This SERVICES AGREEMENT (hereinafter the "Agreement") is made this 20th
day of September, 2004 by and between CodeWeavers, Inc., a Minnesota
having its principal office at 2356 University Avenue W, Suite 420, St. Paul,
, 55114 (herein "CodeWeavers"), and Gupta Technologies, LLC, a Delaware
limited liability having its principal office at 975 Island Drive, Redwood
Shores, CA, 94065 (herein "Purchaser").
WHEREAS, Purchaser is desirous of obtaining software consulting and
development services relating to the Wine Project from CodeWeavers to enable
Purchaser's software product(s) (hereafter the "Software") to run on the Linux
Operating System (hereinafter referred to as the "Services"); and
WHEREAS, CodeWeavers provides software development services pertinent to
The Wine Project, and is willing to offer consulting and development services to
Purchaser pursuant to the terms and conditions stated herein; and
NOW THEREFORE, in consideration of the promises, terms, and conditions
herein and other good and valuable consideration, Purchaser and CodeWeavers
agree as follows:
1. SERVICES. Purchaser agrees to purchase from CodeWeavers and CodeWeavers
agrees to perform during the Term of this Agreement, the services
described in individual Work Orders issued under this Agreement
("Services"). One goal of such Services is that CodeWeavers will enable
Purchaser's Software to run on Linux under CodeWeavers' CrossOver
software. Both parties understand that nothing in this Agreement
guarantees that Purchaser's Software will necessarily be able to run under
CrossOver or with Wine and/or will achieve desired levels of performance.
2. WARRANTIES AND REPRESENTATIONS REGARDING SERVICES. CodeWeavers hereby
represents and warrants the following regarding the Services to be performed
under this Agreement:
2.1. CodeWeavers is adequately trained to perform the Services requested
under Work Orders issued pursuant to this Agreement;
2.2. CodeWeavers will perform Services with reasonable diligence in a
professional and workmanlike manner, consistent with the generally
accepted standards in the software development industry and in
compliance with any and all applicable laws, rules and regulations.
3. PURCHASER OBLIGATIONS. Purchaser will provide CodeWeavers with sufficient
information, documentation, hardware, and software, as listed in Exhibit A
("Purchaser Requirements"), necessary for CodeWeavers to perform the
Services. Any hardware or software provided to CodeWeavers by Purchaser shall
remain the property of the Purchaser, and shall be returned to Purchaser upon
the termination of this Agreement. Purchaser shall also designate testing
resources (software developers and/or beta testers of Purchaser) to
participate in any testing required during the performance of Services.
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4. COMPENSATION FOR SERVICES. Individual Work Orders, including but not
limited to any Work Order regarding Services, shall be on a firm and fixed
price ("Fixed Price") basis unless the Work Order specifically provides for
work to be on a time and materials ("Time and Materials") basis. In the event
a Work Order for Time and Materials work contains a dollar limitation, GUPTA
shall not be liable (under any legal theory) for work in excess of such
limitation. CodeWeavers shall submit to Purchaser monthly invoices for all
Services performed pursuant to the Work Orders. Purchaser shall pay such
invoices within thirty (30) days following the receipt of the applicable
invoice. Unless otherwise agreed to in writing, CodeWeavers shall be
responsible for providing all necessary administrative or support services
required for performance under the Agreement, including, but not limited to,
secretarial, duplicating and office services/support. It is understood by
CodeWeavers that Purchaser is not obligated to pay CodeWeavers for any work
performed or expenses incurred unless expressly authorized in a Work Order or
other writing signed by Purchaser.
5. TAXES, BENEFITS AND LICENSES. CodeWeavers agrees that CodeWeavers is
solely responsible for the following with respect to its business and its
employees or agents: (a) the payment of all federal, state, and local taxes
and all appropriate deductions or withholdings, unless otherwise provided for
in a Work Order pursuant to this Agreement; (b) the payment or provision of
any unemployment insurance benefits, state disability benefits, vacation,
overtime or holiday pay, health, medical, dental or group insurance or any
pension or profit sharing; (c) obtaining any applicable business or other
commercial licenses; and (d) the hiring, firing, supervising and payment of
compensation or other benefits to any agent, independent contractor, employee
or assistant engaged by CodeWeavers (with the approval of Purchaser's Project
Manager) to perform any aspect of the Services.
