STRATEGIC ALLIANCE AGREEMENT
This Strategic Alliance Agreement is made as of August ____, 2000 (the
"EFFECTIVE DATE"), by and between Metrowerks Corp., a Texas corporation having
its principle place of business at 9801 Metric Boulevard, Austin Texas 78758
("METROWERKS") and Lineo, Inc., a Delaware corporation having its principle
place of business at 390 South 400 West, Lindon, Utah 84042 ("LINEO").
A. GENERAL UNDERSTANDING
Metrowerks is a company that designs, develops, markets and supports
professional software development tools used to create software applications for
a variety of industries. Metrowerks' flagship product, CodeWarrior, as more
particularly described in SCHEDULE A attached hereto and made a part hereof
("CODEWARRIOR SOFTWARE"), is a suite of development tools consisting of
cross-platform compilers supporting C, C++, Java and assembly programming
languages which are used for both embedded systems development and desktop
applications.
Lineo is a company that develops, markets and sells embedded system
software tools, components and solutions. Lineo's embedded Linux system software
line, as more particularly described in SCHEDULE A attached hereto and made a
part hereof ("LINEO SOFTWARE"), includes software and documentation needed to
develop an Embedix target device from a Linux host.
It is the parties' intentions, by entering into this Agreement, that, to
the extent necessary, Lineo will modify the Lineo Software product(s) and
Metrowerks will modify the CodeWarrior Software product(s) so that each of the
CodeWarrior products may be bundled with one or more of the Lineo Software
products and licensed and distributed as a single product (the "BUNDLED
Product(s)"). Metrowerks and Lineo will each have the right to use and
distribute the Bundled Product(s). Metrowerks will also have the right to use
and distribute Lineo Software apart from the Bundled Product(s).
B. TERMS OF AGREEMENT
1. DEFINITIONS
As used in this Agreement, the terms "Effective Date," "Metrowerks,"
"Lineo," "CodeWarrior Software," "Lineo Software" and "Bundled Product(s)" shall
have the meanings set forth above; and the following terms shall have the
following meanings:
"AGREEMENT" means this Agreement, including SCHEDULES A through G, and any
additional documents attached and initialed by the parties.
"CASH FEE" shall have the meaning set forth in Section 13.9.
"CODEWARRIOR SOFTWARE ROYALTY" shall have the meaning set forth in Section
5.1(a).
"CONFIDENTIAL INFORMATION" means all information including, without
limitation, business, marketing and technical information, considered by a party
to be valuable and proprietary. Confidential Information shall not include
information that a receiving party can prove: (a) was in the receiving party's
possession at the time of the disclosure; (b) was developed by the receiving
party completely independently from the Confidential Information; (c) was in the
public domain at the time of the disclosure or later became part of the public
domain through no disclosure of the receiving party or; (d) was lawfully
obtained by the receiving party from a third party without restriction on use or
disclosure.
"CUSTOMER" means any person or entity that purchases a license to use a
Bundled Product(s) or Lineo Software for Internal Use in accordance with the
terms and conditions of this Agreement.
"DERIVATIVE WORKS" means a derivative work within the meaning of the
Copyright Act of 1976 (as amended), including, without limitation, any revision,
modification, translation, abridgment, condensation or expansion of CodeWarrior
Software, the Lineo Software or the Bundled Product(s) or any form in which any
of the foregoing may be recast, transferred or adapted, which, if prepared
without the consent of Metrowerks or Lineo, as applicable, would be a copyright
infringement.
"EMPLOYING PARTY" shall have the meaning set forth in Section 13.9.
"INTELLECTUAL PROPERTY RIGHTS" includes, without limitation, all patents,
patent applications, patent rights, trademarks, trademark applications, trade
names, service marks, service mark applications, copyrights, copyright
applications, know-how and trade secrets.
"INTERNAL USE" means use for purposes that do not directly produce revenue
for the user.
"LINEO END USER LICENSE AGREEMENT" shall have the meaning set forth in
Section 4.5.
"LINEO MARKS" means Lineo's trademarks, trade names, service marks, logos,
designations and insignias, as well as any third-party marks licensed to Lineo
with rights of sublicense.
"LINEO PURCHASE ORDER" shall have the meaning set forth in Section 4.8(a).
"LINEO SOFTWARE ROYALTY" shall have the meaning set forth in Section
5.1(b).
"METROWERKS END USER LICENSE AGREEMENT" shall have the meaning set forth in
Section 4.5.
2
"METROWERKS MARKS" means Metrowerks' trademarks, trade names, service
marks, logos, designations and insignias, as well as any third-party marks
licensed to Metrowerks with rights of sublicense.
"METROWERKS PURCHASE ORDER" shall have the meaning set forth in Section
4.9(a).
"PARENT" means a corporation, company or other entity that (a) now or
hereafter owns or controls, directly or indirectly, at least fifty (50%) percent
of a party's outstanding shares or securities representing the right (other than
as affected by events of default) to vote for the election of directors or
another managing authority or (b) otherwise has a controlling interest in a
party.
"PROJECT" means the cooperative efforts of Lineo and Metrowerks to develop
the Bundled Product(s), such efforts to be conducted in accordance with Section
2 and SCHEDULE B attached hereto.
"RESTRICTED EMPLOYEE(S)" shall have the meaning set forth in Section 13.9.
"RESTRICTED PERIOD" shall have the meaning set forth in Section 13.9.
"RETAINING PARTY" shall have the meaning set forth in Section 13.9.
"SUBSIDIARY" means a corporation, company or other entity (a) at least
fifty (50%) percent of whose outstanding shares or securities representing the
right (other than as affected by events of default) to vote for the election of
directors or another managing authority are now or hereafter owned or controlled
directly or indirectly by a party or (b) that is otherwise controlled by a
party.
"TERM" shall have the meaning set forth in Section 6.1.
2. MUTUAL COOPERATION
2.1 PROJECT COMPLETION.
(a) The parties agree that following the Effective Date the parties
will cooperate with each other and exert commercially reasonable efforts to
complete SCHEDULE B attached hereto. Upon completion of SCHEDULE B, each party
shall evidence its acceptance of the terms and conditions contained therein by
signing the completed SCHEDULE B. In the event the parties are unable to
mutually agree on the terms and conditions of and complete SCHEDULE B within
thirty (30) days following the Effective Date, this Agreement shall
automatically terminate and the provisions of Section 6.3 shall apply; provided,
however, that the parties may agree in writing to extend the time period for
completion of SCHEDULE B to a mutually agreeable date.
(b) Upon completion of SCHEDULE B pursuant to Section 2.1(a) above,
Metrowerks and Lineo shall cooperate with each other and exert commercially
reasonable efforts to complete the Project according to the provisions of the
completed SCHEDULE B. Neither party
3
shall license or distribute a Bundled Product(s) until each Bundled Product has
been accepted by both parties pursuant to the provisions of the completed
SCHEDULE B.
2.2 TECHNICAL ASSISTANCE. Each party shall consult with the other party on
a regular basis and provide such other party with any technical assistance
reasonably necessary for the other party to perform its obligations under this
Section 2. This collaboration shall include regular group meetings between the
parties at times and places to be mutually agreed upon to discuss the Project
progress and results, as well as ongoing plans or changes in the Project.
2.3 PROJECT MANAGERS. Each party shall designate one of its officers or
employees as its representative to coordinate and generally oversee the
activities of such party hereunder (the "PROJECT MANAGER"). Each party's initial
Project Manager is identified on SCHEDULE B. Each party shall promptly notify
the other party in writing of any change in its Project Manager. Neither party's
Project Manager is authorized to amend, alter or extend this Agreement in any
manner.
3. LICENSES, RESTRICTIONS AND OWNERSHIP
3.1 LICENSES FROM METROWERKS.
(a) On the terms and conditions set forth in this Agreement,
Metrowerks hereby grants to Lineo a royalty-bearing, terminable, nonexclusive
and nontransferable license during the Term of this Agreement to:
(i) use up to twenty (20) internal copies of CodeWarrior
Software (in the aggregate) as a component of the Bundled Product(s);
(ii) license and distribute CodeWarrior Software as a component
of the Bundled Product(s); and
(iii) use and display the Metrowerks Marks identified in SCHEDULE
C hereto, solely in connection with, and only to the extent reasonably necessary
for, the marketing and distribution of the Bundled Product(s) during the Term of
this Agreement, provided that any such use and display shall comply with
Metrowerks' then current trademark usage policies, a current copy of which is
attached hereto as SCHEDULE C-1, and provided that Metrowerks has notified Lineo
of its trademark usage policies and any changes thereto in writing. Upon
expiration or termination of this Agreement, Lineo agrees to cease all display,
advertising and use of any and all Metrowerks Marks. Lineo agrees not to alter,
erase or overprint any notice provided by Metrowerks and not to attach any
additional trademarks without the prior written consent of Metrowerks or affix
any Metrowerks Marks to any non-Metrowerks product. Lineo recognizes Metrowerks'
rights to Metrowerks Marks and the goodwill attaching to Metrowerks Marks. Lineo
agrees not to use, employ or attempt to register any trademarks or trade names
that are confusingly similar to Metrowerks Marks.
(b) Lineo shall have no rights, directly or indirectly, to decompile,
reverse engineer, reverse compile, modify or otherwise create Derivative Works
of or perform any similar type of operation on CodeWarrior Software.
4
3.2 LICENSES FROM LINEO.
(a) On the terms and conditions set forth in this Agreement, Lineo
hereby grants to Metrowerks a royalty-bearing, terminable, nonexclusive and
nontransferable license during the Term of this Agreement to:
(i) use up to twenty (20) internal copies of the Lineo Software
(in the aggregate) as a component of the Bundled Product(s);
(ii) license and distribute the Lineo Software as a component of
the Bundled Product(s);
(iii) license and distribute the Lineo Software as a stand alone
product; and
(iv) use and display the Lineo Marks identified in SCHEDULE C
hereto, solely in connection with, and only to the extent reasonably necessary
for, the marketing, distribution and support of Lineo Software and the Bundled
Product(s) during the Term of this Agreement, provided that any such use and
display shall comply with Lineo's then current trademark usage policies, a
current copy of which is attached hereto as SCHEDULE C-3, and provided that
Lineo has notified Metrowerks of its trademark usage policies and any changes
thereto in writing. Upon expiration or termination of this Agreement, Metrowerks
agrees to cease all display, advertising and use of any and all Lineo Marks.
Metrowerks 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. Metrowerks recognizes
Lineo's rights to Lineo Marks and the goodwill attaching to Lineo Marks.
Metrowerks agrees not to use, employ or attempt to register any trademarks or
trade names that are confusingly similar to Lineo Marks.
(b) Metrowerks shall have no rights, directly or indirectly, to
decompile, reverse engineer, reverse compile, modify or otherwise create
Derivative Works of or perform any similar type of operation on the Lineo
Software.
