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EXHIBIT 10.36
OPEN SERVER RESEARCH AND DEVELOPMENT AGREEMENT
THIS OPEN SERVER RESEARCH AND DEVELOPMENT AGREEMENT,
("Agreement") made and entered into effective the ____ day of ____ 2000,
("Effective Date") by and between The Santa ▇▇▇▇ Operation, Inc., a California
corporation, ("SCO") and Caldera, International, Inc., a Delaware corporation
("Caldera ") (together, the "Parties").
WHEREAS, SCO and Caldera are parties to an Agreement and Plan
of Reorganization, dated August 1, 2000, as amended on September 13, 2000,
whereby SCO has transferred to Caldera certain of its assets (the
"Transaction");
WHEREAS, SCO has retained the Open Server UNIX business and
has engaged Caldera, pursuant to the terms of that certain Sales Representative
and Support Agreement (the "Sales Representative Agreement"), dated as of the
date hereof, for the purpose of (i) soliciting and procuring orders for SCO's
Products (as defined below) in the Territory and (ii) marketing the Products;
WHEREAS, SCO also desires to engage Caldera for the purpose of
providing research and development services of the type described in Attachment
A (the "R&D Services").
NOW, THEREFORE, the parties agree as follows:
1. Appointment; Territory.
SCO hereby appoints Caldera, and Caldera hereby agrees to act, as the
exclusive provider to SCO of the R&D Services worldwide (the "Territory"), for
the term of this Agreement, subject to all of the terms and conditions of this
Agreement.
2. Products.
Products. The products covered by this Agreement ("Products")
are those Open Server UNIX products in binary form listed on Attachment B
hereto.
3. Fees; Expense Reimbursements.
a. In consideration for the duties of Caldera contained herein
and as the entire compensation of Caldera for its services under this Agreement,
SCO will pay Caldera fees equal to 110% of all direct and indirect costs
relating to the R&D Services, including, but not limited to, costs relating to
taxes, payroll, employment benefits, facilities (for which the costs shall not
be unreasonable, based on costs relative to comparable (job and location)
Caldera employees), equipment and training of employees who will be working on
the Products (the "R&D Costs"). In no event shall Caldera allocate any general
and administrative costs to the R&D costs, such as, but not limited to, legal,
finance and human resources.
b. Invoices shall be issued on the fifteenth day of each month
for the R&D Costs of the previous month. SCO shall pay invoices within fifteen
(15) days from the date of
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receipt of the invoice. Fees will be paid in U.S. dollars by check or wire
transfer. Any late payments will accrue interest at 8% per annum until paid.
c. Verification. Both parties shall, upon ten (10) days
written notice, be given access to the books and records of the other party to
the extent necessary for purposes of verifying that appropriate fees and
reimbursements to be paid under this Agreement are being accounted for and paid
in accordance therewith. No party shall request verification more than two times
per calendar year.
4. Relationship of Parties. The parties hereto expressly understand and agree
that Caldera is an independent contractor in the performance of each and every
part of this Agreement and is solely responsible for all of its employees and
agents and its labor costs and expenses arising in connection therewith and for
any and all claims, liabilities or damages or debts of any type whatsoever that
may arise on account of Caldera's activities, or those of, its employees or
agents in the performance of this Agreement. Caldera has no authority, right or
ability to bind or commit SCO in any way (including, without limitation, by
receiving orders) or sell any Products and will not attempt to do so or imply
that it may do so.