6. STATUS OF PARTIES, INSURANCE. CodeWeavers shall be, and at all times
during this Agreement shall remain, an independent contractor vis-a-vis
Purchaser. Neither CodeWeavers nor its employees, if any, performing work
under this Agreement shall have any rights to Purchaser's usual employee
fringe benefits, including, but not limited to, workers' compensation
benefits, and in no event is any contract of agency or employment intended.
CodeWeavers shall maintain statutory worker's compensation insurance and,
whenever CodeWeavers or its employees, if any, are on Purchaser's or its
customer's premises, CodeWeavers shall maintain public liability insurance in
an amount of not less than One Million Dollars ($1,000,000.00) per
occurrence. CodeWeavers shall comply with all applicable laws concerning its
employees, if any, including but not limited to the Immigration Control Act
of 1986, Fair Labor Standards Act and applicable wage and hour laws.
CodeWeavers shall assume all responsibility and liability for the actions or
omissions of its employees, if any, performing work pursuant to this
7. OWNERSHIP. Any changes or enhancements made by CodeWeavers or Purchaser to
Purchaser's Software will remain the sole property of Purchaser. Any changes
or enhancements made to CodeWeavers' software will remain the sole property
of CodeWeavers. Notwithstanding the above, any changes or enhancements made
to open-source components of CodeWeavers' products will conform to the
licensing requirements for those respective components.
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8. SCOPE AND DURATION OF SERVICES. Specific assignments shall be authorized
under individual Work Orders issued by Purchaser. CodeWeavers will make
reasonable effort to conform to any Preliminary Scope of Services and
Preliminary Work Schedule set forth in the Work Orders. Any changes to any
Work Orders in respect to these matters will be agreed upon in writing by
both parties, and the Work Orders amended accordingly, before CodeWeavers
will perform any additional work.
9. OEM RIGHTS. Nothing in this Agreement grants Purchaser any rights
regarding rights of distribution or resale of any CodeWeavers' software
products. If both parties agree in a separate OEM agreement, Purchaser may
receive a non-exclusive license to bundle an OEM version of CrossOver with
Purchaser's Software, thereby allowing end users of the Software to run it
under Linux via CrossOver.
10. RECORDS. CodeWeavers shall keep records, in reasonable detail, of time
spent and tasks performed in connection with the Services hereunder and shall
make such records available to Purchaser upon request at reasonable times and
intervals in order to allow Purchaser to verify the correctness of invoices
submitted by CodeWeavers. Such records shall be maintained for one (1) year
after the date of the invoice to which the records relate.
11. INDEMNITY. CodeWeavers shall indemnify and hold Purchaser harmless from
any award of costs and damages against Purchaser and shall pay any settlement
costs for any action of infringement of any third party copyright, trade
secret or any other intellectual property right as a result of providing the
Services under this Agreement and not in combination with other items,
including modifications or enhancements not provided by CodeWeavers if the
infringement would not have occurred if such the other items were not
introduced; provided CodeWeavers is directly responsible for such
infringement and Purchaser permits CodeWeavers to defend, compromise or
settle same and gives CodeWeavers all available information, reasonable
assistance and authority to enable CodeWeavers to do so.
12. INFRINGEMENT WARRANTY. CodeWeavers warrants that any writings, proposals,
products, systems, improvements, or processes which CodeWeavers designs for
Purchaser or for Purchaser's customers in any work performed under this
Agreement will in no manner whatsoever infringe upon the trade secrets,
copyrights or trademarks of CodeWeavers or any third party.
