EXHIBIT 10.1
Novell/Company Confidential
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INBOUND LICENSE AGREEMENT
1. PREAMBLE. This Inbound License Agreement ("Agreement") is agreed to by
CaminoSoft Corporation, a corporation with its principal place of business
at ▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇ ▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇
("Company"), and Novell, Inc., a Delaware corporation with principal
offices at ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇ ("Novell").
2. PURPOSE. Novell develops and markets computer software products. Company
develops and markets computer software products that interoperate with
NetWare, eDirectory and/or other Novell products as specified elsewhere in
this Agreement. This Agreement sets forth the terms and conditions under
which Company will license the Licensed Works defined below to Novell,
including obligations of Company to meet certain technical requirements to
ensure the suitability of the Licensed Works for operation with Novell
products.
3. DEFINITIONS.
a. "BINARY CODE" means computer programming code that loads and executes
without further processing by a software compiler or linker or that
results when Source Code is processed by a software compiler.
b. "DERIVATIVE WORK" means a work that is based on one or more
preexisting works (such as a revision, enhancement, modification,
translation, abridgement, condensation, expansion, or any other form
in which such preexisting work may be recast, transformed, or adapted)
and that, if prepared without authorization of the copyright owner of
such preexisting work, would constitute copyright infringement.
c. "DOCUMENTATION" means user manuals and other materials in any form
that relate to or are made available to facilitate end use of the
Licensed Works. With respect to Source Code, Documentation means
materials that conceptualize or facilitate the creation, development,
or implementation of code (for example, logic manuals, flow charts,
and principles of operation).
d. "EFFECTIVE DATE" means the later of the dates on which this Agreement
is executed by an authorized representative of Company and Novell.
e. "GENERAL AVAILABILITY" and "GENERALLY AVAILABLE" mean available to
members of the general public.
f. "LICENSED TRADEMARK(S)" means the following word marks, their
associated design marks and logos, and all other trademarks and trade
dress used by Company to identify and/or market the Licensed
Works:
CAMINOSOFT MANAGED SERVER
g. "LICENSED WORK(S)" means all versions of the following works in Binary
Code form only (unless otherwise specified), including all localized
and/or enabled versions, all corresponding patches, service packs,
updates, upgrades, and all corresponding subsets and supersets, and
includes a ninety (90) day evaluation version of each Licensed Work:
CAMINOSOFT MANAGED SERVER
h. "MANUFACTURED PRODUCT(S)" means copies and/or packages of the Licensed
Works manufactured by Company for Novell.
i. "NET REVENUE(S)" means gross sales less discounts and returns.
j. "SOURCE CODE" means the human-readable form of computer programming
code and related Documentation, including all comments and any
procedural language.
4. LICENSE GRANTS TO NOVELL; OWNERSHIP. The licenses granted under this
Agreement shall be under all of Company's inventions, discoveries, patents,
copyrights, inventor's certificates, utility models (and similar forms of
legal protection of any country), trade secrets, and other proprietary
rights, including those of third parties under which Company has the right
to grant licenses, necessary to exercise the rights granted under this
Agreement, regardless of when such proprietary rights were first conceived,
reduced to practice, created, or perfected.
a. LICENSED WORKS. Company grants to Novell the non-exclusive, worldwide,
fully paid-up, and royalty-free (except as otherwise indicated in this
Agreement) right to use, reproduce, distribute (by sale, lease,
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rental, or otherwise via any medium), display, and perform the
Licensed Works and any authorized modifications thereto, and to
directly or indirectly sublicense the foregoing rights. To the extent
that a Licensed Work has a serial number, enabling key, or other
similar unlocking mechanism, Novell is authorized to distribute such
unlocking mechanism separately from the Licensed Work software.
b. LOCALIZATION. To the extent that Company does not provide localized
versions desired by Novell, Company grants to Novell the non-
exclusive, worldwide, fully paid-up, and royalty-free (except as
otherwise indicated in this Agreement) right to localize, or have
localized, the Licensed Works and Licensed Trademarks.