5. Responsibilities of Caldera. Caldera's duties hereunder are as follows:
▇. ▇▇▇▇▇▇▇ will employ a sufficient number of qualified
employees and agents, as it determines in its reasonable discretion, for
purposes of performing all of its duties set forth herein and providing the
deliverables ("Deliverables") set forth in the Product Roadmap (as defined
below) from time to time. SCO agrees that Caldera shall be permitted to make use
of incidental individual subcontractors onsite, where such useage is consistent
with Caldera's normal management practices and costs, such as, without
limitation, for supplementing skill sets and covering employee absences. Such
incidental useage shall not, without the prior approval of SCO, exceed 30% of
the costs for any particular three month period, as set forth in the Product
Roadmap. In addition, Caldera may subcontract offsite specific development work
on the Deliverables to the extent that such subcontracting is consistent with
the development process, staffing plan, methodology, schedule and estimated
costs as may be set forth in the Product Roadmap (as defined below).
b. Every three months, starting with the date that is three
months from the Effective Date, Caldera shall provide for SCO's approval, which
shall not be unreasonably withheld, a rolling product roadmap (the "Product
Roadmap") setting forth: (i) a description of the projects to be undertaken
during the next twelve month period; (ii) the expected Deliverables and delivery
dates; (iii) the estimated resources required for such Deliverables; (iv) SCO's
responsibilities; and (v) R&D Costs. A product roadmap for the initial twelve
month period is attached hereto as Attachment ▇.
▇. ▇▇▇▇▇▇▇ will keep SCO informed as to any problems
encountered with the Product Roadmap and as to any resolutions arrived at for
those problems, and will communicate promptly to SCO any and all modifications,
design changes, improvements of the Products, or new significant customer
requirements that materially change the Deliverables identified in the Product
Roadmap suggested by any entity or person solicited by or making inquiries of
Caldera or by any employee or agent of Caldera. All subsequent additions,
deletions or changes to the
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R&D Services desired by SCO shall be included in the next Product Roadmap or be
subject to mutual agreement between the parties and shall require execution of a
written change order by both parties (a "Change Order") which shall
substantially conform to the format of the document attached hereto as
Attachment E. Each Change Order complying with this section shall be deemed to
be an amendment to the applicable Product Roadmap, which will become an integral
part of such Product Roadmap upon the later of the dates on which the parties
execute the Change Order. Caldera shall not perform any new or additional
services until the earlier of a new Product Roadmap executed by the parties or a
duly executed Change Order. Caldera will not be responsible for any delay in the
performance of R&D Services due to causes beyond the reasonable control of
Caldera.
▇. ▇▇▇▇▇▇▇ shall use its reasonable best efforts to incent and
retain the core OpenServer development engineers on a comparable basis as with
other employees of the same level of responsibility.
6. Duties of SCO. SCO will have the following responsibilities during the term
of this Agreement:
a. SCO will provide Caldera, at SCO's expense, with current
catalogs, data sheets, engineering data, source code, application data, answers
to technical and commercial inquiries, and any other information required in, or
helpful to, Caldera's provision of the R&D Services in the Territory
("Development System"). Notwithstanding the above, SCO shall have no obligation
to make updates to the Development System or items to be provided to Caldera, or
to supplement the inventory levels of the Development System and items. Any
printed materials, equipment, spare parts or source code furnished by SCO to
Caldera will be and remain at all times the property of SCO.
b. SCO hereby grants to Caldera (pursuant to SCO's
intellectual property rights therein) a worldwide, nonexclusive, royalty-free
license to use, modify, and make derivatives works of the Development System,
including the source code provided to Caldera, and the Products for the sole
purpose of performing the R&D Services under this Agreement.
▇. ▇▇▇▇▇▇▇'▇ timely performance of its obligations hereunder
is, in part, subject to and dependent on timely performance by SCO of its
obligations as set forth in this Section and the applicable Product Roadmap.
Caldera shall not be responsible for any delay in, or inability to perform, any
services or provide any deliverables that is the direct result of any failure or
delay by SCO in the performance of its obligations.
7. Term and Termination.
a. Subject to the provisions for termination as provided
herein, this Agreement will commence on the Effective Date and will terminate
automatically upon the termination of the Sales Representative Agreement.
b. Except as otherwise provided herein, the provisions of this
Agreement which by their nature are continuing obligations of this Agreement
termination shall survive termination pursuant to this Section 7.