13. TERM AND TERMINATION. Except as otherwise provided in this Agreement or
the Exhibits and Schedules attached hereto, the term of the Services tendered
during this Agreement shall be from the Effective Date of this Agreement and
extend for one (1) year thereafter unless earlier terminated as provided
hereunder (the "Term"). Purchaser shall have the right to terminate this
Agreement, or any Services under this Agreement, at any time upon twenty (20)
days notice. CodeWeavers may terminate this Agreement by giving Purchaser
written notice, such termination to be effective upon completion of any and
all outstanding Services. Termination of this Agreement will not entitle
Purchaser to any refund or discharge Purchaser of payment obligations accrued
as of the date of termination, even if such obligation is payable after the
termination date. Failure of Purchaser to: (i) pay invoices when due in
accordance with Section 4 hereof, or (ii) provide the Purchaser
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Requirements (set forth in Exhibit A) to CodeWeavers shall be a default. Upon
such default, CodeWeavers shall give notice to Purchaser, who shall have ten
(10) days to correct such default. If the default is not cured, CodeWeavers
may immediately terminate this Agreement, without penalty. Termination of
this Agreement, for any reason, shall not affect the rights and obligations
under this Agreement that accrue prior to termination, including without
limitation, Purchaser's payment obligations for Services performed prior to
termination. Both parties' obligations under Section 14 and 15 shall survive
14. LIMIT OF LIABILITY. CodeWeavers shall not be liable for any damages
arising out of the performance of the Services, whether based upon warranty,
tort, contract or otherwise, and shall in no event include any indirect,
special, or consequential damages of Purchaser or a third party against
Purchaser whether or not CodeWeavers was aware of the possibility of such
damages. CodeWeavers' liability for damages to Purchaser and Purchaser's
liability for damages to CodeWeavers for any cause whatsoever shall not
exceed the fees paid to CodeWeavers by Purchaser hereunder.
15. RESTRICTIVE COVENANTS.
15.1. CodeWeavers shall hold Confidential Information of Purchaser,
its customers, and licensors in confidence, and without written permission
from Purchaser will not disclose to any person or use for its own benefit,
any such information. "Confidential Information" includes without limitation
the terms of this Agreement, the Software and other computer software
programs developed or licensed by Purchaser, including all documentation and
methods or concepts utilized therein, all adaptations and modifications
thereto and derivative works thereof, and related materials and information.
Confidential Information also includes any other information identified by
Purchaser, its licensors, or customers as proprietary or confidential, or
which would reasonably be understood under the circumstances to be
confidential. All Confidential Information shall remain the sole property of
Purchaser. Information will not be considered to be Confidential Information
if (i) available to the public other than by a breach of this Agreement; (ii)
rightfully received from a third party not in breach of any obligation of
confidentiality; (iii) independently developed by a party without access to
Confidential Information of Purchaser; (iv) known to CodeWeavers at the time
of disclosure; (v) produced in compliance with applicable law or a court
order, provided Purchaser is given notice and opportunity to intervene; or
(vi) it does not constitute a trade secret and more than five (5) years have
elapsed from the date of disclosure. In addition to any other rights or
remedies available, Purchaser shall be entitled to enforcement of such
obligations by court injunction. Purchaser may require CodeWeavers'
employees, if any, performing work on behalf of CodeWeavers pursuant this
Agreement to execute a written document acknowledging that any information
learned in the course of work performed pursuant to this Agreement is
governed by the terms of this Agreement.
15.2 During the Term of this Agreement, and for one (1) year after
termination of this Agreement, both parties agree not to directly or
indirectly solicit for employment any employees of the other.
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15.3 CodeWeavers will not issue a press release or other public
statement regarding CodeWeavers' relationship with Purchaser or this
Agreement without the advance written consent of Purchaser.
16.1 All notices will be sent certified mail or registered mail, return
receipt request, with postage prepaid, in the U.S. mails, to CodeWeavers or
Purchaser at its respective address indicated in the preamble of this
Agreement, or at any later address of which notice is given, and will become
effective when mailed.
16.2 Captions in this Agreement are for convenience only and are not
intended to have any legal effect.
16.3 If any one or more provisions or remedies provided for in this
Agreement is declared to be invalid, illegal or unenforceable in any respect
under any applicable law, it will be stricken and the remaining provisions
will remain in full force and effect.
