EXHIBIT 10.5
*** CERTAIN CONFIDENTIAL INFORMATION
CONTAINED IN THIS DOCUMENT
(INDICATED BY ASTERISKS) HAS BEEN
OMITTED AND FILED SEPARATELY WITH
THE SECURITIES AND EXCHANGE
COMMISSION PURSUANT TO A REQUEST FOR
CONFIDENTIAL TREATMENT UNDER 17
C.F.R. SECTIONS 200.80(B)(4),
200.803 AND 230.406
JN MICROSYSTEMS, INC. PROPRIETARY AND CONFIDENTIAL
Agreement Number 115804
STAROFFICE SOFTWARE OEM LICENSE AND DISTRIBUTION AGREEMENT
This StarOffice Software OEM License and Distribution Agreement ("Agreement") is
made and entered into by and between Sun Microsystems, Inc., a Delaware
corporation, located at 000 Xxx Xxxxxxx Xxxx, Xxxx Xxxx, Xxxxxxxxxx 00000
("Sun)" and Customer set forth below ("Customer"):
Customer: Xxxxxxx.xxx
Address: 0000 Xxxxxxx Xxxxxx, 0xx Xxxxx
Xxx Xxxxx, Xxxxxxxxxx 00000
X.X.X.
Tel: 000-000-0000
Fax: 000-000-0000
E-mail: Xxxxx@xxxxxxx.xxx
WHEREAS, Sun designs, develops and markets office productivity software and
documentation.
WHEREAS, Customer desires to license from Sun the Software (as defined below)
and distribute the same on the terms and conditions herein.
IN CONSIDERATION of the mutual promises and covenants contained in this
Agreement and the Attachments attached hereto and incorporated herein, and for
other good and valuable consideration, receipt of which is hereby acknowledged,
the parties agree as follows:
This Agreement includes the terms and conditions set forth herein and the
following attachments (collectively, "Attachments"):
ATTACHMENT 1 AGREEMENT DETAILS
ATTACHMENT 2 END USER BINARY CODE LICENSE AGREEMENT
ATTACHMENT 3 TRADEMARK LICENSE AGREEMENT
Notices as described in Section 12.8 ("Notices") shall be delivered to Customer
at the above address and to Sun at the above address, Mailstop: XXX00-000,
Xxxxxxxxx: StarOffice Software OEM Sales Department, with a copy to Sun Legal
Dept., Attn. Vice President Software Legal at the above address, Mailstop:
SCA14-210. Royalty reports and payments should be sent to Sun Microsystems,
Inc., Software Royalty Accounting Group, XX Xxx 00000, Xxxx Xxxx, XX 00000.
EXHIBIT 10.5
IN WITNESS WHEREOF the parties have caused this Agreement to be executed by
their duly authorized representatives.
SUN: XXXXXXX.XXX
By: /s/ Xxxxxx Xxxx By: /s/ Xxxxx Xxxxxxx
----------------------------- --------------------------------
Name: Xxxxxx Xxxx Name: Xxxxx Xxxxxxx
--------------------------- ------------------------------
(printed or typed) (printed or typed)
Title: Manager - STS Sales Ops Title: President
-------------------------- -----------------------------
Date: 6/29/02 Date: 6-28-02
--------------------------- ------------------------------
EXHIBIT 10.5
GENERAL TERMS AND CONDITIONS
1.0 DEFINITIONS
1.1 "Binary Code License" or "BCL" means an End User license to use the
Software pursuant to the terms set forth in Attachment 2 ("End User Binary Code
License Agreement"). The BCL must be provided with each copy of the Software
distributed.
1.2 "Confidential Information" means that information which Customer
and/or Sun desire to protect against unauthorized disclosure or use and which
the disclosing party designates as confidential (i) in writing, if communicated
in writing, or (ii) orally, prior to any oral disclosure of the Confidential
Information. The terms and conditions of this Agreement shall be considered
Confidential Information of Sun.
1.3 "Customer Marketing Collateral" means all materials created by
Customer and used in connection with promoting or marketing Customer's Product,
including but not limited to, advertising, press releases, brochures, data
sheets, web pages, trade show and event materials, and ad pillars, in any
medium, including but not limited to print and online media.
1.4 "Customer's Product(s)" means the hardware system(s), software and/or
components manufactured by or for Customer which have material value independent
from the Software, and incorporate or include the Software as an integral
element of Customer's hardware system, software or component, pre-installed from
Master Media.
1.5 "Distributor" means an entity that distributes Customer's Products and
which is under a contractual obligation to Customer as set forth in this
Agreement, for example, a retail distributor.
1.6 "Effective Date" shall have the meaning set forth in Section 3.1
("Term").
1.7 "End User" means the person or entity to whom the BCL applies and to
whom Customer and/or Distributors furnish the Software for use with and as part
of Customer's Products for internal use and not for resale, marketing, or
leasing.
1.8 "End User Documentation " means users' manuals, programmers' guides
and system guides which Sun may provide for use with the Software, and which are
specified in the Attachments hereto and/or the Price List.
1.9 "Error" means any reproducible failure of the Software to perform its
intended functions or any material inaccuracies in the End User Documentation.
1.10 "Error Correction " means a modification, addition, procedure or
routine intended to correct the practical adverse effect of an Error.
1.11 "Installed Base" means Customer's pre-existing End User customers who
are already in possession of and using Customer's Product under a current and
valid license. Such installed Customer Products shall be referred to as
"Installed Systems."
1.12 "Licensed Trademarks" means the StarSuite Logos, STARSUITE word xxxx,
and the Sun Logo depicted in the Trademark *rise Agreement entered into by
Customer and Sun, or such additional or replacement xxxx(s) as Sun may provide
under the Trademark License Agreement, and no other logo, xxxx or designation.
1.13 "Master Media" means the Software delivered to Customer for the
purpose of mass duplication in accordance with Section 2.0 ("Binary License
Rights; Terms and Conditions") herein.
1.14 "Price List" means the then-current, geographical, specific release
of the Sun Software OEM and Reseller License Fee and Royalty Schedule including
any subsequent price changes made by Sun pursuant to Section 4.4 ("Price
Changes").
EXHIBIT 10.5
1.15 "Royalty Bearing Event" means the license, grant of right to use, or
other authorized transfer of the Software. There will be only one (1) Royalty
Bearing Event for each copy of the Software shipped.
1.16 "Single Incident" means an End User question about the Software
relating to a specific, discrete issue (for example, installation, launch,
configuration, troubleshootnig, usability, etc.) that can be answered by
violating its origin to a single cause.
1.17 "Software" means the binary, machine-readable, executable code for
the Sun software product and End User Documentation listed in Attachment 1
("Agreement Details") hereto, and Updates or Error Corrections provided to
Customer, if any.
1.18 "Sun Marketing Collateral" means all materials created by or for Sun
and used in connection with promoting or marketing Sun's Software, including but
not limited to, advertising, press releases, brochures, data sheets, web pages,
trade show and event materials, and ad pillars, in any medium, including but not
limited to print and online media.
1.19 "Sun Trademarks" means the Licensed Trademarks and all iPlanet-,
Java-, Jini-, Solaris-, Sun-, and StarSuite-based names, marks, logos, trade
dress and other brand designations used by Sun and its related companies.
1.20 "Tax" means sales, use, rental, receipt, personal property,
value-added, consumption, goods and services, or other tax which may be levied
or assessed in connection with this Agreement, excluding tax based on Sun's
income.
1.21 "Territory" means the jurisdiction(s) where Customer may market,
advertise, and distribute Customer's Product containing the Software as set
forth in Attachment 1 ("Agreement Details"), and shall include no other
countries except Japan, the Peoples Republic of China (excluding Hong Kong),
Korea or Taiwan unless otherwise agreed by Sun in writing.
1.22 "Technical Support Entitlement" means that Sun will provide to
Customer for inclusion with Customer's Product, a text file (e.g., "Read Me"
file), splash screen, dialogue box or other collateral that will entitle the End
User to technical assistance with the Software (End User questions about the
Software relating to specific, discrete issues such as installation, launch,
configuration, usability, etc.) within a specified timeframe. Sun may also
provide End User Software training.
1.23 "Update" means a release of the Software, if any, which is designated
by Sun in its sole discretion as containing substantially only Error
Corrections, or minor new features, functionality and/or performance
enhancements. An Update is generally signified by a change of version
designation to the right of the decimal point, for example, version 6.0 to
version 6.1.
2.0 BINARY LICENSE RIGHTS; TERMS AND CONDITIONS
2.1 Binary License Grant. Subject to and conditioned upon Customer's
compliance with the payment obligations, limitations and restrictions set forth
in this Agreement, with respect to Software, Sun grants to Customer a personal,
non-transferrable, and nonexclusive, royalty-bearing, limited right and license
as follows:
(a) to make copies of the Software from Master Media, install those
copies in Customer's Products as part of the manufacturing process prior to
shipment, and distribute such copies as part of Customer's Products in
accordance with the terms of this Agreement;
(b) to copy Software from Master Media onto separate packaged
product storage media such as CD-ROMs ("White-CD") and distribute for use with
Customer's Product one White-CD with each Customer's Product incorporating
Software installed from Master Media;
EXHIBIT 10.5
(c) to the extent Updates are made available, to distribute
unbundled Updates to Customer's Installed Base for use only with Installed
Systems. Updates will be made available solely at Sun's discretion. Such
distributions, if any, must be made pursuant to an agreement with each End User
restricting use of the Update to Installed Systems.
