM shall (1) avoid deceptive, misleading or
unethical practices that are or might be detrimental to Lineo, the Licensed
Product or the public, including any disparagement of Lineo or the Licensed
Product; (2) make no false or misleading representations with regard to
Lineo or the Licensed Product; (3) refrain from publishing or employing any
misleading or deceptive advertising material reflecting upon Lineo or the
Licensed Product; (4) refrain from making any representations, warranties
or guarantees to Resellers or End Users or to the trade with respect to the
specifications, features or capabilities of the Licensed Program that are
inconsistent with the Documentation and marketing literature distributed by
Lineo, including all warranties and disclaimers contained in such
literature; (5) not distribute for any purpose any marketing materials,
packaging or other material bearing Lineo Marks which have not been first
approved by Lineo; and (6) enter into agreements for marketing and
distribution of OEM's Product bearing or bundled with the Licensed Products
only with such Resellers who have agreed to be bound by the foregoing terms
as part of the applicable Reseller agreement.
f. THIRD-PARTY REQUIREMENTS. In the event that Lineo is required by a
third party software supplier to cease and to cause its OEM's to cease
reproduction and distribution of a particular revision of the Licensed
Products, OEM agrees to comply herewith provided Lineo provides OEM with 30
days prior written notice and further provided that Lineo replaces such
affected Lineo Product with a functionally equivalent Lineo Product as soon
as commercially practicable.
6. CONFIDENTIAL INFORMATION. OEM shall not use or disclose any Confidential
Information supplied by Lineo relating to the Licensed Product except as
authorized in writing by Lineo in advance of such disclosure and shall
safeguard all Confidential Information provided by Lineo to OEM under this
Agreement in the same or more restrictive manner as OEM safeguards its own
Confidential Information.
7. LIMITED WARRANTIES
a. Lineo's sole warranty to OEM, for its benefit and for the benefit of
its Reseller customers and any End User regarding the Licensed Product is
that the Licensed Product will conform in material respects to Lineo's most
current published specifications pertaining to the Licensed Product.
b. The exclusive remedy of OEM, for itself or on behalf of any Reseller
or End User customers, against Lineo for breach of the foregoing warranty
shall be to seek repair or replacement of the defective Licensed Product
element or unit at no charge to OEM.
c. EXCEPT AS SET FORTH IN THIS SECTION 7, LINEO DISCLAIMS ALL WARRANTIES,
EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, ANY WARRANTIES AS TO THE
SUITABILITY OR MERCHANTABILITY OR FITNESS FOR ANY PARTICULAR PURPOSE OF THE
LICENSED PRODUCT. IN NO EVENT SHALL LINEO BE LIABLE FOR ANY LOST OR
ANTICIPATED PROFITS, OR ANY INCIDENTAL, EXEMPLARY, SPECIAL OR CONSEQUENTIAL
DAMAGES (INCLUDING LOST PROFITS), REGARDLESS OF WHETHER LINEO WAS ADVISED
OF THE POSSIBILITY OF SUCH DAMAGES. THE WARRANTY SET OUT IN THIS SECTION 7
SHALL BE NULL AND VOID IF THE LICENSED PRODUCT IS NOT USED IN A MANNER
CONSISTENT WITH ITS INTENDED PURPOSES OR IS MODIFIED OR REPAIRED BY OEM IN
A MANNER NOT AUTHORIZED BY THIS AGREEMENT OR IS MODIFIED OR REPAIRED BY AN
END-USER. FURTHER, THE WARRANTY IN THIS SECTION 7 DOES NOT APPLY IF THE
ERROR(S) ARE CAUSED BY ANY PROGRAMMING NOT CREATED BY LINEO, OR BY ANY
REPAIRS, MODIFICATIONS OR ENHANCEMENT NOT MADE BY LINEO.
d. OEM is not authorized to make any warranty commitment on Lineo's
behalf, whether written or oral, other than those contained above.
8. INDEMNIFICATION
a. BY LINEO. Lineo agrees to defend OEM and, to the extent of payments
made by OEM under this Agreement, to indemnify and hold OEM harmless from
any and all third-party claims, actions, demands, and related damages,
liabilities, costs and expenses resulting from charges or allegations that
the Licensed Product or Lineo Mark appropriately used by OEM infringes any
U.S. trademark, U.S. copyright or other intellectual property right of any
third party.