16.4 The waiver of a breach of any provision of this Agreement will not
operate as, or be construed as, a waiver of any subsequent breach.
16.5 All Exhibits attached to this Agreement are specifically
incorporated by reference into the terms of this Agreement.
16.6 This Agreement sets forth the entire understanding and agreement
of the parties as to its subject matter and may not be modified except in
writing validly executed by both parties. All prior agreements,
representations, or the like are superseded by this Agreement.
16.7 Application of the United Nations Convention on Contracts for the
International Sale of Goods is expressly excluded. Any suit brought by
Purchaser in connection with this Agreement will be brought solely in the
federal or state courts in the State of Minnesota
and Purchaser hereby
submits to the personal jurisdiction thereof. Any suit brought by CodeWeavers
in connection with this Agreement will be brought solely in the federal or
state courts in the State of California
and CodeWeavers hereby submits to the
personal jurisdiction thereof. The prevailing party in any action to enforce
this Agreement shall be entitled to recover reasonable costs and expenses. In
case of any dispute, service of process shall be performed in accordance with
Section 16.1 hereinabove.
16.8 This Agreement shall not be assignable by CodeWeavers without the
written consent of an authorized representative of each party.
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IN WITNESS WHEREOF, the parties have hereunto set their hands as of the date
first written above.
Gupta Technologies, LLC CodeWeavers, Inc.
By: __________________________ By: ________________________________________
Name: Jeff Bailey
Title: President and CEO Title: _____________________________________
Date: ________________________ Date: ______________________________________
Address: 975 Island Drive Address: 2356 University Ave. W., Suite 420
Redwood Shores, CA 94065 St. Paul, MN 55114
Phone: (650) 596-3400 Telephone: (651) 523-9300
Fax: (650) 596-4690 Facsimile: (651) 523-9399
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EXHIBIT A: PURCHASER REQUIREMENTS
1. Technical contact
Purchaser is responsible for providing CodeWeavers with some means of
obtaining technical help on the Software. This will be either a qualified
programmer of Purchaser's, or, preferably, a read-only copy of the
Software source code.
2. Test Group Participation
Purchaser is required to designate a group of individuals to participate
in the Wine testing process.
3. Equipment and software
Purchaser is required to provide any specialized equipment or software
used by CodeWeavers during provision of the Services. This will primarily
include copies of the Software, license keys, and debug builds of the
Software. Purchaser will grant CodeWeavers a license to use five (5)
copies of the Software during the Term of this Agreement for the purpose
of performing the Services.
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EXHIBIT B: WORK ORDER NUMBER ONE
THIS WORK ORDER is attached to and made a part of the Services Agreement (the
"Agreement") dated September 20, 2004 between GUPTA TECHNOLOGIES, LLC
("Purchaser") and CODEWEAVERS, INC. ("CodeWeavers"). CodeWeavers and Purchaser
hereby agree that CodeWeavers will perform the following services for the
benefit, and pursuant to the request, of Purchaser on the terms and conditions
set forth below and in the Agreement. In the event the terms set forth below are
inconsistent with, or otherwise conflict with, the terms and conditions of the
Agreement, the terms of this Work Order shall govern for purposes of the work to
be performed hereunder.
DUTIES: Duties to include, but will not be limited to, the following: initial
meeting between Raghavan Gurumurthy and CodeWeavers to specify engineering,
testing, and documentation efforts required by CodeWeavers to address issues
regarding the use of CrossOver as an embedded part of Team Developer and Report
Builder (the "Products"). Outcome of this meeting will be a written proposal on
issues to be addressed, estimated costs, and delivery dates (the "Duties").