2.2 Binary License Terms and Conditions. Each distribution of the Software
by Customer or its Distributors to an End-User must be made pursuant to the
unmodified terms and conditions of the BCL, including the supplemental terms and
conditions relating to the Software. It is expressly acknowledged and agreed
that in the United States and in other jurisdictions where an enforceable
copyright protection covering the Software exists, such license may be a written
agreement on or accompanying the package containing the Software media that is
fully visible to the End-User before the package is opened, that the End-User
accepts by opening the package and that complies with applicable law relating to
agreements of such type. In all other jurisdictions, such license must be a
written agreement signed by the End-User. Sun does not undertake to inform
Customer of the jurisdictions where such copyright protection exists. In the
event the End User, upon reading the BCL, elects to return the product as
provided in the product packaging, Customer will accept return of the Software
and shall refund the license fee to the End User.
2.3 Distribution Agreements.
(a) Prior to Customer furnishing any Software to any of its
Distributors, Customer shall obtain a signed agreement from its Distributors
substantially similar to the terms and conditions of this Agreement and
sufficient to allow protection of the intellectual property rights of Sun and
its licensors.
(b) Customer shall use commercially reasonable efforts comparable to
those it uses for its own products to monitor and enforce any agreements with
Distributors and End Users of the Software entered into by Customer or its
Distributors, and Customer shall promptly inform and consult with Sun if
Customer becomes aware of any substantial non-compliance. If a Distributor or
End User fails to fulfill any of its material obligations with respect to the
Software under such agreement, Sun may, upon its election and in addition to any
other remedies that it may have, notify Customer in writing of such breach and
require Customer to terminate all the rights granted in such agreement with
respect to the Software by thirty (30) days written notice to such Distributor
or End User specifying the breach, unless the breach is remedied within such
thirty (30) day period. In the event that Customer fails to satisfy the
foregoing obligations with regard to the Software, subject to Section 8.0
("Limitation of Liability"), Customer shall be responsible for all reasonable
costs incurred by Sun, including without limitation, attorneys' fees, in
connection with such enforcement actions undertaken by Sun. In those
jurisdictions where Sun does not have standing to bring an action in its own
name or under the intellectual property laws of such jurisdiction, Customer
shall assign those rights to Sun reasonably necessary to allow Sun to bring an
action under any legal theory available to Customer.
2.4 End User Documentation Distribution; Modification.
(a) End User Documentation Distribution. Electronic documentation is
included with Software. Customer may reprint documentation included on Master
Media only.
(b) Modification of End User Documentation. Customer may not modify
the End User Documentation.
2.5 Trademarks, Logos and Product Designs; Proprietary Notices.
(a) Customer may refer to Software by the associated Sun Trademarks,
provided that such reference is not misleading and complies with the
then-current Sun Trademark and Logo Requirements, currently located at
xxxx://xxx.xxx.xxx/xxxxxxxx/xxxxxxxxxx. Customer shall not remove, alter, or add
to any Sun Trademarks, nor shall it co-logo Software. Customer is granted no
right, title or
EXHIBIT 10.5
license to, or interest, any Sun Trademarks or any name, xxxx, logo, trade dress
or brand designation of Sun and its related companies in this Agreement or any
Attachment. Customer acknowledges Sun's rights in Sun Trademarks and agrees that
any use of Sun Trademarks by Customer shall inure to the sole benefit of Sun.
Customer agrees not to (i) challenge Sun's ownership or use of, (i) register, or
(iii) infringe any Sun Trademarks, nor shall Customer incorporate any Sun
Trademarks into Customer's trademarks, service marks, company names, internet
addresses, domain names, or any other similar designations. If Customer acquires
any rights in any Sun Trademarks by operation of law or otherwise, it will
immediately at no expense to Sun assign such rights to Sun along with any
associated goodwill, applications, and/or registrations.
(b) As between Sun and Customer, Customer acknowledges and agrees
that Sun is the sole owner of the Sun Trademarks and all associated goodwill and
intellectual property rights. Customer further agrees that any use of Sun
Trademarks by Customer shall inure to the sole benefit of Sun. Customer agrees
not to: (i) challenge Sun's ownership, use of or the validity of the On
Trademarks; (ii) attempt or register any xxxx or logo identical or substantially
similar to any Sun Trademark; (iii) remove, alter or add to any of Sun
Trademark; (iv) incorporate any of Sun Trademarks into Customer's trademarks,
product names, service marks, company names, slogans, domain names or any other
similar designations for use on or in connection with any computer and/or
internet-related hardware, software, technologies or services or any other
products or services likely to cause confusion with or dilute the Sun
Trademarks; or (v) infringe any Sun Trademark or associated intellectual
property rights. If Customer acquires any rights in any Sun Trademarks by
operation of law or otherwise, it will immediately at no expense to Sun assign
such rights to Sun along with any associated goodwill, applications, and/or
registrations.
(c) Customer agrees to enter into and comply with a Trademark
License Agreement appended as Attachment 3. Customer shall use the STARSUITE
word xxxx, the StarSuite Logos and the Sun Logo in strict compliance with the
terms and conditions of the Trademark License Agreement.
(d) Customer shall not delete, cover or alter, and shall maintain
Sun's trademarks, logos, proprietary rights notices and restrictive rights
legends included in and on the End User Documentation and Software. Customer
shall reproduce any proprietary rights notices of Sun and/or contributing third
parties contained in or on all copies of Software, End User Documentation,
packaging and related materials, in whole or in part, developed or made by
Customer or its Distributors. Customer shall submit its Customer Products
containing Software, End User Documentation or other materials licensed
hereunder to Sun for approval pursuant to this Section 2.5 ("Trademarks, Logos
and Product Designs; Proprietary Notices") prior to distribution, which approval
shall not be unreasonably withheld or delayed.
2.6 Intended Purpose. The intended purpose of the Software is for use on,
and as an integral component of, Customer's Products. Customer's Product
packaging for the Software shall clearly indicate this intended purpose.
Customer shall market and distribute the Software only with Customer's Product
and directly or indirectly through Customer's Distributors to End Users only if
bundled with Customer's Product. Customer and Distributors shall not distribute
the Software on a stand-alone basis.
2.7 Governmental Approvals. Customer shall, at its own expense, obtain and
arrange for the maintenance in full force and effect of all governmental
approvals, consents, licenses, authorizations, declarations, filings and
registrations as may be necessary for the performance of the terms and
conditions of the Agreement, including without limitation, fair trade approvals,
under all laws, regulations and other legal requirements within the
jurisdictions that Customer distributes the Software that apply to this
Agreement, including tax and foreign exchange legislation.
2.8 No Other Rights. Except as expressly stated herein and in the
Attachment(s) hereto, no other license, right or interest is granted to Customer
for any other purpose.
EXHIBIT 10.5
3.0 TERM AND TERMINATION
3.1 Term. This Agreement shall commence on: (i) the date of its execution
by Sun or (ii) where this Agreement will be void or Sun will be liable for a
penalty without an approval, registration, filing as referred to in Section 2.7
("Governmental Approvals"), or Sun obtaining the necessary US export license,
the date of such approval, registration, filing, or US export license, whichever
occurs later (the "Effective Date") and shall have an initial term of one (1)
year. Thereafter, this Agreement shall be automatically renewed for successive
one (1) year terms (with a maximum of two (2) subsequent terms), unless one
party notifies the other party in writing at least thirty (30) days before the
end of the then-current term stating that it wishes to terminate this Agreement;
whereupon, this Agreement shall terminate at the end of the then-current term.
3.2 Termination. If either party fails to comply with any of the material
terms and conditions of this Agreement, the other party may terminate this
Agreement upon thirty (30) days written notice to the breaching party specifying
any such breach, unless the breach specified therein has been remedied within
such thirty (30) day period. In the event of Customer's breach, Sun may
terminate this Agreement in its entirety or as to any individual Software
product.
3.3 Termination for Insolvency. Either party may terminate this Agreement
immediately in the event that the other party ceases to conduct its operations
in the normal course of business, files for or becomes the subject of a
bankruptcy petition, is placed in receivership, or attempts to assign this
Agreement to creditors or otherwise without prior written consent of the other
party.
3.4 Effect of Termination.
(a) For Breach by Customer: Upon expiration or termination of this
Agreement for breach by Customer, Customer shall discontinue issuing BCLs for
the Software, shall return all Software and Sun Confidential Information and all
copies thereof in its possession to Sun or destroy all Software and all copies
thereof in Customer's possession and certify in writing by an officer of
Customer that such Software and all copies thereof were so destroyed.
(b) BCLs for the Software issued prior to the effective date of
termination shall continue in accordance with their terms and conditions.
Customer's obligation to pay royalties accrued prior to the termination of this
Agreement shall not terminate.
3.5 No Liability For Termination. To the full extent allowed by any
applicable law except as expressly provided in this Agreement, Customer agrees
that it shall have no rights to damages or indemnification of any nature due to
any expiration or rightful termination of this Agreement by Sun pursuant to its
terms. The foregoing restriction shall include without limitation, commercial
severance pay whether by way of loss of future profits, expenditure for
promotion of the Software, payment for goodwill generated or other commitments
made in connection with the business contemplated by this Agreement or other
similar matters. Customer will not be entitled under local law or otherwise to
receive any payment from Sun, whether for actual, consequential, indirect,
special or incidental damages, costs or expenses, whether foreseeable or
unforeseeable, any right to which Customer hereby waives and disclaims. Customer
EXPRESSLY WAIVES AND RENOUNCES ANY CLAIM TO COMPENSATION OR INDEMNITIES FOR ANY
TERMINATION OF BUSINESS RELATIONSHIP BY A FOREIGN BUSINESS ENTITY, WHICH MAY
EXIST UNDER THE LAWS OF ANY APPLICABLE JURISDICTION.
3.6 Survival. Rights and obligations under this Agreement which by their
nature should survive, will remain in effect after termination or expiration
hereof.