OEM shall permit Lineo to replace or modify the Licensed Product affected
so as to avoid infringement or to procure the right for OEM to continue use
and marketing of such items. If neither alternative is possible or
commercially reasonable, the infringing items shall be returned to Lineo,
whose sole liability shall be to refund amounts paid by OEM for the
affected copies of the Licensed Product. Lineo shall have no liability for
infringement based on (a) use of other than the current release of the
Licensed Products, or (b) modification of the Licensed Products by any
party other than Lineo, or the combination or use of the Licensed Products
with any other computer program, equipment, product, device, item or
process not furnished by Lineo, if such infringement would have been
avoided by the use of the Licensed Products alone and in their current
unmodified form, or (c) other acts of OEM.
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THE ABOVE STATES THE ENTIRE LIABILITY OF LINEO WITH RESPECT TO INFRINGEMENT
OF PATENTS, COPYRIGHTS, TRADEMARKS OR ANY OTHER FORM OF INTELLECTUAL
PROPERTY RIGHT BY ANY PRODUCT SUPPLIED BY LINEO.
b. BY OEM. OEM agrees to indemnify, defend and hold Lineo harmless from
and against any and all third-party claims, actions, demands, and related
damages, liabilities, costs and expenses arising or resulting from, or
related to, marketing, distribution or other activities by OEM or its
Resellers under this Agreement or otherwise respecting the Licensed
Product.
c. GENERAL CONDITIONS TO INDEMNITY RIGHTS. The forgoing rights and
obligations of indemnity are conditioned on (i) prompt written notification
from the indemnified party to the indemnifying party of the claim for which
indemnity is sought; (ii) sole control in the indemnifying party of the
defense of any action and all negotiations for settlement and compromise;
and (iii) cooperation and assistance from the party seeking
indemnification, including disclosure of information and authority
necessary to perform the above. The indemnified party shall be responsible
for the costs and fees of its own counsel if it desires to have separate
legal representation in any such action.
9. TERM AND TERMINATION.
a. TERM AND EXTENSIONS. The initial term hereof shall be as provided in
Schedule A. Unless earlier terminated for breach as provided herein, or
unless either party notifies the other in writing, not later than 30 days
prior to expiration of the initial term, of its intention to terminate the
agreement upon said expiration, this Agreement shall automatically renew at
the end of the initial term for successive one year terms.
b. TERMINATION FOR CAUSE. Either party may terminate this Agreement for
the substantial breach by the other party of a material term. The
terminating party will first give the other party written notice of the
breach and a reasonable period of at least 30 days in which to cure the
alleged breach. If a cure is not achieved during the cure period, then the
non-breaching party may terminate this Agreement upon written notice.
c. TERMINATION BY LINEO. Lineo may terminate this Agreement if OEM fails
to meet its payment obligations under this Agreement and this failure
continues for 10 days following receipt of written notice and demand from
Lineo.
d. INSOLVENCY, ASSIGNMENT, OR BANKRUPTCY. Either party may, at its
option, immediately terminate this Agreement upon written notice to the
other party if the other party (i) admits in writing its inability to pay
its debts generally as they become due; (ii) makes a general assignment for
the benefit of creditors; (iii) institutes proceedings to be adjudicated a
voluntary bankrupt, or consents to the filing of a petition of bankruptcy
against it; (iv) is adjudicated by a court of competent jurisdiction as
being bankrupt or insolvent; (v) seeks reorganization under any bankruptcy
act or consents to the filing of a petition seeking such reorganization; or
(vi) is the subject of a decree by a court of competent jurisdiction
appointing a receiver, liquidator, trustee or assignee in bankruptcy or in
insolvency covering all or substantially all of such party's property or
providing for the liquidation of such party's property or business affairs.
e. ACCELERATION OF PAYMENT. Upon termination of this Agreement by Lineo
under Section 9.a, 9.b or 9.c, the due dates of all outstanding invoices to
OEM for Licensed Products will automatically be accelerated so that they
become due and payable on the effective date of termination, even if longer
terms had been previously granted or allowed.
f. EFFECT OF TERMINATION ON OBLIGATIONS. Upon termination of this
Agreement for any reason, OEM shall (1) immediately cease all reproduction
of the Licensed Product and shall cease distribution of all copies
previously made; (2) within 30 calendar days after termination of this
Agreement, either deliver to Lineo or destroy all copies of Licensed
Products and Documentation in OEM's possession or under its control, and
shall furnish to Lineo an affidavit signed by an officer of Licensee
certifying that, to the best of its knowledge, such delivery or destruction
has been fully effected. Notwithstanding the foregoing, and provided OEM
fulfills its obligations specified in this Agreement with respect to such
items, OEM may continue to use and retain copies of the Licensed Products
and Documentation to the extent, but only to the extent, necessary to
support and maintain Licensed Products rightfully distributed to Resellers
and End Users by OEM prior to termination of this Agreement. Termination of
this Agreement shall not affect rights of Resellers or End Users receiving
Product incorporating or bundled with Licensed Product prior to the date of
termination, provided, however, that Lineo shall have received payment of
License Fees and other fees owing from OEM therefor.