c. LICENSED TRADEMARKS. Company grants Novell a worldwide, non-exclusive,
non-transferable, royalty-free, fully paid-up license to use the
Licensed Trademarks in connection with the distribution and marketing
of Licensed Works, and to directly or indirectly sublicense the
foregoing rights. Company will at all times use commercially
reasonable efforts to preserve the value and validity of the Licensed
Trademarks. Company shall notify Novell of all claims that the
Licensed Trademarks conflict with the rights of third parties. Company
hereby expressly represents that the existing Licensed Trademarks are
valid and are the exclusive property of Company. If Novell has a
substantial business concern that Novell will not be able to freely
market and distribute the Licensed Works due to a conflict with a
third party over use of the Licensed Trademarks. Novell shall notify
Company and Company shall resolve the conflict or provide a
replacement trademark within five (5) days of Novell's written notice.
The replacement trademark shall be deemed a Licensed Trademark. If
Company cannot resolve the conflict or provide a suitable replacement
trademark in such time period, Novell shall be free to market and
distribute the Licensed Works under a generic name. If Company later
provides a suitable replacement name, Novell will discontinue use of
the generic name and will use the new replacement trademark as soon as
it is able to do so without incurring additional costs or disruption
of distribution.
d. OWNERSHIP. Unless specifically stated otherwise, this Agreement shall
not change the ownership of any materials developed or provided under
this Agreement.
5. PRODUCT REQUIREMENTS AND DELIVERY. The "PRODUCT REQUIREMENTS" for the
Licensed Works are the requirements set forth in this section and in
Exhibit A to this Agreement. Company shall deliver to Novell Licensed
Works that conform to the Product Requirements. Such deliveries shall be
in accordance with the schedules set forth in Exhibit A; to any extent
that Exhibit A does not contain delivery dates for any particular
deliverable. Company shall provide the deliverable to Novell upon the
completion of its development.
a. CERTIFICATION. The Licensed Works shall qualify for Novell's then
current Novell product compatibility ▇▇▇▇. Qualification is achieved
by Company meeting certification testing and other DeveloperNet Labs
requirements.
b. PRODUCT DISTRIBUTION QUESTIONNAIRE. Novell requires certain
information about products prior to distribution. Company shall,
concurrent with the delivery of any and all Licensed Works pursuant
to this Agreement, deliver a document providing information in the
form of the then current Product Distribution Questionnaire, the
current form of which is attached as Exhibit C. After initial
delivery of a Licensed Work, Company may provide the required
information in the form of the then current Supplemental Product
Distribution Questionnaire, also attached in Exhibit C.
c. GLOBALIZATION. Company agrees to enable the Licensed Works for
localization in compliance with Novell's then current enablement and
localization standards.
d. HARMFUL CODE. The Licensed Works shall be free of Harmful Code.
Company agrees to implement reasonable procedures adequate to prevent
any code provided to Novell hereunder from being contaminated with
Harmful Code. If Company learns or suspects that any code provided to
Novell under this Agreement contains any Harmful Code, Company will
immediately notify Novell and remove the Harmful Code. For purposes of
this section, "HARMFUL CODE" shall mean any code constructed with the
ability to damage, interfere with, or adversely affect computer
programs, data files, or hardware without the consent or intent of the
computer user. This definition includes, but is not limited to,
self-replacing and self-propagating programming instructions commonly
called "viruses," "trojan horses" and "worms."
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c. PARITY WITH NON-NOVELL VERSIONS. Within thirty (30) days of the
General Availability of any versions of a Licensed Work on a
non-Novell platform, Company shall deliver a version of the Licensed
Works for Novell platforms that has functionality equivalent to the
version of the Licensed Work for the non-Novell platform.
Functionality shall be equivalent to the maximum extent possible
taking into account any functional limitations of the Novell platform
as compared to the non-Novell platform.
f. END USER LICENSING. In the copies of the Licensed Works provided to
Novell, Company will electronically embed (i) Company's end user
license agreement, with Company as the licensor, that is consistent
with the purposes of this Agreement, and (ii) the end user
Documentation.