4.0 PAYMENTS; TAXES; ACTIVITY LEVEL
4.1 Payment Terms. Except as otherwise specified in the Attachments
hereto, and in consideration of the rights granted to Customer hereunder,
Customer shall pay to Sun the royalties for
EXHIBIT 10.5
each Royalty Bearing Event for the applicable Software licensed or distributed
by Customer on a quarterly basis within thirty (30) days following the end of
the preceding calendar quarter, accompanied by a report pursuant to Section 5.1
("Record Keeping") below. Software license and royalty fees are set forth on the
Sun Price List. To the extent that Customer orders any Software or other
products from Sun or Sun invoices Customer for any royalties due, Customer shall
pay any amounts due to Sun within thirty (30) days from Sun's invoice date
except for royalties, which shall always be due within thirty (30) following the
end of the preceding calendar quarter. Sun's acceptance of this Agreement and
any associated order(s) does not imply Sun's approval of an open line of credit.
Credit terms are established by Sun based in part upon Customer's financial and
payment records. Sun reserves the right to place Customer on credit hold in the
event Customer's financial condition ceases to warrant the credit terms
specified above.
4.2 Taxes.
(a) Subject to Section 4.2(b), all amounts payable by Customer under
this Agreement are exclusive of any Tax, levy or similar governmental charge
that may be assessed by any jurisdiction, whether based on gross revenue, the
delivery, possession or use of the Software, the execution or performance of
this Agreement or otherwise, except for net income, net worth or franchise taxes
assessed on Sun. If, under the local law, Customer is required to withhold any
Tax on such payments, then the amount of the payment actually remitted to Sun
will be net of all Taxes. Customer will promptly furnish Sun with the official
receipt of payment of these Taxes to the appropriate taxing authority. Customer
will pay all other Taxes, levies or similar governmental charges or provide Sun
with a certificate of exemption acceptable to the taxing authority.
(b) Notwithstanding Section 4.2(a), Customer may deduct from
payments any income tax or tax of a similar nature imposed by any non-United
States government ("government income tax") on the income of Sun from such
payment and actually paid by Customer for the account of Sun. In the event that
Customer deducts any such income tax from any such payment, Customer shall
furnish Sun with evidence acceptable to Sun and to the United States Government
to sufficiently establish that such government income tax has been paid for the
account of Sun.
4.3 Updates. The fees specified in this Agreement are for the
then-current release of the Software and any Updates. It is within Sun's sole
discretion to release and/or distribute Updates to Customer. Sun shall have the
right, at its sole discretion and without incurring any liability to Customer,
to modify the Software or discontinue its development, manufacture, sale or
support and will provide Customer with sixty (60) days prior notice. Such change
shall not require Customer's approval.
4.4 Price Changes. Sun reserves the right to change the Price List,
discount schedule and/or royalties for any Software at any time. In the event of
a price increase, Sun shall provide Customer with thirty (30) days prior notice.
Such change shall not require Customer's approval. If, during the term of this
Agreement, Sun decreases the royalty rate for any Software(s), all orders for
such Software(s) scheduled for shipment or in transit to Customer at the time of
such notice shall be adjusted to the decreased royalty rate.
4.5 Customer's Products. Customer shall list in its revenue reports
to Sun pursuant to Section 5.0 ("Records; Audit Requirement; Forecast") of the
Agreement, Customer's Products shipped in conjunction or associated with the
Software hereunder.
5.0 RECORDS; AUDIT REQUIREMENTS; FORECAST
5.1 Record Keeping. Customer shall maintain for a three (3) year period
revenue records sufficient to determine that Customer is in compliance with the
terms and conditions of this Agreement. Customer shall provide to Sun along with
any payments specified hereunder, quarterly revenue reports, in the English
language which shall include, at a minimum, the following information: (i) the
Names of
EXHIBIT 10.5
Software products; (ii) Customer's Product names; (iii) the number of units of
each type of Customer's Product shipped with the Software; (iv) the number of
Customer's Product units forecasted to be shipped for the next six (6) months;
(v) the number of units of Customers Product that were returned to Customer for
the reporting period for which Customer is entitled to a credit; and (vi) the
royalty amounts due Sun. For any quarter in which no royalties are paid,
Licensee will submit a report so indicating, along with any of the applicable
above information. Royalty reports and payments should be sent to the address
set forth above unless otherwise indicated by Sun in writing.
5.2 Audit Requirements. The following audit provision shall continue
throughout the term of this Agreement and shall survive the termination of this
Agreement insofar as applicable to obligations accrued prior to such
termination.
(a) Right to Audit. Sun shall have the right to audit the records
and accounts of Customer required to be kept in accordance with this Agreement.
The auditor shall be adequately bound to keep confidential all Confidential
Information of Customer learned during the course of or pursuant to the audit.
Any such audit shall be performed only during Customer's normal business hours,
no more frequently than once per calendar year (but more frequently and at Sun's
discretion if irregularities are found), and shall be performed in such a manner
as to avoid unreasonable interference with Customer's business operations; and
the auditor shall be limited to reporting the adequacy of Customer's records and
accounts, including, but not limited to, whether Customer is in compliance with
the terns of this Agreement and the amount, if any, of underpayment or
overpayment of the amounts due Sun pursuant to this Agreement. Except as
expressly provided in Section 5.2(b) ("Errors In Payment"), Sun shall bear all
costs and expenses associated with the exercise of its right to audit.
(b) Errors in Payment. In the event that any errors in payment shall
be determined, such errors shall be corrected by appropriate adjustment in
payment (plus interest at one and one-half percent (1-1/2%) per month or the
highest rate permitted by law) for the quarterly period during which the error
is discovered. In the event of underpayment of more than five percent (5%) of
the amount due for that period (i) Customer shall reimburse Sun for the
reasonable charges of the audit that identified the underpayments, and (ii) Sun
shall have the right to conduct additional audits, at its sole discretion; in
ninety (90) day intervals until Customer becomes fully compliant with the terms
and conditions of this Agreement.
6.0 CONFIDENTIAL INFORMATION
Customer may not disclose Sun's Confidential Information and may use it only for
purposes specifically contemplated in this Agreement. Sun will treat Customers
Confidential Information with the same degree of care as it does its own similar
information. The foregoing obligations do not apply to information which: (i) is
rightfully obtained by recipient without an obligation to maintain its
confidentiality; (ii) is or becomes generally known to the public through no act
or omission of recipient, or (iii) is independently developed by recipient
without use of the other party's Confidential Information. This Section 6.0
("Confidential Information") will not affect any other confidential disclosure
agreement between the parties.
7.0 WARRANTIES
7.1 Customer's Limited Warranty: Sun warrants that for a period of ninety
(90) days from the date of delivery to Customer that the media on which the
Software is furnished will be free of defects in materials and workmanship under
normal use. Except for the foregoing, to the full extent allowed by applicable
law, the Software is provided "AS IS" and without warranty of any kind.
Customer's exclusive remedy and Sun's entire liability under this limited
warranty will be at Sun's option to repair or replace the defective media.
EXHIBIT 10.5
7.2 Nuclear Applications. Software is not designed or intended for use in
the design, construction, operation or maintenance of any nuclear facility. SUN
DISCLAIMS ANY EXPRESS OR IMPLIED WARRANTY OF FITNESS FOR SUCH USES.
7.3 No Other Warranties. UNLESS SPECIFIED IN THIS AGREEMENT, ALL EXPRESS
OR IMPLIED CONDITIONS, REPRESENTATIONS AND WARRANTIES, INCLUDING ANY IMPLIED
WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR
NON-INFRINGEMENT, ARE DISCLAIMED, EXCEPT TO THE EXTENT THAT SUCH DISCLAIMERS ARE
HELD TO BE LEGALLY INVALID.
8.0 LIMITATION OF LIABILITY
TO THE FULL EXTENT ALLOWED BY ANY APPLICABLE LAW, AND EXCEPT FOR OBLIGATIONS TO
DEFEND UNDER SECTION 9.0 ("INTELLECTUAL PROPERTY CLAIMS") OF THIS AGREEMENT,
EACH PARTY'S LIABILITY TO THE OTHER FOR CLAIMS RELATING TO THIS AGREEMENT,
WHETHER FOR BREACH OR IN TORT, SHALL BE LIMITED TO THE AMOUNT OF ACCRUED
ROYALTIES PAYABLE TO SUN FOR ALL COPIES LICENSED HEREUNDER FOR THE PARTICULAR
SOFTWARE GIVING RISE TO SUCH CLAIM, IF ANY. THE FOREGOING LIMITATION DOES ~T
REDUCE CUSTOMER'S OBLIGATION TO PAY SUN THE LICENSE FEES DUE AND OWING FOR THE
SOFTWARE. NO EVENT WILL EITHER PARTY BE LIABLE FOR ANY INDIRECT, PUNITIVE,
SPECIAL, INCIDENTAL OR NSEQUENTIAL DAMAGES IN CONNECTION WITH OR ARISING OUT OF
THIS AGREEMENT (INCLUDING WITHOUT LIMITATION, LOSS OF PROFITS, USE, DATA, OR
OTHER ECONOMIC ADVANTAGE), HOWEVER IT ARISES, WHETHER FOR BREACH OF THIS
AGREEMENT, INCLUDING, BUT NOT LIMITED TO, BREACH OF WARRANTY, OR IN TORT, EVEN
IF THAT PARTY HAS BEEN PREVIOUSLY ADVISED OF THE POSSIBILITY OF SUCH DAMAGE, AND
WHETHER OR NOT SUCH DAMAGES ARE FORESEEABLE. THE FOREGOING LIMITATION OF
LIABILITY OF CUSTOMER TO SUN SHALL NOT APPLY IF CUSTOMER'S ACTIONS OR INACTION
RESULT IN THE UNAUTHORIZED DISCLOSURE, DISTRIBUTION OR USE OF THE SOFTWARE OR
SUN'S CONFIDENTIAL INFORMATION.