g. SURVIVAL OF TERMS. Termination of this Agreement shall not relieve
either party of any obligations arising under this Agreement prior to the
date of termination. Any provisions of this Agreement that by their nature
extend beyond the Expiration Date or other termination of this Agreement,
including specifically obligations owing under Sections 4, 5 and 7 hereof,
will survive and remain in effect until all obligations are satisfied.
Confidentiality provisions shall remain in effect until the Confidential
Information is no longer confidential.
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10. GENERAL PROVISIONS.
a. PUBLIC ANNOUNCEMENTS AND PROMOTIONAL MATERIALS. Lineo and OEM shall
cooperate with each other either to issue a joint press release and/or to
enable each party to issue and post to its web site an announcement
concerning this Agreement, provided that each party must approve any such
press announcement prior to its release. Any separate release shall be
subject to must approve such press release prior to its release. Lineo
shall have the right to use OEM's name as a customer reference. Lineo shall
cooperate with OEM as OEM may reasonably desire and request in its
development of the initial marketing and sales materials used to promote
the distribution of OEM Products incorporating or bundled with the Licensed
Products.
b. FORCE MAJEURE. If either party is prevented from performing any
portion of this Agreement (except the payment of money) by causes beyond
its control, including labor disputes, civil commotion, war, governmental
regulations or controls, casualty, inability to obtain materials or
services or acts of God, such defaulting party will be excused from
performance for the period of the delay and for a reasonable time
thereafter.
c. DISPUTE RESOLUTION. The parties agree to attempt in good faith to
resolve all disputes arising between them first through expedited mediation
(not to exceed 48 hours from the receipt by a party of the notice described
below) and, if mediation is not successful, through negotiated settlement
or court action. Neither party shall file a lawsuit until the mediation has
been completed, except that in the event that the actions of one party will
cause or are causing the other immediate irreparable injury requiring
temporary injunctive relief and the other party is unwilling to suspend its
planned or existing activity to allow for expedited mediation, the
aggrieved party may file suit and seek such temporary injunctive relief in
a court with jurisdiction over the subject matter of the dispute. Dispute
resolution under this section shall be triggered by one party's service
upon the other of a written notice and request to mediate, identifying the
subject matter of the dispute and the nature of the relief sought. Unless
otherwise agreed in writing at the time of mediation, mediation shall be
conducted through and under the mediation rules of the American Arbitration
Association.
d. LIMITATION OF ACTIONS. No action arising or resulting from this
Agreement, regardless of its form, may be brought by either party more than
two years after termination of this Agreement.
e. THIRD PARTY CLAIMS. Neither party shall be liable for any claim by the
other based on any third party claim, except as stated in Section 7 of this
Agreement.
f. JURISDICTION. This Agreement will in all respects be governed by and
construed in accordance with the laws of the State of Utah of the United
States of America, and will not be construed in accordance with or governed
by the United Nations Convention for International Sales of Goods.
g. ATTORNEYS' FEES. If either Lineo or OEM employs attorneys to enforce
any rights arising out of or relating to this Agreement, the prevailing
party shall be entitled to recover reasonable costs and attorney's fees.
h. WAIVER. No waiver of any right or remedy on one occasion by either
party will be deemed a waiver of that right or remedy on any other
occasion.
i. SUPERIOR AGREEMENT. This Agreement will not be supplemented or
modified by any course of dealing or usage of trade. Variance from or
addition to the terms and conditions of this Agreement in any written
notification from OEM will be of no effect, unless otherwise expressly
provided for in this Agreement. This Agreement may be amended or modified
only by a writing signed by each party.
j. ASSIGNMENT. This Agreement is not assignable by OEM, in whole or in
part, without Lineo's prior written consent. Lineo will not unreasonably
withhold consent to an assignment of this Agreement or any part of this
Agreement to a parent, subsidiary or affiliate of OEM, provided that such
entity is at least as capable as OEM of satisfying OEM's responsibilities
hereunder. Any attempted assignment without Lineo's written consent will be
null and void.