6. DEVELOPMENT, MAINTENANCE, AND SUPPORT.
a. DEVELOPERNET. Company agrees to join Novell's DeveloperNet program.
Novell will provide technical support of any Company development
efforts hereunder through DeveloperNet Labs and, if mutually agreed
upon, through Novell engineering personnel, in either case such
support being subject to the terms and conditions of a separate
DeveloperNet Labs Agreement.
b. MAINTENANCE. Company shall provide maintenance for the Licensed Works
according to the terms and conditions of Sections 5 and 6.
c. SECTION 508 MAINTENANCE. Certain legislation, such as Section 508 as
defined below, creates requirements that information technology
products be accessible to persons with certain disabilities. Should
customers, including governments and related entities, be precluded
from acquiring licenses to the Licensed Works under either the
requirements of that United States federal law, and associated rules
and regulations, known as the 1998 Rehabilitation Act Amendments to
Section 508 of the Rehabilitation Act of 1973, or similar laws and
regulations in other jurisdictions (collectively "SECTION 508"),
Company will promptly assign senior engineering maintenance staff to
work full-time until customers are no longer so precluded, and
Company will otherwise cooperate with Novell in providing any
materials or information to such customers regarding Section 508
compliance of the Licensed Works.
d. SUPPORT. Company shall provide support to Novell for the Licensed
Works in accordance with the terms and conditions of Exhibit B
attached hereto.
7. MANUFACTURING.
a. PACKAGING. Novell shall have reasonable approval rights for the
appearance and content of Manufactured Product. Novell will have no
obligation to insert or include any brochure or other materials with
the Licensed Work. For standalone distribution of the Licensed Work,
and subject to Section 4.c., Novell shall use Company's trade dress
and artwork on the packaging to the extent that the packaging
includes trade dress and/or artwork.
b. MANUFACTURING. At Novell's option and request, Company shall, at its
sole expense, manufacture, build, and deliver Manufactured Product as
reasonably specified by Novell using a manufacturer approved by
Novell. If Novell manufactures the Licensed Works, then Company shall
reimburse Novell for all manufacturing and delivery costs to the
extent that they do not exceed Company's manufacturing and delivery
costs. For all Product, Novell will use commercially
reasonable efforts to provide Company with the following at least
thirty (30) days prior to Novell's first customer shipment of the
Licensed works:
i. Quantity to be manufactured:
ii. The Novell part numbers for the Manufactured Products; and
iii. Shipping address for delivery of finished Manufactured Product,
FOB destination.
c. INSPECTION. Novell will have the option to inspect the Manufactured
Products to ensure that its packaging requirements are met. Novell
will make a good-faith effort not to disrupt the daily operations of
Company during such inspection.
d. MEDIA KITS. Novell offers various forms of direct licensing programs
to customers whereby the customer receives a media kit that includes
the Licensed Works and subsequently orders licenses in the desired
quantity, if any. Company agrees that Novell may distribute and
offer the Licensed Works in this manner.
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8. CONSIDERATION. Unless otherwise stated in this Agreement, each party shall
bear its respective costs in performing hereunder. Each party shall
designate an accounting address, and any payment made by a party hereunder
shall be sent to the other party at its designated accounting address.
a. ROYALTIES. This section sets forth the entirety of Novell's
obligations to make payments in exchange for the licenses granted to
Novell under this Agreement. Except as otherwise stated herein,
Novell shall pay Company Fifty Percent (50%) of Net Revenue from
Novell's distribution, maintenance, and support of the Licensed Works.
b. UPGRADE PROTECTION. If Novell offers upgrade protection for a
Licensed Work and the upgrade protection period exceeds the effective
term of this Agreement, Company shall deliver to Novell any upgrades
that are made Generally Available during the upgrade protection
period for distribution to upgrade protection customers throughout
the upgrade protection periods offered.