3.3 LIMITED TRANSFERABILITY OF LICENSES.
(a) Except for the licenses granted to Metrowerks by Lineo in Section
3.2 for the purpose of allowing Metrowerks to license and distribute the Lineo
Software and the Bundled Product(s) to Customers in accordance with the terms
and conditions of this Agreement, Metrowerks may not, directly or indirectly,
sell, assign, license, lease, rent, distribute or otherwise transfer the
licenses granted to it or the Lineo Software or Bundled Product(s) or any rights
therein to any third party unless Metrowerks first obtains the written consent
of Lineo.
(b) Except for the licenses granted to Lineo by Metrowerks in Section
3.1 for the purpose of allowing Lineo to license and distribute CodeWarrior
Software as a component of the Bundled Product(s) to Customers in accordance
with the terms and conditions of this Agreement, Lineo may not, directly or
indirectly, sell, assign, license, lease, rent, distribute or otherwise transfer
the licenses granted to it or CodeWarrior Software or the
5
Bundled Product(s) or any rights therein to any third party unless Lineo first
obtains the written consent of Metrowerks.
4. MARKETING AND DISTRIBUTION
4.1 CO-MARKETING. Metrowerks and Lineo agree to cooperate each other in
the marketing and licensing of the Bundled Product(s). Co-marketing will
include, as mutually agreed upon by the parties, press and public relations
activities, trade show support, web space on the other party's website and
periodic announcements to each other's customer base. Each party will market and
distribute the Bundled Product(s) at its own expense.
4.2 CO-BRANDING. The parties agree that the Bundled Product(s) shall be
co-branded as the product of both Metrowerks and Lineo. All co-branding by
the parties shall be in accordance with the licenses granted to the parties
in Sections 3.1(a)(iii) and 3.2(a)(iv) above.
4.3 BUNDLED PRODUCT(S). Subject to the terms and conditions of this
Agreement and acceptance of each Bundled Product(s) pursuant to the provisions
of SCHEDULE B, during the Term of this Agreement Metrowerks may license and
distribute the Bundled Product(s) to Customers for such Customers' Internal Use
only and to and through third-party distributors. Subject to the terms and
conditions of this Agreement and acceptance of each Bundled Product(s) pursuant
to the provisions of SCHEDULE B, during the Term of this Agreement Lineo may
license and distribute the Bundled Product(s) to Customers for such Customers'
Internal Use only; provided, however, that Lineo may also license and distribute
the Bundled Product(s) to and through third-party distributors that have been
approved by Metrowerks, which approval shall not be unreasonably withheld. As of
the Effective Date of this Agreement, the distributors named on SCHEDULE G
attached hereto have been approved by Metrowerks for distribution and licensing
of the Bundled Product(s).
4.4 LINEO SOFTWARE. Subject to the terms and conditions of this Agreement,
during the Term of this Agreement Metrowerks may license and distribute Lineo
Software to Customers for such Customers' Internal Use only and to and through
third-party distributors.
4.5 END USER LICENSE AGREEMENTS. Each party shall deliver a copy of the
end user license agreement attached hereto as SCHEDULE D (the "LINEO END USER
LICENSE AGREEMENT") and the end user license agreement attached hereto as
SCHEDULE E (the "METROWERKS END USER LICENSE AGREEMENT") to each Customer that
licenses the Bundled Product(s). The Customer's use of the CodeWarrior Software
component of the Bundled Product(s) shall be governed by the Metrowerks End User
License Agreement, and the Customer's use of the Lineo Software component of the
Bundled Product(s) will be governed by the Lineo End User License Agreement. All
Metrowerks End User License Agreements and the licenses granted thereunder to
Customers and all Lineo End User License Agreements and the licenses granted
thereunder to Customers prior to the termination or other expiration of this
Agreement shall survive the termination or other expiration of this Agreement
for the duration of the term set forth in such end user license agreements,
provided such Customers comply with the terms of such end user license
agreements.
6
4.6 LINEO SOFTWARE END USER LICENSE AGREEMENT. Metrowerks shall deliver a
copy of the Lineo End User License Agreement to each Customer that licenses the
Lineo Software from Metrowerks as a stand alone product that shall be binding on
such Customer. All Lineo End User License Agreements and the licenses granted
thereunder to Customers prior to the termination or other expiration of this
Agreement shall survive the termination or other expiration of this Agreement
for the duration of the term set forth in the applicable Lineo End User License
Agreement, provided such Customers comply with the terms of such Lineo End User
License Agreements.
4.7 DEVELOPMENT PURPOSE; NO MINIMUM COMMITMENTS. The underlying purpose of
the development efforts contemplated by this Agreement is to integrate the Lineo
Software with the CodeWarrior Software, with the resulting Bundled Product(s)
being a product that is compatible with Motorola's development boards. The
parties will work together to market the Bundled Product(s) to Motorola, but
neither party is required or committed to license any software under this
Agreement.
4.8 TERMS OF LINEO ORDERS FOR CODEWARRIOR SOFTWARE.
(a) LINEO PURCHASE ORDERS. To obtain copies of CodeWarrior Software
to be licensed in the Bundled Product(s), Lineo will submit to Metrowerks
purchase orders (each, a "LINEO PURCHASE ORDER"). Each Lineo Purchase Order will
be in writing and will specify (i) the number and type of CodeWarrior Software
being ordered for bundling, (ii) the requested shipment date therefor, (iii)
delivery and shipping instructions, and (iv) any other information that
Metrowerks may reasonably request from time to time.
(b) ACCEPTANCE BY METROWERKS. All Lineo Purchase Orders for
CodeWarrior Software to be licensed in the Bundled Product(s) will be subject to
acceptance by Metrowerks and will not be binding on Metrowerks until the earlier
of confirmation or shipment, and, in the case of acceptance by shipment, only as
to the portion actually shipped.
(c) NO ADDITIONAL TERMS. The terms and conditions of this Agreement
and of the applicable Metrowerks' confirmation will apply to each Lineo Purchase
Order accepted by Metrowerks hereunder. Any terms or conditions appearing on the
face or reverse side of any Lineo Purchase Order, acknowledgment or confirmation
that are different from, or in addition to, those required hereunder will not be
binding on the parties, even if signed and returned, unless both parties
expressly agree in a separate writing to be bound by such separate or additional
terms and conditions.
(d) CANCELLATION OF ORDERS BY METROWERKS. Metrowerks reserves the
right to cancel or suspend any Lineo Purchase Order(s) placed by Lineo and
accepted by Metrowerks, or refuse or delay shipment thereof, if Lineo fails to
(i) make any payment as provided herein or in any invoice provided by Metrowerks
or (ii) otherwise comply with the terms and conditions of this Agreement.
(e) CANCELLATION OF ORDERS BY LINEO. Once a Lineo Purchase Order has
been accepted by Metrowerks, it may not be canceled by Lineo unless (i)
Metrowerks has failed to ship the CodeWarrior Software requested on such Lineo
Purchase Order, or any portion
7
thereof, within thirty (30) days following Lineo's requested ship date therefor,
(ii) Lineo provides written notice of such cancellation to Metrowerks ten (10)
days or more prior to the requested ship date therefor, or (iii) if less than
ten (10) days prior to the requested ship date therefor, Metrowerks agrees to
such cancellation in writing.
(f) SHIPMENT OF ORDERS. Metrowerks will ship all CodeWarrior Software
to Lineo by delivering the CodeWarrior Software to a common carrier, F.O.B.
point of shipment. Lineo agrees that acceptance for each Lineo Purchase Order
will occur upon delivery of the subject CodeWarrior Software to Lineo or a
common carrier. Lineo assumes title and all risk of loss or damage upon delivery
of ordered CodeWarrior Software to a common carrier. Should Metrowerks determine
it will be unable to ship any CodeWarrior Software by the requested shipment
date specified in the applicable Lineo Purchase Order, Metrowerks will notify
Lineo as soon as reasonably practicable of the expected late delivery date and
the reason therefor.
4.9 TERMS OF METROWERKS ORDERS FOR LINEO SOFTWARE.
(a) METROWERKS PURCHASE ORDERS. To obtain licensed copies of Lineo
Software from Lineo, Metrowerks will submit to Lineo purchase orders (each, a
"METROWERKS PURCHASE ORDER"). Each Metrowerks Purchase Order will be in writing
and will specify (i) the number and type of Lineo Software being ordered, (ii)
the requested shipment date therefor, (iii) delivery and shipping instructions,
and (iv) any other information that Lineo may reasonably request from time to
time. In the event that that it is necessary for Lineo to modify the Lineo
Software to enable it to be bundled with CodeWarrior Software, Lineo shall
provide Metrowerks with written notice that it has modified the Lineo Software,
and Metrowerks shall indicate on each Metrowerks Purchase Order whether it is
ordering Lineo Software to be licensed as a stand alone product or as a
component of the Bundled Product(s).
(b) ACCEPTANCE BY LINEO. All Metrowerks Purchase Orders for Lineo
Software will be subject to acceptance by Lineo and will not be binding on Lineo
until the earlier of confirmation or shipment, and, in the case of acceptance by
shipment, only as to the portion actually shipped.
(c) NO ADDITIONAL TERMS. The terms and conditions of this Agreement
and of the applicable Lineo confirmation will apply to each Metrowerks Purchase
Order accepted by Lineo hereunder. Any terms or conditions appearing on the face
or reverse side of any Metrowerks Purchase Order, acknowledgment or confirmation
that are different from, or in addition to, those required hereunder will not be
binding on the parties, even if signed and returned, unless both parties
expressly agree in a separate writing to be bound by such separate or additional
terms and conditions.
(d) CANCELLATION OF ORDERS BY LINEO. Lineo reserves the right to
cancel or suspend any Metrowerks Purchase Orders placed by Metrowerks and
accepted by Lineo, or refuse or delay shipment thereof, if Metrowerks fails to
(i) make any payment as provided herein or in any invoice provided by Lineo or
(ii) otherwise comply with the terms and conditions of this Agreement.
8
(e) CANCELLATION OF ORDERS BY METROWERKS. Once a Metrowerks Purchase
Order has been accepted by Lineo, it may not be canceled by Metrowerks unless
(i) Lineo has failed to ship the Lineo Software requested on such Metrowerks
Purchase Order, or any portion thereof, within thirty (30) days following
Metrowerks' requested ship date therefor, (ii) Metrowerks provides written
notice of such cancellation to Lineo ten (10) days or more prior to the
requested ship date therefor, or (iii) if less than ten (10) days prior to the
requested ship date therefor, only if Lineo agrees to such cancellation in
writing.
(f) SHIPMENT OF ORDERS. Lineo will ship all Lineo Software to
Metrowerks by delivering the Lineo Software to a common carrier, F.O.B. point of
shipment. Metrowerks agrees that acceptance for each Metrowerks Purchase Order
will occur upon delivery of the subject Lineo Software to Metrowerks or a common
carrier. Metrowerks assumes title and all risk of loss or damage upon delivery
of Lineo Software to a common carrier. Should Lineo determine it will be unable
to ship any Lineo Software by the requested shipment date specified in the
applicable Metrowerks Purchase Order, Lineo will notify Metrowerks immediately
of the expected late delivery date and the reason therefor.