k. NOTICE. Unless otherwise agreed to by the parties, all notices
required under this Agreement (except those relating to product pricing,
changes and upgrades) will be deemed effective when received and made in
writing by either (i) registered mail, (ii) certified mail, return receipt
requested, (iii) overnight mail, addressed and sent to the address
indicated on the Signature Page, to the attention of the person designated
as the responsible representative or to that person's successor, or (iv) by
telephone facsimile transfer appropriately directed to the attention of the
person designated as the responsible representative or to that person's
successor.
l. SEVERABILITY. If any term, provision, covenant or condition of this
Agreement is held invalid or unenforceable for any reason, the remainder of
the provisions will continue in full force and effect as if this Agreement
had been executed with the invalid portion eliminated. The parties further
agree to substitute for the invalid provision a valid provision that most
closely approximates the intent and economic effect of the invalid
provision.
OEM License Agreement (Embedded) Lineo, Inc., 390 South 400 West,
Lindon, Utah 84042
Page 9 of 17
m. INDEPENDENT CONTRACTORS. Each party acknowledges that the parties to
this Agreement are independent contractors and that it will not, except in
accordance with this Agreement, represent itself as an agent or legal
representative of the other.
n. COMPLIANCE WITH LAWS. OEM represents and warrants that it shall comply
at its own expense with all applicable laws, rules and regulations of
governmental bodies and agencies, including all laws, rules and regulations
affecting or governing exports, in its performance under this Agreement.
o. GOVERNMENT RIGHTS. OEM agrees (i) to identify the Licensed Products in
all proposals and agreements with the United States Government or any
contractor for the United States Government; and (ii) to identify or to
mark the software products provided pursuant to any agreement with the
United States Government or any contractor for the United States Government
as necessary to obtain protection substantially equivalent to that afforded
commercial computer software and related documentation developed at private
expense and provided with Restricted Rights as defined in DOD FAR
Supplement 48 C.F.R. 252.227-7013(c)(1)(ii) in effect as of May 18, 1987 or
any successor regulation.
p. HEADINGS. The headings provided in this Agreement are for convenience
only and will not be used in interpreting or construing this Agreement.
q. SCOPE OF AGREEMENT. Each of the parties hereto acknowledges that it
has read this Agreement, understands it and agrees to be bound by its
terms. The parties further agree that this Agreement is the complete and
exclusive statement of agreement regarding the subject matter and
supersedes all proposals (oral or written), understandings,
representations, conditions, warranties, covenants and all other
communications between the parties relating thereto. This Agreement may be
amended only by a writing that refers specifically to this Agreement and is
signed by both parties.
* * * END OF STANDARD TERMS AND CONDITIONS * * *
OEM License Agreement (Embedded) Lineo, Inc., 390 South 400 West,
Lindon, Utah 84042
Page 10 of 17
APPENDIX I TO SCHEDULE C, STANDARD TERMS AND CONDITIONS
LINEO END USER LICENSE AGREEMENT
IMPORTANT-READ CAREFULLY
This Lineo End User License Agreement ("EULA") is a legal agreement between you
(either an individual or a single entity) and Lineo, Inc. ("Lineo") for the
enclosed or attached Lineo software product, which includes computer software
and associated documentation ("Software"). The Software also includes any
updates and supplements to the original Software provided to you by Lineo. Any
product provided along with the Software that is associated with a separate
end-user license agreement is licensed to you under the terms of that license
agreement. By installing, copying, downloading, accessing or otherwise using the
software, you agree to be bound by the terms of this EULA. If you do not agree
to the terms of this EULA, you may not use or install the Software. If you have
purchased the Software, promptly return the Software and all accompanying
materials with proof of purchase for a refund.
SOFTWARE LICENSE
The Software is protected by copyright laws and international copyright
treaties, as well as other intellectual property laws and treaties. The Software
is licensed, not sold.
1. GRANT OF LICENSE
This EULA grants you the rights to install, use, access, display, run, or
otherwise interact with ("Run") one copy of the Software on no more than one
computer or device ("Computer").
2. OTHER RIGHTS AND LIMITATIONS
- LIMITATIONS ON REVERSE ENGINEERING, DECOMPILATION, AND DISASSEMBLY.
You may not reverse engineer, decompile, or disassemble the Software,
except and only to the extent that such activity is permitted by
applicable law.
- RENTAL. You may not rent, lease, sell, sublicense, or lend the
Software.