c. PRICING. If Novell lists the Licensed Works on its general price
list, such suggested retail price ("SRP") of the Licensed Works will
be at a price that is equivalent to or greater than the SRP offered
by Company, if any, for the same Licensed Works. Discounts shall be
determined by Novell at its discretion, but such discounts shall be
consistent with Novell's routine discounting practices for its own
products under like programs and volumes. Company shall notify Novell
of any changes to its SRP for the Licensed Works. Novell shall
implement a corresponding price change (if required by this section)
as soon as it is commercially reasonable to do so without incurring
additional costs or disruption of distribution.
d. ROYALTY EXCEPTIONS. The obligation to make payments under this
section shall not apply to:
i. Returned copies of the Licensed Works (e.g., payments
previously made on returned copies may be refunded or taken
as a credit against payments owed for further copies);
ii. Promotions, evaluations, sales demonstrations, and use by
training education centers and resellers; and
iii. Internal use by Novell and its subsidiaries or affiliates.
e. PAYMENT AND LICENSE REPORTS. Within sixty (60) days after the end of
each Novell fiscal quarter, Novell will provide Company with payment
and a royalty report in a form reasonably determined by Novell.
f. AUDIT. The parties will maintain complete and accurate accounting
records, in accordance with generally accepted accounting practices,
to support and document amounts due and will retain such records for
three (3) years after payment is made. A party will, upon written
request of the other party, provide audit access to such records to a
mutually acceptable independent accounting firm that is chosen and
compensated by the other party to examine such books and records to
verify reports and payments made by the other party. such access will
be granted only during normal business hours and no more frequently
than once during any twelve (12) month period. The audit will not
interfere with the audited party's normal business activity. The
accounting firm will execute an appropriate non-disclosure agreement
that requires it to hold all information received during the audit in
confidence and will be authorized to report to the other party only
the amount of payments actually due under the Agreement for the
period examined.
g. TAX CONSEQUENCES. All license fees are exclusive of all applicable
taxes. The party making payment ("PAYER") shall be responsible for
all sales, use, excise, value added, and/or equivalent taxes arising
out of the payment and shall either include such taxes with the
payment or shall provide the other party ("PAYEE"), in advance, with
a valid exemption certificate or other documentation to successfully
claim exemption from the tax. Payer shall not be responsible for: (a)
taxes based upon Payee's net income, capital, or gross receipts, or
(b) any withholding taxes imposed if such withholding tax is allowed
as a credit against U.S. income taxes of Payee such as a withholding
tax on a royalty payment where such withholding is required by law.
In the event Payer is required to withhold taxes. Payer agrees to
furnish to Payee all required receipts and documentation
substantiating such payment. If Payer is required by law to remit any
tax or duty on behalf of, or for the account of, Payee, then Payee
agrees to reimburse Payer within thirty (30) days after Payer
notifies Payee in writing of such remittance.
9. TERM AND TERMINATION. This Agreement shall be effective upon the Effective
Date and shall remain in force for period of two (2) years, unless
otherwise terminated as provided in this section. After the initial
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term of two (2) years, this Agreement shall automatically renew for
consecutive one (1) year periods unless either party provides written
notice to the other party at least ninety (90) days prior to the Effective
Date anniversary. Termination or expiration of this Agreement shall not
affect any licenses granted to Novell prior to such termination or
expiration, and such licenses shall not be subject to revocation or
injunction during the term of this Agreement or thereafter.
a. TERMINATION WITHOUT CAUSE. Novell may terminate this Agreement
without cause upon not less than ninety (90) days written notice to
Company. Company may terminate this Agreement without cause upon not
less than ninety (90) days written notice to Novell, provided that
the effective termination date is after the first anniversary of the
Effective Date.
b. TERMINATION FOR CAUSE. Either party may terminate this Agreement for
the substantial breach by the other party of a material term that
remains uncured as stated herein. The terminating party shall first
give the other party written notice of the alleged breach and a
reasonable period of at least thirty (30) days in which to cure the
alleged breach. If a cure is not achieved during the cure period,
then the parties shall submit to mandatory mediation with a mutually
agreed upon mediator, such mediation to be completed within thirty
(30) days and to be held in Salt Lake City, Utah. Termination of the
Agreement may occur upon the expiration of the cure period and the
subsequent unsuccessful completion of mandatory mediation as required
by this section by written notice of the non-breaching party. Neither
party shall be precluded from seeking equitable remedies consistent
with the terms of this Agreement.