5. FEES, PRICING AND PAYMENT
5.1 ROYALTY LICENSE FEES. In consideration of the licenses and other
rights granted each party hereunder, Metrowerks and Lineo shall pay each other
royalty license fees as follows:
(a) ROYALTIES ON BUNDLED PRODUCT(S). Lineo shall pay Metrowerks a
royalty on the CodeWarrior Software component of the Bundled Product(s) for each
Lineo sale of the Bundled Product(s) in an amount equal to the royalty fee
Metrowerks receives from its most favored distributor for sales of licenses to
CodeWarrior Software as determined pursuant to the criteria set forth in Section
5.2(a) below ("CODEWARRIOR SOFTWARE ROYALTY"). Upon acceptance of the Bundled
Product(s) by the parties pursuant to the provisions of SCHEDULE B, the initial
CodeWarrior Software Royalty percentage and Metrowerks' current standard retail
prices for CodeWarrior Software shall be set forth on SCHEDULE F attached
hereto. Metrowerks may, in its sole discretion, change its standard retail price
for CodeWarrior Software at any time and shall promptly provide Lineo with
written notice of any such change.
(b) ROYALTIES ON LINEO SOFTWARE. Metrowerks shall pay Lineo a royalty
for each Metrowerks sale of Lineo Software (as a stand alone product or as a
component of the Bundled Product(s)) in an amount equal to the royalty fee Lineo
receives from its most favored distributor for sales of licenses to Lineo
Software as determined pursuant to the criteria set forth in Section 5.2(b)
below ("LINEO SOFTWARE ROYALTY"). Upon acceptance of the Bundled Product(s) by
the parties pursuant to the provisions of SCHEDULE B, the initial Lineo Software
Royalty percentage and Lineo's current standard retail prices for the Lineo
Software shall be set forth on SCHEDULE F attached hereto. Lineo may, in its
sole discretion, change its standard retail price for the Lineo Software at any
time and shall promptly provide Metrowerks with written notice of any such
change.
5.2 MOST FAVORED DISTRIBUTOR.
9
(a) Metrowerks agrees to treat Lineo as its most favored distributor
with regard to the CodeWarrior Software component(s) of the Bundled Product(s).
Metrowerks warrants that the prices for CodeWarrior Software provided to Lineo
under this Agreement are equivalent to or lower than the prices being provided
by Metrowerks to its other CodeWarrior Software distributors, and the
CodeWarrior Software Royalty percentage provided to Lineo under this Agreement
is equivalent to or lower than the royalty fee percentage being provided by
Metrowerks to its other CodeWarrior Software distributors. If, during the Term
of this Agreement, Metrowerks enters into any agreement with any other
distributor providing such distributor with more favorable terms than the terms
provided to Lineo hereunder, Metrowerks shall provide Lineo with prompt notice
of such terms and this Agreement shall be deemed appropriately amended to
provide such terms to Lineo.
(b) Lineo agrees to treat Metrowerks as its most favored distributor
with regard to the Lineo Software. Lineo warrants that the prices for the Lineo
Software provided to Metrowerks under this Agreement are equivalent to or lower
than the prices being provided by Lineo to its other Lineo Software
distributors, and the Lineo Software Royalty percentage provided to Metrowerks
under this Agreement is equivalent to or lower than the royalty fee percentage
being provided by Lineo to its other Lineo Software distributors. If, during the
Term of this Agreement, Lineo enters into any agreement with any other
distributor providing such distributor with more favorable terms than the terms
provided to Metrowerks hereunder, Lineo shall provide Metrowerks with prompt
notice of such terms and this Agreement shall be deemed appropriately amended to
provide such terms to Metrowerks.
(c) In determining most favored distributor pricing under Sections
5.2(a) and 5.2(b) above, pricing and royalty arrangements between a party and
that party's Parent or Subsidiary shall not be not be considered. However,
pricing and royalty arrangements between a party's Parent or Subsidiary and a
distributor shall be taken into consideration for purposes of determining most
favored distributor pricing under Sections 5.2(a) and 5.2(b).
5.3 PAYMENT OF ROYALTIES.
(a) CODEWARRIOR SOFTWARE ROYALTIES. CodeWarrior Software Royalties
shall be paid to Metrowerks by Lineo within fifteen (15) days after the month in
which such CodeWarrior Software Royalties accrued. Along with its monthly
payment of CodeWarrior Software Royalties, Lineo shall also deliver to
Metrowerks, a monthly Customer report that identifies (i) each Customer
purchasing a license to the Bundled Product(s) by name, company name, address
(including all relevant postal codes), telephone number, facsimile number and
email address and (ii) any problems believed to be caused by errors in the
Bundled Product(s) or any component thereof. Customer reports shall be submitted
by Lineo on a monthly basis whether or not any CodeWarrior Software Royalties
are due hereunder.
(b) LINEO SOFTWARE ROYALTIES. Lineo Software Royalties shall be paid
to Lineo by Metrowerks within fifteen (15) days after the month in which such
Lineo Software Royalties accrued. Along with its monthly payment of Lineo
Software Royalties, Metrowerks shall also deliver to Lineo, a monthly Customer
report that identifies (i) each Customer purchasing a license to Lineo Software
by name, company name, address (including all relevant postal codes), telephone
number, facsimile number and email address, (ii) whether Customers
10
purchased the Lineo Software as a stand alone product or as a component of the
Bundled Product(s), and (iii) any problems believed to be caused by errors in
the Bundled Product(s) or any component thereof. Customer reports shall be
submitted by Metrowerks on a monthly basis whether or not any Lineo Software
Royalties are due hereunder.
5.4 INTEREST. Interest shall accrue on any unpaid payment or payment
balance owed to a party pursuant to this Agreement at a rate of 1.5% per month,
or, if lower, at the highest lawful rate, calculated from the date the payment
is due to the date it is received by the party to which it is owed.
5.5 RECORDS EXAMINATIONS. The parties agree to allow examination of their
relevant company records to test compliance with this Agreement. Any examination
will be conducted (a) only by a mutually agreed upon third party auditor, (b)
during regular business hours, (c) at the offices of the party being examined,
and (d) in a manner that will not interfere unreasonably with the business
activities of the party being examined. Examinations will be made no more
frequently than annually, and the examining party must give the party being
examined fifteen (15) business days or more prior written notice of the date of
the examination. The audit will be conducted at the examining party's expense
unless the results of such audit establish that inaccuracies in the monthly
Customer reports described in Section 5.3 above have resulted in underpayment to
the examining party of more than ten percent (10%) of the amount due in any
quarter, in which case the party being examined shall immediately pay all
amounts determined to be due and shall bear the expenses of the audit. All
information obtained by the mutually agreed upon third party auditor conducting
the audit will be maintained as confidential. The mutually agreed upon third
party auditor will give both parties an examination report containing only the
information necessary to indicate compliance or noncompliance with this
Agreement.
6. TERM AND TERMINATION
6.1 TERM AND EXTENSIONS. The initial term of this Agreement shall be five
(5) years from the Effective Date. Metrowerks may, at its sole option, elect to
renew this Agreement for an additional two (2) year term by providing Lineo with
written notice of its intent to renew at least thirty (30) days prior to the
expiration of the Agreement. (The initial term and the renewal term, if any, of
this Agreement shall be collectively referred to herein as the "TERM.")
6.2 TERMINATION.
(a) Either party may terminate this Agreement upon any material
breach of this Agreement by the other party; provided, however, that the
terminating party must first give the breaching party written notice of the
breach and thirty (30) days in which to cure the breach. If a cure is not
achieved during the cure period, the non-breaching party may terminate this
Agreement immediately upon written notice to the breaching party.
(b) Notwithstanding Section 6.2(a) hereof, a party may terminate this
Agreement if the other party fails to meet its payment obligations under this
Agreement and this failure continues for ten (10) days following receipt of
written notice and demand from the terminating party.
11
(c) 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.
(d) Upon termination of this Agreement by either party pursuant to
Section 6.2(a) or 6.2(b) hereof, the due dates of all outstanding Code Warrior
Royalties and Lineo Software Royalties 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.
6.3 EFFECT OF TERMINATION ON OBLIGATIONS.
(a) Upon termination of this Agreement for any reason, Metrowerks
shall (i) immediately cease all use and distribution of Lineo Software and the
Bundled Product(s), (ii) within thirty (30) calendar days after termination of
this Agreement, either deliver to Lineo or destroy all copies of Lineo Software
(including any accompanying documentation) in its possession or under its
control and furnish to Lineo an affidavit signed by an officer of Metrowerks
certifying that, to the best of the officer's knowledge, such delivery or
destruction has been fully effected, (iii) within ten (10) calendar days after
termination of this Agreement, report to Lineo, in writing, the status of
negotiations with prospective Lineo Software and Bundled Product(s) Customers,
and (iv) within thirty (30) calendar days of termination of this Agreement,
provide Lineo with current versions of the Customer report described in Section
5.3(b) above. Notwithstanding the foregoing, and provided that Metrowerks
fulfills its obligations specified in this Agreement with respect to such items,
Metrowerks may continue to use and retain copies of the Lineo Software to the
extent, but only to the extent, necessary to support and maintain Lineo Software
and Bundled Product(s) rightfully licensed and distributed to Customers by
Metrowerks prior to termination of this Agreement. Termination of this Agreement
shall not affect rights of Customers receiving Lineo Software or the Bundled
Product(s) prior to the date of termination; provided, however, that Lineo shall
have received payment of the fees owing from Metrowerks therefor.
(b) Upon termination of this Agreement for any reason, Lineo shall
(i) immediately cease all use and distribution of the Bundled Product(s), (ii)
within thirty (30) calendar days after termination of this Agreement, either
deliver to Metrowerks or destroy all copies of CodeWarrior Software (including
any accompanying documentation) in its possession or under its control and
furnish to Metrowerks an affidavit signed by an officer of Lineo certifying
that, to the best of the officer's knowledge, such delivery or destruction has
been fully effected, (iii) within ten (10) calendar days after termination of
this Agreement, report to Metrowerks, in writing, the status of negotiations
with prospective Bundled Product(s) Customers, and (iv) within thirty (30)
calendar days of termination of this Agreement, provide Metrowerks with current
versions of the Customer report described in Section 5.3(a) above.
12
Notwithstanding the foregoing, and provided that Lineo fulfills its obligations
specified in this Agreement with respect to such items, Lineo may continue to
use and retain copies of CodeWarrior Software to the extent, but only to the
extent, necessary to support and maintain Bundled Product(s) rightfully
distributed to Customers by Lineo prior to termination of this Agreement.
Termination of this Agreement shall not affect rights of Customers receiving the
Bundled Product(s) prior to the date of termination; provided, however, that
Metrowerks shall have received payment of the fees owing from Lineo therefor.
6.4 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. All provisions of this Agreement that by their nature extend
beyond the termination of this Agreement, including specifically the provisions
of Sections 1, 3.1(b), 3.2(b), 3.3, 4.5, 4.6, 5.1, 5.4, 5.5, 6.2(d), 6.3, 6.4,
7, 8, 9, 10, 11 and 13 hereof, shall survive termination of this Agreement.