- LANGUAGE VERSIONS. If the media provided to you includes more than one
language version of the same Software, you may Run any of the language
versions of the Software, provided the total number of copies Run does
not exceed the number of licenses you have acquired.
- TRANSFER. You may not transfer or assign your rights or obligations
under this EULA to any person or entity without the prior written
consent of Lineo.
- SUPPORT SERVICES. Lineo may provide you with technical support
services related to the Software ("Support Services") as described in
other Lineo-provided materials. Any supplemental software code
provided to you as part of the Support Services shall be considered
part of the Software and subject to the terms and conditions of this
EULA. With respect to technical information you provide to Lineo as
part of the Support Services, Lineo may use such information for its
business purposes, including for product support and development.
Lineo will not utilize such technical information in a form that
personally identifies you.
- RESERVATION OF RIGHTS. Lineo reserves all rights not expressly granted
under this EULA.
OEM License Agreement (Embedded) Lineo, Inc., 390 South 400 West,
Lindon, Utah 84042
Page 11 of 17
3. SAFEGUARDS/AUDIT RIGHTS
You agree to: (i) implement internal safeguards to prevent any unauthorized
copying, distribution, or use of the Software; (ii) provide Lineo with written
certification of the number of copies or concurrent usage of the Software on
request, and (iii) allow Lineo to audit for compliance with this EULA during
regular business hours. Lineo will pay for the cost of the audit unless the
audit shows a discrepancy which is five percent (5%) or more of the number of
copies of the Software Run over the licenses you have acquired; in which event,
you shall pay for the cost of the audit.
4. COPYRIGHTS
Lineo and its suppliers retain all ownership of the Software and all copies
thereof, provided, however, that certain components of the Software are
components licensed under the GNU General Public License (version 2), which
Lineo supports. You may obtain a copy of the GNU General Public License at
www.gnudocs.com/GNU/COPYING. Lineo will provide source code for any of the
components of the Software licensed under the GNU General Public License. To
obtain such source code, send email to embedix-support@lineo.com. You may make
up to two copies of electronic documentation accompanying the Software for each
license you have acquired for the Software. If you make copies, you must include
all applicable copyright notices and other proprietary rights legends that come
with the Software.
5. EXPORTS
You agree that you will not export or re-export the Software, any part thereof,
or any process or service that is the direct product of the Software (the
foregoing collectively referred to as the "Restricted Components"), to any
country, person or entity subject to U.S. export restrictions. You specifically
agree not to export or re-export any of the Restricted Components (i) to any
country to which the U.S. has embargoed or restricted the export of goods or
services, which currently include, but are not necessarily limited to Cuba,
Iran, Iraq, Libya, North Korea, Sudan and Syria, or to any national of any such
country, wherever located, who intends to transmit or transport the Restricted
Components back to any such restricted country; (ii) to any person or entity who
you know or have reason to know will utilize the Restricted Components in the
design, development or production of nuclear, chemical or biological weapons; or
(iii) to any person or entity who has been prohibited from participating in U.S.
export transactions by any federal agency of the U.S. Government. You warrant
and represent that neither the Bureau of Export Administration of the U.S.
Commerce Department nor any other U.S. federal agency has suspended, revoked or
denied your export privileges.
6. LIMITED WARRANTY
- LIMITED WARRANTY. For a period of 90 days from the date you receive
the Software or from the date of performance of Support Services by
Lineo, Lineo warrants that: (a) the unmodified Software will perform
substantially in accordance with the accompanying written materials
when used as directed, (b) Lineo media will be free of defects, and
(c) such Support Services will be performed in a manner consistent
with generally accepted industry standards. Any implied warranties are
limited to the 90 day period. This Limited Warranty is void if failure
of the Software has resulted from modification, accident, abuse, or
misapplication. Some jurisdictions do not allow limitations on
duration of an implied warranty, so the above limitation may not apply
to you.
- YOUR EXCLUSIVE REMEDY. Lineo's and its suppliers' entire liability and
your exclusive remedy arising from a breach of the Limited Warranty
is, at Lineo's option, either repair or replacement of
OEM License Agreement (Embedded) Lineo, Inc., 390 South 400 West,
Lindon, Utah 84042
Page 12 of 17
the non-conforming Software, or reperformance of the nonconforming
Support Services, or return of the price you paid for the
non-conforming Software or Support Services. You must return all
non-conforming Software to Lineo with your proof of purchase to be
entitled to any of these remedies. Any replacement Software or Support
Services will be warranted for the remainder of the original warranty
period or 30 days, whichever is longer. Outside the United States,
neither these remedies nor any product support services offered by
Lineo are available without proof of your purchase from an authorized
international source.