10. GENERAL TERMS.
a. ASSIGNMENT. Neither party may transfer or assign any right or
obligation set forth in this Agreement without the prior written
consent of the other party, which consent shall not be unreasonably
withheld. Such consent shall not be required, however, for transfer
or assignment to an entity acquiring control of a party hereto.
b. CONFIDENTIALITY AND INFORMATION EXCHANGE. It is the intention of
Company and Novell to transfer and/or exchange information, including
confidential information, as may be necessary. The disclosing party
shall be referred to as "DISCLOSER" and the receiving party as
"RECIPIENT."
i. MANNER OF DISCLOSURE; EXTENT OF CONFIDENTIALITY
OBLIGATIONS. Confidential information may be disclosed in
oral, visual, or written form (including magnetic, optical,
or other media). Recipient's obligations shall only extend
to Source Code and to confidential information that is
marked as confidential at the time of disclosure or that is
unmarked (e.g., orally disclosed) but is treated as
confidential at the time of disclosure. The specific terms
and conditions of this Agreement shall be treated by both
parties as confidential information.
ii. DEGREE OF CARE. Recipient shall protect the disclosed
confidential information by using the same degree of care,
but no less than a reasonable degree of care, to prevent
the unauthorized use, dissemination, or publication of the
confidential information as Recipient uses to protect its
own confidential information of a like nature.
iii. EXPIRATION OF DUTY OF CONFIDENTIALITY. Recipient's duty to
hold confidential information in confidence expires five
(5) years or, in the case of Source Code, fifteen (15)
years after (i) its return or destruction in the case of
confidential information embodied in received or developed
(whichever is later) Source Code and related descriptions,
specifications, and system documentation, or (ii) its
receipt or development (whichever is later) in the case of
any other confidential information. The expiration of the
duty of confidentiality shall not modify other restrictions
on Recipient including, for example, any restrictions on
distribution of Source Code arising out of a copyright
license.
iv. EXCEPTIONS TO DUTY. This Agreement imposes no obligation
upon Recipient with respect to information that: (a) was in
Recipient's possession before receipt from the Discloser;
(b) is or becomes a matter of public knowledge through no
fault of Recipient; (c) is rightfully received by the
Recipient from a third party without a duty of
confidentiality; (d) is disclosed by the Discloser to a
third party without a duty of confidentiality on the third
party; (e) is disclosed under operation of law after all
reasonable means have been afforded to the
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Discloser to protect the information; or, (g) is disclosed by
Recipient with Discloser's prior written approval.
c. CONSTRUCTION. The headings in this Agreement are provided for
reference only and shall not be used as a guide to interpretation.
When used in this Agreement, the singular includes the plural and the
plural includes the singular.
d. ENTIRE AGREEMENT. This Agreement sets forth the entire agreement and
understanding between the parties as to its specific subject matter
and merges all prior discussions between them with regard to such
specific subject matter. Neither of the parties shall be bound by any
conditions, definitions, warranties, understandings, agreements, or
representations, whether written or oral, with respect to such
specific subject matter other than as expressly provided in the
Agreement or as duly set forth on or subsequent to its Effective Date,
in a written document that is signed by a duly authorized
representative of each party.
e. EXPORT OF TECHNICAL DATA. Each party agrees to comply with U.S. export
laws and regulations when exporting any materials or any items
licensed or developed under this Agreement or any portion thereof, or
any system containing such materials or items or portion thereof, or
any technical data or other confidential information, or any direct
product of any of the foregoing (collectively, "Program") from the
U.S. or re-exporting a Program from one foreign country to another. It
is the exporting party's responsibility to comply with the U.S.