Confidentiality provisions shall remain in effect until Confidential Information
is no longer confidential.
7. INTELLECTUAL PROPERTY
7.1 RIGHTS OF METROWERKS. CodeWarrior Software and the Metrowerks Marks
are the valuable property of Metrowerks. All Intellectual Property Rights with
respect to CodeWarrior Software, including any Derivative Works thereof, and the
Metrowerks Marks, whether now existing or which may hereafter come into
existence, which are not expressly granted to Lineo herein are reserved to
Metrowerks. Any goodwill generated through Lineo's use of the Metrowerks Marks
shall inure solely to the benefit of Metrowerks. Title to every copy of
CodeWarrior Software is vested and shall remain in Metrowerks, or, as
applicable, in such third party from whom Metrowerks holds rights of license and
distribution, and title does not pass with any license under this Agreement.
7.2 RIGHTS OF LINEO. The Lineo Software and the Lineo Marks are the
valuable intellectual property of Lineo. All Intellectual Property Rights with
respect to the Lineo Software, including any Derivative Works thereof, and the
Lineo Marks, whether now existing or which may hereafter come into existence,
which are not expressly granted to Metrowerks herein are reserved to Lineo. Any
goodwill generated through Metrowerks' use of the Lineo Marks shall inure solely
to the benefit of Lineo. Title to every copy of Lineo Software 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.
7.3 PRESERVATION AND SECURITY OF PROPRIETARY INFORMATION.
(a) Metrowerks shall not sell, assign, lease, license, transfer or
otherwise disclose the Lineo Software except as expressly authorized by this
Agreement. Metrowerks shall safeguard any and all copies of the Lineo Software
against unauthorized disclosure, reproduction or tampering, and shall assist
Lineo in the enforcement of its rights in the event of unauthorized disclosure
by any person under Metrowerks' control or service. Metrowerks shall also ensure
that Lineo's copyright, trademark and patent notices, which may from time to
time be updated, are prominently displayed on all copies of the Lineo Software
and any accompanying documentation therefor. Metrowerks shall not remove or
obscure any
13
copyright, trademark, patent or other proprietary rights notice already present
on any of the Lineo Software or accompanying documentation. The notice of
Lineo's intellectual property rights in the Lineo Software shall read as
follows: "Licensed Software copyright(C) Lineo, Inc. 1999-2000, all rights
reserved."
(b) Lineo shall not sell, assign, lease, license, transfer or
otherwise disclose CodeWarrior Software except as expressly authorized by this
Agreement. Lineo shall safeguard any and all copies of CodeWarrior Software
against unauthorized disclosure, reproduction or tampering, and shall assist
Metrowerks in the enforcement of Metrowerks' rights in the event of unauthorized
disclosure by any person under Lineo's control or service. Lineo shall also
ensure that Metrowerks' copyright, trademark and patent notices, which may from
time to time be updated, are prominently displayed on all copies of the Bundled
Product(s) and any accompanying documentation therefor. Lineo shall not remove
or obscure any copyright, trademark, patent or other proprietary rights notice
already present on any CodeWarrior Software or documentation. The notice of
Metrowerks' intellectual property rights in CodeWarrior Software shall read as
follows: "CodeWarrior copyright(C) Metrowerks Corp. 2000, all rights reserved."
7.4 GOODWILL. To protect and preserve the reputation and goodwill of the
parties hereto and of the Bundled Product(s) and its components, the parties
shall (a) avoid deceptive, misleading or unethical practices that are or might
be detrimental to the parties, the Bundled Product(s), Lineo Software,
CodeWarrior Software or the public; (b) make no false or misleading
representations with regard to the parties or the Bundled Product(s), Lineo
Software or CodeWarrior Software; (c) refrain from publishing or employing any
misleading or deceptive advertising material reflecting upon to the parties or
the Bundled Product(s), Lineo Software or CodeWarrior Software; (d) refrain from
making any representations, warranties or guarantees with respect to the
specifications, features or capabilities of the Bundled Product(s) that are
inconsistent with the documentation and marketing literature distributed
therefor, including all warranties and disclaimers contained in such literature;
and (e) not distribute for any purpose any marketing materials, packaging or
other material bearing Metrowerks Marks or Lineo Marks which have not been first
approved by Metrowerks or Lineo, respectively.
8. CONFIDENTIALITY
Pursuant to this Agreement, the parties may provide each other with
Confidential Information. Both parties agree that they shall not disclose
Confidential Information of the other party to any third party, and shall not
use such Confidential Information in any manner except as authorized under this
Agreement. The party receiving Confidential Information from the other party
shall use the same degree of care as it uses to protect its own Confidential
Information of like nature, but in no event less than reasonable care, to
maintain the confidentiality of the other party's Confidential Information. The
parties recognize and agree that the use or disclosure of any Confidential
Information of a party in a manner inconsistent with the provisions of this
Agreement may cause such party irrevocable damage for which adequate remedy at
law will not be available. Accordingly, each of the parties shall be entitled to
seek temporary and/or permanent injunctive relief against such breach or
violation from any court of competent jurisdiction immediately upon request. The
right of each of the parties to seek injunctive relief shall not limit in any
manner their respective rights to seek other and/or additional remedies at
14
law or in equity. A party may make disclosures of the other party's Confidential
Information required by court order provided that the party (a) uses diligent
efforts to limit disclosure, (b) uses diligent efforts to obtain confidential
treatment or a protective order, and (c) allows the other party to participate
in the proceeding.
9. REPRESENTATIONS AND WARRANTIES
9.1 REPRESENTATIONS AND WARRANTIES OF METROWERKS. Metrowerks represents,
warrants and agrees that:
(a) To the best of its knowledge, it has sufficient rights to market
CodeWarrior Software and is the owner of the Metrowerks Marks as contemplated
under this Agreement; and
(b) Metrowerks provides, to Customers only, the warranties for the
CodeWarrior Software component of the Bundled Product(s) set forth in the
Metrowerks End User License Agreement. Lineo is responsible for providing a copy
of the Metrowerks End User License Agreement to Lineo Customers licensing the
Bundled Product(s) for their review at the time of acquisition or installation
of the Bundled Product(s). Metrowerks does not warrant non-Metrowerks products,
which are provided by Metrowerks on an "AS IS" basis. Any warranty service for
non-Metrowerks products will be provided by the manufacturer of the products in
accordance with the applicable manufacturer's warranty.
9.2 REPRESENTATIONS AND WARRANTIES OF LINEO. Lineo represents, warrants
and agrees that:
(a) to the best of its knowledge, it has the right to market the
Lineo Software and is the owner of the Lineo Marks as contemplated under this
Agreement;
(b) Lineo's license to third parties of Lineo Software does not
violate the GNU General Public License. Lineo Software includes modules that are
subject to the GNU General Public License and includes modules that are not
subject to the GNU General Public License but instead are licensed by Lineo as
proprietary products of Lineo. None of the modules licensed by Lineo as
proprietary products of Lineo, including, without limitation, the Embedix
Browser, the "Target Wizard" module of Embedix SDK, and the "High Availability
Solution," are required to be licensed under the GNU General Public License; and
(c) Lineo provides, to Customers only, (i) the warranties for the
Lineo Software component of the Bundled Product(s) set forth in the Lineo End
User License Agreement and (ii) the warranties for the Lineo Software as a stand
alone product in the Lineo End User License Agreement. Metrowerks is responsible
for providing (x) a copy of the Lineo End User License Agreement to Metrowerks
Customers licensing the Bundled Product(s) for their review at the time of
acquisition or installation of the Bundled Product(s) and (y) a copy of the
Lineo End User License Agreement to Metrowerks Customers licensing the Lineo
Software as a stand alone product for their review at the time of acquisition or
installation of the Lineo Software. Lineo does not warrant non-Lineo products,
which are provided by Lineo on an "AS IS" basis. Any warranty service for
non-Lineo products will be provided by the manufacturer of the products in
accordance with the applicable manufacturer's warranty.
15
(d) REPRESENTATIONS AND WARRANTIES OF METROWERKS AND LINEO. Each
party to this Agreement hereby represents and warrants to the other that: (i) it
has the right, corporate power and authority to enter into this Agreement and to
fully perform all its obligations hereunder, including the right to grant all
licenses to the full extent and scope granted herein; (ii) the execution,
delivery and performance of this Agreement requires no action by or in respect
of, or filing with, any governmental body, agency, official or authority; and
(iii) the execution, delivery and performance of this Agreement does not and
will not (A) contravene or conflict with its corporate charter or bylaws, (B)
contravene or conflict with any provision of any law, regulation, judgment,
injunction, order or decree binding upon it or (C) violate any agreement
existing between it and any third party.
9.3 WARRANTY DISCLAIMER. EXCEPT AS SET FORTH IN THIS SECTION 9, THE
PARTIES DISCLAIM ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, WITHOUT
LIMITATION, ANY WARRANTIES AS TO SUITABILITY OR MERCHANTABILITY OR FITNESS FOR
ANY PARTICULAR PURPOSE.
10. LIMITATION OF LIABILITY
10.1 INCIDENTAL AND CONSEQUENTIAL DAMAGES. EXCEPT FOR DAMAGES ARISING OUT
OF LINEO'S BREACH OF THE REPRESENTATION AND WARRANTY IN SECTION 9.2(B) ABOVE,
NEITHER PARTY WILL BE LIABLE UNDER ANY CONTRACT, NEGLIGENCE, STRICT LIABILITY OR
OTHER THEORY TO THE OTHER PARTY FOR ANY INDIRECT, INCIDENTAL, CONSEQUENTIAL OR
PUNITIVE DAMAGES (INCLUDING, WITHOUT LIMITATION, LOST PROFITS) WITH RESPECT TO
ANY SUBJECT MATTER OF THIS AGREEMENT.
10.2 LIMITATION OF OBLIGATIONS AND LIABILITY. EXCEPT FOR AMOUNTS ARISING
OUT OF LINEO'S BREACH OF THE REPRESENTATION AND WARRANTY IN SECTION 9.2(B)
ABOVE, NEITHER PARTY WILL BE LIABLE TO THE OTHER PARTY WITH RESPECT TO ANY
SUBJECT MATTER OF THIS AGREEMENT UNDER ANY CONTRACT, NEGLIGENCE, STRICT
LIABILITY OR OTHER THEORY FOR LOST DATA, COST OF PROCUREMENT OF SUBSTITUTE
GOODS, SERVICES, TECHNOLOGY OR RIGHTS OR FOR ANY AMOUNTS AGGREGATING IN EXCESS
OF AMOUNTS PAID TO THE OTHER PARTY PURSUANT TO SECTION 5 OF THIS AGREEMENT IN
THE TWELVE (12) MONTH PERIOD BEFORE THE CAUSE OF ACTION AROSE.