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8. Proprietary Information; Proprietary Rights
▇. ▇▇▇▇▇▇▇ acknowledges that, in the course of performing its
duties under this Agreement, it may obtain information relating to products and
to SCO which is of a confidential and proprietary nature ("Proprietary
Information"). All Proprietary Information will be clearly marked as such by SCO
with a label stating "Confidential" or "Proprietary", except for source code of
SCO, which by its nature is Proprietary Information. Such Proprietary
Information may include, without limitation, computer codes, trade secrets,
know-how, inventions, techniques, processes, programs, algorithms, schematics,
data, customer lists, financial information and sales and marketing plans.
Caldera and its employees, agents and independent contractors will, at all
times, both during the term of this Agreement and after its termination, keep in
trust and confidence all such Proprietary Information, and will not use such
Proprietary Information other than in the course of its duties as expressly
provided in this Agreement, nor will Caldera or its employees, agents or
independent contractors disclose any such Proprietary Information to any person
without SCO's prior written consent. Caldera acknowledges that any such
Proprietary Information received by Caldera will be received as a fiduciary of
SCO. In the event Caldera becomes legally compelled to disclose any Proprietary
Information, Caldera shall provide SCO with prompt written notice of such
requirements so that SCO may seek a protective order or other appropriate remedy
or waive compliance with this Agreement.
▇. ▇▇▇▇▇▇▇ will not be bound by this Section 8 with respect to
information Caldera can document (i) at the date hereof has entered or later
enters the public domain as a result of no act or omission of Caldera or its
employees, or agents; (ii) is lawfully received by Caldera from third parties
without restriction and without breach of any duty of nondisclosure by any such
third party; (iii) was rightfully in its possession or known by it prior to
receipt from SCO; (iv) was independently developed without use of any
Proprietary Information of SCO; or (v) is embedded in or incorporated within
UnixWare.
c. SCO and its licensors retain all right, title and interest
in and to (i) the source code of the Products, (ii) all copyrights, patent
rights, trade secret rights and other proprietary rights in the Products, all
copies and derivative works thereof (by whomever produced) and all related
documentation, specifications, and materials, and (iii) all of SCO's service
marks, trademarks, trade names or any other designations. Notwithstanding the
above, Caldera at all times retains the exclusive ownership of its knowledge,
skills, experience, ideas, concepts, processes and techniques developed in the
course of performing the Services, subject to SCO's ownership rights set forth
above. In addition, SCO hereby grants to Caldera a perpetual, non-exclusive,
royalty-free license to use, reproduce, modify, make derivative works of and
distribute such Deliverables as are indicated on the Product Roadmap as
Deliverables that can be used in connection with products of Caldera, including,
but not limited to, UnixWare. Any SCO Proprietary Information that is contained
in the Deliverables shall be kept confidential by Caldera in accordance with
this Section 8 of this Agreement.
▇. ▇▇▇▇▇▇▇ agrees, as a condition of the rights and licenses
granted under this Agreement and except as otherwise expressly and unambiguously
authorized hereunder, (i) not to convey to any third party without the express,
prior written approval from SCO, the source code of any of the Products; (ii)
not to create or attempt to create, by reverse engineering or
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otherwise, the specifications for any Product from the information made
available to it; (iii) not to remove any product identification or notices of
any proprietary or copyright restrictions from the Products or any support
material; (iv) not to develop derivative works from the Products or SCO
documentation or literature for the Products; (v) prior to disposing of any
media or apparatus, to destroy completely any Proprietary Information contained
in any media or apparatus, prior to its disposal; and (vi) in addition to and
without in any way limiting Caldera's other obligations hereunder, to use all
methods to protect SCO's rights with respect to the Products and Proprietary
Information as it uses to protect any third party's Products, confidential
information or rights. Notwithstanding the above, Caldera may disclose
Proprietary Information only to its employees, agents and independent
contractors as is reasonably required in connection with the exercise of its
rights and obligations under this Agreement (and only subject to binding use and
disclosure restrictions at least as protective as those set forth herein
executed in writing by such employees, agents or independent contractors).