Government requirements as they may be amended from time to time. Each
party will reasonably cooperate with the other party in obtaining
export licenses or approvals.
f. FORCE MAJEURE. Neither party shall be liable in damages or have the
right to cancel or terminate this Agreement for any delay or default
in performance if such delay or default is caused by unforeseen
conditions or conditions beyond the control of the delaying or
defaulting party, including but not limited to acts of God, government
restrictions, continuing domestic or international problems such as
wars or insurrections, strikes, fires, floods, work stoppages, and
embargoes.
g. FREEDOM OF ACTION. The parties acknowledge that each party is free to
(i) enter into agreements that are similar to this Agreement with any
corporation or other entity, including competitors of the other party,
(ii) independently develop and/or sell any product or service,
including those that may compete with the other party's products or
services or include similar features or functionality.
h. INTELLECTUAL PROPERTY INDEMNITY. Company shall defend, indemnify, and
hold Novell harmless from any claim made or suit or proceeding brought
against Novell and its subsidiaries or affiliates, and their
directors, officers, employees, and agents, including the payment of
any and all losses, judgments, awards, and costs (including reasonable
legal fees and expenses) arising out of or related to any claim that
the Licensed Trademarks or Licensed Works infringe or violate the
copyright, trademark, trade name, trade secret, patent right or other
right of any third party. Company will defend at its sole expense all
suits or proceedings arising out of the claims described above,
provided that Novell gives Company prompt notice and control of the
defense of any claim of which it learns. Novell will have the right to
participate in the defense of any claim involving the use of Licensed
Works, provided that Company will not be responsible for Novell's
attorney's fees should Novell elect to participate in such defense.
i. INDEPENDENT CONTRACTORS. Each party is and shall remain an independent
contractor with respect to all performance under this Agreement. No
employee of either party shall be considered an employee or agent of
the other party for any purpose. Nothing in this Agreement shall be
construed to prevent either party from delegating performance under
this Agreement to independent contractors who have entered into
written agreements consistent with and at least as restrictive as the
provisions contained in this Agreement.
j. LAWS. The validity, construction, and performance of this Agreement
will be governed by the substantive laws of the State of Utah without
regard to any choice of law provisions. The parties agree that any
dispute relating to this Agreement shall be exclusively subject to the
courts within the State of Utah after satisfaction of any condition
precedent stated in this Agreement. The prevailing party in any action
to enforce the terms of this Agreement entered into hereunder shall be
entitled to recover its costs and expenses, including reasonable
attorney's fees, incurred in connection therewith, in addition to any
other relief to which such party is entitled. Each party shall, at its
own expense, comply with any governmental law, statute, ordinance,
administrative order, rule, or regulation relating to its duties,
obligations, or performance under this Agreement.
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k. LIMITATION OF LIABILITIES. NEITHER PARTY SHALL IN ANY EVENT BE LIABLE
FOR INDIRECT, SPECIAL, RELIANCE, INCIDENTAL, PUNITIVE, COVER, OR
CONSEQUENTIAL LOSS OR DAMAGE OF ANY KIND ARISING UNDER THIS
AGREEMENT, WHETHER IN A CONTRACT, TORT, OR OTHER ACTION FOR OR
ARISING OUT OF ALLEGED BREACH OF WARRANTY, ALLEGED BREACH OF
CONTRACT, DELAY, NEGLIGENCE, STRICT LIABILITY, OR OTHERWISE. EXCEPT
AS TO THE INDEMNITY OBLIGATIONS SET FORTH IN THIS AGREEMENT, IN NO
EVENT SHALL EITHER PARTY BE LIABLE UNDER THIS AGREEMENT TO THE OTHER,
ITS SUCCESSORS AND ASSIGNS FOR ANY DAMAGES EXCEEDING TOTAL PAYMENTS
PAID OR DUE BY BOTH PARTIES UNDER THIS AGREEMENT.