9.0 INTELLECTUAL PROPERTY CLAIMS
9.1 Sun shall defend at its own expense and, in addition, shall indemnify
Customer from damages, liabilities, costs and expenses actually awarded against
Customer up to the amount stated in Section 8.0 ("Limitation of Liability"), as
a result of any final judgment against Customer in which it is determined that
the marketing or use of any Sun written code within the Software infringe Berne
Convention copyrights of third parties in any country where Sun has a
subsidiary. In the event Sun elects to avoid litigation relating to the
foregoing and settle any such claims, Sun will pay the settlement amount and
obtain a release as to all such claims against Customer.
9.2 Customer shall defend at its expense without limitation and, in
addition, shall indemnify Sun from damages, liabilities, costs and expenses
actually awarded against Sun up to the amount stated in Section 8.0 ("Limitation
of Liability"), as a result of actions or omissions set forth in Section 9.5 (i)
through (iv). In the event Customer elects to avoid litigation relating to the
foregoing and settle any such claims, Customer will pay the settlement amount
and obtain a release as to all such claims against Sun.
9.3 The indemnification obligations set forth in Sections 9.1 and 9.2
above shall be conditioned upon the indemnified party (i) notifying the
indemnifying party within thirty (30) days of notice of a claim of infringement;
(ii) providing full cooperation and assistance to the indemnifying party at the
indemnifying party's expense; and (iii) providing the indemnifying party full
authority to manage the defense or settlement of the claim.
9.4 Should Software become or, in Sun's opinion, be likely to become the
subject of a claim of infringement for which indemnification obligations would
apply according to Section 9.1 above, Sun,
EXHIBIT 10.5
at its option may (i) at no additional cost to Customer, procure for Customer
the right to continue to use the Software, (ii) at no additional cost to
Customer, replace or modify the Software to make such Software non-infringing,
provided that substantially similar functionality and performance is obtained
with the replacement or modified Software, or (iii) if the right to continue to
use cannot be procured under commercially reasonable terms, or such Software
cannot be replaced or modified within a commercially reasonable time and at a
commercially reasonable expense, terminate the license to use such Software and
refund to Customer over five (5) years in equal monthly payments the amounts
that Customer refunds to its customers for such Software due to the claim of
infringement, up to the total amounts actually paid by Customer to Sun under
this Agreement for such Software. Sun's performance of (i), (ii) or (iii) above
shall be Customer's sole and exclusive remedies.
9.5 Notwithstanding the foregoing, Sun shall have no obligation to
indemnify and defend Customer or to pay costs, damages or attorneys' fees for
any claim based upon (i) the combination, operation, or use by Customer of
Software with other equipment, code, programs or data not supplied by Sun if
such infringement would have been avoided but for the combination, operation or
use of the Software with other equipment, code, programs or data; or (ii) use by
Customer of other than the then-latest version of the Software, if such
infringement could have been avoided by the use of the latest version of the
Software and such latest version had been made available to Customer; or (iii)
modifications by Customer of the Software in the event such infringement is
caused by such modifications; or (iv) use by Customer outside the scope of the
granted license(s).
10.0 MAINTENANCE AND SUPPORT
Sun shall provide technical assistance (as provided in Section 1.21) to End
Users. Customer shall distribute the Technical Support Entitlement with
Customer's Product to End Users.
11.0 GOVERNMENT CONTRACTS
11.1 U.S. Governments
(a) If Software is being acquired by or on behalf of the U.S.
Government or by a U.S. Government prime contractor or subcontractor (at any
tier), then the Government's rights in Software and accompanying documentation
will be only as set forth in this Agreement; this is in accordance with 48 CFR
227.7201 through 227.7202-4 (for Department of Defense (DOD) acquisitions) and
with 48 CFR 2.101 and 12.212 (for non-DOD acquisitions). Customer is responsible
for ensuring that proper notice is given to all such third parties and that the
Software and technical data are properly marked. Customer shall indemnify Sun
for any claims or damages arising from any claim by the U.S. Government to more
than Restricted Rights in and to the Software product(s) resulting from
Customer's failure to provide a Restricted Rights legend as required herein. Any
failure by Sun to affix a Restricted Rights legend on the Software product(s)
shall not be deemed to constitute a waiver of any limitation on Customer's
rights imposed by this Agreement.
(b) Under no circumstances shall Sun be obligated to comply with any
requirements imposed by the U.S. Government regarding submission of or the
request for exemption from submission of cost or pricing data or cost accounting
requirements for any distribution or license of Software that would require
compliance by Sun with U.S. Governmental requirements relating to cost or
pricing data or cost accounting requirements.
11.2 Other Sovereign Governments
At its own cost and expense, Customer and its Distributors will take
all necessary steps in making proposals and agreements with sovereign
governments other than the U.S. Government which involve Software and End User
Documentation to ensure that Sun's proprietary rights in Software and End User
Documentation receive the reasonably necessary protection available from such
foreign governments for commercial computer software and related documentation
developed at private expense.
EXHIBIT 10.5
12.0 MISCELLANEOUS
12.1 Force Majeure. A party is not liable under this Agreement for
non-performance caused by events or conditions beyond that party's control if
the party makes reasonable efforts to perform. This provision does not relieve
Customer of its obligation to make payments then owing.
12.2 Severability. In the event that any part of this Agreement is held to
be unenforceable, in whole or in part, such holding will not affect the validity
of the other parts of this Agreement, unless Sun deems the unenforceable part to
be essential to this Agreement, in which case Sun may terminate this Agreement,
effective immediately upon notice to Customer.
12.3 Relationship of the Parties. This Agreement is not intended to create
a relationship such as a partnership, franchise, joint venture, agency, or
employment relationship. Neither party may act in a manner which expresses or
implies a relationship other than that of independent contractor, nor bind the
other party.
12.4 Governing Law. Any action related to this Agreement will be governed
by California law and controlling U.S. federal law. No choice of law rules of
any jurisdiction will apply.
12.5 Import and Export Laws. All Software and technical data delivered
under this Agreement are subject to U.S. export control laws and may be subject
to export or import regulations in other countries. Customer agrees to comply
strictly with all such laws and regulations and acknowledges that it has the
responsibility to obtain such licenses to export, re-export or import as may be
required after delivery to Customer.
12.6 Assignment. Neither party may assign or otherwise transfer any of its
rights or obligations under this Agreement, without the prior written consent of
the other party, except that Sun may assign its right to payment and may assign
this Agreement to an affiliated company.
12.7 Change of Control. In the event of the direct or indirect taking over
or assumption of control of Customer or of substantially all of its assets by
any government, governmental agency or other third party, Sun may terminate this
Agreement upon written notice to Customer.
12.8 Notices. All written notices required by this Agreement must be
delivered in person or by means evidenced by a delivery receipt and will be
effective upon receipt.
12.9 Waiver or Delay. Any express waiver or failure to exercise promptly
any right under this Agreement will not create a continuing waiver or any
expectation of non-enforcement. To be enforceable, a waiver must be in writing
and signed by the waiving party.
12.10 No Rights in Third Parties. This Agreement is made for the benefit
of the parties hereto, and not for the benefit of any third parties unless
otherwise stated herein or agreed to by the parties.
12.11 Counterparts. This Agreement may be executed in one or more
counterparts, each of which will be deemed an original, but all of which will
constitute but one and the same instrument.
12.12 Headings. The headings and captions used in this Agreement are used
for convenience only and are not to be considered in construing or interpreting
this Agreement.
12.13 Construction. This Agreement has been negotiated by the parties
hereto and by their respective counsel. This Agreement will be fairly
interpreted in accordance with its terms and without any strict construction in
favor of or against either party. The original of this Agreement has been
written in English, and such version shall be the governing version of the
Agreement. To the extent allowed under applicable law, Customer waives any right
it may have, if any, under any law or regulation to have this Agreement written
in a language other than English.
12.14 Orders. This Agreement does not constitute an order for Software,
but rather a commitment to order Software as set forth in the Attachments
hereto. Purchase orders for Software shall
EXHIBIT 10.5
be submitted to Sun by Customer pursuant to the terms of this Agreement. Any
terms or conditions set forth on any purchase order, check, or other document of
Customer shall have no force or effect whatsoever. Customer further acknowledges
that it does not take title to the Software, with the exception of the media,
but rather licenses the Software pursuant to the terms and conditions of this
Agreement.
12.15 Deliveries. Software and Documentation shall be delivered F.O.B.
Sun's designated shipping facility unless otherwise agreed to by the parties in
writing. Title to the Software media, but not to the Software and its associated
intellectual property rights, shall pass to Customer at that time. Sun may make
partial deliveries and such deliveries will not relieve Customer of its
obligation to accept the remainder of that order in whole or in part. Sun may
allocate Software to fairly accommodate orders received by Sun from all
customers at any time demand exceeds the available supply.
12.16 Equitable Relief. Because the licenses granted under this Agreement
are personal and unique, and because Customer will have access to and become
acquainted with confidential and proprietary information of Sun, the
unauthorized use or disclosure of which would cause irreparable harm and
significant injury which would be difficult to ascertain and which would not be
compensable by damages alone, both parties agree that, in addition to any and
all legal remedies available to Sun for Customer's breach of this Agreement, Sun
shall be entitled to avail itself of actions against Customer and/or third
parties for seizure and injunctive relief. If an unauthorized use or disclosure
occurs, Customer will promptly notify Sun and take, at Customer's expense, all
steps which are necessary to recover the Software and to prevent its subsequent
unauthorized use or dissemination.
12.17 Entire Agreement. This Agreement is the parties' entire agreement
relating to its subject matter. It supersedes all prior and contemporaneous oral
or written communications, proposals, conditions, representations and warranties
and prevails over any conflicting or additional terms of any quote, order,
acknowledgment, or other communication between the parties relating to its
subject matter during the term of this Agreement. No modification to this
Agreement will be binding, unless in writing and signed by an authorized
representative of each party.