- NO OTHER WARRANTIES. TO THE FULL EXTENT PERMITTED BY LAW, LINEO AND
ITS SUPPLIERS DISCLAIM ALL OTHER WARRANTIES, WHETHER ORAL OR WRITTEN,
EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, IMPLIED WARRANTIES
OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, AND
NON-INFRINGEMENT, WITH REGARD TO THE SOFTWARE AND THE PROVISION OF OR
FAILURE TO PROVIDE SUPPORT SERVICES. THIS WARRANTY GIVES YOU SPECIFIC
LEGAL RIGHTS. THIS WARRANTY GIVES YOU SPECIFIC LEGAL RIGHTS. YOU MAY
HAVE OTHERS, WHICH VARY FROM JURISDICTION TO JURISDICTION.
- LIMITATION OF LIABILITY. LINEO AND ITS SUPPLIERS WILL NOT BE LIABLE
FOR ANY SPECIAL, INCIDENTAL, INDIRECT, OR CONSEQUENTIAL DAMAGES
(INCLUDING, WITHOUT LIMITATION, DAMAGES FOR PERSONAL INJURY, LOSS OF
BUSINESS PROFITS, BUSINESS INTERRUPTION, LOSS OF BUSINESS OR
CONFIDENTIAL INFORMATION, LOSS OF PRIVACY, OR ANY OTHER PECUNIARY
LOSS) ARISING OUT OF THE USE OF OR INABILITY TO USE THE SOFTWARE OR
THE PROVISION OF OR FAILURE TO PROVIDE SUPPORT SERVICES, EVEN IF LINEO
OR ITS SUPPLIERS HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
IN ANY CASE, THE ENTIRE LIABILITY OF LINEO AND ITS SUPPLIERS UNDER
THIS AGREEMENT AND LIMITED WARRANTY SHALL BE LIMITED TO THE AMOUNT
ACTUALLY PAID BY YOU FOR THE SOFTWARE OR SUPPORT SERVICES THAT CAUSE
THE DAMAGE. BECAUSE SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR
LIMITATION OF LIABILITY, THE ABOVE LIMITATION MAY NOT APPLY TO YOU.
7. U.S. GOVERNMENT RESTRICTED RIGHTS
Software and documentation delivered to civilian agencies of the U.S. Government
pursuant to solicitations dated prior to December 1, 1995, and Software and
documentation delivered to the Department of Defense of the U.S. Government
pursuant to solicitations dated prior to September 29, 1995, are provided with
RESTRICTED RIGHTS. Use, duplication, or disclosure by the Government is subject
to restrictions as set forth in subparagraph FAR 52.227-14(g)(Jun. 1987) or
subparagraph DFAR 252.227-7013 (c)(1)(ii)(Oct. 1988). All Software and
documentation delivered to civilian agencies or the Department of the Defense of
the U.S. Government pursuant to solicitations issued after the dates specified
above, are delivered with commercial licensing rights as set forth in this EULA
only.
8. GOVERNING LAWS AND ATTORNEYS' FEES
This EULA is governed by the laws of the State of Utah, USA, without regard to
principles of conflict of laws, and specifically excludes the United Nations
Convention on Contracts for the International Sale of Goods. If you acquired
this Software in a country outside of the United States, that country's laws may
apply. In any action or suit
OEM License Agreement (Embedded) Lineo, Inc., 390 South 400 West,
Lindon, Utah 84042
Page 13 of 17
to enforce any right or remedy under this EULA or to interpret any provision of
this EULA, the prevailing party will be entitled to recover its costs, including
reasonable attorneys' fees.
9. ENTIRE AGREEMENT
This EULA constitutes the entire agreement between you and Lineo with respect to
the Software, and replaces all other understandings, communications, agreements
or representations, whether written or oral. The terms of this EULA cannot be
modified by any terms in any printed forms used by the parties in performing the
EULA, and can only be modified by express written consent of both parties. If
any part of this EULA is held to be unenforceable as written, it will be
enforced to the maximum extent allowed by applicable law, and will not affect
the enforceability of any other part.
Should you have any questions concerning this EULA, or if you desire to contact
Lineo for any reason, please contact the Lineo representative serving your
company, or send email to: embedix-support@lineo.com.
OEM License Agreement (Embedded) Lineo, Inc., 390 South 400 West,
Lindon, Utah 84042
Page 14 of 17
LINEO, INC.