l. NOTICES. Unless otherwise agreed to by the parties, all notices
required under this Agreement shall be deemed effective when received
and made in writing by either (i) registered mail, (ii) certified
mail, return receipt requested, (iii) overnight mail, or (iv)
telephone facsimile transfer with confirmation, addressed and sent to
the receiving party address with the original of the notice being
addressed to the signatory of this Agreement and a copy addressed to
the receiving party's General Counsel, legal department, or legal
representative.
m. REPRESENTATIONS, WARRANTIES, AND DISCLAIMER.
i. OWNERSHIP. Company represents and warrants that the Licensed
Works and Licensed Trademarks do not infringe any entity's
or person's patent, copyright, trademark, trade name, trade
secret rights, or other proprietary right, that Company has
the valid right to grant to Novell all rights to the
Licensed Works and Licensed Trademarks granted herein, and
that to Company's knowledge there is currently no actual or
threatened claim by any third party based on an alleged
violation of these rights by Company.
ii. DISCLAIMER. EXCEPT AS EXPRESSLY SET FORTH IN THIS
AGREEMENT, NEITHER PARTY MAKES ANY WARRANTIES OR
REPRESENTATIONS OF ANY KIND, EXPRESS OR IMPLIED, WITH
RESPECT TO DELIVERABLES, LICENSED WORKS, INFORMATION OR
OTHERWISE UNDER THIS AGREEMENT, AND EACH PARTY HEREBY
EXPRESSLY DISCLAIMS ALL SUCH WARRANTIES, INCLUDING BUT NOT
LIMITED TO THE IMPLIED WARRANTIES OF MERCHANTABILITY,
TITLE, NON-INFRINGEMENT, AND FITNESS FOR A PARTICULAR
PURPOSE.
n. SEVERABILITY. If any provision of this Agreement is held by a court
of competent jurisdiction to be invalid, illegal, or unenforceable,
the remaining provisions shall remain in full force and effect and
shall be interpreted, to the extent possible, to achieve the purposes
of this Agreement as originally expressed. The parties further agree
to substitute for the invalid provision a valid provision that most
closely approximates the intent and economic effect of the invalid
provision.
o. SUBSIDIARIES. All rights and licenses granted to Novell in this
Agreement shall apply to Novell's subsidiaries. Company agrees that
it may not seek to enforce any obligation of Novell (or its
subsidiaries) through a legal action brought against a subsidiary
except to the extent that such action seeks injunctive relief against
that particular subsidiary. Each party shall remain fully liable for
the acts and omissions of its subsidiaries relative to this Agreement.
p. SURVIVAL OF TERMS. In the event of a termination or expiration of
this Agreement, all obligations of confidentiality, all provisions
regarding upgrade protection, all general terms, and all other
provisions and licenses that by their nature survive termination,
shall continue in effect in accordance with their terms.
q. VOLUME OBLIGATIONS. Neither party shall have an obligation (i) to
offer any product or service to any third party by way of sale,
license, or otherwise (ii) to use any minimum level of effort (unless
expressly stated in this Agreement) in the promotion, marketing,
licensing, or sales of any products or services, including products
or services of the other party, or (iii) to purchase, sell, or
license any minimum amount of products or services from the other
party. Novell has no obligation to make the Licensed Works available
or to include any Licensed Work on its price list.
r. WAIVER. No waiver of any provision of this Agreement shall be
effective unless it is set forth in a writing that refers to the
provisions so waived and is executed by an authorized representative
of the party
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waving its rights. No failure or delay by either party in exercising
any right, power, or remedy will operate as a waiver of any such
right, power, or remedy.
* * * * * * * *
NOVELL COMPANY
By: /s/ ▇. ▇. ▇▇▇▇ By: /s/ ▇▇▇ ▇▇▇▇▇▇▇
-------------------------------- --------------------------------
Name: ▇. ▇. ▇▇▇▇ Name: ▇▇▇ ▇▇▇▇▇▇▇
------------------------------ ------------------------------
Title: V. P. [Illegible] Title: President
----------------------------- -----------------------------
Date: 10/16/01 Date: 10/5/01
------------------------------ ------------------------------
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Approved ▇. ▇▇▇▇▇▇▇
Legal Dept. PM
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