EXHIBIT 10.5
ATTACHMENT 1
AGREEMENT DETAILS
1. SOFTWARE PRODUCT VERSION & LANGUAGES: StarSuite software version 6.0* in
English, German, French, Italian, Swedish, Spanish.
*If and when Sun makes a Portuguese edition of version 6.0 of the Software
generally commercially available, Customer may distribute such edition pursuant
to the terms of this Agreement. Customer understands and agrees that Sun is
under no obligation to make such a Portuguese edition available, and that Sun
may never make such and edition generally commercially available.
2. CUSTOMER'S PRODUCT(S) THAT WILL INCLUDE STARSUITE 6.0: _____________________
Xxxxxxx.xxx [***]_______________________
3. DISTRIBUTION TERRITORY(S): Customer may distribute Customer's Product(s) in
any territory except for the territories stated below in Section 4 to Attachment
1, or any other territory otherwise prohibited under this Agreement.
4. DISTRIBUTION TERRITORY LIMITATIONS: THE STARSUITE SOFTWARE AND CUSTOMER
MARKETING COLLATERAL CONTAINING THE LICENSED TRADEMARKS MUST NOT BE DISTRIBUTED
OR MARKETED SOLELY IN JAPAN, PRC (EXCLUDING HONG KONG), TAIWAN OR KOREA. A
SEPARATE AND SPECIFIC PRODUCT ("STAROFFICE") IS AVAILABLE FOR DISTRIBUTION IN
TERRITORIES OUTSIDE OF THESE AREAS UNDER A SEPARATE AGREEMENT THROUGH THE
STAROFFICE BUSINESS GROUP.
5. SINGLE USER LICENSE AND END USER SUPPORT: Each StarSuite Software unit is a
single user license (please refer to the End User Binary Code License for more
detail). Each single user license includes a single Support Incident which
entitles the End User licensee to receive technical assistance. Sun will provide
technical support program details.
6. DISTRIBUTION OPTIONS: Customer is authorized to distribute Software via one
or more of the following models only
A. SOFTWARE OEMS: Customer must market and distribute the Software, in
binary form, by bundling it with Customer's Product and reproducing the Software
on CDs that shall be distributed with Customer's Product. Customer (at its own
expense) must produce and distribute the CDs containing the StarSuite Software
as a value-add component of Customer's Product only, and shall not distribute
the StarSuite Software as a stand-alone product. Customer is prohibited from
distributing StarSuite Software as part of any publication of any kind (books,
magazines, etc.) without prior written permission from Sun. References to
Sun-approved CD producers are available upon request. Customer agrees to
distribute one (1) Technical Support Entitlement with each Software unit
distributed.
B. HARDWARE OEM PRE-INSTALLS: Software shall be pre-installed on
Customer's Product, and a shortcut visible to End User will be placed on the
desktop upon initial activation and remain visible unless uninstalled by End
User. Customer may elect to include a CD containing the Software in binary form
for the sole purpose of providing a back-up CD to End User. Under this scenario,
separate instances of the Software (pre-install and on back-up CD) count as a
single unit for royalty calculation purposes. Customer will distribute one (1)
Technical Support Entitlement with each Software unit distributed.
EXHIBIT 10.5
C. SUB-LICENSING TO HARDWARE MANUFACTURERS: Customer may resell Software
only to third party computer hardware manufacturers, and only if the Software is
bundled with Customer's Product. Customer must maintain accurate records of all
Software units distributed to third parties, and Customer will pay royalties for
such units based on Customer's current royalty rate as set forth in the Price
List. Customer is responsible for ensuring that computer hardware manufacturers
who obtain Software from Customer for further distribution, fully comply with
the trademark usage standards set forth in Section 5 of the Trademark License
Agreement, AND pre-install Software as specified above in Section 6.B ("Hardware
OEM Pre-Installs"). Customer shall ensure that one (1) Technical Support
Entitlement is included with each Software unit distributed to sublicensees.
D. [***]
7. CUSTOMER TECHNICAL CONTACTS: [***]
8. CUSTOMER MARKETING CONTACT: [***]
9. ADDITIONAL CUSTOMER COMMITMENTS:
i. TRADEMARKS: Customer agrees to use the Sun Trademarks as specified
in the Trademark License Agreement (Attachment 3).
ii. REFERENCES AND PRESS QUOTE SUPPORT: Customer agrees to support a
reasonable amount of Sun's press release and customer reference
activities by providing quotes and acting as a customer reference
(when requested and where appropriate). Customer retains final
approval of quotes and reference use.
10. CUSTOMER DELIVERABLES:
A. QUARTERLY REPORTS: Within thirty (30) days following each quarter
end, Customer shall report to Sun the number of copies of Software
(by platform) distributed by Customer in each country in the
distribution Territory.
B. CUSTOMER MARKETING COLLATERAL & PACKAGING SAMPLES: Customer shall
deliver to Sun all Customer Marketing Collateral samples and
Customer Product packaging mock-ups, and allow one week for Sun's
approval of the trademark and logo usage before production.
C. FINAL PRODUCT SAMPLES: If Customer's Product is packaged as a retail
box, Customer shall deliver to Sun two (2) complete samples of each
boxed Customer Product that includes the Software. Customer will
deliver new boxed samples as new versions of Customer's Products are
released. In the event that Customer's Product is not packaged as a
retail box, then Customer must provide a screenshot of Customer's
Product clearly showing the pre-installed Software icon on the
desktop.
11. SUN DELIVERABLES.
A. MASTER MEDIA: Sun shall deliver Master Media to Customer following the
Effective Date of this Agreement. Customer is authorized to distribute
Software binaries duplicated from Master Media only.
EXHIBIT 10.5
B. ARTWORK/FORMAT: Sun shall make available to Customer the Licensed
Trademarks (in .eps format) relating to the StarSuite Software
following the Effective Date of this Agreement.
C. TECHNICAL SUPPORT ENTITLEMENT: Sun shall provide Technical Support
Entitlement (at no cost) to Customer which must be distributed with
Customer's Product to End Users via printed collateral, text file
(e.g., "Read Me" file), splash screen, dialogue box, or other means
pre-approved in writing by Sun.
12. PREPAYMENT.
A. Customer agrees to make a non-refundable, non-transferable
prepayment in the amount of [***] ("Prepayment") for the right to
distribute up to [***] copies of the Linux version of Software
version 6.0 within the territories specified in Section 4 of this
Attachment 1. Any portion of the Prepayment not used on or before
the termination or expiration of the agreement shall be deemed
forfeited. Only upon timely payment of the Prepayment, may Customer
distribute Software pursuant to Option D of Section 6 of this
Attachment.
EXHIBIT 10.5
ATTACHMENT 2
END USER BINARY CODE LICENSE AGREEMENT
READ THE TERMS OF THIS AGREEMENT AND ANY PROVIDED SUPPLEMENTAL LICENSE TERMS
(COLLECTIVELY "AGREEMENT") CAREFULLY BEFORE OPENING THE SOFTWARE MEDIA PACKAGE.
BY OPENING THE SOFTWARE MEDIA PACKAGE, YOU AGREE TO THE TERMS OF THIS AGREEMENT.
IF YOU ARE ACCESSING THE SOFTWARE ELECTRONICALLY, INDICATE YOUR ACCEPTANCE OF
THESE TERMS BY SELECTING THE "ACCEPT" BUTTON AT THE END OF THIS AGREEMENT. IF
YOU DO NOT AGREE TO ALL THESE TERMS, PROMPTLY RETURN THE UNUSED SOFTWARE TO YOUR
PLACE OF PURCHASE FOR A REFUND OR, IF THE SOFTWARE IS ACCESSED ELECTRONICALLY,
SELECT THE "DECLINE" BUTTON AT THE END OF THIS AGREEMENT.
1. LICENSE TO USE. Sun grants you a non-exclusive and non-transferable license
for the internal use only of the accompanying software and documentation and any
error corrections provided by Sun (collectively "Software"), by the number of
users and the class of computer hardware for which the corresponding fee has
been paid.
2. RESTRICTIONS. Software is confidential and copyrighted. Title to Software and
all associated intellectual property rights is retained by Sun and/or its
licensors. Except as specifically authorized in any Supplemental License Terms,
you may not make copies of Software, other than a single copy of Software for
archival purposes. Unless enforcement is prohibited by applicable law, you may
not modify, decompile, or reverse engineer Software. You acknowledge that
Software is not designed, licensed or intended for use in the design,
construction, operation or maintenance of any nuclear facility. Sun disclaims
any express or implied warranty of fitness for such uses. No right, title or
interest in or to any trademark, service xxxx, logo or trade name of Sun or its
licensors is granted under this Agreement.
3. LIMITED WARRANTY. Sun warrants to you that for a period of ninety (90) days
from the date of purchase, as evidenced by a copy of the receipt, the media on
which Software is furnished (if any) will be free of defects in materials and
workmanship under normal use. Except for the foregoing, Software is provided "AS
IS". Your exclusive remedy and Sun's entire liability under this limited
warranty will be at Sun's option to replace Software media or refund the fee
paid for Software.
4. DISCLAIMER OF WARRANTY. UNLESS SPECIFIED IN THIS AGREEMENT, ALL EXPRESS OR
IMPLIED CONDITIONS, REPRESENTATIONS AND WARRANTIES, INCLUDING ANY IMPLIED
WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE OR
NON-INFRINGEMENT ARE DISCLAIMED, EXCEPT TO THE EXTENT THAT THESE DISCLAIMERS ARE
HELD TO BE LEGALLY INVALID.