11. INDEMNIFICATION
11.1 BY METROWERKS. Metrowerks agrees to defend Lineo and, to the extent of
payments made by Lineo under this Agreement, to indemnify and hold Lineo
harmless from any and all third-party claims, actions, demands and related
damages, liabilities, costs and expenses resulting from charges or allegations
that CodeWarrior Software or a Metrowerks Mark appropriately used, sold or
distributed by Lineo infringes any U.S. patent, U.S. trademark, U.S. trade
secret or U.S. copyright of any third party. Lineo shall permit Metrowerks to
replace or modify any CodeWarrior Software component of an Bundled Product(s)
affected so as to avoid infringement or to procure the right for Lineo to
continue use and marketing of such items. If
16
neither alternative is possible or commercially reasonable in Metrowerks sole
determination, the infringing items shall be returned to Metrowerks, whose sole
liability shall be to refund CodeWarrior Software Royalties paid by Lineo for
the affected copies of the CodeWarrior Software component of the Bundled
Product(s). Metrowerks shall have no liability for infringement based on (a) the
Lineo Software; (b) the use, sale or distribution of other than the current
release of the Bundled Product(s), (c) modification of the Bundled Product(s) by
any party other than Metrowerks, (d) the combination or use of the Bundled
Product(s) with any other computer program, equipment, product, device, item or
process not furnished by Metrowerks if such infringement would have been avoided
by the use of the Bundled Product(s) alone and in its current unmodified form,
or (e) other acts of Lineo.
THE ABOVE STATES THE ENTIRE LIABILITY OF METROWERKS WITH RESPECT TO INFRINGEMENT
OF PATENTS, COPYRIGHTS, TRADEMARKS OR ANY OTHER FORM OF INTELLECTUAL PROPERTY
RIGHT BY ANY PRODUCT SUPPLIED BY METROWERKS.
11.2 BY LINEO. Lineo agrees to indemnify, defend and hold Metrowerks
harmless from and against any and all third-party claims, actions, demands, and
related damages, liabilities, costs and expenses resulting from (a) the breach
of Lineo's representation and warranty in Section 9.2(b) above and (b) charges
or allegations that the Lineo Software or a Lineo Mark appropriately used, sold
or distributed by Metrowerks infringes any U.S. patent, U.S. trademark, U.S.
trade secret or U.S. copyright of any third party. Metrowerks shall permit Lineo
to replace or modify any Lineo Software affected so as to avoid infringement or
to procure the right for Metrowerks 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 Lineo
Software Royalties paid by Metrowerks for the affected copies of the Lineo
Software. Lineo shall have no liability for infringement based on (i)
CodeWarrior Software, (ii) the use, sale or distribution of other than the
current release of the Bundled Product(s) or Lineo Software, as applicable,
(iii) modification of the Bundled Product(s) or Lineo Software, as applicable,
by any party other than Lineo, (iv) the combination or use of the Bundled
Product(s) or Lineo Software, as applicable, 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 Bundled Product(s) or
Lineo Software, as applicable, alone and in their current unmodified form, or
(v) other acts of Metrowerks.
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.
11.3 GENERAL CONDITIONS TO INDEMNITY RIGHTS. The forgoing rights and
obligations of indemnity are conditioned on (a) prompt written notification from
the indemnified party to the indemnifying party of the claim for which indemnity
is sought, (b) sole control in the indemnifying party of the defense of any
action and all negotiations for settlement and compromise, and (c) 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.
17
12. TECHNICAL SUPPORT
Metrowerks and Lineo shall provide technical support for the Bundled
Product(s) in accordance with the Technical Support Agreement to be entered into
between the parties.
13. MISCELLANEOUS
13.1 ASSIGNMENT. Neither party may assign any of its rights or obligations
hereunder without the prior written consent of the other party. Any assignment
attempted or contemplated in violation hereof shall be null and void.
13.2 AMENDMENT AND WAIVER. Except as otherwise expressly provided herein,
any provision of this Agreement may be amended and the observance of any
provision of this Agreement may be waived (either generally or any particular
instance and either retroactively or prospectively) only with the written
consent of both parties.
13.3 GOVERNING LAW AND LEGAL ACTIONS. This Agreement shall be governed by
and construed under the laws of the State of Texas without regard to conflicts
of laws provisions thereof and without regard to the United Nations Convention
on Contracts for International Sales of Goods.
13.4 DISPUTE RESOLUTION. The parties hereto 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.
13.5 ATTORNEYS' FEES. If either Metrowerks or Lineo 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 attorneys' fees.
13.6 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 11 of this
Agreement.
13.7 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.
13.8 PUBLIC ANNOUNCEMENTS AND PROMOTIONAL MATERIALS. Metrowerks and Lineo
shall cooperate with each other to issue a joint press release and/or to enable
each party to
18
issue and post to its website 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 approval by both parties prior
to publication of such release. Each party shall have the right to use the other
party's name as a customer reference.
13.9 EMPLOYEES. Metrowerks and Lineo agree that, during the Term of this
Agreement and for a period of twelve (12) months after its termination or
expiration (the "RESTRICTED PERIOD"), neither shall solicit for employment or
retain to perform work in any capacity the technical and managerial employees of
the other (the "RESTRICTED EMPLOYEE(S)") or otherwise interfere with the
employment relationships existing between the other and the Restricted
Employees. If during the Restricted Period, Metrowerks or Lineo, hereinafter,
the "RETAINING PARTY") hires or otherwise retains a Restricted Employee employed
or formerly employed by the other (hereinafter, the "EMPLOYING PARTY"), the
Retaining Party shall pay to the Employing Party a cash fee of $100,000, or one
year of the Restricted Employee's salary immediately prior to the Restricted
Employee's departure, whichever is greater (the "CASH FEE"). However, no Cash
Fee shall be required if the Retaining Party can demonstrate to the satisfaction
of the Employing Party that (a) no active solicitation of such Restricted
Employee occurred, either directly or indirectly, by the Retaining Party and (b)
the Restricted Employee in question intended to leave the Employing Party's
employ regardless of any offer he or she received from the Retaining Party. The
Employing Party shall not unreasonably refuse to accept evidence that these
conditions have been met.
13.10 HEADINGS. Headings and captions are for convenience only and are not
to be used in the interpretation of this Agreement.
13.11 NOTICES. Notices under this Agreement shall be sufficient only if
personally delivered, delivered by a major commercial rapid delivery or courier
service with tracking capabilities, transmitted by confirmed facsimile with copy
of facsimile mailed or mailed by certified or registered mail, return receipt
requested to a party at its addresses set forth on the signature page of this
Agreement or as amended by notice pursuant to this subsection. If not received
sooner, notice by mail shall be deemed received seven (7) days after deposit in
the U.S. or foreign country mails.
13.12 RELATIONSHIP OF THE PARTIES. There is no joint venture, partnership,
agency or fiduciary relationship existing between the parties, and the parties
do not intend to create any such relationship by this Agreement.
13.13 ENTIRE AGREEMENT. This Agreement, including the schedules hereto (as
such schedules may be amended from time to time upon the mutual agreement of the
parties), supersedes all proposals, oral or written, all negotiations,
conversations, or discussions between or among the parties relating to the
subject matter of this Agreement and all past dealing or industry custom. This
Agreement shall supersede the Reseller Agreement between Metrowerks and Lineo
dated May 3, 2000.
13.14 FORCE MAJEURE. Neither party hereto shall be responsible for any
failure to perform its obligations under this Agreement (other than obligations
to pay money or obligations under Section 8) if such failure is caused by acts
of God, war, strikes, revolutions, lack or failure
19
of transportation facilities, failure of telecommunications, fire, laws or
governmental regulations or other causes which are beyond the reasonable control
of such party. Obligations hereunder, however, shall in no event be excused but
shall be suspended only until the cessation of any cause of such failure, and
the corresponding obligations of the other party (including, notwithstanding the
above, payment obligations) shall be similarly suspended. In the event that such
force majeure should obstruct performance of this Agreement for more than thirty
(30) days, the parties hereto shall consult with each other to determine whether
this Agreement should be terminated. The party facing an event of force majeure
shall use its best endeavors in order to remedy that situation as well as to
minimize its effects. The party facing such event of force majeure shall notify
the other party by telefax immediately after its occurrence, to be promptly
confirmed by written notice.
13.15 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.
13.16 COUNTERPARTS. This Agreement may be executed in counterparts, each of
which shall be deemed an original, but all of which together shall constitute
one and the same instrument.
13.17 COMPLIANCE WITH LAWS. The parties hereto shall comply, each 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 their performance under this Agreement.
13.18 CURRENCY REFERENCE. All references to dollars and payments to be made
herein shall be references to United States dollars calculated as of the first
business day of the applicable month unless expressly stated otherwise in the
applicable provision.
13.19 BARGAINED FOR BASIS. Each party specifically acknowledges and agrees
that the warranty disclaimers and liability and remedy limitations set forth in
this Agreement are material bargained for bases of this Agreement and that they
have been taken into account and reflected in determining the consideration to
be given by each party under this Agreement and in the decision by each party to
enter into this Agreement.
[Signature page follows]
20
IN WITNESS WHEREOF, the parties have executed this Agreement as of the
Effective Date. All signed copies of this Agreement shall be deemed originals.
METROWERKS
By:
-------------------------------------
Name:
-----------------------------------
Title:
----------------------------------
Address:
- ----------------------------------------
- ----------------------------------------
Phone:
----------------------------------
Facsimile:
------------------------------
LINEO, INC.
By:
-------------------------------------
Name:
-----------------------------------
Title:
----------------------------------
Address:
- ----------------------------------------
- ----------------------------------------
Phone:
----------------------------------
Facsimile:
------------------------------
21
SCHEDULE A
CODEWARRIOR SOFTWARE AND LINEO SOFTWARE
CODEWARRIOR SOFTWARE:
PRODUCT PRODUCT NUMBER
CodeWarrior for PPC CE-PPC5
CodeWarrior for MCORE CE-MCORE12
CodeWarrior for ColdFire CE-68K2
LINEO SOFTWARE:
PRODUCT PART NUMBER
Embedix Linux EML10-3012
Embedix Browser EMB10-3012
Embedix SDK SDK10-3012
Embedix PDA
* The SKU for academic editions is the standard SKU with "A" as a suffix.
The parties acknowledge and agree that additional products may be added to this
Schedule A upon mutual agreement of the parties.
22
SCHEDULE B
PROJECT GUIDELINES
Lineo will provide training for board support development to assist the
Metrowerks team in developing board support packages (BSP) for new boards.
Phase I - January 2001
I. Metrowerks Development Effort
1. Process/Application level debugging support - Metrowerks will implement
support for debugging of Lineo applicatons/processes for x86 and PowerPC
targets hosted on Linux.
2. GCC will be integrated into the IDE - Metrowerks will integrate the GNU
assembler, compiler and linker into the Metrowerks IDE hosted on Linux.
3. Target Wizard and Trace Toolkit support - Metrowerks will provide the APIs
necessary for Lineo Target Wizard and the Lineo Trace Toolkit application
to launch from a menu or button on the IDE toolbar.