OEM LICENSE AGREEMENT
SCHEDULE D
ANNUAL OEM MAINTENANCE, SUPPORT AND TRAINING AGREEMENT
NO. LN0201
------
This OEM Maintenance, Support and Training Agreement is an element of an OEM
License Agreement ("OEM Agreement") between Lineo and Licensee, and is subject
to all the general terms and conditions thereof, except as and to the extent
such terms are specifically and directly superseded hereby. Lineo will provide
maintenance and support only in connection with OEM's pre-purchase of *
licenses (or units) as specified in the OEM License Agreement of which this is a
part, for a term expiring 12 months from the Effective Date. Lineo and OEM may,
at any time, negotiate and mutually agree to amend and extend the coverage of
the maintenance and support beyond such 12-month period, provided that any such
amendment is in writing.
A. MAINTENANCE AND PRODUCT SUPPORT:
1. MAINTENANCE/MINOR UPDATES. In consideration of the maintenance and support
Service Fee set forth in Section 3 below, Lineo will provide to OEM any
minor updates to the current version of the Licensed Product, Embedix(TM),
made generally available during the term of this Maintenance and Support
Agreement. In addition, Lineo will provide ongoing telephone and e-mail
support. The expenses of any distribution of such updates through the
distribution channels for OEM's products will be paid by OEM. OEM and Lineo
will favorably consider electronic or alternative dissemination methods of
such minor updates to the extent consistent with policies of both
companies. OEM and Lineo agree to reasonably cooperate on a monthly basis
regarding support issues and processes.
2. TECHNICAL SUPPORT. In further consideration of the maintenance and support
Service Fee set forth in Section 3, Lineo will provide OEM with Lineo's
backend technical support services, as further described herein.
a. BACK-END SUPPORT. Lineo will provide back-end support to OEM for
program errors not resolved by OEM pursuant to OEM support policies
and in accordance with subsection (b) below. This support includes
efforts to identify defective source code and to provide corrections,
workarounds and/or patches to correct program errors. Lineo will
provide OEM with a telephone number and an e-mail address which OEM
may use to report program errors during Lineo's Support local Utah
business hours (8am-5pm Mountain Standard Time). For Priority 1 or 2
failures, OEM agrees to notify Lineo via both telephone and E-mail.
OEM will identify one member of its customer support staff and an
alternate to act as the primary technical liaisons responsible for all
communications with Lineo's technical support representatives. Such
liaisons will have sufficient technical expertise, training and/or
experience for OEM to perform its obligations hereunder. Within one
week after the Effective Date, OEM will designate its liaisons(s).
Such designation will be in writing and/or E-mail to Lineo. OEM may
substitute contacts at any time by providing to Lineo one week prior
written and/or electronic notice thereof.
Lineo will make reasonable efforts to correct significant program
errors that OEM identifies, classifies and reports to Lineo and that
Lineo substantiates. Lineo may reclassify program errors if it
reasonably believes that OEM's classification is incorrect. OEM will
provide sufficient information to enable Lineo to duplicate the
program error before Lineo's response obligations
- ----------------------------------
* Confidential Treatment Requested
OEM License Agreement (Embedded) Lineo, Inc., 390 South 400 West,
Lindon, Utah 84042
Page 15 of 17
will commence. Lineo will not be required to correct any program error
caused by: (a) OEM's incorporation or attachment of a feature,
program, or device to the Lineo Products, or any part thereof; (b) any
nonconformance caused by accident, transportation, neglect, misuse,
alteration, modification, or enhancement of the Lineo Products; (c)
the failure to provide a suitable installation environment; (d) use of
the Lineo Products for other than the specific purpose for which the
Lineo Products are designed; (e) use of the Lineo Products on any
systems other than the specified hardware platform for such Lineo
Products; (f) OEM's use of defective media or defective duplication of
the Lineo Products; or (g) OEM's failure to incorporate any minor
update previously released by Lineo which corrects such program error.