5. LIMITATION OF LIABILITY. TO THE EXTENT NOT PROHIBITED BY LAW, IN NO EVENT
WILL SUN OR ITS LICENSORS BE LIABLE FOR ANY LOST REVENUE, PROFIT OR DATA, OR FOR
SPECIAL, INDIRECT, CONSEQUENTIAL, INCIDENTAL OR PUNITIVE DAMAGES, HOWEVER CAUSED
REGARDLESS OF THE THEORY OF LIABILITY, ARISING OUT OF OR RELATED TO THE USE OF
OR INABILITY TO USE SOFTWARE, EVEN IF SUN HAS BEEN ADVISED OF THE POSSIBILITY OF
SUCH DAMAGES. In no event will Sun's liability to you, whether in contract, tort
(including negligence), or otherwise, exceed the amount paid by you for Software
under this Agreement. The foregoing limitations will apply even if the above
stated warranty fails of its essential purpose.
EXHIBIT 10.5
6. Termination. This Agreement is effective until terminated. You may terminate
this Agreement at any time by destroying all copies of Software. This Agreement
will terminate immediately without notice from Sun if you fail to comply with
any provision of this Agreement. Upon Termination, you must destroy all copies
of Software.
7. Export Regulations. All Software and technical data delivered under this
Agreement are subject to US export control laws and may be subject to export or
import regulations in other countries. You agree to comply strictly with all
such laws and regulations and acknowledge that you have the responsibility to
obtain such licenses to export, re-export, or import as may be required after
delivery to you.
8. U.S. Government Restricted Rights. If Software is being acquired by or on
behalf of the U.S. Government or by a U.S. Government prime contractor or
subcontractor (at any tier), then the Government's rights in Software and
accompanying documentation will be only as set forth in this Agreement; this is
in accordance with 48 CFR 227.7201 through 227.7202-4 (for Department of Defense
(DOD) acquisitions) and with 48 CFR 2.101 and 12.212 (for non-DOD acquisitions).
9 Governing Law. Any action related to this Agreement will be governed by
California law and controlling U.S. federal law. No choice of law rules of any
jurisdiction will apply.
10. Severability. If any provision of this Agreement is held to be
unenforceable, this Agreement will remain in effect with the provision omitted,
unless omission would frustrate the intent of the parties, in which case this
Agreement will immediately terminate.
11. Integration. This Agreement is the entire agreement between you and Sun
relating to its subject matter. It supersedes all prior or contemporaneous oral
or written communications, proposals, representations and warranties and
prevails over any conflicting or additional terms of any quote, order,
acknowledgment, or other communication between the parties relating to its
subject matter during the term of this Agreement. No modification of this
Agreement will be binding, unless in writing and signed by an authorized
representative of each party.
STARSUITE, VERSION 6.0 SUPPLEMENTAL LICENSE TERMS
These supplemental license terms ("Supplemental Terms") add to or modify the
terms of the Binary Code License Agreement (collectively, the "Agreement").
Capitalized terms not defined in these Supplemental Terms shall have the same
meanings ascribed to them in the Agreement. These Supplemental Terms shall
supersede any inconsistent or conflicting terms in the Agreement, or in any
license contained within the Software.
1. SOFTWARE LICENSE TO USE. Subject to the terms and conditions of this
Agreement, Sun grants you a non-exclusive, nontransferable, limited license to
use up to five (5) complete and unmodified copies of the binary form of the
Software installed only on computers that you operate.
2. LINUX END USER LICENSE TO USE. Subject to the terms and conditions of this
Agreement, if you are a Linux operating system end user and you received the
Software as part of a Linux operating system bundle, Sun grants you a
non-exclusive and non-transferable license for the internal use only of the
accompanying unmodified binary form of the Software.
3. EDUCATIONAL INSTITUTION LICENSE TO USE. Subject to the terms and conditions
of this Agreement, if you are an educational institution, Sun grants you a
non-exclusive and non-transferable license for the
EXHIBIT 10.5
internal use only of the accompanying unmodified binary form of the Software. In
this situation "internal use" means that your enrolled students, faculty and
staff may use the Software.
4. FONT SOFTWARE. The Software contains font software which generates typeface
designs ("Font Software"). You may not separate the Font Software from the
Software. You may not alter Font Software for the purpose of adding any
functionality which such Font Software did not have when delivered to you as
part of the Software. You may not embed Font Software into a document which is
distributed as a commercial product in exchange for a fee or other consideration
(For example, End-Users shall not embed Font Software into an electronic book
that is offered to the public for a fee).
5. TRADEMARKS AND LOGOS. You acknowledge and agree as between you and Sun that
Sun owns the SUN, STARSUITE, SOLARIS, JAVA, JINI, FORTE, iPLANET trademarks and
all SUN, SOLARIS, JAVA, JINI, FORTE, and iPLANET-related trademarks, service
marks, logos and other brand designations ("Sun Marks"), and you agree to comply
with the Sun Trademark and Logo Usage Requirements currently located at
xxxx://xxx.xxx.xxx/xxxxxxxx/xxxxxxxxxx. Any use you make of the Sun Marks inures
to Sun's benefit.
6. SOURCE CODE. Software may contain source code that is provided solely for
reference purposes pursuant to the terms of this Agreement. Source code may not
be redistributed unless expressly provided for in this Agreement.
7. TERMINATION FOR INFRINGEMENT. Either party may terminate this Agreement
immediately should any Software become, or in either party's opinion be likely
to become, the subject of a claim of infringement of any intellectual property
right.
8. LIMITED WARRANTY. Any implied warranties on the Software are limited to 90
days. Some states do not allow limitations on duration of an implied warranty,
so the above may not apply to you. This limited warranty gives you specific
legal rights. You may have others, which vary from state to state.
9. LIMITATION OF LIABILITY. Some states do not allow the exclusion of incidental
or consequential damages, so some of the terms of Section 5, Limitation of
Liability, above may not be applicable to you.
10. JAVA TECHNOLOGY RESTRICTIONS. You may not modify the Java Platform Interface
("JPI", identified as classes contained within the "java" package or any
subpackages of the "java" package), by creating additional classes within the
JPI or otherwise causing the addition to or modification of the classes in the
JPI. In the event that you create an additional class and associated API(s)
which (i) extends the functionality of the Java platform, and (ii) is exposed to
third party software developers for the purpose of developing additional
software which invokes such additional API, you must promptly publish broadly an
accurate specification for such API for free use by all developers. You may not
create, or authorize your licensees to create, additional classes, interfaces,
or subpackages that are in any way identified as "java", ` javax", "sun" or
similar convention as specified by Sun in any naming convention designation.
Refer to the appropriate version of the Java Runtime Environment binary code
license (currently located at xxxx://xxx.xxxx.xxx.xxx/xxx/xxxxx.xxx]) for the
availability of runtime code which may be distributed with Java applets and
applications.
For inquiries please contact: Sun Microsystems, Inc., 000 Xxx Xxxxxxx Xxxx, Xxxx
Xxxx, Xxxxxxxxxx 00000 (LF1 #111636)
EXHIBIT 10.5
JN MICROSYSTEMS, INC. PROPRIETARY AND CONFIDENTIAL
Agreement Number 115804
ATTACHMENT 3
TRADEMARK LICENSE AGREEMENT
This Trademark License Agreement ("Trademark Agreement") is entered into as of
the Effective Date between Sun Microsystems, Inc. and its affiliates, with
offices at 000 Xxx Xxxxxxx Xxxx, Xxxx Xxxx, Xxxxxxxxxx 00000 ("Sun)" and
Customer set forth below ("Customer"):
CUSTOMER MUST COMPLETE THE INFORMATION BELOW, REVIEW AND SIGN THE TRADEMARK
AGREEMENT, AND RETURN IT TO SUN AT: SUN MICROSYSTEMS, INC., STAROFFICE
SOFTWARE OEM SALES DEPARTMENT, 901 SAN ANTONIO ROAD, MAILSTOP: USCA12-101,
XXXX XXXX, XXXXXXXXXX 00000.
Customer: Xxxxxxx.xxx
Contact: _____________________________
Address: 0000 Xxxxxxx Xxxxxx, 0xx Xxxxx
Xxx Xxxxx, Xxxxxxxxxx 00000
X.X.X.
Tel: 000-000-0000
Fax: 000-000-0000
E-mail: __________________________
Sun and Customer entered into a StarOffice Software OEM License and Distribution
Agreement ("StarOffice OEM License Agreement") allowing Customer to bundle Sun's
StarOffice' application Software with Customer's Product. This Trademark
Agreement sets forth the terms and conditions for Customer's licensing and use
of the StarOffice Logo, StarOffice word xxxx, and ___ Logo in connection with
Customers distribution and marketing of Customers Products that contain the
Software. The terms and conditions of this Trademark Agreement shall supersede
any inconsistent or conflicting terms and conditions in the StarOffice OEM
License Agreement, including Attachments. This Trademark Agreement includes by
reference Attachment 3-A, entitled Licensed Trademarks, as an integral part
hereto.
In consideration of the mutual promises and covenants set forth in this
Trademark Agreement, and for other good and valuable consideration, receipt of
which is hereby acknowledged, the parties agree to the terms and conditions
herein.
IN WITNESS WHEREOF, the parties hereby execute this Trademark Agreement through
the authorized representatives whose names appear below..
SUN: XXXXXXX.XXX
By: /s/ Xxxxxx Xxxx By: /s/ Xxxxx Xxxxxxx
------------------------------- ----------------------------------
Name: Xxxxxx Xxxx Name: Xxxxx Xxxxxxx
----------------------------- --------------------------------
(printed or typed) (printed or typed)
Title: Manager - STS Sales Ops Title: President
---------------------------- -------------------------------
Date: 6/29/02 Date: 6-28-02
----------------------------- --------------------------------
EXHIBIT 10.5
1.0 DEFINITIONS
1.1 All capitalized terms shall have the same meaning set forth in the
StarOffice OEM License Agreement.