II. Lineo Development Effort
1. Target Wizard support - Lineo will provide the Target Wizard for building
the Lineo kernel and Linux distribution for current and future BSPs hosted
on Linux. The Target Wizard will be hosted on Linux and will use an Linux
emulation solution on Windows.
2. Embedix SDK- Lineo will provide the Embedix SDK for PowerPC and x86
targets. The SDK will include information for developing: initialization
code, the flash boot loader (as appropriate for the target), device
drivers, and the Lineo Real-Time Environment (as appropriate for the
target) and documentation for end-users. The SDK will also provide kernel
source, PTRACE interface to the OS, and remote GDB (RGDB) operability.
3. Board Support Packages - Lineo will provide BSPs for all current and future
target boards with Real-Time Environment (as appropriate for the target
board).
4. GNU tools - Lineo will provide the GNU toolset for PowerPC and x86 targets
hosted on Linux which will enable kernel and application development.
5. Trace Toolkit support - Lineo will provide the Lineo Trace Toolkit for x86
targets hosted on Linux.
Phase II - April 2001
I. Metrowerks Development Effort
23
1. Process/Application level debugging support - Metrowerks will implement
support for debugging of Lineo applicatons/processes for x86 and PowerPC
targets hosted on Windows and Solaris.
2. GCC will be integrated into the IDE - Metrowerks will integrate the GNU
assembler, compiler and linker into the Metrowerks IDE hosted on Windows
and Solaris.
3. Kernel level debugging support - Metrowerks will provide kernel level
debugging support using RGDB protocol for x86 and PowerPC targets
integrated with CodeWarrior for Lineo PowerPC and x86 hosted on Windows and
Solaris. This effort is predicated on Lineo's implementation of Kernel
level debugging support for x86 and PowerPC hosted on Linux.
II. Lineo Development Effort
1. GNU tools - Lineo will provide the GNU toolset for PowerPC and x86 targets
hosted on Windows and Solaris which will enable kernel and application
development.
2. Kernel level debugging support - Lineo will provide kernel level debugging
support using RGDB protocol for x86 and PowerPC targets integrated with
CodeWarrior for PowerPC and x86 hosted on Linux.
3. GNU tools - Lineo will provide the GNU toolset for M*CORE targets hosted on
Windows, Solaris and Linux which will enable kernel and application
development.
4. Trace Toolkit support - Lineo will provide the Lineo Trace Toolkit for
PowerPC targets hosted on Linux.
Phase III - July 2001
I. Metrowerks Development Effort
1. Increased integration of Trace Toolkit into CodeWarrior - Metrowerks will
use reasonable efforts to improve the integration of the Lineo Trace
Toolkit into the CodeWarrior Software.
II. Lineo Development Effort
1. Target Wizard support - Lineo will provide the Target Wizard for building
the Lineo kernel distribution for current and future BSPs Hosted on Linux.
The Target Wizard will be hosted on Solaris and Windows native user
interface.
2. Increased integration of Trace Toolkit into CodeWarrior - Lineo will use
reasonable efforts to improve the integration of the Lineo Trace Toolkit
into the CodeWarrior Software.
24
Statement of Work
1. 8260 Board support package and RealTime
2. ANSI C kernel
3. Kernel level debug (RGDB)
4. Coldfire 5407 BSP (no realtime)
5. 8xx FADS BSP and RealTime
6. Sika board
Issues
1. Getting Windows and Solaris native versions of Target Wizard and Trace
Toolkit
2.
ACCEPTED AND AGREED TO AS OF _________________, 2000.
METROWERKS: LINEO:
By: By:
------------------------------- -------------------------------
Name: Name:
----------------------------- -----------------------------
Title: Title:
---------------------------- ----------------------------
Date: Date:
----------------------------- -----------------------------
25
SCHEDULE C
METROWERKS AND LINEO MARKS
AND TRADEMARK USE GUIDELINES
METROWERKS MARKS:
Metrowerks
CodeWarrior
Metrowerks logo with tagline (picture and guidelines attached as Schedule C-2)
LINEO MARKS:
Lineo
Embedix
uCLinux
Lineo "swirl" logo
Target Wizard
26
SCHEDULE C-1
METROWERKS CURRENT TRADEMARK USAGE POLICY
1. BUSINESS PRACTICES Lineo covenants to Metrowerks that it shall:
1.1 conduct its business with respect to the Bundled Product(s) in a
manner that reflects favorably at all times on the good name, goodwill and
reputation of Metrowerks;
1.2 avoid deceptive, misleading or unethical practices that are
detrimental to Metrowerks or Lineo Customers;
1.3 make no false or misleading representations with regard to Metrowerks,
CodeWarrior Software or the Bundled Product(s); and
1.4 not publish or employ or cooperate in the publication or employment of
any misleading or deceptive advertising or promotional materials.
27
2. APPROVAL OF COMBINATION MARKS Lineo shall submit all proposed combination
marks of the Metrowerks Marks with any other trademarks, trade names, company
names or designations of source (collectively the "COMBINATION MARKS") to
Metrowerks for Metrowerks' approval, which Metrowerks shall not unreasonably
withhold. Metrowerks shall have a period of twenty (20) business days to deliver
to Lineo its written approval or rejection of any such Combination Marks. Lineo
shall not use any Combination Mark unless and until Lineo receives Metrowerks'
written approval of such Combination Mark or until such approval is deemed to be
given.
3. TRADEMARK USAGE GUIDELINES Lineo agrees that it shall not use the
Metrowerks Marks or Combination Marks other than as permitted by this Agreement
and that it shall conform to the requirements of Metrowerks (including, but not
limited to, thorough compliance with Metrowerks' trademark usage guidelines as
such guidelines may be amended from time to time) in relation to the use of the
Marks and the Combination Marks and on advertising, marketing and promotional
materials for the Bundled Product(s).
4. NO SIMILAR MARKS In marketing the Bundled Product(s), Lineo agrees not to
use any other trademark, trade name, or other designation of source which
creates a likelihood of confusion with the Metrowerks Marks.
5. NO HARM TO MARKS Lineo agrees that it shall take such steps as are
reasonably necessary to ensure that neither it, nor any person under its control
(including, but not limited to, Lineo Customers), takes or causes to be taken
any action that brings Metrowerks or the Metrowerks Marks into disrepute.
6. SOLE USE OF MARKS Lineo agrees that it shall not make use of the Metrowerks
Marks or Combination Marks in relation to any goods or services other than the
Bundled Product(s) and advertising and promotional materials in support of the
Bundled Product(s).
7. QUALITY; AUDITS Lineo acknowledges and agrees that Metrowerks shall have
the right to audit any Lineo operations from time to time to determine whether
or not its use of the Metrowerks Marks is in compliance with the terms of this
Agreement. In the event that Metrowerks reasonably determines that Lineo's use
of any Metrowerks Mark is not in compliance with the terms of this Agreement,
Metrowerks shall notify Lineo in writing of such determination, which notice
shall describe in reasonable detail the nature of such noncompliance. Upon
receiving such notice, Lineo shall have sixty (60) days to cure such
noncompliance. If Lineo has not cured such noncompliance within such sixty (60)
day period, Metrowerks may, by written notice to Lineo, suspend or terminate
Lineo's rights to use the affected Metrowerks Mark or all Metrowerks Marks. If
Lineo shall not have cured the noncompliance within an additional thirty (30)
days after receiving the notice referred to in the preceding sentence,
Metrowerks may, by written notice to Lineo, suspend or terminate Lineo's right
to distribute the Bundled Product(s).
8. REGISTRATION Lineo agrees that it shall not, directly or indirectly, in any
country or governing body, apply to register in its own name, or otherwise
attempt to acquire any legal interest in or right in or to, any Metrowerks Mark
or Combination Mark.
28
9. INFRINGEMENT OF INTELLECTUAL PROPERTY RIGHTS Lineo agrees that it shall
promptly notify Metrowerks of any infringement or threatened infringement of
which Lineo becomes aware relating to any Metrowerks Mark. Any legal proceedings
instituted by Metrowerks in respect of an infringement or threatened
infringement of any Metrowerks Mark will be conducted at the Metrowerks' sole
expense, provided that Lineo, if requested to do so, shall join in and fully
co-operate at Metrowerks' expense in the conduct of such proceedings, including,
without limitation, making available to Metrowerks all information and
particulars relating to such infringement in the possession of Lineo and its
employees. All recoveries in any such proceeding shall belong solely to
Metrowerks.
10. TRADEMARK UNAVAILABILITY In the event that any Metrowerks Mark ceases to be
available for use in respect to the Bundled Product(s), except as the event
arises due to the action or inaction of Lineo, Lineo, as its sole remedy, shall
be released from any obligations to take any action in respect of or apply in
any manner such Metrowerks Mark unless and until the same becomes available for
such use.
29
SCHEDULE C-2
GRAPHICS GUIDELINES FOR METROWERKS LOGO WITH TAGLINE
[ATTACH DOCUMENT IN PDF FILE FROM METROWERKS]
30
SCHEDULE C-3
LINEO CURRENT TRADEMARK USAGE POLICY
31
SCHEDULE D
LINEO END USER LICENSE AGREEMENT
LINEO EMBEDIX SDK END USER LICENSE AGREEMENT
IMPORTANT-READ CAREFULLY: This Lineo Embedix SDK End User License Agreement
("EULA") is a legal agreement between you (either an individual or a single
entity) and Lineo, Inc. ("Lineo") governing your use of the enclosed or attached
software product, which includes computer software and associated documentation
("Software"). Lineo's Embedix SDK includes software from Lineo, as well as from
other companies and entities ("Third-Party Software"). Third-Party Software
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, do not use or install the Software and instead, 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. Subject to the provisions of this EULA as well as payment
of all applicable license fees, you are granted a limited, personal,
non-exclusive license to install, use, access, display, run, or otherwise
interact with ("Run") the Software, in machine-readable object code, solely
for internal business purposes on a single central processing unit ("CPU").
In addition, you may make one (1) copy of the Software, in machine-readable
object code, solely for your use pursuant to this Agreement.
2. LICENSE FEES. By using or installing the Software, you agree to pay to
Lineo a license fee calculated as the sum of an initial charge plus an
additional charge for each device distributed by you on which you install a
target image created in whole or in part with the Software. The fees are
set forth in a separate agreement between you and Lineo.
3. OTHER RIGHTS AND LIMITATIONS.
- - You agree to: (i) adopt and enforce internal policies, procedures and
monitoring mechanisms as are necessary to ensure that Software is used only
in accordance with the terms of this license, and (ii) take all steps
necessary to ensure that no person or entity will have unauthorized access
to the Software.
- - Limitations on Reverse Engineering, Decompilation, and Disassembly. You may
not modify, translate, reverse engineer, decompile, recompile, update or
disassemble all or any part of the Software, or merge the Software in to
any other software, except and only to the extent that such activity is
permitted by applicable law, the GNU General Public License or the
applicable Third-Party Software license.
32
- - Rental. You may not rent, lease, sell, sublicense, or lend the Software,
but may rent, lease, sell, sublicense, or lend Third-Party Software, to the
extent allowed by their individual licenses and only when the Third-Party
Software is distributed separately from 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.