9. Warranty. Caldera warrants that it will perform the R&D Services in a
reasonable and competent manner. CALDERA MAKES NO OTHER WARRANTY OR GUARANTEE,
EXPRESSED OR IMPLIED, UNDER THIS AGREEMENT OR ANY PRODUCT ROADMAP, AND CALDERA
EXPRESSLY DISCLAIMS ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A
PARTICULAR PURPOSE AND NONINFRINGEMENT.
10. Indemnification.
a. SCO represents and warrants that it owns or has a valid
right to use all of the Proprietary Assets comprising any portion of the
Development System or the Products. SCO will indemnify, defend and hold Caldera
and its officers, directors, agents and employees harmless from liability
resulting from infringement or alleged infringement by the Products of any
Proprietary Assets of any other person. SCO will indemnify and hold Caldera and
its officers, directors, agents and employees harmless from liability resulting
from warranty claims relating to the Products made by the Buyers thereof against
Caldera. For purposes of this paragraph, "Proprietary Assets" means any: (a)
patent, patent application, trademark (whether registered or unregistered),
trademark application, trade name, fictitious business name, service ▇▇▇▇
(whether registered or unregistered), service ▇▇▇▇ application, copyright
(whether registered or unregistered), copyright application, maskwork, maskwork
application, trade secret, know-how, customer list, franchise, system, computer
software, computer program, invention, design, blueprint, engineering drawing,
proprietary product, technology, proprietary right or other intellectual
property right or intangible asset; or (b) right to use or exploit any of the
foregoing. SCO also agrees to defend Caldera from and against all third party
claims, suits and proceedings brought against Caldera, and will pay all final
judgments awarded or settlements entered into on such claims, arising out of or
related to any material breach by SCO (including the nonpayment of fees) of the
terms or conditions of this Agreement.
▇. ▇▇▇▇▇▇▇ agrees to defend SCO from and against all third
party claims, suits and proceedings brought against Caldera, and will pay all
final judgments awarded or settlements entered into on such claims, arising out
of or related to any material breach by Caldera of the terms or conditions of
this Agreement.
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c. The indemnifying party's indemnification obligations under
this Section 9 are conditioned upon the indemnified party: (a) giving prompt
notice of the claim to the indemnifying party (provided, however, that any
failure or delay in providing such notice shall only affect the indemnifying
party's obligation hereunder to the extent the defense or settlement of the
claim was prejudiced thereby); (b) granting sole control of the defense or
settlement of the claim or action to the indemnifying party (except that the
indemnified party's prior written approval will be required for any settlement
that reasonably can be expected to require an affirmative obligation of or,
result in any ongoing liability to the indemnified party); and (c) providing
reasonable cooperation to the indemnifying party and, at the indemnifying
party's request and expense, assistance in the defense or settlement of the
claim.
11. Limitation of Liability.
a. While Caldera believes that it will be able to modify the
Products in accordance with Attachment C, it cannot guarantee that the
development work will result in versions of the Products that are error-free.
NOTWITHSTANDING ANYTHING ELSE IN THIS AGREEMENT OR OTHERWISE, CALDERA SHALL NOT
BE LIABLE OR OBLIGATED UNDER ANY NEGLIGENCE, STRICT LIABILITY OR OTHER CAUSE OF
ACTION FOR ANY SPECIAL, INCIDENTAL OR INDIRECT DAMAGES OF ANY KIND OR NATURE
WHATSOEVER, SUFFERED BY SCO OR ANY THIRD PARTY, INCLUDING, WITHOUT LIMITATION,
LOST PROFITS, BUSINESS INTERRUPTIONS, SERVICES OR TECHNOLOGY, OR OTHER ECONOMIC
LOSS ARISING OUT OF OR RELATED TO THIS AGREEMENT OR ANY ATTACHMENT.