2. LICENSE AND PERMISSION GRANTS
2.1 License Grant to Customer. Subject to and conditioned upon compliance
with all of the terms in this Trademark Agreement, including without limitation
Sections 3, 4 and 5, and with the terms in the StarOffice OEM License Agreement,
Sun grants to Customer, for the term set forth in Section 8 and within the
Territory, a limited, non-exclusive, non-transferable, personal, royalty-free
license to use, and Customer agrees to use, certain of the Licensed Trademarks
in the manner specified in Section 5 of this Trademark Agreement in connection
with the distribution, sale and marketing of all Customer's Product(s) that
incorporate the Software. Customer is granted no other right, title, license to
or interest in the Licensed Trademarks, or any of the Sun Trademarks, for any
purpose, and specifically is granted no right to sublicense the Licensed
Trademarks. This grant does not extend to Customer's subsidiaries, affiliates,
suppliers, distributors, dealers, agents, customers, or other third-party
entities. Customer's use of the Licensed Trademarks inures solely to Sun's
benefit.
2.2 Territory. Customer may use the Licensed Trademarks in the Territory. Sun
may eliminate, any jurisdiction from the Territory if it determines that use of
one or more of the Licensed Trademarks in such jurisdiction may subject Sun or a
third party to legal liability, or may jeopardize Sun's rights in such
jurisdiction. In such event, within sixty (60) calendar days of receipt of
notice from Sun, or such earlier date as may be required by court or judicial
order, Customer shall cease all use of the Licensed Trademark(s) in such
jurisdiction. Customer is granted no right to use the Licensed Trademarks
outside the Territory, and shall not distribute Customer's Product, packaging or
Customer Marketing Collateral containing the Licensed Trademarks outside the
Territory.
2.3 No Limitation On Sun's Use. Nothing in this Trademark Agreement shall:
(a) prohibit Sun from offering to customers, directly or indirectly, products,
services and/or other items that are the same or similar to those of Customer;
or (b) limit or restrict, in any way or manner, any right of Sun to register,
defend, protect, maintain, encumber, transfer, license, access, reference, use,
exploit, enforce or practice any of the Sun Trademarks in any way, anywhere in
the world, for any purpose.
2.4 Permission Grant to Sun. Customer grants to Sun permission to use,
display, publish, copy and otherwise distribute, in any medium, Customer's name
and company logo solely to identify Customer: (a) on the StarOffice program
website within xxxx://xxx.xxx.xxx and (b) in listings of StarOffice Customers.
With Customer's prior approval, Sun may use Customer's name, logo and other
relevant information in Sun Marketing Collateral. Sun shall own all right, title
and interest in and to all of Sun Marketing Collateral, in any medium,
associated with the program, except for Customer's preexisting rights contained
in any such materials.
3.0 PROTECTION OF THE TRADEMARKS
3.1 Sun's Ownership And Rights. As between Sun and Customer, Customer agrees
that Sun is the sole owner of the Sun Trademarks and all associated goodwill.
Customer shall not: (a) challenge Sun's ownership or use, or the validity, of
the Sun Trademarks; (b) attempt to adopt or register any xxxx or logo identical
or substantially similar to any Sun Trademarks, including without limitation any
translation or transliteration thereof, or any other variants similar to Sun
Trademarks in appearance, pronunciation or meaning; (c) remove, alter, or add to
any of the Sun Trademarks; or (d) incorporate any of the Sun
EXHIBIT 10.5
Trademarks into Customer's trademarks, product names, service marks, company
names, slogans, domain names, or any other similar designations. Sun, in its
sole discretion, may change the Licensed Trademarks at any time, but shall give
Customer reasonable advance notice of such change.
3.2 Assignment Of Rights. If Customer acquires any rights in any of the
Licensed Trademarks by operation of law or otherwise, Customer shall, at no
expense to Sun, immediately assign such rights to Sun, along with all associated
goodwill. If such assignment cannot be completed for any reason, Customer hereby
irrevocably grants to Sun, and Sun accepts, an exclusive, worldwide, perpetual,
royalty-free, transferable and sublicensable right to use the Licensed
Trademarks and shall, at Sun's sole discretion, cancel, withdraw or delete any
applications or registrations of the Licensed Trademarks acquired by Customer.
3.3 Further Assurances. Customer agrees to cooperate with Sun and take all
reasonable actions required to assist Sun to secure, protect and maintain
ownership rights in the Licensed Trademarks worldwide, including but not limited
to giving prompt notice to Sun of any known or potential infringement of the
Licensed Trademarks of which Customer becomes aware, and cooperating with Sun in
the preparation, execution and/or recordation of any documents necessary to
register or otherwise protect the Licensed Trademarks, and maintaining or
terminating, as applicable, such documents or recordation. Sun shall reimburse
Customer for the reasonable costs associated with providing such assistance,
except to the extent that any such costs result from Customer's breach of this
Trademark Agreement.
3.4 Enforcing Trademark Rights. Sun may commence, prosecute or defend any
action or claim concerning the Licensed Trademarks. Sun shall have the right to
control any such action, and Customer shall fully cooperate with Sun in any such
action, including the satisfaction of procedural requirements necessary to bring
such action in a particular jurisdiction. Sun shall reimburse Customer for the
reasonable costs associated with providing such assistance to Sun, except to the
extent that any such costs result from Customer's breach of this Trademark
Agreement. Customer shall not commence any action regarding the Licensed
Trademarks or any of the Sun Trademarks without Sun's prior written consent,
which Sun may withhold.
4.0 QUALITY STANDARDS
4.1 Customer's Product with which the Licensed Trademarks are associated
shall be of a high quality that is at least equal to Customer's overall
reputation for high quality products and that meets or exceeds industry
standards.
4.2 Customer shall comply with all applicable laws, rules and regulations of
the jurisdictions in which it uses the Licensed Trademarks, and Customer shall
not violate or infringe any rights of any third party in connection with its
distribution of Customer's Product.
4.3 Sun shall have the right, and Customer agrees to allow Sun, to inspect
Customer's Products with which the Licensed Trademarks are associated. Prior to
first shipment of Customer's Product, Customer shall provide to Sun, at no
charge to Sun, samples of Customer's Product, packaging and Customer Marketing
Collateral to ensure correct usage of the Licensed Trademarks, and, in its sole
discretion shall determine if Customer's use is in compliance with this
Trademark Agreement, and Sun shall advise Customer, in writing, whether
compliance is met. Customer agrees not to ship Customer's Product or distribute
Customer Marketing Collateral without Sun's prior written approval of
compliance.
EXHIBIT 10.5
4.4 Customer shall give prompt notice to Sun of any material complaint or
other indication by any customer or other third party that Customer's Product,
packaging or Customer Marketing Collateral may not conform to the quality
standards set forth in this Trademark Agreement.
5.0 TRADEMARK USAGE STANDARDS
5.1 Usage. Customer must use the Licensed Trademarks in the manner specified
in this Trademark Agreement and in accordance with the Sun Trademark and Logo
Usage Requirements set forth at xxxx://xxx.xxx.xxx/xxxxxxxx/xxxxxxxxxx, which
Sun may modify from time to time in its sole discretion and which are
incorporated here by reference.
5.2 Trademark and Logo Use & Placement.
(a) The Sun Logo and StarOffice Logo must appear on the outside packaging
of all Customer's Products that incorporate the StarOffice Software.
(b) The Sun Logo and StarOffice Logo must appear on CDs and/or DVDs
distributed by Customer that incorporate the StarOffice Software.
(c) The Sun Logo and StarOffice Logo must appear on Customer Marketing
Collateral.
(d) If Customer has an Internet presence, there must be a StarOffice
Software description on Customer's website that states:
StarOffice(TM)software is a complete office productivity suite that is
changing the rules about software because it's multiplatform, based on
open standards, and compatible with Microsoft Office files. Since the
StarOffice(TM)suite is fully integrated, you can do what you want, when
you want, without changing applications. Look up a fact on the Internet
while writing a report. Send an e-mail while creating a presentation. The
software is even smart enough to make sure you have the tools you need at
all times, no matter which application you're using. And it's easy to
share documents with people using Microsoft Office as well as other
popular applications. Sun's StarOffice(TM)productivity suite is the right
choice for those who want, well .... a choice!
(e) The StarOffice Logo and Sun Logo must be placed on Customer's web
pages promoting Customer's Product (including but not limited to web pages from
which Customer's Product is available for download), and such pages must have a
link to xxxx://xxx.xxx,com/staroffice. Customer must inform Sun where the Sun
URL and the Licensed Trademarks are placed on Customer's website.
(f) Prohibited. The Sun Logo cannot be used as a stand-alone logo and must
be used in conjunction with the StarOffice Logo.
(g) Other uses of Sun Trademarks: Customer may not use any Sun Trademarks,
including the Licensed Trademarks, in or on product, packaging, marketing
collateral, or web pages other than in connection with Customer's Product that
incorporates the Software. All use of Sun Trademarks by Customer shall be in
accordance with this Trademark Agreement.
5.3 Artwork. Customer shall use the Sun Logo and the StarOffice Logo only in
the exact form received from Sun or Sun's designee. The reproduction of the
Licensed Trademarks in Attachment 3-A is for reference only.
EXHIBIT 10.5
5.4 Symbols. Whenever Customer uses the Licensed Trademarks, Customer shall
attribute such xxxx or marks by using the (R) or (TM) symbols, whichever is
appropriate as set forth in the artwork and/or graphics provided by Sun or Sun's
designee to Customer. The appropriate symbol shall accompany the Licensed
Trademark in all prominent uses of the xxxx, including use on Customer's
Product, packaging, and Customer's web pages promoting Customer's Product, and
the first use in body copy or text of Customer Marketing Collateral.
5.5 Legend. Customer shall legibly display the following trademark legend in
an appropriate location on Customer's Product and packaging, on Customer's web
pages promoting Customer's Product, and on Customer Marketing Collateral:
"StarOffice, the StarOffice Logo and the Sun Logo are trademarks or
registered trademarks of Sun Microsystems, Inc. in the United States and
other countries, and are used under license."