4. COPYRIGHT. Lineo and its suppliers retain all ownership of the Software and
all copies thereof, provided, however, certain components of the Software
are components licensed under the GNU General Public License, which Lineo
supports. You may obtain a copy of the GNU General Public License at
www.fsf.org/copyleft/gpl.html. Lineo will provide source code for any of
the components of the Software that Lineo has licensed under the GNU
General Public License. To obtain such source code, send email to
embedix-support@lineo.com. You may make up to ten 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. EXPORT. 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 such
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.
33
6. GOVERNING LAW AND ATTORNEYS' FEES. This EULA is governed by the laws of the
State of Utah, USA, excluding its conflict of laws rules, 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 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.
7. ENTIRE AGREEMENT. This EULA constitutes the entire agreement between you
and Lineo with respect to the Software, and replaces all other 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.
8. SEVERABILITY. In the event that one or more of the provisions of this EULA
shall for any reason be held by any tribunal of competent jurisdiction to
be invalid, illegal or unenforceable, the remaining provisions of this
Agreement shall be unimpaired, and each invalid, illegal or unenforceable
provision shall be treated by the tribunal as modified to the least extent
necessary to rectify its invalidity, illegality or unenforceability and
shall be enforced as so modified.
9. LIMITED WARRANTY
LIMITED WARRANTY. For a period of ninety (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) any
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 entire liability and your exclusive remedy
arising from a breach of the Limited Warranty is, at Lineo's option, either
repair or replacement of 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 this remedy. Any replacement Software or Support Services will be
warranted for the remainder of the original warranty period or thirty (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. EXCEPT AS EXPRESSLY SET FORTH ABOVE, LINEO DISCLAIMS
ALL OTHER WARRANTIES, WHETHER ORAL OR
34
WRITTEN, EXPRESS OR IMPLIED, CONCERNING THE SOFTWARE OR THE APPLICATION,
OPERATION OR USE THEREOF, THE DATA GENERATED BY THE OPERATION OR USE
THEREOF, OR ANY SUPPORT SERVICES RENDERED WITH RESPECT TO THERETO. LINEO
HEREBY EXCLUDES ALL IMPLIED WARRANTIES TO THE EXTENT PERMITTED BY LAW,
INCLUDING, SPECIFICALLY, ANY IMPLIED WARRANTY ARISING BY STATUTE OR
OTHERWISE IN LAW OR FROM A COURSE OF DEALING OR USAGE OF TRADE. LINEO
HEREBY EXCLUDES ALL IMPLIED WARRANTIES OF MERCHANTABILITY, OR OF
MERCHANTABLE QUALITY, OR OF FITNESS FOR A PARTICULAR PURPOSE, PARTICULARLY,
SPECIFIC OR OTHERWISE, OR OF NON-INFRINGEMENT, WITH REGARD TO THE SOFTWARE.
THIS WARRANTY GIVES YOU SPECIFIC LEGAL RIGHTS. YOU MAY HAVE OTHERS, WHICH
VARY FROM JURISDICTION TO JURISDICTION.
THIS SOFTWARE IS NOT FAULT TOLERANT. You acknowledge that you have
independently verified that the Software is appropriate for the purposes
for which you intend to use it, that you have not relied upon any skill or
judgment of Lineo in such selection, and that Lineo has relied on you to
conduct sufficient testing to determine that the Software is suitable for
such use. You assume the entire risk related to the use of this Software.
REGARDLESS OF WHETHER ANY REMEDY SET FORTH HEREIN FAILS OF ITS ESSENTIAL
PURPOSE OR OTHERWISE, YOU FURTHER AGREE THAT LINEO SHALL NOT BE LIABLE TO
YOU OR ANY OTHER PERSON OR ENTITY FOR DAMAGES IN THE FORM OF CONSEQUENTIAL,
INCIDENTAL OR SPECIAL DAMAGES, LOST PROFITS, LOST SAVINGS, BUSINESS
INTERRUPTION, LOSS OF BUSINESS OR CONFIDENTIAL INFORMATION, LOSS OF
GOODWILL OR OTHERWISE, OR FOR EXEMPLARY DAMAGES, RESULTING FROM YOUR USE OF
OR INABILITY TO USE THE SOFTWARE OR FROM ANY SUPPORT SERVICES RENDERED WITH
RESPECT THERETO, EVEN IF LINEO HAS 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.
If 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.
35
SCHEDULE E
METROWERKS END USER LICENSE AGREEMENT
Metrowerks Software License Agreement
THIS METROWERKS SOFTWARE LICENSE AGREEMENT ("LICENSE") IS AN AGREEMENT BETWEEN
YOU AND METROWERKS CORPORATION ("METROWERKS"). METROWERKS IS WILLING TO LICENSE
THE ENCLOSED SOFTWARE TO YOU ONLY UPON THE CONDITION THAT YOU ACCEPT ALL OF THE
TERMS CONTAINED IN THIS LICENSE. PLEASE READ THIS LICENSE CAREFULLY BEFORE USING
THE SOFTWARE, AS BY USING THE SOFTWARE YOU INDICATE THAT YOU AGREE TO BE BOUND
BY THE TERMS OF THIS LICENSE. IF YOU DO NOT AGREE TO THE TERMS OF THIS LICENSE,
METROWERKS IS UNWILLING TO LICENSE THE SOFTWARE TO YOU, AND YOU SHOULD PROMPTLY
RETURN THE UNUSED SOFTWARE TO THE PLACE WHERE YOU OBTAINED IT AND YOUR MONEY
WILL BE REFUNDED.
1. Grant of License. The application, demonstration, system and all other
software accompanying this License, whether on CD-ROM or any other media (the
"Software") and the related documentation are licensed to you by Metrowerks
according to the terms of this License. If you purchased or otherwise received
this Software packaged with any other host-platform versions of the same
software (e.g., a Macintosh(R)-hosted version with a Windows(R)-hosted version),
all such host-platform versions together shall constitute the "Software" for
purposes of this License. This License allows you to use each host-platform
version of the Software on a single computer corresponding to that host-platform
version, provided that you are the only individual using the Software. You may
also use a copy of the Software on a home or portable computer for each
host-platform, as long as that extra copy is never running at the same time the
Software is running on the primary computer for each host-platform on which you
use the Software. You may make one additional copy of the Software in the form
in which it is provided to you, only for backup purposes. You must reproduce on
all copies you make of the Software the Metrowerks copyright notice and any
other proprietary legends that are on the original copy of the Software. You may
also transfer to another party all your license rights in the Software and
related documentation by transferring to that party both the original media on
which the Software and related documentation were provided and a copy of this
License, provided that the other party reads and agrees to accept the terms and
conditions of this License. Immediately upon transfer, you have no further
rights to use or own copies of the Software or related documentation and must
destroy all copies in your possession or control. If this Software includes more
than one host-platform version, then any such transfer must include all
host-platform versions together. You may not transfer one host-platform version
alone without the other host-platform versions. If this Software is an upgrade
to a prior version, then you must be licensed to use the prior version of the
Software in order to exercise the license rights granted hereunder, and any
transfer of the Software must include all prior versions of the Software. If you
are a corporation or other organization, you must designate one individual to
have the rights provided herein.
36
2. Restrictions. The Software contains copyrighted material, trade secrets,
and other proprietary material of Metrowerks and its licensors. You agree that
in order to protect those proprietary materials, except as expressly permitted
by applicable legislation, you will not decompile, reverse engineer, disassemble
or otherwise reduce all or any part of the Software to human-readable form
unless Metrowerks provided it to you in human-readable form. You may not modify,
rent, lease, loan, distribute or create derivative works based upon the Software
in whole or in part, except as expressly permitted in Section 3. If the Software
is labeled as an academic version or is otherwise licensed to you for academic
use, you may not use the Software for commercial product development, but you
may use the Software to develop freeware or shareware. If the Software licensed
to you is part of the Discover Programming series or is labeled as a Learning
Edition, Evaluation Edition or Lite version, you may not use the Software to
develop any product for distribution, whether commercial, freeware, or
shareware. No press releases or any other public announcements regarding this
Software shall be made without the written consent of Metrowerks.
3. Software Modification and Redistribution. Appendix A to this License lists
the specific portions of the Software which you may distribute according to the
terms of this License ("Distributable Code"). If Metrowerks has provided
Distributable Code to you in human-readable form, you may modify the
Distributable Code and the resulting modifications will also be considered
Distributable Code. In order to protect Metrowerks' and Metrowerks' licensors'
intellectual property rights in the Software, you may modify and distribute
Distributable Code only according to the following terms: You may distribute
Distributable Code only in executable object code form and only as incorporated
into application programs you create using the Software and which have
substantial value in addition to the Distributable Code. You may distribute
Distributable Code incorporated in such applications to end users directly or
indirectly through dealers, distributors, VARs, OEMs and other relicensors, but
all distribution, whether to end users or relicensors, must be made pursuant to
a valid written agreement that is at least as protective of Metrowerks' and
Metrowerks' licensors' rights as this License. In no event shall you expand or
attempt to expand Metrowerks' warranty or other obligations for any portion of
the Software beyond those obligations set forth in this License nor extend those
obligations to end users or relicensors of your applications. Last, you must
reproduce on each copy of such applications a copyright notice that clearly
states: "Copyright (c) by [Licensee Name] and its Licensors." Under no
circumstances are you permitted to distribute any portions of the Software not
listed on Appendix A, nor to distribute any portions of the Software (including
those listed on Appendix A) in human-readable form, unless (i) specific license
terms that may accompany such portions of the Software on the media containing
the Software expressly authorize you to distribute such portions of the
Software, in object code or human-readable form as the case may be, or (ii) you
have express written authorization from an authorized officer of the company
which owns that portion of the Software. In the event you distribute such
portions of the Software based upon express authorization by one of the two
means stated, you must adhere strictly to the specific terms of such
authorization in addition to the terms of this license. You agree to indemnify
and hold Metrowerks harmless from any damages, costs, or expenses Metrowerks may
suffer as a result of your distribution, under either of the forms of permission
described in the previous sentence, of any portion of the Software owned by a
third party.
4. Ownership. The Software and documentation are licensed, not sold, to you
for use only under the terms of this License, and Metrowerks reserves all rights
not expressly granted to you in this
37
License. You own the media on which the Software and documentation are recorded
but Metrowerks and/or Metrowerks' licensors retain title to the Software and
related documentation, and all intellectual property rights therein.
5. Termination. This License is effective until terminated. You may terminate
this License at any time by destroying all copies of the Software and related
documentation in your possession or control. This License will terminate
immediately without notice from Metrowerks if you fail to comply with any
provision of this License. Upon termination you must destroy all copies of the
Software and related documentation in your possession or control.