All services described in this Work Order (and in any attachment hereto, as
specified) shall be provided to Purchaser by CodeWeavers. CodeWeavers will
provide expert services and other necessary services and skills to prepare for
and complete the above-referenced Duties during the Agreement term (the
SCOPE OF SERVICES
Purchaser has had major issues with getting the Products to run on Wine and
CrossOver 3.x ("CO"). Purchaser has to date tested the Products on only Red Hat
and SUSE with 3.x of CO and August build of Wine. Purchaser requires a meeting
with CodeWeavers to discuss how CodeWeavers will make improvements (i) in the
following three most critical problem areas: Paint, Refresh, and Performance,
and (ii) in other miscellaneous areas including but not limited to printing,
focus related, docking, help, and OLE. Except for the Wine
installation/configuration issues, the remaining issues are reproducible with CO
as well as Wine.
a. CodeWeavers will conduct a meeting at CodeWeavers' offices with Purchaser's
Senior Engineer Raghavan Gurumurthy during the week of September 27-October 1,
2004, then will prepare and submit to Purchaser written estimates for solving
the following specific issues, and any others that may be discussed at the
b. P0 - PAINTING/REFRESH
The most serious set of problems with actually running the Products on Linux are
to do with screen painting and refresh. Purchaser's understanding is that this
is not unique to the Products; this is a known limitation of Wine itself. Please
refer to http://bugs.winehq.org/show_bug.cgi?id=2234,
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c. P1 - DOCKING WINDOWS
The Products' IDE uses docking windows extensively. Purchaser has noticed a huge
issue with docking - but, only on certain Linux distributions - reproduced only
with KDE 3.2 and 3.3. Please refer to
d. P2 - ONLINE HELP
The Products' IDE provides extensive online help and all of that is completely
broken on Wine. Please refer to http://bugs.winehq.org/show_bug.cgi?id=664.
e. P2 - FOCUS & VALIDATION
There are some problems in properly transferring focus and doing validation.
Refer to http://bugs.winehq.org/show_bug.cgi?id=2155
There are also issues with formatting and justification of Number data types in
the edit fields. Refer to http://bugs.winehq.org/show_bug.cgi?id=?
Purchaser has 30 (thirty) business days from the date of complete delivery of
the Deliverables to review said Deliverables for any defects. If Purchaser
reports a defect to CodeWeavers, Purchaser shall have 14 (fourteen) business
days to review the defect resolution provided by CodeWeavers.
CodeWeavers shall be compensated on a Time and Materials basis for the Services
to be performed pursuant to this Work Order. CodeWeavers and Purchaser recognize
and agree that CodeWeavers shall complete the duties specified herein during the
term of this Work Order, from September 20, 2004 through December 31, 2004 (the
"Work Order Term"). Purchaser agrees to pay CodeWeavers $100 per hour for a Wine
engineer to perform the Services and $125 per hour for Alexandre Julliard to
perform the Services. The estimated price for the Services is US $3,200,
inclusive of all expenses. CodeWeavers shall be compensated upon Purchaser's
Acceptance of the Services and Deliverables provided by CodeWeavers. The total
fee paid to CodeWeavers during the Work Order Term is not to exceed US $4,000
(Four thousand U.S. Dollars).
All invoices should be sent by CodeWeavers directly to: Gupta Technologies, LLC,
Accounts Payable Department, 975 Island Drive, Redwood Shores, CA 94065, USA,
Attn: Accounts Payable Administrator. Provided the Accounts Payable Department
has received confirmation of Purchaser's Acceptance of the Services and
Deliverables from the designated Gupta Project Manager, all invoices are due and
payable by Purchaser within thirty (30) days after receipt of the applicable
invoice by Purchaser's Accounts Payable Department. Before Purchaser can process
payment it must have received a completed Form W-9 from CodeWeavers.
CodeWeavers agrees that no compensation will be due from Purchaser beyond
what has been expressly outlined in this Work Order, unless approved in writing
in advance by Purchaser.
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IN WITNESS WHEREOF, the parties have caused this Work Order to be executed by
their authorized representatives as of the date first above written.
CODEWEAVERS, INC. ("CODEWEAVERS") GUPTA TECHNOLOGIES, LLC
By: ____________________________________ By: ______________________________
Printed Name: __________________________ Printed Name: Jeff Bailey
Title: _________________________________ Title: President and CEO
Taxpayer ID Number: ____________________
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