5.6 Avoiding Confusion as to Source. Customer agrees to use the Licensed
Trademarks in a manner that will not create any confusion regarding source of
the Customer's Product. To mitigate any likelihood of confusion:
(a) Customer must ensure that the Licensed Trademarks are used only to
refer to the fact that Sun's StarOffice Software is incorporated into or bundled
with Customer's Product;
(b) the Licensed Trademarks must not appear larger or more prominent than
Customer's company name, marks or designations used for Customer's Product;
(c) Customer must not alter the artwork or graphics depicting the Licensed
Trademarks provided by Sun or its designee to Customer;
(d) the Licensed Trademarks must not be combined with any other graphic or
textual elements and must not be used as a design element of any other logo or
trademark.
6.0 WARRANTIES; LIMITATION OF LIABILITY
6.1 SUN MAKES NO WARRANTIES OF ANY KIND WITH RESPECT TO THE LICENSED
TRADEMARKS, INCLUDING THE VALIDITY OF SUN'S RIGHTS IN THE LICENSED TRADEMARKS IN
ANY COUNTRY, AND DISCLAIMS ANY AND ALL WARRANTIES AND CONDITIONS THAT MIGHT
OTHERWISE BE IMPLIED BY APPLICABLE LAW INCLUDING WARRANTIES AGAINST INFRINGEMENT
OF THIRD PARTY TRADEMARKS AND/OR SIMILAR RIGHTS.
6.2 IN NO EVENT SHALL SUN BE LIABLE FOR ANY DAMAGES, WHETHER DIRECT,
INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL OR PUNITIVE (INCLUDING, WITHOUT
LIMITATION LOSS OF PROFITS, REVENUE, BUSINESS, DATA OR OTHER ECONOMIC
ADVANTAGE), REGARDLESS OF THE THEORY OF LIABILITY, ARISING FROM OR RELATING TO
CUSTOMER'S USE OF THE LICENSED TRADEMARKS, OR TERMINATION OF THIS TRADEMARK
AGREEMENT, EVEN IF CUSTOMER HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
LIABILITY FOR SUCH DAMAGES IS EXCLUDED EVEN IF THE EXCLUSIVE REMEDIES PROVIDED
FOR IN THIS TRADEMARK AGREEMENT FAIL OF THEIR ESSENTIAL PURPOSE.
EXHIBIT 10.5
7.0 ASSIGNMENT
Sun may assign this Trademark Agreement or any of its rights or obligations
hereunder in any manner in its sole discretion. Customer may not assign or
otherwise transfer this Trademark Agreement or any of its rights or obligations
hereunder without Sun's written consent, which Sun may withhold in its sole
discretion. This Trademark Agreement shall be binding upon and inure to the
benefit of the permitted successors and assigns of the parties hereto.
8.0 TERM AND TERMINATION
8.1 This Trademark Agreement shall commence on the date upon which Sun signs
below and shall continue for a period of one (1) year. This Trademark Agreement
shall be renewed automatically for successive one (1) year terms (with a maximum
of two (2) subsequent terms).
8.2 Sun shall have the right, at its sole discretion and without incurring
any liability to Customer, to modify or terminate this Trademark Agreement with
a written notice to Customer.
8.3 Upon termination or expiration of this Agreement, Licensee shall
discontinue all use of the Licensed Trademarks as promptly as possible, and the
license and rights granted hereunder shall terminate completely, Nothing in this
Section 8.3 shall limit Sun's rights to pursue other legal remedies, including
immediate court or judicial relief.
9.0 SURVIVAL
The rights and obligations under this Trademark Agreement which by their nature
should survive, including, but not limited to, Sections ___, 6, 8.3, 9 and 10
shall remain in effect after termination or expiration of this Trademark
Agreement.
10.0 GENERAL PROVISIONS
10.1 In the event there is any inconsistency between this Trademark Agreement
and any of the other Attachments in the StarOffice OEM License Agreement, this
Trademark Agreement controls.
10.2 This Trademark Agreement is not intended to and shall not create a
relationship between the parties, such as a partnership, franchise, joint
venture, agency or employment relationship of any kind.
10.3 All notices required by this Trademark Agreement must be in writing and
delivered in person or by means evidenced by a delivery receipt, will be
effective upon receipt, and shall be delivered to Sun and Customer at the
addresses first set forth in this Trademark Agreement.
10.4 Any express waiver or failure to exercise promptly any right under this
Trademark Agreement will not create a continuing waiver or any expectation of
non-enforcement. To be enforceable, a waiver must be in writing and signed by
the waiving party.
10.5 If any provision of this Trademark Agreement is held invalid by any
competent authority, such invalidity will not affect the enforceability of other
provisions, and in such event, the parties agree that such provision will be
replaced with a new provision that accomplishes the original business purpose.
10.6 This Trademark Agreement is made under and shall be governed by and
construed under the laws of the State of California, and controlling U.S.
federal law, and the choice of law rules of any jurisdiction shall not apply.
The parties agree that any action arising out of this Trademark Agreement
shall be brought in the U.S. District Court for the Northern District of
California or the California Superior Court, County of Santa Xxxxx, as
applicable, and the parties hereby submit exclusively to the personal
jurisdiction and venue of such Courts.
10.7 Licensee acknowledges that a material breach of the obligations in
Sections 2, 3, 4, 5, 7, and 8.3, and Section 10.10 of this Agreement would cause
irreparable harm to Sun for which damages would not be an adequate remedy.
Therefore, in addition to its rights and remedies otherwise available at law,
including, without limitation, the recovery of damages for breach of this
Agreement, Sun shall be entitled to immediate equitable relief, specifically
including, but not limited to, both interim and permanent restraining orders and
injunctions, and to such other and further equitable relief as the court may
deem proper under the circumstances.
10.8 If any legal action or other proceedings are brought for the enforcement
of this Trademark Agreement, the successful or prevailing party shall be
entitled to recover reasonable attorney's fees and other costs incurred in an
action or proceeding in addition to any other relief to which that party may be
entitled.
10.9 The English language version of this Trademark Agreement governs the
understanding of the parties. In the event of a conflict between the English
language version and a translated version of this Trademark Agreement, the
English language version controls. All translations of this Trademark Agreement
into other languages are for convenience only.
10.10 Neither party may assign this Agreement or any of its rights or
obligations hereunder without the other party's prior written consent, such
consent not to be unreasonably withheld. This Agreement shall be binding upon
and inure to the benefit of the permitted successors and assigns of the parties
hereto.
10.11 If one party desires that information provided to the other under this
Agreement be held in confidence, the disclosing party will designate the
information in writing as confidential or proprietary. Intangible information
shall be identified as confidential or proprietary at the time of disclosure,
and within thirty (30) calendar days of the disclosure shall be reduced to
writing and transmitted to the receiving party pursuant to the notice provisions
of Section 10.3. The receiving party may not disclose the other party's
confidential or proprietary information, other than to a subsidiary, agent, or
contractor of the receiving party who has _____ to be bound by the terms of the
duty of confidentiality contained in this Section 10.11, and may use such
information only in election with Customer's participation in the Program,
including without limitation any associated audits. The receiving party will
_______ confidential and proprietary information of the disclosing party that
has been previously identified as confidential or proprietary with at least the
same degree of care as it does its own such information, but no less than a
reasonable degree of care. The foregoing obligations do not apply to information
which: (a) was in the possession of, or was known by, the receiving party prior
to its receipt from the disclosing party; (b) is obtained by the receiving party
from a third party without an obligation to keep such information confidential;
(c) is or becomes generally known to the public without violation of this
Agreement; (d) is independently developed by the receiving party without use of
the confidential information of the other party; or (e) is disclosed in response
to a valid court or governmental order or regulatory directive, if the receiving
party has given the other party prior notice to afford the other party the
opportunity to object. This section will not affect any other confidential
disclosure agreement between the parties.
10.12 Each party acknowledges that it understands the terms of this Trademark
Agreement and has had the opportunity to consult with independent counsel of its
own choice throughout all negotiations that preceded, and occurred in connection
with, the execution of this Trademark Agreement.
EXHIBIT 10.5
10.13 No Modifications. Customer represents and warrants that it has not in
any way unilaterally modified the terms of this Agreement as provided by Sun,
and is signing the most recent version of this Trademark Agreement provided by
Sun.
10.14 This Trademark Agreement is the parties' entire agreement relating to
its subject matter. It supersedes all prior and contemporaneous oral or written
communications, proposals, conditions, representations, and warranties, and
prevails over any conflicting or additional terms of any quote, order,
acknowledgment, or other communication between the parties relating to its
subject matter during the term of this Trademark Agreement. No modification to
this Trademark Agreement will be binding, unless in writing and signed by an
authorized representative of each party.
EXHIBIT 10.5
JN MICROSYSTEMS, INC. PROPRIETARY AND CONFIDENTIAL
Agreement Number 115804
ATTACHMENT 3-A
LICENSED TRADEMARKS
STAROFFICE WORD XXXX:
StarOffice(TM)
STAROFFICE LOGO(S):
STAROFFICE(TM)
STAROFFICE(TM)
xxx.xxx/xxxxxxxxxx
SUN LOGO:
SUN
MICROSYSTEMS
If you have questions or would like further information regarding Sun and/or
StarOffice trademarks or the Sun/ Trademark and Logo Usage Requirements, please
contact:
SMI Marketing & Trademarks Department
Sun Microsystems, Inc.
000 Xxx Xxxxxxx Xxxx, MS-PALO 0-000
Xxxx Xxxx, XX 00000
Fax: (000) 000-0000
General Hotline: (000) 000-0000
Group E-mail: trademarks!x0xx.xxx
Do not send your signed Trademark Agreement to this address or use this address
to provide notice under this agreement.