6. Export Law Assurances. You agree and certify that neither the Software nor
any other technical data received from Metrowerks, nor the direct product
thereof, will be exported outside the United States except as authorized and as
permitted by the laws and regulations of the United States. If the Software has
been rightfully obtained by you outside of the United States, you agree that you
will not re-export the Software nor any other technical data received from
Metrowerks, nor the direct product thereof, except as permitted by the laws and
regulations of the United States and the laws and regulations of the
jurisdiction in which you obtained the Software.
7. Government End Users. If you are acquiring the Software and fonts on behalf
of any unit or agency of the United States Government, the following provisions
apply. The Software constitutes a "commercial item", as that term is defined at
48 C.F.R. 2.101, consisting of "commercial computer software" and "commercial
computer software documentation", as such terms are used in 48 C.F.R. 12.212,
and is provided to the U.S. Government only as a commercial end item. Consistent
with 48 C.F.R. 12.212 and 48 C.F.R. 227.7202-1 through 227.7202-4, all U.S.
Government End Users acquire the Software with only those rights set forth
herein.
8. Limited Warranty on Media. Metrowerks warrants the media on which the
Software is recorded to be free from defects in materials and workmanship under
normal use for a period of ninety (90) days from the date of purchase as
evidenced by a copy of the receipt. Metrowerks' entire liability and your
exclusive remedy will be replacement of the media not meeting Metrowerks limited
warranty returned to Metrowerks with a copy of the receipt. Metrowerks will have
no responsibility to replace any media damaged by accident, abuse or
misapplication. ANY IMPLIED WARRANTIES ON THE MEDIA, INCLUDING THE IMPLIED
WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE, ARE LIMITED
IN DURATION TO NINETY (90) DAYS FROM THE DATE OF DELIVERY. THIS WARRANTY GIVES
YOU SPECIFIC LEGAL RIGHTS, AND YOU MAY ALSO HAVE OTHER RIGHTS WHICH VARY BY
JURISDICTION.
9. Disclaimer of Warranty. THE SOFTWARE, RELATED DOCUMENTATION, ANY
APPLICATIONS CREATED WITH THE SOFTWARE ARE PROVIDED "AS IS" AND WITHOUT WARRANTY
OF ANY KIND. YOU EXPRESSLY ACKNOWLEDGE AND AGREE THAT USE OF THE SOFTWARE AND
RELATED DOCUMENTATION IS AT YOUR SOLE RISK. SHOULD THE SOFTWARE OR RELATED
DOCUMENTATION PROVE DEFECTIVE, YOU (AND NOT METROWERKS OR ANY METROWERKS
REPRESENTATIVE) ASSUME THE ENTIRE COST OF ALL NECESSARY SERVICING,
38
REPAIR OR CORRECTION. METROWERKS AND METROWERKS' LICENSORS (FOR THE PURPOSES OF
THIS SECTION 9, METROWERKS AND METROWERKS' LICENSORS SHALL BE COLLECTIVELY
REFERRED TO AS "METROWERKS") EXPRESSLY DISCLAIM ALL OTHER WARRANTIES WITH
RESPECT TO THE SOFTWARE AND RELATED DOCUMENTATION, WHETHER SUCH WARRANTIES ARE
EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF
MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NONINFRINGEMENT. WITHOUT
LIMITING THE GENERALITY OF THE FOREGOING, METROWERKS MAKES NO WARRANTY OR
REPRESENTATION THAT THE FUNCTIONS CONTAINED IN THE SOFTWARE WILL MEET YOUR
REQUIREMENTS, THAT THE OPERATION OF THE SOFTWARE WILL BE UNINTERRUPTED OR
ERROR-FREE, THAT DEFECTS IN THE SOFTWARE WILL BE CORRECTED, NOR WITH RESPECT TO
THE CORRECTNESS, ACCURACY, OR RELIABILITY OF THE SOFTWARE AND RELATED
DOCUMENTATION. METROWERKS DISCLAIMS ANY AND ALL EXPRESS OR IMPLIED WARRANTIES OF
ANY KIND, AND YOU EXPRESSLY ASSUME ALL LIABILITIES AND RISKS, FOR ANYONE' S USE
OR OPERATION OF ANY APPLICATION PROGRAMS YOU MAY CREATE WITH THE SOFTWARE. YOU
ACKNOWLEDGE AND AGREE THAT THE SOFTWARE HAS NOT BEEN DESIGNED, TESTED, OR
MANUFACTURED FOR USE IN DEVELOPING APPLICATIONS WHERE THE FAILURE, MALFUNCTION,
OR ANY INACCURACY OF THE APPLICATION CARRIES A RISK OF DEATH, SERIOUS BODILY
INJURY, OR DAMAGE TO TANGIBLE PROPERTY, INCLUDING, BUT NOT LIMITED TO, USE IN
FACTORY CONTROL SYSTEMS, MEDICAL DEVICES OR FACILITIES, NUCLEAR FACILITIES,
AIRCRAFT OR AUTOMOBILE NAVIGATION OR COMMUNICATION, EMERGENCY SYSTEMS, OR OTHER
APPLICATIONS WITH A SIMILAR DEGREE OF POTENTIAL HAZARD. NO ORAL OR WRITTEN
INFORMATION OR ADVICE GIVEN BY METROWERKS OR ANY OF ITS EMPLOYEES,
REPRESENTATIVES, OR RESELLERS SHALL CREATE ANY WARRANTY IN ADDITION TO THOSE
GIVEN HEREIN. SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF IMPLIED
WARRANTIES, SO THE ABOVE EXCLUSION MAY NOT APPLY TO YOU.
10. Limitation of Liability. UNDER NO CIRCUMSTANCES SHALL METROWERKS BE LIABLE
FOR ANY INCIDENTAL, SPECIAL OR CONSEQUENTIAL DAMAGES THAT RESULT FROM THE USE OR
INABILITY TO USE THE SOFTWARE OR RELATED DOCUMENTATION UNDER ANY THEORY,
INCLUDING CONTRACT, TORT, OR NEGLIGENCE, EVEN IF METROWERKS HAS BEEN ADVISED OF
THE POSSIBILITY OF SUCH DAMAGES. SOME JURISDICTIONS DO NOT ALLOW THE LIMITATION
OR EXCLUSION OF LIABILITY FOR INCIDENTAL OR CONSEQUENTIAL DAMAGES SO THE ABOVE
LIMITATION OR EXCLUSION MAY NOT APPLY TO YOU.
IN NO EVENT SHALL METROWERKS' TOTAL LIABILITY TO YOU FOR ALL DAMAGES, LOSSES,
AND CAUSES OF ACTION (WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE) OR
OTHERWISE) EXCEED THE AMOUNT PAID BY YOU FOR THE SPECIFIC LICENSE OF THE
SOFTWARE AND RELATED DOCUMENTATION TO WHICH THE LIABILITY IS RELATED.
39
11. Controlling Law and Severability. THIS LICENSE SHALL BE GOVERNED BY AND
CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE UNITED STATES AND THE STATE OF
CALIFORNIA, EXCEPT FOR ITS CONFLICT OF LAWS PRINCIPLES. If for any reason a
court of competent jurisdiction finds any provision of this License, or portion
thereof, to be unenforceable, that provision of the License shall be enforced to
the maximum extent permissible so as to effect the intent of the parties, and
the remainder of this License shall continue in full force and effect.
12. Complete Agreement. This License constitutes the entire agreement between
the parties with respect to the use of the Software and related documentation
and supersedes all prior or contemporaneous understandings or agreements,
written or oral, regarding such subject matter. No amendment to or modification
of this License will be binding unless in writing and signed by an authorized
officer of Metrowerks.
Should you have any questions or comments concerning this License, please do not
hesitate to contact Metrowerks Corporation at 9801 Metric Boulevard, Austin, TX,
78758, USA. attn: Warranty Information or by email: info@metrowerks.com
Appendix A - Redistribution Information for Metrowerks Software: Distributable
Code
The following list describes the portions of the Software that you may
incorporate into your own programs and distribute according to the terms of
Section 3 of the License. You may not incorporate into your programs nor
distribute any portion of the Software that is not listed here nor distribute
any portion of the Software in human-readable form unless you obtain express
permission to do so, as set forth in Section 3.
METROWERKS SOFTWARE AND REDISTRIBUTABLE LIBRARIES
* The Metrowerks Standard Library and sample code in object code form
* Metrowerks Target Resident Kernel (MetroTRK) in object code form
* The Metrowerks Runtime Libraries and sample code in object code form
Note: Licensees may not distribute the source code of the Metrowerks Standard
Library, Runtime Library, MetroTRK and serial libraries any derivative thereof,
or sample code thereto, without express written permission from an authorized
officer of Metrowerks Corp.
MICROSOFT SOFTWARE AND REDISTRIBUTABLE LIBRARIES
See the Microsoft License agreement on the CodeWarrior CD-ROM for information on
redistributable libraries and documents. (Windows host only.)
OTHER THIRD PARTY LIBRARIES
Licensee may not distribute other third party libraries contained in the
CodeWarrior CD-ROM, unless specific license terms that may accompany such
libraries expressly authorize the licensee
40
to distribute them to the customers of the licensee. In the event the licensee
distribute such third party libraries based upon express authorization, the
licensee must adhere strictly to the specific terms of such third party
licensee.
41
SCHEDULE F
INITIAL PRICING AND ROYALTY FEES
CODEWARRIOR SOFTWARE PRICING AND ROYALTY:
CURRENT ROYALTY
CURRENT PERCENTAGE
METROWERKS PRODUCT PRODUCT NUMBER SRP OF SRP
CodeWarrior for Lineo PPC CE-PPC5 **
CodeWarrior for Lineo MCORE CE-MCORE12 **
CodeWarrior for Lineo ColdFire CE-68K2 **
LINEO SOFTWARE PRICING AND ROYALTY:
CURRENT ROYALTY
LINEO PRODUCT PART NUMBER CURRENT SRP ACADEMIC SRP* PERCENTAGE OF SRP
Embedix Linux EML10-3012 **
Embedix Browser EMB10-3012 **
Embedix SDK SDK10-3012 **
Embedix PDA **
* The SKU for academic editions is the standard SKU with "A" as a suffix.
The parties acknowledge and agree that additional products may be added to this
Schedule F upon mutual agreement of the parties.
** MATERIAL HAS BEEN OMITTED PURSUANT TO A REQUEST FOR CONFIDENTIAL
TREATMENT, AND SUCH MATERIAL HAS BEEN FILED SEPARATELY WITH THE SEC.
42
SCHEDULE G
CURRENT AUTHORIZED LINEO DISTRIBUTORS
FOR THE BUNDLED PRODUCT
Blands
Cluster Infotech India
Datasafe Information Brazil
Danelec
DaiShin (with related joint venture)
Dia Semicon Systems
EDU Brokers
El-Com Corporation
First Technology Transfer Ltd. (Surrey, England)
Infotronic de Oriente
Jose Velez Computer Systems (Puerto Rico)
Kanematsu Semiconductor
Ofis Bilgisayar
Point Marketing
PosWare Group
Samsung (with related joint venture)
Schweers
Software House International
Sprint
Tabo Software
Versa Logic
2 Steps Back Computer
All Lineo subsidiaries
43