Provided program error reports are received by Lineo during Lineo's
local Utah business hours (8am-5pm Mountain Standard Time, Monday
through Friday), Lineo will use reasonable commercial efforts to
communicate with OEM about the program error via telephone or e-mail
within the following targeted response times:
- ------------ ------------------------------------------------------------------ -----------------------------
Priority Failure Description Response Time
- ------------ ------------------------------------------------------------------ -----------------------------
1 Fatal (no useful work can be done) 10 working hours
- ------------ ------------------------------------------------------------------ -----------------------------
2 Severe Impact (functionality disabled): errors which result in a 1 working day
lack of application functionality or cause intermittent system
failure
- ------------ ------------------------------------------------------------------ -----------------------------
3 Degraded Operations: errors causing malfunction of non critical 3 working days
functions
- ------------ ------------------------------------------------------------------ -----------------------------
4 Minimal Impact: attributes and/or options to utility programs do Future release, on business
not operate as stated justifiable basis
- ------------ ------------------------------------------------------------------ -----------------------------
5 Enhancements Request When applicable
- ------------ ------------------------------------------------------------------ -----------------------------
Lineo will use reasonable commercial efforts to resolve each
significant program error by providing either a reasonable work
around, an object code patch, or a specific action plan for how Lineo
will address the problem and an estimate of how long it will take to
rectify the defect. OEM may be required to pay to Lineo additional
fees at Lineo's then-standard rates for services performed in
connection with reported program errors which are later determined by
Lineo to have been due to hardware of software not supplied by Lineo.
Notwithstanding the foregoing, Lineo has no obligation to perform
services in connection with (i) program errors resolution from
hardware or software not supplied by Lineo: or (ii) which occur in the
Lineo Product release which is not the then-current release.
b. FRONT-LINE SUPPORT. OEM, and not Lineo, will provide front-line, or
first and second level, technical support to its Distributors,
Resellers and End Users. Such support includes call receipt, call
screening, installation assistance, problem identification and
diagnosis, efforts to create a repeatable demonstration of the program
error, maintenance of a website that provides technical and warranty
support to End Users and, if applicable, the distribution of any
defective media or minor updates. OEM agrees that any documentation
distributed by OEM will clearly and conspicuously state that End Users
should call OEM, and not Lineo, for technical support for the Lineo
Products. Lineo will have no obligation to furnish any assistance,
information or documentation with respect to the Lineo Products to any
Distributor, Reseller or End User. If Lineo believes its customer
support representatives are being contacted by a significant number of
OEM License Agreement (Embedded) Lineo, Inc., 390 South 400 West,
Lindon, Utah 84042
Page 16 of 17
OEM's Distributors, Reseller or End Users, then, upon Lineo's request,
OEM will undertake every reasonable effort to minimize such contact.
3. SERVICE FEE: For maintenance and support rendered in connection with the
Licensed Product, as set forth in Sections 1 and 2 above, and for the
period of this maintenance agreement only, OEM shall pay to Lineo
maintenance and support Fees in the amount of US $*, representing *%
of the aggregate total of nonrefundable license fees payable under the OEM
License Agreement. Said maintenance and support fees shall be payable on or
before the Effective Date.
B. PRODUCT TRAINING
1. STANDARD TRAINING.
Lineo will provide its standard product training to OEM, as described below, at
any time during the period of this maintenance agreement, upon payment of the
training fees prescribed below. All training can be conducted on site at OEM in
Korea. OEM may designate one or more of the following training programs by
initialing below:
_____ LINUX SYSTEM ADMINISTRATION: 3-5 DAYS
This training program is optimal if OEM desires training designed for
those who are taking first steps into using Linux and want to learn
how to administer their Linux system, gain experience with basic Linux
administration tasks, better understand the Linux phenomenon, explore
command line and GUI utilities, learn system processes, and configure
printing and networking. If OEM selects this training program, OEM
shall pay to Lineo Training Fees consisting of U.S. $* per each
OEM participant per class.
_____ EMBEDIX SDK: 3-5 DAYS
This training program is designed for those desiring an in-depth
understanding of the Embedix SDK toolkit, Linux kernel, base programs,
compilers, and customization tools. If OEM selects this training
program, OEM shall pay to Lineo Training Fees consisting of U.S.
$* per each OEM participant per class.
_____ LINUX SYSTEM ADMINSTRATION AND EMBEDIX SDK
A combination of the two training programs above with special emphasis
on Embedix SDK. If OEM selects this combined training program, OEM
shall pay to Lineo Training Fees consisting of U.S. $* per each
OEM participant per class.
2. CUSTOMIZED TRAINING.
Any of the selected training programs may be customized, at OEM's request
and upon mutual agreement, specifically to meet OEM's needs. For any
customization of the selected training program requested by OEM, the
parties shall negotiate the terms and conditions of such customization,
including, but not limited to, additional fees and the nature of the
customization.
3. TRAINING FEES. All Training Fees are payable not later than fifteen (15)
days prior to the first day of the selected training program.
- ----------------------------------
* Confidential Treatment Requested
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