12. Miscellaneous.
a. Assignment; Binding Upon Successors And Assigns. Neither
party hereto may assign any of its rights or obligations hereunder without the
prior written consent of the other party hereto, which shall not be withheld
unreasonably. Notwithstanding the above, SCO shall not be required to obtain
Caldera's consent for any assignment made in conjunction with a Change of
Control (as defined below), so long as the acquiring entity in such Change of
Control is not one of the entities listed on Attachment D hereto. "Change of
Control" shall mean the sale of all or substantially all of SCO's assets or an
acquisition or merger of SCO in which the stockholders of SCO immediately prior
to such acquisition or merger hold less than 20% of the voting stock of the
surviving or acquiring entity after such acquisition or merger. Subject to the
preceding sentences, this Agreement will be binding upon and inure to the
benefit of the parties hereto and its respective successors and permitted
assigns.
b. Severability. If any provision of this Agreement, or the
application thereof, will for any reason and to any extent be invalid or
unenforceable, the remainder of this Agreement and application of such provision
to other persons or circumstances will be interpreted so as reasonably to effect
the intent of the parties hereto. The parties further agree to replace such void
or unenforceable provision of this Agreement with a valid and enforceable
provision that will achieve, to the greatest extent possible, the economic,
business and other purposes of the void or unenforceable provision.
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c. Amendment and Waivers. Any term or provision of this
Agreement may be amended by the parties hereto at anytime by execution of an
instrument in writing signed on behalf of each of SCO and Caldera. The waiver by
a party of any breach hereof or default in the performance hereof will not be
deemed to constitute a waiver of any other default or any succeeding breach or
default. Delay in exercising any right under this Agreement will not constitute
a waiver of such right.
d. Governing Law. The internal laws of the State of New York
(irrespective of its choice of law principles) will govern the validity of this
Agreement, the construction of its terms and the interpretation and enforcement
of the rights and duties of the parties hereto.
e. Notices. All notices and other communications pursuant to
this Agreement will be in writing and deemed to be sufficient if contained in a
written instrument and will be deemed given if delivered personally, telecopied,
sent by nationally-recognized overnight courier or mailed by registered or
certified mail (return receipt requested), postage prepaid, to the parties at
the following address (or at such other address for a party as will be specified
by like notice):
If to SCO to: The Santa ▇▇▇▇ Operation, Inc.
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: Chief Executive Officer and Law and Corporate Affairs
Telecopier: (▇▇▇) ▇▇▇-▇▇▇▇
With a copy to: Wilson, Sonsini, ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇
▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Telecopier: (▇▇▇) ▇▇▇-▇▇▇▇
And if to Caldera: Caldera International, Inc.
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
Attention: Chief Executive Officer
Telecopier: (▇▇▇) ▇▇▇-▇▇▇▇
With a copy to: ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP
▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇ ▇. ▇▇▇▇▇, III
Telecopier: (▇▇▇) ▇▇▇-▇▇▇▇
All such notices and other communications will be deemed to have been
received (a) in the case of personal delivery, on the date of such delivery, (b)
in the case of a telecopy, when the party receiving such copy will have
confirmed receipt of the communication, (c) in the case of
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delivery by nationally-recognized overnight courier, on the business day
following dispatch, and (d) in the case of mailing, on the third business day
following such mailing.
f. Entire Agreement. This Agreement constitutes and contains
the entire agreement and understanding of the parties with respect to the
subject matter hereof and supersedes any and all prior negotiations,
correspondence, agreements, understandings, duties or obligations between the
parties respecting the subject matter hereof.
g. Attorneys' Fees. Should suit be brought to enforce or
interpret any part of this Agreement, the prevailing party will be entitled to
recover, as an element of the costs of suit and not as damages, reasonable
attorneys' fees to be fixed by the court (including, without limitation, costs,
expenses and fees on any appeal). The prevailing party will be entitled to
recover its costs of suit, regardless of whether such suit proceeds to final
judgment.
