EXHIBIT 10.5
DR DOS LICENSE AGREEMENT
THIS LICENSE AGREEMENT (this "Agreement") is made and entered into this
1st day of September, 1998 by and between Caldera, Inc., a Utah corporation
("Licensor"), and Caldera Thin Clients, Inc., a Utah corporation ("Licensee").
RECITALS
WHEREAS, Licensor owns all right, title and interest in and to that
certain technology described on EXHIBIT A hereto (the "Technology"); and
WHEREAS, Licensor is willing to grant to Licensee a broad license to use
the Technology in accordance with the terms and conditions of this Agreement
revocable only upon the occurrence of certain specific events described herein,
in exchange for which Licensor shall be entitled to receive shares of Licensee's
capital stock.
AGREEMENT
NOW, THEREFORE, in consideration of the promises and the mutual covenants
contained herein, the parties agree as follows:
1. LICENSE GRANT.
1.1. LICENSE TO THE TECHNOLOGY. Subject to the terms and conditions of
this Agreement, Licensor hereby grants to Licensee a perpetual,
non-exclusive, royalty-free, worldwide license to make, use, sell,
reproduce, distribute and sublicense the Technology and to prepare
derivative works from the Technology.
1.2. TITLE. All right, title, and interest in and to the Technology
shall remain exclusively with Licensor. All right, title, and
interest in and to any and all modifications, improvements or
derivative works of or to the Technology (the "Derivatives") shall
vest exclusively with Licensee. Licensee shall do nothing to
divest, challenge or disturb Licensor's title to the Technology.
Licensee shall take all reasonable steps to protect any of
Licensor's proprietary rights in connection with the Technology.
The provisions of this Section 1.2 shall survive termination of
this Agreement.
1.3. SUBLICENSES. As a manufacturer and supplier of products of the
Technology, Licensee shall have the right to sublicense users and
distributors to use the Technology in the ordinary course of
exploiting the Technology.
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1.4. LICENSEE STOCK. In consideration of the license granted hereunder,
Licensor shall be entitled to receive shares of Licensee's Common
Stock, no par value.
2. REPRESENTATIONS AND WARRANTIES.
2.1. TITLE. Licensor represents and warrants that (i) it has good title
to the Technology and (ii) it is authorized to grant the license
provided for herein.
2.2. NO INFRINGEMENT. Licensor warrants that, to the best of its
knowledge, the Technology does not violate or infringe any patent,
copyright, trademark, trade secret or other proprietary right of
any third party and that Licensor is not aware of any facts upon
which such a claim for infringement could be based. Licensor will
promptly notify Licensee if it becomes aware of any claim or any
facts upon which such a claim could reasonably or legitimately be
based.
3. TERM AND TERMINATION.
3.1. TERM. The license granted hereunder shall have a perpetual term
unless terminated as provided below.
3.2. TERMINATION. The license granted hereunder may be terminated as
follows:
3.2.1. By written agreement of the parties;
3.2.2. By either party in the event of a material breach of this
Agreement by the other party and such breach is not cured
within 30 days of written notice thereof;
3.2.3. By Licensor in the event that Licensee ceases doing
business as a going concern, is adjudged insolvent or
bankrupt, or upon the institution of any proceeding by or
against it seeking relief, reorganization or arrangement
under any laws relating to insolvency (except for a
proceeding that is commenced involuntarily and dismissed
within 60 days), or upon the appointment of any of a
receiver, liquidator or trustee of any of its property or
assets, or upon the liquidation, dissolution or winding up
of its business or otherwise seeks protection against
creditors' demands for payment; or
3.2.4. By Licensor in the event Licensee allows usage of the
Technology in violation of this Agreement.
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3.3. EFFECT OF TERMINATION. Upon the termination of this Agreement,
Licensee shall immediately discontinue use of the Technology. The
license shall terminate upon termination of this Agreement.
3.4. DISPOSITION OF TECHNOLOGY. Upon termination of this Agreement,
Licensee shall, pursuant to Licensor's instructions, return or
destroy the Technology and all copies thereof (in all forms,
electronic or otherwise) that are in the possession, custody, or
control of Licensee, except that Licensee may retain one copy of
the Technology (and any documentation provided therewith by
Licensor) solely for purposes of post-termination customer
support.
3.5. SURVIVAL. The termination of this Agreement shall not relieve
either party of any liability that accrued prior thereto nor shall
affect the continued operation or enforcement of any provision of
this Agreement which, by its express terms, shall survive
termination.
4. ENFORCEMENT OF IP RIGHTS.
4.1. Licensee shall have the right to, and shall at the direction of
Licensor, enforce all of the licensed intellectual property rights
against infringement by third parties. Licensor agrees to
cooperate with such enforcement efforts. In the event that
Licensee chooses not to enforce the licensed rights against an
infringer, Licensor may do so and may retain all advantages
obtained thereby.
5. GENERAL.
5.1. WAIVER OF PERFORMANCE. A failure of either party hereto at any
time to require performance by the other party of any provision of
this Agreement will in no way affect the right of the first party
to require such performance at any time thereafter. The waiver by
either party of a breach by the other party of any provision of
this Agreement will in no way be construed as a waiver of any
succeeding breach of such provision or a waiver of the provision
itself.
5.2. LAW AND VENUE. This Agreement shall be construed and enforced in
accordance with the laws of the State of Utah.
5.3. EQUITABLE RELIEF. The parties acknowledge and agree that remedies
at law may be inadequate to protect against breaches of this
Agreement and expressly consent to the granting of equitable
relief, whether temporary, preliminary or final, without proof of
actual damages, to prevent any actual or threatened breach.
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5.4. ASSIGNMENT. Except as expressly permitted herein, neither this
Agreement nor any right hereunder may be assigned by either party
in whole or in part without the express prior written consent of
the other party, which may be withheld for any or no reason.
5.5. ENTIRE AGREEMENT. This Agreement and the documents referenced
herein constitute the entire understanding and agreement of the
parties with respect to the subject matter of this Agreement and
supersede all prior agreements or understandings, written or oral,
between the parties with respect to the subject matter of this
Agreement.
5.6. AMENDMENTS. No change in, addition to, or waiver of any of the
terms and provisions of this Agreement shall be binding unless
approved by the parties hereto in a writing signed by both
parties.
5.7. SEVERABILITY. If any provision of this Agreement is held to be
invalid, void or unenforceable, the remaining provisions of this
Agreement nevertheless will continue in full force and effect
without being impaired or invalidated in any way.
5.8. ATTORNEYS' FEES. Except as otherwise provided herein, in the event
of any claim or controversy between the parties relating to this
Agreement or to the breach hereof, the prevailing party in such
action shall be entitled to recover from the other party the costs
and expenses, including reasonable fees of attorneys, experts and
other technical advisors, incurred in taking or defending such
action, including on appeal.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
duly executed as of the date first above written.
LICENSOR: LICENSEE:
Caldera, Inc., Caldera Thin Clients, Inc.,
a Utah corporation a Utah corporation
By____________________________ By____________________________
Bryan Sparks, President
Its____________________________
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EXHIBIT A
DESCRIPTION OF TECHNOLOGY
The technology is the "Transferred Assets," as that term is defined in
Section 2.14 of the Asset Purchase Agreement by and between Caldera, Inc. and
Novell, Inc., dated July 23, 1996, and attached hereto as Exhibit B, together
with any derivative works based thereon created by Caldera, Inc.
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EXHIBIT B
JULY 23, 1996, ASSET PURCHASE AGREEMENT
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