h. Counterparts. This Agreement may be executed in any number
of counterparts, each of which will be an original as regards any party whose
signature appears thereon and all of which together will constitute one and the
same instrument. This Agreement will become binding when one or more
counterparts hereof, individually or taken together, will bear the signatures of
all the parties reflected hereon as signatories.
i. Dispute Resolution. Except that either party may seek
equitable or similar relief from a court, any dispute, controversy or claim
arising out of or in relation to this Agreement or at law, or the breach,
termination or invalidity thereof, that cannot be settled by agreement of the
parties hereto, will be finally settled by arbitration in accordance with the
commercial arbitration rules of the American Arbitration Association then in
force, by one or more arbitrators appointed in accordance with said rules. The
place of arbitration will be Santa ▇▇▇▇▇ County, California. The award rendered
will be final and binding upon both parties. Judgment upon the award may be
entered in any court having jurisdiction, or application may be made to such
court for judicial acceptance of the award and/or an order of enforcement as the
case may be.
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IN WITNESS WHEREOF, the parties have entered into this
Agreement effective as of the date first above written.
CALDERA INTERNATIONAL, INC.
By
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Name:
--------------------------------------
Address: ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇, ▇▇ ▇▇▇▇▇
THE SANTA ▇▇▇▇ OPERATION, INC.
By
-----------------------------------------
Name:
--------------------------------------
Address: ▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
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ATTACHMENT A
ENGINEERING AND RESEARCH AND DEVELOPMENT TO BE PERFORMED BY CALDERA
Caldera shall develop and provide periodic product updates as necessary to
provide adequate support for, and compatibility with, new hardware and devices
used in connection with the Products, as set forth quarterly in the Product
Roadmap.
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ATTACHMENT B
OPENSERVER UNIX PRODUCTS ("PRODUCTS")
Products are defined as set forth on the attached price list.
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ATTACHMENT C
PRODUCT ROADMAP
This Product Roadmap is provided as a supplement to the Open Server
Research and Development Agreement, dated __ day of ___ 2000 between SCO and
Caldera (the "Agreement") and is effective as of ___2000. This Product Roadmap,
together with the term of the Agreement shall constitute a single contract. If
any terms in this Product Roadmap conflict with the terms of the Agreement, the
terms of the Product Roadmap shall supersede the Agreement.
1. Services/Project Description
2. Deliverables
(*Indicates Deliverables that can be used in connection with products
of Caldera)
3. Time Schedule
4. Estimated Resources
5. SCO Responsibilities
6. Costs (may include estimates, but must include a "not-to-exceed" cost)
APPROVED BY:
THE SANTA ▇▇▇▇ OPERATION, INC.
By
----------------------------
Name
Title:
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ATTACHMENT D
SECTION 12 ENTITIES
(INCLUDING ANY AFFILIATES THEREOF)
1. SuSe Inc.
2. Red Hat, Inc.
3. TurboLinux Inc.
4. LinuxCare Inc.
5. Sun Microsystems, Inc.
6. Intel Corporation
7. Microsoft Corporation
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ATTACHMENT E
CHANGE ORDER FORM
Change Order No.____ to Product Roadmap No._____ Date:________
SCO or Caldera shall complete Question 1. Caldera shall complete the remainder
of the Change Order, except for the approval/rejection portion, which shall be
completed by SCO in its sole discretion. Each section may be as long or short as
the circumstances require. Additional pages may be attached as necessary.
1. Describe changes, modifications, or additions to the R&D Services.
2. Modifications, clarifications or supplements by Caldera or SCO to
description of desired changes or additions requested in Question 1
above, if any.
3. Necessity, availability and assignment of requisite Caldera personnel
and/or resources to make requested modification or additions.
4. Impact on Costs, delivery schedule, and other requirements.
a. Changes in Costs:
b. Changes in delivery schedule:
c. Changes to any other requirements:
Change Order is: Approved and Accepted Rejected
----- -----
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Signature of SCO Date
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Print Name
----------------------------- -----------------------
Signature of Caldera Date
-----------------------------
Print Name
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